STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 83-723

)

FRANK JANTLICK, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, DONALD R. ALEXANDER, on April 5, 1984, in New Port Richey, Florida.

APPEARANCES

For Petitioner: Edward C. Hill, Jr., Esquire

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Daniel P. Rock, Esquire

17 North Boulevard

New Port Richey, Florida 33552 BACKGROUND

By administrative complaint filed on February 21, petitioner, Department of Professional Regulation, Florida Construction Industry Licensing Board, has charged that respondent Frank Jantlick, a registered building and plumbing contractor, had violated various provisions within Chapters 455 and 489, Florida Statutes. Generally, petitioner alleged that all violations related to the construction of three triplexes by respondent in New Port Richey, Florida, between December, 1980 and July, 1981. Specifically, it was charged that in conjunction with the aforementioned job (a) respondent performed a part of the plumbing work although not qualified to do so by either the State or City of New Port Richey, (b) respondent contracted out a portion of the plumbing work to an unregistered and uncertified individual, (c) respondent obtained certain city permits through fraudulent misrepresentations, (d) respondent attempted to get a plumbing contractor to lie to a Department investigator about who actually performed such work, (e) respondent contracted the work under a name for which he was not licensed, and (f) respondent did not affix his registration number to the contract.

Respondent disputed the above allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes. The matter was referred to

the Division of Administrative Hearings by petitioner on March 9, 1983 with a request that a Hearing Officer be assigned to conduct a formal hearing. The matter was set for final hearing on May 23, 1983, in New Port Richey, Florida. On May 2, 1983 respondent filed a motion for continuance which, with the consent of petitioner, was granted. On October 6, 1983 the final hearing was rescheduled to November 18, 1983 at the same location. Thereafter, petitioner filed a motion to continue and the matter was rescheduled to April 5, 1984 at New Port Richey, Florida.

At the final hearing petitioner presented the testimony of James W. McGuirt, II, Margaret L. Johnson, William Kropik, Jr., Paul Bower, Thomas L. Shell and Peter Wagner and offered petitioner's exhibits 1-6; all were received in evidence. Respondent testified on his own behalf and offered respondent's exhibits 1-5; all were received in evidence.

The transcript of hearing was filed on April 18, 1984. Proposed findings of fact and conclusions of law were filed by respondent and petitioner on May 7 and 10, 1984, respectively, and have been considered by the undersigned in the preparation of this order. Findings of fact not included in this order were considered irrelevant to the issues, immaterial to the results reached, or were not supported by competent and substantial evidence.

The issue herein is whether respondent's licenses as a registered building contractor and registered plumbing contractor should be disciplined for the alleged violations set forth in the administrative complaint.

Based upon all of the evidence the following findings of fact are determined:

FINDINGS OF FACT

1. At all times material hereto, respondent, Frank Jantlick, held registered building contractor and registered plumbing contractor license numbers RB 0016816 and RF 0038428 issued by petitioner, Department of Professional Regulation, Florida Construction Industry Licensing Board. He presently resides at 1206 Driftwood Drive, New Port Richey, Florida and operates both Jantlick Construction and Jantlick Plumbing in the same city.

   
   

2. Jantlick is of Polish descent. The proper Polish spelling of his name is J-a-n-c-z-l-i-k. The "Americanized" spelling of his name is J-a-n-t-l-i-c-k. Because his name has been misspelled so often he has registered with both the State and the local construction boards using the Americanized spelling of his name.

   
   

3. In July, 1980 one Margaret L. Johnson approached respondent and asked if he would construct three triplexes on her property. Jantlick finally agreed to do so for $129,000 and a construction agreement was signed by both on August 8, 1980. The triplexes were to be constructed at 712-728 East Tennessee Avenue, New Port Richey, Florida. Respondent signed the contract spelling his name J-a- n-c-z-l-i-k even though he was registered with the State as J-a-n-t-l-i-c-k.

   
   

4. Jantlick could not start construction until Johnson obtained a bank loan. She did so in December, 1980 and Jantlick began construction shortly thereafter. A zoning change within the city was imminent and, because of this, Jantlick was in a hurry to begin construction so the project would be grandfathered in under the old zoning law.

5. Thomas L. Shell, a licensed plumber, approached Jantlick and asked if he could do the plumbing work on the project. Because Jantlick had known Shell's family for many years, he orally agreed that Shell could do the plumbing work.

   
   

6. Shell pulled the City plumbing permits for the job on December 22, 1980. This was necessary since Jantlick was only licensed to do plumbing work within Pasco County, but not within the City of New Port Richey. In order to comply with the City ordinance, it was necessary for either Shell to do the plumbing work, or for Jantlick to do it under Shell's supervision.

   
   

7. On January 10, 1981, Shell's wife, Danielle, sent a letter on the firm stationery to the city stating In part:

   
   

   Plumbing service was not commenced by Tom Shell Plumbing. But, rather, Mr. Janczlik had already contracted another plumber to perform rough-in and top-out plumbing, without the permission of Mr. Shell.

   
   

   The letter was signed by Danielle, and according to Shell, constituted notice that he was no longer the licensed plumber on the job. Shell did not furnish a copy of the letter to Jantlick and did not otherwise advise him he was quitting the job.

   
   

8. Jantlick could not get Shell to promptly begin the rough-in work on the triplexes, and because he wanted to commence construction before the zoning law changed, he and another plumber did the initial plumbing work. The evidence is conflicting as to whether Shell inspected and supervised this stage of the work, but it is found that he did, and that Jantlick was lawfully operating within the purview of the city ordinance. It is also found that Shell had knowledge of Jantlick's work, and authorized it to be done under his license and supervision. Shell acknowledged that he performed the final stage of the job (final trim), but denied doing the second stage (tub set). However, Shell's own ledger cards reflect he received periodic payments from Jantlick during the spring of 1981 for plumbing services, and it is found that Shell performed the final two stages of the plumbing work.

   
   

9. The administrative complaint alleges that at some unknown date after the petitioner's investigation was started, respondent approached Shell and offered to pay him if he would "falsely tell the Department of Professional Regulation investigator that Shell had done the plumbing work on the Triplexes." Shell stified that Jantlick had telephoned him and offered to "take care of him" if he could tell a false story to the investigator. But Jantlick denied this, and Shell's testimony is not deemed to be credible, particularly since he had already performed two-thirds of the job himself, inspected and supervised the other third, and received several thousand dollars in payment for his services. Therefore, it is found that Jantlick did not approach Shell and offer him money in return for giving false testimony.

   
   

10. Jantlick did not affix his registration number to the contract executed by him and Johnson. This is required to be done by Chapter 489, Florida Statutes.

    
    

11. Jantlick is seventy years old, and has been a contractor in Pasco County for over twenty-five years. He has had no prior disciplinary charges

    filed against him. For all his troubles on the project, he is still owed almost

    $12,000 by Johnson.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Adminstrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

    
    

13. Respondent is charged in six counts with various violations of Chapter 489, Florida Statutes. All stem from the Johnson construction job. Because respondent's licenses are at stake, the proceeding takes on special significance in terms of the quantum of evidence required to support the charges. Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981). Stated differently, the proof must be commensurate with the potential penalty. Henderson Signs, Inc. v. Department of Transportation, 397 So.2d 769 (Fla. 1st DCA 1981).

    
    

14. The evidence is insufficient and accordingly does not support the charges that respondent: (a) unlawfully performed plumbing work within the City of New Port Richey without being certified to do so (Count IX, (b) aided another person in engaging in plumbing contracting without compliance with the law (Count II), (c) had Thomas Shell obtain permits while fraudulently representing to the city that Shell could do all the work, (Count III), and (d) engaged in a continued course of misconduct while on the project (count IV). Bowling, 392 So.2d at 172.

    
    

15. The evidence does support the allegations in Counts V and VI, although these violations are extremely minor and technical in nature. Under Count V, respondent signed the contract as J-a-n-c-z-l-i-k although he is registered with the state as J-a-n-t-l-i-c-k. This constitutes a technical violation of Subsection 489.129(1)(g), Florida Statutes, which prohibits contracting under a name which is not the name under which one is licensed. Respondent also failed to affix his registration number to the Johnson contract, which constitutes a violation of Subsections 489.119(5) and 489.129(1)(j), Florida Statues. Given the extremely minor and technical nature of these violations, a reprimand is appropriate.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as charged in Counts V and VI

of the administrative complaint and that he be given a reprimand. All other charges should be DISMISSED.

DONE and ENTERED this 21st day of May, 1984 in Tallahassee, Florida.

DONALD R. ALEXANDER

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 21st day of May, 1984.

COPIES FURNISHED:

Daniel P. Rock, Esquire The Oakland Building

117 North Boulevard

New Port Richey, Florida 33552

Edward C. Hill, Jr., Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs.

JOHNNY C. FOSSETT,

License No. RC 0040728,

Respondent.

/

CASE NO. 0037488, 0041789

DOAH CASE NO. 84-1674 & 84-1675

FINAL ORDER

THIS MATTER came before the Construction Industry Licensing Board pursuant to Section 120.57(1)(b)9., Florida Statutes, on January 10, 1985, in Tampa, Florida for consideration of the recommended Order (a copy of which is attached hereto and incorporated herein by reference) issued by the hearing officer in the case of Department of Professional Regulation vs Johnny C. Fossett, Case No. 84-1674 & 84-1675. The petitioner was represented by H. Reynolds Sampson, Esquire. The Respondent was not present nor represented at the Board meeting.

Upon consideration of the hearing officer's Recommended Order, Petitioner's Eceptions to the Recommended Order and the arguments of the parties and after a review of the complete record in this matter, the Board makes the following findings:

FINDINGS OF FACT

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

   
   

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 far statutes.

   
   

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

   
   

3. The hearing officer's recommendation with regard to penatly is hereby rejected and the Board accepts Petitioner's Exception to the Recommended Order.

   
   

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

WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED:

The Respondent's license is hereby REVOKED.

Within thirty days the Respondent shall return his license to the Board Office, Post Office Box 2, Jacksonville, Florida 32201, or shall surrender the license to an investigator of the department of professional Regulation.

Pursuant to Section 120.59, Florida Statutes, the parties are hereby notified that they may appeal this final order by filing one (1) copy of a notice of appeal with the clerk of the agency and by filing the filing fee and one (1) copy of a notice of appeal with the District Court of Appeal within thirty (30) days of the date of this order is filed.

DONE AND ORDERED this 4th day of February, 1985.

DONALD W. STOBS, 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 Johnny C. Fossett, J. C. Fossett Roofing & Maintenance Repair, 4978 Soutel Drive, Jacksonville, Florida 32208, 8937 Castle Boulevard, Jacksonville, Florida 32208 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, by 5:00 p.m., this 14th day of February, 1985.

Docket for Case No: 83-000723

Orders for Case No: 83-000723