Channell had been found to have violated the provisions of Chapter 501, Florida Statutes, by the Circuit Court of the Thirteenth Judicial Circuit; that he had commenced construction of pools without acquiring a building permit as required by the building code of the county of Hillsborough; and that he had constructed a residential pool which considering its intended use should have been constructed to commercial pool standards in violation of Chapter 10D-5, Florida Administrative Code, all of the foregoing constituting a violation of Section 468.112(2)(a), Florida Statutes.
For Respondent: Robert C. Channell, pro se
Robert C. Channell is a registered pool contractor holding License No. RP0024653 issued by the Florida Construction Industry Licensing Board.
A copy of the Circuit Court of the Thirteenth Judicial Circuit finding that Robert C. Channell had violated Section 501.204, Florida Statutes, and the rules and regulations adopted pursuant to Chapter 501, Florida Statutes, was introduced to prove that he had violated Section 468.112(2)(a), Florida Statutes. An order of contempt was also introduced to show that Robert C. Channell had violated the Court's original injunctive order.
Robert Berndt contracted with Robert C. Channell for the construction of a pool at his residence. Subsequently, employees of Robert C. Channell cleared trees from the back of Berndt's residence and construction of a pool was begun by excavation of a hole in Berndt's backyard. Eli Jackson indicated that he had contracted with Robert C. Channell to build a pool at Tyrone Mobile Home Park which Jackson owned. Robert Channell did not apply nor obtain a building permit for the construction of pools at the residence of Robert Berndt or at the Tyrone Mobile Home Park. Robert Thomas indicated that he had inspected the pool constructed at Tyrone Mobile Home Park and determined that no permit had been obtained for construction of said pool, and further that the pool was constructed to residential standards. From the location of the pool it was clearly for the use of residents of Tyrone Mobile Home Park. There were eighty
(80) or more families residing in Tyrone Mobile Home Park.
On September 30, 1976, Robert C. Channell's license as a pool contractor in Hillsborough County had expired and was not renewed by the county. Subsequently, Channell contracted to build a pool for Randall Harris, who obtained the permit to construct a pool as owner of the property. Although Harris did some work on the pool, Channell was paid $7,200 to remove trees, work on the pool and construct a fence. Electrical work was done by an electrical contractor.
Berndt complained that Channell was slow in starting his pool and did not receive many extras for which he had contracted with Channell. The delay in construction was the apparent result of Channell's attempts to finish projects underway in compliance with the requests of Mr. Shaw, the Building and Zone Director of Hillsborough County. Eli Jackson, the owner of Tyrone Mobile Home Park, and Randall Harris were both pleased with the pools Channell constructed for then.
CONCLUSIONS OF LAW
Section 468.112(2)(a), Florida Statutes, provides as follows: "(2) The following acts constitute cause
for disciplinary action:
Willful or deliberate disregard and violation of the applicable building codes or laws of the state or any municipalities, cities or counties thereof."
The first allegation against Robert C. Channell is that he has willfully and deliberately violated Chapter 501, Part II. As the sole evidence of the alleged violation the Board introduced certified copies of the Final Judgment, Modification to the Final Judgment, Petition for Order to Show Cause, Order to Show Cause, and Order of Contempt in the case of Department of Legal Affairs v. Robert C. Channell Case Number 74-9191, Division D, Circuit Court, Thirteenth Judicial Circuit, Hillsborough County, Florida. The first legal issue to be resolved is whether this constitutes substantial and competent evidence of the allegation.
The statute makes "violation" of the codes or laws grounds for disciplinary action and not "having been found to have violated" the code and laws grounds for action. Therefore, it is not the act of having been found to be in violation that is grounds for disciplinary action, but violation itself.
As a general rule a final judgment may he admissible in a subsequent action if it is relevant to an issue or issues involved in the subsequent action. The judgment may be offered to prove a fact collateral to issues involved in the principal case, such as introduction of a record of criminal conviction to prove the legal infamy of a witness. The judgment may be offered to show a prior course of conduct taken by a party to the case. The judgment may be offered to show the acquisition or divestiture of certain legal rights through the judgment or proceeding held thereunder, such as in an action on the judgment. The judgment may be offered in evidence for the purpose of showing that an issue involved in the principal case, or the cause of action involved in the principal case has been previously adjudicated. However, except where the principle of res judicata is involved, the previous findings of a court cannot be used as evidence of the fact found. Furthermore, the judgment is inadmissible if it is irrelevant to, or is too remote as proof of an issue in the principal case, or if its relevance can only be established through collateral inquiry. 30 Am. Jur.2d, Evidence, Section 978.
The judgment may be admitted for or against parties to the action in which the judgment was rendered; however, it is well settled that res judicata does not affect strangers to a judgment, unless the judgment was one in rem. See Am. Jur.2d, Evidence, Section 980.
It can be seen that if the judgment of the Circuit Court is to be evidence of the finding by that Court that Robert C. Channell violated a law of the state, the doctrine of res judicata must be determined to be applicable.
The doctrine of res judicata is one designed to provide conclusiveness of judgments. The res judicata doctrine is stated as follows:
"An existing final judgment rendered on the merits, without fraud or collusion, by a court of competent jurisdiction, is
conclusive of causes of action and of facts and issues thereby litigated as to the parties and their privies, in all other actions in the same or any other judicial tribunal of concurrent jurisdiction."
46 Am. Jur.2d, Judgments, Section 1394.
The doctrine reflects the refusal of the law to tolerate a multiplicity of, or needless litigation and is based on the premise that the interest of the proper administration of justice is best served by limiting parties to one fair trial of an issue or cause. 46 Am. Jur.2d, Judgments, Section 395.
The doctrine has two distinct aspects or applications and the rules affecting the application of each vary in some important details. The doctrine can be applied to bar a second prosecution of a second action upon the same claim, demand or cause, or it can preclude the relitigation of particular facts or issues in another action. The term res judicata has been applied to both, but the more recent tendency is to describe the latter aspect of the doctrine as "collateral estoppel."
To bar the second action, the doctrine requires that the two causes of action must be the same. However, application of the rule is more difficult than stating it. Generally it may be said that res judicata bars relitigation of the same controversy. Two actions have been deemed to be based upon the same cause of action if the causes in the first action were broad enough to
comprehend all of the issues in the second action. To determine if the actions are the same, the following tests have been considered by the courts. Identity of the same subject matter has been advanced to test the identity of the actions, but it is not conclusive. Identity of times of accrual is also a test, and is applied. Identity of acts or transactions giving rise to the cause of action is also a useful test. Identity of facts and evidence to sustain both actions has been described as the best test. Identity of the form of action, the identity of the relief sought or object of the action, and identity of the grounds for relief are not necessarily proper tests.
The degree of proof required in the second action must be at least as great as that required to support recovery in the first action, and that if the degree of proof in the first action is greater than that of the second action, the cause of action cannot be held to be the same. 46 Am. Jur.2d, Judgments, Section 406 et seq.
Concerning preclusion of the relitigation of issues, or collateral estoppel, it is a fundamental principle that material facts or questions which were directly at issue in a former action, and were there admitted or judicially determined, are conclusively settled by the judgment in the case, and that such facts or questions become res judicata and may not be relitigated in a subsequent action between the parties or their privies, regardless of the form that the issue may take in the subsequent action. This rule precluding relitigation of facts or questions formerly in issue applies whether the issue decided in the earlier case was presented as a grounds of recovery or as a defense; whether the issue was decided in favor of the plaintiff or defendant; and even though the second action is in a different form of proceeding, is upon a different cause of action, and involves a different subject matter, claim, or demand than the first case. It is likewise immaterial that the two actions have a different scope, have different grounds, different theories, different purposes, or seek different relief. The only limitation to application of the doctrine is that when the two cases are predicated on different causes of action, the doctrine is confined to issues of fact or at least to mixed issues of fact and law. Therefore, the second court is not bound by erroneous propositions of law applied by the first court. 46 An. Jur.2d, Judgments, Section 415, et seq.
Res judicata is predicated upon a judgment of the merits in the first action. Therefore, a judgment decided on any grounds which does not involve the merits may not be a basis for application of the doctrine. A judgment on the merits is one based on the legal rights and liabilities of the parties as opposed to one based on technical or dilatory objections or contentions, or one based on form, or on practice or procedure. It is a judgment which determines which party is right as to the cause of action. As to a default judgment, the general rule as to conclusiveness of judgments applies to default judgment. Default judgments are generally conclusive an adjudication between the parties and their privies. Res judicata would bar any second suit between the parties and their privies upon the same cause of action in which a default had been entered. Because a judgment is essential to the application of res judicata, the mere entry of a default without rendition of a default judgment will not trigger application of the doctrine. However, difficult problems arise when a default judgment is relied upon to collaterally estop the relitigation in a different cause of action of issues or questions settled by the entry of the default judgment in a proceeding action. The best rule is that a judgment in one cause of action is not conclusive in a subsequent and different cause of action as to questions of fact not actually litigated and determined in the first action. Under this rule a default would never operate as collateral
estoppel. See Blanchard v. Stribbings, 157 Fla. 10, 24 So.2d 713, in which the Court quoted from McEwen et ux v. Growers Loan & Guarantee Co., et al., 116 Fla. 540, 156 So. 526, at 528:
"In all cases, therefore, where it is sought to apply the estoppel of a judg- ment or degree rendered upon one cause of action to matters arising on a suit upon a different cause of action, the inquiry must always be as to the point or question actually litigated and determined in the original action, not what might have been thus litigated and determined."
The Court concluded that a judgment of default only admits for the purposes of the action the legality of the demand or claim in suit; it does not make the allegations of the declaration or complaint evidence in am action upon a different claim.
Referring to the final order, Exhibit 2, introduced to by the Board, it recites that the final order was entered after a default was entered by the Clerk of Court against Robert C. Channell for failure to serve any papers on plaintiff or to file any papers as required by law. Although the parties were present at final hearing, Robert C. Channell was unable to present any evidence relating to the allegation against him that he had violated Section 501.204, Florida Statutes, and the rules promulgated thereunto. Therefore, the issue of his violation was not fully litigated and determined and the default was an admission of the legality of the claim in that action only. The judgment cannot be admitted as proof of Robert C. Channell's violation of Chapter 501 in this action.
Further, the allegation of violation of Chapter 501, Part II, relates to deceptive and unfair trade practice. The construction applied by the Board is that violation of any state law is a violation of Section 468.112(2)(a), supra. This is not a reasonable interpretation of this provision in which the adjective "building" is used to modify and describe both "codes" and "laws." Limitation to building codes and laws is necessary because the case laws have settled that a violation of any law may not constitute a grounds for disciplinary action against a licensee. The limitation of Section 468.112(2)(a), Florida Statutes, to violations of "building codes and laws" clearly limits the disciplinary authority of the Board legally cognizable violations.
The provisions of Chapter 501, Part II, were enacted for express purpose of controlling unfair and deceptive trade practices, while Part II of Chapter 468 was enacted to regulate contractors. One cannot say that a violation of Chapter 501, Part II, per se relates to a contractor's ability to engage in contractings. The evidence presented at hearing does not elaborate on the nature of Robert C. Channell's acts to an extent necessary to create a nexus to relate his contracting activities. Therefore, assuming arguendo that Robert
C. Channell did violate the provisions of Chapter 501, Part II, the evidence does not place his activity within the Board's scope of discipline of the licensees.
The Board has also charged that Robert C. Channell violated the provisions of the South Florida Building Code as adopted by Hillsborough County. This code requires that a building permit be applied for and obtained prior to
commercial construction activity. The facts show that on two separate occasions Robert C. Channell violated this provision. The facts also show that subsequent to expiration of his local license, Robert C. Channell engaged in pool contracting providing services for the construction of a pool to James Cote. In this instance Robert C. Channell failed to obtain a license and permit to construct said pool, although he was in fact the contractor, in violation of the local building code.
Lastly, the Board charged Robert C. Channell with violation of Chapter 10D-5, Florida Administrative Code. This provision related to health regulations of swimming pools. Section 10D-5.02(2) states that the chapter is designed to regulate swimming pools insofar as their design, construction, operation, maintenance and management. The evidence shows Robert C. Channell violated this provision by constructing a swimming pool which meets the definition of a public pool under Section 10D-5.01, Florida Administrative Code, without complying with 10D-5.04, Florida Administrative Code. It is a state law regulating construction of pools, and therefore the Board can clearly discipline a licensee for violation of its provisions pursuant to Section 468.112(2)(a), Florida Statutes.
