10-001148 Department Of Business And Professional Regulation vs. Donald Whyte Status: Closed Recommended Order on Tuesday, September 28, 2010.

Summary: Respondent acted as a contractor and an electrical contractor without being licensed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION , )

)

Petitioner , )

)

vs. ) Case No. 10 - 1148

)

DONALD WHYTE , )

)

Respondent . )

)

RECOMMENDED ORDER

On July 26, 2010, an administrative hearing in this case

was held by video tele conference between Tallahassee and

Orlando, Florida, before William F. Quattlebaum, Administrative

Law Judge, Divisi on of Administrative Hearings.

APPEARANCES

For Petitioner: Maura M. Bolivar, Esquire

Leigh Matchett, Qualified Representative

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399 - 2202

For Respondent: Donald Whyte , pro se

6811 Thousand Oaks Road

Orlando, Florida 32818

STATEMENT OF THE ISSUE S

The issue s in the case are whether the allegations of the

Administrative Complaint are correct, and, if so, w hat penalty

should be imposed.

PRELIMINARY STATEMENT

On November 25, 2009, the Department of Business and

Professional Regulation (Petitioner) filed a two - count

Administrative Complaint against Donald Whyte (Respondent). The

complaint essentially alleged that the Respondent, without being

properly licensed, acted as a contractor and an electrical

contractor when providing home repair services to the owner of

residential properties in Orlando, Florida. The Respondent

denied the allegations and requested a formal hearing. The

Petitioner forwarded the request to the Division of

Admini strative Hearings, which scheduled and conducted the

proceeding.

At the hearing, the Petitioner presented the testimony of

one live witness and the video - deposition testimony of a second

witness (admitted as an e xhibit) and had Exhibits 1 through 4 ,

10 , an d 11 admitted into evidence. The Responden t testified on

his own behalf.

The T ranscript of the hearing was filed on August 12, 2010.

The Petitioner thereafter sought and received an extension to

the deadline for filing a p roposed r ecommended o rder. The

Petitioner's Proposed Recommended Order was filed on August 26,

2010.

FINDINGS OF FACT

1. The Petitioner is the state agency responsible for

licensure and regulation of contractors and electrical

contractors operatin g within the State of Florida.

2. During the period at issue in this case, the Respondent

was not licensed as a contractor o r as an electrical contractor.

3. Beginning in 2003, the Respondent provided home

remodeling and repair services for houses owned by Ms. Enid

Shaw. Ms. Shaw, a resi dent of New York who visits Florida

regularly, apparently planned to permanently relocate to Flori da

at some time in the future.

4. The Respondent met Ms. Shaw during one of Ms. Shaw's

visits to Florida, when he was working on the house o f an

acquaintance of Ms. Shaw.

5. Between 2003 and 2006, Ms. Shaw paid approximately

$30,000 .00 to the Respondent for the work he performed on her

homes. Some of the work performed by the Respondent was outside

the jurisdiction of the Petitioner.

6. The Respondent submi tted written estimates and invoices

to her and, other than a $3,500 .00 wire transfer referenced

elsewhere herein, Ms . Shaw paid the Respondent by personal

check. Ms. Shaw did not obtain receipts from the Respondent,

but retained the estimates, invoices, a nd the processed checks.

7. Ms . Shaw owned a house located at 3411 Silverwood

Drive, Orlando, Florida (hereinafter "Silverwood") , and desired

to have some repair work performed on the house. Ms. Shaw

contacted the Respondent who agreed to meet her at th e

Silver wood house and tour the house.

8. As they walked through the house, the Respondent made

suggestions about how to remedy the deficiencies in the

structure. They agreed that he would commence the repair work.

Because she did not reside locally, Ms. Shaw was not always

present at the home when the work was being done, and she

provided a key to the Respondent so that he c ould enter in her

absence.

9. There were water stains on the family room ceiling, and

Ms. Shaw knew that , when it rained, water came through the

ceiling and would be collected in buckets. The Respondent

advised Ms. Shaw that the roof was leaking a nd offered to repair

the roof.

10. Roof repairs were supposedly made, but the roof

continued to leak during rain. The Respondent event ually called

Ms. Shaw and told her that the entire roof needed to be

replaced, that he had already ordered the materials required to

replace the roof, that he had already secured the services of an

assistant, and that the roof replacement would commence on the

day following the tele phone call. He informed Ms. Shaw that ,

because the work was commencing immediately, he needed to have

payment by a w ire transfer into his account.

11. Ms. Shaw wired $3,500 .00 to the Respondent's bank

account as requested by th e Respondent, but the Respondent did

not replace the Silverwood roof on the next day, or on any other

day.

12. When the roof repair did not occur, Ms. Shaw began to

ask for the return of the $3,500 .00 , but the Respondent failed

to return the money. Thoug h he did not explain his entitlement

to retain the money, the Respondent told Ms. Shaw that someone

to whom he had loaned his truck had abandoned the vehicle and

that his tools had been stolen from the t ruck.

13. There was no evidence to suggest that the Respondent

was entitled to retain the $3,500 .00 transfer from Ms. Shaw to

his bank account. The Respondent did not replace Ms. Shaw's

ro of or return the funds to her.

14. Additionally, the Respondent performed other work for

Ms. Shaw at the Silverwood ho me. The Respondent installed a

ceiling fan purchased by Ms. Shaw to replace one supposedly

removed by previous residents from the Silverwood dining room.

Ms. Shaw observed the Respondent turn off the power to the house

and connect the fan to t he existing electrical wiring.

15. The Respondent also repaired a range hood ventilation

fan and replaced a leaking fau cet in the Silverwood kitchen.

16. Ms. Shaw owned a house located at 6001 Denson Drive,

Orlando, Florida (hereinafter "Denson") . She asked the

Re spondent to perform repairs on the Denson property, and, as

they had done at the Silverwood house, they toured the home , and

the Respondent made suggestions as to th e work that needed to be

done.

17. The Den s on roof was not functioning properly. The

ceil ing was water - stained in several rooms , and a wall in the

screen porch was water - damaged. The Respondent repaired the

roof deficiencies and the damage caused to the house by the

water intrusion. Although Ms. Shaw was not always present at

the time of the se repairs, she observed the Respondent on one

occasion taking a container of an otherwise unidentified black

substance to the r oof to patch one of the leaks.

18. The interior water damage repaired by the Respondent

included removal and reinstallation of ceiling fans and light

fixtures in the rooms where the ceiling was repaired.

19. The stove in the Denson kitchen was not functional,

and Ms . Shaw purchased a replacement appliance. Although the

stove purchased by Ms. Shaw apparently had an electrical plug

incompatible with the existing outlet, Ms. Shaw observed the

Respondent install the appliance by cutting into the stove's

electrical cord a nd splicing the wiring into the existing

outlet, after turning off the power to the hou se.

20. Ms. Shaw was also present when the Respondent

installed a jetted bathtub into an area previously occupied by a

bathroom shower stall. The installation included turning off

the water supply and the removal and replacement of plumbing

lines.

21. At the hearing, Ms. Shaw admitted that the tub she

bought was incorrect for the installation location, apparently

because the repair access area was on the wrong side of the tub

and placed against a wall. She complained that the Respondent

installed it nonetheless and that any repairs to the tub will

require removal o f a portion of a bedroom wall.

22. Ms. Shaw also observed the Respondent remove and

replace a bathro om to ilet at the Denson house.

23. The Petitioner asserted that the Respondent replaced a

malfunctioning swimming pool "generator" at the Denson house ,

but the testimony presented on this issue was not sufficient to

establish the actual nature of the pool equipment replac ed, if

any, by the Respondent.

24. The Petitioner also asserted that the Respondent

replaced an electric garage door opener at the Den son house, but

the evidence failed to establish that the Respondent did

anything other than replace an existing opener with a new opener

and plug the power unit into an existing electrical outlet.

25. Ms. Shaw owned a house located at 5006 Tam Drive,

Orl ando, Florida (hereinafter "Tam") . As at the other houses,

Ms. Shaw asked the Respondent to tour the property and make the

repairs on which they agreed.

26. At the Tam house, the Respondent replac ed a bathroom

toilet and sink.

27. As at the Denson house , the Petitioner asserted that

the Respondent replaced an electric garage door opener at the

Tam house, but the evidence again failed to establish that the

Respondent did anything other than replace the existing opener

with a new one and plug the power uni t into an existing

electrical outlet.

28. There is no credible evidence that Ms. Shaw ever asked

the Respondent whether he was licensed by the Petitioner;

however , based on the Respondent's statements related to another

customer, she believe d he had some sort of license.

CONCLUSIONS OF LAW

29. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. §§ 120.569 and 120.57 , Fla . Stat . (2010).

30. The Petitioner has the burden of proving by clear a nd

convincing evidence the allegations set forth in the

Administrative Complaint against the Respondent. Department of

Banking and Finance v. Osborne Stern and Company , 670 So . 2d

932, 935 (Fla. 1996) ; Ferris v. Turlington , 510 So. 2d 292 (Fla.

1987). Clear and convincing evidence is that which is credible,

precise, explicit , and lacking confusion as to the facts in

issue. The evidence must be of such weight that it produces in

the mind of the trier of fact the firm belief of conviction,

without hesita ncy, as to the truth of the allegations.

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

As set forth he rein, the burden has been met.

31. Florida Statutes (2003 - 2006) set forth the fo llowing

applicable provisions.

32. Section 489.105, Fl orida Statutes, provides the

following relevant definitions:

(3) "Contractor" means 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. For the

purposes of regulation under this part,

"demolish" applies only to demolition of

steel tanks over 50 feet in he ight; towers

over 50 feet in height; other structures

over 50 feet in height, other than buildings

or residences over three stories tall; and

buildings or residences over three stories

tall. . . .

* * *

(6) " Contracting" means, except as exempted

in this part, engaging in business as a

contractor and includes, but is not limited

to, performance of any of the acts as set

forth in subsection (3) which define types

of contractors. The attempted sale of

contracting services and the negotiatio n or

bid for a contract on these services also

constitutes contracting. If the services

offered require licensure or agent

qualification, the offering, negotiation for

a bid, or attempted sale of these services

requires the corresponding licensure.

Howeve r, the term "contracting" shall not

extend to an individual, partnership,

corporation, trust, or other legal entity

that offers to sell or sells completed

residences on property on which the

individual or business entity has any legal

or equitable interest , if the services of a

qualified contractor certified or registered

pursuant to the requirements of this chapter

have been or will be retained for the

purpose of constructing such residences.

(Emphasis supplied)

33. S ubs ection s 489.505(9) and (12) , Flor ida Statutes,

provides , in relevant part , as follows:

489.505 Definitions. -- As used in this part :

* * *

(9) " Contracting" means , except where

exempted in this part, engaging in business

as a contractor or performing electrical or

alarm work for compensation and includes,

but is not limited to, performance of any of

the acts found in subsections (2) and (12),

which define the services which a contractor

is allowed to perform. The attempted sale

of contracting services and the negotiation

or bid for a contract on these services also

constitutes contracting. If the services

offered require licensure or agent

qualification, the offering, negotiation for

a bid, or attempted sale of these services

requir es the corresponding licensure.

* * *

(12) " Electrical contractor" or "unlimited

electrical contractor" means a person who

conducts business in the electrical trade

field and who has the experience, knowledge,

and skill t o install, repair, alter, add to,

or design, in compliance with law,

electrical wiring, fixtures, appliances,

apparatus, raceways, conduit, or any part

thereof, which generates, transmits,

transforms, or utilizes electrical energy in

any form, including th e electrical

installations and systems within plants and

substations, all in compliance with

applicable plans, specifications, codes,

laws, and regulations. The term means any

person , firm, or corporation that engages in

the business of electrical contrac ting under

an express or implied contract; or that

undertakes, offers to undertake, purports to

have the capacity to undertake, or submits a

bid to engage in the business of electrical

contracting; or that does itself or by or

through others engage in the business of

electrical contracting . (Emphasis supplied)

34. The evidence in this case establishes that the

Respondent acted as a contractor and an electrical contractor in

performing home repair services at the houses owned by Ms. Shaw.

The services pr ovided by the Respondent included repairs to

roofing, plumbing , and electrical systems.

35. S ubs ection 489.113(2) , Florida Statutes, provides , in

relevant part , as follows:

No person who is not certified or registered

shall engage in the business of contracting

in this state. However, for purposes of

complying with the provisions of this

chapter, a person who is not certified or

registered may perform construction work

under the supervision of a person who is

certified or registered, provided that th e

work is within the scope of the supervisor's

license and provided that the person being

supervised is not engaged in construction

work which would require a license as a

contractor under any of the categories

listed in s. 489.105 (3)(d) - (o). (Emphasis

su pplied )

36. Section 489.127, Florida Statutes, provides, in

relevant part , as follows:

(1) No person shall:

* * *

(f) Engage in the business or act in the

capacity of a contractor or advertise

himself or herself or a business

organization as available to engage in the

business or act in the capacity of a

contractor without being duly registered or

certified or having a certificate of

authority . . . . (Emphasis supplied)

37. S ubs ection 489.531(1) , Florida Statutes, provides , in

relevant par t , as follows:

489.531 Prohibitions; penalties. --

(1) A person may not :

(a) Practice contracting unless the person

is certified or registered;

(b) Use the name or title "electrical

contractor" or "alarm system contractor" or

words to that effect, or advertise himself

or herself or a business organization as

available to practice electrical or alarm

system contracting, when the person is not

then the holder of a valid certification or

registration issued pursuant to this part;

(c) Present as his or her own the

certificate or registration of another;

(d) Use or attempt to use a certificate or

registration that has been suspended,

revoked, or pl aced on inactive or delinquent

status;

(e) Employ persons who are not certified or

regi stered to practice contracting;

(f) Knowingly give false or forged evidence

to the department, the board, or a member

thereof;

(g) Operate a business organization engaged

in contracting after 60 days following the

termination of its only qualifying agent

without designating an other primary

qualifying agent;

(h) Conceal information relat ive to

violations of this part;

(i) Commence or perform work for which a

buil ding permit is required pursuant to

part VII of chapter 553 without the buil ding

permit being in effect; or

(j) Willfully or deliberately disregard or

violate any municipal or county ordinance

relating to uncertified or unregistered

c ontractors. (Emphas is supplied )

38. The evidence establishes that at no time relevant to

this proceeding was the Respondent properly registered,

certified or license d as a contractor of any type.

39. Although Ms. Shaw testified about the alleged poor

quality of the repair work performed by the Respondent , there

were no quality - related allegations set forth in the

Administrative Complaint at issue in this proceeding , and such

allegations have not been addressed herein. It must be noted

that there was no evidence to establi sh any basis for crediting

Ms. Shaw's testimony regarding the quality of the roofing,

plumbing or electrical system repairs made by the Respondent.

It must also be noted that Ms. Shaw employed the Respondent for

a period of years, presumably satisfied wit h the quality of work

bei ng performed during that time.

40. The Petitioner's Proposed Recommended Order seeks to

impos e of a penalty of $15,000 .00 for the two counts of the

complaint and to assess costs of $2,264.60.

41. Although (as noted in the Petitio ner's Proposed

Recommended Order) the disciplinary guidelines applicable to

these violations were adopted after the period relevant to this

proceeding, they are an indication of the range of penalties

that may be appropriate for the statutory violations se t forth

herein. The current guidelines are set forth at Florida

Administrative Code Rule 61 - 5.007 and provide as follows:

61 - 5.007 Disciplinary Guidelines for

Unlicensed Activity.

(1) In imposing disciplinary penalties upon

unlicensed persons, the Department of

Business and Professional Regulation

(hereinafter, ÐDepartmentÑ) shall act in

accordance with the following disciplinary

guidelines and shall impose a penalty

consistent herewit h absent the application

of aggravating or mitigating circumstances

and subject to the provisions of

Sections 455.228 and 489.13, F.S.

(2) For the purpose of this rule, the term

ÐlicenseÑ shall mean the professional

license, registration, certificate or

certification issued by the Department to

authorize the practice of a profession

pursuant to a professional practice act

administered by the Department.

(3) All penalties established herein are

for each count or separate violation found.

(4) For using a professional title or

designation without holding the requisite

license to do so, the following penalties

shall apply:

(a) First violation - Î $1000 administrative

fine;

(b) Second violation - Î $2500 administrative

fine; and

(c) Third and subsequent vi olations - Î $5000

administrative fine.

(5) For advertising or offering to practice

a profession without holding the requisite

license to do so, the following penalties

shall apply:

(a) First violation - Î $1500 administrative

fine;

(b) Second violation - Î $ 3000 administrative

fine; and

(c) Third and subsequent violations - Î $5000

administrative fine.

(6) For practicing a profession without

holding the requisite license to do so, the

following penalties shall apply:

(a) First violation - Î $3000 administrative

fine;

(b) Second violation - Î $4000 administrative

fine; and

(c) Third and subsequent violations - Î $5000

administrative fine.

(7) Notwithstanding the foregoing,

violations of Section 489.127(1), F.S., may

result in the imposition of a $10, 000

administrative fine.

(8) Circumstances which may be considered

for the purposes of mitigation or

aggravation of the foregoing penalties shall

include the following:

(a) Monetary or other damage to the

unlicensed personÓs customer and/or other

perso ns, in any way associated with the

violation, which damage the unlicensed

person has not relieved as of the time the

penalty is to be assessed.

(b) The severity of the offense.

(c) The danger to the public.

(d) The number of repetitions of offenses.

(e) The number of complaints filed against

the unlicensed person.

(f) The length of time the unlicensed

person has been engaging in unlicensed

activity.

(g) The actual damage, physical or

otherwise, to the unlicensed personÓs

customer.

(h) The deterrent effect of the penalty

imposed.

(i) The effect of the penalty upon the

unlicensed personÓs livelihood.

(j) Any efforts at rehabilitation.

(k) The unlicensed personÓs use of an

altered license or impersonation of a

licensee.

(9) The di sciplinary guidelines established

by this rule are only applicable to final

orders issued by the Secretary of the

Department or his/her appointed designee.

42. The Administrative Complaint filed in this case

included one count of violating S ubs ection 489 .127(1)(f),

Florida Statutes, by engaging in the unlicensed practice of

contracting, and a second count of violating S ubs ection

489.531(1), Florida Statutes, by engaging in the unlicensed

pract ice of electrical contracting.

43. As to aggravating or mitiga ting circumstances, there

was no evidence presented that the Respondent has been the

subject of prior disciplinary action. There was no evidence

that the Respondent has been the subject of prior complaints or

that he presents a danger to the public. Ther e was no evidence

that any actual damage resulted from the work the Respondent

performed on Ms. Shaw's properties, and the asserted potential

for damage caused by the Respondent's repairs, including the

splicing of a stove's electrical connection, was spec ulative.

There was no credible evidence that Ms. Shaw requested to see a

license or that the Respondent displayed an altered license.

The evidence established that the violations had continued for a

period of years. The effect of a penalty on the Respon dent's

livelihood is unknown. There have been no efforts at

rehabilitation; to the contrary, the Respondent's testimony

about his interactions with Ms. Shaw was self - serving and lacked

credibility. Consideration of aggravating and mitigating

circumstance s does not warrant variance from t he adopted penalty

guidelines.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Business and

Professional Regulation enter a f inal o rder finding that

Donald Whyte violated S ubs ection 489.126(1), Florida Statutes,

and imposing a fine of $10,000 .00 , and , further , violated

S ubs ection 489.531(1) , Florida Statutes, and imposing a fine of

$3,000 .00 , for a total administrative fine of $13,000 .00 .

DONE AND ENT ERED this 2 8 th day of September , 2010 , in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 8 th day of September , 2010 .

COPIES FURNISHED :

Maura M. Bolivar, Esquire

Leigh Matchett, Qualified Representative

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399 - 2202

Donald Whyte

6811 Thousand Oaks Road

Orlando, Florida 32818

Amy Toman, Hearing Officer

Office of the General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Reginald Dixon, 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 age ncy that

will issue the Final Order in this case.