STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 88-3312

)

LARRY S. RULE, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on October 21, 1988, in Ft. Lauderdale, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings, substituting for Hearing Officer Don Davis, to whom this case was originally assigned.

APPEARANCES

For Petitioner: G. W. Harrell, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399

For Respondent: Donald N. Bensen Esquire

301 Southeast 10th Court

Ft. Lauderale, Florida 33316 ISSUE

Respondent is charged with proceeding without a timely permit having been issued, violating local law, either deliberately or through improper supervision, in violation of Sections 489.129(1)(d), (m), (j), and 489.119 and 489.105(4) F.S.; with failure to perform in a reasonably timely manner, and/or abandoning a specific job in violation of Sections 489.129(1)(m) and (k) F.S.; with exhibiting financial mismanagement, misconduct, or diversion, in violation of Sections 489.129(1)(h) and (m) F.S.; and with gross negligence and/or incompetence in connection with said job, attributable either to Respondent personally, or to Respondent's failure to properly supervise, in violation of Sections 489.129(1)(m) and (j), 489.119, and 489.105(4), the problems being generally in relation to failure to maintain proper financial solvency.

PRELIMINARY STATEMENT

At the commencement of formal hearing, Respondent moved to dismiss the Administrative Complaint for failure to state a (probable) cause of action. This motion was denied but the undersigned agreed that it be "revisited" in the course of the Recommended Order. Having reconsidered same, it is, now denied.

Likewise, Respondent's Motion for a Directed Verdict at the close of Petitioner's case-in-chief, which may be regarded as a Motion for a Summary Recommended Order, was taken under advisement for resolution within this Recommended Order and likewise is now denied.

Thereafter, Petitioner presented the oral testimony of Mary Tillotson and Frank Abbott Petitioner had admitted in evidence seven exhibits. Respondent testified on his own behalf and had admitted two exhibits.

A transcript has been duly filed as well as the parties' respective proposed orders, the findings of fact of which have been duly considered and which have been ruled upon in the Appendix of this Recommended Order, pursuant to Section 120.59(2) F.S.

FINDINGS OF FACT

1. Petitioner is the state agency charged, in conjunction with the Construction Industry Licensing Board, with the responsibility to prosecute Administrative Complaints pursuant to Chapters 489, 455, and 120 F.S., and the rules promulgated thereunder.

   
   

2. At all times material to the Administrative Complaint herein, Respondent was licensed as a certified pool contractor in the State of Florida, holding license number CP 0009588.

   
   

3. At all times material hereto, Respondent was the qualifying agent for Pools by L. S. Rule.

   
   

4. On August 12, 1987, Ms. Mary Tillotson forwarded a $1,200 check to Pools by L. S. Rule for pool repair work including replacing the existing pool skimmer and furnishing and installing one row of new tile and remarcite. Respondent estimated the job would require two weeks to complete.

   
   

5. On August 24, 1987, Ms. Tillotson formally entered into a written contract with Pools by L. S. Rule to perform the aforementioned pool repairs at her residence of 2110 North 41st Avenue, Hollywood, Florida for a price of

   $2,330.00. The contract actually signed by the parties, which is the contract which governs this case did not specify a completion date or state that "time is of the essence" for the job; however, the Respondent was clearly aware as of August 11, 1987 that Ms. Tillotson wanted the pool repaired by approximately August 24 or 25.

   
   

6. On August 24, 1987, an employee of Pools by L. S. Rule removed the old skimmer from Ms. Tillotson's pool and replaced it with a new skimmer the next day.

   
   

7. There was no further work done on Ms. Tillotson's pool by Pools by L.

   S. Rule after August 25, 1987. Ms. Tillotson contacted the Respondent repeatedly and the Respondent informed her that he was having an employment problem, but would have someone come out the next day. Neither the Respondent nor any of his employees ever visited the Tillotson residence again, with the exception of a brief visit by one employee wherein no work was performed.

   
   

8. Ms. Tillotson discharged the Respondent on September 10, 1987, fifteen days or roughly two weeks after the contract was entered into and approximately the date the pool was supposed to have been completed. Upon cancellation, Ms. Tillotson demanded a refund of her entire $1200 deposit.

9. Ms. Tillotson contracted with Adonis Pools, on September 11, 1987 to perform the same repairs as she had requested of Respondent. The repairs were completed by Adonis within three days.

   
   

10. During the time of the Tillotson contract, Respondent proceeded with the construction of approximately five pools and maintained a staff of five employees. The reason offered at hearing for failure to proceed with Ms. Tillotson's pool was that he had lost a key employee and there had been rain delays.

    
    

11. On September 21, 1987, Ms. Tillotson wrote the Respondent and requested a refund of $920, a compromise amount less than the full $1200 deposit, reflecting what she believed accounted for the services and material already expended by Respondent and Pools by L. S. Rule.

    
    

12. Respondent refused to refund any of the deposit unless the amount were compromised upon his terms and Ms. Tillotson refused to accept what she regarded as partial payment. Ms. Tillotson filed suit against Respondent in November, 1987. She was awarded a judgment for $875 plus $54 in court costs, in the County Court in and for Broward County, Florida on April 20, 1988.

    
    

13. The Respondent did not pay Ms. Tillotson the award monies on the date of judgment. He had already spent some of her deposit elsewhere. The Respondent has since failed to refund any portion of the deposit. The efforts Respondent has expended to negotiate or pay the judgment do not reflect good faith attempts at full payment under the judgment.

    
    

14. Frank Abbott is a certified general contractor and a registered Florida Architect. Mr. Abbott was retained and tendered by the Department of Professional Regulation (DPR) as its expert witness on the duties and responsibilities of contractors in the construction of pools; he was accepted as such over objection. It was Mr. Abbott's opinion that the Tillotson pool job should have taken one or two weeks, and upon the material in the DPR's investigative file, he concluded that abandonment by Respondent had occurred; that because the contractor accepted a deposit, failed to perform, and did not return any funds, there had been financial misconduct; and that therefore Respondent was guilty of gross negligence or incompetence. However, Mr. Abbott never spoke to Tillotson or Rule, never saw the area, the job, or assessed the weather conditions. He saw only a poor xerox copy of the photograph of the skimmer installation which was ultimately admitted as P-5. He offered no narrative of what constituted gross negligence as far as the skimmer job was concerned and merely offered his own legal conclusion that abandonment and financial mismanagement constitute incompetence or gross negligence. Some of his opinion was based on the way he operates his own contracting business, rather than upon general education, training, and experience in the contracting profession. He had personally supervised the building of only a few pools and only had connection with building eleven pools. He had never personally built a pool or done any pool work or received any specific pool training. In drawing his conclusions and in forming his opinion, Mr. Abbott also made assumptions with regard to characterizations in the DPR investigative file which were either not necessarily supported by the greater weight of the credible evidence as a whole as presented at formal hearing or which were extraneous to the issues in the specific case at bar.

    
    

15. Petitioner presented no evidence of any kind bearing on the charge that Respondent failed to timely secure a building permit.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause pursuant to Section 120.57(1) F.S.

    
    

17. The pertinent statutory charges are as follows:

    
    

    Section 489.129(1) F.S. -- The board may revoke, suspend, or deny the issuance or renewal of a certificate of 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

    is found guilty of any of the following acts:

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

    (h) Financial mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Financial mismanagement or misconduct occurs when:

    2. The contractor has abandoned a customer's job and the percentage of completion is less than the percentage of the total contract price paid to the contractor as of the time of abandonment, unless the contractor is entitled to retain such funds under the terms of the contract or refunds the excess funds within 30 days after the date the job is abandoned.

    1. Failure in any material respect to comply with the provisions of this act.

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

    
    

18. Respondent has not been proved guilty of violating Section 489.129(1)(d) F.S.

    
    

19. With regard to the remaining charges, this case can be summed up that the Respondent took on more work than he could handle.

    
    

20. Respondent contracted with Ms. Tillotson and started work on her pool. Thereafter, for 14 days, a reasonable time in which to complete the entire job, he responded to her persistent calls with unfulfilled promises while he

    continued to complete other jobs. Regardless of some reasonable delay attributable to weather and employee problems, the actual completion of the pool work in three days by the successor contractor, Adonis, makes it clear that 14-

    15 days was a reasonable time for Ms. Tillotson to wait for Respondent to comply with the terms of his contract before assuming he had abandoned the project and to wait before terminating their contract. Respondent's continued performance of other work and not the length of time that he and his employees were absent from Ms. Tillotson's job is also a significant factor in concluding that the job was abandoned. The terms of the contract do not mitigate against such a conclusion. Respondent has violated Section 489.129(1)(k) F.S.

    
    

21. When Ms. Tillotson fired the Respondent, he owed her her deposit, less whatever benefit she had received from his services and material. While this figure may have been a negotiable figure up to a point, once the money judgment was entered by the summary claims court, Respondent clearly owed Ms. Tillotson a liquidated amount. Whether in the interim he had spent more of the deposit than he had a legitimate right to spend, either by the terms of the contract or pursuant to good financial management, became essentially moot with the entry of the court judgment. It is not, therefore, necessary in these circumstances to address the propriety of contractor escrowing deposits or the mathematical calculations involved in that process. Here, when Respondent continued to not pay Ms. Tillotson after the judgment was final, he demonstrated misconduct in the practice of contracting causing financial harm to a customer. He is guilty of violating Section 489.129(1)(h)2. F.S.

    
    

22. The record evidence with regard to gross negligence, incompetency, or misconduct pursuant to Section 489.129(1)(m) F.S. is not clear and convincing. The "misconduct" found supra, with regard to Section 489.129(1)(h) ought not to be duplicated in this charge so as to multiply the penalty.

    
    

23. The "catchall" charge under Section 489.129(1)(j) likewise should not be vicariously attached to the other charges so as to multiply the penalty.

    
    

24. In consideration of the penalties assigned by rule to the violations determined, i.e., to Sections 489.129(1)(h) and (k) F.S. only, it is concluded that an appropriate penalty would be imposition of a $1,750 fine.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is recommended that the Construction Industry Licensing Board enter a final order dismissing the charges against Respondent under Sections 489.129(1)(j) and (m) F.S, finding him guilty of violating Sections 489.129(1)(h) and (k) F.S., and imposing a $1,750 fine.

DONE and RECOMMENDED this 19th day of December, 1988, Tallahassee, Florida.

ELLA JANE P. DAVIS, 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 19th day of December, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3312

The following constitute specific rulings upon the parties' respective proposed findings of fact (PFOF) pursuant to Section 120.59(2) F.S.

Petitioner's PFOF

1-11 Accepted, and with minor modifications of style, are adopted.

12-13 Accepted in substance but modified to conform to the greater weight of the credible evidence.

14-16 The expert opinions of Mr. Abbott are recited within the Recommended Order (RO), but were of little assistance to the trier of fact since they were mostly rendered in terms of raw conclusions of law rather than contracting expertise. To the extent they are credible and supported by the greater weight of the factual evidence of record, they have been accepted in the RO. For the most part they have been rejected for the aforesaid reason and for the reasons set out in FOF 14 and the Conclusions of Law (COL).

Respondent's PFOF

1-9, and 22 Accepted.

10-11 Out of chronological context and thereby misleading as to the record evidence; for this reason and for the reason they are subordinate to the facts as found, they are rejected.

12 Sentence 1 is accepted. Sentence 2 is also out of chronological context and thereby misleading as to the record evidence and for this reason and for the reason it is immaterial, it is rejected.

13-14 Rejected as stated as not supported by the record evidence as a whole and as set out in FOF 13.

15-17 and 20 Rejected as not PFOF but proposed COL.

18-19 and 21 (on page 3 and on page 4) are partially accepted in substance in FOF 14 but otherwise are rejected as mere argument of counsel or as unnecessary.

COPIES FURNISHED:

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

Jacksonville, Florida 32201

G. W. Harrell, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399

Donald N. Bensen, Esquire

301 Southeast 10th Court

Ft. Lauderdale, Florida 33316

Bruce D. Lamb, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 88-003312

Orders for Case No: 88-003312