STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this case on February 15, 2008, by way of video teleconference, with sites in Tallahassee and Tampa, Florida, before Administrative Law Judge R. Bruce McKibben of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Kyle Christopher, Esquire

Tiffany Harrington, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202 For Respondent: (No appearance)

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent engaged in the unlicensed practice of contracting, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

Petitioner, Department of Business and Professional Regulation (the "Department"), filed an Administrative Complaint against Respondent dated September 11, 2007. The complaint alleges that James Delaughter provided contracting services to customers without holding the requisite licenses from the State of Florida. Respondent disputed the facts set forth in the complaint and asked for a formal administrative hearing. The case was assigned to the undersigned, and a formal hearing was held as set forth above. At the final hearing, Petitioner offered exhibits identified as A through H into evidence, each of which was admitted. Respondent James Delaughter did not appear at the final hearing.1 Petitioner called three witnesses to testify at the final hearing: Regina Virgil; Kelly Capes, investigator for the Department; and Thomas Aikens, a licensed roofing contractor.

At the close of the final hearing, the Department advised the undersigned that a transcript of the proceeding would be ordered. The Department was advised that proposed recommended orders would be due ten days after the transcript was filed at DOAH. The Transcript was filed on March 3, 2008. Petitioner timely submitted a Proposed Recommended Order, and it was duly- considered in the preparation of this Recommended Order.

Respondent did not timely file a proposed recommended order.

FINDINGS OF FACT

1. The Department is the state agency responsible for, inter alia, licensing and monitoring general contractors. Department headquarters are in Tallahassee, Florida. Part and parcel of the Department's duties is the sanctioning of persons who practice general contracting without a license.

2. Respondent is an individual living in Tampa, Florida.

   
   

   Respondent did not appear at final hearing and has not filed any post-hearing motions concerning his failure to appear.

3. The Administrative Complaint filed by the Department makes the following allegations:

   1. Respondent was not registered or certified to engage in the practice of contracting.

   2. Respondent, doing business as J.D.S. Roofing, contracted with Vivian Virgil to perform certain roofing work, specifically, to remove and replace shingles and related work to reconstruct the roof on Virgil's home. A contract between the parties dated April 21, 2006, was signed by Virgil and Respondent (or his authorized representative).

4. Virgil made two payments to Respondent in the amounts of $2,500.00 (via check number 1037) and $1,564.46 (via check number 1040). She also made a payment of $2,860.54 to The Home Depot to pay for materials ordered by Respondent for Virgil's roofing repairs.

5. Respondent then made the contracted-for repairs and replacement of Virgil's roof pursuant to the contract.2 Virgil, however, was not pleased with the quality of the work. She is unable to get a warranty on the roof because Respondent's work was inferior. Virgil must have another contractor re-do the roof in order to get a warranty.

6. Neither Respondent nor his company, J.D.S. Roofing, is or has ever been licensed by the State of Florida as a contractor. However, Respondent held himself out as a general contractor in his dealings with Virgil.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes (2007).

8. Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent.

§ 120.57(1)(h), Fla. Stat. (2006)3; Department of Banking and Finance, Division of Securities and Investor Protection v.

Osbourne, Stern and Co., 670 So. 2d 932 (Fla. 1996); 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). Petitioner has met its burden in this case.

1. Section 489.127, Florida Statutes, states:

   
   

   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.

      
      

      Neither Respondent nor his company was duly-registered or certified when Respondent engaged in the business of contracting.

2. Subsection 489.105(3), Florida Statutes, provides that a contractor is a:

   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.

   
   

3. The contracting for and/or the performance of work described above constitutes engaging in the practice of contracting pursuant to Subsection 489.105(3), Florida Statutes. Respondent engaged in the act of contracting when he contracted with Virgil and made repairs to the roof at Virgil's home.

RECOMMENDATION

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

RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation finding that Respondent, James Delaughter, is guilty of the unlicensed practice of contracting and imposing a fine of $5,000.00.

DONE AND ENTERED this 8th day of April, 2008, in Tallahassee, Leon County, Florida.

R. BRUCE MCKIBBEN 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 8th day of April, 2008.

ENDNOTES

1/ Delaughter called into the Division of Administrative Hearings after the final hearing was over. He was advised to file a motion or other document if he believed the hearing was held in error or if there were just cause for holding a further proceeding. Nothing has been filed by Respondent to date.

2/ Respondent had another licensed contractor pull the required building permit because Respondent was not able to do so himself.

3/ Unless specifically stated otherwise herein, all references to Florida Statutes shall be to the 2006 version.

COPIES FURNISHED:

Kyle Christopher, Esquire Tiffany Harrington, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

James Delaughter Post Office Box 7466

Tampa, Florida 33673

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

Ned Luczynski, 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: 07-005720

Orders for Case No: 07-005720