STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY CONSTRUCTION ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 94-7207

)

LARRY L. BOSWORTH, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Largo, Florida on March 6, 1995, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: William J. Owens, Executive Director

Pinellas County Construction Licensing Board

11701 Belcher Road

Largo, Florida 34643-5116

For Respondent: Larry J. Bosworth, pro se

8901 14th Street North

St. Petersburg, Florida 33716 STATEMENT OF THE ISSUES

The issue for consideration in this hearing is whether Respondent's certification as an irrigation system specialty contractor should be disciplined because of the matters alleged in the Administrative Complaint filed herein.

PRELIMINARY MATTERS

By Administrative Complaint dated November 23, 1994, William J. Owens, Executive Director of the Pinellas County Construction Licensing Board, charged Respondent, Larry J. Bosworth, with installing and connecting to the potable water system of the City of St. Petersburg an irrigation system for a customer without first securing a permit; failing to install a backflow preventer into the system; and failing to supervise the work of his employees, the first two in violation of Sections 103 and 1204, respectively, of the Standard Plumbing Code, and the last in violation of Section 24(2), Chapter 75-489, Laws of Florida.

Respondent denied the allegations and requested formal hearing and this hearing ensued.

At the hearing, Petitioner presented the testimony of William J. Schneider, the individual with whom Respondent contracted for the installation of the

irrigation system; John R. Williams, an irrigation systems specialty contractor; Lori J. Whitted, an official with the St. Petersburg Building Department; and the Respondent, Larry J. Bosworth. Petitioner also introduced Petitioner's Exhibits 1 through 5. Respondent testified in his own behalf and presented the testimony of Ken Freestone, his sales manager, and introduced Respondent's Exhibits A and B.

No transcript of the proceedings was submitted. Subsequent to the hearing, neither party submitted Proposed Findings of Fact.

FINDINGS OF FACT

1. At all times pertinent to the allegations herein, the Petitioner, Pinellas County Construction Licensing Board, (Board), was the Pinellas County agency responsible for the certification and regulation of construction specialties. Respondent was certified by the Board as an irrigation systems specialty contractor under license C-5997 in force at the time. Respondent was the qualifying contractor for Sun City Lawn Irrigation.

   
   

2. On or about May 17, 1994, Respondent contracted with William J. Schneider, who resided at 5661 25th Avenue North in St. Petersburg, to install a lawn irrigation system in Mr. Schneider's front lawn. The automatic system was to incorporate 2 zones and was, according to the contract and the testimony of Mr. Schneider, to be connected to Schneider's then existing 1/2 horsepower electric pump which drew water from several wells on his property. Mr. Schneider claims there are four wells. No evidence was introduced to contradict that.

   
   

3. On the day the system was installed, Mr. Schneider was not at home. Respondent's employees performed a test of the water capacity on Mr. Schneider's property. At first, the wells produced 10 gpm, which was adequate for the system, but after a few minutes of drawdown, they found that the wells were producing only 4 gpm, along with some air. At that time Mr. Freestone, Respondent's sales manager, spoke with Mrs. Schneider about the situation, advising her there were two options open. One was to install a larger pump and the second was to connect the system to the city water supply. Mrs. Schneider returned to the house, presumably to call Mr. Schneider to get his decision on the matter. He claims she did not reach him. Respondent claims that she thereafter returned with directions to install a water line for connection to the city system. This is completely contrary to what Mr. Schneider had wanted and to what is included in the contract. Mr. Schneider claims he did not want to connect to city water because of the added expense of doing so, and he claims he made this very clear to Respondent's employees at the beginning and at all times thereafter.

   
   

4. In any case, the system was installed and was, somehow, connected to the city water system near the place where the water line enters the house. In addition, no backflow preventer was installed to insure against contamination getting into the water system as is required by the building code.

   
   

5. Most, if not all, the work on this project was completed by Respondent's son and employee, Scott, who was not present at the hearing. Respondent attempted to introduce an unsworn written statement by Scott Bosworth, but it was not accepted. Scott advised Mr. Schneider, when he returned from work that day, that they had been unable to use his pump and wells. Nonetheless, Mr. Schneider paid Respondent in full for the work for which he had contracted, except for a supplemental charge in the amount of

   $190.95 for the tie in to the city water and the valves and other items connected therewith.

   
   

6. Mr. Schneider claims that he made several calls to Respondent's office in an effort to correct the situation but was unable to reach anyone who could give him satisfaction. However, the evidence indicates that on at least one occasion, Mr. Schneider got through and was called back by Mr. Freestone with whom he discussed the situation and the additional charges. He was subsequently advised by counsel that he did not have to pay the additional sum and did not do so.

   
   

7. Some time thereafter, Mr. Schneider was advised by the city that he would be fined because of the illegal installation. He then contacted another irrigation company, run by Mr. Williams, who examined the system and determined that the irrigation system installed by Respondent had been connected to the city water system and that no backflow preventer had been installed. A check with the city's building department revealed that no permit had been procured for this installation.

   
   

8. Respondent's license to install irrigation systems does not include authority to connect that system with the public water system. That procedure must be done by a licensed plumber. Respondent and Mr. Freestone, the only individuals in the company who had the authority to arrange with a plumber to make the actual hook up to the city system, both deny that any arrangement was made by them to have the system connected to the city water system.

   
   

9. Mr. Schneider arrived home on the day in question to find only Respondent's son, Scott, at work on the project. Scott indicated it would be necessary to move two bushes near the house to facilitate connection of the system with the water supply. Mr. Schneider contracted with Scott to move the bushes and remove them from the premises. Scott moved them but failed to remove them. In light of the fact that Scott was working on the system at the time Mr. Schneider arrived home, and the system was found to be connected to the city system thereafter without anyone else touching it, it must be concluded that the connection was made him. Respondent admits he did not come to the property in question while the system was being installed.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

11. Through the provisions of Chapter 74-489, Laws of Florida, the Florida Legislature created the Pinellas County Construction Licensing Board and empowered it to regulate the construction industry in that county. Section 11(3) of that law relates to the activities of Irrigation System Specialty Contractors.

    
    

12. Section 24 (2) of the Law defines those activities which constitute cause for disciplinary action. Pertinent to the issues herein, these include:

    
    

    (d) Willfully or deliberately disregarding and violating the applicable building codes or laws of the state, [the] board, or of any municipality or county of this state.

    * * *

    (j) Failing [in] any material respect to comply with the provisions of this part.

    * * *

    1. Being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.

       * * *

    2. Proceeding on any job without obtaining applicable local building department permits and inspections.

    
    

13. In this case, the Board has alleged that in accomplishing the installation of the Schneider sprinkler system, Respondent connected the system to the city's potable water system without first securing a permit to do so; failed to install a backflow preventer in the system between the water connection and the sprinkler system; and failed to properly supervise the work of his employees, alleged to be gross negligence, incompetency or misconduct in the practice of contracting.

    
    

14. The evidence of record clearly establishes that Respondent contracted with Mr. Schneider for the installation of a sprinkler system on his property. The contract provides, a paragraph 3, that the company, (Respondent) agrees: (A) the installation will be in accordance with local ordinance and plumbing codes, and (B) the installation will be supervised by authorized sprinkler irrigation mechanics. The contract also notes that the system will be connected to a 1/2 hp pump delivering 10 gallons of water per minute. Nowhere on the contract is there any provision for connection to the city potable water system.

    
    

15. The evidence also indicates that Mr. Schneider made it quite clear he did not want the sprinkler system connected to the city water supply primarily because of the cost factor. One can assume, however, that Mrs. Schneider may have given contrary instructions to Respondent's crew the morning they arrived when given the water source options. In any case, and assuming, arguendo, that she did authorize connection with the city water, Respondent nevertheless still had the responsibility to procure the appropriate permit before doing so and to insure that the installation conformed to the pertinent building codes. This would involve the installation of a backflow preventer. It is abundantly clear that neither was done.

    
    

16. This constitutes a violation of Section 24(d), (j) and (n) of the Law, and, as misconduct, a violation of subsection (m). Respondent's leaving the job in the hands of his son, without proper supervision by either himself or another qualified supervisor, is, itself, evidence of negligence and is a violation of Section 14(m) of the Law.

    
    

17. Section 24(6) of the Law, provides for disciplinary action in the event any certificate holder or registrant is found guilty of a violation. These include suspension or revocation of a certificate or registration, imposition of an administrative fine not to exceed $1,000, and restitution and the imposition of investigative costs. The Board has suggested no specific penalty in the event of a finding of guilt.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that a Final Order be issued by the Board suspending the license of the Respondent for a period of six months with provision for withholding execution of the suspension for a period of one year conditioned upon such criteria as may be deemed appropriate by the Board.

RECOMMENDED this 31st day of March, 1995, in Tallahassee, Florida.

ARNOLD H. POLLOCK

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 31st day of March, 1995.

COPIES FURNISHED:

William J. Owens Executive Director

Pinellas County Construction Licensing Board

11701 Belcher Road

Largo, Florida 34643-5116

Larry J. Bosworth

8901 14th Street North

St. Petersburg, Florida 33716

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.

Docket for Case No: 94-007207

Orders for Case No: 94-007207