18-003505PL Department Of Businees And Professional Regulation, Construction Industry Licensing Board vs. Christopher Michael Walk Status: Closed Recommended Order on Thursday, October 18, 2018.

Summary: Possession of child pornography related to the practice of contracting and contractor's conviction for that crime and his failure to report his guilty plea to the Board within 30 days warranted revocation of licensure.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINEES AND

PROFESSIONAL REGULATION,

CONSTRUCTION INDUSTRY LICENSING

BOARD,

Petitioner,

vs. C ase No. 18 - 3505PL

CHRISTOPHER MICHAEL WALK,

Respondent.

_______________________________/

RECOMMENDED ORDER

On September 4, 2018, a duly - noticed hearing was held by

video teleconference hearing at locations in West Palm Beach and

Tallahassee, Florida, before F. Scott Boyd, an Administrative Law

Judge assigned by the Divis ion of Administrative Hearings.

APPEARANCES

For Petitioner: James David Burkhart, Esquire

Ian Brown, Esquire

Department of Business and

Professional Regulation

Capital Commerce Center

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

For Respondent: Kevin Michael Griffith, Esquire

766 Hudson Avenue, Suite B

Sarasota, Florida 34236

STATEMENT OF THE ISSUE S

The is sues in this case are whether Respondent was

adjudicated guilty of a crime which directly relates to the

practice of contracting or the ability to practice contracting,

or failed to report his guilty plea to a crime in writing to the

Construction Industry Licensing Board within 30 days, in

violation of sections 489.129(1)(b) and 455.227(1)(t), Florida

Statutes, 1/ as alleged in the Administrative Complaint; and, if

so, what is the appropriate sanction.

PRELIMINARY STATEMENT

On November 26, 2017, the Departme nt of Business and

Professional Regulation (Petitioner or Department) filed an

Administrative Complaint against Christopher Michael Walk

(Respondent or Mr. Walk) on behalf of the Construction Industry

Licensing Board (Board). The complaint charged Mr. Wal k with

having been convicted or found guilty of a crime which directly

relates to the practice of contracting or the ability to practice

contracting and with failing to report in writing to the Board

within 30 days after having entered a plea of guilty to a crime.

Respondent disputed material facts alleged in the complaint and

requested an administrative hearing, which was conducted on

September 4, 2018.

At hearing, Petitioner offered nine exhibits, P - 1 through

P - 9, which were admitted into evidence. Res pondent offered three

exhibits, R - 1 through R - 3, which were admitted, and testified on

his own behalf.

The final hearing T ranscript was filed on September 21,

2018. Both parties timely filed proposed recommended orders,

which were considered in preparatio n of this Recommended Order.

FINDING S OF FACT

1. The Department is the state agency charged with

regulating the practice of contracting pursuant to section 20.165

and chapters 455 and 489, Florida Statutes. The Board is charged

with final agency action w ith respect to contractors pursuant to

chapter 489. The practice of contracting is regulated by the

State of Florida in the interest of the public health, safety ,

and welfare.

2. Mr. Walk is licensed as a c ertified r esidential

c ontractor in the S tate of Florida, having been issued license

number CRC 1327370. He was subject to regulation by the

Department at the time of the actions alleged in the

Administrative Complaint.

3. Mr. Walk ' s license allows him to construct, remodel,

repair, or make improvement s to one - family, two - family, or three -

family residences . Such residential structures may reasonably be

expected to have children residing in them. A state - licensed

residential contractor is trusted by homeowners, allowed into

their homes, and int o contac t with their children.

4. On March 15, 2016, Mr. Walk pled guilty to three counts

of possession, control, or intentionally viewing a sexual

performance by a child in Case Number 2015CF009085AMB in the

Circuit Court of the Fifteenth Judicial Circuit , in an d for Palm

Beach County , Florida .

5. As Mr. Walk testified at hearing, he did n o t know any of

the people in the photographs, he did not take any of the

pictures. He " clicked " on child pornography pictures and dragged

them into his computer file.

6. The crimes to which Mr. Walk pled guilty affect the

public health, safety, and welfare, and directly relate to the

practice of contracting or the ability to practice residential

contracting.

7. Mr. Walk testified that at the time he signed the guilty

plea, he had not seen his son in six months, his attorney at the

time did n o t explain much to him, and the details of the plea

agreement were still being worked out. He testified that his

main goal was to go home to be with his son.

8. Mr. Walk testified that later, through discussions with

his wife and a new attorney, he considered withdrawing his guilty

plea, but ultimately he did not do so.

9. On or about November 18, 2016, Mr. Walk was adjudicated

guilty of three counts of possession, control, or intent ionally

viewing a sexual performance by a child in the Circuit Court of

the Fifteenth Judicial Circuit, in and for Palm Beach County,

Florida.

10. On or about December 19, 2016, Mr. Walk reported his

guilty plea to three counts of possession, control, or

intentionally viewing a sexual performance by a child to

Petitioner via a Criminal Self - Reporting Document.

11. On or about December 27, 2016, Petitioner received

Mr. Walk ' s Criminal Self­Reporting Document.

12. An Order of Sex Offender Probation was iss ued against

Mr. Walk in the Circuit Court of the Fifteenth Judicial Circuit,

in and for Palm Beach County, Florida, on or about February 3,

2017. Mr. Walk was required to register as a sex offender.

13. As a result of Mr. Walk ' s conviction, he served

18 months in state prison. He is currently serving ten years of

sex offender probation and attending sex offender therapy once a

week. He must wear a GPS monitor at all times, must keep a log

whenever he drives a vehicle, and must pay $23,226.50 for his

sup ervision and other financial obligations.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has jurisdiction

over the parties and the subject matter of this proceeding

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

(2018).

15. A proceeding to suspend, revoke, or impose other

discipline upon a professional license is penal in nature. State

ex rel. Vining v. Fla. Real Estate Comm ' n , 281 So. 2d 487, 491

(Fla. 1973). Petitioner must therefore prove the charges against

Respondent b y clear and convincing evidence. Fox v. Dep ' t of

Health , 994 So. 2d 416, 418 (Fla. 1st DCA 2008)(citing Dep ' t

of Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932

(Fla. 1996)).

16. The clear and convincing standard of proof has been

described by the Florida Supreme Court:

Clear 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 testimony must be

precise and explicit and the witnesses must be

lacki ng 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 a

firm belief or conviction, without hesitancy,

as to the truth of the allegations sought to

be established.

In re Davey , 64 5 So. 2d 398, 404 (Fla. 1994)(quoting Slomowitz v.

Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).

17. D isciplinary statutes and rules " must always be

construed strictly in favor of the one against whom the penalty

would be imposed and are never to be extended by construction. "

Griffis v. Fish & Wildlife Conserv. Comm ' n , 57 So. 3d 929, 931

(Fla. 1st DCA 2011); Munch v. Dep ' t of Prof ' l Reg., Div. of Real

Estate , 592 So. 2d 1136 (Fla. 1st DCA 1992).

Count I

18. Petitioner charged Respondent with a vio lation of

section 489.129(1)(b), which at the relevant time authorized the

Board to take disciplinary action against a licensee for:

(b) Being convicted or found guilty of, or

entering a plea of nolo contendere to,

regardless of adjudication, a crime in a ny

jurisdiction which directly relates to the

practice of contracting or the ability to

practice contracting.

19. It is undisputed that o n or about November 18, 2016,

Respondent was adjudicated guilty of three counts of p o sses s io n ,

control, or intentiona lly viewing a sexual performance by a child

in the Circuit Court of the F ifteenth Judicial Circuit, in and

for Palm Beach County, F l orida. Respondent argues, however,

that this is not a crime which directly relates to the practice

of contracting or the ab ility to practice contracting.

20. The practice of contracting is regulated by the State

of Florida in the interest of the public health, safety , and

welfare. § 489.101 , Fla. Stat. In fact, an applicant is not

even eligible for licensure in Florida if the person has a lack

of " good moral character " substantially connected to the

professional responsibilities of a certified contractor.

§§ 489.111(2), (3); 489 .115(3)(a), Fla. Stat.

21. In considering license discipline cases involving

violations of stat utes similar to the one involved here, courts

have not required the crime to directly relate to the technical

ability to practice a profession. As the court noted in Doll v.

Dep artment of Health , 969 So. 2d 1103, 1106 (Fla. 1st DCA 2007) :

Several cases de monstrate that, although the

statutory definition 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 , t he 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 fraud ulent acts

involving gambling did not relate to his

technical ability to practice public

accounting, the acts did justify revocation

of the accountant ' s license for being

convicted of a crime that directly relates to

the practice of public accounting. Ash e 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

Professional 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

medicine or the ability to practice

chiroprac tic medicine.

22. The possession of child pornography has specifically

been found to be a crime which relates to the practice of, or the

ability to practice, licensed professions: medicine in Department

of Health, Board of Medicine v. Carter , Case No. 1 2 - 1575

(Fla. DOAH Dec. 26, 2012; Fla. DOH Feb. 12, 2013); and dentistry

in Department of Health, Board of Dentistry v. Borges , Case

No. 12 - 0005 (Fla. DOAH Mar. 12, 2015; Fla. DOH Jun e 17, 2015).

23. Petitioner also cites to Raines v. Construction Indust ry

Licensing Board , Case No. 08 - 2718 (Fla. DOAH Dec. 15, 2008) , in

which, in recommending denial of licensure as a c ertified

r esidential c ontractor, the Administrative Law Judge noted:

Petitioner ' s crimes/convictions are related to

the practice of contract ing, because a

licensed residential contractor has greater

access to private homes than laymen or many

other professionals; because a licensed

residential contractor is automatically

extended a higher level of trust by consumers '

families than is a typical unlicensed

construction worker; and because there is a

substantial potential that homeowners will

entrust a licensed residential contractor in

their home and near their children, while

expecting the licensee to oversee his on -

premises staff.

24. While t he license applicant in Raines had been convicted

not only of possession of child pornography, but also exposing

himself to his minor stepdaughter, there can be no doubt that

child pornography alone presents a similarly grave danger to the

public welfare. Respondent has been classified as a sexual

offender under section 943.0435(1)(a)1.a., Florida Statutes.

Section 943.0435(12) expressly provides that sexual offenders,

especially those who have committed offenses against minors, often

pose a high risk of engaging in further sexual offenses even after

being released from incarceration or commitment and that

protection of the public from sexual offenders is a " paramount

government interest. "

25. Classification as a sexual offender may of course stem

from v arious acts. T here is no evidence here that Respondent

further disseminated the images, exposed himself, personally

viewed or photographed children in his home or at other

locations, or physically touched children or used violence

against them. Still, th e gravity of Respondent ' s more " passive "

offense against society and the abused children who were

exploited in the creation of the child pornography cannot be

minimized.

26. As the United States Supreme Court, in a decision

struggling with quantification of damages, noted:

The demand for child pornography harms

children in part because it drives

production, which involves child abuse. The

harms caused by child pornography, however,

are still more extensive because child

pornography is " a permanent record " of the

depicted child ' s abuse, and " the harm to the

child is exacerbated by [its] circulation. "

New York v. Ferber , 458 U.S. 747, 759 (1982) .

Because child pornography is now traded with

ease on the Internet, " the number of still

images and videos memor ializing the sexual

assault and other sexual exploitation of

children, many very young in age, has grown

exponentially. "

Paroline v. U . S . , 572 U.S. 434, 439 - 40 (2014). As Paroline went

on to describe, as an adult , the victim lived in constant fear

that sh e would be recognized from her disseminated childhood

pictures and felt as if she was " being abused over and over

again. "

27. Licensure by the State of Florida as a residential

contractor properly must take into account not only the technical

ability of t he licensee, but consideration of the public health,

safety, and welfare more generally. As noted above, a state -

licensed residential contractor is trusted by homeowners, allowed

into their homes, and into contact with their children.

28. Petitioner pr oved by clear and convincing evidence that

Respondent was adjudicated guilty of p o sses s io n , control, or

intentionally viewing a sexual performance by a child , and that

his crime directly relates to the practice of contracting or the

ability to practice con tracting, in violation of section

489.129(1)(b).

Count II

29. Petitioner also charged Respondent with violation of

section 455.227(1)(t), which at the relevant time provided:

(1) The following acts shall constitute

grounds for which the disciplinary act ions

specified in subsection (2) may be taken:

* * *

(t) Failing to report in writing to the board

or, if there is no board, to 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. A

licensee must report a conviction, finding of

guilt, plea, or adjudication entered before

the effective date of this paragraph within 30

days after the effective date of this

paragr aph.

30. Petitioner showed that Respondent entered a plea of

guilty to the charged offenses on March 15, 2016. He did not

report his plea until December 19, 2016. While there was some

evidence that Respondent did not fully understand all of the terms

o f his guilty plea, that he was still attempting to bargain as to

these terms, and that he considered withdrawing it, this evidence

was insufficient to negate his responsibility to report that plea

within 30 days.

31. Petitioner proved by clear and convi ncing evidence

that Respondent failed to report his plea of guilty to a crime

in writing to the Board with in 30 days, in violation of

section 455.227(1)(t).

Penalty

32. Section 489.129 (4) provides that the Department shall

follow the penalty guidelines established by Board rule.

Penalties imposed must be consistent with these guidelines

prescribed. See Parrot Heads, Inc. v. Dep ' t of Bus. & Prof ' l

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

33. Florida Administrative Code Rule 61G4 - 17.001(1)(b)

provided at the time of the offense charged that the recommended

penalty for being convicted or found guilty of a crime relating to

contracting should range from a " $3,500 fine or probation or

suspension " to a " $10,000 fine and probation, suspension or

revocation. "

34. In Count II, Respondent was also charged with violation

of section 455.227(1)(t) for failure to report his plea of guilty

in writing to the B oard within 30 days. Rule 61G4 - 1 7.001 contains

no penalty for violation of this paragraph of the statute. As

Respondent was not adequately put on notice by the rule of the

penalty he might face for violation of the statute, no additional

penalty has been recommended for the violation of Count II. 2/

35. Rule 64G4 - 17.002 provided that the following aggravating

and mitigating circumstances should also be considered:

(1) Monetary or other damage to the

licensee ' s customer, in any way associated

with the violat ion, which damage the license e

has not relieved, as of the time the penalty

is to be assessed. (This provision shall not

be given effect to the extent it would

contravene federal bankruptcy law.)

(2) Actual job - site violations of building

codes, or conditions exhibiting gross

negli gence, 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 o ther mitigating or aggravating

circumstances.

36. As discussed earlier, the danger to the public is grave.

There was no evidence of other complaints filed against Respondent

or damage to any of Respondent ' s customers. Respondent has

practiced as a resi dential contractor for a long time and

suspension or revocation of his license would have a great effect

upon his livelihood. These aggravating and mitigating

circumstances do not warrant deviation from the already broad

range of penalties afforded by the rule.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Construction Industry Licensing

Board enter a final order finding Christopher Michael Walk in

violation of section 489.129(1)(b), Florida Statu tes, and

revoking his license as a c ertified r esidential c ontractor.

DONE AND ENTERED this 1 8 th day of October , 2018 , in

Tallahassee, Leon County, Florida.

S

F. SCOTT BOYD

Administrative Law Judge

Division of Administrati ve 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 1 8 th day of October , 2018 .

ENDNOTE S

1/ All references to the Florida Statutes or provisions of the

Florida Administrative Code refer to versions in effect in March

2016, when the guilty plea was allegedly made, except as otherwise

indicated.

2/ See § 455.2273, Fla . Stat . , also at issue in Arias v. Dep ' t of

Bus. & Prof ' l Reg. , 710 So. 2d 655, 659 (Fla. 3d DCA 1998). See

also Fernandez v. Fla. Dep ' t of Health , 82 So. 3d 1202, 1204 - 05

(Fla. 4th DCA 2012). The " catch all " provision in rule 61G4 -

17.001(6) is noted, but it does not address the concern of the

courts. Requiring a licensee to guess which offense the Board

might conclude " closely resembles " the charged one fails to

provide a licensee with a meaningful penalty guideline. It is

unclear if the Department has reviewed the Board pe nalty

guidelines as required by section 455.2273(4).

COPIES FURNISHED:

James David Burkhart, Esquire

Ian Brown, Esquire

Department of Business and

Professional Regulation

Capital Commerce Center

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

Kevin Michael Griffith, Esquire

766 Hudson Avenue , Suite B

Sarasota, Florida 34236

(eServed)

Jason Maine, General Counsel

Department of Business and

Professional Regulation

Capital Commerce Center

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

Daniel Biggins, Executive Director

Construction Industry Licensing Board

Department of Business and

Professional Regulation

Capital Commerce Center

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

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.