11-004156PL Department Of Business And Professional Regulation, Construction Industry Licensing Board vs. Andres R. Villarreal Status: Closed Recommended Order on Monday, December 19, 2011.

Summary: Guilty plea to accepting unlawful compensation relates to the ability to practice contracting, in violation of s.489.129(1)(b); recommend 1 -year suspension, probation and fine. Failure to report guilty plea to licensing board warrants reprimand and fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

CONSTRUCTION INDUSTRY LICENSING )

BOARD, )

)

Petitioner, )

)

vs. ) Case No. 11 - 4156 PL

)

ANDRES R. VILLARREAL, )

)

Respondent . )

_________________________________)

RECOMMENDED O RDER

Pursuant to notice, a final hearing was held in this case

before Edward T. Bauer, an Administrative Law Judge of the

Division of Admini str ative Hearings, on November 4 , 2011 , by

video teleconference a t sites in Tallahassee and Miami , Florida.

APPEA RANCES

For Pet itioner: Kyle Christopher , Esquire

Pooja S. Patel, Esquire

Department of Business and

Professional Regulation

1900 North Monroe Street, Suite 42

Tallahassee, Florida 32399 - 2202

For Respondent: Diane S. Perera, Esquire

Adam D. Sherman, Esquire

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

Miami, Florida 33186

STATEMENT OF THE ISSUE S

The issues in this case are whether Respondent committ ed

the allegations cont ained in the Administrative Complaint , and

if so, the penalty that should be imposed.

PRELIMINARY STATEMENT

On July 8, 2011, Petitioner, Department Business and

Professional Regulation, Construction Industry Licensing Board,

filed a three - count Administra tive Complaint ("Complaint")

agai nst Respondent, Andres R. Villarreal . Specificall y,

Petitioner alleges in Count One of the Complaint that Respondent

entered a plea to a crime that directly relates to the practice

of contracting or to the ability to pract ice contracting, in

violation of section 489.129(1)(b), Florida Statutes. In Count

Two of the Comp laint, Petitioner contends that Respondent is

guilty of entering a plea to a crime that relates to the

practice of his profession or to the ability to practi ce his

profession, contrary to section 455.227(1)(c), Florida Statutes.

Finally, in Count Three , Petitioner asserts that Respondent is

in violation of section 455.227(1)(t) , Florida Statutes , by

failing to timely report his plea to the Construction Indust ry

Licensing Board.

Respondent timely requested a formal hearing to contest the

allegations, a nd, on August 16 , 201 1 , the matter was referred to

the Division of A dministrative Hearings ("DOAH") and assigned to

Administrative Law Judge John G . Van Laningh am. On November 3,

2011, Judge Van Laningham transferred the instant matter to the

undersigned.

As noted above, the final hearing in this matter was held

on November 4, 2011, during which Petitioner introduced 10

exhibits, numbered 1 - 2 and 7 - 14 . Res pondent testified on his

own behalf and introduced 14 exhibits, labeled A through N.

Following the final hearing, Respondent filed the deposition

transcript of Jak Wadl e y (Respondent's probation officer), which

has been accepted ÏÏ in accordance with an ord er previously issued

by Judge Van Laningham ÏÏ in lieu of Mr. Wadl e y's personal

appearance at the final hearing.

The final hearing Transcript was f iled with DOAH o n

November 29 , 2011 . Both parties timely submitted proposed

recommended orders, which have been considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

A. The Parties

1 . Petitioner, the Department of Business and Professional

Regulation, Construction Industry Licensing Board, is the agency

charged with the responsib ility for, among other things, the

licensure of individuals who wish to engage in contracting in

the State of Florida, as well as the investigation and

prosecution of complaints against individuals who have been so

licensed.

2. Since 1992 and a t all ti mes material to this

proceeding, Respondent has been licensed in the State of Florida

as a certified general contractor, having been issued license

number CGC 55103.

3. In November 2003, Respondent chose not to contest an

allegation that he assisted an u nlicensed person in the

prohibited uncertified and unregistered practice of contracting,

in violation of section 489.129(1)(d), Florida Statutes. As a

penalty, Respondent was assessed an administrative fine in the

amount of $ 585.29. Petitioner has presen ted no other evidence

of disciplinary history against Respondent's general

contractor's license.

B. Instant Allegations

4 . In an information filed on or about April 8, 2008, the

State Attorney for the Eleventh Judicial Circuit of Florida

charged Resp ondent with fourteen criminal offenses, all but two

of which were later dismissed.

5 . Counts Three and Four of the charging document, to

which Respondent ultimately pleaded guilty, all eged that

Respondent had violated section 838.016(1), Florida Statut es, a

second degree felony, by accepting unlawful compensation or

reward for official behavior. Specifically, the information

alleged, in pertinent part:

Count 3

ANDRES VILLARREAL , begin ning on or about

JANUARY 1 , 2003 [,] and continuing through

DECEMBER 31, 2005, in the County and State

aforesaid, being a public servant, to wit:

CHIEF BUILDING CODE COMPLIANCE OFFICER FOR

THE CITY OF MIAMI BEACH, did unlawfully,

feloniously, and corruptly request, solicit,

accept, or ag ree to accept from Michael

S tern any pecuniary or other benefit not

a uthorized by law, to wit: CHECKS and/or

CASH, GOOD AND LAWFUL CURRENCY OF THE UNITED

STATES OF AMERICA FOR PURCHASE OF A

WAREHOUSE , for the past, present, or future

performance, non - performance, or violation

of any act or om ission which said public

servant represented as being within the

official discretion of a public servant, in

violation of a public duty and/or in

performance of a public duty, to wit:

EXPEDITING THE APPROV AL OF PLANS BY THE CITY

OF MIAMI BEACH BUILDING DEP ARTMENT , in

violation of s. 838.016(1), Florida

Statutes , contrary to the form of the

Statute in such cases made and provided, and

against the peace and dignity of the State

of Florida . . . .

* * *

Count 4

ANDRES VILLARREAL, on or about SEPTEMBER 20,

2 003, in the County and State aforesaid,

being a public servant, to wit: CHIEF

BUILDING CODE COMPLIANCE OFFICER FOR THE

CITY OF MIAMI BEACH, did unlawfully,

feloniously, and corruptly request, solicit,

accept, or agree to accept from Michael

Stern any pecun iary or other benefit not

authorized by law, to wit: CHECK NO. 08919

PAYABLE TO TRITON INVESTMENT IN THE SUM OF

THIRTY THOUSAND DOLLARS ($30,000.00), for

the past, present, or future performance,

non - performance, or violation of any act or

omission which said public servant

represented as being within the official

discretion of a public servant, in violation

of a public duty and/or in performance of a

public duty, to wit: EXPEDITING THE APPROVAL

OF PLANS BY THE CITY OF MIAMI BEACH BUILDING

DEPARMENT, in vi olation of s. 838 .016(1)

Florida Statutes, contrary to the form of

the Statute in such cases made and provided,

and against the peace and dignity of the

State of Florida. . . .

6 . Although Respondent pleaded guilty to the foregoing

charges on Feb ruary 11, 2010, 1 / the court deferred sentencing to

a later date and permitted Respondent to remain at liberty. 2 /

Subsequently, on March 17, 2010, Respondent was adjudicated

guilty on both charges and sentenced to concurrent, three - year

terms of probation. In addition, as special conditions of

probation, Respondent was ordered to serve nine months in the

Dade County Jail ÏÏ which commenced on the date of sentencing ÏÏ in

connection with Count Three , followed by a consecutive term of

nine months i ncarceration f or Count Four . Finally, Respondent

was directed to pay $583 in court costs, $1,000 for the cost of

prosecution, and $5 , 000 to the Florida Department of Law

Enforcement for the cost of investigation.

7 . At the time of his plea to the criminal charges ,

R espondent held ÏÏ in addition to his general contractor's

license, which is the subject of this proceeding ÏÏ a licens e as a

bui lding inspector issued by the Department of Business and

Professional Regulation, Florida Building Code Administrators

and Inspector s Board ("Inspectors Board").

8 . Although the Inspectors Board and several employees of

the Department of Business and Professional Regulation ÏÏ i.e.,

Ms. Elizabeth Henderson and Ms. Karen Shivers, who served,

respectively, as an attorney and an adminis trative assistant

with the Inspectors Board ÏÏ were aware of the criminal case and

timely learned of Respondent 's plea to the charges, it is

undisputed that Respondent did not notify the Construction

Industry Licensing Board in writing within 30 days of the plea .

Significantly, while the Inspectors Board and Construction

Industry Licensing Board are both part of the Department of

Business and Professional Regulation, each constitutes a

separate and distinct entity.

9 . In June 2011, following an early relea se from the

incarcerative portion of his sentence, Respon dent began to

report on a monthly basis to Mr. Jak Wadley, a probation officer

with the Florida Department of Corrections. To date, Respondent

has fully complied with all general and special conditi ons of

his probation.

CONCLUSIONS OF LAW

A. Jurisdiction

10 . The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant to section 120.57(1), Florida Statutes .

B. The Burden and Standard of Proof

11 . This is a disciplinary proceeding in which Petitioner

seeks to discipline Respondent's professional license .

Accordingly, Petitioner m ust prove the allegations contained in

Administrative Complaint by clear and convincing evidence.

Dep't o f Banking & Fin., Div. of Secs. & Investor Prot. v.

Osborne Sterne, Inc. , 670 So. 2d 932, 935 (Fla. 1996); Ferris v.

Turlington , 510 So. 2d 292 , 294 (Fla. 1987).

12 . Clear and convincing evidence:

[R]e quires that the evidence must be found

to be credibl e; the facts to which the

witnesses testify must be distinctly

remembered; the testimony must be precise

and lacking in confusion as to the facts in

issue. The evidence must be of such a

weight that it produces in the mind of the

trier of fact a firm beli ef 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) .

C. Petitioner's Authority to Impose Discipline;

The Charges Against Respondent

13 . S ection 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.

14 . In Counts One, Two, and Three of the C omplaint,

Petitioner alleges, respectively, that Respondent has violated

the following statutory provisions: section 489.129(1)(b),

section 455.227(1)(c), and section 455.227(1)(t). These

provisions, each of which is discussed separately below, must be

s trictly construed in favor of Respondent. See , e.g. , Jonas v.

Fla. Dep't of Bus. & Prof'l Reg. , 746 So. 2d 1261, 1262 (Fla. 3d

DCA 2000)("[S]tatutes such as those at issue authorizing the

imposition of discipline upon licensed contractors are in the

natur e of penal statutes, which should be strictly construed ." ).

D. Count One : Section 489.129(1)(b )

15 . As noted above, Petitioner a lleges in Count One of the

Complaint that Responde nt violated section 489.129(1)(b), which

authorizes discipline for:

Be ing convicted or found guilty of, or

entering a plea of nolo contendere to,

regardless of adjudication, a crime in any

jurisdiction which directly relates to the

practice of contracting or the ability to

practice contracting.

16 . Respondent has demonstr ated by clear and convincing

evidence that Petitioner pleaded guilty to, and was subsequently

convicted of, two felony counts of accepting compensation for

official behavior. The pivotal issue , therefore, is whether the

crime s to which Pet itioner pleaded guilty directly relate to the

practice of contracting or to the ability to practice

contracting.

17 . To resolve these question s, it is not necessary to

evaluate Respondent's "technical a bility" to practice

contracting , nor must Petitioner necessarily d emonstrate that

Respondent's criminal acts are referenced in the stat utory

definition of contractor. See Doll v. Dep't of Health , 969 So.

2d 1103 (Fla. 1st DCA 2007). In Doll , the court held:

Several cases demonstrate that, although the

statutory defini tion of a particular

profession does not specifically refer to

acts involved in the crime committed, the

crime may nevertheless relate to the

profession . In Greenwald v. Department of

Professional Regulation , the court affirmed

the revocation of a medical doctor's license

after the doctor was convicted of

solicitation to commit first - degree murder.

501 So. 2d 740 (Fla. 3d DCA 1987) . The

Fifth District Court of Appeal has held that

although an accountant's fraudulent acts

involving gambling did not relate to his

technical ability to practice public

accounting, the acts did justify revocati on

of the accountant's license for being

convicted of a crime that directly relates

to the practice of public accounting. Ashe

v. Dep't of Prof'l Regulation, Bd. of

Accountancy , 467 So. 2d 814 (Fla. 5th DCA

1985). We held in Rush v. Department of

Profess ional Regulation, Board of Podiatry ,

that a conviction for conspiracy to import

marijuana is directly related to the

practice or ability to practice podiatry.

448 So. 2d 26 (Fla. 1st DCA 1984) . These

cases demonstrate, in our view, that

appellee did not err by concluding Doll's

conviction was "related to" the practice of

chiropractic medic ine or the ability to

practice chiropractic medicine. We therefore

affirm appellee's actions finding appellant

in violation of section 456.072(1)(c) and

revoking appellant's license.

969 So. 2d at 1006 (e mphasis added); Dep't of Bus. & Prof'l

Reg., Constr. Industry Licensing Bd. v. Nowell , Case No. 08 -

4836 , 2009 Fla. Div. Adm. Hear. LEXIS 463 (Fla. DOAH Jan. 27,

2009)(citing Doll and concluding that p lea to mail fraud

directly related to the practice of contracting or the ability

to practice contracting).

18 . Beginning with the question of whether the convictions

directly relate to Respondent's ability to practice contracting,

the foregoing authority instructs that Petitioner need not prove

that the crimes demonstrate a lack of technical p roficiency on

Respondent's part. That begs the question, however : to what

does "ability" refer in this context if not Respondent's skill

as a contractor?

19 . Th e undersigned concludes that one answer is found in

section 489.111, Florida Statutes, which enumerates the

necessary qualificatio ns for a contractor's licensure :

(2) A person shall be eligible for

licensure by examination if the person:

(a) Is 18 years of age;

(b) Is of good moral character ; and

(c) Meets eligibility requirements

according to one of the following criteria:

1. Has received a baccalaureate degree . .

. .

2. Has a total of at least 4 years active

experience as a worker . . . .

* * *

(3)(a) The board may refuse to certify an

applicant for failure to satisfy the

requirement of good moral character only if:

1. There is a substantial connection

between the lack of a good moral character

of the applicant and the professional

respon sibilities of a certified contractor ;

and

2. The finding by the board of lack of good

moral character is supported by clear and

convincing evidence.

(e mphasis added).

20 . As the foregoing language reveals , an individual is

ineligible ÏÏ i.e., lacks the ability ÏÏ to engage in the practice

of c ontracting where there is a absence of good moral character

that bears a substantial connection to the professional

responsib ilities of a contractor.

21 . In this case, the undersigned is persuaded , by clear

a nd convincing evidence, that Respondent lacks good moral

character by virtue of his felony convictions for accepting

unlawful compensation ÏÏ $30,000 in one of the counts ÏÏ in exchange

for expediting the approval of building pl ans. Such dishonest

and corrupt 3 / acts ÏÏ which occurred in a profession al context and

demonstrate Respondent 's susceptibility to the allure of easy

and ill - gotten remuneration ÏÏ bear a substantial connection to

the duties of a professional contractor, which are defined as

follows:

( 3) "Co ntractor" means the person who is

qualified for, and is only responsible for,

the project contracted for and means, except

as exempt ed in this part, the person who,

for compensation , undertakes to, submits a

bid to, or does himself or herself or by

others construct, repair, alter, remodel,

add to, demolish, subtract from, or improve

any building or structure, including related

improvements to real estate, for others or

for resale to others . . . .

(a) "General contractor" means a contractor

whose services are unlimited as to the type

of work which he or she may do, who may

contract for any activity requiring

licensure under this part, and who may

perform any work requ iring licensure under

this part. . . .

§ 489.105 (3) , Fla. Stat. (e mphasis added); Alfonso v. Dep't of

Bus. & Prof'l Reg., Constr. Industry Licensing Bd. , Case No. 05 -

4711, 2006 Fla. Div. Adm. Hear. LEXIS 358 (Fla. DOAH July 26,

2006)(noting that a licensed contractor "may typically collec t

funds from his client an d disburse them to vendors . . . .

Contractors could also have access and/or keys to houses of

persons from whom they are working. These responsibilities

require the contractor to act prudently and reasonably.").

22 . For the se reasons, Respondent's convictions directly

relate to his ability to pract ice contracting and he is

therefore in violation of section 489.129(1)(b), as charged in

Count I of the Complaint. In light of this conclusion, it is

unnecessary to d etermine if t he criminal offenses directly

relate to the "practice of contracting."

E. Count Two : Section 455.227(1)(c)

23 . Next, Petitioner contends ÏÏ as an overlapping

allegation ÏÏ that Respondent is in violation of section

455.227(1)(c), which provides that an i ndividual holding an

occupational license issued by the Department of Business and

Professional Regulation is subject to discipline for:

Being convicted or found guilty of, or

entering a plea of guilty or nolo contendere

to, regardless of adjudication, a crime in

any jurisdiction which relates to the

practice of, or the ability to practice, a

licensee's profession .

(e mphasis added).

24 . As the undersigned has already found a violation of

section 489.129(1)(b), which applies specifically to contrac tors

and mirrors the lang uage of section 455.227(1)(c) , to return a

finding of guilt in connection with Count Two would

impermissibly subject Respondent to multiple administrative

punishments for the same misconduct. See Dep't of Health, Bd.

of Physical T herapy Practice v. Cueto , Case No. 11 - 1271 (Fla.

DOAH July 19 , 2011).

25 . In Cueto , a licensed physical therapist's plea to the

offense of grand theft culminated in the filing of an

administrative complaint that charged her with violating section

486.1 25(1)(c) ÏÏ a provision that authorizes discipline where a

plea of guilty or nolo contendere is entered to a crime that

"directly relates to the practice of physical therapy" ÏÏ and

section 456.073(1)(c), which permits discipline where a licensed

health care p rovider (e.g., physician, chiropractor, nurse,

etc.) enters a plea of guilty or nolo contendere "to a crime

relating to the practice of the licensee's profession."

Although the Administrative Law Judge ("ALJ") found that the

licensee's criminal plea const ituted a violation of section

486.125(1)(c), the statutory provision specific to physical

therapists, the ALJ declined to return a finding of guilt with

respect to section 456.073(1)(c) , the general statute :

Additionally, or in the alternative, the

Departm ent charged Cueto under section

486.125(1)(k)(violating any provision of

chapter 486 or chapter 456 subjects licensee

to punishment), alleging that her no contest

plea was disciplinable pursuant to section

456.073(1)(c), which makes it an offense to

enter a plea of guilty or nolo contendere to

a crime relating to the practice of the

licensee's profession. The undersigned need

not decide in this case whether it is

legally permissible to charge a physical

therapist under section 456.073(1)(c) ÏÏ a

general stat ute which applies without

apparent limitation to all licensed health

care providers ÏÏ as an alternative to

charging the therapist under section

486.125(1)(c), which is a specific statute

applicable only to licensed physical

therapists. See B.D.M. Fin. Corp . v. Dep't

of Bus. & Prof'l Reg. , 698 So. 2d 1359, 1362

(Fla. 1st DCA 1997)(agency erred in revoking

registration under statute generally

authorizing "affirmative action" to enforce

law because another statute having more

rigorous criteria specifically add ressed

revocations) . . . . The outcome here

happens to be the same under either section.

At any rate, moreover, Cueto's criminal

conviction constitutes but a single

disciplinable "act" for which she cannot

fairly receive multiple administrative

punishmen ts. Cf. Syder v. State , 921 So. 2d

871, 873 (Fla. 4th DCA 2006)(Double Jeopardy

Clause prohibits the government from

securing multiple criminal convictions based

on same conduct).

Id. (e mphasis added); Dep't of Prof'l Reg. v. Peebles , Case No.

90 - 0224, 1 990 Fla. Div. Adm. Hear. LEXIS 6410 (Fla. DOAH July 9,

1990)("Penalties for the other alleged violations need not be

addressed as the Respondent should not receive multiple

punishments under different subsections . . . for the same

misconduct"); see also D ep't of Bus. & Prof'l Reg., Bd. of

Veterinary Med. v. Aleong , Case No. 07 - 2415, 2008 Fla. Div. Adm.

Hear. LEXIS 32 (Fla. DOAH Jan. 23, 2008)(concluding that the

"overlapping of statutory or rule prohibitions is not

permissible.").

26 . Persuaded by Cueto' s reasoning, the undersigned

concludes that it is unnecessary ÏÏ and inappropriate ÏÏ to find

Respondent in violation of section 455.227(1)(c).

F. Count Three: Section 455.227(1)(t)

27 . Finally, in Count Three of the Administrative

Complaint, Petitio ner alleges that Respondent violated section

455.227(1)(t), which provides, in relevant part, that a licensee

is subject to discipline for:

Failing to report in writing to the board

[i.e., the Construction Industry Licensing

Board] or, if there is no board, t o the

department within 30 days after the licensee

is convicted or found guilty of, or entered

a plea of nolo contendere or guilty to ,

regardless of adjudication, a crime in any

jurisdiction.

(e mphasis added).

28 . While it is undisputed that Respondent failed to

notify the Construction Industry Licensing Board in writing

within 30 days of his February 11, 2010, guilty plea (or

subsequent conviction on March 17, 2010 ), he nevertheless

contends that no violation of section 455.227(1)(t) has occurred

becau se: 1) he was incarcerated and therefore unable to make a

written report; and 2) employees of the Department of Business

and Professional Regulation were aware of the charges.

29 . Respondent's first argument is rejected, as section

455.227 (1)(t) conta ins no exceptions to the reporting

requirement. In any event, Respondent 's contention is

unavailing in light of the fact tha t he remained out on bond for

over 30 d ays following the entry of his guilty plea on

February 11, 2010 (which triggered his statut ory obligation to

report), during which time he could have easily complied with

section 455.227(1)(t) .

30 . Tur n ing to Respondent's second argument, it is true

that two employees of the Department of Business and

Professional Regulation were timely made aware of his criminal

charges. Significantly, however, those employees did not serve

the Construction Industry Licensing Board, but rather, the

Florida Building Code Administrators and Inspectors Board ÏÏ a

separate and distinct entity within the Department of Business

and Professional Regulation. As the plain language of section

455.227(1)(t) obligated Respondent to make a written report to

" the board" (the Construction Industry Licensing Board, for the

purposes of this proceeding), as opposed to some othe r

professional board or to the Department of Business and

Regulation generally, Respondent's guilt has been demonstrated

by clear and convincing evidence.

G . Penalty

31 . To determine the appropriate punitive action to

recommend in this case, it is ne cessary to consult the "normal

penalty ranges" enumerated in Florida Administrative Code Rule

61G4 - 17.001. See Parrot Heads, Inc. v. Dep't of Bus. & Prof'l

Reg. , 741 So. 2d 1231 , 1233 - 34 (Fla. 5th DCA 1999).

32 . Beginning with Count One , Respo ndent's violation of

section 489.129(1)(b) , the guidelines provide the following

penalty range:

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

suspension.

Maximu m: $10,000 fine[ 4 / ] and revocation.

Fla. Admin. Code R. 61G4 - 17.001(1)(b).

33 . Various aggr avating and mitigating factors are

enumerated in Florida Administrative Code Rule 61G4 - 17.002 ,

which include, but are not limited to, the following :

(1) Monetary or other damage to the

licensee's customer . . . .

(2) Actual job - site violations of build ing

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 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.

34 . In its Proposed Recommende d Order, Petitioner argues

for the revocation of Respondent's general contractor's l icen se

and the imposition of the maximum fine Ï Ï the harshest possible

penalty ÏÏ based upon Respondent's prior disciplinary history (a

single violation in 2003 that resulted only in a fine ) and

"other aggravating factors," which include:

[T]he serious nature of the criminal

offense, the duration of the c riminal

activity, and Respondent's lack of

compliance with the order of the [ Florida

Building Code Administrators and Inspectors

Board] . . . .

(Pet. PRO at 26 - 27).

35. Wh ile Responde nt's prior instance of discipline

constitutes a valid aggravating cir cumstance, the undersigned is

not persuaded that the "nature" of the criminal offense in this

case is meaningfully worse than myriad other illegal acts that

relate to the practice of contracting or a licensee's ability to

practice contracting. Indeed, i n the undersigned's judgment ,

Respondent's behavior ÏÏ accepting unlawful compensation from a

willing accomplice to expedite the approval of building plans ÏÏ

is , for example, less egregious in the licensure context than a

contractor who steals funds from an inn ocent homeowner and

causes tangible financial harm. According ly, the nature and

duration of Respondent's offense will not be treated as

aggravating factors that warrant revocation .

36. With respect to the argumen t the penalty should be

maximized bas ed upon Respondent's concession during the final

hearing that he has yet to pay the fine imposed in the case

involving his building inspector's license (which has been

revoked), Petitioner ignores the fact t hat the unpaid fine is

unrelated to Respondent's general contractor's license, which is

regulated by a separate professional board. Further, even

assuming that non - compliance with an order of a different

professional board could be properly considered, there is no

evidence that Respondent's non - payment of the fine is willful.

On the contrary, Respondent credibly testified that he intends

to pay the fine and that his attorney is attempting to establish

a repayment plan with the state.

37. T he lone a ggravating factor in the case ÏÏ the sing le

instance of prior discipline ÏÏ and the nature of Respondent's

misconduct must be weighed against two appli cable mitigating

circumstances. First, Respondent has been licensed as a gene ral

contractor for nearly 20 years , which c onstitutes a significant

mitigator . F urther , in light of Respondent 's credible testimony

that he presently earns a living as a general contractor,

revocation of his license wo uld destroy his livelihood.

38. Had Respondent's felonious behavior occurred in a

setting in which he directly ut ilized his general contractor's

license (e.g., stealing property from a customer's residence

while on the job or misappropriating funds intended for the

payment of subcontractors), the undersigned would not hesitate

to recommend the revocation of Responden t's license. Under the

facts presented, however, it is concluded that Respondent is

am enable to rehabilitation and will be able to practice

contracting in the future without presenting a danger to the

public.

39. Acco rdingly, with respect to Count One , the

undersigned recommends a 12 - month suspension of Respondent's

license, to be followed by a two - year term of proba tion, and the

imposition of a $4 ,000 fine. It is further recommended that the

Construction Industry Licensing Board impose whatever

proba tionary conditions it deems appropriate.

40 . Turning to Count Three, Respondent's violation of

section 455.227(1)(t) for the failure to timely report his

guilty plea , Petitioner argues for the revo cation of

Respondent's license and the imposition of a $5 ,000 fine.

41. As the penalty guidelines provide no recommended

penalty for a violation of section 455.227(1)(t), it is helpful

to examine the punishment ranges established by other

professions regulated by the Department of Business and

Professiona l Regulation, which typically provide that a first

offense should be penalized by a reprimand and/or a fine. 5 / See

Fla. Admin. Code R. 61G 1 5 - 19.004 (2)(m)(board of prof essional

engineers; providing guideline punishment of reprimand up to a

$5 , 000 fine for a first violation of section 455.227(1)(t));

Fla. Admin. Code R. 61H1 - 36.004(2)(aa)(board of accountancy;

establishing reprimand as recommended penalty for first

violation of section 455.227(1)(t)); Fla. Admin. Code R. 61J1 -

8.002(3)(ii)(real estate apprais al board; establishing reprimand

and administrative fine of $1,000 for first violation of section

455.227(1)(t)); see also Fla. Admin. Code R. 61G1 - 12.005(3)(d)

(board of architecture and interior design; providing that a

violation of section 455.227(1)(t) may be resolved by the

issuance of a citation and the imposition of a $250 fine).

42. Informed by the guidelines established by other

professional boards for violations of section 455.227(1)(t), the

undersigned concludes that an appropriate penalty und er the

circumstances of this case is the issuance of a repriman d and

the imposition of a $1 , 000 fine.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

Construction I ndustry Licensing Board :

1. Finding that Respondent violated s ection 489.129(1)(b ) ,

Florida Statutes, as charged in Count One of the Complaint ;

suspending Respondent's general contrac tor's license for a

period of 12 months, followed by a two - year term of probation

with any conditions deemed appropriate by the Board ; and

imposing a fine of $4 ,000.

2. Dismissing Count Two of the Complaint.

3 . Findin g that Respondent violated section 455.227(1)(t ),

Florida Statutes, as charged in Count Three of the Compl aint ;

issuing a reprimand ; and imposing a fine of $1 , 000 .

DONE AND ENTERED this 19 th day of December , 2011 , in

Tallahassee, Leon County, Florida.

S

___________________________________

EDWAR D T. BAUER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallah assee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

D ivision of Administrative Hearings

this 19 th day of December , 2011 .

ENDNOTES

1 / See page one of Petitioner's Exhibit Ten .

2 / Although Petitioner argues that Respondent was sentenced on

February 11, 2010, the date Respondent pleaded guilty, the

exhibits refute this contention. Specifically, page two of

Petitioner's Exhibit Ten , which is part of a three - page court

document dated February 11, 2010, reads, "court c osts deferred

until senten cing." Further , page four of Petitioner's Exhibit

Ten demonstrates that Respondent's fingerprints were not taken

until March 17, 2010, which indicates ÏÏ consistent with

Petitioner's Exhibit 11, the Order of Probation ÏÏ that sentencing

did not oc cur on the d ate of the guilty plea .

3 / The crime to which Respondent pleaded guilty, accepting

unlawful compensation for official behavior, requires proof that

the public servant acted "corruptly." § 838.016(1), Fla. Stat.

In turn, section 838.014(4), Florida Statutes, defines

"corruptly" as "acting knowingly and dishonestly for a wrongful

purpose."

4 / To the extent that rule 61G4 - 17.001(1)(b) authorizes a

maximum fine of $10,000 , it is in conflict with section

455.227(2)(d), Florida Statutes, which pr ovides for the

imposition of an administrative fine "not to exceed $5,000 for

each count or separate offense." Petitioner stipulates, and the

undersigned agrees, that the statutory provision controls.

5 / The undersigned is aware that in the abse nce of a guideline

penalty for a particular statutory or rule violation, "the

guidelines penalty for the offense most closely resembling the

omitted violation shall apply." See Fla. Admin. Code R. 61G4 -

17.001(6). It is determined, however, after a carefu l review of

the entire disciplinary guidelines, that none of the violations

enumerated in rule 61G4 - 17.001 bear even a remote resemblance to

section 455.227(1)(t), and as such, it would be fundamentally

unfair to Respondent for the undersigned to choose on e

arbitrarily. For that reason, the penalty guidelines

established by other professional boards were consulted in the

formulation of an appropriate penalty for Count Three.

COPIES FURNISHED :

Kyle Christopher, Esquire

Pooja S. Patel, Esqui re

Department of Business and

Professional Regulation

1900 North Monroe Street, Suite 42

Tallahassee, Florida 32399 - 2202

Diane S. Perera, Esquire

Adam D. Sherman, Esquire

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

Miami, Florida 33186

G. W. Harrell, Execut ive Director

Construction Industry Licensing Board

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399

Layne Smith, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399

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.