16-002845PL Department Of Business And Professional Regulation, Construction Industry Licensing Board vs. Michael E. Seamon Status: Closed Recommended Order on Wednesday, October 5, 2016.

Summary: Petitioner proved that Respondent failed to obtain an electrical permit and acted beyond the scope of his pool contractor license in disconnecting, reconnecting, and energizing pool lights in conjunction with their replacement.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION,

CONSTRUCTION INDUSTRY LICENSING

BOARD ,

Petitioner ,

vs. Case No. 1 6 - 2845 PL

MICHAEL E. SEAMON ,

Respondent .

/

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on July 27, 2016 , in Tallahassee , Florida, before E. Gary Early,

a designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Clayton T. Osteen, Esquire

Daniel S. Brackett, Esquire

Department of Business

and Professional Regulation

Capital Commerce Center

2601 Blair Stone Road

Tallahassee, Florida 3239 9

For Respondent: Frederick R. Dudley, Esquire

Dudley, Sellers and Healy, P.L.

Suite 301

3522 Thomasville Road

Tallahassee, Florida 32309

STATEMENT OF THE ISSUE S

Whether Respondent practiced beyond the scope of his

certified commercial pool/spa contractorÓs license and proceeded

on a job without obtaining applicable local building dep artment

permits and inspections , as alleged in the Amended

Administrative Complaint and , if so, the nature of the sanctions

to be imposed .

PRELIMINARY STATEMENT

As alleged in Respondent, Michael E. Seamon Ós (Respondent)

Petition for Formal Administrative Hearing (Petition) , which was

filed with the Department of Business and Professional

Regulation (Petitioner or Department) on November 30, 2015, 1/

Respondent was served with the original Administrative Complaint

by the D epartment on or about November 6, 2015. There has been

no suggestion that the P etition was not timely filed.

On April 4, 2016 , the Department filed an Amended

Administrative Complaint against Respondent , which re - alleged

(as Count Two) that Respondent performed regulated electrical

contracting services involving the replacement of a swimming

pool light at 7935 North Lagoon Drive, Panama City Beach,

Florida (the Subject Property) , without holding an electrical

contractor license, and added the allegation (as Count One) that

Respondent performed electrical contracting services without

having first obtained applicable local building department

permits and inspections.

Respondent did not immediately amend his Petition, but did

file a Motion to Dismiss Count On e of Amended Administrative

Complaint (Motion to Dismiss ) , by which Respondent requested,

inter alia, that the original Administrative Complaint be

forwarded to the Division of Administrative Hearings ( DOAH ) and

that the Amended Administrative Complaint , with the new Count

One, be dismissed.

On May 23, 2016 , Petitioner referred the P etition and the

Motion to Dismiss to D OAH .

The final hearing was scheduled for July 27 , 2016. In the

period leading up to the final hearing, a number of motions were

filed, disposition of which may be determined by reference to

the docket of this case.

On July 5, 2016, Respondent filed a Motion for Leave to

Amend Petition for Administrati ve Hearing , which included

responses to Count One of the Amended Administrative Complaint ,

and raised the issue of whether PetitionerÓs action involved the

application of an unadopted rule . The Motion for Leave to Amend

was granted. The Motion to Dismiss was thereafter taken up at

the commencement of the final hearing, and was denied for the

reasons set forth on the record.

On July 22 , 2016, the parties filed their Joint Prehearing

Stipulation (JPS). The JPS contained 11 stipulations of fact,

each of w hich is adopted and incorporated herein. The JPS

identified the issues of fact remaining to be litigated as:

a. Whether Respondent was required to obtain a permit ;

b. Whether Respondent was able to obtain a permit ;

c. Whethe r Respondent was working within the scope of his

license ; and

d. Whether Respondent replaced any circuit breaker.

The JPS identified the issues of law remaining for determination

as:

a. Whether a pool contractorÓs scope of work includes

installation of pool lights with wiring disconnect and

reconnect;

b. Whether a permit was required; and

c. Whether a permit could have been obtained.

The hearing commenced on July 27, 2016, as scheduled.

At the final hearing, Petitioner presented the testimony of

Respondent; Larry Carnley , a building official for Bay County,

Florida; Edward Weller, who was accepted as an expert ,

generally, in issues related to general contracting and building

inspection and enforcement 2 / ; and Clarence Tibbs, who was

accepted as an expert in electrical contracting.

Respondent testified on his own behalf and presented the

testimony of Paul Del Vecchio , who was accepted as an expert,

generally, in issues related to general contracting .

The re was no objection to the documents offered by the

parties, and they were presented and received in evidence as

Joint Exhibits 1 through 9, 11, 12, 14 through 20, 23, 24, 26,

27, and 29. Joint E x hibit 5 was the deposition of John

Patronis, owner of the S ubject Property. Exhibits 15, 17, 18 ,

and 19 consisted of , respectively, the expert deposition

testimony of John Garner ( RespondentÓs expert Î pool

contracting ), David Pruette ( RespondentÓs expert Î electrical

contracting ), Roy Lenois (PetitionerÓs expert Î pool

contracting ) , and Mr. Del Vecchio . Exhibit 20 was the

deposition testimony of Respondent, and Exhibit 29 was the

deposition testimony of Ian Brown , PetitionerÓs chief

construction attorney, who testified as PetitionerÓs c orporate

representative .

Official recognition was taken of f inal o rders of the

Construction Industry Licensing Board (CILB) entered as

declaratory statements. Those final orders were In re: The

Petition for Declaratory Statement of David B. Levesque , Final

Order No. BPR - 2007 - 032 77 (Apr. 24, 2007); In re: The Petition

for Declaratory Statement of James Flaherty , File # 2009 - 09479

( Nov. 16, 2009); and In re: The Petition for Declaratory

Statement of Richard P. Conway, et al. , File # 20 10 - 11969

( Dec. 27, 2010 ) .

A one - volume T ranscript of the proceedings was filed on

August 18, 2016 . B y agreement of the parties, the time for

submitting post - hearing submittals was set at 15 days after the

filing of the T ranscript. By unopposed motion, the time was

extended to September 6, 2016 . B oth parties timely filed

P roposed Recommended O rders which have been duly considered by

the undersigned in the preparation of this Recommended Order.

The actions that form the basis for the Amended

Administrative Complaint occurred in September 2014. This

proceeding is governed by the law in effect at the time of the

commission of the acts alleged to warrant discipline. See

McCloskey v. DepÓt of Fin. Servs. , 115 So. 3d 441 (Fla. 5th DCA

2013). Accordingly, all statutory and regulatory references

sh all be to the 2014 versions, unless otherwise specified.

FINDINGS OF FACT

1. Petitioner is the state agency charged with the

licensing and regulation of the construction industry, including

pool and spa contractors and electrical contrac t ors, pursuant to

section 20.165 and c hapters 455 and 489, Florida Statutes.

2. At all times material to the allegations in the

Administrative Complaint, Respondent was licensed as a

commercial p ool/ s pa c ontractor in the State of Florida, having

been issu ed license numbers CPC 05661, 1457406, and 1458031.

Respondent was the primary qualifying agent of Cox Building

Corporation , d/b/a Cox Pools (Cox Pools).

3 . Respondent has been registered, certified , or licensed

as a swimming pool contractor since 1978. Over the course of

his almost 40 years as a swimming pool contractor, Respondent

has replaced thousands of pool lights and pool pumps. He

believed that the replacement of pool equipment, which he

und erstood to include pool lights, was within the allowable

scope of work as a swimming pool contractor.

4 . On or about September 12, 2014, Cox Pools entered into

a contract with John Pa tronis to replace four pool light

fixtures , a booster pump, and other miscellaneous services for

$4,681.17 at the Subject Property. The Subject Property falls

within the jurisdiction of the Bay County Building Department.

5 . Respondent did not obtain an electrical permit for

replacing the pool light fixtures at Subject Property.

6 . Mr. Carnley testified that the Bay County Building

Department requires that pool light replacement be performed by

a licensed electrician, and with a county - issued electrical

permit. The permit must be obtained by an electrical contractor

or a homeowner. Bay County would not have issued a permit to

Respondent, because he was not an electrical contractor.

7 . The Bay County Building Department also requires an

el ectrical permit for the replacement of a circuit breaker in

the electrical box serving a swimming pool. A pool contractor

is not authorized to replace circuit breakers. No permits were

obtained to replace circuit breakers at the Subject Property .

8 . On September 15, 2014, d uring the course of replacing

the pool light fixtures, an employee of Cox P ools , Joshua Cook,

was electrocuted. The precise cause of the electrocution was

not established, though no plausible basis exists for it being

related to anything other than the replacement of the pool

lights.

9 . After a period of several days following the accident

involving Mr. Cook, Respondent returned to the Subject Property

to complete the job. He personally went into the pool , put the

light in the fixture and screwed it in, and left. The light was

thereafter wired and energized by a Cox Pool service technician.

10 . Given the circumstances, Mr. Patronis was not asked to

complete payment for the services performed. Nonetheless, it is

clear that, but for the accident, Mr. Patronis would have been

expected to pay for the services for which he contracted.

11 . The photographic evidence in this case demonstrates

that betw een September 15, 2014 , and some indeterminate time in

2016 , a circuit breaker was replaced in the electrical box

serving the Subject PropertyÓs p ool. The circuit breaker that

existed on September 15, 201 4, was a ground - fault circuit

interrupter (GFCI) . By 2016 , the GFCI has been replaced with an

arc - fault circuit interrupter (AFCI). Had Bay County performed

an inspection of the electrical box with the AFCI, it would not

have passed inspection.

12 . Respondent testified that he did not change the

circuit breaker, that C ox Pools keeps no inventory of circuit

breakers, and that service technicians d o not carry circuit

breakers on the trucks. Respondent acknowledged his

understanding that replacing a circuit breaker is a job for an

electrical contrac tor.

13 . At some time Ðrecently,Ñ Williams Electric was called

to the Subject Property, at which time Mr. Williams Ð swapped out

a breaker or two that was an incorrect type of breaker for the

application.Ñ Mr. Patronis was not clear whether an arc brea ker

was replaced with a ground breaker, or vice versa.

14 . P ool lights are sealed units. The light and its power

cord come as a single unit. To replace a pool light, the main

circuit breaker at the swimming pool sub - panel is turned off.

The wires to the existing light are disconnected (unscrewed)

from the circuit breaker. A lead is tied to the end of the

wire. The light fixture is removed from the pool opening, and

the wire is pulled th r ough the existing conduit from the pool

side. When the old fixture and wiring unit has been removed,

the lead is removed from the end of the old unitÓs wire, tied to

the wiring of the new light, and drawn back through the conduit

to the circuit breaker box. The new light is screwed into the

fixture, and then ener gized by connecting the wires back into

the existing circuit breaker.

15 . The point of connection of the light to the circuit

breaker is the Ðload sideÑ of the circuit.

16 . The experts who testified in this proceeding were all

competent and qualified in their fields, and had served in

leadership positions with the CILB ( Mr. Weller , Mr. Del Vecchio ,

and Mr. Lenois ) , the Electrical Contracting Licensing Board

( Mr. Tibbs) , or the Florida Swimming Pool Association

( Mr. Garner and Mr. Pruette ) . However, despite the relative

simplicity of the statutes at issue, t heir opinions as to the

allowable scope of work under a swimming pool contractor license

were at odds .

17 . Respondent acknowledged, and the evidence in this case

establishes, that electrical work associated with new p ool

construction is a task that is within the scope of work of an

electrical contractor. Initial construction involves

substantial work in bringing power from the main residential

panel to the new pool panel, installing a junction box and

circuit breakers , installing the wiring, and performing other

electrical work of significantly greater complexity than that

involved in the in s tallation of equipment into a pre - constructed

electrical system , which involve s only the disconnect and

reconnect of wires to the load side of a circuit breaker. As

discussed by Mr. Lenois, a pool contractor can contract for the

entire pool, but cannot self - perform the electrical components

pursuant to section 489.113.

18 . As to the replacement of existing equipment,

PetitionerÓs experts testified that pool light fixtures differ

from other pool - related equipment, e.g., pool pumps, in that the

light fixtures have direct contact with the water, whereas other

components do not. L ights are changed out in a submerged

condition, which makes them extremely dangerous. As stated by

Mr. Weller, Ð the whol e area of electricity around pools gets

complicated, between the bonding, the grounding, and all the

other stuff.Ñ

19 . It was Mr. WellerÓs opinion that , although pool

contractors can contract for pool light replacement, they cannot

self - perform the wor k. Rather, t he electrical work involved in

replacing pool light fixtures should be subcontracted to an

electrical contractor because Ðyou can make mistakes in

plumbing, and you can make mistakes in other areas, but with

electricity, it's pretty non - forgiv ing, especially if you're

around water.Ñ

20 . Mr. Lenois distinguished pool lights, which he

characterized as accessories since all pools do not have them,

from pool equipment, which includes pumps and filters, heaters,

specialty filters, and salt generators, which are mounted at the

pump and filter area.

21 . RespondentÓs experts were uniform in their opinions

that the act of disconnecting and reconnecting pool lights, as

well as other pool equipment, at the load side of a breaker does

not const itute electrical contracting. Mr. Pruette testified

that disconnecting and connecting a pool light at a circuit

breaker is not a difficult or complex task , and can be easily

performed with a little training. Mr. Del Vecchio testified

that the disconnection and connection of pool lights at the

circuit breaker is no different than that performed by a plumber

in replacing a hot water heater, or an air - conditioning

contractor in replacing a piece of air - conditioni ng equipment.

22 . Almost all of the experts either replaced pool lights

as part of their routine scope of work or knew of pool

contractors who did so, a practice that appears to be

commonplace . Furthermore, several of the witnesses worked in

areas of the state in which county building officials did not

require permits , electrical or otherwise, for the replacement of

pool lights, though the evidence in that regard was generally

hearsay . Mr . Lenois , who testified on PetitionerÓs behalf,

stated his opinion that reasonable people could differ as to the

meaning of the statutory language placing the Ðinstallation,

repair, or replacement of existing equipmentÑ within the scope

of work of a pool/spa contractor.

23 . The issue of the extent to which elec trical work is

subsumed within the statutory scope of work of a pool/spa

contractor of Ð installation, repair, or replacement of existing

equipment Ñ has been the topic of considerable discussion in the

industry. In that regard, the Florida Pool and Spa Association

has filed a Petition to Initiate Rulemaking with the C ILB

seeking, among other things, to Ðclarify[] the scope of a

certified pool contra ctorÓs license to include the installation,

repair, and replacement of pool equipment, up to and including

the electrical connection on the demand side of the power

source.Ñ There was no evidence as to the disposition of the

petition .

24 . Respondent argued that Florida Administrative Code

R ule 61G4 - 16 .001(9), which establishes that five percent of the

written certification exam for commercial pool/spa contractor s

is to cover Ðe lectrical w ork , Ñ is evidence that electrical work

is within the scope of work for a pool contractor. Electrical

work associated with pool construction includes grounding for

the pool shell itself . Thus, a degree of knowledge of basic

electrical work and codes would be warranted, regardless of

whether equipment electrical connections are within the scope of

work for a pool/spa contractor.

25 . The parties int ro duced a series of DBPR - approved

course outlines and instructor applications for a three - hour

class, sponsored by the Florida Pool and Spa Association,

entitled Ð Basic Electricity and the NEC [National Electric Code]

for Swimming Pools, Ñ and a one - hour class , sponsored by the

Florida Pool and Spa Association , entitled ÐBasic Electrical

Requirements for Pools.Ñ The course outline prepared by the

Florida Pool and Spa Association for each of the approved

courses provides, in bold font, that:

Instructor is aware that electrical work

does not fall within the scope of work of

licensed pool/spa contractors. No

instruction on how to perform electrical

work will take place. Course will provide

much needed understanding of the basics of

electricity as well as those aspects of the

NEC as they pertain to pools and spas.

Instructor will also emphasize the

importance of using a licensed electrical

contractor to perform required work.

CONCLUSIONS OF LAW

A. Jurisdiction

26 . The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

t he parties thereto pursuant to s ections 120.569 and 120.57(1),

Florida Statutes (201 6 ) .

B. Standards

27 . Section 489.129(1) provides, in pertinent part, that:

( 1) The board may take [disciplinary]

actions against any certificateholder or

registrant . . . if the contractor . . . or

business organization for which the

contractor is a primary qualifying

agent . . . is found guilty of any of the

following acts:

* * *

(c) Violating any provision of chapter 455.

* * *

(o) Proceeding on any job without obtaining

applicable local building department permits

and inspections.

28 . S ection 455.227(1)(o) provides that:

(1) The following acts shall constitute

grounds for which the disciplinary actions

specified in subsection (2) may be taken:

* * *

(o) Practicing or offering to practice

beyond the scope permitted by law or

accepting and performing professional

responsibilities the licensee knows, or has

reason to know, the licensee is not

competent to perform.

29 . Section 489.105(3)(j) defines a Ðcommercial pool/spa

contractorÑ as:

[A] contractor whose scope of work involves,

but is not limited to, the construction,

repair, and servicing of any swimming pool,

or hot tub or spa, whether public, private,

or otherwise, regardless of use. The scope

of work includes the installation, repair,

or replacement of existing equipment, . . .

and the installation of new pool/spa

equipment, . . . [and] the i nstallation of

package pool heaters . . . .

30 . Section 489.113(3) provides, in pertinent part, that

ÐA contractor shall subcontract all electrical . . . work,

unless such contractor holds a state certificate or registration

in the respective trade category . . . .Ñ

31 . Section 489.1195(1) provides , in pertinent part, that:

(a) All primary qualifying agents for a

business organization are jointly and

equally responsible for supervision of all

operations of the business organization; for

all field work at all sites; and for

financial matters, both for the organization

in general and for each specific job.

C. The Burden and Standard of Proof

32 . Petitioner bears the burden of proving the specific

allegations of fact that support the charges alleged in the

Administrative Complaint by clear and convincing evidence. §

120.57(1)(j), Fla . Stat . ; DepÓt of Banking & Fin. , Div. of Sec.

& Inv . Prot. v. Osborne Stern and Co. , 670 So. 2d 932 (Fla.

1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987); Pou v.

DepÓt of Ins. and Treasurer , 707 So. 2d 941 (Fla. 3d DCA 1998).

33 . Clear and convincing evidence Ðrequires more proof

than a Òpreponderance of t he evidenceÓ but less than Òbeyond and

to the exclusion of a reasonable doubt.ÓÑ In re Graziano ,

696 So. 2d 744, 753 (Fla. 1997). The clear and convincing

evidence level of proof

[E] ntails both a qualitative and

quantitative standard. The evidence must be

credible; the memories of the witnesses must

be clear and without confusion; and the sum

total of the evidence must be of sufficient

weight to convince the trier of fact without

hesitancy.

Clear and convincing evidence

requires that the evidence must b e

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 in 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.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994) (quoting, with

approval, Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA

1983)); see also In re Henson , 913 So. 2d 579, 590 (Fla. 2005).

"Although this standard of proof may be met where the evidence

is in conflict, it seems to preclude evidence that is

ambiguous." Westinghouse Electric Corp., Inc. v. S huler Bros.,

Inc. , 590 So. 2d 986, 989 (Fla. 1st DCA 1991).

34 . Section s 489.129(1)(o) and 455.227(1)(o) are penal in

nature, and must be strictly construed , with any ambiguity

construed against P etitioner. Penal statutes must be construed

in terms of their literal meaning, and words used by the

Legislature may not be expanded to broaden the application of

such statutes. Elmariah v. DepÓt of Bus. & ProfÓ l Reg . , 574 So.

2d 164, 165 (Fl a. 1st DCA 1990); see also Beckett v. DepÓt of

Fin. S ervs . , 982 So. 2d 94, 100 (Fla. 1st DCA 2008 ) ; Whitaker v.

DepÓt of Ins. , 680 So. 2d 528 , 531 ( Fla. 1st DCA 1996); Dyer v.

DepÓt of Ins. & Treasurer , 585 So. 2d 1009, 1013 (Fla. 1st DCA

1991).

D. Comparable Statutes

35 . The issue in this case must be considered in light of

the statutory definitions of Ð Class A air conditioning

contractor,Ñ ÐClass B air conditioning contractor,Ñ and

Ðmechanical contractorÑ established in sub sections

489.105 (3) (f), (g), and (i), respectively. The scope of work

for each of those contractors specifically allows those

contractors Ðto replace, disconnect, or reconnect power wiring

on the load side of the dedicated existing electrical disconnect

s witch.Ñ The scope of work for a Ðcommercial pool/spa

contractorÑ or a Ðresidential pool/spa contractor established in

sub sections 489.105 (3) (j) and (k) contains no such allowance.

36 . ÐThe doctrine of in pari materia is a principle of

statutory construction that requires statutes relating to

the same subject or object be construed together to harmonize

the statutes and to give effect to the Legislature's intent.Ñ

Taylor Morrison Servs. v. Ecos , 163 So. 3d 1286, 1291 (Fla. 1st

DCA 2015).

37 . The fact that the Legislature provided specific

authority for air - conditioning contractors and mechanical

contractors to perform disconnect/ re connect electrical services,

but did not provide such authority in the same statutory section

for pool/spa contractors to perform such electrical services , is

strong evidence that the Legislature did not intend for pool/spa

contractors to be excluded from the effect of section

489.113(3). See Bd. of Trs. v. Lee , 189 So. 3d 120, 126 - 127

(Fla. 2016).

E. Construction of the Statutes

38. Despite the imprecision of the pool/spa contractorsÓ

scope of work language in section 489.105, there is no

reasonable way to construe the statutory parameters as a whole

in a way that allows pool/spa contractors to perform electrical

work, regardless of its purported simplicity or of the

inclination of pool/spa contractors to perform such work.

39. When read together, as they must be, section 489.105,

including those sections pertaining to air - conditioning and

mechanical contractors, and section 4 89.113, which requires that

electrical work be subcontracted, cannot be logically construed

to allow pool/spa contractors to disconnect or reconnect power

wiring on the load side of a dedicated existing electrical

disconnect switch. Thus, there is no ambiguity that would

preclude the CILB from enforcing the statutory restriction

against pool/spa contractors self - performing e lectrical work,

including the disconnect/reconnect of replacement pool lights at

the circuit breaker.

F. Declaratory Statements

40 . Official recognition was taken of three declaratory

statements entered by the Department from 2007 to 2010.

41 . With r egard to the weight and effect of a declaratory

statement entered after the 1996 amendments to chapter 120, it

is well established that:

The purpose of a declaratory statement is to

address the applicability of a statutory

provision or an order or rule of the agency

in particular circumstances. See § 120.565,

Florida Statutes (1996). A party who

obtains a statement of the agency's position

may avoid costly administrative litigation

by selecting the proper course of action in

advance. Moreover, the reason ing employed

by the agency in support of a declaratory

statement may offer useful guidance to

others who are likely to interact with the

agency in similar circumstances. Another

party can expect the agency to apply the

rationale for its declaratory statem ent

consistently, or to explain why a different

application is required.

Chiles v. Dep Ót of State, Div. of Elec . , 711 So. 2d 151 , 154 - 155

(Fla. 1st DCA 1998) , approved Fla. D ep't of Bus. & Prof'l Reg. ,

Div. of Pari - Mutuel Wagering v. Inv. Corp. , 747 So. 2d 374 (Fla.

1999) .

4 2 . Having reviewed the declaratory statements for which

official recognition was taken, they are determined to have no

effect on the conclusions reached herein.

4 3 . The declaratory statement entered in In re: The

Petition for Declaratory Statement of David B. Levesque , Final

Order No. BPR - 2007 - 03277 (Apr. 24, 2007) , was filed by an

individual seeking to determine whether he could install a self -

contained circulating system in an existing bathtub. In his

petition, Mr. Levesque indicated that he Ðdo[es] not run any

electrical circuits to the bathtub for the motor or heater.

Those circuits are installed by a state licensed electrical

contractor.Ñ With regard to servicing, he indicated that his

Ðwork consists of the power run fro m the disconnect, whether it

is a circuit breaker or quick disconnect and leads to the hot

tub.Ñ The CILB stated the questions presented as : 1) Ð[i]s a

license required for installation of a self contained water

circulating system in a bathtubÑ ; and 2) Ð [ i]s a license

required to make electrical connections related to hot tubs. Ñ

As to the first question, the CILB provided that Ð[a]s long as

the installer is not tying into a potable water or sewer system

no license is required.Ñ As to the second question, the CILB

provided that Ð[t]he Construction Industry Licensing Board does

not have jurisdiction over interpretation of practice acts other

than Part I of Section 489 , F.S.Ñ Thus, as to the electrical

issue, the CILB expressed no opinion , since it does not have

jurisdiction over chapter 489, part II, r elating to electrical

contracting. Therefore, the declaratory statement expresses no

agency position on the issues in this case.

4 4 . The declaratory statement entered in In re: The

Petition for Declaratory Statement of James Flaherty , File

# 2009 - 09479 (Nov. 16, 2009) , was filed by an individual seeking

to determine whether a certified plumbing contractor Ðis

permitted to condemn, remove and replace a heating element &

thermostat on an electric water heater. Ñ The CILB answered the

question in the affirmative, stating Ð that certified or

registered plumbing contractors may condemn, remove and replace

a heating element and thermostat on an electric water heater

because such services are within the scope of their

certification or registration.Ñ The declaratory statement makes

no statement regarding whether Mr. Flaherty would be authorized

to perform a disconnect or reconnect of the hot water heater at

the circuit breaker. Therefore, the declaratory statemen t

expresses no agency position on the issues in this case.

4 5 . The declaratory statement entered in In re: The

Petition for Declaratory Statement of Richard P. Conway, et al. ,

File # 2010 - 11969 (Dec. 27, 2010) , was filed by an individual

seeking to determine whether the scope of work for a certified

pool servicing contractor included Ð adding a pool heating system

Î a solar type that connects to the existing pool filtration

system.Ñ The CILB determined that such work is within the pool

servicing contractorÓs scope of work. The declaratory statement

makes no statement regarding whether such a solar pool heater

connects to the home electrical system, or whether Mr. Conway

would be authorized to perform a disconnect or reconnect of a

solar heating system at a circuit breaker. Therefore, the

declaratory statement expresses no agency position on the issues

in this case.

G . Compensation

4 6 . Petitioner has proven by clear and convincing evidence

that Respondent and/or Cox Pools contracted, for compensation,

with Mr. Patronis.

4 7 . Section 489.105(3) provides, in pertinent part, that

Ð Ò [c] ontractor Ó means . . . the person who, for compens ation,

undertakes to, submits a bid to, or does himself or herself or

by others . . . [work within] the job scope described in one of

the paragraphs of this subsection. Ñ Section 489.105(6) provides

that :

The attempted sale of contracting services

and the negotiation or bid for a contract on

these services also constitutes contracting.

If the services offered require licensure or

agent qualification, the offering,

negotiation for a bid, or attempted sale of

these services requires the corresponding

licensur e.

4 8 . Although R espondent did not collect the $4,681.17 set

forth in the contract for services, it is clear that, but for

the unique and tragic events that occurred at the S ubject

Property, payment of such amount at the completion of the work

was expected by both parties. Therefore, the work that forms

the basis for the A mended Administrative Complaint is subject to

c hapter 489.

H . Amended Administrative Complaint

C ount One

4 9 . Count One of the Amended Administrative Complaint

alleges that Respondent violated section 489.129(1)(o) by

proceeding on a job without obtaining applicable local building

department permits and inspections . G iven the admissible

testimony and evidence presented at the final hearing ,

Petitioner proved, by clear and c onvincing evidence , that

Respondent failed to obtain an electrical permit from the Bay

County Building Department .

50 . The evidence is undisputed that Bay County required an

electrical permit for the replacement of pool lights and , in

particular , for the act of disconnecting, reconnecting, and

energizing such lights. There was no evidence to suggest that

Respondent sought to engage Bay County in an effort to explain

his position, or persuade Bay County that it was misconstruing

the statutes. Rat her, Respondent proceeded at its own risk, on

the assumption that his construction of the statutes was

correct.

C ount Two

51 . Count Two of the Amended Administrative Complaint

alleges that Respondent violated section 489.227(1)(o) by

practicing , or offering to practice , beyond the scope permitted

by law , or accepting and performing professional

responsibilities the licensee knows, or has reason to know, the

licensee is not competent to perform. Count Two is predicated

on allegations of two separ ate acts, the first being whether a

pool contractorÓs scope of work includes installation of pool

lights with wiring disconnect and reconnect , and the second

being whether Respondent replaced any circuit breaker, an act

that was stipulated as being beyond the scope of a pool and spa

contractor.

Pool Lights

5 2 . Given the admissible testimony and evidence presented

at the final hearing, Petitioner proved, by clear and convincing

evidence, that Respondent operated beyond the scope of his pool

contractorÓs license by disconnecting, connecting, and

energizing the pool lights replaced at the S ubject P roperty.

5 3 . The requirement in section 489.113(3) that a

contractor subcontract all electrical work, combined with th e

lack of any allowance for such electrical work to be performed

under the scope of the pool contractorÓs license established in

section 489.1 05 , leads to the conclusion that the requirement is

not so ambiguous as to militate against its enforcement.

Circuit Breaker

5 4 . Given the admissible testimony and evidence presented

at the final hearing, Petitioner failed to prove, by clear and

convincing evidence, that Respondent replaced a circuit breaker

in the Subject PropertyÓs breaker box.

5 5 . The only evidence that Respondent was responsible for

changing circuit breakers at the Subject Property consisted of

photographs introduced as Exhibits G1 and G2. 3 /

5 6 . During his deposition, it was evident that

Mr. Patronis was vague as to the photographs that comprised

Exhibits G1 and G2, initially testifying that ÐI donÓt know when

they were taken and I donÓt know who took them.Ñ It was not

until being prompted by counsel for Petitioner , who was

apparently the photographer, tha t he and ÐD an,Ñ had been at

Mr. PatronisÓ home to take pictures , that Mr. Patronis was able

to identify the breaker box depicted in Exhibits G1 and G2.

However, it was clear that he had not undertaken close

examination to ascertain whether the individual breaker depicted

in the photograph was the one that existed after Respon dent

completed the work at the S ubject Property in 2014 .

5 7 . The date on which Exhibits G1 and G2 were taken was

not established, with the only evidence being that of Mr. Brown,

as PetitionerÓs corporate representative, who understood that

they were taken Ðsometime sev eral months ago but sometime this

year.Ñ

5 8 . The allegation in this case is that Respondent changed

a circuit breaker within several days of the September 2014

incident. The only way to establish that fact is by inference,

i.e., that the AF C I circuit breaker that was in the panel in

2016 when the photographs were taken was installed by Respondent

in 2014 , based on Mr. PatronisÓ testimony that , to his

knowledge, no work had been done on the panel during the

interval. The evidence simply is no t strong enough to support

that inference. T he photograph s, taken well after the alleged

event , are not clear and convincing evidence that Respondent

installed, or was responsible for the installation of the AFCI

breaker depicted in those photographs.

I . Unadopted Rule

5 9 . Respondent Ós Amended Petition for Formal

Administrative Hearing, filed on July 5, 2016, asserted that

PetitionerÓs position in this proceeding constituted the

application of an unadopted rule. That issue was not set forth

in the JPS as an issue of fact or law remaining for disposition .

The failure to identify issues of fact or law remaining to be

litigated in a prehearing stipulation constitutes a waiver and

elimination of those issues. See Palm Beach Polo Holdings, Inc.

v. Brow ard Marine, Inc. , 174 So. 3d 1037 (Fla. 4th DCA 2015).

60 . The issue of whether the Department relied on an

unadopted rule was not argued at the final hearing.

Nonetheless, Respondent , in the Statement of the Issues section

of his Proposed Recommended Order, again raised as an issue

Ðwhether Petitioner impermissibly based this prosecution on an

unadopted rule . Ñ The Proposed Recommended Order does not

otherwise argue the merits of that issue. Given RespondentÓs

apparent efforts to raise and rely upon the issue of whether the

Amended Administrative Complaint was based on the application of

an unadopted rule, an evaluation is warranted. 4 /

61 . Section 120. 57(1 ) (e) provides, in pertinent part,

that:

(e)1. An agency or an administrative law

judge may not base agency action that

determines the substantial interests of a

party on an unadopted rule or a rule that is

an invalid exercise of delegated legislative

authority. This subparagraph does not

preclude app lication of valid adopted rules

and applicable provisions of law to the

facts.

2. In a matter initiated as a result of

agency action proposing to determine the

substantial interests of a party, the

partyÓs timely petition for hearing may

challenge the pr oposed agency action based

on a rule that is an invalid exercise of

delegated legislative authority or based on

an alleged unadopted rule. For challenges

brought under this subparagraph:

a. The challenge may be pled as a defense

using the procedures set forth in

s. 120.56(1)(b).

b. Section 120.56(3)(a) applies to a

challenge alleging that a rule is an invalid

exercise of delegated legislative authority.

c. Section 120.56(4)(c) applies to a

challenge alleging an unadopted rule.

d. This subpa ragraph does not preclude the

consolidation of any proceeding under

s. 120.56 with any proceeding under this

paragraph.

6 2 . An Ðunadopted ruleÑ is defined as Ðan agency statement

that meets the definition of the term Òrule,Ó but that has not

been adopted pursuant to the requirements of s. 120.54.Ñ

§ 120.52(2 0 ) , Fla. Stat. A ÐruleÑ is defined , in pertinent

part, as Ðeach agency statement of general applicability that

implements, interprets, or prescribes law or policy or describes

the procedure or practice requirements of an agency and includes

any form which imposes any requirement or solicits any

information not specifi cally required by statute or by an

existing rule.Ñ § 120.52 (16), Fla. Stat.

6 3 . Respondent did not introduce evidence sufficient to

establish that PetitionerÓs interpretation of chapter 489 , as

discussed herein , Ðimposes any requirement . . . not

specifically required by statute.Ñ Furthermore, there was no

evidence to support a conclusion that the issuance of the

Amended Administrative Complaint was a statement Ð of general

applicability that implements, interpre ts, or prescribes law or

policy or describes the procedure or practice requirements of an

agency .Ñ Thus, PetitionerÓs application of provisions of

chapter 489 as requiring a pool/spa contractor to subcontract

the electrical work involved in replacing pool lights is not an

unadopt ed rule pursuant to section 120. 57(1)(e)1.

J . P enalty

6 4 . Respondent is subject to disciplinary action by the

CILB pursuant to section 489.129.

6 5 . Section 455.2273 requires each board within the

Department to adopt, by rule, disciplinary guidelines applicable

to each ground for disciplinary action that may be imposed by

the board.

6 6 . Section 489.129(4) provides that:

(4) In recommending penalties in any

proposed recommended final order, the

department shall follow the penalty

guidelines established by the board by rule.

The department shall advise the

administrative law judge of the appropriate

penalty, including mitigating and

aggravating circumstances, and the specific

rule citation.

6 7 . Petitioner adopted Florida Admin istrative Code Chapter

61G4 - 17 to establish the CILBÓs disciplinary guidelines, which

guidelines include penalty ranges and aggravating and mitigating

circumstances.

6 8 . There was no evidence adduced at the final hearing to

suggest that th e violations alleged in the Amended

Administrative Complaint were repeat offenses. Thus, they are

reviewed as first offenses.

6 9 . The penalties established for a first violation of

se ction 489.129(1)(o), for:

Proceeding on any job without obtaining

applicable local building department permits

and/or inspections.

* * *

3. Job finished without a permit having

been pulled, or no permit until caught after

job, or late permit during the job resulting

in missed inspection or inspections.

range from a $ 1,000 fine to a $5,000 fin e and probation .

Fla. Admin. Code R. 61G 7 - 17. 00 1 ( 1 )( o) .

70 . The disciplinary guidelines established by the CILB do

not include a specific penalty for a violation of section

455. 227 (1)(o) for Ð[p]racticing or offering to practice beyond

the scope permitted by law .Ñ However, rule 61G4 - 17.001(6)

provides that:

The absence of any violation from this

chapter shall be viewed as an oversight, and

shall not be construed as an indication that

no penalty is to be assessed. The guideline

penalty for the offense most closely

resembling the omitted violation shall

apply.

71 . R ule 61G4 - 17.001(1)(i)2. establishes penalties for a

first violation of sections 489.113 and 489.117 for

Ð[c]ontracting beyond scope of license, safety haza rd is

created . Ñ The conduct described underlying the penalty

guideline established by rule 61G4 - 17.001(1)(i)2. is

substantively identical to that alleged and proved in this case ,

thus allowing its application . The penalties established range

from a $4,000 fine and probation or suspension to an $8,000 fine

and probation, suspension , or revocation.

7 2 . Rule 61G4 - 17.00 2 establishes aggravating and

mitigating circumstances as follows :

Circumstances which may be considered for

the purposes of mitigati on or aggravation of

penalty shall include, but are not limited

to, the following:

(1) Monetary or other damage to the

licenseeÓs customer, in any way associated

with the violation, which damage the

licensee has not relieved, as of the time

the penalty is to be assessed. (This

provision shall not be given effect to the

extent it would contravene federal

bankruptcy law.)

(2) Actual job - site violations of building

codes, or conditions exhibiting gross

negligence, incompetence, or misconduct by

the licen see, which have not been corrected

as of the time the penalty is being

assessed.

(3) The danger to the public.

(4) The number of complaints filed against

the licensee.

(5) The length of time the licensee has

practiced.

(6) The actual damage, physical or

otherwise, to the licenseeÓs customer.

(7) The deterrent effect of the penalty

imposed.

(8) The effect of the penalty upon the

licenseeÓs livelihood.

(9) Any efforts at rehabilitation.

(10) Any other mitigating or aggravating

circumstanc es.

7 3 . The primary aggravating circumstance present in this

case was the potential danger to the public, as evidenced by the

electrocution of Mr. Cook , although the precise cause of that

event was unexplained . The act of disconnecting and

reconnecting wires to the circuit breaker is a relatively simple

and not inherently dangerous act , particularly given the sealed -

unit nature of pool lights, but clearly had a tragic outcome

here.

7 4 . Mitigating circumstances include the fact that

Respondent has been in business for years with no prior

discipline.

7 5 . Of greater cause for mitigation is the fact that

replacement of pool lights, including disconnect and reconnect

to the load side of the breaker, is widely understood by those

engaging in pool contracting to be within the scope of a pool

contractorÓs license. T he experts for both parties , who were

skilled and experienced, and served i n governmental an d industry

leadership positions, either engaged in the practice under the

scope of their licenses, or knew of those who did. There was an

acknowledgement by Mr. Lenois that reasonable people could

differ as to the scope of the allowable services. The evi dence

suggests that this case is the first in which the Department has

taken enforcement action against a pool contractor for replacing

pool lights, despite evidence that such has been performed

countless times by countless licensees over a period of many

years. The publicity of Mr. CookÓs demise no doubt stirred the

Department to action. Nonetheless, t he fact that Respondent was

acting consistently with a widespread, though incorrect,

practice is significant evidence of mitigation that may be

considered under r ule 61G4 - 17.002(1 0 ). Such mitigation would

apply to the proven elements of both Count One and Count Two .

7 6 . Petitioner has requested that RespondentÓs commercial

pool/spa contractor licenses be suspended for 90 days, followed

by a period of probation for four years ; and that Respondent be

required to complete an approved, live seven - hour continuing

education course , in addition to any otherwise required

continuing education, with an emphasis on c hapter 489 and t he

rules enacted pursuant thereto.

7 7 . PetitionerÓs penalty request was based upon Respondent

being found to have violated each element of the counts brought

against him. However, the evidence did not establish that

Respondent replaced a circuit breake r, an act that would have

warranted a more severe penalty, since it was well understood

that such was outside of the scope of a pool contractorÓs

license.

7 8 . The undersigned concludes that mitigation is

appropriate for the reasons set forth herein. Given that the

incident regarding Mr. Cook was, based on the lack of evidence

to the contrary, an isolated, unusual, and unexplained

occurrence, the mitigating circumstances outweigh the

aggravating circumstance. In addition, g iven that a significant

elem ent of C ount Two was not proven, a penalty less than that

requested by Petitioner is appropriate. G iven the common

understanding of those in the industry as described in

paragraphs 21, 22, and 75, a suspension of RespondentÓs license

is not warranted. However, a penalty at the low end of the

established range remains appropriate .

7 9 . Section 455.227(3) provides that Ð[i]n addition

to . . . discipline imposed for a violation of any practice act,

the board . . . may assess costs related to the investigation

and prosecution of the case excluding costs associated with an

attorneyÓs time.Ñ Although Petitioner requested the assessment

of co sts in the amount of $477.54 in its Proposed Recommended

Order, there was no evidence provided to substantiate that

request.

RECOMMENDATION

Upon consideration of the facts found and conclusions of

law reached, it is

RECOMMENDED that the Construction Industry Licensing Board

enter a f inal o rder finding that Res pondent violated s ection

489.129(1)(o) , Florida Statutes , as alleged in Count One ; and

sections 455. 227 (1)(o) and 489.129(1)(c) , Florida Statutes, as

alleged in Count Two, but only as that count pertains to the

replacement of pool lights . It is further recommended that :

a. Respondent be subject to a fine of $1 , 000 for a first

violation of section 489.129(1)(o) ;

b. Respondent be subject to a fine of $ 4 , 000, and that

RespondentÓs commercial pool/spa contractor licenses be subject

to a period of probation for two years for a first violation of

section 455. 227 (1)(o) and section 489.129(1)(c) ; and

c. Respondent be required to complete an approved, live

seven - hour continuing education course , in addition to any

otherwise required continuing education, with an emphasis on

chapter 489 and the rules enacted pursuant thereto.

DONE AND ENTERED this 5 th day of October , 2016 , in

Tallahassee, Leon County, Florida.

S

E. GARY EARLY

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 5 th day of October, 2016 .

ENDNOTES

1/ The sequence of events leading to the referral of this case

to DOAH is described in RespondentÓs Motion to Dismiss Count One

of Amended Administrative Complaint, and is not otherwise

supported by the record. The allegations are referenced here in

merely to establish the background as to how the Amended

Administrative Complaint came to be at issue . The background

information is not material to any disputed issue of fac t, and

should not be considered to be a finding of fact upon which any

conclusion or recommendation is based.

2/ Petitioner initially offered Mr. Weller as an expert in

c hapter 489, p art I, Florida Statutes , and permitting. Counsel

for Respondent objected to Mr. Weller being offered to opine as

to how the statute and the DepartmentÓ s rules, or the F lorida

Building Code should be interpreted , or otherwise testify

regarding questions of law, citing to Seibert v. Bayport Beach &

Tennis Club Association , 573 So. 2d 889 (Fla. 2d DCA 1990). A

discussion was held in which RespondentÓs position was upheld.

However, a specific r uling on the motion was reserved, and a

standing objection allowed , pending review of the case cited by

Respondent . Having reviewed the case cited, and subsequent

cases standing for the same proposition ( see , e.g. , Gyongyosi v.

Miller , 80 So. 3d 1070 (Fla. 4th DCA 2012; Lindsey v. Bill

Arflin Bonding Agency , 645 So. 2d 565 (Fla. 1st DCA 1994) ), the

undersigned agrees with Respondent. Thus, any testimony

regarding the interpretation of the Florida Building Code, or

the Bay County building ordinances, is specifically found to

have no weight in this proceeding.

3 / The authenticity of photographic Exhibits G1 and G2 was

discussed during the hearing. Mr. Patronis, whose testimony was

offered by deposition, and had thus not been reviewed during the

final hearing, testified that the photographs were generally an

accurate representation of the conditions at his house when the

photographs were taken in 2016 . However, E xhibits G1 and G2

were the subject of an objection by Respondent based on the fact

that Mr. Patronis did not take the photographs and could not

otherwise authenticate them.

It is well established that Ð [i]n order to lay the

necessary foundation for a photograph, it is usually necessary

to establish that the photograph is a fair and accurate

representation of the scene that it depicts . A ny witness with

knowledge that [the photograph] is a fair and accurate

representation may testify to the foundational facts; the

photographer need not testify.Ñ Charles W. Ehrhardt, EhrhardtÓs

Florida Evidence , §401.2 (2016 Edition).

Mr. PatronisÓ testimony was sufficient to authenticate the

photograph only to the extent that it depicted the pool breaker

box at the Subject Property in 2016 . It was not sufficient to

establish, or to allow an inference, that the photograph

depicted the breaker box after Respondent completed the 2014

pool work, or even whether the photograp h was taken before or

after a breaker was Ð swapped out Ñ by Williams Electric. Thus,

Exhibits G1 and G2 are accepted as depicting the pool breaker

box at some recent time and for no other purpose.

4/ Petitioner argues that the 2016 amendment s to section

120.57(1) (e) allowing for a challenge to an unadopted rule

cannot be applied in this case, because they create new,

substantive rights on the part of Respondent by establishing a

new ÐdefenseÑ that di d not previously exist.

The 2016 amendment of section 120.57(1)(e) Ðwas designed to

protect regulated persons from an agencyÓs use of an invalid or

unadopted rule in enforcement, licensing or other § 120.57

proceedings .Ñ H. French Brown, IV and Larry Seller s , The 2016

Amendments to the APA: Say Goodbye to United Wisconsin Î and

More , Fl a. Bar J . , Sept . /Oct . 2016, at 46. It is well

e stablished that, even before the 2016 amendments to chapter

120, Ð[a]n agency may not base agency action that determines the

substantial interests of a party on an unadopted rule.Ñ

Amerisure Mut. Ins. Co. v. Fla. Dep't of Fin. Servs. , 156 So. 3d

520, 531 (Fla 1st DCA 2015). The 2016 amendments to sections

120.57 create no new substantive rights, but serve only to

establish a procedure by which a substantially affected party

may enforc e pre - existing rights against the application of an

unadopted rule. Thus, the 2016 amendments to section

120.57(1)(e) are procedural in nature and may be applied in this

case.

PetitionerÓs reliance on Smiley v. State , 966 So. 2d 330

(Fla. 2007) , and Arrow Air v. Walsh , 645 So. 2d 422 (Fla. 1994) ,

is misplaced. Both of those cases involved the creation of

entirely new causes of action that could be raised as a defense

( the creation of a statutory Ðstand your groundÑ defense in

abrogation of the common law duty to retreat as discussed in

Smiley ) or as a separate cause of action ( creation of a new

cause of action to protect private employees who report or

refuse to assist employers who violate laws enacted to protect

the public , found to directly affect substantive rights and

liabilities because a co mmon law tort for retaliatory discharge

ha d not been recognized in Florida as discussed in Arrow Air ) .

Both enactments created substantive rights, liabilities, or

duties that di d not previously exist. Such substantive rights

are not created by the 2016 amendments to section 120.57.

COPIES FURNISHED :

Frederick R. Dudley, Esquire

Dudley, Sellers and Healy, P.L.

Suite 301

3522 Thomasville Road

Tallahassee, Florida 32309

(eServed)

Clayton T. Osteen, Esquire

Department of Business

and Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399

(eServed)

Daniel S. Brackett, Esquire

Department of Business

and Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

Robert Antonie Milne, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

(eServed)

Daniel Biggins, Executive Director

Construction Industry Licensing Board

Department of Business

and Professional Regulation

Capital Commerce Center

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

Jason Maine, General Counsel

Department of Business

and Professional Regulation

Capital Commerce Center

2601 Blair Stone Road

Tallahassee, Florida 32399 - 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 recommended order should be filed with the agency that

will issue the final order in this case.