STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 83-036

)

ALFRED C. WICHT, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Ft. Lauderdale, Florida, on April 19, 1983, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter. The parties were represented by:

APPEARANCES

For Petitioner: Michael J. Cohen, Esquire

Suite 101, Kristin Building

2715 East Oakland Park Boulevard Ft. Lauderdale, Florida 33306

For Respondent: Alfred C. Wicht

6701 Cypress Road, Number 108

Plantation, Florida 33317

This case arose on Petitioner's Administrative Complaint charging Respondent with abandoning a construction project in violation of Subsection 489.129(1)(k) , Florida Statutes (F.S.). Petitioner submitted proposed findings of fact which are incorporated herein to the extent they are relevant and consistent with the evidence.

FINDINGS OF FACT

1. At all times pertinent to this proceeding, Respondent, Alfred C. Wicht, has been registered as a pool contractor, license numbers RP 0026439 and RP A026439.

   
   

2. At all times material herein, Respondent was the qualifier for Heritage Pools, Inc.

   
   

3. On or about August 1, 1978, Heritage Pools, Inc. entered into a contract with Pacesetter Homes, Inc. to install a swimming pool at 3530 North 30th Terrace, Hollywood, Florida, for the sum of $5,350.00.

4. Heritage Pools, Inc. commenced construction and completed the pool through the gunite and tile stage and received draw payments totaling approximately $4,295.00.

   
   

5. About April or May, 1979, the pool popped out of the ground through no fault of the Respondent. The Respondent made some effort at repairing the pool and placing it back in the ground from the date it popped out through October, 1979.

   
   

6. Respondent conceded that he delayed completing his repairs on the pool by virtue of the expense it was causing to his company and his belief that Pacesetter Homes, Inc. should have provided financial assistance.

   
   

7. On or about December 5, 1979, Pacesetter Homes, Inc. learned that the pool could not be repaired and hired Electra Pools, Inc. to take out the pool initially installed by Respondent, and install a new pool in its place.

   
   

   CONCLUSIONS OF LAW

   
   

8. Section 489.129, F.S., provides in part:

   
   

   1. The board may revoke, suspend, or deny the issuance or renewal of the certificate or

      registration of a contractor or impose an admin- istrative fine not to exceed $1,000, place the contractor on probation, reprimand or censure, a contractor if the contractor is found guilty of any of the following acts:

      (k) Abandonment of a construction project in which the contractor is engaged or under contract as a contractor. A project is to be considered abandoned after 90 days if the contractor termin- ates said project without notification to the pro- spective owner and without just cause.

      
      

9. Respondent is charged with violating Subsection 489.129 (1)(k), F.S., quoted above. Petitioner concedes that Respondent was not absent from the site for the 90-day period specified in the statute, but argues that the 90-day test should not apply where a contractor merely Visits the project periodically, but accomplishes nothing substantial.

Where, as here, a statute provides grounds for license revocation, it is penal in nature and its provisions must be strictly construed. Bach v. Board of Dentistry, 378 So.2d 34, 36 (Fla. 1st DCA 1979). Since Respondent did not abandon the project for the specified 90-day period, he may not be found guilty of violating this provision.

RECOMMENDATION

From the foregoing, it is RECOMMENDED:

That Petitioner enter its Final Order dismissing the charges contained in the Administrative Complaint.

DONE and ENTERED this 27th day of May, 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 27th day of May, 1983.

COPIES FURNISHED:

Michael Cohen, Esquire Suite 101, Kristin Bldg. 2715 E. Oakland Park Blvd.

Ft. Lauderdale, Florida 33306

Alfred C. Wicht

6701 Cypress Rd., #108

Plantation, Florida 33317

James Linnan, Executive Director Construction Industry Licensing Board Department of Professional Regulation 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: 83-000036

Orders for Case No: 83-000036