STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 86-3479

)

JIMMY G. MILLER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to formal notice, a final hearing was held before Hearing Officer Stephen F. Dean on December 9, 1986, in Gainesville, Florida.

APPEARANCES

For Petitioner: David R. Terry, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Jimmy G. Miller, pro se

706 Southeast 35 Avenue

Ocala, Florida 32671 ISSUE

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

BACKGROUND

On May 23, 1986, Petitioner filed a two count Administrative Complaint alleging Respondent violated certain provisions of Chapter 489, Florida Statutes. Count I of the Administrative Complaint concerned a pool construction project undertaken by Respondent in Gainesville, Florida in or around October 1954. Count II of the Administrative Complaint concerned a pool construction project undertaken by Respondent in or around December 1984. Respondent requested a formal hearing and the Division of Administrative Hearings assigned a Hearing Officer to conduct formal proceedings pursuant to Section 120.57(1), Florida Statutes.

On September 23, 1986, Petitioner mailed Petitioner's First Request for Admissions, consisting of twenty-three statements, to Respondent.

On November 14, 1986, the Hearing Officer issued an order deeming items 1, 2, 3, 7 and 17 of Petitioner's First Request for Admissions admitted.

No testimony concerning Count I was presented. Petitioner presented the testimony of Terry Kilpatrick and Jane Phillips to support its allegations in Count II. Petitioner's Exhibits B, C, D, E, F and G were admitted into evidence to support Petitioner's allegations in Count II. Neither Respondent nor a representative of Respondent appeared at the formal hearing.

FINDINGS OF FACT

1. At all times material to the pending Administrative Complaint, Respondent was a registered pool contractor licensed by the State of Florida, having been issued license number RP 0029202. (Petitioner's First Request for Admissions, Item 2: Pet. Exh. C)

   
   

2. On or about December 5, 1984, Respondent, d/b/a Miller Pools, contracted with Terry Kilpatrick to construct a pool at the Kilpatrick residence. (Pet. Exh. B; T. 9-10)

   
   

3. The contract provided for a contract price of $10,963 for the construction of the pool and $1600 for the installation of fencing. (Pet. Exh. B; T. 10)

   
   

4. Under the provisions of the contract and pursuant to the agreement of the parties, Respondent was responsible for all aspects of the pool construction and Kilpatrick was responsible for the installation of the fencing. (Pet. Exh. B; T. 10-11) As part of the contract, Respondent gave Kilpatrick a one-year warranty on the construction of the pool. (T. 19-20)

   
   

5. The Kilpatrick residence was located in Putnam County, Florida, within the jurisdiction of the Putnam County Building and Zoning Department. (Pet. Exh. B; T. 37)

   
   

6. In December 1984, the 1982 Standard Swimming Pool Code was in effect in Putnam County, having been adopted by county ordinance. (Pet. Exh. E, F; T. 40- 42)

   
   

7. The Standard Swimming Pool Code in effect in Putnam County in December 1984 required that a building permit be obtained before the commencement of construction of a swimming pool at a residence in the county. (Pet. Exh. E; T. 42)

   
   

8. Respondent obtained the necessary building permit for the Kilpatrick pool job. (Pet. Exh. D; T. 42)

   
   

9. The Standard Swimming Pool Code in effect in Putnam County in December 1984 also required that certain inspections be done during the course of the construction of a swimming pool. (Pet. Exh. E; T. 43) Among the required inspections was an electrical inspection and a final inspection. (Pet. Exh. E;

   T. 44-45) It was the responsibility of Respondent as contractor to request the Putnam County Building and Zoning Department to conduct the necessary inspections of the pool. (Pet. Exh. E; T. 44)

   
   

10. The purpose of requiring the various pool inspections, including the electrical and the final, was to make certain that the pool had been constructed and was operating correctly and safely. (T. 45)

11. Respondent was aware that certain inspections were required by local law. On three occasions, December 19, 1984, January 7, 1985 and January 10, 1985, inspections were performed on the Kilpatrick pool at Respondent's request. (Pet. Exh. D; T. 23, 43)

    
    

12. Respondent did not make arrangements for the electrical or final inspections to be performed on the Kilpatrick pool. (Pet. Exh. D; T. 23, 43-44)

    
    

13. During the construction of the Kilpatrick pool, Respondent was at the job site infrequently. (T. 12-16, 18, 19, 22)

    
    

14. Almost immediately after the pool construction was completed, Kilpatrick began to experience problems with the pool, problems which included pitting of the marcite finish, leaks in the tiled area of the pool, and chipping of the brick and coping. (T. 24-35)

    
    

15. The problems experienced by Kilpatrick were problems related to the construction of the pool and were covered by the one-year warranty on the pool given to Kilpatrick by Respondent. (T. 19-20)

    
    

16. Respondent failed to take any action to correct the problems until after Kilpatrick had contacted the Putnam County Building and Zoning Department and the Department of Professional Regulation to complain about the problems with the pool. (T. 25-28, 35-36, 46-50)

    
    

17. As of the date of the hearing in this case, Kilpatrick continued to experience problems with the pool leaking around the tile. (T. 31-31, 34)

    
    

18. By Final Order, dated March 17, 1986, in Department of Professional Regulation Case No. 0059028, the Construction Industry Licensing Board imposed an administrative fine of $1000 and suspended Respondent's registered pool contractor's license for five years as a result of Respondent's default in a disciplinary case in which Respondent had been charged with failure to supervise a swimming pool construction project and/or performing said construction in a grossly negligent and/or incompetent manner. (Pet. Exh. C)

    
    

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding pursuant to Section 120.57, Florida Statutes.

    
    

20. Section 489.129(1), Florida Statutes, provides in pertinent part:

    
    

    489. 129 Disciplinary proceedings.

    (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 $5,000.00, place a contractor on probation, or reprimand or censure a contractor if the contractor is found guilty of any of the following acts:

    (d) Willful or deliberate disregard and violation of the applicable building

    codes or laws of the state or of any municipalities or counties thereof.

    (m) Upon proof that the licensee is guilty of fraud or deceit or of gross

    negligence, incompetency, or misconduct in the practice of contracting.

    
    

21. Count One - No evidence was presented on Count I.

    
    

22. Count Two of the Administrative Complaint charges Respondent with violating Section 489.129(1)(d), Florida Statutes by willfully or deliberately disregarding or violating the applicable local building codes or laws; and violating Section 489.129(1)(m), Florida Statutes by being guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in practice of contracting.

    
    

23. Respondent violated Section 489.129(1)(d), Florida Statutes, by failing to request the electrical and final inspections as required by local code under circumstances which

    show the Respondent's failure was deliberate.

    
    

24. Respondent constructed the Kilpatrick pool. Kilpatrick experienced problems with the pool related to the construction of the pool. Kilpatrick made repeated requests to Respondent for service under the warranty but Respondent failed to take any meaningful steps to correct any of the problems with the pool until after Kilpatrick had initiated complaints with the Putnam County Building and Zoning Department and the State Department of Professional Regulation. To date, Respondent has not fixed all the problems.

    
    

25. This failure to construct the pool in a workmanlike fashion and to honor the warranty by Respondent constitutes a violation of Section 489.129(1)(m) , Florida Statutes.

RECOMMENDATION

Having found the Respondent guilty of violating Subsections 489.129(1)(d) and (m), Florida Statutes, it is recommended that Respondent be fined $1000, and that his license be suspended for an additional year after the suspension imposed by the Construction Industry Licensing Board in its Final Order, dated March 17, 1986, in Department of Professional Regulation Case No. 0059028.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1987.

COPIES FURNISHED:

David R. Terry, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Jimmy G. Miller

706 Southeast 35 Avenue

Ocala, Florida 32671

Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional

Regulation

Post Office Box 2 Jacksonville, Florida 32201

Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Wings S. Benton, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 86-003479

Orders for Case No: 86-003479