STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA CONSTRUCTION INDUSTRY ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 78-1268

)

WILLIAM J. LANZETTA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on 15 November 1978 at Tampa, Florida.

APPEARANCES

For Petitioner: Barry S. Sinoff, Esquire

2400 Independent Square

Jacksonville, Florida 32202

For Respondent: Peter N. Macaluso, Esquire

620 Madison Street, Suite 2-C Tampa, Florida 33602

By Administrative Complaint filed 28 June 1978 the Florida Construction Industry Licensing Board (FCILB), Petitioner, seeks to revoke, suspend or otherwise discipline the general contractor's license of William J. Lanzetta, Respondent. As ground therefor it is alleged that Respondent in July 1977 aided and abetted an unlicensed person to use Respondent's license and conspired with said unregistered person by allowing his certificate or registration to be used by the unregistered person with intent to evade the provisions of Chapter 468 Florida Statutes.

At the hearing Respondent stipulated that at the time of the alleged offense he was a registered general contractor, that his registration is current and he holds license Number CG C005280. Thereafter seven witnesses were called by Petitioner, two witnesses, including Respondent, were called by Respondent and 8 exhibits were admitted into evidence.

FINDINGS OF FACT

1. In July 1977 Earl V. Shuptrine, Jr. entered into an agreement with Ronald Vickers for the latter to construct a building to be used as a used car sales office and residence in Plant City. Vickers was not a general contractor and since the building would be classed as a commercial building he contacted William A. Lanzetta, Respondent, who held a general contractor's license, for assistance in bidding the job and getting a permit for construction.

2. Vickers contracted with Shuptrine to erect the building for $9,861 with the latter making payments as the work progressed. For Lanzetta's assistance, Vickers paid Lanzetta $200. Since he could not get a permit from the city because he was unlicensed, Vickers obtained authorization from Lanzetta to pull the permit in Lanzetta's name. When he presented this authorization from Lanzetta, the building inspector issued a permit to Vickers showing Lanzetta as the contractor.

   
   

3. Since the construction was of a value less than $25,000 the city could have issued the permit to Shuptrine had this point been raised. At this time the building inspector was away and an assistant was in charge.

   
   

4. Some discrepancies in the testimony occurred at this stage of the proceedings with the inspector who issued the permit to Vickers stating he issued it solely on the basis of Lanzetta's license while he acknowledged that for such a building as was here involved a permit could have been issued to Shuptrine. When Vickers subsequently stopped work on the building and withdrew the permit, a new permit was issued to Shuptrine upon orders of the "boss" who had apparently returned to or taken over the job of city building inspector between the time of the issuance of the original permit to Vickers and the issuance of the subsequent permit to Shuptrine.

   
   

5. In accordance with the contract with Vickers, Shuptrine paid $9,000 in draws to Vickers and when the project was 75-80 percent complete Vickers advised Shuptrine that he could not finish the building without additional money from Shuptrine. At this point, Shuptrine fired Vickers, discovered two subcontractors had not been paid and engaged another carpenter to finish the building. Vickers had the permit withdrawn and Shuptrine obtained a new permit.

   
   

6. Lanzetta acknowledges that he authorized Vickers to pull the permit on his license but contends that when he was advised that Shuptrine could get the permit in his own name that he directed Vickers not to use his registration to pull the permit. No notice of withdrawal of such authority was presented to the building inspector.

   
   

7. All parties testified that Lanzetta did not supervise any work or even visit the site while construction was in progress and none of the subcontractors had contracted with Lanzetta or even knew him. They all recognized and accepted Vickers as the contractor in charge of the construction.

   
   

8. As a result of Vickers' being unable to complete the building at the price contracted for, some of the subcontractors were not paid and Shuptrine had to expend additional sums over the contract price to complete the building.

   
   

9. Vickers was subsequently charged with engaging in the practice of contracting without a license, pleaded guilty, and was fined $250 and placed on probation. At the time of the hearing he was still serving his probationary period.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

    
    

11. Grounds for disciplinary action against a registrant are contained in Section 468.112 Florida Statutes, among which are listed:

    (2)(b) Aiding or abetting any uncertified or unregistered person to evade any provision of this part.

    (c) Knowingly combining or conspiring

    with an uncertified or unregistered person by allowing one's certificate or registration to be used by any unregistered or uncertified person with intent to evade the provisions of this part. When a certificate holder or registrant allows his certificate or regi- stration to be used by one or more companies without having active participation in the operations, management or control of said companies, this act constitutes prima facie evidence of an intent to evade the provisions of this part.

    
    

12. Here Respondent knowingly authorized his registration to be used to pull a permit by an unregistered or uncertified person. His testimony that he withdrew this authorization after contacting his attorney, even if true, probably occurred after the permit had been issued.

    
    

13. Furthermore, the testimony that the fee paid to Lanzetta by Vickers was solely for help in estimating the cost of the work to be done is belied by Exhibit 8 in which Respondent agreed to visit the site a minimum of three times; and by the fact that Vickers, despite the help from Lanzetta, badly underbid the contract with Shuptrine and ran out of money before completing the work.

    
    

14. The statute provides that when a registrant allows his registration to be used by a company without him having active participation in the operations, management and control of the company constitutes prima facie evidence of intent to evade this provision. A fortiori, allowing one's registration to be used by an individual where the registrant does not participate in the project in any manner is prima facie evidence of an intent to evade this statutory provision.

    
    

15. From the foregoing it is concluded that William J. Lanzetta sold the use of his registration to Vickers as alleged and thereby violated the provisions of Section 468.112(2)(b) and (c) as alleged. It is therefore

RECOMMENDED that William A. Lanzetta be fined $500 and that his registration Number CG C005280 be suspended until the fine is paid.

Done and entered this 22nd day of November, 1978.

K. N. AYERS Hearing Officer

Division of Administrative Hearings Room 101, Collins Building

MAILING ADDRESS: Room 530,

Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Barry S. Sinoff, Esquire 2400 Independent Square

Jacksonville, Florida 32202

Peter N. Macaluso, Esquire 620 Madison Street, Suite 2-C Tampa, Florida 33602

Docket for Case No: 78-001268

Orders for Case No: 78-001268