STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 81-2086

)

HENRY C. HOLLENBECK, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, at the City Hall, Ft. Walton Beach, Florida, on November 13, 1981. The issue for determination at the hearing was whether respondent's license as a registered pool contractor should be suspended, revoked or otherwise disciplined for the reasons set forth in the Administrative Complaint filed on August 3, 1981.

APPEARANCES

For Petitioner: John O. Williams

547 North Monroe Street, Suite 204 Tallahassee, Florida 32301

For Respondent: Henry C. Hollenbeck, pro se

Route 1, Box 196 F-G, Circle Drive Fort Walton Beach, Florida 32548

INTRODUCTION

By an Administrative Complaint filed on August 3, 1981, the petitioner Department of Professional Regulation charged respondent Hollenbeck with violations of Section 489.129(1)(d) and (m) in that he failed to obtain a building permit to construct one pool and that he incompetently constructed two pools. In support of the allegations of the complaint, petitioner presented the testimony of Loren Bjornson and Sharon K. Parker, for whom respondent constructed swimming pools; James G. Campbell, the chief building inspector for the City of Ft. Walton Beach; and Thomas L. Withers, the service and sales manager for Aqua Pool and Patio Company. Petitioner's Exhibits 1 through 9 were received into evidence. Respondent Hollenbeck testified in his own behalf and presented no further witnesses or documentary evidence.

Subsequent to the hearing, the petitioner submitted proposed findings of fact and conclusions of law. The respondent submitted a letter which the undersigned has utilized only as closing argument in support of his case. To the extent that the proposed findings of fact submitted by the petitioner are not incorporated in this Recommended order, they are rejected as being either

not supported by competent substantial evidence adduced at the hearing, immaterial or irrelevant to the issues in dispute or as constituting conclusions of law as opposed to findings of fact.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. At all times pertinent to this proceeding, respondent Henry C. Hollenbeck was licensed as a swimming pool contractor.

   
   

2. In February of 1980, respondent, doing business as Acme Pools, entered into a contract with Loren Bjornson to construct a swimming pool at Bjornson's residence for a total purchase price of $8,300. Construction of this pool was completed on or about June 30, 1980.

   
   

3. Respondent did not obtain a building permit for the Bjornson pool until January 5, 1981. Prior to the construction of a swimming pool in Ft. Walton Beach, a building permit is required. No inspections were performed by the City during construction of the Bjornson pool. Many items, such as the plumbing, walls, drain system, etc., cannot be adequately inspected after construction is completed and the pool is filled with water.

   
   

4. Almost immediately upon construction of the Bjornson pool, a crack in the wall at the center of the pool appeared. This was repaired by respondent. Then, in July of 1980, the pool started losing one inch of water per day. In August, 1980, the pool started losing two inches of water per day. Mr. Bjornson repeatedly contacted respondent about this problem, but respondent did not respond to the calls because he felt that Mr. Bjornson had not paid his bills. Apparently, the financial dispute concerned work on a neighbor's driveway for which Mr. Bjornson was never billed. On three different occasions, Mr. Bjornson had not paid his bills. Apparently, the financial dispute concerned work on a neighbor's driveway for which Mr. Bjornson was never billed. On three different occasions, Mr. Bjornson retained another pool company to make repairs on his pool to prevent it from leaking. The three repair bills amounted to slightly over $200 and none of the repair jobs could be guaranteed. In order to make a guarantee, the service and sales manager of Aqua Pools estimated that repairs amounting to $11,365 would be necessary. It was his opinion that the repair work would involve a major rebuilding of the pool, including the removal of the pool deck and tiles and the reinforcement of walls. At the time of the hearing, the Bjornson pool was not presently leaking.

   
   

5. By contract dated August 10,1979, respondent agreed to install a swimming pool for Mr. and Mrs. Walter Parker. Construction was competed in October of 1979 and leaking problems began almost immediately. Respondent came back on at least four occasions to do the repair work. The corners were patched and other repair work necessitating the complete draining of the pool was performed. Each time, the Parkers were charged for labor and parts. At the time of the hearing, the Parker pool still leaked approximately one inch per day. It was estimated that it would cost about $1,000 to repair the Parker pool adequately so that a one-year warranty against leaking could be given.

   
   

6. Respondent testified that he did not respond to Mr. Bjornson's calls for repair work because Mr. Bjornson still owed him money. He believed the Parkers also owed him money. He felt that he could repair both pools adequately for a nominal sum of money.

   CONCLUSIONS OF LAW

   
   

7. The Construction Industry Licensing Board within the Department of Professional Regulation is empowered to take disciplinary action against a contractor if he is found guilty of any of the acts specified in Section 489.129, Florida Statutes. Respondent has been charged with violations of subsections (1)(d) and (m) of Section 489.129. Those subsections read as follows:

   
   

   489.129(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.

   
   

   489.129(1)(m):

   Upon proof and continued evidence that the licensee is guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.

   
   

   The undersigned concludes that the petitioner has adduced sufficient evidence in this case to demonstrate violations of both subsections (d) and (m) of Section 489.129(1), Florida Statutes.

   
   

8. A building permit is required by the City of Ft. Walton Beach prior to the construction of a swimming pool. The undisputed evidence illustrates that respondent did not obtain such a permit for the Bjornson pool until some seven months after construction was completed. Respondent was fully aware that a building permit was necessary prior to construction of the swimming pool. His deliberate disregard of the applicable building code constitutes grounds for discipline under Section 489.129(1)(d), Florida Statutes.

   
   

9. While minor problems may be expected in swimming pool construction, the evidence in this case illustrates that the structural deficiencies with the Bjornson and Parker pools were not of a minor nature. Both pools developed leaking problems almost immediately after construction. Attempts to repair the pools, both by the respondent with respect to the Parker pool and by others with respect to the Bjornson pool, have been unsuccessful. The estimated costs of adequate repairs deemed worthy of a guarantee against leakage are substantial. The Bjornson pool will require major reconstruction. Inasmuch as the respondent has not seen this pool since July 1980, his testimony concerning the repair of this pool for a nominal sum of money is unconvincing. His attempts to repair the Parker pool have been unsuccessful. It is concluded that the evidence with regard to the Bjornson and Parker swimming pools is sufficient to demonstrate respondent's incompetency in the practice of contracting.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that petitioner find respondent guilty of violating Sections 489.129(1)(d) and 489.129(1)(m), Florida Statutes, and suspend his pool contractor's license for a period of one (1) year.

DONE AND ENTERED this 16th day of December 1981 in Tallahassee, Florida.

DIANE D. TREMOR

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

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

COPIES FURNISHED:

John O. Williams, Esquire

547 North Monroe Street Suite 204

Tallahassee, Florida 32301

Henry C. Hollenbeck

Rt. 1, Box 196 F-G, Circle Drive Ft. Walton Beach, Florida 32548

Mr. Samuel Shorestein, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 81-002086

Orders for Case No: 81-002086