STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 86-3468

)

THOMAS L. JACKSON, )

)

Respondent. )

)

RECOMMENDED ORDER

Before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

David E. Bryant, Esquire, of Tampa, for Petitioner. Thomas L. Jackson, of St. Petersburg, pro se.

On June 15, 1988, in Ft. Myers, this case was heard on an Administrative Complaint charging the Respondent with various violations arising out of a pool construction contract. The Administrative Complaint charges violations of the following sections of the Florida Statutes (1985): (1) 489.129(1)(k), for alleged abandonment of the job; (2) 489.129(1)(h), for alleged diversion of funds received for the job; (3) 489.129(1)(m), for alleged inadequate supervision, incompetence, gross negligence and/or misconduct; 489.129(1)(c), for alleged fraudulent or misleading statements; (4) 489.129(1)(j) for alleged contracting with a delinquent license; (5) 489.129(1)(g) and (j) for alleged failure to qualify the company through which he contra cted; and (6) 489.129(3) for alleged failure to notify the Construction Industry Licensing Board of his change of address.

The prehearing and posthearing proceedings in this case were extraordinary. Not long after the case was referred to the Division of Administrative Hearings on August 29, 1986, the Department requested admissions from the Respondent and, thinking the Respondent had ignored the request, moved to have the requests deemed admitted and conclusively established. When the Respondent protested that he had indeed responded to the request, the Department's attorney (not the current attorney for the Department) withdrew the motion, and the case was scheduled for final hearing on April 30, 1987. The Department then moved to continue the hearing. The motion was granted, and another delay ensued while the parties engaged in settlement efforts. Finally, in July, 1987, the Department requested that the hearing be rescheduled, but not until November, 1987, to accommodate its out-of-state witness. The hearing was set for December 8, 1987, but in the meantime the Department substituted attorneys, and its new attorney (still not its current attorney) moved for a continuance again based on a schedule conflict. The hearing was continued to February 10, 1988, and the Department again moved to continue (and change venue

to Ft. Myers.) Finally, the hearing was rescheduled for June 15, 1988, and the Department's current attorney appeared to represent it on March 22, 1988.

At the conclusion of the final hearing, neither party ordered the preparation of a transcript, but the Respondent asked to be allowed to take posthearing depositions and file the deposition transcripts as late-filed exhibits. Protracted negotiations between the parties ensued concerning the arrangement of the depositions or the submission of further evidence in another form. Ultimately, negotiations broke down, and the Respondent unilaterally filed a packet containing pictures and various documents. The Department has not responded to the filing, but the attempted posthearing submission of evidence in that form is highly irregular. The evidence is rejected and will not be considered.

Finally, on October 4, 1988, the Hearing Officer set an October 17, 1988, deadline for submission of proposed recommended orders. Both parties exceeded the deadline. The Respondent filed his "proposed recommended order" on November 10, 1988. No copy appeared to have been sent to the Department's attorney and, upon inquiry, the Hearing Officer was advised that the October 4, 1988, order was sent to an out-of-date address of the Department's attorney, that it was never received, and that the Department was not aware of the deadline. When this came to the Hearing Officer's attention, the Department's attorney was given an oral extension of time. The Department's proposed recommended order was filed on December 12, 1988.

The Respondent's "proposed recommended order," actually a letter containing written argument, arguably also contains proposed findings of fact but they are not in paragraph form, and it is virtually impossible to rule explicitly on these proposed findings of fact. Much of the Respondent's proposed findings refer to the posthearing submission of evidence that has been rejected and to the Respondent's report of his own posthearing inspections of the pool in question, also highly irregular and unacceptable. Explicit rulings on the Department's proposed findings of fact may be found in the attached Appendix To Recommended Order, Case No. 86-3468.

FINDINGS OF FACT

1. Respondent is, and has been at all times material to this proceeding, a registered and certified pool contractor having been issued license numbers RP 0023613 and CP 0012607.

   
   

2. Respondent's license number RP 0023613 has been delinquent since June 30, 1983, but his license number CP 0012607 was active and in full force and effect until he ceased doing business in approximately September, 1985.

   
   

3. Respondent conducted his pool contracting business in the name of Hallmark Pools for approximately 14 years. The business entity "Hallmark Pools" was properly qualified and named on the Respondent's license.

   
   

4. In 1985, the Respondent began to enter the business of designing outdoor patios and fountains, as well as pools. He wished to retain the good will he had gained operating under the name "Hallmark Pools" while gaining good will in the new name under which he planned to conduct business in the future, "Aquatic Environments, Inc." During this transition period, and until he closed his business, the Respondent's contracts and letterhead contained the names "Hallmark Pools" and "Aquatic Environments, Inc.," but that name never appeared on his licensure.

5. On or about March 12, 1985, Respondent, through Hallmark Pools/Aquatic Environments, Inc., contracted with customers Mr. and Mrs. Allan Schaeffer to construct a screened-in pool and spa at their residence located at Archer Street, Lehigh Acres, Florida, for a contract price of $20,000. Later approximately $1,700 of extras were added to the contract.

   
   

6. On or about March 21, 1985, the Schaeffers paid the Respondent $2,000 on the contract. On or about May 23, 1985, the Schaeffers paid another $17,000 on the contract. Approximately, $2,600 remained owing on the contract.

   
   

7. The customers reside part of the time in New Jersey. In the contract, Respondent promised a June 15 completion date. When the customers arrived in Florida on or about June 14, they found that the project was not complete. When the customers contacted the Respondent, the work was resumed. The pool was quickly completed and was usable by the beginning of the July 4th weekend. Some punch list items remained to be done, but the Schaeffers preferred that the Respondent wait until after they returned to New Jersey in August, 1985.

   
   

8. The evidence did not prove that the Respondent promised a June 15 completion date while knowing that he would not be able to finish the work by that date.

   
   

9. During the summer of 1985, personal problems the Respondent was facing at the time mounted, and eventually he decided he no longer could continue to operate his business. He began to plan to close his business and have all pending matters either resolved by himself before he went out of business or resolved by his brother Chad Jackson, also a licensed pool contractor, after going out of business. He did this by assigning pending contracts to his brother. He also attempted to insure that all suppliers were paid either by himself before he went out of business or by his brother out of payments due under the contracts assigned to him. Except for the Schaeffer job, the Respondent's arrangements to close out his business did not result in any complaints.

   
   

10. Near the end of August, 1985, the Schaeffers gave the Respondent a punch list of work still due under the contract to be done while the Schaeffers were in New Jersey. The Respondent called and told Mr. Schaeffer that he was closing his business but that the punch list items would be taken care of.

    
    

11. At the time, the Respondent also knew that approximately $1,300 was owed to Jones Industries Screen Enclosures, Inc. The Respondent expected his brother to pay Jones out of the $2,600 due on the Schaeffer contract, leaving

    $700 to compensate his brother for the punch list work and any warranty work.

    
    

12. In fact, there also was $2,705.12 owed to a company named FAFCO Solar, which had subcontracted the solar heating on the Schaeffer contract. The Respondent had forgotten about this debt. FAFCO had billed the Respondent on July 15, 1985, but the Respondent did not pay it or arrange for its payment. FAFCO's second billing never reached the Respondent. The Respondent sent FAFC0, along with his other suppliers and subcontractors, a notice on August 22, 1985, that he was going out of business and that mail should be sent to his home address. On receipt of this notice on August 28, 1985, FAFC0 mailed a second billing to the home address but it was returned on August 30, 1985, marked: "Moved Left No Address".

13. The Respondent's brother did the punch list work to Mr. Schaeffer's satisfaction and sent him a bill for the $2,600 balance due on the contract. Schaeffer never paid. The Respondent's brother never paid the Jones Industries bill (and never got the FAFCO bill). Jones Industries put a lien on the property at 1414 Archer Street for $1,388.75, which the Schaeffers eventually paid. FAFCO did not file a notice to owner and could not claim a lien on the property. FAFC0 never was paid. Both Jones Industries and FAFCO refused to do warranty repairs because they were not timely paid.

    
    

14. The evidence did not prove that the Respondent inadequately supervised the Schaeffer job while he was still in business or after he went out of business. After he went out of business, he assigned the contract to a licensed pool contractor, his brother.

    
    

15. Eventually, serious problems developed in the Schaeffer's pool at 1414 Archer Street. But the evidence did not prove that the Respondent or his brother were responsible. The serious problems of which the Schaeffers now complain should have been apparent from the outset if caused during construction of the pool. Yet complaints were not registered until much later. Meanwhile, improper maintenance of the pool by the Schaeffers or their pool maintenance contractor, or damage to the pool during maintenance, could have caused the current problems.

    
    

16. For six months after the Respondent closed his business and left Ft. Myers, he was traveling in the western part of the country and had no mailing address and did not give one to the Construction Industry Licensing Board. Then, he returned to Florida to a St. Petersburg address which he gave to the Board.

    
    

    CONCLUSIONS OF LAW

    
    

17. Section 489.129, Florida Statutes, (1985), provides in the parts made pertinent by the charges in the Administrative Complaint:

    
    

    1. The board may revoke, suspend, or deny the issuance or renewal of the certificate or registration of a contractor and impose an administrative fine not to exceed $5,000, place a contractor on probation, or reprimand or censure a contractor if the contractor, or if the business entity or any general partner, officer, director, trustee, or member of a business entity for which the contractor is a qualifying agent, is found guilty of any of the following acts:

       * * *

       (c) Violation of chapter 455.

       * * *

       1. Acting in the capacity of a contractor under any certificate or registration issued hereunder except in the name of the certificateholder or registrant as set forth on the issued certificate or registration, or in accordance with the personnel of the

          certificateholder or registrant as set forth in the application for the certificate or registration, or as later changed as provided in this act.

       2. Diversion of funds or property received for prosecution of completion of a specified construction project or operation when as a result of the diversion the contractor is or will be unable to fulfill the terms of his obligation or contract.

       * * *

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

       2. Abandonment of a construction project in which the contractor is engaged or under contract as contractor. A project is to be considered abandoned after 90 days if the contractor terminates the project without notification to the prospective owner and without just cause.

       * * *

       (m) Upon proof that the licensee is guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practices of contracting.

       
       

18. Section 455.227(1)(a), Florida Statutes (1985), which relates to the alleged violation of Section 489.129(1)(c), provides:

    
    

    1. The board shall have the power to revoke, suspend, or deny the renewal of the license, or to reprimand, censure, or otherwise discipline a licensee, if the board finds that:

       1. The licensee has made misleading, deceptive, untrue, or fraudulent representations in the practice of his profession;....

          
          

19. Section 489.129(3), Florida Statutes (1985), provides:

    
    

    (3) The board may specify by rule the acts or omissions which constitute violations of this section.

    
    

    1. A. C. Rule 21E-15.07 (1982), which relates to the alleged violations of Section 489.129(3), provides:

       
       

       A certificate holder or registrant shall notify the Department within thirty (30) days of a change in his name style or address from that which appears on his current certificate of registration and shall notify the Department within thirty (30) days after he has ceased to

       be affiliated with a business organization which he has previously qualified. Failure to do so may constitute cause for disciplinary action.

       
       

20. Section 489.115(3)(a), Florida Statutes (1985), which relates to the alleged violation of Section 489.129(1)(j), provides:

    
    

    (3)(a) Each licensee who desires tc continue as a licensee shall renew his certificate or registration every 2 years. The department shall mail each licensee an application for renewal.

    
    

21. Section 489.119, Florida Statutes (1985), which relates to the alleged violation of Section 489.129(1)(g) and (j), provides in pertinent part:

    
    

    (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. If there is a change in any information that is required to be stated on the application, the business organization shall, within 45 days after such change occurs, mail the correct information to the department.

    
    

22. As reflected in the Findings Of Fact, the Respondent violated Section 489.129(1)(g) by beginning to operate under the name "Aquatic Environments, Inc.," before qualifying that name and having it placed on his license. However, in mitigation, at the same time the Respondent continued to operate under the proper name, "Hallmark Pools," since he used "Hallmark Pools/Aquatic Environments, Inc."

23. It was not proved that the Respondent diverted funds, even though he omitted to pay FAFCO and did not leave his brother enough money from the contract to pay both FAFCO and Jones Industries. Therefore, no violation of Section 489.129(1)(h) was proved.

    
    

24. The evidence did not prove a violation of Section 489.129(1)(k). The Respondent did not "abandon" the project, as defined by that statute.

    
    

25. The evidence did prove a violation of Section 489.129(1)(m), but only in a limited respect. The Respondent did not make arrangements for the payment of the $2,705.12 owed to FAFC0, an instance of gross negligence, incompetency and misconduct. However, as reflected in the Findings Of Fact, the evidence did not prove any other negligence, incompetence or misconduct in the construction of the Schaeffer pool or in the Respondent's supervision of the construction. See also Conclusion Of Law 13, below. Nor did the evidence prove fraud, deceit or misconduct. Although the Respondent did not meet the June 15, 1985, construction deadline, it was not proved that he knowingly misled the Schaeffers when he agreed to the deadline.

    
    

26. For the reasons given in Conclusion Of Law 9, above, the evidence did prove a violation of Section 489.129(1)(j) by a violation of Section 455.227(1)(a), Florida Statutes (1985).

    
    

27. The evidence did not prove a violation of either F.A.C. Rule 21E-

    15.07 (1982) or Section 489.129(3), Florida Statutes (1985). The Respondent effectively could not notify the Board of a change of address until he had a new address to give it. When he returned to St. Petersburg, he gave the Board his new address.

    
    

28. There was no violation of Section 489.115(3)(a), Florida Statutes (1985). The Department's own evidence established that the Respondent's pool contractor license number. CP 012607 was active and in full force and effect in 1985 through when the Respondent closed his business.

    
    

29. Section 489.119(2), Florida Statutes (1985), is directed towards the level of supervision required of a licensee who qualifies a contracting entity. As already indicated, the evidence did not prove that the Respondent inadequately supervised the construction of the Schaeffer pool. Assignment of a contract to another licensed pool contractor does not violate the statute.

    
    

30. F.A.C. Rule 21E-17.001 (1986) provides in pertinent part:

    
    

    Normal Penalty Ranges. The following guidelines shall be used in disciplinary cases, absent aggravating or mitigating circumstances and subject to the other provisions of this Chapter.

    (1) 489.129(1)(g) ,489.119: Failure to

    qualify a firm, and/or acting under a name not on license. First violation, letter of guidance; repeat violation,

    $250 to $750 fine.

    * * *

    (19) 489.129(1)(m): Gross negligence, incompetence, and/or misconduct, fraud or deceit.

    1. Causing no monetary or other harm

       to licensee's customer, and no physical harm to any person. First violation,

       $250 to $750 fine; repeat violation,

       $1000 to $1500 fine and 3 to 9 month suspension.

    2. Causing monetary or other harm to licensee's customer, or physical harm to any person. First violation, $500 to

    $1500 fine; repeat violation, $1000 to

    $5000 fine and suspension or revocation.

31. F.A.C. Rule 21E-17.002 (1986) provides in pertinent part: Aggravating and Mitigating

    Circumstances. Circumstances which may

    be considered for the purposes of mitigation or aggravation of penalty shall include, but are not limited to, the following:

    1. Monetary or other damage to the licensee's customer, in any way associated with the violation, which damage the licensee has not relieved, as of the time the penalty is to be assessed. (This provision shall not be given effect to the extent it would contravene federal bankruptcy law.)

* * *

1. The severity of the offense.

2. The danger to the public.

3. The number of repetitions of offenses.

4. The number of complaints filed against the licensee.

5. The length of time the licensee has practiced.

6. The actual damage, physical or otherwise, to the licensee's customer.

7. The deterrent effect of the penalty imposed.

8. The effect of the penalty upon the licensee's livelihood.

9. Any efforts at rehabilitation.

32. F.A.C. Rule 21E-17.004 (1986) provides:

Where the above guideline states that the first violation shall be dealt with by letter of guidance, this is premised upon the assumption that the violation being discussed is the only violation for which probable cause exist;. Where said assumption is not accurate, and there is probable cause on other violations in the same or other cases being concurrently considered, then the "letter of guidance" violations shall normally be charged by

administrative complaint, and in such cases the portion of the penalty dealing with said violations shall be a reprimand.

33. F.A.C. Rule 21E-17.005 (1986) provides:

Penalties Cumulative and Consecutive. Where several of the above violations shall occur in one or several cases being considered together, the penalties shall normally be cumulative and consecutive.

34. F.A.C. Rule 21E-17.007(1986) provides:

Probation. Probation may also be assessed in any case where, in the board's opinion, it is advisable for the public welfare, in order to assure that the licensee operates properly and within the law in the future, to require the licensee to report to the Board periodically, or to otherwise serve a probationary period.

RECOMMENDATION

Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Construction Industry Licensing Board enter a final order finding the Respondent guilty of violating Section 489.129(1)(g) and (m), Florida Statutes (1985), reprimand him for the violation of (g) and fine him

$1000 for the violation of (m).

RECOMMENDED in Tallahassee this 19th day of December, 1988.

J. LAWRENCE JOHNSTON Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3468

To comply with Section 120.59(2), Florida Statutes (1987), the following rulings are made on the Petitioner's proposed findings of fact:

1. Rejected. (The license number was left blank.)

2. Accepted and incorporated.

3. Rejected as contrary to facts found. The Respondent arranged for payment of the Jones debt but disputes among the Schaeffers, Jones and the Respondent's brother led to Jones imposing a lien on the property which the Schaeffers eventually paid. The Respondent did not make arrangements to pay FAFCO, and that bill remains unpaid.

4.-9. Rejected as contrary to facts found.

COPIES FURNISHED:

David Bryant, Esquire

500 North Tampa Street Tampa, Florida 33602

Thomas Jackson

5203 109th Way North

St. Petersburg, Florida 33708

Fred Seely Executive Director

Construction Industry Licensing Post Office Box 2 Jacksonville, Florida 32201

Bruce D. Lamb General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 86-003468

Orders for Case No: 86-003468