STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 82-2941

)

HENRY C. HOLLENBECK, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this matter before Marvin

1. Chavis, duly designated Hearing Officer of the Division of Administrative Hearings, on March 1, 1983, in Ft. Walton Beach, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: John O. Williams, Esquire

   547 North Monroe Street, Suite 204 Tallahassee, Florida 32301

   
   

   For Respondent: Henry C. Hollenbeck

   405 Marshall Court

   Ft. Walton Beach, Florida ISSUES AND BACKGROUND

   By administrative complaint dated June 28, 1982, the Department of Professional Regulation charged the Respondent, Henry C. Hollenbeck, with violations of Chapter 489 of the Florida Statutes. Specifically, the Respondent was charged with deliberately or willfully disregarding and violating the building code of Okaloosa, Florida, in that he did not obtain a required electrical permit prior to performing the work. He was also charged with having violated Section 489.129 by having failed to qualify a company through and under which he was doing business. Similarly, the Petitioner charged the Respondent with acting in the capacity of a contractor under a name other than that by which he was registered. The Petitioner was also charged with being guilty of incompetence and misconduct in the practice of contracting and with making misleading, deceptive, untrue, or fraudulent representations in the practice of contracting.

   
   

   At the formal hearing, the Petitioner called as witnesses Mr. Thomas L. Withers, Mr. Ray O. Deal, Mr. James Costin, and Mrs. Elizabeth Jarrell.

   Petitioner introduced and had admitted four exhibits. The Respondent testified on his own behalf and offered and had admitted one exhibit. Subsequent to the hearing, the Petitioner submitted a late filed exhibit which was a final order

   from the Florida Construction Industry Licensing Board dated April 23, 1982, and relating to Henry C. Hollenbeck. Inasmuch as there had been no request and approval for the filing of this particular late filed exhibit, and because the Respondent, therefore, had no opportunity to respond to the exhibit, the exhibit was not considered by the Hearing Officer in arriving at his Findings of Fact, Conclusions of Law, or Recommendation. That final order, therefore, is not considered as part of the record in this action.

   
   

   Counsel for the Petitioner submitted proposed findings of fact and conclusions of law for consideration by the undersigned Hearing Officer. To the extent that those proposed findings of fact and conclusions of law are not adopted in this order, they were considered by the Hearing Officer and determined to be irrelevant to the issues in this cause or not supported by the evidence.

   
   

   FINDINGS OF FACT

   
   

   1. The following facts, a through d, were stipulated to by the Petitioner and Respondent and are found to be true facts by the undersigned Hearing Officer.

      
      

      1. Respondent is a registered pool contractor having been issued License No. RP0033408.

      2. Respondent did not qualify Acme Building Company or Acme Pools Incorporated until October, 1981. In October, 1981, Respondent qualified Acme Pools Incorporated.

      3. On November 20, 1978, the Respondent executed and signed a contract with Mr. and Mrs. C. S. Jarrell to construct a swimming pool at the Jarrell residence. The contract price was $6,500.00. The named party to the contract with the Jarrells was Acme Pools.

      4. On September 8, 1979, the Respondent signed and executed a contract with Mr. and Mrs. James Costin to construct a swimming pool at the Costin residence. The contract price was $6,835.00. The named party to the contract with the Costins was Acme Pools.

         
         

   2. Subsequent to the execution of the contract, the Jarrell swimming pool was completed by the Respondent. Shortly following completion, the swimming pool began leaking and continues to leak. Water must be added to the pool daily. The Jarrell pool was constructed with sidewalls consisting of pre-cast concrete panels which are imbedded in the floor of the pool. The leaks occurred as a result of inadequate back bracing behind the panels. This is a construction defect.

      
      

   3. When they discovered that their pool was leaking, the Jarrells immediately contacted the Respondent. The Respondent attempted to repair the leaks on two different occasions. Both attempted repairs were unsuccessful. Respondent became aware, after construction of the Jarrell pool, that there was something basically wrong with the construction of the Jarrell pool, but the Respondent did not accomplish a permanent repair of the problem.

      
      

   4. Subsequent to executing the contract with Mr. and Mrs. Costin, the Respondent completed a swimming pool at the Costin residence. Within a day

      after the Costin pool was completed, Mr. Costin noticed that the pool was losing water. The pool had a substantial leak, losing as much as four to five inches per day of water in the 16 feet by 32 feet pool.

      
      

   5. Mr. Costin, after discovering the leak, immediately notified the Respondent. The Respondent made several attempted repairs of the leaks. Some of the repairs temporarily stopped the leaking, but no permanent repair of the leaks has been accomplished. The last attempted repair by the Respondent was in September, 1981.

      
      

   6. During construction of the Costin pool, the Respondent performed the electrical work on the pool. No electrical permit was obtained from Okaloosa County building officials as required by Okaloosa County Ordinance No. 75-4. It was Respondent's responsibility to obtain or make certain that his subcontractor obtained the necessary permits for construction of the Costin swimming pool. During construction, Mr. Costin and the Respondent discussed permits and the Respondent did obtain the building permit for the construction. The Respondent was aware some type of electrical permit was required.

      
      

   7. In August, 1978, Respondent purchased Acme Building Company and did business as Acme Pools until October, 1981. Respondent, prior to October, 1981, ran a fictitious name ad in the newspaper for Acme Pools and registered Acme Pools with the county but did not qualify Acme Pools. During the period August, 1978, to October, 1981, the Respondent was licensed individually as a registered pool contractor.

      
      

   8. Respondent had been in business less than one year when he constructed the Jarrell and Costin pools. The construction method of using pre-cast concrete panels is more likely to crack and leak than other available methods of swimming pool construction. The Respondent now constructs only fiberglass pools. He no longer builds the type of pools constructed for Mr. and Mrs. Jarrell and Mr. and Mrs. Costin.

      
      

      CONCLUSIONS OF LAW

      
      

   9. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this action.

      
      

   10. Pursuant to Florida Statute 489.129 (1979), the Construction Industry Licensing Board is empowered to discipline licensed contractors for any of the acts described in Section 489.129.

       
       

   11. Section 489.129(1)(d), Florida Statutes, provides the following as a ground for discipline by the Board.

       
       

       Willful or deliberate disregard and violation of the applicable building codes or laws of the state or of any municipalities or counties thereof.

       
       

       Okaloosa County Ordinance 75-4 incorporates the National Electrical Code and requires a permit and inspection on all new electrical installations.

       
       

   12. The evidence in the instant case established that the Respondent was aware that some type of electrical permit was required by the county. He performed the electrical work on the Costin pool without obtaining an electrical permit and as the contractor in charge of the job, it was his responsibility to

       make certain the electrical permit was obtained. This constitutes a willful violation of the Okaloosa County Ordinance No. 75-4 and, thus, a violation of Florida Statute 489.129(1)(d)(1979), in Count II of the administrative complaint.

       
       

   13. Florida Statutes 489.119(2) and (3) provide:

       
       

       (2) If the applicant proposes to engage in contracting as a partnership, corporation, business trust or other legal entity, the applicant shall apply through a qualifying agent; the application shall state the name of the partnership and of its partners, the name of the corporation and of its officers and directors, the name of the business trust and its trustees, or the name of such other legal entity and its members; and the applicant shall furnish evidence of statutory compliance if a fictitious name is used. Such application shall also show that the qualifying agent is legally qualified to act for the business organization in all matters connected with its contracting business and that he has authority to supervise construction undertaken by such business organization. The registration or certification, when issued upon application of a business organization, shall be in the name of the qualifying agent, and the name of the business organization shall be noted thereon.

       
       

       (3)(a) The qualifying agent shall be certified or registered under this act in order for the business organization to be certified or registered in the category of the business conducted for which the qualifying agent is certified or registered. If any qualifying agent ceases to be affiliated with such business organization, he shall so inform the department. In addition, if such qualifying agent is the only certified or registered individual affiliated with the business organization, the business organization shall notify the department of the termination of the qualifying agent and shall have a minimum of sixty (60) days from the termination of the qualifying agent's affiliation with the business organization in which to employ another qualifying agent. The business organization may not engage in contracting until a qualifying agent is employed.

       
       

       (b) The qualifying agent shall inform the department in writing when he proposes to engage in contracting in his own name or in affiliation with another business organization, and he or such new business organization shall

       supply the same information to the department as required of applicants under this act.

       
       

   14. Florida Statute 489.129(1)(g) and 489.129(1)(j) provide the following acts as grounds for disciplinary action by the board.

       
       

       (g) Acting in the capacity of a contractor 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, or in accordance with the personnel of the certificate holder or registrant as set forth in the application for the certificate or registration, or as later changed as provided in this act.

       
       

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

       
       

   15. From August, 1978, to October, 1981, the Respondent operated and did business as a swimming pool contractor under the name Acme Pools. He did not qualify until October, 1981, to do business as Acme Pools, in accordance with Florida Statute 489.119(.2) and (3)(1979). This constitutes a violation of Florida Statute 489.119(1)(g) and 489.119(1)(j)(1979) as alleged in Counts 1 and

       2 of the administrative complaint.

       
       

   16. The administrative complaint in Count V also alleged a violation of Florida Statute 489.129(1)(m)(1979), which provides as a ground for discipline:

       
       

       (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 evidence did not establish a violation of this section. Count V also charges that the defendant violated 489.129(1)(c) in that he made misleading, deceptive, untrue, or fraudulent representations in the practice of his profession in violation of Section 455.227(1)(a)(1979). The evidence did not establish a violation of Sections 455.227(1)(a) and 489.129(1)(c), Florida Statutes (1979), as alleged in Count V of the administrative complaint. Count V should, therefore, be dismissed.

       
       

   17. During the formal hearing, the Petitioner voluntarily dismissed Counts III and IV of the administrative complaint, and no evidence was presented as to those counts.

RECOMMENDATION

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

That the Respondent be found guilty of the violations alleged in Counts I and II and that the Board impose upon the Respondent an administrative fine of

$1,500.00. It is further recommended that Counts III, IV, and V of the

administrative complaint be dismissed and that the Respondent be found not guilty of the violations alleged in those counts.

DONE and ENTERED this 1st day of June, 1983, in Tallahassee, Florida.

MARVIN E. CHAVIS

Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1983.

COPIES FURNISHED:

John O. Williams, Esquire

547 North Monroe Street Suite 204

Tallahassee, Florida 32301

Henry C. Hollenbeck

405 Marshall Court

Ft. Walton Beach, Florida

Mr. Fred Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. James Linnan Executive Director

Construction Industry Licensing Board

Post Office Box 2 Jacksonville, Florida 32202

Docket for Case No: 82-002941

Orders for Case No: 82-002941