Petitioner: CONSTRUCTION INDUSTRY LICENSING BOARD
Respondent: JOHN A. BENNETT
Judges: K. N. AYERS
Agency: Department of Business and Professional Regulation
Locations: Tampa, Florida
Filed: Sep. 05, 1989
Status: Closed
Recommended Order on Friday, January 5, 1990.
Latest Update: Jan. 05, 1990
Summary: Whether Respondent's license as a pool contractor should be disciplined and, if so, what penalty to recommend.Evidence failed to prove respondent was qualifying contractor for pool company.
89-4839.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL )
REGULATION, )
)
Petitioner, )
)
vs. ) CASE NO. 89-4839
)
JOHN A. BENNETT, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on December 12, 1989, at Tampa, Florida.
APPEARANCES
For Petitioner: Andrea Bateman, Esquire
Department of Professional Regulation
Northwood Centre
1940 North Monroe Street Suite 60
Tallahassee, Florida 32399-0792 For Respondent: Not present or represented.
STATEMENT OF THE ISSUES
Whether Respondent's license as a pool contractor should be disciplined and, if so, what penalty to recommend.
PRELIMINARY STATEMENT
By Administrative Complaint filed May 23, 1989, the Department of Professional Regulation, Petitioner, seeks to revoke, suspend or otherwise discipline the license of John A. Bennett as a pool contractor. As grounds therefor, it is alleged that in carrying out a contract between Quality Aquatech Pools & Spas, for which Respondent is qualifying contractor, and Mr. and Mrs.
Dittmer, Respondent proceeded with the work without first obtaining a local permit or having any local inspections performed; and in carrying out the work was guilty of improper supervision, violation of local law, gross negligence, incompetence, and/or deceit in connection with this project.
Prior to the commencement of the hearing, the attorney for Petitioner, at the request of the Hearing Officer, telephoned the address of Respondent's firm but obtained no reply. A notice of hearing was mailed to Michael S. Edenfield, Esquire, the attorney representing Respondent at the time, and no request to withdraw as counsel was received from Mr. Edenfield.
After waiting a reasonable time for Respondent to appear, the hearing was commenced. Thereafter, Petitioner called three witnesses, and eight exhibits were admitted into evidence. Proposed findings have been submitted by Petitioner. Treatment accorded those findings are contained in the Appendix attached hereto and made a part hereof.
FINDINGS OF FACT
At all times relevant hereto John A. Bennett, Respondent, was licensed by the Florida Construction Industry Licensing Board as a residential pool contractor, having been issued license number RP 0033592. He is the qualifying contractor for Quality Pools and Products, Inc., 2912 Forest Wood Drive, Seffner, Florida 33584 (Exhibit 2).
On or about January 25, 1988, Evelyn L. Dittmer and James W. Dittmer entered into a contract with Quality Aquatech Pools & Spas (Quality Pools), 1500
N. Parsons Avenue, Brandon, Florida, to replace the liner and repair the bottom of the pool (Exhibit 5).
This contract was signed by the Dittmers and Andy Priess, presumably the foreman of Quality Pools. The Dittmers never met Respondent, but they "understood" he owned the pool company. Printed on the bottom of Exhibit 1 is Respondent's state registration number.
Employees of Quality Pools arrived on the site and removed the old liner. At this time, the bottom of the pool was in bad shape, but the workers attempted to replace the liner without repairing the bottom of the pool. They were stopped from replacing the liner and departed as they had brought no equipment with which to repair the bottom.
Workers returned for the next several days to attempt to repair the bottom of the pool. Due to excessive ground water entering the pool, this task was onerous.
The initial contract provided that if it became necessary to establish well points to keep excess water out of the pool, an additional fee of $200 would be required. The Dittmers paid this fee, but well points were not established.
An addendum to the contract was prepared for additional work needed to get the bottom of the pool back in shape (Exhibit 1) and was signed by John A. Bennett. This provided for an additional payment of $600, but was not accepted or signed by the Dittmers.
The new liner was ultimately installed, but was torn in the process and the unnatural hole in the bottom of the pool was not repaired.
Although the Dittmers had paid Quality Pools the full contract price of
$2700, which included a $200 charge for installing well points, the work was never satisfactorily completed, and Quality Pools failed to perform the work for which they had contracted. The project was finally abandoned by Quality Pools, and two of the pumps used to dewater the pool were left on the site.
At no time did anyone from Quality Pools obtain a permit from Sarasota County where this work was done, and Quality Pools was not licensed to work in Sarasota County (Exhibit 3).
After it became evident Quality Pools would not complete the repairs for which they had contracted, the Dittmers hired another contractor to whom they paid an additional $2945 to restore the pool to an operating condition (Exhibit 7).
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
Section 489.129(1), Florida Statutes, provides the [Construction Industry Licensing] Board may revoke or suspend the certificate of registration of a contractor and impose an administrative fine or reprimand a contractor if the contractor or its qualifying agent is found guilty of:
(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.
Provisions of Chapter 479 with which Quality Pools failed to comply include a disregard of the ordinances of Sarasota County to be registered before performing pool contracting work and to obtain building permits and inspections for such work.
In undertaking the contract to repair the bottom of the Dittmer's pool and replace the liner, Quality Pools contracted to complete the contract in a workmanlike manner. Here the work was not performed in the manner for which it was contracted, and the evidence is clear and convincing that Quality Pools is guilty of negligence in carrying out the terms of this contract.
Subsection 129.29(1)(k), lists abandonment of a project as grounds for disciplinary action which, when proven, constitutes a violation of subsection (j), above-quoted. Here the evidence is clear and convincing that the project was abandoned by Quality Pools before the contract was completed.
The only evidence presented to show that Respondent is the qualifying contractor for Quality Aquatech Pools and Spas Inc. is his state certification number on the bottom of the contract between Quality Aquatech Pools & Spas and the Dittmers. This contract does not show it was accepted by Respondent; however, the evidence is clear that Quality Pools embarked on the contract thereby accepting the contract.
No evidence was submitted that Respondent authorized his residential pool registration number to be printed on the bottom of Exhibit 5.
In a license disciplinary proceeding the Petitioner has the burden to prove the allegations by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).
While the evidence is clear and convincing that Quality Pools violated the provisions of Section 489.29(1), as alleged, the evidence is not clear and convincing that Respondent was the qualifying agent for Quality Aquatech Pools & Spas.
Although the Administrative Complaint alleges that Respondent's address of record is Brandon, Florida, Exhibit 2 shows Respondent's address of record to be Zeffner, Florida, and that is the address for which his license was renewed and "is active and issued for the 1989-91 licensing period."
From the foregoing it is concluded that Petitioner has failed to prove, by clear and convincing evidence, that John A. Bennett, who holds license number RP 0033592 as a residential pool contractor, was the qualifying agent for Quality Aquatech Pools & Spas at the time the latter company entered into a contract to do work on a pool owned by the Dittmers in Englewood, Florida.
RECOMMENDATION
It is recommended that the charges against John A. Bennett arising out of the contract between the Dittmers and Quality Aquatech Pools & Spas be dismissed.
RECOMMENDED this 5th day of January, 1990, in Tallahassee, Florida.
K. N. AYERS Hearing Officer
Division of Administrative Hearings The Desoto Building
1230 Apalachee Parkway Tallahassee, FL
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 5th day of January, 1990.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-4839
Proposed findings submitted by Petitioner are accepted with the exception of findings 3, 4, 5, 6, 7, 8, 11, 13, 14, 15, 16 and 17 which are rejected for the reason that the evidence submitted does not show Respondent to be the owner or qualifying contractor of Quality Aquatech Pools and Spas with whom the Dittmers contracted. Findings of fact cannot be founded in uncorroborated hearsay evidence not admissible over objection in civil proceedings.
COPIES FURNISHED:
Andrea Bateman, Esquire Department of Professional
Regulation Northwood Centre
1940 North Monroe Street Suite 60
Tallahassee, FL 32399-0792
Michael S. Edenfield, Esquire
206 E. Mason Street Brandon, FL 33511
John A. Bennett 1500 Parsons Avenue
Brandon, FL 33511
Fred Seely Executive Director
Construction Industry Licensing Board Post Office Box 2
Jacksonville, FL 32201
Kenneth E. Easley General Counsel
Department of Professional Regulation
1940 N. Monroe Street Suite 60
Tallahassee, FL 32399-0792
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD
DEPARTMENT OF PROFESSIONAL REGULATION,
Petitioner,
-vs- CASE NO.: 98587
DOAH CASE NO.: 89-4839
JOHN AUSTIN BENNETT, LICENSE NO.: RP 0033592,
Respondent.
/
FINAL ORDER
THIS MATTER came before the Construction Industry Licensing Board pursuant to Section 120.57(1)(b)(9), Florida Statutes, on April 12, 1990, in Palm Beach Gardens, Florida, for consideration of the Recommended Order (a copy of which is attached hereto and incorporated herein by reference). The Petitioner was represented by Ray Shope. 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, including the exceptions filed, the Board makes the following:
FINDINGS OF FACT
That the hearing officer's findings of fact are hereby approved and adopted except where they are in opposition to the exceptions filed by the Petitioner to said finding in which case the Petitioner's Exceptions to Recommended Order are hereby approved and adopted and fully incorporated herein by reference.
CONCLUSIONS OF LAW
The Board has jurisdiction of this matter pursuant to the provisions of Section 120.57(1), and Chapter 489, Florida Statutes.
The hearing officer's conclusions of law are hereby approved and adopted except where they are in opposition to the exceptions filed by the Petitioner to said conclusions in which case the Petitioner's Exceptions to Recommended Order are hereby approved and adopted and fully incorporated herein by reference.
The penalty recommended by the Hearing Officer is hereby rejected for those reasons cited in Petitioner'S Exceptions to Recommended Order which is hereby approved and adopted and fully incorporated herein by reference.
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 two thousand dollars ($2,000) 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, Northwood Centre, 1940 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 13th of July, 1990.
MIKE BLANKENSHIP, CHAIRMAN
Construction Industry Licensing Board
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been provided by U.S. Mail to
John Austin Bennett 2912 Forestwood Drive
Seffner, FL 33584
and by hand delivery/United States Mail to the Board Clerk, Department of Professional Regulation and its Counsel, Northwood Centre, 1940 North Monroe Street, Tallahassee, Florida 0792, on or before 5:00 p.m., this 18th day of July, 1990.
Docket for Case No: 89-004839
Orders for Case No: 89-004839
