01-004893 Department Of Business And Professional Regulation vs. Philip Taylor Status: Closed Recommended Order on Thursday, March 28, 2002.

Summary: Department proved by clear and convincing evidence that Respondent engaged in the business of contracting without a license. Administrative penalty of $5,000 should be imposed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. ) Case No. 01 - 4893

)

PHILIP TAYLOR, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hea ring was held in this case

on February 5, 2002, in Miami, Florida, before Patricia Hart

Malono, a duly - designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Diane Snell Perera, Esquire

Department of Business and Professional

Regulation

401 Northwest Second Avenue

Suite N - 607

Miami, Florida 33128

For Respondent: Herbert B. Dell, Esquire

4801 South University Drive

Suite 103

Fort Lauderdale, Florida 33328

STATEMENT OF THE ISSUE

Whether the Respondent committed the violation alleged in

the Administrative Complaint dated September 25, 2 001, and, if

so, the penalty that should be imposed.

PRELIMINARY STATEMENT

In an Administrative Complaint dated September 25, 2001,

the Department of Business and Professional Regulation

("Department") charged Philip Taylor with a violation of

Section 489. 127(1)(f), Florida Statutes (1999), asserting that

he had engaged in the business of contracting without being duly

registered or certified to act in the capacity of a contractor.

In support of this charge, the Department alleged in the

Administrative Com plaint that Mr. Taylor entered into a

construction contract and received a deposit to begin

construction at a time when he was not certified as a contractor

and that he did not begin construction and failed to refund the

deposit. The Department requested entry of an order

recommending imposition of an administrative fine and assessing

costs incurred in the investigation and prosecution of this

matter.

Mr. Taylor timely disputed the factual allegations in the

Administrative Complaint and requested an admini strative

hearing. The Department forwarded the case to the Division of

Administrative Hearings for assignment of an administrative law

judge. Pursuant to notice, a final hearing was held in Miami,

Florida, on February 5, 2002.

At the hearing, the Departm ent presented the testimony of

Hensel Reid, Jose Mitrani, and Ovilio Suarez. Petitioner's

Exhibits 1 through 6 were offered and received into evidence;

Exhibit 1 was received subject to the limitations on the use of

hearsay evidence set forth in Section 1 20.57(1)(c), Florida

Statutes. The Respondent did not present the testimony of any

witnesses or offer any exhibits into evidence.

The one - volume transcript of the proceedings was filed with

the Division of Administrative Hearings on February 21, 2002,

and the Department timely filed proposed findings of fact and

conclusions of law, which have been considered in preparing this

Recommended Order. Mr. Taylor did not file any post - hearing

submittal.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of this proceeding, the

following findings of fact are made:

1. The Department is the state agency charged with

investigating and prosecuting the unlicensed practice of

contracting and may impose a penalty in accordance with the

provisions of Chapter 120, Florida Statutes.

Sections 455.228(1) and 489.127(1)(f), Florida Statutes.

2. At the times material to this proceeding, Mr. Taylor

did business as A Tova Developers, Inc. Neither Mr. Taylor nor

A Tova Developers, Inc., was certified or registered to do

business as a contractor in the State of Florida at any time

material to this proceeding.

3. On or about September 10, 1998, Mr. Taylor, as

"President" of A Tova Developers, Inc., and Hensel Reid a s

"Owner" entered into a contract for the construction of a new

sanctuary for the Banner of Love Church, to be located at 16930

Northwest 17th Avenue in Miami, Florida. The contract price was

$311,500.00, and the contract provided that a deposit was to be

paid in the amount of $23,362.00.

4. The contract incorporated a separate written estimate

identifying specifically the work to be done. The name and

address of A Tova Developers, Inc., the designation "Contractor

# CGC 041569," and the words "Licensed and Insured" appeared on

the estimate.

5. Mr. Reid paid the required deposit by check dated

September 10, 1998, made payable to A Tova Developers, Inc., in

the amount of $23,362.00.

6. Although a survey was done to determine which trees

could not be cut on the property on which the sanctuary was to

be built, the property was never cleared and no construction was

begun pursuant to the contract. Mr. Taylor did place a

construction trailer on the property, which he later abandoned.

A citation was issued to the church for the abandoned trailer.

7. In March 1999, Mr. Reid, on behalf of the church,

sought arbitration under the September 10, 1998, contract. In

September 1999, an arbitration award was entered in which, among

other things, A Tova Developers, In c., was ordered to pay to the

Banner of Love Church, Inc., the amount of $23,362.00 and

Mr. Taylor and A Tova Developers, Inc., were ordered to remove

the trailer from church property within seven days of the date

of the award.

8. Mr. Taylor did not remov e the trailer as ordered, and,

after Mr. Reid tried unsuccessfully to contact Mr. Taylor, the

church paid the fine and the costs of removing the trailer from

the property.

9. On or about February 22, 2000, after A Tova Developers,

Inc., had failed to pay the church the amounts awarded in

arbitration, a Final Judgment on Arbitration Award was entered

by the Circuit Court of the 11th Judicial Circuit, in which A

Tova Developers, Inc., was ordered to pay the Banner of Love

Church the amount of $23,362.00, tog ether with interest. In

addition, Mr. Taylor and A Tova Developers, Inc., were jointly

ordered to pay an additional $750.00 and $222.00 in court costs.

10. After Mr. Taylor and A Tova Developers, Inc., failed

to pay the amounts awarded in the final judgm ent, Mr. Reid filed

a criminal complaint against Mr. Taylor. The State Attorney

filed an information charging Mr. Taylor with grand theft and

with contracting without a license. Mr. Taylor entered a plea

of guilty, and he was sentenced to fifteen years' probation on

the grand theft charge; the sentence for the charge of

contracting without a license was suspended. As a condition of

probation, Mr. Taylor was ordered to pay restitution to the

Banner of Love Church in the amount of $33,838.00.

11. On or ab out October 27, 2000, Mr. Taylor made a

restitution payment to the Banner of Love Church in the amount

of $5,000, and he has continued making monthly restitution

payments in varying amounts through the State of Florida since

that time. At the time of the final hearing, he had paid the

church approximately $9,000.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (2001).

13. A "contractor" is defined in pertinent part in

Section 489.105(3), Florida Statutes, as follows:

(3) "Contractor" means the person who is

qualified for, and shall only be responsible

for, the project contracted for and means,

except as exempted in this part, 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; and whose

job scope is substantially similar to the

job scope described in one of the subsequent

paragraphs of this subsection. . . .

Contractors are subdivided into two

divisions, D ivision I, consisting of those

contractors defined in paragraphs (a) - (c),

and Division II, consisting of those

contractors defined in paragraphs (d) - (q):

(a) "General contractor" means a contractor

whose services are unlimited as to the type

of work whic h he or she may do, who may

contract for any activity requiring

licensure under this part, and who may

perform any work requiring licensure under

this part, except as otherwise expressly

provided in s. 489.113.

(b) "Building contractor" means a

contracto r whose services are limited to

construction of commercial buildings and

single - dwelling or multiple - dwelling

residential buildings, which commercial or

residential buildings do not exceed three

stories in height, and accessory use

structures in connection therewith or a

contractor whose services are limited to

remodeling, repair, or improvement of any

size building if the services do not affect

the structural members of the building.

14. "Contracting" is defined in pertinent part in

Section 489.105(6), F lorida Statutes (1999), as

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 negoti ation or

bid for such 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 licensur e. . . .

15. On the basis of the findings of fact herein, the

Department has satisfied its burden of proving by clear and

convincing evidence that Mr. Taylor engaged in the business of

contracting when he negotiated and signed a contract for the

construc tion of a church sanctuary and that Mr. Taylor did so

although neither he nor A Tova Developers, Inc., was certified

or registered as a contractor pursuant to Chapter 489, Florida

Statutes. Mr. Taylor, therefore, acted in violation of

Section 489.113(2), Florida Statutes (1999), which provides

that, with some exceptions not pertinent here, "[n]o person who

is not certified or registered shall engage in the business of

contracting in this state" and of Section 120.127(1)(f), Florida

Statutes (1999), which p rohibits a person from "[e]ngag[ing] in

the business of contracting or act[ing] in the capacity of a

contractor or advertis[ing] himself or herself or a business

organization as available to engage in the business or act in

the capacity of a contractor wit hout being duly registered or

certified or having a certificate of authority."

16. The Department has authority over persons who practice

contracting without a license pursuant to Section 455.228,

Florida Statutes (1999), as follows:.

(1) When the depart ment has probable cause

to believe that any person not licensed by

the department, or the appropriate

regulatory board within the department, has

violated any provision of this chapter or

any statute that relates to the practice of

a profession regulated b y the department, or

any rule adopted pursuant thereto, the

department may issue and deliver to such

person a notice to cease and desist from

such violation. In addition, the department

may issue and deliver a notice to cease and

desist to any person who aids and abets the

unlicensed practice of a profession by

employing such unlicensed person. The

issuance of a notice to cease and desist

shall not constitute agency action for which

a hearing under ss. 120.569 and 120.57 may

be sought. For the purpose of enforcing a

cease and desist order, the department may

file a proceeding in the name of the state

seeking issuance of an injunction or a writ

of mandamus against any person who violates

any provisions of such order. In addition

to the foregoing remedies, the department

may impose an administrative penalty not to

exceed $5,000 per incident pursuant to the

provisions of chapter 120 or may issue a

citation pursuant to the provisions of

subsection (3). If the department is

required to seek enforcement of the order

for a penalty pursuant to s. 120.569, it

shall be entitled to collect its attorney's

fees and costs, together with any cost of

collection.

(Emphasis added.)

17. The Department has chosen to impose an administrative

penalty on Mr. Taylor for engagi ng in the business of

contracting without a license, and it suggests that a penalty of

$5,000.00 would be appropriate. The Department has proven by

clear and convincing evidence that the Banner of Love Church has

suffered a monetary loss as a result of Mr . Taylor's actions in

taking a deposit but failing to do any work under the contract;

the church will not, at the current rate of restitution, be made

whole for many years. And, although the Department did not

charge Mr. Taylor with having falsely held hi mself or his

company out as a certified contractor, see Section

489.127(1)(a), Florida Statutes (1999), the Department has

proven by clear and convincing evidence that Mr. Taylor

represented to Mr. Reid that A Tova Developers, Inc., as a

certified contract or by virtue of the information contained on

the estimate incorporated into the contract. The Department

has, therefore, established aggravating factors that would

justify imposition of the maximum administrative penalty

permitted under Section 455.228(1) , Florida Statutes (1999),.

18. In its Administrative Complaint, the Department

requested that the costs of investigation and prosecution of

this case be assessed against Mr. Taylor. No statutory

authority was cited in the Administrative Complaint to sup port

the request, but in its Proposed Recommended Order, the

Department indicated that its request was based on the following

provision in Section 455.228(3)(c), Florida Statutes (1999):

"The department shall be entitled to recover the costs of

investigat ion, in addition to any penalty provided according to

department rule as part of the penalty levied pursuant to the

citation." By its terms and by its context in the subsection of

Section 455.228 dealing with procedures for the issuance of

citations, this provision does not authorize recovery of

investigative and prosecution costs when the Department has

chosen to impose an administrative penalty pursuant to the

provisions of Chapter 120, Florida Statutes. Accordingly, even

if the issue were an appropriat e one to present in this forum, 1

the Department has not established a statutory basis for an

assessment of investigation and prosecution costs.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Depar tment of Business and

Professional Regulation enter a final order finding that Philip

Taylor violated Section 489.127(1)(f), Florida Statutes (1999)

and imposing an administrative fine against Mr. Taylor in the

amount of $5,000.00.

DONE AND ENTERED this 2 8th day of March, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

PATRICIA HART MALONO

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 28th day of March, 2002.

ENDNOTE

1 It can be argued that the Division of Administrative Hearings

has no authority to recommend assessment of investigative and

prosecution costs even when authorized by statute or to

determine as a factual matter the amount of cos ts incurred. It

would seem that the jurisdiction of the Division of

Administrative Hearings in a case such as the instant case is to

resolve the disputed issues of material fact arising from the

allegations in an Administrative Complaint and to recommend an

appropriate penalty if the proof establishes a rule or statutory

violation.

COPIES FURNISHED:

Diane Snell Perera, Esquire

Department of Business and

Professional Regulation

401 Northwest Second Avenue

Suite N - 607

Miami, Florida 33128

Herbert B. Dell, Esquire

4801 South Univ ersity Drive

Suite 103

Fort Lauderdale, Florida 33328

Hardy L. Roberts,III, General Counsel

Department of Professional Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

NOTICE OF RIGHT TO S UBMIT 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.