STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION,

Petitioner,

vs.

RAUL TROCHE,

Respondent.

/

Case No. 14-4052

RECOMMENDED ORDER

Pursuant to notice to all parties, a final hearing was conducted in this case on November 25, 2014, via video teleconference with sites in Tallahassee and Daytona Beach, Florida, before Administrative Law Judge R. Bruce McKibben of the Division of Administrative Hearings. The parties were represented as set forth below.

APPEARANCES

For Petitioner: Stephen M. Masterson, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399 For Respondent: No Appearance

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent violated provisions of statutes governing licensure of construction contractors and, if so, what penalties should be imposed.

PRELIMINARY STATEMENT

On or about January 21, 2014, Petitioner, Department of Business and Professional Regulation, (hereinafter the "Department"), filed an Administrative Complaint charging Respondent with various violations of Florida Statutes and rules governing construction contracting. The Department alleged that Respondent was “performing an activity requiring licensure under [chapter 489, Part I, Florida Statutes] as a construction contractor” but without the requisite license. Respondent returned the Election of Rights form in which he denied the allegations and requested a formal administrative hearing. The request was forwarded to the Division of Administrative Hearings ("DOAH") on August 28, 2014.

At the final hearing, Respondent failed to appear. After calling the proceeding to order at the scheduled time

(9:00 a.m.), the Administrative Law Judge called a recess for

30 minutes and had his assistant call Respondent’s telephone.

She received no answer. The proceeding was called back on the record at 9:30 a.m. The Department asked for official recognition of chapters 455 and 489, Part I, Florida Statutes,

which was given. The Department offered three Exhibits into evidence, each of which was received. No witnesses were called by the Department.

A transcript of the final hearing was not ordered. The parties were, by rule, allowed ten days from the final hearing to submit proposed recommended orders. The Department waived its right to file a Proposed Recommended Order. No proposed recommended order was filed by Respondent.

FINDINGS OF FACT

1. The Department is the state agency charged with regulating the practice of construction contracting pursuant to section 20.165, and chapters 455 and 489, Part I, Florida Statutes. Unless specifically stated herein, all references to Florida Statutes will be to the 2014 version.

2. Respondent is not licensed to practice construction contracting in the State of Florida. Neither Respondent nor his putative company, Troche’s Construction, Inc., has an active license as a construction business in this state.

3. On or about October 31, 2012, Respondent entered into a “proposal” with Paul R. Schettino (the “Owner”) to construct a firewall across the Owner’s place of business. The proposal called for Respondent to build “an approx. 48 ft wall, to be firerocked 5/8 drywall on both sides. Studs to be 3 5/8 metal. To be built and ready for paint.” The cost of the work was to be

   
   

   $2,200. (One of the Department’s exhibits indicates a price of

   
   

   $1,650 for the work, but the actual cost is irrelevant.)

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes (2014).

5. The burden of proof is on the Department to show, by a preponderance of the evidence, that Respondent violated the statutes set forth in the Administrative Complaint. Ferris v.

   Turlington, 510 So. 2d 292 (Fla. 1987).

   
   

6. Section 489.13, Florida Statutes (2014), is entitled ”Unlicensed contracting; notice of noncompliance; fine; authority to issue or receive a building permit; web page.” It states in pertinent part:

   1. Any person performing an activity requiring licensure under this part as a construction contractor is guilty of unlicensed contracting if he or she does not hold a valid active certificate or registration authorizing him or her to perform such activity, regardless of whether he or she holds a local construction contractor license or local certificate of competency. Persons working outside the geographical scope of their registration are guilty of unlicensed activity for purposes of this part.

      
      

   2. For a first offense, any person who holds a state or local construction license and is found guilty of unlicensed contracting

      
      

      under this section shall be issued a notice of noncompliance pursuant to s. 489.131(7).

      
      

   3. Notwithstanding s. 455.228, the department may impose an administrative fine of up to $10,000 on any unlicensed person guilty of unlicensed contracting. In addition, the department may assess reasonable investigative and legal costs for prosecution of the violation against the unlicensed contractor. The department may waive up to one-half of any fine imposed if the unlicensed contractor complies with certification or registration within 1 year after imposition of the fine under this subsection.

      
      

7. The Department provided unequivocal, unrefuted evidence that Respondent was engaged in the practice of construction contracting without a license. No evidence was presented as to whether a “notice of noncompliance” had been issued to Respondent. No evidence was presented by Respondent to mitigate the sanction to be imposed.

RECOMMENDATION

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

RECOMMENDED that a final order be entered by Petitioner, Department of Business and Professional Regulation, finding Respondent, Raul Troche, guilty of engaging in the business of construction contracting without a license. It is further recommended that the final order impose a minimal fine or, in the alternative, issue a notice of noncompliance.

DONE AND ENTERED this 8th day of December, 2014, in Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 2014.

COPIES FURNISHED:

Stephen M. Masterson, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399 (eServed)

Raul Troche

70 Belleaire Drive

Palm Coast, Florida 32137

J. Yvette Pressley, Hearing Officer Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399 (eServed)

J. Layne Smith, General Counsel Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399 (eServed)

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: 14-004052

Orders for Case No: 14-004052