16-003900 Department Of Business And Professional Regulation vs. Ian Tuttle Status: Closed Recommended Order on Wednesday, October 26, 2016.

Summary: Petitioner proved that Respondent practiced construction contracting without a license when he performed repair of backflow preventers. Recommend fine of $6,000.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION ,

Petitioner,

vs. Case No. 16 - 3900

IAN TUTTLE ,

Respondent.

/

RECOMMENDED ORDER

Pursuant to notice, Administrative L aw Judge Yolonda Green,

of the Division of Administrative H earings , held a final hearing

in this case on September 8, 2016, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Andrew Pietrylo, Jr. , Esquire

Roger Maas, Esquire

Department of Business and

Professional Regulation

Capital Commerce Center

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

For Respondent: Ian Tuttle, pro se

46 Gold Finch Way

Crawfordville, Florida 32327

STATEMENT OF THE ISSUE S

The issues determined in this proceeding are whether

Respondent engaged in construction contracting without a license

as alleged in the Amended Administrative Complaint ; and, if so,

the appropriate penalty.

PRELIMINARY STAT EMENT

On or about June 10, 2016, Petitioner, Department of

Business and Professional R egulation (ÐPetitionerÑ or Ðthe

Department Ñ), filed an Amended Administrative Complaint alleging

that Respondent (ÐRespondentÑ or ÐMr. TuttleÑ) violated section

489.13(1) , Florida Statutes (2014) , by engaging in construction

contracting without a license. Respondent disputed material

facts alleged in the Amended Administrative Complaint and timely

requested a formal hearing, pursuant to section 120.57 (1),

Florida Statutes . On July 13, 2016, Petitioner referred this

matter to the Division of Administrative Hearings (Ðthe

DivisionÑ) for assignment of an administrative law judg e to

conduct a final hearing.

On July 21, 2016, a Notice of Hearing was issued,

scheduling the hea ring for September 8, 2016. On

August 1, 2016, this matter was transferred from Administrative

Law Judge Bruce McKibben to the undersigned. A pre - hearing

telephone conference was conducted on August 26, 2016, at which

time the undersigned explained the p rocedure for the hearing.

At the commencement of the hearing, Respondent confirmed

that he is relying on the exemption in section 489.103(9), and

the Department argued the exemption does not apply.

On September 7, 2016, Petitioner filed a Motion for

Offici al Recognition. During preliminary matters, the motion

was granted in part and denied in part. The undersigned took

official recognition of the Florida Statutes, Florida

Administrative Code rules, and applicable se ctions of the

Florida Building C ode. Th e certificate of non - licensure was not

officially recognized. Petitioner also renewed its motion for

relinquishment of jurisdiction and argued there were no material

facts in dispute. That motion was again denied. 1 /

At hearing, official recognition was t aken of In Re: The

Petition for Declaratory Statement of City of Tallahassee , File

No. 2014 - 00649 (Feb. 3, 2014), which was marked as Joint

Exhibit J - 1. Petitioner presented the testimony of John C. Lee,

regional a dministrator for the Department ; Frank Ha gen, as a

plumbing expert ; and Respondent. PetitionerÓs Exhibits P - 1 and

P - 2 were admitted. Respondent presented testimony of John

Sowerby, P.E. Respondent did not testify on his ow n behalf.

RespondentÓs Exhibit R - 1 was admitted , over objection. The

u ndersigned took official recognition of In Re: The Petition for

Declaratory Statement of Wayne Eseltine , Final Order No.

BPR - 2007 - 07317 (Sept. 19, 2007) , over objection , which was

marked as R - 2 . Respondent offered an unsigned and unfiled

declaratory s tatement from the State of Florida Building

Commission , In Re: Matter of Sarasota County, DCA - 04 - DEC - 040

(July 2004). An objection regarding the relevance of an

unsigned declaratory statement was sustained and it was not

recognized.

A one - volume Transcri pt was filed on September 22, 2016.

Both parties timely filed Proposed Recommended Orders, which

have been considered in preparation of this Recommended Order.

Unless otherwise indicated, all references to the Florida

Statutes or rules of the Florida Adm inistrative Code refer to

the 2014 versions in effect at the time the alleged violations

were committed .

FINDING S OF FACT

Parties

1. Petitioner is the state agency responsible for

regulating the practice of construction contract ing pursuant to

section 20 .165 and chapters 455 and 489, Florida Statutes.

2. Petitioner has jurisdiction over the unlicensed

practice of construction contracting pursuant to sections

455.227, 455.2 28, and 489.13 .

3. At all times material to this matter, Respondent was

the owner of Advanced Connections, LLC. Neither he nor his

company is licensed, registered, or certified to perform

construction contracting services in Florida. Respondent holds

only certification to perform backflow preventer testing. At

the heart of this case is whether Respondent may perform

backflow preventer repair without a license, certification , or

registration.

Facts Related to Work Performed

4. It is un dispute d that Respondent performed repair of

backflow preventers for customers in Tallahassee, Florid a.

5. On July 25, 2014, Respondent performed a backflow

prevention assembly test on two existing backflow preventers at

Old Enrichment Center located at 2344 Lake Bradford Road,

Tallahassee, Florida 32301.

6. Respondent provided an invoice to Old Enric hment Center

following the backflow test, which described the work performed

as follows: ÐI was able to repair both units and they are

Functioning [sic] properly. I had to replace one additional

part on, AS #10896, the #2 check cage was cracked. Thank y ou

For [sic] your business. DonÓt forget to cover the backflows.Ñ

7. The invoice reflected that Respondent was compensated

$343.00 for the worked performed and materials.

8. On August 20, 2014, Respondent performed a backflow

test on an existing backfl ow preventer for Li - Ping Zhang at a

property located at 2765 West Hannon Hill Drive, Tallahassee,

Florida 32309. Respondent provided an invoice to the customer

describing the outcome of the test, and he provided an estimate

for repair as follows:

Invoice: Thank For this opportunity to

serve you. The unit is failing. The #1

check valve is leaking across it. That

means it is not holding pressure. The

Manufacture of flowmatic no longer makes

parts for your unit. But my supplier does

have a repair kit av ailable. Due to the

Fact are no longer made for your device it

may be better to have the unit replaced with

a Wilkins 975 - XL. Please See Quote

* * *

Quote for repair:

Part: Complete Rubber Kit - $30.00

Labor: This unit may not be repairable due

to the fact that there is a limited supply

of parts. If there is damage to the #1

Check. I will not be able to repair the

unit. If that happens I can return the

parts but a labor charge would still remain.

Please call with any questions. Thank you.

(Quoted text from invoice without correcti on

of grammar.)

9. Respondent ultimately performed the repair on

August 25, 2014. The invoice issued to Li - Ping Zhang reflected

service provided as Ð[t] he repair was a succe ss. The unit is

Passing [sic]. Paid Cash $11 5.00 8.25 .14 Ï signed Ian .Ñ

10. Both invoices include the RespondentÓs company name,

Advanced Connections, LLC.

11. There was no evidence presented of financial or

property harm caused by RespondentÓs actions.

12. On or about February 2, 2015, Petitio ner received a

complaint from City of Tallahassee filed against Respondent for

his repair of backflow preventers in Tallahassee, Florida.

Petitioner commenced an investigation into RespondentÓs actions

through its unlicensed activity investigation unit. At the

conclusion of the investigation, Petitioner filed an

Administrative Complaint alleging Respondent engaged in

construction contracting without a license.

13. Respondent disagrees with Petitioner and argues that

he is eligible for an exemption unde r section 489.103(9),

commonly known as the Ðhandyman Ñ exemption.

Life - Safety Matter

14. RespondentÓs eligibility for the exemption hinges upon

whether repair of a backflow preventer is considered a life -

safety matter .

15. The Florida Building C ode pro vides minimum standards

for building construction to Ðsafeguard the public health,

safety and general welfare.Ñ See § 101.3 , Florida Building

Code, Building .

16. The Florida Building Code, Plumbing, applies to Ðthe

installation, alteration, repair and re placement of plumbing

systems, including fixtures, fittings and appurtenances where

connected to a water or sewage system . . . .Ñ See § 101.4.3 ,

Florida Building Code, Building . The plumbing chapter of the

Florida Building C ode defines a backflow preven ter as a device

or mean s to prevent backflow of water from flowing from one

system into the potable water system. 2 /

17. A potable water supply system shall be maintained in

such a manner so as to prevent contamination from non - potable

liquids, solids , or gases being introduced into the potable

water supply through cross - connections or any other piping

connections to the system. § 608.1 Building Code, Plumbing.

18. To further explain the purpose of backflow preventers,

Petitioner offered Frank Hagen as a plumbing expert. Mr. Hagen,

who has 42 years of plumbing experience, has been licensed in

Florida since 1981 and is also licensed in Georgia. He holds a

certification in backflow preventer testing ( issued by the

University of Florida TREEO Center ) an d b ackflow preventer

repair. Mr. Hagen has regularly conducted on - the - job plumbing

training for 36 years. Mr. Hagen was accepted as a plumbing

expert.

19. Mr. Hagen testified that a backflow preventer is a

life - safety device. He ex plained that this refere nce is

accepted throughout the plumbing industry because the backflow

preventer protects water systems by preventing chemicals and

poison s from entering the public water system. Mr. Hagen

provided examples of potential outcomes if a backflow preventer

fai ls (e.g., three children died as a result of drinking water

from a water hose where poison in the sprinkler system

contaminated the water). Mr. Hagen also testified that only a

licensed plumber is authorized to perform backflow repairs.

M r. HagenÓs testi mony is credible .

20. John Sowerby, P.E., a licensed professional engineer

for 35 years, who previously worked in the Department of

Environmental ProtectionÓs (DEP) Sourc e of Drinking and Water

Program, also testified regarding the nature of backflow

p reventers . He testified that backflow preventers protect

public health because they prevent contamination of potable

water systems (i.e., water that is satisf actory for human

consumption). Mr. SowerbyÓs testimony is also found to be

credible.

21. R espondentÓs testimony that a backflow preve nter is

not a life - safety fixture , is not supported by the evidence.

Respondent testified that backflow preventers are Ð plumbing

fixtures Ñ that are installed between the public water supply

line and the private w ater supply line. Respondent also

testified that if a backflow preventer fails, it could cause

contamination of the public water supply and public health would

be at risk . More importantly, the applicable building codes and

the testimony of Mr. Hagen and Mr. Sowerby establish that

backflow preventer s prevent contam ination of p ublic water supply

and protect public health .

22 . Given that backflow preventers safe guard public health

by protect ing the public water supply, t hey involve life - safety

matters.

23 . The Department has incurred investigative costs in the

amount of $415.95 related to this matter.

Ultimate Findings of Fact

24 . RespondentÓs repair of a backflow preventer on a water

service line is a life - safety matter and as a result, Respondent

is not eligible for an exemption under section 489.103(9).

25 . The evidence is clear and convincing that RespondentÓs

repair of a backflow preventer at the two properties referenced

herein constituted the practice of construction contracting

without a licen se. As a result, Respondent is guilty of

unlicensed contracting, as charged in Count s I and II of the

Amended Administrative Complaint.

CONCLUSIONS OF LAW

Jurisdiction and Burden of Proof

26 . The Division of Administrative Hearings has personal

and subj ect matter jurisdiction i n this proceeding, pursuant to

s ections 120.569 and 120.57(1) , Florida Statues (2016) .

27 . In this matter, Petitioner seeks to impose an

administrative fine against Respondent. As the party asserting

the affirmative in this admin istrative proceeding, Petitioner

has the burden of proof.

28 . Because Petitioner seeks to impose a fine, which is

penal in nature, Petitioner has the burden of proving by clear

and convincing evidence the allegations contained in the

Administrative Comp laint. § 120.57(1)(j), Fla. Stat; See DepÓt

of Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932, 935

(Fla. 1996); Ferris v. Turlington , 510 S o. 2d 292 (Fla. 1987);

Pou v. DepÓt of Ins. and Treasurer , 707 So. 2d 941 (Fla. 3d DCA

1998).

29 . Clear an d convincing evidence Ðrequires more proof

than a Òpreponderance of the evidenceÓ but less than Òbeyond and

to the exclusion of a reasonable doubt.ÓÑ In re: Graziano ,

696 So. 2d 744, 753 (Fla. 1997). As stated by the Supreme Court

of Florida:

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 at issue. The evidence must be

of s uch 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. 2d 797, 800 (Fla. 4th DCA 1983)). This

burden of proof may be met where the evidence is in conflict;

however, Ðit seems to preclude evidence that is ambiguous.Ñ

Westinghouse Elec. Corp. v. Shuler Bros. , 590 So. 2d 986, 988

(Fla. 1st DCA 1991).

Exempt ion

30 . Before addressing whether RespondentÓs conduct

constitutes construction contracting, Respondent asserts that he

is entitled to the exemption contained in section 474.203(5),

Florida Statutes, and Petitioner asserts that the conduct at

issue fits w ithin an exception to the exemption. Should

Respondent be correct, then he is not subject to disciplinary

action as alleged in the Amended Administrative Complaint.

Should the Department's position be correct, then Respondent's

alleged actions could be t he basis for disciplinary action.

31 . The burden of proof related to the application of the

exemption is on the party asserting the affirmative of the

issue. Young v. Dep't of Cmty. Aff. , 625 So. 2d 831 (Fla.

1993); Balino v. Dep't of Health & Rehab. Se rvs . , 348 So. 2d

349 (Fla. 1st DCA 1977). Thus, Respondent has the burden to

show that he fits within the exemption in section 489.103(9) .

Then, the Department must show that Respondent's alleged conduct

is subject to disciplinary action.

32 . Se ction 48 9.103 , exempts certain contracting

activities from regulation. See § 489.103(9), Fla. Stat. ( Ð Any

work or o peration of a casual, minor, or inconsequential nature

in which the aggregate contract price for labor, materials, and

all other items is less than

$1,000 . . . . Ð ) .

33 . Offic ial recognition was taken of declaratory

statements offered by each party to support their respective

position regarding application of the exemption.

34 . The applicability of declaratory statements has been

established as f ollows:

The purpose of a declaratory statement is to

address the applicability of a statutory

provision or an order or rule of the agency

in particular circumstances. See § 120.565,

Florida Statutes (1996). A party who

obtains a statement of the agency's position

may avoid costly administrative litigation

by selecting the proper course of action in

advance. Moreover, the reasoning employed

by the agency in support of a declaratory

statement may offer useful guidance to

others who are likely to interact w ith the

agency in similar circumstances. Another

party can expect the agency to apply the

rationale for its declaratory statement

consistently, or to explain why a different

application is required.

Chiles v. DepÓt of State, Div. of Elec. , 711 So. 2d 15 1, 154 - 155

(Fla. 1st DCA 1998), approved Fla. Dep't of Bus. & Prof'l Reg. ,

Div. of Pari - Mutuel Wagering v. Inv. Corp. , 747 So. 2d 374 (Fla.

1999).

35 . In the declaratory statement in In Re: The Petition

for Declaratory Statement of City of Tallahassee , Fi le No. 2014 -

00649 (Feb. 3, 2014), the City of Tallahassee filed a petition

seeking to determine Ðwhether a business is required to hold a

contractorÓs license to replace or repair an existing backflow

preventer on a water service line in which the aggregat e

contract price for labor, materials and all other items is less

than $1,000 .Ñ The Construction Industry Licensing Board (Ð CILB Ñ

or ÐBoardÑ) found that Ðany repair or replacement of an existing

backflow preventer on a water servi ce line is a life - safety

matter . . . and a contractorÓs license is required to replace

or repair an existing backflow preventer on a water service

line. Ñ This declaratory statement is accepted as PetitionerÓs

po sition related to the issue of whether repair of backflow

preventers is a life - safety matter .

36 . In t he declaratory statement in In Re: The Petition

for Declaratory Statement of Wayne Eseltine , File No. BPR - 2007 -

07317 (Sept. 19, 2007) , Petitioner, Wayne Eseltine, filed a

petition indicating his desire to confirm whether replacement of

water heaters, showers, tubs , and vanities requires a building

permit and a licensed plumbing contractor. The C ILB presented

the question as Ð [ d ] oes a person that engages in the business of

changing out plumbing fixtures, such as faucets a nd toilets, and

cleans out clogged drains, have to be licensed as a plumbing

contractor?Ñ The CILB determined that Ða plumbing license is

required, subject to the ÐhandymanÑ exemption stated at Section

489.103(9), F.S.Ñ The declaratory statement is not r elated to

any issues here. T hus, it has no effect on the conclusions in

this case.

37 . Here, it is undisputed that Respondent performed work

at both properties and the aggregate price for labor, materials ,

and all other items was less than $1,000. Howev er, the

exemption referenced by Respondent in his testimony is not

applicable because the work performed involved a life - safety

matter (e.g., protection of public water systems from

contamination). Fla. Admin. Code R. 61G4 - 12.011(2) ( Ð For

purposes of the exemption provided in section 489.103(9),

activities which are not casual, minor, or inconsequential,

i nclude . . . any work affecting life - safety matters as defined

in the applicable building code . Ñ ).

Violations

38 . Counts I and II of the Amended Admini strative

Complaint charged Respondent with violating section 489.13(1) by

practicing construction contracting without a license.

Contracting is regulated under p art I of c ha pter 489. The

relevant portion of section 489.127 provides:

(1) No p erson 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; . . . .

39 . As referenced in the foregoing statute, the term

contractor is defined in section 489.105 , which provides in

relevant matter:

(3) ÐCo ntractorÑ means the person who . . .

for compensation, undertakes to, submits a

bid to, or does himself or herself or by

others . . . repair, alter, . . . and whose

job scope is substantially similar to the

job scope described in one of the paragraphs

of this subsection.

40 . Plumbing contracting is regulated under p art I of

s ection 489.105(3), and is defined as follow s:

(m) ÐPlumbing contractorÑ means a

contractor whose services are unlimited in

the plumbing trade and includes contracting

business consisting of the execution of

contracts requiring the experience,

financial means, knowledge, and skill to

install, mai ntain, repair, alter, extend,

or, if not prohibited by law, design

plumbing. A plumbing contractor may

install, maintain, repair, alter, extend,

or, if not prohibited by law, design the

following without obtaining an additional

local regulatory license, c ertificate, or

registration: sanitary drainage or storm

drainage facilities, water and sewer plants

and substations, venting systems, public or

private water supply systems, septic tanks,

drainage and supply wells, swimming pool

piping, irrigation systems , and solar

heating water systems and all appurtenances,

apparatus, or equipment used in connection

therewith, including boilers and pressure

process piping and including the

installation of water, natural gas,

liquefied petroleum gas and related venting,

and storm and sanitary sewer lines. The

scope of work of the plumbing contractor

also includes the design, if not prohibited

by law, and installation, maintenance,

repair, alteration, or extension of air -

piping, vacuum line piping, oxygen line

piping, nit rous oxide piping, and all

related medical gas systems; fire line

standpipes and fire sprinklers if authorized

by law; ink and chemical lines; fuel oil and

gasoline piping and tank and pump

installation, except bulk storage plants;

and pneumatic control pi ping systems, all in

a manner that complies with all plans,

specifications, codes, laws, and regulations

applicable. The scope of work of the

plumbing contractor applies to private

property and public property, including any

excavation work incidental the reto, and

includes the work of the specialty plumbing

contractor. Such contractor shall

subcontract, with a qualified contractor in

the field concerned, all other work

incidental to the work but which is

specified as being the work of a trade other

than t hat of a plumbing contractor. This

definition does not limit the scope of work

of any specialty cont ractor certified

pursuant to s. 489.113(6) and does not

require certification or registration under

this part as a category I liquefied

petroleum gas deale r, LP gas installer, or

specialty installer who is licensed under

chapter 527 or an authorized employee of a

public natural gas utility or of a private

natural gas utility regulated by the Public

Service Commission when disconnecting and

reconnecting water lines in the servicing or

replacemen t of an existing water heater. A

plumbing contractor may perform drain

cleaning and clearing and install or repair

rainwater catchment systems; however, a

mandatory licensing requirement is not

established for the perf ormance of these

specific services.

41. Contracting is defined in section 489.105(6)

as follows:

( 6) ÐContractingÑ means, except as exempted

in this part, engaging in business as a

contractor and includes, but is not limited

to, performance of any of t he 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 ag ent

qualification, the offering, negotiation for

a bid, or attempted sale of these services

requi res the corresponding licensure . . . .

42 . As it relates specifically to unlicensed contracting,

section 489.13, 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

registration 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. Persons working outside the

geographical scope of their registration are

guilty of unlicensed activity for purposes

of this part.

* * *

(3) Notwithstanding s. 455.228, the

department may impose an administrative 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 t he violation against the

unlicensed contractor. The department may

waive up to one - half of any fine imposed if

the unlicensed contractor complies with

certification or registration within 1 year

after imposition of the fine under this

subsection.

4 3 . Pe titioner has proven both c ounts in the Amended

Administrative Complaint by clear and convincing evidence. The

work Respondent proposed and performed at the two properties at

issue meet the definition of (plumbing) contracting. Respondent

was compensated for his work at the properties. Despite

RespondentÓs belief, his actions do not fit within any

exemption.

44 . Therefore, Petitioner met its burden to prove by clear

and convincing evidence that Respondent is guilty of unlicensed

contracting in violation of sections 489.127(1 )(f) and 489.13,

as alleged in C ounts I and II.

45 . With respect to unlicensed contracting under section

489.13, Petitioner is authorized to impose an administrative

fine up to $10,000. See § 489.13(3), Fla. Stat.

46 . However, P etitioner has adopted Disciplinary

Guidelines to provide the range of appropriate penalties to be

imposed for unlicensed ac tivity. Fla. Admin. Code R. 61 -

5.007(1). The guidelines also provide that Petitioner shall

impose a penalty consistent with the gui delines absent any

aggravating or mitigating circumstances. I d. The penalty

guidelines should be applied to each count or separate

violation, accordingly. See Fla. Admin. Code R. 61 - 5.007(3)

(All penalties established herein are for each count or separa te

violation found).

47. Pursuant to r ule 61 - 5.007(3), the range of penalties

for a violation of section 489.127, is $3,000 for each count.

In this case, the penalty of $3,000 per count is warranted .

4 8 . Petitioner is also authorized to Ðwaive up to on e - half

of any fine imposed if the unlicensed contractor complies with

certification or registration within 1 year after imposition of

the fine under this subsection . Ñ § 489.13 (3) , Fla. Stat. It

would be appropriate to do so if Respondent meets the

requir ements.

Investigative Costs

49 . Section 489.13(3) , authorizes Petitioner to assess

reasonable investigative costs for prosecution of the alleged

violation against an unlicensed contractor, in addition to any

appropriate fines. The evidence clearly and convincingly

establishes that the Department incurred investigative costs in

the amount of $415.95 related to this matter.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law , it is

RECOMMENDED that the Department of Business an d

Professional Regulation issue a final order that:

1. Finds Respondent guilty of unlicensed contracting i n

violation of section 489.13 (1) , as alleged in Counts I and II of

the Amended Administrative Complaint;

2. Imposes an administrative fine of $6,00 0 ($3,000 for

each count) ; and

3. Requires Mr. Tuttle to pay the DepartmentÓs

investigative costs of $415.95.

DONE AND ENTERED this 26th day of October, 2016 , in

Tallahassee, Leon County, Florida.

S

YOLONDA Y. GREEN

Ad ministrative 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 Hea rings

this 26th day of October , 2016 .

ENDNOTE S

1 / Shortly after the final hearing convened, Petitioner renewed

its motion to relinquish jurisdiction and again argued there

were no disputed issues of material fact and that the matter

should be relinquis hed to Petitioner for a hearing pursuant to

section 120.57(2) , Florida Statutes . Ruling on the renewed

motion was ultimately reserved until conclusion of the evidence.

At the conclusion of the hearing, Petitioner again renewed its

argument that there was no dispute of material fact regarding

whether Respondent performed an activity requiring licensure as

a construction contractor. This is the ultimate fact that is in

dispute.

There is a well - established rule, Ðthat the issue of

whether an individual violated a statute or deviated from a

standard of conduct is generally an issue of fact to be

determined by the administrative law judge based on the evidence

and testimony.Ñ Gross v. DepÓt of Health , 819 So. 2d 997, 1003

(Fla. 5th DCA 2002). See also G oin v. CommÓn on Ethics , 658 So.

2d 1131 (Fla. 1st DCA 1995)(whether facts constitute violation

of statute or rule is a question of ultimate fact); Langston v.

Jamerson , 653 So. 2d 489, 491 (Fla. 1st DCA 1995 )( whether a

particular action constituted a viol ation of one of these two

rules is a factual question to be decided in the context of the

alleged violation ) .

Ultimate facts are Ðthose found in that vaguely defined

field lying between evidential facts on the one side and the

primary issue or conclusion o f law on the other, being but the

logical results of the proofs, or, in other words, mere

conclusions of fact.Ñ Tedder v. Fla. Unemp. App. CommÓn ,

697 So. 2d 900, 902 (Fl a . 2d DCA 1997)(Danahy, A.C.J., specially

concurring)(citing BlackÓs Law Dictionary 1365 (5 th ed. 1979) ) .

Ultimate facts are those facts which are necessary to determine

the issues in a case, as distinguished from the ev identiary

facts supporting them .

The undersigned has not been persuaded to alter the ruling

denying PetitionerÓs moti ons to relinquish jurisdiction. The

issue of whether Respondent performed an activity requiring

licensure as a construction contractor is a question of ultimate

fact.

2 / Pursuant to section 381.0062, Florida Statutes, ÐÓ potable

water Ó means water that i s satisfactory for human consumption,

dermal contact, culinary purposes, or dishwashing as approved by

the department [of health]. Ñ

COPIES FURNISHED :

Ian Tuttle

46 Gold Finch Way

Crawfordville, Florida 32327

(eServed)

A ndrew Pietrylo, Jr. , Esquire

Roger Maas, Esquire

Department of Business and

Professional Regulation

Capital Commerce Center

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

Jason Maine, General Counsel

Department of Business and

Professional Regulation

Capital C ommerce Center

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

Paige Shoemaker, Deputy Gen eral Counsel

Office of the General Counsel

Department of Business and

Professional Regulation

Capital Commerce Center

2601 Blair Stone Road

Talla hassee, Florida 32399 - 2202

(eServed)

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.