01-003890 Department Of Business And Professional Regulation vs. Robert Footman Status: Closed Recommended Order on Monday, February 18, 2002.

Summary: Respondent was shown to have engaged in pool contracting without a license. Respondent presented evidence in mitigation of the fine suggested by the Petitioner.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. ) Case No. 01 - 3890

)

ROBERT FOOTMAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its duly - designated Administrative Law Judge,

Stephen F. Dean, held a formal hearing in the above - styled case

on January 8, 2002, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Patrick Creehan, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 3060

For Respondent: Robert Footman, pro se

2720 Lake Mary Street

Tallahassee, Florida 32310

STATEMENT OF THE ISSUE

Whether Respondent violated Section 489.127(1)(f), Florida

Statutes, as alleged in the Administrative Complaint filed

against Respondent in this proceeding and should be disciplined.

PRELIMINARY STATEMENT

On March 29, 2001, Petitioner filed an Administrative

Complaint alleging that Respondent had violated the laws

regulating the practice of unlicensed contracting in the State

of Florida. The one - count Administrative Complaint charged

Respondent with having violated Section 489.127(1)(f), Flori da

Statutes, by advertising himself as and engaging in the business

of contracting without being duly registered or certified.

During the hearing, Petitioner offered the testimony of one

witness, Harold Knowles. Petitioner introduced four exhibits

which were entered into evidence.

Respondent offered no exhibits and testified in his own

behalf.

The parties offered post - hearing pleadings that were read

and considered.

FINDINGS OF FACT

1. At no time material to the allegations was Respondent

licensed or certified as a contractor of any type by the Florida

Construction Industry Licensing Board.

2. On or about June 2000, Respondent entered into a

written contractual agreement with Harold Knowles to construct a

swimming pool at Mr. Knowles' residence loca ted at 235 North

Rosehill Drive, Tallahassee, Florida.

3. The contract price for the swimming pool was

$18,650.00. Mr. Knowles paid directly to Respondent $9,400.00.

4. Respondent performed some work on the pool project and

then stopped work on the pr oject.

5. Respondent failed to return to Mr. Knowles any monies

received for the project.

6. The homeowner was forced to pay out - of - pocket expenses

to have a second, licensed pool contractor finish the pool that

Respondent left unfinished. These expens es total in excess of

$24,000.00.

7. Respondent acknowledges that he had no license.

8. Respondent testified at hearing along with his wife.

It was clear that Respondent was sorry for his actions. He was

unaware of the gravity of his acts. He does n ot have any

financial resources, and a significant fine will not benefit

Mr. Knowles. A substantial fine adversely impact Respondent's

family more than Respondent.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding pursuant to Section 120.57, Florida Statutes.

10. Petitioner, the Department of Business and

Professional Regulation, is the state agency charged with

regulating the practice of contracting pursuant to

Section 20.165 and Chapters 455 and 489, Florida Statutes.

11. Pursuant to Section 455.228, Florida Statutes, the

Department of Business and Professional Regulation has

jurisdiction over the unlicensed practice of contracting and is

empowered to asses s fines and investigative costs and other

penalties against an individual who is found guilty of

unlicensed contracting in contrary to Section 489.113(2),

Florida Statutes.

12. Petitioner has the burden of proving by clear and

convincing evidence the alle gations against Respondent. Section

120.57(1)(h), Florida Statutes; Ferris v. Turlington , 510 So. 2d

292 (Fla. 1987); and Department of Banking and Finance v.

Osborne Stern and Company , 670 So. 2d 932 (Fla. 1996).

13. The Administrative Complaint alleg es Respondent is

guilty of having violated Section 489.127(1)(f), Florida

Statutes, which provides, in pertinent part, as follows: No

person shall engage in the business or act in the capacity of a

contractor without being duly registered or certified or

advertise himself or a business organization as available to

engage in the business or act in the capacity of a contractor

without being duly registered or certified.

14. Petitioner has proven by clear and convincing evidence

that Respondent violated Sect ion 489.127(1)(f), Florida

Statutes, by engaging in contracting without being duly

registered or certified. Respondent admitted that he is

unlicensed. The records reveal that at the time in question, he

was unlicensed.

15. Respondent is subject to disci plinary action by the

Department of Business and Professional Regulation pursuant to

Section 455.228(1), (2), (3)(a) and (3)(c), Florida Statutes, as

alleged in the Administrative Complaint.

16. Section 455.2273(5), Florida Statutes, states that the

Admin istrative Law Judge, in recommending penalties in any

recommended order, must follow the penalty guidelines

established by the Board or Department and must state in writing

the mitigating or aggravating circumstances upon which the

recommended penalty is b ased.

17. The homeowner paid $9,400.00 to Respondent.

Respondent did little more than excavate a hole in the ground

before abandoning the project altogether. Petitioner

demonstrated by clear and convincing evidence that the

Respondent did not return any of the monies paid to him.

18. Although Mr. Knowles was entitled to his money back

less the value of the excavation, the state cannot argue in

"aggravation" that Mr. Knowles is entitled to the value of his

contract with Respondent as an unlicensed cont ractor.

19. Respondent did not repay the money to Mr. Knowles

because he did not have it. A fine paid to the state does not

benefit Mr. Knowles. Respondent has few financial resources.

Respondent's wife is employed with the state, and Respondent

digs h oles for a pool contractor; in fact, the one that

completed Mr. Knowles' pool. A $5,000.00 fine is excessive to

the extent that he has no hope of paying it.

20. Respondent has no plans to become licensed and there

is no leverage to force payment. A $5, 000.00 fine in this case

will not benefit the consumer and probably will not be collected

by the state. The debt will lie more heavily on his family than

on Respondent. For these reasons, the substantial fine

requested should be reduced greatly on the ba sis that a small

fine collected is more effective than a large fine unpaid.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED:

That Respondent be fined $500.00, together with the

investigation and prosecu tion costs.

DONE AND ENTERED this 18th day of February, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

STEPHEN F. DEAN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkw ay

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 18th day of February, 2002.

COPIES FURNISHED :

Patrick Creehan, Esqu ire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32388 - 2202

Robert Footman

2702 Lake Mary Street

Tallahassee, Florida 32310

Gail Scott - Hill, Esquire

Lead Professions Attorney

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 0771

Hardy L. Roberts, III, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

NOTICE OF RIG HT 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.