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

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION,

Petitioner,

vs. Case No. 17 - 1977

JONATHAN JAY JOHNSON,

Respondent.

_______________________________/

RECOMMENDED ORDER

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

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

sites in Sarasota and Tallahassee, Florida, before Administrative

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

Administrative Hearings (Division).

APPEARANCES

For Petitioner: Andrew Howat Butler, Esquire

Roger R. Maas, Esquire

Cristina Draguta, Esquire

Department of Business

and Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

For Respondent: Jonathan Jay Johnson , pro se

10211 38th Court E

Parish, Florida 34219

STATEMENT OF THE ISSUE S

Whether Respondent engaged in cons truction contracting

without a license as alleged in the Administrative Complaint;

and, if so, the appropriate penalty.

PRELIMINARY STATEMENT

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

Professional Regulation (DBPR or Petitioner), filed an

Administrative Complaint alleging that Jonathan Jay Johnson,

Respondent, Ðviolated section 489.13, Florida Statutes, by

performing an activity requiring licensure under chapter 489,

part I, Florida Statutes, as a construction contractor without

the requis ite license.Ñ Respondent disputed the material facts

alleged in the Administrative Complaint and timely requested a

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

Florida Statutes. 1/

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

Di vision for assignment of an administrative law judge to conduct

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

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

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

Recognition (motion), see king recognition of various Florida

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

certificates of non - licensure regarding Johnathan Jay Johnson and

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

response to the motion. The motion was granted and the

undersigned took official recognition of the various Florida

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

certificates of non - licensure. 2/

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

scrivenerÓs error in paragraph 6 of the Administrative Complaint

regarding the date on which Respondent Ðoffered, contracted, or

performedÑ the alleged construction. Respondent did not object,

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

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

LLC, offered, contracted, or performed regulated construction

contracting services, including but not limited to, installation

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

Petit ioner presented the testimony of Peter Sylvester, and

C. Gisela Menendez, DBPRÓs unlicensed activity investigator

supervisor. PetitionerÓs Exhibits 2 through 6 3/ were admitted

without objection. Respondent testified on his own behalf.

RespondentÓs Exhib its 1 through 5 4/ were admitted without

objection .

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

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

the parties to submit their post - hearing submissions no later

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

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

preparation of this Recommended Order. To the extent that either

PRO has information that was not subjected to cross - examination

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

the preparation of this Recommended Order.

Unless otherwise indicated, all references to the Florida

Statutes or rules of the Florida Administrative Code refer to the

2015 versions in effect at the time the alleged violations were

committed.

FINDING S OF FACT

1. DBPR is the state agency responsible for regulating the

practice of construction contracting pursuant to section 20.165

and chapters 455 and 489, Florida Statutes.

2. DBPR has jurisdiction over the unlicense d practice of

construction contracting pursuant to sections 455.227, 455.228,

and 489.13, Florida Statutes.

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

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

certified to perform constru ction contracting services in

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

Ðoffered, contracted, or performed regulated construction

contracting services, including but not limited to, installation

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

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

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

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

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

relationship.Ñ

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

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

3905 Cardiff Place, Parrish, Florida. 5/ At that time,

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

install a motor.

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

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

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

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

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

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

and Mr. Sylvester called Mr. Johnson.

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

motor . The motor s tarted working .

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

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

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

with the installation; however there was no description of the

type or l ength of the warranty provided. 6/

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

including the 3905 Cardiff Place location to another company.

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

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

Mr. Sylvester credibly testified that his only contact with the

other company was shortly after the notification that Mr. Johnson

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

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

service.

10. Approximately three to four months (July or August

2016) after the motor was installed, it stopped working. The

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

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

to light that Respondent was not licensed.

11 . Petitioner established that it incurred $217.09 in

investigative costs while investigating this complaint.

12 . The evidence is clear and convincing that RespondentÓs

installation of the motor constituted the practice of

construction contracting without a license. As a result,

Respondent is guilty of unlicensed contracting, as charged in the

Administrative Complaint.

CONCLUSIONS OF LAW

13 . The Division of Administrative Hearings has subject

matter jurisdiction in this proceeding, pursuant to sections

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

14 . In this matter, Petitioner seeks to impose an

administrative fine against Respondent. 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 Complaint.

§ 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 So. 2d 292 (Fla. 1987); Pou v. DepÓt of Ins. and

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

15 . Clear and convincing evidence Ðrequires more proof than

a Òpreponderance of the evidenceÓ but less than Òbeyond and to

the ex clusion 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 m ust

be distinctly remembered; the testimony must

be precise and lacking in confusion as to the

facts at issue. The evidence must be of such

a weight that it produces in the mind of the

trier of fact a firm belief or conviction,

without hesitancy, as to th e 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 seem s to preclude evidence that is ambiguous.Ñ Westinghouse

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

1991).

16 . The Administrative Complaint charged Respondent with

violating section 489.13(1) by performing an activity requiring

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

construction contractor without the requisite license.

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

The relevant portion of section 489.127 provides:

(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; . . . .

18 . As referenced in the foregoing statute, the term

contractor is defined in section 489.105, which provides in

relevant matter:

(3) ÐContractorÑ 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.

* * *

(k) ÐResidential pool/spa contractorÑ means

a contractor whose scope of work involve s,

but is not limited to, the construction,

repair, and servicing of a residential

swimming pool, or hot tub or spa, regardless

of use. The scope of work includes the

installation, repair, or replacement of

existing equipment, any cleaning or equipment

sa nitizing that requires at least a partial

disassembling, excluding filter changes, and

the installation of new pool/spa equipment,

interior finishes, the installation of

package pool heaters, the installation of all

perimeter piping and filter piping, and the

construction of equipment rooms or housing

for pool/spa equipment, and also includes the

scope of work of a swimming pool/spa

servicing contractor. The scope of such work

does not include direct connections to a

sanitary sewer system or to potable wat er

lines. The installation, construction,

modification, or replacement of equipment

permanently attached to and associated with

the pool or spa for the purpose of water

treatment or cleaning of the pool or spa

requires licensure; however, the usage of

suc h equipment for the purposes of water

treatment or cleaning does not require

licensure unless the usage involves

construction, modification, or replacement of

such equipment. Water treatment that does

not require such equipment does not require a

license. In addition, a license is not

required for the cleaning of the pool or spa

in a way that does not affect the structural

integrity of the pool or spa or its

associated equipment.

19 . 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

acti vity for pur poses 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 investigati ve and legal costs for

prosecution of the 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 t he fine under this

subsection.

20 . Petitioner has proven the allegation in the

Administrative Complaint by clear and convincing evidence.

Respondent or someone working at RespondentÓs direction installed

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

compensated for the work.

2 1 . Petitioner has adopted Disciplinary Guidelines to

provide the range of appropriate penalties to be imposed for

unlicensed activity.

22 . Florida Administrative Code Rule 61 - 5.007 provides in

pertinent part, the follo wing guidelines:

(1) In imposing disciplinary penalties upon

unlicensed persons, the Department of

Business and Professional Regulation

(hereinafter, ÐDepartmentÑ) shall act in

accordance with the following disciplinary

guidelines and shall impose a penal ty

consistent herewith absent the application of

aggravating or mitigating circumstances and

subject to the provisions of Sections 455.227

and 489.13, F.S.

* * *

(3) All penalties established herein are for

each count or separate violation found .

* * *

(6) For practicing a profession without

holding the requisite license to do so, the

following penalties shall apply:

(a) First violation Î $3000 administrative

fine;

(b) Second violation Î $4000 administrative

fine; and,

(c) Third and subsequent violations Î $5000

administrative fine.

(7) Notwithstanding the foregoing,

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

result in the imposition of a $10,000

administrative fine.

(8) Circumstances which may be considered

for the purposes of mitigation or aggravation

of the foregoing penalties shall include the

following:

(a) Monetary or other damage to the

unlicensed personÓs customer and/or other

persons, in any way associated with the

violation, which damage the unlicensed person

has n ot relieved as of the time the penalty

is to be assessed.

(b) The severity of the offense.

(c) The danger to the public.

(d) The number of repetitions of offenses.

(e) The number of complaints filed against

the unlicensed person.

(f) The length o f time the unlicensed person

has been engaging in unlicensed activity.

(g) The actual damage, physical or

otherwise, to the unlicensed personÓs

customer.

(h) The deterrent effect of the penalty

imposed.

(i) The effect of the penalty upon the

unlicens ed personÓs livelihood.

(j) Any efforts at rehabilitation.

(k) The unlicensed personÓs use of an

altered license or impersonation of a

licensee .

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

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

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

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

of any fine imposed if the unlicensed contractor complies with

certification or registration within 1 year after impositi on of

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

would be appropriate to do so if Respondent meets the

requirements.

25 . Section 489.13(3) authorizes Petitioner to assess

reasonable investigative costs for prosecution of the alleged

vio lation 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 $217.09 related to this matter.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Business and

Professional Regulation issue a final order that:

1. Finds Respondent guilty of unlicensed contracting in

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

Complaint;

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

3. Requires Mr. Johnson to pay the DepartmentÓs

investigative costs of $217.09.

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

Tallahassee, Leon County, Florida.

S

LYNNE A. QUIMBY - PENNOCK

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

File d with the Clerk of the

Division of Administrative Hearings

this 12 th day of June, 2017 .

ENDNOTE S

1/ The Election of Rights form contains three options and

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

persons to Ðspecifically disputeÑ th e material facts at issue,

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

pages were attached when the material was transferred to the

Division, and the undersigned has no knowledge of what was

disputed.

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

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

construction contractor in the state of Florida.

The other certificate of non - licensure identified that J3

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

an active license as a construction business in the state of

Florida.

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

Bate s stamped pages 14 through 22 contained illegible documents

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

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

side of the page) were provided by Petitioner in readable

fashion.

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

found on PetitionerÓs Bate s stamped page 19.

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

including the pool, at this location.

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

Complaint is based on the installation (construction ) of the

motor.

COPIES F URNISHED:

Jonathan Jay Johnson

10211 38th Court E

Par r ish, Florida 34219

Andrew Howat Butler, Esquire

Department of Business

and Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

Roger R. Maas, Esquire

Depar tment of Business

and Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

Cristina Draguta, Esquire

D epartment of Business

and Profes sional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399

(eServed)

A lison Parker, Deputy General Counsel

Office of the General Counsel

Department of Business

and Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

Jason Maine, General Counsel

Office of the General Counsel

Department of Business

and Professional Regulation

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 Orde r. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.