STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) Case No. 85-4181

)

REX ALANIZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, W. Matthew Stevenson, held a formal hearing in this case on June 16, 1986, in Jacksonville, Florida. The following appearances were

APPEARANCES

For Petitioner: Lagran Saunders, Esquire

Department of Professional

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: (No appearance)

The issues for determination at the final hearing were whether Respondent violated the construction industry licensing law, by:

1. Failing to qualify an entity through which he was doing business;

   
   

2. Willful or deliberate disregard and violation of applicable building codes or laws of the state or of any counties or municipalities thereof;

3. Failing to notify the Board of a change of address as required; and/or

   
   

4. Being guilty of deceit, gross negligence, incompetency and/or misconduct in the practice of contracting.

PROCEDURAL BACKGROUND

The Petitioner filed two separate Administrative Complaints on June 19, 1985 and July 19, 1985. The Respondent disputed the factual allegations in each Administrative Complaint and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes before a Hearing Officer appointed by the Division of Administrative Hearings. The two Administrative Complaints were forwarded to the Division of Administrative Hearings jointly and were assigned the same case number.

This cause came on for final hearing on Monday, June 16, 1986 in Jacksonville, Florida. Upon arrival at the hearing location, the undersigned was advised by counsel for the Petitioner that the Respondent had telephoned him earlier that morning and stated that he was ill and would not attend the hearing. The Respondent's telephone call was treated by the undersigned as a Motion for Continuance and argument from the opposing side was allowed. After a consideration of the motion and argument of counsel, the Motion for Continuance was denied as untimely and in improper form.

The Petitioner presented the testimony of two witnesses.

In addition, Petitioner's Exhibits 1 through 7 were duly offered and admitted into the record. The Petitioner submitted Posthearing Proposed Findings of Fact. A ruling has been made on each proposed finding of fact in the Appendix to this recommended order.

FINDINGS OF FACT

Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following Findings of Fact:

1. At all times relevant hereto, the Respondent, Rex Alaniz, held a registered roofing contractors license, Number RC 0042021, issued by the State of Florida, Construction Industry Licensing Board (hereinafter "the Board").

   
   

2. The Respondent's registered address with the Board was initially 1813 Ocean Drive, Jacksonville, Florida, then changed to 23 Seatrout, Ponte Vedra Beach, Florida. The Respondent's license reflected that he was doing business as "Rex Alaniz Roofing and Remodeling Company."

3. During June 1984, the Respondent was doing business as Alaniz & Sons Roofing Company," a name unregistered and unqualified with the Board.

   
   

4. Ms. Audrey Kelly met the Respondent through an as placed in the "Westside Shopper," and advertising newspaper in Jacksonville. The ad stated in part as follows:

   
   

   "Raindrops falling on your head? . . . labor guaranteed . . . State Licensed. . . Alaniz & Sons Roofing Company. Rex Alaniz 246-0265 if you have a leak and cannot sleep, check the rest and then get the best for less. .

   ."

   
   

5. Ms. Kelly called the number listed in the advertisement and met with Buddy Clark on June 5, 1984. Mr. Clark stated that he represented Alaniz & Sons Roofing Company. After Mr. Clark looked at Ms. Kelly's roof, Ms. Kelly signed a contract for the repairs to be completed. The contract provided in part that Alaniz and Sons Roofing Company would repair and seal all exposed areas in the roof and that a one year guarantee on workmanship was included. The total contract price was $735. Ms. Kelly paid Clark $200 as an initial payment on the contract.

   
   

6. On June 7, 1984, Respondent went to Ms. Kelly's home to repair the roof. After working approximately two and one-half hours, Respondent told Ms. Kelly that he had repaired the roof. Kelly then paid Respondent the balance of $535 which remained on the contract.

   
   

7. On June 19, 1984, a light rain fell on Jacksonville and Ms. Kelly's roof leaked again. Ms. Kelly contacted Respondent and Respondent told her that she should wait until it rained harder so that any additional leaks could be repaired at one time. About three weeks later, a heavy rain fell and the roof leaked a lot.

   
   

8. After the heavy rain, the Respondent went out and looked at the roof but did not perform any work on it. Respondent told Kelly that the problem was wind damage and suggested that Kelly contact her insurance company. An inspection by Ms. Kelly's insurance company revealed no wind damage to the roof. Therefore, Kelly repeatedly called Respondent, reaching his answering service, but Respondent did not return her calls. The roof continued to leak until Kelly hired another roofer who replaced the entire roof. Ms. Kelly

   complained to the State Attorney's office about Respondent's failure to honor the warranty on the contract.

   
   

9. In April 1984, Mr. Otis McCray, Jr. discovered three leaks in the roof of his home and called Rex Alaniz. The Respondent went out and looked at the roof and informed Mr. McCray that he could fix it.

   
   

10. On April 28, 1984, Mr. McCray entered into a contract with Respondent to repair the three leaks in the roof for a price of $500. A one year guarantee was included in the contract.

    
    

11. Approximately one week after the contract was signed, Respondent told McCray that the roof had been repaired. McCray then paid Respondent the full contract price of $500.

    
    

12. After a rainfall which occurred during the week following the completion of the repair work, McCray noticed that all three of the areas were leaking again. Thereafter, McCray called the Respondent's office approximately 5 or 6 times, leaving messages with either the receptionist or Respondent's answering service concerning the leaks. McCray also had his wife telephone the Respondent, thinking that perhaps the Respondent would respond to "a woman's voice." The Respondent failed to return any of McCray's calls and failed to return to fix the roof. Mr. McCray ultimately hired someone else to put a new roof on his home.

    
    

13. In February 1986, the Respondent entered a negotiated plea to the offense of schemes to defraud in the Circuit Court of Duval County, Florida. The failure to properly perform the repairs and honor the promised warranties in the Kelly and McCray projects were included as a part of the offenses charged. The Respondent was ordered to pay restitution to Ms. Kelly and Mr. McCray. As of the date of the hearing, the Respondent had not made restitution to either Mr. McCray or Ms. Kelly.

    
    

14. Douglas Vanderbilt, an investigator for the Department of Professional Regulation, attempted to serve papers upon the Respondent in November of 1985. During such attempt to serve the Respondent, Mr. Vanderbilt discovered that Respondent was no longer living at 23 Seatrout Street in Ponte Vedra Beach and had moved from that address approximately two years prior to November of 1985.

    
    

15. At no time material hereto, did Respondent report to

    the Board a change of address from 23 Seatrout Street, Ponte Vedra Beach.

    
    

16. The Respondent has been disciplined by the Board for misconduct twice in the recent past. On November 15, 1984 final action was taken by the Board to suspend Respondent's license for one year, effective January 2, 1985. On November 7, 1985, final action was taken by the Board to suspend Respondent's license for ninety days, consecutive to the one year suspension effective January 2, 1985.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject of, these proceedings. Section 120.57(1), Florida Statutes.

    
    

18. The Petitioner is an agency of the State of Florida charged with enforcing the provisions of Chapter 489, Florida Statutes, as they relate to the imposition of licensure standards and standards for the conduct of business in the construction industry in its various forms in the State of Florida together with the sanctions for violations of those standards.

    
    

19. Here, the burden of proof is on the Petitioner. Balino vs. Department of Health and Rehabilitative Services, 348 So.2d 339 (Fla. 1st DCA 1977). 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 is found guilty of committing any of the acts enumerated in that section.

    
    

    DPR CASE NO. 005265

    
    

20. In this Administrative Complaint, the Petitioner charges that Respondent:

1. Violated Section 489.129(1)(m), Florida Statutes by being guilty of gross negligence or deceit in the practice of contracting;

   
   

2. Violated Section 489.129(l)(g), Florida Statutes which prohibits contractors from acting in the capacity of a contractor under any certificate or registration issued under

Chapter 489, Florida Statutes, except in the name of the certificate holder or registrant as set forth on the issued certificate or registration;

3. Violated Sections 489.129(1)(j) and 489.119(2)and (3), Florida Statutes, by failing to qualify an entity through which he was doing business;

1. Violated Section 489.129(1)(d), Florida Statutes, which prohibits contractors from willful or deliberate disregard and violation of the applicable building codes or laws of the state or of any counties or municipalities thereof; and

   
   

2. Violated Section 489.129(3), Florida Statutes, by violating Board Rule 21E-15.07 in not notifying the Board of a change of address as required.

21. The Petitioner established by clear and convincing evidence that the Respondent is:

1. Guilty of violating Section 489.129(1)(m), Florida Statutes, in that Respondent was grossly negligent in the practice of contracting in regard to the Kelly project. The Petitioner specifically provided a warranty on the roofing work but failed to honor the guarantee after being repeatedly contacted by Ms. Kelly and advised that the repairs were unsatisfactory.

   
   

2. Guilty of violating the provisions of Section 489.129(1)(g), Florida Statutes, which prohibits contractors from acting in the capacity of a contractor under any certificate or registration issued under Chapter 489, Florida Statutes, except in the name of the certificate holder or registrant as set forth on the issued certificate or registration. The Respondent was registered with the Construction Industry Licensing Board as "Rex Alaniz Roofing and Remodeling Company," but held himself out for business under another name, not registered under Chapter 489.

   
   

3. Guilty of violating the provisions of Sections 489.129(1)(j), and 489.119(2) and (3), Florida Statutes, by failing to qualify an entity through which he was doing business. The Respondent was doing business as "Alaniz and Sons Roofing Company," which company Respondent failed to qualify.

   
   

4. Guilty of violating Section 489.129(3), Florida Statutes by a violation of Rule 21E-15.07 which requires a

licensee to notify the Board within 30 days of a change in his name style or address from that which appears on his current license. Respondent has not lived at the address which appears on his current license for over two years and failed to notify the Board of a change in his address within the required thirty days.

1. The Petitioner failed to present any evidence that Respondent violated Section 489.129(1)(d), Florida Statutes, which prohibits contractors from willful or deliberate disregard and violation of the applicable building codes or laws of the state or of any counties or municipalities thereof. Therefore, Respondent is not guilty of a violation of Section 489.129(1)(d),c Florida Statutes.

   
   

   DPR CASE NO 0053587

   
   

2. In this Administrative Complaint, the Petitioner is charged with violating Section 489.129(1)(m), Florida Statutes, by being guilty of gross negligence, incompetency and/or misconduct in the practice of contracting. The Petitioner established by clear and convincing evidence that the Respondent is guilty of a violation of Section 489.129(1)(m), Florida Statutes in regard to the McCray contract. The Respondent was paid in full by Mr. McCray to repair three (3) leaks in McCray's roof. A one year guarantee was included in the contract. Shortly after the contract was completed, Mr. McCray noticed that all three (3) of the repaired areas were leaking again.

Mr. McCray repeatedly contacted the Respondent in an effort to have Respondent return to the project and repair the leaks.

Respondent failed to return to the McCray residence and failed to honor the warranty included with the contract. Such conduct on the part of a licensed contractor amounts to gross negligence in the practice of contracting.

RECOMMENDATIONS

Based upon the foregoing Findings of Fact and Conclusions of Law it is, therefore,

RECOMMENDED THAT a final order be issued requiring Respondent to pay an administrative fine of $1,000 and suspending Respondent's license for a period of five (5) years from the date of the Final Order in this case. Provided, however, that said suspension will be terminated early without further action by the Board, at any time that Respondent shall both pay said fine and provide written proof satisfactory to the Board's Executive Director of having paid restitution of $500 to Otis C. McCray, Jr. and $735.00 to Audrey L. Kelly.

DONE and ORDERED this 6th day of August, 1986 in Tallahassee, Leon County, Florida.

W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day August, 1986.

COPIES FURNISHED:

Lagran Saunders, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Rex Alaniz

1612-5th Street, South Jacksonville, Florida 32250

Fred Seely Executive Director

Construction Industry Licensing Board

Department of Professional Regulation

P. O. Box 2

Jacksonville, Florida 32201

Fred Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore A. Carpino, Esquire General Counsel

130 North Monroe Street Tallahassee, Florida 321301

APPENDIX

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

Rulings on Proposed Findings of Fact Submitted by the Petitioner

1. Adopted in Finding of Fact 1.

2. Adopted in Finding of Fact 3.

3. Adopted in Findings of Fact 9 and 10.

4. Adopted in Finding of Fact 10.

5. Adopted in Finding of Fact 11.

6. Adopted in Finding of Fact 11.

7. Adopted in Finding of Fact 11.

8. Adopted in Finding of Fact 12.

9. Adopted in Finding of Fact 12.

1. Adopted in Finding of Fact 13.

2. Adopted in Finding of Fact 13.

3. Adopted in Finding of Fact 13.

4. Adopted in Finding of Fact 13.

   Rulings on Proposed Findings of Fact Submitted by the Respondent

   
   

   (None submitted)

   
   

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   =

   AGENCY FINAL ORDER

   ================================================================

   =

   
   

   STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION

   
   

   CONSTRUCTION INDUSTRY LICENSING BOARD DEPARTMENT OF PROFESSIONAL REGULATION,

   
   

   Petitioner, Case No. 52653, 53587 DOAH Case No. 85-4181

   vs.

   
   

   REX ALANIZ,

   
   

   Respondent.

   /

   
   

   FINAL ORDER

   
   

   THIS MATTER came before the Construction Industry Licensing Board pursuant to Section 120.57(1)(b)(9), Florida Statutes, on October 9, 1986, in Tampa, Florida for consideration of the Recommended Order (a copy of which is attached hereto and incorporated herein by reference). The petitioner was represented by Douglas A. Shropshire. The Respondent was neither present nor represented by counsel.

   
   

   Upon consideration of the hearing officer's Recommended Order, and the arguments of the parties and after a review of the complete record in this matter, including the exceptions filed, the Board makes the following:

   
   

   FINDINGS OF FACT

   
   

   1. The hearing officer's findings of fact are hereby approved and adopted in toto.

      
      

   2. There is competent, substantial evidence to support the hearing officer's findings of fact.

CONCLUSIONS OF LAW

1. The Board has jurisdiction of this matter pursuant to the provisions of Section 120.57(1), and Chapter 489, Florida Statutes.

   
   

2. The hearing officer's conclusions of law are hereby approved and adopted in toto.

   
   

3. Respondent is guilty of violating Section 489.119 (2) (3); 489.129 (1) (9) (j) (m);489.129 (3); 455.227 (1) (a), Florida Statutes, and Chapter 21E-15.07, Florida Administrative Code.

   
   

4. The penalty recommended by the Hearing Officer is rejected and the recommended penalty of the Petitioner is hereby approved and adopted for the reasons specified in Petitioner's Exception to Recommended Order which is hereby approved and adopted and fully incorporated herein by reference.

   
   

5. There is competent, substantial evidence to support the Board's findings and conclusions.

WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED:

Respondent's licensure to practice contracting is hereby REVOKED.

Pursuant to Section 120.59, Florida Statutes, the Parties are hereby notified that they may appeal this Final Order by filing one copy of a Notice of Appeal with the Clerk of the Department of Professional Regulation, 130 N. Monroe Street, Tallahassee, Florida 32301, and by filing the filing fee and one copy of the Notice of Appeal with the District Court of Appeal within thirty (30) days of the effective date of this Order.

This Order shall become effective upon filing with the Clerk of the Department of Professional Regulation.

DONE AND ORDERED this 18th day of November 1986.

Stanton M. Alexander, Chairman Construction Industry Licensing Board

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been provided by certified mail to Rex Alaniz 1612 Fifth Street, S., Jacksonville, Florida 32250 and by hand delivery/United States mail to the Board Clerk, Department of Professional Regulation and its Counsel, 130 North Monroe Street, Tallahassee, Florida 32301, on or before 5:00 p.m., this 20th day of November, 1986.

Burt Genmay Board Clerk

Department of Professional Regulation Construction Industry Licensing Board

Docket for Case No: 85-004181

Orders for Case No: 85-004181