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

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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT H. RAINES, )

)

Petitioner, )

)

vs. ) Case No. 08-2718

)

CONSTRUCTION INDUSTRY )

LICENSING BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

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

case on November 3, 2008, by video conference between

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

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

of Administrative Hearings.

APPEARANCES

For Petitioner: Robert H. Raines, pro se

11661 Houle Road

Jacksonville, Florida 32218

For Respondent: Daniel Biggins, Esquire

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

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

PRELIMINARY STATEMENT

Petitioner successfully passed the required examination,

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

Residential Contractor license. His application was denied by a

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

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

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

was referred to the Division of Administrative Hearings on or

about June 9, 2008.

The originally scheduled final hearing was cancelled

because the building location in Jacksonville had been closed,

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

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

between Tallahassee, and Jacksonville, Florida.

Petitioner, in Jacksonville, testified on his own behalf

and had six exhibits admitted in evidence. Respondent’s

attorney, in Tallahassee, presented the oral testimony of

Jacquline Watts, also present in Tallahassee, and had five

exhibits admitted in evidence.

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

party's timely-filed Proposed Recommended Order has been

considered in preparation of this Recommended Order.

FINDINGS OF FACT

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

following reasons for denying Petitioner a Certified Residential

Contractor license: (1) insufficient work experience as required

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

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

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

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

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

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

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

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

Statutes (2007).

2. In 1991, Petitioner was sentenced to probation for

Attempted Capital Sexual Battery on a person under the age of

twelve, per Section 794.011, Florida Statutes. Petitioner had

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

mitigation, Petitioner was placed on probation.

3. In 1999, Petitioner was convicted under Section

827.071(5), Florida Statutes, for possession of photographs

displaying sexual performances by children. He had stored over

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

His arrest therefor violated his probation for the prior

offense, and he was sentenced concurrently to two years

imprisonment and five years' probation, with psychosexual

counseling and no unsupervised contact with minors.

4. Petitioner’s child pornography possession occurred

while Petitioner was on probation for his earlier offense. When

questioned by the investigating officer, Petitioner initially

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

possession.

5. Petitioner was released from prison one year early,

presumably due to good behavior.

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

practice of contracting, because a licensed residential

contractor has greater access to private homes than laymen or

many other professionals; because a licensed residential

contractor is automatically extended a higher level of trust by

consumers’ families than is a typical unlicensed construction

worker; and because there is a substantial potential that

homeowners will entrust a licensed residential contractor in

their home and near their children, while expecting the licensee

to oversee his on-premises staff.

7. It is axiomatic that the crimes committed by Petitioner

are among the most dangerous and threatening to children, a

vulnerable segment of the population. The sentencing guidelines

and the probationary requirement of no child contact and

psychosexual counseling recognize the potential for future

harm. 1/

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

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

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

scholastic problems.

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

of his own successful contracting business. He is financially

stable, and has passed the requisite examination for the license

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

college credit, but that was not corroborated.

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

because he has experience drilling into foundation slabs, but he

has no experience in actually pouring foundation slabs.

11. Petitioner has experience drilling into masonry walls,

but no independent experience constructing masonry walls.

12. Petitioner has experience attaching clips to trusses

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

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

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

rod, and replaces the frame.

14. Petitioner conceded that he has no experience in

either column erection or structural reinforced concrete.

15. Petitioner's relevant experience is apparently limited

to that obtained working for family and friends, which

experience he listed on his application. He testified that he

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

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

his testimony on this score was not corroborated either by

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

evidence.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

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

(2007).

17. The Petitioner has the burden of proof in this

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

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

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

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

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

pertinent part:

(2) A person shall be eligible for

licensure by examination, if the person:

* * *

(b) Is of good moral character; and

(c) Meets eligibility requirements according

to one of the following criteria:

1. Has received a baccalaureate degree

from an accredited 4-year college in the

appropriate field of engineering,

architecture, or building construction and

has 1 year of proven experience in the

category in which the person seeks to

qualify. For the purpose of this part, a

minimum of 2,000 person-hours shall be used

in determining full-time equivalency.

2. Has a total of at least 4 years of

active experience as a worker who has

learned the trade by serving an

apprenticeship as a skilled worker who is

able to command the rate of a mechanic in

the particular trade or as a foreman who is

in charge of a group of workers and usually

is responsible to a superintendent or a

contractor or his or her equivalent,

provided, however, that at least 1 year of

active experience shall be as a foreman.

3. Has a combination of not less than

1 year of experience as a foreman and not

less than 3 years of credits for any

accredited college-level courses; has a

combination of not less than 1 year of

experience as a skilled worker, 1 year of

experience as a foreman, and not less than 2

years of credits for any accredited college-

level courses; or has a combination of not

less than 2 years of experience as a skilled

worker, 1 year of experience as a foreman,

and not less than 1 year of credits for any

accredited college-level courses. All

junior college or community college-level

courses shall be considered accredited

college-level courses. (Emphasis supplied).

* * *

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

an applicant for failure to satisfy the

requirement of good moral character only if:

1. There is a substantial connection

between the lack of good moral character of

the applicant and the professional

responsibilities of a certified contractor;

and

2. The finding by the board of lack of

good moral character is supported by clear

and convincing evidence.

(b) When an applicant is found to be

unqualified for a certificate because of a

lack of good moral character, the board

shall furnish the applicant a statement

containing the findings of the board, a

complete record of the evidence upon which

the determination was based, and a notice of

the rights of the applicant to a rehearing

and appeal.

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

states:

In the case of applicants for certification

in the residential contractor category, the

phrases "active experience" and "proven

experience" as used in Section

489.111(2)(c)1., 2., or 3., F.S., shall be

defined to mean construction experience in

four or more of the following area:

(a) Foundation/Slabs.

(b) Masonry walls.

(c) Trusses.

(d) Structural wood framing (excluding

platform framing).

(e) Column erection.

(f) Formwork for structural reinforced

concrete.

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

(1) The board may take any of the following

actions against any certificateholder or

registrant : place on probation or reprimand

the licensee, revoke, suspend, or deny the

issuance or renewal of the certificate ,

registration, or certificate of authority,

require financial restitution to a consumer

for financial harm directly related to a

violation of a provision of this part,

impose an administrative fine not to exceed

$10,000 per violation, require continuing

education, or assess costs associated with

investigation and prosecution, if the

contractor, financially responsible officer,

or business organization for which the

contractor is a primary qualifying agent, a

financially responsible officer, or a

secondary qualifying agent responsible under

s. 489.1195 is found guilty of any of the

following acts:

* * *

(b) Being convicted or found guilty of, or

entering a plea of nolo contendere to,

regardless of adjudication, a crime in any

jurisdiction which directly relates to the

practice of contracting or the ability to

practice contracting.

(c) Violating any provision of chapter 455.

(Emphasis supplied).

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

(1) The following acts shall constitute

grounds for which the disciplinary actions

specified in subsection (2) may be taken:

* * *

(c) Being convicted or found guilty of, or

entering a plea of nolo contendere to,

regardless of adjudication, a crime in any

jurisdiction which relates to the practice

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

profession.

22. Petitioner’s convictions are directly related to the

practice of residential contracting for the reasons set out in

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

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

related crimes can safely be granted a professional license that

would allow him increased access to unsuspecting homeowners. A

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

based on the best interests of that individual child, neither

adds to, nor detracts from, the foregoing conclusion.

Petitioner’s application must be denied based upon Sections

455.227(1)(c) and 489.129(1)(b), Florida Statutes. See also

§ 455.227(2)(a), Fla. Stat. 2/

23. Petitioner’s directing a business and providing for

himself and others is admirable. However, he has not

demonstrated that he has taken steps to repair his moral

character. Sexual felonies cannot be viewed as of so little

consequence as to not diminish the perpetrator’s moral

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

an applicant for certification must be of good moral character,

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

is not purely subjective perception.

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

1102 (Fla. 1st DCA 1977), an applicant for a beverage license

was denied after an administrative finding that the owner was

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

[N]ot only the ability to distinguish

between right and wrong, but the character

to observe the difference; the observance of

the rules of right conduct, and conduct

which indicates and establishes the

qualities generally acceptable to the

populace for positions of trust and

confidence.

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

2d 454 (Fla. 1978), the Florida Supreme Court, in a case

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

good moral character:

[S]hould not be restricted to those acts

that reflect moral turpitude, but rather

extends to acts and conduct which would

cause a reasonable man to have substantial

doubts about an individual’s honesty,

fairness, and respect for the rights of

others and for the laws of the state and

nation.

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

26. Respondent may refuse to certify an applicant for

failure to satisfy the moral character requirement when there is

a substantial connection between the lack of good moral

character of the applicant and the professional responsibilities

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

Petitioner herein has failed to clearly and convincingly satisfy

the requirement of good moral character required by Section

489.111(2)(b), Florida Statutes.

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

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

Proposed Recommended Order, to the effect that he should be

licensed because some words in parentheses in the statute are

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

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

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

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

of experience he could qualify under would be pursuant to

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

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

than three years of credits for any accredited college-level

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

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

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

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

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

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

accredited college-level courses.

28. Of the three foregoing possible acceptable

combinations, Petitioner apparently intended to qualify under

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

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

two years at accredited college-level courses. Respondent

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

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

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

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

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

experience,” Respondent’s argument fails to persuade.

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

failed to demonstrate the necessary experience. Petitioner has

not demonstrated two years of work experience in the licensed

category of residential construction including one year of

supervisory experience as a foreman. Petitioner’s demonstrated

experience in construction-related activities for his own

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

licensed residential construction, does not suffice.

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

employee of a licensed contractor. Indeed, the only experience

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

working on houses for friends, and his testimony was not

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

experience at this time.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED that the Construction Industry Licensing Board

deny Petitioner's application for Certified Residential

Contractor's License.

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

Tallahassee, Leon County, Florida.

S

___________________________________

ELLA JANE P. DAVIS

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 15th day of December, 2008.

ENDNOTES

1/ Respondent alleged that Petitioner currently remains a

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

that effect.

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

(2) When the board, or the department when

there is no board, finds any person guilty

of the grounds set forth in subsection (1)

or of any grounds set forth in the

applicable practice act, including conduct

constituting a substantial violation of

subsection (1) or a violation of the

applicable practice act which occurred prior

to obtaining a license, it may enter an

order imposing one or more of the following

penalties:

(a) Refusal to certify, or to certify with

restrictions, an application for a license.

COPIES FURNISHED:

Robert H. Raines

11661 Houle Road

Jacksonville, Florida 32218

Daniel Biggins, Esquire

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

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

Ned Luczynski, General Counsel

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.