STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION,

Petitioner,

vs.

ANTHONY S. TAYLOR,

Respondent.

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) Case No. 01-4641

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RECOMMENDED ORDER

A formal hearing in the above-styled case was held before Daniel M. Kilbride, Administrative Law Judge, the Division of Administrative Hearings, on February 5, 2002, in Orlando, Florida, via video teleconference from Tallahassee, Florida.

APPEARANCES

For Petitioner: Brian A. Higgins, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-3060

For Respondent: Anthony S. Taylor, pro se

1589 Hilltop Road

Orlando, Florida 32707 STATEMENT OF THE ISSUES

Whether Respondent violated the provisions of Section 489.127(1), Florida Statutes (1999), as charged in the

Administrative Complaint, and, if so, what disciplinary action should be taken.

PRELIMINARY STATEMENT

On July 30, 2001, Petitioner, Department of Business and Professional Regulation, filed an Administrative Complaint alleging Respondent had violated the laws regulating the practice of unlicensed contracting in the State of Florida. The Administrative Complaint charged Respondent with having violated Section 489.127(1)(f), Florida Statutes, by engaging in the business or acting in the capacity of a contractor or advertising himself or herself or a business organization as available to engage in the business or act in the capacity of a contractor without being registered or certified. Respondent disputed the allegations contained in the Administrative Complaint and elected a formal administrative hearing.

Consequently, the case was transferred to the Division of Administrative Hearings (DOAH), and this matter was set for hearing.

During the hearing, Petitioner offered the testimony of two witnesses, Daniel Riveiro, Jr., and Paul Uzialko. In addition, Petitioner introduced eight exhibits, all of which were entered into evidence. Respondent testified on his own behalf, and introduced two exhibits, one of which was entered into evidence.

A Transcript of the proceeding was filed on February 28, 2002. Petitioner timely filed its Proposed Recommended Order on March 11, 2002. Respondent has not filed his proposals as of the date of this Recommended Order.

FINDINGS OF FACT

Based on the evidence, the following facts are found:

1. At no time material hereto was Respondent licensed or had ever been licensed by the Florida Construction Industry Licensing Board to engage in contracting in the State of Florida.

2. On or about August of 1999, Daniel Riveiro, Jr., responded to an advertisement in the local telephone yellow pages for Respondent's company, Taylor'd Home Improvements.

3. At no time material hereto did Taylor'd Home Improvements have a qualified business number, nor was it ever qualified by any Florida State certified or registered contractor.

4. Respondent advertised that, inter alia, he could and would perform kitchen and bath remodeling and construct decks in three Florida counties: Orange, Seminole, and Osceola.

5. Respondent also advertised in the Orlando Sentinel newspaper that he would perform similar work.

6. Respondent possessed an occupational license for his business from Orange, Osceola and Seminole Counties.

7. Respondent had an oral agreement with Riveiro to construct a deck, tear out and remodel a room, and create an archway in an interior room in Riveiro's house, located in Belle Isle, Florida, for the contract price of $13,500.

8. This project would include doing electrical, structural and air conditioning work, and construction of a deck at Riveiro's residence.

9. From his former fiancée April Rosenbloom's account, Riveiro paid Respondent an initial down payment totaling $4,750 with two checks dated September 15 and September 20, 1999, respectively.

10. Respondent did little or no work on the agreed-upon project.

11. Respondent's testimony that the parties never reached an agreement on the scope of the work is not credible.

12. Respondent returned only a small portion of the down payment he received to the homeowner.

13. The homeowner sued Respondent for the remaining amount that was owed and unpaid. A Final Judgment against Respondent, doing business as Taylor'd Home Improvements, in the amount of

    $3,069 was entered by the Orange County Court.

    
    

14. The total investigative and prosecution costs to Petitioner excluding costs associated with any attorney's time, were $443.78.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this proceeding, pursuant to Sections 120.569 and 120.57(1), and 489.129(2) and (4), Florida Statutes.

16. Petitioner is the state agency charged with regulating the practice of unlicensed contracting pursuant to Chapters 455 and 489, Florida Statutes.

17. Pursuant to Section 489.129, Florida Statutes, Petitioner is empowered to discipline any subject who is found guilty of any of the grounds enumerated in Section 489.127(1), Florida Statutes.

18. The Administrative Complaint alleges that Respondent is guilty of having violated Section 489.127(1)(f), Florida Statutes (1999), which provides, in pertinent part, as follows:

    489.127 Prohibitions; penalties.--

    
    

    (1) No person shall:

    
    

    * * *

    
    

    (f) Engage in the business or act in the capacity of a contractor or advertise himself or herself 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 or having a certificate of authority;

    
    

    * * *

    . . . . An occupational license certificate issued under the authority of chapter 205 is not a license for purposes of this part.

    
    

    * * *

    
    

    The remedies set forth in this subsection are not exclusive and may be imposed in addition to the remedies set forth in s. 489.129(2).

    
    

19. The term "contractor" as used in this proceeding is defined, as follows:

    489.105 Definitions.--As used in this part:

    
    

    * * *

    
    

    (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. . . .

    
    

    * * *

    
    

    (c) "Residential contractor" means a contractor whose services are limited to construction, remodeling, repair, or improvement of one-family, two-family, or three-family residences not exceeding two habitable stories above no more than one uninhabitable story and accessory use structures in connection therewith.

20. Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. Section 120.57(1)(j), Florida Statutes; Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

21. The clear and convincing standard has been described

    
    

    as follows:

    
    

    [C]lear and convincing evidence requires

    that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking in confusion as the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

    
    

22. Petitioner has proven by clear and convincing evidence Respondent violated Section 489.127(1)(f), Florida Statutes (1999), by engaging in the business or acting in the capacity of a contractor or advertising 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. Although never licensed as a certified contractor by the State of Florida, Respondent advertised in two central Florida publications that his company did construction work, orally

    contracted with Riveiro to build, inter alia, a wooden deck and remodel a bedroom, and received and deposited $4,750 as a down payment for the contemplated construction project. Respondent's company, Taylor'd Home Improvements, was never registered by a Florida State licensed or registered contractor to do construction work.

23. Respondent is subject to disciplinary action by Petitioner, pursuant to Section 489.129(2), Florida Statutes (1999), as alleged in the Administrative Complaint.

24. Pursuant to Section 489.129(1) and (2), Florida Statutes (1999), Petitioner may impose an administrative penalty not to exceed $5,000 per incident as well as being entitled to recover reasonable investigation and legal costs.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Construction Industry Licensing Board enter a final order as follows:

1. Finding Respondent guilty of having violated Section 489.127(1)(f), Florida Statutes (1999), as alleged in the Administrative Complaint; and

2. Imposing as a penalty an administrative fine in the amount of $5,000; and assessing costs of investigation and prosecution, excluding costs associated with an attorney's time, in the amount of $443.78.

DONE AND ENTERED this 20th day of March, 2002, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

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 20th day of March, 2002.

COPIES FURNISHED:

Brian A. Higgins, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-3060

Anthony S. Taylor 1589 Hilltop Road

Orlando, Florida 32707

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

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2202

Suzanne Lee, Executive Director Construction Industry Licensing Board Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

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: 01-004641

Orders for Case No: 01-004641