STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION,

Petitioner,

vs.

JOHN USHER AND "J" SQUARED CONSTRUCTION, LLC,

Respondents.

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) Case No. 07-0140

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on March 20, 2007, in DeFuniak Springs, Florida, before Susan B. Harrell, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jennifer L. Condon, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-2202

For Respondent: John Usher, pro se

98 Hansen Road Freeport, Florida 32439

STATEMENT OF THE ISSUES

Whether Respondent violated Subsections 489.127(1)(f) and 489.531(1), Florida Statutes (2005),1 and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On September 11, 2006, Petitioner, Department of Business and Professional Regulation (Department), filed a two-count Administrative Complaint against Respondent, John Usher

(Mr. Usher), alleging that he had violated Subsections 489.127(1)(f) and 489.531(1), Florida Statutes. Mr. Usher filed an Election of Rights, requesting an administrative hearing.

The case was forwarded to the Division of Administrative Hearings on January 11, 2007, for assignment to an Administrative Law Judge. The case was originally assigned to Administrative Law Judge P. Michael Ruff, but was transferred to Administrative Law Judge Susan B. Harrell to conduct the final hearing.

At the final hearing, official recognition was taken of Subsections 489.127(1)(f), 489.105(3), 489.105(6), 489.113(2),

489.505(9), 489.505(12), and 489.531(1), Florida Statutes. The Department called Malcolm Harrison and Rosalee Linthicome as its witnesses. Petitioner's Exhibits 1 through 7 were admitted in evidence. Mr. Usher testified on his own behalf, and Respondents' Exhibits 1 and 2 were admitted in evidence.

The one-volume Transcript of the final hearing was filed on May 1, 2007. The parties agreed to file their proposed recommended orders within ten days of the filing of the

Transcript. The Department filed its Proposed Recommended Order on May 7, 2007. As of the date of this Recommended Order,

Mr. Usher has not filed a proposed recommended order.

FINDINGS OF FACT

1. Mr. Usher is not licensed to engage in contracting as a state-registered or state-certified contractor in the State of Florida, and he is not licensed, registered, or certified, pursuant to Chapter 489, Part II, Florida Statutes, as an electrical contractor. Mr. Usher works under the name of

   "J" Squared Construction ("J" Squared).

   
   

2. Rose Linthicome is the owner of Divine Connections Realty, whose business address was 2108 Third Avenue, Crestview, Florida. As a result of Hurricane Ivan, Ms. Linthicome's building located on Third Avenue sustained damage to the roof.

3. Ms. Linthicome contacted Norcross Construction Company (Norcross) to get a bid for the roof repair. Norcross asked Mr. Usher to prepare a proposal for the work as a subcontractor, which Mr. Usher did. After receiving the proposal from

   Mr. Usher, Norcross submitted a bid to Ms. Linthicome, but the cost was well beyond the amount which Ms. Linthicome's insurance paid for the damage. Ms. Linthicome could not afford to use Norcross to repair the roof.

4. Mr. Usher approached Ms. Linthicome and told her that he could do the work as "J" Squared for less than the amount bid

   by Norcross, if Ms. Linthicome would pull the permits as the building owner. Ms. Linthicome agreed for "J" Squared to do the work for labor costs of $26,400.00. Ms. Linthicome was to pay for materials and supplies. The total cost for the new roof system and materials was not to exceed $52,400.00

5. Mr. Usher prepared the contract for the new roof system. The contract was titled "'J' Squared Subcontract Agreement." In the contract Ms. Linthicome was referred to as the contractor. The contract set forth the work to be performed as follows:

   "J" Squared is subcontracted to do a complete roof rip out and new roof system installation on the existing structure.

   This includes the rip out and the new installation of a new roof system:

   
   

   THE RIP OUT INCLUDES: The removal of ceilings, lights, fans, vents, smoke alarms and any other item attached to the ceilings. The removal of the existing plywood, trusses, and debris of the old roof, and Any and all other aspects that are considered reasonable and necessary to be performed in order to remove the roof and prepare the structure for the new roofing system.

   
   

   THE NEW INSTALLATION INCLUDES: The

   Installation of New Trusses manufactured by Freeport Truss Company, The Installation of New Plywood and felt paper to dry in the new roof system, The Installation of Rat Runs, Blocking, Hardware, Strapping to meet code, The Installation of New 20 Year Architectural shingles, The Installation of New Rain Gutter System, The Building of the Front Porch Cricket and New Ceiling with arched entry, the Installation, building or

   attachment of any and all aspects of a typical roofing system redo, The Re attachment of all existing ceilings. (Moving the garage ceiling to the inside front room and replacing Garage ceiling with Sheet Rock, The Reinstallation of all fixtures, lights, fans, smoke alarms, etc on the existing new ceilings, The Installation of new communications, network and other plugs and outlets as agreed to on 10/04/05, and Any and all other aspects that are considered reasonable and necessary to be performed in order to pass inspections and for the new roofing system to be considered as complete.

   
   

6. Ms. Linthicome did not tell Mr. Usher that she was a licensed contractor, and Mr. Usher's testimony that he thought that Ms. Linthicome was a licensed contractor is not credible. It was never intended that Ms. Linthicome would supervise the installation of the new roof system. It was always the intent of Mr. Usher and Ms. Linthicome that Mr. Usher would directly supervise the work. As the building owner, Ms. Linthicome could pull the building permit, but Mr. Usher could not pull the building permit because he was not a licensed contractor.

7. Mr. Usher ordered the trusses from Freeport Truss Company and requested that Ms. Linthicome write two checks to the Truss Company, one check for $9,000.00 and one check for

   $6,000.00. Ms. Linthicome also gave Mr. Usher a check made out to "J" Squared for $8,4000.00 for the initial payment for labor.

8. Mr. Usher hired the laborers to work on the project.

   
   

   He intended to subcontract with an electrician to perform the electrical work on the project.

9. Mr. Usher and his crew removed the roof and failed to complete the project.

10. In the investigation and prosecution of this case, the Department incurred costs in the amount of $369.09, excluding costs associated with an attorney's time.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2006).

12. The Department is seeking to impose an administrative fine and has the burden to establish the allegations in the Administrative Complaint by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996).

13. The Department has alleged in Count I of the Administrative Complaint that Mr. Usher violated Subsection 489.127(1)(f), Florida Statutes, which provides:

    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 of or act in the capacity of a contractor without being duly registered or certified or having a certificate of authority.

       
       

14. Subsection 489.105(3), Florida Statutes, defines a contractor as the following:

    [T]he person who, for compensation, undertakes to, submits a bid to, or does himself or by others construct, repair, alter, remodel, add to, demolish, subtract from, or improve any building or structure, including related improvement to real estate, for others or for resale to others.

    
    

15. "Contracting" is defined in Subsection 489.105(6), Florida Statutes, as "engaging in the business as a contractor

    . . . [and includes] [t]he attempted sale of contracting services and the negotiation or bid for a contract on those services."

16. The Department has established by clear and convincing evidence that Mr. Usher was contracting under the name of "J" Squared and was not licensed as a general contractor. Mr. Usher entered into a contract with Ms. Linthicome to remove her damaged roofing system and to replace it with a new roofing system. He and his crew actually did some work on the project after Ms. Linthicome paid Mr. Usher $8,400.00 as the initial payment on the labor. The Department has established that

    Mr. Usher was in violation of Subsection 489.127(1)(f), Florida Statutes.

17. In Count II of the Administrative Complaint, the Department has alleged that Mr. Usher violated Subsection 489.531(1), Florida Statutes, which provides "[a] person may not

    . . . [p]ractice contracting unless the person is certified or registered." Subsection 489.505(9), Florida Statutes, defines "contracting" as follows:

    "Contracting" means, except where exempted in this part, engaging in the business as a contractor or performing electrical or alarm work for compensation and includes, but is not limited to, performance of any of the acts found in subsections (2) and (12), which define the services which a contractor is allowed to perform. The attempted sale of contracting services and the negotiation or bid for a contract on these services also constitutes contracting. If the services offered require licensure or agent qualification, the offering, negotiation for a bid, or attempted sale of these services requires the correspondence licensure.

    
    

18. Subsection 489.505(12), Florida Statutes, defines an "electrical contractor" as follows:

    (12) "Electrical contractor" . . . means 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, conduit, or any part thereof, which generates, transmits, transforms, or utilizes electrical energy in any form . . . The term means any person, firm, or corporation that engages in the business of electrical contracting under an express or implied contract; or that 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.

    
    

19. The Department has established by clear and convincing evidence that Mr. Usher, working under the name of "J" Squared, was not licensed as an electrical contractor and that he contracted with Ms. Linthicome to perform contracting as that term is defined in Subsection 489.505(9), Florida Statutes. He entered into a contract with Ms. Linthicome to perform "The Reinstallation of all fixtures, lights, fans, smoke alarms etc. on the new ceilings, The Installation of new communications, network, and other plugs and outlets as agreed to on 10/04/05." Thus, the Department has established that Mr. Usher was in violation of Subsection 489.531(1), Florida Statutes.

20. Mr. Usher argues that Ms. Linthicome was the contractor and that he was merely a subcontractor. There was no reasonable basis for Mr. Usher to believe that Ms. Linthicome was a licensed contractor when he entered into the contract to replace the roofing system.

21. Subsection 489.103(7), Florida Statutes, exempts owners of property from the licensing requirements for a contractor under certain circumstances when the property owners are acting as their own contractors. This statute provides:

    This subsection does not exempt any person who is employed by or has a contract with such owner and who acts in the capacity of a contractor. The owner may not delegate the owner's responsibility to directly supervise all work to any other person unless that person is registered or certified under this part and the work being performed is within the scope of that person's license.

    
    

22. Mr. Usher does not fall within the exemption in Subsection 489.103(7), Florida Statutes, because he was working in the capacity of a contractor when he contracted with

    Ms. Linthicome.

    
    

23. Subsection 489.13(3), Florida Statutes, provides:

Notwithstanding s. 455.228, the department may impose an administrative fine of up to

$10,000 on any unlicensed person guilty of unlicensed contracting. In addition, the department may assess reasonable investigative and legal costs for prosecution of the violation against the unlicensed contractor.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Mr. Usher violated Subsections 489.127(1)(f) and 489.531(1), Florida Statutes; imposing an administrative fine of

$10,000; and assessing investigative costs of $369.09.

DONE AND ENTERED this 12th day of June, 2007, in Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

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 12th day of June, 2007.

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida Statutes are to the 2005 codification.

COPIES FURNISHED:

Jennifer L. Condon, Esquire Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-2202

John Usher

98 Hansen Road

Freeport, Florida 32439

Nancy S. Terrel, Hearing Officer Office of the General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Ned Luczynski, 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: 07-000140

Orders for Case No: 07-000140