STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1953

)

JOHN R. MISIAK, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this cause on February 11, 1983, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Harold M. Braxton, Esquire

45 Southwest 36th Court Miami, Florida 33125

For Respondent: Chad P. Pugatch, Esquire

2455 East Sunrise Boulevard Fort Lauderdale, Florida 33304

By Administrative Complaint dated May 7, 1982, Petitioner, Department of Professional Regulation, Construction Industry Licensing Board ("Petitioner"), seeks to suspend, revoke, or take other disciplinary action against the registered pool contractor's license of Respondent, John R. Misiak ("Respondent"). Specifically, petitioner alleges in the Administrative Complaint that Respondent violated the provisions of Section 469.129 (1) (h) and

469.129 (1) (k), Florida Statutes, by diverting funds and by abandoning construction of a project, respectively.

Final hearing in this cause as scheduled February 11, 1983, by Amended Notice of Hearing dated December 9, 1982. At the final hearing, Petitioner called Rolf Schneider as its only Itness, and offered petitioner's Exhibits 1 through 4 and 6 through 10, which were received into evidence. Respondent testified in his on behalf, and called Don Taylor as an additional witness.

Respondent offered Respondent's Exhibits 1 through 4, which were received into evidence.

Counsel for each of the parties have submitted proposed findings of fact or consideration by the Hearing Officer. To the extent that those proposed findings are not contained in this Recommended Or have been rejected as being either irrelevant to the issues involved in this proceeding, or as not having been supported by the evidence of record.

FINDINGS OF FACT

1. At all times material hereto, Respondent, John R. Misiak, was a registered pool contractor, having been Issued license No. RP0033942. Respondent acted as the qualifying agent for Pool Masters, Inc., and also sewed as president of that company.

   
   

2. On or about August 21, 1979, Respondent, on behalf of Pool Masters, Inc. , contracted with Mr. and Mrs. Rolf Schneider to construct a pool at the contract price of $9,400 at their residence at 4253 Sugar Pine Drive, Boca Raton, Florida. Pursuant to the terms of that contract, Pool Masters, Inc., guaranteed completion of the pool within eight weeks from the date of issuance of a building permit.

   
   

3. On August 23, 1979, the Schneiders paid Pool Masters, Inc., a down payment of $948

   
   

4. On September 23, 1979, Respondent obtained a building permit for the pool and commenced construction. Thereafter, the Schneiders made two additional equal payments to Pool Masters, Inc., of $2,820 on October, 30, 1979, and November 4, 1979, respectively. After receipt of these payments, a remaining unpaid balance on the contract of $2,892 resulted.

   
   

5. Work progressed on schedule through November 4, 1979, when Pool Masters, Inc., applied "shot crete" to the pool, and the Schneiders made their last payments of $2,820 as indicated above. Thereafter, work did not progress according to schedule, and the Schneiders became concerned about completion of their pool. There ensued a series of correspondence no conversations between the Schneiders, Respondent, and other officers of Pool Masters, Inc., concerning completion of the pool. Actual work on the pool continued through early December of 1979. At some time between December 4 and December 14, 1979, rough plumbing was installed in the pool. The rough plumbing was inspected and approved by the Palm Beach County Building Department on December 14, 1979.

   
   

6. Pool Masters, Inc., had experienced financial difficulty as earl as August of 1979. Negotiations between the company and its creditors continued through late 1979 in the company's attempts to remain in business. In late November of 1979, Respondent spoke with Mrs. Schneider and informed her that the company was experiencing financial difficulties and might not be able to complete construction of the pool. On December 12, 1979, an officer of Pool Masters, Inc., spoke with Mr. Schneider, and informed him that the company would not be able to complete construction of the pool and further would be unable to refund their money.

   
   

7. Respondent attempted to arrange completion of the Schneider's pool through another company. Under the proposed arrangement, the pool would have completed at the second company's cost, and Pool Masters, Inc., would have contributed $1,000 toward completion. At the time Respondent proposed this arrangement for completion of the pool, it appears from the record that the the pool could have been completed for approximately $2,000 above the original contract price. The Schneiders refused any offer or completion that would have exceeded the original contract price

   
   

8. Pool Masters, Inc., was unable to make satisfactory financial arrangements with its creditors. As a result, the company filed a Voluntary Petition Under Chapter 7 of the Bankruptcy Code on January 29, 1980. No work

   was performed by Pool Masters, Inc., on the job after the period of December 4 through December 14, 1979.

   
   

9. There is no evidence of record in this proceeding from which a conclusion can be drawn that any of the monies paid by the Schneider to Pool Masters, Inc., was applied other than in the partial construction of the pool pursuant to the contract.

   
   

10. The Schneiders subsequently contracts with another firm for completion of the pool at a cost substantially in excess of the original contract price. The Schneiders also filed a civil suit for damages against Pool Masters, Inc. Respondent, and other corporate officers. In the course or that proceeding, the Schneiders recovered $1,750 from one of the corporate officers.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division or Administrative Hearings as jurisdiction over the parties to and the subject matter or this proceeding. Section 120.57(1) , Florida Statutes.

    
    

12. In the Administrative Complaint filed in this cause, the Respondent is charged with violating Sections 489.129(1)(h) and (k) , Florida Statutes. Section 489.129 (1), Florida Statutes, provides, in pertinent part, that:

    
    

    1. The board may 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, place the contractor on probation, reprimand or censure, a contractor if the contractor is found guilty of any of the following acts:

       (h) Diversion of funds or property received for prosecution or completion of a specified construction project or operation when as a result of the diversion the contractor is or will be

       unable to fulfill the terms or is obligation or contract.

       (k) Abandonment of construction project in which the contractor is engaged of under contract as a contractor. A

       project is to be considered abandoned after

       90 days if the contractor terminates said project without notification to the prospective owner and without just cause...

       
       

13. It is specifically concluded, based upon the foregoing findings of fact, that Petitioner has failed to establish a violation by Respondent of either Section 489.129(1)(h) or (k), Florida Statutes. The record in this cause contains no evidence that any of the funds received by Pool Masters, Inc., from the Schneiders were used other than in the partial construction of the pool as contemplated pursuant to the terms of the contract. Further, the record in this cause clearly establishes that the Schneiders were advised by both Respondent and other officers of Pool Masters, Inc., in November and December of 1979 that the the company was in such dire financial condition that they would be unable

to complete construction of the pool in accordance with the terms of the contract. Under these circumstances, no violation of the aforementioned provisions of Section 489.129, Florida Statutes, has been shown. Accordingly, it is

RECOMMENDED:

That a Final Order be entered by the State of Florida, Department to Professional Regulation, Construction Industry Licensing Board, dismissing the Administrative Complaint.

WILLIAM E. WILLIAMS

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 19th day of August, 1983.

COPIES FURNISHED:

Harold M. Braxton, Esq.

43 Southwest 36th Court Miami, Florida 33133

Chad P. Pugatch, Esq.

2435 East Sunrise Boulevard Fort Lauderdale, Florida 33304

James Linnan, Executive Director Construction Industry Licensing Board

Department of Professional Regulation

Post Office Box 2 Jacksonville, Florida 32202

M. Roche, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-001953

Orders for Case No: 82-001953