01-002543PL Department Of Business And Professional Regulation, Electrical Contractors Licensing Board vs. David Karably Status: Closed Recommended Order on Friday, September 14, 2001.

Summary: Department proved Respondent failed to document required continuing education. Respondent introduced evidence questioning whether or not he had failed to document required insurance. Department failed its burden of proof on this latter issue.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION , )

ELECTRICAL CONTRACTORS )

LICENSING BOARD , )

)

Petitioner , )

)

vs. ) Case No. 01-2543PL

)

DAVID KARABLY , )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

A hearing was held pursuant to notice on August 23, 2001,

by Stephen F. Dean, assigned Administrative Law Judge of the

Division of Administrative Hearings, in Gainesville, Florida.

APPEARANCES

For Petitioner : Laura P. Gaffney, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399

For Respondent : David Karably, pro se

Post Office Box 12

Earleton, Florida 32631

STATEMENT OF THE ISSUE

Whether the Respondent failed to provide proof of

workers' compensation coverage or exemption, and proof of

having completed 14 hours of approved continuing education in

response to an audit conducted by the Electrical Contractors

Licensing Board for the biennium commencing September 1, 1996,

and terminating on August 31, 1998, in violation of Subsection

489.533(1)(o), Florida Statutes, by violating Subsections

489.515(3) and 489.517(3), Florida Statutes, and Rule 61G6-

9.011, Florida Administrative Code, as alleged in the Amended

Administrative Complaint.

PRELIMINARY STATEMENT

This cause was heard pursuant to a request for hearing

involving material disputed facts filed by the Respondent.

The Petitioner was permitted to file an Amended Administrative

Complaint, upon motion, to include both electrical contractor

license numbers that have been held by the Respondent. The

Amended Administrative Complaint alleged two counts. Count I

alleges the failure to document adequate insurance during the

board audit, specifically the workers' compensation coverage

or exemption. Count II alleges the failure to document the

required amount of board approved continuing education.

Prior to commencement of the proceedings herein, the

Administrative Law Judge informed the parties that prior to

1975, he had been counsel for the Electrical Contractors

Licensing Board (the ECLB) while employed as an assistant

attorney general. The parties waived any potential objection

to this fact and agreed to proceed with the hearing.

At the hearing the Petitioner presented the testimony of

George Ayrish, Program Administrator for the ECLB. The

Petitioner submitted exhibits numbered 1 through 11 which were

admitted into evidence.

The Respondent, David Karably, appeared and represented

himself at the hearing. The Respondent presented exhibit

number 1 which was admitted into evidence. The Respondent was

permitted to testify in narrative fashion.

Both parties filed post-hearing briefs which were read

and considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner is the State of Florida, Department of

Business and Professional Regulation (DBPR), the state agency

charged with regulating the practice of electrical contracting

in Florida and those licensed under Chapter 489, Florida

Statutes, pursuant to Section 20.165, and Chapter 455, Florida

Statutes.

2. The Respondent is, and has been at all times material

to the allegations in the Amended Administrative Complaint, an

electrical contractor licensed by the Electrical Contractors

Licensing Board. From 1987 until 2000, the Respondent was a

registered electrical contractor, holding license number

ER 0010816. Since August of 2000 the Respondent has been a

certified electrical contractor holding license number EC

0002356. The Respondent's practice pursuant to his registered

license was a prerequisite to issuance of his certified

license.

3. All insurance and continuing education requirements

for renewal of a license issued by the ECLB are set forth in

Sections 489.515 and 489.517, Florida Statutes, as well as

Rule 61G6-9.004, Florida Administrative Code, and are

identical for certified and registered electrical contractors.

4. In March of 1999 the ECLB conducted a random audit of

the insurance and continuing education requirements

established in Rule 61G6-9.004, Florida Administrative Code,

for the biennium commencing September 1, 1996, and terminating

August 31, 1998. The Respondent was one of the licensees

randomly chosen for this audit.

5. In response to the initial audit letter sent to the

Respondent on March 17, 1999, the Respondent submitted

insurance and continuing education documentation. This

documentation reflects : no evidence of workers' compensation

coverage or exemption for the audit period; no evidence of

approved continuing education for the audit period; and no

evidence of required liability insurance for the audit period.

The continuing education documentation submitted by the

Respondent was for the prior biennium, in February 1996.

6. On July 19, 1999, the ECLB forwarded the Respondent a

follow-up letter, indicating that he was still lacking the

documents enumerated in Finding of Fact Number 5. In response

to this letter, the Respondent submitted documentation of the

required liability insurance and of workers' compensation for

May 1, 1997 through June 22, 1999.

7. At hearing, the Respondent produced a document

similar to those previously provided to the DBPR documenting

his workmen's compensation insurance from March 1, 1995 to

May 1, 1997. The date of this document was the same as the

date on the materials previously furnished to DBPR.

8. The Respondent testified that his insurance agent had

faxed the requested documents to DBPR and sent copies to him.

He received all of the documents substantiating his insurance

from May 1, 1997 until June 22, 1999. His agent presumably

forwarded or faxed the same documents to DBPR. DBPR produced

all the documents except the one for the period of March 1,

1995 until May 1, 1997.

9. The Respondent provided enough information to raise a

genuine question whether this document was lost by DBPR. It

is concluded that it is as likely DBPR lost the record as it

is the record was not sent.

10. There was no additional documentation of the

required continuing education submitted at hearing.

11. Subsequent to the completion of the audit, the ECLB

initiated a complaint with the Bureau of Consumer Services at

DBPR. This complaint alleges that the Respondent failed to

document required workers' compensation coverage or exemption

for the entire audit period and failed to document required

continuing education within the audit period.

12. The Respondent was initially issued citations for

resolution of the alleged violations herein. Each of these

citations provided for a $500 administrative fine. The

continuing education violation was documented as DBPR case

number 2000-08338 and the workers' compensation violation was

documented as 2000-05654. The Respondent chose to dispute

these citations, and as a result, this matter was handled

pursuant to the provisions of Section 455.225, Florida

Statutes.

13. The Respondent has failed to document completion of

14 hours of board approved continuing education between

September 1, 1996 and August 31, 1998.

14. The Respondent failed to obtain any board approved

continuing education between September 1, 1996 and August 31,

1998.

15. In DBPR case number 2000-08338, the Petitioner

incurred non-legal costs in the amount of $31.70.

16. In DBPR case number 2000-05654, the Petitioner

incurred non-legal costs in the amount of $42.47. However,

this cost may not be recovered.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this case,

pursuant to Section 120.569, Florida Statutes.

18. The Department of Business and Professional

Regulation, Electrical Contractors Licensing Board has

jurisdiction to enter the final order in this case pursuant to

Chapters 455 and 489, Florida Statutes.

19. Pursuant to Subsection 489.515(3), Florida Statutes,

licensees of the ECLB must have obtained liability insurance

and workers compensation insurance or exemption prior to

renewal of their certificate or registration.

20. Pursuant to Sections 489.510 and 489.515(3), Florida

Statutes, the ECLB is authorized to require documentation of

workers' compensation or exemption by random audit.

21. Pursuant to Section 489.517(3)(a), Florida Statutes,

and Rule 61G6-9.004, Florida Administrative Code, licensees of

the ECLB must provide proof of at least 14 classroom hours of

continuing education during each biennium, as a condition of

each renewal.

22. Pursuant to Section 489.515, Florida Statutes, and

Rule 61G6-9.011, Florida Administrative Code, the ECLB is

authorized to require documentation of continuing education by

random audit.

23. The evidence presented raises legitimate questions

whether the documentation for the period March 1, 1995 to May

1, 1997, was misplaced by DBPR. The Petitioner failed to meet

its burden of proof by clear and convincing evidence that the

Respondent failed to document workers' compensation coverage

or exemption in response to the ECLB audit, thereby violating

Sections 489.510 and 489.515(3), Florida Statutes, which

constitutes a violation of Subsection 489.533(1)(o), Florida

Statutes, as alleged in Count I of the Amended Administrative

Complaint.

24. The Petitioner has met its burden of proof by clear

and convincing evidence that the Respondent failed to document

completion of 14 hours of board approved continuing education

for the September 1, 1996 through August 31, 1998, biennium in

response to the ECLB audit, thereby violating Section

489.517(3)(a), Florida Statutes, which constitutes a violation

of Section 489.533(1)(o), Florida Statutes, as alleged in

Count II of the Amended Administrative Complaint.

25. The disciplinary guidelines applicable to violations

of Chapter 489 Part II are found in Rule 61G6-10.002, Florida

Administrative Code. Subsection (15)(d) of this rule provides

the following penalty for a violation as alleged in Count II

of the Amended Administrative Complaint, for failure to

provide required proof of public liability insurance, required

proof of workers' compensation insurance or exemption, or

required proof of continuing education in response to an audit

required by the board (Rules 61G6-5.008 and 61G6-9.011,

Florida Administrative Code). First violation: $500 fine for

each requirement to probation and fine, or suspension.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law set forth herein, it is

RECOMMENDED:

That a final order be entered imposing an administrative

fine of $500 against the Respondent for Count II of the

Amended Administrative Complaint. It is further recommended

that the Respondent be required to pay the non-legal costs

incurred by the Petitioner in both agency cases totaling

$31.70.

DONE AND ENTERED this 14th day of September, 2001, in

Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488- 9675 SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of September, 2001.

COPIES FURNISHED:

Laura P. Gaffney, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

David Karably

Post Office Box 12

Earleton, Florida 32631

Hardy L. Roberts, III, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

Anthony B. Spivey, Executive Director

Electrical Contractors Licensing Board

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recommended order should be filed with the agency that

will issue the final order in this case.