STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA CONSTRUCTION INDUSTRY ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 80-2231

)

PHILIP J. MAINS, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in DeLand, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on March 31, 1981.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Appeared on his own behalf.

By administrative complaint, petitioner alleged that respondent "is a registered pool contractor having been issued License No. RP 0024663," and that "[o]n or about September 1, 1979, Mr. John Lockwood entered into a contract with

. . . Respondent, to construct a swimming pool at 231 El Dorado Drive, Debary, Florida 32713, for the amount of $6,160"; that respondent received all monies due under the contract except $665.00 which "was to be paid upon completion"; that on "or about February 5, 1980, Lockwood requested [that respondent] complete the job . . . [but respondent] stated that he would not complete the job until he had received the $665.00"; and that respondent's wife stated in late March of 1980 that "they [respondent and wife] would make the pool usable if the Lockwoods would pay the balance of money owed first" but Mrs. Lockwood "did not pay the money."

FINDINGS OF FACT

1. In early September of 1979, John and Ruth E. Lockwood contracted with P & P Custom Pools, Inc. (P & P), for the construction of a swimming pool at their home, 231 El Dorado Drive, Debary, Florida. Respondent, Philip J. Mains, signed the contract on behalf of P & P and later obtained a building permit. He and his men began excavating on site in mid-September.

   
   

2. The Lockwoods paid respondent $700.00 on September 6, 1979. As construction progressed, they paid him $1,706.25 on September 27, 1979;

   $1,000.00 on October 26, 1979; $1,047.50 on October 29, 1979; and $1,706.25 on November 20, 1979. At the appropriate times, a building inspector was summoned,

   who inspected the project, including the placement of reinforcing steel, ground wiring, and lights. Neither the "steel inspection" nor the "deck inspection" revealed any problem. The workmanship was excellent, as far as it went, but the Volusia County building inspector's office was never asked to perform a final inspection.

   
   

3. As respondent promised there would be, there was water in the swimming pool by Christmas of 1979, but respondent did no further work after December, 1979. He never installed the pump, filter, diving board, or hand bars called for in the Lockwoods' contract.

   
   

4. Earlier in 1979, Patrick T. Ryan, the other principal in P & P, left town and abandoned the business which was then $37,000 in debt. In November of 1979, respondent turned the company's books over to an accountant. In January of 1980 the business' financial problems became critical and, at the accountant's suggestion, respondent so advised the eight homeowners for whom he was building swimming pools, including, in January or February, Mr. Lockwood, who reacted angrily. Respondent testified that Mr. Lockwood "cussed him out." Thereafter respondent avoided the Lockwoods until April of 1980 when they found him working on another pool. There was enough money owed on the eight contracts as a group to finish all the pools, according to respondent's uncontroverted testimony, at the time the Internal Revenue Service levied on respondent's bank account and seized his tools and equipment. Even then respondent offered to finish the Lockwoods' pool if they would buy the materials. Respondent's wife asked Mrs. Lockwood to write a check to a supplier for a pump and filter so that respondent could install them and get water in the pool circulating. Instead, during the last week of April, 1980, the Lockwoods contracted with somebody else to finish the job and paid him $1,200.

   
   

5. Respondent subcontracted with a Jacksonville cement company to pour concrete for the pool. After the concrete had been poured, the Lockwoods got a registered letter from the subcontractor threatening to place a lien on their property if he were not paid. According to Mr. Lockwood, the problem was that some check [supposedly drawn by respondent in favor of the subcontractor] had been delayed in the mail. In any event, there was no indication in the evidence that the Lockwoods heard anything further from the subcontractor.

   
   

   CONCLUSIONS OF LAW

   
   

6. Petitioner has charged respondent with a violation of Section 489.129(1)(k), Florida Statutes (1979). This provision authorizes petitioner to

   
   

   revoke, suspend, or deny the . . . renewal of the certificate of registration of a contractor or impose an administrative fine not to exceed $1,000, place . . . on pro- bation, reprimand or censure, a contractor if the contractor is found guilty of . [a]bandonment of a construction project in which the contractor is engaged . . . as a contractor. Section 489.129(1)(k), Florida Statutes (1979).

   
   

   The same law specifies that a project may "be considered abandoned after 90 days if the contractor terminates said project without notification to the prospective owner and without just cause." Section 489.129(1)(k), Florida Statutes (1979).

7. Running out of money is an understandable reason for stopping a construction project, but it does not constitute "just cause" within the meaning of Section 489.129(1)(k), Florida Statutes (1979).

   
   

8. Petitioner did not prove that respondent gave no notification to the Lockwoods. The evidence was unclear as to precisely what was said in the telephone conversation between respondent and Mr. Lockwood during which Mr. Lockwood grew angry. But it is clear from the evidence that respondent was obliged to abandon the project for lack of funds.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That petitioner suspend respondent's registration for thirty (30) days. DONE AND ENTERED this 29th day of April, 1981, in Tallahassee, Florida.

ROBERT T. BENTON, II

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 30th day of April, 1981.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire

130 North Monroe Street Tallahassee, Florida 32301

Philip J. Mains c/o Sue Mains Route 2, Box 799A

DeLand, Florida 32720

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

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

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. CASE NO. 80-2231

PHILIP J. MAINS, RP 0024663,

Respondent.

/

FINAL ORDER

This matter came for final action by the Construction Industry Licensing Board on June 12, 1981, in Key West, Florida. Upon consideration of the Recommended Order issued in this proceeding, the Board hereby adopts the findings of fact and conclusions of law of the Hearing Officer. However, following a review of the complete record, the Board finds that the recommendation of the Hearing Officer is inappropriate under the circumstances of this case, and the Board rejects said recommendation. THEREFORE

IT IS ORDERED AND ADJUDGED that the registered pool contractor's license of the Respondent Philip J. Mains be and is hereby suspended for a period of two years and that the license may be reinstated only if the Respondent forwards evidence to the Construction Industry Licensing Board that he has made restitution to the Lockwoods and that there are no tax liens or judgments by suppliers filed against him.

DONE AND ORDERED this 1st day of July, 1981.

FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD

John Henry Jones

Philip J. Mains c/o Sue Mains Route 2, Box 799A

Deland, Florida 32720

cc: Philip J. Mains Charles Tunnicliff Robert T. Benton, II

Docket for Case No: 80-002231

Orders for Case No: 80-002231