The 2023 Florida Statutes (including Special Session C)
There is not a final order that finds you guilty of unlicensed activity. Instead, the Department closed the case against you after issuing a notice to cease and desist. Pursuant to Section 455.228(1), Florida Statutes, the issuance of a notice to cease and desist does not constitute agency action for which a formal hearing or reconsideration may be sought. Further review of the case is not warranted.
As explained above, the defense of in pari delicto requires that the parties be wrongdoers of relatively equal fault. In the instant case, petitioners contend that the parties are in pari delicto because T & G knew that Earth Trades was unlicensed. They point out that the Department of Business and Professional Regulation (DBPR) may issue a cease and desist notice to and impose fines of up to $5,000 on anyone who knowingly hires an unlicensed contractor. § 455.228( 1)-(2), Fla. Stat. (2005). This fact, however, means only that T & G is also a wrongdoer. Petitioners fail to mention that unlicensed contracting is a crime for which a first offense is a first-degree misdemeanor and a second is a third-degree felony. § 489.127(1)-(2), Fla. Stat. (2005). In addition, DBPR may impose a fine of $10,000 on any person found guilty of unlicensed contracting. § 489.13(3), Fla. Stat. (2005). More importantly, as explained above, the Legislature in 2003 amended section 489.128, removing language that made contracts with unlicensed contractors unenforceable by either party and declaring instead that only the unlicensed contractor had no enforceable contract or lien rights with regard…
At an undisclosed time, plaintiff contracted with Kathleen Jansen to perform repairs on her home. On December 16, 2009, Helm received another Notice to cease and desist from Larry Chatfield regarding the electrical work plaintiff performed on Jansen's home without a license in violation of Florida Statutes § 455.228(1). (Doc. #88-1, p. 25.)
Practicing interior design in commercial settings in Florida without a license constitutes a misdemeanor, punishable by up to one year in jail. See Fla. Stat. §§ 481.223(2) and 775.082(4)(a). The Florida Board of Architecture and Interior Design ("the Board"), the entity that enforces the license requirement, may also impose an administrative penalty. See Fla. Stat. § 455.228. In recent cases, the Board has sought to charge violators a $5,000.00 fine per violation. The Board has pursued, on average, several hundred cases per year, in recent years.
We conclude that appellants met the requirements for standing. We are particularly compelled to this conclusion by section 455.228(1), Florida Statutes, which specifically provides for legal action, including the imposition of a civil penalty up to $5000 per offense, against unlicensed persons who violate "any provision of this chapter or any statute that relates to the practice of a profession regulated by the department or the agency, or any rule adopted pursuant thereto." (Emphasis added.) And, although the board has suggested that Rule 59V-3.008 regulates only the conduct of licensed optometrists, at least one paragraph of the rule on its face purports to regulate corporations, such as appellants:
It is not my impression that Dr. Bohn was practicing outside the discipline of chiropractic. As a chiropractor, he did not attempt to provide medical, neurosurgical care. If he had attempted to practice medicine without a license, this lawsuit might be the least of his problems. See § 455.228, Fla. Stat. (1987). Within his discipline, he was making a professional decision to refer a patient to a specialist. That does not subject him to the neurosurgeon's standard of care, but it may, and in this case does, render the neurosurgeon a physician who "practice[s] . . . in a related field of medicine, so as to be able to provide such expert testimony as to the prevailing professional standard of care in a given field of medicine," i.e., chiropractic. § 766.102(c)(2), Fla. Stat. (Supp. 1988).
The record shows that the Department, following this statutory directive, investigated Mata's fitness to obtain a license upon learning additional adverse information in March 1989. Pursuant to this investigation, the Department issued an investigative report to the Board stating that it had probable cause to believe that Mata had violated section 458.327(1)(a), which makes the practice or attempt to practice medicine without an active license a third-degree felony. In addition, the Department filed a complaint against Mata in the circuit court seeking imposition of a civil penalty pursuant to section 455.228(2) and the issuance of a Notice to Cease and Desist pursuant to section 455.228(1). The Board likewise followed the directive contained in section 458.313(3) by extending the time to pass on Mata's application another 90 days and remanding the cause back to the DOAH hearing officer for further consideration of whether, in light of the additional information contained in the investigative report, Mata had sufficiently rehabilitated himself to practice medicine.
. . . . § 455.228(1)-(2), Fla. Stat. (2005). . . .
. . . . § 455.228. . . .
. . . We are particularly compelled to this conclusion by section 455.228(1), Florida Statutes, which specifically . . .
. . . See § 455.228, Fla.Stat. (1987). . . .
. . . complaint against Mata in the circuit court seeking imposition of a civil penalty pursuant to section 455.228 . . . (2) and the issuance of a Notice to Cease and Desist pursuant to section 455.228(1). . . . Section 455.228(1), Florida Statutes (1987), authorizes the department, upon finding probable cause to . . .