Judges: Robert A. Butterworth Attorney General
Filed Date: 8/9/1989
Status: Precedential
Modified Date: 7/5/2016
Mr. Paul Morgan Chairman Electrical Contractors' Licensing Board Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0750
Dear Mr. Morgan:
You have asked substantially the following questions:
1. Under the provisions of Part II, Ch.
489 , F.S. (1988 Supp.), is an individual engaged in alarm system contracting under a local license subject to prosecution for engaging in unlicensed alarm system contracting?2. Is an individual performing alarm system contracting under a locally issued unlimited electrical contractor's license exceeding the scope of his license?
3. What license is required by Part II, Ch.
489 , F.S. (1988 Supp.), for an individual to lawfully engage in alarm system contracting?
In sum, I am of the following opinion:
In the absence of a clear statutory proscription, the Electrical Contractors' Licensing Board is not authorized to prosecute an individual engaging in alarm system contracting under a locally issued license in a limited geographical area. However, in light of the conflicting language contained in Part II, Ch.
489 , F.S. (1988 Supp.), regarding the registration of alarm system contractors, the board may wish to seek a declaratory judgment or legislative clarification.
As your questions are interrelated, I will address them together.
The Legislature has declared that alarm system contracting is an important and potentially dangerous service if not properly provided, and, therefore, must be regulated in the interest of public health, safety, and welfare.1 Through Part II, Ch.
Section
Any person who desires to engage in electrical or alarm system contracting on a statewide basis shall, as a prerequisite thereto, establish his competency and qualifications to be certified pursuant to this part. To establish his competency, a person shall pass the appropriate examination administered by the department.
Any person who desires to engage in electrical contracting on other than a statewide basis shall, as a prerequisite thereto, be registered pursuant to this part, unless exempted by this part.2 (e.s.)
Furthermore, s.
While Part II, Ch.
Pursuant to s.
To be registered, the applicant shall file evidence of holding a current occupational license or a current license issued by any municipality or county of the state for the type of work for which registration is desired, on a form provided by the department, together with evidence of successful compliance with the local examination and licensing requirements, if any, in the area for which registration is desired, accompanied by the registration fee fixed pursuant to this part. . . .
The term "contracting," when used in Part II, Ch.
Whether an individual may be registered appears to depend upon proof of current local licensure and successful compliance with local examination and licensing requirements. The Legislature prescribes the registration fee which must be paid by the applicant and the Department of Professional Regulation provides a registration form. Part II, Ch.
Confusion has arisen in determining whether the board may prosecute an individual for exceeding the scope of a license or unlicensed contracting when acting as an alarm system contractor under a local license in the geographically limited area prescribed by the license, since Part II, Ch.
In Lester v. Department of Professional and Occupational Regulations, State Board of Medical Examiners,11 the court considered the application of the disciplinary provisions in the Medical Practice Act, Ch.
In construing the language and import of this statute we must bear in mind that it is, in effect, a penal statute since it imposes sanctions and penalties in the nature of denial of license, suspension from practice, revocation of license to practice, private or public reprimand, or probation, upon those found guilty of violating its proscriptions. This being true the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably proscribed by it. Furthermore, if there are any ambiguities included such must be construed in favor of the applicant or licensee.12
The Lester court acknowledged that the Medical Practice Act was enacted in the interest of the public welfare and is to be liberally construed to promote that purpose. Such a purpose, however,
does not justify a construction which includes within the ambit of the statute's proscription conduct not clearly included therein. Nor does it justify a construction that would deny to an individual physician the right to know in advance from a reading of the language what conduct is proscribed by the legislature.13
Part II, Ch.
Part II, Ch.
Accordingly, in the absence of a clear statutory proscription, I am of the opinion that the board is without authority to prosecute an individual engaging in alarm system contracting under a local license in the geographically limited area prescribed therein. In light of the inconsistency in statutory language regarding the registration of alarm system contractors under Part II, Ch.
Sincerely,
Robert A. Butterworth Attorney General
(ls)
[A] person who conducts business in the electrical trade field and who has the experience, knowledge, and skill to install, repair, alter, add to, or design, in compliance with law, electrical wiring, fixtures, appliances, apparatus, raceways, conduit, or any part thereof, which generates, transmits, transforms, or utilizes electrical energy in any form, including the electrical installations and systems within plants and substations, all in compliance with applicable plans, specifications, codes, laws, and regulations. The term means any person, firm, or corporation that engages in the business of electrical contracting under an express or implied contract; or that undertakes, offers to undertake, purports to have the capacity to undertake, or submits a bid to engage in the business of electrical contracting; or that does itself or by or through others engage in the business of electrical contracting.
(1) No person shall: (a) Practice contracting unless the person is certified or registered; (b) Use the name or title "electrical contractor" or "alarm system contractor" or words to that effect, or advertise himself as available to practice electrical or alarm contracting, when the person is not then the holder of a valid certification or registration issued pursuant to this part; . . .
No person who is not certified or registered shall engage in the business of contracting in this state. To enforce this subsection: (a) The department shall issue a cease and desist order to prohibit any person from engaging in the business of contracting who does not hold the required certification or registration for the work being performed under this part. For the purpose of enforcing a cease and desist order, the department may file a proceeding in the name of the state seeking issuance of an injunction or a writ of mandamus against any person who violates any provisions of such order.