STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. ) Case Nos. 06-0601

) 06-0602

ANTONEY MANNING, )

d/b/a MANNING BUILDERS, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held on May 3, 2006, in Tallahassee, Florida, before the Division of Administrative Hearings by its designated Administrative Law Judge, Barbara J. Staros.

APPEARANCES

For Petitioner: Brian A. Higgins, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-2202

For Respondent: Antoney Manning, pro se

11865 Register Farm Road Tallahassee, Florida 32305

STATEMENT OF THE ISSUE

At issue is whether Respondent committed the offenses set forth in the Administrative Complaints and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

Petitioner, Department of Business and Professional Regulation filed two Administrative Complaints on September 19, 2005, which charged Respondent, Antoney Manning, d/b/a Manning Builders, with violating Sections 489.127(1)(f), and 489.531(1), Florida Statutes, by engaging in the business or acting in the capacity of a contractor without being duly registered or certified and by engaging in the unlicensed practice of electrical contracting.

Respondent disputed the allegations of the Administrative Complaints and requested an administrative hearing. The cases were referred to the Division of Administrative Hearings on or about February 16, 2006. An Order of Consolidation was issued on March 8, 2006. A formal hearing was set for May 3, 2006.

At hearing, Petitioner presented the testimony of Edwin McIlvane. Petitioner's Exhibits numbered 1 through 11 were admitted into evidence.

Respondent testified on his own behalf and did not offer any exhibits.

A Transcript, consisting of one volume, was filed on

May 18, 2006. On May 30, 2006, the Department timely filed a Proposed Recommended Order. On June 2, 2006, Respondent filed a post-hearing written submission. The parties' post-hearing submissions have been considered in the preparation of this

Recommended Order. All citations are to Florida Statutes (2005) unless otherwise indicated.

FINDINGS OF FACT

1. Petitioner, the Department of Business and Professional Regulation (Department), is the state agency charged with the duty and responsibility of regulating the practice of contracting and electrical contracting pursuant to Chapters 20, 455 and 489, Florida Statutes.

2. At all times material to the allegations of the Administrative Complaints, Antoney Manning was not licensed nor had he ever been licensed to engage in contracting as a State Registered or State Certified Contractor in the State of Florida and was not licensed, registered, or certified to practice electrical contracting.

3. At all times material to the allegations of the Administrative Complaints, Manning Builders did not hold a Certificate of Authority as a Contractor Qualified Business in the State of Florida and was not licensed, registered, or certified to practice electrical contracting.

4. Respondent, Antoney Manning, was at all times material to this proceeding, the owner/operator of Manning Builders. Respondent is in the business of framing which includes framing, drywall, tile, trim work, and painting.

5. A document which is in evidence purports to be a contract dated September 5, 2004, between Manning Builders and Ms. Gwendolyn Parker, for the construction of a 14-foot by 14- foot addition in the rear corner of Ms. Parker's house located at 8496 Southern Park Drive in Tallahassee, Florida. The contract identifies Manning Builders as the "contractor." The contract price is $15,000.

6. Unfortunately, only the first page of the contract is in evidence. However, Respondent acknowledges that he and Ms. Parker entered into a contract regarding the 14-foot by 14-foot addition to Ms. Parker's home. Respondent insists that he informed Ms. Parker that he was not a certified general contractor, but that he could find a general contractor for her. When that did not work out, Respondent told Ms. Parker that she would have to "pull" her own permits and that he could do the framing. He also told her that he would assist her in finding the appropriate contractors to do the electrical work, plumbing, and roofing. Ms. Parker did not testify at the hearing.

7. On September 7, 2005, Respondent signed a receipt for

   
   

   $7,500 for a "deposit on addition (14 x 14)." The receipt identifies Ms. Gwendolyn Parker as the person from whom the money was received by Respondent.

8. Respondent acknowledges finding an electrical contractor to perform the electrical work on the addition. However, he insists that he did not hire the electrical contractor but found one for Ms. Parker to hire. He gave the name to Ms. Parker but she apparently did not contact him. In any event, the electrical work was never done on the addition.

9. Respondent completed the framework on the addition.

   
   

   Respondent did not build the roof, as he was aware that would require a roofing contractor.

10. Work on the project ceased before the addition was finished.

11. Ms. Parker's home suffered rain damage as a result of the roof not being completed. There is nothing in the record establishing the dollar amount of damage to her home.

12. The total investigative costs to the Department, excluding costs associated with any attorney's time, was

    $360.59 regarding the allegations relating to Case No. 06- 0601, which charged Respondent with the unlicensed practice of contracting. The total investigative costs, excluding costs associated with any attorney's time, was $140.63 regarding the allegations relating to Case No. 06-0602, which charged Respondent with the unlicensed practice of electrical contracting.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case.

    §§ 120.569, 120.57(1), and 120.60(5), Fla. Stat.

    
    

14. Petitioner has the burden of proving by clear and convincing evidence the specific allegations of the Administrative Complaints. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Department of Banking and Finance v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996).

15. Section 489.127(1)(f), Florida Statutes, reads in pertinent part as follows:

    1. No person shall:

       
       

       * * *

       
       

       (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. Section 489.105(3), Florida Statutes, defines a contractor as:

    . . . the person who, for compensation, undertakes to, submits a bid to, or does himself or herself or by others construct, repair, alter, remodel, add to, demolish, subtract from, or improve any building or structure, including related improvements to real estate, for others or for resale to others . . .

17. Section 489.531(1), Florida Statutes, reads in pertinent part as follows:

    1. A person may not:

       
       

       * * *

       
       

       (b) Use the name or title "electrical contractor" or "alarm system contractor" or words to that effect, or advertise himself or herself or a business organization as available to practice electrical or alarm system contracting, when the person is not then the holder of a valid certification or registration issued pursuant to this part;

       . . .

       
       

18. Section 489.505(12), Florida Statutes, reads in pertinent part:

    'Electrical contractor' . . . 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.

    
    

19. Subsection (9) of Section 489.505, Florida Statutes, states that the attempted sale of electrical contracting services and the negotiation or bid for a contract on these services also constitutes contracting.

20. Section 455.2273, Florida Statutes, reads as follows:

    Disciplinary guidelines.--

    1. Each board, or the department when there is no board, shall adopt, by rule, and periodically review the disciplinary guidelines applicable to each ground for disciplinary action which may be imposed by the board, or the department when there is no board, pursuant to this chapter, the respective practice acts, and any rule of the board or department.

       
       

    2. The disciplinary guidelines shall specify a meaningful range of designated penalties based upon the severity of specific offenses, it being the legislative intent that minor violations be distinguished from those which endanger the public health, safety, or welfare; that such guidelines provide reasonable and meaningful notice to the public of likely penalties which may be imposed for proscribed conduct; and the such penalties be consistently applied by the board.

       
       

    3. A specific finding of mitigating or aggravating circumstances shall allow the board to impose a penalty other than that provided for in such guidelines. If applicable, the board, or the department when there is no board, shall adopt by rule disciplinary guidelines to designate possible mitigating and aggravating circumstances and the variation and range of penalties permitted for such circumstances.

       
       

    4. The department must review such disciplinary guidelines for compliance with legislative intent as set forth herein to determine whether the guidelines establish a meaningful range of penalties and may also challenge such rules pursuant to s. 120.56.

       
       

    5. The administrative law judge, in recommending penalties in any recommended order, must follow the penalty guidelines established by the board or department and must state in writing the mitigating or

       aggravating circumstances upon which the recommended penalty is based.

       
       

21. The Department cites to no rule which sets forth disciplinary guidelines with a meaningful range of penalties applicable to the unlicensed practice of contracting or electrical contracting as contemplated by Section 455.2273, Florida Statutes.

22. The Department cites only to Sections 455.228 and 489.13(3), Florida Statutes, regarding the Department's authority to impose fines. These statutes provide in pertinent part as follows:

    455.228 Unlicensed practice of a profession; cease and desist notice; civil penalty; enforcement; citations; allocation of moneys collected.--

    
    

    (1) . . . 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 . . .

    
    

    489.13 Unlicensed contracting; notice of noncompliance; fine; authority to issue or receive a building permit; web page.--

    
    

    * * *

    
    

    (3) Notwithstanding s. 455.228, the department may impose an administrative fine of up to $10,000 on any unlicensed person guilty of unlicensed contracting. In addition, the department may assess reasonable investigative and legal costs for prosecution of the violation against the unlicensed contractor. The department may waive up to one-half of any fine imposed if the unlicensed contractor

    complies with certification or registration within 1 year after imposition of the fine under this subsection.

    
    

23. The Administrative Complaint in Case No. 06-0601 charges Respondent with violating 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 contract between Mr. Manning and Ms. Parker, which Mr. Manning acknowledges he entered into, states that it is for the construction of a 14-by-14 addition in the rear left corner of her home. Accordingly, the Department has met its burden of proof regarding this allegation.

24. The Administrative Complaint in Case No. 06-0602 charges Respondent with violating Section 489.531(1), Florida Statutes, by engaging in the unlicensed practice of electrical contracting. The evidence presented is insufficient to prove this allegation. There is no evidence that Mr. Manning entered into a contract or otherwise hired an electrical contractor for this project. The only evidence presented is that Mr. Manning provided a name to Ms. Parker. Therefore, the Department has not met its burden regarding this allegation.

25. The Department, pursuant to Sections 455.288 and 489.13(3), Florida Statutes, seeks imposition of fines in the total amount of $15,000.00, and the costs of investigation.

    The fines sought by the Department are a combination of the maximum amount of $10,000 pursuant to Section 489.13(3) and the maximum amount of $5,000 pursuant to Section 455.228, Florida Statutes.

26. After a careful review of Sections 489.13(3) and 455.2273, Florida Statutes, the undersigned is not persuaded that the Department may impose a $5,000 fine in addition to the $10,000 fine referenced in Section 489.13(3), Florida Statutes.

27. In addition to citing to no rule setting forth disciplinary guidelines setting forth a meaningful range of designated penalties as required by Section 455.2273, Florida Statutes, the Department cites to no rule designating possible mitigating or aggravating circumstances and the variation and range of penalties permitted for each circumstance as contemplated by Section 455.2273(3), Florida Statutes.

28. There is no evidence that Respondent has previously been cited for unlicensed practice of contracting or electrical contracting. The Department presented no aggravating circumstances. This appearing to be a first offense, a lesser fine than the maximum allowed by law is more appropriate here.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is

RECOMMENDED:

That the Department of Business and Professional Regulation enter a final order imposing a fine of $1,000 for a violation of Section 489.127(1); requiring Respondent to pay

$360.59 in costs of investigation and prosecution of DOAH Case No. 06-0601, and dismissing DOAH Case No. 06-0602.

DONE AND ENTERED this 28th day of June, 2006, in Tallahassee, Leon County, Florida.

S

___________________________________ BARBARA J. STAROS

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 28th day of June, 2006.

COPIES FURNISHED:

Brian A. Higgins, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Antoney Manning

11865 Register Farm Road Tallahassee, Florida 32305

G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Josefina Tamayo, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

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: 06-000601

Orders for Case No: 06-000601