STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, ) CASE NO. 84-2421

)

vs. )

)

GRACIELA ZARA, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for hearing on November 16, 1984, in Miami, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane A. Grubbs.

APPEARANCES

For Petitioner: Charles Tunnicliff, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Peter L. Zara

1555 Northeast 206th Street North Miami Beach, Florida 33179

BACKGROUND INFORMATION

The original Administrative Complaint was filed by petitioner on June 13, 1984, and alleged various violations of Section 489.129, Florida Statutes.

Respondent filed an Election of Rights form by which she disputed the factual allegations of the complaint and requested a formal hearing pursuant to Section 120.57(1). The complaint was subsequently amended, and ultimately the cause came on for hearing on Petitioner's second amended complaint.

By the Second Amended Complaint filed November 5, 1904, petitioner seeks to revoke, suspend, or otherwise discipline the license of Graciela Zara, the respondent. The complaint alleges that:

1. Respondent, as qualifying agent for Rolando Lopez Roofing Corp., entered into contracts or subcontracts for roofing work at specified locations and completed such work without obtaining a building permit, thus violating Section 489.129(1)(d), Florida Statutes, by violating the South Florida Building Code, Section 301(a), as adopted by Dade County;

2. Respondent obtained a building permit for roofing work at the home of Leon Gomez, 309 Pinecrest Drive, Miami, Florida, although the roofing work was done pursuant to a contract with Rene Roofing, a trade name used by Rene Garcia, an unlicensed individual, thus violating Section 489.129(1)(e), by aiding or abetting an unlicensed individual to evade the provisions of Chapters 489; Section 489.129(1)(f), by knowingly combining and conspiring with an unlicensed individual by allowing her license to be used to evade the provisions of Chapter 489; Section 489. 129 (1)(g), by contracting under a name other than set forth on her license; and Section 489.129(1)(j), by failing to comply with the provisions of Section 489.119(2) and (3), which requires contractors engaging in business as a business entity to qualify the company with the Board.

   
   

3. Respondent obtained a building permit for re-roofing the house of Felix Acosta, 401 Flagami Boulevard, Miami, Florida, although the contract for the work was between Rene Garcia and Felix Acosta, thus violating Section 489.129(1)(g) and Section 489.129(1)(j), by violating Section 489.119(2) and (3);

   
   

4. Respondent was qualifying agent for Rolando Lopez Roofing Corp., when Rolando Lopez, president of the company qualified by respondent, issued a worthless check to Tops All Roofing & Building Products, Inc. for roofing supplies and was adjudicated guilty of issuing a worthless check, thus violating Section 489.129(1)(d), when Section 832.05 was violated.

   
   

5. Neither respondent nor Rolando Lopez has made restitution to Tops All Roofing & Building Products, Inc., thus violating Section 489.129(1)(d), by violating Chapter 10, Dade County Code, Section 10-22(g), which prohibits failing to pay creditors for materials furnished.

THE HEARING

Prior to the taking of testimony, Mr. Peter Zara, the respondent's husband, was authorized pursuant to Rule 28-5.1055, Florida Administrative Code, to represent the respondent based on his expertise in the area, his relationship with the respondent, and the respondent's request for and acceptance of Mr. Zara as her non-attorney representative.

At the hearing, Petitioner presented the testimony of Oswald Quintana, an employee for Dade County Investment; Jose Delgado, the manager of a building at 8415-8413 Harding Avenue; Norman Weiner, a building inspector for the City of Miami Beach; Enrique Cepeda, Custodian of Records for Building and Zoning of the City of Miami; Felipe Acosta, homeowner at 401 S.W.. Flagami Boulevard; Leon Gomez, homeowner at 309 Pinecrest Drive, Miami; David Wells, building inspector for City of Miami Springs; Rolando Lopez, owner of Rolando Lopez Roofing Corp.; Jim Roach, Supervisor of North Dade Building and Zoning; Jose Fuentes, owner of Tropical Roofing Company; Louis Kupchik, owner of Tops All Roofing and Building Products; and Michael O'Connor, Custodian of Records for Metropolitan Dade Building and Zoning. Petitioner also offered Petitioner's Exhibits 1-18 1/ which were received into evidence. The respondent testified in her own behalf.

The parties stated that they would file proposed recommended orders within

15 days of the filing of the transcript of the hearing. However neither party filed a timely proposed recommended order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, Graciela Zara was a registered roofing contractor in the State of Florida having license number RC 0035417. Respondent qualified Rolando Lopez Roofing Corp. at all times material to the complaint.

   
   

2. Roofing work was done on the building located at 8413 8415 Hardin Avenue; however, the roofing work was not done by Rolando Lopez Roofing, but rather by Chungo, an employee of M. G. Construction Company, the owner of the building. Certain materials for the roofing work were delivered to 8413-8415 Harding Avenue by Tops All Roofing & Building Products, Inc., and those materials were ordered by Rolando Lopez and/or Renee Garcia.

   
   

3. Rolando Lopez Roofing performed roofing work at the the bank at Las Americas Shopping Plaza, 8500 N.W. 85th Street; however, there was no evidence presented that Rolando Lopez Roofing failed to obtain a permit for the work it performed.

   
   

4. Tropical Roofing entered into a contract for roofing work at the home of Mr. Sosa, 3001 S.W. 96th Avenue, Miami, Florida. 2/ The work was subcontracted to and done by Rolando Lopez Roofing. Although a permit for the work was required, respondent failed to obtain a permit. The respondent was responsible for obtaining the permit because the contractor that performs the work is responsible for obtaining the permit.

   
   

5. Leon Gomez entered into a contract with Rene Garcia for roofing work at

   309 Pinecrest Drive. Rene Garcia performed the roofing work on the house and was paid for the work by Mr. Gomez. However, the permit for the roofing work was obtained by the respondent.

   
   

6. Roofing work was performed at the home of Felipe Acosta, 401 Flagami Boulevard, Miami, Florida. The permit for the roofing work was obtained by respondent. The contract for the work was with Rolando Lopez Roofing. The roofing work was performed by Rene Garcia and other workers that Mr. Acosta did not know. Mr. Acosta does not know Rulando Lopez. The contract negotiations and the payment for the job were handled by Mr. Acosta's brother. Mr. Acosta did not know whether Rene Garcia or Rolando Lopez received payment for she roofing work, but he knows his brother paid one of them. The roofing work was performed pursuant to the contract with Rolando Lopez Roofing.

   
   

7. On June 1, 1983, Rolando Lopez Roofing Corp. issued a check for

   $11,667.86 to Tops All Roofing & Building Products. The check was returned by the bank stamped "Account Closed." On September 16, 1983, Rolando Lopez was adjudicated guilty of issuing a worthless check in violation of Section 832.05. Mr. Lopez paid $5,000 in restitution to Tops All Roofing & Building Products, but he was unable to pay the remaining amount because he has been unable to get any work.

   
   

8. There was no evidence that Rolando Lopez Roofing Corp. failed to pay creditors for materials furnished. Although Rolando Lopez failed to make full restitution to Tops All Roofing and Building Products for the $11,667.86 check that was returned, there was no evidence that the check was for building

   supplies furnished to Rolando Lopez Roofing. Rolando Lopez testified that the check was written for the benefit of his nephew, Rene Garcia, to be used as collateral. Further, there was no evidence that Tops All Roofing & Building Products had furnished any building materials to Rolando Lopez Roofing prior to June 1, 1983, the date of the check.

   
   

9. There was no evidence presented that Rene Garcia was not licensed by the State of Florida as a registered or certified roofing contractor

   
   

   CONCLUSIONS OF LAW

   
   

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

    
    

11. Section 489.129, Florida Statutes, authorizes the Construction Industry Licensing Board to revoke or suspend the registration or certificate of a contractor and impose an administrative fine, place a contractor on probation, or reprimand or censure a contractor "if the contractor, or if the business entity or any general partner, officer, director, trustee, or member of a business entity for which the contractor is a qualifying agent," is found guilty of committing any of the acts enumerated in that section. The second amended complaint charges that respondent engaged in a number of the prohibited acts.

    
    

12. In Count One respondent is charged with violating South Florida Building Code, Section 301(a), as adopted by Dade County, by completing work at 8415-8413 Hardin Avenue, at Las Americas Shopping Plaza, and at 3001 S.W. 96th Avenue without obtaining a building permit. The respondent did not do the roofing work at Hardin Avenue, and there was no evidence that a permit was not obtained for the work at Las Americas Shopping Plaza. However, a building permit was not obtained for the roofing work performed at 3001 S.W. 96th Avenue by Rolando Lopez Roofing, and a building permit was required by the South Florida Building Code. Therefore, respondent is guilty of willful and deliberate disregard and violation of the South Florida Building Code, an act prohibited by Section 489.129(1)(d), in that she failed to obtain a permit for the work at 3001 S.W. 96th Avenue, Miami, Florida. Respondent is not guilty of the remaining charges.

    
    

13. Count Two and Court Three charge respondent with violating Sections 489.129(1)(e), 489.129(1)(f), 489.129(1)(g), and 489.129(1)(j), by violating Section 489.119(2) and (3), by obtaining a building permit for roofing work at

    309 Pinecrest Drive when the work was performed pursuant to a contract with Rene Roofing, a trade name used by Rene Garcia. There was no evidence that the contract for the roofing work on Pinecrest was with Rene Roofing or that Rene Roofing was a trade name of Rene Garcia. The contract for the roofing work on Pinecrest was with Rene Garcia. Respondent obtained the building permit. By obtaining the building permit, respondent did not violate either Section 489.129(1)(e) or Section 489.129(1)(f) because there was no evidence that Rene Garcia was an unregistered or uncertified person. Respondent did not violate Section 489.129(1)(g) by her action because she did not act other that in the name of set forth on the issued registration. Finally, respondent is not guilty of violating Section 489.129(1)(j), by violating Section 489.119(2) and (3), because there is no evidence that she engaged in business as a business entity not qualified by the Board. There was no evidence presented of any business entity other that Rolando Lopez Roofing being involved with the project on Pinecrest.

14. Count Four and Count Five charge respondent with violating Section 489.129(1)(g) and Section 489.129(1)(j) by obtaining a building permit for roofing work at 401 Flagami Boulevard when the contract for the work was with Rene Garcia. The roofing work at 401 Flagami Boulevard was performed pursuant to a contract with Rolando Lopez roofing. Therefore, respondent is not guilty of the acts charged in counts four and five.

    
    

15. Respondent is not guilty of violating Section 489.129 (1)(d) as charged in Count Six. Section 489.129(1)(d) refers to "willful or deliberate disregard and violation of the applicable building codes or laws...." (e.s.) Count Six charges that Section 489.129(1)(d) was violated when Section 832.05, Florida Statutes, was violated. However, a violation of Section 832.05 is not a violation of a building code or law; it is a criminal violation. Section 489.129(1)(b) refers specifically to criminal convictions and requires that the crime must relate to the practice of contracting or the ability to practice contracting for the Board to be able to discipline the contractor for the crime. Section 489.129(1)(b) would be unnecessary, and its requirement that the crime be related to the practice of contracting would be meaningless, if Section 489.129(1)(d) were interpreted to to cover criminal violations. Therefore, respondent is not guilty violating Section 489.129(1)(d) as charged in Count Six.

    
    

16. Finally, respondent is not guilty on violating Section 489.129(1)(d) by violating Section 10-22(g), Dade County Code. No evidence was presented at the hearing that respondent failed to pay creditors for materials supplied.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Respondent be placed on probation for a period of six

months.

DONE and ORDERED this 2nd day of January, 1985, in Tallahassee, Leon County, Florida.

DIANE GRUBBS

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 2nd day of January, 1985.

ENDNOTES

1/ Petitioner's Exhibit No. 1, a composite exhibit of the front and back of certain checks, was to be admitted as a late filed exhibit. Petitioner's exhibits numbered 1 and 18 were also admitted as late filed exhibits. The exhibits were to be filed within 10 days of the hearing, but none of them were ever filed.

2/ Although the Second Amended Complaint stated that the roofing work was at 3081 S.W. 96th Avenue, the parties stipulated at the hearing that the correct address was 3001 S.W. 96th Avenue.

COPIES FURNISHED:

James Linnan Executive Director

Department of Professional Regulation

Construction Industry Licensing Board

Post Office Box 2 Jacksonville, Florida 32202

Charles Tunnicliff, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 31301

Mr. Fred M. Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Peter Zara

1555 N.E. 206th Street

North Miami Beach, Florida 33179

Docket for Case No: 84-002421

Orders for Case No: 84-002421