STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA CONSTRUCTION INDUSTRY ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1806

)

STEVE A. KLAPACH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the subject cause came on for hearing before the Division of Administrative Hearings' duly designated Hearing Officer, James E. Bradwell, on January 18, 1977, in Daytona Beach, Florida.

APPEARANCES

For Petitioner: David Linn, Esquire

217 South Adams Street Post Office Box 1386

Tallahassee, Florida 32302

The Florida Construction Industry Licensing Board (hereinafter Board), filed an administrative complaint on July 27, 1976, seeking to revoke the licensee, Steve A. Klapach, d/b/a Starfish Pools (hereinafter Respondent) who holds registered pool contractor's license number RP002049, based upon the following allegations:

1. That on October 21, 1975, Respondent and Mr. Jerrell Sparks of Crescent City, Florida entered into a contract for a total cost of $5,150.00 and that after $4,650.00 had been paid by Mr. Sparks to Respondent, Respondent delivered a fiberglass shell to the Sparks' residence which was left upside down and no further work was done.

   
   

2. That Brian Michaels, Putnam County Codes Administrator advised Respondent by certified letter on August 29, 1975, that he could not operate in Putnam County as a pool contractor without either a Putnam County Certificate of Competency or a state certification. Further that County Ordinances required a plot plan and plan approval before issuance of a pool permit.

   
   

3. That the contract which Respondent entered into with Mr. Jerrell Sparks contained a notation "customer to obtain permit" which was obviously a subterfuge on the Respondent's part inasmuch as he had been previously advised that he could not do business in Putnam County without the County Certificate.

   
   

4. That Respondent and Mr. K.L. Rue, of Ormond Beach, Florida, entered into a contract for the construction of a swimming pool for $5,200.00 and that

   Mr. Rue had to expend approximately $2,000.00 in additional monies to complete construction of the pool.

   
   

5. That Respondent entered a contract with Mr. Tom McConnell of Palatka, Florida to build a pool and that after Mr. McConnell gave Respondent a $500.00 security deposit, Respondent never returned nor refunded the deposit. Based thereon, the Board alleges that the above allegations constitute violations of Chapter 468.112(2)(a) and 468.112(2)(e), Florida Statutes, viz, wilful or deliberate disregard of the applicable building codes or laws of the state or any municipalities, cities or counties thereof; diversion of funds or property received for prosecution or completion of a specified construction project or operation where as a result of the diversion the contractor is or will be unable to fulfill the terms of his obligations or contract. Therefore the Board seeks to revoke Respondent's registered pool contractor's license RP002049.

Based upon my observation of the witnesses and their demeanor while testifying, I make the following:

FINDINGS OF FACT

1. Brian E. Michaels, the Codes Administrator for Putnam County testified that he regulates the building codes in Putnam County and is in charge with the effective administration thereof. He testified that the pertinent regulations and codes relative to the construction of swimming pools in Putnam County are Ordinances 73-6 and 75-4. (See Petitioner's Exhibits number 2, and number 3, received in evidence). Michaels testified that after seeing an advertisement in the Palatka Daily News on august 6, 1975, his office advised Respondent's office on two occasions to apprise him of certain local laws regulating contractors and the business of contracting. When Respondent failed to respond to approximately three phone calls to its office, Michaels advised Respondent by certified letter dated August 28, 1975, that swimming pool contractors desiring to operate in Putnam County must be locally certified even if they hold state registration.

   He advised Respondent that if he in fact was state certified that he could send a copy of his certificate for Putnam County official files and to discuss with their office procedures for obtaining a certification in Putnam County. He further advised that the county had adopted the standard swimming pool code, 1974 edition, which requires a plot plan as well as a plan approved before a pool permit could be issued. (See Petitioner's Composite Exhibit number 5).

   Michaels explained the procedures for complying with the County's certification process which included the filing of an application; taking an exam and receiving a score of at least 70 percent; posting of a $5,000.00 bond; payment of a $50.00 fee which should be included with the application which should also have included a recent photo and the issuance of an occupational license.

   Additionally, he advised that it was necessary to comply with registration and requirements of the Florida Construction Industry Licensing Board under Chapter 468; Florida Statutes, within 90 days. Michaels testified that Respondent received his certified letter dated August 28, 1975, the following day. (See Petitioner's Composite Exhibit number 5). Section 1020 of Ordinance No. 75-6 of the zone ordinances of Putnam County states in pertinent part that building and related permits issued by the chief building official are required in advance of the construction, erection, demolition, moving, destruction, or alteration of any building or structure with a completed evaluation of $1,000.00. (See Petitioner's Exhibit number 6). On May 27, 1975, the Putnam County Board of County Commissioners enacted Putnam County Ordinance no. 75-4, which ordinance adopted by reference the Southern Standard Swimming Pool Code, 1974 edition, which provided for the adoption of a fee schedule and charges for the issuance

   of permits to "defray the costs of inspections". (See Petitioner's Exhibit number 7).

   
   

2. Jerrell Sparks of Crescent City, testified that he contacted Respondent regarding the construction of a swimming pool during the fall of 1975 following his visit to a building show. On October 21, 1975, Sparks entered into a contract with Terry Michaels, a partner of Respondent, Steve Klapach, d/b/a Starfish Pools for a total price of $5,150.00. At the execution of the contract, Sparks paid Respondent $200.00 and agreed to pay an additional

   $1,300.00 on November 5, 1975. (See Petitioner's Exhibit number 8, received and made a part herein). Sparks testified that Respondent made the financial arrangements with a mortgage broker in Jacksonville and that Respondent was paid

   $4,650.00. The construction completed by Respondent consisted of the excavation for the pool and delivery of the pool shell. He testified that he obtained a homeowner's permit but that Respondent did not obtain a permit for the installation of the swimming pool.

   
   

3. Tom McConnell of Palatka, testified that he contacted the Respondent regarding a $2,000.00 pool kit which he had seen advertised. He testified that Respondent's partner, Tony Michaels, visited his home on October 14, 1975, at which time he executed a contract for the installation of a pool for a total price of $5,714.00. When the contract was executed, McConnell secured it by an advance payment of $500.00 and he thereafter was never able to contact Respondent. (See Petitioner's Exhibit number 9, received in evidence and made a part hereof).

   
   

4. Kenneth L. Rue of Ormond Beach contacted the Respondent based on an ad which appeared in the Sunday supplement of the Daytona Beach News Paper. On August 21, 1975, Rue entered into a contract with Respondent's partner, Tony Michaels and a Mr. Charles Van Dent for the construction of a pool for the total price of $5,200.00. He paid Respondent $500.00 when the contract was executed and paid an additional $4,200.00 when the pool was delivered. He testified that Respondent removed shrubbery and palm trees where the pool was to be positioned and thereafter the excavation and the necessary site preparation was readied. Thereafter the pool was positioned and the plumbing and electrical-fixtures were connected. He testified that the pool did not comply with the specifications as called for in the contract which by its term called for a kidney shaped pool with dimensions of 27' X 13' and a depth of a minimum of 3 and a maximum of 5 feet. He testified that the actual dimensions of the pool installed was 25' x 11' and the depth ranged from 26" to 47". He testified that after the pool was installed it began leaking around the "circulation area" and that when he contacted the Respondent, the pool was removed and Respondent agreed to install any size pool that he desired. The pool called for in the contract was a fiberglass pool however Respondent opted for the installation of a vinyl liner pool. On November 11, 1975, Respondent sent two employees out to make forms for the construction of the pool but since that time, he has had no further contact with Respondent despite repeated attempts. He paid Respondent approximately

   $4,700.00 of the $5,200.00 contract price and paid another contractor an additional $2,300.00 to complete construction of the swimming pool. (See Petitioner's Composite Exhibit number 10)

   
   

5. Brian Michaels was recalled and testified that Respondent never was issued building permits for the McConnell or Sparks projects.

   
   

6. The Board introduced into evidence documents showing that Respondent, Steve A. Klapach, RP22049 was registered with the Florida Construction Industry

   Licensing Board as an active swimming pool contractor during 1975 in the period September, 1975 to December, 1975. (See Petitioner's Exhibit number 1).

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action.

   
   

8. The action of the Defendant in the above transactions indicate that he failed to comply with the applicable building codes and laws of Putnam County and constitute violations of Chapter 468.112(2)(a), Florida Statutes.

   
   

9. The action of the Defendant in the above transactions whereby he received certain monies pursuant to contracts which he entered into with Messrs. Sparks, Rue and Connell and his failure to fulfill the terms of his obligations pursuant to those contracts constitute a diversion of funds which he received for the completion of specified construction projects and constitute a violation of Chapter 468.112(2)(e), Florida Statutes.

RECOMMENDED ORDER

Based upon the foregoing findings of fact and conclusions of law, it is, hereby,

RECOMMENDED:

1. That the Defendant's registration with the Florida Construction Industry Licensing Board as a registered pool contractor's license be revoked.

RECOMMENDED this 28th day of January, 1977, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675

COPIES FURNISHED:

David Linn, Esquire

217 South Adams Street Post Office Box 1386

Tallahassee, Florida 32302

Mr. Steve A. Klapach Box 3205

Cocoa, Florida 32922

Docket for Case No: 76-001806

Orders for Case No: 76-001806