17-004510PL Department Of Business And Professional Regulation, Construction Industry Licensing Board vs. Mark Lewis Jenkins Status: Closed Recommended Order on Thursday, September 14, 2017.

Summary: Proof that Respondent assisted an unlicensed person to evade the provisions of chapter 489 and obtained a building permit without entering into a contract warranted fine and suspension.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION,

CONSTRUCTION INDUSTRY LICENSING

BOARD,

Petitioner,

vs. Case No . 17 - 4510PL

MARK LEWIS JENKINS,

Respondent.

_______________________________/

RECOMMENDED ORDER

Upon joint request of the parties, this matter came before

F. Scott Boyd, an Administrative Law Judge assigned by the

Division of Administrative Hearings, on the submitted exhibits

and stipulations of the parties, in lieu of hearing.

APPEARANCES

For Petitioner: Ramsey D. Revell, Esquire

Department of Business and

Professional Regulation

Capital Commerce Center

2601 Blair Stone Road

Tall ahassee, Florida 32399 - 2202

For Respondent: Labeed A. Choudhry, Esquire

Ward Damon, Attorneys at Law

4420 Beacon Circle, Suite 100

West Palm Beach, Florida 33407 - 3281

STATEMENT OF THE ISSUE S

Whether Respondent performed an act which assisted a person

or entity in engaging in the prohibited uncertified and

unregistered practice of contracting , or whether he applied for

and obtained a permit without having entered into a contract to

perform the work spe cified in the permit, as set forth in the

Administrative Complaint ; and, if so, what is the appropriate

sanction.

PRELIMINARY STATEMENT

On July 8, 2016, the Department of Business and Professional

Regulation (Petitioner or Department) issued an Administrat ive

Complaint against Mark Lewis Jenkins (Respondent or Mr. Jenkins)

on behalf of the Construction Industry Licensing Board (Board).

The complaint charged Respondent with: (1) performing an act

which assists a person or entity in engaging in the prohibit ed

uncertified and unregistered practice of contracting; and

(2) obtaining a permit without having entered into a contract to

perform the work specified in the permit. Respondent disputed

material facts alleged in the complaint and requested an

administra tive hearing.

At a pre - hearing conference held on August 15, 2017, the

parties indicated that they believed it might be possible for

them to submit a joint stipulation of facts to support a

r ecommended o rder, without the necessity of conducting a final

hea ring. On August 21, 2017, the parties filed stipulated facts

as part of a Joint Pre - hearing Stipulation. The stipulation

included a request that the final hearing be canceled, and that

this tribunal make a recommendation as to the appropriate

penalty. A n Order canceling the hearing and setting a date for

submission of proposed recommended orders was issued on

August 22, 2017.

The parties subsequently stipulated to four exhibits,

which were accepted into evidence and numbered as Exhibits J - 1

through J - 4. The parties filed a joint Proposed Recommended

Order on August 23, 2017, which was considered in the preparation

of this Recommended Order.

Unless otherwise indicated, citations to the Florida

Statutes or rules of the Florida Administrative Code refer to the

versions in effect during the last quarter of 2015, when the

violations were allegedly committed.

FINDING S OF FACT

1. The Department of Business and Professional Regulation

is the state agency charged with regulating the practice of

construction contr acting pursuant to section 20.165 and

chapters 455 and 489, Florida Statutes.

2. At all times material to these proceedings, Mr. Jenkins

was licensed as a certified general contractor in the state of

Florida, having been issued license number CGC 1513481 .

Mr. Jenkin s ' license is current and active.

3. At all times relevant to the Administrative Complaint,

Mr. Jenkins was the primary qualifying agent of Abacoa

Construction, LLC (Abacoa).

4. Mr. Jenkins was responsible for supervision of all

operations o f Abacoa; for all field work at all sites; and for

financial matters, both for Abacoa in gene ral and for each

specific job.

5. On or about October 29, 2015, Robert Maione entered into

a contract with John Martinache, d/b/a All 4 One Project, LLC,

for reno vations to his residence located at 364 Golfview Road,

Unit 407, North Palm Beach, Florida 33408.

6. Mr. Maione was aware that Mr. Martinache was unlicensed.

7. On or about December 8, 2015, Mr. Jenkins , d/b/a Abacoa,

obtained Building Permit No. 16063 f rom the Village of North Palm

Beach Building Department for electric, HVAC, and plumbing. The

permit was for the renovations at the Golfview Road residence.

8. Mr. Martinache proceeded on interior renovations

requiring proper licensure without having be en certified or

registered to engage in the practice of construction contracting

in the state of Florida. Mr. Jenkins was aware that

Mr. Martinache was not licensed for this work.

9. Mr. Jenkins did not have a contract for the construction

at Golfview Ro ad, did not supervise it, and received no

compensation for it.

10. Restitution cannot be calculated based on the available

facts, as the value of the work and actual damages are unclear.

There is no evidence of financial loss suffered by a consumer in

this case.

11. It was clearly and convincingly shown that Mr. Jenkins

assisted a person or entity in engaging in the prohibited

uncertified and unregistered practice of contracting.

12. It was clearly and convincingly shown that Mr. Jenkins

applied for a nd obtained a permit without having entered into a

contract to perform the work specified in the permit.

13. Mr. Jenkins has not been subject to prior discipline.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has jurisdiction

over the pa rties and the subject matter of this proceeding

pursuant to sections 120.569 and 120.57(1), Florida Statutes

(2017).

15. Petitioner has authority to investigate and file

administrative complaints charging violations of laws regulating

the construction ind ustry. § 455.225, Fla. Stat.

16. Section 489.1195(1)(a) provided that all primary

qualifying agents for a business organization are jointly and

equally responsible for supervision of all operations of the

business organization; for all field work at all sites; and for

financial matters, both for the organization in general and for

each specific job. Shimkus v. Dep ' t of Bus. & Prof ' l Reg. , 932

So. 2d 223, 224 (Fla. 4th DCA 2005).

17. Petitioner seeks disciplinary action against

Respondent ' s license. A p roceeding to suspend, revoke, or impose

other discipline upon a license is penal in nature. State ex rel.

Vining v. Fla. Real Estate Comm ' n , 281 So. 2d 487, 491 (Fla.

1973). Petitioner must therefore prove the charges against

Respondent by clear and conv incing evidence. Fox v. Dep ' t of

Health , 994 So. 2d 416, 418 (Fla. 1st DCA 2008)(citing Dep ' t of

Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932 (Fla.

1996)).

18. The clear and convincing standard of proof has been

described by the Florida Supreme Court:

Clear and convincing evidence requires that

the evidence must be found to be credible; the

facts to which the witnesses testify must be

distinctly remembered; the testimony must be

precise and explicit and the witnesses must be

lacking in confusion as to the facts in issue.

The evidence must be of such weight that it

produces in the mind of the trier of fact a

firm belief or conviction, without hesitancy,

as to the truth of the allegations sought to

be established.

In re Davey , 645 So. 2d 398, 40 4 (Fla. 1994)(quoting Slomowitz v.

Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).

19. D isciplinary statutes and rules " must always be

construed strictly in favor of the one against whom the penalty

would be imposed and are never to be extended by cons truction. "

Griffis v. Fish & Wildlife Conserv. Comm ' n , 57 So. 3d 929, 931

(Fla. 1st DCA 2011); Munch v. Dep ' t of Prof ' l Reg., Div. of Real

Estate , 592 So. 2d 1136 (Fla. 1st DCA 1992).

Count One

20. Respondent was charged with performing an act which

as sists a person or entity in engaging in the prohibited

uncertified and unregistered practice of contracting, in violation

of section 489.129(1)(d). Proof of this charge requires that

Respondent knew, or had reasonable grounds to know, that the

person or e ntity was uncertified and unregistered.

21. The evidence showed that Respondent applied for a

building permit for the renovations at 364 Golfview Road,

Unit 407, in North Palm Beach. This act assisted John Martinache,

d/b/a All 4 One Project, LLC, who wa s not certified or registered

as a contractor, to engage in the practice of contracting.

Respondent admitted that he knew Mr. Martinache was unlicensed.

22. Petitioner proved by clear and convincing evidence that

Respondent assisted a person or entity in engaging in the

prohibited uncertified and unregistered practice of contracting,

in violation of section 489.129(1)(d).

Count Two

23. Respondent was also charged with violation of section

489.129(1)(i), which provided that discipline may be imposed for

failing in any material respect to comply with the provisions of

sections 489.101 through 489.146.

24. Section 489.127(4)(c) provided in relevant part:

A certified or registered contractor . . . may

not apply for or obtain a building permit for

construct ion work unless the certified or

registered contractor . . . or business

organization duly qualified by said

contractor, has entered into a contract to

make improvements to, or perform the

contracting at, the real property specified in

the application or p ermit.

25. The evidence clearly showed that Respondent had not

entered into a contract to renovate the Golfview Road property at

the time he applied for and obtained the building permit.

26. Petitioner showed by clear and convincing evidence that

Respo ndent is subject to discipline under section 489.129(1)(i)

through his violation of section 489.127(4)(c).

Penalty

27. Penalties in a licensure discipline case may not exceed

those in effect at the time the violation was committed. Willner

v. Dep ' t of Pr of ' l Reg., Bd. of Med . , 563 So. 2d 805, 806 (Fla.

1st DCA 1990), rev. denied , 576 So. 2d 295 (Fla. 1991).

28. Section 455.2273(1), Florida Statutes, required the

Board to adopt disciplinary guidelines for specific offenses.

29. Penalties imposed must be consistent with the

disciplinary guidelines prescribed by rule. See Parrot Heads,

Inc. v. Dep ' t of Bus. & Prof ' l Reg. , 741 So. 2d 1231, 1233 - 34

(Fla. 5th DCA 1999).

30. The legislative intent behind mandatory disciplinary

guidelines includes the provi sion of reasonable and meaningful

notice to the public of likely penalties which may be imposed for

proscribed conduct. § 455.2273(2), Fla. Stat.

31. The Board adopted Florida Administrative Code R ule 61G4 -

17.001(1)(d), which provided that the penalty fo r assisting an

unlicensed person to evade provisions of chapter 489 shall range

from a $5 , 000 .00 fine and probation or suspension to a $10,000 .00

fine and probation, suspension, or revocation.

32. The Board also adopted rule 61G4 - 17.001(1)(i), which

provi ded that the penalty for failing in any material respect to

comply with the provisions of Part I of chapter 489 was use of the

" penalty herein listed for the violation most closely resembling

the act underlying the local discipline. " The meaning of " local

discipline " in this context is not at all clear, as there has been

no evidence of local discipline in this case, and routinely would

not be for violation of Part I of the state statute. Perhaps this

language was inadvertently copied from the immediately preceding

offense in rule 61G4 - 17, that of being disciplined by a local

government for an act in violation of the statute. In any event,

the penalty guidelines did not adequately put Respondent on notice

of the penalties he might face for applying for or obtaining a

building permit for construction work when he had not entered into

a contract to perform the specified construction on the property.

Consequently, no additional penalty has been recommended for this

violation. See Arias v. Dep ' t of Bus. & Pro f ' l Reg. , 710 So. 2d

655, 659 (Fla. 3d DCA 1998). See also Fernandez v. Fla. Dep ' t of

Health , 82 So. 3d 1202, 1204 - 05 (Fla. 4th DCA 2012).

33. Rule 61G4 - 17.001(4) provided that the Board shall assess

the costs of investigation and prosecution, excluding costs

related to attorney time.

34. Rule 61G4 - 17.001(5) provided that the Board shall order

the contractor to make restitution in the amount of financial loss

suffered by a consumer to the extent not in violation of federal

bankruptcy law. As noted earl ier, there is no evidence that there

was any financial loss suffered by a consumer in this case.

35. Rule 61G4 - 17.002 listed circumstances which may be

considered for the purposes of mitigation or aggravation of

penalty:

(1) Monetary or other damage to t he

licensee ' s customer, in any way associated

with the violation, which damage the licensee

has not relieved, as of the time the penalty

is to be assessed. (This provision shall not

be given effect to the extent it would

contravene federal bankruptcy law. )

(2) Actual job - site violations of building

codes, or conditions exhibiting gross

negligence, incompetence, or misconduct by the

licensee, which have not been corrected as of

the time the penalty is being assessed.

(3) The danger to the public.

(4) The number of complaints filed against

the licensee.

(5) The length of time the licensee has

practiced.

(6) The actual damage, physical or otherwise,

to the licensee ' s customer.

(7) The deterrent effect of the penalty

imposed.

(8) The effect of the penalty upon the

licensee ' s livelihood.

(9) Any efforts at rehabilitation.

(10) Any other mitigating or aggravating

circumstances.

36. No circumstances were shown that would warrant deviation

from the range of penalties already allowed under the gui delines.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Construction Industry Licensing

Board enter a final order finding Mark Lewis Jenkins in violation

of sections 489.129(1)(d) and 489.129(1)(i ), Florida Statutes;

placing his contractor ' s license on probation for a period of two

years; imposing an administrative fine of $8,500.00; and

requiring him to complete an additional live continuing education

course of seven hours emphasizing chapter 489 and implementing

rules and to pay costs in the amount of $171.66.

DONE AND ENTERED this 14th day of September , 2017 , in

Tallahassee, Leon County, Florida.

S

F. SCOTT BOYD

Administrative Law Judge

Division of Administrativ e 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 14th day of September , 2017 .

COPIES FURNISHED:

Labeed A. Choudhry, Esquire

Ward Damon, Attorneys at Law

4420 Beacon Circle , Suite 100

West Palm Beach, Florida 33407 - 3281

(eServed)

Ramsey D. Revell, Esquire

Department of Business and

Professional Regulation

Capital Commerce Center

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

James David Burkhart, Esquire

Department of Business and

Professional Regulation

Capital Commerce Center

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

Jason Maine, Gen eral Counsel

Department of Business and

Professional Regulation

Capital Commerce Center

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

Daniel Biggins, Executive Director

Construction Industry Licensing Board

Department of Business and

Professional Regulation

Capital Commerce Center

2601 Blair Stone Road

Tallahassee, Florida 32399

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended O rder. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.