07-004859 Department Of Business And Professional Regulation vs. Scott Delafield And Coral Isle Pools And Spas Status: Closed Recommended Order on Monday, February 25, 2008.

Summary: Petitioner proved that Respondent engaged in unlicensed electrical contracting. Lack of disciplinary guidelines does not preclude imposition of fine. Recommend fine of $1,000 and imposition of $206.69 for investigative costs.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION , )

)

Petitioner , )

)

vs. ) Case No. 07 - 4859

)

SCOTT DELAFIELD AND CORAL ISLE )

POOLS AND SPAS , )

)

Respondents . )

)

RECOMMENDED ORDER

A duly - noticed final hearing was held in this case by

Administrative Law Judge T. Kent Wetherell, II, on January 4,

2008, in Dade City, Florida.

APPEARANCES

For Petitioner: Sorin Ardelean, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399

For Respondents: Jack D. Hoogewind, Esquire

33283 Cortez Boulevard

Dade City, Florida 33523

STATEMENT OF THE ISSUE

The issue is whether Respon dents committed the acts alleged

in the Administrative Complaint, and if so, what discipline

should be imposed.

PRELIMINARY STATEMENT

The Department of Business and Professional Regulation

(Department) alleged in a two - count Administrative Complaint

dated January 31, 2007, that Respondents engaged in unlicensed

contracting (Count 1) and unlicensed electrical contracting

(Count 2). Respondents disputed the allegations in the

Administrative Complaint and requested a hearing pursuant to

Section 120.57(1), Flo rida Statutes . 1

On October 23, 2007, the Department referred this matter to

the Division of Administrative Hearings (DOAH) for the

assignment of an Administrative Law Judge (ALJ) to conduct the

hearing requested by Respondents. The referral was received b y

DOAH on October 24, 2007.

The final hearing was scheduled for and held on January 4,

2008. The Department dismissed Count 1 of the Administrative

Complaint at the outset of the hearing, and the case proceeded

on Count 2 only. See Transcript, at 7.

The Department presented the testimony of Erin Mussori,

Clara Marron, William Marron, and Scott Delafield. Respondents

presented the testimony of Mr. Delafield and Tammy Wheeler. The

following exhibits were received into evidence: Petitioner ' s

Exhibits 1 th rough 9; Respondents ' Exhibits 1 through 4; and ALJ

Exhibit 1.

The one - volume Transcript of the final hearing was filed on

January 22, 2008. The parties requested and were given 21 days

from that date to file proposed recommended orders (PROs) . T he

deadl ine was subsequently extended based upon Respondents '

unopposed motion. The Department filed a PRO on February 12,

2008, and Respondents filed a PRO on February 15, 2008. The

PROs have been given due consideration.

FINDINGS OF FACT

1. Richard and Clara Marron have an in - ground, fiberglass

pool at their home in Zephyrhills. The pool is approximately 25

years old.

2. In December 2005, the Marrons ' pool service company

told them that the pool had a leak. The pool service company

referred the Marrons to C oral Isle Pools and Spas (Coral Isle)

in Zephyrhills.

3. Coral Isle was owned and operated by Richard

Delafield - - the father of Respondent Scott Delafield -- until his

death on January 31, 2006. Richard Delafield was a registered

building contractor, regist ered pool/spa contractor, registered

plumbing contactor, and the qualifying agent for Coral Isle.

4. On or about March 29, 2006, the Marrons went into Coral

Isle ' s store and talked to Scott Delafield about fixing the leak

in their pool . 2

5 . Mr. Delafield determined that the pool was leaking

around the underwater light fixture and that the light needed to

be replaced. He agreed to perform the necessary repairs for

$858.55.

6. The invoice prepared by Mr. Delafield described the

work to be performed as fol lows: " dig under deck redue [sic]

electrical conduit " and " labor to install light and do

diagnostic on transformer. "

7. On May 6, 2006, the Marrons made an initial payment of

$250.00 to Coral Isle.

8. On May 15, 2006, Mr. Delafield performed the work on

the Marrons ' pool.

9. Mr. Delafield did not obtain a permit from Pasco County

before commencing the work on the Marrons ' pool . 3

10. The work was done in four stages. First, a trench was

dug under the pool deck to provide access to the back of the

light fixture. Second, the existing light was removed and

replaced with a new light. Third, the wire for the new light

was routed through PVC conduit pipe Mr. Delafield laid in the

trench. Fourth, Mr. Delafield connected the wire to the

" junction box " 4 adjace nt to the pool deck.

11. The trench under the pool deck was dug by Carl Lind or

Mark Pickett, not Mr. Delafield. Mr. Lind and Mr. Pickett were

subcontractors of Coral Isle.

12. Mr. Delafield removed the existing light by removing

the screws on the front of the light fixture. He then installed

the new light and ran the wire for the light through new PVC

conduit pipe to the junction box.

13. On May 17, 2006, the Marrons paid the balance of the

invoice, $608.55.

14. Mr. Delafield did not perform any work on the higher

voltage electrical wires between the junction box and the

breaker box at the house.

15. Mr. Delafield did not drain the pool to replace the

light. He was able to access the light fixture from the front

because the water level in the pool was b elow the fixture as a

result of the leak in the pool.

16. At some point after Mr. Delafield completed his work

on the pool light, Mr. Lind and/or Mr. Pickett drained the

Marrons ' pool in order to " patch " the fiberglass bottom of the

pool . 5

17. The light in stalled by Mr. Delafield works, and the

pool no longer leaks. Indeed, the Marrons acknowledged in their

testimony at the final hearing that the work done by

Mr. Delafield fixed the leak and that the pool now " holds

water. "

18. Mr. Delafield and Coral Isl e were not licensed,

registered, or certified to perform electrical contracting work

at the time Mr. Delafield performed the work on the Marrons '

pool light.

19. In April 2006, the Department issued temporary

emergency certifications to Mr. Delafield as a registered

building contractor, registered pool/spa contractor, and

registered plumbing contractor.

20. The certifications authorized Mr. Delafield to

complete Coral Isle ' s " projects in progress " at the time of

Richard Delafield ' s death. The certificat ions did not authorize

Mr. Delafield to enter into new contracts, nor did they

authorize him to perform electrical contracting work.

21. The Marrons ' project was not in progress at the time

of Richard Delafield ' s death. The agreement to perform the work

w as not entered into until several months after his death.

22. In June 2006, the Marrons filed an unlicensed activity

complaint against Mr. Delafield and Coral Isle. The Department

incurred costs of $206.69 in its investigation of the complaint,

not inclu ding costs associated with an attorney ' s time .

23. In February 2007, the Marrons made a claim for

$150,000 against Richard Delafield ' s estate in which they

alleged that their pool and deck were " rendered useless " due to

the negligence of Coral Isle. The y also filed a civil suit

against Mr. Delafield and others for damage to their pool. The

Marrons did not pursue the claim against the estate, but the

civil action is still pending.

24. Coral Isle is no longer in business. Mr. Delafield

testified that he planned to pursue licensure so that he could

keep the business operating after his father ' s death, but that

he never did so.

25. Mr. Delafield was unemployed at the time of the final

hearing.

CONCLUSIONS OF LAW

A. Jurisdiction and Burden of Proof

26. D OAH has jurisdiction over the parties to and subject

matter of this proceeding pursuant to Sections 120.569 and

120.57(1), Florida Statutes.

27. The Department has the burden to prove the allegations

in the Administrative Complaint by clear and convincing

evidence. See Dept. of Banking & Finance v. Osborne, Stern &

Co. , 670 So. 2d 932 (Fla. 1996).

28. The clear and convincing evidence standard requires

that the evidence " must be of such weight that it produces in

the mind of the trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the allegations sought to

be established. " In re Davey , 645 So. 2d 398, 404 (Fla. 1994).

B. Unlicensed Electrical Contracting

29. Electrical contracting is regulated under Part II of

Chapter 489, Flor ida Statutes. See §§ 489.501 - .538, Fla. Stat.

30. Electrical contracting includes the installation and

repair of " electrical wiring, fixtures, appliances, apparatus,

raceways, conduit, or any part thereof, which generates,

transmits, transforms, or utiliz es electrical energy in any

form . . . . " § 489.505(12), Fla. Stat. (definition of

" electrical contractor " ). See also § 489.505(9), Fla. Stat.

(defining " contracting " to include " performing electrical . . .

work for compensation " ).

31. Section 489.503, F lorida Statutes, exempts certain

electrical contracting activities from regulation. None of the

exemptions apply to Mr. Delafield ' s work on the Marrons ' pool

light.

32. A person may not practice electrical contracting

unless he or she is duly certified or registered. See

§ 489.531(1)(a), Fla. Stat.

33. Part II of Chapter 489, Florida Statutes, does not

provide specific administrative penalties for unlicensed

electrical contracting. Compare § 489.13, Fla . Stat . (providing

a specific administrative fine for unlicensed contracting under

Part I of Chapter 489, Florida Statutes).

34. The authority for the imposition of administrative

penalties for unlicensed electrical contracting is Section

455.228(1), Florida Statutes, which provides in pertinent part:

Whe n the department has probable cause to

believe that any person not licensed by the

department . . . has violated . . . any

statute that relates to the practice of a

profession regulated by the department, or

any rule adopted pursuant thereto, the

departmen t may . . . impose an

administrative penalty not to exceed $5,000

per incident pursuant to the provisions of

chapter 120 . . . .

35. The evidence clearly and convincingly establishes that

Mr. Delafield was not licensed as an electrical contractor at

the t ime he performed work on the Marrons ' pool light; that the

work he performed on the Marrons ' pool light falls within the

broad statutory definition of electrical contracting; that

Mr. Delafield was compensated for the work; that the work was

not exempt fro m regulation under Part II of Chapter 489, Florida

Statutes; and that the work was not authorized by the temporary

emergency certifications issued to Mr. Delafield.

36. Therefore, the Department met its burden to prove that

Mr. Delafield is guilty of unlic ensed electrical contracting in

violation of Sections 455.228 and 489.531, Florida Statutes.

C. Amount of Fine

37. Section 455.228(1), Florida Statutes, authorizes the

Department to impose an administrative fine " not to exceed

$5,000. " Compare § 489.13(3 ), Fla. Stat. (authorizing an

administrative fine of up to $10,000 for unlicensed

contracting).

38. The Department did not identify the fine that it is

seeking in this case, either at the final hearing or in its PRO.

Its PRO (at page 7) simply requests th e imposition of " a fine

not to exceed $5,000. "

39. The Department has not adopted disciplinary guidelines

for violations of Section 455.228, Florida Statutes, as required

by Section 455.2273, Florida Statutes . 6

40. Respondents argue that the Department man y not impose

a fine in the absence of disciplinary guidelines. In support of

this argument, Respondents cite Arias v. Department of Business

and Professional Regulation , 710 So. 2d 655 (Fla. 2d DCA 1998),

review dismissed , 718 So. 2d 167 (Fla. 1999).

41. In Arias , the court reversed a final order

disciplining a real estate agent because the Florida Real Estate

Commission (FREC) had not adopted disciplinary guidelines for

the violation at issue in that case. The court held that " the

statutory language at i ssue in the instant case, combined with

the total lack of guidance for enforcement, left the licensee in

a predicament ripe for arbitrary and erratic enforcement, and

obviously provided no standards sufficiently governed by the

legislature as to constitute judicially reviewable discretion. "

Arias , 710 So. 2d at 659.

42. The holding in Arias must be viewed in context of the

statute at issue in that case, which broadly authorized FREC to:

p lace a licensee . . . on probation; . . .

suspend a license . . . for a period not

exceeding 10 years; . . . revoke a

license[;] . . . impose an administrative

fine not to exceed $1,000 for each count or

separate offense; and . . . issue a

reprimand, and any or all of the foregoing,

if it finds that the licensee . . . has

v iolated a duty imposed upon her or him by

law . . . .

Id. at 657 (quoting Section 475.25(1)(b), Florida Statutes

(1995)).

43. It was the breadth of the statute at issue in Arias ,

more so than the absence of disciplinary guidelines that failed

to alert l icensees of proscribed actions and the potential

discipline for such actions.

44. The statute at issue in this case is much more narrow

and focused than the statute at issue in Arias ; it simply

prohibits unlicensed persons from engaging in activities that

require licensure. See § 455.228(1), Fla. Stat. Moreover,

unlike the broad range of discipline authorized by the statute

at issue in Arias , the only discipline authorized by the statute

at issue in this case is the imposition of a cease and desist

order and an administrative fine of up to $5,000. Id.

Accordingly, Arias is distinguishable.

45. A $5,000 fine would be excessive in this case. First,

it is undisputed that the electrical work done by Mr. Delafield

was satisfactorily done, that the pool light works, and that the

pool no longer leaks. Second, the electrical work done by

Mr. Delafield was limited to the low voltage lines between the

pool light and the junction box. Third, the contract price for

the work done by Mr. Delafield was only $858. Fo urth, Coral

Isle is no longer in business and Mr. Delafield is currently

unemployed.

46. A $1,000 fine is reasonable and appropriate in this

case. A fine in that amount was imposed in several recent cases

where, as here, it was the Respondent ' s first offe nse and no

aggravating circumstances were present. See , e.g. , Dept. of

Business & Professional Reg. v. Krick , Case Nos. 07 - 1929 & 07 -

1934, 2006 Fla. Div. Adm. Hear. LEXIS 485 (DOAH Oct. 9, 2006;

DBPR Dec. 29, 2006); Dept. of Business & Professional Reg. v .

Pyche , Case No. 06 - 1145, 2006 Fla. Div. Adm. Hear. LEXIS 362

(DOAH July 27, 2006; DBPR Sep. 27, 2006).

D. Investigative Costs

47. Section 455.228(3)(c), Florida Statutes, authorizes

the Department to " recover costs of investigation " in addition

to any f ine imposed.

48. The evidence clearly and convincingly establishes that

the Department incurred $206. 6 9 in investigative costs related

to this case.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions

of law, it is

RECOMMENDED that th e Department issue a final order that:

1. Finds Mr. Delafield guilty of unlicensed electrical

contracting in violation of Sections 455.228 and 489.531,

Florida Statutes;

2. Imposes an administrative fine of $1,000 on

Mr. Delafield; and

3. Requires Mr. Delafield to pay the Department ' s

investigative costs of $206.69.

DONE AND ENT ERED this 25th day of February , 2008 , in

Tallahassee, Leon County, Florida.

S

T. KENT WETHERELL, II

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 (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th d ay of February , 2008 .

ENDNOTES

1/ All references to provisions in Chapter 120, Florida

Statutes, are to the 2007 version, and all other statutory

references are to the 2005 version in effect at the time of the

acts alleged in the Administrative Complai nt.

2/ There is conflicting evidence as to whether the Marrons

previously contacted Richard Delafield and Coral Isle regarding

replacing their existing pool with a new pool. The evidence on

this issue was not clear and convincing one way or the other,

a nd resolution of this issue is immaterial to the outcome of

this proceeding because it is undisputed that the agreement to

perform the electrical work giving rise to the Administrative

Complaint was not entered into until March 2006.

3/ There is conflict ing evidence as to whether a local permit

was required. Mrs. Marron testified that she spoke to someone

in the County building department and was told that a permit was

required to attach new electrical wiring to a junction box. By

contrast, Mr. Delafiel d testified that he spoke to someone at

the County building department and a " master electrician " with

whom he frequently worked and that they both told him that a

permit was not required to replace the pool light because the

work was considered to be a " s ervice repair. " All of the

evidence on this issue was uncorroborated hearsay, which cannot

support a finding of fact. See § 120.57(1)(c), Fla. Stat.

Moreover, resolution of this issue is immaterial to the outcome

of this proceeding because the issue in this case is whether the

work done by Mr. Delafield is electrical contracting under state

law, not whether the work required a permit under the local

code .

4/ The junction box converts the electricity coming from the

breaker box at the house at 110 volts to the 12 volts that goes

to the pool light.

5/ There is conflicting evidence as to whether this additional

work was done under the direction of Coral Isle and

Mr. Delafield or whether it was done pursuant to a " side -

agreement " between the Marrons and M r. Lind and/or Mr. Pickett.

The evidence on this issue was not clear and convincing one way

or the other, and resolution of this issue is immaterial to the

outcome of this proceeding because it is undisputed that the

electrical work that is the basis of t he Administrative

Complaint was completed by Mr. Delafield prior to the pool being

drained.

6/ The Department has been in the process of developing such

guidelines for more than a year. See 32 Fla. Law Weekly 5572 - 73

(Nov. 22, 2006) (publication of prop osed rule 61 - 5.007 entitled

" Disciplinary Guidelines for Unlicensed Activity " ); 33 Fla. Law

Weekly 196 (Apr. 6, 2007) (notice of withdrawal of proposed rule

61 - 5.007); 33 Fla. Law Weekly 1676 (Apr. 13, 2007) (notice of

development of proposed rule 61 - 5.007 " to set disciplinary

guidelines for violations of the unlicensed activity statutes

articulated by Chapters 455 the professional practice acts

administered by [the Department] " ).

COPIES FURNISHED :

Sorin Ardelean, Esquire

Department of Business and

Pro fessional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399

Jack D. Hoogewind, Esquire

33283 Cortez Boulevard

Dade City, Florida 33523

Nancy S. Terrel, Hearing Officer

Office of the General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Ned Luczynski, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

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.