08-004836 Department Of Business And Professional Regulation, Construction Industry Licensing Board vs. Frederick B. Nowell, Sr., D/B/A Welling Construction, Inc./Redland Company, Inc.
 Status: Closed
Recommended Order on Tuesday, January 27, 2009.


View Dockets  
Summary: Petitioner demonstrated by clear and convincing evidence that Respondent violated Sections 489.129(1)(b) and 455.227(1)(c), Florida Statutes, when he pled guilty to mail fraud in federal district court. Recommend revocation, a $15,000 fine and costs.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DEPARTMENT OF BUSINESS AND )

13PROFESSIONAL REGULATION, )

16CONSTRUCTION INDUSTRY )

19LICENSING BOARD, )

22)

23Petitioner, )

25)

26vs. ) Case No. 08-4836

31)

32FREDERICK B. NOWELL, SR., )

37d/b/a WELLING CONSTRUCTION, )

41INC./REDLAND COMPANY, INC., )

45)

46Respondent. )

48)

49RECOMMENDED ORDER

51On November 19, 2008, pursuant to notice, a hearing was held

62in Tallahassee, Florida, by Lisa Shearer Nelson, Administrative

70Law Judge of the Division of Administrative Hearings. Respondent

79participated by means of teleconferencing from the Anteaus

87Federal Medical Center in Lexington, Kentucky.

93APPEARANCES

94For Petitioner: Kyle Christopher, Esquire

99Paul Rendleman, Qualified Representative

103Department of Business and

107Professional Regulation

1091940 North Monroe Street

113Tallahassee, Florida 32399

116For Respondent: Frederick B. Nowell, Sr., pro se

124#79553-004 Anteaus Unit

127Federal Medical Center

130Post Office Box 14500

134Lexington, Kentucky 40512-4500

137STATEMENT OF THE ISSUE

141The issue to be determined is whether Respondent has

150committed the acts alleged in the Administrative Complaint and if

160so, what penalty should be imposed.

166PRELIMINARY STATEMENT

168On September 12, 2008, the Department of Business and

177Professional Regulation (DBPR or the Department) filed a two-

186count Amended Administrative Complaint against Respondent,

192Frederick B. Nowell, Sr., alleging in Count I that Respondent

202violated Section 489.129(1)(b), Florida Statutes, and in Count II

211that he violated Section 455.227(1)(c), Florida Statutes, both by

220virtue of his being found guilty of mail fraud in the United

232States District Court, Southern District of Florida. Respondent

240filed a Response in Opposition to the Amended Administrative

249Complaint, and an Election of Rights, disputing the allegations

258in the Amended Administrative Complaint and requesting a hearing

267pursuant to Section 120.57(1), Florida Statutes. The case was

276referred to the Division of Administrative Hearings on

284September 29, 2008, for the assignment of an administrative law

294judge.

295The case was noticed for hearing to be conducted

304November 19, 2008, in Tallahassee, Florida. Because Respondent

312is incarcerated in federal prison outside the State of Florida,

322arrangements were made pursuant to his request, for him to

332participate in the hearing via telephone. At hearing, the

341Department presented the testimony of two witnesses and

349Petitioner's Exhibits numbered 1 through 8 were admitted into

358evidence. Petitioner's Exhibit 9 was offered and ruling on its

368admissibility was deferred until Respondent received the entire

376exhibit and had the opportunity to object to the exhibit. No

387objection was received, and Petitioner's Exhibit 9 is now

396admitted. Respondent chose not to testify or submit exhibits,

405but made legal argument at the conclusion of the hearing.

415The proceedings were recorded and the transcript was filed

424with the Division on December 5, 2008. Because it was

434anticipated that Respondent's incarceration would make it

441difficult for him to review the transcript and file a proposed

452order within ten days, the parties were given until January 5,

4632009, to submit proposed recommended orders. Both submissions

471were timely filed and have been carefully considered in the

481preparation of this Recommended Order. All references are to the

4912006 version of the Florida Statutes unless otherwise indicated.

500FINDINGS OF FACT

5031. At all times material to the Amended Administrative

512Complaint, Respondent was a certified general contractor, holding

520license numbers CGC 1505096 (d/b/a Redland Company, Inc.), and

529CGC 1507772 (d/b/a Welling Construction, Inc.). Respondent was

537also licensed as a certified utility and excavation contractor,

546holding license numbers 1223883 (d/b/a Redland Company, Inc.),

554CUC 1224007 (d/b/a Welling Construction, Inc.).

5602. At all times material to the Amended Administrative

569Complaint, Respondent was a primary qualifying agent for Redland

578Company, Inc., which held a certificate of authority license

587number QB 0009978. Respondent was also a primary qualifying

596agent for Welling Construction Company, which held certificate of

605authority license number QB 34340.

6103. On or around June 21, 2007, Respondent executed a plea

621agreement in Case No. 07-20415-CR-MARTINEZ, in the United States

630District Court for the Southern District of Florida. In the plea

641agreement, Respondent pled guilty to an Information which charged

650him with one count of mail fraud in violation of 18 U.S.C.

662§ 1341.

6644. On that same day, the plea agreement was considered and

675accepted by the Honorable Jose Martinez. Before acceptance of

684the plea agreement, the following colloquy occurred:

691COURT: Mr. Nowell, before you signed this

698document, did you have the opportunity to

705discuss it with your lawyer?

710A. I did.

713Q. Did you, in fact discuss it with your

722lawyer?

723A. I did.

726Q. Did you review it with him and do you

736feel that you fully understood it at the time

745you executed it?

748A. Yes, sir.

751THE COURT: Counsel, do you believe your

758client fully understood this document before

764he executed it?

767MR. ZIMMERMAN: Yes, Your Honor.

772* * *

775BY THE COURT: But let me ask you,

783Mr. Nowell: Is there anything other than

790what is contained in this eight pages that

798has been promised to you or made known to

807you? Do you have any additional promises or

815assurances of any kind in an effort to induce

824you to enter into a plea of guilty other than

834what is contained in those eight pages?

841A. No, sir.

844Q. Has anyone attempted in any way to force

853you to plead guilty, threatened or coerced

860you?

861A. No, sir.

864Q. Do you understand that if I don't accept

873the sentence recommendation in your plea

879agreement, you will still be bound by your

887plea and have no right to withdraw it?

895A. Yes, sir.

898Q. Do you understand that if the sentence is

907more severe than you expected it, you will

915still be bound by your plea and have no right

925to withdraw it?

928A. Yes, sir.

931Q. How do you now plead to the information

940pending against you?

943A. Guilty.

945THE COURT: It is the finding of the Court in

955the case of U.S.A. vs. Frederick Bradley

962Nowell, Sr. that the defendant is fully

969competent and capable of entering an informed

976plea, that his plea of guilty is a knowing

985and voluntary plea supported by an

991independent basis in fact, containing each of

998the essential elements of the offense.

1004His plea is therefore accepted. He is now

1012adjudged guilty of that offense.

10175. Attached to the plea agreement signed by Respondent was

1027an Agreed Statement of Facts. Those facts supporting the plea

1037provide in pertinent part:

10411. The Redland Company, Inc., (hereinafter

1047referred to as "Redland Company"), a Florida

1055corporation, was an engineering construction

1060company [in] Homestead, Florida. The Redland

1066Company provided a broad range of services in

1074the South Florida area, including road,

1080bridge and sewage work, and excavation.

10862. Defendant Frederick Bradley Nowell, Sr.

1092was hired by the Redland Company . . . with

1102various duties including the preparation of

1108work estimates, the negotiation of contracts

1114and subcontracts, and the approval of

1120invoices and payments. . . .

11263. The Redland Company maintained its

1132operating account at Community Bank of

1138Florida, in Homestead, Florida. [Nowell] had

1144signatory authority over the Redland Company

1150operating account.

11524. In or around October 1992, [Nowell]

1159established Nowell Group, Inc., a Florida

1165corporation of which he was president.

1171* * *

11746. In or around November 1997 through in or

1183around October 2006, . . . [Nowell] did

1191knowingly and with intent to defraud devise

1198and intend to devise a scheme and artifice to

1207defraud and to obtain money and property from

1215the Redland Company by means of materially

1222false and fraudulent pretenses,

1226representations, and promises, knowing that

1231they were false and fraudulent when made, and

1239knowingly caused to be delivered certain mail

1246matter by United States Mail and by a private

1255and commercial interstate carrier, . . . for

1263the purpose of executing the scheme.

1269* * *

12729. [Nowell], having control of the payment

1279of vendor invoices at the Redland Company and

1287signatory authority over the company's

1292operating bank account, issued and signed

1298numerous unauthorized Redland Company checks

1303payable to NGI Marine. In one instance,

1310Nowell made the unauthorized Redland Company

1316check payable to Welling Construction, a

1322construction company owned by his wife.

132810. [Nowell] would deposit the unauthorized

1334Redland Company checks made payable to "NGI

1341Marine" and "Welling Construction" into his

1347Nowell Group, Inc. bank account. Through

1353this scheme, Nowell was able to defraud the

1361Redland Company of approximately $11,441,100

1368dollars, which monies Nowell used for travel,

1375gambling, and his general personal benefit.

138111. [Nowell] concealed the issuance of the

1388unauthorized checks by writing "NGI Marine"

1394or "Welling Construction" only on the

1400negotiable copy of the check, while

1406falsifying the corresponding duplicates of

1411the check to make it appear that the original

1420check had been made payable to an established

1428Redland Company vendor. Nowell would then

1434[sic] attach old, legitimate vendor's

1439invoices to the false duplicates as purported

1446support for the checks, and place and cause

1454to be placed the fraudulent documents in

1461company files.

146312. To further conceal the fraud, [Nowell]

1470would review the monthly Community Bank of

1477Florida bank account statements for the

1483Redland Company and remove evidence of his

1490wrongdoing. Where the bank statements

1495reflected checks issued to NGI Marine, Nowell

1502would alter the documents to make it falsely

1510appear that the checks had been issued to

1518legitimate vendors.

152013. On or about January 16, 2003, [Nowell],

1528for the purpose of executing and in

1535furtherance of the aforesaid scheme and

1541artifice to defraud and to obtain money and

1549property from others by means of materially

1556and false and fraudulent pretenses,

1561representations, and promises, and attempting

1566to do so, did knowingly cause to be delivered

1575by United States Mail or a commercial

1582interstate carrier, a 2003 Uniform Business

1588Report on behalf of Nowell Group, Inc., sent

1596from the Southern District of Florida to the

1604Florida Secretary of State in Tallahassee,

1610Florida.

16116. The transfer of funds and the receipt and issuance of

1622checks arec essential to the practice of contracting.

16307. Financial responsibility is inextricably intertwined in

1637the practice of contracting. In this case, the acts to which

1648Respondent stipulated involved defrauding the company for which

1656Respondent was a primary qualifying agent.

16628. Respondent was adjudicated guilty of a crime directly

1671related to the practice of or the ability to practice

1681contracting.

16829. Respondent has challenged the propriety of his guilty

1691plea in the federal courts. To date, his challenges have been

1702unsuccessful.

170310. The total investigative costs of this case incurred by

1713the Department, excluding costs associated with any attorney's

1721time, was $223.21.

1724CONCLUSIONS OF LAW

172711. The Division of Administrative Hearings has

1734jurisdiction over the subject matter and the parties to this

1744action in accordance with Sections 120.569 and 120.57(1), Florida

1753Statutes (2008).

175512. The Department is the state agency charged with

1764regulating the practice of contracting pursuant to Section 20.165

1773and Chapters 455 and 489, Florida Statutes.

178013. In this penal proceeding, Petitioner has the burden of

1790proving the allegations in the Administrative Complaint by clear

1799and convincing evidence. Department of Banking and Finance v.

1808Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996); Ferris v.

1820Turlington , 510 So. 2d 292 (Fla. 1987); §120.57(1)(j), Fla. Stat.

1830(2008). Clear and convincing evidence is defined as follows:

1839Clear and convincing evidence requires

1844that the evidence must be found to be

1852credible; the facts to which the witnesses

1859testify must be distinctly remembered; the

1865testimony must be precise and explicit and

1872the witnesses must be lacking in confusion as

1880to the facts in issue. The evidence must be

1889of such weight that it produces in the mind

1898of the trier of fact a firm belief or

1907conviction, without hesitancy, as to the

1913truth of the allegations sought to be

1920established.

1921In re Davey , 645 So. 2d 398, 404 (Fla. 1994), quoting , Slomowitz

1933v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

194414. Count I of the Amended Administrative Complaint charged

1953Respondent with violating Section 489.129(1)(b), Florida

1959Statutes. Count II charged a violation of Section 489.129(1)(c),

1968Florida Statutes, by virtue of violating Section 455.227(1)(c),

1976Florida Statutes. Those statutes provide in pertinent part:

1984455.227 Grounds for discipline; penalties;

1989enforcement.--

1990(1) The following acts shall constitute

1996grounds for which the disciplinary actions

2002specified in subsection (2) may be taken;

2009* * *

2012(c) Being convicted or found guilty of, or

2020entering a plea of nolo contendere to,

2027regardless of adjudication, a crime in any

2034jurisdiction which relates to the practice

2040of, or the ability to practice, a licensee's

2048profession.

2049* * *

2052(2) When the board, or the department when

2060there is no board, finds any person guilty of

2069the grounds set forth in subsection (1) or of

2078any grounds set forth in the applicable

2085practice act, including conduct constituting

2090a substantial violation of subsection (1) or

2097a violation of the applicable practice act

2104which occurred prior to obtaining a license,

2111it may enter an order imposing one or more of

2121the following penalties:

2124(a) Refusal to certify, or to certify with

2132restrictions, an application for a license.

2138(b) Suspension or permanent revocation of a

2145license.

2146(c) Restriction of practice.

2150(d) Imposition of administrative fine not to

2157exceed $5,000 for each count or separate

2165offense.

2166(e) Issuance of a reprimand.

2171(f) Placement of the licensee on probation

2178for a period of time and subject to such

2187conditions as the board, or the department

2194when there is no board, may specify. Those

2202conditions may include, but are not limited

2209to, requiring the licensee to undergo

2215treatment, attend continuing education

2219course, submit to be reexamined, work under

2226the supervision of another licensee, or

2232satisfy any terms which are reasonably

2238tailored to the violations found.

2243(g) Corrective action.

2246* * *

2249489.129 Disciplinary proceedings.--

2252(1) The board may take any of the following

2261actions against any certificateholder or

2266registrant: place on probation or reprimand

2272the licensee, revoke, suspend, or deny the

2279issuance or renewal of the certificate,

2285registration or certificate of authority,

2290require financial restitution to a consumer

2296for financial harm directly related to a

2303violation of a provision of this part, impose

2311an administrative fine not to exceed $10,000

2319per violation, require continuing education,

2324or assess costs associated with investigation

2330and prosecution, if the contractor,

2335financially responsible officer, or business

2340organization for which the contractor is a

2347primary qualifying agent, a financially

2352responsible officer, or a secondary

2357qualifying agent responsible under s.

2362489.1195 if found guilty of any of the

2370following acts:

2372* * *

2375(b) Being convicted or found guilty of, or

2383entering a plea of nolo contendere to,

2390regardless of adjudication, a crime in any

2397jurisdiction which directly related to the

2403practice of contracting or the ability to

2410practice contracting.

2412(c) Violating any provision of chapter 455.

241915. In this case, the Department has established by clear

2429and convincing evidence that Respondent pled guilty to mail fraud

2439and was adjudicated guilty of said crime in federal district

2449court. The pivotal question is whether the crime committed is a

2460crime directly related to the practice or the ability to practice

2471contracting.

247216. Section 489.105(3), Florida Statutes, defines the term

"2480contractor" as follows:

2483The person who is qualified for, and shall be

2492responsible for, the project contracted for

2498and means, except as exempted in this part,

2506the person who, for compensation , undertakes

2512to, submits a bid to, or does himself or by

2522others contract, repair, alter, remodel, add

2528to, demolish, subtract from, or improve any

2535building or structure, including related

2540improvements to real estate . . . . (Emphasis

2549supplied).

255017. Because this is a penal proceeding, the statute is

2560strictly construed in favor of the licensee. Elmariah v.

2569Department of Professional Regulation , 574 So. 2d 164 (Fla. 1st

2579DCA 1990). In this case, the crime committed dealt with the

2590fraudulent payment of invoices for financial gain and the

2599alteration of records to accomplish that financial gain.

260718. In Elmariah , the court construed the phrase "fraudulent

2616representations in the practice of medicine" as opposed to some

2626action "directly related to the practice" of a profession.

2635Section 489.105(3) expressly acknowledges that contracting

2641involves activities performed for compensation, and recognizes

2648that a contractor is one who may undertake responsibility for a

2659job to be performed by others, such as subcontractors.

266819. The recent decision in Doll v. Department of Health ,

2678969 So. 2d 1103, 1106 (Fla. 1st DCA 2007), controls the

2689resolution of the issue of whether Respondent's adjudication of

2698guilt for mail fraud is within the scope of Section

2708489.129(1)(c). The First District stated:

2713Several cases demonstrate that, although the

2719statutory definition of a particular

2724profession does not specifically refer to

2730acts involved in the crime committed, the

2737crime may nevertheless relate to the

2743profession. In Greenwald v. Department of

2749Professional Regulation , the court affirmed

2754the revocation of a medical doctor's license

2761after the doctor was convicted of

2767solicitation to commit first-degree murder.

2772501 So. 2d 740 (Fla. 3d DCA 1987). The Fifth

2782District Court of Appeal has held that

2789although an accountant's fraudulent acts

2794involving gambling did not relate to his

2801technical ability to practice public

2806accounting, the acts did justify revocation

2812of the accountant's license for being

2818convicted of a crime that directly relates to

2826the practice of public accounting. Ashe v.

2833Dep't of Prof'l Regulation, Bd. of

2839Accountancy , 467 So. 2d 814 (Fla. 5th DCA

28471985). We held in Rush v. Department of

2855Professional Regulation, Board of Podiatry ,

2860that a conviction for conspiracy to import

2867marijuana is directly related to the practice

2874or ability to practice podiatry. 448 So. 2d

288226 (Fla. 1st DCA 1984). These cases

2889demonstrate, in our view, that appellee did

2896not err by concluding Doll's conviction was

"2903related to" the practice of chiropractic

2909medicine or the ability to practice

2915chiropractic medicine.

291720. Finally, Respondent is a primary qualifying agent for

2926both Redland Company, Inc., and Welling Construction, Inc., one

2935of which was the victim of his crime. Primary qualifying agents

2946are "responsible for supervision of all operations of the

2955business organization; for all field work at all sites; and for

2966financial matters, both for the organization in general and for

2976each specific job." It is clear that by committing mail fraud as

2988set out in the Agreed Statement of Facts, and transferring funds

2999for his own benefit when he was not entitled to those funds,

3011Respondent breached his responsibility to the companies he

3019qualified. It is therefore found that mail fraud based upon the

3030facts demonstrated in this case is a crime directly related to

3041the practice of contracting or the ability to practice

3050contracting.

305121. Respondent argues that his licenses should not be

3060subject to discipline at this time because he is still engaged in

3072attempts to attack his judgment and sentence. Respondent's

3080argument is without merit. A similar argument was made in

3090Department of Professional Regulation, Board of Medical Examiners

3098v. Azima , DOAH No. 84-2536 (Recommended Order April 25, 1985;

3108Final Order June 21, 1985). In that case, the respondent was

3119found guilty by a jury verdict of culpable negligence and the

3130trial court withheld adjudication. He appealed the verdict and

3139while that appeal was pending, proceedings were instituted

3147against his medical license. Azima argued, as does Mr. Nowell,

3157that no action should be taken against his license while the

3168appeal remained pending. The hearing officer rejected this

3176argument and stated:

317912. Respondent was not "convicted" within

3185the meaning of this statute, since a judgment

3193of guilt was not entered by the court. See,

3202Delta Truck Brokers, Inc. v. King , 142 So. 2d

3211273, 275 (Fla. 1962):

3215The term "conviction" has an accepted

3221meaning in applying statutes of this

3227nature. It simply means a determination

3233of guilt and a judgment of guilt by a

3242court of competent jurisdiction in a

3248criminal proceeding.

3250[Citations omitted].

3252Also, 9 Fla. Jur., Sec. 11, p. 34.

326013. It is evident, however, that he was

3268found guilty by a jury of committing a crime

3277directly relating to the practice of

3283medicine. Respondent argues that the statute

3289should be construed to require, as a

3296prerequisite, that the conviction or finding

3302of guilt be final and that any appellate

3310remedy pursued must first be exhausted. Such

3317a construction would engraft a new

3323requirement on the statute, one not expressed

3330or necessarily implied. In Delta Truck

3336Brokers, Inc. , supra , the Court's definition

3342of "conviction" as used in licensing

3348statutes, made no mention of finality or the

3356need for appellate remedies to be exhausted.

3363* * *

336615. When an accused is convicted or found

3374guilty of a crime in a trial court, the "robe

3384of innocence" is stripped from him. . . .

3393Section 458.331(1)(c) proscribes the fact of

3399a conviction, or the fact of a finding of

3408guilt, regardless of its ultimate veracity.

3414Such fact is not negated or annulled by an

3423appeal, taken either directly or

3428collaterally. . . . The enforcement of the

3436statutes would be frustrated if Respondent's

3442argument is given its logical effect: The

3449Department would be prevented from

3454disciplining a licensee during the years it

3461may take to exhaust all available direct and

3469collateral appeals. . . .

347422. The same can be said here. The violation of Sections

3485finding of guilt after Respondent's entering a guilty plea to the

3496crime of mail fraud. Nothing in either statute requires that the

3507Board wait until that finding is affirmed on appeal or until all

3519available collateral challenges have been exhausted. Compare

3526Rife v. Department of Professional Regulation , 638 So. 2d 542,

3536543 (Fla. 2d DCA 1994)(discipline based on action against

3545appellant's license in another state authorized where appellate

3553proceedings still pending in Vermont).

355823. Florida Administrative Code Rule 61G4-17.001 sets out

3566the normal penalty ranges for penalties imposed for violations of

3576Sections 489.129 and 455.227, Florida Statutes. For both

3584violations charged in the Amended Administrative Complaint, the

3592minimum penalty listed is a $2,500 fine and/or probation, or

3603suspension. The maximum penalty is a $10,000 fine and

3613revocation. The Department acknowledges, however, that with

3620respect to the violation in Count II, Section 455.227 only

3630authorizes a fine of $5,000.

363624. Florida Administrative Code Rule 61G4-17.002 provides

3643that factors in mitigation or aggravation of penalty shall

3652include the following:

3655(1) Monetary or other damage to the

3662licensee's customer, in any way associated

3668with the violation, which damage the licensee

3675has not relieved, as of the time the penalty

3684is to be assessed. (This provision shall not

3692be given effect to the extent it would

3700contravene federal bankruptcy law.)

3704(2) Actual job-site violations of building

3710codes, or conditions exhibiting gross

3715negligence, incompetence, or misconduct by

3720the licensee, which have not been corrected

3727as of the time the penalty is being assessed.

3736(3) The danger to the public.

3742(4) The number of complaints filed against

3749the licensee.

3751(5) The length of time the licensee has

3759practiced.

3760(6) The actual damage, physical or

3766otherwise, to the licensee's customer.

3771(7) The deterrent effect of the penalty

3778imposed.

3779(8) The effect of the penalty upon the

3787licensee's livihood.

3789(9) Any efforts at rehabilitation.

3794(10) Any other mitigating or aggravating

3800circumstances.

380125. Respondent presented no evidence of any kind at

3810hearing, including any evidence of mitigation. However, the

3818Department stipulated at hearing that this was a first offense

3828for Respondent. Only factors (3), (5), (7) and (10) have any

3839application in this case. 1/ There is a substantial danger to the

3851public where funds deposited in good faith with a contracting

3861company are transferred for the personal use of a licensee

3871instead of being used for the contracted purpose. It is not

3882entirely clear how long Respondent has been licensed, but

3891licensure records indicate that he has been a primary qualifying

3901agent for Redland Company since August of 1988. The evidence

3911shows that the scheme resulting in his guilty plea existed for

3922the duration of the time he qualified Redland Company. It is

3933axiomatic that the potential loss of a license should have a

3944deterrent effect on those who misuse their licenses for personal

3954gain. Finally, the amount of money diverted from the Redland

3964Company is substantial. Not only did Respondent divert money to

3974which he was not entitled, but he violated the trust that was

3986placed in him to be responsible for the financial aspects of the

3998company. This type of behavior cannot be tolerated or excused.

400826. The Department asserts that, in addition to revocation,

4017Respondent should be ordered to pay restitution in the amount of

4028$11,441,100.99 to the Redland Company or submit proof that all

4040orders imposed in United States District Court, Southern District

4049of Florida, Miami Division, Case No. 07-20415-CR-JAM have been

4058satisfied. The Department requests this penalty component "in

4066order to prevent Respondent from reapplying for licensure prior

4075to having complied with the judgment" in the criminal proceeding.

408527. The judgment in the criminal proceeding was not offered

4095into evidence in this case. While the amount of money

4105transferred from Redland Company is included in the Agreed

4114Statement of Facts attached to the plea agreement, there is no

4125evidence that the amount required for restitution in the criminal

4135judgment is the same amount. It would be inappropriate to

4145consider enforcement of its terms, whatever they may be, in the

4156recommended penalty when the order is not in the record in this

4168case. Moreover, to include this requirement would be a deviation

4178from the Disciplinary Guidelines.

4182RECOMMENDATION

4183Upon consideration of the facts found and conclusions of law

4193reached, it is

4196RECOMMENDED:

4197That a final order be entered:

42031. Finding that Respondent violated Section 489.129(1)(c),

4210Florida Statutes, as charged in Count I of the Amended

4220Administrative Complaint;

42222. Finding that Respondent violated Section 489.129(1)(c),

4229by violation of Section 455.227(1)(c), Florida Statutes, as

4237charged in Count II of the Amended Administrative Complaint;

42463. Revoking Respondent's certifications and certificates of

4253authority, and imposing a fine of $10,000 for the violation of

4265Count I of the Amended Administrative Complaint; imposing an

4274additional fine of $5,000 for Count II of the Amended

4285Administrative Complaint; and imposing costs in the amount of

4294$223.21.

4295DONE AND ENTERED this 27th day of January 2009, in

4305Tallahassee, Leon County, Florida.

4309S

4310LISA SHEARER NELSON

4313Administrative Law Judge

4316Division of Administrative Hearings

4320The DeSoto Building

43231230 Apalachee Parkway

4326Tallahassee, Florida 32399-3060

4329(850) 488-9675 SUNCOM 278-9675

4333Fax Filing (850) 921-6847

4337www.doah.state.fl.us

4338Filed with the Clerk of the

4344Division of Administrative Hearings

4348this 27th day of January, 2009.

4354ENDNOTE

43551/ While Rule 61G4-17.002(1) and (6) speak in terms of monetary

4366or other damage inflicted, it is damage to the licensee's

4376customer. Here, the damage was not to a specific customer, but to

4388the company for which Respondent was a primary qualifying agent.

4398COPIES FURNISHED:

4400Kyle Christopher, Esquire

4403Paul Rendleman, Qualified Representative

4407Department of Business and

4411Professional Regulation

44131940 North Monroe Street, Suite 42

4419Tallahassee, Florida 32399-2202

4422Frederick B. Nowell, Sr.

4426Federal Medical Center

4429No. 79553-004 Anteaus Unit

4433Post Office Box 14500

4437Lexington, Kentucky 40512-4500

4440G. W. Harrell, Executive Director

4445Construction Industry Licensing Board

4449Department of Business and

4453Professional Regulation

44551940 North Monroe Street

4459Tallahassee, Florida 32399-2202

4462Ned Luczynski, General Counsel

4466Department of Business and

4470Professional Regulation

44721940 North Monroe Street

4476Tallahassee, Florida 32399-2202

4479NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

4485All parties have the right to submit written exceptions within

449515 days from the date of this recommended order. Any exceptions to

4507this recommended order should be filed with the agency that will

4518issue the final order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 02/09/2009
Proceedings: Respondent`s Exceptions to Proposed Order Preliminary Statement filed.
PDF:
Date: 01/27/2009
Proceedings: Recommended Order
PDF:
Date: 01/27/2009
Proceedings: Recommended Order (hearing held November 19, 2008). CASE CLOSED.
PDF:
Date: 01/27/2009
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 01/05/2009
Proceedings: Respondent`s Proposed (Recommended) Order filed.
PDF:
Date: 12/31/2008
Proceedings: Petitioner`s Proposed Recommended Order filed.
PDF:
Date: 12/12/2008
Proceedings: Letter to F. Nowell from K. Christopher enclosing copy of transcript (no enclosures) filed.
PDF:
Date: 12/09/2008
Proceedings: Letter to F. Nowell, Sr. from K. Christopher regarding transcript filed
Date: 12/05/2008
Proceedings: Transcript of Proceedings filed.
PDF:
Date: 12/01/2008
Proceedings: Letter to K. Christopher from F. Nowell regarding request for copy of transcript filed.
PDF:
Date: 11/19/2008
Proceedings: Letter to F. Nowell from K. Christopher enclosing copies of petitioner`s exhibits that were presented at the hearing filed.
Date: 11/19/2008
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 11/17/2008
Proceedings: Petitioner`s Amended List of Witnesses filed.
PDF:
Date: 11/10/2008
Proceedings: Petitioner`s List of Exhibits filed.
PDF:
Date: 10/31/2008
Proceedings: Petitioner`s Motion to Accept Qualified Representative filed.
PDF:
Date: 10/31/2008
Proceedings: Petitioner`s First Request for Admissions to Respondent filed.
PDF:
Date: 10/30/2008
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 10/30/2008
Proceedings: Notice of Hearing (hearing set for November 19, 2008; 9:30 a.m.; Tallahassee, FL).
PDF:
Date: 10/27/2008
Proceedings: Respondent`s Response to Petitioner`s Answer to Initial Order filed.
PDF:
Date: 10/13/2008
Proceedings: Response to Respondent`s Answer to Initial Order and Request for Special Requirements for Hearing filed.
PDF:
Date: 10/10/2008
Proceedings: Respondent`s Answer to Initial Order Request for Special Requirements for Hearing filed.
PDF:
Date: 09/30/2008
Proceedings: Initial Order.
PDF:
Date: 09/30/2008
Proceedings: Unilateral Response to Initial Order filed.
PDF:
Date: 09/29/2008
Proceedings: Respondent`s Response in Opposition to Amended Administrative Complaint filed.
PDF:
Date: 09/29/2008
Proceedings: Election of Rights filed.
PDF:
Date: 09/29/2008
Proceedings: Amended Administrative Complaint filed.
PDF:
Date: 09/29/2008
Proceedings: Agency referral filed.

Case Information

Judge:
LISA SHEARER NELSON
Date Filed:
09/29/2008
Date Assignment:
09/30/2008
Last Docket Entry:
02/09/2009
Location:
Tallahassee, Florida
District:
Northern
Agency:
Department of Business and Professional Regulation
 

Counsels

Related DOAH Cases(s) (1):

Related Florida Statute(s) (8):

Related Florida Rule(s) (2):