05-001963PL Department Of Business And Professional Regulation vs. Joshua Barrett Woodruff Status: Closed Recommended Order on Monday, September 12, 2005.

Summary: Petitioner`s Proposed Recommended Order received and considered.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. ) Case No. 05 - 1963PL

)

JOSHUA BARRETT WOODRUFF, )

)

Respondent. )

)

AMENDED RECOMMENDED ORDER

On August 9, 2005, a final hearing was held pursuant to

notice in Tallahassee, Florida, before Bram D. E. Canter,

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Charles J. Pellig rini, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

For Respondent: Jeffrey T. Kipi, Esquire

100 West Citrus Street

Altamonte Springs, Florida 32714

STATEMENT OF THE ISSUE S

The issue s in the case are whether the Respondent violated

Subsections 455.227(1)(h) and 489.129(1)(a), Florida Statutes

(2003), as alleged in the Pet itioner's Administrative Complaint,

and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

The Petitioner, Department of Business and Professional

Regulation (Department) , filed a three - count Administrative

Complaint on June 25, 2004, alleging t hat the Respondent, Joshua

Woodruff, had violated certain state laws regulating the

licensure of contractors. Count I charged Mr. Woodruff with

violating Subsection 489 .129 (1)(a), Florida Statutes (2003) , by

obtaining a certificate by fraud or misrepresen tation. Count II

charged Mr. Woodruff with violating Subsection 455.227(1)(h),

Florida Statutes (2003) , by attempting to obtain a license by

bribery, fraudulent misrepresentation, or through an error of

the Department. Count III charged Mr. Woodruff with violating

Subsection 489.129(1)(i), Florida Statutes (2003) , by failing to

obtain a license for Mr. Woodruff's business, Simply Aluminum.

Mr. Woodruff disputed the allegations and requested an

administrative hearing. The Department referred the matter to

the Division of Administrative Hearings, which scheduled and

conducted a hearing.

At the beginning of the hearing, the Department announced

that it was withdrawing Count III of its Administrative

Complaint. Neither party called a witness. The Department 's

Exhibit 1 was admitted into evidence. The Department's request

for official recognition of Chapters 489, 455, 893, 943, and

Sections 120.57 and 120.569, Florida Statutes (2004), was

granted. The Department's request for official recognition of

certain records of the Ninth Judicial Circuit Court for Orange

County, Florida, pertaining to the Respondent's court

appearances, was also granted. The Respondent offered no

exhibits into evidence. Mr. Woodruff did not appear at the

hearing.

The one - volume Tran script of the hearing was filed on

August 23, 2005. The Department and the Respondent submitted

Proposed Recommended Orders, and they were considered in the

preparation of this Amended Recommended Order .

FINDINGS OF FACT

1. The Department is the state agency charged with the

licensing and regulation of building contractors pursuant to

Chapters 455 and 489, Florida Statutes (2004) .

2. Joshua Woodruff is a Florida Specialty Structure

Contractor who holds license number SC C131149603. He owns a

business called Simply Aluminum. His last - known residence is in

Winter Springs, Florida.

3. On June 19, 2003, Mr. Woodruff submitted an application

for the Specialty Structure Contractor license he now holds. On

page six of the application form, question 1 under "BACKGROUND

INFORMATION" asked the applicant whether he or she has ever been

convicted of a crime, found guilty, or entered a plea of guilty

or nolo contendere to a criminal charge. At the end of the

question, in larger print, is the following statement:

THIS QUESTION WILL BE CHECKED AGAINST LOCAL,

STATE AND FEDERAL RECORDS. FAILURE TO ANSWER

THIS QUESTION ACCURATELY MAY RESULT IN THE

DENIAL OR REVOCATION OF YOUR LICENSE. IF YOU

DO NOT FULLY UNDERSTAND THIS QUESTION,

CONSULT WITH AN ATTORNEY OR CONTACT TH E

DEPARTMENT.

Mr. Woodruff checked the "Yes" box for this question.

4. The application form directed any person answering,

"Yes," to complete form 0050 - 1. Form 0050 - 1 is included as page

14 of the license application. In the space on the form with

the heading, "Offense," Mr. Woodruff wrote "Sale and Delivery."

In the space with the heading, "Penalty/Disposition," Mr.

Woodruff wrote, "2 months county jail, 6 months @ Bridge

Program."

5. On page 13 of the license application, question number

3 under " FINANCIAL RESPONSIBILITY/BACKGROUND QUESTIONS," asks

the applicant whether he or she has ever:

Undertaken construction contracts or work

which resulted in liens, suits or judgments

being filed? (If yes, you must attach a copy

of the Notice of Lien and any payment

agreement, satisfaction, Release of Lien or

other proof of payment.)

Mr. Woodruff answered this question, "No."

6. The Department contends that Mr. Woodruff's responses

on the license application form constituted misrepresentations

because Mr. Woodruff failed to disclose that he had been

adjudicated guilty in Orange County for possession of drug

paraphernalia, and failed to disclose that he had filed a claim

of lien on a construction project.

Criminal History

7. There is no dispute with regard to Mr. Woodruff's

disclosure of the felony of "sale and delivery" (of a controlled

substance) that he noted in his license application. Mr.

Woodruff entered a plea of guilty to this offense on January 13,

2000, but adjudication of guilt was withheld.

8. The official records of the Ninth Judicial Circuit

Court for Orange County indicate that Mr. Woodruff was

adjudicated guilty on July 25, 2002, of possession of

paraphernalia, a first degree misdemeanor under Subsection

893.147(1), Florida Statutes (2002) .

9. The Respondent argues that his sentence on the

conviction for possession of paraphernalia (two days in jail,

fines and court costs of $371, 180 days probation) was not

rendered until July 23, 2004, more than a year after he

submitted his license app lication to the Department. However,

the application form clearly requested Mr. Woodruff to describe

whether he had ever been convicted of a crime, found guilty, or

entered a plea of guilty or nolo contendere to a criminal

charge. With regard to Mr. Wood ruff's misdemeanor, all of these

events occurred approximately one year before he submitted the

license application.

Claim of Lien

10. On or about June 11, 2003, Mr. Woodruff filed a Claim

of Lien against Itzhak and Ayala Stark for $5,600 for work

commen ced in March 2003.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter in this

case. §§ 120.569 and 120.57(1), Fla. Stat. (2004).

12. Subsection 455.227(1)(h), Florida Statutes (2003),

identifies one of the grounds for which disciplinary action may

be taken against a person holding a license as:

Attempting to obtain, obtaining, or renewing

a license to practice a profession by

bribery, fraudulent misrepresentation, or

though an error of the department or the

board.

13. Subsection 489.129(1)(a), Florida Statutes (2003),

sets forth, as one of the wrongful acts that will subject a

licensed contractor to disciplinary action, the following:

Obtaining a certificate, registration, or

certif icate of authority by fraud or

misrepresentation.

14. Because Sections 455.227 and 489.129, Florida Statutes

(2003), are penal statutes, and the Department is seeking to

impose a penal sanction, the Department has the burden of

proving the specific all egations of its Administrative Complaint

by clear and convincing evidence. Department of Banking and

Finance v. Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996).

15. The clear and convincing evidence standard has been

described as follows:

[C]lear and co nvincing evidence requires

that the evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly remembered; the

evidence must be precise and explicit and

the witnesses must be lacking in confusion

as to the facts in i ssue. The evidence must

be of such weight that it produces in the

mind of the trier of fact the firm belief of

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

Evans Packing Co. v. Department of Agriculture and Consumer

Services , 550 So. 2d 112, 116 (Fla. 1st DCA 1989).

16. Florida recognizes two separate theories of recovery

for a misrepresentation. One basis of recovery is for fraud

(fraudulent misrepresentation) and the other is for negligent

misrepresentat ion. The elements of fraudulent misrepresentation

are: 1) a false statement concerning a material fact; 2) the

representor's knowledge that the representation is false; 3) an

intention that the representation induce another to act on it;

and 4) consequen t injury by the party acting in reliance on the

representation. Johnson v. Davis , 480 So. 2d 625 (Fla. 1985).

17. The elements of a negligent misrepresentation are

essentially the same as for a fraudulent misrepresentation

except that it is not necessa ry to prove the representor

intended to mislead, but only that the circumstances were such

that the representor should have known the statement was false.

Atlantic National Bank v. Vest , 480 So. 2d 1328 (Fla. 2d DCA

1985), review denied , 491 So. 2d 281 (F la. 1986). This cause of

action is sometimes referred to simply as misrepresentation.

See Saunders Leasing System, Inc. v. Gulf Central Distribution

Center, Inc. , 513 So. 2d 1303 (Fla. 2d DCA 1987).

18. It is not disputed that Mr. Woodruff made the

rep resentations in his license application for the purpose of

inducing the Department to issue him a license.

19. Mr. Woodruff's answer on form 0050 - 1 regarding his

criminal background was false because it was incomplete and,

therefore, inaccurate.

20. C ounsel for the Respondent argued that the intent

required for misrepresentation was not established on this

record, presumably because there was no direct testimony from

Mr. Woodruff about his understanding and intent at the time he

submitted the license a pplication. However, if wrongful intent

could only be established by the admission of a respondent, the

charge of misrepresentation could always be overcome by the

respondent's simple denial. In this case, the undisputed facts

are sufficient to establish that Mr. Woodruff knew that his

answers on the license application form were false.

21. Mr. Woodruff's arrest and incarceration for possession

of drug paraphernalia occurred only a year before he submitted

his application for the Specialty Structure Con tractor license.

It was the more recent of only two occasions when Mr. Woodruff

was arrested and incarcerated for a crime.

22. It was admitted that Mr. Woodruff filed a claim of

lien just eight days before he submitted the license application

form.

23. The evidence is clear and convincing, therefore, that

Mr. Woodruff knew when he submitted the license application that

he had been adjudicated guilty of possession of drug

paraphernalia and had filed a claim of lien. He knew his

answers on the form were false because they omitted information

about these matters.

24. Based on the foregoing, the Department proved by clear

and convincing evidence that Mr. Woodruff violated Subsection

455.277(1)(h), Florida Statutes (2003), for "attempting to

obtain" a lic ense by fraudulent misrepresentation.

25. The offense described in Subsection 489.129(1)(a),

Florida Statutes (2003), refers to a license "obtained" by fraud

or misrepresentation. In many cases, the difference between

"attempting to obtain" and "obtaine d" will be of no consequence ,

and the facts establishing one offense will be sufficient to

establish the other. However, in this case, counsel for the

Department stated that the Department would not necessarily have

denied the license to Mr. Woodruff if h e had made a full

disclosure on his application. Thus, while Mr. Woodruff

"attempted to obtain" his license through misrepresentation, it

does not appear on this record that he "obtained" his license as

a result of misrepresentation, in violation of Subse ction

489.129(1)(a), Florida Statutes (2003).

26. In determining an appropriate penalty in this case,

consideration has been given to the disciplinary guidelines set

forth in Florida Administrative Code Rule 61G4 - 17.001. No

guideline is provided for a v iolation of Subsection

455.227(1)(h), Florida Statutes. In the absence of a specific

guideline, Florida Administrative Rule 61G4 - 17.001(6) provides

that the penalty for the most similar offense shall be used.

27. It is not altogether clear what offense most closely

resembles the violation of attempting to obtain a license

through misrepresentation. The offense of obtaining a license

through misrepresentation (penalty: revocation and $5,000 fine)

is very similar, at least in wording. However, there is a

substantial difference between obtaining a license that would

not have been issued but for a misrepresentation, and making a

misrepresentation that would not have affected the issuance of

the license. The penalty of revocation and a $5,000 fine is too

h arsh a penalty for the latter offense.

28. Under the circumstances in this case, the offense most

closely resembling Mr. Woodruff's offense is the one stated in

Subsection 455.227(1)(a), Florida Statutes (2003): making a

fraudulent representation in or related to the practice of the

licensee's profession. The penalty guideline for this offense

is a fine of $2,000 to $5,000 and suspension or revocation of

the license, for each such offense.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conc lusions of

Law, it is

RECOMMENDED that the Construction Industry Licensing Board

enter a final order:

1. finding that Joshua Woodruff violated Subsection

455.227(1)(h), Florida Statutes (2003), by failing to disclose a

misdemeanor conviction and a claim of lien on his license

application, and

2. imposing a fine against Mr. Woodruff of $4000, and

3. suspending his license for 60 days.

DONE AND ENTER ED this 12 th day of September , 2005 , in

Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with th e Clerk of the

Division of Administrative Hearings

this 12 th day of September, 2005 .

COPIES FURNISHED :

Charles J. Pellegrini, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Jeffery T. Kipi, Esquire

100 West Citrus Street

Altamonte Springs, Florida 32714

Leon Biegalski, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Tim Vaccaro, Executive Director

Co nstruction Industry Licensing Board

Department of Business and

Professional Regulation

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 da ys 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.