STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 87-5044

)

KENNETH R. MARTIN, )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in this case was held on April 15, 1988, in Orlando, Florida, before Mary Clark, Hearing Officer of the Division of Administrative Hearings.

The parties were represented as follows:

For Petitioner: David Bryant, Esquire

220 East Madison Street, Suite 530 Tampa, Florida 33602

For Respondent: Kenneth R. Martin, self-represented

3225 North Glen Drive Orlando, Florida 32806

BACKGROUND PROCEDUAL MATTERS

This proceeding commenced with Kenneth Martin's request for a formal hearing in response to the agency's administrative complaint.

At the hearing, DPR presented the testimony of six witnesses, including Martin, who also testified in his own behalf. Twelve exhibits were received in evidence, including a videotape, marked Petitioner's Exhibit #5.

After the hearing, Martin filed a letter outlining his argument and defenses. DPR did not file a post-hearing memorandum or proposed recommended order.

ISSUES

The administrative complaint filed on September 17, 1987 alleges that in a residential pool contracting job Respondent Martin

". . . exhibited financial mismanagement, misconduct, or diversion, in violation of 489.129(1)(h), (m) . . . [and]

failed to perform in a reasonably

timely manner, and/or abandoned said job, in violation of 489.129(1)(m), (k)."

The issue is whether Martin committed those violations, and if so, what disciplinary action is appropriate.

FINDINGS OF FACT

1. At all times relevant, Kenneth Martin was licensed in the State of Florida as a registered commercial pool contractor, holding license number RP 0021608. His license is currently in inactive status.

   
   

   Martin was President of Adair Pools, Inc., the corporation under which he conducted his pool construction business.

   
   

2. In early July 1986, Adair Pools contracted to build a residential pool for Paul and Cynthia Pajak at 8304 Helena Drive in Orange County, Florida.

   
   

   The pool was to be kidney-shaped, approximately 14 feet by 30 feet, with a waterfall and a detached spa. The contract amount of $11,571.00 expressly excluded the deck, electrical work and screening, although the written contract included a sheet describing the specifications for the excluded work, recommended contractors, and estimated costs. This sheet and the pool contract itself clearly indicated that these items were not the responsibility of the pool company and were not included in the contract price.

   
   

3. Work commenced in July, shortly after the contract was signed. Although the contract did not specify a completion date, Martin concedes that the pool should have taken no more than four to eight weeks to complete. The Pajaks had planned a Labor Day party and were told by Adair's employees there would be no problem getting their pool finished for the party.

   
   

4. The pool was not finished by Labor Day. After the pool was dug, shot with concrete and tiled, someone determined that the spa was supposed to have been raised. In attempting to raise the spa and to change the water jets, the workers cracked the shell of the spa and had to replace it.

   
   

   Until the problems with the spa, the Pajaks felt that the construction progress was reasonable and smooth.

   
   

   At this point, sometime around Labor Day, the problems began.

   
   

   Adair delayed in paying Shotcrete Pools, the subcontractor for the concrete shell, because Adair felt it was Shotcrete's fault that the spa was cracked.

   Shotcrete notified the Pajaks that a lien would be placed on the property if they were not paid. The notice to owner is dated November 3, 1986.

   
   

5. Eventually Adair paid Shotcrete and its other subcontractors for the Pajak work and no lien was filed.

   
   

6. The evidence does not reflect a clear sequence of events, but between Labor Day and February or March 1987, little progress was made to finish the pool. Martin's supervisor left and Martin's brother took over.

   
   

   The Pajaks kept calling Martin and were always assured that the job would be completed. Martin admits that the company at this time was in serious

   financial trouble because it was not being paid for a large commercial job that it had undertaken. On December 10, 1986, Mrs. Pajak's brother-in-law, an attorney, sent Martin a demand letter, giving a 10-day deadline for completion of the work. Martin and his brother met with the attorney and assured him the job would be finished.

   
   

7. In spite of the problems, the Pajaks continued working with Martin and paid the full contract price, less the $100.00 that was to be paid when the pool was filled.

   
   

8. On March 5, 1987, Martin informed the Pajaks that they should have the deck poured so that Adair could finish the pool.

   
   

   The Pajaks were not satisfied that the pool was ready for the deck as there were leaks in the waterfall, debris was all over the yard and the spa tile work looked messy.

   
   

   In Martin's opinion those items were his company's responsibility, but were part of the finishing to be done after the deck was poured and the pool was lined with marblelite.

   
   

9. On March 21, 1987, the Pajaks contracted with another pool company for

   $4450.00 to finish their pool.

   
   

10. Martin denies that Adair abandoned the job, but admits that it took an inordinate amount of time. The Pajaks did not allow him to finish the cleanup, the interior coating and the pool start up because they contracted with someone else.

    
    

11. Martin did not contest that the waterfall leaked or that extensive cleanup needed to be done, but disputed that this work should be done before the deck was poured. He contended that the leaks in the waterfall would have been fixed when the finish was done.

    
    

12. Martin estimates that between 1974 and 1986, his company completed over fourteen hundred residential pools and approximately five hundred large commercial pools. Martin has been active on various local pool construction industry boards and has no record of prior disciplinary action against his license.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Sections 120.57(1), Florida Statutes and 455.225(4), Florida Statutes.

    
    

14. Section 489.129, Florida Statutes, provides that the Construction Industry Licensing Board may revoke, suspend or deny a license, may impose an administrative fine or may place a contractor on probation or censure or reprimand him for any of the several violations described in Section 489.129(1), Florida Statutes.

    
    

    The violations with which Martin is charged are:

    * * *

    (h) 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.

    * * *

    (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.

    * * *

    
    

15. The DPR has the burden in license discipline cases to prove the alleged violations through evidence that is clear and convincing. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

16. No evidence was produced regarding the diversion of funds. Adair delayed payment to a subcontractor based on a dispute regarding workmanship. The payment was eventually made and no liens were filed. See Hunter v. Department of Professional Regulation, 458 So.2d 842 (Fla. 2nd DCA 1984)

    
    

17. Adair did not abandon the project. No clear evidence established what work was done between Labor Day and February 1987, but the parties agree that they were still "working together", until the Pajak's patience, understandably, ran out.

    
    

18. Martin and Adair clearly failed to perform in a timely manner. Eight months to complete a pool that in Martin's competent and experienced opinion should have taken, at most, eight weeks, is excessive. Martin was paid for the job and had an obligation to complete it. No doubt he would have eventually finished the pool if the Pajaks had permitted him and had arranged for the deck to be poured when he suggested it. However, Adair, not the Pajaks, was responsible for the eight month delay, which in this instance, without a valid explanation, constitutes misconduct, proscribed in Section 489.129(1)(m), Florida Statutes.

    
    

19. Counsel for Petitioner has not suggested an appropriate penalty. The Board's disciplinary guidelines found in Chapter 21E-17, Florida Administrative Code provide that a first offense violation of Section 489.129(1)()m), Florida Statutes causing monetary harm to a customer, is appropriately disciplined with a fine of $500.00 to $1500.00. The Pajaks were monetarily damaged when they paid another firm to complete the work for which Martin had already been paid.

RECOMMENDATION

Based upon the foregoing, it is, hereby, RECOMMENDED:

That Kenneth Martin be found guilty of misconduct, in violation of Section 489.129(1)(m), Florida Statutes, not guilty of the other violations with which he is charged, and that he be required to pay an administrative fine of $500.00.

DONE and RECOMMENDED this 2nd day of August, 1988, in Tallahassee, Florida.

MARY CLARK

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 2nd day of August, 1988.

COPIES FURNISHED:

David E. Bryant, Esquire

220 East Madison Street, Suite 530 Tampa, Florida 33602

Kenneth R. Martin

3225 North Glenn Drive Orlando, Florida 32806

Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2

Jacksonville, Florida 32201

William O'Neil, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

-vs- CASE NO.: 82707

DOAH CASE NO.: 87-5044

KENNETH R. MARTIN, LICENSE NO.: RP A021608,

Respondent.

/

FINAL ORDER

THIS MATTER came before the Construction Industry Licensing Board pursuant to Section 120.57(1)(b)(9), Florida Statutes, on March 9, 1989, in Fort Myers, Florida, for consideration of the Recommended Order (as copy of which is attached hereto and incorporated herein by reference). The Petitioner was represented by Douglas A. Shropshire. The Respondent was neither present nor represented by counsel at the Board meeting.

Upon consideration of the hearing officer's Recommended Order, and the arguments of the parties and after a review of the complete record in this matter, and there being no exceptions filed, the Board makes the following:

FINDINGS OF FACT

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

   
   

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 in toto.

   
   

3. Respondent is guilty of violating Section 489.129(1)(m), Florida Statutes.

4. The recommended penalty of the Hearing Officer is hereby REJECTED for reasons cited on the record at the Board Meeting. Said record is hereby adopted and fully incorporated herein by reference.

   
   

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 one thousand dollars ($1000.00) to the Construction Industry Licensing Board. Said fine shall be paid within thirty (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 thirty (30) days. If the ordered fine is paid within that thirty (30) day period, the suspension imposed shall not take effect. Upon payment of the fine after the thirty (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 Final 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 30th day of March, 1989.

E. E. SIMMONS, CHAIRMAN Construction Industry

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been forwarded by U.S. Mail to

Mr. Kenneth R. Martin 3225 Northglenn Drive

Orlando, Florida 32806-6371

and by hand delivery/United States mail to the Board Clerk, Department of Professional Regulation and its Counsel, 130 North Monroe Street, Tallahassee, Florida 32399-0750, on or before 5:00 p.m., this 6th day of April, 1989.

F I L E D

Department of Professional Regulation Florida Construction Industry Licensing Board

Board Clerk

Clerk Date April 6, 1989

Docket for Case No: 87-005044

Orders for Case No: 87-005044