STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA CONSTRUCTION INDUSTRY ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 78-2165

) GARY ANTONISSEN d/b/a ROGART ) DEVELOPMENT CORP., RR 0029550, )

)

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 March 1979 at Naples, Florida.

APPEARANCES

For Petitioner: Barry Sinoff, Esquire

2400 Independent Square

Jacksonville, Florida 32202

For Respondent: Arthur McDonnell, Esquire

3003 North Tamiami Trail, Suite 360

Naples, Florida 33940

By Administrative Complaint dated October 26, 1979 the Florida Construction Industry Licensing Board (FCILB), Petitioner, seeks to revoke Gary Antonissen's residential contractor's license RR 0029550 and his right to operate thereunder. As grounds therefor it is alleged that as qualifying contractor for Rogart Development Corporation Respondent deviated from plans and specifications without the consent of the owners in constructing homes, failed to correct code deviations noted by Collier County Building Department, and that Collier County Contractors Licensing Board revoked Respondent's license for violation of various sections of Collier County Ordinance 78.02.

In his response to the Administrative Complaint Respondent admitted he held a residential contractor's license as alleged and that Collier County revoked his local license as alleged. The Respondent further admitted that monthly meetings had been held between Respondent and Collier County Contractors Licensing Board to correct problems between buyers and the contractor. All other allegations were denied.

At the hearing 4 witnesses were called by Petitioner, 3 witnesses were called by Respondent, and 9 exhibits were admitted into evidence.

FINDINGS OF FACT

1. Gary Antonissen holds residential contractor's license No. RR 0029550 and at all times here relevant was the qualifying contractor for Rogart Development Corp. (Rogart). He received this license in 1976.

   
   

2. Rogart is owned by Arthur Antonissen, the father of Respondent. Arthur Antonissen constructed residences in Long Island, New York from 1962 until he moved to Florida in 1976, shortly before Gary was licensed. In New York he constructed an average of 80 homes per year.

   
   

3. Rogart commenced doing business in 1976 with Gary Antonissen as the qualifying contractor. Rogart generally developed tract homes and used subcontractors for the work.

   
   

4. Upon arrival in Florida in 1976, Rogart found subcontractors readily available in Collier County and work progressed satisfactorily. However, in late 1977 and 1978 as the construction industry expanded Rogart found subcontractors more difficult to get to do the work they had previously done. This resulted in Rogart delaying the completion of homes from the four months promised the buyer to as much as 18 months and in inferior workmanship and complaints from buyers.

   
   

5. Although Gary Antonissen was the qualifying contractor for Rogart, it clearly appears that Arthur Antonissen directed the operations of the company and actually supervised the construction of many of the homes. Between August 1977 and August 1978, Rogart built 80 homes.

   
   

6. It was during this period that Rogart began having trouble with subcontractors and buyers started complaining to the Collier County Building Department and to the Collier County Contractors Licensing Board.

   
   

7. The Collier County building inspectors found numerous instances of poor workmanship in the construction of residences and some of these were corrected by the contractor.

   
   

8. Three buyers of homes from Rogart testified to defects in the construction of their homes and of their efforts to get Rogart to correct these defects. These workmanship deficiencies were corroborated by the Collier County Building Inspector and were not rebutted by Respondent.

   
   

9. Differences arose between buyers and developer resulting from the former seeing cabinets or equipment in a model house and expecting the same in the house they bought, whether the plans actually called for it or not. The one contract entered into evidence did not have attached thereto the plans and specifications the contract stated would be attached, and the testimony was silent whether or not the buyers actually received a copy of the plans and specifications for the home each purchased.

   
   

10. No evidence was submitted that code violations existed in the construction of these homes. All were issued certificates of occupancy and the Collier County Building Inspector testified that a certificate of occupancy would not be issued if code violations existed.

    
    

11. Gary Antonissen was not a qualified carpenter, electrician or plumber, nor did he have the mechanical skills needed to himself correct defective

    workmanship left by the subcontractors. Supervising the construction of some 50 homes under construction at one time taxed his abilities to the utmost.

    
    

12. Following several meetings by the Collier County Contractors Licensing Board at which complaints were received from buyers of Rogart's homes, the Board on August 15, 1978 voted to revoke the Certificate of Competency of Gary Antonissen (Exhibit 3)

    
    

13. Although the Collier County Contractors Licensing Board revoked Respondent's license for, inter alia, departing in material respect from plans or specifications without the consent of the owner, no evidence of such departure was here presented. No plans or specifications were submitted into evidence from which a departure there from could be ascertained.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

15. Section 468.112, Florida Statutes, provides the following acts of a registrant constitute cause for disciplinary action:

    
    

    (2)(a) Willful or deliberate disregard and violation of the applicable building codes or laws of the state or any municipality, city, or county thereof.

    
    

16. Those disciplinary actions the board may take are contained in Section 468.112(3), Florida Statutes, and include revocation, suspension and administrative fine.

    
    

17. Collier County Ordinance 78-02 provides, inter alia, the following actions by a contractor shall constitute misconduct:

    
    

    4.1.5 Depart from or disregard in any material respect the plans or specifications of a construction job without the consent of the owner or his duly authorized representa- tive.

    
    

    4.1.11 Fail to make good faulty workmanship obviously performed or faulty materials obviously installed in evasion of performance of the contract or specifications agreed upon under the terms of the contract.

    
    

    4.1.19 Incompetence or negligence in con- ducting work which is in violation of existing codes.

    
    

18. As noted in the findings above, no evidence of code violation was presented although substantial and competent evidence of poor workmanship was shown. The latter constitutes a violation of Collier County Ordinance 78-02 Section 4.1.11 above quoted, and thereby a violation of Section 468.112(2)(a), Florida Statutes, also quoted above.

19. From the foregoing it is concluded that Respondent, Gary Antonissen d/b/a Rogart Development Corporation was not guilty of departing from plans or specifications or of code violations as alleged; however, he was guilty of violating a Collier County ordinance regarding faulty workmanship.

    
    

20. It is further concluded that Arthur Antonissen was the de facto contractor for Rogart and that his 26-year old son, Gary, was used by the father to insulate the latter from Board action resulting from his construction practices or to provide his son employment. It is therefore

RECOMMENDED that Gary Antonissen's license RR 0029550 be suspended for six months.

Entered this 20th day of April, 1979.

K. N. AYERS Hearing Officer

Division of Administrative Hearings Room 101, Collins Building

MAIL: Room 530, Carlton Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Barry Sinoff, Esquire 2400 Independent Square

Jacksonville, Florida 32202

Arthur McDonnell, Esquire Suite 360

3003 North Tamiami Trail Naples, Florida 33940

Docket for Case No: 78-002165

Orders for Case No: 78-002165