STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, CONSTRUCTION INDUSTRY ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 80-2295

)

BENJAMIN J. EIGNER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, DONALD R. ALEXANDER, on September 30, 1981, in Miami, Florida.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Myron B. Berman, Esquire

Post Office Box 1113

North Miami Beach, Florida 33160 BACKGROUND

By Administrative Complaint dated October 22, 1980, Petitioner, Department of Professional Regulation, Construction Industry Licensing Board, has charged Respondent, Benjamin J. Eigner, with having violated Subsection 489.129(1)(b), Florida Statutes, for which disciplinary action against his general contractor's license should be taken. More specifically, it is charged that on or about February 7, 1980, a true bill or indictment was issued against Respondent for soliciting a bribe while acting in his capacity as building official for the City of Tamarac, Florida; that on or about July 3, 1980, Respondent pled nolo contendere to said charge and was adjudged guilty and sentenced to serve one year in the Broward County Jail and placed on probation for a period of five years; and that by reason of the foregoing, Respondent is guilty of violating Subsection 489.129(1)(b), supra, in that he has been convicted or found guilty of a crime that directly relates to the practice of contracting or ability to practice contracting.

Respondent disputed the allegations in the Complaint and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes. The matter was forwarded by Petitioner to the Division of Administrative Hearings on December 4, 1980, with a request that a Hearing Officer be assigned to conduct a hearing. The Respondent requested, and Petitioner agreed, that the matter not be

immediately scheduled for hearing due to health problems of Respondent which prevented him from assisting his counsel in the preparation of the case. By Notice of Hearing dated May 19, 1981, the final hearing was scheduled for June 8, 1981, in Miami, Florida. At that hearing the parties reached a settlement which was submitted for approval to the Construction Industry Licensing Board. The settlement was rejected by the Board and a second final hearing was scheduled for September 30, 1981, in Miami, Florida. At the final hearing Respondent offered Respondent's Exhibits 1 and 2, both of which were received into evidence. In addition, by agreement of the parties, the transcript of the sentencing hearing on July 3, 1980, has been made a part of the record. The parties did not present testimony; rather, they agreed that the allegations in the Administrative Complaint were true. Their presentations were limited to argument concerning the nature of the penalty to be imposed upon Respondent.

The parties were given the opportunity to file proposed findings of fact and conclusions of law; however, none were filed.

The issue herein is whether Respondent's certified general contractor's license should be revoked or suspended, or whether other disciplinary action should be taken against Respondent for the violation set forth in the Administrative Complaint.

Based upon the agreement of counsel that no factual matters are in dispute, and after reviewing the record, the following findings of fact are determined:

FINDINGS OF FACT

1. At all times relevant hereto, Respondent, Benjamin J. Eigner, held certified general contractor's license number CG C001534 issued by Petitioner, Department of Professional Regulation, Construction Industry Licensing Board.

   
   

2. In 1980, Respondent was employed by the City of Tamarac as its chief building official. In that position his major function was to administrate and supervise employees who enforced the South Florida Building Code and the Code of Ordinances of the City of Tamarac. (Respondent's Exhibit 2). His duties included, inter alia, the review of qualifications and issuance of certificates of competency to contractors who wished to work within the City.

   
   

3. On or about February 7, 1980, the Broward County Grand Jury issued a true bill or indictment against Respondent charging him with having solicited a bribe in his capacity as chief building official for the City of Tamarac.

   
   

4. On or about July 3, 1980, Respondent entered a plea of nolo contendere in Broward County Circuit Court to the charge of bribery. Adjudication of guilt and imposition of sentence was withheld, and Respondent was placed on probation for a period of five years. As a special condition, Respondent was also required to spend one year in the Broward County Jail. (Respondent's Exhibit 1). Because of health problems, Respondent was medically discharged from serving the remainder of his one year incarceration on January 26, 1981.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

6. Subsection 489.129(1), Florida Statutes, enumerates the grounds upon which the Petitioner may discipline a licensee. As is pertinent here, they include, inter alia:

   
   

   (1)(b) Being convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction

   which directly relates to the practice of contracting or the ability to practice contracting.

   
   

7. Eigner was not "convicted" of a crime within the meaning of that term, for he was not found guilty by the verdict of a jury or by the Court trying the case without a jury. Although his plea of nolo contendere by itself is not admissible as evidence of guilt in an administrative proceeding, Holland v. Florida Real Estate Commission, 352 So.2d 914, 915 (Fla. 2nd DCA 1977), the acceptance of the plea of Respondent and a concomitant finding of guilt by the Court, regardless of adjudication, is all that is required. The plea of nolo contendere having been accepted by the Court, and there being a determination that Respondent was guilty, the provisions of Subsection 489.129(1)(b), supra, may be invoked.

   
   

8. Counsel for Respondent contends that Respondent's license should be suspended for the six-month period ending March 1, 1981, given the circumstances of the case. On the other hand, Petitioner urges that a one-year suspension period to commence when the final order is entered is more appropriate. Having considered the entire record, and the finding of the Circuit Court that Respondent is .... not likely again to engage in a criminal course of conduct..." (Respondent's Exhibit 1), a nine month suspension of his license to begin on the date of the final order herein is warranted.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty as charged in the

Administrative Complaint and that his certified general contractor's license be

suspended for a period of nine months from the date of the final order entered herein after which time it shall be automatically reinstated.

DONE and ENTERED this 22nd day of October, 1981, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 1981.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Myron B. Berman, Esquire

P. O. Box 1113

North Miami Beach, Florida 33160

Mr. Benjamin J. Eigner 7850 Beechfern Circle

Tamarac, Florida 33321

Docket for Case No: 80-002295

Orders for Case No: 80-002295