STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

v. ) CASE NO. 89-3296

)

WILLIAM LOSCIALE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on September 25, 1989, in Inverness, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: Jack M. Larkin

Attorney at Law 806 Jackson Street

Tampa, Florida 33602 For Respondent: No Appearance

STATEMENT OF THE ISSUES

The issue is whether the Respondent's license as a registered pool contractor should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint.

PRELIMINARY STATEMENT

The Petitioner, Department of Professional Regulation, Construction Industry Licensing Board, presented the testimony of John Kerry and Don Clapp. Petitioner's Exhibits 1 and 2 were admitted in evidence.

Respondent, William Losciale, failed to appear for the hearing. He did appear for a hearing in another case later in the day on September 25, 1989. At that time, Respondent acknowledged that he had a copy of the Notice of Hearing for this case, but had become confused and thought there was only one hearing for both cases. He was provided with an opportunity to get a transcript of the hearing in this case and to file a proposed recommended order and such other pleadings as he deemed necessary.

No transcript was ordered and filed in this case. The Petitioner filed its proposed findings of fact and conclusions of law on October 6, 1989. Respondent failed to file proposed findings of fact and conclusions of law. All proposed findings of fact and conclusions of law which have been filed have been

considered. A specific ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondent, William Losciale, was a licensed registered pool contractor in the State of Florida, having been issued license number RP-0032951, by the State of Florida, and was the qualifier of Lynn Pools.

   
   

2. On or about October 2, 1987, John J. Kerry entered into a contract with Respondent d/b/a Lynn Pools for the Respondent to construct a pool and screen enclosure on Mr. Kerry's property located at 633 South Little John Street in Inverness, Florida. The total cost of the pool and enclosure was $19,600.00.

   
   

3. During construction various problems developed. Among them were delays in completion, the failure to obtain the proper permits, the installation of an inadequate and improper filter, the delayed removal of excavated dirt, the gouging up of the homeowner's yard, and the improper positioning of the septic tank after relocation.

   
   

4. At the time the pool deck was being designed, the homeowner told the Respondent that it appeared to the homeowner that the deck was slanted towards the house and would cause flooding problems. The Respondent told the homeowner that the Respondent knew what he was doing and no such problem would develop.

   
   

5. During construction of the pool, the homeowner pointed out to the Respondent that it appeared that the pool was being constructed higher than the patio which, if true, would also cause flooding problems. Again, the Respondent denied that the pool was being constructed higher than the patio and that flooding problems would occur.

   
   

6. During construction, Respondent removed a rain downspout which, prior to construction, was located between the patio and the screen enclosure. The pool patio was then poured without replacing the downspout underneath the patio.

   
   

7. As a result of one or more of the foregoing conditions, the homeowner's house was almost flooded on one occasion. Thereafter, the homeowner had to put a drain hole in the patio in an attempt to prevent future flooding.

   
   

8. Since completion of the pool, when it rains, rainwater flows down the patio towards the house. Additionally, rainwater is directed from the roof through the gutter onto the patio towards the house and occasionally water overflows from the pool towards the house. While the house has not been flooded, the pool deck floods during certain rains.

   
   

9. During construction, the Respondent removed all of the ground wires off electrical fixtures located in the homeowner's yard without replacing them after being requested to replace them by the homeowner.

   
   

10. After the deck was poured, it was covered with kool deck. The kool deck was soft and had indentations in it. The Respondent agreed with the homeowner that the deck was bad and that the homeowner should not accept it.

    
    

11. The Respondent the replaced the kool deck with river rock. The deck now has ripples in it. The Respondent tried to charge the homeowner an

    additional $1,200 for the river rock. The homeowner had the river rock installed for an additional $850.00 by a third party.

    
    

12. Prior to entering into the contract for the pool and enclosure with Respondent, the home owner told the Respondent that he wanted the biggest water heater available to heat the pool water instantly. When the water heater was being installed, the homeowner questioned the Respondent whether or not the water heater was big enough to meet the homeowner's requirements. The Respondent said that it was. After installation, the heater did not come close to meeting the home owner's requirements. The homeowner then called the manufacturer of the heater and was told that the installed heater was too small. The Respondent, at the homeowner's request, then changed the heater to one that would supposedly heat the pool water faster. It did not. The homeowner then called the heating company again and was told that the new heater was only one size up from the original heater and still would not meet the homeowner's requirements. That heater remains on the homeowner's property and does not meet the homeowner's requirements.

    
    

13. Mr. Kerry paid the Respondent $5,500.00 on December 7, 1987, which made a total of $19,000.00 the homeowner had paid the Respondent.

    
    

14. The homeowner has paid more than $600.00 in repairing and/or correcting work that was the obligation of the Respondent. Correction of all these problems has been to the homeowner's financial detriment.

    
    

15. In the latter part of December, 1987, the Respondent entered into an oral contract with All Wright Aluminum to have All Wright Aluminum install an L- shaped pool enclosure over the pool at the Kerry residence. The total contract price was $5,185.10. Payment for the construction was due within ten days of completion which occurred on January 6, 1988.

    
    

16. All Wright Aluminum received a $1,000.00 payment from the Respondent on or about February 2, 1988. That payment was a check from a customer of the Respondent, made payable to the Respondent's order in partial payment on pool repairs which the Respondent made for that customer. The Respondent endorsed that check and made it payable to All Wright Aluminum.

    
    

17. On February 15, 1988, All Wright Aluminum in compliance with the mechanic's lien law, filed a valid claim of lien against Mr. Kerry's property in the amount of $4,185.10 for failure of the Respondent to pay All Wright for the construction of the pool enclosure.

    
    

18. On May 10, 1988, the Respondent paid All Wright Aluminum $1,000.00 towards that lien. On September 16, 1988, the Respondent paid All Wright

    $2,000.00 towards the satisfaction of that lien from his personal account.

    
    

19. On September 16, 1988, the Respondent gave All Wright Aluminum a personal promissory note in the amount of $1,135.10 for the balance of the lien amount. On that date All Wright Aluminum satisfied its previously filed claim of lien.

    
    

20. Respondent has previously been disciplined by the Florida Construction Industry Licensing Board.

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction of the parties to and subject matter of these proceedings. Section 120.57(1), Florida Statutes.

    
    

22. The Administrative Complaint charges Respondent with the following violations:

    
    

    489.129(1)(h) Financial mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Financial mismanagement or misconduct occurs when:

    
    

    1. Valid liens have been recorded against the prosperity of a contractor's

       customer for supplies or services ordered by the contractor for the customer's job; the contractor has received funds from the customer to pay for the supplies or services; and the contractor has not had the liens removed from the property, by payment or by bond, within 30 days after the date of such liens.

       * * *

       (j) Failure in any material respect to comply with the provisions of this act.

       * * *

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

       
       

23. The Administrative Complaint further alleges that Subsection (j) is violated because Respondent has failed to comply with Sections 489.105(4) and

    489.119 regarding Respondent's status as the qualifying agent for Lynn Pools.

    
    

24. The clear and convincing evidence supports a conclusion that Respondent violated Section 489.129(1)(h) in that the customer had essentially paid Respondent in full for the project, yet a lien was placed against the customer's property for supplies and services ordered by Respondent for the customer's job. The liens were not removed within 30 days as required by statute.

    
    

25. The clear and convincing evidence supports a conclusion that Respondent violated Section 489.129(1)(j) by failing to comply with Sections 489.105(4) and 489.119 in his status as qualifying agent for Lynn Pools.

    
    

26. Finally, the clear and convincing evidence supports a conclusion that Respondent violated Section 489.129(1)(m). Both misconduct and incompetency in the practice of contracting have been shown.

    
    

27. Rule 21E-17.002, Florida Administrative Code, specifies aggravating and mitigating circumstances which may be considered in assessing the penalty for violations in the practice of contracting. Aggravating circumstances exist in this case: damages suffered by the customer which have not been relieved;

    incompetence and misconduct in job performance which have not been corrected; and the severity of the offense and the actual damages suffered by the customer. The fact that there has been previous disciplinary action against Respondent is also considered as an aggravating circumstance.

    
    

28. The recommended penalty is made having considered the disciplinary guidelines contained in Rule 21E-17.001, Florida Administrative Code.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Construction

Industry Licensing Board, enter a Final Order and therein penalize the

Respondent, William Losciale, as follows:

1. Assess a fine of $750 for the violation of Section 489.129(1)(h)

   
   

2. Assess a fine of $750 for the violation of Sections 489.129(1)(j) , 489.105(4), and 489.119.

   
   

3. Assess a fine of $1500 for the violation of Section 489.129(1)(m)

   
   

4. Suspend the license of Respondent for a period of six (6) months.

DONE and ENTERED this 19th day of October, 1989, in Tallahassee, Florida.

DIANE K. KIESLING

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of October, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-3296

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case.

Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Professional Regulation, Construction Industry Licensing Board

1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-20 (1-20).

COPIES FURNISHED:

Jack M. Larkin Attorney at Law 806 Jackson Street

Tampa, Florida 33602

William Losciale 6491 Mobile Street

Inverness, Florida 32652

Kenneth E. Easley General Counsel

Department of Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Fred Seely Executive Director

Construction Industry Licensing Board Post Office Box 2

Jacksonville, Florida 32202

Docket for Case No: 89-003296

Orders for Case No: 89-003296