The Issue Did Respondent engage in the business or act in the capacity of a contractor or advertise himself 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 without having a certificate of authority as alleged in the Administrative Complaint and, if so, what penalty should be imposed?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the Agency of the State of Florida vested with the statutory authority to regulate the practice of unlicensed contracting under Chapters 455 and 489, Florida Statutes. Respondent has never been licensed to engage in contracting within the State of Florida. Specifically, at no time material to this proceeding was Respondent licensed to engage in contracting within the State of Florida. At no time material to this proceeding did the business known as Handyman-No Job Too Small ever apply for or obtain a Certificate of Authority as a Contractor Qualified Business in the State of Florida. Some time around November 15, 2000, Respondent and David Arendt entered into an oral agreement wherein Respondent was to do remodeling work on Arendt's home located at 728 Hampstead Avenue, in Orlando, Florida, for the contract price of $7,000.00. This remodeling work included, but was not limited to, repairs to the front porch, remodeling the master bedroom, and removing and replacing the shed roof with a rolled roof. Arendt paid Respondent a total of $3,500.00 for the work completed by Respondent up until December 18, 2000. Subsequent to December 18, 2000, Arendt dismissed Respondent due to disagreement concerning the work to be completed. Respondent subsequently filed a contractor's Claim of Lien in the amount of $3,500.00 against Arendt's home in Orlando, Florida. At all times material to this proceeding, Respondent was a contractor as that term is defined in Section 489.105(3), Florida Statutes. The total investigative and prosecution costs to the Department, excluding costs associated with any attorney's time, is $496.45.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and a review of Chapter 61G4-17, Disciplinary Guidelines, Florida Administrative Code, without any consideration for mitigating or aggravating circumstances, it is RECOMMENDED that the Department enter a final order finding Respondent, David C. Marquis guilty of violating Subsection 489.127(1)(f), Florida Statutes, and imposing an administrative fine in the amount of $2,500.00 and costs in the amount of $496.45. DONE AND ENTERED this 28th day of June, 2002, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 June, 2002. COPIES FURNISHED: Brian A. Higgins, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 David Marquis 616 Aldama Court Ocoee, Florida 34761 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact The Petitioner is an agency of the State of Florida charged with regulating the licensing of contractors in Florida and regulating the practice of contracting of all types. Specifically, the Petitioner is responsible for enforcing law which prohibits unlicensed persons from engaging in the business of contracting, or advertising themselves or business organizations as available to engage in contracting, without proper licensure. The Respondent is a citizen of the State of Florida, who has embarked on a business of representing owners who desire to construct residences, acting as the agent of those owners in arranging for materials, labor, subcontractors, and the financing of construction. Upon the decision by the owner to construct a residence, the Respondent engages in drafting plans, to some extent, arranging for subcontractors, overseeing the details of the work and any changes or alterations in the work and plans as the project proceeds. The owner in this arrangement does not obtain workers' compensation coverage for the Respondent, as would be the case if the Respondent was an employee of the owner, nor does the owner withhold F.I.C.A. taxes from monies due the Respondent for his services. The Respondent is not licensed as a contractor in the State of Florida. On May 11, 1995, the Respondent signed a contract (hereinafter the "Kassiris Contract") with owner Gus Kassiris, to oversee the erection and construction of a new residence for Mr. Kassiris. The Respondent was to perform the following duties, pursuant to the Kassiris Contract: to make recommendations as to which subcontractor to hire; to inspect progress and review payments; consultations and solutions on construc- tion project; to engage in manpower tracking and coor- dination of resources; monitoring of contract compliance; to provide punch list services; and to engage in the preparation and de- fense of change orders, as well as cost accounting. The "punch list services" mean that the Respondent was to engage in insuring that no work was left undone or done incorrectly at the end of the project. The Respondent admitted that he conducted all inspections on the project and reviewed all requisitions for payment from the subcontractors. The amount he charged for his services was roughly equivalent to the amount a licensed contractor would charge for similar services. The Kassiris Contract did not meet the conditions for a homeowner's exemption, found in Section 489.103(7), Florida Statutes. Specifically, the Kassiris Contract did not provide that the Respondent would work under the supervision of the homeowner. In fact, the Kassiris Contract provided that if the homeowner wanted changes made in the specifications, he could request a change order. The Kassiris Contract also did not provide that the homeowner would deduct F.I.C.A. and withholding taxes from the Respondent's fees or wages, as required in the homeowner's exemption standards. There was no provision requiring that the homeowner provide workers' compensation, as required by the statute, in order to make out the elements of the homeowner's exemption (from the requirement of having a contractor's license). The conditions for exemption from licensure were also not met in the implementation of the Kassiris Contract. Specifically, the homeowner did not act as his own contractor and provide all of the material supervision himself. Although he denies it, in fact, the Respondent negotiated the contracts with the subcontractors and, during the course of performance of the Kassiris Contract, the Respondent approved plan changes for the project, without the involvement or consultation of the owner. The Respondent acted in the capacity of a contractor in the implementation of the contract by overseeing most details of construction of the residence. He performed the on-site inspections, dealt with subcontractors, approved the manner in which work was being performed, approved payment of subcontractors, and, in general, closely managed all details of the contracting effort. Practically, the only involvement the owner had, other than being present on the site frequently, was that the owner actually wrote the checks to pay the subcontractors and delivered them to the Respondent, who, in turn, delivered them to the subcontractors. The owner obtained the building permit at the commencement of the project. The Respondent advertised in the Citrus County Chronicle, a newspaper of general circulation, on or about June 25, 1995, that he offered services for hire as a construction consultant and for project management. On or about June 27, 1995, he entered into a contract with Paul and Valerie Stamper (hereinafter the "Stamper Contract"). The Respondent was thus charged with overseeing the erection and construction of a residence located at Lot 15 of Laurel Oak Estates Subdivision in Citrus County, Florida. He acted in the capacity of a contractor in the negotiation and formulation of this contract. According to the Stamper Contract, the Respondent's responsibilities were to include the following: make recommendations as to which subcon- tractor to hire; conduct progress inspections and payment reviews; consult concerning construction problems and arrive at solutions; engage in manpower and tracking and coor- dination of resources; monitor contract compliance; provide "punch list" services; prepare and defend any change orders; engage in cost accounting. The terms of the Stamper Contract indicate that the residence to be constructed was to be purveyed to the owner, rather than a case of the owner being the contractor actually creating the product. In order for the above- referenced exemption to apply, the homeowner must be the party functioning as a contractor on his own behalf. It is noteworthy in this regard that the Stampers gave the Respondent a $3,000.00 deposit. The Stampers later decided that they did not wish to proceed with the contract and requested return of that deposit. The Respondent refused to return the deposit money, although acknowledging that the Stamper Contract was no longer in effect. In his letter to the Stampers, responding to their request for return of the deposit, he proposed, instead, that they continue to proceed with the contract and the construction of the residence, which the Stampers no longer wished to own and occupy, in order that they could sell it. The intention to construct a residence for sale to another party directly belies the possibility that the homeowner can be his own contractor, constructing a residence for his own use in compliance with the homeowner-exemption law. It shows an intention to engage in contracting by the Respondent. The existence of facts supporting this exemption is also belied because the Respondent, in his contract with the Stampers, did not contract to have F.I.C.A. or income taxes withheld from any paychecks due him from the Stampers, nor did the Stampers contract to provide workers' compensation coverage for the Respondent. The contract also did not provide that the owners, the Stampers, would act as their own contractors and provide all material supervision themselves. In fact, the Respondent was to provide supervision. The Petitioner is responsible for enforcing the prohibition against unlicensed contracting in order to protect the public. There are frequent problems with unlicensed contractors in Florida in terms of their competence to provide quality work and their willingness to do so, as well as outright fraud and harm to the public. The contracts which unlicensed contractors enter into are illegal and unenforceable. Homeowners who contract with unlicensed contractors are not eligible for recovery under the Construction Industry Licensing Recovery Fund. On July 2, 1995, the Respondent again advertised in the Citrus County Chronicle, advertising himself as available to manage the construction of residences. Based upon this notice and other information, the Petitioner issued a Notice to Cease and Desist to the Respondent, ordering him to cease and desist the unlicensed practice of contracting. The Respondent contends that he is not a contractor and that he is, instead, a project manager or consultant and, therefore, not governed by the statutory provision authorizing the Notice to Cease and Desist.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered imposing an administrative fine in the amount of $5,000.00 against the Respondent. DONE AND ENTERED this 23rd day of February, 1996, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 1996. APPENDIX TO RECOMMENDED ORDER CASE NO. 95-4534 Petitioner's Proposed Findings of Fact 1-9. Accepted. 10. Rejected, as constituting a conclusion of law. 11-14. Accepted. 15. Rejected, as being irrelevant. 16-17. Accepted. 18. Accepted, except for the next to the last sentence, which constitutes a conclusion of law. 19-20. Accepted. 21. Rejected, as constituting a conclusion of law. 22-31. Accepted. Respondent's Proposed Findings of Fact 1-2. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as contrary to the unrefuted evidence and as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as not in accordance with the greater weight of the evidence and as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as constituting a conclusion of law, but to the extent it might be a proposed finding of fact, as not in accord with unrefuted evidence of record and as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as not representative of the unrefuted evidence of record and as subordinate to the Hearing Officer's findings of fact on this subject matter and as not itself being dispositive of material issues. Rejected, as contrary to the greater weight of the evidence and as not being materially dispositive. Rejected, as contrary to the greater weight of the evidence and as subordinate to the Hearing Officer's findings of fact on this subject matter and as, in part, being a conclusion of law and not a proposed finding of fact. 10-12. Rejected, as constituting a conclusion of law. COPIES FURNISHED: Donna Bass, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0750 Mr. Mark P. Stanish 6041 Town Court Springhill, FL 34606 Richard Hickok, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, FL 32211-7467 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact The Respondent is a registered building contractor, having been issued license number RB 0010555. On December 12, 1980, Benjamin Kyler entered into a contract with Sweet E. Glover to construct a house for her at 2020 Southwest First Street, Ocala, Florida. At no time material hereto was Benjamin Kyler properly licensed to perform contracting in the State of Florida. The Respondent obtained the building permit to enable Benjamin Kyler to perform the construction contract with Sweet Glover. Benjamin Kyler received approximately $1,650, but he performed only a minimal amount of construction on the Glover residence. The Respondent knew that Benjamin Kyler was engaged in the construction of a residence for Sweet Glover, and the Respondent also knew that Benjamin Kyler was not licensed to contract in the State of Florida. The Respondent was paid a fee for pulling the building permit for Benjamin Kyler.
Recommendation From the foregoing Findings of fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Isaac Butler, be found guilty of violating Section 489.129(1)(e) and 489.129 (1)(f), Florida Statutes, and that his license be revoked. THIS RECOMMENDED ORDER entered on this 1st day of February, 1983. WILLIAM B. THOMAS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 1983. COPIES FURNISHED: John O. Williams, Esquire 547 North Monroe Street Suite 204 Tallahassee, Florida 32301 Mr. Isaac Butler RFD 1, Box 752 Anthony, Florida 32617 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
The Issue Whether Respondent engaged in the unlicensed practice of contracting in violation of Section 489.127, Florida Statutes, and if so, what penalty should be imposed?
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of contractors in the State of Florida pursuant to Section 20.42 and Chapters 455 and 489, Florida Statutes. On June 7, 2005, Harry Lee Wilson signed a proposal on behalf of Wilson Construction and Roofing to perform repairs on a home owned by Tony Wright at 2126 Evergreen Avenue, Jacksonville, Florida. The proposal consisted of a two-page list of repairs to be performed, including installation of doors, plumbing, kitchen cabinets and sheetrock; repair of several holes, walls, windows and floors; painting and installation of a wall. The proposed cost for the job was $7,595.00, with $3,200.00 to be paid as a down payment, $2,200.00 to be paid halfway through, and the balance to be paid when the job was completed. Mr. Wilson represented to Mr. Wright that he was a licensed contractor and had been for 20 years. He had business cards and t-shirts that advertised "Wilson Construction and Roofing." His license, however, was an occupational license issued by the City of Jacksonville. At no time material to these proceedings was Mr. Wilson registered with or certified by the State of Florida. Likewise, Wilson Construction and Roofing did not possess a certificate of authority to practice as a contractor qualified business. No evidence was presented to establish that Mr. Wilson held any sort of competency license issued by the local jurisdiction. Mr. Wright accepted the proposal and, in all, paid $5,000.00 to Mr. Wilson for his services. On September 21, 2005, Mr. Wilson wrote to Mr. Wright representing that he had completed the "first proposal," i.e., the first page of the work under the contract. In his letter, he claimed that Mr. Wright had defaulted on the job because of work done by another contractor and that additional funds would be needed to complete the work. Mr. Wright was not pleased with the quality of work performed on the job and stopped paying Mr. Wilson. Some of the work had to be redone by another contractor. For example, the plumbing was not installed correctly; the countertop was not level; a weight-bearing wall was braced incorrectly; and drywall was applied over the light switches. Mr. Wright was under the impression that the work by Mr. Wilson was not inspected because the funds were not coming from a bank. Inspection was only performed when the job was finished by the second contractor. Mr. Wilson admitted that he has been doing construction work for 20 years and did not believe a state license was necessary. He believed that his occupational license was all he needed to perform construction work. Mr. Wilson claimed that he did not perform any plumbing work for Mr. Wright or the amount he did was minimal. However, Mr. Wilson's proposal to Mr. Wright clearly includes plumbing work among those items to be performed. Whether or not he actually did plumbing work on the job, Mr. Wilson negotiated a contract to perform such work. There was no evidence presented that Mr. Wilson was offering to perform or performing any contracting services under the supervision of any licensed contractor. The Department incurred investigative costs, excluding any costs associated with an attorney's time, in the amount of $401.83.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered which finds that Respondent violated Section 489.127(1)(f), Florida Statutes; That an administrative fine of $5,000.00 be imposed; and That costs of investigation and prosecution in the amount of $401.83 be assessed. DONE AND ENTERED this 9th day of November, 2006, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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.state Filed with the Clerk of the Division of Administrative Hearings This 9th day of November, 2006. COPIES FURNISHED: Brian A. Higgins, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Harry Wilson Wilson Construction and Roofing 12450 Biscayne Boulevard Apartment 415 Jacksonville, Florida 32218 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Nancy S. Terrel, Hearing Officer Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
