06-003917 Department Of Business And Professional Regulation vs. Bruce P. Boston Status: Closed Recommended Order on Tuesday, February 20, 2007.

Summary: Petitioner proved by clear and convincing evidence that Respondent was not certified or registered to engage in the practice of electrical contracting. Recommend the imposition of a $5,000 administrative penalty.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION , )

)

Petitioner , )

)

vs. ) Case No. 06 - 3917

)

BRUCE P. BOSTON , )

)

Respondent . )

)

RECOMMENDE D ORDER

Administrative Law Judge Don W. Davis of the Division of

Administrative Hearings (DOAH) conducted a final hearing in the

above - styled matter on January 9, 2007, in Gainesville, Florida.

The following appearances were entered:

APPEARANCES

Fo r Petitioner: Drew F. Winters, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

For Respondent: No Appearance

STATEMENT OF THE ISSUES

The primary issue for determination in this case is whether

Respondent, Bruce P. Boston, engaged in the unlicensed practice

of electrical contracting in the State of Florida withou t being

certified or registered in violation of Chapter 489, Part II of

the Florida Statutes; and secondarily, if Respondent committed

that violation, what penalty should be imposed?

PRELIMINARY STATEMENT

On June 7, 2006, Petitioner issued an Adminis trative

Complaint alleging that Respondent engaged in the practice of

contracting without being duly registered or certified to engage

in that activity.

Respondent disputed the allegations in the Administrative

Complaint and requested a formal administrati ve hearing. The

case was referred to the Division of Administrative Hearings on

or about October 10, 2006. A formal hearing was set for

January 9, 2007, in Gainesville, Florida.

At hearing, Petitioner presented testimony of two witnesses

and three exhi bits, which were admitted into evidence.

Respondent did not appear and no appearance was made on his

behalf.

A one - volume transcript of the final hearing was filed on

January 29, 2007. Petitioner filed a Proposed Recommended

Order, which has been cons idered in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. The Department of Business and Professional Regulation

(Petitioner) is a state agency charged with the duty and

responsibility of regulating the practice of electr ical

contracting in the State of Florida.

2. Respondent's address is 18204 S outhwest 200 Street,

Archer, Florida 32618.

3. At no time material hereto was Respondent certified or

registered in the State of Florida to engage in the practice of

el ectrical contracting or to perform electrical contracting

work .

4. Mrs. Dawn Wingert is the owner of the residence located

at what is currently designated as 16675 Southwest 143 rd Avenue,

Archer, Florida. Mrs. Wingert, as lawful owner, had the

autho rity to enter contracts regarding the residence. The

Wingert residence was previously known as 110 Park Avenue,

Archer, Florida, prior to the assignment of the current address.

5. Wingert entered into a contract with Respondent to

perform constr uction of a carport and perform electrical

contracting work at Wingert’s residence subsequent to assignment

of the address of 110 Park Avenue, Archer, Florida.

6. Respondent received compensation for the contracted

work directly from Wingert via pe rsonal check, which Respondent

then cashed.

7. Terry Vargas, a licensed electrical contractor having

been issued license number ER 13012448, was subsequently

contacted by Respondent to perform the electrical contracting

work at the Wingert residenc e.

8. Vargas installed an electrical outlet on the back

porch, put a flood light on the back porch, moved the switch

board to a more convenient location, and put a security light in

the front of Wingert’s residence. All work required electrical

fixt ures to be permanently affixed and become a permanent part

of the structure of the Wingert residence.

9. Although Vargas completed the electrical contracting

work at the Wingert residence, Wingert paid the Respondent for

the services because the work was contracted for through

Respondent.

10. At no time pertinent to this matter did Terry Vargas

contract with Wingert to complete the electrical services

enumerated above.

11. After he completed the work at Wingert’s residence ,

Vargas invoic ed Respondent for the electrical contracting work.

Respondent, however, refused to pay Vargas for the electrical

contracting work performed, despite having received compensation

for the work from Wingert.

CONCLUSIONS OF LAW

12. The Division of Admi nistrative Hearings has

jurisdiction over the parties and subject matter in this case.

13. Pursuant to Section 489.531(1)(a), Florida Statutes, a

person may not practice contracting unless the person is

certified or registered. Additionally, such action may subject

one to criminal sanctions. § 489.531(3)(a), Fla. Stat.

14. Section 489.505(9), Florida Statutes, states that:

“ [c]ontracting ” means, except where exempted

in this part, engaging in business as a

contractor or performing electrica l or alarm

work for compensation and includes, but is

not limited to, performance of any of the

acts found in subsections (2) and (12),

which define the services which a contractor

is allowed to perform. The attempted sale

of contracting 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

requires corresponding licensure.

15. Section 489.531(3), Florida Statutes, further states

that the remedies set forth in this subsection are not exclusive

and may be imposed in addition to the remedies set forth in

Section 489.533(2).

16. Section 489.533(2), Florida Statu tes, provides that

when any applicant, contractor, or business organization is

found guilty of any of the violations set forth above, a final

order may be entered imposing one or more of the following

penaltie s :

( a) Denial of an application for

certificat ion or registration.

(b) Revocation or suspension of a

certificate or registration.

( c) Imposition of an administrative fine

not to exceed $10,000 for each count or

separate offense.

(d) Issuance of a reprimand.

(e) Placement of the contracto r on

probation for a period of time and subject

to such conditions as the board may specify,

including requiring the contractor to attend

continuing education courses or to work

under the supervision of another contractor.

(f) Restriction of the auth orized scope of

practice by the contractor.

(g) Require financial restitution to a

consumer.

17. Petitioner has the burden of proving by clear and

convincing evidence the allegations against Respondent.

Department of Banking and Finance, Divis ion of Securities and

Investor Protection v. Osborne Stern and Company , 670 So. 2d 932

(Fla. 1996). Evans Packing , supra , 550 So. 2d 112, 116, fn. 5,

provides the following, pertinent to the clear and convincing

evidence standard:

That standard has been d escribed as follows:

[C]lear and convincing evidence 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 lackin g in confusion

as to the facts in issue. The evidence must

be of such weight that it produces in the

mind of the trier of fact the firm belief of

[ sic ] conviction, without hesitancy, as to

the truth of the allegations sought to be

established. Slomowitz v . Walker , 429 So. 2d

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

18. In addition, the disciplinary action may only be based

upon the offenses specifically alleged in the Administrative

Complaint. See Sternberg v. Department of Professional

Regulation, Board of Medical Examiners , 465 So.2d 1324, 1325

(Fla. 1st DCA 1985); Kinney v. Department of State , 501 So. 2d

129, 133 (Fla. 5th DCA 1987); Hunter v. Department of

Professional Regulation , 458 So. 2d 842, 844 (Fla. 2d DCA 1984).

19. Petitioner alleged with specificity allegations

constituting the uncertified or unregistered practice of

electrical contracting by Respondent Bruce P. Boston.

20. Petitioner proved by clear and convincing evidence

that Respondent violated Section 489.531(1)(a), by perform ing

electrical contracting at Mrs. Wingert’s residence without

certification or registration to practice electrical contracting

in the State of Florida.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law set forth herein, it i s

RECOMMENDED that Petitioner enter a final order, in

accordance with Section 489.533(2)(c), Florida Statutes,

requiring that Respondent pay an administrative fine in the

amount of $5,000.00 to the Department of Business and

Professional Regulation.

DONE A ND ENTERED this 20th day of February , 2007 , in

Tallahassee, Leon County, Florida.

S

DON W. DAVIS

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 20th day of February , 2007 .

COPIES FURNISHED :

Bruce P. Boston

Post Office Box 331

Willisto n, Florida 32696

Drew F. Winters, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Nancy S. Terrel, Hearing Officer

Office of the General Counsel

Department of Business and

Professi onal Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Josefina Tamayo, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIO NS

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 .