STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, FLORIDA CONSTRUCTION ) INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 80-2029

) WILLIAM R. RIFENBURGH, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, hearing was held in Ft. Lauderdale, Florida on April 14, 1981, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter. The parties were represented by:

For Petitioner: Charles F. Tunnicliff, Esquire

Assistant General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Andrew M. Chansen, Esquire

2000 East Oakland Park Boulevard, Suite 108 Ft. Lauderdale, Florida 33306

This matter arose an Petitioner's Administrative Complaint which alleges that Respondent violated Subsections 468.112(2)(a) 468.112(2)(f) and 468.112(2)(h), Florida Statutes (1977). These provisions establish Petitioner's authority to take disciplinary action when a contractor violates a municipal building code, has disciplinary action taken against him by a local regulatory body or abandons a construction project.

FINDINGS OF FACT

1. William R. Rifenburgh, Jr. is licensed as a certified general contractor (License No. CG C011375), certified pool contractor (License No. CP C010307) and registered pool contractor (License No. RP 0023263). Respondent held the above licenses at all times material to this action.

   
   

2. In early 1978, Rifenburgh entered an oral contract with Personalized Construction Company to install a Nautilus Spa at a house this company was constructing at 9186 Northwest 21st Street, Coral Springs. Respondent then installed the spa exclusive of deck, electrical and brick work.

   
   

3. Periodic inspections of the spa project were conducted between February and December, 1978, by the City of Coral Springs Building Department. The facility did not pass final inspection because of electrical wiring deficiencies

   and the purchaser's contention that the spa lost water. A follow-up final inspection has never been requested.

   
   

4. The house was purchased by Nathaniel Gerold in March, 1978. Gerold paid about $5,200 to Personalized Construction Company for the spa, but later recovered this amount in a judgment against Personalized Construction. Between May and December, 1978, Gerold called Respondent numerous times regarding the inability of the spa to hold water. Nothing substantial was done by Respondent during those months. However, Respondent did return to the site in January, 1979, at the urging of the Coral Springs Building Department, but was refused access to the property by Gerold.

   
   

5. As a result of Gerold's complaints, the City of Coral Springs Building Department withheld Respondent's building permit privileges beginning in March, 1980. However, no hearing was held nor was formal disciplinary action taken by the municipality. Respondent's building permit privileges were restored by the Building Department in February, 1981, on advice of the City Attorney.

   
   

6. Respondent and Personalized Construction had several disagreements regarding the amount and schedule for payments to Respondent. However, Respondent was paid in May, 1978, by Personalized Construction for completion of the project, and was not a party to the lawsuit wherein Gerold recovered from Personalized Construction for the defective spa.

   
   

7. Personalized Construction subcontracted the deck work, and this subcontractor was responsible for breaking some of the spa plumbing Respondent had installed. Although the underground pipes were repaired, they remain a possible source of water loss. It was not established if the current water loss is occurring through these pipes, from leaks in the prefabricated spa or through normal evaporation.

   
   

   CONCLUSIONS OF LAW

   
   

8. Section 468.112, Florida Statutes (1977), provides in part:

   
   

   1. The following acts constitute cause for disciplinary action:

      1. Willful or deliberate disregard and violation of the applicable building codes or laws of the

         state or any municipality, city, or county thereof.

         * * *

         (f) Disciplinary action by any municipality, city or county, which action shall be reviewed by the state board before the

         state board takes any disciplinary action of its own.

         * * *

         (h) Abandonment of a construction project in which the contractor

         is engaged or under contract as a contractor. A project is

         to be considered abandoned after

         90 days if the contractor terminates said project without notification

         to the prospective owner and without just cause.

         
         

9. Petitioner has the burden of proof in this proceeding. See Rule 28- 9.09(4), Florida Administrative Code, and Howling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981).

   
   

10. The evidence did not establish that Respondent violated an applicable building code or that the municipality took any formal disciplinary action. Responsibility for the spa deficiencies was not fixed, nor was it shown that Respondent violated any public or private duty.

    
    

11. Respondent was paid a disputed amount in May, 1978. His refusals to return to the site thereafter were based on his position that he had not been fully compensated. Thus, Respondent cannot be said to have abandoned the project or terminated it without just cause.

    
    

12. The parties submitted proposed findings of fact and conclusions of law. To the extent these proposed findings have not been adopted or are inconsistent with the findings herein, they have been specifically rejected. Respondent's post-hearing jurisdictional arguments rest on factual matters which were not addressed at the hearing and are likewise rejected.

RECOMMENDATION

From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint be DISMISSED.

DONE AND ENTERED this 16th day of June, 1981 in Tallahassee, Leon County, Florida.

R. T. CARPENTER Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 1981.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Assistant General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Andrew M. Chansen, Esquire Suite 108

2000 East Oakland Park Boulevard Ft. Lauderdale, Florida 33306

Docket for Case No: 80-002029

Orders for Case No: 80-002029