STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 82-686

)

CRAIG G. ROBERTS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was conducted in this matter on May 12, 1983, in Orlando, Florida. The following appearances were entered: John O. Williams, Tallahassee, appeared on behalf of the Petitioner, Department of Professional Regulation; and William F. Poole, IV, Orlando, Florida, appeared on behalf of the Respondent, Craig G. Roberts.

On or about February 2, 1982, the Department of Professional Regulation issued an Administrative Complaint against Craig G. Roberts, a licensee of the Florida Construction Industry Licensing Board. Petitioner is seeking to suspend or revoke Respondent's license as a registered pool contractor, or to take other appropriate disciplinary action. Respondent requested a formal administrative hearing. The Department of Professional Regulation forwarded the matter to the office of the Division of Administrative Hearings on March 9, 1982, and requested that a Hearing Officer be assigned to conduct a hearing. The final hearing was originally scheduled to be conducted on June 17, 1982. The parties jointly requested a continuance of the hearing pending the disposition of related proceedings. In March, 1983, Petitioner requested that the hearing be rescheduled. The final hearing was rescheduled to be conducted as set out above by notice dated March 11, 1983.

At the formal hearing, the Petitioner called the following witnesses: Robert E. Mosca and Linda Ann Mosca, both of whom are residents of Orlando, Florida; and Bobby Hunter, an investigator employed with the Department of Professional Regulation. The Respondent testified as a witness on his own behalf. Petitioner's Exhibits 1 through 5 and 8 were offered into evidence and received. Petitioner's Exhibits 6 and 7 were offered into evidence and rejected.

The parties have submitted proposed recommended orders which include proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law which follow. They have otherwise been rejected as not supported by the evidence, contrary to the better weight of the evidence, irrelevant to the issues, or legally erroneous.

ISSUES

The issues to be resolved in this proceeding are whether the Respondent has committed violations of provisions of law relating to the licensing of construction contractors and, if so, what disciplinary action should be taken against him.

FINDINGS OF FACT

1. The Respondent is registered by the Florida Construction Industry Licensing Board as a residential swimming pool contractor. The Respondent holds licenses numbered RP A027187 and RP 0027187 issued by the Board. During 1979 and 1980, the Respondent was registered with the Construction Industry Licensing Board as the licensed qualifier for "Cowboy Pools, Inc."

   
   

2. Cowboy Pools, Inc., was owned by Jim Anglin. During December, 1980, the Respondent and Anglin experienced difficulties in their business relationship. The difficulties resulted from Anglin's failure to pay for work performed for Cowboy Pools by subcontractors and by Anglin's issuing checks to the Respondent which were not honored by the bank. In early January, 1981, Respondent became concerned that he was unable to control the flow of money at Cowboy Pools. He advised Anglin that he would no longer serve as the qualifier for Cowboy Pools. On January 8, 1981, the Respondent called the office of the Construction Industry Licensing Board and inquired as to steps that he needed to take to withdraw as the qualifier for Cowboy Pools. On that same date, he wrote a letter to the Board stating:

   
   

   This is to inform you that I am no longer associated with Cowboy Pools and will assume no responsibilities whatsoever for Cowboy Pools.

   
   

   The Respondent wrote that same letter to all persons that he knew had contracts with Cowboy Pools. The letter was received in the Department of Professional Regulation offices on January 12, 1981. At the Department's request, the Respondent forwarded proper forms to withdraw his qualification of Cowboy Pools. In his letter, he stated:

   
   

   I hereby certify that I have not been able to bind the construction moneys for Cowboy Pools and saw no hope that I would be allowed to do so in the future. Therefore 1 have withdrawn my association from Cowboy Pools as I have previously notified you.

   
   

   This letter was received in the offices of the Department of Professional Regulation on January 22, 1981. The Department requested that Respondent send the Board his qualifying licenses, which he did on January 28, 1981. The licenses were received in the Department's offices on February 2, 1981.

   
   

3. On approximately January 14, 1981, Anglin asked the Respondent to obtain a permit so that Cowboy Pools could construct another swimming pool. Anglin was apparently unable to obtain permits on his own behalf. The Respondent refused to obtain such a permit and has had no business dealings with Cowboy Pools since January 8, 1981. Anglin continues to owe money to the Respondent.

4. During 1980 and 1981, Mr. and Mrs. Robert Mosca owned a residence in Longwood, Florida. On December 26, 1980, they entered into a contract with Cowboy Pools, Inc., to construct a swimming pool at their residence for a sum of

   $6,800. The contract was negotiated on behalf of Cowboy Pools by Jim Anglin. Anglin signed the contract for Cowboy Pools. The Moscas paid Anglin a $100 deposit on December 26. By checks dated January 5, 1981, and January 21, 1981, the Moscas paid Cowboy Pools and Anglin an additional $4,736 on the contract.

   
   

5. On December 27, 1980, Anglin had the pool area at the Moscas' property staked off. Nothing was done for several weeks, and the Moscas contacted Anglin, who advised them that a permit would be obtained soon. On January 14, 1981, a permit was obtained, and a crew from a company known as "Virgil Brothers" dug the hole for the pool and put in wire. Officials from Seminole County inspected that work on January 20. The following day, a crew from Virgil Brothers gunited the pool. There was a pile of dirt left from the dig. The Moscas asked Anglin about it, and he advised that it would be leveled. Approximately a week later, that was done, but no further work was done on the pool. The Moscas were not aware that there were any difficulties with completion of the pool until January 30, when a man visited their house and asked if they knew where Anglin might be. The man indicated that Anglin had left town. The same day, the Moscas received a notice from Virgil Brothers indicating that they had not been paid by Cowboy Pools. The Moscas went to the Cowboy Pools office that evening. All of the furniture had been removed. They were told by a secretary where Anglin lived. They went to his house and discovered that it was a rental house that had been vacated a couple of days before. Anglin has apparently not been seen in the central Florida area since that time. The Moscas ultimately had their pool completed by another contractor. It cost them $2,600 above the contract price to complete the pool.

   
   

6. The building permit for the Moscas' swimming pool was obtained by Kelly Slusher, a registered swimming pool contractor. Slusher did not supervise the work and apparently, in effect, allowed Cowboy Pools to use his contractor's license to obtain the permit. Slusher did not become the qualifier for Cowboy Pools and was apparently not involved in the operation except to obtain the permit to construct the Moscas' swimming pool. Slusher has been the subject of disciplinary action initiated by the Construction Industry Licensing Board. When work on the Moscas' swimming pool was abandoned, the Moscas obtained a copy of the building permit and learned that Slusher had obtained the permit. When they contacted Slusher, he disclaimed any responsibility.

   
   

7. The Respondent was not, until sometime in February, 1981, aware that Anglin had contracted with the Moscas to construct a swimming pool. Anglin did not tell him of the contract and was not allowing Respondent access to the company's records and books. The Respondent made a good-faith effort to advise all persons that were doing business with Cowboy Pools that he was no longer associated with the company. He wrote to all of the persons who had contracts with Cowboy Pools on January 8, 1981. He was not aware of the Mosca contract, and so he did not write to them. The Respondent did not obtain the building permit for the Moscas' swimming pool. He was asked by Anglin to obtain a permit, but refused. If Slusher had not agreed improperly to obtain a building permit for the Moscas' swimming pool, Cowboy Pools would not have been able to commence construction on the pool, and the Moscas would not have made payments to Cowboy Pools beyond the $100 deposit. The Moscas did not learn that the Respondent had any connection with Cowboy pools until sometime in February, 1981. The Moscas learned through other persons who had contracted with Cowboy Pools that the Respondent was the qualifying registered swimming pool

   contractor. The Moscas did contact the Respondent about the abandoned work, but it does not appear that they formally demanded that he complete the work on behalf of Cowboy Pools.

   
   

8. No evidence was offered at the hearing from which it could be concluded that the Respondent diverted any funds in connection with the construction of the Moscas swimming pool. Indeed, it appears that he was totally uninvolved with the project.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.57(1), 120.60, Florida Statutes.

   
   

10. In Count One of the Administrative Complaint, the Respondent is charged with violating Section 489.129(1)(k) Florida Statutes. The Section provides that the Construction Industry Licensing Board can take disciplinary action against a contractor if the contractor is found guilty of the following acts:

    
    

    Abandonment of a construction project in which the contractor is engaged or under contract as a contractor. The project is to be considered abandoned after 90 days if the contractor termi- nates said project without notifica- tion to the prospective owner and without just cause.

    
    

    Cowboy Pools, Inc., clearly abandoned the construction of the Moscas' swimming pool. Anglin took money from the Moscas, apparently failed to pay subcontractors who performed work on the pool, and left the area. While an abandonment occurred, it was not the fault of the Respondent. The Respondent disassociated himself with Cowboy Pools on January 8, 1981. On that date, he did what he could do to prevent Cowboy Pools from beginning new construction projects. He refused to obtain any more building permits for Cowboy Pools and advised all persons that he reasonably knew to be contracting with Cowboy Pools that he was no longer associated with the company. Unfortunately, he did not know and could not reasonably have learned of the Moscas' contract. The Moscas could not have been damaged under these circumstances except that another individual agreed to illegally allow his swimming pool contractor's license to be used to obtain a permit to construct the pool. It is that contractor and Cowboy Pools who abandoned the Mosca project. They, not the Respondent, did injury to the Moscas and violated the provisions of Florida law relating to construction contracting.

    
    

11. In Count ,Two of the Administrative Complaint, the Respondent is charged with violating Section 489.129 (1)(h), Florida Statutes. This paragraph authorizes disciplinary action when a contractor is found guilty of diverting funds or property received for a specific construction project. No evidence was offered at the hearing from which it could be determined that the Respondent has violated the provisions of this Section.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That a final order be entered by the Construction Industry Licensing Board finding the Respondent not guilty of the charges contained in the Administrative Complaint filed by the Department of Professional Regulation and dismissing the Administrative Complaint.

RECOMMENDED this 9th day of June, 1983, in Tallahassee, Florida.

G. STEVEN PFEIFFER Assistant Director

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 9th day of June, 1983.

COPIES FURNISHED:

John O. Williams, Esquire

547 North Monroe Street Suite 204

Tallahassee, Florida 32301

William F. Poole, IV, Esquire Poole & Martin, P.A.

644 West Colonial Drive Orlando, Florida 32804

Charles F. Tunnicliff, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Fred Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. James Linnan Executive Director

Construction Industry Licensing Board

Department of Professional Regulation

Post Office Box 2 Jacksonville, Florida 32202

Docket for Case No: 82-000686

Orders for Case No: 82-000686