08-001106 Department Of Business And Professional Regulation vs. Stirlyn Bowrin
 Status: Closed
Recommended Order on Friday, August 29, 2008.


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Summary: Petitioner showed that Respondent engaged in structural and electrical contracting without a license and without a permit. Recommend a reduced penalty because not all charges were proven and there as minimal electrical work.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DEPARTMENT OF BUSINESS AND )

13PROFESSIONAL REGULATION, )

16)

17Petitioner, )

19)

20vs. ) Case No. 08-1106

25)

26STIRLYN BOWRIN, )

29)

30Respondent. )

32)

33RECOMMENDED ORDER

35Pursuant to notice this cause came on for formal hearing

45before P. Michael Ruff, a duly-designated Administrative Law

53Judge of the Division of Administrative Hearings in Tampa,

62Florida, on May 29, 2008. The appearances were as follows:

72APPEARANCES

73For Petitioner: Sorin Ardelean, Esquire

78Department of Business and

82Professional Regulation

841940 North Monroe Street

88Tallahassee, Florida 32399

91For Respondent: Barry Rigby, Esquire

96Law Offices of Barry Rigby, P.A.

102924 North Magnolia Avenue, Suite 319

108Orlando, Florida 32803

111STATEMENT OF THE ISSUES

115The issues to be resolved in this proceeding concern

124whether the Respondent committed the charged violations of

132Sections 489.127(1)(f) and 489.531(1), Florida Statutes, as set

140forth in the Administrative Complaint, and, if so, what if any

151penalty is warranted.

154PRELIMINARY STATEMENT

156This cause arose when an Administrative Complaint was filed

165against the Respondent on October 11, 2007, charging the

174Respondent with unlicensed contracting, in violation of the

182above-referenced provisions of Chapter 489, Florida Statutes.

189Specifically, the Respondent is charged with violating Section

197489.127(1)(f), Florida Statutes, by engaging or advertising

204himself or his business organization in the practice of

213unlicensed contracting and, as to Section 489.531(1), Florida

221Statutes, by practicing electrical contracting, or advertising

228as being available to practice electrical contracting, while not

237being properly certified or registered.

242The allegations of the complaint were disputed by the

251Respondent and a formal administrative proceeding ensued. The

259matter was referred to the undersigned Administrative Law Judge

268and subsequently set for hearing.

273The cause came on for hearing as noticed. The Petitioner

283offered the testimony of four witnesses at the hearing: Carolyn

293H. Wilson, Reuben Williams, Caleb Alfred and Investigator Kelly

302Capes, of the Department of Business and Professional Regulation

311(Department). Additionally, the Petitioner's Exhibits 1 through

31812 were offered and admitted into evidence. The Respondent

327testified on his own behalf at the hearing and had Exhibits 1

339through 5 admitted into evidence. The Petitioner has

347voluntarily dismissed Counts III and IV of the Administrative

356Complaint.

357Upon concluding the hearing, the parties elected to have

366the testimony transcribed and to submit proposed recommended

374orders. The Proposed Recommended Orders have been timely

382submitted and have been considered in the rendition of this

392Recommended Order.

394FINDINGS OF FACT

3971. On or about December 11, 2006, the Respondent entered

407into a contract with Ms. Carolyn H. Wilson for remodeling work,

418at Ms. Wilson's home in St. Petersburg, Florida.

4262. The scope of the work included in the Respondent's

"436Quotation" or their agreement, involved structural work,

443plumbing, and electrical work. The Respondent presented himself

451as being properly licensed for the work which he contracted to

462perform at Ms. Wilson's property. The Respondent had dictated

471the terms of the agreement or contract to Mr. Caleb Alfred who

483wrote the terms required by the Respondent into the "Quotation"

493form provided by the Respondent. Mr. Alfred was paid a $200.00

504commission for referring Ms. Wilson and her job to the

514Respondent. Mr. Alfred is not affiliated in any way with the

525Respondent, however, and was a coworker at a local school with

536Ms. Wilson, who was the Assistant Principal.

5433. Ms. Wilson understood that she was contracting for work

553to be done by the Respondent and not by Mr. Alfred. The

565Respondent and Ms. Wilson signed the "Quotation" form as the

575contract for the project.

5794. The Respondent was never licensed to engage in any

589category of contracting in the State of Florida at any time

600material to the facts in this case and to the allegations in the

613Administrative Complaint.

6155. On December 11, 2006, the Respondent was paid

624$7,000.00, by Ms. Wilson's check no. 1022, the day the agreement

636was entered into. Thereafter he was paid $11,000.00 on

646December 19, 2006, by check no. 1024 issued by Ms. Wilson. He

658was paid on December 21, 2006, $1,400.00 by check no. 1025 and

671another $3,000.00 on December 22, 2006, by Ms. Wilson's check

682no. 1026. The Respondent also incurred some additional charges

691on Ms. Wilson's Home Depot and Lowes accounts for certain tools

702and items which he kept after he left the job. The Respondent

714maintains that he kept those tools as a remedy for work that he

727had performed for which Ms. Wilson had not paid him.

7376. The work the Respondent contracted to do required

746a permit. No permit of any kind for the referenced project was

758ever obtained.

7607. The electrical work to be performed by the Respondent

770included the installing of 10 recessed lights and two outlets.

780The lights to be installed, some of which were installed by the

792Respondent, were plug-in lights. The outlets installed by the

801Respondent involved merely screwing existing wires into the new

810outlets. They did not involve the addition of any wiring to the

822project or the home.

8268. The dishwasher to be installed by the Respondent did

836not actually involve plumbing. The plumbing work was already

845done and was existing at the site. The Respondent merely had to

857screw the plumbing outlet on the dishwasher to the standing

867plumbing or pipe.

8709. The installation of the flooring and the installation

879of the wall in the residence accomplished by the Respondent was

890structural work and constituted contracting. The wall was

898installed and was attached to the trusses of the structure. The

909flooring portion of the project involved installation of the

918hardwood flooring and the pad beneath, the charge for which

928totaled approximately $15,400.00 itself.

93310. The Respondent is a native of Trinidad. While

942residing in Trinidad he built houses. He therefore is quite

952experienced in construction. He has a "handyman" license from

961the City of Sanford. That handyman license prohibits electrical

970repair or replacement of any type, roof repair, installation of

980exterior doors and windows, and any work that requires a permit.

991The Respondent apparently was of the belief that he was

1001authorized to do the type of work at issue, based on the

1013strength of holding handyman license.

101811. Additionally, the handyman exemption from licensure

1025which is provided in Section 489.103(9), Florida Statutes,

1033references contracts under $1,000.00 dollars. It also requires,

1042for an exemption, that the work involved not require any

1052permitting. Neither is the case here, the work involved much

1062more than $1,000.00 and did require permitting, at least in

1073part.

107412. The Respondent apparently finished most of the job at

1084issue. It is debatable whether he finished the dishwasher

1093installation which merely involved placing it and screwing it

1102into the already existing plumbing outlet. There is apparently

1111a dispute over whether he was to install cabinets. The

1121Respondent maintains that Ms. Wilson was to purchase and have

1131installed the cabinets. It is therefore debatable, and not

1140clear from the evidence of record, whether the Respondent is

1150indeed still owed money by Ms. Wilson, or whether he charged

1161more money for his work during the course of the project than

1173they had agreed to and therefore owes her a refund. In any

1185event, the monetary dispute is not of direct relevance to the

1196question of the violations charged in the Administrative

1204Complaint.

120513. The Department adduced testimony of its investigator

1213concerning investigative costs. She thus testified that she had

1222no recollection of how many hours or how much time she had

1234expended in investigating the case culminating in the

1242Administrative Complaint. She testified that she relied on a

1251computer time-tracking program of the Department. But no such

1260record was offered into evidence, nor the custodian of such

1270record to testify. Consequently, the cost figure asserted by

1279the Department as investigative cost for this proceeding of

1288$520.18 has not been proven by persuasive, competent evidence.

1297CONCLUSIONS OF LAW

130014. The Division of Administrative Hearings has

1307jurisdiction of the subject matter of and the parties to this

1318proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2007).

132615. Section 455.228, Florida Statutes, empowers the

1333Department to impose discipline on any person found to be in

1344violation of Sections 489.127(1) and 489.531(1), Florida

1351Statutes, as pertinent to this Administrative Complaint and

1359proceeding.

136016. The Petitioner/Department has the burden of

1367establishing the violations charged by clear and convincing

1375evidence. Section 120.57(1)(j), Florida Statutes; Ferris v.

1382Turlington , 510 So. 2d 292 (Fla. 1987); and Department of

1392Banking and Finance Division of Securities and Investor

1400Protection v. Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996).

1412The court in Evans Packing Co. v. Department of Agriculture and

1423Consumer Services , 550 So. 2d 116 at Fn. 5 (Fla. 1st DCA 1989)

1436declared this standard of proof as requiring that the evidence

1446must be credible, the facts to which a witness is testifying

1457must be distinctly remembered, precise and explicit and the

1466witnesses must be lacking in confusion as to those facts. The

1477evidence must of sufficient weight to produce in the mind of the

1489trier of fact a firm belief as to the truth of the allegation

1502sought to be established. See Slomowitz v. Walker , 429 So. 2d

1513797, 800 (Fla. 4th DCA 1983).

151917. The Respondent is alleged to have violated Section

1528489.127, Florida Statutes, which provides, in pertinent part,

1536that:

1537(1) No person shall:

1541* * *

1544(f) Engage in the business or act in the

1553capacity of a contractor or advertise

1559himself or herself or a business

1565organization as available to engage in the

1572business or act in the capacity of a

1580contractor without being duly registered or

1586certified or having a certificate of

1592authority; . . .

159618. Section 489.105(3), Florida Statutes, defines a

1603contractor as:

1605. . . the person who, for compensation,

1613undertakes to, submits a bid to, or does

1621himself or herself or by others construct,

1628repair, alter, remodel, add to, demolish,

1634subtract from, or improve any building or

1641structure, including related improvements to

1646real estate, for others or for resale to

1654others . . . .

165919. Section 489.105(6), Florida Statutes, provides in

1666relevant part:

1668(6) "Contracting" means, except as exempted

1674in this part, engaging in business as a

1682contractor and includes, but is not limited

1689to, performance of any of the acts as set

1698forth in subsection (3) which define types

1705of contractors. The attempted sale of

1711contracting services and the negotiation or

1717bid for a contract on these services also

1725constitutes contracting. If the services

1730offered require licensure or agent

1735qualification, the offering, negotiation for

1740a bid, or attempted sale of these services

1748requires the corresponding licensure.

175220. The Petitioner has established by clear and convincing

1761evidence that the Respondent violated Section 489.127(1)(f),

1768Florida Statutes, by practicing contracting or advertising

1775himself or a business organization as being available to engage

1785in contracting when he did not have a certification or

1795registration. He submitted a "Quotation" or contract, to

1803Carolyn Wilson without being registered or certified as a

1812contractor and offered to perform the kitchen remodeling project

1821at issue at her home in St. Petersburg. The scope of work

1833included the above-found elements of the project that are indeed

1843regulated by Chapter 489, Florida Statutes, and constitutes

1851structural contracting and electrical work (the evidence does

1859not establish that the Respondent engaged in any plumbing work).

186921. The Complaint alleges that the Respondent violated

1877Section 489.531(1), Florida Statutes, which provides, in

1884pertinent part, that a person may not:

1891(1) Use the name or title "electrical

1898contractor" or "alarm system contractor" or

1904words to that effect, or advertise herself

1911or himself or a business organization as

1918available to practice electrical or alarm

1924contracting, when the person is not then the

1932holder of a valid certification or

1938registration issued pursuant to this part.

194422. Section 489.505(12), Florida Statutes, defines an

1951electrical contractor, in pertinent part as the following:

1959A person who conducts business in the

1966electrical trade field and who has the

1973experience, knowledge, and skill to install,

1979repair alter, add to, or design, in

1986compliance with law, electrical wiring,

1991fixtures, appliances, apparatus, raceways,

1995conduits, or any part thereof, which

2001generates, transmits, transforms, or

2005utilizes electrical energy in any form ,

2011including the electrical installations and

2016systems within plants and substations, all

2022in compliance with applicable plans,

2027specifications, codes, laws and regulations.

2032The term means any person, firm, corporation

2039that engages in the business of electrical

2046contracting under an express or implied

2052contract; or that undertakes, offers to

2058undertake, purports to have the capacity to

2065undertake, or submits a bid to engage in the

2074business of electrical contracting; or that

2080does itself or by or through others engage

2088in the business of electrical contracting.

2094(emphasis added).

209623. In accordance with Sections 489.105(6) and 489.505(9),

2104Florida Statutes, the attempted sale of construction and

2112electrical contracting services and the negotiation for a

2120contract regarding those services constitutes contracting.

212624. The Petitioner has established that the Respondent

2134violated Section 489.531(1), Florida Statutes, by practicing

2141electrical contracting or advertising himself to be available to

2150engage in such contracting without the proper certification or

2159registration. He contracted to perform electrical work

2166consisting of installation of at least some of the 10 recessed

2177lights ordered by Carolyn Wilson to be installed at her

2187residence in St. Petersburg, Florida. Additionally, he

2194installed at least some of the outlets required by Ms. Wilson,

2205even if the installation was very simple, involving only

2214screwing wires into the new outlets. Such comes within the

2224above definition of installing, repair, altering or adding to

2233electrical wiring, fixtures, appliances, apparatus, etc. for

2240purposes of the above statutory definition.

224625. It is also apparent, from clear and convincing

2255evidence of record, that this electrical work was of quite a de

2267minimus nature, even though it comes within the above

2276definition. It was simple, limited in scope and quite easily

2286within the skills of a person not certified in electrical

2296contracting. Accordingly, a minimum penalty for this portion of

2305the work is warranted.

230926. Section 489.103, Florida Statutes, provides as

2316follows:

2317489.103 Exemptions.--This part does not

2322apply to:

2324(9) Any work or operation of a casual,

2332minor, or inconsequential nature in which

2338the aggregate contract price for labor,

2344materials, and all other items is less than

2352$1,000, but this exemption does not apply:

2360(a) If the construction, repair,

2365remodeling, or improvement is a part of a

2373larger or major operation, whether

2378undertaken by the same or a different

2385contractor, or in which a division of the

2393operation is made in contracts of amounts

2400less than $1,000 for the purpose of evading

2409this part or otherwise.

2413(b) To a person who advertises that he or

2422she is a contractor or otherwise represents

2429the he or she is qualified to engage in

2438contracting.

243927. Florida Administrative Code Rule 61G4-12.011 states:

2446* * *

2449(2) For purposes of the exemption provided

2456by Section 489.103(9), Florida Statutes,

2461activities which are not casual, minor, or

2468inconsequential, include, but are not

2473limited to, any work affecting structural

2479components, any work involving use of toxic

2486or hazardous chemicals or substances, any

2492work affecting access or egress to a

2499structure, any work affecting accommodations

2504for the physically disabled, any work for

2511which a building permit is required and any

2519work affecting life-safety matters as

2524defined in the applicable building codes.

253028. The exception provided for in Section 489.103(9) does

2539not apply to the unlicensed contracting situation at issue

2548because the contract price was clearly much higher than

2557$1,000.00 and the structural work contracted for required the

2567issuance of permits by the City of St. Petersburg. The plumbing

2578work alleged may have as well, although it is not established

2589that the Respondent performed any plumbing work.

259629. Chapter 489, Part II as applied to electrical

2605contracting, does not contain any "handyman exception."

2612Additionally, the handyman license issued to the Respondent by

2621the City of Sanford clearly does not give the Respondent the

2632right to perform any contracting of structural work, electrical

2641work, or plumbing work in the City of St. Petersburg, even if

2653the contract price had been less than $1,000.00.

266230. In summary, the Respondent is clearly engaged in

2671contracting without the proper certification and registration

2678for both structural contracting and electrical contracting,

2685although the electrical contracting was of a de minimus nature.

2695The allegations concerning plumbing as a phase of contracting

2704performed by the Respondent have not been established by clear

2714and convincing evidence. The most the Respondent may have

2723agreed to do was to connect the dishwasher to existing plumbing

2734in the kitchen in question, which involved only screwing the

2744pipe on the dishwasher to the pipe coming out of the wall. Such

2757does not constitute plumbing contracting.

276231. In accordance with Section 455.228, Florida Statutes,

2770the Department may impose an administrative penalty not

2778exceeding $5,000.00 per incident and is entitled to recover the

2789costs of the investigation if proven. Because the electrical

2798contracting at issue was of a de minimus in nature, in terms of

2811the scope of the work (and therefore the potential risk to the

2823homeowner), and because no plumbing contracting was proven to

2832have been actually performed, the penalty should be reduced by a

2843reasonable amount for these contingencies. In view of this and

2853counter balanced by the fact that substantial construction

2861contracting or structural contracting was performed by the

2869Respondent in terms of a hardwood flooring job for which he was

2881paid approximately $15,400.00, as well as additional monies

2890amounting in total to some $17,000.00 or $18,000.00 dollars, a

2902significant penalty for such work is warranted. No competent

2911persuasive proof of the amount of investigative costs has been

2921established, however.

2923RECOMMENDATION

2924Having considered the foregoing Findings of Fact,

2931Conclusions of Law, the evidence of record, the candor and

2941demeanor of the witnesses, and the pleadings and arguments of

2951the parties, it is, therefore,

2956RECOMMENDED that a final order be entered by the Department

2966of Business and Professional Regulation finding that the

2974Respondent violated Sections 489.127(1)(7) and 489.531(1),

2980Florida Statutes, and imposing an administrative penalty in the

2989amount of $2,000.00.

2993DONE AND ENTERED this 29th day of August, 2008, in

3003Tallahassee, Leon County, Florida.

3007S

3008P. MICHAEL RUFF

3011Administrative Law Judge

3014Division of Administrative Hearings

3018The DeSoto Building

30211230 Apalachee Parkway

3024Tallahassee, Florida 32399-3060

3027(850) 488-9675 SUNCOM 278-9675

3031Fax Filing (850) 921-6847

3035www.doah.state.fl.us

3036Filed with the Clerk of the

3042Division of Administrative Hearings

3046this 29th day of August, 2008.

3052COPIES FURNISHED :

3055Sorin Ardelean, Esquire

3058Department of Business and

3062Professional Regulation

30641940 North Monroe Street

3068Tallahassee, Florida 32399

3071Ned Luczynski, General Counsel

3075Department of Business and

3079Professional Regulation

3081Northwood Centre

30831940 North Monroe Street

3087Tallahassee, Florida 32399-0792

3090Nancy S. Terrel, Hearing Officer

3095Office of the General Counsel

3100Department of Business and

3104Professional Regulation

3106Northwood Centre

31081940 North Monroe Street

3112Tallahassee, Florida 32399-0792

3115Barry Rigby, Esquire

3118Law Offices of Barry Rigby, P.A.

3124924 North Magnolia Avenue, Suite 319

3130Orlando, Florida 32803

3133G.W. Harrell, Executive Director

3137Construction Industry Licensing Board

3141Department of Business and

3145Professional Regulation

31471940 North Monroe Street

3151Tallahassee, Florida 32399-0792

3154NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

3160All parties have the right to submit written exceptions within

317015 days from the date of this Recommended Order. Any exceptions

3181to this Recommended Order should be filed with the agency that

3192will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 10/08/2008
Proceedings: Final Order filed.
PDF:
Date: 10/07/2008
Proceedings: Agency Final Order
PDF:
Date: 08/29/2008
Proceedings: Recommended Order
PDF:
Date: 08/29/2008
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 08/29/2008
Proceedings: Recommended Order (hearing held May 29, 2008). CASE CLOSED.
PDF:
Date: 07/09/2008
Proceedings: Respondent`s Proposed Order filed.
PDF:
Date: 07/02/2008
Proceedings: Petitioner`s Proposed Recommended Order filed.
Date: 06/23/2008
Proceedings: Transcript of Proceedings filed.
Date: 05/29/2008
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 05/19/2008
Proceedings: Joint Pre-hearing Stipulation filed.
PDF:
Date: 04/30/2008
Proceedings: Notice of Service of Petitioner`s Exhibits and Witnesses List filed.
PDF:
Date: 03/26/2008
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 03/26/2008
Proceedings: Notice of Hearing (hearing set for May 29, 2008; 10:00 a.m.; Tampa, FL).
PDF:
Date: 03/11/2008
Proceedings: Joint Response to Initial Order filed.
PDF:
Date: 03/04/2008
Proceedings: Initial Order.
PDF:
Date: 03/03/2008
Proceedings: Election of Rights filed.
PDF:
Date: 03/03/2008
Proceedings: Administrative Complaint filed.
PDF:
Date: 03/03/2008
Proceedings: Agency referral filed.

Case Information

Judge:
P. MICHAEL RUFF
Date Filed:
03/03/2008
Date Assignment:
03/04/2008
Last Docket Entry:
10/08/2008
Location:
Tampa, Florida
District:
Middle
Agency:
ADOPTED IN TOTO
 

Counsels

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