06-002661 Department Of Business And Professional Regulation vs. Harry Lee Wilson, D/B/A Wilson Construction And Roofing Status: Closed Recommended Order on Thursday, November 9, 2006.

Summary: Respondent is guilty of unlicensed contracting in violation of Section 489.127(1)(f), Florida Statutes. Recommend a $5,000 fine and costs.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. ) Case No. 06-2661

)

HARRY LEE WILSON, d/b/a WILSON )

CONSTRUCTION AND ROOFING, )

)

Respondent. )

)

RECOMMENDED ORDER

On September 29, 2006, a video conference hearing was held

in Jacksonville and Tallahassee, Florida. The authority for

conducting the hearing is set forth in Sections 120.569 and

120.57(1), Florida Statutes. The case was considered by Lisa

Shearer Nelson, Administrative Law Judge.

APPEARANCES

For Petitioner: Brian A. Higgins

Assistant General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

For Respondent: Harry Lee Wilson, pro se

12450 Biscayne Boulevard

Apartment 415

Jacksonville, Florida 32218

STATEMENT OF THE ISSUE

Whether Respondent engaged in the unlicensed practice of

contracting in violation of Section 489.127, Florida Statutes,

and if so, what penalty should be imposed?

PRELIMINARY STATEMENT

On May 17, 2006, the Department of Business and Professional

Regulation (the Department or DBPR) filed an Administrative

Complaint charging Respondent with the unlicensed practice of

contracting in violation of Section 489.127(1)(f), Florida

Statutes. Respondent filed an Election of Rights disputing the

allegations in the Administrative Complaint and requested a

Section 120.57(1) hearing. On July 24, 2006, the case was

referred to the Division of Administrative Hearings (DOAH) for

assignment of an administrative law judge. On August 2, 2006,

the case was noticed for video hearing September 29, 2006. No

continuances were requested by either party.

At hearing, the Department presented the testimony of two

witnesses, Anthony Wright and Holly Cochran, and Petitioner's

Exhibits 1 through 6 were admitted into evidence. Respondent

testified on his own behalf, and Respondent's Exhibit 1 was

admitted into evidence. Respondent's Exhibit 2, represented as

pictures of the worksite, were not admitted.

A hearing transcript was prepared and filed with DOAH

October 17, 2006. The parties were granted until October 27,

2006, to file proposed recommended orders. Petitioner submitted

a letter for consideration, with numerous attachments not

presented at hearing. Respondent filed a proposed recommended

order. Both submissions were timely filed. Both submissions

have been considered in the preparation of the Recommended Order.

However, to the extent that the numerous attachments to

Respondent's letter can be considered a motion to introduce

additional exhibits into the record, the motion is denied and the

attached documents have not been considered. It was explained to

Respondent at the time of hearing that his opportunity to present

evidence was at the time of the hearing itself.

FINDINGS OF FACT

1. Petitioner is the state agency charged with the

licensing and regulation of contractors in the State of Florida

pursuant to Section 20.42 and Chapters 455 and 489, Florida

Statutes.

2. On June 7, 2005, Harry Lee Wilson signed a proposal on

behalf of Wilson Construction and Roofing to perform repairs on a

home owned by Tony Wright at 2126 Evergreen Avenue, Jacksonville,

Florida. The proposal consisted of a two-page list of repairs to

be performed, including installation of doors, plumbing, kitchen

cabinets and sheetrock; repair of several holes, walls, windows

and floors; painting and installation of a wall.

3. The proposed cost for the job was $7,595.00, with

$3,200.00 to be paid as a down payment, $2,200.00 to be paid

halfway through, and the balance to be paid when the job was

completed.

4. Mr. Wilson represented to Mr. Wright that he was a

licensed contractor and had been for 20 years. He had business

cards and t-shirts that advertised "Wilson Construction and

Roofing." His license, however, was an occupational license

issued by the City of Jacksonville. At no time material to these

proceedings was Mr. Wilson registered with or certified by the

State of Florida. Likewise, Wilson Construction and Roofing did

not possess a certificate of authority to practice as a

contractor qualified business. No evidence was presented to

establish that Mr. Wilson held any sort of competency license

issued by the local jurisdiction.

5. Mr. Wright accepted the proposal and, in all, paid

$5,000.00 to Mr. Wilson for his services.

6. On September 21, 2005, Mr. Wilson wrote to Mr. Wright

representing that he had completed the "first proposal," i.e.,

the first page of the work under the contract. In his letter, he

claimed that Mr. Wright had defaulted on the job because of work

done by another contractor and that additional funds would be

needed to complete the work.

7. Mr. Wright was not pleased with the quality of work

performed on the job and stopped paying Mr. Wilson. Some of the

work had to be redone by another contractor. For example, the

plumbing was not installed correctly; the countertop was not

level; a weight-bearing wall was braced incorrectly; and drywall

was applied over the light switches.

8. Mr. Wright was under the impression that the work by

Mr. Wilson was not inspected because the funds were not coming

from a bank. Inspection was only performed when the job was

finished by the second contractor.

9. Mr. Wilson admitted that he has been doing construction

work for 20 years and did not believe a state license was

necessary. He believed that his occupational license was all he

needed to perform construction work.

10. Mr. Wilson claimed that he did not perform any plumbing

work for Mr. Wright or the amount he did was minimal. However,

Mr. Wilson's proposal to Mr. Wright clearly includes plumbing

work among those items to be performed. Whether or not he

actually did plumbing work on the job, Mr. Wilson negotiated a

contract to perform such work.

11. There was no evidence presented that Mr. Wilson was

offering to perform or performing any contracting services under

the supervision of any licensed contractor.

12. The Department incurred investigative costs, excluding

any costs associated with an attorney's time, in the amount of

$401.83.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with Sections 120.569 and 120.57(1), Florida

Statutes.

14. Petitioner has the burden of proving the allegations

against Respondent by clear and convincing evidence. Department

of Banking and Finance v. Osborne Stern and Co. , 670 So. 2d 932

(Fla. 1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

15. Section 489.105, Florida Statutes, provides the

following definitions relevant to this proceeding:

(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 . . . .

(c) "residential contractor" means a

contractor whose services are limited to

construction, remodeling, repair, or

improvement of one-family, two-family,

or three-family residences not exceeding

two habitable stories above no more than

one uninhabitable story and accessory

use structures in connection therewith.

* * *

(e) "roofing contractor" means a

contractor whose services are unlimited

in the roofing trade and who has the

experience, knowledge, and skill to

install, maintain, repair, alter,

extend, or design, when not prohibited

by law, and use materials and items used

in the installation, maintenance,

extension and alteration of all kinds of

roofing, waterproofing, and coating,

except when coating is not represented

to protect, repair, waterproof, stop

leaks, or extend the life of the roof.

* * *

(m) "plumbing contractor" means a

contractor whose contracting business

consists of the execution of contracts

requiring the experience, financial

means, knowledge, and skill to install,

maintain, repair, alter, extend, or,

when not prohibited by law, design

plumbing. . . .

* * *

(q) "specialty contractor" means a

person whose scope of work and

responsibility is limited to a

particular phase of construction and

whose scope is limited to a subset of

the activities described in the

categories established in one of the

paragraphs of this subsection.

* * *

(6) "Contracting" means, except as exempted

in this part, 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 negotiation or

bid for 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 licensure. . . .

16. The work Respondent performed or offered to perform

meets the definition of contracting as defined in Section

489.105(6), Florida Statutes.

17. Section 489.103(9), Florida Statutes, exempts from the

requirements of Chapter 489, Part I,

(9) Any work or operation of a casual,

minor, or inconsequential nature in which

the aggregate contract price for labor,

materials, and all other items is less than

$1,000, but this exemption does not apply:

(a) If the construction, repair, remodeling,

or improvement is a part of a larger or major

operation, whether undertaken by the same or

a different contractor, or in which a

division of the operation is made in

contracts of amounts less than $1,000 for the

purpose of evading this part or otherwise.

(b) To a person who advertises that he or

she is a contractor or otherwise represents

that he or she is qualified to engage in

contracting.

18. Respondent is not entitled to any of the exemptions

listed in Section 489.103(9), because the work listed in the

proposal exceeded $1,000.00, and Respondent routinely advertises

and represents that he is qualified to engage in contracting.

19. There are other limited circumstances where an

individual may perform some contracting services without holding

a registration or certification pursuant to Chapter 489.

Section 489.117(4), Florida Statutes, provides, in pertinent

part:

(4)(a) A person holding a local license

whose job scope does not substantially

correspond to either the job scope of one of

the contractor categories defined in s.

489.105(3)(a)-(o), or the job scope of one of

the certified contractor categories

previously established by board rule as of

the effective date of this provision, shall

not be required to register with the board to

perform contracting activities within the

scope of such specialty license.

* * *

(e) Any person who is not required to obtain

registration or certification pursuant to s.

489.105(3)(d)-(o) may perform specialty

contracting services for the construction,

remodeling, repair, or improvement of single-

family residences . . . without obtaining a

local professional license if such person is

under the supervision of a certified or

registered general, building, or residential

contractor. As used in this paragraph,

supervision shall not be deemed to require

the existence of a direct contract between

the certified or registered general,

building, or residential contractor and the

person performing specialty contracting

services.

20. Some of what Respondent contracted to perform may fall

into the category of specialty contracting services, such as

painting, repair of holes and walls, and installation of doors.

As such, they could be performed under the supervision of a

licensed contractor or pursuant to a local professional license.

However, not all of the services Respondent contracted to perform

can be performed by an unlicensed person pursuant to Section

489.117, and there is no evidence that Respondent held a local

professional license or worked under the supervision of another,

suitably licensed, contractor. Rather, the evidence indicates

that Respondent held himself out as able to perform any type of

contracting services and believed he could do so under his

occupational license.

21. Petitioner has proven by clear and convincing evidence

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

by engaging in the business or acting in the capacity of a

contractor without being duly registered or certified.

Respondent engaged in the unlicensed construction of contracting

when he contracted to perform structural and plumbing work for

compensation at Mr. Wright's residence. Neither structural work

nor plumbing are types of construction that are exempted from the

requirements of registration or certification, as outlined in the

applicable provisions of Chapter 489, Florida Statutes. He also

engaged in unlicensed contracting when he performed specialty

services without holding a local professional license and without

working under the supervision of a licensed contractor.

22. Section 489.13(3), Florida Statutes, authorizes the

Department to impose an administrative fine of up to $10,000.00

for any person guilty of unlicensed construction and the

imposition of reasonable investigative and legal costs related to

prosecution.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED:

1. That a final order be entered which finds that

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

2. That an administrative fine of $5,000.00 be imposed; and

3. That costs of investigation and prosecution in the

amount of $401.83 be assessed.

DONE AND ENTERED this 9th day of November, 2006, in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.state

Filed with the Clerk of the

Division of Administrative Hearings

This 9th day of November, 2006.

COPIES FURNISHED :

Brian A. Higgins, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

Harry Wilson

Wilson Construction and Roofing

12450 Biscayne Boulevard

Apartment 415

Jacksonville, Florida 32218

Josefina Tamayo, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Nancy S. Terrel, Hearing Officer

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

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.