06-003277 Department Of Business And Professional Regulation vs. Clifford Grandmont Status: Closed Recommended Order on Tuesday, November 28, 2006.

Summary: Respondent contracted with three elderly persons to repair their homes subsequent to Hurricane Wilma, despite having no license. Respondent accepted payment but did no work.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION , )

)

Petitioner , )

)

vs. ) Case Nos. 06 - 3277

) 06 - 3278

CLIFFORD GRANDMONT , ) 06 - 3279

)

Respondent . )

)

RECOMMENDED ORDER

This cause came on for formal hearing before Harry L.

Hooper, Administrative Law Judge with the Division of

Administrative Hearings, on November 2, 2006, in West Palm

Beach, Florida.

APPEARANCES

For Petiti oner: Brian A. Higgins, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

For Respondent: Clifford Grandmont, pro se

(No Appearance)

STATEMENT OF THE ISSUE

The issue i s whether Respondent undertook to act as a

contractor without a license as charged in the Administrative

Complaints, and if so, what disciplinary action should be taken .

PRELIMINARY STATEMENT

This matter had its genesis in the filing, on May 15, 2006,

of three Administrative Complaints, asserting that Respondent

Clifford Grandmont (Mr. Grandmont), had acted as a contractor

without having a license. Respondent demanded a hearing in each

of the cases. They were forwarded to the Division of

Administrative Hearings on August 30, 2006, and consolidated in

an Order of Consolidation filed September 11, 2006. T he cases

were set for hearing on November 2, 2006, and were heard on that

date.

At the hearing, Petitioner presented the testimony of three

witnesses and offered Exhibits numbered 1 through 10 in to

evidence and all were accepted .

A Transcript was filed on November 8, 2006 . After the

hearing, Petitioner filed its Proposed Findings of Fact and

Conclusions of Law on November 16, 2006.

References to statu tes are to Florida Statutes (2005)

unless otherwise noted.

FINDINGS OF FACT

1. Pursuant to Section 20.165, the Division of Professions

is a subordinate unit of the Department of Business and

Professional Regulation (the Department). The Department

pro vides administrative support, including prosecutorial support

to the Construction Industry Licensing Board (the Board) , which

is also located within the Department .

2. Mr. Grandmont is not currently licensed as a State

Registered or State Certified Con tractor in this state, nor has

he ever been licensed by the Board.

3. Mr. Grandmont's last known address is 355 China Berry

Circle, Davenport, Florida. He was provided notice of the

hearing at that address, and at 7733 Park Road, Charlotte, North

Carol ina 28210, which is the address he used when demanding a

hearing on disputed facts in two of the se cases. In DOAH Case

N o. 06 - 3279, he provided no address in his demand for a hearing.

4. All attempts by U. S. Mail to notify Mr. Grandmont of

the hearing, were returned. Mr. Grandmont is deemed to have

known of the time, date, and place of the hearing , and is deemed

to have waived his appearance at the hearing .

5 . On November 11, 2005, subsequent to Hurricane Wilma,

Robert L. Coe , of Lake Worth, Florida , was contacted by

Mr. Grandmont, who offered to repair his damaged mobile home.

He provided a written estimate of $10, 500. The estimate

contained a list of 11 items requiring repair , and stated that

he would accomplish the repair of them . He demanded a $4,200

down payment, which Mr. Coe provided in a draft drawn on

Fidelity Cash Reserves , and dated November 11, 2005.

6 . Mr. Coe never saw Mr. Grandmont again. The repairs set

forth in the written estimate were not accomplished. The draft ,

however, w as negotiated by Mr. Grandmont .

7. On November 12, 2005, subsequent to Hurricane Wilma,

Joseph Webster, of Lake Worth, Florida, was contacted by

Mr. Grandmont, who offered to repair his damaged residence.

Mr. Grandmont discussed charging $1 3 ,500 in r eturn for repairing

Mr. Webster's residence. After negotiations, Mr. Grandmont

agreed to do it for $11,500. No written estimate or contract

was prepared. Mr. Grandmont demanded $ 5 , 750 payment in advance .

Mr. Webster rounded off the down payment to $6,0 00 and present ed

Mr. Grandmont an official check of the Taunton Federal Credit

Union, of Taunton, Massachusetts , for that amount .

8. The check was negotiated by Mr. Grandmont , but the

promised repairs were not accomplished.

9 . On November 4, 2005, sub sequent to Hurricane Wilma,

Ella Arseneau , of Lake Worth, Florida, was contacted by

Mr. Grandmont, who offered to replace h er roof. He provided an

estimate of $5,500 in return for repairing Ms. Arseneau's

residence. He demanded that she pay $ 3,500 in ad vance , which

Ms. Arseneau provided by presenting Mr. Grandmont a check for

$3,500, drawn on an account in Wachovia Bank.

10. The check was negotiated by Mr. Grandmont , but the

roof was not repaired as promised.

11. Mr. Coe is 78 years of age, Mr. Webst er is 85, and

Ms. Arseneau is 77.

CONCLUSIONS OF LAW

1 2 . The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. § 120.57(1), Fla. Stat.

13. Petitioner has the burden of proving by c le ar and

convincing evidence the allegations against Respondent. Section

120.57(1)( j ) , Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987);

and Department of Banking and Finance v. Osborne Stern and Co. ,

670 So. 2d 932( Fla. 1996). .

1 4 . Section s 489.105(3) a nd (6) , provide as follows:

489.105. Definitions

As used in this part:

* * *

(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 perso n

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

o thers 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. For the

purposes of regulation under this part,

"demolish" applies only to demolition of

steel t anks over 50 feet in height; towers

over 50 feet in height; other structures

over 50 feet in height, other than buildings

or residences over three stories tall; and

buildings or residences over three stories

tall. Contractors are subdivided into two

divis ions, Division I, consisting of those

contractors defined in paragraphs (a) - (c),

and Division II, consisting of those

contractors defined in paragraphs (d) - (q):

(a) 'General contractor' means a contractor

whose services are unlimited as to the type

of wo rk which he or she may do, who may

contract for any activity requiring

licensure under this part, and who may

perform any work requiring licensure under

this part, except as otherwise expressly

provided in s. 489.113 .

(b) ' Building contractor ' means a

co ntractor whose services are limited to

construction of commercial buildings and

single - dwelling or multiple - dwelling

residential buildings, which commercial or

residential buildings do not exceed three

stories in height, and accessory use

structures in con nection therewith or a

contractor whose services are limited to

remodeling, repair, or improvement of any

size building if the services do not affect

the structural members of the building.

(c) ' Residential contractor ' means a

contractor whose services a re 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.

* * *

(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

c ontracting 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

requir es the corresponding licensure.

However, the term "contracting" shall not

extend to an individual, partnership,

corporation, trust, or other legal entity

that offers to sell or sells completed

residences on property on which the

individual or business ent ity has any legal

or equitable interest, if the services of a

qualified contractor certified or registered

pursuant to the requirements of this chapter

have been or will be retained for the

purpose of constructing such residences.

1 5 . Section 489.127 (1) (f) provides as follows:

§ 489.127. Prohibitions; penalties

(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

busine ss or act in the capacity of a

contractor without being duly registered or

certified or having a certificate of

authority;

* * *

1 6 . Section 489.113(2), provides as follows:

489.113. Qualifications for practice;

restrictions

* * *

(2) No person wh o is not certified or

registered shall engage in the business of

contracting in this state. However, for

purposes of complying with the provisions of

this chapter, a person who is not certified

or registered may perform construction work

under the supervi sion of a person who is

certified or registered, provided that the

work is within the scope of the supervisor's

license and provided that the person being

supervised is not engaged in construction

work which would require a license as a

contractor under an y of the categories

listed in s. 489.105(3)(d) - (o ) . This

subsection does not affect the application

of any local construction licensing

ordinances. To enforce this subsection:

* * *

1 7 . The evidence of record proves by clear and convincing

evidence t hat Mr. Grandmont engaged in contracting without a

license on three occasions in 2005, in Lake Worth, Florida, in

violation of Section 489.127(1)(f) , Florida Statutes .

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

Department to impose an admini strative fine in the amount of up

to $10,000 for any person found guilty of unlicensed

construction contracting. It further provides for reasonable

investigative and legal cost s in prosecuting violations.

However, no evidence of the amount of investigati ve and legal

expense was produced, so no recommendation in that regard is

made.

RECOMMENDATION

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

is

RECOMMENDED that the Department of Business and

Professional Regulation impose a fine upon Cli fford Grandmont in

the amount of $30,000.

DONE AND ENTERED this 28th day of November, 2006, in

Tallahassee, Leon County, Florida.

S

HARRY L. HOOPER

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

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28th of November , 2006 .

COPIES FURNISHED :

Brian A. Higgins, Esquire

D epartment of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Clifford Grandmont

7733 Park Road

Charlotte, North Carolina 28210

Nancy S. Terrel, Hearing Officer

Office of the General Coun sel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Simone Marstiller, Secretary

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe St reet

Tallahassee, Florida 32399 - 0792

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 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.