STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 89-4270

)

DAVID A. TAYLOR, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written Notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Daniel Manry, held a formal hearing in the above-styled case on January 9, 1990, in Fort Lauderdale, Florida.

APPEARANCES

FOR PETITIONER: Robert G. Harris, Esquire

Department of Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

FOR RESPONDENT: David A. Taylor, pro se

900 Northeast 17th Court

Fort Lauderdale, Florida 33305 STATEMENT OF THE ISSUES

The issues for determination at the formal hearing were whether Respondent presented an altered certificate of licensure to a local building department to obtain building permits for five new homes sometime in April, 1988, and if so, whether such action violated Sections 489.129(1)(m),(j), 489.119, and 489.105(4), Florida Statutes, 1/ as alleged in the Administrative Complaint.

PRELIMINARY STATEMENT

An Administrative Complaint was filed by Petitioner against Respondent on May 8, 1989. The Respondent requested a hearing before the Division of Administrative Hearings on July 13, 1989. The matter was referred to the Director of the Division of Administrative Hearings for appointment of a Hearing Officer on August 7, 1989.

Petitioner filed a Motion to Accept Qualified Representative and Affidavit on August 21, 1989. An Order Accepting Qualified Representative was entered on August 22, 1989, without opposition by Respondent. The matter was set for

formal hearing on January 9, 1990, in Vero Beach, Florida, pursuant to the Notice of Hearing issued on August 31, 1989. Venue was changed to Fort Lauderdale, Florida, at the Respondent's request, to accommodate Respondent's need for medical care due to renal failure suffered by the Respondent in the months before the hearing date.

Petitioner's First Request for Admissions and First Interrogatories were filed on November 21, 1989. Respondent was hospitalized for several months with renal failure and failed to answer either discovery request. Petitioner filed a Motion to Deem Admitted All Matters Contained in Petitioner's Request for Admissions and a Motion to Relinquish Jurisdiction on January 3, 1990. Both motions were denied as a preliminary matter during the formal hearing. 2/

At the formal hearing, Petitioner presented testimony from two witnesses, and offered three exhibits, two of which were received into evidence without objection. Petitioner's Exhibit 3 was admitted over Respondent's objection.

Respondent testified in his own behalf and offered two exhibits which were admitted without objection.

A transcript was ordered and filed with the Division of Administrative Hearings on January 19, 1990. Proposed findings of facts and conclusions of law were due on February 2, 1990. Petitioner's proposed findings of facts and conclusions of law were timely filed, and are addressed in the Appendix to this Recommended Order. As of the date of this Recommended Order, Respondent has not filed proposed findings of fact and conclusions of law.

FINDINGS OF FACT

1. Petitioner is the state agency charged, in conjunction with the Construction Industry Licensing Board, with the responsibility for prosecuting Administrative Complaints pursuant to chapters 455 and 489, and the rules promulgated thereunder.

   
   

2. In September, 1983, license number CR C012950 was issued to Respondent, David A. Taylor, as the qualifying agent for Energywise Homes, Inc., 3305 S.W. 1st Court, Deerfield Beach, FL 33441. License number CR C01295p remained in effect until June 30, 1987.

   
   

3. License number CR C012950 was delinquent and invalid from July, 1987, through May 10, 1988. In July, 1987, license number CR C012950 was placed on a delinquent status for non-renewal and considered invalid. On April 19, 1988, Respondent applied for renewal and reinstatement of license number CR C012950. Respondent's application for renewal and reinstatement was approved May 11, 1989. At that time, license number CR C012950 was changed from a qualifying business to an individual license.

1. In April, 1988, Respondent applied to the City of Sebastian, Florida Construction Board (the "City") for an occupational license in order to obtain building permits for jobs he had contracted in that jurisdiction. License number CR C012950 was delinquent and invalid at the time Respondent applied to the City for an occupational license and permits.

   
   

2. Respondent presented an altered license to Ms. Kathryn Nappi, the person responsible for issuing occupational licenses for the City in April, 1988, for the purpose of obtaining building permits from the City. The typeface on the license presented by Respondent to Ms. Nappi does not match either that used on the bottom portion of the same license or the copy of the licenses

   admitted as Respondent's Exhibit 1. Further, the date used on the altered license is not a date normally used by the Construction Industry Licensing Board. Finally, the license presented by Respondent to Ms. Nappi indicated the license was held by Respondent individually rather than as qualifying agent for Energywise Homes, Inc.

   
   

3. The testimony of the witnesses for Petitioner was consistent and credible. The procedures followed by Ms. Nappi and her supervisor, Mr. Bruce Cooper, Director of Community Development and Building Official for the City of Sebastian, were customary procedures followed in the ordinary course of their business. Neither witness had any discernible motive for fabricating the events to which they testified.

   
   

4. Respondent presented the altered license to Ms. Nappi sometime in April, 1988, for the purpose of obtaining building permits for the five homes to be constructed in the City. Ms. Nappi noticed that the type on the top of the license submitted by Respondent did not match the bottom portion. She brought the discrepancy to the attention of Mr. Cooper.

   
   

5. Mr. Cooper confirmed with the Department of Professional Regulation that the license submitted to Ms. Nappi by Respondent had been altered. Mr. Cooper set up a meeting between himself, Respondent, and two detectives to ascertain Respondent's position concerning the altered license. Mr. Cooper did not believe Respondent's position and placed the matter on the agenda for the May 3, 1988, meeting of the Sebastian Construction Board (the "Board") 3/

   
   

6. Respondent and the owner of the five homes for which permits were being sought appeared at the May 3, 1988, meeting of the Board. The Board voted to approve the building permits subject to the issuance of a valid license by the Department of Professional Regulation. The owner requested issuance of the permits because delay was causing his investment to dwindle. The Board also considered the fact that the properties were becoming an eyesore in the City. The Board voted to approve the permits, subject to Respondent obtaining a valid license, and leave the issue of the altered license to the Department of Professional Regulation.

   
   

7. Respondent's testimony that he did not present an altered license for the purpose of obtaining building permits from the City, and that he had never previously seen the altered license, is rejected as not credible. Such testimony is inconsistent with statements by Respondent to Mr. Cooper and at the May 3, 1988, meeting of the Board, which were admitted in evidence as exceptions to hearsay under Section 90.8C3(18). Respondent's testimony is also inconsistent with the greater weight of evidence.

   
   

8. Financial pressures caused by previous delays in obtaining permits provided a motive for Respondent to present an altered license to obtain building permits for the five homes to be constructed in the City. Previous attempts by others to obtain building permits for five homes to be constructed in the City had been unsuccessful. Respondent made several further attempts to obtain building permits for the five homes to be constructed in the City. The delays in obtaining the permits had caused the investment of the owner of the homes to dwindle. Furthermore, the homes were becoming an eyesore for the City.

   
   

9. Respondent committed an act of fraud, deceit, and misconduct in April, 1988, when Respondent intentionally presented an altered license to Ms. Nappi to obtain building permits for the five homes to be constructed in the City. No evidence has been presented to support a finding that Respondent altered the

   license presented to Ms. Nappi. However, Respondent knew or should have known that the license submitted by him had been altered, and Respondent submitted the altered license for the purpose of obtaining the needed building permits.

   
   

10. Even without the requisite intent for fraud, deceit, and misconduct, Respondent is not exonerated. Inadvertently presenting an altered license to Ms. Nappi in April, 1988, at a time when Respondent knew his license was delinquent and invalid constitutes gross negligence and incompetence in the practice of contracting.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and, subject matter of this proceeding pursuant to Section 129.57(1), Florida Statutes. The parties were duly noticed for the formal hearing.

    
    

12. The burden of proof is on Petitioner to prove the allegations in the Administrative Complaint by clear and convincing evidence. Where an agency seeks disciplinary action against a professional license, the evidence must be clear and convincing. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

13. No violations of Sections 489.105(4) and 489.119 are found to have been committed by Respondent as alleged in the Administrative Complaint. Petitioner neither produced any evidence that Respondent violated Sections 489.105(4) and 489.119 nor included any support for such violations in Petitioner's proposed findings of fact and conclusions of law. Section 489.105(4) merely defines the phrase, "primary qualifying agent." Section

    489.119 deals generally with' business organizations and qualifying agents. The Administrative Complaint requests disciplinary action against the Respondent individually.

14. Section 489.129(1) provides in relevant part that: "The Board may revoke, suspend, or deny

    the issuance or renewal of the

    certification or registration of a contractor... impose an administrative fine, not to exceed $5,000, place a contractor on probation, require continuing education assess costs associated with investigation and prosecution, or reprimand or censure a contractor if the contractor... is found guilty of any of the following acts:

    (j) Failure in any material respect to comply with the provisions of this part.

    (m) Being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting."

    
    

15. There is no clear and convincing evidence that Respondent violated Section 489.129(1)(j) by failing to comply with the provisions of either Sections 489.113(1) and (2) or 489.115. Subsection 489.113(1) requires a person to be "registered" pursuant to Chapter 489, Part I in order to engage in contracting on other than a statewide basis. Subsection 489.113(2) requires a person to be "certified" or "`registered" before engaging in the business of

    contracting in this state. The terms "registered", "certified", and "licensed"' have different meanings under Chapter 489, Part I. Compare, Sections 489.113,

    489.115 and 489.117. The evidence adduced by Petitioner addresses the status of "license", number CR C012950 in April, 1988. There is no evidence that Respondent either was or was not "registered" or "certified" in April, 1988, within the meaning of Sections 489.113(1) and (2) or 489.115.

    
    

16. Respondent violated Section 489.129(1)(m) by presenting an altered certificates of licensure to the City of Sebastian for the purpose of obtaining building permits. Such action by Respondent constituted fraud, deceit, gross negligence, incompetency, or misconduct in the practice of contracting within the meaning of Section 489.129(1)(m).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of fraud, deceit, gross

negligence, incompetency, or misconduct in the practice of contracting in

violation of Section 489.129(1)(m).

1. Florida Administrative Code Rule 21E-17.001 provides in relevant part: "The following guidelines Shall be used

   in disciplinary cases, absent

   aggravating or mitigating circumstances and subject to the other provisions of this Chapter. (emphasis added)

   * * *

   (19) 489.129(1)(m): Gross negligence, incompetence, and/or misconduct, fraud or deceit.

   (a) Causing no monetary harm to licensee's customer, and no physical harm to any person. First violation,

   $250 to $750 fine; repeat violation,

   $1,000 to $1,500 fine and 3 to 9 month suspension.

   
   

2. Florida Administrative Code Rule 21E-17.002, describes aggravating and mitigating circumstances which may be considered in determining the penalty to be imposed in a particular proceeding. Petitioner produced no evidence of any aggravating circumstances other than the alleged violations of Sections 489.113 and 489.115. There was no evidence of monetary or other damage to the licensee's customer, actual job site violations, repetitive offenses, the number of complaints filed against Respondent, or actual damage to the licensee's customer. See Fla. Admin. Code Rule 21E-17.002(1),(2),(s),(6), and (8). Considering the absence of any aggravating factors, the length of time Respondent has practiced contracting without any complaint, the de minimis danger to the public, and the fact that the Board approved the permits sought by Respondent because of the beneficial effect the permits would have on the owner and the City, it is recommended that Respondent be fined $250.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 26th day of February, 1990.

DANIEL MANRY

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1990.

ENDNOTES

1/ All references to chapters, statutes, and sections are to Florida Statutes (Supp. 1988) unless indicated otherwise.

2/ Neither motion was timely filed. Petitioner represented that it was prepared to go forward with the formal hearing and would not be prejudiced by a denial of its pending motions. Respondent represented to the Hearing Officer that he had been hospitalized for several months due to renal failure and had not seen the discovery requests from Petitioner.

3/ Results of the police investigation are not in evidence.

COPIES FURNISHED:

Fred Seely Executive Director

Department of Professional Regulation Construction Industry Licensing

Post Office Box 2 Jacksonville, Florida 32202

Kenneth E. Easley General Counsel

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Robert G. Harris, Esquire

Department of professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

George W. Harrell, Esquire

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

David A. Taylor

900 N.E. 17th Court

Fort Lauderdale, Florida 33305

Docket for Case No: 89-004270

Orders for Case No: 89-004270