07-002823PL Department Of Business And Professional Regulation, Construction Industry Licensing Board vs. Juan Carlos Cuellar Status: Closed Recommended Order on Thursday, December 13, 2007.

Summary: Petitioner has authority to revoke Respondent`s license, which was obatined with an invalid Miami-Dade Building Business Certificate of Competency, and obtained by Respondent without knowledge that the Certificate had been inproperly issued.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION , )

CONSTRUCTION INDUSTRY LICENSING )

BOARD, )

)

Petitioner, )

)

vs. ) Case No. 07 - 2824 PL

)

LUIS GARCIA , )

)

Respondent. )

_____________ ____________________)

RECOMMENDED ORDER

This case came before Larry J. Sartin, an Administrative

Law Judge of the Division of Administrative Hearings, on a

factual record stipulated to by the parties.

APPEARANCES

For Petitioner: Matthew D. Morton

Assi stant General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399

For Respon dent: Timothy Atkinson, Esquire

Oertel, Fernandez, Cole & Bryant

Post Office Box 1110

Tallahassee, Florida 32 302

Richard A. Alayon, Esquire

Alayon & Associates, P.A.

4551 Ponce de Leon Boulevard

Coral Gables, Florida 33146

STATEMENT OF THE ISSUE S

The issue s in this case are whether Respondent, Luis

Garcia , comm itted the offenses alleged in an Administrati ve

Complaint issued by Petitioner, the Department of Business and

Professional Regulation, on December 6, 2006 , and , if so, what

penalty should be imposed.

PRELIMINARY STATEMENT

On or about December 6, 2006, Petitioner issued a four -

count Administrative Co mp laint, DBPR Case No. 2006 - 048994,

alleging that Mr. Garcia had violated certain statutory

provisions governing the conduct of individuals in Florida

licensed by the Construction Industry Licensing Board .

M r . Garcia, through counsel, disputed the factual allegations of

the Administrative Complaint and requested “a hearing before an

administrative law judge before the Division of Administrative

Hearings” pursuant to Section 120.57(1), Florida Statutes

(200 7).

A copy of the Administrative Complaint and the letter

requesting a formal hearing was filed with the Division of

Administrative Hearings on June 26, 2007 . The matter was

designated DOAH Case No. 0 7 - 2824 PL and was assigned to the

undersigned.

The final hearing was scheduled for August 31, 2007, by

Noti ce of Hearing by Video Teleconference entered July 10, 2007 .

After continuing the hearing to September 26, 2007, the parties

filed a Joint Motion to Cancel Hearing. In this Motion the

parties represented that they had stipulated to the pertinent

facts in this case and had agreed to proceeding without a formal

administrative hearing. The parties, however, also requested

that they be given an opportunity to present oral argument, file

proposed recommended orders, and that a recommended order be

entered.

Th e Joint Motion to Cancel Hearing was granted by an Order

entered September 20, 2007. Oral argument, to be heard by

telephone, was scheduled for October 10, 2007, and the parties

were given until November 5, 2007, to file proposed recommended

orders.

Oral argument was subsequently rescheduled and held on

November 8, 2007. During that hearing, in addition to hearing

argument on the issues involved in this case, the date for

filing proposed recommended orders was extended to November 15,

2007.

Both parties t imely filed proposed recommended orders,

which have been fully considered in rendering this Recommended

Order.

All references to the Florida Statutes in this Recommended

Order are to the codification applicable to the year(s) in which

the events alleged in the Administrative Complaint took place,

unless otherwise noted.

STIPULATED FINDINGS OF FACT

1. Prior to June 2005, Respondent received what appeared

to be a valid Miami - Dade Building Business Certificate of

Competency.

2. Upon receipt, Respondent appli ed to the Department of

Business and Professional Regulation (hereinafter referred to as

the “Department”) to obtain a registered contractor’s license

using the Certificate of Competency.

3. Based on the Certificate of Competency, the Department

issued Re spondent a registered contractor’s license be aring

license number RF 11067267 .

4. Respondent also applied for a certificate of authority

for his business, A.P.A. Plumbing Corporation (hereinafter

referred to as “APA ”).

5. Based on the Certificate of Compe tency and the

registered contractor’s license being granted, the Department

i ssued a certificate of authority to APA , QB 4 2763 .

6. Subsequent to the Department’s issuance of both the

registered contractor’s license to Respondent and the

certificate of aut hority for APA , Respondent and the Department

learned that the Miami - Dade Building Business Certificate of

Competency (hereinafter referred to as the “BCCO”) obtained by

Respondent was not a valid certificate.

7. Respondent’s actions were not as a result of any fraud

or intentional action on the part of Respondent; however, it is

acknowledged by all parties that the Miami - Dade Building

Business Certificate of Competency obtained by Respondent was

not valid.

8. At no time during the application process or upon

attesting to the qualified business license application did

Respondent have knowledge that the Miami - Dade BCCO employees

were engaged in a scheme to defraud the public.

9. At no time during the application process or upon

attesting to the qualified b usiness license application did

Respondent have knowledge that Respondent obtained the BCCO

Competency Card in deviation of any state laws or rules, or

local ordinances.

10. At no time during the application process or upon

attesting to the qualified busi ness license application did

Respondent have knowledge that the BCCO Competency Card was not

a valid certificate.

11. At no time during the application process or upon

attesting to the qualified business license application did

Respondent have knowledge t hat Respondent’s attestation on the

application was inaccurate.

12. At no time during the application process or upon

attesting to the qualified business license application did

Respondent have knowledge that the approved BCCO qualifying

board did not app rove the Competency Card.

13. At no time did Respondent have knowledge that any

documents Respondent submitted to the Department contained

false, forged, or otherwise inaccurate information or material.

14. At the time the Department issued the registere d

contractor’s license and subsequent certificate of authority on

the sole basis of the Miami - Dade Building Business Certificate

of Competency presented by Respondent, the Department properly

issued the registered contractor’s license based on the

informat ion submitted to it.

15. T he parties stipulated that the Respondent was not

entitled to the registered contractor’s license and certificate

of authority because the Miami - Dade Building Business

Certificate of Competency was not a valid certificate.

16. A t the time of application to the Department,

Respondent was not qualified by any local jurisdiction or any

other method necessary to receive a registered contractor’s

license from the Department.

17. Subsequent to Respondent’s initial application and

rece ipt of registered contractor’s license RF11067267 ,

Respondent has taken the competency test required to be properly

licensed through the Department.

18. Respondent asserts that he has passed the test. The

Department will not dispute this if he is able to provide

verification that he did receive a passing score.

CONCLUSIONS OF LAW

A. Jurisdiction .

19 . The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (200 7 ).

B. The Burden and Standard of Proof .

20 . The Department seek s to impose penalties against

Respondent through the Administrative Complaint that include

mandatory and discretionary suspension or revocation of h is

ge neral contractor’s license . Therefore, the Department has the

burden of proving the specific allegations of fact that support

its charges by clear and convincing evidence. See Department of

Banking and Finance, Division of Securities and Investor

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

Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987); and Pou v.

Department of Insurance and Treasurer , 707 So. 2d 941 (Fla. 3d

DCA 1998).

21 . What constitutes "clear and convincing" evidence was

desc ribed by the court in Evans Packing Co. v. Department of

Agriculture and Consumer Services , 550 So. 2d 112, 116, n. 5

(Fla. 1st DCA 1989), as follows:

. . . [C]lear and convincing 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 issue. The

evidence must be of such weight that it

produces in the mind of the trier of fact

the firm belief or conviction, without

hesitancy, as to the truth of the

allegations sought to be established.

Slomowitz v. Walker , 429 So. 2d 797, 800

(Fla. 4th DCA 1983).

See also In re Graziano , 696 So. 2d 744 (Fla. 1997); In re

Davey , 645 So. 2d 398 (Fla. 1994); and Walker v. Florida

Department of Business and Professional Regulation , 705 So. 2d

652 (Fla. 5th DCA 1998)(Sharp, J., dissenting).

C. The Charges of the Administrative Complaint .

22 . Section 489.129, Florida Statutes, provides that

disciplinary action may be taken against a certificateholder,

registrant, or licensee if it is found that the individual has

committed certain enumerated offenses. In this matter, it has

been alleged in Counts I, II, and IV, that Respondent committed

the offenses described in S ubs ection s 489.129(1)(a), (d), and

(m), Florida Statutes, which provide:

(1) The board may take any of the

following actions against any

certificateholder or registrant: place on

probation or reprimand the licensee, revoke,

suspe nd, 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 age nt, a

financially responsible officer, or a

secondary qualifying agent responsible under

s. 489.1195 is found guilt y of any of the

fol lowing acts:

(a) Obtaining a certificate,

registration, or certificate of authority by

fraud or misrepresentation .

. . . .

( d) Performing any act which assists a

person or entity in engaging in the

prohibited uncertified and unregistered

practic e of contracting, if the

certificateholder or registrant knows or has

reasonable grounds to know that the person

or entity was uncertified and unregistered.

. . . .

( m) Committing incompetency or misconduct

in the practice of contracting.

23 . In C ount III of the Administrative Complaint it is

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

Statutes, which provides that the following act constitutes

grounds for which disciplinary action may be taken:

(h) Attempting to obtain, ob taining, or

renewing a license to practice a profession

by bribery, by fraudulent misrepresentation,

or through an error of the department or the

board.

24 . Because of their penal nature , the foregoing statutory

provisions must be strictly construed, wit h 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 issu e

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 noti ce of what conduct the statute

proscribes.'").

D. Count I; Section 489.129(1)(a), Florida Statutes .

25 . While Respondent has not been specifically charged

with a violation of Florida Administrative Code Rule 61G4 -

15.008 , the Department cited the Rule, wh ich contains 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, in support of Count I of the Administra tive

Complaint:

Material 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 const itute a violation

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

result in suspension or revocation of the

certificate or registration.

26 . It is the Department’s position, that despite the fact

that Respondent did not commit “fraud” in obtaining his license

and a certificate of authority for APA , and, in fact, did not

knowingly submit false information to the Department in

obtaining his license and the certificate of competency ,

“[m]aterial false statements or information” w ere nonetheless

submitted by Respon dent in support thereof.

27 . Florida Administrative Code Rule 61G4 - 15.008, in

defining what constitutes the act of "[o] btaining a certificate,

registration, or certificate of authority by . . .

misrepresentation” eliminates the need for the Department to

prove any knowledge on the part of Respondent that he has made a

material misrepresentation or any intent on the part of

Respondent to rely upon a material misrepresentation. All that

is required is proof that a material re presentation was made and

that t he r epresentation was false .

28. The parties have stipulated that Respondent obtained

his license and a certificate of authority for APA based upon a

false information. Therefore, the Department has proved that he

obtained his license through a material misrepresentation in

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

E. Count II; Section 489.129(1)(d), Florida Statutes .

29 . In order to prove a violation of Section

489.129(1)(d), Florida Statutes, the Department was required to

prove that “fals e or forged evidence” was given to the “board or

a member thereof” “ knowingly ” by the Respondent.

30 . The Department has conceded in Petitioner’s Proposed

Recommended Order that it failed to prove this violation. Based

upon the facts stipulated to by the parties, Respondent was

without knowledge that any information submitted to the

Department or “board” was “false or forged.”

F. Count III; Section 455.227(1)(h), Florida Statutes .

31 . In support of this alleged violation, the Department

has argued that Respondent obtained his license “through an

error of the department . . . .” That “error” was the

Department’s reliance upon an improperly issued Miami - Dade

building business Certificate of Competency.

32 . The evidence proved clearly and convincingly tha t the

Department issued the Respondent’s license in “error.” While it

is true that Respondent did not intentionally cause or even know

of the error, the Department reasonably takes the position that

Respondent obtained his license nonetheless as a result of this

error and that is all that Section 455.227(1)(h), Florida

Statutes.

33. The Department has proved clearly and convincingly

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

Statutes.

G. Count IV; Section 489.129(1)(m), Florida Statutes .

34 . Count IV involves an allegation that Respondent has

committed “misconduct or incompetency in the practice of

contracting.” In support of this charge, the Department has

cited Florida Administrative Code Rule 61G4 - 17.001(1), which

provides discipline gui delines for violations of Section

489.129(1)(m), Florida Statutes. In particular, Florida

Administrat ive Code Rule 61G4 - 17.001(1)(m) breaks the discipline

guidelines for a violation of Section 489.129(m), Florida

Statutes, into two parts. In the second p art, it provides for

discipline where there has been a “[v]iolation of any provision

of . . . Chapter 489, Part I, F.S.” which suggests that any

violation of Chapter 489, Florida Statutes, constitutes

“misconduct or incompetency in the practice of contra cting” as

prohibited in Section 489.129(1)(m), Florida Statutes.

35. Based upon the foregoing, the Department suggests that

Respondent, by having violated Section 489.129(1)(a), Florida

Statutes, has violated Section 489.129(1)(m), Florida Statutes.

The evidence clearly and convincingly supports the Department’s

position.

H. The Appropriate Penalty .

36 . The only issue remaining for consideration is the

appropriate disciplinary action should be taken against

Respondent for the alleged violations that wer e proven by the

Department. To answer this question it is necessary to consult

the "disciplinary guidelines " of the Construction Industry

Licensing B oard (hereinafter referred to as the “Board”). Those

guidelines are set forth in Florida Administrative C ode Chapter

61G4 - 17, and they effectively place restrictions and limitations

on the exercise of the Board’s 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 department and must state

in writing the mitigating or aggravating circumstances upon

which the recommended penalty is based . ”).

37. 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.

38. 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 misrepresentation.

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.

39. Violations of Section 455.227(1)(h), Flor ida Statutes,

are not specifically addressed in Florida Administrative 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 cons trued as an indication that

no penalty is to be assessed. The Guideline

penalty for the offense most closely

resembling the omitted violation shall

apply.

40. Of the "offenses" specifically addressed in the R ule,

the one "most closely resembling" a viol ation of Section

455.227(1)(h) is o btaining a license through fraud or

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

Statutes. Accordingly, the g uideline penalty range for this

offense applies to violations of Section 455.227(1)(h) , exc ept

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) .

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

are specifically addr essed 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 committed

by first time offenders like Respondent:

Misconduct or incompetency in the practice

of contractin g, 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.

42. Subsection (4) of Florida Administrative Code Rule

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

disciplinary action it may impose upon a wrongdoer, the Board

will also " assess the costs of in vestigation and prosecution ,

excluding costs related to attorney time."

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

"A ggravating and M itigating circumstances " to be considered in

determining whether a departure from the " N ormal P enalty R ange"

is warranted in a particular case . These aggravating and

mitigating circumstances include the following:

(1) Monetary or other damage to the

licensee's customer, in any way associated

with the violation, which damage the

licensee has not relieved, as o f 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, o r

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 complaints 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.

44. In Petitioner’s Proposed Recommended Order, the

Department has suggested, without any discussion of aggravating

or mitigating circumstances, that Respondent should be found to

have violated Sections 489.129(1) (a) and (m), and 455.227(1)(h),

Florida Statutes, that his license be revoked (based upon the

violation of Sections 489.129(1)(a) and 455.227(1)(h), Florida

Statutes), and that he be required to pay the following fines:

$5,000.00 for the violation of Secti on 489.129(1)(a), Florida

Statutes; $5,000.00 for the violation of Section 455.227(1)(h),

Florida Statutes; and $2,500.00 for the violation of Section

489.129(1)(m), Florida Statutes.

45. The suggestion that any fine should be imposed in this

case is wit hout any justification or merit and ignores the facts

stipulated to by the Department: that Respondent did not act

fraudulently or with any ill intent and that he was without any

knowledge that he was obtaining a license improperly.

Additionally, imposin g any fine for the violation of Section

489.129(1)(m), Florida Statutes, ignores the fact that th e

violation is a technical one, predicated solely upon the

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

a fine for both violations would be to punish Respondent

monetarily twice for the same act.

46. As to the suggested revocation of Respondent’s

license, it is concluded that before imposing this remedy, which

the Department is technically entitled to do, the Department

should first give Res pondent an opportunity to voluntarily

relinquish his license. Such action would take into account the

stipulated facts concerning Respondent’s lack of intent or

knowledge. It would also place Respondent in essentially the

same position that he was in bef ore he was defrauded by

employees of the BCCO: that of a licensee applicant. If

Respondent is given an opportunity to voluntarily relinquish his

license but fails to do so, then and only then, should the

Department revoke his license.

47. Again, the De partment has stipulated that Respondent

did nothing improperly in this case. Additionally, both parties

have stipulated that Respondent is not entitled to his license

and that it was obtained based upon false information from the

BCCO. Under these circum stances, Respondent is clearly not

entitled to his license. To punish him, however, by “revoking”

his license without giving him the opportunity to voluntarily

relinquish his license and requiring that he pay a fine ignores

the facts agreed to by both par ties.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered by the

Department finding that Luis Garcia violated the provision s o f

Sections 489.129(1)(a) and (m), and 455.227(1)(h), Fl orida

Statutes , as alleged in Counts I, III, and IV of the

Administrative Complaint; dismissing Count II of the

Administrative Complaint; requiring that Respondent pay the

costs incurred by the Department in investigating and

prosecuting this matter; givin g Respondent 30 days to

voluntarily relinquish his license; and revoking Respondent’s

license if he fails to voluntarily relinquish it with in 30 days

of the final order.

DONE AND ENTERED this 13th day of December , 200 7 , in

Tallahassee, Leon County, Florid a.

S

___________________________________

LARRY J. SARTIN

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 the Clerk of the

Division of Administrative Hearings

this 13th day of December, 2007 .

COPIES FURNISHED:

Matthew D. Morton

Assistant Genera l Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399

Timothy Atkinson, Esquire

Oertel, Fernandez, Cole & Bryant

Post Office Box 1110

Tallahassee, Florida 32302

Richard A. Alayon, Esquire

Ala yon & Associates, P.A.

4551 Ponce de Leon Boulevard

Coral Gables, Florida 33146

G. W. Harrell, Executive Director

Construction Industry Licensing Board

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Talla hassee, 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.