FIl ED

Dlj t-0/ au;; nd Prof 1fillloiulul!on

Deputy Agel1(>)' Cl11n,

CLEM lavene 1,. Pr11 l11r

Ciru, 9/22/2010

STATE OF FLORIDA

DEPARTMENT OF' BUSINESS AN"D PROFESSIONAL REGULATION

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION,

Petitioner,

V, case Nos. 2009-064156

2009-064152

BRIAN' M. HELM,

Respondent.

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ADMINISTRATIVE COMPLAINT

The Department of Business and Professional Regulation

("Fetitioner'') files this Administrative Co:rnplaint against Brian

M. Helm ("Respondent"), and alleges:

1. Petitioner is the state agency charged with regulating the practice of contracting and electrical contracting pursuant to Section 20.165, F'lorida Statutes, and Chapters 455 and 489, Florida Statutes.

2. Petitioner has jurisdiction over the unliceneed practice of contracting and electrical contracting pursuant 'l:o Section 455,228, Florida Statutes.

3. At no time material to this case was Respondent duly registered or certified to engage in the practice of contracting or electrical contracting pureuant to Chapter 489, Florida Statutes.

   
   

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4. The last known address for Respondent is 1425 Alhambra Drive, Fort Myers, ll"lorida 33901.

5. On or about January 29, 2009, Respondent entered into a contract with Kathleen Janssen ("Janssenw) to provide services at 3051 Irwin Street, Fort Florid.a 33901 for compensation.

6. The scope of work included. but was not limited to demolishing and. rebuilding a shed. including the installation of a sink, drain, outlets, and lights.

7. The scope of work referenced. above requires a license issued. by Petitioner.

8. Respondent was compensated for scope of work referenced above.

9. Section 489.113(2), Florida Statutes, provides that "no person who is not certified. or registered shall practice contracting in this state.N

10. Section 489.105(3), F'lorida statutes, defines a

    
    

    contractor as a:

    
    

    [p]erson 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.

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11. Section 489.105(6), Florida statutes, provides that "the attempted sale of contracting services and ·the negotiation or bid for a contract on these services also constitutes contracting."

12. Section 489.127(1) (f), Florida Statutes, provides that no person shall:

    [e]ngage 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.

    
    

13. The contracting for and/or performance of the work described above is within the scope of work described in sections 489.105(3) and 489.105(6), Florida Statutes, and thus constitutes engaging in the practice of contracting.

14. Section 489.531(1), Florida statutes, provides that a person may not practice contracting or advertise himself or a business organization as available to engage in electrical or alarm system contracting unless the person is certified or registered to do so.

15. Section 489.505(9), Florida Statutes, provides that "contracting" means:

engaging in the business as a contractor or performing electrical or alarm work for compensation and includes performance of any act outlined in section 489,505 (12), Florida

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Statutes, including the attempted sale of contracting services and the negotiation or bid for a contract on these services.

16, Section 489.505(12), Florida Statutes, provides that an "electrical contractor" or an "unlimited electrical contractor"

. l q. .

a person who conducts business in the electrical trade field and who has the experience, knowledge and skill to insti9.ll, repair, alter, add to, or design electrical wiring, fixtures, appliances, apparatus, raceways, conduit, or any part thereof, which g·enerates, tran6mits, trans,forms or utilizes electrical energy in any form.

1. By contracting for and/or the performance of the work

   
   

   described above, Respondent engaged in the practice of electrical contracting pursuant to Sections 489.505(9) and 489.505(12), Florida Statutes.

   COUNT ONE

   
   

2. Petitioner realleges and incorporates by reference the allegations set forth in paragraphs one (1) through thirteen

1. as though fully set forth herein.

   
   

   19, Based upon the facts set forth above, Respondent violated Section 489.127(1)(f), Florida Statutes, in one or more

   of the following ways:

   
   

   1. By engaging in the of contracting as 489.105(3), Florida

      
      

      unlicensed practice defined by section Statutes;

      
      

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   2. By engaging in the unlicensed practice of contracting as defined by Section 489.105(6), Florida Statntes.

20. Based on the foregoing, Respondent violated Section 489.127(1)(f), Florida Statutes, by engaging in the business or acting· in the capacity of a contractor, or advertising himself or a business organization as available to engage in the business or to act in the capacity of a contractor, without being duly registered or certified or having a certificate of authority.

COUNT TWO

21, Petitioner realleges and incorporates by reference the allegations set forth in paragraphs one (1) through eight (8) and fourteen (14) throngh seventeen (17) as though fully set forth herein.

1. Based upon the facts set forth above, Respondent violated section 489.531(1)1 Florida Statutes, in one or more of the following ways:

   1. By submitting a bid

      electrical services as Section 489.505(9), Florida

      to perform

      defined by statutes;

      
      

   2. By engaging in the business or acting in the capacity of an electrical contractor as defined by Section 489.505(12), Florida Statutes;

      
      

2. Based upon the foregoing, Respondent violated Section 489.531(1), Florida Statutes, by engaging in the practice of

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electrical contracting, or advertising himself or a business organization as available to engage in the business or to act in the capacity of an electrical contractor, without being duly registered or certified or having a certificate of authority.

Wherefore, Petitioner requests that a Final Order be entered imposing one or more of the following penal ties: an administrative fine not to exceed $10,000.00 per incident for violations of Chapter 489, Part I, F'lorida Statutes; $5,000.00 per incident for violations of Chapter 489, Part II, Florida Statutes; asse,;;sment of costs related to the investigation and prosecution of the case (excluding costs associated with an attorney's time); and/or any other relief the Department is authorized to impose pursuant to Chapters 455 and 489, Florida statutes, and the rules promulgated thereunder.

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Signed this 15t h day of September 2D10.

CHARLIE l:.l:EM, Secretary Department of Business and

Professional Regulation

PC Found: 9/15/10

By: Mark Steven Miller 1'1M/slm

By: !Mat§ .St"""'1 !Mi/fer

Mark Steven Miller Assistant General Counsel Florida Bar No. 0653020 Department of Business and

Professional Regulation Office of the General counsel 1940 N. Monroe st., Ste. 42

Tallahassee, FL 32399-2202

(850) 488-0062 Telephone

(850) 414-6749 Facsimile

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NOTICE OF RIGHTS

Respondent has the right to request a hearing to be conducted in accordance with Sections 120.569 and 120,57, Florida Statutes, to be represented by counsel or other qualified representative, to present evidence and argument, to call and cross-examine witnesses and to have subpoenas and subpoenas duces tecum issued on his or her behalf if a hearing is requested, Rule 28 - 1 0 6 . 1 11 1 Florida Administrative Code, provides in part that if Respondent fails to request a hearing within twenty-one (21) days of receipt of an agency pleading,

Respondent waives the right to request a hearing on the facts

alleged.

NOTICE REGARDING ASSESSMENT OF COSTS

Respondent is placed on notice that Petitioner has incurred costs related to the investigation and prosecution of this matter. Pursuant to Section 455.22'7(3) (a), Florida statutes, the Board, or the Department when there is no Board, may assess costs related to the investigation and prosecution of the case excluding costs associated with an attorney's time, against the Respondent in addition to any other discipline imposed.

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Docket for Case No: 11-000425