STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. )

) HARRY LEE WILSON, d/b/a WILSON ) CONSTRUCTION AND ROOFING, )

)

Respondent. )

)

Case No. 06-2661

RECOMMENDED ORDER

On September 29, 2006, a video conference hearing was held in Jacksonville and Tallahassee, Florida. The authority for conducting the hearing is set forth in Sections 120.569 and 120.57(1), Florida Statutes. The case was considered by Lisa Shearer Nelson, Administrative Law Judge.

APPEARANCES

For Petitioner: Brian A. Higgins

Assistant General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

For Respondent: Harry Lee Wilson, pro se

12450 Biscayne Boulevard

Apartment 415

Jacksonville, Florida 32218 STATEMENT OF THE ISSUE

Whether Respondent engaged in the unlicensed practice of contracting in violation of Section 489.127, Florida Statutes, and if so, what penalty should be imposed?

PRELIMINARY STATEMENT

On May 17, 2006, the Department of Business and Professional Regulation (the Department or DBPR) filed an Administrative Complaint charging Respondent with the unlicensed practice of contracting in violation of Section 489.127(1)(f), Florida Statutes. Respondent filed an Election of Rights disputing the allegations in the Administrative Complaint and requested a Section 120.57(1) hearing. On July 24, 2006, the case was referred to the Division of Administrative Hearings (DOAH) for assignment of an administrative law judge. On August 2, 2006, the case was noticed for video hearing September 29, 2006. No continuances were requested by either party.

At hearing, the Department presented the testimony of two witnesses, Anthony Wright and Holly Cochran, and Petitioner's Exhibits 1 through 6 were admitted into evidence. Respondent testified on his own behalf, and Respondent's Exhibit 1 was admitted into evidence. Respondent's Exhibit 2, represented as pictures of the worksite, were not admitted.

A hearing transcript was prepared and filed with DOAH October 17, 2006. The parties were granted until October 27, 2006, to file proposed recommended orders. Petitioner submitted a letter for consideration, with numerous attachments not presented at hearing. Respondent filed a proposed recommended order. Both submissions were timely filed. Both submissions have been considered in the preparation of the Recommended Order. However, to the extent that the numerous attachments to

Respondent's letter can be considered a motion to introduce additional exhibits into the record, the motion is denied and the attached documents have not been considered. It was explained to Respondent at the time of hearing that his opportunity to present evidence was at the time of the hearing itself.

FINDINGS OF FACT

1. Petitioner is the state agency charged with the licensing and regulation of contractors in the State of Florida pursuant to Section 20.42 and Chapters 455 and 489, Florida Statutes.

2. On June 7, 2005, Harry Lee Wilson signed a proposal on behalf of Wilson Construction and Roofing to perform repairs on a home owned by Tony Wright at 2126 Evergreen Avenue, Jacksonville, Florida. The proposal consisted of a two-page list of repairs to be performed, including installation of doors, plumbing, kitchen cabinets and sheetrock; repair of several holes, walls, windows and floors; painting and installation of a wall.

3. The proposed cost for the job was $7,595.00, with

   
   

   $3,200.00 to be paid as a down payment, $2,200.00 to be paid halfway through, and the balance to be paid when the job was completed.

4. Mr. Wilson represented to Mr. Wright that he was a licensed contractor and had been for 20 years. He had business cards and t-shirts that advertised "Wilson Construction and Roofing." His license, however, was an occupational license issued by the City of Jacksonville. At no time material to these

   proceedings was Mr. Wilson registered with or certified by the State of Florida. Likewise, Wilson Construction and Roofing did not possess a certificate of authority to practice as a contractor qualified business. No evidence was presented to establish that Mr. Wilson held any sort of competency license issued by the local jurisdiction.

5. Mr. Wright accepted the proposal and, in all, paid

   
   

   $5,000.00 to Mr. Wilson for his services.

   
   

6. On September 21, 2005, Mr. Wilson wrote to Mr. Wright representing that he had completed the "first proposal," i.e., the first page of the work under the contract. In his letter, he claimed that Mr. Wright had defaulted on the job because of work done by another contractor and that additional funds would be needed to complete the work.

7. Mr. Wright was not pleased with the quality of work performed on the job and stopped paying Mr. Wilson. Some of the work had to be redone by another contractor. For example, the plumbing was not installed correctly; the countertop was not level; a weight-bearing wall was braced incorrectly; and drywall was applied over the light switches.

8. Mr. Wright was under the impression that the work by Mr. Wilson was not inspected because the funds were not coming from a bank. Inspection was only performed when the job was finished by the second contractor.

9. Mr. Wilson admitted that he has been doing construction work for 20 years and did not believe a state license was

   necessary. He believed that his occupational license was all he needed to perform construction work.

10. Mr. Wilson claimed that he did not perform any plumbing work for Mr. Wright or the amount he did was minimal. However, Mr. Wilson's proposal to Mr. Wright clearly includes plumbing work among those items to be performed. Whether or not he actually did plumbing work on the job, Mr. Wilson negotiated a contract to perform such work.

11. There was no evidence presented that Mr. Wilson was offering to perform or performing any contracting services under the supervision of any licensed contractor.

12. The Department incurred investigative costs, excluding any costs associated with an attorney's time, in the amount of

    $401.83.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Sections 120.569 and 120.57(1), Florida Statutes.

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

    
    

15. Section 489.105, Florida Statutes, provides the following definitions relevant to this proceeding:

    (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 or structure, including related improvements to real estate, for others or for resale to others; and whose job scope is substantially similar to the job scope described in one of the subsequent paragraphs of this subsection . . . .

    
    

    (c) "residential contractor" means a contractor whose services are limited to construction, remodeling, repair, or improvement of one-family, two-family, or three-family residences not exceeding two habitable stories above no more than one uninhabitable story and accessory use structures in connection therewith.

    
    

    * * *

    
    

    (e) "roofing contractor" means a contractor whose services are unlimited in the roofing trade and who has the experience, knowledge, and skill to install, maintain, repair, alter, extend, or design, when not prohibited by law, and use materials and items used in the installation, maintenance, extension and alteration of all kinds of roofing, waterproofing, and coating, except when coating is not represented to protect, repair, waterproof, stop leaks, or extend the life of the roof.

    
    

    * * *

    
    

    (m) "plumbing contractor" means a contractor whose contracting business consists of the execution of contracts requiring the experience, financial

    
    

    means, knowledge, and skill to install, maintain, repair, alter, extend, or, when not prohibited by law, design plumbing. . . .

    * * *

    
    

    (q) "specialty contractor" means a person whose scope of work and responsibility is limited to a particular phase of construction and whose scope is limited to a subset of the activities described in the categories established in one of the paragraphs of this subsection.

    
    

    * * *

    
    

    (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. . . .

    
    

16. The work Respondent performed or offered to perform meets the definition of contracting as defined in Section 489.105(6), Florida Statutes.

17. Section 489.103(9), Florida Statutes, exempts from the requirements of Chapter 489, Part I,

    1. Any work or operation of a casual, minor, or inconsequential nature in which the aggregate contract price for labor, materials, and all other items is less than

       $1,000, but this exemption does not apply:

       
       

       1. If the construction, repair, remodeling, or improvement is a part of a larger or major operation, whether undertaken by the same or a different contractor, or in which a

          division of the operation is made in contracts of amounts less than $1,000 for the purpose of evading this part or otherwise.

          
          

       2. To a person who advertises that he or she is a contractor or otherwise represents that he or she is qualified to engage in contracting.

    
    

18. Respondent is not entitled to any of the exemptions listed in Section 489.103(9), because the work listed in the proposal exceeded $1,000.00, and Respondent routinely advertises and represents that he is qualified to engage in contracting.

19. There are other limited circumstances where an individual may perform some contracting services without holding a registration or certification pursuant to Chapter 489.

    Section 489.117(4), Florida Statutes, provides, in pertinent part:

    (4)(a) A person holding a local license whose job scope does not substantially correspond to either the job scope of one of the contractor categories defined in s.

    489.105(3)(a)-(o), or the job scope of one of the certified contractor categories previously established by board rule as of the effective date of this provision, shall not be required to register with the board to perform contracting activities within the scope of such specialty license.

    
    

    * * *

    
    

    (e) Any person who is not required to obtain registration or certification pursuant to s. 489.105(3)(d)-(o) may perform specialty contracting services for the construction,

    
    

    remodeling, repair, or improvement of single- family residences . . . without obtaining a local professional license if such person is under the supervision of a certified or

    registered general, building, or residential contractor. As used in this paragraph, supervision shall not be deemed to require the existence of a direct contract between the certified or registered general, building, or residential contractor and the person performing specialty contracting services.

    
    

20. Some of what Respondent contracted to perform may fall into the category of specialty contracting services, such as painting, repair of holes and walls, and installation of doors. As such, they could be performed under the supervision of a licensed contractor or pursuant to a local professional license. However, not all of the services Respondent contracted to perform can be performed by an unlicensed person pursuant to Section 489.117, and there is no evidence that Respondent held a local professional license or worked under the supervision of another, suitably licensed, contractor. Rather, the evidence indicates that Respondent held himself out as able to perform any type of contracting services and believed he could do so under his occupational license.

21. Petitioner 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.

    Respondent engaged in the unlicensed construction of contracting when he contracted to perform structural and plumbing work for compensation at Mr. Wright's residence. Neither structural work nor plumbing are types of construction that are exempted from the

    requirements of registration or certification, as outlined in the applicable provisions of Chapter 489, Florida Statutes. He also engaged in unlicensed contracting when he performed specialty services without holding a local professional license and without working under the supervision of a licensed contractor.

22. Section 489.13(3), Florida Statutes, authorizes the Department to impose an administrative fine of up to $10,000.00 for any person guilty of unlicensed construction and the imposition of reasonable investigative and legal costs related to prosecution.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law reached, it is

RECOMMENDED:

1. That a final order be entered which finds that Respondent violated Section 489.127(1)(f), Florida Statutes;

2. That an administrative fine of $5,000.00 be imposed; and

   
   

3. That costs of investigation and prosecution in the amount of $401.83 be assessed.

DONE AND ENTERED this 9th day of November, 2006, in Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

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.state

Filed with the Clerk of the Division of Administrative Hearings This 9th day of November, 2006.

COPIES FURNISHED:

Brian A. Higgins, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Harry Wilson

Wilson Construction and Roofing 12450 Biscayne Boulevard

Apartment 415

Jacksonville, Florida 32218

Josefina Tamayo, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Nancy S. Terrel, Hearing Officer 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: 06-002661

Orders for Case No: 06-002661