07-002500PL Department Of Business And Professional Regulation, Construction Industry Licensing Board vs. Rafael Perez
 Status: Closed
Recommended Order on Thursday, September 6, 2007.


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Summary: Revocation of registration for mechanical contractor who obtained local government competency card by fraud and, therefore, state registration by fraud.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DEPARTMENT OF BUSINESS AND )

13PROFESSIONAL REGULATION, )

16CONSTRUCTION INDUSTRY LICENSING )

20BOARD, )

22)

23Petitioner, )

25)

26vs. ) Case No. 07-2500PL

31)

32RAFAEL PEREZ, )

35)

36Respondent. )

38)

39RECOMMENDED ORDER

41Pursuant to notice, this cause was heard by Linda M. Rigot,

52the assigned Administrative Law Judge of the Division of

61Administrative Hearings, on July 24, 2007, by video

69teleconference with sites in Miami and in Tallahassee, Florida.

78APPEARANCES

79For Petitioner: P. Brian Coats, Esquire

85Department of Business and

89Professional Regulation

91Northwood Centre

931940 North Monroe Street, Suite 42

99Tallahassee, Florida 32399-2022

102For Respondent: Yehuda D. Bruck, Esquire

108Law Offices of Schwartz & Associates

114200 Southeast 1st Street

118Miami, Florida 33131

121STATEMENT OF THE ISSUE

125The issue presented is whether Respondent is guilty of the

135allegations in the Administrative Complaint filed against him,

143and, if so, what disciplinary action should be taken against him,

154if any.

156PRELIMINARY STATEMENT

158On December 8, 2006, Petitioner Department of Business and

167Professional Regulation issued an Administrative Complaint

173against Respondent Rafael Perez, alleging that Respondent had

181violated several statutes and a rule regulating his conduct as a

192registered mechanical contractor in the State of Florida.

200Respondent timely requested an administrative hearing regarding

207the allegations in that Administrative Complaint, and this cause

216was thereafter transferred to the Division of Administrative

224Hearings to conduct the evidentiary proceeding.

230The Department presented the testimony of Jose Lezcano,

238Andrew Janecek, and Respondent Rafael Perez. Additionally, the

246Department's Exhibits numbered 1-3 and Respondent's Exhibits

253numbered 1 and 2 were admitted in evidence.

261Although both parties requested leave to file proposed

269recommended orders after the conclusion of the final hearing,

278only the Department did so. That document has been considered in

289the entry of this Recommended Order.

295FINDINGS OF FACT

2981. Respondent is a registered mechanical contractor, having

306been issued license number RM 14016953 by the Florida

315Construction Industry Licensing Board. He is licensed to do

324business as PRT Cool Service, Inc., license number QB 45554.

3342. The Miami-Dade County Building Code Compliance Office

342(hereinafter "Compliance Office") is responsible for licensing

350construction contractors who work within Miami-Dade County,

357Florida.

3583. To engage in a particular type of construction trade

368within Miami-Dade County, an individual is required to apply for

378and be issued a competency card from the Compliance Office. That

389Office has employees who can assist applicants with questions

398concerning the application and application process, including

405persons who speak Spanish.

4094. The Compliance Office licenses approximately 40 to 50

418types of construction trades. These trades fall into two

427categories: "tested" or "non-tested." For trades within the

435tested category, an applicant must take and pass a written

445examination in order to be licensed.

4515. The refrigeration and air conditioning mechanical

458contractor trade falls within the tested category, and an

467applicant for licensure in that trade in Miami-Dade County must

477take an examination as part of the application process. The Code

488of Miami-Dade County does not permit substituting experience for

497that examination.

4996. To obtain a competency card in the refrigeration and air

510conditioning trade in Miami-Dade County, an applicant must first

519submit a completed application, a $315 application fee, personal

528identification, letters of experience, and a W-2 form to the

538Compliance Office. Upon receipt of those documents, the

546Compliance Office creates a physical file for the applicant, and

556the application is reviewed for deficiencies. If none are found,

566the applicant will be approved to take the examination.

5757. The Compliance Office then places the applicant's name

584on a roster as being exam-eligible, which roster is then sent to

596a private exam school to administer the examination. The

605Compliance Office also sends the applicant a letter advising that

615the applicant can take the exam and providing the applicant with

626contact information for the private school. The applicant is

635required to contact the private exam school to schedule and then

646sit for the exam.

6508. If the applicant passes the exam, the private exam

660school notifies both the applicant and the Compliance Office by

670letter. Upon being notified that an applicant has passed the

680exam, the Compliance Office then contacts the applicant to

689determine if the applicant chooses to work in an individual

699capacity or as a business. If as a business, the applicant is

711required to fill out a business application, provide the

720necessary forms to identify the business, and pay a $250 fee.

7319. The Compliance Office then reviews the business

739application and supporting documents and obtains a credit report

748directly from a reporting company. If the business application

757is approved, the Compliance Office notifies the applicant by

766letter and instructs the applicant to provide proof of liability

776insurance and worker's compensation coverage. Upon receipt of

784that proof, the Compliance Office issues to the applicant a

794competency card.

79610. In approximately August 2004, Respondent contacted the

804Compliance Office by telephone and requested an application for a

814refrigeration and air conditioning competency card and a State of

824Florida application for a registered mechanical contractor

831license. In that conversation he made specific inquiry regarding

840the examination he knew he was required to take to obtain the

852competency card. Respondent made no further contact with the

861Compliance Office concerning the application or the application

869process for the refrigeration and air conditioning competency

877card.

87811. Rather, Respondent went to a private business which

887advertised in Spanish that it could obtain licenses and insurance

897and gave an individual named Daniel the application forms he

907received from the Compliance Office for both the County's

916competency card and the State's registration thereafter. Daniel

924requested Respondent to bring him various financial documents and

933asked Respondent about his work experience. He did not translate

943the questions on the application forms for Respondent or go over

954the information in those forms.

95912. Daniel completed the applications. He did not go

968through the questions and answers with Respondent, but simply

977gave Respondent the documents to sign. Respondent did not

986inquire as to the contents of the applications or the information

997provided. He merely signed the applications and gave Daniel

1006$2,000 in cash, the form of payment required by Daniel.

101713. When Daniel informed Respondent his competency card was

1026ready, Respondent picked it up from Daniel.

103314. Respondent never submitted his application for the

1041refrigeration and air conditioning competency card to the

1049Compliance Office. Respondent never took the required

1056examination for the refrigeration and air conditioning competency

1064card. The Compliance Office has no record of Respondent applying

1074for a competency card.

107815. The competency card Respondent received from Daniel was

1087not issued by the Compliance Office. Respondent's

1094refrigeration and air conditioning competency card is fraudulent.

110216. Following receipt of the competency card from Daniel,

1111Respondent never contacted the Compliance Office to verify that

1120he had satisfied all the requirements for the issuance of the

1131card or that the card was valid. Rather, he submitted to

1142Petitioner Department of Business and Professional Regulation his

1150application for registration of that competency card in December

11592005.

116017. A registration issued by the Department to an

1169individual formally registers the competency card issued to that

1178individual by a local government licensing board. An individual

1187must be issued a registration by the Department before engaging

1197in contracting services in the jurisdiction where that individual

1206received a competency card.

121018. A registration will not be issued by the Department

1220without a valid competency card from a local government licensing

1230board. The competency card informs the Department that the

1239individual has demonstrated the appropriate competence to engage

1247in a particular construction trade as deemed by the local

1257government licensing board through examination, experience, or a

1265combination of those two requirements. A copy of an individual's

1275competency card from a local government

1281licensing board must be included with an application for

1290registration.

129119. The Department has personnel who can assist applicants

1300with questions concerning the application and registration

1307process, including personnel who can assist persons who speak

1316Spanish.

131720. Along with his application for registration, Respondent

1325submitted a copy of his fraudulent refrigeration and air

1334conditioning competency card.

133721. Included within the application for registration is a

1346statement by the applicant attesting that the applicant has

1355successfully completed the requisite education and experience.

1362Because of the number of local government licensing boards in

1372Florida and the varying requirements each imposes on the issuance

1382of a competency card, the applicant has the burden of verifying

1393his or her successful completion of all the requirements for the

1404particular construction trade with the particular local

1411government licensing board.

141422. The attest statement must be acknowledged, read,

1422signed, and notarized. Respondent signed the attest statement,

1430and his signature was notarized.

143523. At the time the Department received and processed

1444Respondent's application, the Department had no knowledge that

1452Respondent's refrigeration and air conditioning competency card

1459was fraudulent and not issued by the Compliance Office. The

1469Department, therefore, approved Respondent's application, and

1475Respondent was issued a registration. Had the Department known

1484Respondent's competency card was fraudulent, the Department would

1492not have approved his registration.

149724. The total investigative costs, excluding costs

1504associated with any attorney's time, incurred by the Department

1513in this case are $32.66.

1518CONCLUSIONS OF LAW

152125. The Division of Administrative Hearings has

1528jurisdiction over the subject matter hereof and the parties

1537hereto. §§ 120.569 and 120.57(1), Fla. Stat.

154426. The Department seeks to take disciplinary action

1552against Respondent in this proceeding. The burden of proof,

1561therefore, is on the Department, and the Department must prove

1571the allegations in its Administrative Complaint by clear and

1580convincing evidence. Dept. of Banking & Finance, Division of

1589Securities & Investor Protection v. Osborne Stern & Co. , 670 So.

16002d 932 (Fla. 1996).

160427. The Administrative Complaint filed in this cause

1612contains four counts. Count I alleges that Respondent has

1621violated Section 489.129(1)(a), Florida Statutes, by obtaining

1628registration by fraud or misrepresentation. As further alleged

1636in Count I, Florida Administrative Code Rule 61G4-15.008 provides

1645that material false statements or information submitted by an

1654applicant for registration constitutes a violation of Section

1662489.129(1)(a) and shall result in suspension or revocation of the

1672registration.

167328. Respondent could not obtain registration with the State

1682without a competency card issued by a local government licensing

1692board. Possessing a competency card is, therefore, material

1700information. Respondent obtained Department approval and

1706registration by submitting a local competency card and by

1715attesting that he had fulfilled all requirements for the issuance

1725of that card. Respondent's competency card, however, was

1733fraudulent and his attestation false.

173829. Respondent's denial of knowledge that his card was

1747fraudulent and his attestation false is not credible. He knew

1757Miami-Dade County required passing an examination for his trade.

1766Respondent knew he took no such exam. He also knew he was

1778interacting only with a private company and not with the

1788Compliance Office, which was the only entity that could issue a

1799competency card.

180130. Lastly, Respondent paid $2,000 in cash for his

1811competency card. The cash requirement alone would have put a

1821reasonable person on notice that something was amiss, and the

1831amount he paid was significantly more than he had to pay to the

1844Compliance Office. According to his testimony, the large cash

1853payment was not for translating services since no information

1862from the application form and no questions thereon were

1871translated for him. Respondent has failed to suggest what he

1881thought he was paying for if not a fraudulent card.

189131. The Department has proven by clear and convincing

1900evidence that Respondent obtained his registration by providing

1908false material information to the Department. Respondent is,

1916therefore, guilty of the allegations in Count I of the

1926Administrative Complaint.

192832. Count II alleges that Respondent violated Section

1936489.127(1)(d), Florida Statutes, which prohibits knowingly giving

1943false or forged evidence to the board or a member of the board,

1956thereby violating Section 489.129(1)(i), which prohibits failing

1963to comply with Part I of Chapter 489 or violating a rule or

1976lawful order of the board. There is no showing that Respondent

1987gave false or forged evidence to the board or a member of the

2000board. The evidence is that he gave fraudulent information to

2010the Department. The Department, therefore, has failed to prove

2019the allegations of Count II.

202433. Count III of the Administrative Complaint alleges that

2033Respondent violated Section 455.227(1)(h), Florida Statutes, by

2040obtaining a license to practice a profession by fraudulent

2049misrepresentation, or through an error of the department or the

2059board. Respondent has violated that Section, which relates

2067generally to many different trades and occupations, for the same

2077reasons that he has been found guilty of violating Section

2087489.129(1)(a), Florida Statutes, which regulates his specific

2094trade.

209534. Count IV of the Administrative Complaint alleges that

2104Respondent has violated Section 489.129(1)(m), Florida Statutes,

2111by committing incompetency or misconduct in the practice of

2120contracting. No evidence was offered that Respondent is

2128incompetent or that he committed incompetency. Submitting a

2136fraudulent competency card in order to obtain registration with

2145the State, however, is misconduct in the practice of contracting.

2155The Department, therefore, has proven by clear and convincing

2164evidence that Respondent is guilty of the allegations in Count

2174IV.

217535. Section 489.129(1), Florida Statutes, provides the

2182types of disciplinary action that can be taken against a

2192registrant for violations of that Section, which action includes

2201revocation and an administrative fine not to exceed $10,000 per

2212violation. Similarly, Section 455.227(2), Florida Statutes,

2218authorizes an administrative fine not to exceed $5,000 for each

2229count or separate offense. Florida Administrative Code Rule

223761G4-17.002 sets forth mitigating and aggravating factors to be

2246considered in assessing a penalty, none of which clearly applies

2256to this situation.

225936. Since Respondent has violated Florida Administrative

2266Code Rule 61G4-15.008 in conjunction with Section 489.129(1)(a),

2274Florida Statutes, suspension or revocation is required.

2281Suspension for someone who does not possess the qualifications

2290required for registration would be nonsensical. Accordingly,

2297revocation of Respondent's registration is appropriate.

230337. In Petitioner's Proposed Recommended Order, the

2310Department appears to suggest that pursuant to Florida

2318Administrative Code Rule 61G4-17.001, each statutory violation

2325should be considered a separate offense, and each, therefore,

2334should be assessed a separate administrative fine. There is in

2344this case, however, only one set of facts which form the basis of

2357Respondent's unlawful conduct. The statutory violation which

2364most clearly and directly describes Respondent's conduct, Section

2372489.129(1)(a), Florida Statutes, carries an administrative fine

2379ranging from $5,000 to $10,000. The Department, however, also

2390proved that Respondent's conduct violated Section 455.227(1)(h),

2397Florida Statutes, a duplicative Section under the facts of this

2407case, and that Section only allows a $5,000 fine. Therefore, an

2419administrative fine of $5,000 is the appropriate fine in this

2430case.

243138. Respondent should also pay the Department's costs of

2440investigation, excluding costs associated with an attorney's

2447time, in the amount of $32.66.

2453RECOMMENDATION

2454Based on the foregoing Findings of Fact and Conclusions of

2464Law, it is

2467RECOMMENDED that a final order be entered revoking

2475Respondent's registration, imposing an administrative fine of

2482$5,000, and requiring Respondent to pay the Department's costs in

2493the amount of $32.66 by a date certain.

2501DONE AND ENTERED this 6th day of September, 2007, in

2511Tallahassee, Leon County, Florida.

2515S

2516LINDA M. RIGOT

2519Administrative Law Judge

2522Division of Administrative Hearings

2526The DeSoto Building

25291230 Apalachee Parkway

2532Tallahassee, Florida 32399-3060

2535(850) 488-9675 SUNCOM 278-9675

2539Fax Filing (850) 921-6847

2543www.doah.state.fl.us

2544Filed with the Clerk of the

2550Division of Administrative Hearings

2554this 6th day of September, 2007.

2560COPIES FURNISHED :

2563P. Brian Coats, Esquire

2567Department of Business and

2571Professional Regulation

2573Northwood Centre

25751940 North Monroe Street, Suite 42

2581Tallahassee, Florida 32399-2022

2584Yehuda D. Bruck, Esquire

2588Law Offices of Schwartz & Associates

2594200 Southeast 1st Street

2598Miami, Florida 33131

2601Ned Luczynski, General Counsel

2605Department of Business and

2609Professional Regulation

2611Northwood Centre

26131940 North Monroe Street

2617Tallahassee, Florida 32399-0792

2620G. W. Harrell, Executive Director

2625Construction Industry Licensing Board

2629Department of Business and

2633Professional Regulation

2635Northwood Centre

26371940 North Monroe Street

2641Tallahassee, Florida 32399-0792

2644NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

2650All parties have the right to submit written exceptions within 15

2661days from the date of this Recommended Order. Any exceptions to

2672this Recommended Order should be filed with the agency that will

2683issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 09/10/2007
Proceedings: Respondent`s Proposed Recommended Order filed.
PDF:
Date: 09/06/2007
Proceedings: Recommended Order
PDF:
Date: 09/06/2007
Proceedings: Recommended Order (hearing held July 24, 2007). CASE CLOSED.
PDF:
Date: 09/06/2007
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 08/24/2007
Proceedings: Petitioner`s Proposed Recommended Order filed.
Date: 08/15/2007
Proceedings: Transcript filed.
Date: 07/24/2007
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 07/23/2007
Proceedings: Notice of Transfer.
PDF:
Date: 07/16/2007
Proceedings: Petitioner`s Pre-hearing Statement filed.
PDF:
Date: 06/27/2007
Proceedings: Order Granting Continuance and Re-scheduling Hearing by Video Teleconference (hearing set for July 24, 2007; 9:30 a.m.; Miami and Tallahassee, FL).
PDF:
Date: 06/26/2007
Proceedings: Petitioner`s Motion for Hearing to be Held Via Video Conference filed.
PDF:
Date: 06/19/2007
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 06/19/2007
Proceedings: Notice of Hearing (hearing set for July 19, 2007; 9:30 a.m.; Miami, FL).
PDF:
Date: 06/14/2007
Proceedings: Petitioner`s Amended Response to Initial Order filed.
PDF:
Date: 06/06/2007
Proceedings: Petitioner`s Response to Initial Order.
PDF:
Date: 06/05/2007
Proceedings: Initial Order.
PDF:
Date: 06/05/2007
Proceedings: Notice of Appearance, Entry of Plea of Not Guilty, Notice of Discovery and Demand for Hearing (filed by Y. Bruck).
PDF:
Date: 06/05/2007
Proceedings: Administrative Complaint filed.
PDF:
Date: 06/05/2007
Proceedings: Agency referral filed.

Case Information

Judge:
LINDA M. RIGOT
Date Filed:
06/05/2007
Date Assignment:
07/23/2007
Last Docket Entry:
09/10/2007
Location:
Miami, Florida
District:
Southern
Agency:
Department of Business and Professional Regulation
Suffix:
PL
 

Counsels

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Related Florida Statute(s) (5):

Related Florida Rule(s) (3):