STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, Florida Construction ) Industry Licensing Board, )

)

Petitioner, )

)

vs. ) CASE NO. 81-329

)

DARELL L. TREADWAY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, Sharyn L. Smith, held a hearing in this cause on June 12, 1981, in New Smryna Beach, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Drucilla Bell, Esquire

Assistant General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: No appearance was entered for Respondent.

The issue for determination in this case is whether the Respondent's contractor's license should be revoked, suspended or other disciplinary action imposed for his alleged failure to properly install and complete two swimming pools.

FINDINGS OF FACT

1. The Respondent, Darell L. Treadway currently holds contractor's license number RP 0027269 and serves as qualifying agent for Treadway Pools and Concrete, 415 South Palmetto Avenue, Daytona Beach, Florida. (Petitioner's Exhibit II)

   
   

2. On June 6, 1979, Chester Webb, 1548 Culverhouse Drive, Holly Hill, Florida, entered into a contract with Almo Pools of Florida, Inc., 609 Turnbull Bay Road, New Smyrna Beach, Florida, for Almo to construct a 13' x 27' kidney shaped fiberglass pool for $4,840.00. (Petitioner's Exhibit I) A $484.00 deposit was paid to Respondent Treadway on June 21, 1979, and on June 26, 1979, a building permit for the pool was obtained by Treadway Pools. (Petitioner's Exhibits I and II)

3. Mr. Webb paid Respondent Treadway $4,684.00 toward completion of the pool. He refused to pay the $242.00 due on completion under the terms of the contract because of numerous problems with the pool including a broken drain, malfunctioning switch box timer, leaking pipes, defective filter and debris left at the site by workmen. (Testimony of Webb; Petitioner's Exhibit III)

   
   

4. On August 23, 1979, Clyde Pirtle, Investigator, Department of Professional Regulation discussed the Webb pool with the Respondent who was informed by Pirtle that Almo Pools of Florida, Inc. was not licensed with the Board. (Petitioner's Exhibit III) Investigator Pirtle mailed change of status forms to the Respondent to qualify Almo Pool's but the forms were never completed and returned. (Petitioner's Exhibit III)

   
   

5. At Investigator Pirtle's request, the Respondent agreed on August 23, 1979, to correct the problems with Mr. Webb's pool but thus far has failed to do so. In addition to repairing minor problems, Mr. Webb found it necessary to replace the pool filter. (Testimony of Webb)

   
   

6. On August 29, 1979, the Respondent Treadway acting as agent for Almo Pools of Florida, Inc. entered into a contract with Donald Bird, 227 East Burn Drive, Orange City, Florida, to construct a 14' x 36' fiberglass pool with a 47' x 32' screen enclosure for $9,425.00. (Petitioner's Exhibit IV) The Respondent was paid $5,642.00 and on September 10, 1979, began installation of a fiberglass shell. (Testimony of Bird) While installing the pool, workmen who were attempting to level its bottom and sides cracked one side of the pool. (Testimony of Bird) The Respondent agreed to repair the crack and in October, 1979, returned to the site, repaired the crack and back-filled around the pool. (Id) No other work was done on the filter system or screen enclosure. Mr. Bird spent approximately $12,500.00 to finish the construction of his pool and patio. (Id) Mr. Bird's pool still has problems including discoloring, cracking and leaking. (Id)

   
   

7. The Respondent Treadway failed to obtain a permit for the construction of the Bird's pool from the Volusia County Building Department and, accordingly, no permit for this project was ever obtained. (Testimony of Barrett)

   
   

8. The Respondent failed to place his state registration number on the face of his contracts with Webb and Bird. (Petitioner's Exhibits I and IV)

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause.

   
   

10. Section 468.112, Florida Statutes (1979 Supplement), amended and carried forward as Section 489.129(1), Florida Statutes (1979), effective retroactively to July l, 1979, lists various acts which constitute grounds for disciplinary action against certified or registered contractors. In both the Webb and Bird installations, the Respondent is charged with violating, inter alia, Section 468.112(2)(h), Florida Statutes (1978 Supplement) carried forward as Section 489.129(1)(k), Florida Statutes (1979), effective retroactively to July 1, 1979, which prohibits

    
    

    [a]bandonment of a construction project in which the contractor is engaged or under contract as a contractor. A pro- ject is to be considered abandoned if the

    contractor terminates said project with- out notification to the prospective owner and without just cause.

    
    

    The Respondent violated this provision by terminating the contract to construct pools for Webb and Bird without proper notification to either party.

    
    

11. In specific regard to the Webb contract, the Respondent is charged with violating Section 468.112(2)(d), Florida Statutes (1978 Supplement), carried forward as Section 439.129(1)(g), Florida Statutes (1979), which prohibits a contractor from

    
    

    [a]cting in the capacity of a contractor under any certificate or registration ... except in the name of the certificate holder or registrant....

    
    

    and Section 468.112(2)(g), Florida Statutes (1978 Supplement), carried forward as Section 489.129(1)(j), Florida Statutes (1979), in that he failed in a material respect to comply with Sections 468.107(6) and (7), Florida Statutes (1978 Supplement).

    
    

12. The Respondent violated Section 468.112(2)(d), Florida Statutes (1978 Supplement) by contracting with Webb in the name of Almo Pools of Florida, Inc., when he was qualified as doing business under the name of Treadway Pools and Concrete. The Petitioner failed to prove that Respondent Treadway violated Section 468.112(2)(g), Florida Statutes (1978 Supplement), for failure to comply with Sections 468.107(6) and (7), Florida Statutes (1978 Supplement), since neither Section 468.107(6) nor (7), Florida Statutes (1978 Supplement), is found in the 1978 Supplement to the Florida Statutes.

    
    

13. As to the Bird contract, the Respondent is charged with violating Section 489.129(1)(j), Florida Statutes (1979) in that he failed in a material respect to comply with Sections 489.119(5) and (6), Florida Statutes (1979), by failing to place his registration number on the contract and failing to pay the qualifying fee for a new business entity. The Respondent is also charged with violating Section 489.129(1)(d), Florida Statutes (1979), in that he deliberately failed to obtain a building permit as required by applicable local building codes and Section 489.129(1)(g), Florida Statutes (1979) for acting in the capacity of a contractor in a name other than the one on his registration.

    
    

14. The Petitioner proved by uncontradicted substantial competent evidence that the Respondent violated Sections 489.129(1)(j), 489.129(1)(d) and 489.129(1)(g), Florida Statutes (1979) by (1) failing to place his registration number on the Bird contract, (2) by entering unto the Bird contract in the name of Almo Pools of Florida, Inc., when he had failed to pay a qualifying fee for such company, (3) by deliberately failing to obtain building permits for the Bird pool from the Volusia County Building Department and (4) by acting in the capacity of a contractor in the name of Almo Pools of Florida, Inc., a name different from the one under which he was qualified.

    
    

15. Under the law in existence when the Webb contract was signed, the Board is authorized to suspend a certificate holder or registrant from all operations as a contractor during the period fixed by the Board, to revoke a certificate or registration, and to impose an administrative fine not to exceed

$500.00. See Section 468.112(3)(a)-(c), Florida Statutes (1978 Supplement). Additionally pursuant to Section 468.112(4), Florida Statutes (1973 Supplement)

the Board may remove a suspension on proof of compliance with all conditions prescribed by the Board for removal of the suspension. Pursuant to Section 489.129(1), Florida Statutes (1979), the law in effect when the Bird contract was signed, the Board is empowered to revoke, suspend or deny the issuance or renewal of the certificate or registration of a contractor or impose an administrative fine not to exceed $1,000.00, place the contractor on probation or reprimand or censure for violating Sections 489.129(1)(a)-(m), Florida Statutes (1979)

RECOMMENDATION

Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED:

That the Florida Construction Industry Licensing Board enter a final order revoking the registration of Darell L. Treadway as a state registered contractor.

DONE and ORDERED this 21st day of July, 1981, in Tallahassee, Florida.

SHARYN L. SMITH

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 July, 1981.

COPIES FURNISHED:

Drucilla Bell, Esquire Assistant General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Nancy Kelley Wittenberg, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Darell L. Treadway

415 South Palmetto Avenue Apartment Number 5

Daytona Beach, Florida 32015

Docket for Case No: 81-000329

Orders for Case No: 81-000329