STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA ) DEPARTMENT OF PROFESSIONAL ) REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner )

)

vs. ) DOAH CASE NO. 85-0022

) DPR CASE NO. 0045404

REX ALANIZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on May 14, 1985, in Jacksonville, Florida, a formal Section 120.57(1), Florida Statutes hearing was conducted. Charles C. Adams presided as the Hearing Officer. This Recommended Order is being entered following the receipt and review of the transcript of the proceedings and of the proposed recommended order of counsel for Petitioner. Having considered the proposals, those proposals have been utilized to some extent. Failure to utilize the proposals is based upon a lack of relevance, materiality, or in view of the fact that those proposals are considered to be cumulative or subordinate to facts found in the recommended order.

APPEARANCES

For Petitioner: Douglas A. Shropshire, Esquire Staff Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Rex Alaniz

1089 Atlantic Boulevard, Unit 22 Atlantic Beach, Florida 32233

ISSUES

The issues in this matter are those raised by an Administrative Complaint brought by the Petitioner against the Respondent charging the Respondent with violations of Chapter 489, Florida Statutes. In particular, these allegations pertain to services performed by the Respondent as a roofing contractor, for the benefit of one Dale Weich. These offenses are more completely described in the Conclusions of Law section to this Recommended Order.

FINDINGS OF FACT

1. At all relevant times to this case, Respondent Rex Alaniz was a registered roofing contractor having been issued license number RC0042021 by the State of Florida, Department of Professional Regulation, Construction Industry Licensing Board. Within that time sequence, Alaniz also served as the qualifying agent for Rex Alaniz Roofing and Remodeling Co.

   
   

2. On July 27, 1983, Respondent entered into a contract with Dale Weich to effect repairs to Weich's home. That residence was located in Jacksonville Beach, Florida. The substance of the repairs primarily dealt with leaks in a built- up flat room over the garage at the Weich residence, as it joined the house. The main part of the house had a pitch roof covered with terra-cotta tiles. Work was also to be done on the terra-cotta roof. The work on the garage area, where the flat roof was found, included the placement of tar and gravel and the replacement of certain timbers in the garage structure. The roof was leaking in four distinct locations. A copy of the contract may be found as Petitioner's exhibit number 7 admitted into evidence. That contract is in the amount of $860.00 which has been paid to the Respondent in exchange for the work. The work was warranted, per the contract, for a period of one year.

   
   

3. On July 28, 1983, Respondent commenced work. When the Respondent showed up for work and began the process, he had not obtained a building permit from the City of Jacksonville Beach. A permit was obtained before the work was completed on July 28, 1983. In failing to obtain the permit initially, Respondent was knowingly or deliberately disregarding the requirements to obtain it, in that he had frequently done work at Jacksonville Beach and was aware of the need to pull the permit before commencing the work. Under the circumstances, the failure to obtain the permit before commencing the work is not found to be an oversight by Respondent.

4. On the same date the work was done, it rained and the roof leaked in the same places it had leaked before repairs were made. There ensued a number of trips on the part of Respondent and his employee to attempt to correct the circumstance. This included adjusting the tiles on the roof to the main house; placing additional tar on the built-up roof over the garage; placing water on the roof by the use of a garden hose, at which time the roof did not leak, and plugging up a small opening at the edge of the roof. On one of the visits by the Respondent following the work of July 28, 1983, it was raining and the roof was leaking and these leaks were observed by the Respondent. Weich tried to contact the Respondent after the events described immediately above, in an effort to get the Respondent to correct the problems. He received no response from Alaniz. Sometime around September 1983, Weich saw the Respondent in a store and told the Respondent that the roof was still leaking and asked that the Respondent return to fix the leaks. Respondent agreed to return to the job, but has yet to honor that agreement. This discussion in the store was not one in which Weich agreed to pay the Respondent additional money to return to the job, as was testified to by the Respondent in the course of the final hearing. At the time of the final hearing, the roof still leaked in those places for which Respondent had contracted to complete repairs.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action pursuant to Section 120.57(1), Florida Statutes.

   
   

6. In the first count of the Administrative Complaint, Respondent is charged with violating Section 489.129(1)(c), Florida Statutes, (1981), by making misleading, fraudulent, deceptive, or untrue representations in the practice of contracting related to the Weich job. Specifically, this refers to the refusal of the Respondent to honor the terms of the warranty. This statutory reference refers to violation of Chapter 455, Florida Statutes (1981),and the specific terms of the allegation relate to Section 455.227(1)(a), Florida Statutes, (1981). Those same provisions of law exist at present. Having considered the proof offered, it has been satisfactorily proven that the Respondent violated the aforementioned provisions of law and Respondent is subject to the penalties set forth in Section 489.129(1), Florida Statutes (1981), as they are brought forward in the present Section 489.129(1), Florida Statutes.

   
   

7. The second count of the Administrative Complaint makes reference to the contention that Respondent began work on the Weich project without obtaining a building permit as envisioned by the Building Code of the City of Jacksonville, Florida. An amendment was offered at the point of final hearing, which was unopposed by the Respondent, correcting that reference and alluding to the Building Code of the City of Jacksonville Beach, Florida. Contrary to Section 106.1, City of Jacksonville Beach Building Code, Respondent began the Weich project without obtaining a building permit. This was a deliberate disregard of that provision in that Respondent had done a considerable amount of work in the City of Jacksonville Beach and was aware of the requirement to obtain a building permit before undertaking the project and ignored the requirement. Thus, Respondent, as alleged, has violated Section 489.129(1)(d), Florida Statutes (1981), which still exists under the present law. In turn, Respondent is subject to disciplinary action in accordance with Section 489.129(1), Florida Statutes (1981), as brought forward by the present Section 489.129(1), Florida Statutes.

   
   

8. Having considered the facts found and the conclusions of law reached, and the existing suspension of the Respondent's license for one year which dates from December 26, 1984, pertaining to a final order of the Construction Industry Licensing Board, which dealt with a formal administrative hearing related to criminal charges in the Fourth Judicial Circuit in Florida, for grand theft of an asphalt kettle, as spoken to in DOAH Case No. 84-1953, and DPR Case No. 0044467, it is,

RECOMMENDED:

That a final order be entered in the present action which further suspends the license of the Respondent for an additional ninety (90) days to run consecutive to the suspension presently being served by the Respondent in DOAH Case No. 84-1953/DPR Case No. 0044467.

DONE AND ENTERED the 19th day of July, 1985, at Tallahassee, Florida.

CHARLES C. ADAMS

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 19th day of July, 1985.

COPIES FURNISHED:

Douglas A. Shropshire, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Rex Alaniz

1089 Atlantic Blvd., Unit 22 Atlantic Beach, Florida 32233

Fred Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore A. Carpino, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. James Linnan, Executive Director

Construction Industry Licensing Board

P.O. Box 2

Jacksonville, Florida 32202

Docket for Case No: 85-000022

Orders for Case No: 85-000022