STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION,

Petitioner,

vs.

ROLAND F. PATTERSON,

Respondent.

)

)

)

)

)

) Case No. 07-2187

)

)

)

)

)

RECOMMENDED ORDER

Administrative Law Judge Don W. Davis of the Division of Administrative Hearings (DOAH) held a formal hearing in this cause in Jacksonville, Florida, on July 26, 2007. The following appearances were entered:

APPEARANCES

For Petitioner: Joshua Moye, Esquire

Assistant General Counsel

Craig Mangum, Qualified Representative Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399

For Respondent: No Appearance

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent, Roland F. Patterson, engaged in the unlicensed practice of contracting in the State of Florida without being duly certified or registered

in violation of Chapter 489, Florida Statutes; and secondarily, if Respondent committed that violation, what penalty should be imposed?

PRELIMINARY STATEMENT

On September 20, 2006, Petitioner issued an administrative complaint, alleging Respondent’s violation of section 489.127(1)(f), Florida Statutes, by engaging in the business or acting in the capacity of a contractor, without being duly registered or certified or having a certificate of authority.

Respondent disputed the allegations contained in the administrative complaint and elected to have a formal administrative hearing. Consequently, the case was transferred to the Division of Administrative Hearings to conduct a hearing pursuant to Section 120.57, Florida Statutes.

During the hearing, Petitioner offered the testimony of one witness and six exhibits, all of which were entered into evidence.

Respondent was not present for the hearing and no appearance was made on his behalf.

Official recognition was taken of Section 489.108, Florida Statutes, Section 489.127(1)(f), Florida Statutes, Section 489.105(3), Florida Statutes, Section 489.105(3)(a), Florida Statutes, Section 489.105(3)(b), Florida Statutes, and Section 489.105(3)(c), Florida Statutes.

No transcript was provided.

Petitioner filed a Proposed Recommended Order which has been reviewed and utilized in the preparation of this Recommended Order.

All references to Florida Statutes are to the 2007 edition

unless otherwise noted.

FINDINGS OF FACT

1. At all times material to these proceedings, Respondent was not duly registered or certified to engage in the practice of construction contracting in the State of Florida. He was, however, doing business as George E. Patterson & Associates.

2. Respondent proposed to build an addition to Jennie Headen’s residence, located at 1424 Bellshore Circle, Jacksonville, Florida, for a contract price of $22,000. Respondent signed the written proposal, telling Headen that she need not sign as her name was already on the document.

3. Headen issued checks to Respondent; one in the amount of $3,000 and one in the amount of $9,000. Respondent accepted the checks, made out to him, as payments for work in accordance with the draw schedule mentioned in the proposal. Respondent cashed both checks.

4. Respondent proceeded to tear the back porch of Headen’s house down. He ordered trusses for the cathedral roof and some lumber for further construction, all of which was delivered.

   Respondent started to frame in the addition, but a City of Jacksonville inspector issued a “Stop Work” order due to the flimsy construction and violation by Respondent of building code requirements.

5. Respondent was also issued a Notice and Order to Cease and Desist from Petitioner, the Department of Business and Professional Regulation, for the practice of unlicensed contracting for the work he performed at 1424 Bellshore Circle, Jacksonville, Florida.

6. Total investigative costs in this matter incurred by Petitioner were $534.59, excluding costs associated with any attorney’s time.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of these proceedings. §§ 120.56(9) and 120.57(1), Fla. Stat.

8. Petitioner, the Department of Business and Professional Regulation, is the state agency charged with regulating the practice of contracting pursuant to Section 20.165 and Chapters

   455 and 489, Florida Statutes.

   
   

9. Section 489.127(1)(f), Florida Statutes, provides that no person shall engage in the business or act in the capacity of a contractor without being duly registered or certified or having a certificate of authority. Section 489.127(2)(a),

   Florida Statutes, further provides any unlicensed person who violates any of the provisions of subsection (1) commits a misdemeanor of the first degree, punishable as provided in Section 775.082, Florida Statutes or Section 775.083, Florida Statutes.

10. Section 489.105(3), Florida Statutes, defines “contractor”, in pertinent part, as:

    the person who is qualified for, and shall only be responsible for, the project contracted for and means, except as exempted in this part, the 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, including related improvements to real estate, for others or for resale to others; and whose job scope is substantially similar to the job scope described in one of the subsequent paragraphs of this subsection.

11. Section 489.105(3)(a), Florida Statutes, states that: "[g]eneral contractor" means a contractor

    whose services are unlimited as to the type of work which he or she may do, who may contract for any activity requiring licensure under this part, and who may perform any work requiring licensure under this part, except as otherwise expressly provided in Section 489.113, Florida Statutes.

12. Section 489.105(3)(b), Florida Statutes, states that:

    
    

    "[b]uilding contractor" means a contractor whose services are limited to construction of commercial buildings and single-dwelling or multiple-dwelling residential buildings,

    which commercial or residential buildings do not exceed three stories in height, and accessory use structures in connection therewith or a contractor whose services are limited to remodeling, repair, or improvement of any size building if the services do not affect the structural members of the building.

13. Section 489.105(3)(c), Florida Statutes, states that: "[r]esidential contractor" means a

    contractor whose services are limited to construction, remodeling, repair, or improvement of one-family, two-family, or three-family residences not exceeding two habitable stories above no more than one uninhabitable story and accessory use structures in connection therewith.

    
    

14. Section 455.228, Florida Statutes, authorizes Petitioner to impose an administrative penalty not to exceed

    $5,000 per incident in those cases where Petitioner has ascertained probable cause to believe that a person, not licensed by Petitioner, has violated any provision of this chapter or of any statute relating to the practice of a profession regulated by Petitioner.

15. Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. Section 120.57(1) (j), 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).

    
    

16. The record establishes by clear and convincing evidence that Respondent violated Section 489.127(1)(f) which

    prohibits unregistered or uncertified contractors from engaging in the practice of contracting or advertising oneself as able to engage in contracting.

17. Rule 61G4-17.002, Florida Administrative Code, provides, in pertinent part, the following:

    Circumstances which may be considered for the purpose of mitigation or aggravation of penalty shall include, but are not limited to the following:

    1. Monetary or other damage to the licensee's customer, in any way associated with the violation, which damage the licensee has not relieved, as of the time the penalty is be assessed. (This provision shall not be given effect to the extent it would contravene federal bankruptcy law.)

    2. Actual job-site violations of building codes, or conditions exhibiting gross negligence, incompetence, or misconduct by the licensee, which have not been corrected as of the time the penalty is being assessed.

    3. The danger to the public.

    4. The number of complaints filed against the licensee.

    5. The length of time the licensee has practiced.

    6. The actual damage, physical or otherwise, to the licensee's customer.

    7. The deterrent effect of the penalty imposed.

    8. The effect of the penalty upon the licensee's livelihood.

       
       

    9. Any efforts at rehabilitation.

       
       

    10. Any other mitigating or aggravating circumstances.

RECOMMENDATION

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

RECOMMENDED:

That a Final Order be entered:

1. Finding Respondent guilty of having violated Section 489.127(1)(f), Florida Statutes, and imposing as a penalty an administrative fine in the amount of $5,000.00.

2. Requiring Respondent to pay Petitioner’s costs of investigation and prosecution, excluding costs associated with an attorney’s time, in the amount of $534.59.

DONE AND ENTERED this 28th day of August, 2007, in Tallahassee, Leon County, Florida.

S

DON W. DAVIS

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 August, 2007.

COPIES FURNISHED:

Roland F. Patterson 1610 West 31 Street

Jacksonville, Florida 32209

Joshua B. Moye, Esquire Assistant General Counsel

Craig Mangum, Qualified Representative Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

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: 07-002187

Orders for Case No: 07-002187