STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA CONSTRUCTION INDUSTRY ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 78-1553

)

RICHARD COBB, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Gainesville, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on November 2, 1978. Respondent appeared in propria persona, somewhat belatedly. The hearing officer recounted the substance of the direct testimony of the two witnesses who had already testified and afforded respondent the opportunity to cross examine, an opportunity of which he availed himself.

Petitioner was represented by counsel:

APPEARANCES

For Petitioner: Michael Egan, Esquire

217 South Adams Street Tallahassee, Florida 32302

For Respondent: Richard Cobb, in propria persona

1238 Souhteast 18th Terrace Gainesville, Florida 32601

By administrative complaint dated August 9, 1978, petitioner alleged that respondent entered into a contract with Mrs. Brenda Hanna, undertaking to remove her swimming pool's existing vinyl liner and to "construct steel reinforced walls and bottom;" that respondent "failed to secure a building permit" for the project, thereby violating local building codes for the third time, that the job respondent undertook was outside the scope of his license as a "Pool 'C' Contractor (Pool Service);" and that, "after being paid $720.00 of the contracted price," respondent abandoned the job site which is in a "condition .

. . such that existing construction and materials cannot be used to complete the pool;" all in violation of Section 468.112(2)(a), (g) and (h), Florida Statutes (1977).

FINDINGS OF FACT

1. When the third vinyl liner Brenda Hanna had installed in her swimming pool also ripped, she decided concrete would serve better. A friend referred her to respondent Richard Cobb. Mrs. Hanna and Mr. Cobb entered into a written agreement on March 10, 1977, by which Mr. Cobb undertook, among other things, to cement the pool walls and bottom, in exchange for eighteen hundred eighty

   dollars ($1,880,00). Plumbing was not covered by this agreement. Approximately one month later two workmen began on the project. Work progressed sporadically. Mr. Cobb himself helped remove the vinyl wall, remove aluminum plates, widen the existing excavation and replace the aluminum plates with the intention of using them as part of the forms for pouring the concrete swimming pool walls. Mr.

   Cobb also put some steel bars in place, After several telephone calls, on October 17, 1977, Mrs. Hanna wrote respondent saying he had 15 days in which to resume work and 45 days thereafter to finish. On or about November 1, 1977, respondent appeared at the job site. The last day he worked on the project Mrs. Hanna told Mr. Cobb she would call him when she had gotten the plumbing finished. Mrs. Hanna never told Mr. Cobb not to finish the work he began for her.

   
   

2. On or about March 10, 1977, Mrs. Hanna wrote a check in favor of DLC, a contracting company, in the amount of five hundred dollars ($500.00), which she intended as partial payment under the contract she entered into on March 10, 1977. Two weeks after work began, Mr. Cobb asked Mrs. Hanna for more money, saying that DLC had charged him five hundred dollars ($500.00) for getting the job for him. Mrs. Hanna gave him one hundred dollars ($100.00) at that time, After Mrs. Hanna investigated, she again discussed what had happened to the first five hundred dollars ($500.00) with Mr. Cobb who conceded that some bills were paid with the money. On another occasion, Mrs. Hanna advanced one hundred fifteen dollars ($115.00) which Mr. Cobb used to buy steel.

   
   

3. Before beginning work Mr. Cobb, who held individual swimming pool servicing contractor's license No. RP 2997 from March 17, 1977, till June 30, 1977, secured building permit No. 77-338 to repair Mrs. Hanna's swimming pool.

   
   

4. John F. Viking, an investigator in petitioner's employ since February 15, 1971, issued a notice of violation to Mr. Cobb in 1971 or 1972, when he was told that Mr. Cobb had been contracting without a license. In 1973, on the basis of similar information, he filed a complaint with the state attorney's office which he understood resulted in Mr. Cobb's conviction and probation.

   
   

5. Lester A. Davis, a long time employee of the City of Gainesville and presently its acting building official, visited Mrs. Hanna's residence after Mr. Cobb had begun work and asked Mr. Cobb to show him engineering plans. In Mr. Davis' opinion, the plans Mr. Cobb showed him were not being followed. Mr. Davis told Mr. Cobb that he could finish the job only if he associated a contractor licensed to build swimming pools. Mr. Davis inspected and discovered that the bottom drain had been installed. No other plumbing was required to be done before cementing the pool walls and bottom.

   
   

   CONCLUSIONS OF LAW

   
   

6. Petitioner demonstrated that respondent undertook a job of a kind that he was not authorized by his license to undertake. As a swimming pool servicing contractor, respondent was licensed for the "servicing, repair, water treatment, and maintenance of all swimming pools," Section 468.101(1), Florida Statutes (1977), but not for their construction, even in an existing excavation. A provision of Part II of Chapter 468, Florida Statutes (1977), makes it "unlawful for any person to engage in the business or act in the capacity of a contractor without having been duly registered or certified." Section 468.111(1), Florida Statutes (1977). Petitioner established, therefore, that respondent failed in a "material respect to comply with the provisions of [Part II of Chapter 468]," Section 468.112(2)(g), Florida Statutes (1977).

7. Petitioner also established that respondent secured a building permit for repair of a swimming pool, rather than for the construction of a pool. No evidence was adduced as to "the applicable building codes or laws," Section

   468.112 (2)(a), Florida Statutes (1977), this may have violated, however, and there was no proof that any such violation was "[w]illful or deliberate." Section 468.112(2)(a), Florida Statutes (1977). The earlier alleged violations of local building codes as to which Mr. Viking gave hearsay testimony were not established by competent evidence.

   
   

8. Petitioner established that respondent abandoned a construction project within the meaning of Section 468.112 (2)(h), Florida Statutes (1977).

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That petitioner suspend respondent's license for one year.

DONE and ENTERED this 28th day of November, 1978, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Michael Egan, Esquire Post Office Box 1386

Tallahassee, Florida 32302

Richard Cobb, Esquire

1238 Southest 18th Terrace Gainesville, Florida 32601

================================================================= AGENCY FINAL ORDER

================================================================= BEFORE THE CONSTRUCTION INDUSTRY LICENSING BOARD

FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD,

Petitioner,

vs. CASE NO.: 78-1553

RICHARD COBB, RP 0029977, 1238

S. E. 18th Terrace, Gainesville, Florida 32601,

Respondent.

/

FINAL ORDER OF

FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD

This cause came before the FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD at its regular meeting on February 2, 1979.

Respondent was sent the Hearing Officer's findings and recommendations and was given at least 10 days to submit written exceptions to the recommended order. Respondent was notified of the meeting so that respondent or counsel might appear before the Board. Respondent did not appear.

The FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD on February 2, 1979,

after having reviewed a complete transcript of the administrative hearing, adopted the findings of fact and conclusions of law set forth in the recommended order dated November 28, 1978, and by motion duly made and seconded voted to revoke the registration of RICHARD COBB and assess a fine of $300.00. It is therefore,

ORDERED that the registration of respondent RICHARD COBB, Number RP 0029977, be and is hereby revoked and a fine of $300.00 is assessed.

Respondent is hereby notified that he has 30 days after the date of this final order to appeal pursuant to Chapter 120, Florida Statutes, and the Florida Appellate Rules.

DATED this 2nd day of February, 1979.

FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD

JOHN HENRY JONES PRESIDENT

Docket for Case No: 78-001553

Orders for Case No: 78-001553