The Issue The issue is whether Respondent committed the acts alleged in the Administrative Complaints and, if so, what penalty is appropriate.
Findings Of Fact Respondent provides “handyman” services through BK and H Corporation. Respondent is not licensed by the Department as a contractor or an electrical contractor, and his corporation is not licensed by or registered with the Department in those fields. Respondent’s corporation has an occupational license from Collier County. The classification listed on the license is “handyman repair service (no contracting).” The occupational license includes the notation “HIGHLY RESTRICTED” in bold type. The license also states that it “is not a certification that the licensee is qualified” and that it “does not permit the licensee to violate any existing regulatory zoning laws of the state, county or cities nor does it exempt the licensee from any other license or permits that may be required by law.” On or about April 11, 2005, Respondent presented a written “Estimate” to Robert Brown for a variety of work that Mr. Brown wanted done to his home. The Estimate was on the letterhead of Respondent’s corporation. Respondent testified that the Estimate was not a proposal for work to be performed, but rather was an itemized list of the work that he and others hired by Mr. Brown had already performed and that Mr. Brown had already paid for. Respondent’s testimony regarding the purpose of the Estimate was not credible. First, if, as Respondent claims, the Estimate was intended to be an itemization of work that had already been performed and that Mr. Brown had already paid for, there would have been no reason for Mr. Brown to pay additional money to Respondent after April 11, 2005, as he did (see Findings of Fact 12 and 13), and there would also have been no reason for Mr. Brown to execute a power of attorney after that date to give Respondent authority to “pull” building permits on Mr. Brown’s behalf (see Findings of Fact 15 and 16). Second, Respondent’s characterization of the Estimate is inconsistent with that of his fiancée, Kimberly Frye, who credibly testified that she prepared the document “based on some handwritten notes after Mr. Brown and [Respondent] first initiated [sic] at the home, and they made a list of items that Mr. Brown solicited from [Respondent] to do services.”1 The more persuasive evidence clearly and convincingly establishes that the Estimate was a proposal by Respondent to perform the work listed on the Estimate at Mr. Brown’s home for compensation. The work listed on the Estimate included electrical work (e.g., installation of a 200 Amp service outlet box and two lights in the front yard); structural work (e.g., repairs to Mr. Brown’s roof and the removal and replacement of a pool deck); and other miscellaneous remodeling work inside and around Mr. Brown’s home. The price listed on the Estimate was $8,500. That amount did not include the cost of materials, which according to the Estimate, were to be paid for by Mr. Brown. On April 25, 2005, Mr. Brown paid Respondent $2,000 in cash “toward labor” and $500 in cash “toward materials.” Mr. Brown paid Respondent an additional $2,000 in cash on May 15, 2005, and another $2,000 by check on June 16, 2005. Respondent acknowledged receiving $6,000 from Mr. Brown related to the work listed on the Estimate.2 Respondent claimed that he was only serving as a conduit for the money and that he paid the money to other people that Mr. Brown had hired to perform work on his home at the same time Respondent was working there. Respondent did not present any evidence to corroborate this self-serving testimony, and it is not found credible. On April 25, 2005, Mr. Brown executed a document titled “Specific Power of Attorney for Collier County and City of Naples.” The document purports to give Respondent “power of [Mr. Brown’s] signature for any and all necessary permits, inspections and permit pick up” related to the work on Mr. Brown’s home. According to Respondent, the document was prepared and given to him by Mr. Brown so that he could “pull” owner-builder permits from the Collier County and/or the City of Naples on Mr. Brown’s behalf. An owner-builder permit allows the work to be performed by or under the direct onsite supervision of the owner of the building. It does not allow the work to be delegated by the owner (through a power of attorney or otherwise) to an unlicensed contractor, such as Respondent. Mr. Brown testified that he asked Respondent whether he was a licensed general contractor and Respondent told him that he was. Respondent testified that he told Mr. Brown on several occasions that he was not a licensed contractor. Respondent’s testimony was corroborated by Ms. Frye. Mr. Brown’s testimony on this issue was not credible, and it is more likely than not based upon the totality of the circumstances -- cash payments, preparation of the power of attorney, Mr. Brown’s overall demeanor while testifying, etc. -- that Mr. Brown knew, or had reason to believe, that Respondent was not a licensed contractor. Respondent testified that the only work that he personally performed at Mr. Brown’s house was the installation of flooring, drywall, and closet doors. He claimed that the other work listed on the Estimate, including the electrical work, was performed by other persons hired by Mr. Brown. Respondent denied that he was responsible for supervising the other persons that he contends were working on Mr. Brown’s home, although he testified that Mr. Brown gave him money to pay those workers. Respondent did not identify any of the other workers who, according to him, performed work on Mr. Brown’s home and that he allegedly paid on Mr. Brown’s behalf. Mr. Brown was at work while Respondent was working on his home. He did not provide direct on-site supervision of Respondent. Mr. Brown did not observe other persons working with Respondent on his home, except for one occasion that Respondent had a “helper” with him. The identity of that person, and the work that he or she performed, is unknown. Mr. Brown did not personally see Respondent performing all of the work listed on the Estimate. He did, however, see Respondent working on the water heater, an electrical switch in the laundry room, and the ceiling fans. Respondent’s testimony regarding the limited scope of the work that he performed on Mr. Brown’s home was not credible or persuasive, and the totality of the evidence clearly and convincingly establishes that Respondent offered to perform and did perform contracting and electrical contracting work at Mr. Brown’s home. At some point after Respondent stopped working at Mr. Brown’s home, Mr. Brown was advised by an electrical contractor that some of the electrical work needed to be redone because it posed a fire risk. Mr. Brown had the work redone by an electrical contractor, which cost him $2,400. He was also required to pay $400 to Florida Power and Light for some reason. Thereafter, Mr. Brown filed complaints against Respondent with the Department and with Collier County. After investigating the complaints, Collier County issued two citations to Respondent and imposed fines totaling $900. The fines were not based upon the performance of unlicensed contracting or electrical contracting, but rather were based upon Respondent advertising his ability to provide those services through the Estimate. Respondent did not contest the fines imposed by Collier County. He paid the fines in full. The Department provided its investigative file related to this incident to the State Attorney’s Office (SAO) in Collier County, as it was required to do by Section 455.2277, Florida Statutes. The SAO makes the decision whether to file criminal charges against an individual for unlicensed contracting. The Department is not involved in that decision. The SAO brought criminal charges against Respondent for the unlicensed contracting that he performed at Mr. Brown’s home, but the case was “nol prossed” by the SAO. Respondent is in the process of applying for a general contractor’s license from the Construction Industry Licensing Board. He testified that he took and passed the licensing exam on August 16, 2006. The Department incurred investigative costs of $296.99 related to Complaint No. 2005-042280, which is DOAH Case No. 06-1929. The Department incurred investigative costs of $307.45 related to Complaint No. 2005-042281, which is DOAH Case No. 06-1934.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation issue a final order that: finds Respondent guilty of unlicensed contracting in violation of Sections 489.127(1)(f) and 489.13, Florida Statutes, and imposes an administrative fine of $1,000, with $500 payable upon entry of the final order and the other $500 payable one year from that date unless Respondent provides satisfactory evidence to the Department that he obtained a state contractor’s license within that period; finds Respondent guilty of unlicensed electrical contracting in violation of Sections 455.228 and 455.531, Florida Statutes, and imposes an administrative fine of $1,000; and requires Respondent to pay the Department’s investigative costs of $604.44. DONE AND ENTERED this 9th day of October, 2006, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 9th day of October, 2006.
The Issue The issues are as follows: (a) whether Respondents each engaged in the unlicensed practice of contracting as defined in Sections 489.105(3) and 489.105(6), Florida Statutes (2006), in violation of Section 489.127(1)(f), Florida Statutes (2006); (b) whether Respondents each engaged in the unlicensed practice of electrical contracting as defined by Sections 489.505(9) and 489.505(12), Florida Statutes (2006), in violation of Section 489.531(1), Florida Statutes (2006); and (c) if so, what penalty should be imposed.
Findings Of Fact At all times material here, Respondents were married and doing business together as "B and P Enterprises of Central Florida, Inc." The "B and P" stands for Brenda and Phillip. Respondents are not and never have been licensed to engage in contracting or electrical contracting in Florida. In March 2006, Carla Adams had recently purchased her first home and sought to refinance it. The lender required an inspection of the home. The lender also required that any work on the home be performed by a licensed person or entity. In March 2006, an inspector employed by Pillar to Post, Inc., conducted an inspection of Ms. Adams' home. The inspection report, dated March 10, 2006, listed a number of areas that needed work and made recommendations for correction of those problems. In July 2006, Ms. Adams saw an advertisement in a newspaper for the sale of a used car. Ms. Adams and Rev. Tracey Davis went to Respondents' property with the objective of purchasing a used vehicle. While on the property, Ms. Adams and Rev. Davis entered the Respondents' home. Because both women admired the home, Respondents gave them a tour. During the tour, Respondents stated that Henley had performed the work himself. While in Respondents' home, Ms. Adams and Rev. Davis told Respondents that Ms. Adams needed work done on her home. Ms. Adams also told Respondents that her lender required that the work be done by a licensee. Henley, both upon his own volition and after being asked, told Ms. Adams and Rev. Davis that he was a licensed contractor. Henley removed a picture-ID card from his wallet and stated this was his license to practice contracting. Respondent Carpenter condoned this statement. Ms. Adams showed Respondents the March 10, 2006, inspection report. Henley assured Ms. Adams that he could do everything on the report that needed to be done. Henley further stated that his license was issued by “DBPR” - the Department of Business and Professional Regulation. Carpenter affirmatively agreed with this statement. Henley warned Ms. Adams that she should never have work done by anyone that was not licensed or certified and that she could check licensure status with DBPR. Respondent Carpenter affirmed this warning. Before speaking with Respondents, Ms. Adams and Rev. Davis had never heard of DBPR. It was only due to Henley’s reference to DBPR that Ms. Adams knew she could contact Petitioner regarding the issues in this case. Respondents advised Ms. Adams that they were willing to go to Ms. Adams’ home and give her an estimate of what they would charge to perform the needed work. Ms. Adams and Rev. Davis left Respondents' property expecting to see Respondents in the near future. In August 2006, Respondents went to Ms. Adams’ home in Tallahassee, Florida. Ms. Adams told Respondents she needed electrical, structural and plumbing work done as set forth in the Pillar-to-Post report. Respondents then inspected the home, took measurements, and made a verbal offer to perform the needed contracting work. Respondents returned to Ms. Adams’ home later in August 2006. At that time, Respondents presented Ms. Adams with a written estimate of what they would charge to do certain contracting work on her home. The proposal included, but was not limited to, structural, plumbing and electrical work. Respondents' proposal stated as follows in relevant part: REMOVE ALL OLD FLOOR COVERING Carpet Padding Lineoleum (sic) Square Stick tile Tack strip All of the above, but not limited to just above 1,470 Sq. Ft. @ $1.10 Sq. Ft. INSTALL NEW FLOOR COVERING 1,470 Sq. Ft. of tile on floor @ $1.75 Sq. Ft. and install Durarock (sic) or hardi (sic) backing board, if needed KITCHEN Remove wall and old 1/2 bathroom and put back to finished product Not including finishing drywall and painting drywall Remove all old plumbing and re-route Electrical wires HALL BATHROOM Remove bathtub, and tub walls Install durarock (sic) and new plumbing fixtures [a]s provided by homeowner Install 100 Sq. Ft. of wall tile around old tub area @ $1.75 Sq. Ft. [m]aking a new shower in the room Build a curbing, and drypack and install shower floor tile Install drain and rubber pan REMOVE OLD RAILING FROM FRONT PORCH The total price listed for the above referenced work was $5,234.50. Ms. Adams had received other estimates for the work. Therefore, Ms. Adams was pleased with the price and sought assurance that it would not increase. Respondents promised Ms. Adams that the cost would not increase. To further assure her, they both signed the contract in her presence. During the hearing, Henley admitted that he contracted with Ms. Adams to perform the labor as listed on this contract. In an attempt to ascertain Henley’s skill as a contractor, Ms. Adams decided to begin with the renovation of the bathroom located in the entrance way to the master bedroom. Ms. Adams agreed to buy the construction, plumbing, or electrical materials that Henley needed to do the work. Ms. Adams works two jobs and was not always home when Respondents performed the contracted work. As a result, Rev. Davis, who lived nearby, was present at the home to let Respondents in and observe the work. In order to enlarge the bathroom adjoining the master bedroom, Henley demolished a wall between the old bathroom and a walk-in closet. Henley also removed the door into the old bathroom and constructed a single wall with the entrance to the enlarged room through the door to the old closet. In the course of this alteration and expansion, Henley damaged the adjoining wall to the living room. He subsequently repaired the damage. In the enlarged bathroom, Henley removed a sink from the old bathroom area and installed it in the area that had been a closet. The area of the old closet had no plumbing. The removal and installation of the sink required Henley to remove old piping and replace it with larger pipes to increase the water flow. During the hearing, Henley admitted removing the sink and disconnecting the plumbing. Henley installed the custom-built shower as described in the contract in Ms. Adams’ bathroom. During the hearing, Henley admitted cutting a hole in the floor of Ms. Adams’ bathroom and installing a shower drain pan. Henley removed and replaced the toilet in Ms. Adams’ bathroom. Additionally, Henley, with Carpenter's help, removed the old bathtub. Henley admitted removing the bathtub and disconnecting the plumbing. Henley then installed a replacement Jacuzzi bathtub at the location of the previously-removed bathtub in Ms. Adams’ bathroom. Henley had to remove the old piping and replace it with larger pipes to increase the water flow for the replacement Jacuzzi. The toilet, sink, and bathtub removal and the shower- installation required plumbing work that made it necessary to turn off the water to the home. During the course of installing the Jacuzzi bathtub, Henley discovered that his work resulted in drainage problems he could not correct. For the first time, he told Ms. Adams that his license did not allow him to perform plumbing work. Henley then told Ms. Adams that, as the contractor on the job, he could subcontract the needed plumbing work. In early September 2006, Henley called Roto-Rooter as a plumbing subcontractor. Roto-Rooter performed the following plumbing work at Ms. Adams' home: Hooked up all the basic [drain] lines and the toilet in new bathroom to the m/l [main line]. Also ran water lines for the new sink, but found problem with shower valve. It was put in wrong and will not work until it's moved. Note: Everything else is working at this time. Price includes parts and labor. ( * * * out the tile and fix shower valve, not everything is working.) The Roto-Rooter invoice indicates a total cost in the amount of $1,432.78 for the work performed in Ms. Adams' home. Ms. Adams and Respondents had a financial dispute about which party had to pay Roto-Rooter. The dispute ultimately led to a falling out regarding the completion of the contracted work. Ms. Adams’ bathroom currently is inoperable because the toilet and Jacuzzi bathtub do not work. There is raw sewage underneath her home. In order to repair her bathroom, Ms. Adams received an estimate of approximately $5,000.00. Ms. Adams’ decision to begin with the renovation of her bathroom also involved ascertaining Henley’s skills as an electrical contractor. Based on his assurances that he could do the work, Ms. Adams allowed Henley to remove and relocate electrical light fixtures and switches in the bathroom, closet, and hallway. During the course of this work, Henley left hot wires exposed. On or about September 14, 2006, Carpenter came to Ms. Adams’ home and presented an invoice for $1,200.00 for the contracted work that had been performed pursuant to the initial contract. The invoice was on the letter head of “Brenda & Phillip, Phillip Henley, Inc." It stated as follows in relevant part: Remodel Master Bathroom Take out all fixtures-sink, cabinet, cast iron tub, toilet and replace with new Jacucci (sic) tub, new sink and cabinet, new shower and put back old toilet. Take out old tile on walls and drywall, take out two closets to enlarge bathroom. Re-wire and re-plumb all fixtures and installed durarock (sic) on floor, walls and wet areas and installed blueboard on balance of walls. Built a custom shower and installed custom tile design on walls and floor. Cost: $1,900.00 Less cash advances: 8/9 $100 8/16 $300 8/22 $300 $700 -700.00 $1,200.00 Plus: Materials & receipts: 8/11 $ 81.19 8/17 23.67 8/19 26.84 8/24 108.51 $240.21 +$240.21 Balance Due: $1,440.00 Other labor -240.00 $1,200.00 The invoice was signed by Henley and Carpenter and included the following statement: "Thank you for doing business with Brenda & Phillip!" The invoice stated that the check should be payable to Carpenter. Excluding costs associated with an attorney's time, Petitioner has expended $554 in total cost relative to the investigation and prosecution of DOAH Case No. 09-2541 against Carpenter and $1,005.67 in total cost relative to the investigation and prosecution of DOAH Case No. 09-2545 against Henley.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order finding that each Respondent violated Sections 489.127(1)(f) and 489.531(1), Florida Statutes, imposing a total administrative fine in the amount of $11,000 against each Respondent, and assessing costs in the amount of $554 against Carpenter and $1,005.67 against Henley. DONE AND ENTERED this 23rd day of February, 2010, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 2010. COPIES FURNISHED: Maura M. Bolivar, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399 Brenda Carpenter Phillip Henley 5209 Southwest U.S. 221 Greenville, Florida 32331 Amy Toman, Hearing Officer Office of the General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Reginald Dixon, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue By Administrative Complaint filed September 2, 1977 the Florida Electrical Contractors' Licensing Board (FECLB) seeks to revoke, annul, withdraw or suspend the state electrical contractor's certification of Michael Lang who holds certificate No. 0000227, and Lang's right to do business thereunder. As grounds therefor it is alleged that Lang pulled the permits on 5 homes under the authority of his state license where work was to be done by Blue Streak Electric in which Lang had no interest. This was alleged to constitute violation of 468.190(2)(a), (b), (c), and (d)F.S. Five witnesses, including Respondent, testified and three exhibits were admitted into evidence.
Findings Of Fact Michael T. Lang holds state electrical contractor license No. 0000227 and has been so licensed for about 3 years. He also holds Palm Beach and Broward County electrical contractor's licenses. Lang has never done any electrical contracting work under his state certificate outside Broward or Palm Beach counties. Wayne Johnson is a journeyman electrician who has been employed by Lang since about 1973. Johnson worked on numerous houses for which Lang was the contractor and served as Lang's alter ego in many business functions such as ordering supplies, submitting proposals for bids, and signing checks. In 1976 Lang encountered financial reverses due to the construction industry slump and was close to being closed down by IRS. It was difficult for him to obtain supplies with IRS attaching bank accounts and accounts receivable. Johnson formed Blue Streak Electric to perform electrical repairs on weekends and evenings to supplement his dropping income from Lang. Blue Streak was not a qualified corporate electrical contractor although Johnson and Lang had discussed the concept of qualifying Blue Streak to be able to get supplies that Lang was finding increasingly difficult to do. Before the necessary information had been submitted to qualify Blue Streak, Johnson bid on 5 house wiring jobs in Palm Beach County and obtained the contracts under Blue Streak Electric. The permits were pulled by Mike Lang Electric (Exhibits 1, 2, and 3) and under his county contractor's certificate number U8732. On the application for electrical permits (Exhibits l, 2, and 3) here involved, in the blank following "State and County Occupational License No." was entered "227". No evidence was presented regarding the occupational license number of Lang but 227 is the number of his state certification. Some two weeks after the work was commenced under the Blue Streak contract and was about fifty percent complete, the building inspectors stopped the work because Blue Streak was not a licensed electrical contractor. Johnson had been, and was at the time, a salaried employee of Lang who was supervising the work done under these contracts. Upon stopping of the work by the Palm Beach County inspectors these contracts were turned over to Mar Electric who employed Johnson to complete the work he had initially bid on. Mar visited the sites from time to time and received payment from the builder for the work performed. Lang received no income from these projects. Lang was not an officer in Blue Streak and had no financial interest in Blue Streak at any time here involved. Upon learning that Johnson had entered the bids by Blue Streak and pulled the permits under Lang's license, Lang recognized that problems could ensue but this information was received only a couple of days before the work under Blue Streak's contract was stopped. About the same time the work by Blue Streak was stopped by the inspector the IRS levied on Lang and closed his business. The Palm Beach County licensing authority took action against Lang and, in April, 1977 suspended his county electrical contractor's license for one year on the same facts here involved.
The Issue The primary issue for determination in this case is whether Respondent, Bruce P. Boston, engaged in the unlicensed practice of electrical contracting in the State of Florida without being certified or registered in violation of Chapter 489, Part II of the Florida Statutes; and secondarily, if Respondent committed that violation, what penalty should be imposed?
Findings Of Fact The Department of Business and Professional Regulation (Petitioner) is a state agency charged with the duty and responsibility of regulating the practice of electrical contracting in the State of Florida. Respondent's address is 18204 Southwest 200 Street, Archer, Florida 32618. At no time material hereto was Respondent certified or registered in the State of Florida to engage in the practice of electrical contracting or to perform electrical contracting work. Mrs. Dawn Wingert is the owner of the residence located at what is currently designated as 16675 Southwest 143rd Avenue, Archer, Florida. Mrs. Wingert, as lawful owner, had the authority to enter contracts regarding the residence. The Wingert residence was previously known as 110 Park Avenue, Archer, Florida, prior to the assignment of the current address. Wingert entered into a contract with Respondent to perform construction of a carport and perform electrical contracting work at Wingert’s residence subsequent to assignment of the address of 110 Park Avenue, Archer, Florida. Respondent received compensation for the contracted work directly from Wingert via personal check, which Respondent then cashed. Terry Vargas, a licensed electrical contractor having been issued license number ER 13012448, was subsequently contacted by Respondent to perform the electrical contracting work at the Wingert residence. Vargas installed an electrical outlet on the back porch, put a flood light on the back porch, moved the switch board to a more convenient location, and put a security light in the front of Wingert’s residence. All work required electrical fixtures to be permanently affixed and become a permanent part of the structure of the Wingert residence. Although Vargas completed the electrical contracting work at the Wingert residence, Wingert paid the Respondent for the services because the work was contracted for through Respondent. At no time pertinent to this matter did Terry Vargas contract with Wingert to complete the electrical services enumerated above. After he completed the work at Wingert’s residence, Vargas invoiced Respondent for the electrical contracting work. Respondent, however, refused to pay Vargas for the electrical contracting work performed, despite having received compensation for the work from Wingert.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that Petitioner enter a final order, in accordance with Section 489.533(2)(c), Florida Statutes, requiring that Respondent pay an administrative fine in the amount of $5,000.00 to the Department of Business and Professional Regulation. DONE AND ENTERED this 20th day of February, 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 20th day of February, 2007. COPIES FURNISHED: Bruce P. Boston Post Office Box 331 Williston, Florida 32696 Drew F. Winters, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Nancy S. Terrel, Hearing Officer Office of the General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether Respondent (“Ricky Lee Diemer”) offered to engage in unlicensed contracting as alleged in the Administrative Complaint, and, if so, what penalty should be imposed.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, matters subject to official recognition, and the entire record in this proceeding, the following Findings of Fact are made: The Department is the state agency responsible for regulating the practice of contracting pursuant to section 20.165, Florida Statutes, and chapters 455 and 489, part I, Florida Statutes. The Department initiated an undercover operation by gaining access to a house needing numerous repairs. The Department employees then utilized websites, such as Craigslist and HomeAdvisor, to identify people offering unlicensed contracting services. The Department employees found an advertisement posted by “RLD Handyman Services” on December 26, 2017, offering to perform multiple types of contracting work. This advertisement caught the Department’s attention because it did not list a contracting license number. Section 489.119(5)(b), requires every advertisement for contracting services to list such a number.2/ The advertisement listed a phone number, and the Department utilized the Accurint phone system to ascertain that the aforementioned phone number belonged to Mr. Diemer. The Department examined its records and ascertained that Mr. Diemer was not licensed to perform construction or electrical contracting in Florida. The Department contacted Mr. Diemer and approximately 12 other people offering contracting services and scheduled appointments for those people to discuss contracting work with an undercover Department employee at the house mentioned above. An undercover Department employee told Mr. Diemer and the other prospective contractors that he had recently bought the house and was hoping to sell it for a profit after making some quick repairs. An undercover Department employee met Mr. Diemer at the house and described their resulting conversation as follows: A: We looked at remodeling a deck on the back, the southern portion of the home. We looked at cabinets, flooring and painting that are nonregulated in nature, but also plumbing and general contracting services such as exterior doors that needed to be replaced, and the electrical, some appliances and light fixtures. Q: All right. So was there any follow-up communication from Mr. Diemer after your discussion at the house? A: Yes. We walked around the house. He looked at the renovations that we were asking. He took some mental notes as I recall. He didn’t make any written notes as some of the others had done. He did it all in his head, said that he was working on another project in the Southwood area at the time and just left his work crew there to come and visit with me and was rushed for time. So he was in and out of there in 10 to 15 minutes. It was pretty quick. Q: Okay. A: But he took the mental notes and said that he would go back and write something up and send me a proposal through our Gmail. . . . On February 7, 2018, Mr. Diemer transmitted an e-mail to the Department’s fictitious Gmail account offering to perform multiple types of work that require a contracting license: kitchen sink installation, bathroom remodeling, construction of an elevated deck and walkway, installation of light fixtures, and installation of front and back doors.3/ Mr. Diemer proposed to perform the aforementioned tasks for $13,200.00.4/ The work described in Mr. Diemer’s e-mail poses a danger to the public if done incorrectly or by unlicensed personnel.5/ The Department incurred costs of $118.55 for DOAH Case No. 18-6578 and $91.45 for DOAH Case No. 18-6579. The Department proved by clear and convincing evidence that Mr. Diemer advertised or offered to practice construction contracting without holding the requisite license. The Department also proved by clear and convincing evidence that Mr. Diemer practiced construction and electrical contracting when he transmitted the February 7, 2018, e-mail.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation issue a final order requiring Ricky Lee Diemer to pay a $9,000.00 administrative fine and costs of $210.00. DONE AND ENTERED this 1st day of April, 2019, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 2019.
The Issue The issue in this case is whether Respondent violated provisions of statutes governing licensure of construction contractors and, if so, what penalties should be imposed.
Findings Of Fact The Department is the state agency charged with regulating the practice of construction contracting pursuant to section 20.165, and chapters 455 and 489, Part I, Florida Statutes. Unless specifically stated herein, all references to Florida Statutes will be to the 2014 version. Respondent is not licensed to practice construction contracting in the State of Florida. Neither Respondent nor his putative company, Troche’s Construction, Inc., has an active license as a construction business in this state. On or about October 31, 2012, Respondent entered into a “proposal” with Paul R. Schettino (the “Owner”) to construct a firewall across the Owner’s place of business. The proposal called for Respondent to build “an approx. 48 ft wall, to be firerocked 5/8 drywall on both sides. Studs to be 3 5/8 metal. To be built and ready for paint.” The cost of the work was to be $2,200. (One of the Department’s exhibits indicates a price of $1,650 for the work, but the actual cost is irrelevant.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Department of Business and Professional Regulation, finding Respondent, Raul Troche, guilty of engaging in the business of construction contracting without a license. It is further recommended that the final order impose a minimal fine or, in the alternative, issue a notice of noncompliance. DONE AND ENTERED this 8th day of December, 2014, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 2014. COPIES FURNISHED: Stephen M. Masterson, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399 (eServed) Raul Troche 70 Belleaire Drive Palm Coast, Florida 32137 J. Yvette Pressley, Hearing Officer Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399 (eServed) J. Layne Smith, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399 (eServed)
The Issue What if any, disciplinary action may be taken against Respondent based on alleged violations of Florida Statutes Section 489.531(1) (practicing electrical contracting or advertising one's self or business organization as available to engage in electrical or alarm system contracting without being certified or registered), and Section 455.227(1)(q) (engaging in the practice of unlicensed electrical contracting after previously being issued an Order to Cease and Desist from the unlicensed practice of electrical contracting.)
Findings Of Fact At all times material hereto, Respondent was not licensed nor had he ever been licensed to engage in electrical contracting in the State of Florida. Mr. George Hammond lives in Inverness, Florida in a single family dwelling with a detached garage. The house is serviced with a water well and electrical pump. On July 25, 2006, Mr. Hammond notified a long-time friend, Dennis Himmel that he had problems with his well and could not get water into his home. Mr. Himmel temporarily ran a wire between the well and garage so Mr. Hammond could get water, and suggested Mr. Hammond hire an electrician to do the permanent work. A few days later, Mr. Hammond told his friend, Craig Zeedick, that his well had been hit by lightening and someone was fixing it. Mr. Zeedick went to Mr. Hammond's house and observed Respondent kneeling down and making an electrical connection with the junction box. Respondent had stripped off the wire connections and made the wire nut connection. A boy was with Respondent, and the boy was burying an electrical cable to the well. The cable in the ground had no tubing or protection around it. At Mr. Hammond's request, Mr. Zeedick counted out approximately $947.00 in cash to Respondent for the electrical work. Sometime in August 2006, Mr. Himmel observed the work done at Mr. Hammond's home. He phoned Respondent to complain because the wire from the garage to the well was buried only four inches underground with no conduit (protective covering) over the wire into the garage. Respondent returned and covered the wire with conduit but then the pump did not work. Later, Respondent corrected the wire box connection, blaming the problems on Mr. Himmel. At some point in these machinations, Respondent succeeded in flooding Mr. Hammond's garage with water. Amy Becker, a license inspector with the Citrus County Building Division performed an investigation of the electrical contracting work done by Respondent at Mr. Hammond's residence, and took photographs. At that time, Mr. Hammond pointed out electrical wiring running from the well to the garage, and Ms. Becker observed there was a conduit and some plastic tubing. Ms. Becker then checked Respondent's licensing status, and found him to be unlicensed as an electrical contractor by either the State or Citrus County. She notified Petitioner, as the State licensing agency. On December 13, 2006, Ms. Becker cited Respondent for unlicensed contracting in wiring the water well pump at Mr. Hammond's residence. Respondent appeared before the County Board on December 13, 2006, and signed the citation signifying he wanted an administrative hearing. On January 24, 2007, Respondent, represented by counsel, was present for testimony before the Board, and the Board upheld the citation against Respondent. Respondent paid the citation on May 29, 2007. Respondent admitted to Petitioner's Investigator, Sharon Philman, during a telephone interview, that he had run wire from Mr. Hammond's garage to the well pump, for which work he charged approximately $940.00. On or about February 13, 2007, Petitioner issued a Cease and Desist Order against Respondent. The instant complaint/case followed. Petitioner put on no evidence concerning a prior 2005 case against Respondent.1/
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order: Finding Respondent guilty of having violated Section 489.531(1)(a), Florida Statutes, on one occasion, and assessing Respondent an administrative fine in the amount of $2,500.00 therefor, as permitted by Section 455.228(2), Florida Statutes. Finding Respondent not guilty of having violated Section 455.227(1)(q) as pled in Count II of the Administrative Complaint herein. DONE AND ENTERED this 19th day of September, 2007, 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 19th day of September, 2007.
