STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NELSON CASTILLO, )

)

Petitioner, )

)

vs. ) Case No. 06-3645

) CONSTRUCTION INDUSTRY LICENSING ) BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a formal hearing was held on December 19, 2006, by video teleconference at sites in Miami and Tallahassee, Florida, before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Warren Diener, Esquire

Bared & Associates, P.A. The Atrium

1500 San Remo Avenue, Suite 248 Coral Gables, Florida 33146

For Respondent: Claudel Pressa, Esquire

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

STATEMENT OF THE ISSUE

The issue is whether the Petitioner, Nelson Castillo, is entitled to be certified for a commercial pool/spa contractor’s license.

PRELIMINARY STATEMENT

On July 27, 2006, the Construction Industry Licensing Board (Board or Respondent) issued a Notice of Intent to Deny, which denied the Petitioner’s application for initial certified commercial pool/spa contractor. The sole basis for the denial (as represented by Respondent’s counsel at hearing) is the Petitioner’s violation of Subsection 455.227(1)(f), Florida Statutes (2006). The allegation, in summary, relates to an administrative action that was taken against the Petitioner’s certified pool/spa servicing contracting license. The Petitioner, Nelson Castillo, (Petitioner or applicant) timely challenged the denial of the instant application, and the matter was forwarded to the Division of Administrative Hearings for formal proceedings on September 22, 2006.

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

The Respondent’s Exhibit 1 was admitted into evidence. The transcript of the proceeding was filed on January 16, 2007. The parties timely filed Proposed Recommended Orders that have been fully considered in the preparation of this order.

FINDINGS OF FACT

1. The Petitioner is an applicant for certification as a commercial pool/spa contractor.

2. The Petitioner currently holds certification as a pool/spa servicing contractor. The Petitioner has held this certification for approximately eight years.

3. The Petitioner, in his capacity as a certified pool/spa servicing contractor, was the subject of three administrative cases referred to the Division of Administrative Hearings. The cases were designated DOAH Case Nos. 04-2380PL, 04-2381PL, and 04-2382PL. As to all three cases, on September 20, 2004, the Petitioner executed a Stipulation (the Stipulation) that provided, in pertinent part:

3. Respondent [this Petitioner] neither admits nor denies the allegations of fact contained in the Administrative Complaints attached hereto as Exhibit “A.”

* * *

1. FINE AND COSTS: Respondent shall pay a fine in the amount of Ten Thousand and 00/100 dollars ($10,000.00) and costs in the amount of One Thousand Three Hundred Ten and 51/100 dollars ($1,310.51), for a total of Eleven Thousand Three Hundred Ten and 51/100 dollars ($11,310.51), to the Board.

   
   

2. RESTITUTION: The Respondent shall pay restitution to Jose and Bernardina Rodriguez in the amount of Five Thousand One Hundred Seventy Five dollars ($5,175.00) and to Orestes and Lourdes Martinez in the amount of Six Thousand Five Hundred dollars ($6,500.00), in installments, as set forth below.

   
   

   * * *

   
   

   6. EARLY TERMINATION OF PROBATION AFTER TWO

   (2) YEARS: After two (2) years of satisfactory probation appearances, if the Respondent pays in full all of the fine and costs described in paragraph 2 above and pays in full all of the restitution described in paragraph 3 above and furnishes satisfactory written evidence thereof to the Executive Director of the Board, then the Respondent’s probation shall terminate.

   * * *

   
   

   12. Upon the Board’s adoption of this Stipulation, Respondent understands and agrees that this Stipulation constitutes disciplinary action within the meaning of Section 455.227(1)(f), and 489.129, Florida Statutes. [Emphasis and Italic in original.]

   
   

3. The Stipulation was approved by the Respondent at its public meeting on November 11, 2004. Since that time, the Respondent has not taken any other administrative action against the Petitioner.

4. Also considered at the November 2004 meeting, however, was the Petitioner’s application to become a certified commercial pool/spa contractor. The denial of the Petitioner’s application for that certification was the genesis of the instant case.

5. The Petitioner freely, and with advice of counsel, executed and accepted the terms of the Stipulation.

6. At the time the Stipulation was executed, the Petitioner understood the terms of the agreement.

7. The Petitioner’s certification as a pool/spa servicing contractor is valid. The Respondent has taken no additional adverse action against the servicing certification.

8. The Petitioner has not paid all the sums required by the stipulation. It is barely two years since the Final Order Approving Settlement Stipulation was entered.

9. The Petitioner’s certification as a pool/spa servicing contractor was disciplined as a result of the entry of the Final Order Approving the Settlement Stipulation.

10. The scope of work that the Petitioner may perform pursuant to his certification as a pool/spa servicing contractor differs from the scope of work authorized by the certification sought in the instant matter.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. § 120.57(1), Fla. Stat. (2006).

12. As the applicant, the Petitioner bears the burden of proof to establish he is entitled to the license sought. See Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

13. Section 455.227, Florida Statutes (2006), provides, in pertinent part:

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

       
       

       * * *

       
       

       (f) Having a license or the authority to practice the regulated profession revoked, suspended, or otherwise acted against, including the denial of licensure, by the licensing authority of any jurisdiction, including its agencies or subdivisions, for a violation that would constitute a violation under Florida law. The licensing authority's acceptance of a relinquishment of licensure, stipulation, consent order, or other

       settlement, offered in response to or in anticipation of the filing of charges against the license, shall be construed as action against the license.

       
       

       * * *

       
       

    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. Refusal to certify, or to certify with restrictions, an application for a license.

          
          

14. The certification at issue in this matter is for a commercial pool/spa contractor.

15. Section 489.105, Florida Statutes (2006), defines terms pertinent to this matter as follows:

    1. "Board" means the Construction Industry Licensing Board.

    2. "Department" means the Department of Business and Professional Regulation.

    3. "Contractor" means the person who is qualified for, and shall only be responsible for, the project contracted for and means, except as exempted in this part, the person who, for compensation, undertakes to, submits a bid to, or does himself or herself or by others construct, repair, alter, remodel, add to, demolish, subtract from, or improve any building or structure, including related improvements to real estate, for others or for resale to others; and whose job scope is substantially similar to the job scope described in one of the subsequent paragraphs of this subsection. For the purposes of regulation under this part, "demolish" applies only to demolition of steel tanks over 50 feet in height; towers over 50 feet

       in height; other structures over 50 feet in height, other than buildings or residences over three stories tall; and buildings or residences over three stories tall.

       Contractors are subdivided into two divisions, Division I, consisting of those contractors defined in paragraphs (a)-(c), and Division II, consisting of those contractors defined in paragraphs (d)-(q):

       
       

       * * *

       
       

       (j) "Commercial pool/spa contractor" means a contractor whose scope of work involves, but is not limited to, the construction, repair, and servicing of any swimming pool, or hot tub or spa, whether public, private, or otherwise, regardless of use. The scope of work includes the installation, repair, or replacement of existing equipment, any cleaning or equipment sanitizing which requires at least a partial disassembling, excluding filter changes, and the installation of new pool/spa equipment, interior finishes, the installation of package pool heaters, the installation of all perimeter piping and filter piping, and the construction of equipment rooms or housing for pool/spa equipment, and also includes the scope of work of a swimming pool/spa servicing contractor. The scope of such work does not include direct connections to a sanitary sewer system or to potable water lines. The installation, construction, modification, or replacement of equipment permanently attached to and associated with the pool or spa for the purpose of water treatment or cleaning of the pool or spa requires licensure; however, the usage of such equipment for the purposes of water treatment or cleaning shall not require licensure unless the usage involves construction, modification, or replacement of such equipment. Water treatment that does not require such equipment does not require a license. In addition, a license shall not be required for the cleaning of the pool or spa in any way that does not affect the structural integrity of the pool or spa or its associated equipment.

       * * *

       
       

       (l) "Swimming pool/spa servicing contractor" means a contractor whose scope of work involves, but is not limited to, the repair and servicing of any swimming pool, or hot tub or spa, whether public or private, or otherwise, regardless of use. The scope of work includes the repair or replacement of existing equipment, any cleaning or equipment sanitizing which requires at least a partial disassembling, excluding filter changes, and the installation of new pool/spa equipment, interior refinishing, the reinstallation or addition of pool heaters, the repair or replacement of all perimeter piping and filter piping, the repair of equipment rooms or housing for pool/spa equipment, and the substantial or complete draining of a swimming pool, or hot tub or spa, for the purpose of any repair or renovation. The scope of such work does not include direct connections to a sanitary sewer system or to potable water lines. The installation, construction, modification, substantial or complete disassembly, or replacement of equipment permanently attached to and associated with the pool or spa for the purpose of water treatment or cleaning of the pool or spa requires licensure; however, the usage of such equipment for the purposes of water treatment or cleaning shall not require licensure unless the usage involves construction, modification, substantial or complete disassembly, or replacement of such equipment. Water treatment that does not require such equipment does not require a license. In addition, a license shall not be required for the cleaning of the pool or spa in any way that does not affect the structural integrity of the pool or spa or its associated equipment.

       
       

16. The denial of the instant application is not an additional disciplinary action against the Petitioner’s certification as a servicing contractor. Instead, the denial

    relates to a second license unrelated to the first. The scope of work authorized by the second, as a matter of law, exceeds that allowed by the servicing certification. As such, the Respondent may exercise its authority to determine if an applicant is appropriately credentialed to perform the work. In this case, the Respondent determined that given the Petitioner’s history (the disciplinary action against the first license) precluded the approval of the second license. The statute permits that conclusion.

17. The Stipulation executed by the Petitioner is clear and unambiguous. The Stipulation contemplated that the agreement constituted disciplinary action. The fact that the Petitioner did not admit or agree to the underlying facts that supported the resolution does not diminish his acceptance of the resolution en lieu of other possible consequences.

18. Finally, the Petitioner’s reference to Elder v. Construction Industry Licensing Board, 937 So. 2d 1172 (Fla. 1st DCA 2006) must be distinguished. Unlike Elder, supra, the Respondent does not seek to discipline or deny the same license (the Petitioner’s pool servicing certification) that had been the subject of the prior case. Further, unlike Elder, supra, the Petitioner has not complied with the terms of the Stipulation. And, unlike Elder, supra, the license sought in the instant case authorizes a scope of work that is not the same. The public concerns regarding the Petitioner’s past performance may be

considered. Obviously, the Petitioner knew he would seek the instant certification when he settled the prior disciplinary cases. Had the Stipulation included some language to assure that the prior action (against his servicing license) would not be used to adversely affect the instant request, the Respondent would be precluded from denying the application based solely on that basis. In Elder, supra, the court recognized this distinction.

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 that denies the Petitioner’s application for certification as a commercial pool/spa contractor.

DONE AND ENTERED this 20th 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 20th day of February, 2007.

COPIES FURNISHED:

Claudel Pressa, Esquire

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

Warren Diener, Esquire Bared & Associates, P.A. The Atrium

1500 San Remo Avenue, Suite 248 Coral Gables, Florida 33146

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

Professional Regulation Northwood Centre

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

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: 06-003645

Orders for Case No: 06-003645