06-003246 Department Of Business And Professional Regulation vs. Debi Gold, D/B/A Rentaman Construction/Remodeling Status: Closed Recommended Order on Tuesday, February 6, 2007.

Summary: Petitioner owned repair/remodeling business in Seminole County; authorized T. Allen to operate in Polk County; drafted a contract with a homeowner, all without a state contractor`s license. Recommend an administrative fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION , )

)

Petitioner , )

)

vs. ) Case No. 06 - 3246

)

DEBI GOLD, d/b/a RENTAMAN )

CONSTRUCTION/REMODELING , )

)

Respondent . )

)

R ECOMMENDED ORDER

Pursuant to notice, a formal hearing was held before

Daniel M . Kilbride , Administrative Law Judge of t he Division of

Administrative Hearings , on October 25, 2006 , in Orlando ,

Florida .

APPEARANCES

For Petitioner: Brian A. Higgins, Esquire

Assistant General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

For Resp ondent: Debi Gold, pro se

2320 Pleasant Drive

Longwood, Florida 32779

STATEMENT OF THE ISSUE S

Whether Respondent engaged in the business of contracting

without being registered or certified , in violation of

S ubs ection 4 89.127(1)(f), Florida Statutes (200 4 ) , 1 as charged in

the Administrative Complaint; and, if so, what penalty should be

imposed.

PRELIMINARY STATEMENT

On August 9, 2005, Petitioner filed an Administrative

Complaint alleging Respondent had violated the laws regulating

the practice of unlicensed construction contracting in the State

of Florida. Respondent disputed the allegations and elected a

formal administrative hearing. On August 25, 2006, the case was

referred to the Division of Administrative Hearings, and the

case was set for hearing.

At the hearing, Petitioner offered the testimony of two

witnesses, Diandria Mason and William Darner. Petitioner

introduced seven e xhibits, which were accepted into evidence.

Respondent testified on her own behalf, and offered ten

e xhibits , seven e xhibits were accepted into evidence.

The T ranscript of the hearing was filed on December 5,

2006. Both parties timely filed P roposed R ecommended O rders ,

and the pa rt ies proposals have been carefully considered in the

preparati on of this Recommended Order.

FINDINGS OF FACT

Based on the evidence in this proceeding, the following

facts are found:

1. Petitioner is the state agency charged with the

responsibility and duty to prosecute administrative complaints,

pursuant to Section 20.165 and Chapters 120, 455, and 489,

Florida Statutes. Petitioner is authorized to prosecute

administrative complaints against unlicensed persons or business

organization s , w ho engage in the business or act in the capacity

of a contractor without being registered or certified.

2 . At all times material hereto, Respondent , personally,

was not licensed to engage in construction contracting in the

State of Florida.

3. At all times material hereto, Rentaman or Rentaman

Construction/Remodeling did not posses s a certificate of

authority to practice as a contractor qualified to do business

in Florida.

4 . At all times material hereto, Timothy Lee Allen was not

licensed to engage in construction contracting in the State of

Florida.

5 . Beginning sometime in 2003 until September 30, 2005,

Petitioner, doing business as Rentaman, operated as a sole

proprietor under an occupation license in Seminole County.

6. In October 2004, Timothy L. Allen entered into an

agreement with Respondent to purchase her trailer, tools , and

the right to use her business name in Polk County. Respondent

was to receive a five percent commission on any job in which she

assisted Allen, including bookkeeping, preparing invoices, and

drafting contracts.

7 . Allen set up a business in Polk Coun ty, using the name

Rentaman Construction and Remodeling in October 2004.

8 . In early November 2004, Allen negotiated with James and

Diandria Mason to do repair/remodeling work on their home in

Mulberry, Polk County, Florida. Respondent was contacted and

brought in to negotiate the contract with the Masons.

9 . On or about November 11 , 2004, Respondent, doing

business as Rentaman Construction/Remodeling, contracted with

James and Diandria Mason to, inter alia , frame the back door and

replace the subfloorin g in the Mason's Mulberry, Florida , mobile

home for $1,650.00.

1 0 . The entire second page of the contract was handwritten

by Respondent . T he first page included a handwritten

workmanship warranty , written and initialed by Respondent. The

contract includ ed the sentence: "I[the owners] have reviewed and

accept the terms and conditions of Sale as presented to me by

Debi Gold, an agent of Rentaman."

11 . Mason paid Respondent $1,100 cash , as a deposit for

the construction project.

1 2 . Allen w as placed in ch arge of the work, but failed to

complete the contract with the Masons.

1 3 . The evidence is clear and convincing that Respondent

engaged in the business or acted in the capacity of a contractor

in November 2004, in Polk County, without being registered or

certified .

1 4 . The total investigative costs to Petitioner, excluding

costs associated with any attorney's time, was $ 762.43.

CONCLUSIONS OF LAW

15 . The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

p roceeding, pursuant to Section 120.569 and Subsection

120.57 (1) , Florida Statutes.

1 6 . Petitioner is the state agency charged with regulating

the practice of unlicensed construction contracting , pursuant to

Chapters 455 and 489, Florida Statutes.

1 7 . Pur suant to Chapter 489, Florida Statutes, Respondent

is empowered to impose administrative penalties upon any person

who is found guilty of any of the grounds enumerated in

S ubs ection 489.127(1), Florida Statutes.

1 8 . Petitioner has the burden of proving , b y clear and

convincing evidence , the allegations against Respondent.

§ 120.57(1)(h), Fla . Stat . ; 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) .

19 . Evans Packing Co . v. Department of Agriculture and

Consumer Services , 550 So. 2d 112, 116, fn. 5 (Fla. 1st DCA

1989) , provides the following guidance regarding the clear and

convincing evidence standard:

The standard has been described as follows:

Clear and convincing ev idence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify

must be distinctly remembered; the evidence

must be precise and explicit and the

witnesses must be lack ing in confusion as to

the facts in issue. The evidenc e must be of

such weight that it produces i n the mind of

the trier of fact the firm belief of (sic)

conviction, without hesitancy, as to the

truth of the allegations sought be

established. Slomowitz v. Walker , 429 So.

2d 797, 800 (Fla. 4th DCA 1983 ).

2 0 . The Administrative Complaint alleges Respondent is

guilty of having violated S ubs ection 489.127(1)(f), Florida

Statutes, which provides, 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;

21 . S ection 489.105, Flor ida Statutes, as used in this

part, defines a construction contractor as the following:

(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 p erson

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, f or

others or for resale to others . . .

22 . The attempted sale of construction contracting

services and the negotiation or bid for a contract on these

services also constitutes contracting. § 489.105(6), Fla . Stat.

2 3 . Subsection 489.127(1)(i), Florida Statutes , states in

pertinent part:

. . . An occupational license certificate

issued under the authority of Chapter 2 0 5 is

not a license for purposes of this part.

24 . Petitioner has proven by clear and convincing evidence

that Respondent violated S ubs e ction 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 unlicensed construction contracting when

she contracted to perform repair/remode ling work for

compen sation at the Mason's residence, even though she did not

perform the work herself.

25 . Respondent is authorized to impose an administrative

fine in the amount of up to $10,000.00 , for any person guilty of

unlicensed construction contra cting. Respondent also has the

ability to assess reasonable investigative and legal costs for

prosecution of the violation against an unlicensed construction

contractor. § 489.13(3), Fl a. Stat .

RECOMMENDATION

Based on the foregoing F indings of F act and C onclusions of

L aw, it is

RECOMMENDED that a f inal o rder be rendered as follows:

1 . Finding Respondent guilty of having violated S ubs ection

489.127(1)(f), Florida Statutes, as alleged in the

Administrative Complaint, and imposing as a penalty an

administra tive fine in the amount of $5,000.00.

2 . Assessing costs of investigation and prosecution to

Respondent, excluding costs associated with an attorney's time,

in the amoun t of $762.43.

DONE AND ENTERED this 6th day of February , 2007 , in

Tallahassee, Leon Co unty, Florida.

S

DANIEL M. KILBRIDE

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 (850) 921 - 6847

ww w.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of February , 2007 .

ENDNOTE

1 \\ All references to Florida Statutes are to Florida Statutes

(200 4 ), unless otherwise indicated.

COPIES FURNISHED :

Brian A. Higgins, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Debi Gold

2320 Pleasant Drive

Longwood, Florida 32779

Nancy S. Terrel , Hearing Officer

Office of the General Counsel

Departme nt Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Josefina Tamayo, General Counsel

Department Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

NOTICE OF RI GHT 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 cas e.