14-005400PL Department Of Business And Professional Regulation, Electrical Contractors&Apos; Licensing Board vs. Michael Ellis Status: Closed Recommended Order on Friday, March 13, 2015.

Summary: DBPR proved a violation of 455.022(1)(j). Proof of specific intent to aid or abet was not required.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION,

ELECTRICAL CONTRACTORS '

LICENSING BOARD,

Petitioner,

vs. Case No. 1 4 - 5400PL

MICHAEL ELLIS,

Respondent.

_______________________________/

RECOMMENDED ORDER

On January 20, 2015, a final administrative hearing was held

in this case before J. Lawrence Johnston, Administrative Law

Judge, Division of Administrative Hearings, by video

teleconferencing at sites in Tallahassee and Orla ndo, Florida.

APPEARANCES

For Petitioner: Sorin Ardelean, Esquire

Thomas Hugh Campbell, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 323 99 - 2202

For Respondent: Rosemary Hanna Hayes, Esquire

Hayes Law, P.L.

830 Lucerne Terrace

Orlando, Florida 32801 - 3732

STATEMENT OF THE ISSUE

The issue in this case is whether the Electrical

Contractors ' Licensing Board should discipline the Respondent for

violating section 48 9.533(1)(a), Florida Statutes (2013), 1/ by

violating section 455.227(1)(j), which prohibits " [a]iding,

assisting, procuring, employing, or advising any unlicensed

person or entity to practice a profession contrary to this

chapter, the chapter regulating th e profession, or the rules of

the department or the board. "

PRELIMINARY STATEMENT

The Petitioner, Department of Business and Professional

Regulation (DBPR or Department), filed an Administrative

Complaint against the Respondent in September 2014. In

Novem ber 2014, the Respondent disputed the charges and requested

a hearing, and DBPR referred the matter to the Division of

Administrative Hearings.

At the final hearing, DBPR called Ruthanne Christie, Kathy

Arundel, Clarence Tibbs, Clark Huls, and the Respon dent, Michael

Ellis , as witnesses. DBPR also introduced Petitioner ' s

Exhibits 1, 2, and 5 through 9 into evidence. 2/ The Respondent

testified on his own behalf and called Curtis Wood as his

witness. The Respondent introduced Respondent ' s Exhibits 1,

2 (A and B ), 3, 4, 5 (A through C ), 7 through 9, 11 through 16,

18 (A through C), and 20.

A Transcript of the final hearing was filed on February 25,

2015. The parties filed proposed recommended orders that have

been considered in the preparation of this Recommended Order.

The Respondent moved for attorney ' s fees and costs under several

provisions of the Florida Statutes.

FINDING S OF FACT

1. The Respondent, Michael Ellis, is licensed in Florida as

an electrical contractor and holds licenses EC0000680 a nd

EC13003559. He has been licensed in Florida since 1986 and has

not been disciplined prior to this case.

2 . In the summer and fall of 2013, the Respondent was the

primary qualifying agent of M. Ellis Electrical, Inc. (Ellis

Electrical).

3 . In the summer and fall of 2013, Clark Huls was not

licensed as an electrical contractor in Florida.

4 . In August 2013, Ellis Electrical had a subcontract with

Powerhouse, Inc. (Powerhouse), which had a contract with

7 - Eleven, Inc. (7 - Eleven), for the installat ion of hot food

cabinets at several different 7 - Eleven retail locations in

Florida. The instal lation required electrical work ( including

subpanels, new circuits, outlets, and breakers ) and had to be

done by a licensed electrical contractor.

5 . Someone at Powerhouse referred Huls to the Respondent,

and the Respondent hired him to do the installations for $1,400

for each of nine different 7 - Eleven jobsites. It was the

Respondent ' s initial intent to hire Huls as a subcontractor. The

evidence is disputed and not clear as to exactly what Huls

represented to the Respondent about his license status when the

Respondent hired him. The evidence is clear that Huls did not

provide him with licensure and insurance information at that time

and was supposed to provi de this information to the Respondent at

the first jobsite. The Respondent did not initially check DBPR ' s

website to verify Huls ' license status, which was the prudent and

appropriate thing for him to have done.

6 . The first work performed by Huls for the Respondent was

on August 21, 2013. The Respondent was there to supervise and

direct the work. Huls did not provide license and insurance

information. By this time, the Respondent clearly knew or should

have known that Huls was not licensed.

7 . At the third installation Huls performed, on August 24,

201 3 , the Respondent had an employee named Jason Ippolito deliver

an employment package to Huls. Huls refused to complete and sign

the employment paperwork because it would change the terms of his

agre ement with the Respondent to be paid $1,400 per jobsite.

8 . The Respondent allowed Huls to continue to work on

installations while trying to resolve the subcontract/employment

issue. In all, Huls completed nine installations between

August 21 and Septe mber 3, 2013. When Huls asked to be paid

$1,400 per jobsite, as originally agreed, the Respondent refused

to pay because Huls was not licensed as a subcontractor and

refus ed to complete the paperwork to be paid as an employee.

Huls then placed liens on a ll nine 7 - Eleven properties and

contacted Powerhouse to be paid.

9 . In order to save its relationship with 7 - Eleven,

Powerhouse paid Huls $5,806 and deducted that amount from what it

owed Ellis Electrical.

10. On October 12, 2013, the Respondent filed a DBPR

complaint against Huls for subcontracting without a license.

DBPR filed an Administrative Complaint against Huls for

unlicensed activity. Criminal prosecutions of Huls also were

filed and were pending at the time of the final hearing in this

case .

11. In mitigation, in addition to his clean record as a

long - time licensee, the Respondent presented that he was dealing

with his wife ' s serious health issues during the summer and fall

of 2013 , which affected his ability to manage his jobsites. In

ad dition, no consumer or member of the public suffered financial

harm. Ultimately, the financial harm was borne by the

Respondent.

CONCLUSIONS OF LAW

12 . The Administrative Complaint charges the Respondent

with violating section 489.533(1)(a) , Florida Sta tutes, by

violating section 455.227(1)(j), which prohibits " [a]iding,

assisting, procuring, employing, or advising any unlicensed

person or entity to practice a profession contrary to this

chapter, the chapter regulating the profession, or the rules of

the department or the board. "

13 . DBPR must prove its charge against the Respondent by

clear and convincing evidence. See Dep ' t of Banking & Fin. v.

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

Turlington , 510 So. 2d 292 (Fla. 1987). The Sup reme Court has

stated:

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 convicti o n,

without hesitancy, as to the truth of the

allegations sought to be established.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005) (quo ting Slomowitz

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

14. The evidence wa s clear and convincing that the

Respondent violated section 455.227(1)(j) by hiring Clark Huls to

be a subcontractor without verifying his licensure, despite

indicatio ns that Huls was not properly licensed to be a n

electrical contractor, and by allowing him to continue to do

electrical work on the 7 - Eleven jobsites after it became clear to

the Respondent that Huls was not properly licensed and declined

to become an empl oyee of the Respondent ' s electrical contracting

company. A violation of section 455.227(1)(j) constitutes a

violation of section 489.533(1)(a) and authorizes the Electrical

Contractors ' Licensing Board to discipline a licensee.

15. T he Respondent conten ds that a required element of a

violation of section 455.227(1)(j) is proof that he had the

specific intent to aid or abet unlicensed practice. In making

this argument, the Respondent cites to Blume v. Department of

Professional Reg ulation, Construction I ndustry Licensing B oard ,

489 So. 2d 880 (Fla. 2d DCA 1986). That case interpreted section

489.129(1)(e), Florida Statutes (1983), which provided for

discipline of a licensee for " aiding and abetting an uncertified

or unregistered person to evade any provi sions of Chapter 489,

Florida Statutes. " The court held that specific intent to aid or

abet was required under that statute. Since Blume , there have

been changes to the statutes. In 1988, section 489.129(1)(e) was

amended to prohibit:

Performing any a ct which assists an

unlicensed person or entity in engaging in

the prohibited uncertified and unregistered

practice of contracting, if the

certificateholder or registrant knows or has

reasonable grounds to know that the person or

entity was uncertified and unregistered.

Ch. 88 - 156, Laws of Fla. (1988). In 1998, the statute was

renumbered and the quoted language became (d). Ch. 98 - 419, Laws

of Fla. (1998). The new language was not interpreted to require

proof of specific intent to aid or abet. See Dep ' t of Bus. &

Prof ' l Reg., Constr. Indus. Licensing Bd. v. Falls , Case

No. 07 - 5493PL (DOAH Mar. 24, 2008; DBPR Jun. 10, 2009); Dep ' t of

Bus. & Prof ' l Reg., Constr. Indus. Licensing Bd. v. Acevedo , Case

No. 08 - 4771PL (DOAH Mar. 11, 2009; DBPR Jul. 17, 2009). Neither

should the language of section 455.227(1)(j), which was added to

the statute in 1994. Ch. 94 - 119, Laws of Fla. (1994). See Dep ' t

of Bus. & Prof ' l Reg., Div. of Real Estate v. Hendrick , Case

No. 12 - 1264PL (DOAH Aug. 8, 2012; DBPR Oct. 22, 2012); D ep ' t of

Bus. & Prof ' l Reg. , Div. of Real Estate v. Barhatkov , Case

No. 09 - 0654PL (DOAH June 25, 2009; DBPR Oct. 26, 2009).

16. Under Florida Administrative Code Rule 61G6 - 10.002(3) ,

the penalty for a violation of section 489.533(1)(a ) , by

v iolating secti on 455.227(1)(j), is " [f]rom reprimand, and $1,000

to $5,000 fine, up to probation, suspension, followed by

probation, or denial or revocation. " A departure from these

penalty guidelines can be warranted by the factors listed in rule

61G6 - 10.003.

17. DB PR ' s proposed recommended order acknowledges the

mitigating evidence in this case. Based on that evidence, DBPR

proposes a fine at the low end of the guideline (i.e., $1,000),

reasonable investigative costs, and two additional hours of

continuing educatio n with an emphasis on laws and rules, which is

reasonable. See § 455.227(3)(a), Fla. Stat. (allowing assessment

of " costs related to the investigation and prosecution of the

case excluding costs associated with an attorney ' s time " ).

18. The Respondent is not entitled to attorney ' s fees or

costs.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Electrical Contractors ' Licensing

Board find the Respondent , Michael Ellis, guilty as charged, fine

him $1 ,000, require him to pay reasonable investigative costs,

and take two additional hours of continuing education with an

emphasis on laws and rules. Jurisdiction is retained for 30 days

after the final order to determine reasonable investigative costs

if th e parties cannot reach an agreement.

DONE AND ENTERED this 13th day of March , 2015 , in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Bu ilding

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 13th day of March , 2015 .

ENDNOTE S

1/ Unless otherwise in dicated, all statutory references are to

the 2013 codification of the Florida Statutes, which is the

version in effect at the time of the alleged violation.

2/ Ruling was reserved on hearsay objection to Petitioner ' s

Exhibit 1. That objection is overr uled, and the exhibit is

admitted into evidence. It contains hearsay, but hearsay is

admissible. § 120.57(1)(c), Fla. Stat. (2014). No findings of

fact are based solely on hearsay contained in this exhibit,

unless the hearsay would have been admissible over objection in

civil actions. § 120.57(1)(c), Fla. Stat. (2014). See Harris v.

Game and Fresh Water Fish Comm ' n , 495 So. 2d 806 (Fla. 1st DCA

1986); Scott v. Dep ' t of Prof ' l Reg. , 603 So. 2d 519 (Fla 1st DCA

1992); Juste v. Dep ' t of HRS , 520 So. 2d 69 (Fla. 1st DCA 1988).

COPIES FURNISHED:

Ruthanne Christie, Executive Director

Electrical Contractors ' Licensing Board

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 0783

(eServed)

William N. Sp icola, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 1027

(eServed)

Thomas Hugh Campbell, Esquire

Department of Business and

Professional Regulation

Suite 42

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

(eServed)

Rosemary Hanna Hayes, Esquire

Hayes Law, P.L.

830 Lucerne Terrace

Orlando, Florida 32801 - 3732

(eServed)

Sorin Ardelean, Esquire

Department of Business and

Professional Regulation

Suite 42

1940 North Monroe Street

Tallahassee, Florida 323 99 - 2202

(eServed)

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 Re commended Order should be filed with the agency that

will issue the Final Order in this case.