STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 90-4261

)

BILLY MASSENGILL, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Sarasota, Florida on September 28, 1990, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For the Petitioner: Robert B. Jurand, Esquire

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0750

For the Respondent: Billy Massengill, pro se

7304 Palomino Trail

Sarasota, Florida 34241 STATEMENT OF THE ISSUES

The issue for consideration in this case was whether the Respondent's License as a certified pool contractor in Florida should be disciplined because of the misconduct alleged in the Administrative Complaint filed herein.

PRELIMINARY STATEMENT

By Administrative Complaint filed on November 15, 1989, by Ray Shope, Chief Attorney, on behalf of Larry Gonzalez, Secretary, the Department of Professional Regulation, (Department), sought to discipline the Respondent's license as a certified pool contractor because his permitting privileges had been revoked by Sarasota County, and because of his misconduct and incompetence in the operation of his professional activities. On January 24, 1990, Respondent denied the allegations against him and requested a formal hearing. By undated letter received in the Division of Administrative Hearings on July 6, 1990, the case was forwarded for appointment of a Hearing Officer. After Initial Orders were responded to by Petitioner only, the undersigned, on August 1, 1990, set the case for hearing in Sarasota on September 28, 1990, at which time it was held as scheduled.

At the hearing, Petitioner presented the testimony of C. Richard Dietz, Deputy Director of the Sarasota County Building and Zoning Department, and introduced Petitioner's Exhibits 1 through 5. Respondent testified in his own behalf but presented no exhibits.

Subsequent to the hearing a transcript was submitted and Petitioner submitted Proposed Findings of Fact which have been accepted and are incorporated in this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the allegations contained in the Administrative Complaint, the Respondent, Billy Massengill, was licensed as a certified pool contractor in the State of Florida under license number CP C037061, and his license was used to qualify Blue Dolphin Pools or Saraman, Inc., in Sarasota County, Florida. Petitioner, Construction Industry Licensing Board, is the state agency charged with the responsibility to oversee and regulate the contracting profession in this state.

   
   

2. On March 17, 1989, Mr. C. Richard Dietz, at the time in charge of construction standards development for the Sarasota County Building and Zoning Department, notified the Respondent by certified mail that action was to be taken against him on a complaint involving faulty construction of a fiberglass swimming pool located at 2834 Concord Street in Sarasota for a Mr. M. Donald Hughes. A notice of the proposed action was also published in the Sarasota Herald on March 24, 1989.

   
   

3. The action was based upon a phone call from a former customer of the Respondent, followed up by a letter, which indicated that a pool constructed by the Respondent for the complainant had continued to leak, and that the Respondent had failed to respond to numerous requests to fix it. The Building and Zoning Department sent out an inspector to look at the offending pool, but his report was not informative. Thereafter Mr. Dietz contacted the Respondent by phone to discuss the situation. During their conversation, Respondent promised to start repairs within two weeks. This conversation was followed up by a letter in which Mr. Dietz advised the Respondent of the consequences of his failure to correct the problem.

   
   

4. Respondent thereafter did some work on the pool during the months of December and November, 1988, but these efforts did not correct the problem. Respondent is alleged to have told the owner, during that period, that the leak was not in the pool but in the pump. However, the owner, Mr. Hughes, disagreed with this.

   
   

5. On December 28, 1988, Mr. Dietz wrote to the Respondent to advise him that the county Board had considered the continuing problem and wanted him to respond. This letter, sent certified mail, was not delivered. Therefore, on January 24, 1989, Mr. Dietz asked the Sheriff to serve the letter on the Respondent at the address they had for him at that time. The letter was served on February 7, 1989.

   
   

6. On February 13, 1989, Respondent indicated in writing that he had been out to the Hughes pool on several occasions, had tested it thoroughly, and had corrected a crack which he found in the pool system but which did not hold. When he went back to attempt to correct it again, the owner would not allow him on the property.

7. Upon inquiry, Mr. Hughes acknowledged this because he did not agree with what the Respondent proposed to do. Mr. Hughes indicated that he had had someone else out to repair the pool but it still leaked and he agreed to allow the Respondent back on the property to correct the situation if he would repair the leak.

   
   

8. When Mr. Dietz sent the Respondent notice of this, Respondent did not respond. As a result, the matter was again taken to the County Board which held a public hearing on March 20, 1989. Respondent was notified of the hearing to be held by the March 17 letter, referenced previously.

   
   

9. The Board again took this matter up at its April 20, 1989 meeting following the regular agenda. Respondent was not present nor was he represented by counsel. Neither was Mr. Hughes. Based on the evidence available, the County Board decided to revoke Respondent's occupational license and privilege to pull permits in Sarasota County. In doing so, the Board noted that he had been properly served with notice, and that that notice had been received by an employee, and that he was guilty of negligence. An Order to that effect was mailed to the Respondent by Certified Mail at Sweetheart Pools and Spas in Port Charlotte, Florida. This Order was receipted for. Notwithstanding the fact that Board's Order was appealable, Respondent did not appeal.

   
   

10. Respondent contends that the only leaks in the Hughes pool were at a cracked fitting at the bottom of the skimmer, and a crack in the fiberglass wall. This latter crack was covered by a warranty from the manufacturer and was not the result of installation by the Respondent.

    
    

11. Respondent admits the basic allegations concerning his attempts to repair the pool and that Mr. Hughes, having once ordered him off the property, again offered to allow him to come back on to repair the pool. Respondent contends, however, his attorney advised him that, since the owner had discharged him from employment and ordered him off the property, he should not go back. It was on the basis of this advice that he declined to go.

    
    

12. Respondent admits to receiving the notice of the proposed County Board action and that he was not present at the hearing. He contends, however, that he had contracted to have a home built for himself at around that time and, because the contractor had abandoned the project with $10,000.00 of his money, he was working 7 days a week to complete the project by himself. This was all going on during the time of the County Board meeting. Respondent claims to have simply forgotten about the meeting. He did not appeal because he did not have the money to retain an attorney to appeal, and didn't intend to do any more pool contracting in the area anyway. He recognized the seriousness of the potential loss of his license.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

14. In the Administrative Complaint filed herein, Petitioner alleges, in Count I, that the action by the Sarasota County Board revoking Respondent's local license and privilege to permit in Sarasota County constitutes a violation

    of Section 489.129(1)(i), Florida Statutes. The Department also alleges, in Count II, that the Respondent was guilty of misconduct/incompetence in violation of Section 489.129(1)(m).

    
    

15. In the instant case, the burden is upon the Petitioner to establish the Respondent's guilt of the offenses alleged by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 210 (Fla. 1987). The evidence concerning Respondent's alleged misconduct/incompetence consists solely of the testimony of Mr. Dietz and the documentation relating to the County Board's Order as well as the few admissions of Respondent at this hearing. Aside from the latter, all is hearsay and is insufficient to support, at this de novo hearing, an independent finding of either misconduct or incompetence on the part of the Respondent. The County's Order of April 28, 1989 clearly established, however, that the Respondent was disciplined by the county for negligence, and a review of the documentation relating thereto, as required by the statute, (Section 489.129(1)(i)), gives no reason to question that action. Consequently, the evidence of county discipline constitutes a violation.

    
    

16. In its Recommended Disposition, submitted along with the Proposed Findings of Fact, the Department proposed a monetary fine of $3,000.00 and probation for a period of two years. This is based on the suggested penalties found in the punishment guidelines for registrants outlined in Rule 21E-17, F.A.C., as modified by what the Department considers as aggravating circumstances.

    
    

    Rule 21E-17.001, F.A.C. provides:

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

    * * *

    (16) 489.129(1)(i) : Local disciplinary action. Use penalty herein listed for the violation most closely resembling the act underlying the local discipline; repeat violations, same method, use the penalty herein for repeat violations.

    * * *

    (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 $1,000 to

       $1,500 fine and 3 to 9 months suspension.

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

    $1,500 fine; repeat violation, $1,000 to

    $5,000 fine and suspension or revocation.

    
    

17. Section 489.129(1)(m) lists, inter alia, gross negligence as a basis for discipline. Here, the County Board found only "negligence" on the part of the Respondent. While simple negligence would not support action under the statute, that negligence is not the element charged here. The disciplinary

    action by the County is, and for the purposes of assessing penalty, negligence "most closely resembles" the gross negligence called for in both the statute and subsection (16) of rule 21E-7.001.

    
    

18. Petitioner has taken the position that Respondent's misconduct here would directly call for a punishment of a fine of $250 to $750 based on the negligence found by the County Board. However, Petitioner also seeks to implement the aggravation provisions contained in Rule 12E-17.002, F.A.C., which reads:

    
    

    Circumstances which may be considered for the purposed of mitigation or aggravation of penalty shall include, but are not limited to, the following:

    (3) the severity of the offense

    (9) the deterrent effect of the penalty

    (12) any other mitigating or aggravating circumstances.

    
    

19. Here, Petitioner cites the local Board's consideration of the fact that Respondent failed to address any of the issues at public hearing and revoked his permitting privileges in Sarasota County. Petitioner also urges that since it claims Petitioner had begun contracting in Charlotte County, he showed little concern for disciplinary proceedings in Sarasota County. This does not necessarily follow, but in any case, does not constitute sufficient aggravation to justify either a fine four times the maximum for the local Board's action alone or so long a period of probation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that a Final Order be entered herein imposing an administrative fine of $250.00 upon the Respondent, Billy Massengill and placing him on probation for a period of six months.

RECOMMENDED this 13th day of November, 1990, in Tallahassee, Florida.

ARNOLD H. POLLOCK

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 13th day of November, 1990.

COPIES FURNISHED:

Robert B. Jurand, Esquire Department of Professional

Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0750

Billy Massengill 7304 Palomino Trail

Sarasota, Florida 34241

Kenneth D. Easley General Counsel

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0750

Daniel O'Brien Executive Director

Construction Industry Licensing Board Post Office Box 2

Jacksonville, Florida 32202

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-004261

Orders for Case No: 90-004261