STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 87-5602

)

JOHN ANTHONY FANTASIA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Don W. Davis, on February 25, 1988 in Miami, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Lee Sims, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: No appearance

BACKGROUND

Respondent is an air conditioning contractor licensed by Petitioner. By administrative complaint, Petitioner charged Respondent with undertaking a residential air conditioning job without timely securing permits, obtaining required inspections, complying with local construction code requirements and with abandonment of the job. Respondent requested a formal administrative hearing.

At hearing, Petitioner presented the testimony of four witnesses and eleven evidentiary exhibits. Respondent was not present. Proposed findings of fact submitted by the Petitioner are addressed in the appendix to this recommended order.

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

FINDINGS OF FACT

1. The Petitioner is be Department of Professional Regulation.

2. The Respondent is John Anthony Fantasia, at all times pertinent to these proceedings holder of certified air conditioning contractor license number CA-C024378 and qualifying agent for Fantasia Air Conditioning Refrigeration Appliance Service.

   
   

3. Nat Weintraub contracted with Respondent on or about June 25, 1986. Under terms of the contract, Weintraub gave Respondent a $2,500 down payment to have a central air conditioning system installed in the Weintraub home.

   
   

4. Weintraub paid Respondent an additional $1,250 when the central air conditioning unit was delivered on or about July 1, 1986. A third and final payment of $1,250 due upon completion of the work set forth in the contract has not been made by Weintraub dub to difficulties he has encountered with the Respondent concerning the quality of work on the project.

   
   

5. While he timely commenced work shortly after delivery of the central air unit and receipt of two monetary payments from Weintraub, Respondent damaged a screen covering an opening in an overhanging eave to the Weintraub's flat roofed house. This occurred when he inserted equipment into the opening of the eave in order to place additional insulation between the roof and the ceiling of the home. Weintraub later paid someone else $52 to repair the damage.

   
   

6. Respondent made an opening in the roof through which he placed a ventilation pipe. The opening was too large and emitted daylight around the pipe into the closet where the air conditioning unit was installed. As a result, rainwater accumulated in the closet. Weintraub later paid repair costs of $185 to another contractor to seal the opening around the pipe and replace the closet door. While repair of the opening was not a part of the written contract, the Respondent had orally promised to make this correction.

   
   

7. A noise problem associated with overly small grillwork on the main air outlet to the air conditioning unit was fixed by another contractor at a cost of

   $236 to Weintraub.

   
   

8. Dry wall covering a soffit containing duct work in the Weintraub living room was not properly finished off. Weintraub has received estimates leading him to believe correction of this deficiency will cost him approximately $510 in repairs.

   
   

9. During installation of the air conditioning unit, closure of an existing line supplying natural gas to a heat furnace was required. Respondent "pinched off" the line in an improper manner. Further, Respondent's license does not authorize him to engage in work on heating equipment gas lines.

   
   

10. As a result of the manner in which Respondent installed the air conditioning unit, it is extremely inconvenient if not impossible to change the unit's air filters.

    
    

11. The job at the Weintraub home was approximately eighty percent completed when the Respondent exhausted his supply of insulation. He left the job site at that time. Later he called Weintraub demanding additional funds. Weintraub refused to pay anything additional until, in accordance with the contract terms, the job was completed.

    
    

12. Al Childress is an enforcement officer with the Metro-Dade County Building and Zoning Department. He went to the Weintraub home on December 3, 1986. He noted the air conditioning unit had been installed without a proper

    permit and issued a citation by certified mail to the Respondent. The Respondent subsequently paid a $50 civil penalty for the citation.

    
    

13. William Huckstep was a mechanical inspector for the Metro-Dade County Building and Zoning Department when he was called to the Weintraub home on or about February 3, 1987. He observed the gas line which had been altered by the Respondent. Huckstep subsequently issued a Notice of Violation by certified mail to Respondent for performing such a task without a certificate of competency as required by the Dade County Building Code.

    
    

14. On or about April 22, 1987, Huckstep issued a second notice of violation to Respondent for failure to have called for rough and final inspections of the air conditioner installation as required by the Dade County Building Code. To date, these inspections have not been performed by local authorities or requested by the Respondent.

    
    

15. Considerably more than 90 days have elapsed since the fall of 1986 when Respondent left the Weintraub project, prior to its completion, without notification, and without just cause to depart.

    
    

16. The improper installation of air conditioning equipment, insulation and duct work exhibited gross negligence by the Respondent in the performance of these tasks.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1987).

    
    

18. The proof establishes the Respondent did not obtain timely permits or comply with inspection requirements of local code ordinances. These acts constitute violations of section 489.129(1)(d) and (j), Florida Statutes. The Respondent is guilty of these allegations as set forth in paragraphs 5 and 6 of the Administrative Complaint.

    
    

19. In the absence of required inspections, compliance with applicable local construction codes cannot be determined. Therefore, Respondent is not guilty of the allegation contained in paragraph 7 of the complaint that he failed to comply with such construction codes in violation of subsection 489.129(1)(d) and (m), Florida Statutes.

    
    

20. Respondent abandoned the project in violation of section 489.129(1)(k), Florida Statutes. More than 90 days have elapsed since Respondent ceased work on the Weintraub job. The refusal of Weintraub to pay the remaining amount ($1,250) of the total $5,000 contract price prior to completion of the work cannot be viewed as good cause sufficient to justify Respondent's action. Respondent is guilty of this allegation as set forth in paragraph 8 of the complaint.

The product of Respondent's work performance, as adduced from the evidence, shows that Respondent committed misconduct in connection with the Weintraub job. Respondent is guilty of the allegation in paragraph 9 of the complaint that he violated section 489.129(m), Florida Statutes.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered in this cause assessing the

Respondent a fine of $1,500 and placing him on probation for a period of two years upon terms and conditions to be determined by the Construction Industry Licensing Board.

DONE AND RECOMMENDED this 17th day of March, 1988, in Tallahassee, Leon County, Florida.

DON W. DAVIS

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 17th day of March, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5602

The following constitutes my specific ruling on the proposed findings of fact submitted by the Petitioner. Those proposed findings consisted of 18 paragraphs. Only the first five paragraphs were numbered. Numbers 6 through 18 were applied to the remaining paragraphs by the Hearing Officer.

1. Included in finding number 2.

2. Included in finding number 3.

3. Included in finding number 12.

4. Included in finding number 13.

5. Rejected as unnecessary.

6. Included in part in findings numbered 3 and 4.

7. Included in findings numbered 13 and 14.

8. Included in findings numbered 6 and 9.

9. Included in finding number 11.

10. Included as to the soffit in finding number 8. The remainder is rejected.

11. Included in finding number 11.

12. Included in finding number 12.

13. Included in findings numbered 11 and 15.

14. Rejected as unnecessary.

15. Included in findings numbered 5, 6, 7, and 8.

16. Included in finding number 13, with the exception of Petitioner's dates which are reflective of the deadline given Respondent on the citations.

17. Included in finding number 13.

18. Included in finding number 14, with exception of hearsay relating to testimony of Bob Wolf which is rejected.

COPIES FURNISHED:

Lee Sims, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

John Anthony Fantasia

149-10 Northeast Eighth Avenue North Miami, Florida 33161

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

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. CASE NO. 80790

DOAH CASE NO. 87-5602

JOHN A. FANTASIA,

License No. CA C024378,

Respondent.

/

FINAL ORDER

THIS MATTER came before the Construction Industry Licensing Board pursuant to Section 120.57(1)(b)(9), Florida Statutes, on July 14, 1988, 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 at the Board meeting.

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, 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, Florida Statutes.

   
   

4. The penalty recommended by the Hearing Officer is hereby rejected.

   
   

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 15th day of August, 1988.

E. E. Simmons, 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

John A. Fantasia 14210 N.E. 8th Avenue

North Miami, Florida 33161

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 26th day of August, 1988.

F I L E D

Department of Professional Regulation Florida Construction Industry Licensing Board

BOARD CLERK

CLERK DATE August 26, 1988

Docket for Case No: 87-005602

Orders for Case No: 87-005602