The Issue Whether Respondent engaged in the business of contracting without being registered or certified, in violation of Subsection 489.127(1)(f), Florida Statutes (2004),1 as charged in the Administrative Complaint; and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence in this proceeding, the following facts are found: Petitioner is the state agency charged with the responsibility and duty to prosecute administrative complaints, pursuant to Section 20.165 and Chapters 120, 455, and 489, Florida Statutes. Petitioner is authorized to prosecute administrative complaints against unlicensed persons or business organizations, who engage in the business or act in the capacity of a contractor without being registered or certified. At all times material hereto, Respondent, personally, was not licensed to engage in construction contracting in the State of Florida. At all times material hereto, Rentaman or Rentaman Construction/Remodeling did not possess a certificate of authority to practice as a contractor qualified to do business in Florida. At all times material hereto, Timothy Lee Allen was not licensed to engage in construction contracting in the State of Florida. Beginning sometime in 2003 until September 30, 2005, Petitioner, doing business as Rentaman, operated as a sole proprietor under an occupation license in Seminole County. In October 2004, Timothy L. Allen entered into an agreement with Respondent to purchase her trailer, tools, and the right to use her business name in Polk County. Respondent was to receive a five percent commission on any job in which she assisted Allen, including bookkeeping, preparing invoices, and drafting contracts. Allen set up a business in Polk County, using the name Rentaman Construction and Remodeling in October 2004. In early November 2004, Allen negotiated with James and Diandria Mason to do repair/remodeling work on their home in Mulberry, Polk County, Florida. Respondent was contacted and brought in to negotiate the contract with the Masons. On or about November 11, 2004, Respondent, doing business as Rentaman Construction/Remodeling, contracted with James and Diandria Mason to, inter alia, frame the back door and replace the subflooring in the Mason's Mulberry, Florida, mobile home for $1,650.00. The entire second page of the contract was handwritten by Respondent. The first page included a handwritten workmanship warranty, written and initialed by Respondent. The contract included the sentence: "I[the owners] have reviewed and accept the terms and conditions of Sale as presented to me by Debi Gold, an agent of Rentaman." Mason paid Respondent $1,100 cash, as a deposit for the construction project. Allen was placed in charge of the work, but failed to complete the contract with the Masons. The evidence is clear and convincing that Respondent engaged in the business or acted in the capacity of a contractor in November 2004, in Polk County, without being registered or certified. The total investigative costs to Petitioner, excluding costs associated with any attorney's time, was $762.43.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered as follows: Finding Respondent guilty of having violated Subsection 489.127(1)(f), Florida Statutes, as alleged in the Administrative Complaint, and imposing as a penalty an administrative fine in the amount of $5,000.00. Assessing costs of investigation and prosecution to Respondent, excluding costs associated with an attorney's time, in the amount of $762.43. DONE AND ENTERED this 6th day of February, 2007, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 6th day of February, 2007.
The Issue Whether Respondent committed the acts alleged in the Administrative Complaint and, if so, the penalty that 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. Respondent does business under the name South Florida Construction Group. At no time relevant to this proceeding has Respondent or his business entity been registered or certified to perform electrical contracting or any other contracting in the State of Florida. Respondent holds only an occupational license from the City of North Miami. The residence owned by the homeowners (the subject property) sustained roof damage as a result of Hurricane Wilma in October 2005. The homeowners planned to replace their damaged roof after their insurance claim had been processed. In the interim, temporary repairs were made to the roof by a roofing contractor the homeowners located through a local Home Depot, Inc., store. This roofing contractor was identified only as the Home Depot roofing contractor. The homeowners were dissatisfied with the work of the Home Depot roofing contractor. In early August 2006, Mrs. Ugokwe mentioned at a beauty salon that the Home Depot roofing contractor had failed to prevent her roof from leaking. Shortly thereafter, Respondent learned of the homeowners’ dissatisfaction with the Home Depot roofing contractor. On August 9, 2006, Respondent visited the subject property and told the homeowners that he was a general contractor. Respondent gave them his business card that contained Respondent’s name, address, telephone number, and fax number. In addition, the business card contained the name “South Florida Construction Group” underneath which were the words “State Certified General Contractors” and the following license number “CGC 1510133.” The business card advertised the following services: “Home Improvement & Repairs, New Building Construction, Residential & Commercial Pools, Asphalt Paving & Sealcoating [sic], Site Development & Drainage, and Notary Public Service.” The homeowners believed Respondent to be a licensed general contractor. Respondent and the homeowners discussed Respondent performing work on the damaged roof, including placing blue tarp on the roof (the tarp work) to prevent further leaks until the re-roofing could be completed. They also discussed the subsequent re-roofing of the property. Respondent estimated that the re-roofing would be between $30,000.00 and $33,000.00. After inspecting the subject property, Respondent told the homeowners, among other things, that an electrical connection to a pump on their drain field needed to be repaired. Respondent testified that the electrical connection had been damaged when he backed his truck up while attempting to remove some debris from the subject property. At the meeting on August 9, 2006, Respondent and the homeowners agreed that Respondent would perform the tarp work. On August 11, 2006, the homeowners paid Respondent a down- payment of $50.00 cash for the tarp work. On August 12, 2006, Respondent’s crew completed the tarp work. On August 13, 2006, the homeowners paid Respondent the sum of $659.28 for the balance of the materials and labor for the tarp work. The total amount paid for the tarp work was $709.28. On August 13, 2006, after he received payment for the tarp work, Respondent produced a building permit application, which he had Mrs. Ogokwe sign in blank. Respondent explained that he had not finished his proposal for the complete re- roofing and that he wanted her to execute a blank permit to expedite the permitting process. On August 14, 2006, Respondent presented a signed permit application to the building department of Miami-Dade County, Florida, pertaining to the re-roofing of the subject property. Ms. Ugowke’s signature had been notarized. When Respondent presented the permit application to the building department, the contractor’s name was listed as F L Construction, Inc. The qualifying contractor’s name was listed as being Charles Lennox with the contracting licensing number CGC 1510133. That was the same number listed on Respondent’s business card. The value of the work was listed as being $6,200.00. On the morning of August 15, 2006, Respondent returned to the subject property with a person Respondent told the homeowners was an electrician. Mrs. Ugokwe asked Respondent how much the repair of the electrical connection would cost before the purported electrician started to work. Respondent told her not to worry since he would add the cost of the electrical work to the cost of re-roofing the subject property. The electrical repair had been made by the time Mrs. Ugokwe returned to the subject property after work that evening. On August 16, 2006, Respondent informed the homeowners that he had secured a building permit and that he had his proposal for the re-roofing. On August 17, 2006, Respondent delivered a package to the homeowners that contained his proposal and the building permit. Respondent’s proposal for the re-roofing was in the total amount of $39,672.92. The homeowners considered this proposal to be unacceptable. On the building permit Respondent gave to the homeowners, the name of the contractor (F L Construction, Inc.) had been covered with white-out and the name South Florida Construction Group had been inserted as the name of the contractor. The building permit was not otherwise altered. On August 19, 2006, Respondent presented the homeowners with a revised contract for the total price of $33,000.00. Mrs. Ugowke confronted Respondent about the discrepancy between the revised proposal ($33,000.00) and the value of the work reflected on the building permit ($6,200.00). Mrs. Ugowke also confronted Respondent about the white-out on the building permit. The homeowners refused to sign the second proposal. Respondent became angry and demanded immediate payment of $750.00 for the repair of the drain field electrical connection. Mrs. Ugokwe counter-offered to pay $150.00, a sum she believed to be fair after her husband priced the cost of the materials used in the repair. Respondent refused to take the counter-offer. By invoices dated August 22 and September 4, 2006, Respondent billed the homeowners for work that included the electrical work. Each invoice was on South Florida Construction Group’s form invoice. Each invoice reflected the general contractor’s license number CGC 1510133, which is Mr. Lennox’s number. Both invoices included a charge of $1,209.28 for installation of “new blue top, nails and labor” although the homeowners had already paid Respondent $709.28 for the same job. The homeowners refused to pay the invoices. Respondent sued them and placed a lien on the subject property in the amount of $3,839.82. In his claim of lien, Respondent affirmed under oath that he furnished the following services to the homeowners: re-roofing, electrical, and repairs. Respondent’s civil suit was dismissed on the merits. Even after that action, Respondent refused the homeowners’ request to remove the lien from their property. On September 15, 2006, Mr. Lennox sent all his sub- contractors a letter asking them to immediately stop using his contractor license number without his express permission. Respondent signed the bottom of the letter acknowledging receipt thereof, even though Respondent was not a sub-contractor. Respondent’s business primarily consists of finding customers for contractors. He deals with a customer, but has a contractor, such as Mr. Lennox, perform the work Respondent’s company has contracted to do. Had the contract with the homeowners in this proceeding gone through, Respondent intended to obtain payment from them, by having F L Construction, Inc., do the actual work. Petitioner has incurred investigative costs in the amount of $277.52. This figure excludes any costs associated with attorney’s time.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent enter a final order that finds Respondent guilty of having violated Section 489.531(1), Florida Statutes (2006). It is further RECOMMENDED that Respondent impose an administrative fine against Respondent in the amount of $1,000.00 and assess investigative costs against Respondent in the amount of $277.52. DONE AND ENTERED this 4th day of April, 2008, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 4th day of April, 2008.
The Issue The issues to be resolved in this proceeding concern whether the Respondent committed the charged violations of Section 489.127(1)(f), Florida Statutes (2006), and Section 489.531(1)(a), Florida Statutes (2006), and if so, what penalty, if any, is warranted.
Findings Of Fact The Petitioner is an Agency of the State of Florida charged with regulating the practice of contracting and the licensure of those engaged in the practice of contracting of all types, in accordance with Section 20.165, Florida Statutes, as well as Chapters 455 and 489, Florida Statutes. The Respondent engages in re-modeling and other construction-related work both as his own business and employment by a certified general contractor. This case arose upon a Complaint filed with the Petitioner Agency by Mr. Kenneth Hatin. The Complaint asserted his belief that the Respondent had engaged in a contract to construct an addition on his home, and after being paid substantial sums of money, had wrongfully left the job and never finished it. The residence in question is co-owned by Mr. Hatin and his fiancée, Ms. Beverly White. Ms. White's first cousin is Ms. Julie Crawley. Ms. Crawley is the Respondent's fiancée. Mr. Hatin and the Respondent were introduced by Ms. Crawley and Ms. White. Mr. Hatin and the Respondent thus met socially and as they got to know each other discussed Mr. Hatin's desire to have an addition placed on his home. The addition consisted of a pool enclosure to be constructed on his property located at 33 Botany Lane, Palm Coast, Florida. Mr. Hatin expressed the desire to have the Respondent assist him in constructing the pool enclosure. The Respondent agreed to do so. The Respondent is employed by his brother, who is a Florida-Licensed General Contractor, but neither the Respondent nor his business, JR. Wittmer's Remodeling, Inc., are licensed or certified to engage in contracting or electrical contracting. In accordance with his agreement with Mr. Hatin, the Respondent provided labor and assistance with the renovation project, including digging ditches, picking-up supplies and being present at the work site. In addition to the Respondent, other friends and family members of the protagonists assisted with the project, including the Respondent's son, Ms. Crawley's son, Mr. Hatin's employer, Ms. White's brother-in-law, and Mr. Hatin himself. This was, in essence, a joint family/friends cooperative construction project. Over the course of approximately five months during the construction effort, Mr. Hatin wrote checks to the Respondent in the total amount of $30,800.00. All contractors or workmen on the job were paid and no liens were placed on Mr. Hatin's property. The checks written were for the materials purchased and labor performed by tradesmen or sub-contractors engaged by the Respondent and Mr. Hatin for various aspects of the job such as roofing, tile or block laying, etc. The Respondent received no fee or profit in addition to the amounts paid to the material suppliers, contractors, and laborers on the job. It is not entirely clear from the record who prepared the contract in evidence as Petitioner's Exhibit four, or the document that the parties treated as a contract. It is not entirely clear who actually signed it, but the document was drafted relating to the work to be done on Mr. Hatin's home (the contract). Mr. Hatin maintained that the Respondent prepared and signed the contract. Ms. Crawley testified that the contract was actually prepared by herself and Ms. White (for "tax purposes"). It is inferred that this means that the contract was prepared to provide some written evidence of the amount expended on the addition to the home, probably in order to raise the cost basis in the home to reduce capital gains tax liability potential at such time as the home might be sold. The term "tax purposes" might mean other issues or consequences not of record in this case, although it has not been proven that the contract was prepared for a fraudulent purpose. Ms. Crawley testified that the Respondent did not actually sign the document himself but that she signed it for him. What was undisputed was that there were hand-written changes made to the contract so as to include exhaust fans, ceiling fans, sun tunnels, a bathroom door and outside electrical lighting. Although there was a change to the contract for this additional scope of work, there was no increase in the amounts to be paid by Mr. Hatin for such work. After the project was commenced and the addition was partially built, Mr. Hatin and Ms. White were involved in a serious motorcycle accident. Work was stopped on the project for a period of approximately seven weeks, with Mr. Hatin's acquiescence, while Ms. White convalesced. The Respondent, during this time, dedicated all of his time to his regular job and other work commitments. It was apparently his understanding, expressed in Ms. Crawley's testimony, that, due to injuries he received in the accident and more particularly the more serious injuries received by his fiancée, that Mr. Hatin was not focused on the project at that time, but let it lapse until the medical emergency was past. After approximately seven weeks of inactivity Mr. Hatin contacted the Respondent requesting that he begin work on the project again. A meeting was set up between Mr. Hatin and the Respondent. The Respondent however, was unable to attend the meeting with Mr. Hatin that day, tried to re-schedule and a dispute arose between the two. Additionally, family disputes over money and interpersonal relationships were on- going at this time leading to a lack of communication and a further dispute between Mr. Hatin, Ms. White, the Respondent, and Ms. Crawley. A threat of physical harm was directed at the Respondent by Mr. Hatin (he threatened to put out the Respondent's "one good eye" if he came on the subject property again). Because of this, the Respondent elected not to return to the project. Inferentially, at that point the process of filing the subject complaint soon ensued.
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, therefore, RECOMMENDED that the Administrative Complaint filed herein be dismissed. DONE AND ENTERED this 12th day of June, 2007, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 12th day of June, 2007. COPIES FURNISHED: Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 E. Renee Alsobrook, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Garvin B. Bowden, Esquire Gardner, Wadsworth, Duggar, Bist & Wiener, P.A. 1300 Thomaswood Drive Tallahassee, Florida 32308 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
The Issue The issue in this case is whether the Electrical Contractors' Licensing Board should discipline the Respondent for violating section 489.533(1)(a), Florida Statutes (2013),1/ by violating section 455.227(1)(j), which prohibits "[a]iding, assisting, procuring, employing, or advising any unlicensed person or entity to practice a profession contrary to this chapter, the chapter regulating the profession, or the rules of the department or the board."
Findings Of Fact The Respondent, Michael Ellis, is licensed in Florida as an electrical contractor and holds licenses EC0000680 and EC13003559. He has been licensed in Florida since 1986 and has not been disciplined prior to this case. In the summer and fall of 2013, the Respondent was the primary qualifying agent of M. Ellis Electrical, Inc. (Ellis Electrical). In the summer and fall of 2013, Clark Huls was not licensed as an electrical contractor in Florida. In August 2013, Ellis Electrical had a subcontract with Powerhouse, Inc. (Powerhouse), which had a contract with 7-Eleven, Inc. (7-Eleven), for the installation of hot food cabinets at several different 7-Eleven retail locations in Florida. The installation required electrical work (including subpanels, new circuits, outlets, and breakers) and had to be done by a licensed electrical contractor. Someone at Powerhouse referred Huls to the Respondent, and the Respondent hired him to do the installations for $1,400 for each of nine different 7-Eleven jobsites. It was the Respondent's initial intent to hire Huls as a subcontractor. The evidence is disputed and not clear as to exactly what Huls represented to the Respondent about his license status when the Respondent hired him. The evidence is clear that Huls did not provide him with licensure and insurance information at that time and was supposed to provide this information to the Respondent at the first jobsite. The Respondent did not initially check DBPR's website to verify Huls' license status, which was the prudent and appropriate thing for him to have done. The first work performed by Huls for the Respondent was on August 21, 2013. The Respondent was there to supervise and direct the work. Huls did not provide license and insurance information. By this time, the Respondent clearly knew or should have known that Huls was not licensed. At the third installation Huls performed, on August 24, 2013, the Respondent had an employee named Jason Ippolito deliver an employment package to Huls. Huls refused to complete and sign the employment paperwork because it would change the terms of his agreement with the Respondent to be paid $1,400 per jobsite. The Respondent allowed Huls to continue to work on installations while trying to resolve the subcontract/employment issue. In all, Huls completed nine installations between August 21 and September 3, 2013. When Huls asked to be paid $1,400 per jobsite, as originally agreed, the Respondent refused to pay because Huls was not licensed as a subcontractor and refused to complete the paperwork to be paid as an employee. Huls then placed liens on all nine 7-Eleven properties and contacted Powerhouse to be paid. In order to save its relationship with 7-Eleven, Powerhouse paid Huls $5,806 and deducted that amount from what it owed Ellis Electrical. On October 12, 2013, the Respondent filed a DBPR complaint against Huls for subcontracting without a license. DBPR filed an Administrative Complaint against Huls for unlicensed activity. Criminal prosecutions of Huls also were filed and were pending at the time of the final hearing in this case. In mitigation, in addition to his clean record as a long-time licensee, the Respondent presented that he was dealing with his wife's serious health issues during the summer and fall of 2013, which affected his ability to manage his jobsites. In addition, no consumer or member of the public suffered financial harm. Ultimately, the financial harm was borne by the Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Electrical Contractors' Licensing Board find the Respondent, Michael Ellis, guilty as charged, fine him $1,000, require him to pay reasonable investigative costs, and take two additional hours of continuing education with an emphasis on laws and rules. Jurisdiction is retained for 30 days after the final order to determine reasonable investigative costs if the parties cannot reach an agreement. DONE AND ENTERED this 13th day of March, 2015, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 13th day of March, 2015.
The Issue The issues to be resolved in this proceeding concern whether the Respondent should be subjected to disciplinary sanctions based upon alleged violations of Sections 489.127(1) and 489.531(1), Florida Statutes, by engaging in the business or capacity of a general contractor, and as an electrical or alarm system contractor, without being certified or registered.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with regulating and enforcing the statutes and rules pertaining to the licensure and practice of contracting, including construction contracting and electrical contracting. The Petitioner is also charged with regulating and enforcing statutes concerning the unauthorized practice of such contracting, including practicing without proper certification or registration. At all times material hereto the Respondent, Kevin Davidson, d/b/a Wise and Davidson Construction and Davidson Contracting and Construction (Davidson or Kevin Davidson) was not licensed, certified or registered to engage in construction contracting or any electrical or alarm system contracting in the State of Florida. On or about December 21, 2004, the Respondent, doing business as Davidson Contracting and Construction, contracted with Mr. Hanson, a witness for the Petitioner, to install and erect a 50-foot by 60-foot by 17 and one-half foot airplane hanger on a concrete foundation. He also contracted to install a 200 amp electrical panel box on Mr. Hanson's property in conjunction with construction of the building. The property was located in Morriston, Florida. The contracted price for the work described was $47,597.30. Mr. Hanson paid the Respondent the total of $20,514.30 as part of the contract price. The Respondent never finished the project, but only laid the concrete foundation. At the insistence of the Respondent, Mr. Hanson rented a backhoe which the Respondent agreed to operate in constructing a driveway. The work was never finished, and Mr. Hanson had to obtain other help in constructing the driveway. The Respondent also damaged the rented backhoe while he was operating it. These factors caused Mr. Hanson an additional economic loss of $4,830.38. On or about December 13, 2004, the Respondent, doing business as Wise and Davidson Construction, contracted with Ms. Crowell, a Petitioner witness, to install and erect a 50- foot by 60-foot by 17 and one-half foot steel building on a concrete foundation, also in Morriston, Florida. The Respondent also contracted to install a 200 amp electrical panel box in conjunction of construction of that building. The total amount of the contract price was $47,047.30. Ms. Crowell paid the Respondent at least $35,251.35 in partial payment for the contract. After laying the foundation, however, the Respondent abandoned this project as well. The Respondent's abandonment of the project cost Ms. Crowell $29,943.00 in additional economic damage in order to obtain completion of the project by another contractor. The Department incurred certain investigative costs in prosecuting these two cases. It was thus proven by the Petitioner that the Department expended $510.06 for the prosecution of DOAH Case No. 06-2308. The Petitioner also established that it spent the sum of $944.13 in costs for Case No. 06-2307. This represents total investigative costs expended by the Agency of $1,454.19, for which the Petitioner seeks recovery. The Petitioner is not contending that any attorney's fees are due.
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, therefore, RECOMMENDED that the Department of Business and Professional Regulation enter a final order determining that the Respondent has violated Sections 489.127(1)(f) and 489.531(1), Florida Statutes (2004), as alleged in the earlier-filed Administrative Compliant in Case No. 06-2308, and impose an administrative fine in the amount of $5,000.00 for the violation of Section 489.127(1)(f), Florida Statutes (2004), and an administrative penalty of $5,000.00 with regard to the electrical contracting violation, as provided for by Section 455.228, Florida Statutes (2004). It is further recommended that the final order determine that the Respondent is guilty of violating Sections 489.127(1)(f) and 489.531(1), Florida Statutes (2004), as alleged in the later-filed Administrative Complaint in Case No. 06-2307 and that an administrative fine in the amount of $10,000.00 for the violation of Section 489.127(1)(f), Florida Statutes (2004), and that an administrative penalty of $5,000.00 be imposed for the electrical contraction violation, as provided for by Section 455.228, Florida Statutes (2004). It is further recommended that costs be assessed against the Respondent for investigation and prosecution of both cases, not including costs associated with attorney's time and efforts, in the total amount of $1,454.19, payable to the Petitioner Agency. DONE AND ENTERED this 15th day of November, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 15th day of November, 2006. COPIES FURNISHED: Brian A. Higgins, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Kevin Davidson Post Office Box 131 LoveJoy, Georgia 30250 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 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 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
