Pursuant to notice, a hearing was conducted in this case on December 4, 2007, by video teleconference at sites in Miami and Tallahassee, Florida, before Administrative Law Judge Claude B. Arrington of the Division of Administrative Hearings (DOAH).
South Florida Construction Group Post Office Box 278167 Hollywood, Florida 33027-8167
Whether Respondent committed the acts alleged in the Administrative Complaint and, if so, the penalty that should be imposed.
On June 6, 2007, Petitioner filed an Administrative Complaint alleging certain facts pertaining to Respondent’s dealings with homeowners Mauuchi and Elizabeth Ugokwe (the homeowners) and, based on those dealings, alleged that Respondent had engaged in electrical contracting without a license in violation of Section 489.531(1), Florida Statutes (2007).1
Respondent disputed the allegations in the Administrative Complaint and requested a hearing pursuant to Section 120.57(1), Florida Statutes. On September 20, 2007, Petitioner referred the matter to DOAH, and this proceeding followed.
At the formal hearing, Petitioner presented the testimony of the homeowners and of Gary Joinville, an investigator employed by Petitioner. Petitioner offered 14 sequentially- numbered exhibits, each of which was admitted into evidence.
Respondent testified on his own behalf and offered 7 sequentially-numbered exhibits, each of which was admitted into evidence.
The Transcript of the proceeding was filed with DOAH March 8, 2008. The deadline for the filing of proposed recommended orders was set for ten days following the filing of the Transcript, which was close of business on March 21, 2008. Petitioner timely filed a Proposed Recommended Order that has
been considered in the preparation of the Recommended Order. Respondent did not file a proposed recommended order.
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.
Respondent does business under the name South Florida Construction Group. At no time relevant to this proceeding has Respondent or his business entity been registered or certified to perform electrical contracting or any other contracting in the State of Florida. Respondent holds only an occupational license from the City of North Miami.
The residence owned by the homeowners (the subject property) sustained roof damage as a result of Hurricane Wilma in October 2005.
The homeowners planned to replace their damaged roof after their insurance claim had been processed. In the interim, temporary repairs were made to the roof by a roofing contractor the homeowners located through a local Home Depot, Inc., store. This roofing contractor was identified only as the Home Depot roofing contractor.
The homeowners were dissatisfied with the work of the Home Depot roofing contractor. In early August 2006,
Mrs. Ugokwe mentioned at a beauty salon that the Home Depot roofing contractor had failed to prevent her roof from leaking. Shortly thereafter, Respondent learned of the homeowners’ dissatisfaction with the Home Depot roofing contractor.
On August 9, 2006, Respondent visited the subject property and told the homeowners that he was a general contractor. Respondent gave them his business card that contained Respondent’s name, address, telephone number, and fax number. In addition, the business card contained the name “South Florida Construction Group” underneath which were the words “State Certified General Contractors” and the following license number “CGC 1510133.” The business card advertised the following services: “Home Improvement & Repairs, New Building Construction, Residential & Commercial Pools, Asphalt Paving & Sealcoating [sic], Site Development & Drainage, and Notary Public Service.”
The homeowners believed Respondent to be a licensed general contractor. Respondent and the homeowners discussed Respondent performing work on the damaged roof, including placing blue tarp on the roof (the tarp work) to prevent further leaks until the re-roofing could be completed. They also discussed the subsequent re-roofing of the property. Respondent estimated that the re-roofing would be between $30,000.00 and
$33,000.00. After inspecting the subject property, Respondent
told the homeowners, among other things, that an electrical connection to a pump on their drain field needed to be repaired. Respondent testified that the electrical connection had been damaged when he backed his truck up while attempting to remove some debris from the subject property.
At the meeting on August 9, 2006, Respondent and the homeowners agreed that Respondent would perform the tarp work. On August 11, 2006, the homeowners paid Respondent a down- payment of $50.00 cash for the tarp work. On August 12, 2006, Respondent’s crew completed the tarp work. On August 13, 2006, the homeowners paid Respondent the sum of $659.28 for the balance of the materials and labor for the tarp work. The total amount paid for the tarp work was $709.28.
On August 13, 2006, after he received payment for the tarp work, Respondent produced a building permit application, which he had Mrs. Ogokwe sign in blank. Respondent explained that he had not finished his proposal for the complete re- roofing and that he wanted her to execute a blank permit to expedite the permitting process.
On August 14, 2006, Respondent presented a signed permit application to the building department of Miami-Dade County, Florida, pertaining to the re-roofing of the subject property. Ms. Ugowke’s signature had been notarized. When Respondent presented the permit application to the building
department, the contractor’s name was listed as F L Construction, Inc. The qualifying contractor’s name was listed as being Charles Lennox with the contracting licensing number CGC 1510133. That was the same number listed on Respondent’s business card. The value of the work was listed as being
$6,200.00.
On the morning of August 15, 2006, Respondent returned to the subject property with a person Respondent told the homeowners was an electrician. Mrs. Ugokwe asked Respondent how much the repair of the electrical connection would cost before the purported electrician started to work. Respondent told her not to worry since he would add the cost of the electrical work to the cost of re-roofing the subject property.
The electrical repair had been made by the time Mrs.
Ugokwe returned to the subject property after work that evening.
On August 16, 2006, Respondent informed the homeowners that he had secured a building permit and that he had his proposal for the re-roofing. On August 17, 2006, Respondent delivered a package to the homeowners that contained his proposal and the building permit.
Respondent’s proposal for the re-roofing was in the total amount of $39,672.92. The homeowners considered this proposal to be unacceptable.
On the building permit Respondent gave to the homeowners, the name of the contractor (F L Construction, Inc.) had been covered with white-out and the name South Florida Construction Group had been inserted as the name of the contractor. The building permit was not otherwise altered.
On August 19, 2006, Respondent presented the homeowners with a revised contract for the total price of
$33,000.00.
Mrs. Ugowke confronted Respondent about the discrepancy between the revised proposal ($33,000.00) and the value of the work reflected on the building permit ($6,200.00). Mrs. Ugowke also confronted Respondent about the white-out on the building permit. The homeowners refused to sign the second proposal.
Respondent became angry and demanded immediate payment of $750.00 for the repair of the drain field electrical connection. Mrs. Ugokwe counter-offered to pay $150.00, a sum she believed to be fair after her husband priced the cost of the materials used in the repair. Respondent refused to take the counter-offer.
By invoices dated August 22 and September 4, 2006, Respondent billed the homeowners for work that included the electrical work. Each invoice was on South Florida Construction Group’s form invoice. Each invoice reflected the general
contractor’s license number CGC 1510133, which is Mr. Lennox’s number.
Both invoices included a charge of $1,209.28 for installation of “new blue top, nails and labor” although the homeowners had already paid Respondent $709.28 for the same job.
The homeowners refused to pay the invoices.
Respondent sued them and placed a lien on the subject property in the amount of $3,839.82. In his claim of lien, Respondent affirmed under oath that he furnished the following services to the homeowners: re-roofing, electrical, and repairs.
Respondent’s civil suit was dismissed on the merits.
Even after that action, Respondent refused the homeowners’ request to remove the lien from their property.
On September 15, 2006, Mr. Lennox sent all his sub- contractors a letter asking them to immediately stop using his contractor license number without his express permission. Respondent signed the bottom of the letter acknowledging receipt thereof, even though Respondent was not a sub-contractor.
Respondent’s business primarily consists of finding customers for contractors. He deals with a customer, but has a contractor, such as Mr. Lennox, perform the work Respondent’s company has contracted to do.
Had the contract with the homeowners in this proceeding gone through, Respondent intended to obtain payment from them, by having F L Construction, Inc., do the actual work.
Petitioner has incurred investigative costs in the amount of $277.52. This figure excludes any costs associated with attorney’s time.
CONCLUSIONS OF LAW
DOAH has jurisdiction of the subject matter of and the parties to this proceeding pursuant to the provisions of Sections
120.569 and 120.57(1), Florida Statutes.
Petitioner is a state agency charged with regulating the practice of licensed and unlicensed electrical contracting in accordance with the relevant provisions of Chapter 455 and 489, Florida Statutes.
Pursuant to Section 455.228, Florida Statutes (2006), the Department is empowered to discipline any person found guilty of any of the grounds enumerated in Sections 489.127(1) and 489.531(1), Florida Statutes (2006).
Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Evans Packing
Co. v. Department of Agriculture and Consumer Services, 550 So.
2d 112 (Fla. 1st DCA 1989); and Inquiry Concerning a Judge, 645 So. 2d 398 (Fla. 1994). The following statement has been repeatedly cited in discussions of the clear and convincing evidence standard:
Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief of (sic) conviction, without hesitancy, as to the truth of the allegations sought to be established. Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).
Part II of Chapter 489, Florida Statutes (2006), consists of Subsection 489.501 – 489.538, and regulates Electrical and Alarm System Contracting. The Administrative Complaints allege that the Respondent is guilty of violating Section 489.531(1)(a), Florida Statutes (2006), which provides in pertinent part, as follows:
A person may not:
(a) Practice contracting unless the person is certified or registered.
Section 489.505(12), Florida Statutes (2006), defines an electrical contractor to be:
(12) "Electrical contractor" or "unlimited electrical contractor" means a person who conducts business in the electrical trade field and who has the experience, knowledge, and skill to install, repair, alter, add to, or design, in compliance with law, electrical wiring, fixtures, appliances, apparatus, raceways, conduit, or any part thereof, which generates, transmits, transforms, or utilizes electrical energy in any form, including the electrical installations and systems within plants and substations, all in compliance with applicable plans,
specifications, codes, laws, and regulations. The term 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. [Emphasis added.]
Section 489.505(9), Florida Statutes (2006), defines contracting, in relevant part, as follows:
(9) "Contracting" means . . . engaging in business as a contractor or performing electrical or alarm work for compensation and includes, but is not limited to, performance of any of the acts found in subsections (2)[2] and (12), which define the services which a contractor is allowed to perform. 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.
Petitioner established by clear and convincing evidence that the Respondent violated 489.531(1), Florida Statutes (2006), by practicing electrical contracting or advertising himself or a business organization as being available to engage in such contracting without a certification or registration. Although he did not possess an electrical contracting license or certification, Respondent contracted to perform electrical work with the homeowners.
Pursuant to Section 455.228(1), Florida Statutes (2006), Petitioner may impose against Respondent an administrative penalty not to exceed $5,000.00 per incident of electrical contracting without certification or registration. Petitioner is entitled to recover the costs of the investigation pursuant to Section 455.228(3)(c), Florida Statutes (2006).
The recommendation that follows is based only on the violation alleged. In its Proposed Recommended Order, Petitioner argues for a penalty based, in part, on misconduct that was not alleged in the Administrative Complaint. The undersigned has not taken misconduct into consideration or any violation Respondent may have committed that was not alleged in the Administrative Complaint because to do so would be a denial of due process. See Wray v. Dept. of Professional Regulation, Bd. of Medical Examiners, 435 So. 2d 321 (Fla. 1st DCA 1983); Sternberg v. Dept. of Professional Regulation, Bd. of Medical Examiners, 465 So. 2d 1324 (Fla. 1st DCA 1985); and Cottrill v. Dept. of Insurance, 685 So. 2d 1371 (Fla. 1st DCA 1996).
Petitioner has cited no disciplinary guidelines applicable to this proceeding.
RECOMMENDED that Respondent enter a final order that finds Respondent guilty of having violated Section 489.531(1), Florida Statutes (2006). It is further RECOMMENDED that Respondent impose an administrative fine against Respondent in the amount of
$1,000.00 and assess investigative costs against Respondent in the amount of $277.52.
DONE AND ENTERED this 4th day of April, 2008, in Tallahassee, Leon County, Florida.
CLAUDE B. ARRINGTON
Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 2008.
1/ All statutory references, unless noted, are to Florida Statutes (2007).
2/ Subsection 2 relates to alarm system contractors. COPIES FURNISHED:
South Florida Construction Group Post Office Box 278167 Hollywood, Florida 33027-8167
Nancy S. Terrel, Hearing Officer Office of the General Counsel Department of Business and
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.
