STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. ) Case No. 98-1283

) CHRIS RAMEIZL d/b/a C. J. HOME ) IMPROVEMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on June 23, 1998, at Miami, Florida, before Claude B. Arrington, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Theodore R. Gay, Esquire

Department of Business and Professional Regulation

401 Northwest Second Avenue, Suite N-607 Miami, Florida 33138

For Respondent: Chris Rameizl, pro se

921 Northeast 71st Street Miami, Florida 33138

STATEMENT OF THE ISSUES

Whether Respondent committed the offenses alleged in the Administrative Complaint and the penalties, if any, that should be imposed.

PRELIMINARY STATEMENT

On January 10, 1997, Petitioner filed an Administrative Complaint against Respondent that contained two counts. After alleging that Respondent has not been licensed as a contractor in the State of Florida, the Administrative Complaint alleged certain facts pertaining to an agreement to perform roofing work on a building managed by its co-owner, Joseph Pallant. Based on those allegations, Petitioner charged in Count I that Respondent violated the provisions of Section 489.127(1)(f), Florida Statutes, and that he was subject to being disciplined pursuant to Section 455.228, Florida Statutes. Petitioner charged in Count II that Respondent was guilty of theft within the meaning of Section 489.126, Florida Statutes, and was, consequently, subject to prosecution pursuant to Section 812.014, Florida Statutes. Respondent timely disputed the allegations of the Administrative Complaint and requested a formal hearing. The matter was thereafter referred to the Division of Administrative Hearings, where it was assigned Case Number 98-1283.

At the beginning of the formal hearing, Petitioner voluntarily dismissed Count II of the Administrative Complaint.

Respondent was late arriving at the formal hearing. After waiting over fifteen minutes for him to appear, the hearing was begun without his presence. Respondent appeared while Petitioner's only witness was testifying. Once he appeared, the testimony was interrupted and Respondent was thoroughly briefed as to what had transpired before he arrived. Thereafter, the

hearing resumed without objection.

At the formal hearing, Petitioner presented the testimony of Joseph Pallant and presented four exhibits, each of which was accepted into evidence. Respondent testified on his own behalf and presented five exhibits, four of which were accepted into evidence.

A transcript of the proceedings has been filed. The Petitioner filed a Proposed Recommended Order, which has been duly considered by the undersigned in the preparation of this Recommended Order. Respondent did not file a proposed recommended order, but his testimony and argument at the formal hearing have been duly considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At the times pertinent to this proceeding, Respondent was not registered, certified, or otherwise licensed to engage in contracting in the State of Florida. At the times pertinent to this proceeding, Respondent conducted business through an entity known as C. J. Home Improvement Corporation, which was also not registered, certified, or otherwise licensed to engage in contracting in the State of Florida.

2. In 1995, Joseph Pallant was one of the owners and the manager of a commercial building located at 3700 Biscayne Boulevard, Miami, Florida.

3. In January 1995, Mr. Pallant entered into an agreement

   to lease the building for a term of ten years to a non-profit organization named PWAC, an acronym for People With Aids Coalition. PWAC had an office in the adjacent block and wanted to operate a thrift shop at the subject premises.

4. The roof on the subject building leaked. The parties agreed that Mr. Pallant would pay to replace the roof and that PWAC would thereafter be responsible for maintenance.

5. The officers of PWAC informed Mr. Pallant that they wanted Respondent to do the roofing work.

6. There was a conflict in the evidence as to whether Mr. Pallant knew that Respondent was unlicensed. It is clear that Mr. Pallant and Respondent knew one another prior to January 1995. Based on Mr. Pallant's testimony, which the undersigned finds credible, it is found that Mr. Pallant knew

   that Respondent was in the building repair business, but that he did not know Respondent was unlicensed. Respondent's assumption that Mr. Pallant knew he was unlicensed is not as credible as Mr. Pallant's direct, unequivocal testimony that he had no such knowledge.

7. After having several conversations with Mr. Pallant by telephone and at the building, Respondent prepared a written proposal on his business form to do the work necessary to replace the roof.

8. The proposal was submitted to PWAC. The proposal described in detail the work that would be done and the materials that would be furnished, the time frame for the work, and the price. The price was set at $6,183.00 plus $400.00 if certain additional work would have to be done on certain drains.

9. PWAC was provided a copy of the proposal that was dated

   February 25, 1995. Respondent signed this proposal and affixed

   the corporate seal of his business entity. Under Respondent's signature was the phrase "personally individually guaranteed."

10. At all times pertinent to this proceeding, Respondent knew that Mr. Pallant was one of the owners of the building and that he would be paying for the roofing work.

11. On February 27, 1995, Respondent and Mr. Pallant met. Respondent gave Mr. Pallant an unsigned copy of the written proposal (dated February 27, 1995, but otherwise identical to the form given PWAC, but dated February 25, 1995). After they discussed the work, Mr. Pallant accepted the proposal and gave Respondent a check made payable to C. J. Home Improvement in the amount of $3,100.00. Respondent accepted this check and deposited the proceeds of the check in his company's bank account.

12. Without the prior knowledge or consent of Mr. Pallant, Respondent attempted to subcontract the roofing job to a licensed roofer named Don Palmier.1

13. No work was started on the job. In March 1995,

    
    

    Mr. Pallant met with representatives of PWAC and Respondent to discuss the lack of progress. As a result of that meeting, Mr. Palmier refused to proceed with the roofing job2 and

    Mr. Pallant learned that Respondent was unlicensed and could not do the work. During the course of the meeting PWAC cancelled its lease.

14. Mr. Pallant subsequently filed suit against C. J. Home

    Improvement for the return of the $3,100.00. Despite obtaining a

    final judgment for that sum plus costs and fees, the Respondent has not satisfied any portion of the judgment.

15. As of April 23, 1998, the Petitioner's costs of investigation and prosecution in this case, excluding costs associated with an attorney's time, totaled $269.62.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction of the parties to and the subject of this proceeding. Section 120.57(1), Florida Statutes.

17. Petitioner is the agency of the State of Florida charged with the responsibility of regulating the practice of contracting in the State of Florida pursuant to Section 20.165, Florida Statutes, and Chapters 455 and 489, Florida Statutes.

18. Petitioner bears the burden of proving the allegations against Respondent by clear and convincing evidence. 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), Department of Banking and Finance v. Osborne Stern Co., 670 So. 2d 932 (Fla. 1996).

19. Count I of the Administrative Complaint alleges that Respondent violated Section 489.127(1)(f), Florida Statutes, which contains the following prohibition:

    1. No person shall:

       
       

       * * *

       
       

       (f) Engage in the business or act in the capacity of a contractor or advertise himself

       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. . . .

       
       

20. Pursuant to Section 455.228, Florida Statutes, the Petitioner has the authority to impose an administrative fine against a person who has engaged in the unlicensed practice of a profession regulated pursuant to Chapters 455 and 489, Florida Statutes. Section 455.228(1), Florida Statutes, provides actions the Petitioner can take when it has probable cause to believe that a person has engaged or is engaging in the unlicensed practice of a profession regulated by Petitioner. In addition to remedies available in Circuit Court, Section 455.228(1), Florida Statutes, provides for the imposition of an administrative fine as follows:

    1. . . . In addition to the foregoing remedies, the department may impose an administrative penalty not to exceed $5,000 per incident pursuant to the provisions of chapter 120. . . .

       
       

21. Section 489.105(3)(e), Florida Statutes, provides the following definitions pertinent to this proceeding:

    (3) "Contractor" means the person who is qualified for, and shall only be responsible for, the project contracted for and means, except as exempted in this part, the 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. . . .

    
    

    * * *

    
    

    (e) "Roofing contractor" means a contractor whose services are unlimited in the roofing trade and who has the experience, knowledge, and skill to install, maintain, repair, alter, extend, or design, when not prohibited by law, and use materials and items used in the installation, maintenance, extension, and alteration of all kinds of roofing, waterproofing, and coating, except when coating is not represented to protect, repair, waterproof, stop leaks, or extend the life of the roof.

22. Petitioner established by clear and convincing evidence that Respondent submitted a bid to replace the roof on the commercial building at issue in this proceeding, and he received compensation, in the amount of $3,100.00, to begin the work. Those acts are sufficient to establish that Respondent engaged in the unlicensed practice as a roofing contractor in violation of Section 489.127(1)(f), Florida Statutes, as alleged in Count I of the Administrative Complaint.

23. Petitioner has not adopted disciplinary guidelines for a violation of Section 489.127(1)(f), Florida Statutes. The recommendation as to the amount of the fine to be imposed against Respondent is believed to be reasonable based on all facts of the proceeding and is the amount recommended by Petitioner in its Proposed Recommended Order.

24. Section 455.227(3), Florida Statutes, provides, in pertinent part, as follows:

(3) In addition to any other discipline

imposed pursuant to this section or discipline imposed for a violation of any practice act, the board, or the department when there is no board, may assess costs related to the investigation and prosecution of the case excluding costs associated with an attorney's time. . . .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the findings of fact and conclusions of law contained herein; finds Respondent guilty of violating the provisions of Section 489.127(1)(f), Florida Statutes, as alleged in Count I of the Administrative Complaint; dismisses Count II of the Administrative Complaint; imposed an administrative fine against the Respondent in the amount of $2,500.00; and assesses costs against Respondent in the amount of $269.62.

DONE AND ENTERED this 10th day of September, 1998, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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

Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 1998

ENDNOTES

1/ Respondent asserted that his role was to find a licensed contractor for the job and to thereafter monitor the work.

Respondent further asserts that the officers of PWAC and Mr. Pallant knew that he was unlicensed and that everyone

understood his limited role. That position is rejected as being contrary to the clear and convincing evidence to the contrary, which includes an unambiguous written proposal.

2/ The undisputed testimony was that Mr. Palmier had agreed to reduce his price for the work to $4,800.00 because PWAC was a non-profit organization. He became upset when he learned the amount Respondent was charging for the work. Respondent testified of the $3,100.00 given to him by Mr. Pallant, he, in turn, had given Mr. Palmier $2,400.00 to get started. The difference between what Respondent was charging for the roofing job and the amount he was to pay Mr. Palmier was viewed by Respondent as being a finder's fee and as payment to oversee Mr. Palmier's performance which, by definition, is also probably contracting.

COPIES FURNISHED:

Richard T. Farrell, Secretary Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Lynda L. Goodgame, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Theodore R. Gay, Esquire Department of Business and

Professional Regulation

401 Northwest Second Avenue Suite N-607

Miami, Florida 33138

Chris Rameizl, pro se

921 Northeast 71st Street Miami, Florida 33138

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.

1 Respondent asserted that his role was to find a licensed contractor for the job and to thereafter monitor the work. Respondent further asserts that the officers of PWAC and Mr. Pallant knew that he was unlicensed and that everyone understood his limited role. That position is rejected as being

contrary to the clear and convincing evidence to the contrary, which includes an unambiguous written proposal.

2 The undisputed testimony was that Mr. Palmier had agreed to reduce his price for the work to $4,800.00 because PWAC was a non-profit organization. He became upset when he learned the amount Respondent was charging for the work. Respondent testified of the $3,100.00 given to him by Mr. Pallant, he, in turn, had given Mr. Palmier $2,400.00 to get started. The difference

between what Respondent was charging for the roofing job and the amount he was to pay Mr. Palmier was viewed by Respondent as being a finder's fee and as payment to oversee Mr. Palmier's performance.

Docket for Case No: 98-001283

Orders for Case No: 98-001283