STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 89-0819

)

TILLACK RAM NETRAM, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Veronica E. Donnelly, held a formal hearing in the above-styled case November 8, 1989, in Punta Gorda, Florida, and November 14, 1989, by telephonic conference. An Order to Show Cause was filed on November 14, 1989, to determine why the Respondent failed to attend the second day of the proceeding. A response to the Order to Show Cause was not filed by the Respondent.

APPEARANCES

For Petitioner: David M. Gaspari, Esquire

Post Office Box 2069

West Palm Beach, Florida 33402

For Respondent: Tillack Ram Netram, pro se

532 Southeast 18th Place Cape Coral, Florida 33904

STATEMENT OF THE ISSUES

Whether the Respondent was validly disciplined by a local government, which causes the Respondent to be in violation of Section 489.129(1)(i), Florida Statutes. Whether the Respondent is guilty of fraud, or deceit or of gross negligence, incompetence, or misconduct in the practice of contracting, in violation of Section 489.129(1)(m), Florida Statutes.

PRELIMINARY STATEMENT

The Department of Professional Regulation (the Department) filed an Administrative Complaint before the Construction Industry Licensing Board (the Board), alleging that the Respondent, Tillack Ram Netram (Netram), had violated state law in his capacity as a licensed contractor. The Department seeks to have disciplinary sanctions imposed on Respondent Netram.

In an Election of Rights Form signed February 2, 1989, Respondent Netram disputed the allegations of fact contained in the Administrative Complaint and requested a formal hearing.

The formal hearing was continued numerous times, based upon the representations of the parties that the pending criminal charges against the Respondent were to be promptly tried. It was asserted that a continuance until after the trial could result in a possible settlement. In addition, as many of the alleged victims were from out-of-state, the savings in prosecution expenses and the judicial economy of having the witnesses testify only once, outweighed the request for short delays.

In August 1989, Respondent Netram requested that the case be heard regardless of the pending criminal case. The case was heard on November 8, 1989. After the Department's case-in-chief was presented, the Respondent was not sure if his criminal defense attorney would allow him to testify in his own behalf. The Respondent represented that he had diligently attempted to contact his attorney, but that the attorney would not return to his office until November 9, 1989. The Respondent also requested the opportunity to review the exhibits filed by the Department. It was mutually agreed by the parties that the hearing would be continued until November 14, 1989.

On November 14, 1989,' Respondent Netram failed to attend the scheduled telephonic hearing. An Order to Show Cause was issued, allowing him to respond in writing by November 27, 1989, as to why he did not appear. When a response was not received, the Hearing Officer closed the evidentiary portion of the proceedings and granted the parties leave to file proposed recommended orders by December 11, 1989.

During the hearing, the Petitioner filed three exhibits and presented two witnesses. All of the exhibits were admitted into evidence without objection.

A transcript of the proceeding was filed on November 30, 1989. A proposed recommended order was filed by the Petitioner. Rulings on the proposed findings are in the Appendix to the Recommended Order.

FINDINGS OF FACT

1. At all times material to these proceedings, the Respondent, Tillack Ram Netram, was licensed as a certified residential contractor and held license number CR C035238.

   
   

2. On or about November 16, 1988, a duly noticed hearing was held before the Contractors Regulatory Board of the City of Cape Coral to determine whether Respondent Netram had violated local ordinances by falsifying three certificates of occupancy in order to close real estate transactions and receive money before the residences were actually approved for occupancy by the City of Cape Coral. The incomplete permits were removed from the property prior to actual completion, and copies of falsified permits were given to the closing agent.

   The falsified permits showed that certificates of occupancy had been issued by the local building department when in fact, this had not occurred.

   
   

3. All of the witnesses at the hearing were placed under oath and were subject to cross-examination by Respondent Netram's attorney, Terry Signorella. The Respondent was present at the proceeding and was allowed to present evidence and to testify in his own behalf.

4. At the close of the evidentiary portion of the proceeding on November 16, 1988, Respondent Netram was found guilty by the local board of making misleading, deceptive, untrue or fraudulent representations in the practice of his contracting business. He committed these violations by delivering three building permits with forged signatures under the Certificate of Occupancy approval portion of the permits to Miss Peggy Burt of Stewart Title Company in Fort Myers. This conduct constitutes three violations of Section 6.10(1) of the Municipal Code.

   
   

5. As a result of the alleged violations, Respondent's permit pulling privileges were suspended for a period of six months. An appeal was not taken of the disciplinary action.

   
   

6. On November 15, 1988, an Information was filed against the Respondent which charged the Respondent with five counts of grand theft and scheme to defraud in connection with five separate real estate sales.

   
   

7. At the time of hearing, these charges were still pending. The investigator for the State Attorney's offices attended the formal administrative hearing and presented a copy of his investigatory file. All of the testimony and documents presented were uncorroborated hearsay. None of the documents, including official records, were properly verified.

   
   

8. There was no evidence submitted in mitigation or in aggravation of the penalties provided for the alleged violations.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Section 120.57(1), Florida Statutes (1987).

   
   

10. Section 489.129, Florida Statutes, empowers the Florida Construction Industry Licensing Board to revoked suspend, or otherwise discipline the license of the Respondent if he is found guilty of any of the acts enumerated in Section 489.129, Florida Statutes.

    
    

11. A proceeding to discipline a license is penal in nature. Bach v. Florida Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1980). In such contests, the Petitioner has the burden of proof and must prove by clear and convincing evidence that the Respondent committed the violations set forth in the Administrative Complaint. Ferris v. Turlinqton, 510 So.2d 292 (Fla. 1987).

    
    

12. Paragraph three of the Administrative Complaint alleges that the Respondent fraudulently sold real estate to third parties. As part of the transactions, the Respondent represented that he would later build homes on the real estate. Paragraph five of the complaint alleges that his misconduct violates Section 489.129, (1)(m), Florida Statutes.

    
    

13. The only evidence presented at hearing regarding this described conduct and the i alleged violation was the uncorroborated hearsay testimony of an investigator with the State Attorney's offices and his investigatory file. None of the deeds presented from the investigatory file were originals, and they were not properly verified as required by Section 28.17, Florida Statutes.

    
    

14. The copies of affidavits and sworn statements of the alleged victims in the purported real estate transactions presented through investigation cannot

    be considered as competent evidence in these proceedings. Rule 221-6.026(2), Florida Administrative Code, requires that each party in a formal administrative hearing be granted the right to cross-examine opposing witnesses. Because the Respondent was not afforded this opportunity in regards to the evidence presented through the copies of affidavits and statements, this evidence was not considered competent by the Hearing Officer for use in a formal administrative hearing. As a result, the investigator's testimony remains uncorroborated,, and is insufficient in itself to support a finding that the alleged fraudulent activity was committed by the Respondent in violation of Sections 489.129(1)(m) and 120.58(1)(a), Florida Statutes, and Rule 221- 6.026(3), Florida Administrative Code. It was not proven, by clear and convincing evidence, that Respondent Netram is guilty of this violation.

    
    

15. Although paragraph four of the Administrative Complaint alleges that Respondent was disciplined by the City of Cape Coral in connection with the above-referenced real estate sales, no evidence was presented at hearing, regarding such discipline. The local disciplinary action involved the falsifying of municipal records which occurred when three certificates of occupancy were forged to represent that final inspections had occurred. The Respondent is not guilty of this alleged violation because the alleged fraudulent land sales were not the subject of the local disciplinary hearing.

    
    

16. Paragraph six of the Administrative Complaint alleges that Respondent has been disciplined by a local government, in violation of Section 489.129(1)(i), Florida Statutes. A review of the transcript of the local governments's disciplinary action on November 16, 1988, demonstrates that the Respondent was given the opportunity to defend against the allegations that he had violated specific local ordinances when he delivered three building permits, with forged certificates of occupancy, to Miss Peggy Burt of Stewart Title Company in Fort Myers. The Respondent was found guilty of these violations on the basis of competent evidence presented at hearing. Respondent Netram was represented by Counsel, and was afforded the opportunity to cross-examine witnesses, to testify, and to present evidence in his own behalf. The local government disciplined the Respondent by suspending his privilege to pull building permits for a period of six months. Based upon the foregoing, the Respondent is guilty of the allegations set forth in paragraph six of the Administrative Complaint.

    
    

17. Section 21E-17.001, Florida Administrative Code provides in pertinent part:

    
    

    The following guidelines shall be used in disciplinary cases, absent aggravating or mitigating circumstances and subject to other provisions of this Chapter.

    * * *

    (16) 489.129(1)(i); local disciplinary action. Use penalty herein listed for the violation most closely resembling the act for the local discipline . .

    
    

18. A review of the acts listed under Section 489.129(1), Florida Statutes, demonstrates that the violation most closely resembling the act for the local discipline is found in Section 489.129(1)(d), Florida Statutes, which provides for the discipline of a contractor's license when the contractor is found guilty of the following acts:

    * * *

    (d) willful or deliberate disregard and violation of the applicable building codes or laws of the State or any municipalities or counties thereof.

    
    

19. By referring back to the disciplinary guidelines located in Chapter 21E-17, Florida Administrative Code, the most applicable discipline provided is set forth in Rule,21E-17.001(8), Florida Administrative Code, which states:

(8) 489.129(1)(d): Failure to call for inspections First violation, letter of guidelines; repeat violation, $250 to $750 fine.

RECOMMENDATION

Because the Respondent committed the misconduct in regards to three different building permits, he should be penalized for his action as to each permit. Accordingly, it is Recommended:

1. That the Respondent be found not guilty of having violated Section 489.129(1)(m), Florida Statutes, as set forth in paragraphs 3 and 5 of the Administrative Complaint.

   
   

2. That the Respondent be found not guilty of having violated Section 489.129(1)(i), Florida Statutes, for the misconduct alleged in paragraph 4 of the complaint.

   
   

3. That the Respondent be found guilty of having violated Section 489.129(1)(i), Florida Statutes, as set forth in paragraph 6 of the complaint.

   
   

4. That the Respondent pay a fine of $1 500.00, as set forth in Rule 21E- 17.001(8), Florida Administrative Code, for his willful violation, on three occasions, of the municipal building code.

DONE and ENTERED this 23rd day of February, 1990, in Tallahassee, Leon County, Florida.

VERONICA E. DONNELLY

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 1990.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-0819

Petitioner's proposed findings of fact are addressed as follows:

1. Accepted.

2. Accepted. See HO #1.

3. Rejected. Irrelevant. Not charged in the Amended Administrative Complaint.

4. Rejected. Insufficient competent evidence provided at hearing.

5. Accepted.

6. Accepted except for the allegation that Respondent forged the inspector's signature. Insufficient proof. See HO #4 and #5.

7. Rejected. Insufficient competent evidence provided at hearing.

8. Rejected. Insufficient competent evidence provided at hearing.

9. Accepted. See preliminary matters.

COPIES FURNISHED:

David M. Gaspari, Esquire Post Office Box 2069

West Palm Beach, FL 33402

Tillack Ram Netram

532 Southeast 18th Place Cape Coral, FL 33904

Fred Seely Executive Director

Construction Industry Licensing Post Office Box 2 Jacksonville, FL 32202

Kenneth D. Easley General Counsel

Department of Professional Regulation

Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, FL 32399-0792

Docket for Case No: 89-000819

Orders for Case No: 89-000819