STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION,

Petitioner,

vs.

DOMENICK SPALLINA, d/b/a NEW LOOK CONTRACTING, INC.,

Respondent.

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) Case No. 06-1949

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RECOMMENDED ORDER

A formal hearing was conducted in this case on August 11, 2006, in Lake City, Florida, before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Brian A. Higgins, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-2202

For Respondent: Domenick Spallina, pro se

159 Southwest Pleasant Hill Glen Fort White, Florida 32038

STATEMENT OF THE ISSUES

The issues are whether Respondent violated Section 489.127(1)(f), Florida Statutes (2005), and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

Petitioner Department of Business and Professional Regulation (Petitioner) issued an Administrative Complaint on February 28, 2006, against Domenick Spallina, d/b/a New Look Contracting, Inc. (Respondent). The complaint alleged that Respondent had engaged in the business of contracting, acted in the capacity of a contractor, or advertised himself or a business organization as available to engage in contracting without being duly registered or certified or having a certificate of authority.

On March 20, 2006, Respondent requested an administrative hearing to contest the allegations in the complaint. Petitioner referred Respondent's request to the Division of Administrative Hearings on May 30, 2006.

On June 7, 2006, the undersigned issued a Notice of Hearing. The notice scheduled the hearing for August 9, 2006.

On July 31, 2006, Respondent filed an unopposed request for a continuance. On August 1, 2006, the undersigned issued an Order Granting Continuance and Re-scheduling Hearing for

August 11, 2006.

During the hearing, Petitioner presented the testimony of two witnesses. Petitioner offered seven exhibits, P1-P7, which were admitted into evidence.

Respondent testified on his own behalf and offered three exhibits, R1a, R1b, and R2, for admission into the record as evidence. The undersigned accepted R1a and R1B as evidence. Respondent's Exhibit R2 is hereby excluded as hearsay.

A transcript of the proceeding was filed on August 30, 2006. Petitioner filed its Proposed Recommended Order on September 8, 2006. As of the date that this Recommended Order was issued, Respondent had not filed a proposed order.

FINDINGS OF FACT

1. At all times material hereto, Respondent was not licensed to engage in construction contracting in the State of Florida.

2. At all times material hereto, New Look Contracting, Inc. did not possess a certificate of authority to practice as a contractor qualified business.

3. Respondent was a part owner/operator of New Look Contracting, Inc.

4. On or about July 9, 2005, Respondent contracted with Lynnda Davis to, inter alia, raise the ceiling on the front porch and install French doors on Ms. Davis's office in Lake City, Florida, for $950.

5. Ms. Davis paid Respondent $1,275 for the construction project of which Respondent admits to receiving at least $475.

6. Respondent broke tiles at Ms. Davis's office and took contractually unrelated materials from her property.

7. All of the items listed in the contract between Respondent and Ms. Davis required a Lake City, Florida, building permit.

8. The total investigative cost to Petitioner, excluding costs associated with any attorney's time, was $311.21.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2005).

10. Petitioner is the state agency charged with regulating the practice of unlicensed construction contracting pursuant to Chapters 455 and 489, Florida Statutes (2005).

11. Petitioner has the burden of proving by clear and convincing evidence that Respondent has violated Section 489.127(1), Florida Statutes (2005). See Department of Banking

    and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996).

12. Section 489.105(3), Florida Statutes (2005), states as follows in pertinent part:

    (3) "Contractor" means the person who is qualified for, and shall only be responsible for, the project contracted for

    and means, except as exempted in this part, 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 structure, including related improvements to real estate, for others or for resale to others .

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    (6) "Contracting" means, except as exempted in this part, engaging in business as a contractor and includes, but is not limited to, performance of any of the acts as set forth in subsection (3) which define types of contractors. 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 licensure. . . .

    
    

13. Section 489.113, Florida Statutes (2005), states as follows in relevant part:

    1. Any person who desires to engage in contracting on a statewide basis shall, as a prerequisite thereto, establish his or her competency and qualifications to be certified pursuant to this part. . . .

    2. No person who is not certified or registered shall engage in the business of contracting in this state. . . .

       
       

14. Section 489.127(1)(f), Florida Statutes (2005), states as follows in pertinent part:

    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;

       
       

15. Under Florida Administrative Code Rule 61G4-12.011(2), construction activities that include work affecting access or egress to a structure or any work for which a building permit is required are not casual, minor, or inconsequential.

16. Clear and convincing evidence indicates that Respondent violated Section 489.127(1)(f), Florida Statutes (2005), by acting in the capacity of a contractor without being registered or certified. Respondent was not licensed as a contractor when he contracted with Ms. Davis to perform repair work for compensation that required a local building permit.

17. Section 489.13(3), Florida Statutes (2005), authorizes Respondent to impose an administrative fine in an amount up to

$10,000 for any person guilty of unlicensed construction contracting as well as the ability to assess reasonable investigative and legal costs, excluding costs associated with an attorney's time, for prosecution of the violation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED:

That Petitioner enter a final order finding Respondent guilty of violating Section 489.127(1)(f), Florida Statutes (2005), imposing an administrative fine in the amount of

$10,000, and assessing costs in the amount of $311.21.

DONE AND ENTERED this 13th day of September, 2006, in Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

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 13th day of September, 2006.

COPIES FURNISHED:

Brian A. Higgins, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Domenick Spallina

159 Southwest Pleasant Hill Glen Fort White, Florida 32038

Josefina Tamayo, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

John Washington, Hearing Officer Office of the General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

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: 06-001949

Orders for Case No: 06-001949