17-001977
Department Of Business And Professional Regulation vs.
Jonathan Jay Johnson
Status: Closed
Recommended Order on Monday, June 12, 2017.
Recommended Order on Monday, June 12, 2017.
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.
- Date
- Proceedings
- 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 cover letter identifying the hearing record referred to the Agency.
- Date: 05/26/2017
- Proceedings: Transcript (not available for viewing) filed.
- Date: 05/08/2017
- Proceedings: CASE STATUS: Hearing Held.
- 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).
- Date: 05/01/2017
- Proceedings: Petitioner's Proposed Exhibits filed (exhibits not available for viewing).
- 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).
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
-
Andrew Howat Butler, Esquire
Department of Business
2601 Blair Stone Road
Tallahassee, FL 323992202
(850) 717-1435 -
Jonathan Jay Johnson
10211 38th Court E
Parish, FL 34219
(941) 900-7045 -
Roger R Maas, Esquire
Department of Business
2601 Blair Stone Road
Tallahassee, FL 323992202
(850) 717-1210 -
Kimberly Murray, Esquire
Department of Business and Professional Regulation
2601 Blair Stone Road
Tallahassee, FL 32399
(850) 717-1041 -
Andrew Howat Butler, Esquire
Address of Record -
Cristina Draguta, Esquire
Address of Record -
Roger R. Maas, Esquire
Address of Record