STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION,

Petitioner,

vs.

CAYETANO F. ALFONSO,

Respondent.

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) Case No. 04-4363PL

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted on February 15, 2005, by video teleconference between Miami and Tallahassee, Florida, before Administrative Law Judge Claude B. Arrington of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Brian A. Higgins, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-2202

For Respondent: Alvin E. Entin, Esquire

Entin, Margules, & Dell Ferra, P.A. AutoNation Tower, Suite 1970

110 Southeast Sixth Street Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUES

Whether Respondent, who is licensed as a Plans Examiner, a Building Inspector, and a Building Code Administrator, committed

the offenses alleged in the three-count Administrative Complaint and, if so, the penalties if any that should be imposed.

PRELIMINARY STATEMENT

On September 19, 2001, Petitioner filed an Administrative Complaint against Respondent that alleged certain facts. Based on those facts, Petitioner charged Respondent with the following violations. Count I alleged that Respondent violated Section 468.621(1)(e), Florida Statutes,1 “. . . by having been convicted of a crime in any jurisdiction which directly relates to the practice of building code administration and inspection.”

Count II alleged that Respondent violated Section 468.621(1)(f), Florida Statutes, “. . . by making or filing a report or record which the certificateholder knows to be false, or knowingly inducing another to file a false report or record, or knowingly failing to file a report or record required by state or local law, or knowingly impeding or obstructing such filing, or knowingly inducing another person to impede or obstruct such filing.”

Count III alleged that Respondent violated Section 455.227(1)(j), Florida Statutes, “. . . by aiding, assisting, procuring, employing, or advising any unlicensed person or entity to practice a profession contrary to this chapter, the chapter regulating the profession, or the rules of the department or the board.”

Respondent thereafter requested a formal administrative hearing, the matter was referred to DOAH, and this proceeding followed.

At the final hearing, Petitioner presented the testimony of Daniel Vuelta, a code compliance investigator employed by Miami- Dade County. Petitioner offered nine sequentially numbered exhibits, each of which was admitted into evidence. Respondent offered no testimony or exhibit.

A Transcript of the proceedings was filed on March 8, 2005.

The parties filed Proposed Recommended Orders, which have been duly-considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the agency of the State of Florida with the responsibility to regulate Building Code Administrators and Inspectors pursuant to Section 20.165, Chapter 455, and Part XII of Chapter 468, Florida Statutes.

2. At all times relevant to this proceeding, Respondent held licenses as a Standard Plans Examiner in Building and Mechanical; a Standard Inspector in Building and Mechanical; and a Building Code Administrator.

3. Section 468.603(1), Florida Statutes, provides the following definitions relevant to this proceeding:

   1. Building code administrator" or "building official" means any of those employees of municipal or county governments with building construction regulation responsibilities who are charged with the responsibility for direct regulatory administration or supervision of plan review, enforcement, or inspection of building construction, erection, repair, addition, remodeling, demolition, or alteration projects that require permitting indicating compliance with building, plumbing, mechanical, electrical, gas, fire prevention, energy, accessibility, and other construction codes as required by state law or municipal or county ordinance. This term is synonymous with "building official" as used in the administrative chapter of the Standard Building Code and the South Florida Building Code. . . .

      
      

4. Section 468.603(2), Florida Statutes, provides the following definition relevant to this proceeding:

   (2) "Building code inspector" means any of those employees of local governments or state agencies with building construction regulation responsibilities who themselves conduct inspections of building construction, erection, repair, addition, or alteration projects that require permitting indicating compliance with building, plumbing, mechanical, electrical, gas, fire prevention, energy, accessibility, and other construction codes as required by state law or municipal or county ordinance.

   
   

5. Section 468.603(6), Florida Statutes, provides the following definitions relevant to this proceeding:

   1. "Categories of building code inspectors" include the following:

      1. "Building inspector" means a person who is qualified to inspect and determine that buildings and structures are

         constructed in accordance with the provisions of the governing building codes and state accessibility laws.

         
         

         * * *

         
         

         (e) "Mechanical inspector" means a person who is qualified to inspect and determine that the mechanical installations and systems for buildings and structures are in compliance with the provisions of the governing mechanical code.

         
         

6. Section 468.603(7), Florida Statutes, provides the following definitions relevant to this proceeding:

   1. "Plans examiner" means a person who is qualified to determine that plans submitted for purposes of obtaining building and other permits comply with the applicable building, plumbing, mechanical, electrical, gas, fire prevention, energy, accessibility, and other applicable construction codes. Categories of plans examiners include:

      (a) Building plans examiner.

      
      

      * * *

      (c) Mechanical plans examiner.

      
      

7. Section 468.603(7), Florida Statutes, provides the following definitions relevant to this proceeding:

   1. "Building code enforcement official" or "enforcement official" means a licensed building code administrator, building code inspector, or plans examiner.

   
   

8. Ramon Melendez, doing business as R.E.M. Roofing, Inc., was not licensed as a construction contractor in Florida at any time relevant to this proceeding.

9. Mr. Melendez was not individually licensed as a construction contractor in Florida at any time relevant to this proceeding.

10. R.E.M. Roofing, Inc., was not qualified as a construction business by any certified or registered contractor in Florida at any time relevant to this proceeding.

11. On or about March 20, 1998, Mr. Melendez, doing business as R.E.M. Roofing, Inc., contracted with Pedro Camacho to re-roof the residence located at 3961 N.W. 170th Street, Miami, Florida, for the sum of $3,000.

12. Mr. Camacho paid Mr. Melendez the agreed sum in cash based on the contract dated March 20, 1998.

13. On or about June 3, 1998, Mr. Melendez, doing business as R.E.M. Roofing, Inc., contracted with Santos Valentin to re- roof the residence located at 4412 N.W. 185th Street, Opa Locka, Florida, for the sum of $2,800.

14. Mr. Valentin paid R.E.M. Roofing, Inc. the sum of

    
    

    $1,400 on June 8, 1998. Mr. Valentin paid Mr. Melendez the additional sum of $800 on June 10, 1998. Both payments, which were by check, were for the roofing work described in the contract dated June 3, 1998.

15. On April 6, 1998, Respondent applied for and obtained a permit for the Camacho roofing work. This permit application was submitted to the Metropolitan Dade County Department of

    Planning Development and Regulation. Respondent signed the permit application as “the contractor” and inserted his contractor license number and social security number on the application.

16. The application submitted by Respondent on April 6, 1998, was a fraudulent sham. At no time was Respondent the contractor for the Camacho roofing work. Respondent’s action in obtaining the building permit aided and abetted an unlicensed contractor to engage in contracting.

17. On June 8, 1998, Respondent applied for and obtained a permit for the Valentin roofing work. This permit application was submitted to the Metropolitan Dade County Department of Planning Development and Regulation. Respondent signed the permit application as “the contractor” and inserted his contractor license number and social security number on the application.

18. The application submitted by Respondent on June 8, 1998, was a fraudulent sham. At no time was Respondent the contractor for the Valentin roofing work. Respondent’s action in obtaining the building permit aided and abetted an unlicensed contractor to engage in contracting.

19. Miami-Dade County Compliance Investigator Daniel Vuelta filed criminal charges against Respondent in two separate criminal cases. One case was for his involvement in the Camacho

    roofing project and the other was for his involvement in the Valentin roofing projects. These cases were brought in Miami- Dade County Court and assigned case numbers M99-57926 and M99- 57931. In each case, Respondent was charged with one count of Unlawful Application for Building Permit and one count of Aiding and Abetting an Unlicensed Contractor. All charges were first- degree misdemeanors.

20. On February 22, 2001, Respondent entered into a plea agreement to resolve those criminal charges. Respondent entered a plea of guilty to each of the two counts in Case M99-57931, and he was subsequently adjudicated guilty of each count. As part of the plea agreement, the State agreed to nolle pross Case M99-57926.

21. The crimes to which Respondent entered a guilty plea involved fraudulent building permits and, consequently, were directly related to building code enforcement.

22. Petitioner’s investigative costs for this case, excluding costs associated with any attorney’s time, were

    $427.29.

    
    

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this consolidated proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

24. Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. See

    Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So. 2d 112 (Fla. 1st DCA 1989); and Inquiry Concerning a Judge, 645 So. 2d 398 (Fla. 1994).

25. Section 468.621(1), Florida Statutes, provides, in pertinent part, as follows:

    1. The following acts constitute grounds for which the disciplinary actions in subsection (2) may be taken:

       
       

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       1. Having been convicted of a crime in any jurisdiction which directly relates to the practice of building code administration or inspection.

       2. Making or filing a report or record which the certificateholder knows to be false, or knowingly inducing another to file a false report or record, or knowingly failing to file a report or record required by state or local law, or knowingly impeding or obstructing such filing, or knowingly inducing another person to impede or obstruct such filing.

       
       

26. Section 455.227(1), Florida Statutes, provides, in relevant part, as follows:

    1. The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:

       
       

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       (j) Aiding, assisting, procuring, employing, or advising any unlicensed person

       or entity to practice a profession contrary to this chapter, the chapter regulating the profession, or the rules of the department or the board.

       
       

27. Petitioner established by clear and convincing evidence that Respondent violated the provisions of Section 468.221(1)(e), Florida Statutes, as alleged in Count I by establishing that he had been convicted of two misdemeanor offenses that are directly related to the practice of building code administration and inspection.

28. Petitioner established by clear and convincing evidence that Respondent violated the provisions of Section 468.221(1)(f), Florida Statutes, as alleged in Count II by establishing that he had filed false applications for two building permits.

29. Petitioner established by clear and convincing evidence that Respondent violated the provisions of Section 455.227(1)(j), Florida Statutes, as alleged in Count III by establishing that he fraudulently obtained two building permits for an unlicensed contractor.

30. Pursuant to Section 468.621(2), Florida Statutes, Petitioner may impose discipline against Respondent for the violations of Counts I and II, as follows:

    1. When the board finds any person guilty of any of the grounds set forth in subsection (1), it may enter an order

       imposing one or more of the following penalties:

       1. Denial of an application for certification.

       2. Permanent revocation.

       3. Suspension of a certificate.

       4. Imposition of an administrative fine not to exceed $5,000 for each separate offense. Such fine must be rationally related to the gravity of the violation.

       5. Issuance of a reprimand.

       6. Placement of the certificateholder on probation for a period of time and subject to such conditions as the board may impose, including alteration of performance level.

       7. Satisfactory completion of continuing education.

       8. Issuance of a citation.

    
    

31. Pursuant to Section 455.227(2), Florida Statutes, Petitioner may impose discipline against Respondent for the violations of Count III, as follows:

    (2) When the board, or the department when there is no board, finds any person guilty of the grounds set forth in subsection (1) or of any grounds set forth in the applicable practice act, including conduct constituting a substantial violation of subsection (1) or a violation of the applicable practice act which occurred prior to obtaining a license, it may enter an order imposing one or more of the following penalties:

    
    

    * * *

    
    

    1. Suspension or permanent revocation of a license.

    2. Restriction of practice.

    3. Imposition of an administrative fine not to exceed $5,000 for each count or separate offense.

    4. Issuance of a reprimand.

    5. Placement of the licensee on

       probation for a period of time and subject to such conditions as the board, or the department when there is no board, may specify. Those conditions may include, but are not limited to, requiring the licensee to undergo treatment, attend continuing education courses, submit to be reexamined, work under the supervision of another licensee, or satisfy any terms which are reasonably tailored to the violations found.

    6. Corrective action.

    
    

32. Florida Administrative Code Rule 61G19-5.002(2)(c),

    
    

    (e) and (f) provide disciplinary guidelines applicable to Counts I, II, and III. For the violation established in Count I, the usual penalty is suspension to revocation and an

    administrative fine in the amount of $1,500. For the violation established in Count II, the usual penalty is suspension to be followed by probation and an administrative fine in the amount of $1,500. For the violation established in Count III the usual penalty is probation to suspension and an administrative fine up to $1,500.

33. Section 455.227(3)(a), Florida Statutes, provides as follows:

    (3)(a) In addition to any other discipline imposed pursuant to this section or discipline imposed for a violation of any practice act, the board, or the department when there is no board, may assess costs related to the investigation and prosecution of the case excluding costs associated with an attorney's time.

34. In recommending the penalty that follows, the undersigned has considered the fraudulent nature of the Respondent’s acts. The undersigned has also considered that all three counts are essentially based on the same misconduct.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of the offenses alleged in Counts I, II, and III. It is further RECOMMENDED that the final order revoke Respondent’s licensure and impose an administrative fine against him in the amount of $3,000. It is further RECOMMENDED that Petitioner order Respondent to pay its investigative costs, excluding costs associated with any attorney’s time, in the amount of $427.29.

DONE AND ENTERED this 7th day of April, 2005, in Tallahassee, Leon County, Florida.

S

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 7th day of April, 2005.

ENDNOTE

1/ The Administrative Complaint, dated in September 2001, did not specify a year following its reference to the Florida Statutes. Since there has been no amendments to the relevant statutes, statutory references in this Recommended Order are to Florida Statutes (2004). Rule references are to the version of the rules published in Florida Administrative Code as of the date of this Recommended Order.

COPIES FURNISHED:

Brian A. Higgins, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Alvin E. Entin, Esquire

Entin, Margules, & Dell Ferra, P.A. AutoNation Tower, Suite 1970

110 Southeast Sixth Street

Fort Lauderdale, Florida 33301

Tim Vaccaro, Director

Construction Industry Licensing Board Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Leon Biegalski, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in these cases.

Docket for Case No: 04-004363PL

Orders for Case No: 04-004363PL