10-003089 Department Of Business And Professional Regulation, Electrical Contractors Licensing Board vs. Steven Scott Clark, D/B/A E.A.S. Industries, Inc., D/B/A A.B. Fire Systems Status: Closed Recommended Order on Tuesday, January 4, 2011.

Summary: Petitioner failed to prove that fire alarm systems contractor committed financial mismanagement causing additional costs to customer or was negligent or deceitful in providing services.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

ELECTRICAL CONTRACTORS )

LICENSING BOARD , )

)

Petitioner , )

)

vs. ) Case No. 10 - 3089

)

STEVEN SCOTT CLARK, d/b/a )

E.A.S. INDUSTRIES, INC., d/b/a )

A.B. FIRE SYSTEMS , )

)

Respondent . )

)

RECOMMENDED ORDER

On October 20, 2010, a final hearing was held in this case

at video teleconference sites in Port St. Lucie and Tallahassee,

Florida, before Administrative Law Judge Eleanor M. Hunter.

APPEARANCES

For Petitioner: LeChea C. Parson, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street suite 42

Tallahassee, Florida 32399 - 2202

For Respondent: Steven Scott Clark, pro se

Steven Scott Clark, d/b/a E.A.S.

Industries, Inc., d/b/a

A.B. Fire Systems

4500 Lakeview Drive

Sebring, Florida 33870

STATEMENT OF THE ISSUE

The issue whether Respondent violated subsections

489.533(1)(m)3., and/or 489.533(1)(f), Florida Statutes (2010), 1

as alleged in the Administrative Complaint, and if so, what

penalty should be imposed.

PRELIMINARY STATEMENT

On February 2, 2010, Petitioner filed a t wo - count Amended

Administrative Complaint against Respondent alleging violations

of section 489.533. More specifically, Count I charged

Respondent with committing financial mismanagement or misconduct

that causes financial harm to a customer in violation of section

489.533(1)(m)2., and Count II charged Respondent with committing

fraud or deceit, or negligence, incompetency, or misconduct in

the practice of electrical or alarm system contracting in

violation of section 489.533(1)(f).

On May 3, 2010, Respond ent executed an Amended Election of

Rights form disputing the allegations in the Amended

Administrative Complaint and requesting an administrative

hearing. On June 3, 2010, Respondent referred the case to the

Division of Administrative Hearings for the as signment of an

administrative law judge. Initially assigned to Administrative

Law Judge Daniel M. Kilbride, the case was transferred to the

undersigned who scheduled the hearing for August 20, 2010. The

parties filed a Joint Motion for Continuance, on Au gust 12,

2010, and the case was re - scheduled for October 20, 2010.

At hearing, Petitioner presented the testimony of Norma

Fishner and Cheryl Deats. Petitioner 's Exhibits 1 - 10 and 11

(pages 1 and 2) were received into evidence. Official

recognition was taken of sections 489.533(1)(m)3.,

489.533(1)(f), and 455.227(3)(a). Respondent testified on his

own behalf.

Respondent's Proposed Recommended Order was filed

December 1, 2010, and Petitioner's Proposed Recommended Order

was filed December 3, 2010. The Transcript of the hearing was

filed December 6, 2010.

FINDINGS OF FACT

1. Petitioner is the Electrical Contractors Licensing

Board within the Department of Business and Professional

Regulation (Petitioner or DBPR).

2. At all times material to the allega tions in the Amended

Administrative Complaint, Respondent, Steven Scott Clark, was a

certified alarm systems contractor one, holding Electrical

Contractor's Licensing Board's License Number EF1255.

3. As a licensed contractor, Clark was the person who

pos sessed the required skills, knowledge, and experience to be

responsible for an alarm systems business or, in other words, to

serve as its qualifying agent. 2 Clark was the qualifying agent

for E.A.S. Industries (E.A.S.) , d/b/a A.B. Fire Systems (A.B.

Syste ms).

4. On January 23, 2006, A.B. Fire Equipment, Inc., (A.B.

Equipment) submitted a proposal, signed on its behalf by Dick

Sorbye, for work on fire alarm equipment at Crosswinds Apartment

at 1300 N. Ocean Boulevard in Pompano Beach (Crosswinds). None

of the three license numbers listed on the proposal is the same

as Clark's. A.B. Equipment is not a licensed or qualified alarm

contractor. Below the name of A.B. Equipment, which is checked

on the proposal form, is the name of "A.B. Fire Systems/ALARM

DIV ISION" which is, in fact, the same company as A.B. Systems.

The proposal for a total contract cost of $6 , 610.00, included

the following language:

We hereby propose to furnish the material

necessary for completion of the following:

Repair wiring short and replace the

following devices. 9 weather proof horn

strobes @ $95.00 ea. -- $855.00

5. A horn strobe is the small red rectangular - shaped ,

wall - mounted device which emits the siren sound and flashes a

strobe light when a fire alarm is triggered.

6. Because A.B. Equipment is not a licensed fire alarm

contractor, it subcontracted with A.B. Systems, based on a

verbal agreement, to perform work at Crosswinds. Employees of

A.B. Systems wear shirts identifying them as employees of "A.B.

Fire Systems." Cr osswinds is located within 500 feet of the

ocean and, because of that, regularly experiences substantial

salt corrosion of metal . Horn strobes have metal parts and must

be replaced regularly due to corrosion .

7. As required in the proposal, half of the t otal contract

cost or $3 , 305.00 was paid by Crosswind's representative on

January 24, 2006, to A.B. Equipment. The receipt from A.B.

Equipment with the same date has the name of A.B. Systems on the

form and Respondent's license number next to that name.

8 . On January 31, 2006, Crosswinds issued a check for

$1 , 650.00 to A.B. Equipment. The back of the first check was

stamped for deposit in the acco unt of E.A.S. , the parent company

of A.B. Systems.

9. Another check designated "final payment" in the amount

of $1 , 655.00 was dated February 8, 2006, but it was not

deposited until March 9, 2006 . That check was apparently held

up by the then - president of the Crosswinds Board, Patricia

Abujar , who questioned the need for an inspection of the alarm

system by the fire department. Once the check was tendered, it

was deposited, as directed by hand - written instructions on the

back of th e check , in the same account number as that for E.A.S.

10. On February 28, 2006, Crosswinds received an invoice

that had three license numbers on it, including Clark's. The

invoice from A.B. Equipment was for an additional $704.90 for

replacement of wires, a conduit, and the panel that was damaged

by a shortage. The damage was caused by a construction company

that was simultaneously making repairs at Crosswinds .

Crosswinds had sustained substantial damage from Hurricane Wilma

in October 2005.

11. On February 28, 2006, Crosswinds also received an

invoice from A. B. Equipment for one additional corroded horn

strobe for $95.00 plus $5.70 for the sales tax. The invoice was

identical to the one for damage by the construction company and

also included Clark's license number.

12. On March 15 and 18, 2006, respectively , Clark and

Oakley Blevins , who was then the Crosswinds Board president,

signed a City of Pompano Beach Building Permit Application for

an after - the - fact permit for the replacement of a fire alarm

panel at Crosswinds . Until the panel had to be replaced, n o

permit had been required. On the line on the form for the name

of the contractor, "A. B. Fire Systems, Inc." was crossed out

and the name "E.A.S. IND." was written.

13. The application was not accepted by the building

department until October or Novemb er 2006. The City delayed

receipt of applications and issuance of permits because it was

inundated after the hurricane.

14. In the meantime, o n October 6, 2006, Clark returned to

Crosswinds in response to a service call. At the time, he

replaced a corro ded horn strobe, as he had done on an ongoing

basis since beginning work at Crosswinds in 2004. Clark had a

disagreement with Blevins , apparently over who from A.B. Systems

would be providing service to Crosswinds in the future and over

where a worker par ked a company truck. Clark never returned to

the site.

15. A City of Pompano Beach document dated November 20,

2006, entitled "Plan Review Corrections Report ," was transmitted

by facsimile from A.B. Systems to Crosswinds' representative on

December 14, 2006.

16. Having last had a fire alarm inspection in February

2006, Crosswinds received a proposal dated February 19, 2007,

from another company, Bass Fire & Security Systems, Inc. (Bass),

to "trouble shoot a nd repair fire alarm system short program,

test and certify" for $340.00. The work by Bass would qualif y

as the annual inspection for 2007.

17. On March 30, 2007, Bass billed Crosswinds $726.05 for

replacement of an outdoor horn strobe. In addition to t rip and

labor charges, there was also a charge for a mini - monitor

module, a device used to identify each "pull station" that will

cause a shortage if it becomes defective.

18. Crosswinds paid Bass for its inspection work and

subsequent repairs in a single check in the amount of $1 , 086.45

o n April 10, 2007.

19. Bass, on April 6, 2007, offered to "replace (seven)

[corroded] weatherproof horn strobe units @ $89.00 ea[ch],

[with] installation labor and misc[ellaneous] hardware" for a

quoted total cost of $115 6.00 plus tax. For that, Crosswinds

paid Bass $1225.36 on April 23, 2007.

20 . On May 27, 2008, Crosswinds was inspected by a City

fire inspector who noted on his report that it was an inspection

of a new fire alarm system and that "A.B. Fire System is

unlicense s [ sic ] contractor " and "Note ESA Industries Inc. will

be the only person on jobsite to complete the test."

21. On June 5, 2008, Crosswinds received anther quote from

Bass to "make necessary repairs for fire dept. final inspection"

for a total of $1905.00 plus tax. The quote included a "change

of contractor fee [for the] (Pompano Beach Building Department)"

and installation of a horn strobe on the first floor breezeway.

22. Clark was still listed with the City as the only

authorized alarm system s contractor at Crosswinds. Following

City - mandated procedures, then - president of the Crosswind Board,

Cheryl Deats, notified Clark by certified letter of a change of

contractors in June 2008. She r eceived no response from Clark.

Deats testified that sh e believes that Clark 's company, A.B.

Systems performed work incompetently or negligently prior to

having obtained a permit, caus ing financial harm to Crosswinds

in the amount of $2 , 311.81 (1 , 086.45 plus 1 , 225.36) that it had

to pay Bas s to make repairs be fore time for the next inspection.

23. Other than Deats' assumption that the work done by

Bass was the result of Clark's company's negligence or

incompetence, there is no evidence to support that finding. In

fact, the evidence tends to support a finding that work done in

March and April 2007, more than a year after Clark's work, was

necessitated by corrosion due to the proximity of Crosswinds to

the ocean.

24. There is no evidence that the Crosswinds' Board was

deceived and not aware that Clark was the s ubcontractor working

on the fire alarm system. Regardless of whether they knew the

name of his parent company, E.A.S., at least two previous Board

presidents had direct interactions with him and saw his

employees wearing shirts identifying A.B. Systems.

C ONCLUSIONS OF LAW

25. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with s ections 120.569 and 120.57(1),

Florida Statutes (2009).

26. Petitioner is the state agency charged with licensing

and regulating electrical contractors, including specialty fire

alarm contractors such as Respondent, pursuant to section

20.1 65(4)(a)7., and c hapters 455 and 489, part II, Florida

Statutes.

27. Petiti oner seeks to take disciplinary action against

Respondent's license. Because disciplinary actions are

considered penal proceedings, Petitioner bears the burden of

proof to demonstrate the allegations in the Administrative

Complaint by clear and convincing evidence. Dep ' t of Banking &

Fin . v. Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996); Ferris

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

28. The Florida Supreme Court has held that:

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify

must be distinctly remembered; the testimony

must be precise and lacking in confusion as

to the facts in issue. The evidence must be

of such a 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 Henson , 913 So. 2d 579, 590 (Fla. 2005) ( quoting Slomowitz

v. Walker , 429 So. 797, 800 (Fla. 4th DCA 1983) ) .

29 . Count I of the Administrative Complaint charged

Respondent with violating s ection 489.533(1)(m)(3), Florida

Statutes, which makes it a disciplinary violation for :

Committing financial mismanagement or

misconduct in the practice of contracting

that causes f inancial harm to a customer.

Financial mismanagement or misconduct occurs

if:

* * *

3. The contractorÓs job has been completed

and it is shown that the customer has had to

pay more for the contracted job than the

original contract price, as adjusted fo r

subsequent change orders, unless such

increase in cost was the result of

circumstances beyond the control of the

contractor, was the result of circumstances

caused by the customer, or was otherwise

permitted by the terms of the contract

between the contr actor and the customer;

30 . Clear and convincing evidence was not presented to

support a finding that Respondent committed the violation

alleged in Count I. The more persuasive evidence is that

frequent repair and replacement of fire alarm system parts was

required because of ocean air corrosion.

31 . Count II of the Administrative Complaint alleged that

Respondent violated s ection 489.533(1)(f). That subsection

provides that a licensee may be disciplined for

Committing fraud or deceit, or negligence,

incompetency, or misconduct in the practice

of electrical or alarm system contracting.

32 . Clear and convincing evidence was not presented to

demonstrate that there was any violation of this provision.

Crosswinds was not deceived about who was servicing its f ire

alarm system. The Board presidents at Crosswinds regularly

interacted with Clark from 2004 until October 2006.

RECOMMENDATION

Upon consideration of the facts found and conclusions of

law reached, it is

RECOMMENDED t hat the Electrical Contract ors Licensing Board

enter a Final Order dismissing the Amended Ad ministrative

Complaint filed on June 3, 2010, against Steven Scott Clark,

d/b/a E.A.S. Industries, Inc., d/b/a A.B. Fire Systems.

DONE AND ENTERED this 4th day of January , 2011 , in

Tallahassee, Leon County, Florida.

S

ELEANOR M. HUNTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of January , 2011 .

ENDNOTE S

1. Unless otherwise indicated, references to Florida Statutes

are to the 2010 edition.

2. See section 489 .521 , Florida Statutes.

COPIES FURNISHED :

Ju a nita Chastain, Executive Director

Division of Professions

Electrical Contractors Licensing Board

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Flor ida 32399 - 0792

Reginald Dixon, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

LeChea C. Parson, Esquire

Department of Business &

Professional Regulation

1 940 North Monroe Street, Suite 42

Tallahassee, Florida 32399

Steven Scott Clark

Steven Scott Clark, d/b/a E.A.S.

Industries, Inc., d/b/a A.B. Fire Systems

4500 Lakeview Drive

Sebring, Florida 33870

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.