07-000074 Department Of Business And Professional Regulation vs. Willis Wittmer, Jr., And Jr Wittmer`s Remodeling, Inc. Status: Closed Recommended Order on Tuesday, June 12, 2007.

Summary: Petitioner failed to prove that Respondent was compensated for his work on a putative construction contract and therefore that he was a "contractor" engaging the business of contracting. Therefore the violation of the statutes was not established.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION , )

)

Petitioner, )

)

vs. ) Case No. 0 7 - 0 074

)

WILLIS WITTMER, JR., AND JR )

WITTMER'S REMODELING, INC. , )

)

Respondent. )

)

RECOMMENDED ORDER

In accordance with notice t his cause came on for formal

proceeding and hearing before P. Michael Ruff, a duly - designated

Administrative Law Judge of the Division of Administrative

Hearings. The formal hearing was conducted in Daytona Beach ,

Florida , on March 26 , 2007 , and the appearances were as follows:

APPEARANCES

For Petitioner: E. Renee Alsobrook , Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 1007

For Respondent: Garvin B. Bowden, Esquire

Gardner, Wadsworth, Duggar,

Bist & Wiener, P.A.

1300 Thomaswood Drive

Tallahassee, Florida 32308

STATEMENT OF THE ISSUE S

The issues to be resolved in this proceeding concern

whether the Respondent committed the charged violations of

Section 489.127(1)(f), Florida Statutes (2006) , and Section

489.531(1)(a), Florida Statutes (2006) , and if so, what penalty,

if any, is warranted.

PRELIMINARY S TATEMENT

Th is cause arose upon filing of an Administrative Complaint

on November 14, 2006, by the above - named Petitioner , the

Department of Business and Professional Regulation (Department).

In the complaint it is alleged in Count I, that the Respondent

violated Section 489.127(1)(f), Florida Statutes, by engaging in

the business of contracting or acting in the capacity of a

contractor without being duly registered or certified. With

regard to Count II it is alleged that subsection 489.531(1)(a),

Florida Statutes, was violated by the Respondent engaging in the

practice of electrical contracting without being duly certified

or registered to do so.

The Respondent availed himself of the right to a formal

proceeding , in accordance with Sections 120.569 and 1 20.57(1),

Florida Statute s (2006), to dispute the allegations in the

Administrative Complaint. The case was referred to the Division

of Administrative Hearings and ultimately to the undersigned

Administrative Law Judge . It was set for hearing for March 16,

2007, in Daytona Beach, Florida.

The cause came on for formal hearing as noticed. At the

hearing the Department presented the testimony of Sidney Miller

and Kenneth Hat in . The Department's Exhibits 1, 2, 4, and 5,

were admitted into evidence. The D epartment's Exhibit 3 was not

admitted into evidence ; i t was excluded as hearsay. It was

determined that the document depicting the time expended and

costs of the investigator and attorney working on this case for

the Department amounted to matters and in formation not prepared

in the regular cause of business, but rather for the purpose of

and in anticipation of trial of this same case . Further, the

required predicate of admissibility was not established in the

sense that the document was prepared because of a duty to

report. T hus , the exhibit was determined to be inadmissible

within the hearsay exception for public records and reports

maintained in the records of the government agency or as a

business record , for purposes of the business records exceptio n

to the H earsay R ule . § 90.803( 6) and ( 8 ) , Fla . Stat . (2006).

In its Proposed Recommended Order the Petitioner takes the

position that the exhibit is admissible as a data compilation

setting forth the " activities of the agency " under the Public

Records and Reports Exception, referenced above. That argument

is accepted, based commentary in upon in Ehrhart, Florida

Evidence , 2002 Edition p.779 - 780 ; Gatlin v. State , 618 So. 2d

765 (Fla. 2nd DCA 1993) (state attorney's affidavit concerning

costs of prosecut ion admissible under Section 910.803(8), as

written state ment of activities of the office ) . Because of the

result reached herein, however, the admission of Petitioner's

Exhibit 3 is of no material effect.

The Respondent presented the testimony of Julie C rowley ,

and cross - examined the Petitioner's witnesses . The Respondent

submitted no exhibits into evidence.

Upon concluding the proceeding a transcript thereof was

obtained by the parties and they exercised the right to submit

proposed recommended order s. The Proposed Recommended Order

were timely filed and have been considered in the rendition of

this Recommended Order.

FINDINGS OF FACT

1. The Petitioner is an Agency of the State of Florida

charged with regulating the practice of contracting and the

licensure of those engaged in the practice of contracting of all

types , in accordance with Section 20.165, Florida Statutes, as

well as Chapters 455 and 489, Florida Statutes. The Respondent

engages in re - modeling and other construction - related work both

as his own business and employ ment by a certified general

contractor.

2. This case arose upon a C omplaint filed with the

Petitioner Agency by Mr. Kenneth Hatin . The Complaint asserted

his belief that the Respondent had engaged in a contract to

construct an addition on his home , and after being paid

substantial sums of money , had wrongfully left the job and never

finished it.

3. The residence in question is co - owned by Mr. Hatin and

h is fiancée, Ms. Beverly White. Ms. White's first cousin is

Ms. Julie Crawley. Ms. Crawley is the Respondent's fiancée.

Mr. Hatin and the Respondent were introduced by Ms. Crawley and

Ms. White. Mr. Hatin and the Respondent thus met socially and

as they got to know each other discussed Mr. Hatin's desire to

have an addit ion placed on his home . The addition consisted of

a pool enclosure to be constructed on his property located at 33

Botany Lane, Palm Coast, Florida. Mr. Hatin expressed the

desire to have the Respondent assist him in constructing the

pool enclosure. The Respondent agreed to do so.

4 . The Respondent is employed by his brother , who is a

Florida - Licensed General Contractor, but neither the Respondent

nor his business , J R . Wittmer's Remodeling, Inc., are licensed

or certified to engage in contracting or e lectrical contracting.

5. In accordance with his agreement with Mr. Hatin, the

Respondent provided labor and assistance with the renovation

project, including digging ditches, picking - up supplies and

being present at the work site. In addition to the Res pondent,

other friends and family members of the prot agonists assisted

with the project, including the Respondent's son, Ms. Crawley's

son, Mr. Hatin's employer, Ms. White's brother - in - law, and

Mr. Hatin himself. This was , in essence , a joint family/frien ds

cooperative construction project.

6 . Over the course of approximately five months during the

construction effort, Mr. Hatin wrote checks to the Respondent in

the total amount of $30,800.00. All contractors or workmen on

the job were paid and no lien s were placed on Mr. Hatin's

property. The checks written were for the materials purchased

and labor performed by tradesmen or sub - contractors engaged by

the Respondent and Mr. Hatin for various aspects of the job such

as roofing , tile or block laying, et c. The Respondent received

no fee or profit in addition to the amounts paid to the material

suppliers, contractors, and laborers on the job.

7 . It is no t entirely clear from the record who prepared

the contract in evidence as Petitioner's E xhibit four , or the

document that the parties treated as a contract. It is no t

entirely clear who actually signed it , but the document was

drafted relating to the work to be done on Mr. Hatin's home (the

contract). Mr. Hatin maintained that the Respondent prepared

and signed the contract. Ms. Crawley testified that the

contract was actually prepared by herself and Ms. White (for

" tax purposes " ) . It is inferred that this means that the

contract was prepared to provide some written evidence of the

amount expended on the addition to the home , probably in order

to raise the cost basis in the home to reduce capital gains tax

liability potential at such time as the home might be sold. The

term " tax purposes " might mean other issues or consequences not

of record in this case , although it has not been proven that the

contract was prepared for a fraudulent purpose.

8 . Ms. Crawley testified that the Respondent did not

actually sign the document himself but that she signed it for

him. What was undisputed was that there wer e hand - written

changes made to the contract so as to include exhaust fans,

ceiling fans, sun tunnels, a bathroom door and outside

electrical lighting. Although there was a change to the

contract for this additional scope o f work, there was no

increase in the amounts to be paid by Mr. Hatin for such work.

9 . After the project was commenced and the addition was

partially built, Mr. Hatin and Ms. White were involved in a

serious motorcycle accident. Work was stopped on the project

for a period of approxima tely seven weeks , with Mr. Hatin's

acquiescence, while Ms. White convalesced . T he Respondent ,

during this time , dedicated all of his time to his regular job

and other work commitments. It was apparently his

understanding , expressed in Ms. Crawley's testi mony, that , due

to injuries he received in the accident and more particularly

the more serious injuries received by his fiancée , that

Mr. Hatin was not focused on the project at that time, but let

it lapse until the medical emergency was past .

10 . After approximately seven weeks of inactivity

Mr. Hatin contacted the Respondent requesting that he be gin work

on the project again. A meeting was set up between Mr. Hatin

and the Respondent. The Respondent however, was unable to

attend the meeting with Mr. Ha tin that day, tried to re - schedule

and a dispute arose between the two. Additionally, family

disputes over money and interpersonal relationships were on -

going at this time leading to a lack of communication and a

further dispute between Mr. Hatin, Ms. Whi te, the Respondent,

and Ms. Crawley. A t hreat of physical harm w as directed at the

Respondent by Mr. Hatin (he threatened to put out the

Respondent's " one good eye " if he came on the subject property

again ). Because of this , the Respondent elected not to return

to the project. Inferentially, at that point the process of

filing the subject complaint soon ensued.

CONCLUSIONS OF LAW

1 1 . The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceedi ng. § § 120.569 and 120.57(1), Fla. Stat. (200 6 ).

1 2 . The Petitioner is an Agency of the State of Florida

charged with regulating the practice of contracting and

enforcing the provisions of Chapter 489, Florida Statutes , and

Chapter 455, Florida Statute s. The Respondent herein is subject

to penal sanctions and the imposition of an administrative

penalty. The Department therefore has the burden of proving its

position in this proceeding by clear and convincing evidence as

to the specific allegations ple d in the Administrative

Complaint. Department of Banking and Finance Division of

Secur i ties and Investor Pro tection v. Osborne Stern and Co. , 670

So. 2d 932 (Fla. 1996).

1 3 . The Petitioner has alleged in Count I of the Complaint

that Section 489.127(1)( f), Florida Statutes, has been violated

by contracting for or engaging in the practice of contracting

without being duly registered or certified by the State of

Florida. "Contacting" is defined at Section 489.105(6), Florida

Statutes, as follows:

"Contrac ting" means, except as exempted in

this part, engaging in the 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 contracts . The attempted sale of

contracting se rvices 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

require the corresp onding 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 entity has any le gal

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 construction of such residences .

( E mphasis added)

As referred to in this statutory definition of "Contracting", a

"Contractor" is defined by subsection (3) of 489.105, Florida

Statutes, which provides as follows:

"Contractor" means the person who is

qualified for , and shall only be responsible

for, the project contract ed f or and means,

except as exempted in this part, 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

improve any building or structu re, including

related improvements to real estate, for

other 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 over 50 feet in height, other than

buildings or residences over three stories

tall; and building or residences over three

stories tall. Contractors are subdivided

into two divisions, Division I, consis ting

of those contractors defined in paragraphs

(a) - (c), and Division II, consisting of

those contractors defined in paragraphs (d) -

(q): . . . . (emphasis added)

1 4 . The record evidence does not show clearly that the

Respondent entered into an actual co ntract or contracted for

contracting services, or attempted the sale of contracting

services, or negotiated or bid for a contract for such services.

The parties did have at least an inform al agreement regarding

work to be performed and price. The record, in fact, is

equivocal concerning whether the Respondent prepared or actually

signed the contract entered into , contained in Petitioner's

Exhibit 4.

1 5 . Even assuming arguendo that the Respondent entered

into the purported written contract , the Departm ent must prove

by clear and convincing evidence that he agreed to do such work

for compensation. The proof fails to meet that burden.

Although evidence was presented that Mr. Hatin paid over

$30,000.00 to the Respondent , the only specific evidence or

tes timony as to accounting and allocation of these amounts and

their purposes was offered by the Respondent's witness, who

testified that all funds received by the Respondent went to pay

material suppliers and contractors on the job. This evidence

was furthe r bolstered by Mr. Hatin's own admission that all

contractors on the job were paid in full by the Respondent and

no liens were ever placed on Mr. Hatin's property. If the

Respondent received no compensation for the job he cannot be

found to have acted as a contractor , unlicensed or otherwise,

for purposes of the above - quoted statutory authority

controlling in this case. He may, at most, have been a

facilitator of the project for a prospective family member.

P enal statute s such as this are to be strictly construed in

favor of the accused party. Ocampo v. Department of Health , 806

So. 2d 688 (Fla. 1st DCA 2002). The Petitioner's failure to

show that the Respondent received any compensation above the

costs of materials and labor for the job fails to prove a

violation of Section 489.127(1)(f), Florida Statutes (2006) .

Thus, Count I of the Complaint should be dismissed.

1 6 . Concerning Court II of the Administrative Complaint,

the Petitioner alleged that the Respondent violated Section

489.531(1)(a), Flo rida Statutes, by engaging in the unlicensed

practice of electrical contracting. In the context of

electrical and alarm system contracting, Section 489.505(9) ,

Florida Statutes, defines "Contracting" as follows:

"Contracting" means, except where exempted

in this part, engaging in the business as a

contractor or performing electrical or alarm

work for compensation and includes, but is

not limited to, performance of any of the

acts found in subsection (2) and (12), which

define the services which a contracto r 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 the corresponding licensure .

( E mphasis added)

1 7 . The record contains insufficient evidence to show that

the Respondent entered into a contract for electrical or alarm

work, and attempted to s ell suc h services, or negotiated or bid

for a contract for such services. The record does not clearly

establish whether the Respondent prepare d or sign ed the

contract . T he provisions related to electrical work, moreover,

were hand written and may have been adde d after the document was

prepared. Even assuming arguendo that the Respondent agreed to

perform electrical service work, for the reasons found above, it

has not been proven that the Respondent undertook such work for

compensation , and thus met the definit ion of "contracting" or

"engaging in the business as a contractor."

1 8 . The Petitioner also failed to prove by clear and

convincing evidence that the Respondent actually participated in

any electrical contracting work. The only evidence or testimony

a s to that sort of work was that Mr. Hatin and his boss

performed the initial electrical work and thereafter hired a

licensed electrical contractor. No evidence was presented that

the Respondent participated in electrical work on the project in

any form. Since the evidence does not show that the Respondent

performed or contracted to perform electrical contracting, this

allegation of the complaint must fail also. Ocampo v.

Department of Health , supra . Thus, since no violation of

Section 489.531(1)(a), Fl orida Statutes, has been proven , Count

II of the Administrative Complaint should also be dismissed.

1 9 . In summary, the allegations of the two counts of the

Administrative Complaint have not been established by clear and

convincing evidence for the above - determined reasons. In

reality, it has not been proven that the Respondent bid on or

negotiated or attempted to engage in an arm ' s length cont r act

with an innocent consumer while being unlicensed. Rather, the

reality is that the Respondent , whose fiancé e was the first

cousin of the fiancée of the complaining witness, the homeowner,

Mr. Ha t in, engaged in what amounts to a project intended to be

constructed by family members and friends . Th is was in an

effort by Mr. Hatin and his fiancée, Ms. White, to sa ve money on

the cost of the job. The Respondent , in reality , appears to

have been more or less a coordinator or supervisor for the job

which was worked on both by contractors or trade persons , as

well as members of the family involved and friends.

R ECOM MENDATION

H aving considered the foregoing Findings of Fact,

Conclusions of Law, the evidence of record, the candor and

demeanor of the witnesses, and the pleadings and arguments of

the parties, it is, therefore,

RECOMMENDED that the Administrative Complai nt filed herein

be dismissed.

DONE AND ENTERED this 12th day of June , 200 7 , in

Tallahassee, Leon County, Florida.

S

___________________________________

P. MICHAEL RUFF

Administrative Law Judge

Division of Administrative Hearings

The DeSo to 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 Clerk of the

Division of Administrative Hearings

this 12th day of June , 200 7 .

C OPIES FURNISHED :

Ned Luczynski, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

E. Renee Alsobrook, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 1007

G arvin B. Bowden, Esquire

Gardner, Wadsworth, Duggar,

Bist & Wiener, P.A.

1300 Thomaswood Drive

Tallahassee, Florida 32308

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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 d ays 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.