07-002187 Department Of Business And Professional Regulation vs. Roland F. Patterson Status: Closed Recommended Order on Tuesday, August 28, 2007.

Summary: Respondent violated Section 489.127(1)(f), Florida Statutes, by engaging in the practice of construction contracting. Recommend a fine of $5,000 and attorney fees and costs.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) )

PROFESSIONAL REGULATION, )

)

Petitioner, )

) Case No. 07-2187

vs. )

)

ROLAND F. PATTERSON, )

)

Respondent. )

RECOMMENDED ORDER

Administrative Law Judge Don W. Davis of the Division of

Administrative Hearings (DOAH) held a formal hearing in this cause

in Jacksonville, Florida, on July 26, 2007. The following

appearances were entered:

APPEARANCES

For Petitioner: Joshua Moye, Esquire

Assistant General Counsel

Craig Mangum, Qualified Representative

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399

For Respondent: No Appearance

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent, Roland F.

Patterson, engaged in the unlicensed practice of contracting in

the State of Florida without being duly certified or registered

in violation of Chapter 489, Florida Statutes; and secondarily,

if Respondent committed that violation, what penalty should be

imposed?

PRELIMINARY STATEMENT

On September 20, 2006, Petitioner issued an administrative

complaint, alleging Respondent’s violation of section

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 or having a certificate of authority.

Respondent disputed the allegations contained in the

administrative complaint and elected to have a formal

administrative hearing. Consequently, the case was transferred

to the Division of Administrative Hearings to conduct a hearing

pursuant to Section 120.57, Florida Statutes.

During the hearing, Petitioner offered the testimony of one

witness and six exhibits, all of which were entered into

evidence.

Respondent was not present for the hearing and no

appearance was made on his behalf.

Official recognition was taken of Section 489.108, Florida

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

489.105(3), Florida Statutes, Section 489.105(3)(a), Florida

Statutes, Section 489.105(3)(b), Florida Statutes, and Section

489.105(3)(c), Florida Statutes.

No transcript was provided.

Petitioner filed a Proposed Recommended Order which has

been reviewed and utilized in the preparation of this

Recommended Order.

All references to Florida Statutes are to the 2007 edition

unless otherwise noted.

FINDINGS OF FACT

1. At all times material to these proceedings, Respondent

was not duly registered or certified to engage in the practice

of construction contracting in the State of Florida. He was,

however, doing business as George E. Patterson & Associates.

2. Respondent proposed to build an addition to Jennie

Headen’s residence, located at 1424 Bellshore Circle,

Jacksonville, Florida, for a contract price of $22,000.

Respondent signed the written proposal, telling Headen that she

need not sign as her name was already on the document.

3. Headen issued checks to Respondent; one in the amount

of $3,000 and one in the amount of $9,000. Respondent accepted

the checks, made out to him, as payments for work in accordance

with the draw schedule mentioned in the proposal. Respondent

cashed both checks.

4. Respondent proceeded to tear the back porch of Headen’s

house down. He ordered trusses for the cathedral roof and some

lumber for further construction, all of which was delivered.

Respondent started to frame in the addition, but a City of

Jacksonville inspector issued a “Stop Work” order due to the

flimsy construction and violation by Respondent of building code

requirements.

5. Respondent was also issued a Notice and Order to Cease

and Desist from Petitioner, the Department of Business and

Professional Regulation, for the practice of unlicensed

contracting for the work he performed at 1424 Bellshore Circle,

Jacksonville, Florida.

6. Total investigative costs in this matter incurred by

Petitioner were $534.59, excluding costs associated with any

attorney’s time.

CONCLUSIONS OF LAW

7. The Division of Administrative Hearings has

jurisdiction over the parties to, and the subject matter of

these proceedings. §§ 120.56(9) and 120.57(1), Fla. Stat.

8. Petitioner, the Department of Business and Professional

Regulation, is the state agency charged with regulating the

practice of contracting pursuant to Section 20.165 and Chapters

455 and 489, Florida Statutes.

9. Section 489.127(1)(f), Florida Statutes, provides that

no person shall engage in the business or act in the capacity of

a contractor without being duly registered or certified or

having a certificate of authority. Section 489.127(2)(a),

Florida Statutes, further provides any unlicensed person who

violates any of the provisions of subsection (1) commits a

misdemeanor of the first degree, punishable as provided in

Section 775.082, Florida Statutes or Section 775.083, Florida

Statutes.

10. Section 489.105(3), Florida Statutes, defines

“contractor”, in pertinent part, as:

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 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 structure, including related

improvements to real estate, for others 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.

11. Section 489.105(3)(a), Florida Statutes, states that:

"[g]eneral contractor" means a contractor

whose services are unlimited as to the type

of work 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 Section 489.113, Florida

Statutes.

12. Section 489.105(3)(b), Florida Statutes, states that:

"[b]uilding contractor" means a contractor

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 connection

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.

13. Section 489.105(3)(c), Florida Statutes, states that:

"[r]esidential contractor" means a

contractor whose services are 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.

14. Section 455.228, Florida Statutes, authorizes

Petitioner to impose an administrative penalty not to exceed

$5,000 per incident in those cases where Petitioner has

ascertained probable cause to believe that a person, not

licensed by Petitioner, has violated any provision of this

chapter or of any statute relating to the practice of a

profession regulated by Petitioner.

15. Petitioner has the burden of proving by clear and

convincing evidence the allegations against Respondent. Section

120 . 57(1) (j), Florida Statutes ; 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).

16. The record establishes by clear and convincing

evidence that Respondent violated Section 489.127(1)(f) which

prohibits unregistered or uncertified contractors from engaging

in the practice of contracting or advertising oneself as able to

engage in contracting.

17. Rule 61G4-17.002, Florida Administrative Code,

provides, in pertinent part, the following:

Circumstances which may be considered for

the purpose of mitigation or aggravation of

penalty shall include, but are not limited

to the following:

(1) Monetary or other damage to the

licensee's customer, in any way associated

with the violation, which damage the

licensee has not relieved, as of the time

the penalty is be assessed. (This provision

shall not be given effect to the extent it

would contravene federal bankruptcy law.)

(2) Actual job-site violations of building

codes, or conditions exhibiting gross

negligence, incompetence, or misconduct by

the licensee, which have not been corrected

as of the time the penalty is being

assessed.

(3) The danger to the public.

(4) The number of complaints filed against

the licensee.

(5) The length of time the licensee has

practiced.

(6) The actual damage, physical or

otherwise, to the licensee's customer.

(7) The deterrent effect of the penalty

imposed.

(8) The effect of the penalty upon the

licensee's livelihood.

(9) Any efforts at rehabilitation.

(10) Any other mitigating or aggravating

circumstances.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That a Final Order be entered:

1. Finding Respondent guilty of having violated Section

489.127(1)(f), Florida Statutes, and imposing as a penalty an

administrative fine in the amount of $5,000.00.

2. Requiring Respondent to pay Petitioner’s costs of

investigation and prosecution, excluding costs associated with

an attorney’s time, in the amount of $534.59.

DONE AND ENTERED this 28th day of August, 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

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28th day of August, 2007.

COPIES FURNISHED :

Roland F. Patterson

1610 West 31 Street

Jacksonville, Florida 32209

Joshua B. Moye, Esquire

Assistant General Counsel

Craig Mangum, Qualified Representative

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

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

Ned Luczynski, 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.