It is the intent and purpose of this chapter to promote the health, safety and welfare of the citizens of the City of Cape Coral by prohibiting the practice of unlicensed contracting, by establishing a Special Magistrate for the purpose of deciding cases of alleged violations of this chapter and by imposing administrative fines and other noncriminal penalties against persons found to be guilty of violating this chapter.

(Ord. 143-07, 12-3-2007)

This chapter shall be applicable to any unlicensed contractor, as defined by this chapter, who is performing construction work within the city limits of Cape Coral. The regulations contained in this chapter are in addition to and are intended to supplement existing state laws regulating the construction industry.

(Ord. 143-07, 12-3-2007)

For the purpose of this article, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

CONSTRUCTION. The building, altering, maintaining, repairing, fabricating, handling, erecting, installing, dismantling or servicing of structures or buildings or any part thereof.

CERTIFICATE. A certificate of competency issued by the State of Florida, Department of Business and Professional Regulation.

CONTRACTOR. A 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 those described in F.S. § 489.105.

EMPLOYEE. A person who receives compensation from and who is under the supervision and control of an employer who regularly deducts employment taxes, issues a W-2 and who is required to provide workers' compensation coverage.

LICENSE. A competency license issued by a county or municipality in the State of Florida pursuant to a local ordinance regulating the profession of contracting.

REGISTERED CONTRACTOR. Any contractor who has registered with the State of Florida, Department of Business and Professional Regulation pursuant to fulfilling the competency requirements in the jurisdiction for which the registration is issued.

REGISTRATION. Registration with the State of Florida, Department of Business and Professional Regulation pursuant to the provisions of F.S. Chapter 489.

UNLICENSED CONTRACTOR. A contractor, as defined herein, who does not have the proper licensure from either the State of Florida or the City of Cape Coral to engage in the type of work being performed.

(Ord. 143-07, 12-3-2007)

The following activities by unlicensed contractors shall constitute a violation of this chapter:

(a)

Falsely advertising or holding oneself, or a business organization, out as a licensee, certificate holder or registrant;

(b)

Falsely impersonating a licensee, certificate holder or registrant;

(c)

Presenting as one's own the license, certificate or registration of another;

(d)

Giving false or forged evidence for the purpose of obtaining a license, certificate or registration;

(F.S. § 489.127(1)(d))

(e)

Using or attempting to use a license, certificate or registration which has been suspended or revoked;

(F.S. § 489.127(1)(e))

(f)

Engaging in the business or acting in the capacity of a contractor or advertising oneself or a business organization as available to engage in the business, or act in the capacity, of a contractor without being duly licensed, registered or certified;

(F.S. § 489.127(1)(f))

(g)

Operating a business organization engaged in contracting after 60 days following the termination of its only qualifying agent without designating another primary qualifying agent;

(F.S. § 489.127(1)(g))

(h)

Commencing or performing work for which a building permit is required pursuant to any applicable Building Code provisions without the permit being in effect;

(F.S. § 489.127(1)(h))

(i)

Intentionally furnishing any materially false or misleading information on an application for a permit;

(j)

Willfully or deliberately aiding or abetting an unlicensed, uncertified or unregistered person or entity in the practice of contracting, when the person or entity is required to be licensed, certified or registered according to the provisions of state law or municipal or county ordinance;

(F.S. § 489.127(1)(i))

(k)

As an unlicensed person associated with a contracting firm qualified by a licensee under state law or county or municipal ordinance:

(1)

Concealing or causing to be concealed, or assisting in concealing, from the primary qualifying agent, any material activities or information about the contracting firm;

(2)

Excluding or facilitating the exclusion of any aspect of the contracting firm's financial or other business activities from the primary qualifying agent;

(F.S. § 489.132(1)(b))

(3)

Knowingly causing any part of the contracting firm's activities, financial or otherwise, to be conducted without the primary qualifying agent's supervision; and

(4)

Assisting or participating with any qualifying agent in the violation of any provision of state law or county or municipal ordinance.

(l)

Willfully or deliberately disregarding any municipal ordinance relating to unlicensed, uncertified or unregistered contractors.

(m)

Advertising to the public in any publication, transmission, business card, pamphlet, telephone directory or otherwise that he is a contractor, is qualified to engage in business as a contractor, or that he will perform work in a trade regulated by Florida Statutes or the City of Cape Coral Code, as they may be amended from time to time, without being duly qualified to so act.

(n)

Submitting an advertisement to any publisher for placement in any publication which is generally circulated, displayed, distributed or marketed within the City of Cape Coral, which advertisement identifies a person or entity offering services regulated by Florida Statutes or the City of Cape Coral Code, as they may be amended from time to time, unless the advertisement includes a certification or registration number issued by the state or by the city to that person or entity offering to perform the services in the advertisement.

(Ord. 143-07, 12-3-2007)

State Law reference— Similar provisions F.S. §§ 489.127(1)(a)—(i), (l); 489.132(1)(a)—(d)

There is hereby established the position of Special Magistrate for the purpose of enforcing the provisions of this chapter. The City Council shall appoint one or more persons to act as Special Magistrates for the purpose of enforcing the provisions of this chapter. Applicants for the position of Special Magistrate must be attorneys licensed to practice law in the State of Florida.

(Ord. 143-07, 12-3-2007)

(a)

Adopt rules for the conduct of the hearings;

(b)

Subpoena evidence, alleged violators and witnesses to its hearings;

(c)

Take testimony under oath;

(d)

Issue orders having force of law to command whatever steps necessary to bring a violation into compliance;

(e)

Give notices of hearing and conduct hearings upon charges of a violation of the provisions of this chapter; and

(f)

Impose disciplinary penalties against any person found by the Special Magistrate to have violated any provision of this chapter.

(Ord. 143-07, 12-3-2007)

(a)

The City of Cape Coral's Licensing Investigators are hereby designated as Code Enforcement Officers or Code Investigators pursuant to F.S. Chapter 162 for purposes of enforcing the provisions of this chapter.

(b)

The city's Licensing Investigators shall investigate complaints and initiate enforcement proceedings against any person believed to be violating the provisions of this chapter. The Special Magistrate shall not have the power to initiate the enforcement proceedings.

(c)

A Licensing Investigator designated pursuant to this subsection shall issue a citation for any violation of § 6-14 whenever, based upon personal investigation, the Licensing Investigator has reasonable and probable grounds to believe that such a violation has occurred.

(1)

A citation issued by a Licensing Investigator shall be in the form prescribed by the city and shall state:

a.

The time and date of issuance;

b.

The name and address of the person to whom the citation is issued;

c.

The time and date of the violation;

d.

A brief description of the violation and the facts constituting reasonable cause;

e.

The number or section of the code or ordinance violated;

f.

The name of the Licensing Investigator;

g.

The procedure for the person cited to follow in order to pay to civil penalty or to contest the citation;

h.

The applicable minimum ($1,000) and maximum ($2,000) civil penalty for the unlicensed contracting violation;

i.

A conspicuous statement that if the person fails to pay the civil penalty within the time allowed, or fails to appear before the Special Magistrate or in court, as the case may be, to contest the citation, he will be deemed to have waived his right to contest the citation and that in such case, judgment may be entered against the person for the amount stated in the citation.

(d)

Any act(s) for which a citation is issued shall cease upon receipt of the citation, and the person charged with the violation(s) shall elect either to correct the violation(s) by first obtaining a license, then correcting the work, and paying the civil penalty in the manner indicated on the citation or, within ten days of receipt of the citation, exclusive of weekends and legal holidays, shall request, in the manner prescribed by the city, an administrative hearing before the Special Magistrate to contest the issuance of the citation by the Licensing Investigator.

(e)

Failure of the violator to contest the decision of the Licensing Investigator within the time period set forth herein shall constitute a waiver of the violator's right to an administrative hearing. A waiver of the right to an administrative hearing shall be deemed an admission of the violation(s) and penalties may be imposed accordingly.

(f)

Upon receiving notice of an alleged violator's properly filed request to contest a citation, the Code Compliance Division of the Department of Community Development shall schedule a hearing before the Special Magistrate on a date within 45 days of the date of issuance of the citation, unless for good cause shown, the Special Magistrate schedules the hearing to a later date.

(g)

If the person issued the citation, or his or her designated representative, shows that the citation is invalid or that the violation has been corrected prior to appearing before the Special Magistrate, the Special Magistrate may dismiss the citation unless the violation is irreparable or irreversible.

(h)

Each day a willful, knowing violation continues shall constitute a separate offense.

(i)

A person cited for a violation pursuant to this chapter shall be deemed to be charged with a noncriminal infraction.

(j)

If a violator fails to contest the citation or pay the civil penalty within the timeframe allowed in the citation, or if a violation has not been corrected within the timeframe set forth on the notice of violation, then, upon written notice by the Licensing Investigator, the Special Magistrate shall enter an order ordering the violator to pay the civil penalty set forth in the citation or notice of violation, and a hearing shall not be required.

(Ord. 81-02, 8-26-2002; Ord. 143-07, 12-3-2007; Ord. 11-15, 3-23-2015)

All notices required by this chapter shall be provided to the alleged violator by certified mail, return receipt requested or by hand delivery by an officer of the Police Department or other law enforcement officer or Licensing Investigator; by leaving the notice at the violator's usual place of residence with some person of his or her family above 15 years of age and informing the person of the contents of the notice; or by including a hearing date within the citation.

(Ord. 143-07, 12-3-2007)

Hearings before the Unlicensed Contractor Division shall be conducted in the following manner.

(a)

Upon the request of the Licensing Investigator or at such other times as may be necessary, the Special Magistrate may hold a hearing to consider contested citations.

(b)

Minutes shall be kept of all hearings by the Special Magistrate and all hearings and other proceedings shall be open to the public. The city shall provide a hearing room and clerical and administrative personnel as may be reasonably required by the Special Magistrate for the proper performance of his or her duties.

(c)

Each case before the Special Magistrate shall be presented by the Licensing Investigator who issued the citation.

(d)

The Special Magistrate shall proceed to hear the cases on the agenda for that day. All testimony shall be under oath and shall be recorded. The Special Magistrate shall take testimony from the Licensing Investigator and the alleged violator and from any other person whose testimony the Special Magistrate deems necessary. The Special Magistrate shall hear all relevant and competent evidence material to the issues and shall have the power to continue the hearing as, in his or her judgment, may be necessary and proper. Formal rules of evidence shall not apply, but fundamental due process shall be observed and shall govern the proceedings.

(e)

At the conclusion of the hearing, the Special Magistrate shall issue findings of fact based on evidence of record and conclusions of law as to whether there has been a violation. The Special Magistrate shall issue an order which contains the foregoing and which assesses a penalty, if appropriate.

(f)

Upon finding that a person has committed any violation listed, the Special Magistrate shall impose a fine of no less than $150 per day for each violation; for the second or any subsequent violations the Special Magistrate shall impose a fine of no less than $500, but not more than $1,000 per day for each violation based upon consideration of the following factors:

(1)

The gravity of the violation;

(2)

Any actions taken by the violator to correct the violation; and

(3)

Any previous violations committed by the violator.

(g)

Each day a willful, knowing violation continues shall constitute a separate offense under the provisions of this section and shall be punishable as such.

(h)

If the city prevails in prosecuting a case before the Special Magistrate the city shall also be entitled to recover from the violator all cost incurred in prosecuting the case.

(i)

Any funds collected in accordance with enforcing the provisions of this chapter relating to unlicensed contractors will be retained in a special fund to support future code enforcement activities regarding unlicensed contractors.

(Ord. 143-07, 12-3-2007)

A certified copy of an order imposing a civil penalty against an unlicensed contractor or a person who knowingly assists an unlicensed contractor may be recorded in the public records and thereafter shall constitute a lien against any real or personal property owned by the violator. Upon petition to the Circuit Court, the order may be enforced in the same manner as a court judgment by the sheriffs of this state, including a levy against personal property; however, the order shall not be deemed to be a court judgment except for enforcement purposes. A civil penalty imposed pursuant to his or her part shall continue to accrue until the violator comes into compliance or until judgment is rendered in a suit to foreclose on a lien filed pursuant to this section, whichever occurs first. After three months from the filing of any such lien which remains unpaid, the Board/Special Magistrate may authorize the City Attorney to foreclose on the lien. No lien created pursuant to this part may be foreclosed on real property which is a homestead under § 4, Article 10 of the State Constitution.

(Ord. 143-07, 12-3-2007)

The violator or the city may petition the Special Magistrate for a rehearing within ten days of the execution of any such order or decision of the Special Magistrate. A petition for a rehearing may be requested only if there is any information directly related to the hearing that was not presented at the original hearing. In its order granting or denying a rehearing, the Special Magistrate shall notify all interested parties pursuant to the provisions of this chapter.

(Ord. 143-07, 12-3-2007)

Any aggrieved party may appeal a final order of the Special Magistrate to the Circuit Court. Such an appeal shall not be a hearing de novo, but shall be limited to appellate review of the record created before the Special Magistrate. An appeal must be filed within 30 days of the execution of the order to be appealed.

(Ord. 143-07, 12-3-2007)

In addition to the remedies above, the city may refer a case to the State Attorney for criminal prosecution pursuant to the following penalties prescribed in F.S. Chapter 489:

(a)

Any unlicensed person who violates any of the provisions of § 16-4 commits a misdemeanor of the first degree, punishable as provided in F.S. §§ 775.082 or 775.083.

(b)

Any unlicensed person who commits a violation of § 16-4 after having been previously found guilty of a violation commits a felony of the third degree, punishable as provided in F.S. §§ 775.082 or 775.083.

(c)

Any unlicensed person who commits a violation of § 16-4 during the existence of a state of emergency declared by executive order of the Governor, commits a felony of the third degree, punishable as provided in F.S. §§ 775.082 or 775.083.

(Ord. 143-07, 12-3-2007)