STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA CONSTRUCTION INDUSTRY ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 75-2113

)

LEO L. HARWARD, d/b/a ) FIESTA POOLS OF OCALA, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter, at Ocala, Florida, on March 23, 1976, after due notice to the parties, by the undersigned Hearing Officer.

APPEARANCES

For Petitioner: David Linn , Esquire

217 South Adams Street Tallahassee, Florida

For Respondent: James A. Shook, Esquire

415 North West First Avenue Post Office Box 924

Ocala, Florida 32670 ISSUE PRESENTED

Whether Respondent's registration s a pool contractor should be revoked for alleged violation of Section 468.112(2)(a), Florida Statutes.

FINDINGS OF FACT

1. Respondent was registered with Petitioner as a pool contractor, Registration No. RP0017996, from January to June 30, 1974 (Petitioner's Composite Exhibit 2.)

   
   

2. On February 22, 1974, Respondent entered into a contract with John G. Hartong, 813 Kings Bay Drive Southwest, Crystal River, Florida, to construct a screened swimming pool for the total price of $7,331.25. Construction of the pool began in July of 1974. Prior to that time, Respondent sent his foreman to the building department of Citrus County to obtain a building permit for the job because the county had issued such permits for work in Crystal River in the past. In actuality, the City of Crystal River began issuing such permits for construction work in that community commencing June 15, 1974. Neither Citrus County nor the City of Crystal River issued a permit for the work at the Hartong residence. Respondent assumed that his foreman had obtained the necessary

   permit and did not inquire into the matter further. City officials of Crystal River discovered the job in progress in late July. At that time, the gunite for the pool was about two-thirds completed and it would have been impossible to inspect unless everything was "pulled out". Respondent had been ill during this period and receiving daily medical checkups. As a result, he had entrusted his foreman with a great deal more responsibility than usual. Respondent normally had five to ten pool jobs in progress at the same time. In August, 1974, Respondent suffered a heart attack and was hospitalized. Work apparently ceased on the Hartong pool at this point or somewhat earlier and, after numerous attempts to contact Respondent as to completion of the work, Mr. Hartong secured another contractor to do so. However, this firm required that Hartong obtain a release from Respondent prior to taking over the work. Hartong therefore visited Respondent in the hospital and the parties settled the matter by executing a release. Prior to entering the hospital, Respondent had been on the Hartong job on only two different occasions and his first contact from city officials came just before he was hospitalized. After the parties had entered into their settlement, Respondent did no further work on the pool. In October, 1974, the building official of Crystal River advised Respondent by correspondence that he should obtain a permit for the work and furnished him an application for a local Certificate of Competency as a contractor. Although Respondent submitted an application for such a certificate, the city tabled the application pending his compliance with city ordinances concerning permit requirements for the Hartong pool. In view of his release from Hartong, Respondent did not pursue the matter any further. Hartong had been particularly disturbed by the fact that electrical wires from a switch on the wall of his house ran to the pool deck and when the switch was on, the wires were live. He was fearful that his children might put them in the water and create a shock hazard (Testimony of Pulver, Hartong, duPlanti, Respondent; Petitioner's Composite Exhibit 3, Petitioner's Exhibits 4 & 6.)

   
   

3. About the middle of 1974, Respondent entered into a contract with Craig Marlett to build a pool. It was not established at the hearing as to whether this work was to be performed in Citrus County or within the city limits of Crystal River. Respondent testified that there was no building permit obtained for this work, but that he had subcontracted the job to his foreman and provided him with funds to obtain a proper permit. However, he did not check to see if one had been obtained (Testimony of Respondent, Pulver, Petitioner's Exhibit 7.)

   
   

4. Approximately February 28, 1975, pursuant to a pool contract with Jack Freeman, Ocala, Florida, Respondent commenced work by excavating the hole on the site. He testified that he was not aware that he did not have a building permit when he began this work, but obtained it the following Monday. In fact, the application for a building permit to Alachua County was submitted on March 4, 1975, a Tuesday, and the permit was issued on March 10, 1975. Article XIV, Section V, Zoning Regulations for Alachua County, Florida requires that no building shall be constructed, reconstructed, altered or extended unless a building permit has been issued, indicating that such use complies with county requirements (Testimony of Respondent, Petitioner's Exhibits 5 & 8.)

   
   

5. Respondent has been building swimming pools for approximately 10 years. His experience includes construction of approximately 700 pools (Testimony of Respondent.)

   CONCLUSIONS OF LAW

   
   

6. Petitioner seeks to revoke Respondent's registration as a pool contractor for three alleged violations of Section 468.112 (2)(a), Florida Statutes. This section provides pertinently as follows:

   
   

   "468.112 Revocation or suspension of certificate or registration. -

   1. The Board may take appropriate disciplinary action if the contractor is found to be guilty of or has committed any one or more of the acts or omissions constituting cause for disciplinary action set out herein or adopted as rules or regulations by the Board.

   2. The following acts constitute cause for disciplinary action:

      1. Willful or deliberate disregard and violation of the applicable building codes or laws of the state or any municipalities, cities or counties thereof."

         
         

7. Section 468.112(3) defines the various types of disciplinary action which the board is authorized to take, including suspension and revocation of certificates or registrations and imposition of an administrative fine or penalty not to exceed $500.00 which is recoverable by the board only in an action at law.

   
   

8. No evidence was presented to establish that Respondent had renewed his registration after June 30, 1974. This is of no significance because Section

   468.108 provides that if registration is not renewed, it merely becomes inoperative, and Section 468.112(6) provides that the lapse of registration does not deprive the board of jurisdiction to investigate or act in disciplinary proceedings against the registrant.

   
   

9. Although Petitioner alleges three instances of Respondent's failure to obtain required building permits to construct swimming pools and Respondent conceded at the hearing that such permits had not been obtained, there has been no showing that Respondent's omissions in this regard could be construed as willful or deliberate in nature. As to the Hartong and Marlett pools, the evidence established that there was a confusing transfer of jurisdiction from Citrus County to Crystal River during the period in question that made it difficult for a contractor to ascertain the proper governmental body for issuance of building permits. Respondent clearly was negligent in delegating this task to his foreman and not following up to insure compliance with applicable provisions of the appropriate city or county code, but such negligence does not approach the "willful or deliberate disregard" standard of the statute. Additionally, it was shown that Respondent was ill at the time and, in fact, was hospitalized in the summer of 1974, thus limiting his ability to properly supervise his construction jobs during this period. There was some evidence that Respondent had created a hazardous situation by not completing electrical wiring on the Hartong project, but no evidence was adduced to establish that this omission was a violation of any particular provision of the applicable building code. As to the Freeman pool, the Respondent obtained a building permit, albeit after excavation had commenced, and there was no evidence submitted to show that the county considered Respondent to have violated its building code. In view of the foregoing, and when considering the

penal nature of licensing proceedings which require clear and convincing evidence to justify disciplinary action, it is concluded that Respondent has not violated Section 468.112(2)(a), Florida Statutes, as alleged.

RECOMMENDATION

That the allegations against Respondent be dismissed.

DONE and ENTERED this 7th day of April, 1976, in Tallahassee, Florida.

THOMAS C. OLDHAM

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

David Linn, Esquire

217 South Adams Street Tallahassee, Florida

James A. Shook, Esquire

415 North West First Avenue Post Office Box 924

Ocala, Florida 32670

Docket for Case No: 75-002113

Orders for Case No: 75-002113