STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION,

Petitioner,

vs.

ROBERT FOOTMAN,

Respondent.

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) Case No. 01-3890

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RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge, Stephen F. Dean, held a formal hearing in the above-styled case on January 8, 2002, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Patrick Creehan, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-3060

For Respondent: Robert Footman, pro se

2720 Lake Mary Street Tallahassee, Florida 32310

STATEMENT OF THE ISSUE

Whether Respondent violated Section 489.127(1)(f), Florida Statutes, as alleged in the Administrative Complaint filed against Respondent in this proceeding and should be disciplined.

PRELIMINARY STATEMENT

On March 29, 2001, Petitioner filed an Administrative Complaint alleging that Respondent had violated the laws regulating the practice of unlicensed contracting in the State of Florida. The one-count Administrative Complaint charged Respondent with having violated Section 489.127(1)(f), Florida Statutes, by advertising himself as and engaging in the business of contracting without being duly registered or certified.

During the hearing, Petitioner offered the testimony of one witness, Harold Knowles. Petitioner introduced four exhibits which were entered into evidence.

Respondent offered no exhibits and testified in his own behalf.

The parties offered post-hearing pleadings that were read

and considered.

FINDINGS OF FACT

1. At no time material to the allegations was Respondent licensed or certified as a contractor of any type by the Florida Construction Industry Licensing Board.

2. On or about June 2000, Respondent entered into a written contractual agreement with Harold Knowles to construct a swimming pool at Mr. Knowles' residence located at 235 North Rosehill Drive, Tallahassee, Florida.

3. The contract price for the swimming pool was

   
   

   $18,650.00. Mr. Knowles paid directly to Respondent $9,400.00.

   
   

4. Respondent performed some work on the pool project and then stopped work on the project.

5. Respondent failed to return to Mr. Knowles any monies received for the project.

6. The homeowner was forced to pay out-of-pocket expenses to have a second, licensed pool contractor finish the pool that Respondent left unfinished. These expenses total in excess of

   $24,000.00.

   
   

7. Respondent acknowledges that he had no license.

   
   

8. Respondent testified at hearing along with his wife.

   
   

   It was clear that Respondent was sorry for his actions. He was unaware of the gravity of his acts. He does not have any financial resources, and a significant fine will not benefit Mr. Knowles. A substantial fine adversely impact Respondent's family more than Respondent.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding pursuant to Section 120.57, Florida Statutes.

10. Petitioner, the Department of Business and Professional Regulation, is the state agency charged with

    regulating the practice of contracting pursuant to Section 20.165 and Chapters 455 and 489, Florida Statutes.

11. Pursuant to Section 455.228, Florida Statutes, the Department of Business and Professional Regulation has jurisdiction over the unlicensed practice of contracting and is empowered to assess fines and investigative costs and other penalties against an individual who is found guilty of unlicensed contracting in contrary to Section 489.113(2), Florida Statutes.

12. Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. Section 120.57(1)(h), Florida Statutes; Ferris v. Turlington, 510 So. 2d

    292 (Fla. 1987); and Department of Banking and Finance v.

    
    

    Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996).

    
    

13. The Administrative Complaint alleges Respondent is guilty of having violated Section 489.127(1)(f), Florida Statutes, which provides, in pertinent part, as follows: No person shall engage in the business or act in the capacity of a contractor without being duly registered or certified 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.

14. Petitioner has proven by clear and convincing evidence that Respondent violated Section 489.127(1)(f), Florida

    Statutes, by engaging in contracting without being duly registered or certified. Respondent admitted that he is unlicensed. The records reveal that at the time in question, he was unlicensed.

15. Respondent is subject to disciplinary action by the Department of Business and Professional Regulation pursuant to Section 455.228(1), (2), (3)(a) and (3)(c), Florida Statutes, as alleged in the Administrative Complaint.

16. Section 455.2273(5), Florida Statutes, states that the Administrative Law Judge, in recommending penalties in any recommended order, must follow the penalty guidelines established by the Board or Department and must state in writing the mitigating or aggravating circumstances upon which the recommended penalty is based.

17. The homeowner paid $9,400.00 to Respondent.

    
    

    Respondent did little more than excavate a hole in the ground before abandoning the project altogether. Petitioner demonstrated by clear and convincing evidence that the Respondent did not return any of the monies paid to him.

18. Although Mr. Knowles was entitled to his money back less the value of the excavation, the state cannot argue in "aggravation" that Mr. Knowles is entitled to the value of his contract with Respondent as an unlicensed contractor.

19. Respondent did not repay the money to Mr. Knowles because he did not have it. A fine paid to the state does not benefit Mr. Knowles. Respondent has few financial resources. Respondent's wife is employed with the state, and Respondent digs holes for a pool contractor; in fact, the one that completed Mr. Knowles' pool. A $5,000.00 fine is excessive to the extent that he has no hope of paying it.

20. Respondent has no plans to become licensed and there is no leverage to force payment. A $5,000.00 fine in this case will not benefit the consumer and probably will not be collected by the state. The debt will lie more heavily on his family than on Respondent. For these reasons, the substantial fine requested should be reduced greatly on the basis that a small fine collected is more effective than a large fine unpaid.

RECOMMENDATION

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

RECOMMENDED:

That Respondent be fined $500.00, together with the investigation and prosecution costs.

DONE AND ENTERED this 18th day of February, 2002, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

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 18th day of February, 2002.

COPIES FURNISHED:

Patrick Creehan, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32388-2202

Robert Footman

2702 Lake Mary Street Tallahassee, Florida 32310

Gail Scott-Hill, Esquire Lead Professions Attorney Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0771

Hardy L. Roberts, III, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

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: 01-003890

Orders for Case No: 01-003890