11-002789 Francisco Vicente De Moya vs. Construction Industry Licensing Board Status: Closed Recommended Order on Monday, August 22, 2011.

Summary: General contractor, who failed to renew his license, did not prove he failed to comply with renewal requirements because of illness or unusual hardship.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANCISCO VINCENTE DE MOYA, )

)

Petitioner, )

)

vs. ) Case No. 11 - 2789

)

CONSTRUCTION INDUSTRY LICENSING )

BOARD, )

)

Respondent . )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a for mal hearing was held in this case

on July 20 , 2011, by video teleconference between Miami and

Tallahassee, Florida, before Administrative Law Judge Claude B.

Arrington of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Di ane S. Perera, Esquire

Law Offices of Diane S. Perera, P.A.

14540 Southwest 136th Street, Suite 208

Miami, Florida 33186

For Respondent: Daniel R. Biggins, Esquire

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

STATEMENT OF THE ISSUE

Whether a certified general contractor ' s license issued to

Francisco Vincente De Moya ( Petitioner ) that has been classified

null and void should be reinstated pursuant to the " hardship "

provision of section 455.271(6)(b), Florida Statutes. 1

PRELIMINARY STATEMENT

On September 1, 2006, Petitioner ' s general contractor ' s

license exp ired because he had not completed sufficient

continuing education classes to meet his continuing education

requirements for the 2004 - 2006 biennial period . On October 2,

2008, Petitioner ' s general contractor ' s license became null and

void. Petitioner ther eafter applied with Respondent to have his

license reinstated , citing hardship . On January 12, 2011,

Respondent denied Petitioner ' s application. Petitioner timely

requested a formal administrative hearing to challenge

Respondent ' s denial, the matter was referred to DOAH, and this

proceeding followed.

At the formal hearing, Petitioner testified on his own

behalf and presented pre - lettered E xhibits A - H, each of which

was accepted into evidence. Respondent presented the t estimony

of Amanda Wynn , who is empl oyed by Respondent as a Senior

Analyst Supervisor. Respondent present ed no exhibits.

A Transcript of the proceedings , consisting of one volume,

was filed on August 2 , 2011. Both parties filed P roposed

R ecommended O rders, which have been duly considered b y the

undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Respondent is the state agency that regulates general

contractor s in the State of Florida.

2. In 1998, Respondent issued Petitioner certified general

contractor license CGC 05992.

3. Certified g eneral contractors are required to take a

total of 14 hours of continuing education courses in specified

categories e ach biennial period . 2 Credit is generally posted for

the biennial period during which the course was taken. Al l

continuing education courses discussed in this Recommended Order

were taken by Petitioner using the internet and reported

electronically. Respondent typically posts and maintains such

credits electronically. Credits are typically posted for the

biennia l period in which the credits are earned. If a licensee

had been deficient for a prior biennial period , Respondent ' s

staff can manually post - date credits from a subsequent biennial

period to the biennial period that is deficient .

2004 - 2006 Biennial Period

4. On August 23, 2004, Petitioner submitted to Respondent

a personal check in the amount of $209.00 as payment of renewal

fees for his general contractor ' s license for the biennial

period 2004 - 2006.

5. Petitioner ' s general contractor ' s license was not

r enewed for the 2006 - 2008 biennial period because Petitioner had

not completed sufficient continuing education hours during the

2004 - 2006 biennial period to meet his continuing education

requirements.

6. On September 1, 2006, Respondent classified the stat us

of Petitioner ' s as " expired/delinquent. " As of September 1,

2006 , and as of the date of the formal hearing, Respondent ' s

records reflect ed that Petitioner was deficient in his

continuing education requirements for the biennial period 200 4 -

2006 by a total of six hours in three categories. 3 One hour of

the deficiency was in the category of advanced building code.

Four hours of the deficiency were in the category of general.

One hour of the deficiency was in the category of workers '

compensation.

200 6 - 2008 Biennial Period

7. On September 29, 2006, Petitioner submitted to

Respondent a payment in the amount of $309.00 for renewal fees

and late fees for his general contractor ' s license for the

biennial period 2006 - 2008.

8. On October 20, 2006, Petition er completed a four hour

continuing education course in " core training. " Petitioner

testified that this credit was intended to be for the 2006 - 2008

biennial period.

9. Prior to the renewal deadline of August 29, 2008,

Petitioner requested and obtained fr om Respondent an extension

of 30 days to submit proof of completion of continuing education

credits for the 2006 - 2008 biennial period and payment of renewal

fees for the 2008 - 2010 biennial period.

2008 - 2010 Biennial Period

10. On September 29, 2008, Petitioner paid Respondent

$209.00 as payment for renewal fees for his general contractor ' s

license for the 2008 - 2010 biennial period.

11. On September 2 8 and 29 , 2008, Petitioner completed 1 4

hours of continuing education credit and submitted the

certifi cates of completion for each course to Respondent with

the notation " Please find Certificates of Completion for my G.C.

license # CGC 059992 for 2006 - 2008. " Respondent received the

certificates of completion on October 1, 2008. These hours

satisfied Peti tioner ' s continuing education requirements for the

2006 - 2008 biennial period.

12. On October 2, 2008, Petitioner ' s certified general

contractor ' s license became " null and void. " 4

13. With knowledge that his contractor ' s license was

considered null and void, 5 Petitioner took 26 hours of continuing

education credit between November 24, 2008, and August 7, 2009,

and submitted his certificates of completion to Respondent .

Respondent did not apply any of the 2 4 credits Petitioner earned

between September 29 and December 11, 2008, t o the 2004 - 2006

biennial period, nor was there any evidence that Petitioner

requested Respondent to do so. 6

14. In 2006, Petitioner ' s mother - in - law (Ms. Careaga ) was

diagnosed with degenerative dementia and began to deteriorate

physically and mentally. From 2007 until her death on

December 15, 2008, Ms. Careaga became immobile, more disoriented

and con fused, and required 24 hour supervision. Petitioner had

a cl ose relationship with his mother - in - law. Petitioner and

Petitioner ' s wife became Ms. Careaga ' s 24 - hour primary

caregivers so she would not have to go to a nursing home .

Petitioner continued to work full - time and serve as a primary

caregiver until Ms. Car eaga ' s death . During this period,

Petitioner assisted other family members in closing down the

restaurant that his mother - in - law had owned and operated.

15. On January 12, 2011, Respondent denied Petitioner ' s

application for the reinstatement of his gene ral contractor ' s

license. The Notice of Denial was not admitted as an exhibit in

this proceeding. However, a " Notice of Intent to Deny , "

purporting to be the Respondent ' s proposed denial, was attached

to the Petition for Formal Hearing. That Notice of I ntent to

Deny recites that the Petitioner ' s license expired due to " non

payment " [sic] of renewal fees. That statement is incorrect.

The license became null and void because of the deficient

continuing education requirements for the 2004 - 2006 biennial

pe riod . The Notice of Intent to Deny also found that Petitioner

failed to establish hardship within the meaning of section

455.271(6)(b).

16. Petitioner is eligible to obtain a new license by

retaking the licensure exam and by establishing that he is of

good moral character and financially stable and responsible.

His experience has been established by virtue of his prior

license.

17. Petitioner also hol ds licensure as an architect. That

license also became null and void during the same time frame as

his contractor ' s license. On February 17, 2011, the Florida

Board of Architecture, considering the same facts described

above, approved Petitioner ' s applic ation for reinstatement of

his architecture license.

CONCLUSIONS OF LAW

18 . DOAH has jurisdiction over the subject matter of and

the parties to this proceeding pursuant to s ections 120.569 and

120.57(1) .

19 . This is a de novo proceeding designed to formu late

final agency action. See Hamilton Cnty Bd. of C nty Com m ' rs v.

Dep ' t. Envt l . Reg. , 587 So. 2d 1378 (Fla. 1st DCA 1991) and

s ection 120.57(1)(k), Florida Statutes.

20 . As the applicant , Petitioner has the burden of proving

h is entitlement to the relief he seeks by a preponderance of the

evidence. See Dep ' t of Banking and Fin. v . Osborne Stern , 670

So. 2d. 932 (Fla. 1996) and Dep ' t of Transp. v. J. W. C. Co.,

Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981).

21 . A " preponderance " of the evidence m eans the greater

weight of the evidence. See Fireman ' s Fund Indemnity Co. v.

Perry , 5 So. 2d 862 (Fla. 1942).

22. Section 455.271(6) applies to multiple professions,

including general contracting, and provides, in relevant part,

as follows:

(6)(a) A delinquent status licensee must

affirmatively apply with a complete

application, as defined by rule of the

board, or the department if there is no

board, for active or inactive status during

the licensure cycle in which a licensee

becomes delinquent. Fa ilure by a delinquent

status licensee to become active or inactive

before the expiration of the current

licensure cycle shall render the license

void without any further action by the board

or the department.

(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,

determine s 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 p rescribed 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

requirem ents prescribed by law, pay

appropriate licensing fees, and otherwise be

eligible for renewal of licensure under this

chapter.

23. Petitioner made good faith efforts to comply with his

continuing education requirements.

24. Although the Respondent ' s authority to grant or deny

reinstatement due to " illness or unusual hardship " is

discretionary, that discretion cannot be exercised in an

arbitrary fashion.

2 5. An agency ' s action will be deemed arbitrary if "' it is

not supported by logic or the necessa ry facts, ' [or] if it is

adopted without thought or reason or is irrational . '" Hadi v.

Liberty Behavioral Health Corp ., 927 So. 2d 34, 38 - 39 (Fla. 1st

DCA 2006); see also B d. of Clinical Lab . Pers . v. Fl a. Ass ' n of

Blood Banks , 721 So. 2d 317, 318 (Fla. 1st DCA 1998)( " An

' arbitrary ' decision is one not supported by facts or logic. " );

Dravo Basic Materials Co . , Inc. v. Dep ' t of Transp . , 602 So. 2d

632, 634 n.3 (Fla. 2d DCA 1992) ( " If an administrative decision

is justifiable under any analysis that a reaso nable person would

use to reach a decision of similar importance, it would seem

that the decision is [not] arbitrary. " ); and Agrico Chemical Co.

v. State Dep ' t of Env tl. Reg . , 365 So. 2d 759, 763 (Fla. 1st DCA

1978) ( " An arbitrary decision is one not supported by facts or

logic, or despotic. " ).

26. During the period in which he became delinquent in his

continuing education credits, Petitioner worked full - time,

served as a primary caregiver for his mother - in - law, and

participated in closing down a rest aurant. It is clear that

Petitioner was busy and consumed by family matters during that

period. That being said, t he license renewal process entails

the payment of modest fees and the taking of 14 continuing

education credits during a two - year period. As reflected by the

evidence, a licensee can earn that continuing education credits

by taking approved courses over the I nternet over a two - year

period . Petitioner lacked six hours of continuing education

credit for the 2004 - 20 06 biennial period. It would have taken

Petitioner less than a day to complete his continuing education

requirements for th at period .

27. T hat Petitioner himself was not ill during the period

at issue, that he worked full - time during that period, and tha t

the licensure renewal requirements can be met with relative ease

are facts that preclude the undersigned from concluding that

Respondent ' s denial of Petitioner ' s application for

reinstateme nt was an arbitrary exercise of its discretion. It

is within Res pondent 's sound discretion whether to grant or deny

Petitioner 's application for reinstatement.

2 8 . There was insufficient evidence to establish that the

staff of the Department of Business and Professional

Regulation ' s Bureau of Education and Testing act ed in an

arbitrary manner by not applying credits earned subsequent to

the expiration of the 2004 - 2006 biennial period retroactively to

the 2004 - 2006 biennial period so as to cure the deficiency in

continuing education credits for that period .

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby RECOMMENDED that the Construction Industry

Licensing Board enter a final order denying Petitioner 's

application for reinstatement of his certified general

contra ctor's license based on the hardship provision set forth

in section 455.271(6)(b).

DONE AND ENTERED this 22nd day of August , 2011, in

Tallahassee, Leon County, Florida.

S

CLAUDE B. ARRINGTON

Administrative Law Judge

Divis ion of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 2nd day of August , 2011.

ENDNOTES

1 All statutory references are to Florida Statutes (2011).

2 Florida Administrative Code Rule 61 - 6.001 pertains to license

renewal for licensees, including certified general contractors.

This rule was not cited by either party. Subsection (3) of the

rule is as follows: " Biennial period shall mean a period of

ti me consisting of two 12 month years [sic]. The first biennial

period for the purposes of each board shall commence and

continue on the dates specified in the department plan as set

forth for each respective profession. " Thereafter, the date

listed for ce rtified general contractors was August 31 of each

even year.

3 Neither party cited Florida Administrative Code Rule 61G - 4 -

18.001(2). That rule pertains to the continuing education

requirements for general contractors, but it does not list the

category of " general. " The rule is as follows:

(2) All registered cont ractors and

certified contractors are required to

complete fourteen (14) hours of continuing

education each renewal cycle. Of the

fourteen (14) hours, one (1) hour shall be

required in each of the following topics:

(a) Specialized or advanced module course

approved by the Florida Building Commission,

or the Board;

(b) Workplace safety;

(c) Business practices;

(d) Workers ' compensation;

(e) Laws and rules regulating the

construction industry ;

(f) Wind mitigation methodologies, if

license is hel d in the following category:

General, Building, Residential, Roofing,

Speciality Structure, or Glass and Glazing.

4 Section 455.271(6)(a) provides as follows:

(6)(a) A delinquent status licensee must

affirmatively apply with a complete

application, a s defined by rule of the

board, or the department if there is no

board, for active or inactive status during

the licensure cycle in which a licensee

becomes delinquent. Failure by a delinquent

status licensee to become active or inactive

before the expira tion of the current

licensure cycle shall render the license

void without any further action by the board

or the department.

5 This finding is based on Petitioner ' s testimony. No written

communication from Respondent to Petitioner as to the status of

hi s licensure was introduced as an exhibit. Likewise, no

written communication from Petitioner to Respondent inquiring as

to the status of his licensure was introduced as an exhibit.

6 Ms. Wynn testified on cross - examination as follows beginning

on Page 4 9, line 20, of the Transcript:

Q. . . . If a contractor takes continuing

education credit - if a contractor is

deficient in continuing education credits

during a certain renewal cycle and he takes

them subsequent to that renewal cycle so

that he can reinstate the license, do the

excess credits apply to the retroactive

cycle, to the prior cycle in which the

deficiency occurred?

A. Generally they do not unless the staff

[of the Department of Business and

Professional Regulation's Bureau of

Education an d Testing] manually post - dates

the CEs.

Q. So in this situation these September -

at least the September 29th, 2008 credits

would have had to have been manually post -

dated to apply to his 2004 - 2006 period.

A. Correct.

Ms. Wynn was not asked why credits earned subsequent to the

expiration of the 2004 - 2006 biennial period were not applied

retroactively so as to cure the deficiency.

COPIES FURNISHED :

Layne Smith, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 N orth Monroe Street

Tallahassee, Florida 32399 - 0792

G. W. Harrell, Executive Director

Division of Professions

Construction Industry

Licensing Board

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahass ee, Florida 32399 - 0792

Daniel R. Biggins, Esquire

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

Diane S. Perera, Esquire

Law Offices of Diane S. Perera, P.A.

14540 Southwest 136th Street, Suite 208

Miami, Florida 33186

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.