STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

)

Petitioner, )

)

vs. ) CASE NO. 82-2586

)

TERRY W. MALICKI, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Punta Gorda, Florida, on February 16, 1983, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter. The parties were represented by:

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: No appearances

This case arose on Petitioner's Administrative Complaint which alleged that Respondent (1) failed to properly qualify a company; (2) acted in a name other than that which was on his registration; (3) aided and abetted an unlicensed swimming pool contractor; (4) knowingly combined and conspired with an unlicensed swimming pool contractor; (5) was disciplined by Charlotte County; and (6) by reason of the foregoing was guilty of misconduct in the practice of contracting. Petitioner submitted proposed findings of fact which have been incorporated herein to the extent they are relevant and consistent with the evidence.

FINDINGS OF FACT

1. At all material times hereto, Respondent was the holder of a registered swimming pool contractors license number RP 0035739. Respondent's license was issued in the name of Malicki Pools, Terry W. Malicki.

   
   

2. In January, 1981, Gary Wieland entered into a contract with Patrick Barr d/b/a Pool and Spa World. Barr was to construct a pool for Weiland in Port Charlotte for $7,856.00. Barr had become known to Wieland as a builder of swimming pools through a neighbor. Barr stated to Wieland that he was a pool contractor. Wieland made all payments due under the contract to Barr.

   
   

3. Petitioner's evidence established that the Wieland swimming pool required a building permit. On March 3, 1981, Terry Malicki d/b/a Malicki Pools

   obtained permit number 66970 to construct a pool at Wieland's residence in Port Charlotte. Wieland's testimony established that Malicki constructed the pool at his residence. However, all of his dealings were with Barr.

   
   

4. Barr was not licensed as a swimming pool contractor in Charlotte County or in Florida, and was convicted in the Charlotte County court of acting as a contractor without being licensed.

   
   

5. Mr. Robert Guariglia entered into a contract with Barr to construct a swimming pool for $9,500.00. The pool was to be constructed at Lot 17, Block 402, Subdivision 23 or 913 Cherry Chase, Port Charlotte, Florida.

   
   

6. Petitioner's evidence established that the Guariglia pool required a building permit. On June 10, 1981, Terry Malicki d/b/a Malicki Pools obtained permit number 68962 to construct a pool at Lot 17, Block 402, Subdivision 23 or 913 Cherry Chase, Port Charlotte, Florida.

   
   

7. Guariglia paid the first installment of his contract by check to Barr in the amount of $3,325.00. However, because the pool was not level, Guariglia told Barr or Malicki who was supervising the work that he wanted the pool redone or removed. The pool was later removed and Guariglia had to pay $1,400 to have his property restored.

   
   

8. As noted above, Barr was not licensed as a swimming pool contractor in Charlotte County or in Florida, and was convicted of acting as a contractor without being licensed. However, the swimming pool constructed at the identified Guariglia residence required a building permit.

   
   

9. On September 3, 1981, the Charlotte County Building Board suspended the certificate of competency of the Respondent until such time as he corrected all matters which were then pending before that Board. On November 5, 1981, the Charlotte County Building Board reinstated Malicki's license.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Construction Industry Licensing Board is empowered to revoke, suspend or otherwise discipline the certificate or registration of a contractor if he is found to have violated any of the following provisions of Section 489.129(1), Florida Statutes (1979):

    
    

    1. Aiding or abetting any uncertified or unregistered person to evade any provision of this act.

    2. Knowingly combining or conspiring with an uncertified or unregistered person by allowing one's certificate or registra- tion to be used by any uncertified or unregistered person with the intent to evade the provisions of this act.

    3. Acting in the capacity of a con- tractor under any certificate or registration issued hereunder except in the name of the certificate holder

       or registrant as set forth on the issued certificate or registration. .

       1. Disciplinary action by any munici- pality or county, which action shall be reviewed by the state board before the state board takes any disciplinary action of its own.

       2. Failure in any material respect to comply with the provisions of this act.

       (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.

       
       

11. Petitioner established that Respondent violated Subsections 489.129(1)(e), (f), (g) and (j) quoted above by obtaining building permits for an unlicensed company. Although Respondent did participate in the construction of the pools discussed herein, he did not qualify the contracting company nor did he participate in its management.

    
    

12. These acts and omissions constitute misconduct in the practice of contracting in violation of Subsection (m) quoted above. Respondent is further subject to disciplinary action under Subsection (i) because of the local board action.

RECOMMENDATION

In consideration of the foregoing, it is RECOMMENDED:

That Petitioner enter a Final Order suspending the swimming pool contractor's license issued to Respondent for one (1) year.

DONE and ENTERED this 22nd day of April, 1983, in Tallahassee, 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 22nd day of April, 1983.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Terry W. Malicki c/o Malicki Pools

1788 S.W. Sicily Avenue

Port Charlotte, Florida 33952

Stephen Schwartz, Esquire 680 Aaron Street, N.W.

Port Charlotte, Florida 33952

James Linnan, Executive Director Construction Industry Licensing Board

Post Office Box 2 Jacksonville, Florida 32202

Fred Roche, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-002586

Orders for Case No: 82-002586