Alexander, the assigned Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: John O. Williams, Esquire
Maureen F. Holz, Qualified Representative Post Office Box 14267
The issue is whether Respondent should have an administrative fine or other disciplinary action imposed for allegedly acting as a contractor without a license.
This matter began on January 27, 1997, when Petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board, issued an administrative complaint alleging that Respondent, Benjamin Ward, Jr., had engaged in the unlicensed practice of contracting, failed to pull permits for a construction job, and committed misconduct in the practice of contracting which resulted in financial harm to the customer.
Respondent denied the allegations and requested a formal hearing under Section 120.57(1), Florida Statutes, to contest the charges. The matter was referred by Petitioner to the Division of Administrative Hearings on March 5, 1997, with a request that an Administrative Law Judge be assigned to conduct a formal hearing. By Notice of Hearing dated April 14, 1997, a final hearing was scheduled on June 10, 1997, in Jacksonville, Florida. At the request of Petitioner, venue was later changed to Jacksonville Beach, Florida.
At final hearing, Petitioner presented the testimony of Rkia Sorbes Carmack, the complaining consumer; Deborah White, a building code inspector; and Walter Henderson, an electrical inspector. Also, it offered Petitioner's exhibits 1-3. All exhibits were received in evidence.
The transcript of hearing was filed on July 15, 1997.
Petitioner on August 5, 1997, and they have been considered by the undersigned in the preparation of this Recommended Order.
When the events herein occurred, Respondent, Benjamin Ward, Jr., operated a business under the name of Ward's Handyman Services at 1204 Don Quixote North, Jacksonville Beach, Florida. Records of Petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board (Board), indicate that Respondent is not licensed as a residential contractor.
Rkia Carmack, also known as Maria Carmack, owns a residence at 301 Sixth Street, South, Jacksonville Beach. She is disabled, confined to a wheelchair, and does not read or write the English language. Carmack desired to remodel her home and based on a recommendation by a friend, chose Respondent to perform the work. It can be reasonably inferred from the evidence that Respondent represented to Carmack that he was authorized to perform contracting work on her house.
On October 25, 1995, Respondent drafted a "Proposal" which sets forth the rather lengthy terms of the work to be done. The Proposal provided that Respondent would "re-carpet house, popcorn ceiling in house, replace kitchen countertop and faucet, [and] put on new shingles on roof." In addition, he agreed to
"[t]ile kitchen floor, extend room to 12 x 14 and make bathroom to master bedroom 9 x 12 with wheel case excessible (sic) shower, one window, dual sinks, linen closet, and 5 1/2 x 9 closet, 36" door from garage to master bathroom, tile bathroom and shower and walk of shower, sink and toilet in bedroom #2." The Proposal further called for Respondent to "[t]exture walls in living room area; [r]eplace all windows with 'Kinco' windows; [and install] [a]ll mason on front side windows and except bath." Finally, Respondent agreed that "[o]wner will buy paint for job, and locks for house," but that he would "[i]nstall concrete to make front entrance wheel excessible (sic), [and] enlarge side LR window." The approximate completion date for all work was "on or before November 20, 1995." Respondent was not licensed to perform any of this work. The Proposal reflects that Carmack would pay "$11,500.00 and balance at completion of entire job." The Proposal was accepted by Carmack on October 25, 1995.
The evidence is conflicting as to what amount of money was paid by Carmack to Respondent for the work performed. It is clear, however, that she paid all amounts in cash and did not receive any receipts for these payments. As incremental payments were made, however, Respondent noted these payments in a portion of the Proposal. It reflects that Carmack paid the following amounts on the cited dates: October 25, 1995 -- $2,000.00; October 27, 1995 -- $3,000.00; October 28, 1995 -- $1,800.00; November 18, 1995 -- $5,000.00; and December 14, 1995 --
$1,000.00. These payments totaled $12,800.00.
Carmack contended that she paid $5,000.00 "up front" and gave varying amounts thereafter, but she gave conflicting dates and amounts, and her recollection of the events was obviously not clear. Assuming that Respondent's notes on the Proposal are correct, she still paid Respondent around $12,800.00 for the work. There was no evidence that Respondent was not fully paid in accordance with the Proposal.
Respondent hired several workers to do the assigned tasks, none of whom were licensed, and he supervised all work being performed. It is reasonable to infer that he assumed the role of a contractor on the project. Although required, no building permits were ever obtained from the City of Jacksonville Beach (City) before the work began.
Problems regarding workmanship arose, including the new shingles blowing off the roof during a storm which occurred two days after they were installed. In April 1996, two City building inspectors inspected Carmack's home. They found a number of deficiencies in the workmanship, including the plumbing, roofing, and electrical work, as well as problems with the carpet, sheet rock, and water drainage. Some of the deficiencies amounted to safety hazards. Overall, the two inspectors described the quality of work as being "very poor."
The City required that Respondent hire licensed individuals to correct the deficiencies. These deficiencies were
apparently resolved in May or June 1996 although Carmack contended it cost her additional money over and above the price specified in the Proposal. The record is unclear as to the amount of additional moneys paid. Even so, her testimony that she paid additional moneys was not contradicted.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Section 120.57(1), Florida Statutes.
Because Respondent is subject to penal sanctions, including the imposition of an administrative fine, Petitioner bears the burden of proving by clear and convincing evidence that the allegations in the complaint are true. See, e.g., Osborne Stern & Co., Inc., v. Dep't of Banking and Finance, 670 So. 2d 932, 933 (Fla. 1996).
The complaint alleges that Respondent (a) violated Section 489.127(1)(f), Florida Statutes, by engaging in the unlicensed practice of contracting (Count I), (b) commenced work without obtaining the necessary permits in violation of Section 489.127(1)(h), Florida Statutes (Count II), and (c) committed misconduct in the practice of contracting which resulted in financial harm to the customer as proscribed by Section 489.129(1)(h), Florida Statutes (Count III).
As to Count I, Petitioner has established by clear and convincing evidence that Respondent engaged in business as a
contractor without being registered or certified. In reaching this conclusion, the undersigned has construed Respondent's action of entering into a contract to remodel Carmack's home as falling within the definitions of "contractor" and "contracting" as those terms are defined in Sections 489.105(3) and (6), Florida Statutes, respectively.
As to Count II, there is clear and convincing evidence that Respondent failed to obtain the necessary building permits before commencing the work as required by Section 489.127(1)(h), Florida Statutes.
Finally, there is clear and convincing evidence that Respondent engaged in misconduct in the practice of contracting within the meaning of Section 489.129(1)(h), Florida Statutes, because the "customer has had to pay more for the contracted job than the original contract called for." Therefore, Count III has been sustained.
Section 455.228(1), Florida Statutes, provides that the Board may impose upon unlicensed persons an administrative fine not to exceed $5,000.00 per incident for violations of Chapter 489, Florida Statutes. Although three statutory violations have occurred here, they arose out of a single construction job. Therefore, a single fine is appropriate. In its proposed order, Petitioner recommends the imposition of a $5,000.00 fine "[i]n light of previous complaints against Respondent and the seriousness of this complaint." However, there is nothing of
record to indicate any previous complaints against Respondent. Given the circumstances present here, an administrative fine in the amount of $1,000.00 is reasonable.
Petitioner also asks that a cease and desist order be entered under the authority of Section 455.228(1), Florida Statutes. That statute authorizes the issuance of such an order without affording the individual a hearing under Sections 120.569 and 120.57, Florida Statutes. It further provides that enforcement of the order shall be done in circuit court. Since the administrative complaint contains a request for "any other relief appropriate," however, the inclusion of such a provision within this order appears to be permissible.
