07-002501PL Department Of Business And Professional Regulation, Construction Industry Licensing Board vs. Oneido Gonzalez Status: Closed Recommended Order on Monday, October 22, 2007.

Summary: Respondent misrepresented his local licensure status on his registration application. Recommend revocation of his license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION , )

CONSTRUCTION INDUSTRY )

LICENSING BOARD, )

)

Petitioner, )

)

vs. ) Case No. 07 - 2501 PL

)

ONEIDO GONZALEZ , )

)

Respondent. )

____ ______________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case

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

before Stuart M. Lerner, a duly - designated administrative law

judge of the Division of Administrative Hearings (DOAH), on

August 14 , 2007, by video teleconference at sites in Miami and

Tallahassee, Florida.

APPEARANCES

For Petitioner: P. Brian Coats , Esquire

Department of Business and

Professional Re gulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

For Respondent: Yehuda D. B. Bruck , Esquire

Sc h wartz and Associates

200 Southeast 1st Street, Suite 801

Miami , Florida 33 131

STATEMENT OF THE ISSUE

Whether Respondent committed the violations alleged in the

Administrative Complaint issued against him and, if so, what

disciplinary action should be taken.

PRELIMINARY STATEMENT

In December 2006, the Dep artment of Business and

Professional Regulation issued a four - count Administrati ve

Complaint against Respondent , a Florida - r egistered m echanical

contractor. Count I alleged that "Respondent violated Section

489.129(1)(a), Florida Statutes, by obtaining a certificate,

registration, or certificate of authority by fraud or

misrepresentation. " Count II alleged that Respondent violated

Section 489.129(1)(i), Florida Statutes, by "knowingly giv[ing]

false or forged evidence to the board or a member thereof" in

violation of Section 489.127(1)(d), Florida Statutes. Count III

alleged that " Respondent violated Section 455.227(1)(h ), Florida

Statutes, by attempting to obtain, obtaining, or renewing a

license to practice a profession by bribery, by fraudulent

misrepr esentation, or through an error of the department or the

board." Count IV alleged that Respondent "violated Section

489.129(1)(m), Florida Statutes, by committing incompetency or

misconduct in the practice of contracting."

On or about January 9, 2007, Re spondent requested a hearing

on the charges against him. On June 5 , 2007, the matter was

referred to DOAH.

As noted above, the final hearing in this case was held on

August 14 , 2007. Three witnesses, Jose Lezcano, Andrew Janecek,

and Respondent, testifie d at the hearing. In addition to th e

testimony of these three witnesses , five exhibits ( Pe titioner's

Exhibits 1 through 5 ) were offered and received into evidence.

The deadline for the filing of proposed recommended orders

was set at 21 days from the date of the filing with DOAH of the

hearing transcript.

The hearing Transcript (consisting of one volume) was filed

with DOAH on September 25 , 2007.

Respondent and the Department filed their Proposed

Recommended Order s on October 9 , 2007, and October 15 , 200 7 ,

respectively.

FINDINGS OF FACT

Based on the evidence adduced at hearing, and the record as

a whole, the following findings of fact are made :

1. Respondent is a Spanish - speaking native of Cuba with

little or no understanding of the English language . He has

resided in Miami - Dade County since coming to this country 18 or

19 years ago.

2. In or around 2006, Respondent decided he wanted to

start an air conditioning contracting business in Miami - Dade

County , and he went to the downtown Miami location of the Miami -

Dade County Code Compliance Office (Compliance Office) to

inquire about the licensing requirements with which he would

have to comply to legally operate such a business in the county.

3. The Compliance Office is responsible for licensing

constr uction contractors (in various trades) o perating in Miami -

Dade County .

4. The contractors whom the Compliance Office licenses

include mechanical contractors do ing air conditioning work.

5. Individuals who desire to go into the air conditioning

contrac ting business in Miami - Dade County must complete and

submit to the Compliance Office an eight - page "initial

application," accompanied by "letters of experience" and a

$315.00 application fee. The application is reviewed by the

Miami - Dade County Constructi on Trades Qualifying Board (CTQB) .

If the CTQB determines that the applicant is qualified to take

the licensure examination, the applicant is allowed to sit for

the examination. Passing the examination is a prerequisite to

licensure. If a passing score is attained, the applicant is

notified by the Compliance Office and given the opportunity to

submit a "business application" and supporting material

(including proof of liability insurance and worker s '

compensation coverage) , accompanied by another $315.00

application fee. If the CTQB approves the "business

application , " the "applicant is issued a contractor's license

number" and given a "competency card" ( reflecting such

licensure) by the Compliance Office. The applicant then must

register with the Depar tment before being able to engage in any

contracting work in the county .

6. When Res pondent went to the Compliance O ffice 's

location in downtown Miami, he was approached by a man carrying

a clipboard who spoke Spanish . Respondent was led to believe by

the man that he worked for the county (although the man did not

present any identification verifying his employment status) .

The man offered to help Respondent apply for a license , an offer

Respondent accepted . After obtaining information from

Responden t , t he man filled out an application form (which was in

English) for Respondent and "kept" the completed form . He then

collected from Respondent $350.00. The man told Respondent that

Respondent would be receiving his license "by mail."

7. Respondent did nothing further (including taking the

licensure examination) to obtain a Compliance Office - issued

license for his air conditioning contracting business . Given

what he was told by the man (whom he trusted) at the Compliance

O ffice 's downtown Miami locatio n , Respondent did not think

anything else was required of him , and he acted accordingly .

8. Approximately a month after his visit to the Compliance

Office, Respondent received what, on its face, appeared to be a

Compliance Office - issued "competency car d" indi cating that his

business, G & G Air Conditioning, Inc. , had been issued an "A/C

UNLTD" license, License No. 05M000987, with an expiration date

of September 30, 2007 , and that he was the "qualifying agent"

for the business.

9. Although Respondent di d not realize it at the time , the

"competency card" was a "fraudulent document." T he Compliance

Office had never in fact issued a ny license to Respondent or his

air conditioning contracting business . Indeed, the Compliance

Office had not even received a licensure application , or , for

that matter, anything else, from Respo ndent (including the

$350.00 he had paid for what he thought was an application fee) .

10. Reasonably, but erroneously, believing that the

"competency card" was authentic, Respondent , wit h the assis tance

of a friend able to read and write English , completed and

submitted the paperwork necessary to register with the

Department so that he would be able to engage in the business of

air conditioning contracting in Miami - Dade County . Responden t

had picked up the application packet (the contents of which were

in English) when he had visited the Compliance Office's downtown

Miami location. Respondent's friend translated the contents of

the application materials for Res pondent . For each item

req uiring a response, Respondent told his friend what entr y to

make . The final page of the application materials contained the

following "Attest Statement ," which Respondent signed (after it

was translated for him by his friend):

I have read the questions in this

application and have answered them

completely and truthfully to the best of my

knowledge.

I have successfully completed the education,

if any, required for the level of licensure,

registration, or certification sought.

I have the amount of experien ce required, if

any, for the level of licensure,

registration, or certification sought. [ 1 ]

I pledge to comply with the applicable

standards of practice upon licensure,

registration, or certification.

I understand the types of misconduct for

which discipl inary proceedings may be

initiated.

Among the represen tations Respondent made in his completed

application was that he possessed a valid "local competency

card" issued by the Compliance Office . He believed , in good

faith , but again, incorrectly, that the "competency card" he had

received in the mail was such a card. In accordance with the

instructions in th e application materials , Respondent attached a

copy of this card to his application.

11. The Department received Respondent's completed

application f o r registration on April 20, 2006 .

12. On May 23, 2006, the Department issued the

registration for which Respondent had applied.

13. Had the Department known that the "competency card"

Respondent had attached to his application and had falsely, but

not f raudulently , claime d to be valid was in fact a counterfeit

that did not accurately represent the local licensure status of

Respondent and his business , the Department would have denied

Respondent's application for registration.

14. Following a police inv estigation, two Compliance

Office employees, along with a former Compliance Office

employee, were arrested for selling "fraudulent licenses."

15. The police alerted the Compliance Office of the

results of its investigation in or around July 2006 (after th e

Department had already granted Respondent's application for

registration) .

16. The Compliance Office thereupon conducted an audit,

which revealed that Respondent was among those who had received

a "fraudulent competency card" from the arrestees.

17. Respondent was so notified by le tter (sent by the

Compliance Office).

18. Prior to his receipt of the letter, Respondent had no

idea that the "competency card" he had received in the mail was

not what it purported to be. Had he known it was a "fraudule nt

document" he would have never applied for registration with the

Department .

19. The total investigative and prosecutorial costs

incurred by the Department in connection with the instant case

(excluding costs associated with any attorney's time) was

$ 32.66.

CONCLUSIONS OF LAW

20 . DOAH has jurisdiction over the subject matter of the

instant proceeding and of the parties hereto pursuant to Chapter

120, Florida Statutes.

21 . "No person [ 2 ] may engage in the business of contracting

in this state without first being certified or register ed in the

proper classification " by the Department. § 489.115(1), Fla.

Stat.

22 . To "engage in contracting on a statewide basis" a

person must be certified. "Any person who desires to engage in

contracting on other tha n a statewide basis [must], as a

prerequisite thereto, be registered . . . ." § 489.113(1), Fla.

Stat.

23 . "To be initially registered, the applicant [must]

submit the required fee and file evidence, in a form provid ed by

the [D]epartment , of holding a current local occupational

license required by any municipality, county, or development

district, if any, for the type of work for which registration is

desired and evidence of successful compliance with the local

examination and licensing requirements, if any, in the area for

which registration is desired." § 489.117(1)(a), Fla. Stat.

"Registration allows the registrant to engage in contracting

only in the counties, municipalities, or development districts

where he or she has complied with all local lice nsing

requirements and only for the type of work covered by the

registration." § 489.117(1)(b), Fla. Stat. ; see also Deep South

Systems, Inc. v. Heath , 843 So. 2d 378, 379 n.1 (Fla. 2d DCA

2003)("Florida law classifies construction contractors into two

gr oups: certified contractors or registered contractors. The

two groups differ in the requirements for licensure. A

certified contractor may perform construction work anywhere in

Florida, while a registered contractor may only perform work

covered by the registration in the county, municipality, or

development district for which the registration

applies.")(citations omitted).

24 . Among the "type[s] of work" a registration may cover

is "mechanical contracting" work. See § 489 . 105 (3)(i), Fla.

Stat. ("' Me chanical contractor' means a contractor whose

services are unlimited in the execution of contracts requiring

the experience, knowledge, and skill to install, maintain,

repair, fabricate, alter, extend, or design, when not prohibited

by law, central air - con ditioning, refrigeration, heating, and

ventilating systems, including duct work in connection with a

complete system only to the extent such duct work is performed

by the contractor as is necessary to make complete an air -

distribution system, boiler and un fired pressure vessel systems,

lift station equipment and piping, and all appurtenances,

apparatus, or equipment used in connection therewith, and any

duct cleaning and equipment sanitizing which requires at least a

partial disassembling of the system; to install, maintain,

repair, fabricate, alter, extend, or design, when not prohibited

by law, piping, insulation of pipes, vessels and ducts, pressure

and process piping, pneumatic control piping, gasoline tanks and

pump installations and piping for same, st andpipes, air piping,

vacuum line piping, oxygen lines, nitrous oxide piping, ink and

chemical lines, fuel transmission lines, liquefied petroleum gas

lines within buildings, and natural gas fuel lines within

buildings; to replace, disconnect, or reconnect power wiring on

the load side of the dedicated existing electrical disconnect

switch; to install, disconnect, and reconnect low voltage

heating, ventilating, and air - conditioning control wiring; and

to install a condensate drain from an air - conditioning u nit to

an existing safe waste or other approved disposal other than a

direct connection to a sanitary system. The scope of work for

such contractor shall also include any excavation work

incidental thereto, but shall not include any work such as

potable w ater lines or connections thereto, sanitary sewer

lines, swimming pool piping and filters, or electrical power

wiring. ").

25 . A business organization, like G & G Air Conditioning,

Inc. , may engage in "mechanical contracting " work only if it has

obtained f rom the Department a "certificate of authority through

a qualifying agent. " § 489.119, Fla. Stat. "The qualifying

agent [must] be certified or registered . . . in order for the

business organization to be issued a certificate of authority in

the category of the business conducted for which the qualifying

agent is certified or registered." § 489.119(3)(a), Fla. Stat. ;

see also Murthy v. N. Sinha Corp. , 644 So. 2d 983, 984 n.1 (Fla.

1994)("Chapter 489 requires a corporation or other business

entity seeking to become a contractor to procure an individual

licensed contractor as its qualifying agent.") ; Shimkus v.

Department of Business and Professional Regulation, Construction

Industry Licensing B oard , 932 So. 2d 223, 223 - 224 (Fla. 4th DCA

2005)("The statute [Section 489.119, Florida Statutes] requires

corporations engaged in construction to have licensed

individuals servin g as their qualifying agents."); and Mivan

(Florida), Inc. v. Metric Constructors, Inc. , 857 So. 2d 901,

903 (Fla. 5th DCA 2003)( "The quali fying agent must be certified

or registered in order for the business organization to obtain a

certificate of authority to conduct the type of contracting

business for which the qualifying agent is certified or

registered." ) .

26 . The Construction Industry Licensing Board (Board) may

take disciplinary action " against any certificateholder or

registrant" for violations of Section s 455.227(1) and

489.129(1) , Florida Statutes, for which the certificateholder or

registrant is responsible. At all times material to the instant

case, the disciplinary action the Board was statutorily

authorized to take was limited to the following: revoking or

suspending the contractor's certificate, registration, or

certificate of authority ; placing the contractor on probation;

r eprimanding the contractor; denying the renewal of the

contractor's certificate, registration, or certificate of

authority ; imposing an administrative fine not to exceed

$5,000.00 per violation in the case of a violation of Section

455.227(1) and not to ex ceed $ 10 ,000.00 per violation in the

case of a vi olation of Section 489.129(1) ; taking "corrective

action" in the case of a violation of Section 455.227(1) and

requiring financial restitution to any victimized consumer in

the case of a vi olation of Section 489.129(1) ; requiring the

contractor to take continuing education courses; and assessing

costs associated with the investigation and prosecution. See §§

455 .227 and 489. 129(1), Fla. Stat.; s ee also Department of

Environmental Regulation v. Puckett Oil Co . , 577 So. 2d 988, 992

(Fla. 1st DCA 1991)("[A]n agency possesses no inhe rent power to

impose sanctions, and . . . any such power must be expressly

delegated by statute.").

27. The Board may take such disciplinary action only after

the certificateholder or registrant has been given reasonable

written notice of the charges and an adequate opportunity to

request a proceeding pursuant to Sections 120.569 and 120.57,

Florida Statutes.

28. An evidentiary hearing must be held if requested by

the certificatehol der or registrant when there are disputed

issues of material fact. §§ 120.569(1) and 120.57(1), Fla.

Stat.

29. At the hearing, the Department (as the prosecuting

agency) bears the burden of proving that the certificateholder

or registrant engaged in the conduct, and thereby committed the

violations, alleged in the charging instrument. Proof greater

than a mere preponderance of the evidence must be presented by

the Department to meet its burden of proof. Clear and

convincing evidence of the certificateh older 's or registrant 's

guilt is required. See Department of Banking and Finance,

Division of Securities and Investor Protection v. Osborne Stern

and Company , 670 So. 2d 932, 935 (Fla. 1996); Ferris v.

Turlington , 510 So. 2d 292, 294 (Fla. 1987); and § 12 0.57(1)(j),

Fla. Stat. ("Findings of fact shall be based upon a

preponderance of the evidence, except in penal or licensure

disciplinary proceedings or except as otherwise provided by

statute . . . .").

30. Clear and convincing evidence is an "intermedia te

standard," "requir[ing] more proof than a 'preponderance of the

evidence' but less than 'beyond and to the exclusion of a

reasonable doubt.'" In re Graziano , 696 So. 2d 744, 753 (Fla.

1997). For proof to be considered "'clear and convincing' . . .

the evidence must be found to be credible; the facts to which

the witnesses testify must be distinctly remembered; the

testimony must be precise and explicit and the witnesses must be

lacking in confusion as to the facts in issue. The evidence

must be of suc h weight that it produces in the mind of the trier

of fact a firm belief or conviction, without hesitancy, as to

the truth of the allegations sought to be established." In re

Davey , 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval,

from Slomowitz v . Walker , 429 So. 2d 797, 800 (Fla. 4th DCA

1983). "Although this standard of proof may be met where the

evidence is in conflict, . . . it seems to preclude evidence

that is ambiguous." Westinghouse Electric Corporation, Inc. v.

Shuler Bros., Inc. , 590 S o. 2d 986, 989 (Fla. 1st DCA 1991).

31. In determining whether the Department has met its

burden of proof, it is necessary to evaluate its evidentiary

presentation in light of the specific allegations of wrongdoing

made in the charging instrument. Due pr ocess prohibits the

Board from taking penal action against a certificateholder or

registrant based on matters not specifically alleged in the

charging instrument, unless those matters have been tried by

consent. See Trevisani v. Department of Health , 908 So. 2d

1108, 1109 (Fla. 1st DCA 2005); Shore Village Property Owners'

Association, Inc. v. Department of Environmental Protection , 824

So. 2d 208, 210 (Fla. 4th DCA 2002); Lusskin v. Agency for

Health Care Administration , 731 S o. 2d 67, 69 (Fla. 4th DCA

19 99; and Ghani v. Department of Health , 714 So. 2d 1113, 1115

(Fla. 1st DCA 1998).

32. Furthermore, "the conduct proved must legally fall

within the statute or rule claimed [in the charging instrument]

to have been violated." Delk v. Department of Profe ssional

Regulation , 595 So. 2d 966, 967 (Fla. 5th DCA 1992).

33. The charging instrument in the instant case, the

Administrative Complaint, contains four counts: Count I,

alleging a violation of Section 489.129(1)(a), Florida Statutes,

"by obtaining a certificate, registration, or certificate of

authority by fraud or misrepresentation"; Count II , alleging a

violation of Section 489.129(1)(i), Florida Statutes, by

"knowingly giv[ing] false or forged evidence to the board or a

member thereof" in violation of Section 489.127(1)(d), Florida

Statutes; Count III , alleging a violation of Section

455.227(1)(h ), Florida Statutes, "by attempting to obtain,

obtaining, or renewing a license to practice a profession by

bribery, by fraudulent misrepresentation, or thr ough an error of

the department or the board"; and Count IV alleging a violation

of Section 489.129(1)(m), Florida Statutes, " by committing

incompetency or misconduct in the practice of contracting."

34. At all times material to the instant case, Section

489.129(1)( a ) , (i), and (m), Florida Statutes, ha s provided that

the following are disciplinable acts:

(a) Obtaining a certificate, registration,

or certificate of authority by fraud or

misrepresentation.

* * *

(i) Failing in any material respect to

comply with the provisions of this part or

violating a rule or lawful order of the

board.

* * *

(m) Committing incompetency or misconduct

in the practice of contracting.

35. At all times material to th e instant case, Florida

Administrative Code Rule 61G4 - 15.008 has contained the following

interpretation of what constitutes "[o] btaining a certificate,

registration, or certificate of authority by . . .

misrepresentation" in violation of Section 489.129(1) (a),

Florida Statutes:

M aterial false statements or information

submitted by an applicant for certification

or registration, or submitted for renewal of

certification or registration, or submitted

for any reissuance of certification or

registration, shall constitute a violation

of Section 489.129(1)(a), F.S., and shall

result in suspension or revocation of the

certificate or registration.[ 3 ]

Under this interpret ation, knowledge of the falsity of the

statements or information submitted in connection with the

application need not be shown to establish a disciplinable

"misrepresentation" in violation of the statute .

36. Contrastingly , establishing that a certificateholder

or registrant violated Section 489.129(1)(a), Florida Statutes,

by " [o] btain ing a cer tificate, registration, or certificate of

authority by fraud " (as opposed to by mere " misrepresentation "),

does require proof of guilty knowledge . Cf. Parker v. Board of

Regents ex rel. Florida State University , 724 So. 2d 163, 168

(Fla. 1st DCA 1998)("A false representation of a material fact,

made with knowledge of its falsity, to a person ignorant

thereof, with intention that i[t] shall be acted upon, followed

by reliance upon and by action thereon amounting to substantial

change of position, is a fraud of which the law will take

cognizance.").

37. At all times mate rial to the instant case, a

certificateholder 's or registrant 's "[k]nowingly giv[ing] f alse

or forged evidence to the [B] oard or a member thereof ," as

prohibited by Section 489.127(1)(d), Flo rida Statutes, has

constituted wrongdoing of the type described in Section

4 89.129(1)(i), Florida Statutes.

38. At all times material to the instant case, Florida

Administrative Code Rule 61G4 - 17.001(1)(m)2 . has provided that

"[m]isconduct or incompetency in the practice of contracting [as

prohibited by Section 489.129(1)(m), Florida Statutes] , shall

include, but is not limited to: Violation of any provision

of . . . Chapter 489, Part I., F.S."

39. At all times material to the instant case, Section

455 .227(1)(h), Florida Statutes, has provided that the following

is a disciplinable act:

Attempting to obtain, obtaining, or renewing

a license to practice a profession by

bribery, by fraudulent misrepresentati on, or

through an error of the [D] epartment or t he

board.

Obtaining a certificate or registration in error as a result of

a misrepresentation made during the application process is

conduct proscribed by Section 455.227(1)(h) , regardless of

whether the misrepresentation was fraudulently or innocently

ma de.

40. Because of their penal nature , the foregoing statutory

and rule provisions must be strictly construed, with any

reasonable doubts as to their meaning being resolved in favor of

the certificateholder or registrant . See Jonas v. Florida

Department of Business and Professional Regulation , 746 So. 2d

1261, 1262 (Fla. 3 d DCA 2000)("[S]tatutes such as those at issue

authorizing the imposition of discipline upon licensed

contractors are in the nature of penal statutes, which should be

strictly construed ."); and Capital National Financial

Corporation v. Department of Insurance , 690 So. 2d 1335, 1337

(Fla. 3 d DCA 1997)("Section 627.8405 is a penal statute and

therefore must be strictly construed: . . . . 'When a statute

imposes a penalty, any doubt as to its meaning must be resolved

in favor of a strict construction so that those covered by the

statute have clear notice of what conduct the statute

proscribes.'").

41 . The Department met its burden of proof as to some, but

not all, of the allegations of wr ongdoing made in the four

counts of the instant Administrative Complaint.

42. It proved by clear and convincing evidence that

Respondent violated Section 489.129(1)(a), Florida Statutes (as

alleged in Count I of the Administrative Complaint), Section

455. 227(1)(h), Florida Statutes (as alleged in Count III of the

Administrative Complaint), and, derivatively, Section

489.129(1)(m), Florida Statutes (as alleged in Count IV of the

Administrative Complaint) by obtaining a n erroneously issued

registration from the Department (to which he was not entitled)

as a result of his having made a material misrepresentation

concerning his possessing a valid "local competency card"

evidencing his " successful compliance with the local examination

and licensing requirements " governing air conditioning

contractors in Miami - Dade County.

43. The Department, however, failed to present clear and

convincing evidence that Respondent obtained the registration

"by fraud" (as alternatively alleged in Count I of the

Administrative Comp laint) or "by bribery" or "by fraudulent

misrepresentation " (as alternatively alleged in Count III of the

Administrative Complaint ) or that he "knowing ly gave false or

forged evidence to the [B]oard or member thereof" in violation

of Section 489.127(1)(d), Florida Statutes, and (therefore also)

Section 489.129(1)(i), Florida Statutes (as alleged in Count II

of the Administrative Complaint. The Department offered no

evidence to refute the plausible testimony given by Respondent

concerning his reasonably fou nded belief , at the time he

submitted his registration application to the Department, that

the "competency card" referenced in and attache d to the

application was what it appeared to be and not a "fraudulent

document . " 4

44 . Remaining for consideration is what disciplinary

action should be taken against Respondent for the alleged

violation s that were proven by the Department . To answer this

question it is necessary to consult the B oard's "disciplinary

guidelines " set forth Florida Administrative Code Chapt er 61G4 -

17, which impose restrictions and limitations on the exercise of

its disciplinary authority . See Parrot Heads, Inc. v.

Department of Business and Professional Regulation , 741 So. 2d

1231, 1233 (Fla. 5th DCA 1999)("An administrative agency is

bound by its own rules . . . creat[ing] guidelines for

disciplinary penalties."); and § 455.2273(5), Fla. Stat. ("The

administrative law judge, in recommending penalties in any

recommended order, must follow the penalty guidelines

established by the board or de partment and must state in writing

the mitigating or aggravating circumstances upon which the

recommended penalty is based."); cf . State v. Jenkins , 469 So.

2d 733, 734 (Fla. 1985)(" [A]gency rules and regulations, duly

promulgated under the authority of la w, have the effect of

law."); Buffa v. Singletary , 652 So. 2d 885, 886 (Fla. 1st DCA

1995)("An agency must comply with its own rules."); Decarion v.

Martinez , 537 So. 2d 1083, 1084 (Fla. 1st 1989)("Until amended

or abrogated, an agency must honor its rules ."); and Williams v.

Department of Transportation , 531 So. 2d 994, 996 (Fla. 1st DCA

1988)(agency is required to comply with its disciplinary

guidelines in taking disciplinary action against its employees).

45 . In Florida Administrative Code Rule 61G4 - 17. 001 , the

Board has announced the "[n]ormal [p]enalty [r]anges " within

which its disciplinary action against contractors will fall,

absent aggravating or mitigating circumstances, for specified

violations.

46. Violations of Section 489.129(1)(a), Florida Statutes,

are specifically addressed in Subsection (1)(a) of Florida

Administrative Code Rule 61G4 - 17.001 , which provides the

following "[n]ormal [p]enalty [r]anges " for such violations:

Section 489.129(1)(a), F.S. Obtaining

license through fraud or misr epresentation.

If misrepresentation :

PENALTY RANGE :

MINIMUM: $ 5,000 fine and/or probation,

suspension, and/or revocation.

MAXIMUM: $ 10,000 fine and revocation.

If fraud:

PENALTY RANGE

MINIMUM: $ 5,000 fine and revocation

MAXIMUM: $ 10,000 fine and revocation.

47. Violations of Section 489.129(1)(m), Florida Statutes,

are specifically addressed in Subsection (1)(m ) of Florida

Administrative Code Rule 61G4 - 17.001 , which provides the

following "[n]ormal [p]enalty [r]anges " for such violations

com mitted by first time offenders like Respondent:

Misconduct or incompetency in the practice

of contracting, shall include, but is not

limited to:

* * *

2. Violation of any provision of Chapter

61G4, F.A.C., or Chapter 489, Part I. , F.S.

FIRST OFFENSE:

PENALTY RANGE:

MINIMUM: $ 1,000 fine and/or probation, or

suspension.

MAXIMUM: $ 2,500 fine and/or probation, or

suspension.

48. Violations of Section 455.227(1)(h), Florida Statutes,

are not specifically addressed in Florida A dministrative Code

Rule 61G4 - 17.001 . Subsection (6) of the rule, however, provides

as follows :

The absence of any violation from this

Chapter shall be viewed as an oversight, and

shall not be construed as an indication that

no penalty is to be assessed. The Guideline

penalty for the offense most closely

resembling the omitted violation shall

apply.

Of the "offenses" specifically addressed in the rule , the one

"most closely resembling" a violation of Section 455.227(1)(h)

is "[o]btaining [a] license throu gh fraud or misrepresentation"

in violation of Section 489.129(1)(a), Florida Statutes.

Accordingly, the "[g] uideline penalty [range] " for this

"offense" "appl[ies] " to violations of Section 455.227(1)(h) ,

except to the extent that that "guideline penalty [range] "

includes the imposition of a fine in excess of the statutory

maximum ($5,000.00) for a violation of Section 455.227(1)(h) .

49 . Subsection (4) of Florida Administrative Code Rule

61G4 - 17.001 gives notice that, in addition to any other

disciplina ry action it may impose upon a wrongdoer , the Board

will also " assess the costs of investigation and prosecution ,

excluding costs related to attorney time. "

50 . Florida Administrative Code Rule 61G4 - 17.00 2 lists

"[ a ] ggravating and [ m ] itigating circumstan ces " to be considered

in determining whether a departure from the "[n]ormal [p]enalty

[r]ange" is warranted in a particular case . T hese

"[ a ] ggravating and [ m ] itigating circumstances " include the

following:

(1) Monetary or other damage to the

licensee's c ustomer, in any way associated

with the violation, which damage the

licensee has not relieved, as of the time

the penalty is to be assessed. (This

provision shall not be given effect to the

extent it would contravene federal

bankruptcy law.)

(2) Actual job - site violations of building

codes, or conditions exhibiting gross

negligence, incompetence, or misconduct by

the licensee, which have not been corrected

as of the time the penalty is being

assessed.

(3) The danger to the public.

(4) The number of c omplaints filed against

the licensee.

(5) The length of time the licensee has

practiced.

(6) The actual damage, physical or

otherwise, to the licensee's customer.

(7) The deterrent effect of the penalty

imposed.

(8) The effect of the penalty upon the

licensee's livelihood.

(9) Any efforts at rehabilitation.

(10) Any other mitigating or aggravating

circumstances.

51 . Having considered the facts of the instant case in

light of the pertinent and applicable provisions of Florida

Administrative C ode Chapter 61G4 - 17, as well as Florida

Administrative Code 61G4 - 15.008 (which provides for mandatory

"suspension or revocation of the certificate or registration" as

punishment for a certificateholder's or registrant's having made

"[m]aterial false statem ents" in the application for the

certificate or registration ) , it is the view of the undersigned

that the appropriate disciplinary action to take against

Respondent in the instant case for his violation of Section

489.129(1)(a), Florida Statutes , Section 4 55.227(1)(h), Florida

Statutes, and Section 489.129(1)(m), Florida Statutes , is 1) the

revocation of his registration (to which he was not entitled and

which he received only because of his having misrepresented, in

his application for registration, his lo cal licensure status);

and (2) requiring him to pay $32.66 to reimburse the Department

for its investigative and prosecutorial costs. The imposition

of any additional punishment is unwarranted, given that

Respondent reasonably believed that the informatio n he provided

in his registration application concerning his local licensure

status was in fact true and accurate .

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby

RECOMMENDED that the Board issue a Final Orde r revoking

Respondent's registration and requiring him to pay the

Department $32.66 (representing the Department's investigative

and prosecutorial costs, excluding costs associated with

attorney time) for the violation of Section 489.129(1)(a),

Florida Sta tutes , Section 455.227(1)(h), Florida Statutes, and

Section 489.129(1)(m), Florida Statutes, described above th at

the Department alleged in it s Administrative Complaint and

subsequently proved by clear and convincing evidence at the

final hearing.

DONE AN D ENTERED this 22nd day of October , 2007, in

Tallahassee, Leon County, Florida.

S

___________________________________

STUART M. LERNER

Administrative Law Judge

Division of Administr ative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Fil ing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of October , 2007.

ENDNOTES

1 Whether Respondent met whatever, if any, experience and/or

education requirements there might have been for the

" registration . . . sought," the evidentiary record does not

reveal.

2 A "person," as that term is used in Florida Statu t es,

"includes individuals, children, firms, associations, joint

adventures, partnerships, estates, trusts, business trusts,

syndicat es, fiduciaries, corporations, and all other groups or

combinations." § 1.01(3), Fla. Stat.

3 Florida Administrative Code Rule 61G4 - 15.008 was adopted

pursuant to the rulemaking authority granted the Board pursuant

to Section 489.129(3), Florida Statut es, which provides that

"[t]he [B] oard may specify by rule the acts or omissions which

constitute violations of this section."

4 Even if the Department had clearly and convincingly

demonstrated that Respondent did know, at the time he submitted

his appli cation, that the "competency card" was a "fraudulent

document," there would still be no basis to find that he

violated Section 489.127(1)(d), Florida Statutes, inasmuch as

the "competency card" was given, not to the Board or a member of

the Board, but to t he Department. See Department of Business

and Professional Regulation, Construction Industry Licensing

Board v. Perez , No. 07 - 2500PL, 2007 Fla. Div. Adm. Hear. LEXIS

502 * 11 - 12 (Fla. DOAH September 6, 2007)(Recommended

Order)("Count II alleges that Respon dent violated Section

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

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

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

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

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

Respondent gave false or forged evidence to the board or a

member of the board. The evidence is that he gave fraudulent

information to the Department. The Department, therefore, ha s

failed to prove the allegations of Count II.").

COPIES FURNISHED :

P. Brian Coats, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Yehuda D. B. Bruck, Esquire

200 Southeast 1st Street, Suite 801

Miami, Florida 33131

G. W. Harrell, Execu tive 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

N OTICE OF RIGHT TO SU BMIT 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.