11-003817 Department Of Business And Professional Regulation, Electrical Contractors Licensing Board vs. Bobby Serota, D/B/A Academy Electric Inc. Status: Closed Recommended Order on Monday, December 12, 2011.

Summary: Petitioner proved by clear and convincing evidence that Respondent acted in the name not on his license. Petitioner did not prove Respondent abandoned an electrical restoration project.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

ELECTRICAL CONTRACTORS )

LICENSING BOARD, )

)

Petitioner, )

) Case No. 11 - 3817

vs. )

)

BOBBY SEROTA, D/B/A ACADEMY )

ELECTRIC INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on

October 27, 2011, at video teleconferencing sites in West Palm

Beach and Tallahassee, Florida, before Administrativ e Law Judge

June C. McKinney of the Division of Administrative Hearings, in

accordance with the authority set forth in sections 120.569 and

120.57(1), Florida Statutes (2011). 1

APPEARANCES

For Petitioner: C. Erica White, Esquire

Department of Busin ess and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399

For Respondent: Bobby Serota, pro se

9438 Peabody Court

Boca Raton, Florida 33496

STATEMENT OF THE ISSUES

In this discipl inary proceeding, the issues are:

(1) Whether Respondent committed the violations alleged in the

Amended Administrative Complaint issued by Petitioner; and

(2) Whether disciplinary penalties should be imposed on

Respondent if Petitioner proves one or more of the violations

charged in its Amended Administrative Complaint.

PRELIMINARY STATEMENT

On March 25, 2011, the Department of Business and

Professional Regulation, Electrical Contractors Licensing Board

("Petitioner" or "Department"), issued a two - count A mended

Administrative C omplaint against Bobby Serota, d/b/a Academy

Electric Inc., wherein it was alleged that Respondent had

violated various provisions of chapter 489, Florida Statutes.

Respondent timely requested a formal hearing to contest these

alleg ations, and the matter was referred to the Division of

Administrative Hearings on July 29, 2011.

The presiding administrative law judge set the final

hearing for October 6, 2011. Pursuant to an order, the case was

continued and re - scheduled. The case the n proceeded as re -

scheduled on October 27, 2011. Both parties appeared at the

appointed place and time.

At hearing, Petitioner presented the testimony of two

witnesses: Valeda Jennings, Investigation Specialist II; and

Thomas Moreland Sheats, the Complai nant in this matter.

Petitioner Exhibits 1 through 3, 5 through 7, 9 through 11, and

13, 14, and 1A were offered and received into evidence.

Respondent testified on his own behalf. Respondent Exhibits 1

through 10 were offered and received into evidence .

At the request of the Petitioner, official recognition was

taken of the applicable statutory provisions.

The proceeding was recorded and transcribed. The

Transcript of the record was filed on November 10, 2011, with

the Division of Administrative Hearin gs. The parties filed

timely Proposed Recommended Orders, which have been considered

in the preparation of the Recommended Order.

FINDINGS OF FACT

1. Respondent, Bobby Serota ("Serota" or "Respondent"),

was issued license number EC 1485 by Petitioner. H e has been an

electrician for over 60 years.

2. Serota was first licensed in Florida on April 16, 1994.

Serota's license expires on August 31, 2012.

3. Approximately 10 years ago Serota opened a company,

Academy Electric Inc. The company provides elect rical types of

installation work for commercial, industrial, and residential

clients.

4. Serota is the qualifier for Academy Electric. Inc. and

the company is named on Respondent's electrical contractors'

license.

5. In January 2007, Serota answered an a dvertisement 2 in

the Sun Sentinel for an "Exp Master 5 - 10 yrs $30hr startꚺᾊ

sharing" by submitting his resume. Rescue Me Electrician, LLC

("Rescue Me") hired Serota as a project manager employee.

6. Rescue Me is not licensed to perform electrical

co ntracting in the State of Florida.

7. Serota accepted the job with Rescue Me knowing the

company was not licensed to practice electrical contracting in

the State of Florida. Serota accepted the position and informed

the owners that he would help them est ablish their business in

Florida.

8. Thomas Sheats ("Sheats") is the homeowner of a

residence at 14501 Old Sheridan Street ("residence"). Sheats

contacted Rescue Me for a price quote to perform electrical work

to fix his residence which was damaged by Hu rricane Wilma.

9. In March 2007, Renaldo Morales ("Morales"), the owner

of Rescue Me, sent Serota to Sheats' residence to evaluate the

cost, time and materials required to complete the job.

10. Sheats provided Serota a rough sketch of the work.

Serota in formed Sheats a better set of plans was needed to fully

evaluate the job because the rough sketch was incomplete , but he

would provide a price based on what he thought the work involved

for the residence restoration.

11. On or about March 13, 2007, Sheats entered a Home

Improvement Contract with Rescue Me for residential restoration

"as per the updated 'rough' draft." 3

12. The contract listed the parties as "Rescue Me

Electrical, LLC 'DBA' Academy Electric ('Contractor') and

Mr. and Mrs. Tom Sheat[s] ('Ow ner')." 4

13. Serota witnessed and initialed the changes in the

contract that Sheats made to the terms in the payment schedule

and down payment sections. The total contract price was

$15,000.00.

14. Serota's license number EC 1485 and Rescue Me

Electric ian, LLC appeared at the top of the contract.

15. Morales signed the final contract with Sheats.

16. On or about March 14, 2007, Sheats paid Rescue Me a

deposit of $7 , 500.00, 50 percent of the restoration project

costs. Sheats gave the check to Serota.

17. Sheats obtained and paid for all the building permits

for the residential restoration.

18. After the contract was signed, Serota made several

trips back and forth to Sheats ' residence attempting to get a

complete set of plans and to check on the pro gress in order to

determine when the electrical work could beg i n. Once the roof

was closed in, Sheats allowed Serota to go in and start doing

rough electrical installation.

19. I n August 2007 , Rescue Me began the electrical work at

the Sheats residence e arlier than Sheats wanted by installing

the receptacle boxes and wiring between them.

20. Rescue Me completed approximately 25 to 35 percent of

the work. However, the parties came to a standstill at some

point and could not agree on how to move forward o n the

electrical job.

21. On or about September 7, 2007, Rescue Me could not

proceed without changes and Serota sent proposed changes by fax

to Sheats , including costs and what was involved to complete the

work. The fax heading included Resc ue Me named a s the company

and Sero ta's license number EC 1485 . 5

22. Sheats disagreed with the proposed changes. On or

about September 25, 2007, Sheats faxed Morales the following

instructions: "No changes are authorized from original permit

drawing and your bid. P lease complete specified work in its

entirety within the next 2 weeks." 6

23. Morales and Sheats faxed back and forth regarding

their differences. Serota tried to explain the different plan

but Sheats refused to change very far from the original plans.

24 . Rescue Me stopped the work at the Sheats residence

when it terminated Serota and paid him his last check for the

week of September 13, 2007, through September 19, 2007.

25. In October, the Rescue Me and Sheats tried to resolve

their differences. On Oc tober 3, 2007, Sheats met with Rescue

Me to discuss the contents of the September 7, 2007 , fax.

Sheats informed Rescue Me that he did not want any changes made

because of the pricing and Rescue Me was to do the rough

electrical as specified in the origina l bid.

26. On or about October 13, 2007, Sheats sent a fax to

Morales w hich stated :

I am not paying a restart fee of any kind.

I never asked you prior to our meeting on

10/3/07 to start this job. I went out of my

way to accommodate you getting a "head

s tart" in August. When you were insistent

on it.

I have delayed progress on the job from

October 8 until October 15 to accommodate

you doing another job before you started on

mine.

If your crew is not on the jobsite Monday

10/15/07, I shall conclude you have

abandoned the job. Subsequently, I shall

hire a replacement contractor and then

pursue legal remedy against you for recovery

of costs including the $ 7500 I paid you in

March and attorneys fees.

Tom Sheats[ 7 ]

27. Rescue Me did not do any further wor k on the Sheats'

residence.

28. On October 18, 2007, Sheats paid a deposit of

$5 , 500.00 and hired Carefree Constuction to complete the

electrical work Rescue Me did not complete. Carefree

Construction cashed the check on October 24, 2007. Sheats paid

a second installment in the amount of $5,200.00 by check dated

November 2, 2007, and the final amount of $1 , 000.00 on

February 28, 2008, for a total of $11,700.00. 8

29. Sheats filed a complaint with Petitioner regarding

Rescue Me not completing the job.

CO NCLUSIONS OF LAW

30. T he Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto pursuant to sections 120.569 and 120.57(1),

Florida Statutes (2011).

31. Section 489.533 (1)(l), under which R espondent has been

charged in Count I, sets forth the acts for which the Petitioner

may impose discipline. This statute provides, in pertinent

part:

(1) The following acts shall constitute

grounds for disciplinary actions as provided

in subsection:

* * *

(l) Acting in the capacity of a contractor

under any certificate or registration issued

hereunder except in the name of the

certificateholder or registrant as set forth

on the issued certificate or registration or

in accordance with the personnel o f the

certificateholder or registrant as set forth

in the application for the certificate or

registration or as later changed as provided

in this part.

32. Section 489.533(1)(p), under which Respondent has been

charged in Count II, sets forth the acts fo r which the

Petitioner may impose discipline. This statute provides, in

pertinent part:

(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 t he 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.

33. A proceeding, such as this one , to suspend, revoke, or

impose other discipline upon a professional license is penal in

nature. State ex rel. Vining v. Fla. Real Estate Comm'n , 281

So. 2d 487, 491 (Fla. 1973). Being penal in nature, section

489.533 "must be construed strictly, in favo r of the one against

whom the penalty would be imposed." Munch v. Dep't of Prof'l

Reg., Div. of Real Estate , 592 So. 2d 1136, 1143 (Fla. 1st DCA

1992).

34. Here, Petitioner seeks to discipline Respondent's

license and/or to impose an administrative fine. Accordingly,

Petitioner has the burden of proving the allegations charged in

the Administrative Complaint against the Respondent by clear and

convincing evidence. Dep't of Banking and Fin. Div. of Sec. and

Investor Prot. v. Osborne Stern and Co., 670 So . 2d 932, 9 33 - 34

(Fla. 1996) (citing Ferris v. Turlington , 510 So. 2d 292, 294 - 95

(Fla. 1987)); Nair v. Dep't of Bus. & Prof'l Reg. , 654 So. 2d

205, 207 (Fla. 1st DCA 1995).

35. Regarding the standard of proof, in Slomowitz v.

Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the Court of

Appeal, Fourth District, canvassed the cases to develop a

"workable definition of clear and convincing evidence" and found

that of necessity such a definition would need to contain "both

qualitative and quantitative standa rds." The court 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 explicit and the

witnesses must be lacking confusion as to

the facts in issue. 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. Id.

36. A lic ensee is charged with knowing the practice act

that governs his/her license. Wallen v. Fla. Dep't of Prof'l

Reg., Div. of Real Estate, 568 So. 2d 975 (Fla. 3d DCA 1990).

37. In this case, Petitioner met its burden of

establishing that Respondent contract ed in a name other than his

licensed name, Academy Electric. Even though Serota was an

employee of Rescue Me, he allowed Rescue Me to use his license

number on several business documents during transactions with

Sheats. Further, Serota's company Academy Electric was

specifically listed as a party to the contract signed on or

about March 13, 2007, to which Serota witnessed and initialed

the changes. Therefore, Respondent acted in the capacity of a

contractor in a name other than as licensed by contracting under

the auspices of Rescue Me Electrician, LLC. in violation of

section 489.533(1)(l).

38. As to Count II, Petitioner failed to present

sufficient credible evidence to demonstrate Respondent abandoned

the Sheats electrical job in v iolation of section 4 89.533(1)(p ).

The record demonstrates that Sheats and Rescue Me met on

October 3, 2007, to discuss how the job was to proceed and the

parties disagreement was still ongoing as late as October 13,

2007, when Sheats sent another fax to Rescue Me. It was o nly

five days later on October 18, 2007, that Sheats contracted with

the new contractor to complete the electrical job.

Consequently, the record is void of evidence to show Rescue Me

was absent from the job for the minimum 90 - day period of no work

require d under the statute since Serota last worked on the

residence in September 2007 . Therefore, Petitioner failed to

meet its burden and show Respondent in viol ation of section of

489.533(1)(p ).

Disciplinary Guidelines

39. Pursuant to Florida Administrative Code Rule 61G6 -

10.002 , Petitioner established disciplinary guidelines with a

range of penalties that will be imposed on licensees guilty of

violating chapter 489.

40 . The record is void of any previous discipline against

Respondent. Rule 61G6 - 10.002(3)(l ) sets the range of punishment

for the first offense of a violation of section 489. 533 (1)(l) .

It mandates punishment "[f]rom noncompliance up to a citation."

Hence, based on Serota's 17 - year clean licensure record, the

undersigned recommends the minimum p enalty of a notice of

noncompliance for Responden t's violation of section

489.533 (1)(l).

41. Petitioner failed to present any evidence that

Respondent should pay either restitution or costs for the

investigation or prosecution. Consequently, since there is no

proof of the aforementioned, no determination of restitution,

investigation or prosecution costs may be made or awarded.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Petitioner enter a fina l order

that: (a) finds Respondent guilty as charged in Count I of the

Amended Administrative Complaint, imposing a notice of

noncompliance and (b) finds Respondent not guilty as charged in

Count II of the amended Administrative Complaint.

DONE AND ENTERE D this 12 th day of December , 20 11 , in

Tallahassee, Leon County, Florida.

S

____________________________________

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 12 th day of December , 20 11 .

ENDNOTES

1 / Unless otherwise indicated, all references are to the 2007

Florida Statutes and 2007 Florida Administrative Code.

2 / Respondent's Exhibit 7.

3 / Petitioner's Exhibit 5.

4 / Respondent denied any knowledge of his license number or

Academy E lectric being used by Rescue Me. Such testimony is

rejected as not being credible.

5 / Petitioner's Exhibit 3.

6 / Respondent's Exhibit 3.

7 / Respondent's Exhibit 1.

8 / Petitioner's Exhibit 14.

COPIES FURNISHED:

Juanita Chastain, Executive Direc tor

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Layne Smith, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Bobby Serota

Academy Electric

9438 Peabody Court

Boca Raton, Florida 33496

C. Erica White , Esquire

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 323 99 - 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 Fi nal Order in this case.