06-001949 Department Of Business And Professional Regulation vs. Domenick Spallina, D/B/A New Look Contracting, Inc. Status: Closed Recommended Order on Wednesday, September 13, 2006.

Summary: Respondent acted in the capacity of a contractor, who was not licensed as such, when he contracted to make a repair on an office building.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION , )

)

Petitioner , )

)

vs. ) Case No. 06 - 1949

)

DOMENICK SPALLINA, d/b/a NEW )

LOOK CONTRACTING, INC. , )

)

Respondent . )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on August 11,

2006, in Lake City, Florida, before Suzanne F. Hood,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petit ioner: Brian A. Higgins, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

For Respondent: Dome nick Spallina, pro se

159 Southwest Pleasant Hill Glen

Fort White, Florida 32038

STATEMENT OF THE ISSUES

The issues are whether Respondent violated Section

489.127(1)(f), Florida Statutes (2005), and if so, w hat penalty

should be imposed.

PRELIMINARY STATEMENT

Petitioner Department of Business and Professional

Regulation (Petitioner) issued an Administrative Complaint on

February 28, 2006, against Domenick Spallina, d/b/a New Look

Contracting, Inc. (Respon dent). The complaint alleged that

Respondent had engaged in the business of contracting, acted in

the capacity of a contractor, or advertised himself or a

business organization as available to engage in contracting

without being duly registered or certifi ed or having a

certificate of authority.

On March 20, 2006, Respondent requested an administrative

hearing to contest the allegations in the complaint. Petitioner

referred Respondent's request to the Division of Administrative

Hearings on May 30, 2006.

On June 7, 2006, the undersigned issued a Notice of

Hearing. The notice scheduled the hearing for August 9, 2006.

On July 31, 2006, Respondent filed an unopposed request for

a continuance. On August 1, 2006, the undersigned issued an

Order Granting Continuance and Re - scheduling Hearing for

August 11, 2006.

During the hearing, Petitioner presented the testimony of

two witnesses. Petitioner offered seven exhibits, P1 - P7, which

were admitted into evidence.

Respondent testified on his own behalf and o ffered three

exhibits, R1a, R1b, and R2, for admission into the record as

evidence. The undersigned accepted R1a and R1B as evidence.

Respondent's Exhibit R2 is hereby excluded as hearsay.

A transcript of the proceeding was filed on August 30,

2006. Petitioner filed its Proposed Recommended Order on

September 8, 2006. As of the date that this Recommended Order

was issued, Respondent had not file d a proposed order.

FINDINGS OF FACT

1. At all times material hereto, Respondent was not

licensed to enga ge in construction contracting in the State of

Florida.

2. At all times material hereto, New Look Contracting,

Inc. did not possess a certificate of authority to practice as a

contractor qualified business.

3. Respondent was a part owner/operator of New Look

Contracting, Inc.

4. On or about July 9, 2005, Respondent contracted with

Lynnda Davis to, inter alia , raise the ceiling on the front

porch and install French doors on Ms. Davis's office in Lake

City, Florida, for $950.

5. Ms. Davis paid Res pondent $1,275 for the construction

project of which Respondent admits to receiving at least $475.

6. Respondent broke tiles at Ms. Davis's office and took

contractually unrelated materials from her property.

7. All of the items listed in the contrac t between

Respondent and Ms. Davis required a Lake City, Florida, building

permit.

8. The total investigative cost to Petitioner, excluding

costs associated with any attorney's time, was $311.21.

CONCLUSIONS OF LAW

9. The Division of Administrative H earings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to Sections 120.569 and 120.57(1), Florida

Statutes (2005).

10. Petitioner is the state agency charged with regulating

the practice of unlicensed construction contracting pursuant to

Chapters 455 and 489, Florida Statutes (200 5 ).

11. Petitioner has the burden of proving by clear and

convincing evidence that Respondent has violated Section

489.127(1), Florida Statutes (200 5 ). See Department of Banking

and Fi nance v. Osborne Stern and Co. , 670 So. 2d 932 (Fla.

1996).

12. Section 489.105(3), Florida Statutes (200 5) , states as

follows in pertinent part:

(3) "Contractor" means the person who

is qualified for, and shall only be

responsible for, the pro ject 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 bu ilding structure,

including related improvements to real

estate, for others or for resale to others .

. . .

* * *

(6) "Contracting" means, except as

exempted in this part, engaging in business

as a contractor and includes, but is not

limited to, pe rformance 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 re quire licensure or agent

qualification, the offering, negotiation for

a bid, or attempted sale of these services

requires the corresponding licensure. . . .

13. Section 489.113, Florida Statutes (200 5 ), states as

follows in relevant part:

(1) Any person who desires to engage

in contracting on a statewide basis shall,

as a prerequisite thereto, establish his or

her competency and qualifications to be

certified pursuant to this part. . . .

(2) No person who is not certified or

registered shal l engage in the business of

contracting in this state. . . .

14. Section 489.127(1)(f), Florida Statutes (200 5 ), states

as follows in pertinent part:

(1) No person shall:

* * *

(f) Engage in the business or act in

the capacity of a contr actor 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;

15. Under Florida Administrat ive Code Rule 61G4 - 12.011(2) ,

construction activities that include work affecting access or

egress to a structure or any work for which a building permit is

required are not casual, minor, or inconsequential.

16. Clear and convincing evidence indicates that

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

(200 5 ) , by acting in the capacity of a contractor without being

registered or certified. Respondent was not licensed as a

contractor when he contracted with Ms. Davis to perform repair

work for compensation that required a local building permit.

17. Section 489.13(3), Florida Statutes (200 5 ), authorizes

Respondent to impose an administrative fine in an amount up to

$10,000 for any person guilty of unlicensed construction

contracting as w ell as the ability to assess reasonable

investigative and legal costs, excluding costs associated with

an attorney's time, for prosecution of the violation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDE D:

That Petitioner enter a final order finding Respondent

guilty of violating Section 489.127(1)(f), Florida Statutes

(200 5 ), imposing an administrative fine in the amount of

$10,000, and assessing costs in the amount of $311.21.

DONE AND ENTERED this 1 3 t h day of September , 2006 , in

Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(8 50) 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 1 3 th day of September , 2006 .

COPIES FURNISHED :

Brian A. Higgins, Esquire

Department of Business and

Pro fessional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Domenick Spallina

159 Southwest Pleasant Hill Glen

Fort White, Florida 32038

Josefina Tamayo, General Counsel

Department of Business and

Professional Regulation

Northwo od Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

John Washington, Hearing Officer

Office of the General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0 792

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 .