STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JUAN CARLOS CACCIAMANI,

Petitioner,

vs.

CONSTRUCTION INDUSTRY LICENSING BOARD,

Respondent.

)

)

)

)

) Case No. 11-2231

)

)

)

)

)

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on December 7, 2011, in Tallahassee, Florida, before Barbara J. Staros, Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Timothy P. Atkinson, Esquire

Oertel, Fernandez, Cole & Bryant Post Office Box 1110 Tallahassee, Florida 32302-1110

For Respondent: Daniel R. Biggins, Esquire

Department of Legal Affairs The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUE

The issue is whether Petitioner's application for reinstatement of his license as a general contractor should be granted or denied.

PRELIMINARY STATEMENT

On March 8, 2011, Respondent, Construction Industry Licensing Board (Board), issued a Notice of Intent to Deny Petitioner's application for reinstatement of his Florida certified general contractor's license.

Petitioner timely requested an Administrative Hearing to contest the Notice of Intent to Deny. The case was transmitted to the Division of Administrative Hearings on or about May 3, 2011. Two motions for continuance were granted, and the case was ultimately heard on December 7, 2011.

Prior to hearing, Petitioner filed a Consented Motion to File Amended Petition for Formal Administrative Proceedings, which was granted. The Board issued a Corrected Notice of Intent to Deny on July 7, 2011, nunc pro tunc to March 9, 2011. The reason for the denial as stated in the Corrected Notice of Intent to Deny is that Petitioner "has failed to present evidence of a good faith effort to comply with the license renewal statutes and rules and failed to present evidence that rises to the level of illness or unusual hardship that would justify the failure to renew the license." The parties filed a Joint Pre-hearing Stipulation on December 5, 2011.

At hearing, Petitioner testified on his own behalf.

Petitioner offered Exhibits numbered 1 through 6, which were admitted into evidence. Respondent did not offer any exhibits

or present any witness testimony. Petitioner's request for official recognition as to Exhibits 3, 5 and 6 was granted.

The hearing was not transcribed. The parties timely filed Proposed Recommended Orders, which were considered in the preparation of this Recommended Order. All references to the Florida Statutes are to 2011 unless otherwise indicated.

FINDINGS OF FACT

Stipulated Facts

1. Petitioner was previously issued Certified General Contractor's License number CGC42026. His license was active in the 2004 renewal cycle, became delinquent-active in the 2006 renewal cycle, and null and void at the start of the 2008 renewal cycle. Due to an executive order of the Governor relating to tropical storms, Petitioner's license became null and void on October 2, 2008. Petitioner was required to pay a renewal fee and report continuing education credit hours in order to renew his license prior to the start of the 2008 renewal cycle to avoid the license becoming null and void.

2. Petitioner timely paid the renewal fee ($518) to renew his license.

3. Petitioner completed and reported two continuing education hours for the reporting period ending August 31, 2008. Petitioner completed and reported 44 continuing education hours

   
   

   through July 5, 2011, and is currently up to date with all of his required continuing education credit hours.

4. While Petitioner completed and reported a portion of his required continuing education hours, he did not complete and report all of his required continuing education hours to renew his license during the 2008 renewal period. This was due to financial difficulty and an inability to pay for continuing education credit hours.

5. At present, the total hours Petitioner completed and reported would fulfill his 2006, 2008, and 2010 continuing education requirements.

6. A license becomes null and void if it is not renewed within two years of the renewal date.

7. Petitioner filed his application pursuant to section 455.271(6), Florida Statutes, to reinstate his Certified General Contractor's License number CGC42026. The Department entered its Notice of Intent to Deny the application.

8. Following the Board's issuance of a Corrected Notice of Intent to Deny, Petitioner filed an Amended Petition for Formal Administrative Proceedings. The Corrected Notice stated that Petitioner's license expired due to non receipt of continuing education credits for renewal and, following the delinquency period, became null and void. The reasons for the denial set forth in the corrected notice were as follows:

   
   

   Applicant failed to present evidence of a good faith effort to comply with the license renewal statutes and rules and failed to present evidence that rises to the level of illness or unusual hardship that would justify the failure to renew the license.

   
   

9. The Board approved the application of Alberto Munoz to reinstate his Certified Pool/Spa Contractor's License pursuant to section 455.271(6) at the July 14, 2011, meeting of the Board. The application filed by Mr. Munoz stated that his license had gone null and void because he failed to pay the required license renewal fee due to undue due to undue financial hardship.

10. The Board approved the application of Edwin W. Steffen to reinstate his Certified Plumbing Contractor's License pursuant to section 455.271(6) at the August 11, 2011, meeting of the Board. The application filed by Mr. Steffen stated that his license had gone null and void because his "two cycle inactive status expired in August 2010." Further, Mr. Steffen cited financial difficulties following the "2009 market crash that hurt [him] significantly," leading him to "go back into the workforce."

11. Neither the Department nor the Board has adopted any rules pertaining to applications to reinstate licensees pursuant to section 455.271(6) other than a Department approved application form.

    
    

    Facts based upon evidence of record

    
    

12. Petitioner's Certified General Contractor's (CGC) license was active during the 2004 renewal cycle, and became delinquent-active in the 2006 renewal cycle.

13. Petitioner was required to pay a renewal fee and report continuing education credit hours in order to renew his CGC license prior to the start of the 2008 renewal cycle to avoid the license becoming null and void.

14. During the 2006 and 2008 renewal cycles, Petitioner worked as a construction foreman in remote encampments in Puerto Rico and in the U.S. Virgin Islands. Although these jobs were full-time, he earned very little money on these projects.

    During this time, Petitioner's wife and three children remained at home in Puerto Rico. He earned only enough during this time for his family to subsist.

15. Although working in remote locations in Puerto Rico and in the U.S. Virgin Islands during this time, Petitioner insists that he always intended to return to Florida and was actively seeking work here. He did not finish working in the remote encampments until 2009. While working in the remote locations, he had no access to the Internet and relied on phone calls to friends in an attempt to find appropriate yet affordable continuing education courses. The courses he learned of were expensive at a time when he was earning little money and

    
    

    trying to support his family. Petitioner's testimony in this regard is deemed credible and is accepted as fact.

16. When Petitioner submitted his application for reinstatement of his license, he included a money order for $100 as required.

17. During this period of time, Petitioner paid his renewal fee and completed two continuing education credit hours, but was unable to afford the required number of authorized continuing education credits, and was not in a place from which he could travel to attend live courses.

1. Petitioner made a good-faith effort to comply with the license renewal statutes and rules. He paid the renewal fee and has since completed the necessary continuing education requirements.

   CONCLUSIONS OF LAW

   
   

2. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding in accordance with sections 120.569 and 120.57(1), Florida Statutes.

3. In licensing cases, the burden is on the applicant to demonstrate entitlement to the requested license by a preponderance of the evidence. Dep't of Transp. v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Dep't of HRS, 348 So. 2d 349 (Fla. 1st DCA 1977). In this instance,

   
   

   Petitioner, as an applicant for reinstatement, bears the burden of proof.

4. In its Proposed Recommended Order, Respondent acknowledges that the case presented at the Division of Administrative Hearings was substantially more comprehensive and informative than the information initially provided to the Board prior to its initial decision. The proceeding before the Division is de novo. § 120.57(1)(k), Fla. Stat. Because this is a de novo proceeding, it is intended to formulate final agency action, not to review action taken earlier and preliminarily.1/ Haines v. Dep't of Child. & Fams., 983 So. 2d 602,606 (Fla. 5th DCA 2008) citing Dep't of Transp. v. J.W.C.

   Co., Inc., supra.

   
   

5. Section 455.271, Florida Statutes, applies to multiple professions, including general contracting, and reads in pertinent part as follows:

   455.271(6)(b) Notwithstanding the provisions of the professional practice acts administered by the department, the board, or the department if there is no board, may, at its discretion, reinstate the license of an individual whose license has become void if the board or department, as applicable, determines that the individual has made a good faith effort to comply with this section but has failed to comply because of illness or unusual hardship. The individual must apply to the board, or the department if there is no board, for reinstatement in a manner prescribed by rules of the board or the department, as applicable, and shall pay

   
   

   an applicable fee in an amount determined by rule. The board, or the department if there is no board, shall require that such individual meet all continuing education requirements prescribed by law, pay appropriate licensing fees, and otherwise be eligible for renewal of licensure under this chapter.

   (emphasis added).

   
   

6. The preponderance of the evidence established that Petitioner's financial circumstances during the 2006 and 2008 renewal cycles constituted an unusual hardship, i.e., inability to pay for continuing education credits and working in remote locations outside of the contiguous United States. These circumstances prevented him from timely completing the continuing education requirements.

RECOMMENDATION

Upon consideration of the facts found and the conclusions of law reached, it is

RECOMMENDED:

That the Construction Industry Licensing Board enter a final order granting Petitioner's application for reinstatement of his license as a general contractor.

DONE AND ENTERED this 13th day of January, 2012, in Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

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 13th day of January, 2012.

ENDNOTE

1/ Thus, any review of the Board's discretion will be left to any appellate judicial review. See § 120.68(7)(e)1., Fla. Stat.

COPIES FURNISHED:

Timothy P. Atkinson, Esquire Ortel, Fernandez, Cole & Bryant Post Office Box 1110 Tallahassee, Florida 32302-1110

Daniel R. Biggins, Esquire Department of Legal Affairs The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Layne Smith, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

G. W. Harrell, Executive Director Division of Professions

Construction Industry Licensing Board Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2792

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: 11-002231

Orders for Case No: 11-002231