STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 90-1416

) JOHN E. ARENA, d/b/a CLASSIC )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Jane C. Haymhan, held a formal hearing in the above- styled case on May 4, 1990 in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Robert G. Harris, qualified

representative

Department of Professional Regulation

1940 North Monroe Street Suite 341

Tallahassee, Florida 32399-0792

For Respondent: John D. Arena, pro se

5961 S.W. 13th Street Plantation, Florida 33317

STATEMENT OF THE ISSUE

The issue presented is whether Respondent committed the offenses alleged in the administrative complaint, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By administrative complaint dated October 4, 1989, Petitioner charged that Respondent, a licensed residential contractor, failed to obtain certain necessary permits and inspections for a roofing repair job and failed to repair the roof in violation of Sections 489.129(11)(d),(j) and (m), Florida Statutes and Section 489.113(3), Florida Statutes.

At the hearing, Petitioner called one witness and offered seven exhibits which were received into evidence without objection. Respondent testified on his own behalf and offered one exhibit which was also received into evidence without objection.

A transcript of the hearing was ordered and received on June 7, 1990, and proposed recommended orders were due on June 18, 1990. Neither party timely filed a proposed recommended order.

FINDINGS OF FACT

1. At all times material hereto, Respondent, John Arena, was a certified residential contractor, the qualifying agent for Classic Industries, Inc. and held license number CR C021139 from the Florida Construction Industry Licensing Board.

   
   

2. The President and sole owner of Classic was Anthony Manganelli. Mr. Manganelli was also the manager of Classic and the principal from whom Mr. Arena received his information about the contracts entered into by Classic.

   
   

3. On or about July 30, 1988, someone contacted Ms. Solange Gaston of Hollywood, Florida, by telephone, and asked her if her roof needed repair. The solicitor represented himself as an associate of Classic and offered to come out and inspect her roof. Ms. Gaston, believing her roof was in disrepair, agreed to have the inspection completed and entered into a contract with Mr. Carlo Mangano, representing himself as an agent of Classic, to do the repair. With Ms. Gaston's agreement, the tile on her roof was replaced with shingle roofing and certain other repairs were attempted. A letter to Petitioner from the Chief Permit Processor of the City of Hollywood, Florida indicates that no roofing permit was issued for Ms. Gaston's address.

   
   

4. The roof was leaking prior to the repair and continues to leak. Ms. Gaston paid the complete contract price of $3,500 to Classic, but has been unable to locate Mr. Mangano or to have her roof repair completed.

   
   

5. In her attempts to achieve satisfaction, Ms. Gaston contacted Classic and asked to speak with someone in charge. She was under the impression that she was speaking with Mr. Arena; however, she never spoke to Mr. Arena. In fact, Mr. Arena was not aware of the contract with Ms. Gaston until the instant complaint was filed against him. Mr. Arena does not know Mr. Mangano.

   
   

6. When Mr. Arena became aware of the problem, he attempted to contact Mr. Manganelli, but was told that Mr. Manganelli had moved. Ultimately, Mr. Arena located Mr. Manganelli at a new address. According to Mr. Arena, Mr. Manganelli produced a copy of what appeared to be a contract with Ms. Gaston which has the signature of Carlo Mangano on it, but it is marked indicating that Ms. Gaston's credit was turned down. Mr. Manganelli told Mr. Arena that Classic had not undertaken the job due to the refusal of credit. With that representation, Mr. Arena was under the impression that the work had not been done, as was the custom of dealing for Classic when credit was denied.

   
   

7. The two papers purporting to be contracts, one which Ms. Gaston acknowledged as being the one which she signed and the other being the one which Mr. Arena obtained from Mr. Manganelli as the actual contract between Ms. Gaston and Classic through Mr. Mangano, appear to be altered. Although both documents contain the same information, including the date, parties, addresses, work to be completed and price quoted, the portion of the copy indicating the price is written in Arabic numerals on Mr. Arena's copy and by words on Ms. Gaston's copy. Mr. Arena's copy also has the indication that credit was turned down on it, although the cancelled checks paid to Classic by Ms. Gaston were received into evidence.

8. It was Mr. Arena's arrangement with Mr. Manganelli that Mr. Arena was to be informed of every contract into which Classic entered. In this way, Mr. Arena knew which sites he was to supervise. Since he was not advised about the roofing job for Ms. Gaston, he made no attempt to supervise it and after he became aware that the credit for the job had been disallowed, he was under the reasonable impression that the job was not done by Classic. Further, he did not know Mr. Mangano, nor did he believe that Mr. Mangano had the authority to bind Classic. Mr. Arena believes that Mr. Mangano may have obtained a blank contract form of Classic and misrepresented himself to Ms. Gaston as an agent for Classic.

   
   

9. Petitioner asserted, however, that Mr. Arena, nevertheless, was responsible for the job and that Classic did perform the job.

   
   

10. Neither Mr. Manganelli nor Mr. Mangano were present or testified at the hearing.

    
    

11. Given Mr. Arena's demeanor at the hearing and the conflicting and altered state of the alleged contract forms, Mr. Arena's testimony is deemed credible, and the proof failed to demonstrate clearly that Classic actually attempted to repair Ms. Gaston's roof or that Mr. Arena was responsible for the attempted repair.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

13. The administrative complaint tiled in this case seeks to impose administrative penalties including the revocation of Respondent's license and alleges in support thereof that Respondent violated the following provisions of law when the roofing repair was attempted on Ms. Gaston's home:

    
    

    489.129 Disciplinary proceedings. --

    (1) The board may revoke, suspend, or deny the issuance or renewal of the certificate or registration of a contractor, require financial restitution to a consumer, impose an administrative fine not to exceed

    $5,000, place a contractor on probation, require continuing education, assess costs associated with investigation and prosecution, or reprimand or censure a contractor if the contractor, or if the business organization for which the contractor is a primary qualifying agent or is a secondary qualifying agent responsible under s. 489.1195, is found guilty of any of the following acts:

    * * *

    (d) Willfully or deliberately disregarding and violating the applicable building codes or laws of the state or of any municipalities or counties thereof.

    * * *

    (j) Failing in any material respect to comply with the provisions of this part.

    * * *

    (m) Being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.

    * * *

    
    

    and Section 489.113(3), Florida Statutes, which places certain requirements for subcontracting on contractors unless certified according to local authority and provides in pertinent part as follows:

    
    

    (3) A contractor shall subcontract the ... work for which a local examination for a certificate of competency or a license is required, unless such contractor holds a state certificate of competency or license of the respective trade category, as required by the appropriate local authority.... This subsection does not apply if the local authority does not require a certificate of competency or license for such trade. However, no general, building, or residential contractor certified after 1973 shall act as, hold himself out to be, or advertise himself to be a roofing contractor unless he is certified or registered as a roofing contractor.

    
    

14. Under existing law, the burden is on Petitioner to demonstrate by clear and convincing evidence that Respondent violated the above statutory provisions. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

15. Here, Petitioner failed to sustain its burden. The proof failed to demonstrate that Mr. Mangano was indeed an employee of Classic Industries, Inc. or an agent who could bind Classic. Also, the alleged contract documents, themselves, appeared altered which bolsters Respondent's argument that Mr. Mangano obtained a copy of a Classic form contract for use without authority. Respondent had no knowledge of Ms. Gaston's job until the complaint was filed even though it was the custom of Classic to inform Respondent of each job for which it contracted. These facts combined, with the demeanor of Respondent, fail to establish a clear and convincing connection between Classic and the attempted repair of Ms. Gaston's roof. Since Petitioner failed to prove by clear and convincing evidence that either Classic or Mr. Arena performed the attempted repair of Ms. Gaston's roof, Petitioner failed to demonstrate that Respondent violated the provisions of the Florida Statutes cited in the administrative complaint or is subject to the discipline sought thereunder.

RECOMMENDATION

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

Final Order dismissing the administrative complaint filed in this case against Respondent, John Arena.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of June, 1990.

J. LAWRENCE JOHNSTON Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1990.

COPIES FURNISHED:

Robert G. Harris Department of Professional Regulation

1940 North Monroe Street Suite 341

Tallahassee, Florida 32399-0792

John D. Arena

5961 Southwest 13th Street Plantation, Florida 33317

Fred Seely Executive Director

Department of Professional Regulation Construction Industry Licensing

Post Office Box 2 Jacksonville, Florida 32201

Kenneth D. Easley General Counsel

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

-vs- CASE NO.: 109713

DOAH CASE NO.: 90-1416

JOHN E. ARENA D/B/A CLASSIC INDUSTRIES, INC., LICENSE NO.: CR C021139,

Respondent.

/

FINAL ORDER

THIS MATTER came before the Construction Industry Licensing Board (hereinafter referred to as the "Board") pursuant to Section 120.57(1)(b)(9), Florida Statutes, on September 13, 1990, in Orlando, Florida, for consideration of the Recommended Order (a copy of which is attached hereto and incorporated herein by reference). The Petitioner was represented by G. W. Harrell.

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, 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 Board rejects the Recommended Conclusion of Law of the Hearing Officer numbered 5 in the Recommended Order filed in this cause as unsupported by the facts found in this matter and for those reasons expressed in the Petitioner's Exceptions to Recommended Order filed in this cause which is hereby approved and adopted and incorporated herein by reference. The Hearing Officer incorrectly concluded that Petitioner failed to sustain its burden of proof in attempting to demonstrate that Mr. Mangano was an employee of Classic Industries. The record establishes that Mr. Mangano signed the contract as agent for Classic and that the checks written by Ms. Gastin were made out to Classic. The Respondent, as qualifier for Classic is responsible for

   -overseeing the roofing jobs. When Classic accepted the payments it ratified the contract, binding both itself and the Respondent to the conditions of same.

   
   

3. All other Conclusions of Law of the Hearing Officer are accepted and adopted as the Conclusions of Law of the Board.

   
   

4. Respondent is guilty of violating Section 489.129(1)(d),(j), and (m), Florida Statutes.

   
   

5. Based upon the aforestated findings and conclusions the Board rejects the Hearing Officer's recommended penalty.

   
   

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

WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED:

Respondent shall pay an administrative fine in the amount of two thousand two hundred fifty dollars ($2,250.00) to the Board. Said fine shall be paid within thirty (30) days,

To assure payment of the fine, it is further ordered that all of Respondent's licensure to practice contracting shall be suspended with the imposition of the suspension being stayed for thirty (30) days. If the ordered fine is paid within that thirty

(30) day period, the suspension imposed shall not take effect. Upon payment of the fine after the thirty (30) days, the suspension imposed shall be lifted. If the licensee does not pay the fine, within said period, then immediately upon expiration of the stay, he shall surrender his licensure to the investigator of the Department of Professional Regulation or shall mail it to the Board offices.

In addition, Respondent, John E. Arena, is hereby REPRIMANDED.

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, Northwood Centre, 1940 N. Monroe Street, Tallahassee, Florida 32399-0792, 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 15 day of October, 1990.

J. DAVID CRAWFORD, 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 U.S. Mail to

John E. Arena

5961 SW 13th Street Plantation, FL 33317-4634

and by hand delivery/United States Mail to the Board Clerk, Department of Professional Regulation and its Counsel, Northwood Centre, 1940 North Monroe Street, Tallahassee, Florida 32399- 0792, on or before 5:00 p.m., this 4 day October, 1990.

Docket for Case No: 90-001416

Orders for Case No: 90-001416