06-003171 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.

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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. )

) Case Nos. 06 - 2764

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

MARTY CAMPBELL, d/b/a )

JOHNSTON HANDYMAN SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held on

December 11, 2006, via video teleconferencing with sites in

Tallahassee and Pensacola, Florida, before the Division of

Admin istrative Hearings by its designated Administrative Law

Judge, Barbara J. Staros.

APPEARANCES

For Petitioner: Brian A. Higgins, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

For Respondent: Mark A. Bednar, Esquire

11 East Zaragoza Street

Post Office Drawer 13146

Pensacola, Florida 32591

STATEMENT OF THE ISSUE

At issue is whether Respondent committed the offenses set

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

should be imposed.

PRELIMINARY STATEMENT

Petitioner, Department of Business and Professional

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

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

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

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

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

of a contractor without being duly reg istered or certified and

by engaging in the unlicensed practice of electrical

contracting.

Respondent disputed the allegations of the Administrative

Complaints and requested an administrative hearing. The cases

were referred to the Division of Admin istrative Hearings on or

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

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

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

At hearing, Petitioner presented the test imony of Tracy

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

Exhibits numbered 1 through 11 were admitted into evidence.

Respondent presented the testimony of Booth Iburg, Denise

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

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

evidence.

A Transcript, consisting of one volume, was filed on

January 18, 2007. The parties timely filed Proposed Recommended

Orders which have been considered in the preparation of this

Recom mended Order. All citations are to Florida Statutes

(2006), unless otherwise indicated.

FINDINGS OF FACT

1. Petitioner, the Department of Business and Professional

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

duty and responsibility of regulating the practice of

contracting and electrical contracting pursuant to Chapters 20,

455, and 489, Florida Statutes.

2. At all times material to the allegations of the

Administrative Complaints, Lamar "Marty" Campbell was not

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

as a State Registered or State Certified Contractor in the State

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

practice electrical contracting.

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

training or education in construction or contracting and has

never held any licenses related to any type of construction or

contracting.

4. At all times material to the allegations of the

Administrative Complaints, Johnston Handyman Services did not

hold a Certificate of Authority as a Contractor Qualified

Business in the State of Florida and was not licensed,

registered, or certified to practice electrical contracting.

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

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

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

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

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

account, or an ID.

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

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

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

did not apply for the license with Mr. Johnston and

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

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

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

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

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

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

master bathroom, kitchen and laundry room.

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

prepared various lists of repairs that the Cauleys wanted

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

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

were discussed with the Cauleys.

9. There are documents in evidence dated August and

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

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

are not contracts but are estimates, itemizing both materials

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

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

of the pages. The list of itemized materials includes

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

10. Also in evidence are documents dated August and

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

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

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

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

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

in working on the Cauley residence.

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

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

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

13. Mr. Campbell acknowledges endorsing these checks but

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

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

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

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

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

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

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

15. The total investigative costs, excluding costs

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

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

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

$570.80.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this case.

§§ 120.569 and 120.57(1), Fla. Stat.

17. Petitioner has the burden of proving by clear and

convincing evidence the specific allegations of the

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

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

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

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

pertinent part as follows:

(1) No person shall:

* * *

(f) Engage in the business or act in the

capacity of a contractor 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; . . .

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

contractor as:

. . . 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 im prove any building or

structure, including related improvements to

real estate, for others or for resale to

others . . .

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

pertinent part as follows:

(1) A person may not:

* * *

(b) Use the name or title "electrical

contractor" or "alarm system contractor" or

words to that effect, or advertise himself

or herself or a business 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;

. . .

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

pertinent part:

(12) 'Electrical contractor' . . . means

any person, firm, or corporation that

engages in the business of electrical

contracting under an express or implied

contract; or that undertakes, offers to

undertake, purports to have the capacity to

undert ake, 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.

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

Statutes, state that the attem pted sale of construction and

electrical contracting services, respectively, and the

negotiation or bid for a contract on these services also

constitutes contracting.

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

Disciplinary guidelines. --

( 1) Each board, or the department when

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

periodically review the disciplinary

guidelines applicable to each ground for

disciplinary action which may be imposed by

the board, or the department when there is

no boar d, pursuant to this chapter, the

respective practice acts, and any rule of

the board or department.

(2) The disciplinary guidelines shall

specify a meaningful range of designated

penalties based upon the severity of

specific offenses, it being the legisl ative

intent that minor violations be

distinguished from those which endanger the

public health, safety, or welfare; that

such guidelines provide reasonable and

meaningful notice to the public of likely

penalties which may be imposed for

proscribed conduc t; and the such penalties

be consistently applied by the board.

(3) A specific finding of mitigating or

aggravating circumstances shall allow the

board to impose a penalty other than that

provided for in such guidelines. If

applicable, the board, or the department

when there is no board, shall adopt by rule

disciplinary guidelines to designate

possible mitigating and aggravating

circumstances and the variation and range of

penalties permitted for such circumstances.

(4) The department must review such

disciplinary guidelines for compliance with

legislative intent as set forth herein to

determine whether the guidelines establish a

meaningful range of penalties and may also

challenge such rules pursuant to s. 120.56.

(5) The administrative law judge, in

recommending penalties in any recommended

order, must follow the penalty guidelines

established by the board or department and

must state in writing the mitigating or

aggravating circumstances upon which the

recommended penalty is based.

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

disciplinary guidelines with a meaningful range of penalties

applicable to the unlicensed practice of contracting or

electrical contracting as contemplated by Section 455.2273,

Florida Statutes.

25. The Department cites only to Sections 455.228 and

489.13(3), Florida Statutes, regarding the Department's

authority to impose fines. These statutes provide in pertinent

part as follows:

455.228 Unlicensed practice of a

profession; cease and desist notice; civil

penal ty; enforcement; citations; allocation

of moneys collected. --

(1) . . . 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 . . .

489.13 Unlicensed contracting; notice of

noncompliance; fine; authority to issue or

receive a building permit; web page. --

* * *

(3) Notwithstanding s. 455.228, the

department may impose an administrative fine

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

guilty of unlicensed contracting. In

addition, the department may assess

reasonable investigative and legal costs for

prosecution of the violation against the

unlicensed contractor. The department may

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

the unlicensed contractor complies with

certification or registration within 1 year

after imposition of the fine under this

subsection.

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

charges Respondent with violating 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. The

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

Mr. Johnston. Technically, he received compensation for

c ontracting services. And on one or more occasions he

accompanied Mr. Johnston when the estimates of work to be

performed were discussed with the Cauleys.

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

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

Statutes, by engaging in the unlicensed practice of electrical

contracting. The estimates clearly referred to electrical items

as part of the job on the Cauleys home.

28. The Department, pursuant to Sections 455.288 and

489.13(3), Florida Statutes, seeks imposition of fines in the

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

fines sought by the Department are a combination of the maximum

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

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

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

455.2273, Florida Statutes, the undersigned is not persuaded

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

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

30. In addition to citing to no rule setting forth

disciplinary guidelines setting forth a meaningful range of

designated penalties as required by Section 455.2273, Florida

Statutes, the Department cites to no rule des ignating possible

mitigating or aggravating circumstances and the variation and

range of penalties permitted for each circumstance as

contemplated by Section 455.2273(3), Florida Statutes.

31. Notwithstanding, there is no evidence that

Mr. Campbell ha s previously been cited for unlicensed practice

of contracting or electrical contracting. The Department

presented no aggravating circumstances. This appearing to be a

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

more appropriate here.

32. Moreover, there are mitigating circumstances in

evidence. Specifically, the person most responsible,

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

Mr. Campbell to be punished for actions which were primarily

those of Mr. Johnston.

RECOM MENDATION

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

is,

RECOMMENDED:

That the Department of Business and Professional

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

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

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

Statutes, and requiring Respondent, Lamar Campbell, to pay

$570.80 in costs of investigation and prosecution.

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

Tallahassee, Leon C ounty, Florida.

S

BARBARA J. STAROS

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 (8 50) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of March, 2006.

ENDNOTE

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

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

COPIES FURNISHED :

Brian A. Higgins, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Mark A. Bednar, Esquire

11 East Zarago za Street

Post Office Drawer 13146

Pensacola, Florida 32591

Nancy S. Terrel, Hearing Officer

Office of the General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 07 92

Josefina Tamayo, General Counsel

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 except ions 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.