STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN MORRIS, )

)

Petitioner, )

)

vs. ) CASE NO. 80-1562

) STATE OF FLORIDA, DEPARTMENT OF ) HEALTH AND REHABILITATIVE )

SERVICES, )

)

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 7 October 1980 at Miami, Florida.

APPEARANCES

For Petitioner: James J. McVeigh, Esquire

Post Office Box 010611 Miami, Florida 33101

For Respondent: Leonard Helfand, Esquire

HRS District XI Attorney

401 Northwest 2nd Avenue, Suite 1040 Miami, Florida 33128

By letter dated July 31, 1980 Petitioner, by and through his attorney, requested an administrative hearing in his contract dispute with Respondent. John Morris in Case No. 79-11215 in the Circuit Court in and for Dade County, Florida sued the Department of Health and Rehabilitative Services (HRS) for

$2,860 claimed due for pool maintenance performed by Morris between July 1 and December 15, 1977. The court, on motion for judgment on the pleadings by Defendant in that action, ruled that Morris had not exhausted his administrative remedies and the Circuit Court proceedings were stayed pending a Chapter 120, Florida Statutes proceeding.

In his complaint, Morris alleges he performed services for HRS at the Sunland Center in Miami pursuant to an oral contract at the monthly rate of $520 during the period July 1, 1977 through December 15, 1977. Respondent denies any contract existed or that Respondent performed satisfactory services.

Three witnesses were called by Petitioner, five witnesses were called by Respondent and five exhibits were admitted into evidence. Proposed findings of fact submitted and not included below were not supported by competent and substantial evidence or were deemed immaterial to the results reached.

FINDINGS OF FACT

1. In 1975 and 1976 John Morris, d/b/a Morris Pool Service, maintained the swimming pool at the Sunland Center in Miami, Florida under a contract with HRS. The contract for the year commencing July 1, 1976 and expiring June 30, 1977 (Exhibit 1) provided generally for Morris to maintain the Sunland Center pool for which he would be paid $520 per month. This contract further provided that a representative of Morris Pool Service check each day except Saturday and Sunday with Ms. O'Donohue, the Director of Training, or her successor.

   
   

2. Recreation personnel at Sunland Center hoped to open the pool on Memorial Day; however, an impeller for the pump needed replacement and the pool was inoperative for some six weeks in May and June awaiting this part. During this time petitioner did little or no maintenance and the pool's condition was bad enough for the Superintendent to become involved and request a report from the Programs and Services Director (Exhibit 4). When the impeller did arrive in mid-June, 1977, the pool was in such bad shape it was necessary to drain the pool, scrub, and acid-wash the walls and floor of the pool to remove the accumulated algae and scum. Even a colony of frogs had taken up residence in the pool during this period.

   
   

3. As a result of additional delays the next hoped-for opening date of July 4 was also missed. The pool was finally ready for operation and was opened the week following July 4, 1977.

   
   

4. Although opened the water in the pool was not properly maintained by cleaning and chlorinating. In the latter part of July the gas chlorinator became inoperative and the pool's condition deteriorated as no chlorine was being added to the water.

   
   

5. Under the contract Petitioner was to provide materials necessary to keep the pool water in a balanced condition. This contract expired on June 30, 1977. Nevertheless, Petitioner purported to continue working under the expired contract, pending the issuance of a new contract for 1977-1978. While the gas chlorinator was inoperative Petitioner did not hand-feed chlorine to the pool to maintain the proper chlorine level and to keep algae from growing.

   
   

6. By early August, 1977, the pool had become so bad the supervisory personnel at Sunland Center called the Dade County Health Department to inspect the pool. A report of that inspection showing the pool unfit for use was admitted into evidence as Exhibit 3.

   
   

7. Following the Superintendent's inquiry to Ms. Titus about the condition of the pool in June, 1977, she contacted Petitioner, who told her the pool would he hack in operation as soon as the impeller was received. Ms. Titus was the successor to Ms. O'Donohue and she told Petitioner to keep her advised regarding the status of the pool.

   
   

8. Although the contract (Exhibit 1) required Petitioner to report to Ms. Titus daily (except Saturday and Sunday) she did not see him again, nor did she receive any report that he came to her office. Petitioner contends that he attempted to report to Ms. Titus but was unable to find her in her office and after a few attempts stopped trying. Ms. Titus and her assistant were both equipped with beepers and could be contacted any time of day by their office if they were out of the office.

9. Following the Health Department's inspection on August 9, 1977, the pool was closed for several days, then reopened around mid-August after the chlorinator was repaired. When the pool was reopened in August its condition was barely satisfactory. Shortly after Labor Day the pool was again closed and remained closed throughout the balance of 1977.

   
   

10. By October, the Sunland Center officials decided they should notify Petitioner that his contract would not be renewed for the 1977-1978 year and a letter dated October 27, 1977 (Exhibit 2) was forwarded to him by registered mail. This letter was mailed to an old address for Petitioner, was returned to the sender and remailed to the proper address. As a result, the letter was not received by Petitioner until December 14 or 15, 1977.

    
    

11. Petitioner submitted bills to Respondent for services for the period July 1, 1977 through December 15, 1977, the approximate date he received Exhibit 2.

    
    

12. Following August 10, 1977 some of Respondent's employees in the maintenance department saw Petitioner in the cafeteria at Sunland Center and on the premises, but none of them reported seeing Petitioner do any work on the pool. Petitioner contends he worked on the pool on a daily basis, however, the condition of the pool casts serious doubts on this testimony.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

    
    

14. The contract between Petitioner and Respondent expired by its own terms on June 30, 1977 and was not renewed. However, pending the execution of a pool maintenance contract for the period subsequent to July 1, 1977 Respondent, by actions of its employees, tacitly or expressly requested Petitioner to maintain the swimming pool at Sunland Center.

    
    

15. Accordingly, Petitioner is not in the position of a pure volunteer and is entitled to compensation for the work he actually performed that redounded to the benefit of Respondent. In early July, 1977, Petitioner continued his work leading to the opening of the pool and he again worked on the pool following the chlorinator failure in late July, 1977. Whether Petitioner worked on the pool after August 9 is disputed; however, the preponderance of the evidence is that Petitioner did some work on the pool following the August 9, 1977 inspection by the Health Department.

    
    

16. The value of the services provided by Petitioner after July 1, 1977, upon which a quantum meruit payment must be based, was not shown to be particularly valuable to Respondent. The pool's condition was marginal at best and was probably not safe for use during those periods in August and September it was actually used. It is clear that each time the automatic chlorinator failed to work Petitioner added no chlorine to the pool until the chlorinator was repaired.

    
    

17. Considering the evidence most favorable to Petitioner it is concluded that, following July 1, 1977 when the contract expired, Petitioner performed services for Respondent for which he should be compensated. However, this period during which he performed services of a benefit to Respondent covered less than one and one-half months. It is therefore

RECOMMENDED that Petitioner be paid $750 for the services he provided in maintaining the swimming pool at Sunland Center, Miami after July 1, 1977.

Entered this 24th day of October, 1980.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

James J. McVeigh, Esquire P. O. Box 010611

Miami, Florida 33101

Leonard Helfand, Esquire HRS District XI Attorney

Suite 1040, 401 Northwest 2nd Avenue

Miami, Florida 33128

Docket for Case No: 80-001562

Orders for Case No: 80-001562