STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 89-3001

)

LARRY RULE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written Notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Daniel Manry, held a formal hearing in the above-styled case on March 16, 1990, in Fort Lauderdale, Florida.

APPEARANCES

FOR PETITIONER: Robert G. Harris, Esquire

Department of Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

FOR RESPONDENT: Donald H. Benson, Esquire

Venus & Bowling, P. A.

301 SE 10th Court

Ft. Lauderdale, Florida 33316 STATEMENT OF THE ISSUES

The issue for determination at the formal hearing was whether Respondent: failed to perform work in a reasonable timely manner or abandoned such work; committed financial mismanagement or misconduct; failed to properly supervise work; and underbid a job; all in violation of Section 489.119, and Subsections 489.105(4), 489.129(1)(h), (k), and (m), Florida Statutes. 1/

PRELIMINARY STATEMENT

An Administrative Complaint was filed by Petitioner against Respondent on December 22, 1988. Respondent requested a formal hearing on January 20, 1989. The matter was referred to the Division of Administrative Hearings for assignment of a Hearing Officer on June 1, 1989, and assigned to the undersigned on June 13, 1989. A formal hearing was scheduled for October 24, 1989, pursuant to a Notice of Hearing issued on July 18, 1989. Respondent's Motion for Continuance was granted, and the formal hearing was rescheduled for January 12, 1990. Respondent's Motion to Compel and Motion for Continuance was granted, and

the formal hearing was rescheduled for March 16, 1990. Petitioner's Motion to Compel was granted pursuant to the Order Compelling Discovery entered on February 6, 1990.

At the formal hearing, the parties presented one joint exhibit which was admitted in evidence. Petitioner presented the testimony of three witnesses and offered six exhibits for admission in evidence. Petitioner's Exhibits 1-4 were admitted in evidence over objection. Petitioner's Exhibit 5 was not admitted in evidence for any purpose except impeachment. Petitioner's Exhibit 6 was withdrawn. Petitioner's Exhibit 6 was subsequently resubmitted for purposes of impeachment and rejected. Respondent testified in his own behalf and offered one exhibit which was not admitted in evidence.

A transcript of the proceeding was requested by Petitioner and filed with the undersigned on April 4, 1990. Petitioner timely filed its proposed findings of facts and conclusions of law on May 3, 1990. Respondent timely filed his proposed findings of facts and conclusions of law on May 11, 1990. The parties' proposed findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the state agency charged in conjunction with the Construction Industry Licensing Board with the responsibility for prosecuting the Administrative Complaint in this proceeding pursuant to chapters 455 and 489 and the rules promulgated thereunder.

   
   

2. At all times material to this proceeding, Respondent was licensed as a certified pool contractor in the State of Florida pursuant to license number CP C009588. Respondent was the licensed qualifying agent for Pools by L.S. Rule, Inc. ("Pools").

   
   

3. Respondent contracted with Andre Olson on January 29, 1987, to construct a swimming pool for $15,000.00 at Mr. Olson's residence in Lighthouse Point, Florida. Respondent completed one half to two thirds of the work required under the terms of the contract. Respondent was paid approximately

   $14,250.00, or 95 percent of the contract price.

   
   

4. Construction began sometime in April, 1987, and proceeded over the next month and a half. Respondent abandoned construction before completing all of the contracted work due to personal problems unrelated to the conduct of his business. Respondent informed Mr. Olson approximately six months after construction had stopped that Respondent was closing his business and would be unable to complete construction of Mr. Olson's pool.

   
   

5. Mr. Olson paid subcontractors approximately $3,000.00 in addition to the amount paid Respondent to complete his pool. Some of the subcontractors had been subcontractors for Respondent. Mr. Olson eventually obtained a final inspection.

   
   

6. Respondent failed to properly install the pool drain plumbing on Mr. Olson' pool. The improperly installed drain caused the pool to leak excessively. It would cost approximately $4,800.00 to repair the faulty drain.

7. Respondent failed to properly supervise Pools. Respondent failed to properly supervise construction performed by Pools with respect to the construction of Mr. Olson's pool. Respondent failed to properly supervise the financial operations of Pools with respect to the construction of Mr. Olson's pool.

   
   

8. Respondent has a history of disciplinary proceedings. Respondent was disciplined by the Construction Industry Licensing Board (the "Board") on March 14, 1989, in connection with an unrelated matter, for violating Subsections 489.129(1)(h) and (k), Florida Statutes. Respondent was issued a Letter of Guidance in Department of Professional Regulation Case NO. 062214.

   
   

9. Respondent's personal problems were caused in part by a divorce proceeding which has been resolved. Respondent has resumed business and is beginning to recover from his financial losses.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding pursuant to Section 120.57(1), Florida Statutes. The parties were duly noticed for the formal hearing.

    
    

11. The burden of proof is on Petitioner to prove the allegations in the Administrative Complaint by clear and convincing evidence. Where an agency seeks disciplinary action against a professional license, the evidence must be clear and convincing. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

12. Section 489.129(1) provides in relevant part that the Board may impose prescribed penalties if a contractor is found guilty of any of the following acts:

    
    

    (h) Committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer.

    * * *

    (k) Abandoning a construction project in which the contractor is engaged or under contract as a contractor.

    * * *

    (m) Being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.

    
    

13. Petitioner showed by clear and convincing evidence that Respondent violated Subsections 489.129(1)(h), (k), and (m), Florida Statutes. When Respondent terminated construction on Mr. Olson's pool for more than 90 days without just cause, Respondent abandoned the Olson project within the meaning of Subsection 489.129(1)(k). Respondent abandoned the Olson project when the percentage of completed construction was less than the total contract price paid to Respondent at the time of abandonment. Subsection 489.129(1)(h) 2. Mr. Olson had to pay more than the original contract price solely as a result of Respondent's gross negligence.

    
    

14. For the violations committed by Respondent, Subsection 489.129(1), Florida Statutes, in relevant part authorizes penalties of revocation,

    suspension, an administrative fine not to exceed $5,000.00, probation and continuing education, and assessment of costs associated with investigation and prosecution. Florida Administrative Code Rule 21E-17.001 in relevant part authorizes the following penalties for violations of Subsection 489.129(1), Florida Statutes: (a) $750-$1500 for the first violation of Subsection 489.129(1)(h) and license revocation for any repeat offense; (b) $500-$2,000 for the first violation of Subsection 489.129(1)(k) and license revocation for any repeat offense; and (c) $500-$1,500 for the first violation of Subsection 489.129(1)(m) when there is monetary harm to the contractor's customer, and

    $1,000.00 to $5,000.00 fine, suspension, and revocation for any repeat offense.

    
    

15. Aggravating circumstances are defined in Florida Administrative Code Rule 21E-17.002(1) to include monetary damage to the contractor's customer. That aspect of aggravating circumstances is already taken into account by the greater fine

that is imposed for violating Subsection 489.129(1)(m). 2/ Rule 21E-17.005 authorizes cumulative and consecutive penalties where more than one violation occurs in one case.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of violating Subsections

489.129(1)(h), (k), and (m), Florida Statutes. Respondent's violations of

Subsections 489.129(1)(h) and (k) are repeat offenses. Respondent, therefore, is subject to suspension and revocation of his license. In view of the fact that Respondent has resolved his former personal problems and is attempting to return to a self supporting business, it is recommended that Respondent be placed on probation for a period of three years from the date of the final order in this proceeding, subject to reasonable conditions imposed by Petitioner, and pay an administrative fine of $5,000.00. If Respondent fails to comply with the terms of the preceding sentence, it is recommended that Respondent's license be revoked.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 5th day of September, 1990.

DANIEL MANRY

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 1990.

ENDNOTES

1/ All references to chapters, sections, and subsections are to Florida Statutes (1989) unless indicated otherwise.

2/ Compare Fla. Admin. Code Rule 21E-17.0O1(19)(a)(which imposes a fine of

$250-$750 when there is no monetary damage to the contractor's customer) with Rule 21E-17.001(19)(b)(which imposes a fine of $500-$1500 when there is monetary damage to the contractor's customer).

APPENDIX

The parties submitted proposed findings of fact. It is noted below which proposed findings of fact were accepted and the paragraph number(s) in the Recommended Order where they were accepted, if any. Those proposed findings of fact which were rejected and the reason for their rejection are also noted below. No notation is made for unnumbered paragraphs.

The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1. Accepted in finding 1

2. Rejected as irrelevant 2

3, 5 Included in preliminary statement

4 Rejected as irrelevant

6-10 Included in conclusions of law

1. Rejected as beyond the scope of jurisdiction

2. Accepted in finding 1

3. Rejected as not credible

14, 15, 18 Accepted in finding 5 16-17 Rejected as not credible

1. Rejected as irrelevant and immaterial

2. Rejected as not credible

21-29 Rejected as irrelevant and immaterial

COPIES FURNISHED:

Fred Seely Executive Director

Department of Professional Regulation Construction Industry Licensing

Post Office Box 2 Jacksonville, Florida 32202

Kenneth D. Easley General Counsel

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Donald H. Benson, Esquire Vernis & Bowling, P.A.

301 SE 10th Court

Fort Lauderdale, Florida 33326

Robert G. Harris Tectonics Legal Section

Department of Professional Regulation 1940 N. Monroe Street, Suite 341

Tallahassee, Florida 32399-0792 Stuart, Florida

Docket for Case No: 89-003001

Orders for Case No: 89-003001