STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION,

Petitioner,

vs.

DEFOREST SIMMONS, d/b/a EXPEDITOR’S HOME IMPROVEMENT AGENCY,

Respondent.

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) Case No. 05-4701

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RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge, Diane Cleavinger, held a formal hearing in the above-styled case on February 6, 2006, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Brian A. Higgins, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-2202

For Respondent: C. Erica White, Esquire

327 Office Plaza Drive, Suite 211 Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

Whether disciplinary action should be taken against Respondent for alleged violations of Sections 489.127(1) and 489.531(1), Florida Statutes.

PRELIMINARY STATEMENT

On June 29, 2004, Petitioner filed an Administrative Complaint alleging Respondent had violated the laws regulating the practice of unlicensed construction and electrical contracting in the State of Florida. The Administrative Complaint alleged that Respondent violated Section 489.127(1) (f), Florida Statutes, by engaging in the business of acting or in the capacity of a contractor without being registered or certified; and Section 489.531(1), Florida Statutes, by practicing contracting or advertising himself or a business organization as available to engage in electrical or alarm system contracting without being registered or certified.

Respondent disputed the allegations contained in the Administrative Complaint and requested a formal administrative hearing. The case was transferred to the Division of Administrative Hearings for formal hearing.

At the hearing, Petitioner offered the testimony of one witness and offered nine exhibits into evidence, Petitioner’s Exhibits 1 through 9. Respondent testified on his own behalf

and offered seven exhibits into evidence, numbered Respondent’s Exhibits 1, 2, 5, 6, 7, 8 and 10.

After the hearing, Petitioner and Respondent filed Proposed Recommended Orders on March 6, 2006 and March 10, 2006, respectively.

FINDINGS OF FACT

1. Respondent, is the sole owner of Expeditior’s Home Improvement Agency. Expeditor’s represents various contractors in the area and markets various home improvement products and services to a homeowner.

2. Respondent is not licensed and has never been licensed to engage in construction or electrical contracting in the State of Florida. Nor did Petitioner’s business possess a certificate of authority to practice as a qualified business in contracting.

3. In the past the company was paid by the homeowner for a construction project and would subsequently hire licensed contractors to do the work. However, that type of arrangement constituted contracting for which Respondent was not licensed. After a complaint for unlicensed contracting by Petitioner in November 2003, Respondent changed his manner of doing business in order to comply with the licensure statutes. Currently, Respondent solicits business for a contractor for which the contractor pays Respondent. The contractor is paid by the homeowner for the work the contractor performs. At about the

   same time, Respondent revised his forms and business cards to reflect the contractor who will be doing the work, and a disclosure statement stating that Expeditor’s is not a licensed contractor and is acting as a sales agent for the contractor listed in the contract. References to contracting activities were removed from the face of the contract.

4. In December, 2003, Respondent through Expeditor’s employed Saleem Ahmad as an independent contractor/salesman for the company. Respondent had known Mr. Ahmad through a company, similar to Expeditor’s, that they had both been employed by. As a sales representative of Expeditor’s, Mr. Ahmad was given Expeditor’s form proposals/contracts and business cards. At the top of the contract forms were the words “Vinyl Siding, Security Replacements Windows, Sunrooms . . . New Home Construction.” At the bottom of the forms were the words, “Networking Qualified Licensed & Insured Contractors.” Similarly, Mr. Ahmad possessed a business card indicating Expeditor’s engaged in work that included vinyl siding, sunrooms, windows, roofing, fencing, and new home building. Mr. Simmons also had a similar business card. The forms and cards possessed by Mr. Ahmad were the forms that Expeditor’s current forms replaced. The evidence was not clear whether Mr. Ahmad had been given the new forms.

5. Around February 9, 2004, Mr. Ahmad, acting as an apparent agent of Expeditor’s contracted with Mr. Clarence Gavin

   to, inter alia, replace two windows, install a kitchen counter top and cabinets, four ceiling fans, and remount a water heater. The contract price for the work was $19,875. Such work required a licensed contractor. The contract was written on an Expeditor’s proposal form and listed Calvin Hall as the Architect. The evidence was not clear whether Mr. Hall was an architect. However, the evidence did demonstrate that Mr. Hall was a licensed contractor and was the contractor against who Mr. Gavin was filing the complaint.

6. Mr. Simmons never saw the contract Mr. Ahmad had written for the Gavin job. Likewise, he never saw any money Mr. Gavin may have paid for the job. Indeed, Mr. Simmons was unaware of the Gavin contract or job until the investigation in this matter. Apparently, Mr. Ahmad was defrauding Mr. Simmons and misusing old Expeditor’s business forms. However, the evidence was clear that Respondent did not intentionally engage in unlicensed contracting. Therefore, the Administrative Complaint should be dismissed.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. § 120.57, Fla. Stat.

8. Petitioner, the Department of Business and Professional Regulation (“Department”), is the state agency charged with

   regulating the practice of unlicensed construction and electrical contracting pursuant to Chapters 455 and 489, Florida Statutes.

9. 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 Co., 670 So. 2d 932 (Fla. 1996). Evans Packing Co. v. Department of Agriculture and Consumer Services,

   550 So. 2d 112, 116, fn. 5 (Fla. 1st DCA 1989) provides the following guidance regarding the clear and convincing evidence standard:

   That 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 of (sic) conviction, without hesitancy, as to the truth of the allegations sought to be established Slomowitz v. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983).

   
   

10. Section 489.127(1)(f), Florida Statutes (2004), states in pertinent part, as follows:

    No person shall engage in the business or act in the capacity of a contractor or advertise himself or herself or a business organization without being duly registered

    or certified or having a certificate of authority.

    
    

11. Section 489.105 (3), Florida Statutes (2004), defines construction as the following:

    A person who, for compensation, undertakes or 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, included related improvements to real estate, for others or for resale to others.

    
    

12. Section 489.531 (1), Florida Statutes (2004) states in pertinent part, as follows:

    (b) Use the name or title “electrical contractor” or “alarm system contractor” or words to that effect, or advertise herself or himself or a business organization as available to practice electrical or alarm system contracting, when the person is not then the holder of a valid certification or registration issued pursuant to the part.

    
    

13. Section 489.531 (12), Florida Statutes (2004), defines an electrical contractor, in pertinent part, as the following:

    A person who conducts business in the electrical trade field and who has the experience, knowledge, and skill to install, repair, alter, add to, or design, in compliance with law, electrical wiring, fixtures, appliances, apparatus, raceways, conduits, or any part thereof, which generates, transmits transforms, or utilizes electrical energy in any form, including the electrical installations and systems within plants and substations, all in compliance with applicable plans, specifications, codes, laws, and regulations. The term means any person, firm, corporation that engages in the business of electrical

    contracting under an express or implied contract; or that undertakes, offers, to undertakes, offers to undertake, purports to have the capacity to undertake, or submits a bid to engage in the business of electrical contracting; or that does itself or by or through others engage in the business of electrical contracting.

    
    

14. In this case, Petitioner has not shown by clear and convincing evidence Respondent violated Section 489.127(1) (f) or 489.531 (1), Florida Statutes (2004), by engaging in the business or acting in the capacity of a contractor without being duly registered or certified. The evidence was clear that Respondent was never licensed as a certified or registered contractor in the State of Florida. However, the evidence was clear that Respondent did not contract with Clarence Gavin to install a kitchen counter top. The offending person was

Mr. Ahmad, who apparently defrauded Respondent by using old forms that Respondent had replaced. Therefore, the Administrative Complaint should be dismissed.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is recommended a Final Order be entered finding Respondent not guilty of violating Sections 489.127 (1) (f) and

489.531 (1), Florida Statutes (2004), and dismissing the Administrative Complaint.

DONE AND ENTERED this 3rd day of May, 2006, in Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

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 3rd day of May, 2006.

COPIES FURNISHED:

Brian A. Higgins, Esquire Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

C. Erica White, Esquire

327 Office Plaza Drive, Suite 211 Tallahassee, Florida 32301

John Washington, Hearing Officer Office of the General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Josefina Tamayo, General Counsel 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: 05-004701

Orders for Case No: 05-004701