Petitioner was guilty of making fraudulent misrepresentations on his application pursuant to Subsections 455.227(1)(h) and (2), Florida Statutes; and (4) Petitioner lacked "good moral character" pursuant to Subsections 489.111(1)(b) and (3), Florida Statutes.
At the final hearing held on March 14, 2006, Petitioner testified on his own behalf and also presented the testimony of five other witnesses. Petitioner also offered into evidence exhibits numbered as follows: 1, 2, 3, 4, 7, 8, 10, 13, 16, 17,
20, 21, 22, 23, 24, and 26. Objections were sustained to Petitioner's exhibits numbered 17 and 22. The rest of Petitioner's exhibits were received in evidence. Respondent recalled one of the witnesses presented by Petitioner and presented the testimony of one additional witness. Respondent also offered two exhibits, both of which were received in evidence. Official recognition was also taken of several documents.
At the close of the evidentiary portion of the final hearing, the parties requested, and were allowed, 10 "working days" from the filing of the hearing transcript within which to file their respective proposed recommended orders. A one-volume hearing Transcript was filed on April 5, 2006. The parties jointly requested an extension until April 26, 2006, within which to file their proposed recommended orders. The request was granted, and on April 26, 2006, both parties filed proposed recommended orders containing proposed findings of fact and conclusions of law. The parties' proposals have been carefully considered during the preparation of this Recommended Order.
On May 10, 2006, Petitioner filed a motion seeking costs and attorney's fees pursuant to Subsection 120.569(2)(e), Florida Statutes (2005). The issues raised in that motion have been addressed in a separate order issued on the same date as this Recommended Order.
In June 2004, Petitioner submitted to Respondent an application for licensure as a certified general contractor. Petitioner had already passed the requisite contractor's examination.
Question one at page six on the form used by Petitioner states:
Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest) to, even if you received a withhold of adjudication? This question applies to any violation of the laws of any municipality, county, state or nation, including felony, misdemeanor and traffic offenses (but not parking, speeding, intersection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, were paroled, or pardoned. If you intend to answer "NO" because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, or applicable law of another state, you are responsible for verifying the expungement or sealing prior to answering "NO." YOUR ANSWER TO THIS QUESTION WILL BE CHECKED AGAINST LOCAL, STATE AND FEDERAL RECORDS.
FAILURE TO ANSWER THIS QUESTION ACCURATELY MAY RESULT IN THE DENIAL OR REVOCATION OF YOUR LICENSE. IF YOU DO NOT FULLY UNDERSTAND THIS QUESTION, CONSULT WITH AN ATTORNEY OR CONTACT THE DEPARTMENT.
Petitioner answered this question in the affirmative and disclosed a federal bank robbery conviction from 1994. Petitioner served 58 months in prison, underwent three years of probation, and paid full restitution for that conviction.
Question eight of the form used by Petitioner at Page 13 states:
Have you, or a partnership in which you were a partner, or an authorized representative, or a corporation in which you were an owner or an authorized representative ever:
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8. Been convicted or found guilty of or entered a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction within the past 10 years? Note: if you, the applicant/licensee, have had a felony conviction, proof that your civil rights have been restored will be required prior to Licensure.
Because Petitioner has had a clean record since his bank robbery conviction in 1994, Petitioner answered this question in the negative. The "No" answer was provided despite the fact he had been found guilty of two misdemeanors: Unauthorized Use or Possession of Driver's License and Unlawful
Possession of Cannabis upon the entry of a nolo contendere plea in 1989.
On August 5, 2004, Respondent requested additional information from Petitioner concerning his work experience and equipment. On February 8, 2005, Respondent requested additional information regarding proof of restoration of Petitioner's civil rights. Neither of the requests asked Petitioner for further information about his criminal past.
The application was reviewed by Respondent and was denied. The Board's (amended) stated grounds for its denial of the application were: (1) Petitioner was guilty of committing a crime -- bank robbery -- directly related to contracting or the ability to practice contracting pursuant to Subsection 489.129(1)(b), Florida Statutes (2004); (2) Petitioner was guilty of committing a crime -- bank robbery -- related to contracting or the ability to practice contracting pursuant to Subsections 455.227(1)(c) and (2), Florida Statutes;
(3) Petitioner was guilty of making fraudulent misrepresentations on his application pursuant to Subsections 455.227(1)(h) and (2), Florida Statutes; and (4) Petitioner lacks "good moral character" under Subsections 489.111(1)(b) and (3), Florida Statutes.
Petitioner was confused by the questions on the application concerning past criminal history. He freely and
voluntarily provided information about the felony bank robbery conviction. He did not believe the misdemeanor charges were within the time frame (ten years) discussed in the application.
Applicants routinely make mistakes and have omissions on the Board's application form, causing the Board to routinely send formal Requests for Additional Information to applicants. The Board processes hundreds of applications every week. Many applicants receive formal written Requests for Additional Information from the Board, including requests directed to the criminal history section of the Board's application package. Professional services have developed for the purpose of assisting applicants with these applications. One such service helps with 15 to 20 applications every week.
Petitioner is not and has never been a contractor, or a certificateholder or registrant, under Chapters 455 or 489, Florida Statutes (2004). Obviously then, Petitioner has never been the subject of any DBPR disciplinary action proceedings or orders commenced under Section 455.225 or Subsection 489.129(1), Florida Statutes (2004).
A licensed contractor may typically collect funds from his client and disburse them to vendors, subcontractors, and the like. Contractors could also have access and/or keys to houses of persons for whom they are working. These responsibilities require the contractor to act prudently and reasonably. It is
noted that a contractor may utilize a "financially responsible officer" to manage and be responsible for all monies coming from the contractor's clients.
Respondent maintains that the bank robbery conviction is evidence of Petitioner's bad moral character. No other evidence of Petitioner's character was presented by Respondent.
Petitioner's family immigrated to the United States via Spain from Cuba in 1980. He had a high school diploma and attended college, but did not finish his degree. He was abusing alcohol and drugs and associating with the wrong sort of people at the time he committed the bank robbery in 1994. While in prison, Petitioner attended drug rehabilitation classes for a period of one year. The classes were held five days a week, eight hours per day. During this time, he was housed in a special dorm for inmates attending the classes. His drug rehabilitation courses continued for six months after he was released from prison.
He has paid full restitution for the money he stole.
Petitioner's last criminal conviction was the 1994 bank robbery. Since abandoning drugs after this conviction, Petitioner has not been arrested for any crime, has become a husband and father, and has dispatched his professional duties to the praise of his colleagues and employer. Petitioner has been regularly employed since he stopped using drugs. He is currently employed as a
sales manager for a large telecommunications company. He has an excellent credit history. Petitioner owns his own home subject to a mortgage. Petitioner also owns his own painting business, which is licensed by Broward County, Florida.
Rafael Antequera has known Petitioner for approximately five years. Petitioner currently is employed by Antequera's company, Antequera Enterprises, Inc., with whom Petitioner would become a general contractor upon approval of his certified general contractor's licensure application.
Mr. Antequera trusts Petitioner with his company's supplies, equipment, and money. Mr. Antequera considers Petitioner to be a good, honest, hard-working, and reliable employee. Antequera believes that Petitioner has the ability to distinguish right from wrong and has the character to observe the difference.
Mr. Carlos Alonso also has known Petitioner for more than four years. Mr. Alonso worked with Petitioner at
Mr. Alonso's family construction company, Domas & Alonso Development, Inc. Petitioner worked for Mr. Alonso as a project manager from 2004 to 2005. His duties included ordering supplies, picking up supplies, and interacting with local building inspectors. Petitioner was in a position of great trust and was often given a blank bank check to obtain project supplies. Petitioner never misused or abused that position of trust and authority.
Rev. Adam S. Zele is a pastor at Epworth United Methodist Church, where Petitioner attends church. Pastor Zele described Petitioner as a hard-working, devoted family man with religious conviction. Zele also has observed Petitioner in a business capacity. With full knowledge of Petitioner's prior criminal history, Pastor Zele awarded Antequera Enterprises a
$20,000 bid to paint his church. Petitioner acted as the salesperson for the project, and Pastor Zele was confident enough in Petitioner to hand Petitioner a check in the amount of
$10,000 for the first half of the work. Petitioner is actively involved with the activities of Epworth United Methodist Church. Petitioner is highly regarded by church officials and enjoys a reputation of being very reliable, honest, and a person of integrity and good morals.
The Board recently granted a license with six years' probation to an applicant who had been convicted of a crime related to contracting. The nature of that crime was not clear from the evidence.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes (2005).
Section 489.111, Florida Statutes (2004), governs standards for certification as a general contractor, and states that a person shall be eligible for licensure by examination if the person is 18 years of age, is of good moral character, and meets certain experience eligibility requirements. That statutory section also provides, in pertinent part:
(3)(a) The Board may refuse to certify an applicant for failure to satisfy the requirement of good moral character only if:
There is a substantial connection between the lack of good moral character of the applicant and the professional responsibilities of a certified contractor; and
The finding by the board of lack of good moral character is supported by clear and convincing evidence.
In licensing cases, the applicant has the burden to prove by a preponderance of the evidence that he is entitled to the requested license. Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). However, Subsection 489.111(3)(a), Florida Statutes (2004), requires the Board to support its claim of lack of good moral character by clear and convincing evidence.
Guided by what can be learned from cases such as Page v. Watson and State Board of Medical Examiners, 140 Fla. 536,
192 So. 205 (Fla. 1938); and Pearl v. Florida Board of Real Estate, 394 So. 2d 189 (Fla. 3d DCA 1981), it is clear the crime
of bank robbery is a crime involving "moral turpitude." Simple logic leads one to the conclusion that moral turpitude is, in essence, the antithesis of "good moral character." Stated otherwise, people who commit crimes involving moral turpitude are not people of good moral character. There is clear and convincing evidence that Petitioner committed the crime of bank robbery. Accordingly, there is clear and convincing evidence that that at the time of that criminal act, Petitioner lacked good moral character. What remains to be decided here is whether there have been sufficient changes in the nature of Petitioner's character that he can now be found to be a person of good moral character.
"Good moral character" is a broad standard subject to interpretation. The Village Zoo v. Division of Alcoholic
Beverages & Tobacco, 450 So. 2d 920 (Fla. 4th DCA 1984). But it is generally left to the trier of fact to make the final determination. Bachynsky v. State Department of Professional Regulation, 471 So. 2d 1305 (Fla. 1st DCA 1985); The Village
Zoo, 450 at 921.
The evidence submitted by Petitioner as to his current moral character is unequivocal. His co-workers, pastor, and business partner each testified to the amount of trust they would place in Petitioner. His life history subsequent to commission of the crime is devoid of events suggesting any lack
of moral character. Respondent did not provide clear and convincing evidence to suggest his character was not moral. Rather, it relied upon the single incident from his past. In Zemour, Inc. v. State of Florida, Division of Beverage, 347 So. 2d 1102 (Fla. 1st DCA 1977), the court noted specifically that an isolated unlawful act or acts of indiscretion do not necessarily establish bad moral character. Nor in the instant action does the single crime committed by Petitioner over 10 years earlier constitute an everlasting designation of bad moral character. A person is afforded the opportunity to show that he has rehabilitated himself. Aquino v. Department of Professional Regulation, 430 So. 2d 598 (Fla. 4th DCA 1983), citing State ex rel. Corbett v. Churchwell, 215 So. 2d 302 (Fla. 1968).
Petitioner has met the burden of proving his rehabilitation and current moral character; Respondent has not provided clear and convincing evidence to the contrary.
Section 489.129, Florida Statutes (2004), states:
(1) The board may take any of the following actions against any certificateholder or registrant: place on probation or reprimand the licensee, revoke, suspend, or deny the issuance or renewal of the certificate, registration, or certificate of authority
. . . if the contractor . . . is found guilty of any of the following acts:
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Being convicted or found guilty of, or entering a plea of nolo contendere to,
regardless of adjudication, a crime in any jurisdiction which directly relates to the practice of contracting or the ability to practice contracting.
Similarly, Section 455.227, Florida Statutes (2004), states:
(1) The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:
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Being convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which relates to the practice of, or the ability to practice, a licensee's profession.
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(h) Attempting to obtain, or obtaining, or renewing a license to practice a profession by bribery, by fraudulent misrepresentation, or through an error of the department or board.
Sections 455.227 and 489.129, Florida Statutes (2004), are primarily disciplinary statutes. In each of those statutes, however, the Board is given the authority to deny the license of an applicant if there is a violation. Thus, both appear to be applicable in the case of a licensure applicant.
However, there is clear and convincing evidence that Petitioner's failure to include his misdemeanor charges in the application was not fraudulent. Inherent in fraud is the element of intentional misconduct of a material fact. See
Donovan v. Armour & Co., 33 So. 2d 601 (Fla. 1948); and Ribak v. Centex Real Estate Corp., 702 So. 2d 1316 (Fla. 4th DCA 1997).
There is no evidence that his actions were intentional; rather the most logical conclusion to be reached under the evidence is that Petitioner made an honest mistake. Thus, the basis for denial derived from Subsection 455.227(1)(h), Florida Statutes (2004), is not well taken.
Agencies are required to make decisions in a uniform fashion; this APA requirement has been construed as imposing a form of administrative stare decisis. See McDonald v.
Department of Banking and Finance, 346 So. 2d 569 (Fla. 1st DCA 1977). In Plante v. Dept. of Business and Professional Regulation, Div. of Pari-Mutuel Wagering, 716 So. 2d 790, 792 (Fla. 4th DCA 1998), the court held that the Division erred by not allowing Petitioner, a veterinarian cited for drugging a horse to fix a race, to cite to the Division's own precedents reflecting that lighter penalties had been imposed in other similar cases. The court stated that stare decisis is a core principle of the American system of justice and is applicable in administrative proceedings.
Inasmuch as the Board has awarded other applicants with criminal pasts a license, and inasmuch as Petitioner seems to have proven rehabilitation and the absence of bad moral
