08-001106 Department Of Business And Professional Regulation vs. Stirlyn Bowrin Status: Closed Recommended Order on Friday, August 29, 2008.

Summary: Petitioner showed that Respondent engaged in structural and electrical contracting without a license and without a permit. Recommend a reduced penalty because not all charges were proven and there as minimal electrical work.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. ) Case No. 08-1106

)

STIRLYN BOWRIN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice this cause came on for formal hearing

before P. Michael Ruff, a duly-designated Administrative Law

Judge of the Division of Administrative Hearings in Tampa,

Florida, on May 29, 2008. The appearances were as follows:

APPEARANCES

For Petitioner: Sorin Ardelean, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399

For Respondent: Barry Rigby, Esquire

Law Offices of Barry Rigby, P.A.

924 North Magnolia Avenue, Suite 319

Orlando, Florida 32803

STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern

whether the Respondent committed the charged violations of

Sections 489.127(1)(f) and 489.531(1), Florida Statutes, as set

forth in the Administrative Complaint, and, if so, what if any

penalty is warranted.

PRELIMINARY STATEMENT

This cause arose when an Administrative Complaint was filed

against the Respondent on October 11, 2007, charging the

Respondent with unlicensed contracting, in violation of the

above-referenced provisions of Chapter 489, Florida Statutes.

Specifically, the Respondent is charged with violating Section

489.127(1)(f), Florida Statutes, by engaging or advertising

himself or his business organization in the practice of

unlicensed contracting and, as to Section 489.531(1), Florida

Statutes, by practicing electrical contracting, or advertising

as being available to practice electrical contracting, while not

being properly certified or registered.

The allegations of the complaint were disputed by the

Respondent and a formal administrative proceeding ensued. The

matter was referred to the undersigned Administrative Law Judge

and subsequently set for hearing.

The cause came on for hearing as noticed. The Petitioner

offered the testimony of four witnesses at the hearing: Carolyn

H. Wilson, Reuben Williams, Caleb Alfred and Investigator Kelly

Capes, of the Department of Business and Professional Regulation

(Department). Additionally, the Petitioner's Exhibits 1 through

12 were offered and admitted into evidence. The Respondent

testified on his own behalf at the hearing and had Exhibits 1

through 5 admitted into evidence. The Petitioner has

voluntarily dismissed Counts III and IV of the Administrative

Complaint.

Upon concluding the hearing, the parties elected to have

the testimony transcribed and to submit proposed recommended

orders. The Proposed Recommended Orders have been timely

submitted and have been considered in the rendition of this

Recommended Order.

FINDINGS OF FACT

1. On or about December 11, 2006, the Respondent entered

into a contract with Ms. Carolyn H. Wilson for remodeling work,

at Ms. Wilson's home in St. Petersburg, Florida.

2. The scope of the work included in the Respondent's

"Quotation" or their agreement, involved structural work,

plumbing, and electrical work. The Respondent presented himself

as being properly licensed for the work which he contracted to

perform at Ms. Wilson's property. The Respondent had dictated

the terms of the agreement or contract to Mr. Caleb Alfred who

wrote the terms required by the Respondent into the "Quotation"

form provided by the Respondent. Mr. Alfred was paid a $200.00

commission for referring Ms. Wilson and her job to the

Respondent. Mr. Alfred is not affiliated in any way with the

Respondent, however, and was a coworker at a local school with

Ms. Wilson, who was the Assistant Principal.

3. Ms. Wilson understood that she was contracting for work

to be done by the Respondent and not by Mr. Alfred. The

Respondent and Ms. Wilson signed the "Quotation" form as the

contract for the project.

4. The Respondent was never licensed to engage in any

category of contracting in the State of Florida at any time

material to the facts in this case and to the allegations in the

Administrative Complaint.

5. On December 11, 2006, the Respondent was paid

$7,000.00, by Ms. Wilson's check no. 1022, the day the agreement

was entered into. Thereafter he was paid $11,000.00 on

December 19, 2006, by check no. 1024 issued by Ms. Wilson. He

was paid on December 21, 2006, $1,400.00 by check no. 1025 and

another $3,000.00 on December 22, 2006, by Ms. Wilson's check

no. 1026. The Respondent also incurred some additional charges

on Ms. Wilson's Home Depot and Lowes accounts for certain tools

and items which he kept after he left the job. The Respondent

maintains that he kept those tools as a remedy for work that he

had performed for which Ms. Wilson had not paid him.

6. The work the Respondent contracted to do required

a permit. No permit of any kind for the referenced project was

ever obtained.

7. The electrical work to be performed by the Respondent

included the installing of 10 recessed lights and two outlets.

The lights to be installed, some of which were installed by the

Respondent, were plug-in lights. The outlets installed by the

Respondent involved merely screwing existing wires into the new

outlets. They did not involve the addition of any wiring to the

project or the home.

8. The dishwasher to be installed by the Respondent did

not actually involve plumbing. The plumbing work was already

done and was existing at the site. The Respondent merely had to

screw the plumbing outlet on the dishwasher to the standing

plumbing or pipe.

9. The installation of the flooring and the installation

of the wall in the residence accomplished by the Respondent was

structural work and constituted contracting. The wall was

installed and was attached to the trusses of the structure. The

flooring portion of the project involved installation of the

hardwood flooring and the pad beneath, the charge for which

totaled approximately $15,400.00 itself.

10. The Respondent is a native of Trinidad. While

residing in Trinidad he built houses. He therefore is quite

experienced in construction. He has a "handyman" license from

the City of Sanford. That handyman license prohibits electrical

repair or replacement of any type, roof repair, installation of

exterior doors and windows, and any work that requires a permit.

The Respondent apparently was of the belief that he was

authorized to do the type of work at issue, based on the

strength of holding handyman license.

11. Additionally, the handyman exemption from licensure

which is provided in Section 489.103(9), Florida Statutes,

references contracts under $1,000.00 dollars. It also requires,

for an exemption, that the work involved not require any

permitting. Neither is the case here, the work involved much

more than $1,000.00 and did require permitting, at least in

part.

12. The Respondent apparently finished most of the job at

issue. It is debatable whether he finished the dishwasher

installation which merely involved placing it and screwing it

into the already existing plumbing outlet. There is apparently

a dispute over whether he was to install cabinets. The

Respondent maintains that Ms. Wilson was to purchase and have

installed the cabinets. It is therefore debatable, and not

clear from the evidence of record, whether the Respondent is

indeed still owed money by Ms. Wilson, or whether he charged

more money for his work during the course of the project than

they had agreed to and therefore owes her a refund. In any

event, the monetary dispute is not of direct relevance to the

question of the violations charged in the Administrative

Complaint.

13. The Department adduced testimony of its investigator

concerning investigative costs. She thus testified that she had

no recollection of how many hours or how much time she had

expended in investigating the case culminating in the

Administrative Complaint. She testified that she relied on a

computer time-tracking program of the Department. But no such

record was offered into evidence, nor the custodian of such

record to testify. Consequently, the cost figure asserted by

the Department as investigative cost for this proceeding of

$520.18 has not been proven by persuasive, competent evidence.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2007).

15. Section 455.228, Florida Statutes, empowers the

Department to impose discipline on any person found to be in

violation of Sections 489.127(1) and 489.531(1), Florida

Statutes, as pertinent to this Administrative Complaint and

proceeding.

16. The Petitioner/Department has the burden of

establishing the violations charged by clear and convincing

evidence. Section 120.57(1)(j), Florida Statutes; Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987); and Department of

Banking and Finance Division of Securities and Investor

Protection v. Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996).

The court in Evans Packing Co. v. Department of Agriculture and

Consumer Services , 550 So. 2d 116 at Fn. 5 (Fla. 1st DCA 1989)

declared this standard of proof as requiring that the evidence

must be credible, the facts to which a witness is testifying

must be distinctly remembered, precise and explicit and the

witnesses must be lacking in confusion as to those facts. The

evidence must of sufficient weight to produce in the mind of the

trier of fact a firm belief as to the truth of the allegation

sought to be established. See Slomowitz v. Walker , 429 So. 2d

797, 800 (Fla. 4th DCA 1983).

17. The Respondent is alleged to have violated Section

489.127, Florida Statutes, which provides, in pertinent part,

that:

(1) No person shall:

* * *

(f) Engage in the business or act in the

capacity of a contractor or advertise

himself or herself or a business

organization as available to engage in the

business or act in the capacity of a

contractor without being duly registered or

certified or having a certificate of

authority; . . .

18. Section 489.105(3), Florida Statutes, defines a

contractor as:

. . . the person who, for compensation,

undertakes to, submits a bid to, or does

himself or herself or by others construct,

repair, alter, remodel, add to, demolish,

subtract from, or improve any building or

structure, including related improvements to

real estate, for others or for resale to

others . . . .

19. Section 489.105(6), Florida Statutes, provides in

relevant part:

(6) "Contracting" means, except as exempted

in this part, engaging in business as a

contractor and includes, but is not limited

to, performance of any of the acts as set

forth in subsection (3) which define types

of contractors. The attempted sale of

contracting services and the negotiation or

bid for a contract on these services also

constitutes contracting. If the services

offered require licensure or agent

qualification, the offering, negotiation for

a bid, or attempted sale of these services

requires the corresponding licensure.

20. The Petitioner has established by clear and convincing

evidence that the Respondent violated Section 489.127(1)(f),

Florida Statutes, by practicing contracting or advertising

himself or a business organization as being available to engage

in contracting when he did not have a certification or

registration. He submitted a "Quotation" or contract, to

Carolyn Wilson without being registered or certified as a

contractor and offered to perform the kitchen remodeling project

at issue at her home in St. Petersburg. The scope of work

included the above-found elements of the project that are indeed

regulated by Chapter 489, Florida Statutes, and constitutes

structural contracting and electrical work (the evidence does

not establish that the Respondent engaged in any plumbing work).

21. The Complaint alleges that the Respondent violated

Section 489.531(1), Florida Statutes, which provides, in

pertinent part, that a person may not:

(1) Use the name or title "electrical

contractor" or "alarm system contractor" or

words to that effect, or advertise herself

or himself or a business organization as

available to practice electrical or alarm

contracting, when the person is not then the

holder of a valid certification or

registration issued pursuant to this part.

22. Section 489.505(12), Florida Statutes, defines an

electrical contractor, in pertinent part as the following:

A person who conducts business in the

electrical trade field and who has the

experience, knowledge, and skill to install,

repair alter, add to, or design, in

compliance with law, electrical wiring,

fixtures, appliances, apparatus, raceways,

conduits, or any part thereof, which

generates, transmits, transforms, or

utilizes electrical energy in any form ,

including the electrical installations and

systems within plants and substations, all

in compliance with applicable plans,

specifications, codes, laws and regulations.

The term means any person, firm, corporation

that engages in the business of electrical

contracting under an express or implied

contract; or that undertakes, offers to

undertake, purports to have the capacity to

undertake, or submits a bid to engage in the

business of electrical contracting; or that

does itself or by or through others engage

in the business of electrical contracting.

(emphasis added).

23. In accordance with Sections 489.105(6) and 489.505(9),

Florida Statutes, the attempted sale of construction and

electrical contracting services and the negotiation for a

contract regarding those services constitutes contracting.

24. The Petitioner has established that the Respondent

violated Section 489.531(1), Florida Statutes, by practicing

electrical contracting or advertising himself to be available to

engage in such contracting without the proper certification or

registration. He contracted to perform electrical work

consisting of installation of at least some of the 10 recessed

lights ordered by Carolyn Wilson to be installed at her

residence in St. Petersburg, Florida. Additionally, he

installed at least some of the outlets required by Ms. Wilson,

even if the installation was very simple, involving only

screwing wires into the new outlets. Such comes within the

above definition of installing, repair, altering or adding to

electrical wiring, fixtures, appliances, apparatus, etc. for

purposes of the above statutory definition.

25. It is also apparent, from clear and convincing

evidence of record, that this electrical work was of quite a de

minimus nature, even though it comes within the above

definition. It was simple, limited in scope and quite easily

within the skills of a person not certified in electrical

contracting. Accordingly, a minimum penalty for this portion of

the work is warranted.

26. Section 489.103, Florida Statutes, provides as

follows:

489.103 Exemptions.--This part does not

apply to:

(9) Any work or operation of a casual,

minor, or inconsequential nature in which

the aggregate contract price for labor,

materials, and all other items is less than

$1,000, but this exemption does not apply:

(a) If the construction, repair,

remodeling, or improvement is a part of a

larger or major operation, whether

undertaken by the same or a different

contractor, or in which a division of the

operation is made in contracts of amounts

less than $1,000 for the purpose of evading

this part or otherwise.

(b) To a person who advertises that he or

she is a contractor or otherwise represents

the he or she is qualified to engage in

contracting.

27. Florida Administrative Code Rule 61G4-12.011 states:

* * *

(2) For purposes of the exemption provided

by Section 489.103(9), Florida Statutes,

activities which are not casual, minor, or

inconsequential, include, but are not

limited to, any work affecting structural

components, any work involving use of toxic

or hazardous chemicals or substances, any

work affecting access or egress to a

structure, any work affecting accommodations

for the physically disabled, any work for

which a building permit is required and any

work affecting life-safety matters as

defined in the applicable building codes.

28. The exception provided for in Section 489.103(9) does

not apply to the unlicensed contracting situation at issue

because the contract price was clearly much higher than

$1,000.00 and the structural work contracted for required the

issuance of permits by the City of St. Petersburg. The plumbing

work alleged may have as well, although it is not established

that the Respondent performed any plumbing work.

29. Chapter 489, Part II as applied to electrical

contracting, does not contain any "handyman exception."

Additionally, the handyman license issued to the Respondent by

the City of Sanford clearly does not give the Respondent the

right to perform any contracting of structural work, electrical

work, or plumbing work in the City of St. Petersburg, even if

the contract price had been less than $1,000.00.

30. In summary, the Respondent is clearly engaged in

contracting without the proper certification and registration

for both structural contracting and electrical contracting,

although the electrical contracting was of a de minimus nature.

The allegations concerning plumbing as a phase of contracting

performed by the Respondent have not been established by clear

and convincing evidence. The most the Respondent may have

agreed to do was to connect the dishwasher to existing plumbing

in the kitchen in question, which involved only screwing the

pipe on the dishwasher to the pipe coming out of the wall. Such

does not constitute plumbing contracting.

31. In accordance with Section 455.228, Florida Statutes,

the Department may impose an administrative penalty not

exceeding $5,000.00 per incident and is entitled to recover the

costs of the investigation if proven. Because the electrical

contracting at issue was of a de minimus in nature, in terms of

the scope of the work (and therefore the potential risk to the

homeowner), and because no plumbing contracting was proven to

have been actually performed, the penalty should be reduced by a

reasonable amount for these contingencies. In view of this and

counter balanced by the fact that substantial construction

contracting or structural contracting was performed by the

Respondent in terms of a hardwood flooring job for which he was

paid approximately $15,400.00, as well as additional monies

amounting in total to some $17,000.00 or $18,000.00 dollars, a

significant penalty for such work is warranted. No competent

persuasive proof of the amount of investigative costs has been

established, however.

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 a final order be entered by the Department

of Business and Professional Regulation finding that the

Respondent violated Sections 489.127(1)(7) and 489.531(1),

Florida Statutes, and imposing an administrative penalty in the

amount of $2,000.00.

DONE AND ENTERED this 29th day of August, 2008, 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

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of August, 2008.

COPIES FURNISHED :

Sorin Ardelean, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399

Ned Luczynski, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

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

Barry Rigby, Esquire

Law Offices of Barry Rigby, P.A.

924 North Magnolia Avenue, Suite 319

Orlando, Florida 32803

G.W. Harrell, Executive Director

Construction Industry Licensing Board

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.