STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA CONSTRUCTION INDUSTRY ) LICENSING BOARD, DEPARTMENT OF ) PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2362

)

LAURA H. EUBANKS, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter, after due notice, on November 4, 1983, at Tallahassee, Florida, before Thomas C. Oldham, Hearing Officer.

APPEARANCES

For Petitioner: Stephanie A. Daniel, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Laura H. Eubanks, pro se

1421 North Monroe Street Tallahassee, Florida 32303

ISSUE PRESENTED

Whether Respondent's license as a registered pool contractor should be suspended or revoked or the licensee otherwise disciplined, for alleged violations of Chapter 489, Florida Statutes, as set forth in the Amended Administrative Complaint.

This proceeding arises out of Respondent's alleged failure to remedy defects in a swimming pool that she built in 1981 which resulted in disciplinary action by the Leon County Contractor's Licensing and Examination Board; for failing to remedy defects in another pool that she built in 1981 whereby she allegedly made fraudulent representations and failed to honor a warranty; and for constructing a pool in 1982 after her Certificate of Competency had been revoked by the Leon County Contractor's Licensing and Examination Board.

Respondent appeared at the hearing without counsel, and was thereupon advised of her rights and the procedures applicable to an administrative proceeding. She indicated that she understood such rights and elected to represent herself.

At the hearing, Petitioner presented the testimony of nine witnesses and submitted 22 exhibits in evidence. Respondent testified in her own behalf, but did not submit any documentary evidence.

Petitioner's Proposed Recommended Order has been fully considered, and those portions thereof not adopted herein are considered to be either unnecessary, irrelevant, or unsupported in law or fact, and are specifically rejected.

FINDINGS OF FACT

1. Respondent Laura H. Eubanks is a state registered commercial pool contractor who operates Eubanks Company Big Bend Pool Builders, Tallahassee, Florida. She was originally licensed in 1975 and remained licensed at all pertinent times relative to this proceeding, but her license was in a delinquent status as of July 1, 1983. (Petitioner's Exhibit 1)

   
   

2. On May 2, 1981, Respondent entered into an agreement with Thomas V. and Barbara J. Mulqueen, Jr., 6719 Johnston Loop, Tallahassee, Florida, for the sale and installation of a swimming pool at their residence for the amount of

   $6,725.63. On September 22, 1981, Mr. Mulqueen filed a complaint against Respondent with the Leon County Contractors Licensing and Examination Board.

   Mr. Olin Williams, Supervisor of Inspections for the Board, investigated the complaint and found that staples were protruding underneath the pool liner, that a water pipe leaked at the pump, apron or deck concrete cracks were caused by curing tension at inside corners, about 35 percent of the concrete deck was darker in color than the remainder of the deck, an improperly placed outlet for the pool drain permitted seepage under the pool liner, and that repairs to a neighbor's fence and the owner's driveway had not been completed. He classified those discrepancies as pertaining to workmanship. In addition, he determined that there had been a violation of the health code in that a septic tank had been broken by workmen and waste sewage had flowed into the pool excavation for a period of several days. The owner was seeking to have Respondent correct the problems and complete the job. Inspector Williams contacted the Respondent on October 12, 1981, and, although she told him that she would come to his office that day and bring the individual responsible for the job, she failed to do so. No final inspection of the work had been requested by Respondent. (Testimony of Williams, Petitioner's Exhibit 4)

   
   

3. By letter dated November 12, 1981, Respondent was advised by the Leon County Contractors Licensing and Examination Board that a formal hearing had been scheduled on the complaint for December 3, 1981. A copy of the complaint and the Building Inspector's Report was enclosed, and she was advised of her right to be represented by counsel at the hearing. In fact, the hearing by the Board was held on December 4, 1981, at which the Mulqueens were present and presented their complaint, and Inspector Williams informed the Board of his investigation and subsequent actions. Respondent was not present at the hearing, although the certified mail receipt reflected the signature of "L. H. Eubanks." At the December 4th meeting, the Board voted to suspend Respondent's license with the provision that the Board would not consider reinstatement unless repairs to the Mulqueen pool were made within thirty days after December 9, 1981, and if not, then the Board would consider permanent revocation. (Petitioner's Exhibits 5-6)

   
   

4. By letter of January 12, 1982, the Board advised Respondent of the suspension of her license as a result of a hearing held on December 3, 1981. (No explanation was provided by Petitioner as to the discrepancy in the minutes

   of the Board meeting which reflected a date of December 4, 1931, and the letters sent to Respondent which stated that the hearing had been held on December 3, 1981.) Respondent was advised in the letter that the Board would not consider any application for reinstatement of Respondent's license unless repairs were effected to the Mulqueen pool within thirty days from receipt of the letter.

   She was further advised that if they had not been so completed, the Board would consider permanent revocation of her license, but if they had been completed within the required time, the Board would consider a written application for reinstatement at its meeting scheduled for January 28, 1982. This letter was hand delivered to Respondent's place of business on January 18, 1982. On January 20, 1982, Respondent telephoned Inspector Williams and stated that she would seek legal counsel and be at the Board meeting on January 28. She indicated to him that she had had some personal problems due to the illness of her sisters, and also had been the subject of theft (although a memo of Williams reflecting the telephone call was dated January 20, 1981, it was apparent from his testimony that the call was made on January 20, 1982.) (Testimony of Williams, Petitioner's Exhibits 7, 18)

   
   

5. The Licensing Board met on January 28, 1982, and determined that Respondent's license would be revoked on February 26, 1982, if the previously noted defects had not been corrected. By letter dated February 3, 1982, she was advised by the Board of this fact and that the Board would meet again on February 25 concerning the matter. On February 25, the Board revoked Respondent's license. She was not present at the meeting. She was advised of this action by Letter of the Board, dated March 4, 1982. (Petitioner's Exhibits 2, 8-10)

   
   

6. By contract dated July 15, 1981, Respondent agreed to install a swimming pool for Mr. and Mrs. Rex Tyler at their residence in Tallahassee, Florida, for the sum of $23,784.91. The project included installation of aluminum fencing and a brick wall, together with various items of pool equipment. The agreement provided that the contractor would remedy any defects in workmanship without cost, provided written notice was provided within one year after connection of the filter. After the pool was built and paid for by the Tylers, it was found that several problems existed. A pool light continuously went on and off improperly, the motor of the pool sweep leaked, the bottom drain was not adequately secured and would be knocked off by operation of the pool sweep, step tiles were not complete, one tile popped loose, and water faucets leaked. The primary problem, however, was that the main drain would not circulate water on the bottom of the pool. The Respondent was notified of these problems by the owners and repaired some of them over the course of time, but was unable to fix the pool light or the main drain. In this regard, Respondent called upon Walter Swans, another licensed pool contractor, who determined that both the light and the drain were stopped up with "marble" finish. The Tylers were obliged to spend $312.74 to pay Swann's bill and for a plumber to repair the leaking faucets. (Testimony of McCausland, A. Tyler, Clemens, Swann, Petitioner's Exhibits 21-23)

   
   

7. By agreement dated May 28, 1982, Respondent contracted with Charles and Brenda Short for the installation of a swimming pool at 3249 Baldwin Drive West, Tallahassee, Florida, for a price of $6,809.20. During the course of construction, Mr. Short inquired of Respondent as to the need for a building permit. She initially told him that she would get one, but later when Short asked her again about the matter, she told him that if he didn't want one it would be all right with her because otherwise it would hold up completion of the pool. Short told her that that was all right with him. He was not familiar with permit requirements. After the walls of the pool had been finished, heavy

   rains caused the sides of the pool to partially collapse. Inspector Williams was notified of the problem and he found that the work was being done without the required permit. He therefore posted a stop work order at the construction site. On September 1, 1982, Respondent entered a plea of nolo contendere to a charge of contracting without a license in violation of Section 489.127(1)(f), Florida Statutes, in the Leon County Court, Case No. 82MM2702. The Court withheld adjudication of guilt and imposition of sentence and placed the Respondent on probation for a period of six months. The Shorts had paid Respondent a total of $4,000 on the contract price at the time work was stopped on the pool project. They eventually settled the matter with Respondent by agreement. (Testimony of Brenda Short, Charles Short, Courtney, Williams, Petitioner's Exhibits 12, 19-20)

   
   

8. In a civil proceeding filed by the Mulqueens against Respondent in the Leon County Circuit Court, Case No. 82-68 the parties entered into a joint stipulation of settlement under which Respondent agreed by promissory note to pay the Mulqueens the sum of $2400 with interest by 24 monthly payments of

   $100.00 commencing January 1, 1983. On January 27, 1983, the Leon County Contractors Licensing Examination Board reinstated Respondent's license, subject to a 12 month probationary period. By letter October 24, 1983, Mr. Mulqueen advised the County Building Inspector that Respondent had only made two payments on the settlement agreement as of March 1983. (Testimony of Courtney, Petitioner's Exhibits 13-16)

   
   

9. Section 2C, Leon County Ordinance No. 74-22, provides that its Contractors Licensing and Examination Board has the duty to suspend or revoke "authorized contractor" certificates for violation of the ordinance, violation of the County Building and Zoning Codes, or violation of any other state, municipal, or county law upon due cause shown to the Board after a hearing. Section 1E provides that the Board must provide the certificate holder with written notice of its intent to consider the revocation or suspension of the certificate, and afford him a hearing before the Board, and that all decisions concerning suspension of revocation of certificates shall be in writing. (Petitioner's Exhibit 17)

   
   

10. Respondent testified at the hearing that she had had continuing financial problems commencing a number of years ago when some of her employees were building pools "on the side" with her materials. During the time that problems arose in connection with the Mulqueen and Tyler pools, she was preoccupied with serious personal problems involving her sisters, one of whom died of cancer and the other having been in a mental hospital. She acknowledged that she should have corrected the customer complaints and regrets that she did not do so. Respondent further stated that although she attempted to pay her note to the Mulqueens, her financial situation was such that she was unable to continue meeting the payments. Although she received notice of the various hearings before the Leon County Contractors Licensing and Examination Board, she testified that she had not been thinking of the consequences and didn't even read the letters of notification which were sent to her. She also acknowledged entering into the contract with the Shorts because she was "desperate" for money to pay her various creditors. (Testimony of Eubanks)

    
    

    CONCLUSIONS OF LAW

    
    

11. Petitioner seeks to discipline Respondent's license as a registered pool contractor under applicable provisions of Chapter 489, Florida Statutes.

12. As to the Mulqueen pool, Petitioner alleges that Respondent should be disciplined under the provisions of subsection 489.129(1)(i), Florida Statutes, which provides as grounds for discipline:

    
    

    1. Disciplinary action by any municipality or county, which action shall be reviewed by the State Board before the State Board takes any disciplinary action of its own.

       
       

       The evidence establishes that the Leon County Contractors Licensing and Examination Board revoked Respondent's pool contractors certificate on February 25, 1982, for her failure to correct deficiencies in the construction of the Mulqueen pool. Respondent was provided adequate notice of the hearing before that Board and elected not to appear and defend herself. It having been shown that the procedures established by county ordinance were adhered to by the Board, it is concluded that such disciplinary action provides a valid ground for discipline by the State Board with regard to Respondent's license. The fact that the local Board later reinstated Respondent's certificate on a probationary basis does not negate the original disciplinary action.

       
       

13. As to the Tyler's pool, Petitioner alleges that Respondent should be disciplined under the provisions of subsection 489.129(1)(c), Florida Statutes, in that she failed to comply with the provisions of Chapter 489 when she made fraudulent representations and failed to honor a warranty, contrary to the provisions of subsection 455.227(1)(a), Florida Statutes. The latter provision states as follows:

    
    

    455.227 Grounds for Discipline; penalties; enforcement.--

    1. The board shall have the power to revoke, suspend, or deny the renewal of the license, or to reprimand, censure, or otherwise dis- cipline a licensee, if the board finds that:

       1. The licensee has made misleading, deceptive, untrue, or fraudulent representations in the practice of his profession; . . .

    
    

    Petitioner's sole basis for the alleged violation of the above provision is that Respondent's contract with the Tylers contained a one-year warranty on workmanship, and that Respondent failed to correct problems with the pool drain and pool light to the point where the Tylers had to employ another pool contractor to correct them. These allegations and the facts adduced at the hearing fall far short of establishing that Respondent made fraudulent representations in the practice of her profession. The fact that a contractor fails to honor a warranty on workmanship certainly may give rise to a civil action for breach of contract, but does not involve misconduct or deceptive practice without some additional affirmative act or statement by the contractor. See Fleishman v. Department of Professional Regulation, So.2d (Fla. 3rd DCA 1983), 8 FLW 2673, Case No. 83-1081, opinion filed November 8, 1983.

    
    

14. Finally, Petitioner has alleged that Respondent violated subsection 489.129(1)(d) by willfully or deliberately disregarding and violating local building codes in connection with the Short pool. Also, it is alleged that she violated subsection 489.129(1)(j), Florida Statutes, by failing to comply with the provisions of Chapter 489, when she practiced contracting in a county where she had not complied with all the local licensing requirements, in violation of Section 489.117(2), Florida Statutes. The evidence shows that Respondent did

    not have a valid county pool contractors certificate at the time she contracted with Charles and Bernice Short on May 28, 1982, to construct their pool, and thereby violated Leon County Ordinance 74-22, which prohibits a contractor from contracting in the county without a current certificate. Respondent was aware that her certificate had been revoked at the time she contracted with the Shorts, and therefore it is clear that she deliberately violated the County Ordinance in violation of subsection 489.129(1)(d), Florida Statutes. Her actions in this regard were also in violation of subsection 489.117(2), and thus Section 489.129(1)(j), Florida Statutes.

    
    

15. In assessing an appropriate penalty for Respondent's derelictions, it should be noted that her problems arose primarily from neglect rather than intentional wrong-doing, except in the instance where she knowingly contracted without a local certificate. On the other hand, although she was undoubtedly experiencing financial and personal problems during the period in question, it was incumbent upon her to take the action necessary to comply with her duties as a contractor. It is determined that, under the total circumstances, her state registration should be suspended for a period of three months.

RECOMMENDATION

That the Construction Industry Licensing Board enter a final order suspending the registration of Respondent Laura H. Eubanks as a pool contractor for a period of three months.

DONE and ORDERED this 29th day of December, 1983, in Tallahassee, Florida.

THOMAS C. OLDHAM

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 29th day of December, 1983.

COPIES FURNISHED:

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

Jacksonville, Florida 32202

Stephanie A. Daniel, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Laura H. Eubanks

1421 North Monroe Street Tallahassee, Florida 32303

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. CASE NOS. 21738, 20754,

25386

LAURA H. EUBANKS DOAH CASE NO. 83-2362

737 North Monroe Street Tallahassee, Florida 32303

Respondent.

/

ORDER

Respondent, Laura H. Eubanks, holds Florida license No. RP 0025942 as a registered pool contractor. Petitioner filed an Administrative Complaint seeking suspension, revocation, or other disciplinary action against the license.

Respondent requested a formal hearing and one was held before the Division of Administrative Hearings. A Recommended Order has been forwarded to the Board pursuant to Section 12057(1), F.S.; it is attached to and made a part of this Order.

The Construction Industry Licensing Board met on February 9, 1984, in Miami, Florida, to take final agency action. The Petitioner was represented by Douglas Shropshire, Esquire. The Respondent was not represented. The Board has reviewed the entire record in the case.

The Board adopts the Findings of Fact and Conclusions of Law of the Recommended Order.

Based upon its review of the record, the Board imposes a more appropriate penalty as follows:

The license of Laura H. Eubanks is hereby REVOKED.

The Board may relicense the Respondent upon her showing that she has

1. either passed the State licensing exam- ination for certification as a pool contractor

   or a local, written examination demonstrating competence as a pool contractor, and

2. has made restitution to Thomas Mulqueen by satisfying her note to him in the amount of $2,400.00, dated December 13, 1982.

Within thirty days the Respondent shall return her license to the Board Office, Post Office Box 2, Jacksonville, Florida 32201, or shall surrender her license to an investigator of the Department of Professional Regulation.

DONE AND ORDERED in Jacksonville, Florida, this 17th day of February, 1984.

FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD

Henry Bachara, Chairman

Docket for Case No: 83-002362

Orders for Case No: 83-002362