Findings Of Fact E. J. Lamberth, III, is a certified general contractor having been licensed by the Florida Construction Industry Licensing Board. Mr. Lamberth's license was not renewed by the Florida Construction Industry Licensing Board when it expired in June, 1975. However, the Board does not question Mr. Lamberth's right to issuance of such a license pending the outcome of this hearing, and the failure of the Board to reissue Mr. Lamberth's license is an apparent administrative oversight. Mr. Lamberth applied and obtained building permits as a Construction Industry Licensing Board Certified General Contractor for construction of modifications or additions to the homes of Mr. and Mrs. Cohen, Mr. and Mrs. Retter, and Mr. and Mrs. DeChant. Copies of the applications for building permits were introduced in the evidence. Exhibit I is the application for the Retter's permit; Exhibit V is the application for the permit for the Cohen's permit; and Exhibit VII is the application for the DeChant's building permit. Lamberth notified the Board by letter received by the Board on or about December 24, 1974 of his resignation as qualifier for Addition Builders, Inc. Lamberth's employment with Addition Builders, Inc. began when he answered a newspaper advertisement for a certified general contractor placed by Richard Butler. Butler was looking for a certified general contractor to supervise construction and to obtain building permits for a construction business which he was at that time incorporating. Lamberth checked with the local Better Business Bureau and having determined that there were no complaints against Butler, entered into an employment agreement with Butler. Subsequently, Butler did incorporate and E. J. Lamberth be came Vice-president for Addition Builders, Inc., a Florida corporation. Lamberth's duties were to inspect plans for any modification or additions which Addition Builders, Inc. contracted to construct, to supervise construction, and to be the qualifying agent for Addition Builders, Inc. In August 1974, Richard Butler entered into a contract in behalf of Addition Builders, Inc. with Michael and Carol Retter for the construction of two-bedroom/one-bath addition to their house located at 460 N. W. Opa Locka Boulevard, North Miami, Florida. Construction of this addition was to take approximately three to six months. Construction began in September of 1974. The construction at the Retter's residence was supervised by the building superintendent or chief carpenter, Mr. Braddock. Construction on the addition was intermittent during September and slowed to a halt in October 1974. The Retters called Addition Builders, Inc. in November and were advised by Mr. Braddock that Mr. Butler had withdrawn from the business but that Braddock would continue with the construction and complete the addition. Construction on the Retter's addition was approximately 50 percent complete, the floor, roof and walls having been built but the windows, doors and plumbing fixtures not having been set. Braddock came and did some work and advised the Retters that he had taken over the business from Butler. Mrs. Retter testified that she was working full-time during this period but that on days when she and her husband were home the construction personnel came at 9:00 a.m. and left in mid-afternoon. The personnel who came, with the exception of Braddock, were subcontractors employed by Addition Builders, Inc. During this period, she did not see Mr. Lamberth who she saw for the first time the day of the formal hearing. The Retters first learned of Lamberth's association with Addition Builders, Inc. from the officials of the city of North Miami, who gave the Retters Lamberth's name as the party who had drawn the construction permit. In January the Retters contacted Mr. Lamberth who advised them that he had withdrawn from the company and could not help them. The contract price for the contract between the Retters and Addition Builders, Inc. was for $8,900 of which the Retters had paid $8,000 at the time construction of the addition ceased. It cost the Retters approximately $2,000 to finish the construction of the addition after Addition Builders, Inc. ceased to perform any work on the job. E. J. Lamberth, III, has been a full-time employee of the Dade County Recreation Department since January 9, 1963. He was employed by Richard Butler as a qualifying agent for Addition Builders, Inc. and was made Vice-president of that corporation. Addition Builders, Inc. began operation in late July or August of 1974. Lamberth performed the duties for which he was employed. He drew the construction permits required, inspected plans for modifications and additions to be built by Addition Builders, Inc., and visited the various construction sites of the corporation at noon and in the late afternoon to determine the progress being made by the subcontractors employed by Addition Builders, Inc. Through his contact with Mr. Braddock and the subcontractors employed by Addition Builders, Inc., Lamberth arranged for the scheduling of the subcontractors on the various jobs. At this time, Addition Builders, Inc. had between six and eight projects under construction. Lamberth was able to determine the progress being made on the various sites through his periodic inspections two to three times per week. These inspections and his conversations with the subcontractors revealed in early October that Butler was countermanding Lamberth's directions and canceling Lamberth's instructions given to subcontractors. Because of these activities, Lamberth advised Butler that he, Lamberth, would have to be in charge of the projects underway and schedule work on the projects or he would have to withdraw as qualifying agent for Addition Builders, Inc. Because of Butler's continued interference, Lamberth eventually resigned from his position with Addition Builders, Inc. in December 1974. Lamberth was not a stockholder in Addition Builders, Inc. When the work began on the various additions, Lamberth received 3 percent of the contract price as his compensation for his services to Addition Builders, Inc. Subsequent to being advised of the problems with Addition Builders, Inc., Lamberth attempted to locate Richard Butler. Richard Butler could not be located and has apparently left the State of Florida.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Florida Construction Industry Licensing Board take no action against the certificate of L. E. Lamberth, III. DONE and ORDERED this 12th day of October, 1976 in Tallahassee, Florida. COPIES FURNISHED: Barry Sinoff, Esquire 1010 Blackstone Building Jacksonville, Florida 32202 J. K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida James W. Bowling, Esquire Vernis and Bowling Sailboat Bay - PH II 2951 South Bayshore Drive Coconut Grove, Florida 33133 STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. CASE NO. 76-1241 E. J. LAMBERTH, III, CG C006734, P. O. Box 570444, Miami, Florida 33157. Respondent. /
The Issue The issues in this case are whether disciplinary action should be taken against Respondent, Paul Marchese, Jr., d/b/a Prima Construction, for violation of Subsection 489.129(1)(q), Florida Statutes (2006), as alleged in the Administrative Complaint; and, if so, what disciplinary action should be imposed on his license to practice contracting.
Findings Of Fact Based on the evidence and testimony of the witnesses presented and the entire record in this proceeding, the following facts are found: At all times relevant to this proceeding, Respondent was a certified residential contractor, having been issued License No. CRC057007 by the Florida Construction Industry Licensing Board (Board). At all times relevant to this proceeding, Respondent, Paul Marchese, Jr., d/b/a Prima Construction, has been doing business as Prima Construction. ABC Supply Company, Inc. (ABC Supply Company), operates as a roofing supply distributor in the State of Florida. Respondent completed and signed a credit application with ABC Supply Company. The credit application required the applicant to provide the following information: type of business ownership; address of business ownership; officers of business ownership; and credit references. The credit application includes, if applicable, a space to list the applicant's state contractor license number. The credit application includes a personal guaranty that must be completed if the business ownership has less than $2 million in annual sales, is less than two years old, has less than ten employees, or is a partnership or proprietorship. If the personal guaranty section is completed and signed, the guarantor then becomes responsible and personally liable for any debts incurred by the business ownership. Respondent listed the applicant for the credit application with ABC Supply Company as "P & C Realty (Prima)" and signed the application as the president of the company. Respondent listed his certified residential contractor License No. CRC057007 on the credit application. P & C Realty is owned by Respondent and his wife. On or about January 18, 2002, Petitioner signed the ABC Supply Company credit application as president of "P & C Realty (Prima)." In addition to signing as the applicant, Petitioner signed the "guaranty" portion of the application, in which he agreed to serve as "guarantor" of any indebtedness of the buyer to ABC Supply Company. ABC Supply Company approved the credit application, which allowed P & C Realty to purchase roofing materials from ABC Supply Company. From February 2002 to April 2002, P & C Realty purchased various roofing materials from ABC Supply Company. The materials were used in the repair of houses owned by P & C Realty, and the houses were subsequently sold by P & C Realty. P & C Realty failed to pay for the roofing materials that were purchased between February 2002 to April 2002, and the account became past due. ABC Supply Company filed a civil lawsuit against P & C Realty and Respondent in the county court in Hillsborough County, Florida. On September 13, 2005, Hillsborough County entered a final judgment in favor of ABC Supply Company and against P & C Realty and Respondent, jointly and several, in the amount of $6,319.68 for P & C Realty and Respondent's failure to pay for roofing materials.1/ Respondent did not appeal the final judgment, but failed to satisfy the final judgment within 90 days. Moreover, as of the date of this proceeding, Respondent had not satisfied this judgment. The total investigative costs of this case to the Board, excluding costs associated with an attorney's time, for DBPR Case No. 2006-001485, was $288.68. On October 28, 2002, Petitioner filed a Final Order in a prior disciplinary case against Respondent in DBPR Case No. 2000-08685. That Final Order adopted and incorporated by reference the allegations in the Administrative Complaint. The Administrative Complaint alleged Petitioner violated the Standard Building Code of Sarasota County by first performing construction work without first obtaining the required building permit from the Sarasota Building Department, and, as a result thereof, the Sarasota County General Contractors Licensing and Examining Board revoked Respondent's privileges to pull permits in Sarasota County, Florida. Based on the foregoing, the Final Order in DBPR Case. No. 2000-08685 found Respondent guilty of violating Subsection 489.129(1)(h), Florida Statutes (2006), by being disciplined by any municipality or county for any act or violation of this part. Petitioner imposed a $2,500.00 fine and $165.51 in costs on Respondent in the case. On December 11, 2001, Petitioner filed a Final Order in a prior disciplinary case against Respondent in DBPR Case Nos. 2000-02105 and 2000-06442. The Final Order reflected that the case was resolved by means of a Settlement Stipulation in which Respondent agreed to pay a $5,000.00 fine, pay costs of $436.42, and, in the future, not violate the provisions of Chapters 455 and 489, Florida Statutes (2006), or the rules promulgated pursuant thereto. In the Settlement Stipulation related to the foregoing cases, Respondent neither admitted nor denied the allegations in the Administrative Complaints.2/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered as follows: Finding Respondent guilty of having violated Subsection 489.129(1)(q), Florida Statutes (2006), and imposing as a penalty an administrative fine in the amount of $5,000.00, proof of satisfaction of the civil judgment for Case No. 2003-7188-CC, and suspension of Respondent's certified residential contractor license until the civil judgment is satisfied; and Requiring Respondent to pay Petitioner's costs of investigation and prosecution, excluding costs associated with an attorney's time, in the amount of $288.68. DONE AND ENTERED this 8th day of May, 2007, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 8th day of May, 2007.
Findings Of Fact William O. Boyd is licensed as a general contractor with the Construction Industry Licensing Board and was so registered at all times here relevant as the qualifying licensee for B & J Harris, Inc. In 1978 Respondent, as trustee of Kings Point Subdivision in Kissimmee, Florida, was looking for someone to do construction in the subdivision and was approached by Harris, who was not licensed. B & J Harris, Inc. was formed, with apparently little capitalization, and with Harris, his wife and son as officers of the corporation. In his application for 1978/1979 Competency/Registration Card (Exhibit 1) dated 9/7/78 Respondent showed he was employed with Empire Builders, Inc., the same firm with which he was affiliated for the previous 12-15 years. Fidelity Bond dated 3-17-78 (Exhibit 2) issued to B & J Harris, Inc. shows Respondent as qualifying general contractor for B & J Harris, Inc. B & J Harris, Inc. entered into a contract with Charles and Connie Arnold (Exhibit 4) to construct a residence on Lot 128, Kings Point Subdivision, obtained Building Permits (Exhibit 3) and commenced construction. Financing for the construction was arranged by Harris and Respondent did not participate in this project in any manner. B & J Harris, Inc. was paid the full contract price by the lending institution and the Arnolds (Exhibits 5 and 15) prior to the scheduled March 7, 1979 closing date. When advised on 7 March 1978 that closing was scheduled that day, Respondent called Mrs. Arnold to advise her that the closing could not proceed as scheduled because B & J Harris, Inc. could not convey clear title to Lot 128 as Harris had not paid Respondent for this lot. Respondent was advised by the lending agency that no other liens existed and Respondent, in consideration of a note secured by a mortgage on Harris' residence, conveyed title to Lot 128 to Harris. The closing took place on 7 March 1978 with the lending institution holding the funds and deed in escrow pending the clearance of the title. Harris executed a Certificate of No Lien on 7 March 1978 (Exhibit 7) and presented a Waiver of Lien form (Exhibit 15) executed by numerous subcontractors. At least two of the signatures on this Waiver of Lien form were denied by the persons whose signature they purported to be. Several subcontractors filed mechanics liens against the property on Lot 128 after the closing, and others filed affidavits and presented testimony that they had not been paid. (Exhibit 10-12). On 23 March 1979 B & J Harris, Inc. filed Petition for Voluntary Bankruptcy (Exhibit 14).
Findings Of Fact At all times material hereto, Respondent has been a registered roofing contractor having been issued License No. RC 0041149. Respondent's address of record is Miami, Florida. The Dade County Construction Trades Qualifying Board is authorized to discipline tradesmen and contractors in Dade County, Florida. By letter dated September 17, 1986, the Metropolitan Dade County, Florida, Building & Zoning Department advised Respondent that a formal hearing would be held before the Dade County Construction Trades Qualifying Board on 35 charges arising out of Respondent's roofing and painting activities. A formal hearing was conducted on November 13, 1986, at which time 24 of the 35 charges were dismissed, and the formal hearing was continued. By letter dated January 21, 1987, the Metropolitan Dade County, Florida, Building & Zoning Department advised Respondent that the continuation of his formal hearing would be held on February 12, 1987, at which time 4 additional charges, enumerated in that letter, would also be heard. At the conclusion of the formal hearing on February 12, 1987, 12 more of the charges were dismissed. Out of the total of 39 charges filed against Respondent, Respondent was found guilty of 3 charges. The Construction Trades Qualifying Board ordered that the business and personal certificates of Respondent be revoked and that Respondent be fined a total of $5,000. Respondent was present and had the opportunity to be heard at the formal hearing conducted on November 13, 1986, and on February 12, 1987. After Respondent was advised of the disciplinary action imposed by the Construction Trades Qualifying Board, he paid the fine imposed upon him. He also made restitution to the two homeowners involved. One of the homeowners was complaining about a leak in the roof that Respondent had installed. Respondent gave the homeowner another new roof at no cost. The other homeowner had refused to pay for the installation of the roof, and Respondent had placed a lien against the property. Respondent cancelled the lien on the property so that that homeowner received the new roof for free. Respondent's licenses were reinstated by the Dade County Construction Trades Qualifying Board, and Respondent remains in good standing with that local agency. Respondent has been previously disciplined by the Florida Construction Industry Licensing Board as a result of an informal proceeding held on January 9, 1986. The final order from that proceeding assessed a $250 fine against Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in the Administrative Complaint filed herein and imposing against him an administrative fine in the amount of $500 to be paid by a date certain. DONE and RECOMMENDED this 29th day of February, 1988, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3892 Petitioner's proposed finding of fact numbered 1 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law. The remainder of Petitioner's proposed findings of fact have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact are contained in a letter which, essentially, is simply an attempt to reargue the facts underlying the local disciplinary action and to establish the fact that he is an excellent roofer. Only those sentences which relate to the restitution made to the two customers by giving them free roofs have been adopted in this Recommended Order, and the remainder of the sentences have been rejected as being irrelevant to the issue involved in this proceeding. COPIES FURNISHED: Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Jonathan Ring, Esquire Peter Fleitman, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Louis Gordon 14870 Southwest 205th Avenue Miami, Florida 33187 William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The first issue to be determined is whether Petitioner, Rebecca Coleman Curtis (“Petitioner” or “Dr. Curtis”), is entitled to licensure as a psychologist in the State of Florida by virtue of the “deemer” provision in section 120.60(1). The second issue to be determined is whether the Florida Board of Psychology (the “Board”) used an unadopted rule in violation of section 120.54(1)(a), with respect to its decision to deny Dr. Curtis’s application for a license.
Findings Of Fact Section 490.006(1), Florida Statutes, presents three avenues for a psychologist to obtain licensure by endorsement. Petitioner applied to the Board of Psychology for licensure as a psychologist on September 30, 2014. She applied under the category of licensure authorized by section 490.006(1)(c), which allows for licensure to persons who possess a doctoral degree in psychology as described in section 490.003 and have at least 20 years of experience as a licensed psychologist in any jurisdiction or territory of the United States within 25 years preceding the date of the application. Petitioner’s application was deemed complete by the Board office on October 17, 2014. Ninety days from Petitioner’s completed application was January 15, 2015. The Department of Health sent Petitioner a letter regarding her application dated October 17, 2014, which states in pertinent part: Dear Dr. Curtis: Psychology board staff has reviewed your application. You have been authorized for the Florida laws and rules exam. You have been approved for licensure upon passage of your exam. Please note that that you have 24 months, from the date of this letter, to verify completion of these requirements or your application will be administratively closed as required in Section 490.005(3)(a), Florida Statutes. (emphasis added). Petitioner was included in a list of applicants (the APA List) to be ratified by Respondent at a telephone conference call on November 21, 2014. The Board approved all of the candidates on the list. Both the letter authorizing Petitioner to take the laws and rules examination and the Board’s action ratifying approval of Petitioner’s application for licensure occurred within 90 days of her completed application. The top of the first page of the APA List contains a statement which reads: “regardless of the application method, if board staff becomes aware of any issues of concern, approved applicants will be brought back before the Board for reconsideration prior to issuance of a license.” Respondent has not cited any authority for this statement. This statement was applicable to all candidates on the APA List, including Petitioner, and was applicable to similar candidates on previous lists on which the Board has acted. Applicants for licensure are not made aware that the Board will reconsider an application previously approved by the Board. Petitioner took and passed the required laws and rules examination in August 2016, and her score was reported to the Board office. Respondent sent Petitioner a letter dated August 9, 2016, which stated that her application would be considered by the Board of Psychology’s Credentials Committee at its meeting September 9, 2016, despite that she was advised previously that she was approved for licensure. That same day, Michelle Branch from the Board office sent Dr. Curtis an email which stated, in part: We have received your Laws and Rules exam score and it appeared you were ready for licensure, however, after further review of your file, there is a question on whether you received your doctorate degree from a program that was accredited by the American Psychological Association. To obtain a psychology license under the Endorsement of 20 Years of Licensed Psychology Experience method, you must have received your doctorate degree from an APA accredited program. I have provided Section 490.005, F.S., for your reference: . . . . Your transcripts indicated that you received your PhD from the Social Psychology program at the Teachers College, Columbia University, New York City, which is not listed as an accredited program on APA’s website. I have contacted APA to verify and am waiting on a reply. Please request a letter from the university indicting [sic] your major. This letter can be emailed to me. Your application and transcripts will then go before the September 9, 2016 Credentials Committee for review. Please find the attached meeting notice. (emphasis added). Ms. Branch’s request for additional information was more than 30 days from the Board’s receipt of Petitioner’s application, and well after the application had been deemed complete, and well after the application was approved by the Board. On August 24, 2016, Petitioner submitted to Respondent’s agency clerk a Notice of Intent to Rely upon Default License Provision. A memo provided to the Board regarding Dr. Curtis’s application contained the following information for the Board’s consideration. Dr. Curtis applied for licensure under the Endorsement of 20 Years of Licensed Psychology Experience method, however, her doctoral psychology program completed at the Teachers College, Columbia University, New York City in 1973, did not hold programmatic accreditation by the American Psychological Association (APA). Although Dr. Curtis went on to complete studies in Clinical Psychology at the APA-accredited Adelphi University in 1988, the transcript indicates it was a non- degree program. In the initial review of Dr. Curtis’ application by former staff, these issues were not addressed and the staff erroneously approved Dr. Curtis to sit for the laws and rules examination. Upon the receipt of Dr. Curtis’ exam score, current staff performed a final review for license issuance and these issues were discovered. Dr. Curtis was subsequently notified that her application would require review by the Board’s Credentials Committee before further action could be taken. The author of this memo is not identified, and did not testify at hearing. While it is admissible for the purpose of demonstrating what the Board considered in its second review of Dr. Curtis’s application, it is hearsay. Dr. Curtis’s unrefuted testimony is that she holds two separate doctoral degrees in psychology, the first from Teachers College at Columbia University, and one from Adelphi University. Both schools are located in New York. According to Dr. Curtis, because New York would not issue a second doctoral degree in the same field, her degree from Adelphi is listed as non-degree seeking, despite her completing the requirements for a degree and being issued a diploma. Dr. Curtis has been licensed in the State of New York since 1983, and her application file does not include any indication that her license has ever been disciplined. The only evidence other than the memo cited above that would indicate that Dr. Curtis’s education did not qualify her for licensure in Florida are copies of emails, which appear to be the source of the Board staff’s information. Neither the person who received the email nor the person who sent them testified at hearing, and, although included in Petitioner’s licensure file, the contents of the emails are also hearsay. During the September 9, 2016, meeting, the Committee voted to deny Petitioner’s application for licensure. Petitioner received a Notice of Intent to Deny from Respondent on or about October 11, 2016, notwithstanding the Board’s prior approval of her application nearly two years before. The Board has not promulgated any rule that provides for “re-screening” or a “second review” or “final review” of an application that has been previously approved by the Board. Nor has the Board promulgated any rule that provides for “reconsideration” of an application that has been previously approved by the Board. The Board delegates to office staff the review of applications to see if applications meet the requirements specified in chapter 490 and the Board’s rules. Petitioner provided notice to the Board on September 12, 2016, pursuant to section 120.595(4)(b), regarding possible unadopted rules. The Board has not commenced any rulemaking proceedings regarding the subjects addressed in the September 12, 2016, notice to the Board of Psychology.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Psychology enter a final order that: 1) acknowledges Petitioner’s application for licensure is approved, pursuant to the procedure in section 120.60(1); and 2) directs the issuance of Petitioner’s license as a psychologist. With respect to Petitioner’s claims pursuant to section 120.57(1)(e), it is further RECOMMENDED that: 1) the statements related to reconsideration or a second review of approved applications for licensure after the receipt of examination scores and before the issuance of the license meet the definition of a rule and constitute an unpromulgated rule; 2) the Board must immediately discontinue all reliance on these statements or any substantially similar statement as a basis for agency action; and 3) Petitioner is entitled to an award of reasonable attorney’s fees and costs, in an amount to be determined after the entry of the final order. DONE AND ENTERED this 13th day of March, 2017, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 2017.
The Issue The issues in the case are as follows: Whether Florida Administrative Code Rule 61G4-12.017 is an invalid exercise of delegated legislative authority; and Whether the committee procedure used by the Construction Industry Licensing Board to review applications for licensure is invalid as an unadopted rule.
Findings Of Fact The Petitioner is an applicant for licensure as a general contractor by the Respondent. By operation of Subsection 489.107(4), Florida Statutes (2006),1 the Construction Industry Licensing Board (CILB) is divided into two Divisions. Division I has jurisdiction over the regulation of general contractors, building contractors, and residential contractors. Division II has jurisdiction over the regulation of all other contractors. Subsection 489.107(5), Florida Statutes, provides as follows: Five members of Division I constitute a quorum, and five members of Division II constitute a quorum. The combined divisions shall meet together at such times as the board deems necessary, but neither division, nor any committee thereof, shall take action on any matter under the jurisdiction of the other division. However, if either division is unable to obtain a quorum for the purpose of conducting disciplinary proceedings, it may request members of the other division, who are otherwise qualified to serve on the division unable to obtain a quorum, to join in its deliberations. Such additional members shall vote and count toward a quorum only during those disciplinary proceedings. (emphasis supplied) After the Petitioner's application was deemed complete, the application was referred to an "application committee" appointed by the CILB chairperson and assigned the responsibility of reviewing pending applications. There is no specific reference in either statute or rule codifying the application committee process. The application committee generally meets one day prior to the regularly scheduled meeting of the full CILB. Application materials are provided to members of the application committee. An applicant receives a letter signed by an employee of the CILB providing notice of the application review committee meeting at which the pending application will be considered. The notice includes the following statement: Statute or rule does not require attendance; however, it is in your best interest to attend so those questions that may arise during the committee's review can be answered. Failure to attend may result in denial of your application as a result of unanswered questions. Applications are commonly referred to the Board for review when an applicant or the business has a criminal history, liens or judgments on their credit report, bankruptcies, complaints or unlicensed activity cases against them. If you are unsure why your application has been referred to the board please contact me at the number listed below. (emphasis in letter) The letter clearly indicates that not all applications are reviewed by the full CILB, and accordingly, it is reasonable to presume that there are applications being approved without review by the full CILB. The Petitioner's application was reviewed by an application committee on two occasions. The parties stipulated that the application committee that considered the Petitioner's application was not composed of either five Division I or five Division II Board members. At the committee meeting of July 13, 2006, the Petitioner was granted a continuance apparently to obtain additional information for CILB consideration. The Order of Continuance issued by the CILB and dated August 7, 2006, stated that the Petitioner "agreed to waive the statutory 90 day requirement and appear before the Board in August, 2006." On August 10, 2006, the application committee made a recommendation to the full CILB that the Petitioner's application be denied. On August 11, 2006, the CILB unanimously voted to approve the committee recommendation. The parties stipulated that the full CILB (composed of at least five Division I and five Division II Board members) voted on August 11, 2006. The extent to which the application was reviewed by the full CILB prior to the vote is unclear, as is whether all application materials were provided to the full CILB prior to consideration of the Petitioner's application. Although the Petitioner has sought to obtain a transcript of the meeting, it has not been made available by the CILB. By Notice of Intent to Deny, dated August 30, 2006, the Petitioner set forth the grounds for the denial as follows: Applicant failed to provide proof of restitution associated with a prior order, which constitutes a basis for denial under Section 489.129(7) F.S. The prior order being referenced in the August 30 letter is a Final Order of the Hillsborough County Building Board of Adjustment dated June 21, 1997, wherein the Petitioner was directed to make restitution to a former client.
