STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION,

Petitioner,

vs.

DAVID C. MARQUIS,

Respondent.

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) Case No. 02-1065

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RECOMMENDED ORDER

Upon due notice, William R. Cave, an Administrative Law Judge for the Division of Administrative Hearings, held a formal hearing in this matter on May 17, 2002, in Orlando, Florida.

APPEARANCES

For Petitioner: Brian A. Higgins, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-2202

For Respondent: David Marquis, pro se

616 Aldama Court

Ocoee, Florida 34761 STATEMENT OF THE ISSUES

Did Respondent 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 or without having a certificate of authority as alleged in the Administrative Complaint and, if so, what penalty

should be imposed?

PRELIMINARY STATEMENT

By an Administrative Complaint dated September 20, 2001, and filed with the Division of Administrative Hearings (Division) on March 14, 2002, the Department of Business and Professional Regulation (Department) is seeking to impose an administrative fine, costs and any other relief the Department is authorized to impose pursuant to Chapters 455 and 489, Florida Statutes.

As grounds therefor, the Department alleges in the Administrative Complaint that Respondent performed remodeling work and roof repair on the home of David C. Arendt without being duly registered or certified or having a certificate of authority in violation of Section 489.127(1)(f), Florida Statutes.

By an Election of Rights dated October 24, 2001, Respondent disputed the charges and requested an administrative hearing.

By letter dated March 14, 2002, the Department referred this matter to the Division for the assignment of an Administrative Law Judge and for the conduct of an administrative hearing.

At the hearing, the Department presented the testimony of David Arendt. The Department's Exhibits 1-9 were admitted in

evidence. Respondent testified in his own behalf but presented no documentary evidence.

A Transcript of this proceeding was filed with the Division on June 07, 2002. The Department timely filed its Proposed Recommended Order. Respondent elected not to file a proposed recommended order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. The Department is the Agency of the State of Florida vested with the statutory authority to regulate the practice of unlicensed contracting under Chapters 455 and 489, Florida Statutes.

2. Respondent has never been licensed to engage in contracting within the State of Florida. Specifically, at no time material to this proceeding was Respondent licensed to engage in contracting within the State of Florida.

3. At no time material to this proceeding did the business known as Handyman-No Job Too Small ever apply for or obtain a Certificate of Authority as a Contractor Qualified Business in the State of Florida.

4. Some time around November 15, 2000, Respondent and David Arendt entered into an oral agreement wherein Respondent

   was to do remodeling work on Arendt's home located at 728 Hampstead Avenue, in Orlando, Florida, for the contract price of

   $7,000.00. This remodeling work included, but was not limited to, repairs to the front porch, remodeling the master bedroom, and removing and replacing the shed roof with a rolled roof.

5. Arendt paid Respondent a total of $3,500.00 for the work completed by Respondent up until December 18, 2000.

6. Subsequent to December 18, 2000, Arendt dismissed Respondent due to disagreement concerning the work to be completed.

7. Respondent subsequently filed a contractor's Claim of Lien in the amount of $3,500.00 against Arendt's home in Orlando, Florida.

8. At all times material to this proceeding, Respondent was a contractor as that term is defined in Section 489.105(3), Florida Statutes.

9. The total investigative and prosecution costs to the Department, excluding costs associated with any attorney's time,

   is $496.45.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Subsection 120.57(1), Florida Statutes.

11. The burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal, Florida Department of Transportation v. J.W.C. Company, Inc.,

    396 So. 2d 778 (Fla. 1st DCA 1981). To meet this burden, the Department must establish facts upon which its allegations are based by a clear and convincing evidence. Department of Banking

    and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996) and Subsection 120.57(1)(j), Florida Statutes.

12. In providing for the enforcement of the unlicensed practice of those professions licensed and governed by the Department, including contracting, Subsection 455.228(1), Florida Statutes, provides in pertinent part as follow::

    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, the department may issue and deliver to such person a notice to cease and desist from such violation. 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. .

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13. Subsection 455.227(3)(a), Florida Statutes, provides as follows:

    (3)(a) 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.

    
    

14. Subsection 489.127(1)(f), Florida Statutes, provides as follows:

    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;

       
       

15. The Department has shown by clear and convincing evidence that Respondent violated Section 489.127(1)(f), Florida Statutes, and is subject to an administrative fine not to exceed

$5,000.00 plus costs related to 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, and a review of Chapter 61G4-17, Disciplinary Guidelines, Florida Administrative Code, without any consideration for mitigating or aggravating circumstances, it is

RECOMMENDED that the Department enter a final order finding Respondent, David C. Marquis guilty of violating Subsection 489.127(1)(f), Florida Statutes, and imposing an administrative fine in the amount of $2,500.00 and costs in the amount of

$496.45.

DONE AND ENTERED this 28th day of June, 2002, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

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 28th day of June, 2002.

COPIES FURNISHED:

Brian A. Higgins, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

David Marquis 616 Aldama Court

Ocoee, Florida 34761

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 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: 02-001065

Orders for Case No: 02-001065