Judges: WILLIAM R. CAVE
Agency: Department of Business and Professional Regulation
Latest Update: Sep. 17, 1987
Summary: Burden of clear & convincing evidence not by Petitioner to show Respondent quilty of violating Section 489.129(1)(j)(m).
87-0445.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, CONSTRUCTION ) INDUSTRY LICENSING BOARD, )
)
Petitioner, )
)
vs. ) CASE NO. 87-0445
)
DANIEL LOZEAU, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a hearing was held before William R. Cave, a hearing officer of the Division of Administrative Hearings, on July 7, 1987, in Deland, Florida. The issue for determination is whether Respondent's license as a certified pool contractor should be disciplined based on the violations alleged in the Amended Administrative Complaint.
APPEARANCES
For Petitioner: W. Douglas Beason, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
For Respondent: Daniel N. Lozeau, Pro Se
600 Jimmy Ann Drive
Daytona Beach, Florida 32014 BACKGROUND
By an Administrative Complaint dated October 15, 1986, filed with the Division of Administrative Hearings on February 3, 1987, and amended by order on April 16, 1987, on Petitioner's Motion For Leave To File An Amended Administrative Complaint, Petitioner seeks to revoke, suspend or otherwise discipline the license of Respondent, Daniel N. Lozeau as a registered pool contractor in the state of Florida. As grounds therefor, it is alleged that Respondent: (1) abandoned a construction project in violation of Section 489.129(1)(k), Florida Statutes (1985); (2) diverted funds received for completion of a specified construction project in violation of Section 489.129(1)(h), Florida Statutes (1985); (3) failed to properly supervise a job which was his responsibility as qualifying agent in violation of Section 489.129(1)(j), Florida Statutes (1985) and; (4) is guilty of fraud or deceit or of gross negligence, incompetency or misconduct in the practice of contracting in violation of Section 489.129(1)(m), Florida Statutes (1985).
In support of its charges, Petitioner presented the testimony of Kenneth McMillan, Joyce Malinoski, Robert Adams, John McGowan and Thomas Aubuchon.
Petitioner's exhibits 1-5 1/ were received into evidence. Respondent testified on his own behalf but did not introduce any documentary evidence.
Only the Petitioner submitted post-hearing Proposed Findings of Fact and Conclusions of Law. A ruling on each proposed finding of fact has been made as reflected in the Appendix to this Recommended Order.
FINDINGS OF FACT
Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:
At all times material hereto, Respondent was a certified pool contractor, holding license no. CP-C033753, issued by the State of Florida, Department of Professional Regulation, Construction Industry Licensing Board.
At all times material hereto, Respondent's certified pool contractor's license qualified Artistic Pools and Spas, Inc. with the Florida Construction Industry Licensing Board.
On or about May 19, 1986, Respondent, d/b/a Artistic Pools and Spas, Inc. entered into a contract with Joseph and Joyce Malinoski for the construction of a swimming pool at 31 Sea Harbour Drive, Ormond Beach, Florida for a contract price of $9,737.75. The contract required a down payment of ten per cent (10 percent) of the contract amount ($973.78) which was paid by the Malinoskis on May 19, 1986.
The Malinoskis resided in Massachusetts at the time they contracted for the swimming pool with Respondent and had contracted for the construction of a home in Ormond Beach, Florida to begin upon the pool shell being in place.
The Malinsokis returned to Massachusetts upon execution of the contract expecting Respondent to commence work on the pool two weeks after he was notified by the builder that the survey was completed and the benchmark in place.
On or before June 18, 1986, Respondent contacted the Malinoskis by phone to advise them that the pool was under construction, that Respondent was ready to start pouring concrete, and that he needed the next two (2) installments (20 percent due on day of excavation and 35 percent due on day of concrete shell installation) in the amount of $5,355.76.
On or about June 18, 1986, the Malinoskis forwarded a cashier's check in the amount of $5,355.76 made payable to Respondent with the understanding from Respondent that the pool was under construction.
On or about June 25, 1986, the Malinoskis were advised by their building contractor that the pool was not under construction.
On or about July 5, 1986, the Malinoskis returned to Ormond Beach and found that the pool was not under construction.
Although the business phone at Artistic Pools and Spas, Inc. had been disconnected, the Malinoskis ultimately located the Respondent but were unable to resolve the problem until after a complaint had been filed.
In early August, 1986, an agreement was reached with the Malinoskis, Respondent and David Larsen whereby Respondent would furnish the labor to build the pool, Larsen would pay the bills and the Malinoskis would pay the balance owed on the contract to Larsen and at end of construction Larsen would give the Malinoskis release of liens. The pool was constructed without the Malinoskis having to pay any additional money on the contract. The money used by Larsen to purchase materials above the amount paid to Larsen by the Malinoskis was repaid to Larsen by Respondent. Respondent supplied all the labor to construct the pool.
The testimony of Respondent, which I find credible, was that the funds received by Respondent were frozen due to an Internal Revenue Service levy on the Respondent's business account which resulted in the IRS taking all the funds in the bank account, including the money from the Malinoskis.
There was insufficient evidence to show that Respondent diverted the Malinoskis' funds or that the Respondent was unable to fulfill the terms of the contract.
On or about November 15, 1985 Respondent, d/b/a Artistic Pools and Spas, Inc. contracted with John and Louise McGowan for the construction of a swimming pool and spa at 1266 Robbin Drive, Port Orange, Florida for an original contract price of $11,500. These were 2 addendums to the original contract bringing the total contract price to $13,005.75.
The contract provided for the spa to be 7 feet long by 5 feet wide with a depth ranging from 18 inches to 36 inches. As constructed, the spa was 5 feet long by 5 feet wide with a depth of 44 inches. The spa was also unlevel resulting in water spilling on to the deck rather than into the spillway to the pool. The therapy jets were located too deep in the spa to allow them to function properly. The spa has never been operational.
Respondent was aware of the deficiencies in the construction of the spa but failed to correct them.
The deck around the pool was not properly finished in that it is uneven and rough in several locations and is pitched toward the pool rather than away from the pool. The deck also has several facial cracks (not structural) which indicate a nonuniform thickness.
As contracted, the pool was to have 3 return fittings of which only 2 were installed.
The contract called for the installation of a heater by the Respondent. Although the heater was installed, it was improperly placed resulting in the inspector putting a "red tag" on the heater and having the gas company disconnect it.
The McGowans have paid all but $575 of the contract price but refuse to pay the balance until corrections are completed.
Respondent was aware of the deficiencies in the construction of the pool but failed to correct them.
The evidence is clear that Respondent failed to properly supervise the construction of the McGowans' pool and spa, thereby resulting in poor workmanship in the construction of the pool and spa.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding. Section 120.57(1), Florida Statutes.
Section 489.129, Florida Statutes empowers the Florida Construction Industry Licensing Board (Board) to revoke, suspend or otherwise discipline the license of Respondent if he is found guilty of any one of those enumerated acts listed in Section 489.129, Florida Statutes.
The Amended Administrative Complaint charges Respondent with violating Section 489.129(1)(h), (j), (k) and (m), Florida Statutes, which provides as follows:
(h) Diversion of funds or property received for prosecution or 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.
* * *
Failure in any material respect to comply with the provision of this act.
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 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 practice of contracting.
In disciplinary proceedings, the burden is upon the regulatory agency to establish facts upon which its allegation of misconduct are based. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (1 DCA Fla. 1977). The Petitioner has failed to meet its burden to show that Respondent violated Section 489.129(1)(h) and (k), Florida Statutes. Petitioner has met its burden to show that Respondent is guilty of deceit and incompetency under Section 489.129(1)(m), Florida Statutes and has shown that Respondent, by failing to properly supervise the construction of the McGowan's pool and spa, which was his responsibility as qualifying agent under Section 489.105(4), Florida Statutes, is guilty of violating Section 489.129(1)(j), Florida Statutes.
RECOMMENDATION
Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore
RECOMMENDED that the Florida Construction Industry Licensing Board (Board) enter a final order finding Respondent guilty of violating Section 489.129(1)(j) and (m), Florida Statutes and for such violation it is Recommended that the Board assess the respondent with an administrative fine of $500.00 and suspend the Respondent's pool contracting license for a period of two (2) years, stay the suspension, and place Respondent on probation for a period of two (2) years, provided the Respondent pays the administrative fine of $500.00 within sixty
days of the date of the Final Order. It is further Recommended that the charges of violating Section 489.129(1)(h) and (k), Florida Statutes be DISMISSED.
Respectfully submitted and entered this 17th day of September, 1987, in Tallahassee, Leon County, Florida.
WILLIAM R. CAVE
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 17th day of September, 1987.
ENDNOTE
1/ Page 64 of the transcript indicates that an exhibit 6 was received into evidence. However, my notes do not reflect an exhibit 6 being identified or received into evidence. Also, Petitioner notes do not reflect an exhibit 6 being introduced.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0445
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case.
Rulings on Proposed Findings of Fact Submitted by the Petitioner
Adopted in Finding of Fact 1.
Adopted in Finding of Fact 2.
3.-4. Adopted in Finding of Fact 3. 5.-6. Adopted in Finding of Fact 4.
Adopted in Finding of Fact 3.
Adopted in Finding of Fact 5.
9.-11. Adopted in Finding of Fact 6.
12. Adopted in Findings of Fact 6 and 7. 13.-14. Adopted in Finding of Fact 7. 15.-17. Adopted in Finding of Fact 8.
18. Adopted in Finding of Fact 9.
19.-22. Adopted in Finding of Fact 10.
23.-24. Adopted in Finding of Fact 14. 25.-28. Adopted in Finding of Fact 15.
Adopted in Finding of Fact 14 but clarified.
Adopted in Finding of Fact 17, 19 and 20.
Adopted in Finding of Fact 18 but clarified.
Adopted in Finding of Fact 21.
Adopted in Finding of Fact 17.
Adopted in Findings of Fact 17 and 22 but clarified.
Adopted in Finding of Fact 22.
Rejected as immaterial and irrelevant.
Adopted in Finding of Fact 19.
Rulings on Proposed Findings of Fact Submitted by the Respondent
Respondent did not submit any Proposed Findings of Fact or Conclusions of
Law.
COPIES FURNISHED:
W. Douglas Beason, Esquire Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32399-0075
Mr. Daniel N. Lozeau Pro Se
600 Jimmy Ann Drive
Daytona Beach, Florida 32014
Van Poole, Secretary Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
Fred Seely, Executive Director Post Office Box 2 Jacksonville, Florida 32201
Docket for Case No: 87-000445
Orders for Case No: 87-000445
| Issue Date |
Document |
Summary |
|
Jan. 22, 1988 |
Agency Final Order
|
|
|
Sep. 17, 1987 |
Recommended Order
|
Burden of clear & convincing evidence not by Petitioner to show Respondent quilty of violating Section 489.129(1)(j)(m).
|
