STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

v. ) CASE NO. 89-3297

)

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: William Losciale, Pro Se

6491 Mobile Street

Inverness, Florida 32652 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 Kevin Foy, Harold Orcutt, Ann McAuley, Julie Fusco, Herman Cherry, and Larry Vitt. Petitioner's Exhibits 1, 2 and 3 were admitted in evidence.

Respondent, William Losciale, presented his own testimony.

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 June 9, 1987, Respondent entered into a contract with Kevin D. Foy for the construction of a pool with a screen enclosure on Mr. Foy's property for the sum of $12,000.00.

   
   

3. On August 12, 1987, Mr. Foy made his final payment to the Respondent for the pool and enclosure and all related work.

   
   

4. On June 9, 1987, Respondent entered into a contract with Harold Orcutt for the construction of a pool with a screen enclosure on Mr. Orcutt's property for the sum of $18,015.00.

   
   

5. On August 1, 1987, Mr. Orcutt made his final payment to the Respondent for the pool and enclosure and all related work.

   
   

6. On May 12, 1987, Respondent entered into a contract with Ann McAuley for the construction of a pool with a screen enclosure on Ms. McAuley's property for the sum of $14,204.08.

   
   

7. On September 18, 1987, Ms. McAuley made her final payment to the Respondent for the pool and enclosure and all related work.

   
   

8. At the end of September, 1987, the Respondent entered into an oral contract with Paragon Aluminum Products, Inc. to have Paragon Aluminum Products, Inc., install the pool enclosure at the Foy residence, pursuance to the Respondent's contract with the Foys. The total Paragon contract price was

   $3,975.00 which was to be paid by the Respondent to Paragon within two weeks of October 6, 1987, which was the completion date. The Respondent failed to pay that amount in a timely manner.

   
   

9. On or about July 16, 1987, the Respondent entered into an oral contract with Paragon Aluminum Products, Inc. to have Paragon Aluminum Products, Inc., install the pool enclosure at the Orcutt residence pursuant to the Respondent's contract with the Orcutts. The total Paragon contract price was $4,910.00, which was to be paid by the Respondent to Paragon within two weeks of the first part of August, 1987, which was the completion date. The Respondent made a partial payment on August 17, 1987, of $3,015.00 and the balance of $895.00 was not paid in a timely manner.

   
   

10. On or about July 20, 1987, the Respondent entered into an oral contract with Paragon Aluminum Products, Inc. to have Paragon Aluminum Products, Inc., install a pool enclosure at the McAuley residence pursuant to the Respondent's contract with Ms. McAuley. The total Paragon contract price was

    $4,321.00 which was to be paid by the Respondent to Paragon within two weeks of August 5, 1987, which was the completion date. The Respondent made a partial payment on September 12, 1987, of $2,704.08 which left a balance of $1,616.92 which was not paid in a timely manner.

    
    

11. When the Respondent failed to timely pay Paragon Aluminum Products, Inc., at the end of the foregoing jobs, an officer of Paragon contacted the

    Citrus County Building Department in an effort to have that department aid her in collection of the monies owed.

    
    

12. The Respondent admitted to an investigator of the Department of Professional Regulation on June 7, 1988, that he was having cash problems in relation to the three jobs, that all work had been completed, but due to those cash flow problems, Paragon had not been paid in full.

    
    

13. The Respondent signed a personal promissory note for the full amount due to Paragon. No liens were ever filed by Paragon.

    
    

14. The Respondent's county license was suspended the Citrus County Licensing Board on May 11, 1988, until he was able to show financial responsibility to that board. That suspension was lifted by the Citrus County Licensing Board on October 12, 1988.

    
    

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

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

17. 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.

       * * *

       (i) Disciplinary action by any municipality or county,

       * * *

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

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

       
       

18. The Department of Professional Regulation has failed to prove by clear and convincing evidence that Respondent violated Section 489.129(1)(h). By its very terms, that section defines financial mismanagement or misconduct to occur when valid liens have been filed. Here, no liens were filed. While the

    Respondent may have had cash flow problems, the customers were not affected by those problems. This charge should be dismissed.

    
    

19. Clear and convincing evidence has been presented to show that the Respondent's license was disciplined by the county. Thus, it must be concluded that the Respondent violated Section 489.129(1)(i).

    
    

20. The evidence presented regarding the alleged violation of Section 489.129(1)(m) fails to rise to the level of clear and convincing evidence. There was inadequate evidence presented to support a conclusion that Respondent was guilty of misconduct as alleged. This charge should be dismissed.

    
    

21. 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. None of the enumerated aggravating circumstances exist in this case. The previous disciplinary action against Respondent is considered as an aggravating circumstance.

    
    

22. 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 $1500 for the violation of Section 489.129(1)(i)

   
   

2. Dismiss the remaining charges made in the Administrative Complaint.

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.

ENDNOTES

1/ Respondent filed a two and one-half page pleading styled as "Argument" on August 2, 1989, and the same has been considered in the preparation of this order.

2/ In other words, it is not enough to simply show that Botner failed to satisfy the civil judgment. In accordance with the dictates of Anheuser-Busch, it must also be shown by an adequate record foundation that the agency construes Botner's conduct to be a violation of the cited statute and the rationale and justification for that interpretation. Here, there was an absence of such a showing.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-3297

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted 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: 1-12 (1-12) and 14 & 15 (13 & 14).

   
   

2. Proposed finding of fact 13 is rejected as unnecessary and cumulative.

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: 89-003297

Orders for Case No: 89-003297