17-005781 Department Of Business And Professional Regulation vs. Ryan D. Kirkland, A/K/A Ryan Dee Lon Kirkland Status: Closed Recommended Order on Friday, January 19, 2018.

Summary: Petitioner met its burden and demonstrated that Respondent violated section 489.13(1) by offering to perform regulated construction contracting services without holding an active and valid certification.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION,

Petitioner,

vs. Case No. 17 - 5781

RYAN D. KIRKLAND , a/k/a RYAN DEE

LON KIRKLAND,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on November 22, 2017, by video te leconference at sites in Miami

and Tallahassee, Florida, before Administrative La w Judge June C.

McKinney of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Alphonse Antonio Cheneler, Esquire

Joseph Klein, Esquire

Department of Business and

Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399

STATEMENT OF ISSUE S

Whether Respondent violated section 489.13(1), Florida

Statutes (2016) 1/ , by offering, contracting, or performing

regulated construction services, for compensation, as charged in

the Administrative Complaint; and, if so, what penalty should be

imposed.

PRELIMINARY STATEMENT

On A ugust 25, 2017, the Department of Business and

Professional Regulation ( " Petitioner " or " DBPR " ) filed an

Administrative Complaint against Ryan D. Kir kland , a/k/a Ryan Dee

Lon Kirkland ( " Respondent " or " Kirkland " ) alleg ing Respondent

violated section 489.13(1) by offering to perform regulated

construction contracting services without holding an active and

valid certification or registration.

Respondent filed a timely request for hearing contesting

the Administrative Complaint. Subsequently , the case was

referred to the Division of Administrative Hearings ( " DOAH " ).

Pursuant to no tice , t he matter proceeded to hearing as scheduled

on November 22, 2017.

At the final hearing , Petitioner pre sented the testimony of

Sonnya R oa - Zaiter, DBPR ' s unlicensed activity i nvestigative

s pecialist. Petitioner ' s Exhibits numbered 1, 2 - A, 5, and 7 were

admitted into evidence. Respondent did not appear at the final

hearing.

The one - volume Transcript was filed on January 3, 2017.

Petitioner filed its Proposed Recommended Order, which has been

considered in the preparation of this Recommended Order.

Respondent did not file any post hearing pleadings.

FINDINGS OF FACT

1. Petitioner is the state agency charged with the

licensing and regulation of the construction industry, pursuant

to section 20.165 and chapters 455 and 489, Florida Statutes.

2. On September 29, 201 6 , by letter, the Broward County

Environment Protection an d Growth Management Department forwarded

a complaint to DBPR indicating the subject matter " appears to

fall within your area of jurisdiction. "

3. The complaint alleged that Ryan D. Kirkland, d/b/a The

Shining Light Construction, Inc. , represented himself as a

licensed contractor, provided a quote, and cashed the check from

the victim, Rayon Richards ( " Richards " ) .

4. DBPR assigned Sonya Roa - Zaiter ( " Roa - Zaiter " ) ,

i nvestigator, to investigate the complaint.

5. During the investigation, Roa - Zaiter interviewed

individuals and reviewed several documents to determine

Respondent ' s licensure status and relationship with Richards.

6. Roa - Zaiter discovered that o n July 20, 2016 , Respondent

presented Richards with a written proposal ( " proposal " ) to

perform construction work at Richard ' s ren tal property, located

at 3234 Northwest 31st Terrace, Oakland Park, Florida 33309.

7. In the proposal, Respondent offered to perform regulated

services for compensation in the amount of $1,500.00.

8. Specifically, Respondent offered to replace a kitchen

faucet, remove a dishwasher, install a new water line and replace

exhaust fans .

9. Respondent ' s proposal listed the company as " State

License Insured, " but contained the license number CGC 1518408 ,

which is a certified general contractor license number that

belongs to Bernard Forges .

10. Bernard Forges did not give Respondent permission to

use his license number.

11. Respondent is not licensed and has never been certified

or registered as a constru ction contractor in the State of

Florida.

12. Additionally, at all times material to the allegations

in this matter, The Shining Light Construction, Inc. , has not

been an entity properly qualified or licensed in the practice of

construction in the State of Florida.

13. Roa - Zaiter also discovered during t he investigation

that o n or about July 22, 2016, Respondent accepted $750.00 as

partial payment to perform the services listed in the proposal

and cashed the check for the services without performing any of

the work .

14. After DBPR completed the investigatio n, it was

determined that Respondent offered to perform a regulated service

for compensation without a license contr ary to Florida law.

15. On November 1, 2016, DBPR issue d Respondent a Notice to

Cease and Desist , which notified Respondent that he " may be

practicing as a CONTRACTOR (in any trade) without the

professional license or certification required by Florida law . "

16. On April 25 , 2017, DBPR issued an Administrative

Complaint charging Respondent with violation of section 489 .13(1)

for offering to perform regulated construction contracting

services for compensation without holding an active and valid

certificatio n or registration.

17. Respondent contested the Administrative Complaint and

requested a hearing.

18. Roa - Zaiter spent 18 hours and four minutes

investigating Respondent ' s case. DBPR incurred $624.78 for the

investigation relating to Respondent ' s actions in this case ,

excluding costs relating to any attorney ' s time.

CONCLUSIONS OF LAW

19. DOAH has jurisdiction over the subject matter of the

proceeding and the parties thereto pursuant to sections 120.569

and 120.57(1), Florida Statutes ( 2017 ) .

20. Petitioner has authority over the unlicensed practice

of construction contracting pursuant to sections 455.227,

455.228, and 489.13, Florida Statutes.

21. DBPR regulates the construction industry in order to

protect the health, safety, and welfare of the public. See

§ 489.101 , Fla. Stat.; Earth Trades, Inc. v. T&G Corp ., 108 So.

3d 580, 584 (Fla. 2013).

22. Petitioner bears the burden of proving by clear and

convincing evidence the allegations against Respondent. See

§ 120.57(1)(j) , Fla. Stat.; Dep't of Banking & Fin., Div. of Sec.

& Inv' r Prot. v. Osborne Stern & Co. , 670 So. 2d 932, 935 (Fla.

1996).

23. The clear and convincing standard of proof has been

described 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 explicit and the witnesses

must be lacking in confusion as to t he facts

in issue. The evidence must be of such

weight that it produces in the mind of the

trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the

allegations sought to be established.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994)(quoting Slomowitz v.

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

24. The Administrative Complaint charged Respondent with a

violat ion of section 489.13(1), which provides in pertinent part:

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, re gardless 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.

25. Section 489.105(3) defines a contractor and provides in

pertinent part :

" Contractor " means . . . . the person who,

for compensation, undertakes to, submits a

bid to, or does himself or herself or by

others construct, repair, alter, remodel, add

to, demolish, su btract from, or improve any

building or structure, including related

improvements to real estate, for others or

for resale to others; and whose job scope is

substantially similar to the job scope

described in one of the paragraphs of this

subsection. . . .

(a) " General contractor " means a contractor

whose services are unlimited as to the type

of work which he or she may do, who may

contract for any activity requiring licensure

under this part, and who may perform any

work requiring licensure under this part,

except as oth erwise expressly provided in

s. 489.113.

(b) " Building contractor " means a contractor

whose services are limited to construction of

commercial buildings and single - dwelling or

multiple - dwelling residential buildings,

which do not exceed three stories in height,

and accessory use structures in connection

therewith or a contractor whose services are

limited to remodeling, repair, or improvement

of any size building if the services do not

affect the structural members of the

building.

(c) " Residential contractor " means a

contractor whose services are limited to

construction, remodeling, repair, or

improvement of one - family, two - family, or

three - family residences not exceeding two

habitable stories above no more than one

uninhabitable story and accessory use

structures in connection therewith.

26. Section 48 9.127 sets forth the prohibition against

acting as a construction contractor without a license, and

provides in pertinent part:

(1) No person shall :

* * *

(f) Engage in the business or act in the

capacity of a contractor or advertise himself

or herself or a business organization as

available to engage in the business or act in

the capacity of a contractor without being

duly registered or certified [.]

27. In t his matter, Petitioner has proven by clear and

convincing evidence that the unlicensed Respondent offered

regulated services for compensation by presenting a proposal to

Richards for a contract price of $1 , 500.00 . The evidence is also

undisputed that b y Respondent offering to replace exhaust fans , a

kitchen faucet, remove a dishwasher, and install a new water

line, for compensation, without possessing the requisite state

license is a violation of section 489.13(1) because a licensed

contractor should be p erforming such work .

28. The legislature set parameters for penalties for

unlicensed practice . Section 489.13 provides in pertinent 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 the violation against the

unlicensed contractor. The department may

waive up to one - half of any fine im posed if

the unlicensed contractor complies with

certification or registration within 1 year

after imposition of the fine under this

subsection.

29. Florida Administrative Code Rule 61 - 5.007 sets forth

the Disciplinary Guidelines for Unlicensed Activity to be

followed by DBPR . In the absence of aggravating or mitigating

circumstances, DBPR is to impose a penalty consistent with the

guidelines outlined therein. See Id .

30. Penalties imposed must be consistent with the

disciplinary guidelines prescribed by rule. See Parrot Hea ds v.

Dep't of Bus. & Prof'l Reg. , 741 So. 2d 1231, 1233 - 34 (Fla. 5th

DCA 1999).

31. Rule 61 - 5.007(6) provides, in pertinent part: " For

practicing a profession without holding the requisite lice nse to

do so, the following penalties shall apply: (a) First violation

Î $3000 administrative fine[.] "

32. In Petitioner's Proposed Recommended Order, DPBR

requests imposition of the guideline penalty amount of $3,000.00 ,

plus the costs of DBPR ' s investigation in the amount of $624.78.

33. Petitioner presented compelling evidence that DBPR

incurred $624.78 in investigative costs in this case, excluding

costs related to any attorney ' s time.

34. No circumstances were shown that would warrant

dep arture from the penalty guidelines in rule 61 - 5.007(6) .

RECOMMENDATION

Based on the foregoing Findings of Fact and C onclusions of

L aw, it is RECOMMENDED that the Department of Business and

Professional Regulation enter a final order : finding R espondent,

Ryan D. Kirkland , a/k/a Ryan Dee Lon Kirkland, guilty of

violating section 489.13(1), Florida Statutes ; imposing an

administrative fine of $3,000.00 ; and assessing costs in the

amount of $624.78.

DONE AND ENTERED this 19th day of January, 2018, in

Tallahassee, Leon County, Florida.

S

JUNE C. MCKINNEY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of January, 2018 .

ENDNOTE

1/ Unless otherwise noted, all statutory references are to the

Florida Statutes (2016).

COPIES FURNISHED:

Alphonse Antonio Cheneler, Esquire

Joseph Klein, Esquire

Department of Business and

Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399

(eServed)

Ryan D. Kirkland

Ryan D. Kirkland , a / k / a Ryan

Dee Lon Kirkland

2961 Northwest 172nd Terrace

Miami Gardens, Florida 33056

Roger R. Maas, Esquire

Department of Business and

Professional Regulation

2601 Blair Stone Road

Tallahassee, F lorida 32399 - 2202

(eServed)

Alison Parker, Deputy General Counsel

Office of the General Counsel

Department of Business and

Professional Regulation

Capital Commerce Center

2601 Blair Stone Road

Tallahassee, 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 ca se.