STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

CONSTRUCTION INDUSTRY )

LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 95-1364

)

NICHOLAS DONALD BACCA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its assigned Hearing Officer, Donald R. Alexander, on September 26, 1995, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Elizabeth C. Masters, Esquire

7960 Arlington Expressway, Suite 230

Jacksonville, Florida 32211 For Respondent: No Appearance

STATEMENT OF THE ISSUE

The issue in this case is whether respondent's licenses as a registered air-conditioning contractor and registered sheet metal contractor should be disciplined for the reasons given in the amended administrative complaint filed on July 10, 1995.

PRELIMINARY STATEMENT

This matter began on December 1, 1992, when petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board, issued a three-count administrative complaint charging respondent, Nicholas Donald Bacca, licensed as a registered air-conditioning contractor and registered sheet metal contractor, with (a) having been convicted of a crime which was directly related to his practice as a contractor, (b) having engaged in the practice of contracting without meeting local licensing requirements, and

1. having been found guilty of misconduct in the practice of contracting. The second count was voluntarily dismissed by petitioner at hearing. Respondent denied the allegations and requested a formal hearing to contest the agency's action. The matter was referred by petitioner to the Division of Administrative Hearings on March 20, 1995, with a request that a Hearing Officer be assigned to conduct a hearing. On June 14, 1995, petitioner was authorized to amend the complaint in one minor respect.

   By notice of hearing dated April 18, 1995, a final hearing was scheduled on July 12, 1995, in Jacksonville, Florida. At respondent's request, the matter was continued to August 25, 1995, and then again to September 26, 1995, at the same location.

   
   

   At final hearing, petitioner presented the testimony of Gary P. Mericle, a police sergeant with the Jacksonville Sheriff's Office, and Christian E. Pardee, a licensed contractor and City of Jacksonville inspector. Also, it offered petitioner's exhibits 1-9 which were received in evidence. Exhibit 2 is the deposition of Glenn Edward Carlee, chief of police for the City of Atmore, Alabama. In addition, petitioner was authorized to file a post-hearing affidavit setting forth the costs it incurred in prosecuting this action.

   
   

   Respondent did not appear at final hearing. A more detailed explanation of his absence is given in this Recommended Order. Finally, his motion for protective order and motion to strike filed with opposing counsel, but not with the undersigned, was denied at the beginning of the hearing.

   
   

   The transcript of hearing was filed on October 12, 1995. Proposed findings of fact and conclusions of law were filed by petitioner on October 19, 1995. A ruling on each proposed finding has been made in the Appendix attached to this Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   Based upon all of the evidence, the following findings of fact are determined:

   
   

   1. The Charges

      
      

      1. At all times relevant hereto, respondent, Nicholas Donald Bacca, was licensed as a registered air-conditioning contractor and a registered sheet metal contractor, having been issued license numbers RA 0055337 and RS 0049354 by petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board (Board). When the events herein occurred, respondent was the qualifying agent for Nick Bacca Solar/Air Systems. He operated his business from his residence located at 4559 Fulton Avenue, Jacksonville, Florida.

         
         

      2. On the weekend prior to May 6, 1991, nine large air-conditioning units having a value of around $12,000 were stolen from the Atmore, Alabama Lions Community Center. The identification numbers of the units were immediately given by local police to the National Crime Information Center.

         
         

      3. Acting on information received from one of the apprehended theives, on May 14, 1991, a search warrant was obtained by the Duval County Sheriff's Office to search respondent's property at 4559 Fulton Avenue, Jacksonville, Florida. All nine units previously stolen in Atmore, Alabama were found in respondent's possession. It can be reasonably inferred from the evidence that respondent knew the units were stolen and that they could be used in his contracting practice. It is further found that by engaging in the foregoing conduct, respondent is guilty of misconduct in the practice of contracting.

         
         

      4. Respondent was charged with nine second-degree felony counts of violating Section 812.019, Florida Statutes, which makes unlawful the act of dealing in stolen property. On August 29, 1991, respondent entered a plea of no

         contest to one count of violating Section 812.019, Florida Statutes. Adjudication was withheld by the court, respondent was placed on fifteen months community control, and prior to the expiration of his community control, he was required to make restitution in the amount of $8,371.16. He was also required to pay $220.00 in court costs.

         
         

      5. For the purpose of determining an appropriate penalty, several aggravating circumstances come into play. First, in terms of the severity of the offense, respondent pled guilty to a second degree felony, punishable by state law by imprisonment for up to fifteen years in state prison. Further, the stolen property in respondent's possession could have been sold to unwitting members of the public with adverse consequences upon those persons. Finally, given the nature of the offense, a penalty having a potential deterrent effect on other contractors may be appropriate. On the other hand, there is no evidence that respondent has been disciplined by the Board on any other occasion.

         
         

      6. In investigating and prosecuting this action, petitioner has incurred costs to date in the amount of $3,745.42. This amount was established by affidavit and was not contested.

         
         

   2. Failure to Appear at Hearing

1. Although respondent's counsel received a copy of the notice of hearing issued on August 22, 1995, which scheduled a hearing on September 26, 1995, and a second notice issued on September 18, 1995, giving the specific location of the hearing, he did not appear at final hearing. He has never filed a motion for continuance with the undersigned, or otherwise contacted this office to advise that he would be unable to attend the hearing.

   
   

2. At the close of the business day prior to the hearing, respondent's counsel's office telefaxed to opposing counsel a motion for protective order and motion to strike notice of hearing. The document was not served on the undersigned. In the motions, counsel moved to strike the notice on the grounds he had not been given reasonable notice of hearing and the hearing date of September 26 had not been cleared with his office. He further cited R. Crim. P. 3.132(c) and advised he was "detained" in Alachua County until October 17, 1995, and could not attend the hearing. The motions were opposed by petitioner.

   After petitioner furnished the undersigned with a copy of the motions at final hearing, which were treated as a motion for continuance, the motions were denied.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

4. Because respondent's licenses are subject to suspension or revocation, petitioner must prove the allegations in the complaint by clear and convincing evidence. See, e. g., Lewis v. State, Department of Business and Professional Regulation, Division of Real Estate, 529 So.2d 751 (Fla. 3rd DCA 1988).

   
   

5. Respondent is charged with violating Sections 489.129(1)(b) and (m), Florida Statutes (Supp. 1990). Those provisions make it unlawful for a licensee to be "convicted or found guilty, regardless of adjudication, of a crime which relates directly to the practice of contracting" and to be "found guilty of . .

   . misconduct in the practice of contracting." By clear and convincing evidence, petitioner has established that respondent was convicted of a crime which relates directly to the practice of air-conditioning contracting, namely, dealing in stolen air-conditioners. Therefore, Count I of the complaint has been sustained. The evidence further supports a conclusion that by virtue of dealing in said stolen property, respondent is also guilty of misconduct in the contracting profession, as charged in Count III.

   
   

6. If a licensee is found guilty of any of the proscribed acts in Section 489.129(1), Florida Statutes, the same statute authorizes the Board to "place on probation or reprimand the licensee, revoke (or) suspend (the registration), . .

   . impose an administrative fine not to exceed $5,000 per violation, . . . or assess costs associated with the investigation and prosecution" of the contractor. In its proposed order, petitioner suggests that, because of aggravating factors present in this case, an appropriate penalty would be permanent revocation of respondent's license, payment of a fine of $1,500.00, and payment of costs incurred in the investigation and prosecution of this action.

   
   

7. Rule 21E-17.001, Florida Administrative Code, sets forth the guidelines that should be used in disciplinary cases, absent aggravating or mitigating circumstances. For having been convicted of a crime relating to contracting, the guidelines suggest using the "penalty for violation most closely resembling the act underlying the conviction." However, the guidelines fail to identify a violation that closely resembles the act underlying the conviction of dealing in stolen property. For engaging in misconduct in the practice of contracting, which causes no monetary or other harm to the licensee's customers, the same guidelines suggest a "$250 to $750 fine."

   
   

8. Because several aggravating factors are present here, a deviation from the normal guidelines is justified. As suggested by petitioner, revocation of respondent's two registrations is a sufficient penalty.

   
   

9. By a post-hearing affidavit filed on October 12, 1995, which has not been contested, petitioner established that the agency has incurred to date

   $3,745.42 in costs for investigating and prosecuting this action. Under the authority of Section 489.189(1), Florida Statutes, the Board may assess such costs, and respondent shall accordingly pay that amount within a timeframe to be established by the Board. As to the Board's request to keep the record open for the purpose of finalizing such costs through the date of final agency action, the request is granted with the understanding that respondent and his counsel be provided with a copy of such costs prior to any final assessment.

   
   

10. Finally, although his counsel received a copy of two notices of the hearing on September 26, 1995, there was no appearance by respondent at final hearing. Neither did his counsel file a request for a continuance with the undersigned, move to withdraw as counsel, or otherwise advise the undersigned that he would be unable to attend the hearing. Just prior to hearing, he did serve a motion for protective order and motion to strike notice of hearing on opposing counsel, but not with the undersigned, in which he moved to strike the notice on the ground counsel had not been given reasonable notice and the hearing date had not been cleared with his office. Counsel further cited R. Crim. P. 3.132(c), a rule not applicable here, and indicated that he was "detained" in Alachua County until October 17, 1995, and could not attend the hearing.

11. At hearing, petitioner's counsel represented that she unsuccessfully attempted to telephone respondent's counsel the morning of the day of hearing to indicate the motions were opposed. Based on a conversation with a secretary in his office, she then made inquiry with the state attorney's office for Alachua County and learned that respondent's counsel had been arrested in Orlando, Florida on September 5, 1995, for driving under the influence. Because that offense constituted a violation of his probation for an earlier offense in Alachua County, he was immediately transported to Gainesville, Florida where he was incarcerated. He was apparently scheduled to be released on October 17, 1995. Although petitioner's counsel made at least seven or eight unsuccessful attempts to telephone respondent's counsel prior to hearing to determine if respondent would accept a settlement offer, she was never advised by his office on any of those attempted contacts that he was incarcerated until October 17, 1995, and would be unable to attend a hearing.

    
    

12. This case has been continued on one prior occasion. This occurred on July 12, 1995, when respondent's counsel contacted the undersigned's office by telephone only minutes before the scheduled hearing and indicated he would be unable to attend the hearing. Although petitioner was present and ready to proceed with its subpoenaed witnesses, the undersigned granted respondent's ore tenus request for a continuance. In the order rescheduling the case, respondent was advised that absent a settlement, no further continuances would be granted. Because the untimely motion for protective order and motion to strike notice of hearing did not represent counsel's true circumstances, was not even filed with the undersigned, and on its face stated no justifiable grounds for continuing the case, it was properly denied.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner enter a Final Order finding respondent guilty

as charged in Counts I and III of the amended administrative complaint, revoking his license, and requiring him to pay $3,745.42 in costs incurred by the Board in investigating and prosecuting this action. Count II should be dismissed.

DONE AND ENTERED this 14th day of November, 1995, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 14th day of November, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1364

Petitioner:

Petitioner's proposed findings of fact have been adopted in substance in this Recommended Order.

COPIES FURNISHED:

Elizabeth C. Masters, Esquire 7960 Arlington Expressway

Suite 230

Jacksonville, FL 32211

Thomas A. Boyer, Jr., Esquire

390 North Orange Avenue Suite 1890

Orlando, FL 32801-1642

Mr. Nicholas D. Bacca 4559 Fulton Avenue

Jacksonville, FL 32207

Richard Hickok, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway

Suite 300

Jacksonville, FL 32211-7467

Lynda L. Goodgame, Esquire

Dept. of Business and Professional Regulation 1940 North Monroe Street

Suite 60

Tallahassee, FL 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the Final Order in this case concerning agency rules on the deadline for filing exceptions to 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: 95-001364

Orders for Case No: 95-001364