STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, ELECTRICAL )

CONTRACTORS' LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 89-3900

)

MANUEL CABANAS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Jane C. Hayman, held a formal hearing in the above- styled case on October 4, 1989, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Robert G. Harris, as qualified representative

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792 For Respondent: No Appearance

STATEMENT OF THE ISSUES

The issue presented is whether the Respondent committed the offenses alleged in the Administrative Complaint, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated May 23, 1989, Petitioner charged that Respondent committed the following acts:

1. Respondent was disciplined and his certificate of competency revoked by the Dade County Construction Trades Qualifying Board on a finding by the Board that Respondent had misrepresented material facts concerning Respondent's employment or work status on documents submitted to said Board to obtain a business certificate of competency. Having been so disciplined constitutes a

   violation of Section 489.533(1)(n), Florida Statutes (1987), as amended.

2. As a result of the above act, Respondent committed deceit or made misleading representations in violation of Section 489.533(1)(f),(g) and 455.227(1)(a), Florida Statutes (1987), as amended.

At the hearing, Petitioner called no witnesses and offered two exhibits which were received into evidence without objection. Respondent did not appear nor was he represented.

A transcript of the hearing was ordered and received by the Division of Administrative Hearings on October 16, 1989. By rule, the parties had until October 26, 1989, to file proposed findings of fact. Petitioner filed a proposed recommended order on October 26, 1989, but Respondent did not so file. A ruling on each proposed finding of fact has been made and is reflected in the appendix to this recommended order. The transcript of the proceeding and Petitioner's proposed findings of fact were misfiled at the Division of Administrative Hearings. On inquiry by the undersigned, the mistake was discovered on December 20, 1989, and this recommended order is issued expeditiously.

FINDINGS OF FACT

1. At all times material hereto, Respondent, Manuel Cabanas was licensed as an electrical contractor and held license number ER 0006946 issued by Petitioner, the Electrical Contractors' Licensing Board.

   
   

2. On or around December 13, 1988, the Construction Trades Qualifying Board of Dade County, Florida (Board) charged Respondent with the misrepresentation of material facts concerning his employment or work status on documents submitted with his application to obtain a business certificate of competency.

   
   

3. A hearing on the charge was held before the Board on January 3, 1989. At the hearing, Respondent initially pled not guilty, but changed his plea to no contest sometime after a Board member advised Respondent that his testimony indicated that he was actually guilty of the charge.

   
   

4. On January 6, 1989, Respondent was notified by the Board that after hearing all the testimony, a determination had been made that Respondent was guilty of the charge. As discipline for his act, the Board revoked Respondent's certificate of competency.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings.

   
   

6. The complaint filed against Respondent in this case alleges that Respondent is subject to discipline by Petitioner for violation of Section 489.533(1)(f),(g) and (n), Florida Statutes (1987), as amended and Section 455.227(a), Florida Statutes (1987), as amended. The subject provisions read as follows:

   489.533 Disciplinary proceedings.-

   
   

   1. The following acts shall constitute grounds for disciplinary actions as provided in subsection (2):

   * * *

   1. Being found guilty of fraud or deceit, or of negligence, incompetency, or misconduct in the practice of electrical or alarm system contracting.

      
      

   2. Violating chapter 633 or the rules of the State Fire Marshall.

   * * *

   (n) Being disciplined by any municipality or county for an act that is a violation of this section, which disciplinary action shall be reviewed by the board before the board takes any disciplinary action of its own.

   * * *

   455.227 Grounds for discipline; penalties; enforcement.-

   1. The board shall have the power to revoke, suspend, or deny the renewal of the license, or to reprimand, censure, or otherwise discipline a licensee, if the board finds that:

      1. the licensee has made misleading, deceptive, untrue, or fraudulent representations in the practice of his profession.

   
   

7. Under existing law, the burden is on Petitioner to demonstrate by clear and convincing evidence that Respondent violated the above statutory provisions. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

   
   

8. The first count of the Administrative Complaint alleged that since Respondent had been disciplined by the Dade County Construction Trades Qualifying Board (Board), he was subject to discipline by Petitioner pursuant to Section 489.533(1)(n). At the hearing, the minutes of the January 3, 1989 meeting of the Board were received into evidence. The minutes indicated that the discipline of Respondent was considered at the meeting. Also introduced into evidence was a letter from the Board to Respondent notifying him that the Board had found him guilty of the charge of misrepresenting material facts on documents submitted to the Board. The letter also stated that as discipline for his guilt, the Board revoked Respondent's certificate of competency which was issued by the Board. Neither the evidence presented at the hearing or the underlying findings contained therein were objected to by Respondent. Accordingly, it is clear that Respondent was disciplined by the Board.

9. In addition to the mere act of discipline, Section 489.533(1)(n) requires that the discipline be for an act that is a violation of Section

   489.533. Section 489.533(1)(c), Florida Statutes, as amended, in pertinent part, lists as a violation the following:

   
   

   Having a certificate or registration to practice contracting revoked, suspended, or otherwise acted against....

   
   

   Here, the proof clearly demonstrated that Respondent's certificate issued by the Board was revoked by the Board, subjecting him to discipline under Section 489.533(1)(n).

   
   

10. The Administrative Complaint also alleged that Respondent committed deceit by perpetrating the act for which the Board disciplined him, and is subject to discipline under Section 489.533(1)(f) and Section 455.227(1)(a), Florida Statutes. However, the proof failed to demonstrate that Respondent clearly committed the act. The proof went only to the demonstration that Respondent was disciplined, that his certificate was revoked and that finding of guilt was made. No facts which supported the finding of guilt by the Board were presented. The minutes of the Board's January 3, 1989 meeting, which were received into evidence without objection, merely state, in pertinent part,

    
    

    The chairman read the charge, a copy of which is attached [no such copy was attached to the document received into evidence], to Mr. Cabanas and asked him how he pled, to which Mr. Cabanas said, "Not guilty". Later, during the proceedings, Mr. O'Connor advised Mr.

    Cabanas that as his testimony indicated that he was actually guilty of the charge that he should change his plea to "no contest" and Mr. Cabanas agreed to change his plea to "no contest".

    
    

    It could be argued that the above excerpt is an admission of guilt on the part of Respondent. However, the proof remains unclear as to the circumstances under which Respondent changed his plea, i.e.: whether Respondent intended his change of plea to be an admission of guilt; whether he changed it for another not evident fact such as a mitigation offer or bargain; or whether he changed it under coercion. This uncertainty combined with the lack of proof about the procedures of the Board 1/ result in the determination that Respondent failed to sustain its burden as to Section 489.533(1)(f) and Section 455.227(1)(a).

    See Department of Professional Regulation, Construction Industry Licensing Board

    v. Charles R. Schelah, DOAH case number 88-3442, recommended order dated June 9, 1989.

    
    

11. The Administrative Complaint also alleged that Respondent was subject to discipline under Section 489.533(1)(g) for commission of the same act alleged to support the allegations discussed in the previous paragraph. Section 489.533(1)(g) subjects Petitioner's licensees to discipline for violations of Chapter 633, Florida Statutes. Chapter 633 relates to various standards and regulations for fire safety within the State of Florida. Although the nexus between fire safety and electrical contracting can be made, the allegation here relates to an alleged misrepresentation to the Board. It is unclear and the

    proof failed to demonstrate that a misrepresentation to the Board, even if proven, would constitute a violation of Chapter 633. Accordingly, Petitioner failed to sustain his burden as to Section 489.533(1)(g).

    
    

12. In his Proposed Recommended Order, counsel for the Petitioner recommended revocation of Respondent's license. However, in the instant case, consideration has been given to the disciplinary guidelines set forth in Rule 21GG-10.001, Florida Administrative Code and that no aggravating or mitigating factors were presented at the hearing. Based on the facts demonstrated at the hearing and the guidelines cited above, an appropriate penalty in the instant case is found to be the suspension of Respondent's license conditioned upon reinstatement of the local license as long as Respondent intends to practice in the jurisdiction of the Board. As to any other jurisdiction, the appropriate penalty is suspension for six months.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered suspending Respondent's license

number ER 0006946, conditioned upon reinstatement of the local license as long as Respondent intends to practice in the jurisdiction of the Construction Trades Qualifying Board of Dade County, Florida. As to any other jurisdiction, the appropriate penalty is suspension of Respondent's license number ER 0006946 for a period of six months.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of December 1989.

JANE C. HAYMAN

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 Administrative Hearings this 21st day of December 1989.

ENDNOTE

1/ The rules of the Board are not here officially recognized. Sections 120.61, Section 90.201, Florida Statutes and Rule 22I-6.020, Florida Administrative Code, nor was a request made to have them recognized.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-187

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

l. Rejected.

1. Adopted in paragraph 1.

2. Rejected.

3. Rejected.

4. Rejected.

5. Adopted in paragraphs 2 and 4.

COPIES FURNISHED:

Robert G. Harris Department of Professional

Regulation Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0729

Manuel Cabanas

60 E. 53rd Terrace Hialeah, Florida 33013

Patricia Ard Executive Director

Electrical Contractors Licensing Board Department of Professional

Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Kenneth E. Easley, Esquire Department of Professional

Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Docket for Case No: 89-003900

Orders for Case No: 89-003900