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


View Dockets  
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.

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 Respondent’s 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

385Headen’s 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 Headen’s

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

585attorney’s 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

724“contractor”, 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 Petitioner’s costs of

1379investigation and prosecution, excluding costs associated with

1386an attorney’s 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.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 12/18/2007
Proceedings: Final Order filed.
PDF:
Date: 12/17/2007
Proceedings: Agency Final Order
PDF:
Date: 08/28/2007
Proceedings: Recommended Order
PDF:
Date: 08/28/2007
Proceedings: Recommended Order (hearing held July 26, 2007). CASE CLOSED.
PDF:
Date: 08/28/2007
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 08/06/2007
Proceedings: Petitioner`s Proposed Recommended Order filed.
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: 07/18/2007
Proceedings: Petitioner`s Witness List filed.
PDF:
Date: 07/18/2007
Proceedings: Amended Affidavit of Craig Mangum filed.
PDF:
Date: 07/17/2007
Proceedings: Affidavit of Craig Mangum filed.
PDF:
Date: 07/17/2007
Proceedings: Petitioner`s Motion to Accept Qualified Representative filed.
PDF:
Date: 07/17/2007
Proceedings: Agency`s Notice of Substitution of Counsel (filed by J. Moye).
PDF:
Date: 06/06/2007
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 06/06/2007
Proceedings: Notice of Hearing (hearing set for July 26, 2007; 10:30 a.m.; Jacksonville, FL).
PDF:
Date: 05/16/2007
Proceedings: Petitioner`s Response to Initial Order.
PDF:
Date: 05/16/2007
Proceedings: Order Re-opening File.
PDF:
Date: 05/14/2007
Proceedings: Petitioner`s Request to Re-Open filed. (FORMERLY DOAH CASE NO. 07-0969)
PDF:
Date: 02/23/2007
Proceedings: Administrative Complaint filed.
PDF:
Date: 02/23/2007
Proceedings: Election of Rights filed.
PDF:
Date: 02/23/2007
Proceedings: Agency referral filed.

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

Related DOAH Cases(s) (1):

Related Florida Statute(s) (10):

Related Florida Rule(s) (1):