Scherer v. Dept. of Bus. and Professional, 5D05-1078.

• Citation: 919 So.2d 662
• Decision Date: 27 January 2006
• Docket Number: No. 5D05-1078.,5D05-1078.
• Parties: Daniel SCHERER, Appellant, v. DEPARTMENT OF BUSINESS AND PROFESSIONAL, etc., Appellee.
• Court: Florida District Court of Appeals

919 So.2d 662

Daniel SCHERER, Appellant, v. DEPARTMENT OF BUSINESS AND PROFESSIONAL, etc., Appellee.

No. 5D05-1078.

District Court of Appeal of Florida, Fifth District.

January 27, 2006.

Dennis F. Fountain, Winter Springs, for Appellant.

Charles J. Crist, Jr., Attorney General, and Diane L. Guillemette, Assistant Attorney General, Tallahassee, for Appellee.

GRIFFIN, J.

Daniel Scherer ["Scherer"] appeals an order of the Construction Industry Licensing Board ["the Board"] denying his application for a general contractor's license. We reverse.

On March 15, 2004, Scherer submitted an application to the Department of Business and Professional Regulation [the "Department"] for licensing as a certified general contractor. In the application, Scherer admitted he had been convicted of the crimes of possession and conspiracy to possess marijuana with the intent to distribute, for which he had been sentenced to sixty months in the Department of Corrections and for which he was currently on supervised release.

The Department's April 7, 2004, response informed Scherer that his application was incomplete because of his failure to complete certain financial responsibility questions and to provide proof of the reinstatement of his civil rights. Scherer, through counsel, replied that these requirements did not apply. The Department then wrote Scherer, stating that the application had been revised, requiring Scherer to submit proof of the reinstatement of his civil rights as part of his application if he had previously been convicted of a felony. Scherer was unable to comply with the Department's directive, as his civil rights had not been restored.

At a meeting held in September 2004, the Board voted to deny Scherer's application, stating as grounds:

You failed to submit proof of having your civil rights restored subsequent to a previous felony conviction in accordance with section 112.011(1)(b), Florida Statutes.

Upon receipt of the Notice of Intent to Deny, Scherer asked for an informal hearing before the Board, at which he asserted that he could not be denied a license solely on the basis that he had been convicted of a crime. Nevertheless, the Board issued a final order denying Scherer's application because:

Applicant has failed to submit proof of having his civil rights restored subsequent to a previous felony conviction in accordance with Section [sic] 112.011(1)(b), F.S.

We begin by observing that Florida's construction licensing statutes do not prohibit the licensure of applicants who have previously been convicted of a felony. They make an applicant eligible if the person is of "good moral character." § 489.111(2)(b), Fla. Stat. (2003). Moreover, the Board may refuse to certify an applicant for failure to satisfy the requirement of good moral character only if:

1. There is a substantial connection between the lack of good moral character of the applicant and the professional responsibilities of a certified contractor; and

2. The finding by the board of lack of good moral character is supported by clear and convincing evidence.

§ 489.111(3), Fla. Stat. (2003). A felony conviction will not satisfy this test without more. Some persons convicted of a crime may in fact lack the "good moral character" necessary to licensure as a contractor, but not necessarily. Nor would restoration of a felon's civil rights necessarily re-infuse good moral character. The statute, moreover, requires a connection between the felony conviction and the professional responsibility of a contractor.

The "good moral character" provisions of section 489.111 are different from various other Florida statutes that specifically allow the denial of a license to those convicted of a felony. For example, Florida statutes specifically allow the denial of a license as a motor vehicle dealer if an applicant has been convicted of a felony. See § 320.27(9)(a)(2), Fla. Stat. (2005). They also require the denial of a license as a private investigator if the applicant has been convicted of a felony until the applicant's civil rights have been restored and a period of ten years have expired since final release from supervision. See 493.6118(4)(a), Fla. Stat. (2005).

In denying Scherer a license, the Board relied on section 112.011(1)(b), Florida Statutes (2003):

(b) Except as provided in s. 775.16, a person whose civil rights have been restored shall not be disqualified to practice, pursue, or engage in any occupation, trade, vocation, profession, or business for which a license, permit, or certificate is required to be issued by the state, any of its agencies or political subdivisions, or any municipality solely because of a prior conviction for a crime. However, a person...