STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) Case No. 85-2538

)

GEORGE W. BOUKATER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a public hearing in the above-styled case on January 10, 1986, at Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Errol H. Powell, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: George W. Boukater, pro se

431 Vicksburg Terrace Plantation, Florida 33325

PRELIMINARY STATEMENT

By administrative complaint filed July 31, 1985, Petitioner, Department of Professional Regulation, Construction Industry Licensing Board (Department), seeks to discipline the Respondent, George W. Boukater, a registered pool contractor and certified general contractor. The complaint charges that Respondent abandoned a construction project and was guilty of negligence, incompetence, or misconduct by failing to adequately supervise the construction activity.

At final hearing Petitioner called George W. Boukater, Susan Marchitello, Loretta Hunley, and Michael J. Donohue, as

witnesses. Petitioner's Exhibits 1-11 were received into evidence. Respondent testified on his own behalf.

The transcript of hearing was filed January 16, 1986. The parties were granted leave through January 27, 1986, within which to file proposed findings of fact and conclusions of law. No proposed findings were filed on behalf of either party.

FINDINGS OF FACT

1. At all times material hereto Respondent, George W. Boukater, was a certified general contractor, license number CG C012598, and a registered pool contractor, license number RP 0032042. Respondent was the qualifier for Swimming Pools by M.J. Donohue, Inc. (Donohue), under license number RP 0032042, from February 1979 until June 30, 1985.

   
   

2. On July 29, 1984 Donohue contracted to construct a swimming pool at the residence of Ms. Loretta Hunley in Fort Lauderdale, Florida, for the sum of $6,400.00. Respondent, on behalf of Donohue, applied for and received the building and plumbing permits for the pool. Apart from securing the permits, Respondent had no contact with the job and never inspected its progress.

3. By August 30, 1984, Donohue had substantially completed the pool. All that remained to be done was to marcite the pool, hook up the pool light and plumbing, and install the pumps. However, before these items could be completed it was necessary that the area surrounding the pool be backfilled, the patio poured, and the electric installed.

   
   

4. Under the July 29, 1984 contract Ms. Hunley did not contract with Donohue for any patio, electric or fence work. She expressly retained responsibility for that work in an effort to save money on the pool construction.

   
   

5. The area surrounding the pool was not backfilled and the patio slab approved by the Broward County Building and Zoning Department (County) until September 14, 1984. As of September 5, 1985, the fence work was still in violation of the County code. The electric work received the County's final approval on January 8, 1986.

   
   

6. In October 1984 demands were exchanged between Ms. Hunley and Donohue. Ms. Hunley demanded that the pool be completed. Donohue demanded adequate electrical service so the pool could be pumped and cleaned for marciting, and dates when someone would be available at the premises.

7. In November 1984 Donohue got its pumps in operation, however Ms. Hunley disconnected them in the evenings. Consequently, the pool could not be drained and cleaned to marcite it. In November 1984 Ms. Hunley ejected Donohue from the job site. Subsequently, Ms. Hunley and Donohue formally settled their dispute.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

9. The allegations in this case are that Respondent violated Section 489.129(1)(k) and (m), Florida Statutes. That section provides in pertinent part:

   
   

   1. The board may revoke, suspend, or deny the issuance or renewal of the certificate or registration of a contractor and impose an administrative fine not to exceed $5,000, place a contractor on probation, or reprimand or censure a contractor if the contractor, or if the business entity or any general partner, officer, director, trustee, or member of a business entity for which the contractor is a qualifying agent is found guilty of any of the following acts:

      * * *

      
      

      (k) Abandonment of a construction project in which the contractor is engaged or under contract as a contractor. A project is to be considered abandoned after 90 days if the contractor terminates the project without notification to the prospective owner and without just cause.

      
      

      * * *

      
      

      (m) Upon proof that the licensee is guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.

      
      

10. The burden is upon Petitioner to establish its case by competent substantial evidence. See: Robinson v. Florida Board of Dentistry, 447 So. 2d 930 (Fla. 3d DCA 1984), Bowling v.

    Department of Insurance, 394 So. 2d 165 (Fla. 1st DCA 1981). Petitioner has failed in its burden of proof.

    
    

11. Donohue did not abandon the construction project, it was ejected by Ms. Hunley. The record is devoid of any proof that Respondent's failure to supervise the project constituted "... gross negligence, incompetency or misconduct in the practice of contracting." See: Purvis v. Department of Professional Regulation, 461 So. 2d 134 (Fla. 1st DCA 1984).

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

RECOMMENDED that a Final Order be entered dismissing the Administrative Complaint with prejudice.

ENTERED this 31st day of January, 1986, at Tallahassee, Florida

WILLIAM J. KENDRICK, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 1986.

COPIES FURNISHED:

Errol H. Powell, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

George W. Boukater

431 Vicksburg Terrace Plantation, Florida 33325

James Linnan, Executive Director Construction Industry

Licensing Board Department of Professional

Regulation

Post Office Box 2 Jacksonville, Florida 32202

Fred M. Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore A. Carpino, Esquire General Counsel

Department of Professional Regulation·

130 North Monroe Street Tallahassee, Florida 32301

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

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

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. CASE NO. 53401

DOAH CASE NO. 85-2538

GEORGE W. BOUKATER,

License No. RP 0032042,

Respondent.

/

FINAL ORDER

THIS MATTER came before the Construction Industry Licensing Board pursuant to Section 120.57(1)(b)(9), Florida Statutes, on June 12, 1986, in Pensacola, Florida for consideration of the Recommended Order (a copy of which is attached hereto and incorporated herein by reference) issued by the hearing officer in the above styled case. The Petitioner was represented by Douglas A. Shropshire. The Respondent was neither present nor represented by counsel.

Upon consideration of the hearing officer's Recommended Order, including the exceptions filed and the arguments of the parties and after a review of the complete record in this matter, the Board makes the following findings:

FINDINGS OF FACT

1. The hearing officer's findings of fact are hereby approved and adopted.

   
   

2. There is competent, substantial evidence to support the hearing officer's findings of fact.

CONCLUSIONS OF LAW

1. The Board has jurisdiction of this matter pursuant to the provisions of Section 120.57(1), and Chapter 489, Florida Statutes.

   
   

2. The hearing officer's conclusions of law, are hereby approved and adopted, with the following exception:

   
   

3. The Board rejects the Conclusions of Law set forth in the last sentence of paragraph 4 of that portion of the Recommended Order for the reasons set forth in Petitioner's exceptions to the Recommended Order filed in this matter which is hereby adopted and fully incorporated by reference.

   
   

4. The Hearing Officer's recommendation with regard to penalty is hereby rejected as inappropriate in light of the above stated Conclusions of Law.

   
   

5. There is competent substantial evidence to support the Board's findings and conclusions.

WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED:

Respondent shall pay an administrative fine in the amount of

$1,000.00 to the Florida Construction Industry Licensing Board. Said fine shall be paid within 30 days.

To assure payment of the fine, it is further ordered that all of Respondent's licensure to practice contracting shall be suspended with the imposition of the suspension being stayed for

30 days. If the ordered fine is paid within that 30 day period, the suspension imposed shall not take effect. Upon payment of the fine after the 30 days, the suspension imposed shall be lifted. If the licensee does not pay the fine within said period, then immediately upon expiration of the stay, he shall surrender his licensure to the investigator of the Department of Professional Regulation or shall mail it to the Board offices.

Pursuant to Section 120.59, Florida Statutes, the Parties are hereby notified that they may appeal this Order by filing one copy of a Notice of Appeal with the Clerk of the Department of Professional Regulation, 130 N. Monroe Street, Tallahassee, Florida 32301, and by filing the filing fee and one copy of the Notice of Appeal with the District Court of Appeal within thirty

(30) days of the effective date of this Order.

This Order shall become effective upon filing with the Clerk of the Department of Professional Regulation.

DONE AND ORDERED this 23rd day of July, 1986.

John Fix, Chairman

Construction Industry Licensing Board

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been provided by certified mail to

George Boukater

431 Vicksburg Terrace Plantation, Florida 33325

and by hand delivery/United States mail to the Board Clerk, Department of Professional Regulation and its Counsel, 130 North Monroe Street, Tallahassee, Florida 32301, on or before 5:00 p.m., this 30th day of July, 1986.

James B. Powell

Department of Professional Regulation Florida Construction Industry

Licensing Board

BOARD CLERK

CLERK: Bert German DATE: 7/30/86

Docket for Case No: 85-002538

Orders for Case No: 85-002538