IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT,
IN AND FOR SARASOTA COUNTY, FLORIDA
APPELLATE DIVISION


SPIRO C. PAIZES,
FLORIDA HOME
IMPROVEMENT SERVICES, INC.,
(State of Florida Certified Licensed Contractor)

and CASE NO: 2017-AP-5426
LT CASE #’s CC-17-3606
JAMES E. CHITWOOD, CC-17-3606(A)
Appellants,

v.

SARASOTA COUNTY, FLORIDA,
Appellee.
_____________________________________/


INITIAL BRIEF OF APPELLANTS
____________________________________________

ON APPEAL FROM THE SARASOTA COUNTY
CODE ENFORCEMENT ADMINISTRATIVE COURT
____________________________________________

TABLE OF CONTENTS

Table of Citations iv
Preliminary Statement 1
Statement of the Facts and Case 2
Summary of Arguments 8
Arguments:

ISSUE ONE:
THE LOWER TRIBUNAL DEPARTED FROM THE ESSENTIAL REQUIREMENTS OF LAW WHEN IT FOUND APPELLANTS’ AGENCY AGREEMENT TO BE INVALID

ISSUE TWO:
THE LOWER TRIBUNAL FAILED TO PROPERLY APPLY THE FACTS AND AFFORD DUE PROCESS REGARDING THE ESSENTIAL REQUIREMENTS OF FLORIDA STATUTE 489.113(2)(2017)

ISSUE THREE:
THE LOWER COURT’S FINAL JUDGMENTS ARE NOT SUPPORTED BY COMPETENT, SUBSTANTIAL EVIDENCE

ISSUE FOUR:
THE LOWER TRIBUNAL DEPARTED FROM THE ESSENTIAL REQUIREMENTS OF LAW WHEN VALIDATING APPELLANT PAIZES’ CITATION FOR AIDING AND ABETTING UNLICENSED CONTRACTING WHERE THE OFFENSE IS UNSUPPORTED BY THE CITED STATUTE AND ORDINANCE

ISSUE FIVE:
THE LOWER TRIBUNAL ERRED BY FAILING TO CONSIDER DISMISSAL OF THE CITATIONS DUE TO MITIGATING CIRCUMSTANCES AS PERMITTED BY STATUTE AND ORDINANCE

ISSUE SIX:
THE LOWER COURT DEPARTED FROM THE ESSENTIAL REQUIRMENTS OF LAW BY FINDING THAT THE STATUTORY ELEMENTS AND DEFINITIONS OF UNLICENSED CONTRACTING WERE SATISFIED


TABLE OF CITATIONS

Cases
A.O.L. v. State
, 141 So.3d 675 (Fla. 2nd DCA 2014) 35

AT&T v. State Dept. of Mgmt Serv., 201 So.3d 852 (Fla. 1st DCA 2016) 11, 31
B&B Tree Serv. v. Tampa Crane & Body, Inc., 111 So.3d 976
(Fla. 2
nd DCA 2013) 34


Central Florida Lumber Unlimited, Inc. v Quqish
, 12 So.3d 766
(Fla. 2
nd DCA 2009) 48

Chiles v. Dept. of State, Division of Elections
, 711 So.2d 151
(Fla. 1
st DCA 1998) 20, 25


City of Miami v. Hervis
, 65 So.3d 1110 (Fla. 3rd DCA 2011) 31

City of Venice v. Gwynn, 76 So.3d 401 (Fla. 2nd DCA 2011) 10, 45

Deep South Systems, Inc. v. Lester Health, 843 So.2d 378

(Fla. 2nd DCA 2003) 28

Florida Department of Business and Professional Regulation, Division of Pari-Mutual Wagering v. Investment Corp. of Palm Beach,
742 So.2d 374
(Fla. 1999) 19, 24


Florida Home Builders Association, et al v. St. Johns County
, 914 So.2d 1035
(Fla. 5
th DCA 2005) 28

Fortune v. Gulf Coast Tree Care, Inc. 148 So.3d 827 (Fla. 1st DCA 2014) 31

Friends of Fla. Inc. v. State, 760 So.2d 154 (Fla. 1st DCA 2000) 19, 24

Island Club W. Dev., Inc. v. Mid-State Paving Co., 864 So.2d 1191
(Fla. 5
th DCA 2004) 48

Jones v. Williams Pawn & Gun, Inc. 800 So.2d 267, 270
(Fla. 4
th DCA 2001) 19, 41

Marco Island Utilities v. Public Serv. Com., 566 So.2d 1325, 1330

(Fla. 1st DCA 1990) 34


Merchant v. State, 201 So.3d 146 (Fla. 3rd DCA 2016) 35

Pedersen v. Green, 105 Do.2d 1, 4 (Fla. 1998) 27

St. John’s Water Management District v. Consolidated-Tomaka Land Co.,
717 So.2d 72 (Fla. 1
st 1998) 11, 24


United Auto Ins. Co. v. Santa Fe Med. Ctr, 21 So.3d 60, 63
(Fla. 3
rd DCA 2009) 1, 25, 41

Wiggins v. Fla. Dept. of Highway safety and Motor Vehicles, 209 So.2d 1165
(Fla. 2017) 30, 42


Florida Statutes Page

Fla. Stat. § 120.536 18

Fla. Stat. § 120.54 18

Fla. Stat. § 120.565(1) 19, 24

Fla. Stat. § 162.21(3)(c)5 19, 41

Fla. Stat. § 489.103(2) 18

Fla. Stat. § 489.103(3) 46

Fla. Stat. § 489.103(7)(c) 18

Fla. Stat. § 489.105(3) 9, 26, 28, 35

Fla. Stat. § 489.113(2)
passim

Fla. Stat. § 489.127
passim

Fla. Stat. § 489.127(1)(f)
passim

Fla. Stat. § 489.127(1)(i)
passim

Fla. Stat. § 489.127(4). 9, 13, 17, 40

Fla. Stat. § 489.127(5)(d). 4, 43, 44

Fla. Stat. § 489.128 48

Fla. Stat. § 489.531(1) (a)-(j) 46

Sarasota County Code/Ordinance Page

2-346 4

22-126(1)
passim

22-126(7)(c) 43, 44
Florida Administrative Code Page

28-105.001 20, 25

Florida Attorney General Opinion Page

AGO 2001-25 20

Construction Industry Licensing Board Declaratory Statements
Page


In re: The Petition for the Declaratory Statement of
the City of Port St. Lucie
DS 2014-09 21, 24

In re: The Petition for Declaratory Statement of
Paul J. DelVecchio,
DS 2011-082 21

Other References Page

Webster’s 3rd New International Dictionary, 2296 (unabridged ed. 1981) 33



PRELIMINARY STATEMENT


In this brief, Appellants will be referred to by name or as Appellants. Appellee will be referred to as “County,” “Prosecution” or “Appellee.”
Reference to the one volume record will be referenced by: (R.), followed by the corresponding page number. References to the one volume administrative hearing will be as: (A.H.), followed by the appropriate page number.


STATEMENT OF THE CASE AND FACTS

This is an appeal invoking the appellate jurisdiction of the Circuit Court to review final administrative orders entered by a special magistrate upholding violations of the Sarasota County Code Enforcement Ordinances and assessing civil penalties. Appellants Spiro Paizes and James Chitwood were cited in a consolidated case alleging aiding and abetting an unlicensed contractor, and unlicensed contracting, respectively.
Mr. Paizes, Owner and President of Florida Home Improvement Services, Inc., d/b/a Sarasota Construction and Remodeling Co. (A.H. 42-43), is a State of Florida licensed building, air conditioning and unlimited roofing contractor. Mr. Chitwood is a self-employed State of Florida subcontractor who does not hold a contractor’s license (A.H. 49-50). Although Mr. Chitwood is not a W-2 employee covered by Worker's Compensation (A.H. 10, 38), he is authorized by an Agency Agreement to act as a representative of Mr. Paizes, and Florida Home Improvement Services, Inc. (A.H. 20-23), and subcontracts his services as a site supervisor to the company (A.H. 17,52).
On August 29, 2017, a Sarasota County Code Enforcement Officer cited Mr. Chitwood under case number CC-17-3606 with unlicensed contracting in violation of Sarasota County Code, Section 22-126(1) and Florida Statute 489.127, subsections (f) and (i). The citation alleges:
“On June 8, 2017, James Chitwood, who represented Florida Home Improvement Services Inc., entered into contract with the property owner of 4424 Meadow Creek Circle, Sarasota, FL 34233, for a complete new roof / reroof, for total contract price of $11,640.00. The work in question was work which would require to be performed by a licensed contractor and require a building permit. James Chitwood took a deposit for this work. Investigation found that James Chitwood is not an employee or legally authorized to represent Florida Home Improvement Services Inc. He is a self-employed sub contractor and not covered under workers compensation either. James holds no license for building or construction in Florida and is in violation for unlicensed contracting.”

(R. 47).
Also on August 29, 2017, Mr. Paizes was cited under case number CC-17-3606(A) with aiding and abetting the practice of unlicensed contracting in violation of Sarasota County Code, Section 22-126(1) and Florida Statute 489.127(i), (4)(a-c). The citation alleges:
“Mr. Paizes Spiro d/b/a Florida Home Improvement Services Inc, aided and abetted unlicensed contractor James Edward Chitwood by allowing James Chitwood a self employed unlicensed contractor to represent there [sic] company, write, enter into contracts and take payments for work that requires both permits and being a licensed contractor. James Chitwood representing Florida Home Improvement Services Inc entered into contract with the owner of the property located at 4424 Meadow Creek Circle, Sarasota Florida 34233. The contract for the work at the property in the amount of $11,640.00, was written under Florida Home Improvement Services Inc and all payments for work at the property were to be made to them also but contracted and collected by James Chitwood, who is not an employee or authorized agent. Paizes Spiro, owner and license holder for Florida Home Improvement Services Inc, was aware of this contract and spoke with the homeowner directing him to speak with James Chitwood. Therefore Mr. Paizes Spiro d/b/a Florida Home Improvement Services Inc, aided and abetted Perfect Choice Exteriors of FL as an unlicensed contractor.”

(R. 68).
Appellants requested administrative hearings to challenge the citations pursuant to Sarasota County Code Enforcement Ordinance 2-346 and Florida Statute 489.127(5)(d). On October 6, 2017, an administrative hearing was held in front of Special Magistrate Meg Wittmer.
The County presented testimony from Gerard Ripo, son of 91 year-old homeowner Ida Ripo. Gerard Ripo testified that he initially contacted Florida Home Improvement Services, Inc., and although his name is on the contract for reroofing of his mothers home, Ida Ripo signed the contract and wrote a check made payable to Florida Home Improvement Services, Inc. (A.H. 41). Gerard Ripo explained that James Chitwood came to his mother’s home to finalize the contract and that he “assumed” Mr. Chitwood was a licensed contractor since Mr. Chitwood told Ripo he would be doing the roofing (A.H. 41). Ripo also “assumed” Mr. Chitwood was a representative of Mr. Paizes’ since the contract was with Florida Home Improvement Services, Inc. (A.H. 41-43). Ripo stated that Mr. Chitwood presented him with a business card bearing Mr. Chitwood’s name and a company name of “Sarasota Construction and Remodeling Co.” which also appears on the contract as a d/b/a name (A.H. 43-44).
Mr. Chitwood argued that he was not acting as an unlicensed contractor stating:
“MR. CHITWOOD: So I was told by the licensed contractor to go to Jerry Ripo’s residence and have them sign a contract between the customer and the licensed contractor who is Florida Home Improvement Services so I was there representing the contractor.
At no time did the customer think that I was the one that they were going to be paying, nor did they think that I was the one holding the license.
And on my business cards I--it states that I am a site supervisor for the company and not--its not my license. It only says my name, not my company. And whenever the contract was signed, the check was written to the licensed contractor, which I have right here, if you’d like to see that...”

(A.H. 16-17) See also, (A.H. 19-20).

Mr. Chitwood argued that even the citation he was issued states that he was representing Florida Home Improvement Services, Inc. which corroborates his contention that he was not acting as a licensed contractor (A.H. 19). Mr. Chitwood and Mr. Paizes further demonstrated that their Agency Agreement authorized Mr. Chitwood to represent the company as an agent and that Florida Statute 489.113(2) authorizes unlicensed subcontractors to perform work under the supervision of a licensed contractor, thus Appellants were not in violation of the county ordinance or state statute (A.H. 19-21, 30-33).
The County argued that in order for Mr. Chitwood to enter into the contract with the homeowner he was required to be a direct employee of Florida Home Improvement Services, Inc. and covered by worker’s compensation (A.H. 37-38). The County, however, was unable to provide any statute, law, or ordinance outlining this purported requirement. (A.H. 27-38). The County also reasoned that the Agency Agreement between the Appellants was invalid because an agent cannot enter into a contract (A.H. 27-28). In support of this position the County was, again, unable to point to any established authority but instead relied on two declaratory statements issued by the Construction Industry Licensing Board (CILB) and a case law outlining the persuasive nature of such declaratory statements (A.H. 28-30) (R. 83-88).

The County also suggested that Mr. Chitwood could not act as an agent under the umbrella of the Agency Agreement while executing the contract, and assume the role of a supervised, unlicensed subcontractor under Florida Statute 489.113(2) at the same time (A.H. 28-30). The County believed that even if the 489.113(2) supervision provision applied, Mr. Chitwood was not under Mr. Paizes’ supervision when he finalized the contract with Ida Ripo (A.H. 33-34).
The Special Magistrate sided with the County, finding the Agency Agreement to be invalid (A.H. 46-47); that Mr. Chitwood could not simultaneously assume the roles of agent and supervised subcontractor (A.H. 48-50); and that the citation was valid, imposing a $2,000 dollar civil penalty and $10 dollar booking fee.
Mr. Paizes proceeded to argue that the citation he was issued under case number CC-17-3606(A) for aiding and abetting James Chitwood in unlicensed contracting was invalid because: (1) he and Mr. Chitwood have an Agency Agreement that permits Mr. Chitwood to act on his behalf; (2) neither the citation nor the County officials referred to a specific statute or ordinance which makes aiding and abetting an unlicensed contractor a citable offense (A.H. 77-81); (3) the declaratory statements provided by the County were vague and irrelevant (A.H. 77-81); (4) the homeowner signed a contract with Florida Home Improvements, Inc., not Mr. Chitwood; (5) the homeowner wrote a check to Florida Home Improvements Inc., not Mr. Chitwood (A.H. 70-73); and, (6) Florida Statute 489.113(2) permits Mr. Chitwood to perform work under the supervision of Mr. Paizes, including finalization of a contract (A.H. 31-32).
Again, the Special Magistrate sided with the County, ruling that the citation for aiding and abetting unlicensed contracting was valid, imposing a $500 civil penalty and a $10 booking fee.
On November 2, 2017, Appellants, by and through the Loren and Kean Law Firm filed a timely notice of appeal. Since then counsel has withdrawn from the case and the Appellants are proceeding
pro se due to their inability to satisfy counsel’s fee.
On January 24, 2017, this Court issued an order declaring Appellants indigent for the purpose of this appeal.

SUMMARY OF THE ARGUMENT
ISSUE ONE: The lower tribunal departed from the essential requirements of law by: (1) finding that Appellants’ Agency Agreement was invalid; (2) ruling that only a direct employee can represent a licensed contractor without any legal support for the finding; and (3) relying on declaratory statements which are legally impermissible for determining the appropriateness of another person’s conduct.

ISSUE TWO: Florida Statute 489.113(2) expressly permits unlicensed subcontractors to perform construction work if under the supervision of a licensed contractor, as long as the work is within the scope of the contractor’s license and does not otherwise require a license. The administrative court departed from the essential requirements of law when it found that 489.113(2) did not apply to the instant case.
ISSUE THREE: The lower court’s final judgment is not supported by competent, substantial evidence where it relied upon assumptious testimony, facts not in evidence, and where Appellant Chitwood’s conduct failed to satisfy the statutory definition of “contractor.”
ISSUE FOUR: The county ordinance and state statute appellate Paizes is alleged to have violated fail to expressly establish aiding and abetting unlicensed contracting as a citable offense. The lower tribunal departed from the essential requirements of law when validating Mr. Paizes’ citation in light of the non-specific ordinance and statute.
ISSUE FIVE: Sarasota County Ordinance grants the administrative hearing special magistrate the authority to dismiss citations when the cited party has corrected the alleged offense providing there is no irreparable or irreversible damage. The lower court departed from the essential requirements of law when it was unaware it could exercise its discretion to dismiss citations in light of the Appellants’ mitigating circumstances.
ISSUE SIX: Appellant Chitwood’s conduct did not meet the statutory definition of “contractor” found in Florida Statute 489.105(3), thus the lower court departed from the essential requirements of law by finding Mr. Chitwood guilty of unlicensed contracting pursuant to Florida Statute 489.127(f) and (i) where it is required for Appellant to be acting in the capacity of a contractor. In turn, Mr. Paizes cannot be in violation for aiding and abetting an unlicensed contractor.







ISSUE ONE

THE LOWER TRIBUNAL DEPARTED FROM THE ESSENTIAL REQUIREMENTS OF LAW WHEN IT FOUND APPELLANTS’ AGENCY AGREEMENT TO BE INVALID


Agency Agreements are commonplace in every type of business and government in America. From small businesses to large corporations, and local municipalities to the federal government; Agency Agreements provide persons, businesses, and governments the ability to have one entity act as a representative or agent for another. Every level of court in our nation has consistently found properly executed agency agreements to be binding and valid. In this case Appellants entered into an Agency Agreement that authorized Mr. Chitwood to act as a representative or agent of Mr. Paizes’ and Florida Home Improvement Services, Inc., This agreement was found to be invalid by the lower tribunal special magistrate with regard to Mr. Chitwood finalizing a roofing contract negotiated between Mr. Paizes and a homeowner. Appellants assert this was error.

Standard of Review

When reviewing an administrative court’s final order the Circuit Court in its appellate capacity “must determine whether procedural due process is accorded, whether the essential requirements of law have been observed, and whether administrative findings are supported by competent, substantial evidence.” City of Venice v. Gwynn, 76 So.3d 401 (Fla. 2nd DCA 2011). “A departure from the essential requirements of law is equivalent to a failure to apply the correct law.” United Auto Ins. Co. v. Santa Fe Med. Ctr, 21 So.3d 60, 63 (Fla. 3rd DCA 2009). Administrative conclusions of law are reviewed de novo. AT&T v. State Dept. of Mgmt Serv., 201 So.3d 852 (Fla. 1st DCA 2016).

Facts

Gerard Ripo, on behalf of his 91-year-old mother, Ida Ripo, contacted Mr. Paizes and Florida Home Improvement Services, Inc., with respect to replacing the roof on the home owned by Ida Ripo (A.H. 40). Mr. Paizes, a State of Florida licensed unlimited roofing contractor, negotiated the terms of the roofing project and drafted a contract between Ida Ripo and his company (A.H. 72). (R. 48, 69).
Once the proposed contract was complete Mr. Paizes was unavailable to secure Ida Ripo’s signature on the document and directed Mr. Chitwood to travel to the Ripo home, sign the contract himself and obtain Ms. Ripo’s signature (A.H. 72-73). Although Mr. Chitwood is not a licensed contractor, he is a State of Florida subcontractor who is authorized by way of an Agency Agreement to represent Mr. Paizes and Florida Home Improvement Services, Inc. (R. 60-64).
Gerard Ripo testified at the administrative hearing that he was present when the contract was signed (A.H. 40). Ripo stated that Mr. Chitwood provided a business card bearing his name with the title of “site supervisor” for Sarasota Construction and Remodeling Co., underneath which is the licensure numbers of Mr. Paizes’ (A.H. 43, 52). It was established that Sarasota Construction and Remodeling Co., is a d/b/a name of Florida Home Improvement Services Inc., which also appears clearly in the caption of the contract (A.H. 43-44). (R. 48, 69).
Mr. Ripo testified that Mr. Chitwood never claimed to be a licensed contractor, but that he “assumed” he was based on the manner in which he conducted business and because Mr. Chitwood said he would be involved in the installation of the new roof on the home (A.H. 41-42). Ripo also acknowledged that Mr. Chitwood was representing Florida Home Improvement Services Inc. (A.H. 41-42). Ida Ripo wrote a check for a deposit for the reroofing made payable to Florida Home Improvement Services, Inc., not Mr. Chitwood, although Mr. Chitwood did accept the check on behalf of the company to deliver to Mr. Paizes (A.H. 74).
Ultimately, after a dispute unrelated to Mr. Chitwood’s licensing status, Ripo filed a complaint against Florida Home Improvement Services, Inc., who refunded the deposit, plus an additional $588 in exchange for Ripo withdrawing the complaint (A.H. 72-73). No construction or roofing work ever commenced on the home.
Nevertheless, as a result of the complaint, Sarasota County Code Enforcement Officer Harvey Ayers issued a citation to James Chitwood alleging unlicensed contracting in violation of section 22-126(1) of the Sarasota County Code and Florida Statutes 489.127, subsections (f) and (i), for his role in finalizing the contract negotiated between Mr. Paizes and Ida Ripo. (R. 47).
Officer Ayers also issued a $500 citation to Mr. Paizes for allegedly aiding and abetting Mr. Chitwood in this endeavor in violation of section 22-126(1) of the Sarasota County Code and Florida Statute 489.127 subsections (i) and (4)(a-c). (R. 68).
Importantly, both citations allege and differentiate that Mr. Chitwood was not an employee nor “authorized agent” (R. 68), “legally authorized to represent Florida Home Improvement Services, Inc.” (R. 47). Officer Ayers issued the citations without interviewing either Appellant to ascertain what business relationship they maintain, thus he was unaware of the Agency Agreement between them.
At the administrative hearing, the County presented testimony from Officer Ayers who stated that Mr. Chitwood was not allowed to write a contract or accept payment on behalf of Florida Home Improvement Services unless he is a direct employee of the company (A.H. 10).
Appellants presented the special magistrate with their duly executed and notarized Agency Agreement establishing that it was active on the date the contract was signed and argued that it authorized Mr. Chitwood to represent Florida Home Improvement Services (A.H. 21-23).
In response the County argued that Appellants’ Agency Agreement was not the County approved authorized agent form, thus, was not valid (A.H. 21-22).
Mr. Paizes explained that the County form was designed only for an agent to pull a permit on behalf of a contractor and was insufficient to cover his or his company’s needs (A.H. 23). Mr. Paizes also explained that the County had been unable to demonstrate what law or statute was broken that Appellants’ use of the Agency Agreement did not alleviate (A.H. 23-25).
The County also presented testimony from Sarasota County Deputy Building Official Guy McCauley, who stated only a direct employee of a company can enter into a contract and that Appellants’ Agency Agreement did not authorize Mr. Chitwood to execute the contract. Mr. McCauley did not offer any support for this legal interpretation (A.H. 27-28).
Finally, William Teal from the Department of Business and Professional Regulation testified that because Mr. Chitwood was not a W-2 employee of Florida Home Improvement Services, Inc., he could not sign the contract in this case, but he too was unable to offer any statutory authority supporting this contention (A.H. 37-38).
In an attempt by the special magistrate to identify the applicable law, the following exchange occurred:
“THE COURT: Okay. Is there an ordinance or statute that governs that rule?


MR. BOSSARD: (Assistant County Attorney) Your Honor, I have-- these are a couple of declaratory statements from the State’s Construction Industry Licensing Board along with a case that discusses the persuasive value they have, if I may.
THE COURT: Has the respondent seen it? Do you have a copy for them?

MR. BOSSARD: I do believe I have a copy for them.
THE COURT: You do have a copy?
MR. BOSSARD: Yes, I do.
THE COURT: Okay.
So I’m not going to take the time to read this, Mr. Bossard. Do you want to sum -- give me a summary of what it says.”

(A.H. 28-29)(emphasis added).

The government went on to summarize the declaratory statements which were entered into evidence (A.H. 29-79). Appellants objected to the declaratory statements as being contrary to the Florida Statutes and vague and irrelevant (A.H. 29-31). The special magistrate overruled the objection then relied on the same declaratory statements it refused to read when upholding the citations.

“MR. CHITWOOD: It-- I was an auth-- for the contract.

THE COURT: Again, you aren’t an-- an authorized agent-- that relationship is not valid in this case. The only way you can enter into a contract is as an employee or under the supervision of the licensed contractor. That didn’t occur here. There’s no evidence that occurred here...”

(A.H. 46-47).

The hearing turned to the ramifications of Mr. Chitwood’s business relationship with Mr. Paizes and Florida Home Improvement Services, Inc. as an agent versus a subcontractor and the legality of whether either position remedied the alleged violation:

“MR. CHITWOOD: The contract even states it’s between Florida Home Improvement Services and Mr. Ripo or Ida Ripo.

THE COURT: It can state that but it was the way that you entered into the contract and you represented to him that you were an employee of the company. That’s where you fell out of line with the-- with the ordinance and the statute. Okay?

MR. CHITWOOD: What-- what was the statute that stated that I couldn’t do that in?

THE COURT: You gave me the statute itself. We identified that you needed to be a subcontractor. You’re not a subcontractor. There are significant--

MR. CHITWOOD: I am a subcontractor though for the--

THE COURT: No you’re not. You just said you were an agent. So we’ve got two dec statements as well as an ord-- case that suggests that--“

(A.H. 48-49).

Strangely, the special magistrate’s final order validating Mr. Chitwood’s citation found that Mr. Chitwood is a “self-employed subcontractor,” but not an employee or legally authorized agent of Florida Home Improvement Services Inc. (R. 66-67).
With respect to Mr. Paizes’ citation, the special magistrate validated the citation for aiding and abetting an unlicensed contractor in its final order in violation of Sarasota County Code, Section 22-126(1) and Florida Statute 489.127(i). However, the special magistrate declined to find Mr. Paizes in violation of 489.127, subsections (4)(a-c) as alleged in the citation. (R. 68, 89).
Argument
Appellants assert that the lower tribunal special magistrate departed from the essential requirements of law for several reasons.
First, the idea that only a direct employee can execute a contract on behalf of an employer is entirely unsupported by the Florida Statutes, Sarasota County Ordinances, Florida Administrative Code, or any other substantive authority. Appellants questioned numerous times which specific Statute or Ordinance mandates that only a direct employee can enter into a contract with a customer, and why Mr. Chitwood’s status as an agent under the Agency Agreement did not reconcile this imaginary requirement. Neither the County nor magistrate could provide a definitive answer.
Although Florida Statute 489.103(2)
exempts employees of licensed contractors from the provisions of Part I of Chapter 489 when working within the scope of their employer’s license; no section of Chapter 489, or other authority, mandates and only direct employees may represent a licensed contractor or specifically prohibits an authorized agent from representing a licensed contractor.
In addition, Florida Statute 489.103(7)(c), Disclosure Statement paragraph 8, contains a provision requiring homeowners acting as their own contractors to hire, as employees, any unlicensed person they designate to perform construction work on their home. However, this requirement is only applicable to homeowners, and no statutory authority extends this employment requisite to licensed contractors and their agents.
It was error for the lower tribunal to accept at face value the County’s legal interpretations without some sort of statute or ordinance support. Sarasota County code enforcement personnel lack the rulemaking authority under Florida Statutes 120.536 or 120.54, to create citable offenses, or to issue citations for nonexistent or misinterpreted statutory or ordinance provisions. Citations must be based on and allege specific violations of existing ordinances or statutes. See, Florida Statute 162.21(3)(c)5. “The language of the statute [or ordinance] must provide a definitive wording of what is required or prohibited, measured by common understanding and practice.”
Jones v. Williams Pawn & Gun, Inc. 800 So.2d 267, 270 (Fla. 4th DCA 2001). Otherwise a citation cannot be sustained.
The lower tribunal further departed from the essential requirements of law when it refused to read, then relied upon two declaratory statements issued by the Construction Industry Licensing Board when rendering its final order.
Florida Statute 120.565 grants state agencies the ability to issue “declaratory statements regarding an agency’s opinion as to the applicability of a statutory provision, or of any rule or ordinance of the agency, as it applies to…[a]
particular set of circumstances” s. 120.565(1). (emphasis added). “A party who obtained a statement of the agency’s position may avoid costly administrative litigation by selecting the proper course of action in advance.” Friends of Fla. Inc. v. State, 760 So.2d 154 (Fla. 1st DCA 2000). See also, Florida Department of Business and Professional Regulation, Division of Pari-Mutual Wagering v. Investment Corp. of Palm Beach, 742 So.2d 374 (Fla. 1999), and St. John’s Water Management District v. Consolidated-Tomaka Land Co., 717 So.2d 72 (Fla. 1st 1998).
However, declaratory statements are limited in scope and application:
“A declaratory statement is the means for resolving a controversy or answering questions or doubts concerning the applicability of statutory provisions, rules, or orders over which the agency has authority. A petition for declaratory statement may be used to resolve questions or doubts as to how the statutes, rules, or orders may apply to the petitioner’s particular circumstances. A declaratory statement is not the appropriate means for determining the conduct of another person.


28-105.001, Florida Administrative Code (emphasis added). See also, Chiles v. Dept. of State, Division of Elections, 711 So.2d 151 (Fla. 1st DCA 1998).

While declaratory statements are framed to a particular set of circumstances, they may also “offer useful guidance to others who are likely to interact with the agency in similar circumstances.” Chiles, id. at 155. Yet such “guidance” should never equate to, or supplant, statutory or rule provisions, and is not legal precedence.
In this case, the declaratory statements offered by the County were used in exactly the manner they were never intended for–determining the appropriateness of Appellants’ conduct. Appellants submit that the lower tribunal’s misplaced reliance on the declaratory statements illustrates the overall lack of substantial authority corroborating the County’s position.
Notwithstanding that the declaratory statements were impermissibly introduced and relied upon, the documents are in no way related to the validity or legality of Appellants’ Agency Agreement, or the unsupported theory that only direct employees can represent a licensed contractor.
In re: The Petition for Declaratory Statement of Paul J. DelVecchio, DS 2011-082, the Construction Industry Licensing Board stated that “Construction Management as a service that oversees the management of construction activities on a given project is the exclusive purview of a licensed contractor.” (R. 83-88). This finding has no relevance to whether Mr. Chitwood’s agency status precluded him from executing a roofing contract for Florida Home Improvement Services, Inc.
In re: The Petition for the Declaratory Statement of the City of Port St. Lucie, DS 2014-09, the Construction Industry Licensing Board stated that, “a general or building contractor cannot subcontract to an unlicensed contractor.” Again, this statement is vague and not relevant to whether Mr. Chitwood was required to be a direct employee of Mr. Paizes’ in order to represent his company or finalize a contract. Furthermore, it is in response to municipal ordinances in Port St. Lucie and has absolutely no bearing on Sarasota County. (R. 83-88).
The declaratory statements are vague and lack factual or legal similarities to the instant case, and any deference given them by the special magistrate is a departure from the essential requirements of law.
In sum, the lower tribunal departed from the essential requirements of law when it:
1. Found that only direct employees can represent licensed contractors and their companies without any legal support;
2. Relied on impermissible, vague, and irrelevant declaratory statements to determine the appropriateness of Appellants’ actions; and
3. Ruled that Appellants’ agency agreement was invalid.
In light of the facts, argument, and citations herein, Appellants request this Court vacate the lower tribunal’s final orders, or grant any other relief deemed appropriate.





















ISSUE TWO


THE LOWER TRIBUNAL FAILED TO PROPERLY APPLY THE FACTS AND AFFORD DUE PROCESS REGARDING THE ESSENTIAL REQUIREMENTS OF FLORIDA STATUTE 489.113(2)(2017)

As detailed in Issue One, Appellant Chitwood was cited for the practice of unlicensed contracting and Appellate Paizes for aiding and abetting Mr. Chitwood in unlicensed contracting. The citations were the result of Mr. Chitwood’s finalization of a roofing contract with a customer at the direction of, and on behalf of Mr. Paizes. At an administrative hearing challenging the citations Appellants argued that their conduct was permissible under a legally executed and binding agency agreement.
In addition to the agency agreement, Appellants attempted to argue that their actions were legal under the provisions of Florida Statute 489.113(2), which expressly authorizes unlicensed subcontractors to perform work under the supervision of a licensed contractor. In this issue Appellants contend that the lower tribunal misconstrued 489.113(2) while misapplying the facts and denying due process.
Standard of review
This Court’s review of the administrative hearing findings is limited to: (1) whether due process was afforded, (2) whether the lower court departed from the essential requirements of law, and (3) whether the ruling is supported by competent, substantial evidence. Wiggins v. Fla. Dept. of Highway safety and Motor Vehicles, 209 So.2d 1165 (Fla. 2017). Appellants assert that all three review scopes applied to the lower court’s misapplication of Florida Statute 489.113(2).
First, when Appellants challenged the County to provide the statute or ordinance that allegedly made their conduct illegal; rather than citing statutory authority as required by law, the County proffered two declaratory statements issued by the Construction Industry Licensing Board. (A.H. 29-30). These statements advanced the theory that masonry subcontractors on a commercial project must hold a license when regulated by a local municipality, and that Construction Management is the exclusive purview of a licensed contractor (R. 83-88), neither of which has any direct relevance to the instant case.
As a preliminary matter, the purpose about declaratory statement is to clarify ambiguities in a statute or rule as it relates to the moving party’s
particular set of circumstances so he or she may select the proper course of action in advance and avoid costly litigation. See, Fla. Stat. 120.565, Friends of Fla. Inc. v. State, 760 So.2d 154 (Fla. 1st DCA 2000), Fla. Department of Business and Professional Regulation, Div. of the Pari-Mutual Wagering v. Investment Corp. of Palm Beach, 742 So.2d 374 (Fla. 1999), and St. Johns Water Management District v. Consolidated-Tomaka Land Co., 717 So.2d 72 (Fla. 1st DCA 1998).
Although declaratory statements may be referenced for guidance, because they are applicable to a case specific set of circumstances they are “not the appropriate means for determining the conduct of another person” as the County successfully persuaded the special magistrate to do in this case. See, Florida Administrative Code 28-105.001, and
Chiles v. Dept. of State, Division of Elections, 711 So.2d 151 (Fla. 1st DCA 1998).
Any reliance the lower court afforded the declaratory statements was a departure from the essential requirements of law as it is a failure to apply the correct law.
United Auto Ins. Co. v. Santa Fe Med Ctr., 21 So.3d 60, 63 (Fla. 3rd DCA 2009).
Appellants objected to the declaratory statements due to their vagueness and irrelevance (A.H. 79-81), and explained to the lower court that they conflict with Fla. Stat. 489.113(2) which states:
“489.113 Qualifications for practice; restrictions…
(2) A person must be certified or registered in order to engage in the business of contracting in this state. However, for purposes of complying with the provisions of this chapter, a subcontractor who is not certified or registered may perform construction work under the supervision of a person who is certified or registered, provided that the work is within the scope of the supervising contractor’s license, the supervising contractor is responsible for the work, and the subcontractor being supervised is not engaged in construction work that would require a license as a contractor under any of the categories listed in s. 489.105(3)(d)-(o). This subsection does not affect the application of any local construction licensing ordinances...”

(
emphasis added).


When Mr. Chitwood finalized the roofing contract with Ida Ripo in place of Mr. Paizes, he was acting under the supervision of Mr. Paizes and within the scope of Mr. Paizes’ license and is therefore exempt from prosecution for unlicensed contracting under 489.113(2). Furthermore, the act of executing a contract does not otherwise require a license as a contractor under any of the categories listed in s. 489.105(3)(d)-(o), thus falls squarely within the parameters of the 489.113(2) supervision exemption.
The County argued that there “was no evidence here that he [Mr. Chitwood] was being supervised by Mr. Paizes at the time I think this was going on.” This argument fails in several respects.
The evidence undoubtedly shows that throughout the course of this case Mr. Chitwood was acting under the specific direction and supervision of Mr. Paizes. Mr. Paizes provided Mr. Chitwood with an explicit set of directions to report to the Ripo home to sign the contract on his behalf, obtain Ida Ripo’s signature, and then take possession of her deposit check to deliver back to him. (A.H. 16-20, 45, 70-73).
As explained in Florida Attorney General Advisory Legal Opinion number AGO 2001-25, neither chapter 489 of the Florida Statutes nor Florida Administrative Code contain a definition of “supervision;”
“Absent a statutory definition, when words of common usage are used in a statute they should be construed in their plain and ordinary sense…. the word supervision is defined as the act, process, or occupation of supervising: direction, inspection, and critical evaluation.”

AGO 2001-25 p.4 (emphasis added). See, Pedersen v. Green, 105 So.2d 1, 4 (Fla. 1998) and Webster’s 3rd New International Dictionary, 2296 (unabridged ed. 1981).
Any credence the lower court afforded the County’s lack of supervision position is an error since that theory is unsupported by competent, substantial evidence.
Next, the County advanced the theory that the work Mr. Chitwood was performing still required a license pursuant to 489.113(2) (A.H. 34). The lower court adopted the County’s mistaken belief that Mr. Chitwood needed to be licensed in order to work under Mr. Paizes’ supervision (A.H. 48-49).
As explained, execution of a contract is not “construction work, which would require a license as a contractor under any rules of the categories listed in s. 489.105(3)(d)-(o).” F. S. 489.113(2).
The lower court’s finding in this regard is a clear departure from the essential requirements of 489.113(2). The supervision clause of 489.113(2) is a well established law exempting unlicensed contractors from penalties when performing work under the supervision of a licensed contractor. See,
Florida Home Builders Association, et al v. St. Johns County, 914 So.2d 1035 (Fla. 5th DCA 2005) and Deep South Systems, Inc. v. Lester Health, 843 So.2d 378 (Fla. 2nd DCA 2003).
Strangely, the lower court subsequently acknowledged the applicability of the statute’s supervision exemption for unlicensed contractors yet refused to allow Mr. Chitwood to present arguments in the capacity of a subcontractor:
“MR. CHITWOOD: What -- what was the statute that stated that I couldn't do that in?

THE COURT: You gave me the statute itself. We identified that you needed to be a subcontractor. You're not a subcontractor. There are significant –

MR. CHITWOOD: I am a subcontractor, though, for the –

THE COURT: No, you're not. You just said you were an agent. So we've got two dec statements as well as an ord- -- a case that suggests that –

MR. BOSSARD: And remember also, if it's a subcontractor, in this instance would have to be licensed himself –

THE COURT: Exactly, you're not licensed as a subcontractor. You're not a -- you've spent the last 40 minutes telling me that you're an agent. You're not a subcontractor.

MR. CHITWOOD: I can't be an agent and a subcontractor, an agent for the company and a subcontractor?

THE COURT: You've never represented that, so no.

MR. CHITWOOD: I -- I would have had to rep –

THE COURT: Are you a licensed subcontractor?

MR. CHITWOOD: I have -- in Sunbiz I am a subcontractor, yes.

THE COURT: You have represented for 40 minutes that you were an agent.

MR. CHITWOOD: Yes.

THE COURT: You never once said you were a subcontractor. You've never provided any information showing that you are a qualified certified licensed subcontractor. This is all new now.

MR. CHITWOOD: I didn't know whether that you couldn't be an agent and a subcontractor. I thought I was an agent for the company working as a subcontractor as well.”

(A.H. 48-50).
The lower court’s posture here is in error. Appellants argued from the beginning of the hearing that Mr. Chitwood was exempt as a subcontractor being supervised by Mr. Paizes pursuant to 489.113(2) (A.H. 30-32).
Even the citations issued to Appellants identified Chitwood as a subcontractor. (R. 47, 68). The County also identified Mr. Chitwood as a subcontractor. (A.H. 10). The lower court was certainly aware of Mr. Chitwood’s role as a subcontractor, and to find that he did not put the court on sufficient notice is belied by the evidence and is an obviously biased ruling designed to exclude a legal argument it would have been compelled to accept.
Incredibly, the court’s final written order even identifies Mr. Chitwood as a subcontractor. (R. 66-67). It is illogical and prejudicial to refuse to allow Mr. Chitwood to argue his role as a subcontractor only to acknowledge and accept that title when rendering final judgment.
Finally, the lower tribunal did not afford Appellants due process of law when it refused to consider their supervised subcontractor argument and only acknowledged and accepted Mr. Chitwood’s position as an agent which it found to be invalid. Appellants are not aware of any law, statute or rule that prohibits them from advancing dual or alternative theories of defense. There is no legal reason why Mr. Chitwood was not permitted to argue that he was acting as an agent for Mr. Paizes and as a subcontractor who was exempt under 489.113(2) due to Mr. Paizes supervision.
The lower court’s multifaceted ruling is:
1. A departure from the essential requirements of law that requires a statutory interpretation which is therefore reviewed
de novo. See, Fortune v. Gulf Coast Tree Care, Inc. 148 So.3d 827 (Fla. 1st DCA 2014);
2. Based on a finding of fact that is reviewed for competent, substantial evidence. See,
AT&T Corp. v. State, Dept. of Mgmt. Servs., 201 So.3d 852 (Fla. 1st DCA 2016); and,
3. A denial of Appellants’ due process rights under the Fourteenth Amendment of the United States Constitution which is also reviewed
de novo. See, City of Miami v. Hervis, 65 So.3d 1110 (Fla. 3rd DCA 2011).
In light of the facts, argument and authorities presented herein, Appellant Chitwood is exempt from prosecution or citation for unlicensed contracting since he was working under Appellant Paizes’ supervision and within the scope of his license as permitted by F.S. 489.113(2). In turn, where Mr. Chitwood is exempt by statute, Mr. Paizes cannot be found in violation of aiding and abetting an unlicensed contractor and this Court must reverse the lower court ruling and dismiss the citations.



ISSUE THREE

THE LOWER COURT’S FINAL JUDGMENTS ARE NOT SUPPORTED BY COMPETENT, SUBSTANTIAL EVIDENCE

Appellants assert that the lower tribunal’s final judgments validating the citations in this case relied on erroneous factual findings that are unsupported by competent, substantial evidence and require reversal.
With respect to the citation issued to Appellant Chitwood for unlicensed contracting in case number CC-17-3606, the special magistrate’s written judgment found:
“June 8, 2017, James Chitwood who represented Florida Home Improvement Services Inc., entered into a contract with the property owner of 4424 Meadow Creek Cir., Sarasota, Florida, 34233, for a complete new roof / reroof total contract price of $11,640.00. The work in question would require to be performed by a licensed contractor and require a building permit. James Chitwood took a deposit for the work is not an employee or legally authorized to represent Florida Home Improvement Services Inc. He is a self-employed sub-contractor and not covered under workers compensation and does not hold a license for building or construction.”


(R. 66-67).

The special magistrate subsequently rendered the following judgment regarding appellate Paizes citation alleging aiding and abetting unlicensed contracting in case number CC-17-3606(A):
“By aiding and abetting an unlicensed contractor to represent his company, write and enter into a contract and accept payment for work that requires permits and licensing as a contractor.”


(R. 89-90).

First, there was absolutely no evidence or testimony even suggesting that Mr. Chitwood wrote the contract or that Mr. Paizes allowed him to write it. The record unequivocally illustrates that Mr. Paizes, not Mr. Chitwood, negotiated and wrote the contract. Mr. Paizes then directed Mr. Chitwood to sign the contract on his behalf and secure Ida Ripo’s signature to finalize the contract. (A.H. 16-20, 45, 70-73). Mr. Chitwood was simply an agent on an errand to execute a contract negotiated and drafted by Mr. Paizes.
The record is equally as clear on the fact that Mr. Chitwood did not accept payment from Ida Ripo for the roofing project as the lower court’s written finding misconstrues. Although Ida Ripo did tender a check for $3,841.20 as a deposit, that check was made payable to “Florida Home Improvement Services, Inc.” which is owned and operated by Mr. Paizes. (R. 70). Mr. Chitwood took possession of the check, but only for delivery to Mr. Paizes. Mr. Chitwood never accepted any type of personal payment in this case. (A.H. 9-10).
Additionally, the record demonstrates that the contract was undeniable between Ida Ripo and Mr. Paizes’ company. The citation, contract, and deposit check all definitively name Florida Home Improvement Services, Inc. as the company executing the contract, receiving payment for, and carrying out the reroofing project; not Mr. Chitwood. (R. 68-70). Even Ida Ripo’s son acknowledged that the deal was negotiated with Mr. Paizes. (A.H. 40-43).
Next, the record lacks the competent, substantial evidence necessary to conclude that Mr. Chitwood was acting in the capacity of a contractor. Gerard Ripo, who did not even sign the contract, testified that he “assumed” Mr. Chitwood “was part of the business and everything was up and right the way they were doing everything.” (A.H. 41). Mr. Ripo also “assumed” what Mr. Chitwood’s relationship with the company was. (A.H. 42). The lower court subsequently relied in part on Ripo’s assumption that Mr. Chitwood was an employee of Mr. Paizes company when explaining how it believed Mr. Chitwood ran afoul of the law. (A.H. 48). This was error.
Assumptions, speculation and conjecture unsupported by fact do not constitute competent, substantial evidence, and any ruling relying on unsupported “assumed” facts must be reversed.
Marco Island Utilities v. Public Serv. Com., 566 So.2d 1325, 1330 (Fla. 1st DCA 1990). See also, B&B Tree Serv. v. Tampa Crane & Body, Inc., 111 So.3d 976 (Fla. 2nd DCA 2013), A.O.L. v. State, 141 So.3d 675 (Fla. 2nd DCA 2014), and Merchant v. State, 201 So.3d 146 (Fla. 3rd DCA 2016).
Moreover, since the evidence proves that Mr. Chitwood did not execute the contract “for compensation,” and did not undertake to, submit a bid for, or by himself perform any type of construction on the Ripo home; then he fails to meet the statutory definition of “contractor” under Fla. Stat. 489.105(3), and is not in violation of acting in the capacity of a contractor under Fla. Stat. 489.127(f) as found by the lower court.
Also, since the evidence conclusively shows that both Appellants were acting with the good faith belief that Mr. Chitwood was permitted to finalize the contract as a legally authorized agent of Mr. Paizes’ under their agency agreement and/or as a supervised unlicensed contractor permitted by Fla. Stat. 489.113(2); they did not “willfully or deliberately disregard or violate any municipal or a county ordinance relating to uncertified or unregistered contractors” as determined by the lower court in violation of Fla. Stat. 489.127(i).
It is important for this Court to note that although Mr. Ripo “assumed” Mr. Chitwood was an employee of Florida Home Improvement Services, Inc., he did not think, nor did Mr. Chitwood present himself as a contractor. (A.H. 9, 19-20, 41-42, 48). Even assuming Mr. Chitwood represented himself as an employee, which he did not, acting as an employee does not equate to unlicensed contracting.
This Court should also note that no permit was applied for or obtained, and no construction ever commenced pursuant to the contract. Also, although Mr. Ripo was a witness to execution of the contract, he was not a party to its terms, did not sign it, and did not submit payment for services. The probative value of his testimony was limited, and was unable to substitute that of the homeowner Ida Ripo who was a party to the contract and tendered a deposit. Nor can Gerard Ripo’s testimony attest to Ida Ripo’s mindset or beliefs regarding Mr. Chitwood’s capacity in this case. Absent direct testimony from Ms. Ripo, there lacks competent, substantial evidence as required by law.
This Court’s review encompasses determining whether the lower tribunal’s final judgment is supported by competent, substantial evidence. See,
Wiggins v. Fla. Dept. of Hwy. Safety & Motor Vehicles, 209 So.3d 1165 (Fla. 2017). In light of the facts, argument and authorities cited herein, Appellants assert it did not, and that this Court should reverse the ruling or grant any and all other appropriate relief.







ISSUE FOUR

THE LOWER TRIBUNAL DEPARTED FROM THE ESSENTIAL REQUIREMENTS OF LAW WHEN VALIDATING APPELLANT PAIZES’ CITATION FOR AIDING AND ABETTING UNLICENSED CONTRACTING WHERE THE OFFENSE IS UNSUPPORTED BY THE CITED STATUTE AND ORDINANCE

The citation issued to Appellant Paizes alleges that Mr. Paizes aided and abetted Appellant Chitwood in the practice of unlicensed contracting in violation of Sarasota County Code, Section 22-126(1) and Florida Statute 489.127(i) and (4)(a-c). (R. 68).
At the October 6, 2017, administrative hearing challenging the citation, Mr. Paizes repeatedly objected to the validity of the citation arguing that the Florida Statute and County Ordinance referenced in the citation do not establish “aiding and abetting” as a citable offense:
“MR. PAIZES: Question for Mr. Ayers. Do you have a Florida Statute that states what statute I violated by -- by having someone sign a contract on my behalf?

MR. AYERS: The Florida Statute that dictates or pertains to unlicensed contracting is under Florida Statute 489, but we can provide the dec statements and stuff that go on to –

MR. PAIZES: Well, if you don't mind, I'd like -- I'd like the exact statute because I believe that's how our legal system works. That a statute must specifically say that I aided and abetted by, or at least allude to, that I aided and abetted unlicensed contracting by having someone sign a contract on behalf of a state certified contractor. Do you have the specific statute or not?

MR. AYERS: Under Sarasota County Building Code 22-126(1) and then Florida Statute 489.127 were the governing entities for those, to where that falls under.

MR. PAIZES: Okay. I appreciate that. You've given an overview of the statute. I'll ask again, and forgive me for asking again, is there a specific statute that coincides with your statement that I aided and abetted an unlicensed contractor by someone or -- doesn't matter how it's worded, just for the matter of again something broader here, that states that I am not allowed to have someone sign a contract on my behalf with my license numbers, they paid me directly, et cetera? The reason I say that is I've searched it and I've had the State search it and – the State of Florida that is, the construction licensing board which I'm regulated by.

THE COURT: 8.
MR. PAIZES: And they can't seem to find it. It may very well be that, I just -- I want to make sure that we're all on the same page.
MR. AYERS: And we'll enter into this case Government Exhibit 8 which is the dec statements which falls under the unlicensed contracting and was required for Mr. Chitwood.
MR. PAIZES: I've seen this here, but it's very vague and it's not specific with regards to saying about signing contracts, and there's nothing in the Florida Statute that specifically states that I violated the law.

THE COURT: Do you have any objection to these declaratory statements coming in?

MR. PAIZES: I believe they're irrelevant. This declaratory statement here, which I've reviewed, is irrelevant.

THE COURT: Okay. So you're objecting?

MR. PAIZES: I'm objecting, yes.

THE COURT: Your objection is overruled. It goes to the weight of the evidence.

MR. AYERS: Under the Florida Statutes –

THE COURT: As far as relevancy is concerned. Go ahead. What?

MR. AYERS: Under the Florida Statutes, understand Mr. Chitwood, which he's the unlicensed contractor, you, by allowing him as not a direct employee of yours to sign contracts, that's where the aiding to is unlicensed. So the statute pertains to the unlicensed contracting under 489.127. You aided that by allowing him to sign contracts as a nonemployee and present himself as an employee of yours.

MR. PAIZES: Okay. On the one side, I did not allow him as such, and maybe this is a play on words, I directed him to –

THE COURT: But he's not your employee.

MR. PAIZES: I directed him to do a task on my behalf.

THE COURT: He's not your employee.

MR. PAIZES: I still don't believe that there's a statute.”

(A.H. 77-80).


The lower tribunal found the citation to be valid and imposed a civil penalty of $500.00 plus a $10.00 booking fee. The special magistrate’s final judgment indicates that Appellant Paizes violated Sarasota County Code 22-126(1) and F. S. 489.127(i), but declined to find Mr. Paizes in violation of F. S. 489.127(4)(a-c) as listed in the citation. (R. 89-90).
Appellant asserts that the county ordinance and state statute he was found to have violated fail to establish “aiding and abetting” as a civil infraction.
Sarasota County Code, Section 22-126(1) states:
“Issuance of Citations for Unlicensed Contracting and/or Unpermitted Work.
(1)  Violations of State Law Incorporated by Reference. Any person(s) who violates F.S. § 489.127(1)(a)-(i) or F.S. § 489.531(1) (a)-(j), as may be amended from time to time, shall also be in violation of this Article.”
Florida Statutes 489.127(i) states:
“489.127 Prohibitions; penalties.-
(1) No person shall:…
(i) Willfully or deliberately disregard or violate any municipal or county ordinance relating to uncertified or unregistered contractors.”

Neither authority delineates “aiding and abetting” unlicensed contracting or creates elements required to prove such a civil infraction.

Absent of some sort of statute or ordinance support, the lower court departed from the essential requirements of law by finding Mr. Paizes civilly responsible for a violation that has not been alleged. Citations must be based on and allege specific violations of existing ordinances or statutes. See, Fla. Stat. 162.21(3)(c)5. “The language of the statute [or ordinance] must provide a definite wording of what is required or prohibited, measure by common understanding and practice.” Jones v. Williams Pawn & Gun, Inc., 800 So.2d 267, 270 (Fla. 4th DCA 2001).
The lower court’s final ruling refers to violations of a county ordinance and state statute that do not contain a definite wording of what elements are required or what conduct is prohibited with respect to aiding and abetting the practice of unlicensed contracting. For this reason, the administrative court departed from the essential requirements of law. “A departure from the essential requirement of law is equivalent to a failure the apply the correct law.”
United Auto Ins. Co. v. Santa Fe Med. Ctr., 21 So.2d 60, 63 (Fla. 3rd DCA).
This court should dismiss the citation issued to Appellant Paizes in light of the argument herein.







ISSUE FIVE

THE LOWER TRIBUNAL ERRED BY FAILING TO CONSIDER DISMISSAL OF THE CITATIONS DUE TO MITIGATING CIRCUMSTANCES AS PERMITTED BY STATUTE AND ORDINANCE
Appellant James Chitwood was issued a citation alleging unlicensed contracting for his role in finalizing a roofing contract negotiated between Appellant Paizes and a customer.
Mr. Paizes was issued a citation alleging that he aided and abetted Mr. Chitwood in unlicensed contracting by allowing Mr. Chitwood to execute the roofing contract on behalf of him and his company, Florida Home Improvement Services, Inc.
At the administrative hearing challenging the citations, the County was of the position that in order for Mr. Chitwood to enter into a contract on behalf of Mr. Paizes he was required to be a direct employee Mr. Paizes’ company. (A.H. 10, 27-28, 37-38).
Although Appellants disagreed with the County’s legal interpretation, Mr. Paizes notified the court that after the citations were issued, he hired Mr. Chitwood as a direct employee in order to correct the violations:
“MR. PAIZES: Mr. Chitwood actually is now--is employed now. At the time of this incident he was not directly employed, but nevertheless that’s neither here or there.”THE COURT: That’s (unintelligible) for you, but at the time he wasn’t, so.”



    Moreover, Mr. Paizes also notified the lower tribunal that the customer who they enter into a contract with had received a full refund of its deposit and that no construction ever commenced on its roof:

    “MR. PAIZES: The customer subsequently received a refund and gave a -- signed an agreement to withdraw the complaint which obviously -- that’s that.”


    (A.H. 72-73).

    Appellants contend that the lower court was unaware that it could exercise its discretion to dismiss the citations upon Appellants demonstrating that the alleged violations had been corrected prior to the hearing and where there was no irreparable or irreversible damage.
    Florida Statute 489.127(5)(d)3. and Sarasota County Code, Section 22-126(7)(c) both contain an identical provision stating:
    “If the person issued the citation, or his designated representative, shows that the citation is invalid or that the violation has been corrected prior to appearing before the designated code enforcement Special Magistrate, the Special Magistrate may dismiss a the citation unless the violation is irreparable or irreversible.”

    The record is clear that Appellants met the criteria for the special magistrate to dismiss the citations. The violations were corrected by Mr. Paizes hiring Mr. Chitwood as a direct employee as the County and special magistrate stated was required to avoid citations for unlicensed contracting when acting on Mr. Paizes’ behalf. The customer was given a full refund before any construction work began, thus, there was no damage of any kind. Neither Appellant had ever received a citation for the same or similar offenses in any jurisdiction previously.

    The special magistrate’s comments regarding Mr. Chitwood’s new employment status, “…but at the time he wasn’t,” indicate that it was unaware such a mitigating circumstance enabled it to exercise its discretion to dismiss the citations. In addition, the magistrate’s silence upon learning that the homeowner suffered no financial loss, and that no construction began on the home, further indicates its unfamiliarity with the provisions of Fla Stat. 489.127(5)(d)3. and Sarasota County Code 22-126(7)(c).
    Therefore, reversal is required in order for the lower court to consider whether dismissal of the citations is appropriate in light of the circumstances and authorities described herein.






    ISSUE SIX

    THE LOWER COURT DEPARTED FROM THE ESSENTIAL REQUIRMENTS OF LAW BY FINDING THAT THE STATUTORY ELEMENTS AND DEFINITIONS OF UNLICENSED CONTRACTING WERE SATISFIED
    The lower court’s final judgment found that Appellant Chitwood acted as an unlicensed contractor when he executed a roofing contract in this case on behalf of Appellant Paizes’ company, Florida Home Improvement Services, Inc., in violation of Sarasota County Code 22-126(1) and Florida Statute 489.127(f) and (i). Because Mr. Chitwood’s conduct does not meet the statutory definition of “contractor,” the administrative court departed from the essential requirements of law.Standard of Review
    The circuit court in its appellate capacity reviews an administrative court’s decision to determine whether its judgment is supported by competent, substantial evidence or whether it departed from the essential requirements of law. City of Venice v. Gwynn, 76 So.3d 401 (Fla. 2nd DCA 2011).
    The statutory provisions Mr. Chitwood was cited under state:

    “489.127 Prohibitions; penalties.—

    (1)(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;…”

    “489.127 Prohibitions; penalties.—
    (1)(i) Willfully or deliberately disregard or violate any municipal or county ordinance relating to uncertified or unregistered contractors.”

    Florida Statutes 489.127(f) and (i)(emphasis added).

    These sections require Mr. Chitwood to have acted in the capacity of a contractor in order to be guilty of unlicensed contracting. “Contractor” is defined as:
    489.105 Definitions.—As used in this part:
    (1)(3) “Contractor” means the person who is qualified for, and is only responsible for, the project contracted for and means, except as exempted in this part, 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, subtract 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.

    Florida Statute 489.103(3)(emphasis added).
    The facts developed in the lower court clearly established that Mr. Chitwood was not acting in the capacity of a contractor as defined by statute.
    Appellants explained to the lower tribunal that, at the direction of Mr. Paizes, Mr. Chitwood travelled to the Ripo home with a contract negotiated and written by Mr. Paizes for the reroofing project to be done by Mr. Paizes at the home. Mr. Chitwood secured Ida Ripo’s signature and merely signed the contract himself on behalf of Mr. Paizes who was unavailable. Ida Ripo then wrote a check made payable to Mr. Paizes’ company, not Mr. Chitwood, and Mr. Chitwood agreed to deliver the check to Mr. Paizes (A.H. 9, 16-20, 45, 70-73).
    The evidence and testimony demonstrates that Mr. Chitwood was essentially nothing more than a messenger for Mr. Paizes and certainly was not acting in the capacity of a contractor as contemplated by county ordinance or state statute. He did not execute the contract “for compensation,” nor did he undertake to, submit bid for, or by himself construct, repair, alter, remodel, add to, demolish, subtract from, or improve in any way the Ripo residence as required by statute. In fact, no permit was applied for or obtained to fulfill the roofing contract and no construction was ever performed at the home before Mr. Paizes refunded Ida Ripo’s entire deposit plus a nearly $600.00 remuneration.
    As explained best by Mr. Paizes when preserving this issue for appeal:
    “MR. PAIZES: In other words, typical unlicensed contracting, this is not the typical unlicensed contracting type of violation. Unlicensed contracting is Mr. Chitwood would go there and say, hey, I'm the contractor, here's my invoice, you pay me. That's unlicensed contracting.”
    (A.H 83).
    Therefore, where the evidence clearly demonstrates that Mr. Chitwood was not acting in the capacity of a contractor as defined by statute and ordinance, he cannot be guilty of unlicensed contracting as charged under 489.127(f) and (i). See, Island Club W. Dev., Inc. v. Mid-State Paving Co., 864 So.2d 1191 (Fla. 5th DCA 2004) (unlicensed entity who did not meet the statutory definition of “contractor” when executing contract is not guilty of unlicensed contracting).
    In turn, since Mr. Chitwood was not engaged in unlicensed contracting, Mr. Paizes cannot be found guilty of aiding and abetting Mr. Chitwood in the practice of unlicensed contracting as the lower court found with respect to the citation Mr. Paizes received.
    Moreover, Florida law is clear that contracts entered into by unlicensed contractors are unenforceable and only become illegal if a party attempts to enforce the contract. See, Fla. Stat. 489.128, and
    Central Florida Lumber Unlimited, Inc. v Quqish, 12 So.3d 766 (Fla. 2nd DCA 2009). Therefore, because no party attempted to enforce the contract in this case the contract is not illegal. Since the contract is not illegal, Mr. Chitwood cannot be found guilty of unlicensed contracting.
    In light of the argument and facts presented herein this Court must reverse the lower court’s order and dismiss the citations issued to Appellants.

    CONCLUSION

    WHEREFORE, based on the facts, argument and authorities presented herein, Appellants asserts that this Court must reverse the lower tribunals’ final order, dismiss the citations, or grant any and all other appropriate relief.



    CERTIFICATE OF SERVICE


    APPELLANTS HEREBY CERTIFY that a copy the foregoing brief was mailed to Appellee, Sarasota County Assistant Attorney Scott Bossard whose address is 1660 Ringling Blvd. 2nd Floor, Sarasota, Florida 34236 on this February 26, 2018.


    __________________ _____________________
    Spiro C. Paizes,
    pro se James E. Chitwood, pro se


    CERTIFICATE OF COMPLIANCE


    APPELLANTS HEREBY CERTIFY that this document complies with the font and formatting requirements of Rule 9.210(a)(2). Florida Rules of Appellate Procedure.

    ____________________ _____________________
    Spiro C. Paizes,
    pro se James E. Chitwood, pro se
    5719 39
    th Street Circle E. 455 Treasure Road
    Bradenton, FL 34203 Venice, Florida 34293
    Tel: 941-720-1503 Tel: 941-565-7195
    spaizes@yahoo.com jchitwo1@gmail.com














    THEIR METHOD OF IGNORING THE LAW, IGNORING RELEVANT EVIDENCE AND THEIR DISDAIN FOR THE LAWS THEY ARE "SUPPOSED" TO BE UPHOLDING IS DEPLORABLE. DON'T THINK THEY WILL EVER HOLD ANY POLITICAL OFFICE, WE THE PEOPLE WILL ENSURE THAT THEY WILL NEVER BE ELECTED TO ANY OFFICE DUE TO IGNORING THE LAWS THAT ARE BLACK AND WHITE. HOW SHAMEFUL THEY ALL ARE!

    STAYE TUNED FOR THIS WEB SITE TO BE FULL OF THE FACTS.

    MEG WITTMER CORRUPTION