STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 90-5357

)

DONALD F. COLOMBO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a formal hearing in this case on December 6, 1990, in Clearwater, Florida.

APPEARANCES

For Petitioner: Robert B. Jurand, Esquire

Department of Professional Regulation

Northwood Centre, Suite 60 1940 North Monroe Street

Tallahassee, Florida 32399-0792

For Respondent: Donald F. Colombo, pro se

1303 Lynn Avenue

Clearwater, Florida 34615 STATEMENT OF THE ISSUES

Whether or not Respondent abandoned construction projects for which he was engaged, failed to responsibly supervise, direct, manage and control construction activities causing financial losses to his customers and otherwise engaged in fraud, deceit, gross negligence, incompetency or misconduct in the practice of contracting as is more particularly set forth in the Administrative Complaint filed herein dated August 21, 1990, and, if so, what, if any, administrative penalty is appropriate.

PRELIMINARY STATEMENT

By its seventeen count Administrative Complaint filed herein, Petitioner seeks to impose disciplinary sanctions against Respondent, and his license to practice contracting. Respondent executed an Election of Rights Form disputing the material allegations of the Administrative Complaint and requested a formal hearing. Thereafter, the matter was transferred to the Division of Administrative Hearings and on September 20, 1990, the matter was scheduled for hearing for December 6, 1990, and was heard as scheduled. The parties were

afforded leave through January 14, 1991, to file memoranda supportive of their respective positions. Both parties have filed proposed recommended orders which were considered in preparation of this Recommended Order. Proposed findings which are not incorporated herein are the subject of specific rulings in an appendix.

At the hearing, Petitioner presented the testimony of Diane Cline, Leonard

1. Cline, Linda Thomas, Tom Alderman and H. Dennis Force. Respondent presented the testimony of Gary A. MacIntosh and Respondent testified on his behalf. Petitioner's Exhibits 1 through 4 were offered and received in evidence. Respondent's Exhibits 1 through 3 received in evidence at the hearing.

   
   

   Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and the entire record compiled herein, I hereby make the following relevant factual findings:

   
   

   FINDINGS OF FACT

   
   

   1. Petitioner, in conjunction with the Construction Industry Licensing Board, is the state agency charged with the responsibility to prosecute administrative complaints pursuant to Chapters 120, 455 and 489, Florida Statutes and rules and regulations promulgated thereunder.

      
      

   2. During times material, Respondent, Donald F. Colombo, was licensed as a certified pool contractor in Florida, having been issued license number CP 15343.

      
      

   3. During times material, Respondent's license was registered with Petitioner as the qualifying agent for National and Spa Builders, Inc. (National).

      
      

   4. On or about May 27, 1988, National, the entity which Respondent was the qualifying agent, contracted with Diane and Leonard Cline to construct a pool at the Cline's residence in Tarpon Springs, Florida, for the contract price of

      $9825.00. The Clines financed the construction of the pool by placing a security interest against their property for the full purchase price of the pool. The full contract price of $9825.00 was paid to National and after National completed approximately 40% of the pool construction, National abandoned the project without notice or just cause. National never completed construction of the pool and the Clines obtained a homeowner's building permit and completed the pool project at an additional cost of approximately $5,000.00. Additionally, liens were filed against the property of the Clines by Florida Mining and Materials Concrete Corporation in the amount of $682.00 and Jim's Custom Pool Work in the amount of $135.00. The above-referred liens were for work performed and/or materials supplied in the construction of the Cline pool project by National.

      
      

   5. On or about May 20, 1988, National entered into a contract with Ben and Linda Thomas to construct a pool at their residence in Lutz, Florida, for the contract price of $9000.00. Following commencement of construction, National received approximately 60% of the contract price ($5,400.00) and later abandoned the project without notification or just cause to the Thomas's. The Thomas's subsequently completed their pool at an additional cost of approximately

      $1,000.00 over and above National's original contract price.

   6. On or about January 11, 1989, Respondent was disciplined by the Hillsborough County Building Department, Building Board of Adjustments, Appeals and Examiners for alleged violation of local laws including abandoning a construction project; alleged willful and deliberate disregard of applicable building codes; allegedly allowing liens to be filed against a project for which he was the contractor and for allegedly diverting funds from a construction project. Respondent was assessed an administrative penalty of a 30-day suspension of his permitting privileges by the Hillsborough County Building Department.

      
      

   7. Respondent was the qualifying agent for National during the 90-day period commencing April 1 through June 30,1988. Respondent formally terminated his status as qualifying agent for National and also tendered his resignation from that entity based on difficulties that he ecountered respecting his attempts to serve as qualifier to include his inability to control the finances, to be kept apprised of accounts receivable, accounts payable, an inability to select contractors and material suppliers and to assure that the payments for such services were timely remitted.

      
      

   8. Prior to Respondent's engagement with National as a pool salesman and later as qualifier, National was a well reputed pool company, having been in existence in excess of twelve years. National annually constructed approximately 750 pools with accounts receivable in the $10 to $12 million dollar range. Prior to April 1988, National was a secure and stable company that regularly paid its bills and grew at a rapid pace. While engaged with National, Respondent was unaware that there was internal collusion among its owners respecting diversion of funds.

      
      

   9. Respondent repeatedly attempted to gather a handle on the internal financial operations of the company and on each occasion he was rebuffed. within the first month that Respondent qualified National, he began to seek advice as to the proper means of salvaging his license by contacting a local attorney, the local office of Petitioner, and Petitioner's headquarters in Tallahassee seeking the proper procedures for ending his relationship with National. This came about once it became apparent that he was unable to effectively manage or otherwise perform the functions of a qualifying agent.

      Respondent formally severed his relationship as qualifying agent for National on June 30, 1988.

      
      

   10. Subsequent to ending his status as qualifying agent for National, Respondent assisted the Clines in the completion of their pool. Mr. Cline specifically recalled that Respondent assisted him in locating other subcontractors and with the purchase of plumbing supplies for his pool without remuneration from the Clines. (Petitioner's Exhibit 1F; Tr. 30-32.) Likewise, Respondent also assisted the Thomas's in completing their pool. (Tr. 45, lines 23-24.)

       
       

   11. Respondent demonstrated compassion and a proper concern which was evident based on the testimony of the complaining witnesses who appeared at the formal hearing. Significantly, Petitioner's investigator, H. Dennis Force, related that Respondent assisted him in his investigation of the subject charges. To this end, Respondent supplied him with the names of all customers with which National had contracts with during the period that he was National's qualifying agent. It is unfortunate that Respondent was not able to control the fiscal policies of National during the period that he was the qualifying agent, although from a review of the evidence herein, it is apparent that this was not based on his failure to attempt to gain control over the situation as a

       qualifying agent, but was rather based on the collusion of National's higher-ups who was determined to keep Respondent in the dark. Noteworthy was the fact that within a three-month period, National changed banks at least eight times. It would have been, at best, difficult if not impossible for Respondent to have gained a handle on National's financial condition and to do the things with which a qualifying agent is charged with during the short period during which Respondent was National's qualifying agent.

       
       

       CONCLUSIONS OF LAW

       
       

   12. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this action pursuant to Section 120.57(1), Florida Statutes.

       
       

   13. Petitioner presented clear and convincing evidence that Respondent, as qualifier for National, abandoned two construction projects in which he was engaged for the Clines and Thomas's and he was therefore culpable, as qualifying agent by virtue of his having obtained the building permits for these projects.

       
       

   14. Petitioner presented clear and convincing evidence that valid liens were filed against the property of the Thomas's and the Clines for supplies and/or services ordered by National during the period Respondent was the qualifying agent within the purview of Section 489.129(1)(h), Florida Statutes.

       
       

   15. Petitioner presented clear and convincing evidence that Respondent had his permitting privileges in Hillsborough County, suspended for thirty days for violation of Section 489.129(1)(i) Florida Statutes.

       
       

   16. In mitigation, Respondent presented clear and convincing evidence indicating that he endeavored to fulfill all of his duties as qualifying agent and when it became apparent that he unable to fulfill his duties as qualifier to National, Respondent formally notified the Petitioner and severed his relationship with National. Subsequently thereto, Respondent continued to assist the complaining homeowners in the completion of their pool by personally performing some contracting duties in addition to providing guidance to the homeowners as to their selection of competent subcontractors and mateial suppliers. To the extent that the Thomas's and Clines suffered cost overruns, these were factors which were above and beyond Respondent's control.

RECOMMENDATION

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

Petitioner enter a Final Order imposing an administrative fine against Respondent in the amount of $1,000.00 and placing his certified pool contractor's license on probation for a period of six (6) months. 1/

DONE and ENTERED this 7th day of March, 1991, in Tallahassee, Leon County, Florida.

JAMES E. BRADWELL

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 7th day of March, 1991.

ENDNOTES

1/ This recommendation is in keeping with the Petitioner's penalty guidelines in view of the mitigating factors presented by Respondent and his assistance to Petitioner in the prosecution of these Administrative Complaints.

COPIES FURNISHED:

Robert B. Jurand, Esquire Department of Professional

Regulation

Northwood Centre, Suite 60 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Donald F. Colombo 1303 Lynn Avenue

Clearwater, Florida 34615

Daniel O'Brien, Executive Director Florida Construction Industry

Licensing Board

111 East Coastline Drive, Room 504 Jacksonville, Florida 32202

Jack McRay, Esquire General Counsel

Department of Professional Regulation

Northwood Centre, Suite 60 1940 North Monroe Street

Tallahassee, Florida 32399-0792

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 contact the agency that will issue the final order in this case concerning agency 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: 90-005357

Orders for Case No: 90-005357