11-002231 Juan Carlos Cacciamani vs. Construction Industry Licensing Board Status: Closed Recommended Order on Friday, January 13, 2012.

Summary: Petitioner's financial circumstances constituted an unusual hardship which prevented him from timely completing continuing education requirements. Recommend reinstatement of his license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JUAN CARLOS CACCIAMANI, ) )

)

Petitioner, ) Case No. 11-2231

vs. )

)

CONSTRUCTION INDUSTRY )

LICENSING BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this

case on December 7, 2011, in Tallahassee, Florida, before

Barbara J. Staros, Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Timothy P. Atkinson, Esquire

Oertel, Fernandez, Cole & Bryant

Post Office Box 1110

Tallahassee, Florida 32302-1110

For Respondent: Daniel R. Biggins, Esquire

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

The issue is whether Petitioner's application for

reinstatement of his license as a general contractor should be

granted or denied.

PRELIMINARY STATEMENT

On March 8, 2011, Respondent, Construction Industry

Licensing Board (Board), issued a Notice of Intent to Deny

Petitioner's application for reinstatement of his Florida

certified general contractor's license.

Petitioner timely requested an Administrative Hearing to

contest the Notice of Intent to Deny. The case was transmitted

to the Division of Administrative Hearings on or about May 3,

2011. Two motions for continuance were granted, and the case

was ultimately heard on December 7, 2011.

Prior to hearing, Petitioner filed a Consented Motion to

File Amended Petition for Formal Administrative Proceedings,

which was granted. The Board issued a Corrected Notice of

Intent to Deny on July 7, 2011, nunc pro tunc to March 9, 2011.

The reason for the denial as stated in the Corrected Notice of

Intent to Deny is that Petitioner "has failed to present

evidence of a good faith effort to comply with the license

renewal statutes and rules and failed to present evidence that

rises to the level of illness or unusual hardship that would

justify the failure to renew the license." The parties filed a

Joint Pre-hearing Stipulation on December 5, 2011.

At hearing, Petitioner testified on his own behalf.

Petitioner offered Exhibits numbered 1 through 6, which were

admitted into evidence. Respondent did not offer any exhibits

or present any witness testimony. Petitioner's request for

official recognition as to Exhibits 3, 5 and 6 was granted.

The hearing was not transcribed. The parties timely filed

Proposed Recommended Orders, which were considered in the

preparation of this Recommended Order. All references to the

Florida Statutes are to 2011 unless otherwise indicated.

FINDINGS OF FACT

Stipulated Facts

1. Petitioner was previously issued Certified General

Contractor's License number CGC42026. His license was active in

the 2004 renewal cycle, became delinquent-active in the 2006

renewal cycle, and null and void at the start of the 2008

renewal cycle. Due to an executive order of the Governor

relating to tropical storms, Petitioner's license became null

and void on October 2, 2008. Petitioner was required to pay a

renewal fee and report continuing education credit hours in

order to renew his license prior to the start of the 2008

renewal cycle to avoid the license becoming null and void.

2. Petitioner timely paid the renewal fee ($518) to renew

his license.

3. Petitioner completed and reported two continuing

education hours for the reporting period ending August 31, 2008.

Petitioner completed and reported 44 continuing education hours

through July 5, 2011, and is currently up to date with all of

his required continuing education credit hours.

4. While Petitioner completed and reported a portion of

his required continuing education hours, he did not complete and

report all of his required continuing education hours to renew

his license during the 2008 renewal period. This was due to

financial difficulty and an inability to pay for continuing

education credit hours.

5. At present, the total hours Petitioner completed and

reported would fulfill his 2006, 2008, and 2010 continuing

education requirements.

6. A license becomes null and void if it is not renewed

within two years of the renewal date.

7. Petitioner filed his application pursuant to section

455.271(6), Florida Statutes, to reinstate his Certified General

Contractor's License number CGC42026. The Department entered

its Notice of Intent to Deny the application.

8. Following the Board's issuance of a Corrected Notice of

Intent to Deny, Petitioner filed an Amended Petition for Formal

Administrative Proceedings. The Corrected Notice stated that

Petitioner's license expired due to non receipt of continuing

education credits for renewal and, following the delinquency

period, became null and void. The reasons for the denial set

forth in the corrected notice were as follows:

Applicant failed to present evidence of a

good faith effort to comply with the license

renewal statutes and rules and failed to

present evidence that rises to the level of

illness or unusual hardship that would

justify the failure to renew the license.

9. The Board approved the application of Alberto Munoz to

reinstate his Certified Pool/Spa Contractor's License pursuant

to section 455.271(6) at the July 14, 2011, meeting of the

Board. The application filed by Mr. Munoz stated that his

license had gone null and void because he failed to pay the

required license renewal fee due to undue due to undue financial

hardship.

10. The Board approved the application of Edwin W. Steffen

to reinstate his Certified Plumbing Contractor's License

pursuant to section 455.271(6) at the August 11, 2011, meeting

of the Board. The application filed by Mr. Steffen stated that

his license had gone null and void because his "two cycle

inactive status expired in August 2010." Further, Mr. Steffen

cited financial difficulties following the "2009 market crash

that hurt [him] significantly," leading him to "go back into the

workforce."

11. Neither the Department nor the Board has adopted any

rules pertaining to applications to reinstate licensees pursuant

to section 455.271(6) other than a Department approved

application form.

Facts based upon evidence of record

12. Petitioner's Certified General Contractor's (CGC)

license was active during the 2004 renewal cycle, and became

delinquent-active in the 2006 renewal cycle.

13. Petitioner was required to pay a renewal fee and

report continuing education credit hours in order to renew his

CGC license prior to the start of the 2008 renewal cycle to

avoid the license becoming null and void.

14. During the 2006 and 2008 renewal cycles, Petitioner

worked as a construction foreman in remote encampments in Puerto

Rico and in the U.S. Virgin Islands. Although these jobs were

full-time, he earned very little money on these projects.

During this time, Petitioner's wife and three children remained

at home in Puerto Rico. He earned only enough during this time

for his family to subsist.

15. Although working in remote locations in Puerto Rico

and in the U.S. Virgin Islands during this time, Petitioner

insists that he always intended to return to Florida and was

actively seeking work here. He did not finish working in the

remote encampments until 2009. While working in the remote

locations, he had no access to the Internet and relied on phone

calls to friends in an attempt to find appropriate yet

affordable continuing education courses. The courses he learned

of were expensive at a time when he was earning little money and

trying to support his family. Petitioner's testimony in this

regard is deemed credible and is accepted as fact.

16. When Petitioner submitted his application for

reinstatement of his license, he included a money order for $100

as required.

17. During this period of time, Petitioner paid his

renewal fee and completed two continuing education credit hours,

but was unable to afford the required number of authorized

continuing education credits, and was not in a place from which

he could travel to attend live courses.

19. Petitioner made a good-faith effort to comply with the

license renewal statutes and rules. He paid the renewal fee and

has since completed the necessary continuing education

requirements.

CONCLUSIONS OF LAW

20. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding in accordance with sections 120.569 and 120.57(1),

Florida Statutes.

21. In licensing cases, the burden is on the applicant to

demonstrate entitlement to the requested license by a

preponderance of the evidence. Dep't of Transp. v. J.W.C. Co.,

Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Dep't of

HRS , 348 So. 2d 349 (Fla. 1st DCA 1977). In this instance,

Petitioner, as an applicant for reinstatement, bears the burden

of proof.

22. In its Proposed Recommended Order, Respondent

acknowledges that the case presented at the Division of

Administrative Hearings was substantially more comprehensive and

informative than the information initially provided to the Board

prior to its initial decision. The proceeding before the

Division is de novo . § 120.57(1)(k), Fla. Stat. Because this

is a de novo proceeding, it is intended to formulate final

agency action, not to review action taken earlier and

preliminarily. 1/ Haines v. Dep't of Child. & Fams. , 983 So. 2d

602,606 (Fla. 5th DCA 2008) citing Dep't of Transp. v. J.W.C.

Co., Inc. , supra .

23. Section 455.271, Florida Statutes, applies to multiple

professions, including general contracting, and reads in

pertinent part as follows:

455.271(6)(b) Notwithstanding the

provisions of the professional practice acts

administered by the department, the board,

or the department if there is no board, may,

at its discretion, reinstate the license of

an individual whose license has become void

if the board or department, as applicable,

determines that the individual has made a

good faith effort to comply with this

section but has failed to comply because of

illness or unusual hardship . The individual

must apply to the board, or the department

if there is no board, for reinstatement in a

manner prescribed by rules of the board or

the department, as applicable, and shall pay

an applicable fee in an amount determined by

rule. The board, or the department if there

is no board, shall require that such

individual meet all continuing education

requirements prescribed by law, pay

appropriate licensing fees, and otherwise be

eligible for renewal of licensure under this

chapter.

(emphasis added).

24. The preponderance of the evidence established that

Petitioner's financial circumstances during the 2006 and 2008

renewal cycles constituted an unusual hardship, i.e. , inability

to pay for continuing education credits and working in remote

locations outside of the contiguous United States. These

circumstances prevented him from timely completing the

continuing education requirements.

RECOMMENDATION

Upon consideration of the facts found and the conclusions

of law reached, it is

RECOMMENDED:

That the Construction Industry Licensing Board enter a

final order granting Petitioner's application for reinstatement

of his license as a general contractor.

DONE AND ENTERED this 13th day of January, 2012, in

Tallahassee, Leon County, Florida.

S

___________________________________

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of January, 2012.

ENDNOTE

1/ Thus, any review of the Board's discretion will be left to

any appellate judicial review. See § 120.68(7)(e)1., Fla. Stat.

COPIES FURNISHED :

Timothy P. Atkinson, Esquire

Ortel, Fernandez, Cole & Bryant

Post Office Box 1110

Tallahassee, Florida 32302-1110

Daniel R. Biggins, Esquire

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Layne Smith, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

G. W. Harrell, Executive Director

Division of Professions

Construction Industry Licensing Board

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2792

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.