06-003691 Department Of Business And Professional Regulation vs. Jim Adams, Jr. And Bay Breeze Maintenance, Llc Status: Closed Recommended Order on Monday, March 12, 2007.

Summary: Petitioner should impose a fine of $10,000 and recover investigative costs for unlicensed practice of contracting and electrical contracting that caused financial harm of $39,350.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION , )

)

Petitioner, )

)

vs. )

)

JIM ADAMS, JR. , AND BAY BREEZE ) Case No. 0 6 - 3690

MAINTENANCE, LLC, )

)

Respondents. )

_______________________________ )

DEPARTMENT OF BUSINESS AND )

P ROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. ) Case No. 0 6 - 3691

)

JIM ADAMS, JR. , AND BAY BREEZE )

MAINTENANCE, LLC, )

)

Respondent s . )

)

RECOMMENDED O RDER

Administrative Law Judge (ALJ) Daniel Man ry conducted the

formal hearing of this case for the Division of Administrative

Hearings (DOAH) on January 24, 2007, in Sarasota, Florida .

APPEARANCES

For Petitioner: Brian A. Higgins, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

For Respondent s : Jim Adams, Jr. , pro se

Bay Breeze Maintenance, LLC

Post Office Box 14184

Bradenton , Florida 342 80

STATEMENT OF THE ISSUES

The issues in this case are whether each of the two

respondents practiced contracting and electrical con tracting

without a license in violation of Subsection s 489 . 113 ( 2 ) ,

489. 127(1)(f), 489.531(1), Florida Statutes (2004 ), 1 and, if so,

what penalty, if any, should be imposed pursuant to S ubs ection s

455.228 (1) and 48 9.13(3).

PRELIMINARY STATEMENT

On May 23 a nd 24, 2006, Petitioner filed two Amended

Administrative Complaints naming both of the respondents in each

proceeding. The two complaints involve an identical incident.

The earlier of the two complaints alleges the incident violated

relevant statutes proh ibiting the unlicensed practice of

contracting. The later complaint alleges the incident violated

relevant statutes prohibiting the unlicensed practice of

electrical contracting.

The respondents timely requested a formal hearing.

Petitioner referred t he two matters to DOAH to conduct the

formal hearings. The undersigned schedule d the two cases for

hearing on the same day at 9:30 a.m. and 1:30 p.m.

At the hearing, the ALJ granted the unopposed ore tenus

motion to consolidate the two cases entered on t he record by

Respondent, Jim Adams , Jr. Petitioner presen ted the testimony

of two witness es and submitted eight exhibi ts for admission into

evidence. Mr. Adams testified, presented the testimony of two

other witness es , and submitted three exhibits for ad mission into

evidence.

The identity of the witnesses and exhibits and the rulings

regarding each are reported in the one - volume Transcr ipt of the

hearing filed on February 14, 2007 . Petitioner timely filed its

P roposed R ecommended O rder ( PRO ) on Februa ry 22, 2007 . Neither

of the two respondents filed a PRO.

FINDINGS OF FACT

1. Petitioner is the state agency defined in Subsecti on

489.105(2) that is responsible for regulating the practice of

contracting and electrical contracting pursuant to Subsection

455.228(1) . Neither of the respondents has ever been licensed

as either a contra ctor or an electrical contractor.

2. On April 14 , 2005 , Mr. Adams and Bay Breeze

Maintenance , LLC (Bay Breeze) , practiced contracting and

electric al contracting within the meaning of Subsections

489.105(3) and (6) and 489.505 (9) and (12) . Mr. Adams, as agent

for Bay Breeze, submitted to Mr. Christopher King, as agent for

Dome Flea Market in Venice, Florida, a written proposal to

remodel part of the Dome Flea Market for a co st not to exceed

$60,000.

3. The proposed remodeling involved an upgrade of a snack

bar in to a grill and bar to be known as the Sawmill Grill. I n

relevant part, the proposed remodeling required performance of

plumbing, carpentry , and electrical contract ing, including the

installation of electrical wiring and electrical fixtures .

4. Between April 14 and May 20, 2005, Mr. King paid

approximately $39,350 to the respondents for the proposed

remodeling job. On April 14, 2005, Mr. King paid $8,000 and

$1,50 0 by respective check numbers 7725 and 7726. On April 19,

2005, Mr. King paid $8,000 and $1,700 by respective check

numbers 7730 and 7731. On May 3 and 20, 2005, Mr. King paid

$5,150 and $14,000 by respective check numbers 7742 and 7770.

The respondents never actually performed any remodeling work.

5. Mr. Adams testified that Mr. King forged the written

proposal and that neither Mr. Adams nor Bay Breeze submit ted a

proposal for the remodeling project. That testimony was neither

credible nor persuasive .

6. The financial harm to the public was substantial.

Mr. Adams and Bay Breeze have not paid any restitution.

Petitioner incurred investigative costs, excluding attorney fees

and c osts, in the amount of $844.07. The investigative costs

are reasonab le within the meaning of Subsection 489.13(3).

CONCLUSIONS OF LAW

7 . DOAH has jurisdiction over the subject matter and

parties. §§ 120.569 and 120.57(1), Fla . Stat. (2006 ). DOAH

provided t he parties with adequ ate notice of the formal hearing.

8 . Petit ioner has the burden of proof in this proceeding.

Petitioner must show by clear and convincing evidence that each

licensee committed the acts alleged in each Amended

Administrative Complai nt and the reasonableness of the proposed

penalty. Ferris v. Turl ington , 510 So. 2d 292 (Fla. 1987).

9. Petitioner satisfied its burden of proof concerning the

alleged unlicensed contracting . Petitioner showed by clear and

convincing evidence that Mr. Adams and Bay Breeze practiced

contracting and electrical contra cting without a license in

violation of Subsections 489.127(1)(f) and 489 .531(1) .

10 . S ubs ection 4 55.228 ( 1) authorizes Petitioner to impose

an administrative " penalty " not greater than $ 5,000 for each

incident that violates the statutory prohibition agai nst

practicing without a license . The relevant statute also

authorizes Petitioner to recover attorney fees and costs and the

cost of recovery. However, Petitioner does not seek the

recovery of attorney fees and costs in this proceeding.

11. Subsection 489.13(3) authorizes Petitioner to "fine"

the respondents up to $10,000. The relevant statute also

authorizes Petitioner to recover reasonable investigative costs.

12. Petitioner satisfied its burden of proving entitlement

to the recovery of investigati ve costs in the amount of $844.07.

The investigative costs are reasonable, and Petitioner satisfied

the statutory prerequisites for recovery.

13 . Petitioner has not satisfied its burden of proving

that separate fines of $5,000 and $10,000 are reasonable in this

case. Petitioner proposes in its PRO to penalize Mr. Adams and

Bay Breeze twice for the same incident. Petitioner seeks to

impose an administrative penalty of $5,000, pursuant to

Subsection 455.228(1), and an administrative fine of $10,000

pursu an t to Subsection 489.13(3).

14. Petitioner cites no judicial precedent to support the

proposed penalty. Petitioner implicitly relies on a literal

interpret ation of Subsection 489.13(3).

15. Subsection 489.13(3) provides in relevant part:

Notwithstand ing s. 455.228, the department

may impose an administrative fine of up to

$10,000 on any unlicensed person guilty of

unlicensed contracting. . . .

16. The ALJ construes the "notwithstanding" language in

Subsection 489.13(3) to mean that the $10,000 "fi ne" authorized

in Subsection 489.13(3) is not nullified by the $5,000 limit on

the "penalty" authorized in Subsection 455.228. The

"notwithstanding" provision in Subsection 489.13(3) cannot be

reasonably constr ued as legislative authority for the impositi on

of two fines for the same incident. Any doubt concerning the

authority of an agency to act should be resolved by refusing to

exercise t hat authority.

17. Petitioner satisfied its burden of proving the

reasonableness of imposing a $10,000 "fine" pur suant to

Subsection 489.13(3). The financial harm to the public is

great, and the respondents have not mitigate d that harm.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that Petitioner enter a final order finding

Mr. Adams and Bay Breeze guilty of committing the violations

alleged in each Amended Administrative Complaint and imposing an

aggregate administrative fine against Mr. Adams and Bay Breeze,

collectively, in the amount of $10,000.

DONE AND ENTERED this 12 th day of March, 2007 , in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 323 99 - 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 12 th day o f March, 2007 .

ENDNOTE

1/ All statutory references are to Florida Statutes (2004)

un less otherwise stated.

COPIES FURNISHED :

Brian A. Higgins, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Jim Adams, Jr.

Bay Breeze Maintenance, LLC

Post Office Box 14184

Bradento n , Florida 34280

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 - 0792

Michael Martinez , Acting General Counsel

Depa rtment 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.