16-007146 Lenard Handsel vs. Department Of Business And Professional Regulation, Electrical Contractors' Licensing Board Status: Closed Recommended Order on Thursday, March 23, 2017.

Summary: Petitioner failed to provide persuasive evidence of his capacity and intent to adequately supervise the additional business organization he seeks to qualify, warranting denial of his application for qualification.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LENARD HANDSEL,

Petitioner,

vs. Case No. 16 - 7146

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION,

ELECTRICAL CONTRACTORS'

LICENSING BOARD,

Respondent.

_______________________________/

RECOMMENDED ORDE R

This case came before Administrative Law Judge John G.

Van Laningham for final hearing on March 3 , 201 7 , in Miami ,

Florida.

APPEARANCES

For Petitioner: Giorgio L uigi Ramirez , Esquire

Giorgio L. Ramirez, P. A.

7300 North Kendall Drive, Suite 520

Miami , Florida 33156

For Respondent: Deborah Bartholow Loucks , Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

STATEMENT OF THE ISSU E

The issue in this case is whether Petitioner has provide d

persuasive evidence of his capacity and intent to adequately

supervise the additional business organization he seeks to

qualify, the failure of which would warrant Respondent's denial

of Petitioner's application for qualification .

PRELIMINARY STATEMENT

By Notice of Intent to Deny dated October 12, 2016 ,

Respondent Department of Business and Professional Regulation,

Electrical Contractors' Licensing Board , notified Petitioner

Lenard Handsel that it intended to deny his application to

qualify an additional business organization , based on a finding

that Mr. Handsel ha d failed to present persuasive evidence of

his capacity and intent to perform the duties of a qualifying

agent.

Mr. Handsel timely requested a formal hearing, and , on

December 2 , 201 6 , Respondent referred the matter to the Division

of Administrative Heari ngs ("DOAH") , where an A dministrative L aw

J udge was assigned to conduct a formal hearing.

The in - person hearing took place at the Office of the

Attorney General ("OAG") in Miami as scheduled on March 3, 2017 .

Shortly before the start ing time, DOAH contacted the parties to

advise that due to the recent relocation of the Miami OAG, the

Amended Notice of Hearing mistakenly directed participants to

the wrong (former) address, and that everyone should proceed to

the OAG's new address a few bl ocks away. This regrettable, but

minor, inconvenience prevented no one from attending the

hearing, and in fact everyone except Mr. Handsel arrived at the

correct location (which is within walking distance of the old

office) at or before 9:00 a.m.

Mr. Han dsel had gone to the OAG's former office pursuant to

the Amended Notice of Hearing , which was reasonable . Upon being

notified of the change of address, however, he refused to head

over to the co rrect location, which was not reasonable . The

undersigned ex plained to Mr. Handsel's attorney (who was present

at the hearing site) that he was willing to wait a reasonable

amount of time for Petitioner to travel the short distance

between the old and new offices, or alternatively to allow

Mr. Handsel to participat e by telephone, but not to cancel or

continue the hearing, as both Respondent's counsel and the

undersigned had traveled nearly 500 miles ( from Tallahassee ) for

the proceeding. Mr. Handsel declined both options. The

undersigned made it very clear that th e hearing would proceed

without Mr. Handsel in attendance, if he elected not to accept

one of the two reasonable options on offer. Mr. Handsel

expressly rejected these options, and so the undersigned

convened the hearing without him.

No witnesses testi fied. Respondent's Exhibit s 1 through 7 ,

which include Mr. Handsel's deposition, were received in

evidence . Neither party ordered the final hearing transcript .

Proposed r ecommended o rders were due on March 14, 2017, and each

party timely filed one.

Unless otherwise indicated, citations to the official

statute law of the state of Florida refer to Florida Statutes

201 6 , except that all references to statutes or rules defining

disciplinable offenses or prescribing penalties for committing

such offenses are to the versions that were in effect at the

time of the alleged wrongful acts.

FINDINGS OF FACT

1. Petitioner Lenard Handsel (" Handsel ") is a certified

electrical contractor holding licenses authorizing him to qualify

two business organizations, O & J Electrical Corp. and HF

Electric, Inc. Handsel would like to qualify an additional

business organization named CMG Electrical Contractor, Inc.

("CMG"). To accomplish this, Handsel must submit an application

to the Electrical Contractors' Licensing Boa rd (the "Board"),

together with "evidence of supervisory ability and financial

r esponsibility of [the business] organization." § 489.521(8),

Fla. Stat. On or about May 9, 2016, Handsel submitted his

application (the "Application") , using the appropriate form, which

is titled "Certified Electrical Workshe et " (the "Form").

2. The Board's authority to deny a request to qualify an

additional business is limited to t hree grounds: (a) the

licensee's failure to provide the information req uired under

section 489.521(8) , Florida Statutes ; (b) "a finding that such

information or evidence as is supplied is incomplete or

unpersuasive in showing the licensee's capacity and intent to

[ adequately supervise each business organization ] " ; and (c) the

licensee's failure "to adequately supervise the operations of a

business organization in accordance with s. 489.522(1) ." Any of

these is sufficient to support an adverse determination. See

§ 489.521(8), Fla. Stat.

3. On Octobe r 12, 2016, the Board issued a notice informin g

Handsel that it intended to deny the Application based on a

finding that he had furnished unpersuasive proof of his capacity

and intent to adequately supervise CMG. Be cause Handsel offered

little, if any, additional supporting evidence at hearing, the

ultimate factual issue in dispute is whether the information in

his Application persuasively shows the requisite capacity and

intent.

4. T urning, then, to the information Handsel presented, t he

Form , which he completed, contain s six yes/no background

questions, which ask an applicant about potential red flags in his

past ( such as criminal convictions ) , and requires an explanation

of each "yes" answer , together with suppor ting documents as

appropriate. In his Application, Handse l answered "yes" four

times, di sclosing a criminal conviction; a n adverse civil

judgment ; an unfavorable administrative determination; and a

project that he had begun, which a third party needed to complete .

5. Handsel did not provide much of an explanation for any of

these negative items. He was the most forthcoming (relatively

speaking) about the "Shake - a - Leg Project" in Coconut Grove that

went bad, in 2010, when an electrician under his supervision

failed to place conduits in certain columns before concrete was

poured , which resulted in increased costs from remedial work .

Handsel fired the electrician , whom he blamed for the mess, and

refused to pay him. The electrician then sued Handsel , obtain ing

a judgmen t that Handsel never paid, which led to the imposition of

administrative discipline against Handsel's license. In

deposition testimony for this case, Handsel made it clear he had

no intention of ever paying the man and exp ressed indignation at

the idea of satisfying the judgment.

6. In the Application, Handsel stated that he had been

convicted of lewd and lascivious "inappropriate touching" in 1986,

for which he was sentenced to ten years' probation and required to

under go counseling. Before the Board, Handsel testified that the

victim of this crime was a 25 - year - old adult , and in deposition he

clarified that the offense was a misdemeanor. This is essentially

all the information av ailable in the record regarding Handsel 's

criminal conviction.

7. In deposition, Handsel was confronted with a handful of

civil judgments, ten or so, against him or his business, which had

not been disclosed in the Application. Handsel denied knowledge

of these judgments, though not very credibly, and his failure to

disclose them arguably constituted a material misrepresentation by

omission. In its Notice of Intent to Deny, however, the Board did

not allege with particularity that Handsel had made a material

mis representation in his Application, see section 120.60(3),

Florida Statutes, and arguably (if anomalously) section 489.521(8)

does not unambiguously authorize the denial of a request to

qualify on the basis of a material omission unless (as did not

happen here) the Board ha s deemed the information provided by the

applicant incomplete . To be fair, the Board apparently was

unaware of the other judgments until finding out about t hem during

this litigation, but the better practice would have been to seek

leave to amend the Noti ce of Intent to Deny based on the newly

discovered information. At any rate, it is unnecessary to

consider the undisclosed judgments in making the ultimate factual

determination in this case , and the undersigned has not done so .

8. Handsel also failed to disclose at least one final

administrative order imposing discipline against him. For the

reasons stated in the preceding paragraph, however, it is arguably

improper to consider this particular omission, and it is

unnecessary to do so. The undersigned, therefore, has placed no

weight on the undisclosed discipline.

9. Looking solely at the negative items that Handsel did

disclose in his Application, especially the circumstances

surrounding, and the fallout from, the "Shake - a - Leg Pro ject," the

undersigned finds that there is good reason to doubt Handsel's

supervisory ability . More important, it is determined, as a

matter of ultimate fact, that ÏÏ in view of the negative items

disclosed in the Application ÏÏ the information Handsel has

pr esented is unpersuasive in showing his capacity and intent to

comply with the requirements of section 489.521(8).

CONCLUSIONS OF LAW

10 . DOAH has personal and subject matter jurisdiction in

this proceeding pursuant to s ections 120.569 and 120.57(1) .

1 1 . As the applicant f or a license or similar form of

authorization required by law, see section 120.52(10) , Handsel

bears the ultimate burden of proving by a preponderance of the

evidence that the Board should approve his Application .

Fla. Dep't of Transp. v. J.W.C. Co., Inc. , 396 So. 2d 778 (Fla.

1st DCA 1981); § 120.57(1)(j), Fla. Stat.

12. Section 489.521 provides in pertinent part as follows:

( 8) Each qualifying agent shall pay the

department an amount equal to the original

fee for certification or registration to

qualify any additional business

organizations. If the qualifying agent for

a business organization desires to qualify

additional busin ess organizations, the board

shall require him or her to present evidence

of supervisory ability and financial

responsibility of each such organization.

Allowing a licensee to qualify more than one

business organization shall be conditioned

upon the licen see showing that the licensee

has both the capacity and intent to

adequately supervise each business

organization in accordance with

s. 489.522(1). The board shall not limit

the number of business organizations which

the licensee may q ualify except upon the

licensee' s failing to provide such

information as is required under this

subsection or upon a finding that such

information or evidence as is supplied is

incomplete or unpersuasive in showing the

licensee ' s capacity and intent to comply

with the requir ements of this subsection.

. . . Failure of the responsibility to

adequately supervise the operations of a

business organization in accordance with

s. 489.522(1) shall be grounds for denial to

qualify additional business organizations.

13. As discussed abo ve, the undersigned determined that

the information or evidence which Handsel supplied is

unpersuasive in showing his capacity and intent to comply with

the requirements of section 489.521(8 ) . As a matter of law,

this failure of proof constitutes groun ds to deny Handsel's

request to qualify an additional business organization.

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 final order denying Handsel's Application for

authorization to qualify an additional business organization .

DONE AND ENTERED this 23rd day of March , 20 1 7 , in

Tallahassee, Leon County, Florida.

S

___________________________________

JOHN G. VAN LANINGHAM

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

ww w.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of March , 20 1 7 .

COPIES FURNISHED :

Giorgio L uigi Ramirez, Esquire

Giorgio L. Ramirez, P. A.

7300 North Kendall Drive, Suite 520

Miami, Florida 33156

(eServed)

Deborah Bartholow Loucks , Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

(eServed)

Jason Maine , General Counsel

Department of Business and

Professional Regulation

Capital Commerce Center

2601 Blair Stone Road

Tallahassee, F lorida 32399 - 2202

(eServed)

Ruthanne Christie , Executive Director

Electrical Contractors' L icensing Board

Department of Business and

Professional Regulation

Capital Commerce Center

2601 Blair Stone Road

Tallahassee, F lorida 32399

( 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.