STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

v. ) CASE NO. 84-3766

)

CHARLES HITCHENS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William R. Cave held a public hearing in the above- styled cause on January 29, 1985 in New Port Richey Florida.

APPEARANCES

For Petitioner: H. Reynolds Sampson, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Gerald A. Figurski Esquire

Post Office Box 786

New Port Richey, Florida 33552

By Administrative Complaint dated September 5, 1984, but filed with the Division of Administrative Hearings on October 29, 1984, Petitioner seeks to revoke, suspend or otherwise discipline the license of Thomas Charles Hitchens as a certified and registered pool contractor in the State of Florida. As grounds therefor it is alleged: (1) that respondent made misleading or untrue representations in the practice of his profession and thereby violated Section 489.129(1)(c) and Section 455.227(1)(a) Florida statutes; (1981); (2) that respondent willfully or deliberately disregarded and violated the applicable building codes or laws of the state or municipality or county thereby. violating Section 489.129(1)(d), Florida Statutes, (1981); and (3) that respondent diverted funds received for completion of a specified construction project and thereby violating Section 489.129(1)(h), Florida Statutes, (1981).

In support of the charges, Petitioner presented the testimony of Thomas Charles Hitchens, Charles R. Storms, R. H. Gore, Phillip Klein, Andy Faza, Edward Kerstein, and Maureen Elizabeth Kerstein. Petitioner's Exhibits Nos. 1 through 10 were into evidence.

Respondent Thomas Charles Hitchens testified on his own behalf. Respondent's Exhibits Nos. 1 through 3 were received into evidence.

There were no pending motions to be considered at the time of the hearing. At the hearing, the Administrative Complaint was amended to correct paragraph 11 of Count III to change the word "given" in the third sentence of that paragraph to "delivered."

The parties submitted posthearing proposed findings of fact and conclusions of law pursuant to Section 120.57(1)(b)(4), Florida Administrative Code (Supp.

1984). A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial or unnecessary.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts were found:

1. At all times material to these proceedings Respondent was licensed by the State of Florida as a certified pool contractor, licensed No. CP C025535 and registered pool contractor, License No. RP 0041301.

   
   

2. On June 7, 1983, Respondent entered into a Contract (Contract) with Edward and Maureen Kerstein (Kersteins) of 283 Islander Lane, Hudson, Florida, under which a pool was to be constructed on the Kersteins' property for a contract price of $7,777.00. The Contract was later amended by a letter, signed by Respondent and dated July 15, 1983, providing a penalty of $50.00 per day to be deducted from the balance due on the contract price if Respondent failed to complete the pool by July 23, 1983.

   
   

3. Respondent obtained building permit No. 34342 on June 15, 1983, in the name of Crystal Clear Pool for the construction of the Kersteins' pool from the Pasco County Building Division.

   
   

4. The pool steel inspection was called for and approved on July 8, 1983 and the pool bonding inspection was called for and approved on July 18, 1983. No other inspections were called for by the Respondent and the Respondent did not request an extension of time on the building permit. Therefore, on January 18, 1984, as required by the Standard Building Code of Pasco County, the permit lapsed and was invalid. However for reasons that are not clear in the record Vern Rossky, Building Inspector, Pasco County Building Division, made a final inspection of the Kersteins' pool (Permit No. 34342) on June 28, 1984 and approved the pool. Ordinarily the contractor would call for the final inspection or if the permit had lapsed or was invalid then the Pasco County Building Division would contact the contractor in order to finalize the permit. However, the record is clear that Respondent's intent was to leave the permit open due to the problems with completing the pool and satisfying the Kersteins.

   
   

5. Although problems with the pool still existed, the pool was substantially completed in August, 1983 and the Kersteins used the pool in late summer 1983 (August) and the summer of 1984. The pool was operational in August of 1983.

   
   

6. The respondent has received $7,055.05 for his work on the construction of the pool under the Contract with the Kersteins.

7. While the Contract did not specify which side yard Respondent was to have access through for construction of the pool, the testimony of both the Respondent and the Kersteins was that it was the west side yard. However, the record reflects that the Kersteins gave either an expressed or implied approval for the use of the east side yard.

   
   

8. All of the shrubbery, with the exception of the shrubbery that was part of the Contract, has been properly replaced and the clothesline has been replaced.

   
   

9. The evidence was insufficient to show that the cracks which occurred in the house some 3-6 months after the pool construction was caused by the equipment being brought in on the east side of the house.

   
   

10. Although Edward Kerstein's testimony was that an expert had not looked at the damage caused by the alleged water seepage around the electrical conduit pipe installed by the Respondent, his testimony that he had identified the Respondent's failure to caulk around the conduit pipe as the reason for the water seepage which resulted in damage to the carpet and speakers went unrebutted and was credible. However, Respondent was not made aware of this problem until the summer of 1984, almost a year later.

    
    

11. The record is clear on the following: (a) that the tile placed around the top edge of the pool by Respondent was defective; (b) that there were several acceptable methods of replacing the defective tile; (c) that there were differences of opinion as to which method should be used in this situation; (d) that the reglazing over the existing tile was not an acceptable method; (e) that the pool would have to be drained to replace the defective tile; (f) that the Kersteins did not want to tile over the existing defective tile; (g) that the Respondent and Drew Tile Supply Company (Drew), the supplier of the defective tile, agreed on the method of cutting the tile away from the bull nose cap and replacing just the tile and based on this agreement; Drew delivered a check to Respondent in the sum of $823.75 ($700 for labor and $123.75 for tile) made payable to Crystal Clear Pools and Phil Klein, the subcontractor who had installed the defective tile; (h) that the Respondent, as President of Crystal Clear Pools assigned Crystal Clear Pools' interest in the check to Phil Klein provided the work on the defective tile in the Kersteins' pool commenced no later than February 1, 1984; (i) that Phil Klein endorsed and cashed the check with the knowledge of the assignment; and Phil Klein's testimony that even though the assignment was on the check at the time he endorsed and cashed the check the Respondent told him that the money was a partial payment of another job is just not credible; (j) the more credible evidence is that Respondent assigned the check to Phil Klein for labor and tile to replace the defective tile on the Kersteins' pool and there was no intent by Respondent to divert these funds to another job; (k) that the Kersteins' had not agreed to the method of replacing the defective tile which was part of the agreement between the Respondent and Drew; (1) that Drew had agreed that if the method selected was not satisfactory, then Drew would make it right; (m) that the problem with the drain in the pool, the filtering system, the telescoping rod, the damage to the air conditioning controls on the house, the failure to put tile chips on pool steps and the damage to the underground wire, were legitimate problems and it was Respondent's intent to correct all by the time the pool was drained to replace the defective tile; (n) that the Kersteins understood this when they agreed to allow Respondent to wait until the winter of 1984 to correct these problems because they were already using the pool in the latter part of the summer of 1983 and did not want to drain it at that time; (o) that none of these problems had been corrected due to the failure of both the Respondent and Drew

    to reach an agreement with the Kersteins on how both the defective tile problem and the other problems were to be resolved and; (p) that there had been continuous negotiations between either the Respondent and the Kersteins or Drew and the Kersteins concerning the settlement of this problem.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 489.129, Florida Statutes, (1981), empowers the Construction Industry Licensing Board to revoke, suspend or otherwise discipline the license of Respondent if he is found to be guilty of any one of those enumerated acts listed in Section 489.129, Florida Statutes, (1981).

    
    

13. The Administrative Complaint charges the Respondent with three basic violations of Section 489.129, Florida Statutes, (1981).

    
    

    1. Count I charges Respondent with violation of Section 455.227(1)(a), Florida Statutes, (1981) in that he made misleading or untrue representations in the practice of profession and thereby violated Section 489.129(1)(c), Florida Statutes, (1981).

       
       

    2. Count II charges Respondent with a willful or deliberate disregard and violation of the applicable building code in that he failed to obtain a final inspection of the pool Standard Building Code as adopted by Pasco County Board of County Commissioners, Pasco County Ordinance No. 82-825 thereby violating Section 489.129(1)(d), Florida Statutes, (1981).

       
       

    3. Count III charges Respondent with violation of Section 489.129(1)(h), Florida Statutes (1981) in that he diverted funds received for completion of a specified construction project.

       
       

14. Section 489.129(1)(c), Florida Statutes (1981), provides that the violation of Chapter 455, Florida Statutes shall serve as a ground for discipline by the Board. Section 455.227(1)(a), Florida Statutes (1981), provides as follows:

    
    

    1. The Board shall have the powers to revoke suspend or deny the renewal of the license, or to reprimand, censor, or otherwise discipline a licensee if the Board finds that:

       
       

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

    
    

15. While the testimony of all the witnesses, including the Respondent, was that the problems with the defective tile, the drain, the filter system the tile chips on the pool steps, the failure to provide an acceptable telescope cleaning rod, the water seepage damage, the underground cable and the air conditioner control panel on the outside of the house have not been corrected, the Administrative Complaint did not charge Respondent with the failure to correct these problems but charged him with misleading deceptive untrue or fraudulent representation in regard to these problems or the construction of the pool.

16. Although the construction of the pool and the resolution of the problems attendant to the construction of the pool may have not been as expeditious as the Kersteins anticipated, there was no showing that Respondent had made misleading, deceptive, untrue or fraudulent representations to the Kersteins.

    
    

17. The Petitioner has failed to show that Respondent violated Section 455.227(1)(a), Florida Statutes, (1981) and thereby violated Section 489.129(1)(c), Florida Statutes, (1981), and, therefore has failed to meet its burden to prove Respondent is guilty of the violation charged in Count I of the Administrative Complaint.

    
    

18. Section 489.129(1)(d), Florida Statutes (1981) provides as grounds for discipline:

    
    

    Willful or deliberate disregard and violation of the applicable building codes or laws of the state or of any municipalities or counties thereof.

    
    

19. The applicable building code which Respondent is alleged to have willfully or deliberately disregarded and violated is the Standard Building Code as adopted by the Pasco County Board of County Commissioners, Pasco County Ordinance No. 82-25 which requires the person obtaining the permit to obtain some kind of legal inspection at least once every six (6) months or request an extension in writing to keep the permit active. Otherwise the permit lapses and becomes invalid. While the Respondent intended to keep the permit open or active, he failed to call for a legal inspection within (6) months after the last legal inspection on July 18, 1983 and also failed to request a ninety (90) day extension of the permit in writing. Therefore, the Respondent has violated Section 108.2(c) of the Standard Building Code as adopted by Pasco County Board of County Commissioners, Pasco County Ordinance No. 82-25.

    
    

20. In addition to showing a violation of the applicable building code, the Petitioner has to show that such violation was willful or deliberate. Here the evidence was that Respondent intended to keep the permit active so that he could correct the problems before the final inspection and that had he called for a final inspection in August of 1983, upon substantial completion of the pool, the pool would not have passed inspection by the Building Inspector due to the Kersteins' dissatisfaction with the pool. The fact that Respondent and the Kersteins agreed to extending the time for correcting the problems but later not being able to agree on the method of correcting the problems or agree on which problems were Respondent's responsibility to correct, does not constitute a willful or deliberate violation of the building code.

    
    

21. Petitioner has failed to show that Respondent violated Section 489.129(1)(d), Florida Statutes, (1981), and, therefore, has failed to meet its burden to prove Respondent guilty of the violation charged in Count II of the Administrative Complaint.

    
    

22. Section 489.129(1)(h), Florida Statutes, (1981) provides as grounds for discipline:

    
    

    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 of his obligation or contract.

    
    

23. Petitioner has failed to show that Respondent has diverted any funds or property received for the completion of the pool or that Respondent will be unable to fulfill the terms of his obligation or contract. Therefore Petitioner has failed to show a violation of Section 489.129(1)(h), Florida Statutes, (1981), and therefore has failed to meet its burden to prove Respondent guilty of the violation charged in Count III of the Administrative Complaint.

RECOMMENDATION

Based upon the findings of fact and conclusions of law cited herein it is RECOMMENDED that the Board enter a final order finding the respondent not guilty of the violations charged in Count I, Count II, and Count III of the Administrative Complaint and that Counts I, Count II and Count III of the Administrative Complaint be DISMISSED.

Respectfully submitted and entered this 10th day of July, 1985 in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

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 10th day of July, 1985.

COPIES FURNISHED:

Douglas A. Shropshire, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Gerald A. Figurski Post Office Box 786

New Port Richey, Florida 33552

Mr. James Linnan Executive Director

Department of Professional Regulation

Construction Industry Licensing Board

Post Office Box 2 Jacksonville, Florida 32202

Mr. Fred Roche Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore A. Carpino General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 84-003766

Orders for Case No: 84-003766