07-002187
Department Of Business And Professional Regulation vs.
Roland F. Patterson
Status: Closed
Recommended Order on Tuesday, August 28, 2007.
Recommended Order on Tuesday, August 28, 2007.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8DEPARTMENT OF BUSINESS AND ) )
14PROFESSIONAL REGULATION, )
17)
18Petitioner, )
20) Case No. 07-2187
24vs. )
26)
27ROLAND F. PATTERSON, )
31)
32Respondent. )
34RECOMMENDED ORDER
36Administrative Law Judge Don W. Davis of the Division of
46Administrative Hearings (DOAH) held a formal hearing in this cause
56in Jacksonville, Florida, on July 26, 2007. The following
65appearances were entered:
68APPEARANCES
69For Petitioner: Joshua Moye, Esquire
74Assistant General Counsel
77Craig Mangum, Qualified Representative
81Department of Business and
85Professional Regulation
871940 North Monroe Street, Suite 42
93Tallahassee, Florida 32399
96For Respondent: No Appearance
100STATEMENT OF THE ISSUE
104The issue for determination is whether Respondent, Roland F.
113Patterson, engaged in the unlicensed practice of contracting in
122the State of Florida without being duly certified or registered
132in violation of Chapter 489, Florida Statutes; and secondarily,
141if Respondent committed that violation, what penalty should be
150imposed?
151PRELIMINARY STATEMENT
153On September 20, 2006, Petitioner issued an administrative
161complaint, alleging Respondents violation of section
167489.127(1)(f), Florida Statutes, by engaging in the business or
176acting in the capacity of a contractor, without being duly
186registered or certified or having a certificate of authority.
195Respondent disputed the allegations contained in the
202administrative complaint and elected to have a formal
210administrative hearing. Consequently, the case was transferred
217to the Division of Administrative Hearings to conduct a hearing
227pursuant to Section 120.57, Florida Statutes.
233During the hearing, Petitioner offered the testimony of one
242witness and six exhibits, all of which were entered into
252evidence.
253Respondent was not present for the hearing and no
262appearance was made on his behalf.
268Official recognition was taken of Section 489.108, Florida
276Statutes, Section 489.127(1)(f), Florida Statutes, Section
282489.105(3), Florida Statutes, Section 489.105(3)(a), Florida
288Statutes, Section 489.105(3)(b), Florida Statutes, and Section
295489.105(3)(c), Florida Statutes.
298No transcript was provided.
302Petitioner filed a Proposed Recommended Order which has
310been reviewed and utilized in the preparation of this
319Recommended Order.
321All references to Florida Statutes are to the 2007 edition
331unless otherwise noted.
334FINDINGS OF FACT
3371. At all times material to these proceedings, Respondent
346was not duly registered or certified to engage in the practice
357of construction contracting in the State of Florida. He was,
367however, doing business as George E. Patterson & Associates.
3762. Respondent proposed to build an addition to Jennie
385Headens residence, located at 1424 Bellshore Circle,
392Jacksonville, Florida, for a contract price of $22,000.
401Respondent signed the written proposal, telling Headen that she
410need not sign as her name was already on the document.
4213. Headen issued checks to Respondent; one in the amount
431of $3,000 and one in the amount of $9,000. Respondent accepted
444the checks, made out to him, as payments for work in accordance
456with the draw schedule mentioned in the proposal. Respondent
465cashed both checks.
4684. Respondent proceeded to tear the back porch of Headens
478house down. He ordered trusses for the cathedral roof and some
489lumber for further construction, all of which was delivered.
498Respondent started to frame in the addition, but a City of
509Jacksonville inspector issued a Stop Work order due to the
519flimsy construction and violation by Respondent of building code
528requirements.
5295. Respondent was also issued a Notice and Order to Cease
540and Desist from Petitioner, the Department of Business and
549Professional Regulation, for the practice of unlicensed
556contracting for the work he performed at 1424 Bellshore Circle,
566Jacksonville, Florida.
5686. Total investigative costs in this matter incurred by
577Petitioner were $534.59, excluding costs associated with any
585attorneys time.
587CONCLUSIONS OF LAW
5907. The Division of Administrative Hearings has
597jurisdiction over the parties to, and the subject matter of
607these proceedings. §§ 120.56(9) and 120.57(1), Fla. Stat.
6158. Petitioner, the Department of Business and Professional
623Regulation, is the state agency charged with regulating the
632practice of contracting pursuant to Section 20.165 and Chapters
641455 and 489, Florida Statutes.
6469. Section 489.127(1)(f), Florida Statutes, provides that
653no person shall engage in the business or act in the capacity of
666a contractor without being duly registered or certified or
675having a certificate of authority. Section 489.127(2)(a),
682Florida Statutes, further provides any unlicensed person who
690violates any of the provisions of subsection (1) commits a
700misdemeanor of the first degree, punishable as provided in
709Section 775.082, Florida Statutes or Section 775.083, Florida
717Statutes.
71810. Section 489.105(3), Florida Statutes, defines
724contractor, in pertinent part, as:
729the person who is qualified for, and shall
737only be responsible for, the project
743contracted for and means, except as exempted
750in this part, the person who, for
757compensation, undertakes to, submits a bid
763to, or does himself or herself or by others
772construct, repair, alter, remodel, add to,
778demolish, subtract from, or improve any
784building or structure, including related
789improvements to real estate, for others or
796for resale to others; and whose job scope is
805substantially similar to the job scope
811described in one of the subsequent
817paragraphs of this subsection.
82111. Section 489.105(3)(a), Florida Statutes, states that:
"828[g]eneral contractor" means a contractor
833whose services are unlimited as to the type
841of work which he or she may do, who may
851contract for any activity requiring
856licensure under this part, and who may
863perform any work requiring licensure under
869this part, except as otherwise expressly
875provided in Section 489.113, Florida
880Statutes.
88112. Section 489.105(3)(b), Florida Statutes, states that:
"888[b]uilding contractor" means a contractor
893whose services are limited to construction
899of commercial buildings and single-dwelling
904or multiple-dwelling residential buildings,
908which commercial or residential buildings do
914not exceed three stories in height, and
921accessory use structures in connection
926therewith or a contractor whose services are
933limited to remodeling, repair, or
938improvement of any size building if the
945services do not affect the structural
951members of the building.
95513. Section 489.105(3)(c), Florida Statutes, states that:
"962[r]esidential contractor" means a
966contractor whose services are limited to
972construction, remodeling, repair, or
976improvement of one-family, two-family, or
981three-family residences not exceeding two
986habitable stories above no more than one
993uninhabitable story and accessory use
998structures in connection therewith.
100214. Section 455.228, Florida Statutes, authorizes
1008Petitioner to impose an administrative penalty not to exceed
1017$5,000 per incident in those cases where Petitioner has
1027ascertained probable cause to believe that a person, not
1036licensed by Petitioner, has violated any provision of this
1045chapter or of any statute relating to the practice of a
1056profession regulated by Petitioner.
106015. Petitioner has the burden of proving by clear and
1070convincing evidence the allegations against Respondent. Section
1077120 . 57(1) (j), Florida Statutes ; Ferris v. Turlington , 510
1087So. 2d. 292 (Fla. 1987); and Department of Banking and Finance
1098v. Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996).
110916. The record establishes by clear and convincing
1117evidence that Respondent violated Section 489.127(1)(f) which
1124prohibits unregistered or uncertified contractors from engaging
1131in the practice of contracting or advertising oneself as able to
1142engage in contracting.
114517. Rule 61G4-17.002, Florida Administrative Code,
1151provides, in pertinent part, the following:
1157Circumstances which may be considered for
1163the purpose of mitigation or aggravation of
1170penalty shall include, but are not limited
1177to the following:
1180(1) Monetary or other damage to the
1187licensee's customer, in any way associated
1193with the violation, which damage the
1199licensee has not relieved, as of the time
1207the penalty is be assessed. (This provision
1214shall not be given effect to the extent it
1223would contravene federal bankruptcy law.)
1228(2) Actual job-site violations of building
1234codes, or conditions exhibiting gross
1239negligence, incompetence, or misconduct by
1244the licensee, which have not been corrected
1251as of the time the penalty is being
1259assessed.
1260(3) The danger to the public.
1266(4) The number of complaints filed against
1273the licensee.
1275(5) The length of time the licensee has
1283practiced.
1284(6) The actual damage, physical or
1290otherwise, to the licensee's customer.
1295(7) The deterrent effect of the penalty
1302imposed.
1303(8) The effect of the penalty upon the
1311licensee's livelihood.
1313(9) Any efforts at rehabilitation.
1318(10) Any other mitigating or aggravating
1324circumstances.
1325RECOMMENDATION
1326Based on the foregoing Findings of Fact and Conclusions of
1336Law, it is
1339RECOMMENDED:
1340That a Final Order be entered:
13461. Finding Respondent guilty of having violated Section
1354489.127(1)(f), Florida Statutes, and imposing as a penalty an
1363administrative fine in the amount of $5,000.00.
13712. Requiring Respondent to pay Petitioners costs of
1379investigation and prosecution, excluding costs associated with
1386an attorneys time, in the amount of $534.59.
1394DONE AND ENTERED this 28th day of August, 2007, in
1404Tallahassee, Leon County, Florida.
1408S
1409DON W. DAVIS
1412Administrative Law Judge
1415Division of Administrative Hearings
1419The DeSoto Building
14221230 Apalachee Parkway
1425Tallahassee, Florida 32399-3060
1428(850) 488-9675 SUNCOM 278-9675
1432Fax Filing (850) 921-6847
1436www.doah.state.fl.us
1437Filed with the Clerk of the
1443Division of Administrative Hearings
1447this 28th day of August, 2007.
1453COPIES FURNISHED :
1456Roland F. Patterson
14591610 West 31 Street
1463Jacksonville, Florida 32209
1466Joshua B. Moye, Esquire
1470Assistant General Counsel
1473Craig Mangum, Qualified Representative
1477Department of Business and
1481Professional Regulation
14831940 North Monroe Street, Suite 42
1489Tallahassee, Florida 32399-2202
1492Nancy S. Terrel, Hearing Officer
1497Office of the General Counsel
1502Department of Business and
1506Professional Regulation
1508Northwood Centre
15101940 North Monroe Street
1514Tallahassee, Florida 32399-0792
1517Ned Luczynski, General Counsel
1521Department of Business and
1525Professional Regulation
1527Northwood Centre
15291940 North Monroe Street
1533Tallahassee, Florida 32399-0792
1536NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
1542All parties have the right to submit written exceptions within
155215 days from the date of this Recommended Order. Any exceptions
1563to this Recommended Order should be filed with the agency that
1574will issue the Final Order in this case.
- Date
- Proceedings
- PDF:
- Date: 08/28/2007
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- Date: 07/31/2007
- Proceedings: Transcript of Proceedings filed.
- Date: 07/26/2007
- Proceedings: CASE STATUS: Hearing Held.
- PDF:
- Date: 07/18/2007
- Proceedings: Agency`s Notice of Substitution of Counsel (filed by J. Moye) (signed copy).
- PDF:
- Date: 06/06/2007
- Proceedings: Notice of Hearing (hearing set for July 26, 2007; 10:30 a.m.; Jacksonville, FL).
Case Information
- Judge:
- DON W. DAVIS
- Date Filed:
- 05/15/2007
- Date Assignment:
- 05/15/2007
- Last Docket Entry:
- 12/18/2007
- Location:
- Jacksonville, Florida
- District:
- Northern
- Agency:
- ADOPTED IN TOTO
Counsels
-
Ned Luczynski, General Counsel
Address of Record -
Joshua B. Moye, Esquire
Address of Record -
Roland F Patterson
Address of Record