STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA CONSTRUCTION INDUSTRY ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 79-1546

)

MARLENE E. LUTMAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice an administrative hearing was held before Delphene C. Strickland, Hearing Officer of the Division of Administrative Hearings, in the City Hall, Fort Myers, Florida, on November 29, 1979, commencing at 8:00 o'clock a.m.

APPEARANCES

For Petitioner: Jeffery B. Morris, Esquire

2400 Independent Square One Independent Drive

Jacksonville, Florida 32202

For Respondent: Jeffrey R. Garvin, Esquire

2532 East First Street Post Office Box 2040

Fort Myers, Florida 33902 ISSUE

Whether the Contractor's Licenses Number CR CO12570 and Number CR CA 12570 held by the Respondent, Marlene E. Lutman, should be revoked and a fine imposed for alleged actions as shown in the Administrative Complaint.

FINDINGS OF FACT

1. The Respondent, Marlene E. Lutman, is a vice president of American Custom Builders, Inc. and was a vice president in 1977. Respondent holds licenses Number CR C012570 end Number CR CA12570 issued by the Petitioner Board. On September 11, 1978, Respondent submitted a certification change of status application to the Florida Construction Industry Licensing Board. This application, completed by Respondent under oath on September 7, 1978, was filed for the purpose of changing the contractor's licenses held by Respondent to add the name of American Custom Builders, Inc. to said licenses.

   
   

2. On July 6, 1979, an Administrative Complaint was filed against Respondent, doing business as American Custom Builders, Inc., seeking to permanently revoke her licenses and her right to practice under said licenses

   and to impose an administrative fine in the amount of $500.00. Respondent Lutman requested an administrative hearing, which was scheduled for September 6, 1979, continued on Motion of Respondent, and held November 29, 1979.

   
   

3. On the application completed by Respondent, Question 12(b) asked:

   
   

   Are there now any unpaid past-due bills or claims

   for labor, materials, or services, as a result of the construction operations of any person named in (i) below or any organization in which such person was a member of the personnel?

   
   

   Question 12(c) of the application asked:

   
   

   Are there now any liens, suits, or judgments of record or pending as a result of the construction operations of any person named in "(i) below" or any organization in which any such person was a member of the personnel?

   
   

4. Respondent, as a vice president of American Custom Builders, Inc., was designated in "(i) below." She answered "no" on the application to both of the above stated questions.

   
   

5. Respondent completed the application while she was in Florida. Prior to completing the application, Respondent spoke by telephone with John D. Cannell, an attorney in Ohio, in reference to Questions 12(b) and 12(c), supra. Cannell told Respondent that there were no unpaid bills outstanding. He said that there had been liens filed involving American Custom Builders, Inc., but that these liens had been cancelled. Cannell based his statements to Respondent upon oral assurances from personnel at the bank involved in financing the construction project associated with the liens that all liens had been paid.

   
   

6. It was later learned that on September 7, 1978, the date Cannell told Respondent the liens had been cancelled, the liens had not been cancelled and were of record in the Recorder's Office of Geauga County, Ohio. Liens had been filed on January 6, 1978, January 23, 1978, and January 3l, 1978, by various subcontractors involved in the construction of a house owned by Winford and Sally Ferrentina. The liens were based on claims against American Custom Builders, Inc. as general contractor and the Ferrentinas as owners for unpaid labor and materials and were not satisfied of record until September 20, 1978, on which date the January 6, 1978 lien was satisfied, and March 22, 1979, on which date the other two (2) liens were satisfied.

   
   

7. The Hearing Officer finds that Respondent Lutman did not intend to make a material false statement but negligently relied on oral representations that there were no past-due bills and no liens of record pending as a result of her construction operations.

   
   

8. Both parties submitted proposed findings of fact, memoranda of law and proposed recommended orders, and the Petitioner Board submitted a reply memorandum. These instruments were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this order they have been specifically rejected as being irrelevant or not having been supported by the evidence.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction of this matter and the parties thereto pursuant to Section 120.57, Florida Statutes.

   
   

10. Section 489.127 Prohibitions; penalties.-- (Florida Statutes, 1979) provides:

    
    

    1. No person shall:...

       (d) Give false or forged evidence to the board or a member thereof for the purpose of obtaining a certificate or registration; . . .

       
       

11. Section 468.112 Revocation or suspension of certificate or registration.-- (Florida Statutes, 1977) provides:

    
    

    1. The following acts constitute cause for discipli- nare action:...

       1. The making of any material false state- ment in the application for certification, registration, or renewal....

    
    

12. Respondent Lutman made a material false statement in her answer to the questions delineated on Page 2 of this order on the application she filed on September 11, 1978, contrary to the foregoing statutes. There were on that date liens of record as a result of unpaid bills from a construction operation of her company.

RECOMMENDATION

Based upon the foregoing Findings and Conclusions of Law, the Hearing Officer recommends that the Respondent, Marlene Lutman, be reprimanded.

DONE and ORDERED this 1st day of February, 1980, in Tallahassee, Leon County, Florida.

COPIES FURNISHED:

Jeffery B. Morris, Esquire 2400 Independent Square One Independent Drive

Jacksonville, Florida 32202

Jeffrey R. Garvin, Esquire 2532 East First Street Post Office Box 2040

Fort Myers, Florida 33902

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

================================================================= AGENCY FINAL ORDER

================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD

FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD,

Petitioner,

vs. DOAH CASE NO. 79-1546

Marlene Lutman, CR C012570, CR CA 12570

Respondent,

/

FINAL ORDER OF

FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD

This matter came before the Florida Construction Industry Licensing Board on April 11, 1980, in Tallahassee, Florida.

The Board, having reviewed the Findings of Fact, Conclusions of Law and Recommended Order of the Hearing Officer, adopts the Findings of Fact and Conclusions of Law of the Hearing Officer and IT IS THEREFORE

ORDERED AND ADJUDGED that the Administrative Complaint against Respondent MARLENE LUTMAN, CR C012570, CR CA 12570 be dismissed.

The Respondent is hereby notified that she has 30 days after the date of the Final Order to appeal pursuant to Chapter 120, Florida Statutes, and the Florida Appellate Rules.

DONE and ORDERED this 23rd day of April, 1980.

FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD

By:

JOHN HENRY JONES PRESIDENT

Docket for Case No: 79-001546

Orders for Case No: 79-001546