STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION,

Petitioner,

vs.

DONALD CLARK,

Respondent.

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) Case No. 02-0978

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RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge,

Fred L. Buckine, held a formal hearing in the above-styled cause on May 23, 2002, in Clearwater, Florida.

APPEARANCES

For Petitioner: Brian A. Higgins, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-2202

For Respondent: No appearance

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent committed the acts alleged in the Administrative Complaint and if so, what penalty is appropriate.

PRELIMINARY STATEMENT

On July 25, 2001, Petitioner filed an Administrative Complaint alleging Respondent, Donald Clark, violated laws regulating the practice of unlicensed contracting in the State of Florida. Respondent was charged with violating

Subsection 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 business or act in the capacity of a contractor without being registered or certified.

On August 9, 2001, Petitioner's Motion to Relinquish Jurisdiction without Prejudice was granted by Order Closing File, DOAH Case No. 01-2989PL, entered on August 14, 2001.

On March 1, 2002, Petitioner's Motion to Reopen the Case was granted by Order entered March 14, 2002, assigning

DOAH Case No. 02-0978 to the instant Administrative Complaint.

A Notice of Hearing was mailed to Petitioner and Respondent at their respective addresses of record on March 28, 2002, scheduling the Final Hearing for May 23, 2002, in Clearwater, Florida.

At the Final Hearing, Respondent, Donald Clark did not make an appearance. Petitioner presented the testimony of two witnesses: Susan Eichar, homeowner, and Doug Edwin. Five exhibits (RE-1 thru RE-5) were accepted in evidence.

On June 19, 2002, the Transcript of this proceeding was filed and on July 1, 2002, Petitioner's Proposed Recommended Order was filed and has been considered.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the evidence presented and the entire record in this proceeding, the following material and relevant facts are found.

1. At no time material hereto was Respondent, Donald Clark, licensed by the State of Florida Construction Industry Licensing Board to engage in construction contracting.

2. At no time material hereto was Cancun Development Company ever qualified or certified by any State of Florida agency as a certified contractor.

3. With knowledge of that he was not licensed by the State of Florida to solicit, engage in, nor contract for construction work, Respondent entered into an oral agreement with homeowner Ms. Eichar to build a second-story addition to her home, located in Indian Rocks Beach, Florida, for a contract price of

   $30,000.00.

   
   

4. Respondent, who was paid by Ms. Eichar a total of

   
   

   $25,000.00, subcontracted with Mr. Erwin, a licensed electrical contractor, to do the electrical work at the Eichar's residence for $2,364.00.

5. Respondent, after notice, failed to attend the formal final hearing regarding this matter.

6. The investigative and prosecution costs to the Department of Business and Professional Regulation, excluding cost associated with attorney time, were $550.00.

   CONCLUSIONS OF LAW

   
   

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

8. Petitioner, Department of Business and Professional Regulation (Department), is the state agency charged with regulating the practice of unlicensed contracting pursuant to Chapters 455 and 489, Florida Statutes.

9. Pursuant to Section 489, Florida Statutes, the Department is empowered to discipline those found guilty of any of the enumerated Subsections of Section 489.127(1), Florida Statutes.

10. The Department has the burden of proving the allegation contained in the Administrative Complaint herein filed by clear and convincing evidence. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 935 (Fla. 1999); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

11. The Administrative Complaint alleges that Respondent is guilty of having violated Subsection 489.127(1)(f), Florida Statutes, which provides in pertinent part that:

    1. No person shall:

       
       

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       (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.

       
       

12. Petitioner has, by clear and convincing evidence in the record, proven that Respondent violated the

    Subsection 489.127(1)(f), Florida Statutes, by engaging in the business or acting in the capacity of a contractor or a business organization available to engage in the business as a contractor, without being duly registered or certified.

    Respondent's company, Cancun Development Company, was never registered to engage in construction work. Respondent, acting in the capacity of a general contractor subcontracted electrical work to be done on the Eichar resident to Erwin, a licensed electrical contractor.

13. Respondent, having violated the Section 489.127(1)(f), Florida Statutes, is subject to disciplinary action the by

    Department pursuant to Section 455.228, Florida Statutes, which provides in pertinent part that:

    1. When the department has probable cause to believe that any person not licensed by the department, or the appropriate regulatory board within the department, has violated any provision of this chapter or any statute that relates to the practice of a profession regulated by the department, or any rule adopted pursuant thereto . . .

       
       

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       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 or may issue a citation pursuant to the provisions of subsection.

       
       

       (3)(c) The department shall be entitled to recover the costs of investigation, in addition to any penalty provided according to department rule as part of the penalty levied pursuant to the citation.

       
       

       
       

       that:

14. Subsection 489.127(1)(f) in pertinent part provides

    
    

    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 . . . "

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered by the Department as follows:

1. Finding Respondent, Donald Clark, guilty of having violated Subsection 489.127(1)(f), Florida Statutes, as alleged in the Administrative Complaint herein filed and imposing as a penalty an administrative fine in the amount of $5,000.00.

2. Assess costs of investigation and prosecution, excluding costs associated with an attorney's time, in the amount of $550.70.

DONE AND ENTERED this 23rd day of July, 2002, in Tallahassee, Leon County, Florida.

FRED L. BUCKINE

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 23rd day of July, 2002.

COPIES FURNISHED:

Donald Clark

813 East Bloomingdale Avenue Suite 252

Brandon, Florida 32720

Brian A. Higgins, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

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

Professional Regulation Northwood Centre

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 must be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 02-000978

Orders for Case No: 02-000978