07-003254 Department Of Business And Professional Regulation vs. George Torres Status: Closed Recommended Order on Wednesday, October 3, 2007.

Summary: Petitioner demonstrated that Respondent practiced electrical contracting without a license when he verbally offered to change out ceiling fans, install new lighting, and perform required rewiring.

Case No. 07-3254

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) ) ) ) ) ) ) ) ) ) )

PROFESSIONAL REGULATION,

RECOMMENDED ORDER

Petitioner,

vs.

GEORGE TORRES,

Respondent.

On August 19, 2007, a hearing was held in Daytona Beach,

Florida, pursuant to the authority set forth in Sections 120.569

and 120.57(1), Florida Statutes. The case was considered by Lisa

Shearer Nelson, Administrative Law Judge.

APPEARANCES

For Petitioner: Sorin Ardelean, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

For Respondent: George Torres, pro se

GT Handy Solution, Inc.

43 Russo Drive

Palm Coast, Florida 32164

STATEMENT OF THE ISSUE

Whether Respondent has committed the acts alleged in the

Administrative Complaint and if so, what penalty should be

imposed.

PRELIMINARY STATEMENT

On March 27, 2007, the Department of Business and

Professional Regulation (Department or DBPR) filed an

Administrative Complaint alleging that Respondent had engaged in

electrical contracting without a license in violation of Section

489.531(1), Florida Statutes, and had violated a lawful order of

the Department, in violation of Section 455.227(1)(q), Florida

Statutes. Respondent disputed the allegations in the

Administrative Complaint and requested a hearing pursuant to

Section 120.57(1), Florida Statutes. On July 17, 2007, the

Department referred the case to the Division of Administrative

Hearings (the Division) and requested assignment of an

administrative law judge.

The matter was noticed for hearing August 29, 2007, and

proceeded as scheduled. Petitioner presented the testimony of

three witnesses and Petitioner's Exhibits numbered 1 through 9

were admitted into evidence. Respondent testified on his own

behalf, presented the testimony of his wife, Gladys Torres, and

Respondent's Exhibits numbered 1 through 4 were admitted. The

transcript of the proceeding was filed with the Division

September 13, 2007, and the deadline for submitting proposed

recommended orders was September 24, 2007. Petitioner timely

filed a Proposed Recommended Order that has been carefully

considered in the preparation of the Recommended Order.

FINDINGS OF FACT

1. Petitioner is the state agency charged with the

licensing and regulation of contractors in the State of Florida

pursuant to Section 20.42 and Chapters 455 and 489, Florida

Statutes.

2. Respondent is an officer and registered agent for

GT Handy Solutions, Inc. Neither he nor his company is

registered or certified to perform electrical contracting in the

State of Florida. Respondent holds only an occupational license

from the City of Palm Coast.

3. On or about May 17, 2006, in DBPR Case No. 2006-005919,

Respondent was issued a Notice to Cease directing Respondent to

immediately cease and desist from all unlicensed electrical

contracting work.

4. Sometime after that point, the Jacksonville

investigative office of DBPR received a tip from the City of Palm

Coast that Respondent was still in the area engaging in

unlicensed activity. The Department set up a sting operation

with the assistance of the Volusia County State Attorney's Office

and the Flagler County Sheriff's Office.

5. Leslie Floyd Walker is employed as an investigator in

the Volusia County State Attorney's Office. As part of the sting

operation, Ms. Walker posed as a homeowner and called unlicensed

people asking them to give estimates for electrical work to be

performed at 11 Floyd Court, Palm Coast, Florida. The names of

the unlicensed persons to be called were provided by the City of

Palm Coast and were persons who advertised in the Palm Coast area

or who had been cited previously for performing work without a

license.

6. Mr. Torres was one of the unlicensed persons called by

Ms. Walker. On January 23, 2007, Mr. Torres was contacted at the

telephone number contained in an advertisement in the Service

Directory of the Flagler Pennysaver. In response to Ms. Walker's

call, Mr. Torres came to the house at 11 Floyd Court, and

Ms. Walker told him she wanted to replace three ceiling fans with

new ones, and a light fixture, remove an existing light and add a

light at the home. Mr. Torres and Ms. Walker's conversation was

preserved via videotape.

7. Mr. Torres was concerned about the wiring at the home,

and asked to see the attic space. After doing so, he gave

Ms. Walker an estimate of $800 to do the work, indicating that he

would have to do some rewiring in order to put in the new ceiling

fan she wanted. The estimate contemplated Ms. Walker providing

the new ceiling fans.

8. Ms. Walker asked Mr. Torres for a written proposal,

which he started to prepare. However, he asked her if it was

possible to mail it to her, because he needed to be able to make

a copy for himself. He asked her about scheduling for the job,

and indicated that he would be available the next week. He also

stated that while the fans could be changed out in a few hours,

the wiring would be more extensive and made the job a two-day

job.

9. Mr. Torres never provided the written proposal, and when

Ms. Walker called and said he could do the work, he did not go

back. At hearing, he said that he did not do so because he knew

doing the electrical work was beyond the scope of what he was

allowed to do. He claimed that he never actually offered to do

the work, but instead had merely said that this type of work

could be done for $800.

10. The undersigned has viewed the videotape of Mr. Torres'

conversation with Ms. Walker, and carefully listened to the

conversation. At no time did he indicate to Ms. Walker that he

was unable to perform the work she described. To the contrary,

he discussed with her the aspects of the job that would make it

more extensive, and what efforts he would have to make regarding

the rewiring. While he may have ultimately determined not to

perform the work, the evidence is clear that he provided a verbal

proposal to perform the work at the time that he met with

Ms. Walker at 11 Floyd Court.

11. The Department has incurred investigative costs in the

amount of $164.23.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with Sections 120.569 and 120.57(1), Florida

Statutes.

13. Petitioner has the burden of proving the allegations

against Respondent by clear and convincing evidence. Department

of Banking and Finance v. Osborne Stern and Co. , 670 So. 2d 932

(Fla. 1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

14. The Administrative Complaint charges Respondent with

violating Sections 455.227(1)(q) and 489.531(1), Florida

Statutes. Relevant portions of Section 455.227, Florida

Statutes, state the following:

455.227 Grounds for discipline; penalties;

enforcement.--

(1) The following acts shall constitute

grounds for which the disciplinary actions

specified in subsection (2) may be taken:

* * *

(q) Violating any provision of this chapter,

the applicable professional practice act, a

rule of the department or the board, or a

lawful order of the department or the board,

or failing to comply with a lawfully issued

subpoena of the department.

* * *

15. The Department is granted the authority to enforce

notices to cease and desist as follows:

455.228 Unlicensed practice of a profession;

cease and desist notice; civil penalty;

enforcement; citations; allocation of money

collected.--

(1) When the department has probable cause

to believe that any person not licensed by

the department, or the appropriate regulatory

board within the department, has violated any

provision of this chapter or any statute that

relates to the practice of a profession

regulated by the department, or any rule

adopted pursuant thereto, the department may

issue and deliver to such person a notice to

cease and desist from such violation. . . .

The issuance of a notice to cease and desist

shall not constitute agency action for which

a hearing under ss. 120.569 and 120.57 may be

sought. For the purpose of enforcing a cease

and desist order, the department may file a

proceeding in the name of the state seeking

issuance of an injunction or a writ of

mandamus against any person who violates any

provisions of such order. In addition to the

foregoing remedies, the department may impose

an administrative penalty not to exceed

$5,000 per incident pursuant to the

provisions of chapter 120 or may issue a

citation pursuant to the provisions of

subsection (3). If the department is

required to seek enforcement of the order for

a penalty pursuant to s.120.569, it shall be

entitled to collect its attorney's fees and

costs, together with any cost of collection.

16. Section 489.531(1), Florida Statutes, provides:

489.531 Prohibitions; penalties.--

(1) A person may not:

(a) Practice contracting unless the person

is certified or registered.

17. Section 489.505, Florida Statutes, provides the

following definitions:

(2) "Alarm system contractor" means a person

whose business includes the execution of

contracts requiring the ability, experience,

science, knowledge, and skill to lay out,

fabricate, install, maintain, alter, repair,

inspect, replace, or service alarm systems

for compensation, including, but not limited

to, all types of alarm systems for all

purposes. This term also means any person,

firm, or corporation that engages in the

business of alarm contracting under an

expressed or implied contract; that

undertakes, offers to undertake, purports to

have the capacity to undertake, and submits a

bid to engage in the business of alarm

contracting; or that by itself or by or

through others engages in the business of

alarm contracting.

* * *

(9) "contracting" means, except where

exempted in this part, engaging in business

as a contractor or performing any electrical

work for compensation and includes, but is

not limited to, performance of any of the

acts found in subsections (2) and (12), which

define the services which a contractor is

allowed to perform. The attempted sale of

contracting services and the negotiation or

bid for a contract on these services also

constitutes contracting. If the services

offered require licensure or agent

qualification, the offering, negotiation for

a bid, or attempted sale of these services

requires the corresponding licensure.

* * *

(12) "Electrical contractor" or "unlimited

electrical contractor" means a person who

conducts business in the electrical trade

field and who has the experience, knowledge,

and skill to install, repair, alter, add to,

or design, in compliance with law, electrical

wiring, fixtures, transforms, or utilizes

electrical energy in any form, . . . . The

term means any person, firm, or corporation

that engages in the business of electrical

contracting under an express or implied

contract; or that undertakes, offers to

undertake, purports to have the capacity to

undertake, or submits a bid to engage in the

business of electrical contracting; or that

does itself or by or through others engage in

the business of electrical contracting.

18. Petitioner has proven by clear and convincing evidence

that Respondent violated Section 489.531(1)(a), Florida Statutes,

as alleged in Count I of the Administrative Complaint. The tasks

Ms. Walker described to Respondent and for which Respondent gave

her an estimate involved the installation, repair, alteration, or

addition of electrical wiring and fixtures as defined in Section

489.505(12), Florida Statutes. Respondent represented that he had

the ability to undertake those tasks and gave a price to provide

electrical contracting services when he met with Ms. Walker at 11

Floyd Court. The fact that he did not fill out and submit a

written proposal and ultimately did not follow up on doing the

job is irrelevant. There is no requirement in Chapter 489,

Florida Statutes, that a bid or offer to perform services be in

writing.

19. Moreover, while Respondent claimed that he merely

offered an opinion on how much the requested work might cost, his

testimony to that effect is not credible. After carefully

viewing the videotape, it is clear that Respondent spoke to

Ms. Walker as if he would be doing the job. Much of his

explanation was personal, i.e. , "I would need to run new lines,"

etc. Similarly, when he asked about scheduling after quoting the

price of $800, he spoke of how the job would fit with his

schedule. It is clear that, at least at the time he met with

Ms. Walker, he was willing and prepared to perform the tasks for

which he had no license.

20. Respondent has also violated Section 455.227(1)(q),

Florida Statutes, alleged in Count II of the Administrative

Complaint. Respondent admits that he received a Notice to Cease

and Desist from the Department of Business and Professional

Regulation in Case No. 2006-005919. By its terms, Section

455.228 refers to a Notice to Cease and Desist as an order. When

Respondent offered to perform services requiring a license as an

electrical contractor, he violated a lawful order of the

Department.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED:

That a final order be entered finding that Respondent has

violated Counts I and II of the Administrative Complaint,

assessing an administrative fine in the amount of $5,000.00 and

imposing investigative costs in the amount of $164.23.

DONE AND ENTERED this 3rd day of October, 2007, in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of October, 2007.

COPIES FURNISHED:

Sorin Ardelean, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

George Torres

GT Handy Solution, Inc.

43 Russo Drive

Palm Coast, Florida 32164

Nancy S. Terrel, Hearing Officer

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

Ned Luczynski, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

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.