STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 83-022

)

BYRON K. GODWIN, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

This cause was heard pursuant to notice on October 25, 1983, in Tampa, Florida, by Stephen F. Dean," assigned Hearing Officer of the Division of Administrative Hearings. This case arose upon an Administrative Complaint filed by the Construction Industry Licensing Board against the Respondent, Byron K. Godwin, Jr., alleging that the Respondent falsified his application for licensure as a plumbing contractor in violation of Sections 489.127(1)(d) and 489.129(1)(j), Florida Statutes.

APPEARANCES

For Petitioner: Michael E. Egan, Esquire

217 South Adams Street Post Office Box 1366

Tallahassee, Florida 32301

For Respondent: Mary Ann Stiles, Esquire

One Mack Center. Suite 1604

501 East Kennedy Boulevard Tampa, Florida 33602

ISSUE

The issue presented is whether the Respondent is guilty of the allegations contained in the Administrative Complaint and therefore, in violation of Sections 489.127(1)(d) and 489.129(1)(j), Florida Statutes.

Both parties submitted posthearing findings of fact, which were read and considered. Those findings not incorporated herein are found to be subordinate, cumulative, immaterial, unnecessary, or not supported by the evidence.

FINDINGS OF FACT

1. The Respondent, Byron K. Godwin, Jr., is a certified plumbing contractor and a certified air conditioning contractor, having been issued license numbers CF C019153 and CA C020205.

2. On July 6, 1978, the County Court Civil Division of Hillsborough County, Florida, entered a final judgment for Gorman Company of Tampa Inc., against the Respondent and Robert ,L. Hatfield in the amount of $2,252.36, including costs.

   
   

3. On September 25, 1978, the Circuit Court, of the Tenth Judicial Circuit of Polk County, Florida, entered a final judgment for Peninsular Supply Company, Inc., against the Respondent, and Hatfield in the amount of $12,164.60, including costs.

   
   

4. These judgments were based upon unpaid past-due bills resulting from the operation of Godwin and Hatfield, a construction company jointly owned by the Respondent and Hatfield.

   
   

5. As of December 30, 1980, these judgments had not been satisfied by the Respondent, by Hatfield, or by anyone else.

   
   

6. On March 11, 1980, a federal tax lien was filed with the Clerk of the Circuit Court of Hillsborough County, Florida, against the Respondent and Hatfield in the amount of 73,712.19.

   
   

7. On May 8, 1980, the Respondent and Hatfield entered into an installment agreement with the Internal Revenue Service for the purpose of repaying the tax lien. Although both the Respondent and Hatfield knew about their tax deficiency, neither the Respondent nor Hatfield knew that the tax lien had been filed. Both men were advised by a representative of the IRS that a tax lien would not be filed if they agreed to pay the taxes due in installments. The Respondent attached a letter of explanation

   regarding the tax deficiency to his application.

   
   

8. As of December 30, 1980, the tax lien had not been satisfied by the Respondent or Hatfield.

   
   

9. On December 26, 1980, the Respondent made application to the Construction Industry Licensing Board to become a certified plumbing contractor.

   
   

10. On his application, the Respondent answered in the negative the following question, 7(c):

    
    

    Are there now any liens, suits,

    or judgments of record or pending as

    a result of the construction operations of any person named in "(i) below"

    or any organization in which -- such person was a member of the personnel?

    
    

11. On his application, the Respondent also answered in the negative the following question, 7(d):

    
    

    Are there now any unpaid past-due

    bills or claims for labor, materials or services as a result of the construction operations of any person named in "(i) below" or any organization in which any such person was a member of the personnel?

12. The Respondent admitted that he was aware of the outstanding judgments, and, from the, application, it, is clear the outstanding judgments related to him as the applicant. In the space following question 7(i), the Respondent signed as applicant and then as corporate president and noted there was no vice president.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Construction Industry Licensing Board has jurisdiction to take disciplinary action against the Respondent's air conditioning and plumbing contracting licenses pursuant to Chapter 489, Florida Statutes. This Recommended Order is entered pursuant to Section 120.57(1), Florida Statutes.

    
    

14. The Respondent is charged with violating Section 489.127(1)(d), Florida Statutes, and thereby Section 489.129(1)(j), Florida Statutes. Section 489.127(1)(d) provides:

    
    

    1. No person, shall:

       (d) Give false or forged evidence to the board or a member thereof for the purpose of obtain- ing a certificate or registration.

       
       

       The issue presented is whether the Respondent knowingly falsified his application. If the Respondent made an honest mistake on his application, there is no basis for disciplinary action.

       
       

15. Contrary to the contention of the Petitioner, Section 489.127(1)(d), Florida Statutes, requires mens rea. Although the statute does not contain the word "knowingly," Section 489.127 (1)(d), supra, is a criminal statute which requires mens rea. The Petitioner must show mens rea to prove a violation of the cited statute and, thereby, violation of Section 489.129(1)(j), Florida Statutes.

    
    

16. The evidence shows that the Respondent knew about the judgments and the tax problems of his former partnership when he made application for his plumbing contractor's license. The evidence shows the Respondent answered incorrectly the question on his application about outstanding judgments when he said there were none. However, the record shows the Respondent did not know about the tax lien, and that he revealed in an attached letter the tax problem as he understood it in amplification of his negative answer to question 7 (d).

    
    

17. The Respondent is not an unsophisticated businessman, but is a licensed certified public accountant in the State of Georgia. It is inconceivable that he misunderstood question 7(i) on the application. The application form shows that the Respondent entered the answers to question 7(i) in the space immediately following that question together with his signature as applicant and president and the signature of the secretary of the corporation. Therefore, the Respondent's explanation to the Board's investigator that he did not answer question 7(c) properly because he did not understand question 7(i) is not believable. However, at the time of the investigator's visit, the Respondent's wife was critically ill and recovering from neurosurgery. At hearing, the Respondent could not remember who he had answered question 7 (c) in the negative.

    
    

18. Having heard all the facts and considered the argument of counsel, it is found that the Respondent answered the question about the judgments in the negative, although he was aware of the judgments at the time he filled out the

    application, and intentionally withheld the information. Therefore, the Respondent is guilty of violating Section 489.127(1)(d), Florida Statutes, and thereby Section 489.129(1)(j), Florida Statutes.

    
    

19. In mitigation, the Board is proceeding against both the Respondent's air conditioning contractor's license and his plumbing contractor's license. Only the Respondent's plumbing contractor's license is involved with the application in question. The judgments which the Respondent failed to report are not per se disqualifying, but relate to the Respondent's financial responsibility. The evidence introduced at the hearing tends to show that the Respondent's current business is financially responsible. It should also be considered that the Respondent did reveal completely the tax deficiency as he understood it to exist, which reasonably would have led to discovery of, the judgments. The Respondent is basically an honest contractor who is operating what appears to be a fiscally sound business. The Board may and should consider these facts in arriving at a penalty.

RECOMMENDATION

Having found the Respondent guilty of violating Section 489.127(1)(d), Florida Statutes, by knowingly filing an application Containing false information, and thereby being guilty of violating Section 489.129(1)(j) , Florida Statutes, and in consideration of the facts in mitigation, it is recommended that the Board take no action against the Respondent's air conditioning contractor's license, which was not related to the application in question in this case. It is further recommended that the Board administratively revoke the Respondent's plumbing contractor's license with leave to file a complete and correct application for the Board's consideration.

DONE and RECOMMENDED this 22nd day of December, 1983, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, 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 22nd day of December, 1983.

COPIES FURNISHED:

Michael E. Egan, Esquire

217 South Adams Street Post Office Box 1386

Tallahassee, Florida 32301

Mary Ann Stiles, Esquire One Mack Center, Suite 1604

501 East Kennedy Boulevard Tampa, Florida 33602

Frederick Roche, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

James Linnan, Executive Director Construction Industry Licensing Board

Post Office Box 2 Jacksonville, Florida 32202

Docket for Case No: 83-000022

Orders for Case No: 83-000022