21-001160 Department Of Business And Professional Regulation vs. Roderick R. Amar Status: Closed DOAH Final Order on Monday, June 21, 2021.

Summary: The Department did not prove, by clear and convincing evidence, that Respondent advertised himself or his business as available to act in the capacity of a contractor without a license.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

D EPARTMENT OF B USINESS A ND

P ROFESSIONAL R EGULATION ,

Petitioner ,

vs. Case Nos. 21 - 11 60

21 - 1161

R ODERICK R. A MAR , 21 - 1162

Respondent .

/

F INAL O RDER

Administrative Law Judge ( " ALJ " ) Brittany O. Finkbeiner conducted the

final hearing in this case for the Division of Administrative Hearings

( " DOAH " ) on May 14, 2021, by Zoom conference.

A PPEARANCES

For Petitioner: Katie M. Pareja, Esquire

Heather Barnes Page, Esquire

Department of Business and

Professional Regulation

Office of the General Counsel

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

For Respondent: R oderick Amar, pro se

11850 N orthwest 18 th S t reet

Plantation, Florida 33323

S TATEM ENT O F T HE I SSUE S

The issue s to be determined in this case are whether Respondent

advertised himself or his business organization as available to engage in the

business or act in the capacity of a contractor without being duly registered

or certified in vi olation of section 489.127(1)(f), Florida Statutes ; w hether

Respondent acted as a home inspector without being licensed to do so in

violation of section 468.63, Florida Statutes ; w hether Respondent presented

as his own , the home inspection, roofing, and el ectrical certificates or

registrations of another in violation of section 489.127(1)(c) ; a nd, if so, what

penalty should be imposed.

The one - volume Transcript of the final hearing was filed with DOAH on

June 2, 2021 . Petitioner presented the testimony of PetitionerÔs Unlicensed

Activity Investigator Sonnya Roa - Zaiter ( " Ms. Roa - Zaiter " ). PetitionerÔs

Exhibits lettered A through E, Bates stamp ed 1 through 430, and Exhibit L ,

Bates stamp ed 504 and 505 were entered into evidence. Respondent testified

on his ow n behalf. Respondent offered a series of unnumbered exhibits, all of

which were admitted into evidence.

As part of the Joint Pre - Hearing Stipulation, the parties jointly moved for

summary proceedings . Upon consideration of the partiesÔ discussion o n the

matter during the final hearing , and the briefing of the issue in PetitionerÔs

Proposed Recommended Order, this case w ill be treated as a summary

proceeding, pursuant to section 120.574, Florida Statutes. All references to

the Florida Statutes are to the 2 020 codification.

P RELIMINARY S TATEMENT

The Department of Business and Professional Regulation ( " Department "

or " Petitioner " ) filed three Administrative Complaints ( " Complaints " ) against

Roderick R. Amar ( " Respondent " or " Mr. Amar " ). The C omplaints allege d

that Respondent violated sections 489.127(1)(f), 489.127(1)(c), and 468.83 by

offering to perform regulated services for compensation by advertising

himself as available to perform home inspection , roofing services , and

presenting as his own the licenses of another.

Respondent disputed the allegations contained in the Complaints and

requested a formal hearing pursuant to sections 120.569(2)(a) and 120.57(1).

On March 29, 2021, Petitioner referred the case to DOAH for assignment of

an ALJ. Upon motion, an Order of Consolidation consolidating all three

pending cases was issued on April 14, 2021. The final hearing was held on

May 14, 2021. Both parties submitted proposed recommended orders, which

were duly considered in the preparation of this Final Order.

F INDINGS O F F ACT

Based on the demeanor and credibility of the witnesses, the documentary

evidence admitted, and the record as a whole, the following facts are found:

1. Petitioner is the state agency charged with regulating the practice of

construction c ontracting, home inspection, and electrical contracting

pursuant to s ection 20.165, Florida Statutes, and c hapters 455, 468 , and 489,

Florida Statutes. Petitioner has jurisdiction over the unlicensed practices of

construction contracting, home inspection, and electrical contracting

pursuant to sections 489.13, 489.531, 468.83, 455.227, and 455.228.

2. Petitioner initiated this case after it received a complaint from

Gregory Arias ( " Mr. Arias " or " Complainant " ), alleging that Respondent

posted and advertised Mr. AriasÔ s license on a Facebook page for

RespondentÔs business, IAG Foundation ( " IAG " ), without ComplainantÔs

consent. Mr. Arias did not testify at the final hearing, making it impossible to

assess his credibility.

3. The Facebook page for IAG said " St ate Certified Contractors "

underneath the company name and listed ComplainantÔs license numbers.

The page identified Mr. Amar as " Client Relations Manager. "

4. Neither Respondent, nor IA G, held licenses for construction,

contracting, or home inspection. Ho wever, according to Mr. AmarÔs

unrebutted testimony, the operations of IAG and the resulting Facebook

advertisement were planned with the cooperation of Mr. Arias , who provided

his license numbers to Respondent for use in IAGÔs operations . Specifically,

Mr . Amar testified that he and Mr. Arias agreed that Mr. Amar would handle

the client relations aspect of the joint venture while Mr. Arias managed the

contracting aspect. The joint venture, however, never actively operat ed, and

was on hold pending a future hurricane season. Although it was not

conclusively established that Mr. Arias allowed Respondent and IA G to use

his licenses, the evidence presented by Mr. Amar was compelling enough to

render RespondentÔs version of events plausible based on the evidence , and to

cast doubt on PetitionerÔs allegations.

5 . Ms. R oa - Zaiter , the DepartmentÔs only live witness, was tentative

throughout her testimony and was sometimes imprecise in her memory of the

documents and events at issue. Overall, her testimony did not in spire a

degree of confidence high enough to produce a firm belief or conviction in

favor of the DepartmentÔs version of the facts .

Ultimate Facts

6 . In opening statements, counsel for the Department characterized

RespondentÔs Facebook advertisement as " at bestÈconfusing. And at

worstÈdeceptive. " Based on the evidence presented through the lens of the

burden of proof applicable to this case, the undersigned is not clearly

convinced that the advertisement at issue was anything more than simply

confusing. Add itionally, it remains murky what the business relationship was

between Respondent and Complainant with respect to the intended provision

of the advertised services. Under Mr. AmarÔs plausible version of events,

Mr. Arias knowingly lent his licenses to the business venture in which

Mr. Amar would refer customers. The Department proved that the Facebook

advertisement at issue was inartful, but the Department did not prove, by

clear and convincing evidence, that the advertisement constituted Mr. Amar

advertisi ng himself or his business to act in the capacity as a contractor in

violation of section 489.127(c) and (f). For the same reasons, the Department

did not prove, by clear and convincing evidence, that Mr. Amar violated

section 468.83.

C ONCLUSIONS O F L A W

7 . DOAH has jurisdiction over the parties and subject matter of this

action, pursuant to section 120.57(1), Florida Statutes.

8 . Because the Department seeks to levy an administrative fine against

Mr. Amar, the Department is required to prove its allegat ions by clear and

convincing evidence. Dep Ô t of Bank . & Fin . v. Osborne Stern & Co ., 670 So. 2d

932 (Fla.1996) .

9 . Clear and convincing evidence " requires more proof than a

'preponderance of the evidence' but less than 'beyond and to the exclusion of a

rea sonable doubt.' " In re Graziano , 696 So. 2d 744, 753 (Fla. 1997). As stated

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

rem embered; the testimony must be precise and

lacking in confusion as to the facts in 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 the truth of the

allegat ions sought to be established.

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

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

this standard of proof may be met where the evidence is in conflict, it seems

to p reclude evidence that is ambiguous. " Westinghouse Elec. Corp. v. Shuler

Bros. Inc. , 590 So. 2d 986, 988 (Fla. 1991).

10 . Pursuant to section 489.105(3), the term " Contractor " is defined as a

person who is qualified and responsible for enumerated services " for

compensation. "

11 . Section 489.127 states, in pertinent part:

(1) No person shall:

* * *

(c) Present as his or her own the certificate or

registration of another;

(d) Engage in the business or act in the capacity of

a contractor or advertise him self 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 [.]

12 . The home inspection licensing program is within the Department

under section 468.83.

13 . The evidence presented by the Department was ambiguous as to

whether Mr. AmarÔs Facebook page constituted either the presentation of

another personÔs certificate or registration as his own or advertising himself

or his business as available to act in the capacity of a contractor without the

proper credentials. Although the advertisement could be read in a manner

that violates the relevant statutory provisions, the opposite reading would

also be reasonable. Thus, the DepartmentÔs case against Mr. Amar was not

clear and convincing. For the same reasons, the Department did not prove, by

clear and convincing evidence, that Mr. Amar violated section 468.83.

14 . Although there was evidence that the purported business venture

between Respondent and Complaina nt was designed to make money at some

point in the future, the Department failed to show that the Facebook

advertisement was used in furtherance of any services " for compensation " at

any time relevant to this case.

O RDER

Based on the foregoing Findings o f Fact and Conclusions of Law, it is

O RDERED that the Administrative Complaints issued against Respondent ,

and all charges therein, are hereby dismissed.

D ONE A ND O RDERED this 21st day of June , 2021 , in Tallahassee, Leon

County, Florida.

S

B RITTANY O. F INKBEINER

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of June , 2021 .

C OPIES F URNISHED :

Roderick Amar Heather Barnes Page, Esquire

11850 N orthwest 18 th Street Department of Business and

Plantation, Florida 33323 Professional Regulation

Offic e of the General Counsel

Katie M. Pareja, Esquire 2601 Blair Stone Road

Department of Business and Tallahassee, Florida 32399 - 2202

Professional Regulation

Office of the General Counsel Julie I. Brown, Secretary

2601 Blair Stone Road Department of Business and

Tallahassee, Florida 32399 - 2202 Professional Regulation

2601 Blair Stone Road

Da vid Axelman, General Counsel Tallahassee, Florida 32399 - 2202

Department of Business and

Professional Regulation

Office of the General Counsel

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

N OTICE O F R IGHT T O J UDICIAL R EVIEW

A par ty who is adversely affected by this Final Order is entitled to judicial

review pursuant to section 120.68, Florida Statutes. Review proceedings are

governed by the Florida Rules of Appellate Procedure. Such proceedings are

commenced by filing the original notice of administrative appeal with the

agency clerk of the Division of Administrative Hearings within 30 days of

rendition of the order to be reviewed, and a copy of the notice, accompanied

by any filing fees prescribed by law, with the clerk of the d is trict c ourt of

a ppeal in the appellate district where the agency maintains its headquarters

or where a party resides or as otherwise provided by law.