ROBERTO T. CORA

v.

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION

FERNANDEZ, J.

Roberto Cora, appearing pro se, appeals the Construction Industry

Licensing Board’s (“Board”) final order of discipline in a non-formal hearing,

in which Cora’s construction contractor’s license was put on probation for

two years, Cora was ordered to complete an additional seven credit hours of

continuing education, and he was ordered to pay an administrative fine in

the amount of $5,000 and costs in the amount of $189.42. The Department

of Business and Profession Regulation’s (“Department”) confesses error

agreeing that the administrative fine exceeds statutory guidelines. Due to the

disputed issue of material fact alleged by Cora and supported by the record,

we reverse and remand the Board’s final order of discipline with instructions

for an administrative law judge to conduct a formal evidentiary hearing.

Cora is licensed by the Department of Business & Professional

Regulation, Construction Industry Licensing Board, as a Certified

Mechanical Contractor. Cora held the qualifying license for Apogee HVAC

Solutions, LLC, (“Apogee”) in October 2021, when Apogee contracted with

homeowner, Ledys Garcia, to install a new central air conditioning unit and

hot water heater in her home for $16,672.

To begin work on the project, Cora obtained permit number

2022000537 from the Miami-Dade County Building Department. Garcia filed

a complaint against Cora alleging that Cora failed to complete the

installation, ignored her calls, and “destroyed [her] house” by drilling holes

all over and incorrectly installing the water heater. Garcia also alleged that

despite several warnings about an impending expired permit, Cora failed to

close out the permit.

The Department filed an administrative complaint against Cora alleging

a violation of section 489.129(1)(o), Florida Statutes (2021). The complaint

simply states:

7. Respondent proceeded on the job without obtaining the applicable local building department permits and inspections. 8. Based on the foregoing, Respondent violated Section 489.129(1)(0), Florida Statutes, by proceeding on a job without obtaining applicable local building department permits and inspections.

The Department also recommended that the Board impose penalties. The

complaint included a Notice of Rights containing the following language:

Please be further advised that Respondent has the right to request a hearing to be conducted in accordance with Sections 120.569 and 120.57, Florida Statutes, to be represented by counsel or other qualified representative, to present evidence and argument, to call and cross-examine witnesses and to have subpoenas and subpoenas duces tecum issued on his or her behalf if a hearing is requested. Rule 28-106.111, Florida Administrative Code, provides in part that if Respondent fails to request a hearing within 21 days of receipt of an agency pleading, Respondent waives the right to request a hearing on the facts alleged. Any request for an administrative proceeding to challenge or contest the charges contained in the Administrative Complaint must conform to Rule 28-I06.201 5(5), Florida Administrative Code.

In response, Cora submitted an election of rights form seeking a formal

administrative hearing, purporting to dispute the following material facts:

“[V]iolations of 489.1195(1)(a) and 489.129(1)(o) are being disputed.

Attached are 21 pages of support documentation for a ‘motion to dismiss’

election.” Finding that the election of rights form did not specifically dispute

material facts, the Department dismissed the form without prejudice.

In response to the dismissal, Cora submitted an “answer” with several

attachments including the original election of rights form and a “motion to

dismiss,” in which he alleged a number of arguments including:¹) that “there

was a [p]ermit on the job,” and 2) that Garcia “had a problem even for

granting access to the City Inspector and Apogee HVAC technicians . . . in

more than one occasion, just in order to get a Final Inspection . . . [and that

she] ignore[ed] City Inspector’s time and A/C technicians’.”

Upon receiving Cora’s answer, the Department concluded that Cora

failed to file an amended election of rights form disputing any material facts

alleged in the administrative complaint. Therefore, the Department moved

the Board to enter a final order denying Cora’s request for a formal hearing,

adopting the allegations of fact and conclusions of law in the administrative

complaint, and imposing a penalty.¹

After a February 14, 2024 hearing, the Board entered a final order

adopting the findings of fact and conclusions of law in the administrative

complaint.2 The Board placed Cora’s license on probation for two years,

ordered an additional seven credit hours of continuing education, and

ordered him to pay an administrative fine in the amount of $5,000 and costs

in the amount of $189.42.3 Cora filed this appeal.

Section 120.68, Florida Statutes (2024), governs judicial review of the

Board’s final order. “[This Court] may set aside agency action when it finds

that the action is dependent on findings of fact that are not supported by

substantial competent evidence in the record, there are material errors in

procedure, incorrect interpretations of law, or the agency abused its

discretion.” Mattino v. City of Marathon, 345 So. 3d 939, 943 (Fla. 3d DCA

2022) (quoting Galvan v. Dep’t of Health, 285 So. 3d 975, 979 (Fla. 3d DCA

2019)).

The main issue before this Court is whether Cora disputed a material

fact requiring a formal evidentiary hearing. We find that he did. Our Court

has defined “material fact,” in the summary judgment context, as “a fact that

is essential to the resolution of the legal questions raised in the case.” Trelles

v. Le Basque Holdings, LLC, 274 So. 3d 503, 503 (Fla. 3d DCA 2019)

(quoting Cont'l Concrete, Inc. v. Lakes at La Paz III Ltd. P'ship, 758 So. 2d

1214, 1217 (Fla. 4th DCA 2000)).

In his answer, Cora alleged that¹) there was a permit, and 2) Garcia

did not give the City Inspector and Apogee HVAC technicians access to the

home for final inspection. In its motion for a final order, the Department

clarified that the allegation against Cora was for a lack of inspection only,

omitting the lack of permit. However, the record supports Cora’s position that

Garcia did not provide access to the house for final inspection.

The record contains email correspondence between the parties

showing Garcia’s refusal to provide entry to her home. For example, the

record includes a March¹, 2022 email, sent before the permit expired in April

2022, from Apogee to Garcia stating:

Today we had a conference call with you, our office and Y green in relation to a pending job in your house. We want to resolve this issue, first we must do the final inspection and then we will continue to finish the work, just to remind you the inspection was never finished because of you, we made 3 appointments online with the City of Miami, and we notified you the day before and you never opened the gate for the inspector to get into the property and finish his job. Our technician says that they fixed the holes in the roof and that they never worked in the laundry room. As we told you before we want to resolve this issue, so we can make again this Friday on 03/04/2022 the Final Inspection and by next week we will finish the Insulation job that is pending.

(Emphasis added). The record also contains a February 15, 2023 email from

the Miami Dade Building Department to Cora that included a table providing

the permit’s history. Under “Inspection Comments,” the table reads, “110.1

MET TECH ON-SITE NO ACC TO HSE.” (Emphasis added). Under

“Inspection Disposition,” it reads, “Reject No A.” (Emphasis added).

Conversely, Garcia claims that she repeatedly contacted Apogee

regarding the impending permit expiration without results. There are two very

different stories being told by the parties. On this basis, there is a dispute as

to a material fact “that is essential to the resolution of the legal question

raised in the case,” requiring an evidentiary hearing. Trelles, 274 So. 3d at

503.

Accordingly, due to the disputed issue of material fact alleged by Cora

and supported by the record, we reverse and remand the Board’s final order

of discipline with instructions for an administrative law judge to conduct a

formal evidentiary hearing.

Reversed and remanded with instructions.