STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 87-3884

)

RICHARD JOHNANTONIO, )

)

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 cause on January 27, 1988 in Ft. Lauderdale, Florida. The following appearances were entered:

APPEARANCES:

For Petitioner: David L. Swanson, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: No Appearance

PROCEDURAL BACKGROUND

By Administrative Complaint filed on May 20, 1987, the Department of Professional Regulation alleged that the Respondent had violated various provisions of the Construction Industry Licensing Law, Chapter 489, Florida Statutes. The Respondent disputed the allegations of fact contained in the Administrative Complaint and requested a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes.

At the formal hearing, the Petitioner called one witness. In addition, Petitioner's Exhibits 1 through 6 were duly offered and admitted into evidence. The Petitioner's request to file a late-filed exhibit was also granted. The Respondent did not attend, nor send an authorized representative to, the formal hearing. The Petitioner submitted post-hearing 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

1. Respondent is, and has been at all times material hereto, a registered roofing contractor in the State of Florida, having been issued license number RC 0039352. Respondent is the qualifying agent for Ken and Rick's Roofing, Inc. of Mami, Florida.

   
   

2. On May 16, 1986, Ken and Rick's Roofing, Inc. contracted to repair roof leaks for a Victor Krauthaner of 18441 Northeast 21st Place, North Miami Beach, Florida. The contract, signed by Respondent and Mr. Krauthaner, contained a six

   (6) month warranty on repairs.

   
   

3. The contract price was $215.00. Mr. Krauthaner paid the full amount by a check which was cashed by Respondent.

   
   

4. On May 17, 1986, David J. Godfried, an employee of Ken and Rick's Roofing, Inc. was dispatched by Respondent to repair Mr. Krauthaner's roof. Godfried removed tiles from the affected portion of the roof and installed new tar paper. The old tiles could not be re-used and Godfried did not have appropriate tiles in stock, so he left the tar paper exposed and promised Krauthaner that he would return with new tiles within a week.

   
   

5. No one from Ken & Rick's Roofing, Inc. returned after May 17, 1986 to replace the tile and Krauthaner began experiencing new leaks. Mr. Krauthaner made repeated attempts by telephone and letter to encourage Ken & Rick's Roofing, Inc. to complete the repairs. Representatives of the company repeatedly assured Krauthaner that someone would respond to repair the leaks, but no one ever did. Mr. Krauthaner repaired the leak himself in June of 1987.

   
   

6. Chapter 10 of the Code of Metropolitan Dade County requires that roofing contractors working within the county be either certified by the State of Florida or possess a certificate of competency in roofing issued by the county.

   
   

7. Respondent's registered roofing license was suspended by The Construction Industry Licensing Board in March 1985 for failure to pay a fine assessed as the result of a previous disciplinary action. The suspension was in effect at the time Respondent contracted to repair the Krauthaner residence. Respondent does not possess a certificate of competency from Dade County, nor did he possess one at the time the contract was executed.

   
   

8. Respondent has been disciplined on three prior occasions by The Construction Industry Licensing Board on January 23, 1984 (DPR Case Number 33028); May 21, 1984 (DPR Case Number 42963); and, June 6, 1985 (DPR Case Number 49942). The complaint in Case Number 42963 alleged that Respondent had exceeded the scope of his license by contracting in Dade County without first meeting local competency requirements.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. The Construction Industry Licensing Board, within the Department of Professional Regulation is charged with the responsibility of regulating the practice of contracting in the State of Florida. Chapter 489, Florida Statutes.

11. In the Administrative Complaint, the Petitioner alleges that:

    
    

    1. Respondent violated Section 489.129(1)(j), 489.117(2), and 489.115(1)(b), Florida Statutes by exceeding the territorial scope of his license;

       
       

    2. Respondent violated Section 489.129(1)(m), Florida Statutes by gross negligence, incompetence, misconduct, fraud or deceit in the practice of contracting;

       
       

    3. Respondent violated Section 489.129(1)(j), Florida Statutes by failure to discharge supervisory duty as qualifying agent, in violation of Section 489.119 and 489.105(4), Florida Statutes; and

       
       

    4. Respondent violated Sections 489.129(1)(j) and 489.127, Florida Statutes by using a suspended license.

       
       

12. The Petitioner established by clear and convincing evidence that Respondent committed misconduct in the practice of contracting in violation of Section 489.129(1)(n), Florida Statutes by inexplicably failing to return to the Krauthaner residence to replace tile or repair leaks despite repeated requests from the homeowner.

    
    

13. The Petitioner established by clear and convincing evidence that Respondent exceeded the territorial scope of his license in violation of Sections 489.115(1)(b), 489.117(2) and 489.121(1)(j), Florida Statutes by contracting to repair a roof in Dade County while his license was suspended and without first meeting local competency requirements.

    
    

14. The Petitioner presented no evidence indicating that Respondent failed to discharge supervisory duties as qualifying agent for Ken & Rick's Roofing, Inc. The Respondent is not guilty of a violation of Sections 489.119 and 489.105(4), Florida Statutes.

    
    

15. The Petitioner established by clear and convincing evidence that Respondent violated Sections 489.129(1)(j) and 489.127, Florida Statutes by contracting to perform roofing services while his license was suspended.

RECOMMENDATIONS:

Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Construction Industry Licensing Board issue a Final

Order revoking Respondent's roofing contractor's license

DONE and ORDERED this 11th day of March, 1988 in Tallahassee, Leon County, Florida.

W. MATTHEW STEVENSON Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3884

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 2.

3. Adopted in Finding of Fact 3.

4. Adopted in Finding of Fact 4.

5. Adopted in Finding of Fact 5.

6. Adopted in Finding of Fact 6.

7. Adopted in Finding of Fact 7.

8. Adopted in Finding of Fact 8.

COPIES FURNISHED:

David L. Swanson, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Richard L. Johnantonio 7520 Orleans Street

Miramar, Florida 33027

William O'Neil, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Fred Seely Executive Director

Department of Professional Regulation

Post Office Box 2 Jacksonville, Florida 32201

Docket for Case No: 87-003884

Orders for Case No: 87-003884