STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, (Construction )

Industry Licensing Board), )

)

Petitioner, )

)

vs. ) CASE NO. 83-1510

)

WILBUR A. SELLARS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings by its designated Hearing Officer, Michael Pearce Dodson, held the final hearing in this case on October 17, 1983, in Tallahassee, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Douglas A. Shropshire, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: William W. Corry, Esquire

518 North Calhoun Street Post Office Box 527 Tallahassee, Florida 32301

and

Dean Bunch, Esquire

ERVIN VARN JACOBS ODOM & KITCHEN

Post Office Box 1170 Tallahassee, Florida 32302

BACKGROUND

These proceedings began on April 14, 1983 when the Secretary of the Department of Professional Regulation issued an Administrative Complaint against Respondent charging him with being convicted of two felonies relating to the practice of pool contracting and with constructing a building outside the scope of Respondent's license. By an Election of Rights dated May 4, 1983 Respondent requested a formal administrative hearing on the allegations contained in the Administrative Complaint. On May 18, 1983 the case was forwarded to the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a final hearing. That hearing was initially scheduled for August 25 and 26, 1983. By an Order dated July 27, 1983 Petitioner's Motion to File an Amended Administrative Complaint was granted and Mr. Sellars responded with an Answer to the new Complaint. By an Order dated August 17, 1983 the

final hearing was continued until October 17 and 18, 1983. Respondent's subsequent Motion for Stay of Proceedings was denied. On September 19, 1983 Respondent filed a Motion to Dismiss Counts One and Two of the Amended Administrative Complaint. By an Order dated September 26, 1983 the Hearing Officer ruled that the Motion would be carried with the case because the Motion raised evidentiary issues which could not be determined on the existing record. The issues raised in the Motion have been addressed by both parties in their posthearing submissions and the Motion is now denied as explained below in the Conclusions of Law.

At the final hearing both parties presented the testimony of witnesses.

Petitioner offered exhibits 1A-J and 2, which were received into evidence. Respondent offered exhibits 1A-E and 2, which were similarly received into evidence. Subsequent to the final hearing the parties have submitted Proposed Recommended Orders containing proposed findings of fact. They have been given careful consideration here. To the extent that the proposed findings are not included in this Order, they are specifically rejected as being either not supported by the weight of credible admissible evidence, or as being irrelevant to the issues determined here. 1/

FINDINGS OF FACT

1. The Respondent Wilbur A. Sellars is licensed as a residential pool contractor by the Construction Industry Licensing Board through license number RP 0045541. Mr. Sellars was first licensed in 1975. At all times material to this case Respondent has owned and operated in Tallahassee, Florida, a pool contracting company called Pro Pools Service and Supply or Pro Pools, Inc. Cabana Construction

   
   

2. In November 1977 Respondent entered into a contract with Dr. Frank S. Bilek to construct for him a 20' by 40' vinyl lined pool and a 20' by 40' cabana building. The contract price for the pool was $11,166.10. The price for the cabana was $14,517.30. The pool and building were constructed as provided in the contract. The cabana sits on an 800 square foot slab with footings and consists of three separate rooms. One room is a small bathroom containing a lavatory, water closet, and shower. Another room is fully enclosed by finished walls and sliding glass doors. The third room is open on two sides, one of which faces the swimming pool. The walls are typical stud construction with plywood siding on the exterior and half-inch drywall on the interior. The roof is supported by 2/12 2x4 prefabricated trusses with shingles on top. The ceiling inside the cabana is the same as would be found in a residential home and the floor is a cement slab covered by carpet. There is one overhead ceiling fan in the open room and another in the fully enclosed room. For all practical purposes the construction techniques and materials used in the cabana are the same as would be used in a residential dwelling, although they may not meet the code standards which would be applicable to a dwelling in the Killearn residential area where Dr. Bilek's home is located in Tallahassee, Florida.

   
   

3. The cabana is equipped with plumbing for the bathroom and also for a wet bar in the kitchen area of the cabana. No pool accessories were located in the cabana at the time Petitioner's witness inspected the facility, however as with any other structure of its size, pool equipment such as vacuuming hoses, wands, etc., could be placed inside it. The original design for the cabana included large solar panels located on the roof. The purpose of these panels was to provide heating for the swimming pool water. After the panels were installed they malfunctioned and have since been removed from the cabana roof. Typically in home swimming pool installations such panels are placed on house

   roofs or are independently supported by a special structure located near the swimming pool. The swimming pool water recirculation pump and filter for Dr. Bilek's pool were not located inside the cabana in issue, but were located nearby out in the open. The cabana was not designed for the purpose of housing this equipment.

   
   

4. It appears from the furnishings found in the cabana, its orientation with respect to the pool, and from its equipment that the cabana along with the pool coordinate to create a unified entertainment complex. Neither is essential to the other, however. The cabana could host a cocktail party without there being a drop of water in the pool and the pool can function perfectly without the cabana.

   
   

   Criminal Convictions

   
   

5. On May 18, 1979 Respondent sent a work crew to Cairo, Georgia, for the construction of a residential swimming pool for Mr. and Mrs. Vanlandingham. The crew was using a dump truck to haul excavated dirt from the pool site to a dumping site several miles from the Vanlandinghams' residence. An inexperienced driver was operating the truck. Upon arrival at the dumping site he engaged the bed lift to dump the dirt but forgot to release the safety chains. As a result the chassis of the truck broke. Members of the crew called Mr. Sellars to give him the bad news. He instructed them to burn the truck, which they did. Respondent then submitted an insurance claim for the loss of his truck due to an accidental fire. As a result of this false claim he was convicted of insurance fraud as defined in Section 817.234(1)(a), Florida Statutes. He entered a guilty plea and judgment was entered on June 7, 1982.

   
   

6. On the same date Respondent also pled guilty and was convicted on another count of insurance fraud arising from his filing a false claim for the alleged theft of three mobile radios from trucks operated and owned by Pro Pools Service and Supply. The radios had in fact not been stolen.

   
   

7. Since his conviction Mr. Sellars has obtained insurance coverage for the business of Pro Pools including automobile liability, physical damage, general property and general liability insurance.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Section 120.57(1) and Section 455.225(4), Florida Statutes (1981).

   
   

   Scope of License

   
   

9. With respect to the issue of whether or not Mr. Sellars exceeded the scope of his residential pool contractor's license in constructing Dr. Bilek's cabana, Section 468.111(1), Florida Statutes (1977) provides, "It is unlawful for any person to engage in the business or act in the capacity of a contractor without having been duly registered or certified." Section 468.102(1)(k), Florida Statutes (1977) defines a residential pool contractor as any person whose:

   
   

   ... scope of work involves, `but is not limited to, the construction, repair, water treatment, and servicing of all residential swimming

   pools used for therapy, swimming, or other

   use. This work shall include, but not be limited to, layout, excavation, operation of construction pumps for dewatering pur- poses, steelwork, installation of light niches, pouring of floors, guniting, fiber- glassing, installation of tile and copying, installation of all perimeter and filter

   piping, installation of all filter equipment and chemical feeders of any type, plastering of the interior, pouring of decks, installa- tion of housing for pool equipment, and the installation of package pool heaters.

   However, the scope of work of such con- tractor shall not include direct connections to a sanitary sewer system or to potable waterlines.

   
   

   The first question therefore raised by Count Three of the Administrative Complaint which charges Respondent with exceeding the scope of his license, is whether or not the cabana comes within the definition of those facilities which a residential pool contractor is authorized to construct. I conclude that it does not. The cabana is a structure far in excess of merely housing for pool equipment. While the cabana was designed with the intent of supporting the solar panels for heating the swimming pool water, that function was ancillary to the cabana's main purpose of providing an entertainment area coordinating with, but not being essential to, the swimming pool. The cabana's size, type of construction, and the fact that it does not house filters or pumps for the swimming pool indicate that its construction is more than the Legislature intended to authorize for a residential pool contractor. I therefore conclude that the Respondent has exceeded the scope of his license and acted contrary to the provisions of Section 468.111(1), Florida Statutes (1977). That prohibition has been carried forward and appears in Section 489.127(1)(f), Florida Statutes (1981). Respondent is therefore subject to discipline pursuant to Section 489.129(1)(j), Florida Statutes (1981), which provides that the Construction Industry Licensing Board may revoke, suspend, or impose an administrative fine not to exceed $1,000 on any contractor who fails to comply in any material respect with the provisions of Chapter 489, Florida Statutes. 2/

   
   

   Crimes and Contracting

   
   

10. Section 489.129(1)(b), Florida Statutes (1981) provides the same discipline against any contractor who has been convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the practice of contracting or the ability to practice contracting. The issue here, strenuously argued by the parties, is whether or not Mr. Sellars' two convictions for insurance fraud directly relate to the practice of contracting or to his ability to practice contracting.

    
    

11. It is certainly true that on a superficial level Mr. Sellars' fraudulent report of loss of his dump truck by accidental fire and his reporting a theft of radios from trucks used in his pool contracting business certainly relate to the practice of contracting. The crimes arose out of activities he was performing while operating his business. Such a superficial nexus is not sufficient however, under Section 489.129, Florida Statutes to discipline a licensed professional. Certainly it would not be reasonable to discipline Mr. Sellars pool contractor's license for yelling obscenities over one of his truck radios when speaking to a pool installation crew. His use of obscene language

    may be a federal crime contrary to 18 U.S.C. Section 1464, but such a crime would not indicate that Mr. Sellars would be a danger to the public welfare as a pool

    
    

12. There must be therefore some nexus between the crime for which the contractor is convicted and the purpose of Chapter 489, Florida Statutes. That purpose is found in Section 489.101, Florida Statutes (1981) which provides:

    
    

    The Legislature recognizes that the construction and home improvement indus- tries are significant industries. Such industries may pose significant harm to the public when incompetent or dishonest contractors provide unsafe, unstable, or short-lived products or services. There- fore, it is necessary in the interest of the public health, safety, and welfare to regulate the construction industry. (Emphasis added)

    
    

    One of the concerns of the Legislature in regulating the construction industry is to protect the public from dishonest contractors. Mr. Sellars' acts of submitting fraudulent insurance claims were certainly acts of dishonesty. I therefore conclude that they are within the disciplinary scope of the Construction Industry Licensing Board's jurisdiction under Section 489.129(1)(b), Florida Statutes (1981).

    
    

    Statute of Limitations

    
    

13. In his Answer to Petitioner's Amended Administrative Complaint Respondent raised as his first affirmative defense his contention that the allegations of Count Three which relate to the construction of Dr. Bilek's cabana are barred by Section 95.111(3)(f), Florida Statutes (1981). This defense in administrative disciplinary proceedings is without merit. Landes v. Department of Professional Regulation, So.2d , 8 FLW 2611 (Fla. 2d DCA October 26, 1983); Donaldson v. Department of Health and Rehabilitative Services, 425 So.2d 145, 147 (Fla. 1st DCA 1983).

    
    

14. Count Four of the Amended Administrative Complaint alleges that Respondent is subject to discipline pursuant to Section 489.129(1)(m), Florida Statutes (1981). Under that paragraph discipline is required "upon proof and continued evidence that the licensee is guilty of fraud or deceit or of gross negligence, incompetence, or misconduct in the practice of contracting." For the reasons stated above relating to Respondent's criminal convictions he has been guilty of fraud in the practice of contracting. The allegations of Count Four are therefore proven here.

    
    

    Appropriate Penalty

    
    

15. Other than the transgressions of Mr. Sellars in making the two false insurance claims and exceeding the scope of his license by constructing Dr. Bilek's cabana, no evidence was presented that Mr. Sellars has otherwise violated the provisions of Chapter 489, Florida Statutes, at any time. The construction of Dr. Bilek's cabana, while in excess of Respondent's authority, is an act six years old. For this violation an administrative fine in the amount of $200 is appropriate. Respondent'5 submission of false insurance claims are violations of more significance. They create an inference that

Respondent may not be honest and truthful in dealing with members of the public who may seek out his pool construction services. For this reason a suspension of Respondent's license for a period of three months is required.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Construction Industry Licensing Board enter a Final Order finding the Respondent Wilbur A. Sellars guilty of Counts One, Two, Three and Four in the Amended Administrative Complaint and impose discipline in the form of an administrative fine of $200 and suspending Respondent's license as a residential pool contractor for a period of three months.

DONE and RECOMMENDED this 23rd day of December, 1983, in Tallahassee, Florida.

MICHAEL P. DODSON

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 23rd day of December, 1983.

ENDNOTES

1/ Sonny's Italian Restaurant v. Department of Business Regulation, 414 So.2d 1156, 1157 (Fla. 3d DCA 1972); Sierra Club v. Orlando Utilities Commission, 436

So.2d 383 (Fla. 5th DCA 1983).

2/ For a discussion of carrying forward disciplinary provisions into new statutes as was done here, see Solloway v. Department of Professional Regulation, 421 So.2d573 (Fla. 3d DCA 1982).

COPIES FURNISHED:

Douglas A. Shropshire, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

William W. Corry, Esquire

518 North Calhoun Street Post Office Box 527 Tallahassee, Florida 32301

James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2

Jacksonville, Florida 32202

Dean Bunch, Esquire ERVIN, VARN, JACOBS,

ODOM & KITCHEN

Post Office Box 1170 Tallahassee, Florida 32302

Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 83-001510

Orders for Case No: 83-001510