STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 82-2873

)

RONALD B. HAENDIGES, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on March 15, 1983, in Orlando, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case was presented on an amended Administrative Complaint filed by the Construction Industry Licensing Board against the Respondent, Ronald B. Haendiges, which alleged that Respondent had violated Section 489.129(1)(d), Florida Statutes, by violating the local building code; and violated Section 489.129(1)(h), Florida Statutes, by diverting funds which he received for the completion of a project and, as a result of the diversion, was unable to complete his obligation or contract.

APPEARANCES

For Petitioner: Stephanie A. Daniel, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Ronald B. Haendiges, pro se

Post Office Box 388

Winter Park, Florida 32790 ISSUES

Based upon the allegations of the amended Administrative Complaint, the issues are whether the Respondent did repairs on a pool located in Longwood, Florida, without obtaining a building permit, contrary to local building codes and in violation of Section 489.129(1)(d), Florida Statutes; and whether Respondent diverted funds and, as a result, was unable to complete the construction project, contrary to provisions of Section 489.129 (1)(h), Florida Statutes.

Petitioner submitted post hearing proposed findings of fact in the form of a proposed recommended order. To the extent the proposed findings of fact have not been included in the factual findings in this order, they are specifically

rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.

FINDINGS OF FACT

1. Ronald B. Haendiges is a registered general contractor in the State of Florida holding license number RG 0039437. The Respondent was so licensed at all times material to the Administrative Complaint and at the time the Administrative Complaint issued.

   
   

2. On May 29, 1981, the Respondent contracted with Mary Raney to put into operation a pool located at 479 East Main Street, Longwood, Florida, for a contract price of $4,025. Said pool had been partially floated out of the ground. The contract between Raney and the Respondent specifically provided that the Respondent would perform the following:

   
   

   1. Knock off existing tile;

   2. Reform beam;

   3. Reset new level of skimmer;

   4. Pressure-test existing plumbing and repair as needed (but not to exceed $300 of extra cost);

   5. Reform new deck area (450 square feet)

   6. Fill as needed;

   7. Place wire mesh in new deck area and pour new deck;

   8. Retile waterline, 6 by 6 bullnose;

   9. Re-(illegible) cracked area on bottom of pool;

   10. Recement pool with Pool-tight;

   11. Put cool deck topping on new deck area;

   12. Reform and pour new steps and tile step edge with matching tile;

   13. Replace pump and motor with new comparable.

       
       

3. The Respondent commenced work in workmanlike fashion on or about May 29, 1981. As work progressed on the pool, he received various payments from Raney in accordance with their contract. The Respondent received a total of

   $2,750 of the $4,025 contract price.

   
   

4. On or about July 13, 1981, the Respondent, nearing completion of his work, filled the swimming pool with water. At that time, additional cracks and leaks developed in the sides and bottom of the Raney pool. when these cracks developed, Raney refused to pay any of the balance of the contract price, or a total of $1,275.

   
   

5. At that time, all work covered under the contract was completed, to include reinforcing the cracked areas with steel, except that the pool deck had not been poured. A square hole at one end of the pool and a larger area at the shallow end had not been finished.

   
   

6. The cracks in the pool were created when the pool was filled with water because a void had been created beaten the bottom of the pool and the foundation of the pool when the pool floated up out of the ground. when the weight of the water was placed in the pool, it broke out the bottom of the pool. The problem with this void was not anticipated by Raney, the pool's owner, or the Respondent.

7. Harvey's Bobcat Service provided fill dirt and labor to the Respondent for repairs on the pool, which were not paid for, and a lien of $382 was filed against the Raney property. Dove Henson performed marcite work and pool decking on the Raney pool for the Respondent. The Respondent was to pay Henson $400 for the work performed and, as of the date of the hearing, had not done so. The Respondent purchased Pool-tight on two occasions from Contractor's Supply of Orlando, Florida. On July 8, 1981, the Respondent purchased $275.60 worth of Pool-tight. On July 11, 1981, the Respondent purchased another $78 worth of Pool-tight from Contractor's Supply. On July 10, 1981, the Respondent paid

   $275.60 on this bill. This left a remaining balance of $78 due Contractor's Supply, which was not paid.

   
   

8. Raney subsequently contracted with another contractor to repair the pool's bottom. This contract between Mary Raney and Reid Baker provided that Baker would perform the following work for a contract price of $2,780:

   
   

   1. Remove cracked bottom;

   2. Install or replace dead line and rock bottom and steel;

   3. Re-Gunite bottom and walls where necessary;

   4. Check all piping and repair;

   5. Marcite entire pool;

   6. Furnish and install grab rails;

   7. Recoat cool deck where necessary for a first-class job;

   8. Reinstall owner's filter, pump, valve, etc.;

   9. Clean up pool debris.

      
      

9. The contract between Raney and the Respondent did not call for the replacement of the bottom of the pool, and the replacement of the bottom of the pool was not anticipated in said contract.

   
   

10. The standard building code of the City of Longwood requires that a contractor obtain a building permit prior to construction or repair of a pool.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Construction Industry Licensing Board has authority under the provisions of Chapter 459, Florida Statutes, to discipline its licensees and registrants. The Division of Administrative Hearings has authority to hear this case, and this order is entered pursuant to the authority of Section 120.57, Florida Statutes.

    
    

12. The Construction Industry Licensing Board has charged the Respondent with violation of Section 489.129(1)(d), Florida Statutes, in that he failed to obtain a building permit prior to commencing work on the repairs to the Raney pool. The facts show that the Respondent did not obtain a building permit as required by the statute. The Respondent violated Section 489.129(1)(d), Florida Statutes.

    
    

13. The Construction Industry Licensing Board also charges the Respondent with violation of Section 459.129(1)(h), Florida Statutes, in that it alleges Respondent diverted funds received for completion of the project and, as a result thereof, was unable to fulfill the terms of his obligation or contract.

    
    

14. The facts indicate that the Respondent performed his work in a workmanlike fashion and that payments were made by the owner of the pool for the

work done until on or about July 13, 1981. On that date, the original repairs to the pool were sufficiently complete to warrant filling the pool with water. At that point in time, the bottom of the pool was broken out by the weight of the water. This condition did not exist prior to that date, and its repair was not within the contemplation of the parties to the contract. Because of the problem, Raney refused to pay the balance of the contract price, a total of

$1,275, until the pool construction was complete. Obviously, the Respondent could not repair the complete bottom of the pool for $1,275, a job which cost an experienced pool contractor in excess of $2,780. The total value of the labor and materials not paid by the Respondent is $860, substantially less than the

$1,275 retained by Raney. The thrust of this allegation is that the Respondent improperly diverted funds from completion of the Raney project. The evidence indicates that the money received for prosecution of this project was spent for that purpose by the Respondent, and that he was unable to pay the bills referenced above because of Raney's retention of the $1,275. The Respondent did not divert funds and fail to "complete" the project because of the alleged diversion. The Respondent did not violate Section 489.192(1)(h), Florida Statutes.

RECOMMENDATION

Having found the Respondent, Ronald B. Haendiges, not guilty of violating Section 489.129(1)(h), Florida Statutes, the Hearing Officer recommends that this charge be dismissed. Having found the Respondent guilty of violating Section 489.129(1)(d), Florida Statutes, by failing to obtain a permit as required by the local building codes, the Hearing Officer recommends that the Respondent receive a letter of reprimand.

DONE and RECOMMENDED this 15th day of April, 1983, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, 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 15th day of April, 1983.

COPIES FURNISHED:

Stephanie A. Daniel, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Ronald B. Haendiges Post Office Box 388

Winter Park, Florida 32790

Frederick Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

J. K. Linnan, Executive Director Construction Industry Licensing

Board

Post Office Box 2 Jacksonville, Florida 32201

Docket for Case No: 82-002873

Orders for Case No: 82-002873