07-005493PL Department Of Business And Professional Regulation, Construction Industry Licensing Board vs. Randy Falls Status: Closed Recommended Order on Monday, March 24, 2008.

Summary: Respondent`s actions assisted persons in engaging in the unlicensed practice of contracting. Recommend fines and continuing education classes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

CONSTRUCTION INDUSTRY )

LICENSING BOARD, )

)

Petitioner, )

)

vs. ) Case No. 07-5493PL

)

RANDY FALLS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held on February 6,

2008, in Deland, Florida, before the Division of Administrative

Hearings by its designated Administrative Law Judge, Barbara J.

Staros.

APPEARANCES

For Petitioner: Collin W. L. McLeod, Esquire

Wright, Fulford, Moorhead & Brown, P.A.

145 North Magnolia Avenue

Post Office Box 2828

Orlando, Florida 32803

For Respondent: Randy Falls, pro se

1250 Scottsdale Drive

Ormond Beach, Florida 32164

STATEMENT OF THE ISSUE

At issue is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what penalty

should be imposed.

PRELIMINARY STATEMENT

Petitioner, Department of Business and Professional

Regulation, Construction Industry Licensing Board (Department),

filed an Administrative Complaint on April 19, 2007, which

contained three counts of professional violations against

Respondent, Randy Falls. Specifically, the Department charged

Respondent with violations of Subsections 489.129(1)(d),(e) and

(m), Florida Statutes, by assisting an unlicensed contractor in

engaging in the unauthorized practice of contracting; and by

committing incompetency or misconduct in the practice of

contracting.

Respondent disputed the allegations of the Administrative

Complaint and requested an administrative hearing. The case was

referred to the Division of Administrative Hearings on or about

December 5, 2007, and assigned to Administrative Law Judge

Charles C. Adams. A formal hearing was set for February 6, 2008.

Prior to hearing, the case was transferred to the

undersigned who presided at the scheduled hearing. At hearing,

Petitioner presented the testimony of Marvin Harris, Paul Ross,

Maybeth Irizarry-Binon, and Kathy Arundel. Petitioner's Exhibits

numbered 1 through 14 were admitted into evidence.

Respondent testified on his own behalf. Respondent’s

Exhibits numbered 1 and 2 were admitted into evidence.

A Transcript, consisting of one volume, was filed on

February 18, 2008. The Department timely filed a Proposed

Recommended Order, and Respondent timely filed a post-hearing

letter, which have been considered in the preparation of this

Recommended Order. All citations are to Florida Statutes (2004)

unless otherwise indicated.

FINDINGS OF FACT

1. Petitioner, the Department, is the state agency charged

with the duty and responsibility of regulating the practice of

contracting pursuant to Chapters 20, 455 and 489.

2. At all times material to the allegations of the

Administrative Complaint, Randy Falls, d/b/a DRC Contractors LLC,

was licensed as a Florida State Certified Building Contractor,

having been issued license number CGC 1507600 on August 12, 2004.

His licensure status is designated as "Current, Active."

3. Kingston Shores Condominiums (Kingston Shores) is

located in Ormond Beach, Florida. Several condominiums in

Kingston Shores were badly damaged in Hurricane Charlie in 2004.

4. Marvin Harris is the president of the condominium

association of Kingston Shores. Following Hurricane Charlie,

Mr. Harris was approached by Kerry Brooks of JTC Reconstruction

and Restoration Services (JTC). Mr. Brooks proposed that his

company perform repairs and reconstruction services to Kingston

Shores.

5. Mr. Harris asked Mr. Brooks for the license number of

the general contractor under whom JTC would be working, so it

could be posted in the condominium offices. Initially,

Mr. Brooks provided a license number of a general contractor who,

when contacted by Mr. Harris, informed Mr. Harris that he knew

nothing of JTC. Mr. Harris again asked Mr. Brooks for the

license number of the general contractor and was given the

license number of Respondent, Mr. Falls. Mr. Harris checked with

valid, but did not contact Mr. Falls to make sure he was aware of

the work being done by JTC.

6. The work performed by JTC was “extremely shoddy

substandard work.” After performing unacceptable work for

approximately one year, JTC abandoned the project leaving the

work unfinished.

7. In addition to the work done by JTC for Kingston Shores,

at least one individual condominium owner, Paul Ross, contracted

with JTC to perform restoration and repairs of his condominium

unit. The contract between Mr. Ross and JTC, dated May 11, 2005,

does not mention Mr. Falls or his company, DRC General

Contractors. The contract was for a total of $28,464.85.

Mr. Ross confirmed through personal research that JTC was a

Georgia company located outside of Atlanta and that Mr. Falls

held a valid Florida general contractor’s license.

8. Mr. Ross and his wife initially paid JTC $5,652 for some

work which was performed. He later paid JTC $8,607, for which no

work was performed. As with the work done for Kingston Shores,

the work performed by JTC was unacceptable and incomplete when

JTC abandoned the job. While Mr. Ross assumed that JTC was

operating under the auspices of Mr. Falls and that Mr. Falls

would be overseeing the work, he never paid any money to

Mr. Falls.

9. About the time Mr. Harris was contacted by Mr. Brooks,

Respondent was contacted by Jack Turner of JTC. According to

Mr. Falls, Mr. Turner identified himself as a representative of

Kingston Shores. Mr. Turner proposed that they (Falls and

Turner) would sign a contract for work after Mr. Turner dealt

with insurance companies, and that Mr. Falls would get a

percentage of the money up front. At that point, Mr. Falls

“pulled the permit.” That is, on October 7, 2004, Mr. Falls

completed, signed, and submitted a Volusia County Commercial

Permit Application for Kingston Shores. The appropriate permit

or permits were issued by Volusia County on November 30, 2004.

Sometime thereafter, Mr. Falls moved to Pensacola and apparently

did not have any more contact with Jack Turner.

10. At the time he pulled the permit, Mr. Falls did not

have a contract with JTC, Kingston Shores, or any individual

condominium owner. At no time material to this proceeding was

Respondent involved in the supervision of the individuals who

performed the work done on the Kingston Shores property nor did

he supply any of the workers who performed the work on the

subject property.

11. On July 20, 2005, Mr. Falls wrote to Volusia County

requesting that the construction permit(s) be deactivated “due to

nonpayment to contractor.”

12. Mr. Harris then contacted Mr. Falls who informed

Mr. Harris that JTC owed him money, and that he would need

$12,000 to reinstate the permit(s). Mr. Harris did not agree to

paying that amount and threatened legal action. According to

Mr. Falls, he requested the $12,000 because “they had done work

without me knowing.”

13. On October 26, 2005, Mr. Falls wrote to Volusia County

requesting reinstatement of the construction permit “for final

inspections.”

14. After the permit(s) were reinstated, construction work

resumed. It is unclear from the record who performed the work at

that point, although Mr. Harris referred to having “other

contractors come in.” However, it was Mr. Falls who obtained the

certificate of occupancy from Volusia County which is dated

January 23, 2006.

15. Mr. Falls did not receive any payment from JTC for any

work done at Kingston Shores. He acknowledges that pulling a

permit without a contract or a letter of intent was “sheer

stupidity . . . . I mean, I had just got my license, you know,

I just got it. So I was an idiot. I did something stupid, and

unfortunately people got hurt over it.” Mr. Falls shows genuine

remorse for the consequences of his actions.

16. On January 24, 2006, Mr. Harris executed a General

Release which states as follows:

Know all men by these presents that Marvin

Harris, serving as representative for

Kingston Shores Condominium Inc. (First

Party) in consideration and [sic] services

received, specifically re-applying for six

(6) building permits, and passing the final

inspection for C.O. Occupancy on all six (6)

from DRC General Contractors, LLC and Randy

Falls (Second Party) receipt of which is

hereby acknowledged release the second party

from any suits, damages relating to

materials, or workmanship by Second Party at

Kingston Shores Condominium, Inc. at 5500

Ocean Shore Blvd., Ormond Beach, Florida

32176.

17. Respondent is no longer in the construction business.

He currently earns $24,000 a year as an EMT and is studying to be

a paramedic.

18. The amount of the Department's costs of investigation

and prosecution is not in evidence

CONCLUSIONS OF LAW

19. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this case.

§§ 120.569, 120.57(1), and 120.60(5), Fla. Stat. (2007)

20. Petitioner has the burden of proving by clear and

convincing evidence the specific allegations of the

Administrative Complaint. See Ferris v. Turlington , 510 So. 2d

292 (Fla. 1987); Department of Banking and Finance v. Osborne

Stern & Co. , 670 So. 2d 932 (Fla. 1996).

21. Subsection 489.129(1) reads in pertinent part as

follows:

(1) The board may take any of the following

actions against any certificateholder or

registrant: place on probation or reprimand

the licensee, revoke, suspend, or deny the

issuance or renewal of the certificate,

registration, or certificate of authority,

require financial restitution to a consumer

for financial harm directly related to a

violation of a provision of this part, impose

an administrative fine not to exceed $5,000

per violation, require continuing education,

or assess costs associated with investigation

and prosecution, if the contractor,

financially responsible officer, or business

organization for which the contractor is a

primary qualifying agent, a financially

responsible officer, or a secondary

qualifying agent responsible under s.

489.1195 is found guilty of any of the

following acts:

* * *

(d) Performing any act which assists a

person or entity in engaging in the

prohibited uncertified and unregistered

practice of contracting, if the

certificateholder or registrant knows or has

reasonable grounds to know that the person or

entity was uncertified and unregistered.

(e) Knowingly combining or conspiring with

an uncertified or unregistered person by

allowing his or her certificate,

registration, or certificate of authority to

be used by the uncertified or unregistered

person with intent to evade the provisions of

this part. When a certificateholder or

registrant allows his or her certificate or

registration to be used by one or more

business organizations without having any

active participation in the operations,

management, or control of such business

organizations, such act constitutes prima

facie evidence of an intent to evade the

provisions of this part.

* * *

(m) Committing incompetency or misconduct

in the practice of contracting.

22. The Administrative Complaint charges Respondent with

violating Subsection 489.129(1)(d), Florida Statutes, by

assisting JTC, an unlicensed entity, to engage in the uncertified

and unregistered practice of contracting. The evidence

established that Respondent applied for and obtained the

construction permit(s) and then did not do any work on the job.

The evidence does not establish that Respondent knew that Jack

Turner was uncertified or unregistered. However, as a general

contractor, he should have known or at least attempted to find

out, that the persons who contacted him to use his license number

were unregistered or uncertified.

23. The Administrative Complaint charges Respondent with

violating Subsection 489.129(1)(e), Florida Statutes, by allowing

his certificate or registration to be used by one or more

business organizations without having any active participation in

the operations, management or control of such business

operations. Under the express language of the statute,

contractor’s license, which resulted in an unlicensed entity

engaging in construction activities, constitutes prima facie

evidence of this violation. Accordingly, Petitioner has met its

burden that Respondent violated this provision.

24. The Administrative Complaint charges Respondent with

violating Subsection 489.129(1)(m), Florida Statutes, by

committing incompetency or misconduct in the practice of

contracting. The Department takes the position that Respondent's

actions of deactivating the building permit for the project and

requesting that the condominium association pay $12,000; failing

to perform the duties required of a contractor by failing to

contract directly with the property owner; and failing to

supervise the work performed on said property, constitute

incompetency or misconduct. The Department has met its burden

regarding this allegation.

25. The Department seeks imposition of fines in the total

amount of $6,000.00, restitution, and a requirement that

Respondent attend a minimum of seven additional hours of

continuing education classes, “live and in person.” The fines

sought by the Department are as follows: $2,500 for violation of

and $1,000 for violation of 489.129(1)(m), Florida Statutes.

26. Florida Administrative Code Rule 61G4-17.001 (2005),

sets forth guidelines for violations that are alleged in this

case, absent aggravating or mitigating circumstances. The range

of penalties for a first violation of Subsection 489.129(1)(d),

Florida Statutes, is a fine of $1,000 to $2,500 and/or probation.

27. The range of penalties for a first violation of

Subsection 489.129(1)(e), Florida Statutes, is a fine of $1,000

to $3,500 and/or probation.

28. The range of penalties for a first-time violation of

Subsection 489.129(1)(m), Florida Statutes, for violation of any

provision of Florida Administrative code Chapter 61G4 or of

Chapter 489, Florida Statutes, is a fine of $1,000 to $2,500.

29. Florida Administrative Code Rule 61G4-17.002 sets forth

circumstances which may be considered for the purpose of

mitigation or aggravation of penalty. Included are: danger to

the public; the number of complaints filed against the licensee;

the length of time the licensee has practiced; the effect of the

penalty on the licensee's livelihood; monetary damage to the

licensee’s customer; any efforts at rehabilitation, and any other

mitigating or aggravating circumstances. Respondent is out of

the construction business. He presents no danger to the public.

There is no evidence of any prior complaints filed against

Respondent. Any penalty will cause a hardship on Respondent as

he has gone out of business and earns $24,000 a year. Further,

Respondent shows genuine remorse that his actions or lack thereof

caused harm to people. Finally, the real wrongdoers, i.e., those

individuals associated with JTC who dreamed up this scheme, are

nowhere to be found. Accordingly, lesser fines than those

suggested by the Department are more appropriate here.

30. Florida Administrative Code Rule 61G4-17.001(5)

requires the board to order the contractor to make restitution in

the amount of financial loss suffered by the consumer. The

evidence supports restitution in the amount of $8,607.00, the

amount requested by the Department.

31. The Department proposes that Respondent pay

investigative costs in the amount of $378.27. However, the

amount of investigative costs is not in evidence. Therefore,

imposing this is not supported by the evidence of record.

§ 120.57(1)(j), Fla. Stat.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law set forth herein, it is

RECOMMENDED:

That the Construction Industry Licensing Board enter a final

order imposing fines in the amount of $1,000 for violation of

Subsection 489.129(1)(d); $1,000 for violation of Subsection

Florida Statutes; pay $8,607.00 in restitution; and require

Respondent to attend seven additional hours of continuing

education classes.

DONE AND ENTERED this 24th day of March, 2008, in

Tallahassee, Leon County, Florida.

S

___________________________________

BARBARA J. STAROS

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 24th day of March, 2008.

COPIES FURNISHED:

Collin W. L. Mcleod, Esquire

Wright, Fulford, Moorhead & Brown, P.A.

145 North Magnolia Avenue

Orlando, Florida 32803

Randy Falls

1250 Scottsdale Drive

Ormond Beach, Florida 32174

Ned Luczynski, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1040 North Monroe Street

Tallahassee, Florida 32399-0792

G. W. Harrell, Executive Director

Construction Industry Licensing Board

Department of Business and

Professional Regulation

Northwood Centre

1040 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.