DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, ) CONSTRUCTION INDUSTRY LICENSING ) BOARD, )
vs. )
Respondent. )
Case No. 07-2500PL
Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on July 24, 2007, by video teleconference with sites in Miami and in Tallahassee, Florida.
For Petitioner: P. Brian Coats, Esquire
For Respondent: Yehuda D. Bruck, Esquire
The issue presented is whether Respondent is guilty of the allegations in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
On December 8, 2006, Petitioner Department of Business and Professional Regulation issued an Administrative Complaint against Respondent Rafael Perez, alleging that Respondent had violated several statutes and a rule regulating his conduct as a registered mechanical contractor in the State of Florida.
Respondent timely requested an administrative hearing regarding the allegations in that Administrative Complaint, and this cause was thereafter transferred to the Division of Administrative Hearings to conduct the evidentiary proceeding.
The Department presented the testimony of Jose Lezcano, Andrew Janecek, and Respondent Rafael Perez. Additionally, the Department's Exhibits numbered 1-3 and Respondent's Exhibits numbered 1 and 2 were admitted in evidence.
Although both parties requested leave to file proposed recommended orders after the conclusion of the final hearing, only the Department did so. That document has been considered in the entry of this Recommended Order.
Respondent is a registered mechanical contractor, having been issued license number RM 14016953 by the Florida Construction Industry Licensing Board. He is licensed to do business as PRT Cool Service, Inc., license number QB 45554.
The Miami-Dade County Building Code Compliance Office (hereinafter "Compliance Office") is responsible for licensing construction contractors who work within Miami-Dade County, Florida.
To engage in a particular type of construction trade within Miami-Dade County, an individual is required to apply for and be issued a competency card from the Compliance Office. That Office has employees who can assist applicants with questions concerning the application and application process, including persons who speak Spanish.
The Compliance Office licenses approximately 40 to 50 types of construction trades. These trades fall into two categories: "tested" or "non-tested." For trades within the tested category, an applicant must take and pass a written examination in order to be licensed.
The refrigeration and air conditioning mechanical contractor trade falls within the tested category, and an applicant for licensure in that trade in Miami-Dade County must take an examination as part of the application process. The Code of Miami-Dade County does not permit substituting experience for that examination.
To obtain a competency card in the refrigeration and air
conditioning trade in Miami-Dade County, an applicant must first submit a completed application, a $315 application fee, personal identification, letters of experience, and a W-2 form to the Compliance Office. Upon receipt of those documents, the Compliance Office creates a physical file for the applicant, and the application is reviewed for deficiencies. If none are found, the applicant will be approved to take the examination.
The Compliance Office then places the applicant's name on a roster as being exam-eligible, which roster is then sent to a private exam school to administer the examination. The Compliance Office also sends the applicant a letter advising that the applicant can take the exam and providing the applicant with contact information for the private school. The applicant is required to contact the private exam school to schedule and then sit for the exam.
If the applicant passes the exam, the private exam school notifies both the applicant and the Compliance Office by letter. Upon being notified that an applicant has passed the exam, the Compliance Office then contacts the applicant to determine if the applicant chooses to work in an individual capacity or as a business. If as a business, the applicant is required to fill out a business application, provide the necessary forms to identify the business, and pay a $250 fee.
The Compliance Office then reviews the business application and supporting documents and obtains a credit report directly from a reporting company. If the business application is approved, the Compliance Office notifies the applicant by
letter and instructs the applicant to provide proof of liability insurance and worker's compensation coverage. Upon receipt of that proof, the Compliance Office issues to the applicant a competency card.
In approximately August 2004, Respondent contacted the Compliance Office by telephone and requested an application for a refrigeration and air conditioning competency card and a State of Florida application for a registered mechanical contractor license. In that conversation he made specific inquiry regarding the examination he knew he was required to take to obtain the competency card. Respondent made no further contact with the Compliance Office concerning the application or the application process for the refrigeration and air conditioning competency card.
Rather, Respondent went to a private business which advertised in Spanish that it could obtain licenses and insurance and gave an individual named Daniel the application forms he received from the Compliance Office for both the County's competency card and the State's registration thereafter. Daniel requested Respondent to bring him various financial documents and asked Respondent about his work experience. He did not translate the questions on the application forms for Respondent or go over the information in those forms.
Daniel completed the applications. He did not go through the questions and answers with Respondent, but simply gave Respondent the documents to sign. Respondent did not inquire as to the contents of the applications or the information
provided. He merely signed the applications and gave Daniel
$2,000 in cash, the form of payment required by Daniel.
When Daniel informed Respondent his competency card was ready, Respondent picked it up from Daniel.
Respondent never submitted his application for the refrigeration and air conditioning competency card to the Compliance Office. Respondent never took the required examination for the refrigeration and air conditioning competency card. The Compliance Office has no record of Respondent applying for a competency card.
The competency card Respondent received from Daniel was not issued by the Compliance Office. Respondent's
refrigeration and air conditioning competency card is fraudulent.
Following receipt of the competency card from Daniel, Respondent never contacted the Compliance Office to verify that he had satisfied all the requirements for the issuance of the card or that the card was valid. Rather, he submitted to Petitioner Department of Business and Professional Regulation his application for registration of that competency card in December 2005.
A registration issued by the Department to an individual formally registers the competency card issued to that individual by a local government licensing board. An individual must be issued a registration by the Department before engaging in contracting services in the jurisdiction where that individual received a competency card.
A registration will not be issued by the Department without a valid competency card from a local government licensing board. The competency card informs the Department that the individual has demonstrated the appropriate competence to engage in a particular construction trade as deemed by the local government licensing board through examination, experience, or a combination of those two requirements. A copy of an individual's competency card from a local government
licensing board must be included with an application for registration.
The Department has personnel who can assist applicants with questions concerning the application and registration process, including personnel who can assist persons who speak Spanish.
Along with his application for registration, Respondent submitted a copy of his fraudulent refrigeration and air conditioning competency card.
Included within the application for registration is a statement by the applicant attesting that the applicant has successfully completed the requisite education and experience. Because of the number of local government licensing boards in Florida and the varying requirements each imposes on the issuance of a competency card, the applicant has the burden of verifying his or her successful completion of all the requirements for the particular construction trade with the particular local government licensing board.
The attest statement must be acknowledged, read, signed, and notarized. Respondent signed the attest statement, and his signature was notarized.
At the time the Department received and processed Respondent's application, the Department had no knowledge that Respondent's refrigeration and air conditioning competency card was fraudulent and not issued by the Compliance Office. The Department, therefore, approved Respondent's application, and Respondent was issued a registration. Had the Department known
Respondent's competency card was fraudulent, the Department would not have approved his registration.
The total investigative costs, excluding costs associated with any attorney's time, incurred by the Department in this case are $32.66.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. §§ 120.569 and 120.57(1), Fla. Stat.
The Department seeks to take disciplinary action against Respondent in this proceeding. The burden of proof, therefore, is on the Department, and the Department must prove the allegations in its Administrative Complaint by clear and convincing evidence. Dept. of Banking & Finance, Division of Securities & Investor Protection v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996).
The Administrative Complaint filed in this cause contains four counts. Count I alleges that Respondent has violated Section 489.129(1)(a), Florida Statutes, by obtaining registration by fraud or misrepresentation. As further alleged in Count I, Florida Administrative Code Rule 61G4-15.008 provides that material false statements or information submitted by an applicant for registration constitutes a violation of Section 489.129(1)(a) and shall result in suspension or revocation of the registration.
Respondent could not obtain registration with the State without a competency card issued by a local government licensing
board. Possessing a competency card is, therefore, material information. Respondent obtained Department approval and registration by submitting a local competency card and by attesting that he had fulfilled all requirements for the issuance of that card. Respondent's competency card, however, was fraudulent and his attestation false.
Respondent's denial of knowledge that his card was fraudulent and his attestation false is not credible. He knew Miami-Dade County required passing an examination for his trade. Respondent knew he took no such exam. He also knew he was interacting only with a private company and not with the Compliance Office, which was the only entity that could issue a competency card.
Lastly, Respondent paid $2,000 in cash for his competency card. The cash requirement alone would have put a reasonable person on notice that something was amiss, and the amount he paid was significantly more than he had to pay to the Compliance Office. According to his testimony, the large cash payment was not for translating services since no information from the application form and no questions thereon were translated for him. Respondent has failed to suggest what he thought he was paying for if not a fraudulent card.
The Department has proven by clear and convincing evidence that Respondent obtained his registration by providing false material information to the Department. Respondent is, therefore, guilty of the allegations in Count I of the Administrative Complaint.
Count II alleges that Respondent violated Section 489.127(1)(d), Florida Statutes, which prohibits knowingly giving false or forged evidence to the board or a member of the board, thereby violating Section 489.129(1)(i), which prohibits failing to comply with Part I of Chapter 489 or violating a rule or lawful order of the board. There is no showing that Respondent gave false or forged evidence to the board or a member of the board. The evidence is that he gave fraudulent information to the Department. The Department, therefore, has failed to prove the allegations of Count II.
Count III of the Administrative Complaint alleges that Respondent violated Section 455.227(1)(h), Florida Statutes, by obtaining a license to practice a profession by fraudulent misrepresentation, or through an error of the department or the board. Respondent has violated that Section, which relates generally to many different trades and occupations, for the same reasons that he has been found guilty of violating Section 489.129(1)(a), Florida Statutes, which regulates his specific trade.
Count IV of the Administrative Complaint alleges that Respondent has violated Section 489.129(1)(m), Florida Statutes, by committing incompetency or misconduct in the practice of contracting. No evidence was offered that Respondent is incompetent or that he committed incompetency. Submitting a fraudulent competency card in order to obtain registration with the State, however, is misconduct in the practice of contracting. The Department, therefore, has proven by clear and convincing
evidence that Respondent is guilty of the allegations in Count IV.
Section 489.129(1), Florida Statutes, provides the types of disciplinary action that can be taken against a registrant for violations of that Section, which action includes revocation and an administrative fine not to exceed $10,000 per violation. Similarly, Section 455.227(2), Florida Statutes, authorizes an administrative fine not to exceed $5,000 for each count or separate offense. Florida Administrative Code Rule 61G4-17.002 sets forth mitigating and aggravating factors to be considered in assessing a penalty, none of which clearly applies to this situation.
Since Respondent has violated Florida Administrative Code Rule 61G4-15.008 in conjunction with Section 489.129(1)(a), Florida Statutes, suspension or revocation is required. Suspension for someone who does not possess the qualifications required for registration would be nonsensical. Accordingly, revocation of Respondent's registration is appropriate.
In Petitioner's Proposed Recommended Order, the Department appears to suggest that pursuant to Florida Administrative Code Rule 61G4-17.001, each statutory violation should be considered a separate offense, and each, therefore, should be assessed a separate administrative fine. There is in this case, however, only one set of facts which form the basis of Respondent's unlawful conduct. The statutory violation which most clearly and directly describes Respondent's conduct, Section 489.129(1)(a), Florida Statutes, carries an administrative fine
ranging from $5,000 to $10,000. The Department, however, also proved that Respondent's conduct violated Section 455.227(1)(h), Florida Statutes, a duplicative Section under the facts of this case, and that Section only allows a $5,000 fine. Therefore, an administrative fine of $5,000 is the appropriate fine in this case.
Respondent should also pay the Department's costs of investigation, excluding costs associated with an attorney's time, in the amount of $32.66.
RECOMMENDED that a final order be entered revoking Respondent's registration, imposing an administrative fine of
$5,000, and requiring Respondent to pay the Department's costs in the amount of $32.66 by a date certain.
Tallahassee, Leon County, Florida.
LINDA M. RIGOT
this 6th day of September, 2007.
P. Brian Coats, Esquire Department of Business and
Yehuda D. Bruck, Esquire
G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and
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.
