STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, ) CONSTRUCTION INDUSTRY LICENSING ) BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 94-5259

) 95-0199

DANIEL FRANK MOLINARI, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was held in this case before Errol H. Powell, a duly designated Hearing Officer of the Division of Administrative Hearings, on April 4, 1995, by video teleconference in West Palm Beach, Florida.

APPEARANCES

For Petitioner: John D. Ashburn, Esquire

Department of Business and Professional Regulation

3932 RCA Boulevard, Suite 3210 Palm Beach Gardens, Florida 33410

For Respondent: Jack A. Goldberger, Esquire

Atterbury, Goldberger & Richardson, P. A. One Clearlake Centre, Suite 1400

250 Australian Avenue South

West Palm Beach, Florida 33401-5012 STATEMENT OF THE ISSUE

The issue for determination is whether Respondent committed the violations set forth in the administrative complaints, and if so, what action should be taken.

PRELIMINARY STATEMENT

On April 9, 1991, the Department of Professional Regulation, now the Department of Business and Professional Regulation, Construction Industry Licensing Board (Petitioner) filed a two count administrative complaint against Daniel Frank Molinari (Respondent) charging that: Count I-- violating Section 489.129(1)(b), Florida Statutes, by 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; and Count II-- violating Section 489.129(1)(m), Florida Statutes, by being found guilty of

fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. By an Election of Rights form dated July 3, 1991, Respondent disputed the allegations of fact and requested a formal hearing. On September 22, 1994, the matter was referred to the Division of Administrative Hearings. A formal hearing was scheduled pursuant to written notice.

Subsequently, on August 24, 1994, Petitioner filed another two count administrative complaint against Respondent charging that: Count I--violating Section 489.129(1)(m), Florida Statutes (1992 Supp.), by committing fraud or deceit in the practice of contracting; and Count II-- for violating Section 489.129(1)(n), Florida Statutes (1992 Supp), by being found guilty of incompetency or misconduct in the practice of contracting. By an Election of Rights form dated January 18, 1995, Respondent disputed the allegations of fact and requested a formal hearing. On January 19, 1995, the matter was referred to the Division of Administrative Hearings.

Both cases were consolidated. A formal hearing was scheduled on the consolidated cases, pursuant to written notice.

At hearing, Petitioner presented the testimony of three witnesses and entered two exhibits into evidence. Respondent presented the testimony of one witness and entered no exhibits into evidence. Respondent did not testify on his own behalf.

A transcript of the formal hearing was ordered. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. The parties submitted proposed findings of fact which have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. At all times material hereto, Daniel Frank Molinari (Respondent) was a certified plumbing contractor, being licensed by the Florida Construction Industry Licensing Board (CILB) and having been issued license numbers CF C021437 and CF C041671.

   
   

2. On or about March 20, 1990, the State Attorney of Dade County, Florida charged Respondent by Information with an attempted offense against intellectual property in violation of Sections 815.04(3) and 777.04, Florida Statutes, a misdemeanor: "[Respondent] on the 19th day of February 1990 . . . willfully, knowingly, without authorization, attempt to disclose or take data, programs, or supporting documentation, to wit: The CONTENTS of a CONTRACTOR'S LICENSING EXAMINATION, which is confidential as provided by law, residing or existing internal or external to a computer, computer system, or computer network. . ."

   
   

3. On or about July 30, 1990, Respondent pled nolo contendere to the misdemeanor charge. Based upon Respondent's plea of nolo contendere, the Dade County Judge entered a judgement finding Respondent guilty as charged, withholding adjudication and imposing costs in the amount of $300.00.

   
   

4. In the Dade County judicial circuit, a judge usually makes a finding of guilt when a defendant pleads nolo contendere even if adjudication is withheld.

   
   

5. Typically, items in a CILB examination are reused on subsequent exams. However, each examination must contain a certain percentage of new items.

6. Because of Respondent's attempted act, the CILB considered the items on the contractors examination in 1990 to be compromised and, therefore, unusable for subsequent examinations. The 1990 CILB examination consisted of two hundred and twenty-one (221) items. Consequently, 221 new items had to be developed at a cost of approximately $100.00 per item.

   
   

7. On or about June 10, 1993, Respondent submitted to the CILB a Certification Change of Status Application (Application) to activate his inactive certified plumbing contractor license (license number CF C041671).

   
   

8. Question 7(H) of the Application inquired whether Respondent had ever "Been found guilty of any crime other than a traffic violation". He responded "no" to the question.

   
   

9. The Application required an affirmation, and Respondent so affirmed, that "these statements are true and correct and I recognize that providing false information may result in a fine, suspension, or revocation of my contractor's license."

   
   

10. Respondent's request for activation could have been denied if he had responded "yes" to question 7(H) of the Application.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto, pursuant to Subsection 120.57(1), Florida Statutes. The parties were duly noticed for formal hearing.

    
    

12. License revocation proceedings are penal in nature. The burden of proof is on the Petitioner to establish the truthfulness of the allegations of the administrative complaints by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

13. In the first complaint, Petitioner charges Respondent with violating Section 489.129(1) (b) and (m), Florida Statutes (1989), which provides:

    
    

    1. The board may revoke, suspend, or deny the issuance or renewal of the certificate or registration of a contractor, require financial restitution to a consumer, 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:

       * * *

       (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.

       * * *

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

14. Petitioner has met its burden in demonstrating that Respondent violated Section 489.129(1)(b), Florida Statutes (1989). Respondent's plea of nolo contendere raises a presumption that he has been found guilty or convicted of the crime; however, he is entitled to an opportunity to try to rebut the presumption. Ayala v. Department of Professional Regulation, 478 So.2d 1116 (Fla. 1st DCA 1985). At hearing, Respondent failed to present any evidence in his behalf of his innocence; thereby, failing to rebut the presumption.

    
    

15. Petitioner has failed to meet its burden in demonstrating that Respondent violated Section 489.129(1)(m), Florida Statutes (1989). In the case at hand, Petitioner failed to present any evidence regarding the criminal case against Respondent beyond the court documents which showed, inter alia, Respondent's plea and the court's action. 1/ Moreover, Respondent's conduct does not fall within the practice of contracting.

    
    

16. In the second complaint, Petitioner charges Respondent with violating Sections 489.129(1) (m) and (n), Florida Statutes (1992 Supp.), which provides:

    
    

    1. The board may revoke, suspend, or deny the issuance or renewal of the certificate or registration of a contractor, require financial restitution to a consumer 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:

       * * *

       1. Committing fraud or deceit in the practice of contracting.

       2. Being found guilty of incompetency or misconduct in the practice of contracting.

       
       

17. Petitioner has failed to demonstrate that Respondent violated Sections 489.129(1) (m) and (n), Florida Statutes (1992 Supp.). When a court of competent jurisdiction withholds adjudication of guilt, a defendant is not considered convicted or found guilty. Page v. State Board of Medical Examiners of Florida, 141 Fla. 294, 193 So. 82 (1940); Ayala, supra. Consequently, Respondent's response on the Application was appropriate and correct.

    
    

18. As an aggravating factor, Petitioner suggests that Respondent's actions posed a danger to the public in that "the contents of licensing examinations for contractors are confidential in nature so as to insure that only persons properly qualified to be contractors serve as contractors." Further, Petitioner suggests that significant harm was effectuated upon the preparers of the examination as the exam was compromised and the 221 items could not be reused, which resulted in costing approximately $22,000.00 to develop new items. As a result, Petitioner suggests that an administrative fine in an amount equal to the cost of developing the new items should be imposed upon Respondent.

    
    

19. Respondent was criminally charged with an "attempted" offense, i.e., attempting to take or disclose the contents of the contractor's examination. The CILB decided that the examination had been compromised and that none of the questions could be reused even though Respondent had not succeeded in actually taking or disclosing the contents.

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:

1. Dismissing Count II of the administrative complaint in DOAH Case No. 94-5259;

   
   

2. Dismissing all counts of the administrative complaint in DOAH Case No. 95-0199;

   
   

3. Revoking Respondent's licenses;

   
   

4. Imposing costs for the investigation and prosecution to be determined by the construction Industry Licensing Board.

DONE AND ENTERED this 29th day of August, 1995, in Tallahassee, Leon County, Florida.

ERROL H. POWELL

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 29th day of August, 1995.

ENDNOTE

1/ At hearing, the arresting officer's narrative, which described the criminal act and was attached to the court documents of Respondent's criminal case, was ruled as being hearsay. Petitioner failed to present evidence for the hearsay to supplement or explain, and the narrative did not fall within any hearsay exception; therefore, no finding of fact could be, or was, based upon the narrative.

APPENDIX

The following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact.

1. Partially accepted in finding of fact 1.

2 and 4. Rejected as contrary to the evidence presented. Also, see Endnote 1.

3. Rejected as subordinate.

Respondent's Proposed Findings of Fact.

1. Partially accepted in finding of fact 1.

2. Partially accepted in finding of fact 2.

3. Partially accepted in finding of fact 3.

4 - 7. Rejected as being argument, or a conclusion of law.

8 - 12. Rejected as being recitation of testimony, argument, or conclusion of the law.

1. Rejected as unnecessary, or irrelevant.

2. Rejected as being subordinate, or recitation of testimony.

NOTE: Where a proposed finding has been partially accepted, the remainder has been rejected as being subordinate, irrelevant, unnecessary, not supported by the evidence, recitation of testimony, argument, or conclusion of law.

COPIES FURNISHED:

Richard Hickok, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation

7960 Arlington Expressway, Ste. 300

Jacksonville, FL 32211-7476

Lynda L. Goodgame General Counsel Northwood Centre

1940 North Monroe Street Tallahassee, Florida

John David Ashburn, Esquire Department of Business and Professional Regulation

3932 RCA Boulevard, Ste. 3210 Palm Beach Gardens, Florida 33410

Jack A. Goldberger, Esquire Goldberger & Richardson, PA

1 Clearlake Centre, Ste. 1400

250 Australian Avenue, South

West Palm Beach, Florida 33401-5012

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 94-005259

Orders for Case No: 94-005259