STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MANUEL ENRIQUE BLANCO, )

)

Petitioner, )

)

vs. ) Case No. 06-1648

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

CONSTRUCTION INDUSTRY )

LICENSING BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a formal hearing was held on December 7, 2006, by video teleconference with the parties appearing from Miami, Florida, before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Manuel Enrique Blanco, pro se

523 Columbus Parkway Hollywood, Florida 33016

For Respondent: Diane L. Guillemette, Esquire

Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

The issue in this case is whether the Petitioner, Manuel Enrique Blanco (Petitioner), is entitled to the contracting license sought.

PRELIMINARY STATEMENT

This case began on March 23, 2006, when the Respondent, Construction Industry Licensing Board (Respondent or Board) issued a Notice of Intent to Deny the Petitioner’s application for a general contractor’s license. The denial was based upon an alleged criminal history, a lack of good moral character, and a failure to provide proof of experience and qualification for a general contractor’s license. On or about April 24, 2006, the Petitioner executed a document that has been deemed a request for an administrative proceeding to contest the denial. The case was forwarded to the Division of Administrative Hearings for formal proceedings on May 10, 2006.

The hearing in the case was originally scheduled for July 21, 2006, but was continued at the parties’ request and

rescheduled to September 25, 2006. After discovery issues were resolved, the matter was ultimately rescheduled for December 7, 2006.

At the hearing, the Petitioner testified on his own behalf.

The Respondent presented testimony from Paul Del Vecchio, a licensed contractor. The Respondent’s Exhibits 1-8, 10, and 11 were admitted into evidence. A transcript of the proceeding was not ordered. The parties were granted ten days from the hearing within which to file their proposed recommended orders. The Respondent’s Proposed Recommended Order was filed on December 18, 2006.

FINDINGS OF FACT

1. The Petitioner filed an application for licensure as a general contractor that was considered by the Board on

   January 11-13, 2006.

   
   

2. The Respondent denied the Petitioner’s application for several reasons. The first basis for the denial was the fact that the Respondent has been convicted or plead guilty (regardless of adjudication) to crimes.

3. In fact, the Petitioner has a history of criminal activities, many of which involve contracting without a license.

4. In 1993, the Petitioner entered a plea of guilty and was found guilty of two counts of grand theft and carrying a concealed firearm.

5. In 1995, the Petitioner entered a plea of guilty to grand theft and contracting without a license.

6. In 1997, the Petitioner was adjudicated guilty of grand theft related to five separate incidents (cases).

7. Most of the criminal activities related to contracting without a license. Some of the cases cited “Affordable Remodeling Services, Inc.” as the Petitioner’s company or “doing business as.”

8. In 2001, the Petitioner was again adjudicated guilty of grand theft and dealing in stolen property.

9. As to the foregoing cases, the Petitioner did jail time, was required to make restitution (in some cases), and paid fines

   and fees associated with the convictions. The Petitioner maintains he has paid for his past criminal behavior and should be afforded a new start.

10. The second basis for the denial of the Petitioner’s application was the fact that many of the convictions dealt with contracting without a license that involved injury to consumers. The Petitioner does not dispute this assertion but maintains that when ordered to do so, he has made restitution.

11. The third basis for the denial of the Petitioner’s application was an assertion that the Petitioner lacks good moral character as required by Section 489.111(2)(b), Florida Statutes (2006). The Petitioner did not present evidence regarding his character but maintained he has performed all required of him in connection with his past criminal history.

12. Finally, the last basis for the denial of the Petitioner’s application was a lack of experience to establish qualification for a general contractor’s license. The Petitioner believes the affidavits furnished in his behalf are sufficient in this regard.

13. Paragraphs 3 through 10 of the Respondent’s Proposed Recommended Order accurately chronicle in more detail the Petitioner's criminal history.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has

    jurisdiction over the parties to, and the subject matter of, these proceedings. §§ 120.57(1) and 120.60, Fla. Stat. (2006).

15. As the applicant, the Petitioner bears the burden of proof in this matter to establish he is entitled to the exemption sought. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981). He has failed to meet that burden.

16. Section 489.129(1), Florida Statutes (2006), provides in pertinent part:

    The board may take any of the following actions against any certificateholder or registrant: place on probation or reprimand the licensee, revoke, suspend, or deny the issuance or renewal of the certificate, registration, or certificate of authority, require financial restitution to a consumer for financial harm directly related to a violation of a provision of this part, impose an administrative fine not to exceed $10,000 per violation, require continuing education, or assess costs associated with investigation and prosecution, if the contractor, financially responsible officer, or business organization for which the contractor is a primary qualifying agent, a financially responsible officer, or a secondary qualifying agent responsible under s.

    489.1196 is found guilty of any of the following acts:

    
    

    * * *

    
    

    (b) Being convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which directly relates to the practice of contracting or the ability to practice contracting. [Emphasis added.]

17. Section 489.111, Florida Statutes (2006), provides in pertinent part:

    (2) A person shall be eligible for licensure by examination if the person:

    
    

    * * *

    
    

    1. Is of good moral character; and

       
       

    2. Meets eligibility requirements according to one of the following criteria:

    
    

    1. Has received a baccalaureate degree from an accredited 4-year college in the appropriate field of engineering, architecture, or building construction and has 1 year of proven experience in the category in which the person seeks to qualify. For the purpose of this part, a minimum of 2,000 person-hours shall be used in determining full-time equivalency.

       
       

    2. Has a total of at least 4 years of active experience as a worker who has learned the trade by serving an apprenticeship as a skilled worker who is able to command the rate of a mechanic in the particular trade or as a foreman who is in charge of a group of workers and usually is responsible to a superintendent or a contractor or his or her equivalent, provided, however, that at least

       1 year of active experience shall be as a foreman.

       
       

    3. Has a combination of not less than 1 year of experience as a foreman and not less than

    3 years of credits for any accredited college-level courses; has a combination of not less than 1 year of experience as a skilled worker, 1 year of experience as a

    foreman, and not less than 2 years of credits for any accredited college-level courses; or has a combination of not less than 2 years of experience as a skilled worker, 1 year of experience as a foreman, and not less than 1 year of credits for any accredited college- level courses. All junior college or

    community college-level courses shall be considered accredited college-level courses.

    
    

    4.a. An active certified residential contractor is eligible to take the building contractors' examination if he or she possesses a minimum of 3 years of proven experience in the classification in which he or she is certified.

    
    

    1. An active certified residential contractor is eligible to take the general contractors' examination if he or she possesses a minimum of 4 years of proven experience in the classification in which he or she is certified.

       
       

    2. An active certified building contractor is eligible to take the general contractors' examination if he or she possesses a minimum of 4 years of proven experience in the classification in which he or she is certified.

       
       

       * * *

       
       

       (3)(a) The board may refuse to certify an applicant for failure to satisfy the requirement of good moral character only if:

       
       

       1. There is a substantial connection between the lack of good moral character of the applicant and the professional responsibilities of a certified contractor; and

          
          

       2. The finding by the board of lack of good moral character is supported by clear and convincing evidence.

    
    

    (b) When an applicant is found to be unqualified for a certificate because of a lack of good moral character, the board shall furnish the applicant a statement containing the findings of the board, a complete record of the evidence upon which the determination was based, and a notice of the rights of the applicant to a rehearing and appeal.

18. In this case, other than his self-serving testimony, the Petitioner presented no evidence to support his application for licensure. In contrast, the Respondent articulated credible, reasonable, and adequate reasons to support the decision to deny the license. The Petitioner may have paid the restitution ordered, served the time demanded by the criminal judge(s), or otherwise met his obligations under the criminal cases cited, but he has not demonstrated good moral character. To the contrary, the Respondent’s evidence clearly and convincingly supports the denial of the application. In fact, the Petitioner presented no witness to vouch for his character.

19. Additionally, prior employers who may have corroborated or supported Petitioner’s assertions regarding his work history did not testify. It is concluded that the affidavits submitted by the Petitioner in this cause are insufficient, in and of themselves, to support an adequate work history for licensure. Given the Petitioner’s prior acts of contracting without a license, credible information must be submitted to support the Petitioner’s work record.

20. Given the Petitioner’s extensive criminal history, the lack of credible evidence to support his request for licensure, and the Respondent’s reasoned and compelling grounds for denial of the license, it must be concluded the Petitioner did not meet his burden of proof in his matter.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a Final Order denying the Petitioner’s request for licensure.

DONE AND ENTERED this 1st day of February, 2007, in Tallahassee, Leon County, Florida.

S

J. D. PARRISH 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 1st day of February, 2007.

COPIES FURNISHED:

G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Josefina Tamayo, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Diane L. Guillemette, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

Manuel Enrique Blanco

523 Columbus Parkway Hollywood, Florida 33016

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 this case.

Docket for Case No: 06-001648

Orders for Case No: 06-001648