STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 87-3936

)

BERNARDO DURAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on November 10, 1987, in Miami, Florida.

Petitioner Department of Professional Regulation, Construction Industry Licensing Board, was represented by David L. Swanson, Esquire, Tallahassee, Florida; and Respondent Bernardo Duran was represented by Richard D. Katz, Esquire, Coral Gables, Florida.

Petitioner filed an Administrative Complaint against Respondent alleging various violations of the Construction Contracting laws, and Respondent timely requested a formal hearing. Accordingly, the issues for determination herein are whether Respondent is guilty of the allegations contained within the Administrative Complaint, and, if so, what disciplinary action should be taken, if any.

Petitioner presented the testimony of Michael O'Connor and by way of deposition Milton Rubin. Respondent testified on his own behalf. Additionally, Petitioner's Exhibits numbered 1-5 and Respondent's Exhibits numbered 1 and 2 were admitted in evidence.

Both parties submitted posthearing proposed findings of fact in the form of proposed recommended orders. Rulings on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. On June 24, 1985, Respondent Bernardo Duran as qualifying agent for Duran Roofing, Inc., d/b/a A-1 Duran Roofing was issued a Certificate of Competency as a roofing contractor by the Metropolitan Dade County Construction Trades Qualifying Board.

   
   

2. By letter dated July 22, 1986, Respondent was notified of five charges brought against him by the Metropolitan Dade County Construction Trades Qualifying Board.

3. On August 14, 1986, Respondent attended a formal hearing before the Metropolitan Dade County Construction Trades Qualifying Board to answer the charges brought against him by the Board. At the conclusion of the hearing Respondent was advised by that Board that the Board had found him guilty of two of those charges and that the Board was taking disciplinary action against him as follows: a reprimand and a fine of $1,000 on one of those charges, and revocation of Respondent's personal and business Certificates of Competency plus a fine of $2,500 on the other charge. The fines totaling $3,500 were to be paid within 60 days.

   
   

4. By letter dated August 15, 1986, Respondent was again advised that he was being given a reprimand, that his personal and business Certificates of Competency were revoked, and that he was being fined a total of $3,500 which was required to be paid within 60 days of the date of the formal hearing.

   
   

5. On September 11, 1986, Respondent appealed the Order of the Metropolitan Dade County Construction Trades Qualifying Board to the Circuit Court of the Eleventh Judicial Circuit of Florida, in and for Dade County.

   
   

6. On February 4, 1987, Respondent filed with the Department of Professional Regulation, Construction Industry Licensing Board, his application for registration as a roofing contractor. Respondent attached to that application a copy of his revoked Metropolitan Dade County Construction Trades Qualifying Board Certificate of Competency, thereby indicating that he had met the prerequisites for state registration. Respondent specifically failed to advise that the certificate which he was attaching had been previously revoked.

   
   

7. The application which Respondent filed with the Florida Construction Industry Licensing Board specifically asks on the applicant whether the applicant or a corporation for which the applicant is an authorized representative has ever had disciplinary action taken against a contracting license by any state, county or municipality. Respondent answered that question in the negative although he was fully aware that a negative answer was false.

   
   

8. Unaware of Respondent's false representations contained within his application for state registration, on February 19, 1987, the Florida Construction Industry Licensing Board issued to Respondent as the qualifying agent for A-1 Duran Roofing a temporary license as a roofing contractor, registration number RC 0052908. Thereafter, the Florida Construction Industry Licensing Board became aware that Respondent's personal and business Certificates of Competency had been previously revoked by his local Board. Accordingly, no permanent license was issued to Respondent.

   
   

9. On September 9, 1987, the Circuit Court of the Eleventh Judicial Circuit of Florida, issued its Mandate in Respondent's appeal from the Order of the Metropolitan Dade County Construction Trades Qualifying Board. Contrary to Respondent's assertion at the final hearing in this cause, the Circuit Court did not reverse the revocation of his certificates but rather reversed the final order of the Board and remanded the case for a new hearing to be conducted by that Board.

   
   

10. Respondent admitted during the final hearing in this cause that no one had ever advised him that filing an appeal from an order of the Metropolitan Dade County Construction Trades Qualifying Board could stay any disciplinary action taken by that Board. Rather, Respondent admitted that he was specifically advised by that Board that he could only work again as a roofer if any appeal filed by him were successful.

11. When Respondent submitted his application for registration to the Florida Construction Industry Licensing Board, he knew that the Certificate of Competency he attached to it had been revoked and that his denial of previous disciplinary actions was false.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes.

    
    

13. Section 489.129(1), Florida Statutes, authorizes Petitioner to revoke, suspend, or deny registration to a contractor who is found guilty of any of the following acts:

    
    

    1. Upon proof that a certificate or registration has been obtained by fraud or misrepresentation.

(c) Violation of chapter 455.

(i) Disciplinary action by any municipality or county, which action shall be reviewed by the state board before the state board takes any disciplinary action of its own.

(m) Upon proof that the licensee is guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.

Section 455.227(1)(a), Florida Statutes, authorizes Petitioner to take disciplinary action against a licensee who has made misleading, deceptive, untrue, or fraudulent representations in the practice of his profession.

Petitioner has met its burden of proving that Respondent has violated the statutory prohibitions set forth above, as alleged in the Administrative Complaint filed herein. At the time that Respondent filed his application for registration as a roofing contractor he had been disciplined and knew that he had been disciplined by the Metropolitan Dade County Construction Trades Qualifying Board even though the Board's order was at that time on appeal.

Respondent intentionally withheld that information. Additionally, Respondent knew at the time that he submitted his application to the Florida Construction Industry Licensing Board and attached to that application a copy of his Dade County Certificate of Competency that that certificate had been revoked and that he did not possess a valid Certificate of Competency.

RECOMMENDATION

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

RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained within the Administrative Complaint filed herein and revoking Respondent's license as a registered roofing contractor.

DONE and RECOMMENDED this 28th day of December, 1987, at Tallahassee, Florida.

LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3936

1. Petitioner's proposed findings of fact numbered 1- 11, 13, and 16 have been adopted either verbatim or in substance in this Recommended Order.

2. Petitioner's proposed findings of fact numbered 12 and 15 have been rejected as being secondary to the ultimate issues involved herein.

3. Petitioner's proposed finding of fact numbered 14 has been rejected as not being supported by the evidence in this cause.

4. Petitioner's proposed findings of fact numbered 17 and 18 have been rejected as not constituting findings of facts but rather as constituting argument of counsel or conclusions of law.

5. Respondent's proposed findings of fact numbered 1- 3 and 5 have been adopted either verbatim or in substance in this Recommended Order.

6. Respondent's proposed findings of fact numbered 4, 6, 7, 9, and 10 have been rejected as being contrary to the evidence in this cause.

7. Respondent's proposed finding of fact numbered 8 has been rejected as being irrelevant.

COPIES FURNISHED:

Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2

Jacksonville, Florida 32201

David L. Swanson, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Richard D. Katz, Esquire

300 Aragon Avenue Suite 330

Coral Gables, Florida 33134

William O'Neil, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 87-003936

Orders for Case No: 87-003936