17-001977 Department Of Business And Professional Regulation vs. Jonathan Jay Johnson
 Status: Closed
Recommended Order on Monday, June 12, 2017.


View Dockets  
Summary: Petitioner proved that Respondent practiced construction work without a license; Recommend $3000 fine, plus investigative costs.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DEPARTMENT OF BUSINESS AND

12PROFESSIONAL REGULATION,

14Petitioner,

15vs. Case No. 17 - 1977

21JONATHAN JAY JOHNSON,

24Respondent.

25_______________________________/

26RECOMMENDED ORDER

28Pursua nt to notice to all parties, a final hearing was

39conducted in this case on May 8, 2017, via video teleconference

50sites in Sarasota and Tallahassee, Florida, before Administrative

58Law Judge Lynne A. Quimby - Pennock of the Division of

69Administrative Hearings (Division).

72APPEARANCES

73For Petitioner: Andrew Howat Butler, Esquire

79Roger R. Maas, Esquire

83Cristina Draguta, Esquire

86Department of Business

89and Professional Regulation

922601 Blair Stone Road

96Tallahassee, Florida 32399 - 2202

101For Respondent: Jonathan Jay Johnson , pro se

10810211 38th Court E

112Parish, Florida 34219

115STATEMENT OF THE ISSUE S

120Whether Respondent engaged in cons truction contracting

127without a license as alleged in the Administrative Complaint;

136and, if so, the appropriate penalty.

142PRELIMINARY STATEMENT

144On February 1, 2017, Petitioner, Department of Business and

153Professional Regulation (DBPR or Petitioner), filed an

160Administrative Complaint alleging that Jonathan Jay Johnson,

167Respondent, Ðviolated section 489.13, Florida Statutes, by

174performing an activity requiring licensure under chapter 489,

182part I, Florida Statutes, as a construction contractor without

191the requis ite license.Ñ Respondent disputed the material facts

200alleged in the Administrative Complaint and timely requested a

209hearing, pursuant to sections 120.569(2)(a) and 120.57(1),

216Florida Statutes. 1/

219On March 31, 2017, Petitioner referred the matter to the

229Di vision for assignment of an administrative law judge to conduct

240a final hearing. On April 10, 2017, a Notice of Hearing was

252issued, schedulin g the hearing for May 8, 2017.

261On April 25, 2017, Petitioner filed a Motion for Official

271Recognition (motion), see king recognition of various Florida

279Statutes, Florida Administrative Code Rule 61 - 5.007, and two

289certificates of non - licensure regarding Johnathan Jay Johnson and

299J3 Pools & Pressure Washing LLC (J3). Respondent did not file a

311response to the motion. The motion was granted and the

321undersigned took official recognition of the various Florida

329Statutes, Florida Administrative Code Rule 61 - 5.007, and the two

340certificates of non - licensure. 2/

346At the start of the hearing, Petitioner sought to amend a

357scrivenerÓs error in paragraph 6 of the Administrative Complaint

366regarding the date on which Respondent Ðoffered, contracted, or

375performedÑ the alleged construction. Respondent did not object,

383and paragraph 6 was amended to read: ÐOn or about April 6, 2016,

396Respond ent, D/B/A [doing business as] J3 Pools & Pressure Washing,

407LLC, offered, contracted, or performed regulated construction

414contracting services, including but not limited to, installation

422of a pool pump, at 3905 Cardiff P lace, Parrish, Florida 34219.Ñ

434Petit ioner presented the testimony of Peter Sylvester, and

443C. Gisela Menendez, DBPRÓs unlicensed activity investigator

450supervisor. PetitionerÓs Exhibits 2 through 6 3/ were admitted

459without objection. Respondent testified on his own behalf.

467RespondentÓs Exhib its 1 through 5 4/ were admitted without

477objection .

479The one - volume Transcript was filed on May 26, 2017. On

491May 30, 2017 , a Notice of F iling Transcript was issued advising

503the parties to submit their post - hearing submissions no later

514than 5:00 p.m. on Jun e 6, 2017. Both parties timely filed

526Proposed Recommended Orders (PRO) , which have been considered in

535preparation of this Recommended Order. To the extent that either

545PRO has information that was not subjected to cross - examination

556during the hearing, tha t information has not been considered in

567the preparation of this Recommended Order.

573Unless otherwise indicated, all references to the Florida

581Statutes or rules of the Florida Administrative Code refer to the

5922015 versions in effect at the time the alleged violations were

603committed.

604FINDING S OF FACT

6081. DBPR is the state agency responsible for regulating the

618practice of construction contracting pursuant to section 20.165

626and chapters 455 and 489, Florida Statutes.

6332. DBPR has jurisdiction over the unlicense d practice of

643construction contracting pursuant to sections 455.227, 455.228,

650and 489.13, Florida Statutes.

6543. At all times material to this matter, Mr. Johnson was

665the owner of J3. Mr. Johnson is not licensed, registered, or

676certified to perform constru ction contracting services in

684Florida. At the heart of this case is whether Mr. Johnson

695Ðoffered, contracted, or performed regulated construction

701contracting services, including but not limited to, installation

709of a pool pump at 3905 Car diff Place, Parris h, Florida.Ñ

7214. Mr. Johnson, via J3, provided pool service, specifically

730pool cleaning to Mr. Sylvester. Mr. Sylvester thought the pool

740cleaning service was very good, and agreed that the two men

751(Mr. Johnson and Mr. Sylvester) had a Ðgood customer - clie nt

763relationship.Ñ

7645. In April 2016, Mr. Sylvester hired Mr. Johnson to

774install a pool pump motor (motor) at a residence located at

7853905 Cardiff Place, Parrish, Florida. 5/ At that time,

794Mr. Sylvester did not know Mr. Johnson was not licensed to

805install a motor.

8086. On the installation day, Mr. Johnson left a voicemail

818message for Mr. Sylvester advising him that the motor had been

829installed, but it would not work. Mr. Johnson speculated that

839the electricity to the motor was turned off, and the switch was

851located in a closed garage. After arriving at the house,

861Mr. Sylvester turned the electricity on, the motor did not work,

872and Mr. Sylvester called Mr. Johnson.

8787. Mr. Johnson came to the pool location and worked on the

890motor . The motor s tarted working .

8988. On April 7, 2016, after the motor was installed,

908Mr. Sylvester (or his wife) wrote a check to ÐJ3 Pools & Pressure

921WashingÑ for $310.00 for the Ðmotor.Ñ A warranty was included

931with the installation; however there was no description of the

941type or l ength of the warranty provided. 6/

9509. In April 2016, Mr. Johnson sold his Ðpool route,Ñ

961including the 3905 Cardiff Place location to another company.

970When contacted about the motor not working, Mr. Johnson advised

980Mr. Sylvester to contact the other compa ny for the warranty work.

992Mr. Sylvester credibly testified that his only contact with the

1002other company was shortly after the notification that Mr. Johnson

1012had sold his pool route. Mr. Sylvester called the other company

1023and ÐfiredÑ them, as he wished to engage a different pool

1034service.

103510. Approximately three to four months (July or August

10442016) after the motor was installed, it stopped working. The

1054pool turned green because the motor was not cycling on and off.

1066This complaint was generated after the m otor failed, and it came

1078to light that Respondent was not licensed.

108511 . Petitioner established that it incurred $217.09 in

1094investigative costs while investigating this complaint.

110012 . The evidence is clear and convincing that RespondentÓs

1110installation of the motor constituted the practice of

1118construction contracting without a license. As a result,

1126Respondent is guilty of unlicensed contracting, as charged in the

1136Administrative Complaint.

1138CONCLUSIONS OF LAW

114113 . The Division of Administrative Hearings has subject

1150matter jurisdiction in this proceeding, pursuant to sections

1158120.569 and 120.57(1), Florida Statues (2016).

116414 . In this matter, Petitioner seeks to impose an

1174administrative fine against Respondent. Because Petitioner seeks

1181to impose a fine, which is penal in nature, Petitioner has the

1193burden of proving by clear and convincing evidence the

1202allegations contained in the Administrative Complaint.

1208§ 120.57(1)(j), Fla. Stat; See DepÓt of Banking & Fin. v. Osborne

1220Stern & Co. , 670 So. 2d 932, 935 (Fla. 1996); Ferris v.

1232Turlington , 510 So. 2d 292 (Fla. 1987); Pou v. DepÓt of Ins. and

1245Treas . , 707 So. 2d 941 (Fla. 3d DCA 1998).

125515 . Clear and convincing evidence Ðrequires more proof than

1265a Òpreponderance of the evidenceÓ but less than Òbeyond and to

1276the ex clusion of a reasonable doubt.ÓÑ In re Graziano , 696 So.

12882d 744, 753 (Fla. 1997). As stated by the Supreme Court of

1300Florida:

1301Clear and convincing evidence requires that

1307the evidence must be found to be credible;

1315the facts to which the witnesses testify m ust

1324be distinctly remembered; the testimony must

1330be precise and lacking in confusion as to the

1339facts at issue. The evidence must be of such

1348a weight that it produces in the mind of the

1358trier of fact a firm belief or conviction,

1366without hesitancy, as to th e truth of the

1375allegations sought to be established.

1380In re Henson , 913 So. 2d 579, 590 (Fla. 2005) (quoting Slomowitz

1392v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983)). This burden

1405of proof may be met where the evidence is in conflict; however,

1417Ðit seem s to preclude evidence that is ambiguous.Ñ Westinghouse

1427Elec. Corp. v. Shuler Bros. , 590 So. 2d 986, 988 (Fla. 1st DCA

14401991).

144116 . The Administrative Complaint charged Respondent with

1449violating section 489.13(1) by performing an activity requiring

1457licensu re under chapter 489, part I, Florida Statutes , as a

1468construction contractor without the requisite license.

147417 . Contracting is regulated under part I of chapter 489.

1485The relevant portion of section 489.127 provides:

1492(1) No person shall:

1496* * *

1499( f) Engage in the business or act in the

1509capacity of a contractor or advertise himself

1516or herself or a business organization as

1523available to engage in the business or act in

1532the capacity of a contractor without being

1539duly registered or certified; . . . .

154718 . As referenced in the foregoing statute, the term

1557contractor is defined in section 489.105, which provides in

1566relevant matter:

1568(3) ÐContractorÑ means the person who . . .

1577for compensation, undertakes to, submits a

1583bid to, or does himself or herself or by

1592others . . . repair, alter, . . . and whose

1603job scope is substantially similar to the job

1611scope described in one of the paragraphs of

1619this subsection.

1621* * *

1624(k) ÐResidential pool/spa contractorÑ means

1629a contractor whose scope of work involve s,

1637but is not limited to, the construction,

1644repair, and servicing of a residential

1650swimming pool, or hot tub or spa, regardless

1658of use. The scope of work includes the

1666installation, repair, or replacement of

1671existing equipment, any cleaning or equipment

1677sa nitizing that requires at least a partial

1685disassembling, excluding filter changes, and

1690the installation of new pool/spa equipment,

1696interior finishes, the installation of

1701package pool heaters, the installation of all

1708perimeter piping and filter piping, and the

1715construction of equipment rooms or housing

1721for pool/spa equipment, and also includes the

1728scope of work of a swimming pool/spa

1735servicing contractor. The scope of such work

1742does not include direct connections to a

1749sanitary sewer system or to potable wat er

1757lines. The installation, construction,

1761modification, or replacement of equipment

1766permanently attached to and associated with

1772the pool or spa for the purpose of water

1781treatment or cleaning of the pool or spa

1789requires licensure; however, the usage of

1795suc h equipment for the purposes of water

1803treatment or cleaning does not require

1809licensure unless the usage involves

1814construction, modification, or replacement of

1819such equipment. Water treatment that does

1825not require such equipment does not require a

1833license. In addition, a license is not

1840required for the cleaning of the pool or spa

1849in a way that does not affect the structural

1858integrity of the pool or spa or its

1866associated equipment.

186819 . As it relates specifically to unlicensed contracting,

1877section 489.13, provides in pertinent part:

1883(1) Any person performing an activity

1889requiring licensure under this part as a

1896construction contractor is guilty of

1901unlicensed contracting if he or she does not

1909hold a valid active certificate or

1915registration authorizing him or her to perform

1922such activity, regardless of whether he or she

1930holds a local construction contractor license

1936or local certificate of competency. Persons

1942working outside the geographical scope of

1948their registration are guilty of unlicensed

1954acti vity for pur poses of this part.

1962* * *

1965(3) Notwithstanding s. 455.228, the

1970department may impose an administrative fine

1976of up to $10,000 on any unlicensed person

1985guilty of unlicensed contracting. In

1990addition, the department may assess

1995reasonable investigati ve and legal costs for

2002prosecution of the violation against the

2008unlicensed contractor. The department may

2013waive up to one - half of any fine imposed if

2024the unlicensed contractor complies with

2029certification or registration within 1 year

2035after imposition of t he fine under this

2043subsection.

204420 . Petitioner has proven the allegation in the

2053Administrative Complaint by clear and convincing evidence.

2060Respondent or someone working at RespondentÓs direction installed

2068a motor at the residence listed above, and Respon dent was

2079compensated for the work.

20832 1 . Petitioner has adopted Disciplinary Guidelines to

2092provide the range of appropriate penalties to be imposed for

2102unlicensed activity.

210422 . Florida Administrative Code Rule 61 - 5.007 provides in

2115pertinent part, the follo wing guidelines:

2121(1) In imposing disciplinary penalties upon

2127unlicensed persons, the Department of

2132Business and Professional Regulation

2136(hereinafter, ÐDepartmentÑ) shall act in

2141accordance with the following disciplinary

2146guidelines and shall impose a penal ty

2153consistent herewith absent the application of

2159aggravating or mitigating circumstances and

2164subject to the provisions of Sections 455.227

2171and 489.13, F.S.

2174* * *

2177(3) All penalties established herein are for

2184each count or separate violation found .

2191* * *

2194(6) For practicing a profession without

2200holding the requisite license to do so, the

2208following penalties shall apply:

2212(a) First violation Î $3000 administrative

2218fine;

2219(b) Second violation Î $4000 administrative

2225fine; and,

2227(c) Third and subsequent violations Î $5000

2234administrative fine.

2236(7) Notwithstanding the foregoing,

2240violations of Section 489.127(1), F.S., may

2246result in the imposition of a $10,000

2254administrative fine.

2256(8) Circumstances which may be considered

2262for the purposes of mitigation or aggravation

2269of the foregoing penalties shall include the

2276following:

2277(a) Monetary or other damage to the

2284unlicensed personÓs customer and/or other

2289persons, in any way associated with the

2296violation, which damage the unlicensed person

2302has n ot relieved as of the time the penalty

2312is to be assessed.

2316(b) The severity of the offense.

2322(c) The danger to the public.

2328(d) The number of repetitions of offenses.

2335(e) The number of complaints filed against

2342the unlicensed person.

2345(f) The length o f time the unlicensed person

2354has been engaging in unlicensed activity.

2360(g) The actual damage, physical or

2366otherwise, to the unlicensed personÓs

2371customer.

2372(h) The deterrent effect of the penalty

2379imposed.

2380(i) The effect of the penalty upon the

2388unlicens ed personÓs livelihood.

2392(j) Any efforts at rehabilitation.

2397(k) The unlicensed personÓs use of an

2404altered license or impersonation of a

2410licensee .

241223 . Pursuant to rule 61 - 5.007(3), the range of penalties

2424for a violation of section 489.127, is $3,000 fo r each count. In

2438this case, the penalty of $3,000 per count is warranted.

244924 . Petitioner is also authorized to Ðwaive up to one - half

2462of any fine imposed if the unlicensed contractor complies with

2472certification or registration within 1 year after impositi on of

2482the fine under this subsection.Ñ £ 489.13(3), Fla. Stat. It

2492would be appropriate to do so if Respondent meets the

2502requirements.

250325 . Section 489.13(3) authorizes Petitioner to assess

2511reasonable investigative costs for prosecution of the alleged

2519vio lation against an unlicensed contractor, in addition to any

2529appropriate fines. The evidence clearly and convincingly

2536establishes that the Department incurred investigative costs in

2544the amount of $217.09 related to this matter.

2552RECOMMENDATION

2553Based on the foregoing Findings of Fact and Conclusions of

2563Law, it is RECOMMENDED that the Department of Business and

2573Professional Regulation issue a final order that:

25801. Finds Respondent guilty of unlicensed contracting in

2588violation of section 489.13(1), as alleged i n the Administrative

2598Complaint;

25992. Imposes an administrative fine of $3,000 ; and

26083. Requires Mr. Johnson to pay the DepartmentÓs

2616investigative costs of $217.09.

2620DONE AND ENTERED this 12 th day of June , 2017 , in

2631Tallahassee, Leon County, Florida.

2635S

2636LYNNE A. QUIMBY - PENNOCK

2641Administrative Law Judge

2644Division of Administrative Hearings

2648The DeSoto Building

26511230 Apalachee Parkway

2654Tallahassee, Florida 32399 - 3060

2659(850) 488 - 9675

2663Fax Filing (850) 921 - 6847

2669www.doah.state.fl.us

2670File d with the Clerk of the

2677Division of Administrative Hearings

2681this 12 th day of June, 2017 .

2689ENDNOTE S

26911/ The Election of Rights form contains three options and

2701Respondent selected option (1). In the space allotted for

2710persons to Ðspecifically disputeÑ th e material facts at issue,

2720the following words appear: ÐSee Paperwork Sent.Ñ No additional

2729pages were attached when the material was transferred to the

2739Division, and the undersigned has no knowledge of what was

2749disputed.

27502/ One certificate of non - licen sure identified that Jonathan Jay

2762Johnson did not have (and has never had) an active license as a

2775construction contractor in the state of Florida.

2782The other certificate of non - licensure identified that J3

2792Pools & Pressure Washing , LLC, did not have (and h as never had)

2805an active license as a construction business in the state of

2816Florida.

28173/ Exhibit 6 contained Bate s stamped pages numbered 9 through 39.

2829Bate s stamped pages 14 through 22 contained illegible documents

2839or pictures. Only Bate s stamped pages 15 (the right side of the

2852page), 16 (the left side of the page), 17 and 18 (only the left

2866side of the page) were provided by Petitioner in readable

2876fashion.

28774/ RespondentÓs Exhibits 3 and 4 were the enlarged document s

2888found on PetitionerÓs Bate s stamped page 19.

28965/ Mr. Sylvester is the authorized caretaker of the property,

2906including the pool, at this location.

29126/ The warranty is a non - issue in this case. The Administrative

2925Complaint is based on the installation (construction ) of the

2935motor.

2936COPIES F URNISHED:

2939Jonathan Jay Johnson

294210211 38th Court E

2946Par r ish, Florida 34219

2951Andrew Howat Butler, Esquire

2955Department of Business

2958and Professional Regulation

29612601 Blair Stone Road

2965Tallahassee, Florida 32399 - 2202

2970(eServed)

2971Roger R. Maas, Esquire

2975Depar tment of Business

2979and Professional Regulation

29822601 Blair Stone Road

2986Tallahassee, Florida 32399 - 2202

2991(eServed)

2992Cristina Draguta, Esquire

2995D epartment of Business

2999and Profes sional Regulation

30032601 Blair Stone Road

3007Tallahassee, Florida 32399

3010(eServed)

3011A lison Parker, Deputy General Counsel

3017Office of the General Counsel

3022Department of Business

3025and Professional Regulation

30282601 Blair Stone Road

3032Tallahassee, Florida 32399 - 2202

3037(eServed)

3038Jason Maine, General Counsel

3042Office of the General Counsel

3047Department of Business

3050and Professional Regulation

30532601 Blair Stone Road

3057Tallahassee, Florida 32399 - 2202

3062(eServed)

3063NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

3069All parties have the right to submit written exceptions within

307915 days from the date of this Recommended Orde r. Any exceptions

3091to this Recommended Order should be filed with the agency that

3102will issue the Final Order in this case.

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Date
Proceedings
PDF:
Date: 12/18/2017
Proceedings: Agency Final Order filed.
PDF:
Date: 08/01/2017
Proceedings: Agency Final Order
PDF:
Date: 06/13/2017
Proceedings: Transmittal letter from Claudia Llado forwarding Petitioner's duplicate Exhibits numbered 1-6. to the agency.
PDF:
Date: 06/12/2017
Proceedings: Recommended Order
PDF:
Date: 06/12/2017
Proceedings: Recommended Order (hearing held May 8, 2017). CASE CLOSED.
PDF:
Date: 06/12/2017
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 06/06/2017
Proceedings: Petitioner's Proposed Recommended Order filed.
PDF:
Date: 05/30/2017
Proceedings: Respondent`s Proposed Recommended Order filed.
PDF:
Date: 05/30/2017
Proceedings: Notice of Filing Transcript.
Date: 05/26/2017
Proceedings: Transcript (not available for viewing) filed.
Date: 05/08/2017
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 05/05/2017
Proceedings: Notice of Ex parte Communication.
Date: 05/05/2017
Proceedings: Respondent's Proposed Exhibits filed (exhibits not available for viewing).
Date: 05/04/2017
Proceedings: (Petitioner's) Notice of Filing Additional Proposed Exhibit filed (exhibits not available for viewing).
PDF:
Date: 05/04/2017
Proceedings: Petitioner's Witness List filed.
PDF:
Date: 05/02/2017
Proceedings: Order Granting Motion to Take Official Recognition.
Date: 05/01/2017
Proceedings: Petitioner's Proposed Exhibits filed (exhibits not available for viewing).
PDF:
Date: 05/01/2017
Proceedings: Notice of Filing Petitioner's Proposed Exhibits filed.
PDF:
Date: 04/27/2017
Proceedings: Notice of Court Reporter filed.
PDF:
Date: 04/27/2017
Proceedings: Notice of Appearance (Cristina Draguta) filed.
PDF:
Date: 04/25/2017
Proceedings: Petitioner's Motion to Take Official Recognition filed.
PDF:
Date: 04/10/2017
Proceedings: Notice of Filing Election of Rights with Attachments filed.
PDF:
Date: 04/10/2017
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 04/10/2017
Proceedings: Notice of Hearing by Video Teleconference (hearing set for May 8, 2017; 9:00 a.m.; Sarasota and Tallahassee, FL).
PDF:
Date: 04/07/2017
Proceedings: Petitioner's Unilateral Response to the Initial Order filed.
PDF:
Date: 04/07/2017
Proceedings: Notice of Appearance (Roger Maas) filed.
PDF:
Date: 04/06/2017
Proceedings: Order Granting Withdrawal.
PDF:
Date: 04/06/2017
Proceedings: Motion to Withdraw as Counsel filed.
PDF:
Date: 04/03/2017
Proceedings: Notice of Petitioner's First Interlocking Discovery Requests filed.
PDF:
Date: 04/03/2017
Proceedings: Notice of Appearance (Andrew Butler) filed.
PDF:
Date: 03/31/2017
Proceedings: Initial Order.
PDF:
Date: 03/31/2017
Proceedings: Election of Rights filed.
PDF:
Date: 03/31/2017
Proceedings: Administrative Complaint filed.
PDF:
Date: 03/31/2017
Proceedings: Agency referral filed.

Case Information

Judge:
LYNNE A. QUIMBY-PENNOCK
Date Filed:
03/31/2017
Date Assignment:
03/31/2017
Last Docket Entry:
12/18/2017
Location:
Sarasota, Florida
District:
Middle
Agency:
Other
 

Counsels

Related DOAH Cases(s) (2):

Related Florida Statute(s) (9):

Related Florida Rule(s) (1):