96-000939 Electrical Contractors Licensing Board vs. Paul E. Dykes, D/B/A Phoenix Corporation Status: Closed Recommended Order on Wednesday, August 14, 1996.

Summary: Contractor who fails to obtain final inspection in violation of Section 489.533(1)(r), Florida Statutes, is not subject to penalty.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 96-0939

)

PAUL E. DYKES, d/b/a PHOENIX )

CORPORATION, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

A formal hearing was conducted in this proceeding before Daniel Manry, a

duly designated Hearing Officer of the Division of Administrative Hearings, on

May 30, 1996, in Orlando, Florida.

APPEARANCES

For Petitioner: Donna Bass, Senior Attorney

Department of Business

and Professional Regulation

Division of Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0750

For Respondent: Paul E. Dykes, pro se

3427 Leemore Place

Post Office Box 682041

Orlando, Florida 32802

STATEMENT OF THE ISSUES

The issues for determination are whether Respondent violated Section

489.533(1), Florida Statutes (1995), 1/ by wilfully and deliberately

disregarding or violating applicable building codes, abandoning a project, or

proceeding on a job without applicable building department inspections; and, if

so, what, if any, penalty should be imposed.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against Respondent on

September 15, 1993. Respondent timely requested a formal hearing.

At the formal hearing, Petitioner presented the testimony of two witnesses

and submitted five exhibits for admission in evidence. Respondent presented the

testimony of three witnesses and submitted two exhibits for admission in

evidence.

The identity of the witnesses and exhibits, and the rulings regarding each,

are set forth in the transcript of the formal hearing filed with the undersigned

on June 12, 1996.

Petitioner timely filed its proposed recommended order ("PRO") on June 21,

1996. Respondent timely filed his PRO on July 19, 1996. Proposed findings of

fact in the parties' PROs are addressed in the Appendix to this Recommended

Order.

FINDINGS OF FACT

1. Petitioner is the governmental agency responsible for issuing licenses

to electrical contractors. Petitioner is also responsible for regulating the

practice of electrical contracting on behalf of the state.

2. Respondent is licensed as an electrical contractor. Respondent holds

license number ER 0011299.

3. On February 11, 1992, Respondent obtained permit number E92-001706 to

perform electrical services in a residence located at 2349 Tinian Avenue,

Orlando, Florida 32812 (the "project"). The permit expired on August 12, 1992.

4. On February 11, 1992, Respondent completed the project, telephoned the

Orange County Building Department, and requested a "final" inspection for the

project. The inspector performed a "rough-in" inspection on February 12, 1992.

The project passed the "rough-in" inspection.

5. The inspector did not perform a "final inspection." The inspector

determined that the project would not have passed a "final inspection."

6. The inspector did not inform Respondent that he did not perform a

"final inspection." The inspector followed routine practice for residential

inspections.

7. Respondent did not follow up to make sure that the project passed final

inspection. Respondent does not routinely follow up on residential projects to

make sure that the final inspection is completed.

8. The project was not a large residential or commercial project. It was

a small residential project.

9. Respondent was leaving the state permanently. This was the last

project he worked on before leaving the state.

10. No final inspection was completed on the project. It is Respondent's

responsibility to make sure that a project passes final inspection.

11. When Respondent completed the project on February 11, 1992, Respondent

connected a distributing system to wiring, an apparatus, or fixture without

obtaining written permission from an electrical inspector. Respondent left the

state, did not perform any other work on the project for 90 days and longer, and

did not complete the project by obtaining a final inspection.

12. The owners of the property hired another electrical contractor to

obtain the final inspection. The second contractor did not perform any

significant work on the project.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has jurisdiction over the

subject matter and parties in this proceeding. The parties were duly noticed

for the formal hearing.

14. Petitioner has the burden of proof in this proceeding. Petitioner must

show by clear and convincing evidence that Respondent committed the acts alleged

in the Administrative Complaint and the reasonableness of any penalty to be

imposed. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

15. Section 489.533(1) provides, in relevant part, that acts which

constitute grounds for disciplinary action include:

(i) Wilfully or deliberately disregarding

and violating the applicable building codes

or laws of the state or any municipality or

county thereof;

* * *

(p) Abandoning a project which the contractor

is engaged in or is under contractual obligation

to perform. A project is to be considered

abandoned after 90 days if the contractor

terminates the project without just cause or

without proper notification to the prospective

owner, including the reason for termination,

or fails to perform work without just cause for

90 consecutive days.

* * *

(r) Proceeding on any job without applicable

local building department permits and inspection

16. Respondent did not violate Section 489.533(1)(i). Petitioner failed to

show by clear and convincing evidence that Respondent's failure to obtain a

final inspection was wilful and deliberate.

17. Respondent did not wilfully or deliberately disregard applicable

building codes. Respondent made a good faith attempt to comply with applicable

building codes by obtaining a "final inspection." Respondent telephoned the

building department, requested a final inspection, and reasonably believed that

the project had passed final inspection.

18. Respondent did not violate Section 489.533(1)(p). Respondent did not

abandon the project. Respondent reasonably believed that the project was

completed satisfactorily. Respondent's reasonable belief that the project had

been completed, passed "final inspection," and his subsequent failure to

continue work on the project did not constitute abandonment of the project.

19. Respondent violated Section 489.533(1)(r). Respondent completed the

project without obtaining a final inspection. A contractor must make sure that

the work he or she completes passes final inspection.

20. Section 489.533(2) authorizes the Electrical Contractors' Board (the

"Board") to impose a variety of penalties on Respondent including reprimand,

fine, suspension, and revocation. Section 489.533(3) directs Petitioner to

follow the disciplinary guidelines established by the Board in Florida

Administrative Code Rules 61G6-10.001-10.003. 2/ 21. Rules 61G6-10.001 and

61G6-10.002 prescribe disciplinary guidelines for violations of Section

489.533(1). Rule 61G6-10.001(9) lists penalties ranging from a reprimand to a

$1,000 fine and suspension for a violation of Section 489.533(1)(i). Rule 61G6-

10.001(16) lists penalties for a violation of Section 489.533(1)(p) that range

from a $500 fine to one year suspension.

22. Respondent's rules list no penalties for a violation of Section

489.533(1)(r). However, Rule 61G6-10.001 authorizes the Board to issue a letter

of guidance where appropriate.

23. Rule 61G6-10.003 authorizes Petitioner to deviate from its

disciplinary guidelines if Petitioner shows by clear and convincing evidence

that aggravating or mitigating circumstances exist to support such a deviation.

Petitioner failed to show the existence of aggravating circumstances within the

meaning of Rule 61G-10.003. Respondent showed the existence of mitigating

circumstances including: the lack of severity of the offense; the lack of

egregious harm to the consumer or the public; and the lack of previous offenses

or disciplinary history involving Respondent.

24. An agency may not exercise discretion that is inconsistent with an

existing rule. Section 120.68(12)(b). An agency's modification of a rule using

unpromulgated policy that departs from the meaning of the rule is "forbidden" by

Section 120.68(12). University Community Hospital v. Department of Health and

Rehabilitative Services. Lakeland Regional Medical Center, Inc. v. Department of

Health and Rehabilitative Services, 610 So.2d 1342, 1345 (Fla. 1st DCA 1992).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that Petitioner enter a Final Order finding Respondent not

guilty of violating Sections 489.533(1)(i) and (p), guilty of violating Section

489.533(1)(r), and imposing no penalty except a letter of guidance.

RECOMMENDED this 14th day of August, 1996, in Tallahassee, Florida.

___________________________________

DANIEL MANRY, Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of August, 1996.

ENDNOTES

1/ All chapter and section references are to Florida Statutes (1995) unless

otherwise stated.

2/ Unless otherwise stated, all references to rules are to rules promulgated in

the Florida Administrative Code effective on the date of this Recommended Order.

APPENDIX

Petitioner's Proposed Findings of Fact

1.-5. Accepted in substance

6. Rejected as not supported by credible and persuasive evidence

7. Rejected as recited testimony

8.-13. Accepted in substance

14. Rejected as not supported by credible and persuasive evidence

15.-16. Accepted in substance

17. Rejected as not supported by credible and persuasive evidence

18. Accepted in substance

Respondent's Proposed Findings of Fact

Respondent's proposed findings 1-4 are part of the Pretrial Stipulations

5.-7. Accepted in substance

8.-12. Rejected as recited testimony

COPIES FURNISHED:

Ms. Ila Jones, Executive Director

Board of Electrical Contractors

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Lynda Goodgame, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Donna Bass, Senior Attorney

Department of Business and

Professional Regulation

Division of Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0750

Paul E. Dykes, pro se

3427 Leemore Place

Post Office Box 682041

Orlando, Florida 32802

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be

filed with the agency that will issue the final order in this case.