STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID L. MOONEY, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2316

) STATE OF FLORIDA, DEPARTMENT ) OF PROFESSIONAL REGULATION ) FLORIDA CONSTRUCTION INDUSTRY ) LICENSING BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on December 1, 1981, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Patricia R. Gleason, Esquire

Assistant Attorney General Department of Legal Affairs The Capitol

Tallahassee, Florida 32301

For Respondent: Robert E. Bourne, Jr., Esquire

FUCHS and JONES

1825 Forest Hill Boulevard, Suite 205 West Palm Beach, Florida 33406

ISSUE

Whether or not Respondent's denial of Petitioner's application for certification as a licensed plumber was proper.

FINDINGS OF FACT

1. Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record 1/ compiled herein, the following relevant facts are found.

   
   

2. During mid-April of 1981, Petitioner, David L. Mooney, filed an application to be certified to sit for the next Certified Contractors' Examination with the Respondent, Construction Industry Licensing Board. Since approximately 1969, Petitioner had been a resident of Newton, New Jersey, where he was licensed as a Master Plumber. While residing in New Jersey, Petitioner was in a private plumbing business which was fairly successful, however, due to the weather conditions in the New Jersey area, the plumbing business is

   primarily a seasonal business. As a result of the seasonal nature of the plumbing business in New Jersey, Petitioner's business also had cash-flow problems. Petitioner also experienced personal financial problems in connection with his adoption of a son while in New Jersey. Petitioner was forced to expend a substantial amount of money in legal fees and had to leave the State of New Jersey in order to gain the release of the adopted son. Briefly, and more specifically, evidence reveals that the adopted son had several brushes with the law, including an involvement in an armed robbery and arson of a country club. (Testimony of Petitioner.)

   
   

3. Petitioner's application was examined by members of the Respondent, Construction Industry Licensing Board (Board), and the Board decided that it could not certify Petitioner to sit for licensure as a certified contractor due to a lack of financial responsibility. An examination of Petitioner's application for licensure to sit for the Certified Contractors' examination reveals that at the time in which he filed his application, his cash on hand amounted to $500.00 with virtually no assets and he had incurred liabilities in excess of $118,000.00. Petitioner's application reveals that there were outstanding judgments against him, tax liens, and several past due and delinquent accounts and/or bills.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this matter. Chapter 120.57(1), Florida Statutes.

   
   

5. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

   
   

6. The authority of the Respondent is derived from Chapter 489, Florida Statutes, and Rule Chapter 21E-15, Florida Administrative Code.

   
   

7. Chapter 489.115(2), Florida Statutes, authorizes the Board to pass requirements for certification of applicants and to investigate the financial responsibility, credit, business reputation of any new applicant for certification or a change of status for certification of an applicant. Chapter 489.115(2), Florida Statutes, and Rule Chapter 21E-15.05, Florida Administrative Code. In carrying out its functions to implement the above rule, the Respondent investigates the financial responsibility of all applicants to safeguard the public and make certain that it (the public) will not sustain economic loss resulting from a contractor's inability to pay his lawful obligations under contract. The financial responsibility grounds on which the Board may refuse to qualify an applicant include "the existence, within the past five (5) years preceding the date of the application, of an unsatisfied court judgment rendered against the applicant based upon the failure of the applicant to pay its just obligation to parties with whom the applicant conducted business as a contractor and an unfavorable credit report or history as indicated by any of the documents submitted." An examination of Petitioner's credit reports submitted with his application for certification reveals that he has been the subject of an unsatisfied court judgment within the past five (5) years and also has an unfavorable credit history. These facts constitute grounds on which the Board may refuse to qualify Petitioner as an applicant for certification as a Certified General Contractor. 2/

8. Accordingly, it is concluded as a matter of law that the Petitioner has failed to satisfy the requirements of Rule Chapter 21E-15.06(2)(c) and (d), Florida Administrative Code.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED:

That the Respondent deny Petitioner's application for certification as a plumbing contractor in the State of Florida.

RECOMMENDED this 25th day of February, 1982, in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 1982

ENDNOTES

1/ The parties jointly stipulated that the deposition of Terance W. McLaughlin, a Board member of the Department of Professional Regulation, Construction Industry Licensing Board, may be used as evidence herein, in lieu of live testimony. (Joint Exhibit 1.)

2/ During the course of the hearing, evidence introduced indicates that Petitioner is not estopped from becoming a registered contractor since registrants require only compliance with local building requirements and does not subject an applicant to inquiry by the Board into an applicant's financial responsibility or credit worthiness. As an aside, it was noted, and evidence adduced reveals that Respondent's fortitude in his efforts to protect his adopted son is indeed laudable. However, his present credit history cannot he overlooked. It, thus, appears that the registration procedures which are available are the proper course for Petitioner to take at this time to solidify his financial picture.

COPIES FURNISHED:

Patricia R. Gleason, Esquire Assistant Attorney General Department of Legal Affairs The Capitol

Tallahassee, Florida 32301

Robert E. Bourne, Jr., Esquire FUCHS AND JONES

1825 Forest Hill Boulevard Suite 205

West Palm Beach, Florida 33406

Docket for Case No: 81-002316

Orders for Case No: 81-002316