06-002764 Department Of Business And Professional Regulation vs. Lamar Campbell, A/K/A Marty Campbell, D/B/A Johnston Handyman Services
 Status: Closed
Recommended Order on Friday, March 9, 2007.


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Summary: Respondent violated Sections 489.127 and 489.531, Florida Statutes, even though only marginally involved. Recommend minimal penalties since the true "wrong-doer" is nowhere to be found.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DEPARTMENT OF BUSINESS AND )

13PROFESSIONAL REGULATION, )

16)

17Petitioner, )

19)

20vs. )

22) Case Nos. 06 - 2764

28LAMAR CAMPBELL, a/k/a ) 06 - 3171

35MARTY CAMPBELL, d/b/a )

39JOHNSTON HANDYMAN SERVICES, )

43)

44Respondent. )

46)

47RECOMMENDED ORDER

49Pursuant to notice, a formal hearing was held on

58December 11, 2006, via video teleconferencing with sites in

67Tallahassee and Pensacola, Florida, before the Division of

75Admin istrative Hearings by its designated Administrative Law

83Judge, Barbara J. Staros.

87APPEARANCES

88For Petitioner: Brian A. Higgins, Esquire

94Department of Business and

98Professional Regulation

1001940 North Monroe Street

104Tallahassee, Florida 32399 - 2202

109For Respondent: Mark A. Bednar, Esquire

11511 East Zaragoza Street

119Post Office Drawer 13146

123Pensacola, Florida 32591

126STATEMENT OF THE ISSUE

130At issue is whether Respondent committed the offenses set

139forth in the Administrative Complaints and, if so, what penalty

149should be imposed.

152PRELIMINARY STATEMENT

154Petitioner, Department of Business and Professional

160Regulation, filed two Administrative Complaints on May 15, 2006,

169and July 25, 2006, which c harged Respondent, Lamar Campbell,

179a/k/a Marty Campbell, d/b/a Johnston Handyman Services, with

187violating Sections 489.127(1)(f), and 489.531(1), Florida

193Statutes, by engaging in the business or acting in the capacity

204of a contractor without being duly reg istered or certified and

215by engaging in the unlicensed practice of electrical

223contracting.

224Respondent disputed the allegations of the Administrative

231Complaints and requested an administrative hearing. The cases

239were referred to the Division of Admin istrative Hearings on or

250about July 31 and August 23, 2006. An Order of Consolidation

261was issued on October 16, 2006. Motions for Continuance were

271granted and the case was ultimately heard on December 11, 2006.

282At hearing, Petitioner presented the test imony of Tracy

291Cauley, Kenneth Cauley, and Malcom Harrison. Petitioner's

298Exhibits numbered 1 through 11 were admitted into evidence.

307Respondent presented the testimony of Booth Iburg, Denise

315Williams, Debbie Waters, and testified on his own behalf.

324Res pondent's exhibits numbered 1 and 2 were admitted into

334evidence.

335A Transcript, consisting of one volume, was filed on

344January 18, 2007. The parties timely filed Proposed Recommended

353Orders which have been considered in the preparation of this

363Recom mended Order. All citations are to Florida Statutes

372(2006), unless otherwise indicated.

376FINDINGS OF FACT

3791. Petitioner, the Department of Business and Professional

387Regulation (Department), is the state agency charged with the

396duty and responsibility of regulating the practice of

404contracting and electrical contracting pursuant to Chapters 20,

412455, and 489, Florida Statutes.

4172. At all times material to the allegations of the

427Administrative Complaints, Lamar "Marty" Campbell was not

434licensed nor had h e ever been licensed to engage in contracting

446as a State Registered or State Certified Contractor in the State

457of Florida and was not licensed, registered, or certified to

467practice electrical contracting.

4703. Mr. Campbell readily acknowledges that he has not had

480training or education in construction or contracting and has

489never held any licenses related to any type of construction or

500contracting.

5014. At all times material to the allegations of the

511Administrative Complaints, Johnston Handyman Services did not

518hold a Certificate of Authority as a Contractor Qualified

527Business in the State of Florida and was not licensed,

537registered, or certified to practice electrical contracting.

5445. Respondent, Lamar Campbell, resides in Gulf Breeze,

552Florida. After Hurr icane Ivan, he and his roommate took in Jeff

564Johnston, who then resided in Mr. Campbell's home at all times

575material to this case. Mr. Johnston performed some handywork in

585Respondent's home. Mr. Johnston did not have a car, a bank

596account, or an ID.

6006. Mr. Campbell drove Mr. Johnston wherever he needed to

610go. At some point in time, Mr. Campbell drove Mr. Johnston to

622obtain a handyman's license in Santa Rosa County. Mr. Campbell

632did not apply for the license with Mr. Johnston and

642Mr. Campbell's name doe s not appear on this license. The

653license is in the name of Johnston's Handyman Services.

6627. Mr. Campbell is a neighbor of Kenneth and Tracy Cauley.

673In the summer of 2005, which was during the period of time when

686Mr. Johnston resided in Mr. Campbell's home, the Cauleys desired

696to have repairs done on their home to their hall bathroom,

707master bathroom, kitchen and laundry room.

7138. With the help of Mr. Campbell and others, Mr. Johnston

724prepared various lists of repairs that the Cauleys wanted

733performed on their home. In August 2005, Mr. Johnson and

743Mr. Campbell went to the Cauley's home and the proposed repairs

754were discussed with the Cauleys.

7599. There are documents in evidence dated August and

768October, 2005, which the Cauleys perceive to be contracts for

778the repairs to be done in their home. However, these documents

789are not contracts but are estimates, itemizing both materials

798and labor. The documents have the word "Estimate" in large bold

809type at the top and "Johnston Handyman Services" also at the top

821of the pages. The list of itemized materials includes

830electrical items, e.g., light fixtures and wiring.

83710. Also in evidence are documents dated August and

846October, 2005, with the word "Invoice" in large bold letters and

"857Johnston Handyman Services " at the top of the pages.

86611. Both Mr. and Mrs. Cauley acknowledge that Mr. Johnston

876performed the vast majority of the work on their home. However,

887at Mr. Johnston's request, Mr. Campbell did assist Mr. Johnston

897in working on the Cauley residence.

90312. Between August 5, 2005, and October 11, 2005,

912Mrs. Cauley wrote several checks totaling $24,861.53. Each

921check was written out to Marty Campbell or Lamar Campbell. 1/

93213. Mr. Campbell acknowledges endorsing these checks but

940asserts that he cashed them o n behalf of Mr. Johnston, who did

953not have a bank account or identification, and turned the cash

964proceeds over to Mr. Johnston. Further, Mr. Campbell insists

973that he did not keep any of these proceeds. The undersigned

984finds Mr. Campbell's testimony in th is regard to be credible.

99514. Work on the project ceased before it was finished and

1006Mr. Johnston left the area. Apparently, he cannot be located.

101615. The total investigative costs, excluding costs

1023associated with any attorney's time, was $419.55 regardi ng the

1033allegations relating to Case No. 06 - 2764, and $151.25 regarding

1044the allegations relating to case No. 06 - 3171, for a total of

1057$570.80.

1058CONCLUSIONS OF LAW

106116. The Division of Administrative Hearings has

1068jurisdiction over the parties and subject matter in this case.

1078§§ 120.569 and 120.57(1), Fla. Stat.

108417. Petitioner has the burden of proving by clear and

1094convincing evidence the specific allegations of the

1101Administrative Complaints. See Ferris v. Turlington , 510 So. 2d

1110292 (Fla. 1987); Depar tment of Banking and Finance v. Osborne

1121Stern & Co. , 670 So. 2d 932 (Fla. 1996).

113018. Section 489.127(1)(f), Florida Statutes, reads in

1137pertinent part as follows:

1141(1) No person shall:

1145* * *

1148(f) Engage in the business or act in the

1157capacity of a contractor or advertise

1163himself or herself or a business

1169organization as available to engage in the

1176business or act in the capacity of a

1184contractor without being duly registered or

1190certified or having a certificate of

1196authority; . . .

120019. Section 489.105(3), Florida Statutes, defines a

1207contractor as:

1209. . . the person who, for compensation,

1217undertakes to, submits a bid to, or does

1225himself or herself or by others construct,

1232repair, alter, remodel, add to, demolish,

1238subtract from, or im prove any building or

1246structure, including related improvements to

1251real estate, for others or for resale to

1259others . . .

126320. Section 489.531(1), Florida Statutes, reads in

1270pertinent part as follows:

1274(1) A person may not:

1279* * *

1282(b) Use the name or title "electrical

1289contractor" or "alarm system contractor" or

1295words to that effect, or advertise himself

1302or herself or a business organization as

1309available to practice electrical or alarm

1315system contracting, when the person is not

1322then the holder of a valid certification or

1330registration issued pursuant to this part;

1336. . .

133921. Subsection 489.505 (12), Florida Statutes, reads in

1347pertinent part:

1349(12) 'Electrical contractor' . . . means

1356any person, firm, or corporation that

1362engages in the business of electrical

1368contracting under an express or implied

1374contract; or that undertakes, offers to

1380undertake, purports to have the capacity to

1387undert ake, or submits a bid to engage in the

1397business of electrical contracting; or that

1403does itself or by or through others engage

1411in the business of electrical contracting.

141722. Subsections 489.505(9) and 489.105(6), Florida

1423Statutes, state that the attem pted sale of construction and

1433electrical contracting services, respectively, and the

1439negotiation or bid for a contract on these services also

1449constitutes contracting.

145123. Section 455.2273, Florida Statutes, reads as follows:

1459Disciplinary guidelines. --

1462( 1) Each board, or the department when

1470there is no board, shall adopt, by rule, and

1479periodically review the disciplinary

1483guidelines applicable to each ground for

1489disciplinary action which may be imposed by

1496the board, or the department when there is

1504no boar d, pursuant to this chapter, the

1512respective practice acts, and any rule of

1519the board or department.

1523(2) The disciplinary guidelines shall

1528specify a meaningful range of designated

1534penalties based upon the severity of

1540specific offenses, it being the legisl ative

1547intent that minor violations be

1552distinguished from those which endanger the

1558public health, safety, or welfare; that

1564such guidelines provide reasonable and

1569meaningful notice to the public of likely

1576penalties which may be imposed for

1582proscribed conduc t; and the such penalties

1589be consistently applied by the board.

1595(3) A specific finding of mitigating or

1602aggravating circumstances shall allow the

1607board to impose a penalty other than that

1615provided for in such guidelines. If

1621applicable, the board, or the department

1627when there is no board, shall adopt by rule

1636disciplinary guidelines to designate

1640possible mitigating and aggravating

1644circumstances and the variation and range of

1651penalties permitted for such circumstances.

1656(4) The department must review such

1662disciplinary guidelines for compliance with

1667legislative intent as set forth herein to

1674determine whether the guidelines establish a

1680meaningful range of penalties and may also

1687challenge such rules pursuant to s. 120.56.

1694(5) The administrative law judge, in

1700recommending penalties in any recommended

1705order, must follow the penalty guidelines

1711established by the board or department and

1718must state in writing the mitigating or

1725aggravating circumstances upon which the

1730recommended penalty is based.

173424. The Depart ment cites to no rule which sets forth

1745disciplinary guidelines with a meaningful range of penalties

1753applicable to the unlicensed practice of contracting or

1761electrical contracting as contemplated by Section 455.2273,

1768Florida Statutes.

177025. The Department cites only to Sections 455.228 and

1779489.13(3), Florida Statutes, regarding the Department's

1785authority to impose fines. These statutes provide in pertinent

1794part as follows:

1797455.228 Unlicensed practice of a

1802profession; cease and desist notice; civil

1808penal ty; enforcement; citations; allocation

1813of moneys collected. --

1817(1) . . . In addition to the foregoing

1826remedies, the department may impose an

1832administrative penalty not to exceed $5,000

1839per incident pursuant to the provisions of

1846chapter 120 . . .

1851489.13 Unlicensed contracting; notice of

1856noncompliance; fine; authority to issue or

1862receive a building permit; web page. --

1869* * *

1872(3) Notwithstanding s. 455.228, the

1877department may impose an administrative fine

1883of up to $10,000 on any unl icensed person

1893guilty of unlicensed contracting. In

1898addition, the department may assess

1903reasonable investigative and legal costs for

1909prosecution of the violation against the

1915unlicensed contractor. The department may

1920waive up to one - half of any fine impos ed if

1932the unlicensed contractor complies with

1937certification or registration within 1 year

1943after imposition of the fine under this

1950subsection.

195126. The Administrative Complaint in Case No. 06 - 2764

1961charges Respondent with violating Section 489.127(1)(f), Florida

1968Statutes, by engaging in the business or acting in the capacity

1979of a contractor without being duly registered or certified. The

1989checks were made out to Mr. Campbell, and he cashed them for

2001Mr. Johnston. Technically, he received compensation for

2008c ontracting services. And on one or more occasions he

2018accompanied Mr. Johnston when the estimates of work to be

2028performed were discussed with the Cauleys.

203427. The Administrative Complaint in Case No. 06 - 3171

2044charges Respondent with violating Section 489.5 31(1), Florida

2052Statutes, by engaging in the unlicensed practice of electrical

2061contracting. The estimates clearly referred to electrical items

2069as part of the job on the Cauleys home.

207828. The Department, pursuant to Sections 455.288 and

2086489.13(3), Florida Statutes, seeks imposition of fines in the

2095total amount of $15,000.00, and the costs of investigation. The

2106fines sought by the Department are a combination of the maximum

2117amount of $10,000 pursuant to Section 489.13(3) and the maximum

2128amount of $5,000 pur suant to Section 455.228, Florida Statutes.

213929. After a careful review of Sections 489.13(3) and

2148455.2273, Florida Statutes, the undersigned is not persuaded

2156that the Department may impose a $5,000 fine in addition to the

2169$10,000 fine referenced in Secti on 489.13(3), Florida Statutes.

217930. In addition to citing to no rule setting forth

2189disciplinary guidelines setting forth a meaningful range of

2197designated penalties as required by Section 455.2273, Florida

2205Statutes, the Department cites to no rule des ignating possible

2215mitigating or aggravating circumstances and the variation and

2223range of penalties permitted for each circumstance as

2231contemplated by Section 455.2273(3), Florida Statutes.

223731. Notwithstanding, there is no evidence that

2244Mr. Campbell ha s previously been cited for unlicensed practice

2254of contracting or electrical contracting. The Department

2261presented no aggravating circumstances. This appearing to be a

2270first offense, a lesser fine than the maximum allowed by law is

2282more appropriate here.

228532. Moreover, there are mitigating circumstances in

2292evidence. Specifically, the person most responsible,

2298Mr. Johnston, apparently is nowhere to be found, leaving

2307Mr. Campbell to be punished for actions which were primarily

2317those of Mr. Johnston.

2321RECOM MENDATION

2323Based upon the Findings of Fact and Conclusions of Law, it

2334is,

2335RECOMMENDED:

2336That the Department of Business and Professional

2343Regulation enter a final order imposing a fine of $1,000 for a

2356violation of Section 489.127(1), Florida Statutes; i mposing a

2365fine of $500 for a violation of Section 489.531(1), Florida

2375Statutes, and requiring Respondent, Lamar Campbell, to pay

2383$570.80 in costs of investigation and prosecution.

2390DONE AND ENTERED this 9th day of March, 2007, in

2400Tallahassee, Leon C ounty, Florida.

2405S

2406BARBARA J. STAROS

2409Administrative Law Judge

2412Division of Administrative Hearings

2416The DeSoto Building

24191230 Apalachee Parkway

2422Tallahassee, Florida 32399 - 3060

2427(850) 488 - 9675 SUNCOM 278 - 9675

2435Fax Filing (8 50) 921 - 6847

2442www.doah.state.fl.us

2443Filed with the Clerk of the

2449Division of Administrative Hearings

2453this 9th day of March, 2006.

2459ENDNOTE

24601/ The Department asserts that the amount totals $30,861.53.

2470However , two of the check copies in evidence are duplicates.

2480COPIES FURNISHED :

2483Brian A. Higgins, Esquire

2487Department of Business and

2491Professional Regulation

24931940 North Monroe Street

2497Tallahassee, Florida 32399 - 2202

2502Mark A. Bednar, Esquire

250611 East Zarago za Street

2511Post Office Drawer 13146

2515Pensacola, Florida 32591

2518Nancy S. Terrel, Hearing Officer

2523Office of the General Counsel

2528Department of Business and

2532Professional Regulation

2534Northwood Centre

25361940 North Monroe Street

2540Tallahassee, Florida 32399 - 07 92

2546Josefina Tamayo, General Counsel

2550Department of Business and

2554Professional Regulation

2556Northwood Centre

25581940 North Monroe Street

2562Tallahassee, Florida 32399 - 0792

2567NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

2573All parties have the right to submit written except ions within

258415 days from the date of this Recommended Order. Any exceptions

2595to this Recommended Order should be filed with the agency that

2606will issue the Final Order in this case.

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Date
Proceedings
PDF:
Date: 11/07/2019
Proceedings: Agency Final Order filed.
PDF:
Date: 06/13/2007
Proceedings: Agency Final Order
PDF:
Date: 03/09/2007
Proceedings: Recommended Order
PDF:
Date: 03/09/2007
Proceedings: Recommended Order (hearing held December 11, 2006). CASE CLOSED.
PDF:
Date: 03/09/2007
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 01/29/2007
Proceedings: Petitioner`s Proposed Recommended Order filed.
PDF:
Date: 01/29/2007
Proceedings: Notice of Filing Proposed Order; (Proposed) Order filed.
PDF:
Date: 01/18/2007
Proceedings: Notice of Filing Transcript.
Date: 01/18/2007
Proceedings: Video Teleconference of Division of Administrtive Hearings Transcript (1 volume) and exhibits (exhibits not available for viewing) filed.
Date: 12/11/2006
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 12/08/2006
Proceedings: (Proposed) Exhibits filed.
PDF:
Date: 11/20/2006
Proceedings: Notice of Filing Returns of Service (6).
PDF:
Date: 11/13/2006
Proceedings: Notice of Taking Deposition filed.
PDF:
Date: 10/16/2006
Proceedings: Order Granting Continuance and Re-scheduling Hearing by Video Teleconference (hearing set for December 11, 2006; 9:00 a.m., Central Time; Pensacola and Tallahassee, FL).
PDF:
Date: 10/16/2006
Proceedings: Order fo Consolidation (DOAH Case Nos. 06-2764 and 06-3171).
PDF:
Date: 10/13/2006
Proceedings: Respondent`s Motion for Continuance filed.
PDF:
Date: 10/11/2006
Proceedings: Respondent`s Witness and Exhibit List (with Proposed Hearing Exhibits) filed exhibits not available for viewing.
PDF:
Date: 10/06/2006
Proceedings: Petitioner`s Witness List filed.
PDF:
Date: 09/12/2006
Proceedings: Order Re-scheduling Hearing by Video Teleconference (hearing set for October 18, 2006; 9:00 a.m., Central Time; Pensacola and Tallahassee, FL).
PDF:
Date: 09/12/2006
Proceedings: Notice of Transfer.
PDF:
Date: 09/05/2006
Proceedings: Notice of Hearing (hearing set for October 10, 2006; 10:00 a.m., Central Time; Pensacola, FL).
PDF:
Date: 08/31/2006
Proceedings: Notice of Discovery filed.
PDF:
Date: 08/28/2006
Proceedings: Notice of Appearance (filed by M. Bednar).
PDF:
Date: 08/08/2006
Proceedings: Unilateral Response to Initial Order filed.
PDF:
Date: 08/01/2006
Proceedings: Initial Order.
PDF:
Date: 08/01/2006
Proceedings: Election of Rights filed.
PDF:
Date: 08/01/2006
Proceedings: Administrative Complaint filed.
PDF:
Date: 08/01/2006
Proceedings: Agency referral filed.

Case Information

Judge:
BARBARA J. STAROS
Date Filed:
08/01/2006
Date Assignment:
09/12/2006
Last Docket Entry:
11/07/2019
Location:
Pensacola, Florida
District:
Northern
Agency:
Other
 

Counsels

Related Florida Statute(s) (11):