STATE OF FLORIDA

F I L E D

Oepill,rt m erit of in s and Prnlessiooal Re-gulation

Senior Deputy Agency Clerk

CLERK Brandon Nichols

Date 9/5/2019

File# 2019-07815

DEPARTMENT OF BUSINESS & PROFESSIONAL REGULATION

DEPARTl\.'.l NT OF BUSINESS AND PROFESSIONAL REGULATION ,

Petitioner,

V.

RICKY LEE DIEMER,

Respondent.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ /

DBPR CASE Nos .: 2018-009391

2018-009415

DOAH CASE Nos.: 18-6578

18-6579

FI AL ORDER

The Department of Business and Professional Regulat ion, (the "Department" or " Pet itioner"), hereby enters this Final Order against Re spond ent , Ricky Lee Diemer ("Respondent"), for the above­ styled ma tter, and states as follow:

PUELIMINARY STATEMENT

This matter came before the Presiding Honorable Garnett W. Ch is enh a l l, Administrative Law Judge, Division of Administrative Hearings (hereinafter " DOAH" ), on February 19, 2019, i n Tallahassee Florida, in accordance with th e provisions of Section 120.57( I), Florida Statutes, for consideration of the Department 's Administrative Complaints against Respond ent in DBPR Case Numbers 2018-0094,15 (DOAH Case No. 18-6579) and 2018-009391 (DOAH Case No. 18-6578).

On June I 0, 2018 the Department issued a two-count Adm i n is t rat i ve Complaint ("June I 0th

Compla i nt" )1 against Respondent for violations of statutory law governing unlicensed practice of

electr ica l contracting. A true and correct copy of the Department s June I Oh' Complaint is attached

hereto and incorporated herein by reference as Ex hi bit '' A. '

1 At the outset of the final hear i ng, the Department dismissed its all egation in Count I I of the Administrative Complaint in DOAl·I Case No. 1 8-6579 (D l3P R Case No. 20 I 8-0094 1 5). Thus, this Final Order will only adurcss Count I of the Adminis trntive Complaint issued

,1ga ins t Respondent in D13PR Case No. 201 8-0094 1 5/DOA H Case No. 18-6579 and Counts I and 11 or the Administrative Complaint

issued against Res pond en l in DOl'R Case No. 2018-009391 /DO/\ l·I Case No. !8-6578.

Filed September 5, 2019 4:32 PM Division of Administrative Hearings

DBPR v. Ricky Lee Diemer · DBPR Case Nos.: 20 I 8-009391 and 20 I 8-009415

DOAH Case Nos.: I 8-6578 and I 8-6579

final Order

Page 2

Respondent disputed the June I 0th Complaint's allegations, and the case was referred to DOAH for a formal hearing and assigned DOAH Case No. 18-6579.

On June 11, 2018, the Department issued a two-count Administrative Complaint ("June 11 th Complaint") against Respondent for violations of statutory law governing unlicensed practice of construction contracting. A true and correct copy of the Department's June 11 th Complaint is attached hereto and incorporated herein by reference as Exhibit "B."

Respondent disputed the June I I th Complaint's allegations, and the case was referred to DOAH for a formal hearing and assigned DOAH Case No. 18-6578.

On December 21, 2018, the Administrative Law Judge ("ALJ") issued an Order consolidating DOAH Cases Nos. 18-6578 and 18-6579, and also issued a Notice scheduling the final hearing for February 19, 20 I 9. I

Respondent, on December 26, 2018, filed a "Request for Dismissal" asking the ALJ to dismiss the instant case. Construing the aforementioned pleading as a motion to dismiss, the ALJ issued an Order on January 4, 20 I 9, denying the motion to dismiss. True and correct copies of Respondent's Request for Dismissal and Order Denying the Motion to Dismiss are attached hereto and incorporated herein by reference as Exhibits "C" and "D" respectively.

On February 8, 2019, the Department filed a "Motion to Deem Admissions Admitted and Relinquish Jurisdiction" (hereinafter referred to as "Motion to Relinquish"). On February 15, 2019, the ALJ issued an Order denying the Department's Motion to Relinquish, in part, due to no indication that the Pro Se Respondent was aware of the consequences associated with being nonresponsive to discovery requests. True and correct copies of the Department's Motion to Relinquish and Order Denying the Motion are attached hereto and incorporated herein by reference

as Exhibits "E" and "F" respectively.

DBPR v. Ricky Lee Diemer DBPR Case Nos.: 20 I 8-009391 and 2018-009415

DOAH Case Nos.: 18-6578 and 18-6579

Final Order

Page 3

The final hearing commenced as scheduled on February 19, 2019, in Tallahassee, Florida. Respondent failed to appear at the final hearing and gave no indication afterwards of inability to attend.

The ALJ accepted the Department's Exhibits I through 3, 5, and 6 into the record as evidence. True and correct copies of the Department's Exhibits 1 through 3, 5, and 6 are attached hereto and incorporated herein by reference as Composite Exhibit "G."

At the outset of the final hearing, the Department dismissed its allegation in Count II of the Administrative Complaint in DOAH Case No. 18-6578 (DBPR Case No.2018-009415).

Subsequent to the conclusion of the final hearing, the one-volume Final Hearing Transcript was filed on February 28, 2019. A true and correct copy of the Final Hearing Transcript is attached hereto and incorporated herein by reference as Exhibit "H."

The Department timely filed its Proposed Recommended Order ("Department's PRO") on March 8, 2019. Respondent did not file a Proposed Recommend Order; however, Respondent did file a Response to the Department's PRO on March 11, 2019 ("Respondent's Response"). True and correct copies of the Department's PRO and Respondent's Response are attached hereto and incorporated herein by reference as Exhibits "I" and "J" respectively.

The ALJ, on April 11, 2019, issued a Recommended Order in this matter ("Recommended

Order"), which is1 attached hereto and incorporated herein by reference as Exhibit "K." No exceptions or any responses to same have been filed by either party with regard to the Recommended

Order.

After careful review of the complete record in this matter, including consideration of the Recommended Order, the Department makes the following findings and conclusions:

DBPR v. Ricky Lee Diemer DBPR Case Nos.: 20 I 8-00939 I and 20 I 8-009415

DOM! Case Nos.: 18-6578 and 18-6579

Final Order

Page 4

AGENCY STANDARD OF REVIEW

Pursuant to Section 120.57( I )(I), Florida Statutes, the Department may not reject or modify findings of fact unless it first determines, from a review of the entire record, and states with particularity, that the findings of fact were not based on competent substantial evidence. Competent substantial evidence is such evidence that is "sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached." Comprehensive Medical Access, Inc. v. Office of Ins. Regulation, 983 So. 2d 45, 46 (Fla. 1st DCA 2008) (quoting De Groot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957). In reviewing the record, the agency is not permitted to reweigh the evidence presented, judge the credibility of the witnesses, or otherwise interpret the evidence to fit a desired ultimate conclusion. Bill Salter Adver., Inc. v. DOT, 974 So. 2d 548, 551 (Fla. 1st DCA 2008) (citing Rogers v. Dep 't of Health, 920 So. 2d 27, 30 (Fla. 1st DCA 2005).

Pursuant to Section 120.57( I )(I), Florida Statutes, when rejecting or modifying conclusions of law or interpretations of administrative rules, the Department must state with particularity its reasons for rejecting or modifying such conclusion of law or interpretation of administrative rules and must make a finding that its substituted conclusion of law or interpretation of administrative rule is as or more reasonable than that which was rejected or modified.

FINDINGS OF FACT

I. There is competent, substantial evidence to support the Findings of Fact as set forth in the ALJ's Recommended Order as set forth in Exhibit "K."

1. Accordingly, the Findings of Fact as set forth m paragraphs I through 12 of the Recommended Order are approved, adopted, and incorporated herein by reference as the Findings of Fact of the Department.

   
   

   D8PR v. Ricky Lee Diemer D8PR Case Nos.: 2018-009391 and 2018-009415

   DOAI-1 Case Nos.: 18-6578 and 18-6579

   final Order

   Page 5

   
   

   CONCLUSIONS OF LAW

   
   

2. The Department has jurisdiction over this matter pursuant to sections 120.569, 120.57, and Chapters 455 and 489, Florida Statutes.

3. Accordingly, the Conclusions of Law as set forth in paragraphs 13 through 32 of the Recommended Order attached hereto as Exhibit "K" are approved, adopted, and incorporated herein by reference as the Conclusions of Law of the Department.

4. Section 120.57( 1 )(I), Florida Statutes, provides that the "agency in its final order may reject or modify the conclusions of law over which it has substantive jurisdiction and interpretation of administrative rules over which it has substantive jurisdiction."

5. Pursuant to Section 120.57( I )(I), Florida Statutes, when rejecting or modifying conclusions of law or interpretations of administrative rules, the Department "must state with particularity its reasons for rejecting or modifying such conclusion of law or interpretation of administrative rules and must make a finding that its substituted conclusion of law or interpretation of administrative rule is as or more reasonable than that which was rejected or modified."

6. The Department rejects the ALJ's Conclusions of Law as it pertains to paragraph 33 of the Recommended Order.

7. In paragraph 30 and 31 of the Recommended Order the ALJ concluded administrative

   
   

   fines in the amount of $7,500 should be levied against Respondent based upon the violations proven by the Department.

8. Although reaching such conclusions, the ALJ in paragraph 33 of the Recommended

Order, determined to increase Respondent's total administrative fine amount by $1,500 based upon the underlying danger posed to the public and the deterrent effect from committing future offenses.

DBPR v. Ricky Lee Diemer DBPR Case Nos.: 2018-009391 and 2018-009415

DOA!-! Case Nos.: 18-6578 and 18-6579

Pinal Order

Page 6 I 0. The Department finds that under all the facts and evidence in this case and based upon a review of the entire record, it cannot be concluded the aggravating factors cited by the ALJ in paragraph 33 of the Recommended Order are reasonable and warrant a departure from the

administrative fine amount concluded by the ALJ in paragraph 31 of the Recommended Order.

1. The Department finds a substituted conclusion of law affirming the ALJ's conclusion in paragraph 31 of the Recommended Order of an administrative penalty of $7,500 to be imposed against the Respondent is as or more reasonable than that concluded in paragraph 33 of the Recommended Order which is being rejected.

2. Based on the foregoing, the Department finds Respondent in violation of Chapters 455 and 489, Florida Statutes, by advertising unlicensed practice of construction contracting and practicing construction and electrical contracting without a license.

3. Accordingly, there is competent, substantial evidence to support the Department's

substituted conclusions of law which is as or more reasonable than the Administrative Law Judge's

(

Conclusions of Law as it pertains to paragraph 33 of the Recommended Order which was rejected.

ORDER

WHEREFORE, based upon the foregoing Findings of Facts and Conclusions of Law, as adopted from the Administrative Law Judge's Recommended Order of the Final Hearing in DOAH Case Nos. 18-6578 (DBPR 2018-009391) and 18-6579 (DBPR 2018-009415), it is hereby ORDERED

that the:

I. Respondent shall pay to the Department an administrative fine in the amount of Seven Thousand Five Hundred Dollars ($7,500.00) and investigative costs in the amount of Two Hundred Ten Dollars ($210.00), for a total amount of Seven Thousand Seven Hundred Ten Dollars

DI3PR v. Ricky Lee Diemer DBPR Case Nos.: 2018-009391 and 2018-009415

DOA!-! Case Nos.: 18-6578 and 18-6579

Final Order

Page 7

($7,710.00) payable within thirty (30) days of the date of filing of this Order with the Agency Clerk of

I

the Department of Business and Professional Regulation;

2. Respondent shall pay the administrative fine of and costs by certified check, cashier's check, or money order made payable to the Department of Business and Professional Regulation, 260 I Blair Stone Road, Tallahassee, Florida 32399-2202. Respondent shall ensure Case Numbers DBPR 2018-009391 (DOAH 18-6578) and DBPR 2018-009415 (DOAH 18-6579) are referenced on the submitted form of payment; and

This ORDER shall become effective upon the date of filing with the Agency Clerk of the

Department of Business and Professional Regulation.

DONE AND ORDERED on this J../: day of $ep-t-evvi be/r , 2019, in Tallahassee, Florida.

HEARS, SECRETARY

Department of Business and Professional Regulation 260 I Blair Stone Road

Tallahassee, Florida 32399

NOTICE OF RIGHT TO APPEAL

Any party to this proceeding has the right to seek its judicial review under Section 120.68, Florida Statutes, by the filing of an original Notice of Appeal pursuant to Rules 9.1 IO and 9.190, Florida Rules of Appellate Procedure, with the Agency Clerk, 260 I Blair Stone Road, Tallahassee,

Florida 32399-2202 (email: AGC.Filing@myf1oridalicense.com), and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate Florida District Court of Appeal. The Notice of Appeal must be filed (received) in the Office of the Agency Clerk within thirty (30) days after the date this Order is filed with the Cieri<.

DBPRv. Ricky Lee Diemer DBPR Case Nos.: 2018-009391 and 2018-009415

DOA!-! Case Nos.: 18-6578 and 18-6579

Final Order

Page 8

CERTIFICATE OF SERVICE

I HEREBY CERTIFY on this day of kr,2019, that a true

and correct copy of the foregoing "Final Order" has been furnished via U.S. Mail to:

RICKY LEE DIEMER

822 Ridge Road

Tallahassee, Florida 32305-7039

AGENCY CLER: •s-0"F-FieE--

Department of Business and Professional Regulation

Copies Furnished To: Keneidra Williams, AAIII OGC Jackson Pellingra, Attorney Maureen White, Chief Attorney

Docket for Case No: 18-006579

Orders for Case No: 18-006579