STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. )

)

DOUGLAS CLAIBORNE, d/b/a ) CLAIBORNE HOME IMPROVEMENT AND ) MAINTENANCE SERVICE, )

)

Respondent. )

Case No. 06-1427

)

RECOMMENDED ORDER

This cause came on for final hearing on July 13, 2006, in Tallahassee, Florida, and telephonically from Jay, Florida, before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Brian A. Higgins, Esquire

Assistant General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

For Respondent: Douglas Claiborne, pro se

DOC No. 203745

Berrydale Forestry Camp 6920 Highway 4

Jay, Florida 32565

STATEMENT OF THE ISSUE

Whether Respondent violated Sections 489.127(1)(f) and 455.227(1)(q), Florida Statutes (2004), and what discipline

should be imposed.

PRELIMINARY STATEMENT

On April 20, 2006, Petitioner, Department of Business and Professional Regulation (Department), filed an Administrative Complaint against Respondent, Douglas Claiborne (Claiborne), alleging that he violated Sections 489.127(1)(f) and 455.227(1)(q), Florida Statutes (2004). Section 489.127(1)(f), Florida Statutes (2004), prohibits engaging in the business or acting in the capacity of a contractor without being licensed. Section 455.227(1)(q), Florida Statutes (2004), provides that violation of a lawful order of the Department of Business and Professional Regulation is grounds for disciplinary action. The Administrative Complaint alleges that Claiborne was not licensed as a contractor at any time material to the allegations and that Claiborne contracted with a Mr. Boris Dyba (Dyba) for the repair of a roof, chimney, and vinyl siding, and that Claiborne accepted payment of $600.00 for these repairs from Dyba. The Administrative Complaint further alleges that the Department issued a Notice to Cease and Desist the unlicensed practice of contracting to Claiborne in 1994, a lawful order of the Department subject to Section 455.227(1)(q), Florida Statutes

(2004). The Department contends that Claiborne violated Sections 489.127(1)(f) and 455.227(1)(q), Florida Statutes (2004), by contracting with Dyba for repairs.

Respondent requested an administrative hearing, and the case was forwarded to the Division of Administrative Hearings on April 20, 2006, for assignment to an Administrative Law Judge.

At the final hearing, Petitioner called Eddie James, an investigator with the Florida Department of Business and Professional Regulation, as a witness. Petitioner’s Exhibits 1 through 8 were admitted into evidence. The Respondent, acting pro se, testified but called no other witnesses and presented no exhibits. The one-volume Transcript was filed on July 21, 2006. Petitioner filed its Proposed Recommended Order on July 31, 2006. Respondent has not filed a Proposed Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondent was not licensed to engage in construction in the State of Florida.

2. At all times material hereto, Respondent’s business did not possess a certificate of authority to practice as a contractor-qualified business.

3. On or about October 5, 2004, Respondent contracted with Dyba to repair the roof at Dyba’s residence in Santa Rosa County, Florida.

4. The contracted cost of these repairs was $3600, of which Respondent collected $600 from Dyba by check.

5. On or about October 9, 2004, Respondent placed an advertisement in the Pensacola News Journal asserting that he would make repairs to kitchens, baths, decks, siding, docks, and most any hurricane damage.

6. On June 8, 1994, Petitioner issued a Notice to Cease and Desist to Respondent for engaging in the unlicensed practice of construction contracting.

7. The total investigative cost to the Petitioner was

   
   

   $166.88.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Section 120.57(1), Florida Statutes (2004).

9. Petitioner has the burden of proving by clear and convincing evidence that Respondent violated Sections 489.127(1)(f) and 455.227(1)(q), Florida Statutes. See

   Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996).

   Count One

   
   

10. Section 489.127(1)(f), Florida Statutes (2004), provides 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 a construction contractor as:

    A 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, included related improvements to real estate, for others or for resale to others.

    
    

12. Petitioner has proven by clear and convincing evidence Respondent violated Section 489.127(1)(f), Florida Statutes (2004), by engaging in the business of a construction contractor without being registered or certified. Respondent engaged in unlicensed construction contracting by contracting with Dyba for roof repairs exceeding $1,000.

13. Section 489.13(3), Florida Statutes (2004), authorizes the Department to impose an administrative fine of up to $10,000 for any person guilty of unlicensed construction contracting, and authorizes the assessment of reasonable investigative and legal costs.

    Count Two

    
    

14. Section 455.227(1)(q), Florida Statutes (2004), provides that:

    1. The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be takes: Violating... a lawful order of the department or board.

       
       

15. A notice to cease and desist is not an order of the type contemplated by Section 455.227(1)(q), Florida Statutes. Rather, cease and desist orders are authorized pursuant to Section 455.228, Florida Statutes, and are enforceable through the provisions therein.

16. Petitioner has not proven by clear and convincing evidence Respondent violated Section 455.227(1)(q), Florida Statutes (2004), by violating a lawful order of the Department of Business and Professional Regulation.

RECOMMENDATION

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

RECOMMENDED that:

Petitioner enter a final order finding Respondent guilty of violating Section 489.127(1)(f), Florida Statutes (2004), imposing an administrative fine in the amount of $5,000, and assessing costs of investigation and prosecution in the amount of $166.88.

DONE AND ENTERED this 11th day of August, 2006, in Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

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 11th day of August, 2006.

COPIES FURNISHED:

Brian A. Higgins, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Douglas Claiborne DOC No. 203745

Berrydale Forestry Camp 6920 Highway 4

Jay, Florida 32565

John Thomas, Classification Officer Berrydale Forestry Camp

6920 Highway 4

Jay, Florida 32565

Josefina Tamayo, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

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

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: 06-001427

Orders for Case No: 06-001427