STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 81-364

)

JAMES H. JASPERSON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice , a formal hearing was held in the above case before the Division of Administrative Hearings, by its Hearing Officer, Donald R. Alexander, in Orlando, Florida, on June 4, 1981.

APPEARANCES

For Petitioner: Drucilla E. Bell, Esquire

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: James H. Jasperson in pro se

1340 South Bumby Avenue Orlando, Florida 32896

By Administrative Complaint dated February 4, 1981, the Petitioner, Department of Professional Regulation, charged that Respondent, James H. Jasperson, had violated certain provisions of Chapter 489, Florida Statutes, thereby warranting disciplinary action against Respondent's registered pool contractor's license. In summary form, it is alleged that: (1) Respondent violated Section 489.129(1)(j), Florida Statutes, by failing to qualify with the Department an agent who was acting under the authority of Respondent's license,

1. Respondent violated Section 489.129(1)(d), Florida Statutes, by violating the Volusia County building code in certain respects while constructing a swimming pool in Volusia County, and (3) Respondent violated Section 489.129(l)(l)(k), Florida Statutes, by abandoning a construction project without notice or just cause.

   
   

   Respondent disputed the allegations of fact in the Administrative Complaint and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. The matter was forwarded by the Department to the Division of Administrative Hearings on February 17, 1981, with a request that a Hearing Officer be assigned to conduct a hearing. By Notice of Hearing dated March 10, 1981, the final hearing was scheduled for May 5, 1981, in Orlando, Florida. By agreement of the parties the final hearing was rescheduled to June 4, 1981, at the same location.

   At the final hearing, Petitioner called Clyde Pirtle, Jerry Thomason and Charles Lockwood as its witnesses and offered Petitioner's Exhibits 1-9, each of which was received into evidence. Respondent testified on his own behalf and offered Respondent's Exhibits 1 and 2, both of which were received into evidence.

   
   

   The parties were given an opportunity to file proposed findings of fact and conclusions of law; however, none were filed.

   
   

   The issue herein is whether Respondent's registered pool contractor's license should be revoked or suspended, or whether other disciplinary action should be taken against Respondent for failing to qualify an agent, violating the provisions of a county building code and abandoning a project without notice or just cause.

   
   

   Based upon the entire record, the following findings of fact are determined:

   
   

   FINDINGS OF FACT

   
   

   1. At all times relevant hereto, Respondent, James H. Jasperson, held registered pool contractor's license numbers RP 0028372 and RP A028372 issued by Petitioner, Department of Professional Regulation (Petitioner's Exhibit 1). The former license was issued in 1976 and qualified Respondent to operate under the name, Orlando Pools. The latter license qualified to operate under the name, Pools by Jim, until February 25, 1981, when he qualified Piper Pools, Inc. under that registration number.

      
      

   2. Respondent is in the business of constructing swimming pools. In June, 1979, he began a business association with a James Lovett of Orange City, Florida (Petitioner's Exhibit 2). Lovett sold pool kits for Tallman Pools. Under their arrangement, Lovett would sell a prefabricated pool kit, and Jasperson would install it. However, Jasperson assumed all responsibility for sales, construction and warranties (Petitioner's Exhibit 2), and the construction and installation were done under Jasperson's registration. Work by Jasperson on jobs procured by Lovett was performed under the name, Pools by Jim.

      
      

   3. Between August and October, 1979, Lovett and Jasperson were advised on at least three separate occasions by Department Investigator Pirtle that it would be necessary for Jasperson to qualify Tallman Pools as his agent. Despite these warnings, Jasperson never qualified Tallman Pools. The exact date on which the business relationship was terminated was not disclosed, but Jasperson did advise Volusia County building officials in writing in early February, 1981, that no agent could qualify under his registration.

      
      

   4. On or about October 25, 1979, a contract was entered into by Pools by Jim and Thomason Builders of Geneva, Florida, to construct a swimming pool at a residence in Volusia County. The contract was signed on October 25, 1979, by Jim Lovett as sales representative Pools by Jim, and by Jerry Thomason on behalf of Thomason Builders (Petitioner's Exhibit 3). Jasperson signed the contract on November 8, 1979, and noted that it was "accepted." The terms of the contract provided for completion of the pool by March 14, 1980. Construction on the pool began on or about November 1, 1979.

   5. Jerry Thomason, the owner of Thomason Builders, and the contractor of the house where the pool was to be built, was a registered residential contractor in Volusia County. Thomason thought he could pull a permit from the County to construct the pool; however, he was unsuccessful. Thereafter, on November 8, 1979, a Volusia County building official placed a stop work order on the pool site. Learning that a permit was still needed, Jasperson immediately signed an application for a permit on the same date as the stop work order was posted. The permit was officially issued on November 9, 1979.

      
      

   6. Between November 8, 1979, and February 18, 1980, two more stop orders and a notice of correction were posted on the project by Volusia County officials. County records brought to the hearing did not specify the nature of the charges that formed the basis for the orders and notice, but Jasperson stated the notice of correction related to improper grounding of the wires around the pool. He also testified that this correction was subsequently made.

      
      

   7. A dispute over the amount of money owed on the project by Thomason to Lovett arose in December, 1979 (Petitioner's Exhibit 9). Because of this dispute, work on the pool was stopped in February, 1980. The matter was subsequently resolved and the pool completed, with the exception of certain interior lighting.

      
      

   8. Jasperson acknowledged that Lovett was associated with him, and that the notice and stop work orders were issued on the job in question. However, he described Lovett as simply being a sales representative and not involved in the installation of the pools. He attributed any difficulties that may have arisen to a lack of control over Lovett, and poor judgment on his part in associating with Tallman Pools.

      
      

      CONCLUSIONS OF LAW

      
      

   9. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Section 120.57(1), Florida Statues.

      
      

   10. Subsection 489.129(1), Florida Statutes, enumerates the grounds on which the Department may take disciplinary action against a licensee. These include, inter alia, the following violations:

       
       

       (1)(d) Willful or deliberate disregard and violation of the applicable building codes or laws of the state or of any Municipalities or counties thereof

       * * *

       (1)(j) Failure in any material respect to comply with the provision of this act.

       (1)(k) 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.

       
       

       In the case at bar, Petitioner has charged that Respondent, while operating under his registered pool contractor's License Number RP 0028372, violated Subsections 489.129(1)(d),(j) and (k), supra, by failing to qualify an agent, having violated certain provisions of the Volusia County building code and abandoning a project without just cause or notice.

   11. Respondent presently holds two separate licenses from the State which authorize him to construct swimming pools. License Number RP 0028372 qualifies Orlando Pools and has been active since 1976. License Number A02872 qualifies Pools by Jim, but this name was changed to Piper Pools, Inc. on February 25, 1981 (Petitioner's Exhibit 1). At first blush, there appears to be a confusing situation unexplained by either party, for the license number being subjected to disciplinary proceedings (RP 0028372) involves the registration of Orlando Pools while the alleged illegal activities were conducted under the trade name of Pools by Jim which has a different registration number (RP A028372). However, Respondent failed to object to any deficiencies in the complaint, and such objection, if germane, is deemed to be waived. Moreover, in correspondence with Investigator Pirtle on May 27, 1980, which discussed his relationship with Tallman Pools, Jasperson referred to License Number RP 0028372 on Pools by Jim stationery, thereby lending support to the conclusion that operations were interchangeable, and that Jasperson was operating under the license number referred to in the Administrative Complaint (Petitioner's Exhibit 2).

       
       

   12. Count I involves the failure of Respondent to qualify Tallman Pools as his agent as required by Subsections 489.119(2) and (3), Florida Statutes. The evidence clearly establishes that, despite several warnings, Respondent failed to do so, and it is concluded that he is guilty of violating Section 489.129(1)(j), Florida Statutes.

       
       

   13. Count II alleges that Respondent (a) violated the Volusia County Building code on several occasions, and (b) abandoned a project without notice or just cause.

       
       

   14. It is well-settled law that in a proceeding under a penal statute for suspension or revocation of a professional license, " . . . the term 'substantial competent evidence' takes on vigorous implications that are not so clearly present on other occasions for agency action under Chapter 120." Bowling v. Department of Insurance, 394 So. 2d 165, 171 (Fla. 1st DCA 1981).

       Further, the provisions of statutes that provide grounds for revocation of licenses must be strictly construed and followed because the statute is penal in nature. Bach v. Board of Dentistry, 378 So. 2d 34 (Fla. 1st DCA 1979). Here it is alleged that Jasperson has willfully and deliberately violated the Volusia County building code in several respects. Thus, in order to support a finding of guilt as to this portion of Count II, the Department must prove its allegations "by evidence which weighs as 'substantially' on a scale suitable for evidence as the penalty does on the scale of penalties" (Bowling at 172), and that not only were the illicit acts committed by Respondent, but they were done so with "full" and "guilty knowledge" of that conduct (Bach at 36).

       
       

   15. The building code violations stem from Respondent's failure to timely obtain a building permit on a project, and two stop work orders and a notice of correction having been issued by Volusia County authorities for unspecified deficiencies in workmanship. As to the first charge, Respondent did in fact obtain a building permit upon learning that Thomason, the contractor, could not. Indeed, the application was filed the same day as the stop work order was placed on the construction site by the County, it was possible for one other than the pool contractor to pull a permit on the job, which led Jasperson to initially believe that a permit had already been obtained. Section 489.129(1)(d), supra, requires that the violation of a building code of a county be done in a willful or deliberate manner. Here the circumstances clearly show that Respondent did not intend to willfully and deliberately circumvent the permit requirements of the County, and this portion of Count II should be dismissed.

   16. The second part of the building code violations deals with two stop work orders and one notice of correction issued by Volusia County between November 9, 1979, and February 18, 1980. The sections of the code violated were not identified, nor were the specific variances from the code described. Further, the reasons for issuing the stop work order were unknown. Witness Lockwood, an employee of Volusia County, described a notice of correction as being a notice to the builder as to what further work was needed on the poll before a sign-off on the final inspection could be made. He added that such notices were commonly issued on projects prior to their final inspection.

       
       

   17. It is true that two stop work orders and a notice of correction were issued on the project. But the Department has not shown by competent and substantial evidence that Jasperson intentionally and knowingly violated the code. The work "willful" denotes an act which is intentional, or knowing, or voluntary, as distinguished from the accidental, and with indifference to the consequences. There being insufficient evidence to establish willful or guilty conduct on the part of Respondent, the remaining building code charges should be dismissed. Bowling, supra.

       
       

   18. The final charge in Count II is an allegation that Respondent abandoned a project without notice or just cause. While work on the project did in fact cease for more than 90 days after February 18, 1980, there was just cause for Respondent to temporarily abandon the project. A dispute over charges owed on the pool evolved, and the matter was not settled until some months later. Once resolved, Respondent completed the pool, with one apparent exception, and the owners have been using it for more than a year. There being "just cause" for temporarily abandoning work on the project within the meaning of Subsection 489.129(1)(k), Florida Statutes, the charge should be dismissed.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent James H. Jasperson be found guilty of violating

Section 489.129(1)(j), Florida Statutes, as set forth in Count I of the Administrative Complaint. It is further

RECOMMENDED that the charges contained in Count II of the Administrative Complaint be DISMISSED. It is further

RECOMMENDED that Respondent's registered pool contractor's License Number RP 0028372 be suspended for 90 days from the date of the final agency order entered herein for the aforesaid violation.

DONE and ENTERED this 26th day of June, 1981, in Tallahassee, Leon County, Florida.

DONALD ALEXANDER, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 1981.

COPIES FURNISHED:

Drucilla E. Bell, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

James H. Jasperson 1340 South Bumby Avenue Orlando, Florida 32896

Nancy Kelly Wittenberg, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD

DEPARTMENT OF PROFESSIONAL REGULATION/CONSTRUCTION INDUSTRY LICENSING BOARD,

Petitioner,

vs. CASE NO. 81-364

JAMES H. JASPERSON, RP 0028372

RP A028372

Respondent.

/

FINAL ORDER

This matter came for final action by the Construction Industry Licensing Board on August 14, 1981, in Tampa, Florida. A hearing held pursuant to Section 120.57(1), Florida Statutes, resulted in the issuance of a Recommended Order (attached here to as Exhibit A) which was reviewed by the Board. Upon consideration of the Recommended Order and the complete record of the proceeding,

IT IS ORDERED:

1. The findings of fact set forth in the Recommended Order are hereby approved and adopted and incorporated by reference. The Board, however, adopts paragraphs 1 and 2 of the Petitioner's Exceptions to the Recommended Order and, therefore, makes the following additional findings:

   
   

   1. Charles Lockwood, the Volusia County Building Official and custodian of the records, testified that the building inspection and permit filed for the subject property reflected that only one inspection had been called for and only one inspection had been made, which resulted in the Notice of Correction. The Building Department was not notified after the "correction was subsequently made" and prior to the pouring of the concrete in order for them to perform the required inspection. Therefore, according to Mr. Lockwood's testimony at the hearing, the swimming pool could not pass inspection because the building inspectors would be unable to tell without removing the concrete whether the pool had been properly grounded.

      
      

   2. The testimony of Mr. Thompson, which was not refuted by Mr. Jasperson, was that the work stopped on the pool because he notified Mr. Lovett, who was acting as Mr. Jasperson's agent, that either the pool was to be brought into compliance with the building code or no more work was to be performed and, no more money would be paid. Therefore, it would seem from all of the testimony presented that work stopped, because the Respondent refused to bring the

   swimming pool into compliance with the subject building codes, and that the disagreement over the amount owed was actually a peripheral matter.

   
   

2. The conclusions of law set forth in the Recommended Order are hereby approved and adopted and incorporated by reference with the following modifications:

1. The Board adopts paragraph 3 of Petitioner's Exceptions to the Recommended Order and thereby rejects the Hearing Officer's Conclusion of Law that the Respondent did not willfully and deliberately violate the building code. The Board finds substantial competent evidence in the record which shows that even if Mr. Jasperson did make the corrections to the grounding of the wires as required by the correction notice, he did not call Volusia County for another inspection prior to pouring the concrete which made it physically impossible to perform an inspection on the corrections made. Since Respondent Jasperson has been licensed for at least five years as a pool contractor, it would have to be assumed that he has knowledge of the code requirements of the construction of a swimming pool. According to the evidence introduced at the hearing, Mr. Jasperson called for one inspection and therefore knew that the first inspection had to be passed prior to passage of a final inspection. Mr. Jasperson did testify that he requested a final inspection some time early in 1981, approximately one year after the date upon which the pool was to be completed, pursuant to an addendum to the contract. However, the Volusia County Building Department records did not reflect such a request and the building official testified that the pool at this time, could not pass inspection.

   
   

2. The Board adopts paragraph 4 of Petitioner's Exceptions to the Recommended Order and thereby rejects the Hearing Officer's conclusion that the Respondent did not abandon the job. The Board finds substantial competent evidence of the record which shows that the Respondent's agent was told to bring the pool into compliance with the building code or to stop work. In essence the Respondent's agent was told to operate legally or not at all, and if he chose not to comply with the law, he would not be paid anymore money. The Respondent thereafter abandoned the job for three months, from the end of November 1979 through February, 1980, when negotiations resumed in order to get the pool completed.

In consideration of the foregoing Findings of Fact and Conclusions of Law, and based upon a review of the complete record, the Board hereby rejects the Recommendation of the Hearing Officer.

THEREFORE

It is ORDERED AND ADJUDGED that the registered pool contractor's licenses of the Respondent, James H. Jasperson, be and the same are hereby suspended for a period of one year. It is further Ordered that the Respondent be and is hereby fined an administrative fine in the amount of $750.

DONE and ORDERED this 25th day of August, 1981.

FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD

John Henry Jones, Chairman

cc: James H. Jasperson 1340 South Bumby Avenue

Orlando, Florida 32896 Drucilla E. Bell, Esquire Donald R. Alexander

File

Docket for Case No: 81-000364

Orders for Case No: 81-000364