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

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

CONSTRUCTION INDUSTRY LICENSING )

BOARD, )

)

Petitioner, )

)

vs. ) Case No. 07-2500PL

)

RAFAEL PEREZ, )

)

Respondent. )

)

RECOMMENDED ORDER

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

the assigned Administrative Law Judge of the Division of

Administrative Hearings, on July 24, 2007, by video

teleconference with sites in Miami and in Tallahassee, Florida.

APPEARANCES

For Petitioner: P. Brian Coats, Esquire

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2022

For Respondent: Yehuda D. Bruck, Esquire

Law Offices of Schwartz & Associates

200 Southeast 1st Street

Miami, Florida 33131

STATEMENT OF THE ISSUE

The issue presented is whether Respondent is guilty of the

allegations in the Administrative Complaint filed against him,

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

if any.

PRELIMINARY STATEMENT

On December 8, 2006, Petitioner Department of Business and

Professional Regulation issued an Administrative Complaint

against Respondent Rafael Perez, alleging that Respondent had

violated several statutes and a rule regulating his conduct as a

registered mechanical contractor in the State of Florida.

Respondent timely requested an administrative hearing regarding

the allegations in that Administrative Complaint, and this cause

was thereafter transferred to the Division of Administrative

Hearings to conduct the evidentiary proceeding.

The Department presented the testimony of Jose Lezcano,

Andrew Janecek, and Respondent Rafael Perez. Additionally, the

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

numbered 1 and 2 were admitted in evidence.

Although both parties requested leave to file proposed

recommended orders after the conclusion of the final hearing,

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

the entry of this Recommended Order.

FINDINGS OF FACT

1. Respondent is a registered mechanical contractor, having

been issued license number RM 14016953 by the Florida

Construction Industry Licensing Board. He is licensed to do

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

2. The Miami-Dade County Building Code Compliance Office

(hereinafter "Compliance Office") is responsible for licensing

construction contractors who work within Miami-Dade County,

Florida.

3. To engage in a particular type of construction trade

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

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

Office has employees who can assist applicants with questions

concerning the application and application process, including

persons who speak Spanish.

4. The Compliance Office licenses approximately 40 to 50

types of construction trades. These trades fall into two

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

tested category, an applicant must take and pass a written

examination in order to be licensed.

5. The refrigeration and air conditioning mechanical

contractor trade falls within the tested category, and an

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

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

of Miami-Dade County does not permit substituting experience for

that examination.

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

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

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

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

Compliance Office. Upon receipt of those documents, the

Compliance Office creates a physical file for the applicant, and

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

the applicant will be approved to take the examination.

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

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

a private exam school to administer the examination. The

Compliance Office also sends the applicant a letter advising that

the applicant can take the exam and providing the applicant with

contact information for the private school. The applicant is

required to contact the private exam school to schedule and then

sit for the exam.

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

school notifies both the applicant and the Compliance Office by

letter. Upon being notified that an applicant has passed the

exam, the Compliance Office then contacts the applicant to

determine if the applicant chooses to work in an individual

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

required to fill out a business application, provide the

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

9. The Compliance Office then reviews the business

application and supporting documents and obtains a credit report

directly from a reporting company. If the business application

is approved, the Compliance Office notifies the applicant by

letter and instructs the applicant to provide proof of liability

insurance and worker's compensation coverage. Upon receipt of

that proof, the Compliance Office issues to the applicant a

competency card.

10. In approximately August 2004, Respondent contacted the

Compliance Office by telephone and requested an application for a

refrigeration and air conditioning competency card and a State of

Florida application for a registered mechanical contractor

license. In that conversation he made specific inquiry regarding

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

competency card. Respondent made no further contact with the

Compliance Office concerning the application or the application

process for the refrigeration and air conditioning competency

card.

11. Rather, Respondent went to a private business which

advertised in Spanish that it could obtain licenses and insurance

and gave an individual named Daniel the application forms he

received from the Compliance Office for both the County's

competency card and the State's registration thereafter. Daniel

requested Respondent to bring him various financial documents and

asked Respondent about his work experience. He did not translate

the questions on the application forms for Respondent or go over

the information in those forms.

12. Daniel completed the applications. He did not go

through the questions and answers with Respondent, but simply

gave Respondent the documents to sign. Respondent did not

inquire as to the contents of the applications or the information

provided. He merely signed the applications and gave Daniel

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

13. When Daniel informed Respondent his competency card was

ready, Respondent picked it up from Daniel.

14. Respondent never submitted his application for the

refrigeration and air conditioning competency card to the

Compliance Office. Respondent never took the required

examination for the refrigeration and air conditioning competency

card. The Compliance Office has no record of Respondent applying

for a competency card.

15. The competency card Respondent received from Daniel was

not issued by the Compliance Office. Respondent's

refrigeration and air conditioning competency card is fraudulent.

16. Following receipt of the competency card from Daniel,

Respondent never contacted the Compliance Office to verify that

he had satisfied all the requirements for the issuance of the

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

Petitioner Department of Business and Professional Regulation his

application for registration of that competency card in December

2005.

17. A registration issued by the Department to an

individual formally registers the competency card issued to that

individual by a local government licensing board. An individual

must be issued a registration by the Department before engaging

in contracting services in the jurisdiction where that individual

received a competency card.

18. A registration will not be issued by the Department

without a valid competency card from a local government licensing

board. The competency card informs the Department that the

individual has demonstrated the appropriate competence to engage

in a particular construction trade as deemed by the local

government licensing board through examination, experience, or a

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

competency card from a local government

licensing board must be included with an application for

registration.

19. The Department has personnel who can assist applicants

with questions concerning the application and registration

process, including personnel who can assist persons who speak

Spanish.

20. Along with his application for registration, Respondent

submitted a copy of his fraudulent refrigeration and air

conditioning competency card.

21. Included within the application for registration is a

statement by the applicant attesting that the applicant has

successfully completed the requisite education and experience.

Because of the number of local government licensing boards in

Florida and the varying requirements each imposes on the issuance

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

his or her successful completion of all the requirements for the

particular construction trade with the particular local

government licensing board.

22. The attest statement must be acknowledged, read,

signed, and notarized. Respondent signed the attest statement,

and his signature was notarized.

23. At the time the Department received and processed

Respondent's application, the Department had no knowledge that

Respondent's refrigeration and air conditioning competency card

was fraudulent and not issued by the Compliance Office. The

Department, therefore, approved Respondent's application, and

Respondent was issued a registration. Had the Department known

Respondent's competency card was fraudulent, the Department would

not have approved his registration.

24. The total investigative costs, excluding costs

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

in this case are $32.66.

CONCLUSIONS OF LAW

25. The Division of Administrative Hearings has

jurisdiction over the subject matter hereof and the parties

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

26. The Department seeks to take disciplinary action

against Respondent in this proceeding. The burden of proof,

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

the allegations in its Administrative Complaint by clear and

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

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

2d 932 (Fla. 1996).

27. The Administrative Complaint filed in this cause

contains four counts. Count I alleges that Respondent has

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

registration by fraud or misrepresentation. As further alleged

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

that material false statements or information submitted by an

applicant for registration constitutes a violation of Section

489.129(1)(a) and shall result in suspension or revocation of the

registration.

28. Respondent could not obtain registration with the State

without a competency card issued by a local government licensing

board. Possessing a competency card is, therefore, material

information. Respondent obtained Department approval and

registration by submitting a local competency card and by

attesting that he had fulfilled all requirements for the issuance

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

fraudulent and his attestation false.

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

fraudulent and his attestation false is not credible. He knew

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

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

interacting only with a private company and not with the

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

competency card.

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

competency card. The cash requirement alone would have put a

reasonable person on notice that something was amiss, and the

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

Compliance Office. According to his testimony, the large cash

payment was not for translating services since no information

from the application form and no questions thereon were

translated for him. Respondent has failed to suggest what he

thought he was paying for if not a fraudulent card.

31. The Department has proven by clear and convincing

evidence that Respondent obtained his registration by providing

false material information to the Department. Respondent is,

therefore, guilty of the allegations in Count I of the

Administrative Complaint.

32. Count II alleges that Respondent violated Section

489.127(1)(d), Florida Statutes, which prohibits knowingly giving

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

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

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

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

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

board. The evidence is that he gave fraudulent information to

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

the allegations of Count II.

33. Count III of the Administrative Complaint alleges that

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

obtaining a license to practice a profession by fraudulent

misrepresentation, or through an error of the department or the

board. Respondent has violated that Section, which relates

generally to many different trades and occupations, for the same

reasons that he has been found guilty of violating Section

489.129(1)(a), Florida Statutes, which regulates his specific

trade.

34. Count IV of the Administrative Complaint alleges that

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

by committing incompetency or misconduct in the practice of

contracting. No evidence was offered that Respondent is

incompetent or that he committed incompetency. Submitting a

fraudulent competency card in order to obtain registration with

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

The Department, therefore, has proven by clear and convincing

evidence that Respondent is guilty of the allegations in Count

IV.

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

types of disciplinary action that can be taken against a

registrant for violations of that Section, which action includes

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

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

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

count or separate offense. Florida Administrative Code Rule

61G4-17.002 sets forth mitigating and aggravating factors to be

considered in assessing a penalty, none of which clearly applies

to this situation.

36. Since Respondent has violated Florida Administrative

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

Florida Statutes, suspension or revocation is required.

Suspension for someone who does not possess the qualifications

required for registration would be nonsensical. Accordingly,

revocation of Respondent's registration is appropriate.

37. In Petitioner's Proposed Recommended Order, the

Department appears to suggest that pursuant to Florida

Administrative Code Rule 61G4-17.001, each statutory violation

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

should be assessed a separate administrative fine. There is in

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

Respondent's unlawful conduct. The statutory violation which

most clearly and directly describes Respondent's conduct, Section

489.129(1)(a), Florida Statutes, carries an administrative fine

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

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

Florida Statutes, a duplicative Section under the facts of this

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

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

case.

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

investigation, excluding costs associated with an attorney's

time, in the amount of $32.66.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered revoking

Respondent's registration, imposing an administrative fine of

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

the amount of $32.66 by a date certain.

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

Tallahassee, Leon County, Florida.

S

LINDA M. RIGOT

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of September, 2007.

COPIES FURNISHED :

P. Brian Coats, Esquire

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2022

Yehuda D. Bruck, Esquire

Law Offices of Schwartz & Associates

200 Southeast 1st Street

Miami, Florida 33131

Ned Luczynski, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

G. W. Harrell, Executive Director

Construction Industry Licensing Board

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

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

this Recommended Order should be filed with the agency that will

issue the Final Order in this case.