13-004671 Terrence Davis vs. Department Of Business And Professional Regulation, Electrical Contractor's Licensing Board Status: Closed Recommended Order on Wednesday, May 7, 2014.

Summary: Petitioner failed to meet his burden of fitness for certification; recommended final order denying Petitioner's application for licensure as a certified electrical contractor.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TERRENCE DAVIS,

Petitioner,

vs. Case No. 13 - 4671

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION,

ELECTRICAL CONTRACTOR ' S

LICENSING BOARD,

Respondent.

_______________________________/

RECOMMENDED ORDER

This case came before Administrative Law Judge Todd P.

Resavage for final hearing by video teleconference on March 26,

2014, at sites in Tallahassee and Lauderdale Lakes, Florida.

APPEARANCES

For Petitioner: Terrence A. Davis, Pro se

7905 Southwest Seventh Place

North Lauderdale, Florida 33068

For Respondent: Deborah B. Loucks, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Whether Petitioner is entitled to licensure as a certified

contractor pursuant to the " grandfathering " provisions of s ection

489.514, Florida Statutes.

PRELIMINARY STATEMENT

On or abou t July 23, 2013, Petitioner, Terre nce A. Davis, a

locally - licensed electrical contractor doing business in Broward

County, Florida, applied to Respondent, Electrical C ontractor ' s

Licensing Board ( " Board " ), which is a board under the

jurisdiction of the Dep artment of Business an d Professional

Regulation ( " Department " ), for licensure as a certified

electrical contractor. By a Notice of Intent to Deny, dated

October 18, 2013, the Board denied Petitioner ' s app lication for

two reasons: (1) within the previous five years, Petitioner ' s

contracting license was suspended for failure to pay child

support; and (2) Petitioner ' s application failed to demonstrate

that he had the requisite financial stability as required by

Florida Administrative Code Rule 61G6 - 5.005(3) a nd requisite net

worth as required by Florida Administrative Code

Rule 61G6 - 5.004.

Petitioner timely requested a formal hearing, and the matter

was referred to the Division of Administrative Hearings on

December 4, 2013. The case was assigned to t he undersigned, who

set the final hearing for January 13, 2014. On January 6, 2014,

the parties requested and were granted a continuance of the final

hearing. The final hearing was rescheduled to March 26, 2014.

The final hearing took place as sch eduled. Petitioner

appeared pro se and the Board was represented by counsel. The

final hearing Transcript was filed on April 10, 2014. The

identity of the witnesses and exhibits and the rulings regarding

each are as set forth in the Transcript. Petitio ner and the

Board timely filed proposed recommended orders, which were

considered in preparing this Recommended Order. Unless otherwise

indicated, all rule and statutory references are to the versions

in effect at the time of the application process.

FIN DING S OF FACT

1. At all times material hereto, Petitioner held a

R eg istered E lectrical C ontractors license, No. 13012890, and a

R eg istered A larm S ystem C ontractors I license, No. 12000229, that

authorized him to engage in the same in Broward County, Flori da.

2. Petitioner ' s license s are active and in good standing;

he has not been the subject of any complaints filed with, or

discipline imposed by, the local licensing authority. Petitioner

operates a business named " D " Electrician Technical Services,

In c. , in Pompano Beach, Florida.

3. In the case styled State v. Terrance Davis , Case

No. 082026CCFICA, in the Circuit Court of the Seventeenth

Judicial Circuit, in and for Broward County, Florida, Petitioner

was charged with burglary of a structure with a ssault or battery

and felony battery. Petitioner ' s unrefuted testimony was that

after his arrest in October 2008, he was detained without bond

pending his trial. 1 /

4. On November 17, 2009, the Florida Department of Revenue

( " DOR " ) issued to Petitioner a Notice of Non - Compliance with

Support Order and Intent to Suspend License for the nonpayment of

a previously existing child support order . The notice was sent

to 7906 Southwest Seven th Place, North Lauderdale, Florida 33068.

At the time the notice was se nt, Petitioner claims to have been

detained in the Broward County jail.

5. The criminal charge of felony battery was nol prossed on

December 14, 2009. On December 15, 2009, Petitioner proceeded to

trial on the remaining charge and was acquitted by a ju ry.

6. On December 27, 2009, DOR issued a Notice to Suspend

License for Nonpayment of Support to the Division of Professions.

Said notice provided that, " [w]e gave [Petitioner] notice of

nonpayment and intent to suspend license(s) more than 30 days

ago . [He has] not complied with the support order, a written

agreement if there is one, or timely contested the action. " The

notice further directed that, " [u]nder section 409.2598(5)(b),

Florida Statutes, you must suspend the license, permit or

certificate that allows the person to engage in an occupation,

business or recreation. "

7. In January 2010, during the course of a traffic stop,

Petitioner was advised by a law enforcement officer that his

Florida driver ' s license was suspended. On February 8, 20 10,

Petitioner entered into a Written Agreement for Past Due Support

with DOR w herein he agreed to make a lump - sum payment and

additional monthly payments. DOR agreed that it would not

suspend or deny his driver ' s license as long as Petitioner

complied wi th the terms of the agreement.

8. Petitioner credibly testified that thereafter, when he

" resumed his Articles of Incorporation, " he realized his

professional licenses had also been suspended.

9. On February 25, 2010, DOR issued a Request to Reinstat e

License to the Division of Professions. Said request provided as

follows:

The license(s) of the parent named below, was

suspended for nonpayment of support. Please

reinstate the license(s). The parent is

paying as agreed or ordered, the circuit

court has ordered reinstatement, or the

parent is otherwise entitled to have the

license(s) reinstated under section

409.2598(4)(b), Florida Statutes.

Court Case Number: 060015893CA - 06

Parent ' s Name: TERRE NCE A DAVIS

Mailing Address: 7905 SW 7th Pl, Nort h

Lauderdale, FL 33068 - 2123

License Number(s) and Type(s): 12000229 Reg.

Alarm System Contractors I (EY), 13012890

R e g. Electrical Contractors (ER)

10. On or about July 23, 2013, Petitioner applied for

certification as an electrical contractor pu rsuant to the

" grandfathering " provisions of s ection 484.514, Florida

Statutes. 2 / Included with Petitioner ' s application, was a

personal financial statement wherein Petitioner itemized his

assets and liabilities. Petitioner ' s personal financial

statement concluded that his personal net worth was $56,400.00.

Also included in Petitioner ' s application was a business

financial statement for " D " Electrician Technical Services, Inc.,

that similarly itemized Petitioner ' s business assets and

liabilities. Petiti oner ' s business financial statement concluded

that the business ' s net worth was $35,945.

11. By a Notice of Intent to Deny, dated October 18, 2013,

the Board denied Petitioner ' s application for two reasons:

(1) within the previous five years, Pet itioner ' s contracting

license was suspended for failure to pay child support; and

(2) Petitioner ' s application failed to demonstrate that he had

the requisite fina ncial stability as required by r ule 61G6 -

5.005(3) and requi site net worth as required by r ul e 61G6 - 5.004.

12. Petitioner credibly testified as to the figures

supporting the itemization of both his personal and business

assets and liabilities and respective net worth contained in the

application. Petitioner conceded that a credit report, d ated

July 8, 2013, documents that he had a late mortgage payment in

April 2010; that in 1997, his child support arrearage was placed

in collection; and that an account, with a current balance of

$3110.00, was placed for collection. Petitioner contends sai d

account concerned a one - year lease that he was unable to satisfy

at the time due to his detainment for the above - noted criminal

charges.

13. Respondent presented the testimony of Clarence Kelly

Tibbs . Mr. Tibbs is a state - certified electrical co ntractor who

served on the Board for approximately 13 years. Mr. Tibbs was not

on the Board at the time the Board considered and rejected

Petitioner ' s application.

14. The undersigned deemed Mr. Tibbs as an expert in

electrical contracting. Mr. Tibbs did not testify concerning the

areas of his expertise (electrical contracting), but rather,

offered opinions on the propriety of the Board ' s denial of

Petitioner ' s application.

15. Mr. Tibbs testified that, " as an ex - Board member , "

looking at Petitioner ' s personal and business financials, there

were several problems. After itemizing his concerns, Mr. Tibbs

concluded that, " [h]owever, looking at the financials that you ' ve

got in front of me, although I have some problems with them, I

could probably go ah ead and approve them. "

CONCLUSIONS OF LAW

16 . The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

s ections 120.569 and 120.57(1), Florida Statutes.

17. As an applicant for licensure, Peti tioner bore the

burden at hearing of going forward initially with proof of his

fitness for certification; he also was required to should er the

ultimate burden of persuasion. See Dep ' t of Banking & Fin., Div.

of Sec. & Investor Pro t. v. Osborne Stern & Co. , 670 S o. 2d 932,

9 34 (Fla. 1st DCA 1996).

18. The " grandfathering " provision under which Pet itioner

seeks certification is s ection 489.514, Florida Statutes, which

provides as follows:

489.514 Certification for registered

contract ors; grandfathering p rovisions. --

(1) The board shall, upon receipt of a

completed application, appropriate fee, and

proof of compliance with the provisions of

this section, issue:

(a) To an applying registered electrical

contractor, a certificate as an electrical

contractor , as defined in s. 489.505 (12);

(b) To an applying registered alarm system

contractor, a certificate in the mat ching

alarm system contractor category, as defined

in s. 489.505 (2)(a) or (b); or

(c) To an applying registered electrical

specialty contractor, a certificate in the

matching electrical specialty contractor

category, as defined in s. 489.505 (19).

(2) Any contractor registered under this part

who makes application under this section to

the board shall meet each of the following

requirements for certification:

(a) Currently holds a valid registered local

license in the categ ory of electrical

contractor, alarm system contractor, or

electrical specialty contractor.

(b) Has, for that category, passed a written,

proctored examination that the board finds to

be substantially similar to the examination

required to be licensed as a certified

contractor under this part. For purposes of

this subsection, a written, proctored

examination such as that produced by the

National Assessment Institute, Block and

Associates, NAI/Block, Experior Assessments,

Professional Testing, Inc., or Asse ssment

Systems, Inc., shall be considered to be

substantially similar to the examination

required to be licensed as a certified

contractor. The board may not impose or make

any requirements regarding the nature or

content of these cited examinations.

(c) Has at least 5 years of experience as a

contractor in that contracting category, or

as an inspector or building administrator

with oversight over that category, at the

time of application. For contractors, only

time periods in which the contractor licens e

is active and the contractor is not on

probation shall count toward the 5 years

required under this subsection.

(d) Has not had his or her contractor ' s

license revoked at any time, had his or her

contractor ' s license suspended in the last 5

years, or be en assessed a fine in excess of

$500 in the last 5 years.

(e) Is in compliance with the insurance and

financial responsibility requirements in s.

489.515 (1)(b).

(3) An applicant must make application by

November 1, 2015, to be licensed pursuant to

this section.

19. Section 489.515(1)(b), Florida Statutes, provides as

follows:

The board shall certify as qualifie d for

certification any person who satisfies the

requirements of s. 489.511 and who submits

satisfactory evidenc e that he or she has

obtained both workers ' compensation insurance

or an acceptable exemption certificate issued

by the department and public liability and

property damage insurance for the health,

safety, and welfare of the public in amounts

determined by rule of the board, and

furnishes evidence of financial

responsibility, credit, and business

reputation of either himself or herself or

the business organization he or she desires

to qualify.

20. Subsection 489.507(3), Florida Statutes, grants to th e

Board rulemaking authority to implemen t the provisions of Part II

of c hapter 489, Florida Statutes. Pursuant to its rulemaking

author ity, the Board has promulgated Florida Administrative Code

R ule 61G6 - 5.004, which provides, in pertinent part:

In order that the Board may carry out its

statutory duty to investigate the financial

responsibility, credit, and business

reputation of an applicant proposing to

engage in contracting as a partnership,

corporation, business trust, or other legal

entity other than a sole proprietorship, an

applicant shall be required to forward the

following to the Department for review by the

Board:

(1) A comprehensive financial statement

reflecting the financial condition of the

business organization in its previous fiscal

year; provided, however, that the statement

be prepared within 12 months of the date of

filing of the application. The financial

statement shall be prepared in accordance

with generally accepted accounting

principles, as defined by Rule 61H1 - 20.007,

F.A.C. (Fe bruary, 2004). The financial

statement must indicate a minimum net worth

as indicated below for the following

categories:

(a) Unlimited electrical and alarm contractor

$10,000.00

(b) Specialty Contractor $5,000.00

(2) A report on the business organ ization

from any recognized credit bureau which

includes but is not limited to credit

history, ability to be bonded, liens,

judgments, suits, bankruptcy, and assignment

of receivers obtained from county, state and

federal records. The credit report must b e

dated within twelve (12) months of the date

of filing the application.

21. The Board has also promulgated Florida Administrative

Code R ule 61G6 - 5.005 , which provides as follows:

(1) For purposes of this rule, the phrase

" financial responsibilit y " is defined as the

ability to insure that the public, the

laborers, the materialmen, the supplier and

other parties with whom the applicant will do

business as an contractor, will not sustain

economic losses resulting from the

contractor ' s inability to p ay his obligations

to them.

(2) The following factors will be reviewed

when examining the financial responsibility

of the applicant:

(a) Evidence that the applicant or any of its

corporate officers, or any of its

shareholders holding 10% or more of the

c orporate stock has filed or been a party to

voluntary or involuntary bankruptcy within

the past five years preceding its

application, arising out of the electrical

contracting operations of said applicant,

corporate officer or 10% shareholder.

(b) The ex istence, within the past five years

preceding the application, of a court

judgment rendered against the applicant or

any of its corporate officers, or any of its

shareholders holding 10% or more of its

corporate stock, based upon the failure of

the applica nt or any of its corporate

officers or 10% shareholders to pay their

obligations to materialmen, laborers,

suppliers or any other parties with whom the

applicant or corporate officer or 10%

shareholder conducted business as a

contractor.

(c) The existence of any liens of record by

the United States Internal Revenue Service or

the State of Florida Corporation Tax Division

against the applicant or any of its corporate

officers or any of its 10% shareholders.

(d) An unfavorable credit history as

indicated by any of the documents submitted

pursuant to Rule 61G6 - 5.004, F.A.C.

(3) A determination by the Board that the

applicant lacks the financial stability

necessary to assure compliance with the

standards set forth in subsection (1) of this

rule. As guideline s for the determination of

financial stability the Board shall consider

the responses to the questions set forth in

subsection 61G6 - 5.004(3), F.A.C., and the

documents submitted pursuant to Rule 61G6 -

5.004, F.A.C.

22. Section 489.514, Florida Statut es, makes clear that to

become certified under the " grandfathering " provisions, an

applicant shall meet each of the requirement s of section

489.514(2), including subsection (2) (d) ÏÏ that the contractor has

not had his contractor ' s license suspended in the l ast five

years. It is undisputed that Petitioner ' s registered electrical

contractor ' s license was suspended within the five years

preceding his application for the failure to pay child support.

Accordingly, Petitioner has failed to meet his burden of fit ness

for certification , as set f orth in section 489.514(2) . 3 /

23. The undersigned concludes that Petitioner met his

burden concerning his compliance with the financial

responsibility requirements, as set forth in the above - referenced

Florida Sta tutes a nd Florida Administrative Code R ules.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that

The Department of Business and Professional Regulation,

Electrical Contractor ' s Licensing Board , enter a fi nal order

denying Petitioner ' s application for licensure as a certified

electrical contractor.

DONE AND ENTERED this 7th day of May , 2014 , in Tallahassee,

Leon County, Florida.

S

TODD P. RESAVAGE

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 7th day of May , 2014 .

ENDNOTE S

1 / The undersigned observes that the circuit court judge entered

an order vacating Petitioner ' s pretrial release conditions on

Decemb er 15, 2009. The record is silent conce rning the specifics

of Petitioner ' s pretrial release.

2 / Registration and certification are distinct forms of licensure

under Part II of chapter 489, Florida Statutes, which deals with

the regulation of electrical and alarm system contractors.

3 / Pe titioner ' s registered electrical contractor ' s license was

reinstated on February 25, 2010, and, therefore, Petitioner may

reapply on February 25, 2015.

COPIES FURNISHED:

Deborah B. Loucks, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

Terrence A. Davis

7905 Southwest Seventh Place

North Lauderdale, Florida 33068

Daniel Biggins, Executive Director

Electrical Contractor's Licensing Board

Department of Business and

Professional Regulation

Northwood Cen tre

1940 North Monroe Street

Tallahassee, Florida 32399 - 2201

J. Layne Smith, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 2201

NOTICE OF RIGHT TO SUBMIT EXCEPTI ONS

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.