STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2659

) (0009920)

JOHN W. THORNETT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, WILLIAM B. THOMAS, held a formal hearing in this case on February 11, 1982, in Melbourne, Florida. The parties requested time within which to submit proposed findings of fact and conclusions of law, and 20 days after the filing of the transcript was allowed. The transcript was not received until May 4, 1982. Proposed findings were submitted by counsel for the Respondent, and these have been largely adopted. Nothing has been filed by the Petitioner.

APPEARANCES

For Petitioner: John O. Williams, Esquire

547 North Monroe Street Tallahassee, Florida 32301

For Respondent: Edward J. Richardson, Esquire

111 South Scott Street Melbourne, Florida 32901

By Administrative Complaint issued on September 17, 1981, the Respondent was charged with violation of Section 489. 129(1)(k), Florida Statutes.

Specifically, the Complaint alleges that the Respondent abandoned the construction of a swimming pool project. Further, by way of an Amended Complaint issued on January 29, 1982, the Respondent also was charged with violation of Section 409.129(1)(m), Florida Statutes, in that he is alleged to have failed to properly repair a leak in pool pump piping that had been installed as part of the same project. The Complaint alleges that the Respondent is a registered swimming pool contractor, holding license number RP0028990, but there was no evidence presented to establish these facts.

In support of the allegations of the Administrative Complaint, as amended, the Petitioner presented the testimony of Mr. and Mrs. Gennaro Stellato, who had contracted with the Respondent to build a pool for them, the building inspector for the City of Palm Bay, and investigator for the Department of Professional Regulation, and five exhibits which were received in evidence. The Respondent testified on his own behalf, and presented the testimony of one of his salesman,

Don Leggett, Huey McDonough who had been the Respondent's service manager, and three exhibits which were received in evidence, in defense. Based upon all of the evidence, and the observed candor and demeanor of the witnesses, the following are found as facts.

FINDINGS OF FACT

1. On October 10, 1979, the Respondent entered into a written swimming pool contract with Mr. and Mrs. Stellato, wherein the Respondent agreed to construct a swimming pool for them on their property in accordance with the plans and specifications attached to the contract.

   
   

2. Among other things this swimming pool contract provided for the payment of a total purchase price of $11,225.00 to be paid in the following manner:

   
   

   1. ten percent to be paid at the signing of the contract.

   2. fifty percent to be paid upon the installation of the tank.

   3. thirty-five percent to be paid upon completion of the base decking and

      screen enclosure.

   4. five percent, or the balance of the purchase price, to be paid when the filter system was put in operation.

      
      

3. Further, this contract provided that if the purchasers of the swimming pool failed to pay the purchase price in accordance with the prescribed schedule, the contractor reserved the right to suspend all work on the swimming pool, and to suspend all warranty work due after completion of the pool.

   
   

4. During the month of February, 1980, the Respondent, acting through his duly authorized representatives, did all acts necessary to cause the filter system of the subject swimming pool to become operable, and requested that the Stellatos pay the five percent balance due under the contract. The Stellatos failed to make this final payment, claiming that there was a problem with the pool decking.

   
   

5. In response to this complaint the Respondent personally met with the Stellatos, and agreed to cover the problem area of the decking with Chattahoochee River Rock at no cost to the Stellatos. In exchange for this agreement the Stellatos agreed to pay the balance due under the contract. Thereupon, the Respondent installed Chattahoochee River Rock over a substantial portion of the decking at his own expense. During the installation of this Chattahoochee River Rock, Mrs. Stellato contacted the Respondent by phone and demanded that he also install, at his own expense, Chattahoochee River Rock over an existing concrete patio area that had not been built by the Respondent. The Respondent refused to incur this additional expense, because it was not in accordance with the agreement of the parties. Thereafter, the Stellatos again failed to pay the balance due under the contract.

   
   

6. The subject swimming pool was inspected by an inspector for Palm Bay, and the City issued a certificate of occupancy in June of 1980. The pool was ready for a certificate of occupancy in February of 1980 except for the removal of one pile of dirt that still remained on the premises. All other aspects of the pool construction passed inspection in February of 1980 when the pool filter system was activated.

7. Since February Of 1980, the Stellatos have had full use of the subject swimming pool. Except for alleging that some low spots remain in the pool decking, the Petitioner offered no substantial evidence of any other significant problem with the Respondent's construction.

   
   

8. Notwithstanding the failure of the Stellatos to pay the balance of the contract price in a timely manner, the Respondent performed warranty work on the subject swimming pool after February of 1980. During the course of this warranty work the Respondent added chlorine chemicals to the pool because the Stellatos had failed to properly maintain it up to June of 1980.

   
   

9. Another claim concerning a leaking pipe on the pool sweep did not manifest itself until April of 1981, after the expiration of the one year warranty period afforded by the Respondent to all customers. The Petitioner offered no evidence to show that the leak in this pipe was caused by the Respondent. Notwithstanding the expiration of the warranty period, and the lack of evidence to show that the leak was caused by the Respondent, he did send an employee to the job site and stopped the water leak, at no cost to the Stellatos.

   
   

10. On several occasions when the Respondent or his employees attempted to satisfy the complaints of the Stellatos, they had to leave the job site because of the abusive language and conduct directed toward them by the Stellatos. In one instance Mr. Stellato ordered the Respondent's employees from the job site and prevented performance of any work under the contract.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Construction Industry Licensing Board is charged with carrying out the provisions of Chapter 489 of the Florida Statutes. Part I of this Act sets the standards for licensure in the field of construction contracting, and provides for disciplinary proceedings when the prescribed standards have been violated.

    
    

12. Pursuant to Section 489.129(1)(k), Florida Statutes, the Board is authorized to revoke or suspend the certificate or registration of a contractor, or impose an administrative fine not exceeding $1,000 or other sanctions, if the contractor is found guilty of abandonment of a construction project. Subsection

    (m) of this statute authorizes these penalties upon proof and continued evidence that the licensee is guilty of fraud or deceit, or of gross negligence, incompetency, or misconduct in the practice of contracting. 1/

    
    

13. In this case, however, the evidence fails to demonstrate that the Respondent abandoned the swimming pool project, or that he failed to properly repair a leak in the pool piping as alleged in the Administrative Complaint, as amended. The evidence establishes that the subject pool was completed in February of 1980 in accordance with the terms of the contract. At this time, when the pool filter became operable and was turned on, the Respondent became entitled to final payment under this contract. The contract provisions for progress payments were not met by the Stellatos when they failed to make the final payment due. Nevertheless, the Respondent made continuing efforts to satisfy the Stellatos so that the final payment might be received.

14. Throughout the first year after the pool was completed, the Respondent was willing to perform warranty work on the pool, and did make some warranty calls for this purpose. The evidence does not support a finding that the Respondent is guilty as charged in the amended Administrative Complaint; thus, it should be dismissed.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Administrative Complaint, as amended, against John W.

Thornett be dismissed.

THIS RECOMMENDED ORDER entered this 9 day of June, 1982, in Tallahassee, Florida.

WILLIAM B. THOMAS

Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 1982.

ENDNOTE

1/ Without any evidence that the Respondent was licensed as alleged in the Complaint, the Construction Industry Licensing Board lacks jurisdiction to pursue this disciplinary proceeding. Chapter 489, Part I, Florida Statutes.

COPIES FURNISHED:

John O. Williams, Esquire

547 North Monroe Street Tallahassee, Florida 32301

Edward J. Richardson, Esquire

111 South Scott Street Melbourne, Florida 32901

Docket for Case No: 81-002659

Orders for Case No: 81-002659