The Issue Whether a certified general contractor's license issued to Francisco Vincente De Moya (Petitioner) that has been classified null and void should be reinstated pursuant to the "hardship" provision of section 455.271(6)(b), Florida Statutes.1
Findings Of Fact Respondent is the state agency that regulates general contractors in the State of Florida. In 1998, Respondent issued Petitioner certified general contractor license CGC 05992. Certified general contractors are required to take a total of 14 hours of continuing education courses in specified categories each biennial period.2 Credit is generally posted for the biennial period during which the course was taken. All continuing education courses discussed in this Recommended Order were taken by Petitioner using the internet and reported electronically. Respondent typically posts and maintains such credits electronically. Credits are typically posted for the biennial period in which the credits are earned. If a licensee had been deficient for a prior biennial period, Respondent's staff can manually post-date credits from a subsequent biennial period to the biennial period that is deficient. 2004-2006 Biennial Period On August 23, 2004, Petitioner submitted to Respondent a personal check in the amount of $209.00 as payment of renewal fees for his general contractor's license for the biennial period 2004-2006. Petitioner's general contractor's license was not renewed for the 2006-2008 biennial period because Petitioner had not completed sufficient continuing education hours during the 2004-2006 biennial period to meet his continuing education requirements. On September 1, 2006, Respondent classified the status of Petitioner's as "expired/delinquent." As of September 1, 2006, and as of the date of the formal hearing, Respondent's records reflected that Petitioner was deficient in his continuing education requirements for the biennial period 2004- 2006 by a total of six hours in three categories.3 One hour of the deficiency was in the category of advanced building code. Four hours of the deficiency were in the category of general. One hour of the deficiency was in the category of workers' compensation. 2006-2008 Biennial Period On September 29, 2006, Petitioner submitted to Respondent a payment in the amount of $309.00 for renewal fees and late fees for his general contractor's license for the biennial period 2006-2008. On October 20, 2006, Petitioner completed a four hour continuing education course in "core training." Petitioner testified that this credit was intended to be for the 2006-2008 biennial period. Prior to the renewal deadline of August 29, 2008, Petitioner requested and obtained from Respondent an extension of 30 days to submit proof of completion of continuing education credits for the 2006-2008 biennial period and payment of renewal fees for the 2008-2010 biennial period. 2008-2010 Biennial Period On September 29, 2008, Petitioner paid Respondent $209.00 as payment for renewal fees for his general contractor's license for the 2008-2010 biennial period. On September 28 and 29, 2008, Petitioner completed 14 hours of continuing education credit and submitted the certificates of completion for each course to Respondent with the notation "Please find Certificates of Completion for my G.C. license # CGC 059992 for 2006-2008." Respondent received the certificates of completion on October 1, 2008. These hours satisfied Petitioner's continuing education requirements for the 2006-2008 biennial period. On October 2, 2008, Petitioner's certified general contractor's license became "null and void."4 With knowledge that his contractor's license was considered null and void,5 Petitioner took 26 hours of continuing education credit between November 24, 2008, and August 7, 2009, and submitted his certificates of completion to Respondent. Respondent did not apply any of the 24 credits Petitioner earned between September 29 and December 11, 2008, to the 2004-2006 biennial period, nor was there any evidence that Petitioner requested Respondent to do so.6 In 2006, Petitioner's mother-in-law (Ms. Careaga) was diagnosed with degenerative dementia and began to deteriorate physically and mentally. From 2007 until her death on December 15, 2008, Ms. Careaga became immobile, more disoriented and confused, and required 24 hour supervision. Petitioner had a close relationship with his mother-in-law. Petitioner and Petitioner's wife became Ms. Careaga's 24-hour primary caregivers so she would not have to go to a nursing home. Petitioner continued to work full-time and serve as a primary caregiver until Ms. Careaga's death. During this period, Petitioner assisted other family members in closing down the restaurant that his mother-in-law had owned and operated. On January 12, 2011, Respondent denied Petitioner's application for the reinstatement of his general contractor's license. The Notice of Denial was not admitted as an exhibit in this proceeding. However, a "Notice of Intent to Deny," purporting to be the Respondent's proposed denial, was attached to the Petition for Formal Hearing. That Notice of Intent to Deny recites that the Petitioner's license expired due to "non payment" [sic] of renewal fees. That statement is incorrect. The license became null and void because of the deficient continuing education requirements for the 2004-2006 biennial period. The Notice of Intent to Deny also found that Petitioner failed to establish hardship within the meaning of section 455.271(6)(b). Petitioner is eligible to obtain a new license by retaking the licensure exam and by establishing that he is of good moral character and financially stable and responsible. His experience has been established by virtue of his prior license. Petitioner also holds licensure as an architect. That license also became null and void during the same time frame as his contractor's license. On February 17, 2011, the Florida Board of Architecture, considering the same facts described above, approved Petitioner's application for reinstatement of his architecture license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Construction Industry Licensing Board enter a final order denying Petitioner's application for reinstatement of his certified general contractor's license based on the hardship provision set forth in section 455.271(6)(b). DONE AND ENTERED this 22nd day of August, 2011, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 22nd day of August, 2011.
The Issue An administrative complaint filed January 19, 1994, alleges that Respondent, Rafael Feliu, violated various provisions of Chapter 475, F.S. by diverting commission funds to himself, by operating as a broker without a valid broker's license and by collecting money in a real estate brokerage transaction without the consent of his employer. The issue in this case is whether those violations occurred, and if so, what discipline is appropriate.
Findings Of Fact Respondent, Rafael Feliu (Feliu) is now and was at all times material a licensed real estate broker-salesperson in the State of Florida, having been issued license number 0538613 pursuant to Chapter 475, F.S. His most recent license was issued, effective 5/3/93, c/o Century 21 Progressive Realty, Inc., 11301 So. Orange Blossom Trail, Orlando, Florida. Between May 1990 and March 1993, Feliu was engaged as a broker- salesperson with Angel Gonzalez of Century 21 Nuestro Realty Co., in Orlando, Florida. The parties' independent contractor agreement, dated May 29, 1990, provides for a sixty percent sales commission to Feliu. On November 28, 1992, Feliu solicited and obtained a contract for the purchase of vacant land and the construction of a house. The real estate commission was to be paid in installments. The buyer under the contract was a friend of Feliu, Luis Rodriguez. Feliu and Rodriguez made an arrangement that Rodriguez would receive a rebate of the commission. While the broker, Angel Gonzalez, denies that he agreed to the arrangement, he does admit that he saw a break-down of disbursement of the commission provided by Feliu and that he signed a letter, prepared by Feliu, describing that break-down, including the rebate to Rodriguez. The first commission check, in the amount of $8,750.00 is made to Century 21 Nuestro and is dated June 4, 1993. Feliu delivered the check to Angel Gonzalez with a handwritten break-out of disbursement, including a $1000 rebate and a $2500 rebate (one-half the agreed $5000) to Luis Rodriguez. Gonzalez refused to disburse the commission as indicated on the break- out, but rather sent Feliu a check on June 8, 1993, for $4554.30, representing his usual share of the commission. The second installment of the commission was paid approximately ten days later. Feliu went to the contractor responsible for paying the commission and asked him to make the check to him, Rafael Feliu. Thus, the second check in the amount of $8750.00 is dated June 18, 1993 and is made out to Rafael Feliu. By this time Feliu had left Century 21 Nuestro and was working with another company. Feliu cashed the check and made the disbursements to Luis Rodriguez. He also retained his share of the balance along with sums of $449.93 and $128.00 that he claimed Nuestro Realty owed him on other sales. He sent the balance, $274.77, to Angel Gonzalez with a letter describing in detail the disbursement of the $8750.00 and explaining that he, Feliu, handled the disbursement because Gonzalez had not complied with regard to the first half of the commission.
Recommendation Based on the evidence presented and discussed above, it is hereby, RECOMMENDED: That the Florida Real Estate Commission enter its final order dismissing the allegations of violation of section 475.25(1)(b), F.S. (Count I), finding Respondent Rafael Feliu guilty of the remaining counts of the complaint, and issuing a reprimand. DONE AND RECOMMENDED this 18th day of August, 1994, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-0856 The following constitute specific rulings on the findings of fact proposed by the parties. Petitioner's Proposed Findings Rejected as unnecessary. & 3. Adopted in paragraph 1. Adopted in paragraph 2. & 6. Adopted in paragraph 3. Adopted in paragraphs 5 and 6. Rejected as contrary to the weight of evidence. Adopted in part in paragraph 4; otherwise rejected as unsupported by clear and convincing evidence. Respondent's Proposed Findings Adopted in substance in paragraph 4. Adopted in paragraph 6. Adopted in paragraph 8. Rejected as immaterial. Adopted in substance in paragraph 4. Rejected as contrary to the law (see paragraph 13). - 14. Rejected as unnecessary. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Business and Professional Regulation 400 West Robinson Street Orlando, Florida 32802 Rafael S. Feliu 2260 Whispering Maple Drive Orlando, Florida 32837 Darlene F. Keller, Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Jack McRay, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent's insurance license should be suspended or revoked because Respondent failed to disclose his criminal history on his insurance license application.
Findings Of Fact The Department has authority over licensing insurance agents pursuant to Chapter 626, Florida Statutes. At times pertinent Mr. Arleo was a resident of Pensacola, Florida. He holds a 220 General Lines (Property and Casualty) Agent license issued on February 27, 2001. The license he received was based on a license application he filed with the Florida Department of Insurance on January 30, 2001. Question three of the licensure and screening questions portion of the January 30, 2001, application inquired, "Have you ever been convicted, found guilty, or pleaded guilty or nolo contendere (no contest) to a felony under the laws of any municipality, county, state, territory, or country, whether or not adjudication was withheld or a judgment of conviction was entered?" Respondent answered this question in the negative. Question four of the licensure and screening questions portion of the application inquired, "Have you ever been convicted, found guilty, or pleaded guilty or nolo contendere (no contest) to a crime punishable by imprisonment of one (1) year or more under the laws of any municipality, county, state, territory, or country, whether or not adjudication was withheld or a judgment of conviction was entered?" Respondent answered this question also in the negative. Following the aforementioned answers, Mr. Arleo signed his name beneath a statement that reads as follows: "Under penalty of perjury, I declare that all answers to the forgoing questions are true. I understand that misrepresentation of any fact required to be disclosed through this application is a violation of the Florida Insurance and Administrative Codes and may result in the denial of my application and or the revocation of my insurance license(s)." Notwithstanding his responses on the application, the evidence indicated that Mr. Arleo, on September 30, 1986, pleaded nolo contendere to, and was adjudicated guilty of, one count of theft of property worth $100 or more, but less than $20,000, and one count of burglary of a structure or conveyance, in the Circuit Court of Escambia County, Case No. 86-2796. Both of the listed offenses are felonies in the State of Florida. Mr. Arleo was adjudicated guilty of the offenses. However, on January 6, 1987, pursuant to an Order of Modification, adjudication was withheld.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department revoke Mr. Arleo's license. DONE AND ENTERED this 21st day of November, 2003, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 21st day of November, 2003. COPIES FURNISHED: Steve Arleo 704 North 80th Avenue Pensacola, Florida 32506 Dana M. Wiehle, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue The issue in this case is whether Petitioner is entitled to issuance of an occupational license, pursuant to section 550.105, Florida Statutes.
Findings Of Fact The Parties Petitioner, John A. Short, is an applicant for a general individual occupational license, pursuant to section 550.105(2)(a), which would authorize him to work as a blacksmith and farrier at licensed pari-mutuel facilities in Florida.4/ Respondent is the state agency charged with issuing occupational licenses to employees of pari-mutuel wagering facilities in the state of Florida pursuant to chapter 550. Petitioner's Application for Occupational License and Waiver On December 11, 2017,5/ Petitioner filed with Respondent DBPR PMW-3120, Individual Occupational License Application, seeking to obtain a pari-mutuel wagering general individual occupational license. Also on December 11, 2017, Petitioner filed DBPR PMW-1380, Request for Waiver, seeking a waiver, pursuant to section 550.105(5)(c) and rule 61D—5.006, of disqualification from occupational licensure under section 550.105(5)(b) on the basis of a felony conviction. In his license application filed on December 11, 2017, Petitioner disclosed that he had a prior felony conviction that was adjudicated on September 22, 1998, in Jefferson County, Kentucky.6/ Subsequently, on March 5, 2018, Petitioner filed an amended application page on which he disclosed two other criminal offenses: receiving stolen property, and possession of marijuana. Both of these offenses, which were misdemeanors, were adjudicated on November 24, 1991, in Kentucky. On June 13, 2018, Petitioner participated in a waiver interview conducted by Respondent, as required under rule 61D-5.006. At the interview, Petitioner disclosed that he had several other criminal convictions, some of which had not been listed on his license application. In the Denial Letter, Respondent notified Petitioner that it was denying his application on the basis of his felony conviction for third degree assault on a police officer and his failure to disclose all of his convictions on his license application. Respondent also notified Petitioner that it was denying his request for a waiver. Evidence Adduced at the Final Hearing As noted above, Petitioner is a blacksmith and farrier, and he currently works in that trade in Florida, where he now resides full time. Specifically, Petitioner works with Marshall Hudson, also a blacksmith and farrier, who is a subcontractor to the Wellington Equestrian Federation at Equestrian Sport Productions in Wellington, Florida. Petitioner has worked with Hudson for four or five seasons, shoeing horses of many different breeds, including thoroughbreds, quarter horses, standardbreds, walking horses, saddlebreds, and carriage horses, at the barns, showgrounds, and other venues at which the horses are located. The competent, credible evidence establishes that Petitioner is, or has been, licensed by the Kentucky Horse Racing Commission as a blacksmith and farrier over a period of several years,7/ with the exception of a short period in 2016 during which his license had lapsed. Pursuant to his Kentucky occupational license, Petitioner is, or has been, authorized to conduct his trade at licensed racing facilities in Kentucky, including Churchill Downs and other tracks. Petitioner credibly testified——and no countervailing evidence was presented——that he has never been subject to licensure discipline during the entire time he has been licensed in Kentucky. Petitioner's Criminal Offenses At the final hearing, Petitioner was forthright regarding his criminal record. He testified that he had been convicted of third degree assault on a police officer, a felony, in Jefferson County, Kentucky in 1998,8/ and credibly explained the circumstances surrounding that conviction. His account of that incident provided at the final hearing is consistent with that provided in his June 13, 2018, waiver interview.9/ Petitioner also readily acknowledged that he had been convicted of numerous misdemeanor offenses, some of which have been expunged from his criminal record. These include theft by deception, receiving stolen property, shoplifting, carrying a concealed weapon, possession of marijuana, driving under the influence, and several traffic—related offenses. With the exception of the possession of marijuana and some traffic—related offenses, Petitioner's criminal offenses were committed during the 1990s. His most recent arrest was in 2011, for misdemeanor possession of marijuana, which was resolved by paying a $150.00 fine. Since then, Petitioner has not been convicted of any crimes.10/ There was no evidence presented showing that Petitioner has ever engaged in criminal activity regarding pari— mutuel wagering, gambling, bookmaking, cruelty to animals, or that is a capital offense.11/ Evidence Regarding Petitioner's Character Hudson testified regarding Petitioner's character. He attested that Petitioner is a good person who has a talent for working with horses. He has never known Petitioner to have a conflict with any owner, rider, or veterinarian in connection with any of the horses that Petitioner has worked with over the years. At the final hearing, Petitioner acknowledged that in 2016, he engaged in pari-mutuel work for a short period of time in Kentucky without being licensed. Petitioner's Kentucky Horse Racing Commission occupational license had lapsed while he was not working in—state. He renewed it later that year, but during the time his license had lapsed, he occasionally worked at Churchill Downs in order to make enough money to apply for a new occupational license. On those occasions, he rode into the facility in the truck of another racetrack employee who was licensed, and no one questioned his presence because they knew him from having previously worked there, while he was licensed. He acknowledged that he knew he was legally required to hold a license to gain access to the backside of pari-mutuel racetracks in Kentucky, but testified that it was commonplace for unlicensed persons to work in the backside at Churchill Downs, except on large racing event days. No evidence was presented that Petitioner has ever accessed the backside of, or engaged in activities requiring occupational licensure at, pari-mutuel facilities in Florida while not being licensed to do so.12/ Findings of Ultimate Fact Petitioner's Felony Conviction As discussed above, Petitioner readily acknowledged that he was convicted of third degree assault on a police officer, a felony, in Kentucky in 1998. Respondent is authorized, pursuant to section 550.105(5)(b), to deny Petitioner's application for an occupational license on the basis of his felony conviction. Waiver of Disqualification from Licensure Section 550.105(5)(c) authorizes Respondent to waive licensure disqualification under section 550.105(5)(b) if "the applicant establishes that she or he is of good moral character, that she or he has been rehabilitated, and that the crime she or he was convicted of is not related to pari—mutuel wagering and is not a capital offense." As discussed above, there is no evidence showing that Petitioner has been convicted of any crime involving pari—mutuel wagering or that is a capital offense. Therefore, the question becomes whether the preponderance of the evidence shows that Petitioner is rehabilitated and of good moral character such that, pursuant to section 550.105(5)(c) and rule 61D—5.006, he is entitled to a waiver from licensure disqualification. The question whether a person is rehabilitated from his or her criminal conviction primarily focuses on the person's behavior subsequent to committing the offense, rather than focusing solely——or even primarily——on whether the person committed the offenses.13/ As discussed above, Petitioner was forthright in acknowledging that he had committed numerous criminal offenses in the past——one of them a serious felony that, pursuant to statute, has effectively excluded him from obtaining an occupational license. This is his only felony offense, and was committed over 20 years ago. Although Petitioner committed several offenses subsequent to his 1998 felony conviction, they were misdemeanors, the majority of which were committed in the 1990s and many of which subsequently have been expunged from his record. His most recent offense, misdemeanor possession of marijuana, for which he paid a small fine to resolve, occurred in 2011, some eight years ago. There is no evidence that he has engaged in criminal behavior since then. Based on the foregoing, the undersigned finds, as a matter of ultimate fact, that Petitioner is rehabilitated from his 1998 felony in Kentucky, which is the basis on which Respondent has proposed to deny his occupational license application. See J.D. v. Fla. Dep't of Child. & Fams., 114 So. 3d 1127, 1131 (whether an applicant is rehabilitated is an issue of ultimate fact to be determined by the trier of fact). Marshall Hudson, a colleague with whom Petitioner has worked for a few years now, vouched for Petitioner's character. Petitioner testified, credibly, that he has never had any "problems" associated with his work as a blacksmith and farrier. Respondent presented no evidence to the contrary. Petitioner admitted to working without a license in the backside of Churchill Downs in Kentucky for a short time, approximately three years ago. The evidence establishes that he did so because he needed the work in order to make enough money to apply for an occupational license, since his had lapsed while he had not been working in—state. Under these circumstances, it is understandable that Petitioner would accept the opportunity to make money that would enable him apply for an occupational license that would allow him to legally practice his trade. Once Petitioner had earned enough money to obtain an occupational license, he did so. It is further noted that there was no evidence presented that Petitioner has since engaged in the unlicensed practice of his trade in Kentucky or in any other state. The evidence also does not show that Petitioner has ever engaged in the unlicensed practice of his trade at licensed pari—mutuel facilities in Florida. Importantly, too, no evidence was presented showing that Petitioner has ever engaged in conduct involving gambling, bookmaking, or cruelty to animals, and none of his criminal offenses involved pari—mutuel wagering——conduct that would rightfully raise significant concerns as to whether he should be licensed. Based on these considerations, the undersigned determines, as a matter of ultimate fact, that Petitioner is of good moral character for purposes of obtaining a waiver, pursuant to section 550.105(5)(c) and rule 61D—5.006. See Albert v. Fla. Dep't of Law Enf., 573 So. 2d 187 (Fla. 3d DCA 1991)(except where a specific provision of statute has categorically——i.e., absolutely and without qualification—— disqualified an applicant from consideration for licensure, the question of what constitutes "good moral character" is a question of fact to be determined by the trier of fact).14/ Failure to Disclose Criminal History Respondent proposes to deny Petitioner's application on the basis that he did not disclose his entire criminal history, as required by the "Background Information" section of the occupational license application form. The evidence establishes that Petitioner did not disclose his entire criminal history on the application form filed on December 11, 2017, as supplemented on March 5, 2018. However, this is a de novo proceeding designed to formulate agency action, not review action taken earlier and preliminarily. As such, Petitioner was entitled to present, at the final hearing in this proceeding, information regarding his criminal history additional to that provided in his application. At the final hearing, in response to Respondent's questioning in its case in chief, Petitioner testified regarding each criminal offense he had committed. Petitioner's testimony regarding his complete criminal history at the de novo final hearing in this proceeding satisfies the requirement in the occupational license application Background Information section, that his complete criminal history be disclosed. Accordingly, failure to disclose his criminal history is not a basis for denying his application pursuant to section 559.791.
Conclusions For Petitioner: John A. Short, pro se 3701 Quantum Lakes Drive, Suite 109 West Palm Beach, Florida 33426 For Respondent: James A. Lewis, Esquire Department of Business and Professional Regulation 2601 Blair Stone Road Tallahassee, Florida 32399—2202
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order granting Petitioner's application for a pari-mutuel wagering occupational license. DONE AND ENTERED this 6th day of August, 2019, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 6th day of August, 2019.
Findings Of Fact 1. The Administrative Law Judge’s Findings of Fact are hereby approved and adopted and incorporated herein by reference. 2. There is clear and convincing evidence to support the Administrative Law Judge’s Findings of Fact.
The Issue The issue in this case is whether Petitioner is of good moral character, which must be affirmatively determined by Respondent before Petitioner can be issued a license to operate as a community association manager.
Findings Of Fact The Parties Petitioner Department of Business and Professional Regulation ("Department") has jurisdiction to regulate the practice of community association management. In June 2008, Petitioner Teddy Nadel ("Nadel") submitted to the Department an application for licensure as a community association manager. In August 2008, the Department notified Nadel that it intended to deny his application on the ground that he had failed to demonstrate good moral character. Nadel's Relevant Personal History For decades, from the mid-1960s through 2005, Nadel was a certified general contractor in the state of Florida. During most of this period, Nadel apparently engaged in the business of contracting without incident. In recent years, however, Nadel on several occasions was disciplined administratively for alleged misconduct in connection with his contracting business. The first disciplinary proceeding arose from Nadel's alleged failure timely to pay a civil judgment. In August 2001, the Department issued an Administrative Complaint accusing Nadel of having failed "to satisfy[,] within a reasonable time, the terms of a civil judgment obtained against the licensee . . . relating to the practice of the licensee's profession," which is an offense under Section 489.129(1)(q), Florida Statutes. Without admitting or denying the allegations, Nadel agreed to entry of a Final Order, in August 2002, whereby he was directed to satisfy the judgment, pay a fine of $500, and reimburse the Department $333.37 in costs. In March 2003, the Department again issued an Administrative Complaint against Nadel. The multiple charges included failure timely to satisfy a civil judgment, mismanagement,1 incompetence,2 and helping an unlicensed person engage in the business of contracting.3 In December 2003, pursuant to a stipulation under which Nadel elected not to dispute (or admit) the charges, the Construction Industry Licensing Board ("Board") entered a Final Order requiring Nadel to pay a fine and costs totaling approximately $4,000, satisfy the final judgment against him, and serve two years' probation. On March 7, 2005, the Board entered a Final Order Approving Voluntary Relinquishment of Licensure, which permanently stripped Nadel of his general contractor license. This action brought to an end certain disciplinary proceedings which were then pending against Nadel, who had been charged with helping four separate unlicensed individuals engage unlawfully in the business of contracting. Nadel neither admitted nor denied the allegations. At the final hearing, Nadel was afforded a full opportunity to explain the circumstances surrounding the multiple disciplinary actions that had been brought against him. To the rather limited extent Nadel testified about the facts underlying the numerous administrative charges described above, he failed persuasively and credibly to rebut the reasonable inference that naturally arises from the undisputed facts concerning his willingness repeatedly to accept punishment (including, ultimately, the loss of his license) without a contest in the respective disciplinary cases: namely that he had committed the unlawful acts as alleged. The undersigned therefore infers that, in the relatively recent past, Nadel exhibited a troubling pattern of behavior demonstrating a disregard of the laws regulating the business of contracting. On January 4, 2007, Nadel was convicted in the Circuit Court for the Seventeenth Judicial Circuit on charges of engaging in the unlicensed practice of contracting during a state of emergency, which is a third degree felony4; and grand theft in the third degree, which is also a felony of the third degree.5 (Nadel had pleaded no contest to these charges, and the court had withheld adjudication.) Following this conviction, the court sentenced Nadel to 18 months' probation, imposed some small fines, and assessed costs. In his application for licensure as a community association manager, Nadel disclosed his criminal conviction and the fact that he had voluntarily relinquished his general contractor license. He denied, however, having been "involved in any civil lawsuits or administrative actions in this or any other state . . . ." This denial was false, as Nadel must have known. After all, in the previous six years at least two administrative actions had been brought against Nadel in whole or in part because of his failure to pay two separate civil judgments. Ultimate Factual Determination Based on the foregoing findings of fact, the evidence in support of which is clear and convincing, it is determined that Nadel does not possess the good moral character required for issuance of a community association manager license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order denying Nadel's application for licensure as a community association manager. DONE AND ENTERED this 18th day of March, 2009, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 18th day of March, 2009.
The Issue The issues in this case are whether Respondent, Gerardo Quintero, committed the offenses alleged in an Administrative Complaint issued by Petitioner, the Department of Business and Professional Regulation, on December 6, 2006, and, if so, what penalty should be imposed.
Findings Of Fact Prior to June 2005, Respondent received what appeared to be a valid Miami-Dade Building Business Certificate of Competency. Upon receipt, Respondent applied to the Department of Business and Professional Regulation (hereinafter referred to as the “Department”) to obtain a registered contractor’s license using the Certificate of Competency. Based on the Certificate of Competency, the Department issued Respondent a registered contractor’s license bearing license number RF11067268. Respondent also applied for a certificate of authority for his business, Q Plumbing Services Corp. (hereinafter referred to as “QPSC”). Based on the Certificate of Competency and the registered contractor’s license being granted, the Department issued a certificate of authority to QPSC, QB 42825. Subsequent to the Department’s issuance of both the registered contractor’s license to Respondent and the certificate of authority for QPSC, Respondent and the Department learned that the Miami-Dade Building Business Certificate of Competency (hereinafter referred to as the “BCCO”) obtained by Respondent was not a valid certificate. Respondent’s actions were not as a result of any fraud or intentional action on the part of Respondent; however, it is acknowledged by all parties that the Miami-Dade Building Business Certificate of Competency obtained by Respondent was not valid. At no time during the application process or upon attesting to the qualified business license application did Respondent have knowledge that the Miami-Dade BCCO employees were engaged in a scheme to defraud the public. At no time during the application process or upon attesting to the qualified business license application did Respondent have knowledge that Respondent obtained the BCCO Competency Card in deviation of any state laws or rules, or local ordinances. At no time during the application process or upon attesting to the qualified business license application did Respondent have knowledge that the BCCO Competency Card was not a valid certificate. At no time during the application process or upon attesting to the qualified business license application did Respondent have knowledge that Respondent’s attestation on the application was inaccurate. At no time during the application process or upon attesting to the qualified business license application did Respondent have knowledge that the approved BCCO qualifying board did not approve the Competency Card. At no time did Respondent have knowledge that any documents Respondent submitted to the Department contained false, forged, or otherwise inaccurate information or material. At the time the Department issued the registered contractor’s license and subsequent certificate of authority on the sole basis of the Miami-Dade Building Business Certificate of Competency presented by Respondent, the Department properly issued the registered contractor’s license based on the information submitted to it. The parties stipulated that the Respondent was not entitled to the registered contractor’s license and certificate of authority because the Miami-Dade Building Business Certificate of Competency was not a valid certificate. At the time of application to the Department, Respondent was not qualified by any local jurisdiction or any other method necessary to receive a registered contractor’s license from the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department finding that Gerardo Quintero violated the provisions of Sections 489.129(1)(a) and (m), and 455.227(1)(h), Florida Statutes, as alleged in Counts I, III, and IV of the Administrative Complaint; dismissing Count II of the Administrative Complaint; requiring that Respondent pay the costs incurred by the Department in investigating and prosecuting this matter; giving Respondent 30 days to voluntarily relinquish his license; and revoking Respondent’s license if he fails to voluntarily relinquish it within 30 days of the final order. DONE AND ENTERED this 13th day of December, 2007, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 December, 2007. COPIES FURNISHED: Matthew D. Morton Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Timothy Atkinson, Esquire Oertel, Fernandez, Cole & Bryant Post Office Box 1110 Tallahassee, Florida 32302 Richard A. Alayon, Esquire Alayon & Associates, P.A. 4551 Ponce de Leon Boulevard Coral Gables, Florida 33146 G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue This is a license discipline case in which the Petitioner, by means of a three count Administrative Complaint, seeks to take disciplinary action against the Respondent on the basis of alleged violations of subsections (2), (14), and of Section 475.624, Florida Statutes.
Findings Of Fact The Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent Beverly J. Merchant is currently a Florida state certified general appraiser, having been issued license number 000141 in accordance with Chapter 475, Part II, Florida Statutes. The last license issued to Respondent was as a state certified general appraiser with a home address of 548 San Esteban Avenue, Coral Gables, Florida 33146. On January 14, 1994, Graimark/MIG Joint Venture and/or Crown Revenue, Inc., ordered Respondent to perform an appraisal of Sunrise Gardens, an adult congregate living facility (ACLF), in Miami, Florida. On March 31, 1994, the Respondent completed the appraisal of the property. The Respondent's appraisal report made several references to zoning "variances." The use of the term "variances" was reasonable under the circumstances of the subject appraisal. The Respondent's appraisal report stated that the highest and best use of the property was not as an adult congregate living facility (ACLF), but as some other institutional use. Under the circumstances of the subject appraisal, the Respondent provided adequate support to indicate that under the applicable zoning provisions "another institutional use" was probably permissible by variance. The Respondent's appraisal report included a cost approach that utilized a cost factor for "convalescent hospital space," even though the highest and best use was a use other than an ACLF. The use of that cost factor was reasonable under the circumstances of the subject appraisal.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be entered in this case dismissing all charges against the Respondent. DONE AND ENTERED this 5th day of September, 1996, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 1996.
The Issue The issues in this case are whether Respondent, Luis Garcia, committed the offenses alleged in an Administrative Complaint issued by Petitioner, the Department of Business and Professional Regulation, on December 6, 2006, and, if so, what penalty should be imposed.
Findings Of Fact Prior to June 2005, Respondent received what appeared to be a valid Miami-Dade Building Business Certificate of Competency. Upon receipt, Respondent applied to the Department of Business and Professional Regulation (hereinafter referred to as the “Department”) to obtain a registered contractor’s license using the Certificate of Competency. Based on the Certificate of Competency, the Department issued Respondent a registered contractor’s license bearing license number RF11067267. Respondent also applied for a certificate of authority for his business, A.P.A. Plumbing Corporation (hereinafter referred to as “APA”). Based on the Certificate of Competency and the registered contractor’s license being granted, the Department issued a certificate of authority to APA, QB 42763. Subsequent to the Department’s issuance of both the registered contractor’s license to Respondent and the certificate of authority for APA, Respondent and the Department learned that the Miami-Dade Building Business Certificate of Competency (hereinafter referred to as the “BCCO”) obtained by Respondent was not a valid certificate. Respondent’s actions were not as a result of any fraud or intentional action on the part of Respondent; however, it is acknowledged by all parties that the Miami-Dade Building Business Certificate of Competency obtained by Respondent was not valid. At no time during the application process or upon attesting to the qualified business license application did Respondent have knowledge that the Miami-Dade BCCO employees were engaged in a scheme to defraud the public. At no time during the application process or upon attesting to the qualified business license application did Respondent have knowledge that Respondent obtained the BCCO Competency Card in deviation of any state laws or rules, or local ordinances. At no time during the application process or upon attesting to the qualified business license application did Respondent have knowledge that the BCCO Competency Card was not a valid certificate. At no time during the application process or upon attesting to the qualified business license application did Respondent have knowledge that Respondent’s attestation on the application was inaccurate. At no time during the application process or upon attesting to the qualified business license application did Respondent have knowledge that the approved BCCO qualifying board did not approve the Competency Card. At no time did Respondent have knowledge that any documents Respondent submitted to the Department contained false, forged, or otherwise inaccurate information or material. At the time the Department issued the registered contractor’s license and subsequent certificate of authority on the sole basis of the Miami-Dade Building Business Certificate of Competency presented by Respondent, the Department properly issued the registered contractor’s license based on the information submitted to it. The parties stipulated that the Respondent was not entitled to the registered contractor’s license and certificate of authority because the Miami-Dade Building Business Certificate of Competency was not a valid certificate. At the time of application to the Department, Respondent was not qualified by any local jurisdiction or any other method necessary to receive a registered contractor’s license from the Department. Subsequent to Respondent’s initial application and receipt of registered contractor’s license RF11067267, Respondent has taken the competency test required to be properly licensed through the Department. Respondent asserts that he has passed the test. The Department will not dispute this if he is able to provide verification that he did receive a passing score.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department finding that Luis Garcia violated the provisions of Sections 489.129(1)(a) and (m), and 455.227(1)(h), Florida Statutes, as alleged in Counts I, III, and IV of the Administrative Complaint; dismissing Count II of the Administrative Complaint; requiring that Respondent pay the costs incurred by the Department in investigating and prosecuting this matter; giving Respondent 30 days to voluntarily relinquish his license; and revoking Respondent’s license if he fails to voluntarily relinquish it within 30 days of the final order. DONE AND ENTERED this 13th day of December, 2007, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 December, 2007. COPIES FURNISHED: Matthew D. Morton Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Timothy Atkinson, Esquire Oertel, Fernandez, Cole & Bryant Post Office Box 1110 Tallahassee, Florida 32302 Richard A. Alayon, Esquire Alayon & Associates, P.A. 4551 Ponce de Leon Boulevard Coral Gables, Florida 33146 G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
