10-006134 Department Of Business And Professional Regulation vs. Earnest Knight Status: Closed Recommended Order on Monday, February 7, 2011.

Summary: Respondent is guilty of unlicensed contracting. Recommend $2,000 fine, and $195.49 in investigative costs.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. ) Case No. 10 - 6134

)

EARNEST KNIGHT, )

)

Respondent. )

)

RECOMMENDED O RDER

Upon due notice, a disputed - fact hearing was held in this

case on November 12 , 20 10 , in Tallahassee , Florida, before

W. David Watkins, a duly - assigned Administrative Law Judge of

the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Mark Steven Miller , Esquire

Susan Leigh Matchett, Qualified Rep.

Department of Business and

Professional Regulation

1940 North Monroe Street , S uite 42

Tallahassee, Florida 32399 - 2202

For Respondent: Ernest Knight , pro se

3301 Sunnyside Drive

Tallahassee , Florida 32 305

STATEMENT OF THE ISSUE

Whether disciplinary action should be taken against

Respondent based on alleged violations of s ection 489.127(1)( f) 1 ,

Florida Statutes, as charged in the Administrati ve Complaint.

PRELIMINARY STATEMENT

On September 24, 2009, Petitioner Department of Business

and Professional Regulation ( Ð DBPR" or Ð Petitioner Ñ ) issued an

Administrative Complaint against Respondent, Earnest Knight

( Ð Respondent Ñ ). The complaint alleged that Respondent had

violated s ection 489.127(1)(f), by engaging in the unlicensed

practice of contracting.

On July 23, 2010, Respondent filed a R equest for an

A dministrative H earing. That same day, P etitioner referred the

request to the Division of Admi nistrative Hearings , where it was

assigned to the undersigned for the conduct of a formal

administrative hearing.

The final hearing was duly noticed for October 8, 2010, but

during a prehearing conference held on October 6, 2010 ,

Respondent moved ore tenu s for a continuance. That motion was

granted and the hearing rescheduled for November 12, 2010.

At the hearing, Petitioner presented the testimony of two

witnesses: Laitima Wilson - Montgomery, homeowner; and Cathy

Jackson, DBPR Investigative Specialist I I. Petitioner's

Exhibits P - 2 through P - 15, P - 17, P - 18, P - 20 and P - 21 were

admitted in evidence. At the request of Petitioner, official

recognition was taken of s ections 455.228, 489.105(3),

489.105(6), 489.113(2), and 489.127(1)(f), Florida Statutes.

R espondent testified at the hearing and his exhibits R - 1

and R - 2 were received in evidence.

The two - volume transcript of the hearing was filed with the

Division on December 1, 2010. Both Petitioner and Respondent

filed Proposed Recommended Orders, and tho se Proposed

Recommended Orders have been given due consideration in the

rendition of this Recommended Order.

FINDINGS OF FACT

1 . Petitioner DBPR is the s tate a gency charged with

regulating the practice of contracting, pursuant to s ection

20.165, Florida Statutes, and c hapters 455 and 489, p art I,

Florida Statutes.

2 . Petitioner has jurisdiction over the unlicensed

practice of contracting, pursuant to s ection 455.228.

3 . At all times material, Resp ondent, Earnest Knight , was

not licensed, nor had he e ver been licensed by the s tate of

Florida to engage in contracting. At some point in the past

Respondent had taken the state exam required for licensure but

had not passed it.

4 . In early June 2007, Respondent met with Izell

Montgomery and Laitima Wilso n - Montgomery ( Ð the Montgomerys Ñ ) to

discuss building an addition to, and remodeling , the

Montgomery Ó s home in Tallahassee, Florida. According to the

unrebutted testimony of Respondent, the Montgomerys initiated

the contact. 2 / There is conflicting testimo ny as to whether

Respondent represented himself as a licensed contractor to the

Montgomerys at this initial meeting or at any subsequent time. 3 /

However, he did give the Montgomerys one of his business cards

bearing the name "Knight Construction Services , " drawings of a

mason and a carpenter , and his contact information.

5 . Although the record is clear that no written contract

existed at the commencement of the project, the testimony again

conflicts as to whether a verbal contract was joined before the

w ork began, and more important , what role Respondent was to play

in bringing the project to fruition. According to the

Montgomerys, Respondent was to serve as the general contractor

of the project and in that capacity be responsible for entering

into subco ntracts for certain aspects of the project a s well as

overall supervision of the project. According to Respondent,

his role was to "assist" the Montgomerys in the construc tion of

their owner - built project . I n return, he was to be compensated

for his time .

6 . The project was a two - story addition to an existing

home that would include the enlargement of the master bedroom

upstairs and the enlargement of the kitchen downstairs. The

successful completion of the project would entail foundation

work, structu ral framing, heating and air - conditioning system

work, electrical system work, roofing , and plumbing.

7 . On September 14, 2007, Mrs. Montgomery and Respondent

went together to the City of Tallahassee Growth Management

Office and applied for , and obtained , an "owner - built" building

permit. According to Mrs. Montgomery, Respondent explained that

the permitting process would be quicker if she applied for the

permit as an owner - builder as opposed to Respondent applying as

a general contractor.

8 . An owner - builder permit allows the work to be performed

b y or under the direct onsite supervision of the owner of the

building. It does not allow the work to be delegated by the

owner to an unlicensed contractor, such as Respondent.

9 . On October 30, 2007 , Respo ndent received a proposal

from Jack Bryant for the structural framing work on the project .

The quoted price for the framing work was $10,000.00 . T he

proposal was evidently accepted by Respondent since Bryant began

the framing work on the project sometime thereafter . However,

followin g a heated disagreement 4 / between Respondent and

Mr. Bryant , Re spondent terminated the relationship with him .

10 . On December 22, 2007, Mrs. Montgomery wrote a check

for $700.00 to Respondent with the intention that it be used to

pay Mr. Bryant for the work he had performed prior to his

termination. In fact, Mr. Bryant was paid only $600.00 by

Respondent for the fram ing work while the $100.00 balance was

retained by Respondent .

11 . Respondent hired Derrick Smith as the r eplacement

framer to complete the framing of the project. It was agreed

between Respondent and Mrs. Montgomery that payments to

Mr. Smith would be made directly by Mrs. Montgomery upon

approval by Respondent.

12 . On May 14, 2008 , Mrs. Montgomery wrote a check for

$500.00 payable to Respondent. As noted in the Ð memo Ñ line of

the check, t his payment was compensation to Respondent for

arranging for the subcontractors on the project.

13 . Respondent hir ed Jesse Shabazz of Al Hajj Services to

perform the n ecessary HVAC work on the project. Respondent paid

Mr. Shabazz $700 for completion of phase I of the HVAC system.

During the time Respondent was supervising the project there was

no written contract between the Montgomerys and Mr. Shabazz. 5 /

14 . Respon dent engaged George E. Gunn Surveying and

Mapping to conduct a boundary survey of the project site. That

survey was completed on June 15, 2007.

15 . Respondent hired R. Carver to do the electrical work

on the project. Following approval by Respondent fo r work

completed, R. Carver was paid directly by the Montgomerys.

16 . On January 24, 2008 , the Montgomerys contracted

directly with the Frascona Plumbing Company for all of the

plumbing work associated with the project. Following approval

by Respondent for work completed, Frascona Plumbing was paid

directly by the Montgomerys.

17 . The Montgomerys contracted directly for the tile work

and cabinetry work associated with the project.

18 . Respondent installed the insulation for the project,

and did some of the landscaping and job site cleanup.

19 . Upon the completion of each phase of the project,

Respondent would inform the Montgomerys that it was time to call

the city and arrange for an onsite building inspection.

20 . On June 17 or 18 , 2008, Respond ent abandoned the

project. On June 2 4, 2008 , Respondent delivered a hand - written

statement to the Montgomerys detailing the amounts he claimed

we re owed to him by the Montgomery s. In addition to several

line item s of materials costs to be reimbursed , the re was also

the line item " o versee job" with a corresponding charge of

$2,000.00.

21 . Respondent contends that he was not paid the $2,000.00

fee appearing on the June 24, 2008 , statement he presented to

the Montgomerys. Ms. Montgomery contends that Resp ondent was

paid some or all of the $2,000.00 fee, although she was not able

to produce any cancelled check s or receipt to corroborate

payment . However, there is no dispute that Respondent was paid

at least $500.00 for his role in hiring subcontractors and

Ð overseeing Ñ the project.

22 . The Montgomerys were not happy with the quality of the

work done on their home . Among their complaints were a leaking

roof, walls that were cracking, and holes around some of the

electrical outlets.

23 . The Department in curred investigativ e costs of $195.49

related to Complaint No. 2008 - 04 0905 .

CONCLUSIONS OF LAW

24 . The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant to s ections 120.569 and 120.57(1), Fl orida Statutes

(20 10 ).

25 . Herein, Petitioner has the duty to go forward and the

burden of proving, by clear and convincing evidence, the

allegations against Respondent. Section 120.57(1)( j ); Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987); Dep Ó t of Ba nking & Fin .

Div . of Securities and Investor Protection v. Osborne Stern and

Co. , 670 So. 2d 932 (Fla. 1996); and Evans Packing Co. v. Dep Ó t

of Agric . & Customer Servs . , 550 So. 2d 112, 116, Fn. 5 (Fla.

1st DCA 1989).

26 . The clear and convincing evidenc e standard requires

that the evidence "must be of such weight that it produces in

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

without hesitancy, as to the truth of the allegations sought to

be established." In re Davey , 645 So. 2d 398, 404 (Fla. 1994).

A. The Violation

27 . The single - c ount Administrative Complaint relates to

t he unlicensed practice of contracting and cites s ections

489.113(2), 489.105(3), 489.105(6) and 489.127(1), Florida

Statutes.

28 . Section 489.127 provides, in pert inent part, that:

(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 .

29 . Section 489.113 provides in pertinent part:

(2) No person who is not certified or

registered shall engage in the business of

contracting in this state. . . .

30 . Sect ion 489.105(3) defines a contractor as:

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

s tructure, 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.

31 . Section 489.105(6 ) provides, in pertinent part:

(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 negotiation or

bid for a contract on these services also

constitutes contracting. If the services

offered require licensure or agent

qualification, the offering, negotiation fo r

a bid, or attempted sale of these services

requires the corresponding licensure.

32 . The authority for the imposition of administrative

pena lties for unlicensed practice of a profession is s ection

455.228(1), Florida Statutes, which provides in pe rtinent part:

When the department has probable cause to

believe that any person not licensed by the

department . . . has violated . . . any

statute that relates to the practice of a

profession regulated by the department, or

any rule adopted pu rsuant thereto, the

department may . . . impose an

administrative penalty not to exceed $5,000

per incident pursuant to the provisions of

chapter 120 . . . .

33 . However, as it relates specifically to unlicensed

contracting, s ection 489.13, Flor ida Statutes, provides, in

pertinent part:

(1) Any person performing an activity

requiring licensure under this part as a

construction contractor is guilty of

unlicensed contracting if he or she does not

hold a valid active certificate or

regi stration authorizing him or her to

perform such activity, regardless of whether

he or she holds a local construction

contractor license or local certificate of

competency. . . .

(3) Notwithstanding s.455.228, the

department may impose an admi nistrative fine

of up to $10,000 on any unlicensed person

guilty of unlicensed contracting. In

addition, the department may assess

reasonable investigative and legal costs for

prosecution of the violation against the

unlicensed contractor.

34 . The evidence clearly and convincingly establishes that

Respondent is not licensed as a contractor; that the work he did

at the Montgomerys Ó home meets the definition of ÐcontractingÑ;

that he was compensated (albeit not as much as he demanded) for

his work on the Montgomery s Ó home; and that the contracting work

he performed is not exempt from regulation under Part I of

c hapter 489, Florida Statutes.

35 . Therefore, the Department met its burden to prove that

Respondent is guilty of unlicensed contract ing in violation of

s ections 489.127(1)(f) and 489.13.

B. Amount of Fine

36 . Petitioner is seeking a fine of $10,000 in this case

for Respondent Ó s unlicensed contracting. See D BPR Ó s Proposed

Recommended Order, at page 12 .

37 . At the time of the viola tion at issue, DBPR had not

adopted guidelines to be used in determining the appropriate

fine within the range established by s ection 4 89.13, nor had it

enumerated the aggravating and mitigating circumstances that are

to be considered in d etermining the ap propriate fine. 6 / However,

as of January 26, 2010 , Petitioner adopted Florida

Administrative Code Rule 61 - 5.007, which establishes

disciplinary guidelines for unlicensed activity. The guidelines

for establishing penalties pursuant to the new rule cannot be

applied retroactively to Respondent's unlicensed activity that

occurred in 2007 and 2008.

38 . A fine of $2 ,000 .00 for Respondent Ó s unlicensed

contracting work is reasonable under the circumstances of this

case. Aggravating factors are that the constr uction done under

Respondent 's oversight was defective , resulting in a leaking

roof and cracks in walls, among other things . Second,

Respondent testified that he had taken the contractor's

licensure exam , and he should therefore have been fully aware of

t he limitations imposed on non - licensed individuals. Mitigating

factors are that Respondent has no p rior complaints or offenses,

he did not solicit the engagement, and there is evidence to

suggest that the homeowners were complicit in the unlicensed

arrang ement.

39 . The Department is authorized to Ð waive up to one - half

of any fine imposed if the unlicensed contractor complies with

certification or registration within one year after imposition

of the fine under this subsection. Ñ § 489.13(3), Fla. Stat. I t

should do so in this case.

( C ) Investigative Costs

40 . Section 489.13(3) authorizes DBPR to Ð assess

reasonable investigative and legal costs for prosecution of the

violation against the unlicensed contractor Ñ in addition to any

fine imposed. See also § 455.228(3)(c), Fla. Stat. (authorizing

the Department to Ð recover costs of investigation Ñ in addition

to any fine imposed).

41 . The evidence clearly and convincingly establishes that

the Department incurred $ 195.49 in investigative costs related

to th is case . No prosecution costs were sought.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED that the Department of Business and

Professional Regulation issue a final order that:

1. Finds Respondent gui lty of unlicensed contracting in

violation of s ections 489.127(1)(f) and 489.13, and imposes an

administrative fine of $ 2 ,000, with $1,0 00 payable upon entry of

the final order and the other $1,0 00 payable one year from that

date unless Respondent provides satisfactory evidence to DBPR

that he obtained a state contractor Ó s license within that

period;

2 . R equires Respondent to pay the Department Ó s

investigative costs of $ 195.49 .

DONE AND ENTERED this 7th day of February , 2011 , in

Tallahassee, Leon County, Florida.

S

W. DAVID WATKINS

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 wi th the Clerk of the

Division of Administrative Hearings

this 7th day of February , 2011 .

ENDNOTES

1 / All statutory references in this Recommended Order are to the

2007 version of the Florida Statutes in effect a t the time of

the alleged violation, with the exception of the jurisdictional

reference contained in the Conclusions of Law.

2 / According to Respondent, the Montgomerys had previously

approached other (licensed) contractors , and the prices quoted

for the project exceeded the Montgomerys' available budget.

3 / Mrs. Montgomery testified that she asked Respondent whether

he was a licensed general contractor and Respondent told her

that he was. Respondent testified that Mrs. Montgomery was well

aware that h e was not a licensed contractor through Respondent's

contacts with Mrs. Montgomery's mother, and

that he never told Mrs. Montgomery that he held a contractor's

license. Mrs. MontgomeryÓs testimony on this issue was not

credible. The totality of the circ umstances: Mrs. Montgomery's

direct contracting with some of the subcontractors, her direct

payments for some of the building materials, her willing

participation in obtaining the "owner - built" building and

roofing permits, and her overall demeanor while t estifying, lead

to the conclusion that the Montgomerys knew, or had reason to

believe, that Respondent was not a licensed contractor.

4/ The disagreement involved a nail gun that apparently was

stolen from the project site. After being threatened with

ha ving a lien placed on her property by Mr. Bryant, Mrs.

Montgomery gave Respondent a check for $200.00 to give to Mr.

Bryant in settlement of the remaining framing labor fee and

reimbursement for the stolen nail gun.

5 / Following Respondent's abandonment of the project, the

Montgomerys entered into a contract with Mr. Shabazz to complete

the HVAC work.

6 / See § 455.2273, Fla. Stat., requiring the Department to adopt

disciplinary guidelines which establish penalty ranges and

designate aggravating and miti gating circumstances and requiring

the Administrative Law Judge to follow the guidelines in the

penalty recommendation included in the Recommended Order.

COPIES FURNISHED :

Mark S. Miller, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399 - 2202

Earnest Knight

3301 Sunnyside Drive

Tallahassee, Florida 32305

Susan Leigh Matchett

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Flori da 32399 - 2202

Amy Toman , Hearing Officer

Office of the General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

R eginald Dixon, Gen eral Co unsel

Department of Busine ss and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Or der. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.