STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION,

Petitioner,

vs.

EDWARD KOLBA,

Respondent.

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) Case No. 01-3450

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on November 6, 2001, by teleconference between Port Charlotte and Tallahassee, Florida, before Administrative Law Judge, Carolyn S. Holifield of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Brian A. Higgins, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-3060

For Respondent: Edward Kolba, pro se

Post Office Box 8014

Port Charlotte, Florida 33949-8014 STATEMENT OF THE ISSUES

The issues in this case are: (1) Whether Respondent violated Subsection 489.127(1)(f), Florida Statutes, by engaging in the business or acting in the capacity of a contractor

without being registered or certified; and, if so, (2) what penalty should be imposed against Respondent.

PRELIMINARY STATEMENT

On January 30, 2001, Petitioner, the Department of Business and Professional Regulation (Department), filed an Administrative Complaint alleging that Respondent, Edward Kolba (Respondent), violated Section 489.127(1)(f), Florida Statutes, by engaging in the business or acting in the capacity of a contractor without being registered or certified. Respondent disputed the allegations contained in the Administrative Complaint and timely requested a formal administrative hearing. On or about August 29, 2001, the case was forwarded to the Division of Administrative Hearings to conduct a hearing and prepare a recommended order.

During the hearing, the Department offered the testimony of two witnesses, Robert LaBar and Doris LaBar. Petitioner introduced three exhibits, all of which were received into evidence. Respondent offered the testimony of his wife, Donna Kolba. and testified on his own behalf. Respondent introduced four exhibits, all of which were received into evidence. The Transcript was filed with the Division of Administrative Hearings on November 21, 2001.

FINDINGS OF FACT

Based on the evidence and testimony of the witnesses presented, the following facts are found:

1. Crestwood Construction Corporation (Crestwood Construction) was established about six years ago and is located in Port Charlotte, Florida. At all times material to the proceeding, Respondent, Edward Kolba, was president of Crestwood Construction.

2. When Crestwood Construction was established and at all times relevant hereto, Marc Lusardi was the vice-president and the qualifying contractor for the company.

3. Respondent is not currently nor has he ever been a licensed contractor in the State of Florida.

4. On or about August 28, 1998, Respondent as president of Crestwood Construction, entered into a contract with Robert and Doris LaBar to construct a house at 27421 Neaptide Drive, Charlotte County, Florida. The contract price for the construction was $79,994.00.

5. At or near the time Mr. and Mrs. LaBar and Respondent were negotiating the construction contract, Respondent gave the impression that he was the contractor responsible for supervising the construction of the LaBars' house.

6. Consistent with the impressions or representations of Respondent regarding his responsibilities for the LaBar project, Respondent did, in fact, oversee most of the project.

7. At the time Crestwood Construction and the LaBars entered into the contract, Mr. Lusardi, the company's qualifying contractor, did not reside in Florida but in Colorado. Moreover, during most of the time the LaBar home was under construction, Mr. Lusardi was not in Florida. Furthermore, the only part of the LaBar project that Mr. Lusardi oversaw was the construction of the foundation. Respondent acknowledged that at all other times, Mr. Lusardi was out of state.

8. In Lusardi's absence, Respondent became responsible and/or assumed responsibility for overseeing the construction of the LaBars' house.

9. Respondent has had extensive work experience in the construction industry. However, Respondent admitted and did not dispute that he is not a registered or certified contractor in the State of Florida.

10. The investigative costs for the Department of Business and Professional Regulation in this case, excluding costs associated with any attorney's time, were $213.08.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding, pursuant to Sections 120.569 and 120.57, Florida Statutes.

12. The Department of Business and Professional Regulation (Department) is the state agency charged with regulating the practice of unlicensed contracting pursuant to Chapters 455 and 489, Florida Statutes.

13. Pursuant to Section 455.228, Florida Statutes, the Department is empowered to discipline any unlicensed person who is found guilty of engaging in the unlicensed practice of contracting.

14. The Department has the burden of proving by clear and convincing evidence the allegations against Respondent. Section 120.57(1)(h), Florida Statutes; Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

15. The Administrative Complaint alleges that Respondent violated Subsection 489.127(1)(f), Florida Statutes, which provides in pertinent part, the following:

    1. No person shall:

       
       

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       (f) Engage in the business or act in the capacity of a contractor or advertise himself or herself or a business organization as available to engage in the business or act in the capacity of a contractor without being duly registered or certified or having a certificate of authority.

       
       

16. The Department has proven by clear and convincing evidence that Respondent violated Section 489.127(1)(f), Florida Statutes, by engaging in the business or acting in the capacity of a contractor without being duly registered or certified. The evidence established that Respondent contracted with the LaBars to build a house and told the LaBars he would oversee the project. Moreover, the evidence established that Respondent did, in fact, oversee much of the construction of the LaBars' house. Notwithstanding, his actions and involvement relative to the LaBar construction project, the undisputed evidence is that Respondent is not, nor was he at the time pertinent to this proceeding, a registered or certified contractor in the State of Florida.

17. Section 455.228, Florida Statutes, authorizes the Department to impose disciplinary measures on persons not licensed by the Department who have violated any statute that relates to the practice of a profession regulated by the Department. In this case, it has been alleged and established that Respondent engaged in the business or acted in the capacity

    of a contractor without being registered or certified. Therefore, Respondent is subject to disciplinary action by the Department pursuant to Section 455.228, Florida Statutes.

18. Section 455.228, Florida Statutes, authorizes the Department, upon a determination that a person is engaged in the unlicensed practice of a profession, to issue a cease and desist notice, impose an administrative penalty, seek imposition of a civil penalty, and issue citations. Here, the Department seeks to impose an administrative penalty pursuant to Subsection 455.228(1), Florida Statutes, which provides in pertinent part the following:

    In addition to the foregoing remedies, the department may impose an administrative penalty not to exceed $5,000 per incident pursuant to the provisions of chapter 120 or may issue a citation pursuant to the provisions of subsection (3). If the department is required to seek enforcement of the order for a penalty pursuant to Section 120.569, it shall be entitled to collect its attorney's fees and costs, together with any cost of collection.

    
    

19. The administrative penalty of $5,000 which the Department seeks to impose on Respondent for the unlicensed practice of contracting or for violating Subsection 489.127(1)(f), Florida Statutes, is reasonable and within the penalties prescribed in Subsection 455.228(1), Florida Statutes.

20. The Department also seeks to recover costs associated with its investigation of the case involving Respondent.

    However, the Department has provided no statutory authority nor is the undersigned aware of any such authority.

21. Subsection 455.228(3)(c), Florida Statutes, provides that the Department is "entitled to recover the costs of investigation, in addition to any penalty provided according to [D]epartment rule as part of penalties levied pursuant to [a] citation." While Subsection 455.228(3)(c), Florida Statutes, permits the Department to recover costs of investigation, that provision applies to instances in which the Department has issued citations to persons for the unlicensed practice of a profession pursuant to Subsection 455.228(3)(a), Florida Statutes. Here, there is no evidence that the Department issued such a citation. Accordingly, the Department is not allowed to recover the costs of investigation under that provision.

22. In contrast to Subsection 455.228(3)(c), Florida Statutes, Subsection 455.228(1), Florida Statutes, which authorizes the Department to impose an administrative penalty against Respondent, does not include any provision that allows the Department to recover the costs of investigation. Absent statutory authority, the Department may not impose and is not entitled to recover the cost of investigation in this case.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is recommended a final order be entered (1) finding that

Respondent violated Section 489.127(1)(f), Florida Statutes, as alleged in the Administrative Complaint, and (2) imposing an administrative penalty of $5,000.

DONE AND ENTERED this 27th day of December, 2001, in Tallahassee, Leon County, Florida.

CAROLYN S. HOLIFIELD

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 27th day of December, 2001.

COPIES FURNISHED:

Brian A. Higgins, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-3060

Edward Kolba

Post Office Box 8014

Port Charlotte, Florida 33949-8014

Marc S. Lusardi

2101 South Ocean Drive Hollywood, Florida 33019

Marc S. Lusardi

182 East Byrd Drive Pueblo, Colorado 81007

Hardy L. Roberts, III, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-3060

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.

Docket for Case No: 01-003450

Orders for Case No: 01-003450