STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 90-0494

)

JAMES NOLAN, )

)

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter came for hearing in Tallahassee, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane Cleavinger, on March 26, 1990 and June 15, 1990.

APPEARANCES

The parties are represented as follows:

For Petitioner: George W. Harrell, Esquire

Department of Professional Regulation Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: James Nolan, Pro se

STATEMENT OF THE ISSUES

The issue addressed in this proceeding is whether Respondent's license should be disciplined pursuant to Chapter 489, Florida Statues.

At the hearing, Petitioner presented five witnesses and offered five exhibits into evidence. Respondent did not appear at the hearing held on March 26, 1990. However, after the March 26 hearing, Respondent informed the hearing officer that he did not receive adequate notice of the hearing. Based on Respondent's representations the hearing was re-opened to allow Respondent to present evidence on his behalf. The re-opened hearing was held on June 15, 1990. All parties were present. Respondent testified in his own behalf.

Respondent did not offer any exhibits into evidence.

Petitioner filed a Proposed Recommended Order on June 15, 1990. Respondent did not file a Proposed Recommended Order. The Petitioner's proposed findings of fact have been considered and utilized in the preparation of this Recommended Order except where such proposals were not supported by the weight of the

evidence or were immaterial, cumulative or subordinate. Specific rulings on the Petitioner's proposed findings of fact are contained in the appendix to this Recommended Order.

FINDINGS OF FACT

1. Sometime around July, 1987, Respondent inquired of Leon County, Florida, officials on the requirements for obtaining a heating and air- conditioning contractor's license. At that time, Respondent was advised that he would have to take an exam for the license and was given the necessary application forms. Respondent never took the examination.

   
   

2. However, on September 28, 1987, a new employee in the County's Office responsible for issuing such licenses erroneously issued Respondent a heating and air-conditioning contractor's license. The employee's error was caught around May, 1988. Respondent was notified of the error and the invalidity of his license by letter dated May 3, 1988. Respondent, on two separate occasions, was also verbally notified of the invalidity of his license by two other employees of the County's Building Department.

   
   

3. After the County had erroneously issued the Respondent his license and after he was notified that the license had been issued in error and was invalid, Respondent, by application dated September 1, 1988, applied for state-wide registration based on his County licensure. The erroneous letter of licensure from the county was attached to the application.

   
   

4. Respondent claimed that he attached the county's letter of licensure to his application on the advice of an unknown employee of the Board in its Jacksonville office. However, Respondent did not present any evidence corroborating his hearsay testimony regarding his telephone conversation on this matter. Without such corroboration such evidence is unreliable and cannot formulate the basis of a factual finding that such a conversation took place and or the content of that conversation. The reason Respondent attempted to obtain his state licensure was that by the time he was notified of the county's error he had incurred about $30,000 worth of debt to his business suppliers. Additionally, Respondent's business had financed his wife's business and supported their four children. Respondent did not believe he was in a position to simply go out of business. Respondent's priorities were simply different than those of the State. He did not perceive that his actions were wrong since he had been doing air conditioning and heating work for the past 15 years and was otherwise qualified to engage in the contracting business.

   
   

5. State registration may be obtained from the Board once a local government issues a license to an individual.

   
   

6. On September 22, 1988, based on Respondent's representation that he held a valid County heating and air-conditioning contractor's license, the Board issued Respondent a state license, License #RA0057606.

   
   

7. After issuance of the license, the Board was notified by the City that Respondent did not have a valid license. Based on that information, the Board, through its investigator, contacted the Respondent on several occasions in order to rectify the situation. During several of these contacts, Respondent admitted that he knew his County and State licenses were invalid. The best evidence of Respondent's knowledge was that he signed a cease and desist order stating that he would no longer conduct a heating and air-conditioning contracting business until such time as he was lawfully licensed. Respondent continued to engage in

   the heating and air-conditioning business. Respondent, also, plead to criminal changes of perjury and conducting a business without a license as a result of the above facts.

   
   

8. On November 2, 1988, the board issued an emergency suspension of Respondent's license based upon the foregoing facts.

   
   

9. The evidence was clear that Respondent was given several opportunities to obtain both his County and State licenses. However, for unknown reasons, Respondent failed to follow up on any of these opportunities even though he had indicated to the respective officials that he would take such a course of action. On these facts, there is no question that Respondent's license should be revoked since it was issued based on an invalid County license. Further, there is no question that Respondent knew his County license was invalid and misrepresented that material fact to Petitioner. The County license is a mandatory precondition to the issuance of the state license. Given Respondent's willful misrepresentation in conjunction with the business position he was placed in due to the County's error, Respondent should be assessed a fine of $1,000.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987).

    
    

11. Section 489.117, Florida Statutes, provides the requirements for issuance of a state license. Section 489.117 states in part:

    
    

    1. Any person engaged in the business of contracting in the state shall be registered in the proper classification, unless he is

       certified. Any person entering the business of contracting shall be registered prior to engaging in contracting, unless he is certified. To be initially registered, the applicant shall submit the required fee and file evidence, in a form provided by the department, of holding a current

       local occupational license issued by any municipality, county, or development district for the type of work for which registration is desired and evidence of successful compliance with the local examination and licensing requirements, if any, in the area for which registration is desired. No examination shall be required for registration.

       
       

12. Section 489.129, Florida Statutes, provides the grounds on which a contractor may be disciplined and the penalties for such violations. Section 489.129(1), Florida Statutes, states in part:

    
    

    1. The board may revoke, suspend, or deny the issuance or renewal of the certificate or registration of a contractor, require financial restitution to a consumer, impose an administrative fine not to exceed

       $5,000, place a contractor on probation, require continuing education, assess costs associated with investigation and prosecution, or reprimand or censure

       a contractor if the contractor, or if the business organization for which the contractor is a primary qualifying agent or is a secondary qualifying agent responsible under s. 489.1195, is found guilty of any of the following acts:

       
       

       (a) Obtaining a certificate or registration by fraud or misrepresentation. . . .

       
       

13. In this case, there is no question that Respondent violated Chapter 489, Florida Statutes when he applied for state licensure knowing that a precondition to the issuance of the state license was invalid. Such a misrepresentation is material. Since it is the absence of a precondition to the issuance of a state license which is involved in this case, there is no other alternative than to revoke Respondent's license. However, due to the willfulness of Respondent's misrepresentation Respondent should also be assessed a fine. Since there were some mitigating factors which led to Respondent's violation, the fine should not be large. A $1,000 fine would be appropriate in this case.

RECOMMENDATION

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

RECOMMENDED that the Board should enter a Final Order revoking Respondent's heating and air-conditioning license and imposing an administrative fine in the amount of $1,000.

DONE and ENTERED this 27th day of June, 1990, in Tallahassee, Leon County, Florida.

DIANE CLEAVINGER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this

27th day of June, 1990.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-0494

The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, and 9 of Petitioner's Proposed Findings of Fact are adopted in substance, in so far as material.

Copies furnished:

George W. Harrell, Esquire

Department of Professional Regulation Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

James Nolan

829 West Tharpe Street Tallahassee, Florida 32303

Kenneth E. Easley, Esquire

Department of Professional Regulation 1940 North Monroe Street

Suite 60

Tallahassee, Florida 32399-0792

Fred Seely Executive Director Post Office Box 2

Jacksonville, Florida 32202

Docket for Case No: 90-000494

Orders for Case No: 90-000494