STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, FLORIDA CONSTRUCTION ) INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2415

)

DAVID H. VALIN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on February 16, 1983, 1/ in Ft.

Lauderdale, Florida.

APPEARANCES

For Petitioner: Michael J. Cohen, Esquire

2715 East Oakland Park Boulevard, Suite 101 Ft. Lauderdale, Florida 33306

For Respondent: David H. Valin, pro se

c/o H. B. Valin Roofing 6241 Northwest 12th Street

Ft. Lauderdale, Florida 33313 ISSUES

The issues presented for decision herein are (1) whether or not the Respondent, David H. Valin, failed to obtain a

building permit to perform certain roofing repairs and thereby deliberately disregarded and violated the applicable building code, in violation of Subsection 489.129(I) (d) , Florida Statutes (1979) and (2) whether or not the Respondent completed an inspection report in which he deliberately disregarded significant defects in a roof, and thereby is guilty of deceptive or fraudulent representation in the practice of contracting in violation of Subsection 409.129(4)(c) , to wit: Subsection 455.227(1)(a), Florida Statutes (1979).

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, and the documentary evidence received, the following relevant facts are found.

1. Respondent is a registered roofing contractor who has been issued License No. RC 0023750.

   
   

2. During early 1981, Aleta Swygard and Thomas Garner contracted to purchase a residence located at 4814 SW 20th Street, Ft. Lauderdale, Florida. Pursuant to the terms of that purchase agreement, and the requirements of the FHA financing, it was necessary to obtain a report from a licensed roofer that the roof was in satisfactory condition.

   
   

3. At the time the contract for purchase was executed, the roof was leaking and the ultimate condition of the roof was unknown by the purchaser.

   
   

4. The purchaser's broker, Wise Realty, incident to the real estate transaction, retained Respondent to perform all necessary roof repairs on the subject residence and to file an FHA inspection report in accordance with the requirements of FDA.

   
   

5. Respondent was instructed by Amerigo DiPietro, real estate broker, to only do what was facially necessary to allow the transaction to close. Respondent therefore prepared the report to show that the roof was in satisfactory condition. In this regard, Messenger DiPietro did not testify at the hearing herein.

   
   

6. Respondent admits that the roof was in unsatisfactory condition and although he advised Wise Realty, through broker DiPietro, of the condition, he completed the FHA report indicating that the roof was in satisfactory condition. (TR 8,

   45 and 46)

   
   

7. It is undisputed that the Respondent charged, and was paid, approximately $425 to perform the repairs on the subject roof in question. It is also undisputed that the Respondent did not obtain a building permit although one was required) to perform work where the repairs exceed the sum of $300. (Testimony of Respondent and Susan Marchitello, TR 13)

   
   

8. The purchasers relied upon the FHA inspection report prepared by Respondent to proceed to closing on that property. After closing, the purchaser discovered that the roof continued to leak and was in need of substantial repairs. In this regard,

   the purchasers expended approximately $2,200 to repair the roof in satisfactory condition.

   
   

9. Respondent failed to honor his written guarantee issued to the purchasers shortly after his work was performed although he received notice that repairs were necessary.

   
   

10. In mitigation, the Respondent points out that he was led down the "primrose path" by broker DiPietro and that this was the first disciplinary proceeding he had been involved in in his approximately 13 years of contracting. Further, Respondent avers to the fact that he had previously performed contracting repairs for broker DiPietro without any problems.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action.

    
    

    Section 120.57(1) , Florida Statutes.

    
    

12. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

    
    

13. The authority of the Petitioner is derived from Chapter 489, Florida Statutes.

    
    

14. Respondent1 a registered roofing contractor, (License No. RC0023750) is subject to the disciplinary guides of Chapter 489, Florida Statutes.

    
    

15. Petitioner, pursuant to Section 489.129(1), Florida Statutes, is authorized to take disciplinary action against a contractor found guilty of any of the acts specified in subsection 489.129(1)(c) or (d), Florida Statutes.

    
    

16. Subsection 489.129(1)(c) , Florida Statutes (1979) provides in pertinent part that a contractor violates that section by engaging in acts and/or conduct violative of Chapter

455. A licensee violates subsection 455.227(1)(a) if he has made misleading, deceptive, untrue or fraudulent representations in the practice of his profession. In this regard, Respondent, by completing an FHA inspection report which contains misleading, deceptive, untrue or fraudulent representations, amounts to conduct violative of subsection 455.227(1)(a) and thereby violates subsection 489.129(1) Florida Statutes.

17. Competent and substantial evidence was offered herein to establish that the Respondent failed to obtain a building

permit to perform the construction herein in violation of the South Florida Building Code, Section 301.1. Based thereon, the Respondent engaged in a deliberate disregard and violation of the applicable building codes or laws in violation of subsection 489.129(1)(d) , Florida Statutes. 2/

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Respondent be ordered to pay an administrative fine of $500 and that his registered roofing contractor's license (No. RC 0023750) be placed on probation for a period of one (1) year.

RECOMMENDED this 18th day of April, 1983, in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of April, 1983.

ENDNOTES

1/ The parties were afforded leave through March 14, 1983, to submit Proposed Recommended Orders. Petitioner's counsel submitted a Proposed Recommended Order which "as received by this Division on March 14, 1983 and considered by me in preparation of this Recommended Order. To the extent that the proposed findings, etc. are not incorporated in this Recommended Order, said proposed findings, etc. were deemed either irrelevant, immaterial or not otherwise supported by record evidence.

2/ Consideration was given to Respondent's testimony to the effect that this was the first incident in which he has been a party to any disciplinary proceeding in his approximately 13 years of contracting. However, based on Respondent's admission during the hearing herein, and his express knowledge of the

subject requirements to obtain a building permit, a violation of that provision is indicated.

COPIES FURNISHED:

Michael J. Cohen, Esquire Suite 101

2715 E. Oakland Park Blvd.

Ft. Lauderdale, Florida 33306

David H. Valin

c/o H. B. Valin Roofing 6241 NW 12th Street

Mr. Fred Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-002415

Orders for Case No: 82-002415