18-006578 Department Of Business And Professional Regulation vs. Ricky Lee Diemer Status: Closed Recommended Order on Monday, April 1, 2019.

Summary: The Department proved by clear and convincing evidence that the Respondent engaged in unlicensed construction and electrical contracting.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION,

Petitioner,

vs. Case Nos. 18 - 6578

18 - 6579

RICKY LEE DIEMER,

Respondent.

_______________________________/

RECOMMENDE D ORDER

Pursuant to notice, a final hearing was conducted on

February 19, 2019, in Tallahassee, Florida, before Garnett W.

Chisenhall, a duly designated Administrative Law Judge of the

Division of Administrative Hearings (ÐDOAHÑ).

APPEARANCES

For Petition er: Carlos Conrado Lloreda, Esquire

Jackson Alexander Pellingra, Esquire

Mike Joseph Gordon, Esquire

Department of Business

and Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399

For Respondent: No Appearance

STATEMENT OF THE ISSUE S

The issue is whether Respondent (ÐRicky Lee DiemerÑ) offered

to engage in unlicensed contracting as alleged in the

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

imposed.

PRELIMINARY STATEMENT

The Department of Business and Professiona l Regulation

(Ðthe DepartmentÑ) issued a two - count Administrative Complaint

on July 10, 2018, alleging that Mr. Diemer violated

section 489.127(1)(f), Florida Statutes (2017) , 1/ by advertising

Ðregulated electrical contracting services via the Internet at

craigslist.org for compensation in FloridaÑ on or about

January 12, 2018. The Administrative Complaint also alleged that

Mr. Diemer violated section 455.227(1)(q), Florida Statutes, Ðby

practicing electrical contracting [at 403 4 Blairs t one Road,

Talla hassee, Florida 32311 - 3307] without the requisite license,

in violation of section 489.531(1)(a), Florida Statutes.Ñ

Mr. Diemer disputed the Administrative ComplaintÓs

allegations, and the Department referred this matter to DOAH on

December 17, 2018, wher e it was assigned DOAH Case N o. 18 - 6579.

The Department issued another two - count Administrative

Complaint on July 11, 2018, alleging that Mr. Diemer violated

section 489.127(1)(f), by advertising Ðregulated construction

contracting services via the Interne t at craiglist.org for

compensation in FloridaÑ on or about January 12, 2018. The

Administrative Complaint also alleged that Mr. Diemer violated

section 489.13(1), by offering Ðregulated construction

contracting services, including but not limited to, rem oval and

replacement of exterior doors and [a] kitchen sink at 4034

Blairstone Road, Tallahassee, Florida 32311 - 3307Ñ on

approximately February 7, 2018.

Mr. Diemer also disputed this Administrative ComplaintÓs

allegations, and the Department referred thi s matter to DOAH on

December 17, 2018, where it was assigned DOAH C ase N o. 18 - 6578.

On December 21, 2018, the undersigned issued an Order

consolidating DOAH C a se N os. 18 - 6578 and 18 - 6579. The

undersigned also issued a n otice scheduling the final hearing f or

February 19, 2019.

On December 26, 2018, Mr. Diemer filed a ÐRequest for

DismissalÑ asking the undersigned to dismiss the instant case.

The undersigned construed the aforementioned pleading as a m otion

to d ismiss and issued an Order on January 4, 20 19, denying the

m otion to d ismiss.

The Department filed a ÐMotion to Deem Admissions Admitted &

Relinquish JurisdictionÑ (Ðthe Motion to RelinquishÑ) on

February 8, 2019. In support of its request that DOAH relinquish

jurisdiction over this matter, the Department asserted that

Mr. Diemer had failed to respond to any of the DepartmentÓs

discovery requests, including requests for admissions.

On February 15, 2019, the undersigned issued an Order

denying the m otion to r elinquish , in part , because there was Ðno

indication that the pro se Respondent was aware of the

consequences associated with being nonresponsive to the discovery

requests.Ñ

The final hearing took place as scheduled on

February 19, 2019. At the outset of the final hearing, the

Department dismissed its allegation that Mr. Diemer violated

section 489.127(1)(f), Florida Statutes, by advertising

Ðregulated electrical contracting services via the Internet at

craigslist.org for compensation in FloridaÑ on or about

January 12, 201 9 , as alleged in Count Two of the Administrative

Complaint in DOAH Case No. 18 - 6579 . During the remainder of the

final hearing, the Department presented testimony from two

employees , Donald Jacobs and Andrew Mazyck, who had performed the

undercover investigation on whi ch the Administrative Complaints

were based. The undersigned accepted t he Department Exhibits 1

through 3 , 5 and 6 into evidence.

Mr. Diemer did not appear at the final hearing and gave no

indication afterwards that he had been unable to attend.

The one - volume T ranscript from the final hearing was filed

on February 28, 2019. The Department filed a timely p roposed

r ecommended o rder on March 8, 2019. Mr. Diemer filed a r esponse

to the DepartmentÓs p roposed r ecommended o rder on March 11, 2019.

FINDING S OF FACT

Based on the oral and documentary evidence adduced at the

final hearing, matters subject to official recognition, and the

entire record in this proceeding, the following Findings of Fact

are made:

1. The Department is the state agency responsible

for regulating the practice of contracting pursuant to

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

p art I, Florida Statutes.

2. The Department initiated an undercover operation by

gaining access to a house needing numerous repairs. The

Department employees then utilized websites , such as Craigslist

and HomeAdvisor , to identify people offering unlicensed

contracting services.

3. The Department employees found an advertisement posted

by ÐRLD Handyman ServicesÑ on December 26, 2017, offering to

perform multiple types of contracting work. This advertisement

caught the DepartmentÓs attention because it did not li st a

contracting license number. S ection 489.119(5)(b), requires

every advertisement for contracting services to list such a

number . 2/

4. The advertisement listed a phone number, and the

Department utilized the Accurint phone system to ascertain that

the aforementioned phone number belonged to Mr. Diemer.

5. The Department examined its records and ascertained that

Mr. Dieme r was not licensed to perform construction or electrical

contracting in Florida.

6. The Department contacted Mr. Diemer and approximately 12

other people offering contracting services and scheduled

appointments for those people to discuss contracting wor k with an

undercover Department employee at the house mentioned above.

7. An undercover Department employee told Mr. Diemer and

the other prospective contractors that he had recently bought the

house and was hoping to sell it for a profit after making s ome

quick repairs.

8. An undercover Department employee met Mr. Diemer at the

house and described their resulting conversation as follows:

A : We looked at remodeling a deck on the

back, the southern portion of the home. We

looked at cabinets, flooring and painting

that are nonregulated in nature, but also

plumbing and general contracting services

such as exterior doors that needed to be

replaced, and the electrical, some appliances

and light fixtures.

Q : All right. So was there any follow - up

communi cation from Mr. Diemer after your

discussion at the house?

A : Yes. We walked around the house. He

looked at the renovations that we were

asking. He took some mental notes as I

recall. He didnÓt make any written notes as

some of the others had done. He did it all

in his head, said that he was working on

another project in the Southwood area at the

time and just left his work crew there to

come and visit with me and was rushed for

time. So he was in and out of there in 10 to

15 minutes. It was pretty quick.

Q : Okay.

A : But he took the mental notes and said

that he would go back and write something up

and send me a proposal through our

Gmail . . . .

9. On February 7, 2018, Mr. Diemer transmitted an e - mail to

the DepartmentÓs fictitious Gmail ac count offering to perform

multiple types of work that require a contracting license:

kitchen sink installation, bathroom remodeling, construction of

an elevated deck and walkway, installation of light fixtures, and

installation of front and back doors . 3/ Mr. Diemer proposed to

perform the aforementioned tasks for $13,200.00 . 4/

10. The work described in Mr. DiemerÓs e - mail poses a

danger to the public if done incorrectly or by unlicensed

personnel . 5/

11. The Department incurred costs of $118.55 for DO AH C ase

N o. 18 - 6578 and $91.45 for DOAH Case No . 18 - 6579.

12. The Department proved by clear and convincing evidence

that Mr. Diemer advertised or offered to practice construction

contracting without holding the requisite license. The

Department also pro ved by clear and convincing evidence that

Mr. Diemer practiced construction and electrical contracting when

he transmitted the February 7, 2018, e - mail.

CONCLUSIONS OF LAW

13. DOAH has jurisdiction over the parties to and the

subject matter of this proc eeding pursuant to sections 120.569

and 120.57(1), Florida Statutes.

14. The Department has the burden of proving the

allegations in the Administrative Complaint by clear and

convincing evidence. See DepÓt of Banking & Fin . v. Osborne,

Stern & Co. , 670 So. 2d 932 (Fla. 1996).

15. The clear and convincing evidence standard requires

that the evidence Ðmust 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. Ñ In re Davey , 645 So. 2d 398, 404 (Fla. 1994).

16. Contractin g is regulated under p art I of c hapter 489.

See §§ 489.101 - 146, Fla. Stat.

17. ÐContractorÑ is defined as:

[T]he 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,

subtract from, or improve any building or

structure, including related improvements to

real estate, for others . . . .

§ 489.105(3), Fla. Stat.

18. ÐContractingÑ is defined to mean:

[E]ngaging in business as a contractor and

includes, but is not limited to, performance

of any of the acts as set forth in subsection

(3) which define types of contractors. The

attempted sale of contracting service s and

the negotiation or bid for a contract on

these services also constitutes contracting.

If the services offered require licensure or

agent qualification, the offering,

negotiation for a bid, or attempted sale of

these services requires the correspondi ng

licensure . . . .

§ 489.105(6), Fla. Stat. (emphasis added).

19. Section 489.127(1)(f ) provides that no person shall

engage :

[I] n the business or act in the capacity of a

contractor or advertise himself or herself or

a business organization as av ailable to

engage in the business or act in the capacity

of a contractor without being duly registered

or certified.

20. The Department provided by clear and convincing

evidence that Mr. Diemer violated section 489.127(1)(f).

21. Section 489.13 provid es in pertinent part that

(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 h er to

perform such activity, regardless of whether

he or she holds a local construction

contractor license or local certificate of

competency.

22. The Department proved by clear and convincing evidence

that Mr. Diemer violated section 489.13(1).

23. The Department also alleges that Mr. Diemer engaged in

unlicensed electrical contracting. Section 489.505(12 ) defines

an Ðelectrical contractorÑ as :

[A] person who conducts business in the

electrical trade field and who has the

experience, knowledge, an d skill to install,

repair, alter, add to, or design, in

compliance with law, electrical wiring,

fixtures, appliances, apparatus, raceways,

conduit, or any part thereof, which

generates, transmits, transforms, or utilizes

electrical energy in any form, inc luding the

electrical installations and systems within

plants and substations, all in compliance

with applicable plans, specifications, codes,

laws, and regulations. The term means any

person, firm, or corporation that engages in

the business of electrica l contracting under

an express or implied contract; or that

undertakes, offers to undertake , purports to

have the capacity to undertake, or submits a

bid to engage in the business of electrical

contracting ; or that does itself or by or

through others engag e in the business of

electrical contracting.

§ 489.505(12), Fla. Stat. (emphasis added).

24. Section 489.531(1)(a ) prohibits one from practicing

electrical contracting without being Ðcertified or registered,Ñ

and section 455.227(1)(q) subjects one to discipline for

violating the practice act governing contractors.

25. The Department proved by clear and convincing

evidence that Mr. Diemer violated section 455.227(1)(q) via

section 489.531(1)(a).

26. Mr . Diemer argued in pleadings filed prior to the final

hearing that his work falls under the Ðha ndyman exemptionÑ in

section 489 .103(9). The aforementioned statute exempts from

licensure Ð[a]ny work or operation 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 . . . .Ñ)

27. However, the Ðhandyman exemptionÑ is inapplicable to

the instant case because Mr. Diemer proposed to perform work

requiring licensure for $13,200.00. Also, he proposed to perform

all of the work at issue for $35,100.

28. With regard to the penalty to be imposed,

section 489.13(3 ) provides as follows:

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 imposed if the

unlicensed cont ractor 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

disciplinary guidelines for unlicensed activity. Rule 61 -

5.007(5)(a) provides that a first offense for advertising or

offering to practice a profession without holding the requisite

license is subject to a $1,500.00 administrative fine. Rule 61 -

5.007(6)(a) provides that a first offense for practicing a

profession without holding t he requisite license is subject to a

$3,000.00 administrative fine.

30. The Department proved by clear and convincing evidence

that Mr. Diemer committed one violation of advertising unlicensed

contracting services. The Department proved by clear and

co nvincing evidence that Mr. Diemer committed two additional

violations by practicing construction and electrical contracting

without a license.

31. Rule 61 - 5.007(6)(a) indicates that Mr. Diemer should be

fined $7,500.00 for the aforementioned violations.

32. Rule 61 - 5.007(8) sets forth circumstances that may be

considered for mitigating or aggravating the guideline penalties.

Pertinent to the instant case are factors relating to the danger

to the public and the deterrent effect of the penalty imposed.

33. As noted above, Mr. Diemer offered to perform certain

activities that represent a substantial danger to the public if

performed poorly. The undersigned concludes that increasing

Mr. DiemerÓs administrative fine by $1,500.00 accounts for the

dange r posed to the public and deters Mr. Diemer from committing

additional offenses in the future . 6/

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 requiring Ricky Lee

Diemer to pay a $9,000.00 administrative fine and costs of

$210.00.

DONE AND ENTERED this 1s t day of April , 2019 , in

Tallahassee, Leon County, Florida.

S

G. W. CHISENHALL

Administra tive 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

th is 1s t day of April , 2019 .

ENDNOTE S

1/ All statutory references shall be to the 2017 version of the

Florida Statutes unless indicated otherwise.

2/ Mr. DiemerÓs advertisement is a hearsay statement. However,

it can form the basis for a finding of fact because it is

admissible as a hearsay exception. See § 90.803(18)(a), Fla.

Stat. (providing that a statement offered against a party that is

the partyÓs own statement is admissible as a hearsay exception).

3/ Mr. DiemerÓs e - mail is another hearsay statement, but it is

also admissible under section 90.803(18)(a), Florida Statutes.

4/ Mr. DiemerÓs e - mail offered to provide other services that did

not require a contracting license. The cost of those services

was not included in the calculatio n of the $13,200.00 figure.

The cost of all the services Mr. Diemer offered to provide was

$35,100.

5/ Andrew Mazyck, o ne of the DepartmentÓs witnesses , explained

during the final hearing why unlicensed contracting is dangerous

to the public:

The re [are] a lot of safety issues that go

into [electrical contracting]. Even

installing a kitchen sink you could have your

whole kitchen and bottom floor flooded if

itÓs not installed properly and sealed

properly. In this case no permits would be

pulled b ecause heÓs not a licensed individual

for the front and back doors or the deck. So

all of that can come back on the homeowner.

Since [unlicensed contractors] donÓt carry

any insurance, the homeowner doesnÓt really

have any recourse besides to sue him

per sonally and not a business. So

[homeowners] can b e hurt financially in that

way.

The DepartmentÓs other witness , Donald Jacobs, offered

similar testimony by explaining that :

[T] he homeowner is taken advantage of.

TheyÓre usually charged exorbitant f ees.

TheyÓre not being permitted. TheyÓre not

being inspected, so the homeowner never knows

if itÓs being done to Florida standards of

the Florida code, would it withstand some of

our weather conditions that we have here in

north Florida. They also have no recourse

should there be shoddy work or some sort of

negligence on the part of the contractor.

ThereÓs no insurance. There is no workersÓ

compensation. If someone were to be injured

while on the job site, the homeowner could be

held liable. Then th e natural things. If

not put up correctly, itÓs liable to fall

down. If itÓs not hooked up correctly, itÓs

liable to start a fire. You could lose

everything by not utilizing a licensed

professional.

6/ In its Proposed Recommended Order, the Departme nt asserted

that the penalty should be aggravated because Mr. Diemer has been

cited on three previous occasions for unlicensed activity and

that his record of unlicensed activity dates back to 2013.

However, the aforementioned allegations cannot serve as grounds

for aggravating the penalty because the Department offered no

evidence at the final hearing to substantiate them.

COPIES FURNISHED:

Ricky Lee Diemer

822 Ridge Road

Tallahassee, Florida 32305 - 7039

Carlos Conrado Lloreda, Esquire

Department of B usiness and Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399

(eServed)

Jackson Alexander Pellingra, Esquire

Department of Business and Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399

(eServed)

Mike Josep h Gordon, Esquire

Department of Business and Professional Regulation

Office of the General Counsel

2601 Blair Stone Road

Tallahassee, Florida 32399

(eServed)

Alison Parker, Deputy 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 Order. Any exceptio ns

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.