STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. ) Case No. 07-2814

)

BILL SCHNELL, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice a formal hearing was held in this case on September 4, 2007, in Tallahassee, Florida, before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Sorin Ardelean, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-2202

For Respondent: No Appearance

STATEMENT OF THE ISSUES

Whether the Respondent, Bill Schnell (Respondent), committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On October 27, 2006, the Petitioner, Department of Business and Professional Regulation (Department or Petitioner), filed an Administrative Complaint against the Respondent that alleged violations of Chapter 489, Florida Statutes (2005). More specifically, the Petitioner maintained that the Respondent had represented himself to be a certified or registered contractor that could perform roofing work for a residence located in Boca Raton, Florida. Further, the Petitioner alleged that the Respondent was not at that time, nor any time relevant to the allegations, licensed as a contractor in Florida. Accordingly, the Petitioner contends the Respondent violated Section 489.127(1)(f), Florida Statutes (2005).

Thereafter, the Respondent filed an Election of Rights that requested an administrative hearing to contest the Petitioner's claims. On June 25, 2007, the case was referred to the Division of Administrative Hearings for formal proceedings.

Notice of the hearing was provided to all parties at their addresses of record. As the Respondent had provided two addresses of record, two copies of the notice were forwarded to him. One copy of the notice was returned by the postal service as undelivered, the other was not. Based upon the

foregoing, it is presumed the Respondent received notice of the hearing date and location.

At the hearing, the Petitioner presented the testimony of Julie Scarbrough and Jean Pflaum. The Petitioner's Exhibits numbered 1-12 were admitted into evidence. The transcript of the proceeding was filed with the Division of Administrative Hearings on September 19, 2007. The parties were to file proposed orders within ten days of that filing. The Petitioner timely filed a Proposed Recommended Order that has been fully considered in the preparation of this Recommended Order. The Respondent did not appear at the final hearing and has not filed a proposed order.

FINDINGS OF FACT

1. At all times material to the allegations of this case, the Petitioner was the state entity charged with the responsibility of regulating the practice of unlicensed construction and contracting within the State of Florida pursuant to Chapters 455 and 489, Florida Statutes (2005).

2. At all times material to the allegations of this case, the Respondent was not licensed as a contractor nor has he ever been certified or licensed to engage in contracting in the State of Florida.

3. Hurricane Wilma struck Florida in the fall of 2005.

   
   

   Many residential structures were damaged by the storm in Boca Raton, Florida.

4. Ms. Jean Pflaum resided in Boca Raton and the roof to

   her home was one of the structures damaged. Ms. Pflaum met the Respondent when he came through her neighborhood offering to repair damaged homes. On or about December 7, 2005, Ms.

   Pflaum contracted with the Respondent to repair her roof.

   
   

5. In accordance with their agreement, Ms. Pflaum tendered the sum of $1990.00 to the Respondent, who did not competently complete the repair. Instead, the Respondent caused greater damage to the Pflaum residence. In short, Ms. Pflaum ended up hiring another contractor to correctly repair her roof and the damages caused by the Respondent. Ms. Pflaum expended an additional $2,300.00 to have the work completed.

6. Ms. Pflaum had believed the Respondent to be a licensed person. He had represented his Florida license to be #CBC 1251460. That number corresponds to the license held by

   1. F. Devine Construction, a company unrelated to the Respondent.

7. In fact, the Petitioner received a complaint from E.

   
   

   1. Devine Construction, Inc. The complaint alleged, among other things, that someone who represented himself to be "Bill Schnell" was using their license number without their consent or agreement. Upon receipt of this complaint, the Petitioner issued a cease and desist order against the Respondent.

8. The Respondent never repaired Ms. Pfaum's roof, never refunded her money for the repair, and never resolved the

   Petitioner's complaint against him. In fact, the Respondent represented to the Petitioner that he would be moving to the Dominican Republic.

9. The Petitioner incurred expenses and costs associated with the investigation of this case against the Respondent. Those costs, as of the date of the hearing, totaled $429.24. Those costs do not include any legal or attorneys fees associated with the prosecution of the case. The Respondent made no restitution in this cause.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. § 120.57(1), Fla. Stat. (2007).

11. The Petitioner bears the burden of proof in this matter to establish by clear and convincing evidence the allegations of this case. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). It has met that burden.

12. Section 489.127(1), Florida Statutes (2005), provided, in pertinent part:

    1. No person shall:

       
       

       1. Falsely hold himself or herself or a business organization out as a licensee, certificateholder, or registrant;

          
          

       2. Falsely impersonate a certificateholder or registrant;

          
          

       3. Present as his or her own the certificate, registration, or certificate of authority of another . . .

       
       

13. Section 489.105, Florida Statutes (2005) defined terms used in this case:

    (3)(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.

    
    

    * * *

    
    

    (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. However, the term "contracting" shall not extend to an individual, partnership, corporation, trust, or other legal entity that offers to sell or sells completed residences on property on which the individual or business entity has any legal or equitable interest, if the services of a qualified contractor certified or registered pursuant to the requirements of this chapter have been or will be retained for the purpose of constructing such residences.

14. The Petitioner has established by clear and convincing evidence that the Respondent violated the law by practicing contracting without a valid certification,

    registration, or license to do so. The Respondent took Ms. Pflaum's money under the pretense of being lawfully able to repair her roof. He was not a licensed roofer. Not only did the Respondent not repair the roof, he caused additional damages to the structure that resulted in additional expenditures on Ms. Pflaum's part.

15. Section 455.228, Florida Statutes (2005) provided, in pertinent part:

    1. When the department has probable cause to believe that any person not licensed by the department, or the appropriate regulatory board within the department, has violated any provision of this chapter or any statute that relates to the practice of a profession regulated by the department, or any rule adopted pursuant thereto, the department may issue and deliver to such person a notice to cease and desist from such violation. In addition, the department may issue and deliver a notice to cease and desist to any person who aids and abets the unlicensed practice of a profession by employing such unlicensed person. The issuance of a notice to cease and desist shall not constitute agency action for which a hearing under ss.

       120.569 and 120.57 may be sought. 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. 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 s. 120.569, it shall be entitled to collect its attorney's fees and costs, together with any cost of collection. [Emphasis added.]

       
       

16. Based upon the foregoing, the Petitioner is entitled to recover costs of the investigation in this case.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a Final Order that imposes an administrative fine in an amount not less than $5000.00 against the Respondent and assesses costs of the investigation in an amount not less than $429.24.

S

DONE AND ENTERED this 6th day of November, 2007, in Tallahassee, Leon County, Florida.

___________________________________

J. D. PARRISH 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 6th day of November, 2007.

COPIES FURNISHED:

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

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Ned Luczynski, General Counsel Department of Business and

Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792 Nancy S. Terrel, Hearing Officer Office of the General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Bill Schnell

c/o Elington Hernandes Acesor Legal Calle Restauracion, No. 125

Alto Santiago, Dominican Republic

Bill Schnell

1432 Northeast 27th Avenue Pompano Beach, Florida 33064

Sorin Ardelean, Esquire Department of Business and

Professional Regulation 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: 07-002814

Orders for Case No: 07-002814