Judges: D. R. ALEXANDER
Agency: Department of Business and Professional Regulation
Latest Update: Dec. 02, 1983
Summary: Contractor failed to obtain permit prior to job.
83-0197.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, FLORIDA CONSTRUCTION ) INDUSTRY LICENSING BOARD, )
)
Petitioner, )
)
vs. ) CASE NO. 83-197
)
RON LOTZ, )
)
Respondent. )
)
RECOMMENDED ORDER
The Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings, by its duly designated Hearing Officer, DONALD R. ALEXANDER, on August 23, 1983, in Ocala, Florida.
APPEARANCES
For Petitioner: Charles F. Tunnicliff, Esquire
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: Ronald E. Lotz, pro se
1650 Palm Avenue
Winter Park, Florida 32789 BACKGROUND
By an administrative complaint filed on May 10, 1983, petitioner, Department of Professional Regulation, Construction Industry Licensing Board, has charged that respondent, Ronald E. Lotz, a licensed roofing contractor, violated various provisions of Chapter 489, Florida Statutes. In brief, it is alleged that Lotz (1) failed to pull a building permit from the County on a roofing job performed in Marion County in October, 1979, and (2) failed to finish the job in accordance with the provisions of his contract.
Lotz disputed the allegations and requested a formal hearing pursuant to Subsection 120. 57(1), Florida Statutes. The matter was referred by petitioner to the Division of Administrative Hearings on January 19, 1983, with a request that a Hearing Officer be assigned to conduct a hearing.
The matter was initially held in abeyance at the request of petitioner on a representation that a settlement might be reached. On July 14, 1983, petitioner advised such negotiations were unsuccessful and requested the case be set for hearing. A final hearing was thereafter scheduled on August 23, 1983, in Ocala, Florida.
At the final hearing petitioner presented the testimony of Alan A. Hartwell and Donald Gartner and offered petitioner's exhibits 1-3; all were received in evidence. Respondent testified on his own behalf.
The transcript of hearing was filed on September 16, 1983. The parties waived their rights to file proposed findings of fact and conclusions of law.
As narrowed during the course of the hearing, the issue herein is whether respondent (1) failed to obtain a roofing permit on a roofing job in Marion County, Florida in October, 1979 and (2) represented that new exterior siding would be installed on the gables of the house and did not do so.
Based upon all of the evidence, the following findings of fact are determined:
FINDINGS OF FACT
At all times relevant thereto, Respondent, Ronald E. Lotz, held registered roofing contractor license number RC0031773 issued by petitioner, Department of Professional Regulation, Florida Construction Industry Licensing Board. He has been a licensed roofing contractor since February, 1978. His present address is 1650 Palm Avenue, Winter Park, Florida.
In April, 1979 Lotz and Allen Hartwell entered into a contract whereby Lotz agreed to install a "new truss, and shingle roof" on Hartwell's house located at 4005 Northwest 19th Avenue, Ocala, Florida. The agreed upon price for the job was $1,225. As is relevant here, Lotz agreed, inter alia, that a "(n)ew exterior siding (would) be used on all gables". According to their agreement, Lotz was to purchase the plywood necessary to complete the work while Hartwell agreed to buy all their necessary materials.
Section 6 of Marion County Ordinance 78-5, adopted on January 24, requires that a roofing permit be obtained on all jobs where the value of the work exceeds $100.00. Lotz did not obtain such a permit even though he conceded at the hearing that such a permit was required.
Although the contract called for a new exterior side on all gables, Lotz did not install the same. Instead, he installed tongue and groove 3/4 inch boards which he felt were an adequate substitute. He discussed this with Hartwell at the time the job was performed and Hartwell did net object to this change in the contract.
Hartwell, who filed a complaint against Lotz, was primarily dissatisfied with a wavy roof. However, that aspect of the job is not a part of this proceeding. The contract itself was modified by the parties a number of times. As a result, Lotz omitted certain requirements therein but added others without additional charge. In all, he was paid $1,125 for the project.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matters and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.
Lotz is charged with two violations: (a) failing to pull a permit on the job in violation of Subsection 489.129 (1)(d), Florida Statutes, and (b) making a misleading, deceptive, untrue or fraudulent representation by
representing to Hartwell that a new exterior siding on the gables would be installed and then failing to do so in violation of Subsections 455.227(1)(a) and 489.129(1)(c), Florida Statutes.
The evidence clearly discloses that Lotz failed to pull a permit on the job from Marion County even though he acknowledged that one was required. Accordingly, it is concluded that a violation of Subsection 489.129(1)(d) has occurred.
Although Lotz did not install a new exterior siding on the gables of Hartwell's house, and the contract required that such be done, Lotz discussed this with Hartwell, and with his concurrence, installed tongue and groove boards in lieu of the siding. Therefore, no misleading, deceptive, untrue or fraudulent representation within the meaning of Subsection 455.27)(1)(a) has occurred, and the allegation in Count II must fail.
Petitioner has urged by way of closing argument that a $500 fine be imposed on respondent fob failing to obtain a permit. It also suggests that respondent's license be suspended until such time as Lotz applies for a permit from Marion County and Hartwell's house passes inspection by the County. However, the job in question was performed some four years ago and it is unknown whether Hartwell had other alterations performed on the house since that time. Further, the Department cited no agency precedent for imposing such a penalty. Accordingly, it is concluded that an appropriate penalty is a public reprimand and $250 fine.
RECOMMENDATION
Based on the foregoing findings of fact and conclusions of law it is,
RECOMMENDED that respondent be found guilty of failing to obtain a roofing permit in violation of Subsection 489.129(I)(d) Florida Statutes, and that he be given a public reprimand and fined $250. It is further
RECOMMENDED that all other charges against respondent be DISMISSED.
DONE and ENTERED this 27th day of September, 1985, in Tallahassee, Florida.
DONALD R. ALEXANDER
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 27th day of September, 1983
COPIES FURNISHED:
Charles P. Tunnicliff, Esquire Deaptment of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
Mr. Ron Lotz 1650 Palm Avenue
Winter Park, Florida 32789
Mr. J. K. Linnan, Executive Director Florida Construction Industry Licensing Board
Post Office Box Jacksonville, Florida 32201
Docket for Case No: 83-000197
Orders for Case No: 83-000197
