10-000424 Department Of Business And Professional Regulation vs. Carrie D. Johnston D/B/A Signs Unlimited Status: Closed Recommended Order on Monday, June 21, 2010.

Summary: Petitioner failed to present clear and convincing evidence that Respondent failed to obtain a necessary permit or committed financial mismanagement.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. ) Case No. 10-0424

)

CARRIE D. JOHNSTON, )

d/b/a SIGNS UNLIMITED, )

)

Respondent. )

)

RECOMMENDED ORDER

On May 4, 2010, a duly-noticed hearing was held in

Tallahassee, Florida, before Lisa Shearer Nelson, an

Administrative Law Judge assigned by the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: LeChea C. Parson, Esquire

Assistant General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

For Respondent: Carrie D. Johnston, pro se

2210 North Monroe Street

Tallahassee, Florida 32303

STATEMENT OF THE ISSUE

The issue to be determined is whether Respondent violated

Florida Statutes (2008), as alleged in the Administrative

Complaint, and if so, what penalty should be imposed?

PRELIMINARY STATEMENT

On May 29, 2009, the Department of Business and Professional

Regulation (DBPR or Petitioner) filed a three-count

Administrative Complaint against Respondent, Carrie Johnston,

d/b/a Signs Unlimited (Respondent or Signs Unlimited), alleging

violations of Section 489.533, Florida Statutes (2008).

Specifically, Count I charged Respondent with proceeding with a

job without obtaining applicable local permits and inspections,

in violation of Section 489.533(1)(r), Florida Statutes; Count II

charged Respondent with committing financial mismanagement that

causes financial harm to a customer, in violation of Section

489.533(1)(m)2., Florida Statutes; and Count III charged

Respondent with practicing beyond the scope of her certification

in violation of Section 489.533(1)(s), Florida Statutes.

On June 2, 2009, Respondent executed an Election of Rights

form disputing the allegations in the Administrative Complaint

and requesting a hearing pursuant to Section 120.57(1), Florida

Statutes. On January 18, 2010, the Department referred the case

to the Division of Administrative Hearings for the assignment of

an administrative law judge.

A Notice of Hearing was issued on February 9, 2010,

scheduling the hearing for April 14, 2010. On April 12, 2010,

Petitioner filed an emergency motion for continuance, and the

case was rescheduled for May 4, 2010. The case then proceeded as

scheduled. At hearing, the Department presented the testimony of

Catherine Jackson, Anthony Maccarone, and Mitesh Patel.

Petitioner's Exhibits 1-5 were admitted into evidence. At the

beginning of the hearing, the Department announced that it would

not pursue Count III of the Administrative Complaint, and

accordingly, findings of fact and conclusions of law will be made

with respect to the allegations in Counts I and II only.

Respondent presented the testimony of Edward Johnston and

Respondent's Exhibits 1-3 were accepted into evidence. Official

recognition was taken of Section 489.533, Florida Statutes, and

Florida Administrative Code Rule 61G6-7.001.

The Transcript of the proceedings was filed with the

Division on May 19, 2010. Both parties timely filed Proposed

Recommended Orders that have been carefully considered in the

preparation of this Recommended Order. Unless indicated

otherwise, all references to Florida Statutes are to the 2008

codification.

FINDINGS OF FACT

1. At all times material to the allegations in the

Administrative Complaint, Respondent was licensed as a certified

specialty contractor, having been issued license number ES

12000484. Respondent's address of record is 2210 North Monroe

Street, Tallahassee, Florida 32303.

2. Respondent is the qualifier for Signs Unlimited.

3. Mr. Patel and his family are the proprietors of a

business in Tallahassee named the Beer Stop. On or about

November 13, 2008, Mr. Patel contacted Signs Unlimited regarding

the manufacture and installation of signs for Beer Stop. He

wanted a sign for over the door of the business, and a sign to be

added to an already existing sign for the shopping plaza, near

the road in front of the plaza.

4. A sign over the door of the building simply required a

new pan face. As such, it required no permit for installation.

However, the plaza where Beer Stop is located had an already

existing sign near the street with individual businesses listed

on it. Each individual sign for the businesses advertised has a

"cabinet" included on the structure, which holds the electrical

connections necessary to make the sign light up and thus make the

advertising more visible to passersby.

5. Any sign with these cabinets that is over 100 square

feet requires a permit and engineered drawings.

6. Mr. Patel received from Edward Johnston, a Signs

Unlimited employee and supervisor, an estimate for a structure

permit, engineered windload drawings, and three hours use of a

bucket truck. The estimate identified a price of $1,366.33 and

did not include the cost of the signs themselves. Mr. Patel also

received an estimate for similar permitting and engineering

services from at least one other company.

7. On November 19, 2008, Mr. Patel entered into a contract

with Signs Unlimited for the signs he wanted. The contract

listed the following items: 1) one pan face per sq. ft. (1:3' x

12') d/s, for $1,086.15; 2) two acrylic 1/8' per s. ft. at $688

each; and 3) installation, at 1 1/2 hours use of a bucket truck.

With tax, the total was $2,800. Mr. Patel paid a deposit of

$1,800 on November 21, 2008.

8. The invoice dated November 19, 2008, makes no mention of

a permit or engineered drawings, and the amount of installation

time identified is half of that in the original estimate.

Mr. Johnston asked Mr. Patel about the permit and engineering for

the road-side sign, and was directed to go forward with the

fabrication of the three signs and installation of the building

sign only.

9. Mr. Patel testified that he assumed the contract price

on the November 19, 2008, invoice included Respondent's costs to

obtain all necessary permits and everything necessary for

completion of the contract. Mr. Patel's testimony to this effect

is not credited.

10. Signs Unlimited makes and installs signs. However, it

is not unusual for the company to make the signs and provide them

to a customer who either has them installed by someone else or

installs the signs itself, or for Signs Unlimited to install

signs made by other companies. In this case, it would have been

feasible for the pan faces to be installed in an existing cabinet

on the sign if, for example, they replaced the advertising of a

prior tenant. To do so would require no permit.

11. In this case, Signs Unlimited made and installed the

pan face above the door of the business. It was not required to

obtain a permit for doing so. It also fabricated the pan faces

for the sign near the street and delivered them to the Beer Stop

location. Signs Unlimited did not install these signs. On

December 15, 2008, Mr. Patel paid the remaining balance on the

invoice dated November 19, 2008.

12. Nonetheless, a new cabinet (of lesser quality than

those already included on the existing structure) was added to

the sign by the road. No permit was obtained for this sign.

13. On or about December 15, 2008, the City of Tallahassee

received a complaint about the sign near the road from a

competitor who had bid on the project. Anthony Maccarone, an

inspector for the city, confirmed that no permit had been

obtained. He also took pictures of the sign and spoke with

Mr. Patel, who showed him the invoice from Signs Unlimited.

Mr. Maccarone called Signs Unlimited about the sign, and issued a

Stop Work Order to the owner to be posted at the site.

14. Edward Johnston told Mr. Maccarone that Signs Unlimited

installed the sign above the door but did not install the other

signs. At Mr. Maccarone's request, he removed the cabinet and

pan faces from the sign by the road. Both the cabinet and the

pan faces were left on the sidewalk by the door of the Beer Stop.

15. Mr. Johnston testified that he tried to contact

Mr. Patel to see if he wanted the job properly engineered and

permitted, and to have the signs reinstalled. However, he

received no response. Mr. Patel, on the other hand, testified

that he felt Signs Unlimited should have refunded him some money

because not all three signs were installed. However, he admitted

that he never made such a request of Signs Unlimited. He filed a

complaint with DBPR instead and was waiting for a "judgment" from

DBPR.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with Sections 120.569 and 120.57(1), Florida

Statutes (2009).

17. Petitioner is the state agency charged with the

licensing and regulation of electrical contractors, including

specialty contractors such as Respondent, pursuant to Section

20.142 and Chapters 455 and 489, part II, Florida Statutes.

18. Petitioner seeks to take disciplinary action against

Respondent's license as a specialty contractor. Because

disciplinary actions are considered penal proceedings, Petitioner

bears the burden of proof to demonstrate the allegations in the

Administrative Complaint by clear and convincing evidence.

Department of Banking and Finance v. Osborne Stern & Co. ,

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

(Fla. 1987).

19. As stated by the Florida Supreme Court:

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify must

be distinctly remembered; the testimony must

be precise and lacking in confusion as to the

facts in issue. The evidence must be of such

a 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 Henson , 913 So. 2d 579, 590 (Fla. 2005), quoting Slomowitz

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

20. Count I of the Administrative Complaint charged

Respondent with violating Section 489.533(1)(r), Florida

Statutes, which makes it a disciplinary violation for

(r) Proceeding on any job without obtaining

applicable local building department permits

and inspections.

21. Clear and convincing evidence was not presented at

hearing to support a finding that Respondent committed the

violation alleged in Count I. The more persuasive evidence

presented indicates that Mr. Patel contracted for the manufacture

of three sign faces, and the installation of a single face over

the door of his business, and that the installation of the single

sign face above the door did not require a permit.

22. Count II of the Administrative Complaint alleged that

Respondent violated Section 489.533(1)(m)2., Florida Statutes.

That subsection provides that a licensee may be disciplined for

(m) Committing financial mismanagement or

misconduct in the practice of contracting

that causes financial harm to a customer.

Financial mismanagement or misconduct occurs

if:

* * *

2. A contractor has abandoned a customer's

job and the percentage of completion is less

than the percentage of the total contract

price that had been paid to the contractor as

of the time of abandonment, unless the

contractor is entitled to retain the excess

funds under the terms of the contract or

refunds the excess funds within 30 days after

the date of abandonment;

23. Clear and convincing evidence was not presented to

demonstrate a violation of this provision. First, Respondent did

not abandon the job. The scope of services contained in the

November 19, 2008, invoice includes manufacture of three sign

faces and installation of the sign over the door. The more

persuasive evidence submitted at hearing indicates that these

signs were made and delivered, and the sign over the door

installed. Although Mr. Patel feels that Signs Unlimited should

have installed the two sign faces made for the road sign, he did

not contract or pay for such an installation. Moreover, he

admitted at hearing that he never made a request to Signs

Unlimited for any type of refund and did not explain exactly

what, according to the invoice, would entitle him to a refund.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED:

That the Electrical Contractors' Licensing Board enter a

Final Order dismissing the Administrative Complaint in its

entirety.

DONE AND ENTERED this 21st day of June, 2010, in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of June, 2010.

COPIES FURNISHED:

LeChea C. Parson, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2022

Carrie D. Johnston

Signs Unlimited

2210 North Monroe Street

Tallahassee, Florida 32303

Reginald Dixon, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Juanita Chastain, Executive Director

Electrical Contractors Licensing Board

Department of Business and

Professional Regulation

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 agency that will

issue the final order in this case.