STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION,

Petitioner,

vs.

JEROME SMITH AND CONSTRUCTION MANAGEMENT, INC.,

Respondent.

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) Case No. 07-4370

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RECOMMENDED ORDER

Upon due notice, a disputed-fact hearing was held in this case on November 27, 2007, in Deland, Florida, before Ella Jane

P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Sorin Ardelean, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-2202

For Respondent: Jerome Smith, pro se

2775 Big John Drive Deland, Florida 32724

STATEMENT OF THE ISSUE

Whether disciplinary action should be taken against Respondent based on violations of Sections 489.127(1)(f) and

455.227(1)(q), Florida Statutes, as charged in the Administrative Complaint.

PRELIMINARY STATEMENT

On April 30, 2007, Petitioner Department of Business and Professional Regulation filed an Administrative Complaint alleging that Respondent had violated the laws regulating the practice of unlicensed contracting in the State of Florida. The Administrative Complaint charged Respondent with having violated Section 489.127(1), Florida Statutes, by practicing contracting or advertising himself or a business organization as available to engage in contracting unless the person is certified or registered; and Section 455.227(1)(q), by engaging in the practice of unlicensed contracting after the Department previously had issued Respondent an Order to Cease and Desist from the unlicensed practice of roofing contracting.

In the present case, Respondent timely elected a disputed- fact hearing, and the case was transferred to the Division of Administrative Hearings on or about September 20, 2007.

At the hearing, Petitioner presented the oral testimony of Kulin Buch, Jyotsna Buch, Ashlee Lamphere, and Kathy Arundel.

Exhibits P-1, and P-3 through P-9 were admitted in evidence. Respondent testified at the hearing and had Exhibit R-1, admitted in evidence. Joint Exhibit "A," the Joint Pre-hearing Stipulation, was also admitted in evidence.

A Transcript was filed with the Division on December 7, 2007.

Only Petitioner filed a Proposed Recommended Order. That Proposed Recommended Order has been considered in the rendition of this Recommended Order.

FINDINGS OF FACT

1. Petitioner Department of Business and Professional Regulation is the State Agency charged with regulating the practice of contracting, pursuant to Section 20.165, Florida Statutes, and Chapters 455 and 489, Florida Statutes.

2. Petitioner has jurisdiction over the unlicensed practice of contracting, pursuant to Section 455.228, Florida Statutes.

3. At all times material, Respondent, Jerome Smith, was not licensed, nor had he ever been licensed by the State of Florida to engage in contracting. At all times material, Construction Management, Inc., was not qualified to engage in the practice of contracting, pursuant to Chapter 489, Florida Statutes.

4. Respondent and Kulin Buch worked together in the same tool and die company. They had known each other for some time before the incidents herein.

5. In 2006, Mr. Buch was looking for a roofer to fix a leak in the roof over his master bathroom. Respondent's name

   was provided to Mr. Buch as a former roofer or part-time roofer by a common supervisor, Dennis Wilson.

6. Respondent considered Mr. Buch also to be one of his supervisors, a status Mr. Buch denied. However, Respondent and Mr. Buch considered themselves to be friends, and Respondent visited in Mr. Buch’s home two times prior to their ultimately agreeing to a contract.

7. On or about February 18, 2006, Respondent agreed with Mr. Buch to perform roofing repairs on Mr. Buch’s single family dwelling for $3,200.00. Respondent created a written contract to this effect.

8. According to the contract, which may have been back- dated after the job was completed, Respondent was to remove the shingles, replace any bad wood, reinstall felt paper, fix the damaged area, and install new shingles on the entire roof. The contract bore the heading, “Creative Construction Management, Inc.,” and stated, “The work performed is being done by friends of Kulin [Buch], we are in the process of obtaining a roofing license.” (Bracketed material supplied for clarity.)

9. Respondent brought one person with him to do Mr. Buch’s roof work on a three-day weekend. Respondent claimed that a neighbor of Mr. Buch also helped with the roof repairs.

10. Respondent was, in fact, paid $3,200.00 by Mr. Buch by two checks in the amount of $2,000.00 on February 18, 2006, and

    $1,180.00 on February 25, 2006, and was paid $20.00 in cash. The $20.00 was for a meal consumed in the course of the work. Respondent admitted that, although most of the money went for shingles, other materials, and equipment which he did not have because he no longer was employed full-time as a roofer, he made a profit of approximately $800.00, on Mr. Buch’s roof repair.

    There is no evidence that any other persons working with Respondent were paid anything by Respondent or by Mr. Buch.

11. At Mr. Buch’s request, Respondent had business cards printed up and gave one to Mr. Buch. The cards were headed, “Creative Construction,” and displayed Respondent’s telephone number. Respondent placed license numbers 0008155 and 99062921 on these business cards. These were his local occupational license numbers which Respondent knew were no longer in effect. He also knew that he no longer carried the requisite amount of insurance to maintain the occupational licenses.

12. Respondent did not fix the leak above Mr. Buch’s master bathroom properly, and the master bathroom was extensively damaged by storms that followed. Despite Respondent’s work, Mr. Buch had to pay approximately $1,000.00 to a licensed contractor to fix the leak in his roof.

13. Petitioner’s costs in connection with investigation of Mr. Buch’s complaint amount to $80.79.

14. Petitioner’s investigator testified that Respondent had previously engaged in unlicensed roofing contracting in Ormond Beach in the month of June 2005. In relation to that situation, Petitioner issued Respondent a Notice and Order to Cease and Desist any unlicensed roofing activity in DBPR Case No. 2005-027065. The Notice was sent at that time both by certified and regular U.S. Mail to Respondent's last known address. The return receipt for certified mail was signed-for by a person at Respondent's residence, and the Notice which had been sent by regular mail was never returned to Petitioner. Despite Respondent’s eliciting testimony from Petitioner's investigator that the signature on the return receipt did not look like another single exemplar of Respondent’s signature, and Respondent’s denial of ever getting the certified mail copy, Respondent did not specifically deny engaging previously in unlicensed contracting or specifically deny that he had gotten the regular mailing of the Cease and Desist Order.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2007).

16. Herein, Petitioner Agency has the duty to go forward and 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); Department of Banking and Finance Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); and Evans Packing Co. v. Department of Agriculture and Customer Services, 550 So. 2d 112, 116, Fn. 5 (Fla. 1st DCA

    1989).

    
    

17. Count I of the Administrative Complaint relates to the unlicensed practice of contracting and cites Sections 489.113 (2), 489.105 (6) and 489.127(1), Florida Statutes.

18. Count II of the Administrative Complaint relates to violation of a lawful Agency Order, and cites Sections 489.113(2), 489.105 (6), and 455.227 (1) (q), Florida Statutes.

19. Section 489.127, Florida Statutes (2007), provides, in pertinent part, that:

    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; . . .

       
       

20. Section 489.113, Florida Statutes, provides, in pertinent part:

    (2) No person who is not certified or registered shall engage in the business of contracting in this state. . . .

    
    

21. Section 489.105(3), Florida Statutes, defines a contractor as:

    . . . 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. . . .

    
    

22. Section 489.105(6), Florida Statutes, provides, in pertinent part:

    (6) "Contracting" means, except as exempted in this part, engaging in business as a contractor and includes, but is not limited to, performance of any of the acts as set forth in subsection (3) which define types of contractors. 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 corresponding licensure.

    
    

23. Section 489.13, Florida Statutes, provides, in pertinent part:

    1. Any person performing an activity requiring licensure under this part as a construction contractor is guilty of unlicensed contracting if he or she does not hold a valid active certificate or registration authorizing him or her to perform such activity, regardless of whether he or she holds a local construction

       contractor license or local certificate of competency. . . .

       
       

    2. For a first offense, any person who holds a state or local construction license and is found guilty of unlicensed contracting under this section shall be issued a notice of noncompliance pursuant to s. 489.131 (7).

       
       

    3. 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. The department may waive up to one-half of any fine imposed if the unlicensed contractor complies with certification or registration within 1 year after imposition of the fine under this subsection.

       
       

24. Respondent may have been “friends” with Mr. Buch, but that does not mean that he has not violated Section 489.127(1)(f), Florida Statutes. Respondent agreed to perform contracting for Mr. Buch for money, and did perform contracting for Mr. Buch for a profit of $800.00. The evidence of this charge is clear and convincing. Indeed, it is overwhelming.

25. Section 455.227, Florida Statutes (2007), provides, in pertinent part:

    1. The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken.

       
       

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       (q) Violating any provision of this chapter, the applicable professional practice act, a rule of the department or the board, or a lawful order of the department or the board, or failing to comply with a lawfully issued subpoena of the department.

       
       

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    2. When the board, or the department when there is no board, finds any person guilty of the grounds set forth in subsection (1) or of any grounds set forth in the applicable practice act, including conduct constituting a substantial violation of subsection (1) or a violation of the applicable practice act which occurred prior to obtaining a license, it may enter an order imposing one or more of the following penalties:

       1. Refusal to certify, or to certify with restrictions, an application for a license.

       2. Suspension or permanent revocation of a license.

       3. Restriction of practice.

       4. Imposition of an administrative fine not to exceed $5,000 for each count or separate offense.

       5. Issuance of a reprimand.

       6. Placement of the licensee on probation for a period of time and subject to such conditions as the board, or the department when there is no board, may specify. Those conditions may include, but are not limited to, requiring the licensee to undergo treatment, attend continuing educational courses, submit to be reexamined, work under the supervision of another licensee, or satisfy any terms which are reasonably tailored to the violations found.

          
          

26. Section 455.228, Florida Statutes, provides, in pertinent part:

    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 or may issue a citation pursuant to the provisions of subsection (3). If the department is required to seek enforcement of the order for a penalty pursuant to s.

       120.569, it shall be entitled to collect its attorney’s fees and costs, together with any cost of collection.

       
       

27. The evidence herein of a violation of a lawful cease and desist order of the Department, pursuant to Section 455.227(1)(q), Florida Statutes, is not clear and convincing, because, absent clear proof that the cease and desist order was received by Respondent, via certified mail, violation of that Order has not been proven. The undersigned is not unmindful of the holding in Brown v. Griffin Industries, Inc., et al, 281 So. 2d 897 (Fla. 1973), which presumes that regular mailing works effectively to reach the addressee, but concludes that the instant factual situation is sufficiently different to hold that Count II has not been proven. Section 455.228(1) requires that the notice to cease and desist is to be issued and delivered, and Section 455.228 (3) (d) requires that a citation may be made

    by personal service or by certified mail, restricted delivery to the subject, at the subject’s last known address. Regular mail apparently will not suffice.

28. Even so, Petitioner does not seek $5,000.00 twice, but only $5,000.00, plus costs of its investigation. This seems appropriate, given all the circumstances of this case.

RECOMMENDATION

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

RECOMMENDED that a final order be entered finding Respondent guilty of Count I (Section 489.127(1)(f), Florida Statutes), assessing a fine in the amount of $5,000.00 and investigative costs in the amount of $80.79, and not guilty of Count II (Section 455.227(1)(q), Florida Statutes).

DONE AND ENTERED this 13th day of February, 2008, in Tallahassee, Leon County, Florida.

S

ELLA JANE P. 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 13th day of February, 2008.

COPIES FURNISHED:

Sorin Ardelean, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Jerome Smith

2775 Big John Drive Deland, Florida 32724

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: 07-004370

Orders for Case No: 07-004370