06-002307 Department Of Business And Professional Regulation vs. Kevin Davidson, D/B/A Wise And Davidson Construction Status: Closed Recommended Order on Wednesday, November 15, 2006.

Summary: Petitioner established that Respondent accepted a large sum to perform a construction and electrical contract for two clients, but was unregistered and uncertified and abandoned the contracts and jobs, keeping the money. Recommend a fine of $25,000.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION , )

)

Petitioner, )

)

vs. ) Case No s . 0 6 - 2307

) 06 - 2308

KEVIN DAVIDSON, d/b/a WISE AND )

DAVIDSON CONSTRUCTION, AND )

DAVIDSON CONTRACTING AND )

CONSTRUCTION, )

)

Respondent s . )

)

RECOMMENDED ORDER

Pursuant to notice t his cause came on for formal proceeding

and hearing before P. Michael Ruff, a duly - designated

Administrative Law Judge of the D ivision of Administrative

Hearings on August 31, 2006, in Tallahassee, Florida. The

appearances were as follows:

APPEARANCES

For Petitioner: Brian A. Higgins, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

For Respondent: No Appearance

STATEMENT OF THE ISSUE S

The issues to be resolved in this proceeding concern

whether the Respondent should be subjected to disciplinary

sanctions based upon a lleged violations of Sections 489.127(1)

and 489.531(1), Florida Statutes , by engaging in the business or

capacity of a general contractor , and as an electrical or alarm

system contractor , without being certified or registered.

PRELIMINARY STATEMENT

This cause arose upon the filing of two Administrative

Complaints , on July 29, 2005, and February 8, 2006. The

complaints alleged that the Respondent violated laws regulating

the practice of unlicensed construction contracting and

electrical contracting in the State of Florida. The complaints

charged the Respondent with having twice violated Section

489.127(1)(f), Florida Statutes, by engaging in the business or

acting in the capacity of a contactor , or advertising himself or

a business organization , without b eing registered or certified ,

and having twice violate d Section 489.531(1), Florida Statutes,

by practicing contracting or advertising himself or a business

organization as available t o engage in electrical or alarm

system contracting , without being certif ied or registered.

The Respondent elected to dispute the allegations and

requested a formal administrative hearing. Consequently, in due

course the cases were trans mitted to the Division of

Administrative Hearings and the undersigned Administrative Law

Judge to conduct a formal proceeding and hearing in accordance

with Section s 120.569 and 120.57, Florida Statutes. Both cases

were noticed for hearing and tried together , although not

formally consolidated. Both are disposed of by this Recommended

Order .

The cause came on for hearing as noticed. The Petitioner

offered the testimony of t wo witnesses, Floyd Hanson and Jan

Crowell. The Petitioner also introduced 16 Exhibits , all of

which were admitted into evidence. The Respondent made no

appearance at the hearing and consequently offered no exhibits

or evidence. The Respondent was provided notice at the last

known address of record and , upon convening the hearing at the

appointed time , the undersigned recessed it for approximately

one - half hour while w aiting for the Respondent to appear. No

person in attendance at the hearing had observed the Respondent

in the immediate environs of the hearing site and , upon waiting

approximately one - half hour, the hearing was conducted. The

Petitioner Agency , having the burden of proof , proceeded to

present its case - in - chief. Upon concluding its case - in - chief,

the Respondent still had not appeared , after a substantial

period of time had elapsed since the appointed time for the

commencement of the hearing. Consequent ly, since the Respondent

had not appeared the taking of evidence was concluded and the

hearing was adjourned . No communication from the Respondent has

been received or filed since the hearing.

A Transcript of the proceeding was obtained by the

Petition er and duly filed . T he Petitioner's Proposed

Recommended Order was timely filed and has been considered in

the rendition of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner is an a gency of the State of Florida

charged with regulating and enfor cing the statutes and rules

pertaining to the licensure and practice of contracting ,

including construction contracting and electrical contracting.

The Petitioner is also charged with regulating and enforcing

statutes concerning the unauthorized practice of such

contracting, including practicing without proper certification

or registration.

2. At all times material hereto the Respondent, Kevin

Davidson, d/b/a Wise and Davidson Construction and Davidson

Contra cting and Construction (Davidson or Kevin Da vidson) was

not licensed , certified or registered to engage in constr u ction

contracting or any electrical or alarm system contracting in the

State of Florida.

3. On or about December 21, 2004, the Respondent , doing

business as Davidson Contracting and Co nstruction, contracted

with Mr. Hanson, a witness for the Petitioner, to install and

erect a 50 - foot by 60 - foot by 17 and one - half foot airplane

hanger on a concrete foundation. He also contracted to install

a 200 amp electrical panel box on Mr. Hanson's property in

conjunction with construction of the building. The property was

located in Morriston, Florida. The contracted price for the

work described was $47,597.30.

4. Mr. Hanson paid the Respondent the total of $20,514.30

as part of the contract p rice. The Respondent never finished

the project , but only laid the concrete foundation. At the

insistence of the Respondent, Mr. Hanson rented a backhoe which

the Respondent agreed to operate in constructing a driveway.

The work was never finished , and Mr. Hanson had to obtain other

help in constructing the driveway . T he Respondent also damaged

the rented backhoe while he was operating it . These factors

caused Mr. Hanson an additional economic loss of $4,830.38.

5. On or about December 13, 2004, th e Respondent , doing

business as Wise and Davidson Construction, contracted with

Ms. Crowell, a Petitioner witness, to install and erect a 50 -

foot by 60 - foot by 17 and one - half foot steel building on a

concrete foundation, also in M o rriston, Florida. The Respondent

also contracted to install a 200 amp electrical panel box in

conjunction of construction of that building. The total amount

of the contract price was $47,047.30.

6. Ms. Crowell paid the Respondent at least $35,251.35 in

partial payment for the contract. After laying the foundation ,

however, the Respondent abandoned this project as well. The

Respondent 's abandonment of the project cost Ms. Crowell

$29,943. 00 in additional economic damage in order to obtain

completion of the project by anoth er contractor.

7. The Department incurred certain investigative costs in

prosecuting these two cases. It was thus proven by the

Petitioner that the Department expended $ 510.06 for the

prosecution of DOAH Case No. 06 - 2308 . The Petitioner also

establishe d that it spent the sum of $ 944.13 in costs for Case

No. 06 - 2307. This represents total investigative costs expended

by the Agency of $1,454.19, for which the Petitioner seeks

recovery. The Petitioner is not contending that any attorney's

fees are due.

C ONCLUSIONS OF LAW

8. The Division of Administrative Hearing s has

jurisdiction of the subject matter of and the parties to this

proceeding. § § 120.569 and 120.57(1), Fla. Stat. (200 6 ).

9. The Petitioner is a state agency charged with

regulating the practice of licensed and unlicensed construction

and electrical contracting in accordance with the relevant

provisions of Chapter 455 and 489, Florida Statutes.

10. Pursuant to Section 455.228, Florida Statutes, the

Department is empowered to discipl ine any person found guilty of

any of the grounds enumerated in Sections 489.127(1) and

489.531(1), Florida Statutes (2004) .

11. The Administrative Complaints allege that the

Respondent is guilty of a violation of Section 489.127(1)(f),

Florida Stat utes (2004) , which provides in pertinent part, as

follows:

No person shall engage in the business or

act in the capacity of a contractor or

advertise himself or herself or business

organization without being duly registered

or certified or having a certifi cate of

authority.

12. Section 489.105(3), Florida Statutes (2004) , defines a

con struction contractor as the following:

A 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, substract

from, or improve any building or structure,

including related improvements to real

estate, for others or for resale to others.

13. The Administrative Complaints also allege that the

Respondent is guilty of havi ng violated Section 489.531(1),

Florida Statutes (2004) , which provides, in pertinent part, as

follows:

(b) Use of the name or title 'electrical

contractor' or 'alarm system contractor' or

words to that affect, or advertise himself

or herself or a busines s organization as

available to practice electrical or alarm

system contracting, when the person is not

then the holder of a valid certification or

registration issued pursuant to this part.

14. Section 489.505(12), Florida Statutes (2004) , defines

a n 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 wir ing,

fixtures, appliances, ap paratus, 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 compl iance 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, p urports 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.

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

Florida Statutes (2004) , the attempted sale of construction and

electrical contracting services, respectively, and the

negotiation or bid for a contract on these services also

constitutes contracting.

16 . There is no question, since the evidence is unrefuted,

that the Petitioner has established by clear and convincing

evidence the Respondent's violation of Section 489.127(1)(f),

Florida Statutes, by engaging in the business or acting in the

capacity of a construction contractor or adv ertising himself or

a business organization , as available to engage in contracting

without being duly registered or certified. The Respondent

engaged in unlicensed constr u ction contracting when he

contracted to install and erect the building structures on the

Hanso n and Crowell properties for compensation. Structural

work , such as erecting a building, requires a constr u ction

license.

17 . The Petitioner has also established by clear and

convincing evidence that the Respondent violated 489.531(1),

F lorida Statutes (200 4 ), by practicing electrical contracting or

advertising himself or a business organization as being

available to engage in such contracting without a certification

or registration. Although he did no t possess an electrical

contracting license or certification, t he Respondent contracted

to perform electrical work at both the Hanson and Crowell

residences or job sites.

18 . In accordance with Section 455.228, Florida Statutes

(2004) , the Department may impose an administrative pena lty not

to exceed $5,000.00 per incident of construction or electrical

contracting without certification or registration, as well as

being entitled to recover the costs of the investigation.

19 . Notwithstanding the administrative penalty provided

for in Section 455.228, Florida Statutes (2004) , Section

489.13(3), Florida Statutes (2004) , authorizes the Department to

impose an administrative fine in an amount up to $10,000.00 for

any person guilty of unlicensed construct ion contracting , as

well as th e ability to a ss ess reasonable investigative and legal

costs for prosecution of the violation against the unlicensed

construction contractor.

R ECOMMENDATION

H aving considered the foregoing f indings of fact,

c onclusions of l aw, the evidence of record, the c andor and

demeanor of the witnesses, and the pleadings and arguments of

the parties, it is, therefore,

RECOMMENDED that the Department of Business and

Professional Regulation enter a final order determining that the

Respondent has violated Sections 489.127 (1)(f) and 489.531(1),

Florida Statutes (2004) , as alleged in the earlier - filed

A dministrat i ve C omplian t in Case No. 06 - 2308 , and impose an

administrative fine in the amount of $5,000.00 for the violation

of Section 489.127(1)(f), Florida Statutes (2004) , and an

administrative penalty of $5,000.00 with regard to the

electrical contracting violation, as provided for by Section

455.228, Florida Statutes (2004) .

It is further recommended that the final order determine

that the Respondent is guilty of violating Sections

489.127(1)(f) and 489.531(1), Florida Statutes (200 4 ), as

alleged in the later - filed A dministrative C ompl aint in Case

No. 06 - 2307 and that an administrative fine in the amount of

$ 10,000.00 for the violation of Section 489.127(1)(f), Florida

St atutes (2004), and that an administrative penalty of $5,000.00

be imposed for the electrical contraction violation, as provided

for by Section 455.228, Florida Statutes (2004) . It is further

recommended that costs be assessed against the Respondent for

in vestigation and prosecution of both cases , not including costs

associated with attorney's time and efforts , in the total amount

of $1,454.19 , payable to the Petitioner Agency.

DONE AND ENTERED this 15th day of November , 200 6 , 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

(850) 488 - 9675 SUNCO M 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with Clerk of the

Division of Administrative Hearings

this 15th day of November , 200 6 .

C OPIES FURNISHED :

Brian A. Higgins, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Kevin Davidson

Post Office Box 131

LoveJoy, Georgia 30250

Nancy S. Terrel

Hearing Officer

Office of the General Counsel

Department of Business and

Professional Regulatio n

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Josefina Tamayo, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All partie s 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.