STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, ) CONSTRUCTION INDUSTRY LICENSING ) BOARD, )

)

Petitioner, )

)

vs. ) Case No. 98-1530

)

JOSE R. GONZALEZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on January 28, 1999, with the parties appearing by video teleconference from Miami before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Dorota Trzeciecka, Esquire

Department of Business and Professional Regulation

401 Northwest Second Avenue, Suite N-607 Miami, Florida 33128

For Respondent: Josefina M. Perez-Cofino, Esquire

930 Washington Avenue, Suite 260 Miami Beach, Florida 33139

STATEMENT OF THE ISSUE

Whether the Respondent committed the violations alleged in the administrative complaint and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

This case began on December 17, 1997, when the Department of Business and Professional Regulation (Department) issued an administrative complaint alleging Respondent, Jose R. Gonzalez, had failed to comply with Section 489.127(4)(c), Florida Statutes, and Section 455.227(1)(a), Florida Statutes, by making misleading, deceptive, or fraudulent representations in the practice of his profession. More specifically, the complaint charged that Respondent had pulled a permit for an unlicensed contractor, knowing that the unlicensed individual had performed the work described on the permit, and falsely representing his company as the contractor on the permit application.

The Respondent executed an election of rights which disputed the facts set forth in the Administrative Complaint and requested a formal hearing. The matter was forwarded to the Division of Administrative Hearings for formal proceedings on March 30, 1998.

At the hearing, Petitioner presented testimony from Michael Rodriguez. Petitioner's Exhibits numbered 1, 3 through 9, 10, 12, 14, and 16 were admitted into evidence without objection. Petitioner's Exhibit 2 was admitted into evidence

over Respondent's objection as to the relevance of the document. Respondent offered two exhibits which were not admitted into evidence. The exhibits were reported to be affidavits from Hector Salvador and his son. Petitioner objected to both items as they were not provided to counsel prior to the hearing nor

were the witnesses made available to testify at hearing. The hearsay objection was sustained. Additionally, although Respondent was granted leave to late-file the exhibits for identification purposes only, Respondent has not done so.

The parties were granted ten days from the filing of the transcript to file proposed recommended orders. Only Petitioner submitted a proposed order. The transcript was filed on February 24, 1999. Petitioner's proposed order has been considered in the preparation of this order.

FINDINGS OF FACT

1. The Petitioner is the state agency charged with the responsibility of regulating construction industry licensees. Such authority includes, but is not limited to, the discipline of air conditioning contractors in the State of Florida.

2. At all times material to this case, Respondent, Jose R. Gonzalez, was a certified air conditioning contractor, license number CA C035486. According to licensing records, Respondent does business as Rainbow Mechanical, Inc.

3. Neither Nelson Rodriguez nor N.V. Air and Appliance Corporation is licensed in Florida as a state-certified or state- registered contractor. Neither has been approved by Miami-Dade County to perform contracting services.

4. Neither Hector Salvador nor Electro Mundo Corporation is licensed in Florida as a state-certified or state-registered contractor. Neither has been approved by Miami-Dade County to

   perform contracting services.

   
   

5. In September of 1995, an electrical surge caused extensive damage to a home located at 2342 Southwest 128th Avenue, Miami, Dade County, Florida. As a result of the surge, the air conditioning units and all electrical appliances were damaged. The condenser for the central air conditioning system had to be replaced.

6. Michael Rodriguez, the son of the property's owner who resided at the home, sought assistance from the insurance carrier, Allstate. He notified Allstate of the damages and expected an adjuster would come to assess the repairs.

7. Instead, one early morning in late September or early October 1995, Michael Rodriguez was awakened by Nelson Rodriguez who was removing the air conditioning condenser. When Michael Rodriguez questioned the activity (he had not heard back from Allstate), Nelson Rodriguez referred him to Hector Salvador.

8. Mr. Salvador arrived at the property a short while later and advised Michael Rodriguez that he (doing business as Electro Mundo Corporation) had been retained by Allstate to do the work.

9. Thereafter, Salvador and Nelson Rodriguez were given access to the property on numerous occasions to correct the electrical problems.

10. Michael Rodriguez became suspicious of their work when nothing seemed to work better after repairs. He became so concerned as to the quality of the work that he began to make

    inquiries to building officials.

    
    

11. Eventually, Michael Rodriguez discovered a permit had not been pulled for the work. Later he determined that Nelson Rodriguez and Salvador were not licensed.

12. Meanwhile, Salvador contacted Respondent and asked him to pull a permit for the job. Respondent considered himself a subcontractor to Electro Mundo. At the time the Respondent applied for the permit for the air conditioning work at the homeowner's residence, Respondent knew that the work he described in the permit application (replacement of the condenser) had already been performed by an unlicensed contractor, without a permit.

13. On or about August 21, 1996, Respondent completed a permit application for the subject home. Such application identified Rainbow Mechanical as the contractor and described the work as "replaced condenser." The permit did not address the other numerous electrical repairs needed.

14. Respondent did not replace the condenser at the subject home. That work had been performed by Electro Mundo or Nelson Rodriguez.

15. Respondent's involvement at the home consisted of pulling the permit, calling for an inspection, correction of a cable problem identified by the inspector, and calling for a re- inspection which passed.

16. Respondent never talked personally to the property

    owner or the son. Respondent never had a written contract with anyone to perform the work.

17. Respondent maintains that Electro Mundo reimbursed him for the permit fees but did not pay him for any service for the job.

18. Electro Mundo was not approved or authorized by Allstate to make the electrical repairs to the subject home. Electro Mundo is not on Allstate's quality vendor list.

19. The property owner never contracted with Electro Mundo to perform electrical services at the property but permitted access to the property based upon the direction of an individual named Maria Torres who represented Allstate had dispatched Salvador to the job.

20. Although factually not similar to the violation alleged in this matter, Respondent was previously disciplined by the Construction Industry Licensing Board.

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

22. Petitioner bears the burden of proof in this cause to establish by clear and convincing evidence the violation alleged against this Respondent. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

23. Section 489.129, Florida Statutes, authorizes

    Petitioner to revoke, suspend, or otherwise discipline the license of a contractor found guilty of the violations listed therein.

24. Section 489.127(4)(c), Florida Statutes, provides:

    
    

    A certified or registered contractor, or contractor authorized by a local construction regulation board to do contracting, may not apply for or obtain a building permit for construction work unless the certified or registered contractor, or contractor authorized by a local construction regulation board to do contracting, or business organization duly qualified by said contractor, has entered into a contract to make improvements to, or perform the contracting at, the real property specified in the application or permit. This

    paragraph does not prohibit a contractor from

    applying for or obtaining a building permit to allow the contractor to perform work for another person without compensation or to perform work on property that is owned by the contractor.

    
    

25. Section 455.227(1)(a), Florida Statutes, provides:

    
    

    1. The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:

       
       

       1. Making misleading, deceptive, or fraudulent representations in or related to the practice of the licensee's profession.

          
          

26. In this case the Petitioner has established by clear and convincing evidence that the Respondent filed a false permit application in violation of Section 455.227(1)(a), Florida Statutes. Additionally, Respondent knew at the time the permit was pulled that the work had been performed by an unlicensed party. Respondent's assertion that the permit was pulled without

    compensation is immaterial to the fact that Respondent knowingly assisted an unlicensed party attempt to cover a job by pulling the permit after-the-fact. Moreover, Respondent knew at the time the permit was pulled that he would not be performing the work cited in the permit application. Respondent's assertion that he went to the subject home on two occasions, applied for the permit, called for inspections, and made a cable repair (to comply with the inspector's code problem) at the bequest of an individual or entity with whom he has no special tie and from whom he received no compensation is not credible.

27. Rule 61G4-17.001, Florida Administrative Code, sets forth the normal penalty ranges to be employed in disciplinary cases. Absent aggravating or mitigating circumstances, the guidelines set forth in the rule are to be applied. As it was factually unrelated in any material way to the allegations of this case and remote in time (over ten years ago), the prior disciplinary history of this Respondent has been discounted as an aggravating circumstance. Moreover, Respondent fully complied with the all penalty requirements in his prior case.

    Accordingly, the guidelines set forth by the rule have been deemed persuasive in this matter.

28. Having considered all evidence received in this case it is concluded Respondent violated Section 455.227(1)(a), Florida Statutes, by filing a false or misleading permit application for the subject property. The minimum fine for the misleading

    representations is $1,000.00.

    
    

29. Secondly, it is concluded Respondent violated Section 489.127(4)(c), Florida Statutes, by pulling a permit for which he was not going to do the work as contemplated by that provision. Respondent had not entered into a contract with the property owner nor had he supervised a duly qualified contractor to perform the work at his direction. Respondent was attempting to secure approval after-the-fact for work performed by an unlicensed individual. The minimum fine for this violation is

    $500.00.

    
    

30. Finally, it is concluded Petitioner is entitled to recover its costs in connection with the prosecution of this case. Such costs should be awarded with the entry of the final order.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board enter a Final Order imposing an administrative fine in the amount of $1,500, suspending Respondent's license for a period of sixty days, imposing a probationary period thereafter, and awarding costs of prosecution.

DONE AND ENTERED this 22nd day of March, 1999, in Tallahassee, Leon County, Florida.

J. D. PARRISH Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1999.

COPIES FURNISHED:

Rodney Hurst, Executive Director Department of Business and

Professional Regulation Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300

Jacksonville, Florida 32211-7467

Lynda L. Goodgame, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Dorota Trzeciecka, Esquire Department of Business and

Professional Regulation Construction Industry Licensing Board

401 Northwest 2nd Avenue, Suite N-607 Miami, Florida 33128

Josefina Perez-Cofino, Esquire

7860 Northwest 71 Street, Suite 302

Miami, Florida 33166

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 98-001530

Orders for Case No: 98-001530