08-002718 Robert H. Raines vs. Construction Industry Licensing Board
 Status: Closed
Recommended Order on Monday, December 15, 2008.


View Dockets  
Summary: Prior convictions for exposing self to child and for possession of child poronography relate to certified residential contractor license for denial. Appropriate qualifications were not proven.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8ROBERT H. RAINES, )

12)

13Petitioner, )

15)

16vs. ) Case No. 08-2718

21)

22CONSTRUCTION INDUSTRY )

25LICENSING BOARD, )

28)

29Respondent. )

31)

32RECOMMENDED ORDER

34Upon due notice, a disputed-fact hearing was held in this

44case on November 3, 2008, by video conference between

53Tallahassee, and Jacksonville, Florida, before Ella Jane P.

61Davis, a duly-assigned Administrative Law Judge of the Division

70of Administrative Hearings.

73APPEARANCES

74For Petitioner: Robert H. Raines, pro se

8111661 Houle Road

84Jacksonville, Florida 32218

87For Respondent: Daniel Biggins, Esquire

92Department of Legal Affairs

96The Capitol, Plaza Level 01

101Tallahassee, Florida 32399-1050

104STATEMENT OF THE ISSUE

108Should Petitioner's application for a Certified Residential Contractor license be granted?

119PRELIMINARY STATEMENT

121Petitioner successfully passed the required examination,

127and on June 1, 2007, applied to Respondent for a Certified

138Residential Contractor license. His application was denied by a

147January 3, 2008, Notice of Intent to Deny, which was not served

159until March 7, 2008. It listed specific reasons for the denial.

170Petitioner timely sought a disputed-fact hearing, and the cause

179was referred to the Division of Administrative Hearings on or

189about June 9, 2008.

193The originally scheduled final hearing was cancelled

200because the building location in Jacksonville had been closed,

209on an emergency basis, due to Tropical Storm Fay, but the final

221hearing went forward on November 3, 2008, by video conference

231between Tallahassee, and Jacksonville, Florida.

236Petitioner, in Jacksonville, testified on his own behalf

244and had six exhibits admitted in evidence. Respondent’s

252attorney, in Tallahassee, presented the oral testimony of

260Jacquline Watts, also present in Tallahassee, and had five

269exhibits admitted in evidence.

273A Transcript was filed on November 12, 2008, and each

283party's timely-filed Proposed Recommended Order has been

290considered in preparation of this Recommended Order.

297FINDINGS OF FACT

3001. The Notice of Intent to Deny in this case listed the

312following reasons for denying Petitioner a Certified Residential

320Contractor license: (1) insufficient work experience as required

328by Section 489.111(2)(c), Florida Statutes (2007), and Florida

336Administrative Code Rule 61G4-15.001(3), in that Petitioner had

344only one-half year of experience when he needed one year;

354commission of crimes related to the practice of, or the ability

365to practice, contracting, which crimes are a basis for license

375Florida Statutes (2007); and failure to satisfy the requirement

384of good moral character, which is a basis for denial of a

396license according to Section 489.111(2) and (3), Florida

404Statutes (2007).

4062. In 1991, Petitioner was sentenced to probation for

415Attempted Capital Sexual Battery on a person under the age of

426twelve, per Section 794.011, Florida Statutes. Petitioner had

434exposed himself to his step-daughter. Due to the judge finding

444mitigation, Petitioner was placed on probation.

4503. In 1999, Petitioner was convicted under Section

458827.071(5), Florida Statutes, for possession of photographs

465displaying sexual performances by children. He had stored over

47490 images of child sexual acts (pornography) on his computer.

484His arrest therefor violated his probation for the prior

493offense, and he was sentenced concurrently to two years

502imprisonment and five years' probation, with psychosexual

509counseling and no unsupervised contact with minors.

5164. Petitioner’s child pornography possession occurred

522while Petitioner was on probation for his earlier offense. When

532questioned by the investigating officer, Petitioner initially

539was not forthcoming as to the amount of child pornography in his

551possession.

5525. Petitioner was released from prison one year early,

561presumably due to good behavior.

5666. Petitioner’s crimes/convictions are related to the

573practice of contracting, because a licensed residential

580contractor has greater access to private homes than laymen or

590many other professionals; because a licensed residential

597contractor is automatically extended a higher level of trust by

607consumers’ families than is a typical unlicensed construction

615worker; and because there is a substantial potential that

624homeowners will entrust a licensed residential contractor in

632their home and near their children, while expecting the licensee

642to oversee his on-premises staff.

6477. It is axiomatic that the crimes committed by Petitioner

657are among the most dangerous and threatening to children, a

667vulnerable segment of the population. The sentencing guidelines

675and the probationary requirement of no child contact and

684psychosexual counseling recognize the potential for future

691harm. 1/

6938. In 2006, Petitioner gained custody of his 16-year-old

702son, based entirely on the child's problems in school and the

713inability of the mother to resolve the son’s absentee and

723scholastic problems.

7259. For the last six years, Petitioner has been president

735of his own successful contracting business. He is financially

744stable, and has passed the requisite examination for the license

754for which he has applied. He claims to have two years of

766college credit, but that was not corroborated.

77310. Petitioner's work experience is construction-related,

779because he has experience drilling into foundation slabs, but he

789has no experience in actually pouring foundation slabs.

79711. Petitioner has experience drilling into masonry walls,

805but no independent experience constructing masonry walls.

81212. Petitioner has experience attaching clips to trusses

820for support, but no experience in the actual setting of trusses.

83113. Petitioner's experience in wood framing is limited to

840moving supports in walls. He takes out the frame, puts in a

852rod, and replaces the frame.

85714. Petitioner conceded that he has no experience in

866either column erection or structural reinforced concrete.

87315. Petitioner's relevant experience is apparently limited

880to that obtained working for family and friends, which

889experience he listed on his application. He testified that he

899has one year’s experience as a skilled worker; one year's

909experience as a foreman; and two years of college credit, but

920his testimony on this score was not corroborated either by

930affidavit, another witness’ testimony, or by any other reliable

939evidence.

940CONCLUSIONS OF LAW

94316. The Division of Administrative Hearings has

950jurisdiction over the parties and subject matter of this cause,

960pursuant to Sections 120.569 and 120.57(1), Florida Statutes

968(2007).

96917. The Petitioner has the burden of proof in this

979proceeding. Antel v. Dept. of Professional Regulation, Florida

987Real Estate Commission , 552 So. 2d 1056 (Fla. 5th DCA 1988); see

999also Dept. of Banking and Finance v. Osborne Stern and Company ,

1010670 So. 2d 932 (Fla. 1996).

101618. Section 489.111(2)(b), (2)(c) and (3), provides, in

1024pertinent part:

1026(2) A person shall be eligible for

1033licensure by examination, if the person:

1039* * *

1042(b) Is of good moral character; and

1049(c) Meets eligibility requirements according

1054to one of the following criteria:

10601. Has received a baccalaureate degree

1066from an accredited 4-year college in the

1073appropriate field of engineering,

1077architecture, or building construction and

1082has 1 year of proven experience in the

1090category in which the person seeks to

1097qualify. For the purpose of this part, a

1105minimum of 2,000 person-hours shall be used

1113in determining full-time equivalency.

11172. Has a total of at least 4 years of

1127active experience as a worker who has

1134learned the trade by serving an

1140apprenticeship as a skilled worker who is

1147able to command the rate of a mechanic in

1156the particular trade or as a foreman who is

1165in charge of a group of workers and usually

1174is responsible to a superintendent or a

1181contractor or his or her equivalent,

1187provided, however, that at least 1 year of

1195active experience shall be as a foreman.

12023. Has a combination of not less than

12101 year of experience as a foreman and not

1219less than 3 years of credits for any

1227accredited college-level courses; has a

1232combination of not less than 1 year of

1240experience as a skilled worker, 1 year of

1248experience as a foreman, and not less than 2

1257years of credits for any accredited college-

1264level courses; or has a combination of not

1272less than 2 years of experience as a skilled

1281worker, 1 year of experience as a foreman,

1289and not less than 1 year of credits for any

1299accredited college-level courses. All

1303junior college or community college-level

1308courses shall be considered accredited

1313college-level courses. (Emphasis supplied).

1317* * *

1320(3)(a) The board may refuse to certify

1327an applicant for failure to satisfy the

1334requirement of good moral character only if:

13411. There is a substantial connection

1347between the lack of good moral character of

1355the applicant and the professional

1360responsibilities of a certified contractor;

1365and

13662. The finding by the board of lack of

1375good moral character is supported by clear

1382and convincing evidence.

1385(b) When an applicant is found to be

1393unqualified for a certificate because of a

1400lack of good moral character, the board

1407shall furnish the applicant a statement

1413containing the findings of the board, a

1420complete record of the evidence upon which

1427the determination was based, and a notice of

1435the rights of the applicant to a rehearing

1443and appeal.

144519. Florida Administrative Code Rule 61G4-15.001(3)

1451states:

1452In the case of applicants for certification

1459in the residential contractor category, the

1465phrases "active experience" and "proven

1470experience" as used in Section

1475489.111(2)(c)1., 2., or 3., F.S., shall be

1482defined to mean construction experience in

1488four or more of the following area:

1495(a) Foundation/Slabs.

1497(b) Masonry walls.

1500(c) Trusses.

1502(d) Structural wood framing (excluding

1507platform framing).

1509(e) Column erection.

1512(f) Formwork for structural reinforced

1517concrete.

151820. Section 489.129(1)(b) and (c) states:

1524(1) The board may take any of the following

1533actions against any certificateholder or

1538registrant : place on probation or reprimand

1545the licensee, revoke, suspend, or deny the

1552issuance or renewal of the certificate ,

1558registration, or certificate of authority,

1563require financial restitution to a consumer

1569for financial harm directly related to a

1576violation of a provision of this part,

1583impose an administrative fine not to exceed

1590$10,000 per violation, require continuing

1596education, or assess costs associated with

1602investigation and prosecution, if the

1607contractor, financially responsible officer,

1611or business organization for which the

1617contractor is a primary qualifying agent, a

1624financially responsible officer, or a

1629secondary qualifying agent responsible under

1634s. 489.1195 is found guilty of any of the

1643following acts:

1645* * *

1648(b) Being convicted or found guilty of, or

1656entering a plea of nolo contendere to,

1663regardless of adjudication, a crime in any

1670jurisdiction which directly relates to the

1676practice of contracting or the ability to

1683practice contracting.

1685(c) Violating any provision of chapter 455.

1692(Emphasis supplied).

169421. Section 455.227(1)(c), states:

1698(1) The following acts shall constitute

1704grounds for which the disciplinary actions

1710specified in subsection (2) may be taken:

1717* * *

1720(c) Being convicted or found guilty of, or

1728entering a plea of nolo contendere to,

1735regardless of adjudication, a crime in any

1742jurisdiction which relates to the practice

1748of, or the ability to practice, a licensee's

1756profession.

175722. Petitioner’s convictions are directly related to the

1765practice of residential contracting for the reasons set out in

1775Findings of Fact 6 and 7. Also, the evidence in this case does

1788not persuade that one who has been convicted of these sex-

1799related crimes can safely be granted a professional license that

1809would allow him increased access to unsuspecting homeowners. A

1818court’s grant of custody to Petitioner of his natural child,

1828based on the best interests of that individual child, neither

1838adds to, nor detracts from, the foregoing conclusion.

1846Petitioner’s application must be denied based upon Sections

1854455.227(1)(c) and 489.129(1)(b), Florida Statutes. See also

1861§ 455.227(2)(a), Fla. Stat. 2/

186623. Petitioner’s directing a business and providing for

1874himself and others is admirable. However, he has not

1883demonstrated that he has taken steps to repair his moral

1893character. Sexual felonies cannot be viewed as of so little

1903consequence as to not diminish the perpetrator’s moral

1911character. Pursuant to Section 489.111(2)(b), Florida Statutes,

1918an applicant for certification must be of good moral character,

1928and contrary to Petitioner's assertions, "good moral character"

1936is not purely subjective perception.

194124. In Zemour, Inc. v. Division of Beverages, 347 So. 2d

19521102 (Fla. 1st DCA 1977), an applicant for a beverage license

1963was denied after an administrative finding that the owner was

1973not of good moral character. The court defined moral character:

1983[N]ot only the ability to distinguish

1989between right and wrong, but the character

1996to observe the difference; the observance of

2003the rules of right conduct, and conduct

2010which indicates and establishes the

2015qualities generally acceptable to the

2020populace for positions of trust and

2026confidence.

202725. In Florida Board of Bar Examiners, Re: G.W.L. , 364 So.

20382d 454 (Fla. 1978), the Florida Supreme Court, in a case

2049involving admission to The Florida Bar, stated that a lack of

2060good moral character:

2063[S]hould not be restricted to those acts

2070that reflect moral turpitude, but rather

2076extends to acts and conduct which would

2083cause a reasonable man to have substantial

2090doubts about an individual’s honesty,

2095fairness, and respect for the rights of

2102others and for the laws of the state and

2111nation.

2112See also White v. Beary , 237 So. 2d 263 (Fla. 1st DCA 1970).

212526. Respondent may refuse to certify an applicant for

2134failure to satisfy the moral character requirement when there is

2144a substantial connection between the lack of good moral

2153character of the applicant and the professional responsibilities

2161of a certified contractor. See § 489.111(3)(a), Fla. Stat.

2170Petitioner herein has failed to clearly and convincingly satisfy

2179the requirement of good moral character required by Section

2188489.111(2)(b), Florida Statutes.

219127. With regard to whether or not Petitioner's experience

2200is sufficient, his point, made orally at hearing and in his

2211Proposed Recommended Order, to the effect that he should be

2221licensed because some words in parentheses in the statute are

2231not also in parentheses in the corresponding rule, is obscure,

2241but it is clear that because Petitioner claims to have one year

2253of experience as a skilled worker, one year of experience as a

2265foreman, and two years of college credits, the only combinations

2275of experience he could qualify under would be pursuant to

2285Section 489.111(2)(c), which requires either a combination of

2293not less than one year of experience as a foreman and not less

2306than three years of credits for any accredited college-level

2315courses; or having not less than one year of experience as a

2327skilled worker, one year of experience as a foreman, and not

2338less than two years of credits for any accredited college-level

2348courses; or having a combination of not less than 2 years of

2360experience as a skilled worker, one year of experience as a

2371foreman, and not less than one year of credits for any

2382accredited college-level courses.

238528. Of the three foregoing possible acceptable

2392combinations, Petitioner apparently intended to qualify under

2399the second option, via his own unsupported testimony that he had

2410worked one year as a skilled worker, one year as a foreman, and

2423two years at accredited college-level courses. Respondent

2430submits that Rule 61G4-15.001(3) interprets the terms, “active

2438experience” and “proven experience” in 489.111(2)(c)3. to

2445require four out of six categories of experience, but since sub-

2456paragraph 3. (unlike sub-paragraphs 1. and 2.) does not use

2466either the term “active experience” or the term “proven

2475experience,” Respondent’s argument fails to persuade.

248229. Be that as it may, at the present time, Petitioner has

2494failed to demonstrate the necessary experience. Petitioner has

2502not demonstrated two years of work experience in the licensed

2512category of residential construction including one year of

2520supervisory experience as a foreman. Petitioner’s demonstrated

2527experience in construction-related activities for his own

2534business, which is, by definition, outside the category of

2543licensed residential construction, does not suffice.

2549Petitioner's experience was not demonstrated to be working as an

2559employee of a licensed contractor. Indeed, the only experience

2568he listed that would qualify him was a short duration of time

2580working on houses for friends, and his testimony was not

2590corroborated in any manner. Therefore, he does not qualify by

2600experience at this time.

2604RECOMMENDATION

2605Based on the foregoing Findings of Facts and Conclusions of

2615Law, it is

2618RECOMMENDED that the Construction Industry Licensing Board

2625deny Petitioner's application for Certified Residential

2631Contractor's License.

2633DONE AND ENTERED this 15th day of December, 2008, in

2643Tallahassee, Leon County, Florida.

2647S

2648___________________________________

2649ELLA JANE P. DAVIS

2653Administrative Law Judge

2656Division of Administrative Hearings

2660The DeSoto Building

26631230 Apalachee Parkway

2666Tallahassee, Florida 32399-3060

2669(850) 488-9675 SUNCOM 278-9675

2673Fax Filing (850) 921-6847

2677www.doah.state.fl.us

2678Filed with the Clerk of the

2684Division of Administrative Hearings

2688this 15th day of December, 2008.

2694ENDNOTES

26951/ Respondent alleged that Petitioner currently remains a

2703registered sex offender, but did not offer proof or argument to

2714that effect.

27162/ Section 455.227(2) provides, in pertinent part:

2723(2) When the board, or the department when

2731there is no board, finds any person guilty

2739of the grounds set forth in subsection (1)

2747or of any grounds set forth in the

2755applicable practice act, including conduct

2760constituting a substantial violation of

2765subsection (1) or a violation of the

2772applicable practice act which occurred prior

2778to obtaining a license, it may enter an

2786order imposing one or more of the following

2794penalties:

2795(a) Refusal to certify, or to certify with

2803restrictions, an application for a license.

2809COPIES FURNISHED:

2811Robert H. Raines

281411661 Houle Road

2817Jacksonville, Florida 32218

2820Daniel Biggins, Esquire

2823Department of Legal Affairs

2827The Capitol, Plaza Level 01

2832Tallahassee, Florida 32399-1050

2835G.W. Harrell, Executive Director

2839Construction Industry Licensing Board

2843Department of Business and

2847Professional Regulation

2849Northwood Centre

28511940 North Monroe Street

2855Tallahassee, Florida 32399-0792

2858Ned Luczynski, General Counsel

2862Department of Business and

2866Professional Regulation

2868Northwood Centre

28701940 North Monroe Street

2874Tallahassee, Florida 32399-0792

2877NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

2883All parties have the right to submit written exceptions within

289315 days from the date of this Recommended Order. Any exceptions

2904to this Recommended Order should be filed with the agency that

2915will issue the final order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 12/15/2008
Proceedings: Recommended Order
PDF:
Date: 12/15/2008
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 12/15/2008
Proceedings: Recommended Order (hearing held November 3, 2008). CASE CLOSED.
PDF:
Date: 11/24/2008
Proceedings: Respondent`s Proposed Recommended Order filed.
PDF:
Date: 11/24/2008
Proceedings: Petitioner`s Proposed Recommended Order filed.
PDF:
Date: 11/14/2008
Proceedings: Post-hearing Order.
Date: 11/12/2008
Proceedings: Transcript filed.
Date: 11/04/2008
Proceedings: Petitioner`s Exhibits (exhibits not available for viewing) filed.
Date: 11/03/2008
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 08/28/2008
Proceedings: Order Re-scheduling Hearing by Video Teleconference (hearing set for November 3, 2008; 9:30 a.m.; Jacksonville and Tallahassee, FL).
PDF:
Date: 08/19/2008
Proceedings: Respondent (Nos. 4 & 5) and Composite (Nos. 1-3) Exhibits (exhibits not available for viewing) filed.
PDF:
Date: 08/04/2008
Proceedings: Prehearing Conference Report filed.
PDF:
Date: 06/18/2008
Proceedings: Notice of Video Instructions.
PDF:
Date: 06/18/2008
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 06/18/2008
Proceedings: Notice of Hearing by Video Teleconference (hearing set for August 21, 2008; 9:30 a.m.; Jacksonville and Tallahassee, FL).
PDF:
Date: 06/16/2008
Proceedings: Respondent`s Response to Initial Order filed.
PDF:
Date: 06/09/2008
Proceedings: Initial Order.
PDF:
Date: 06/09/2008
Proceedings: Notice of Intent to Deny filed.
PDF:
Date: 06/09/2008
Proceedings: Petition for Hearing filed.
PDF:
Date: 06/09/2008
Proceedings: Referral for Hearing filed.

Case Information

Judge:
ELLA JANE P. DAVIS
Date Filed:
06/09/2008
Date Assignment:
06/09/2008
Last Docket Entry:
12/15/2008
Location:
Jacksonville, Florida
District:
Northern
Agency:
Department of Business and Professional Regulation
 

Counsels

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