STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. )

)

DAVE HOPKINS, )

)

Respondent. )

Case No. 02-1120PL

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in this case on June 20, 2002, in Orlando, Florida, before William R. Pfeiffer, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Theodore R. Gay, Esquire

Department of Business and Professional Regulation

401 Northwest 2nd Avenue, Suite N-607 Miami, Florida 33128

For Respondent: No appearance.

STATEMENT OF THE ISSUES

Whether Respondent committed the offenses alleged in the Amended Administrative Complaint and, if so, what penalties, if any, should be imposed.

PRELIMINARY STATEMENT

On September 20, 2000, Petitioner filed an Administrative Complaint requesting the Construction Industry Licensing Board (CILB) to take disciplinary action against Respondent, a certified swimming pool/spa servicing contractor, for alleged violations of statutes governing the practice of contracting. The Administrative Complaint set forth as specific statutory grounds for disciplinary action against Respondent a total of seven separately stated counts, together with factual and legal allegations supporting those counts.

In response to the Administrative Complaint, Respondent filed an Election of Rights disputing material factual allegations in the Administrative Complaint and requesting a hearing pursuant to Section 120.57(1), Florida Statutes, and Petitioner referred the case to the Division of Administrative Hearings (DOAH). DOAH scheduled a hearing for October 8, 2001. On September 20, 2001, Petitioner requested that DOAH cancel the hearing and relinquish jurisdiction so that Petitioner could file an amended administrative complaint. On October 4, 2001, DOAH granted Petitioner's request, cancelled the hearing, and closed its file.

On January 3, 2002, Petitioner filed an Amended Administrative Complaint, setting forth as specific statutory

grounds for disciplinary action against Respondent a total of nine separately stated counts. On March 4, 2002, Petitioner requested that DOAH reopen its Case No. 01-3055PL or open a new case and recognize the Amended Administrative Complaint as the charging document thereof, superseding the previous Administrative Complaint. On March 21, 2002, DOAH granted Petitioner's request and reopened the case as DOAH Case No. 02- 1120PL. On April 2, 2002, DOAH set a hearing date for May 29, 2002. On May 28, 2002, Respondent requested a postponement of the hearing due to a family medical emergency and the hearing was rescheduled for June 20, 2002.

At the noticed time designated to begin the June 20, 2002 hearing, neither Respondent nor anyone on Respondent's behalf appeared. A 15 minute recess was ordered to ascertain whether Respondent had attempted to contact DOAH or Petitioner to advise of his delay or request a continuance. Respondent had not notified nor attempted to contact DOAH nor Petitioner.

Thereafter, the hearing commenced and proceeded to conclusion without any appearance by, or communication from Respondent. Accordingly, evidence was received only from Petitioner.

Petitioner presented the testimony of seven witnesses, Anthony Keegan, Nancy Shrock, Juan Quintana, Thomas Forbes, Michelle B. Kane, Nancy Morasch, and Cal Eden. Petitioner also presented

Petitioner's Exhibits 1 through 10, 11 through 14, and 16 through 25, all of which were received in evidence.

It was established that the deadline for the parties to file the proposed recommended orders would be August 15, 2002. Petitioner submitted a Proposed Recommended Order which was duly considered.

FINDINGS OF FACT

1. At all times material, Respondent was licensed as a certified pool/spa servicing contractor, having been issued license no. CP C053918, and Respondent was the qualifying agent of Sun Technical Systems, Inc., a Florida corporation.

2. In 1981, Nancy Morasch moved to Florida and purchased a single-family home, which did not contain a pool, at 1210 Sunshine Tree Boulevard in Longwood, Seminole County, Florida. The following year, she had a swimming pool built without a spa.

3. On or about February 2, 1998, Morasch sought to have her pool refurbished and add a spa. She received a written proposal by Larry Boles to perform the work, including the addition of a spa, for $22,479.00. Morasch declined to contract with Mr. Boles.

4. Shortly thereafter, Morasch received a written proposal from Respondent to perform the refurbishment and build the spa. Respondent bid $18,800 to complete the job and indicated that he would finish by December 25, 1998. On October 17, 1998, Morasch

   entered into a written contract with Respondent on behalf of Pleasure Pool Services, Inc., a Florida corporation, for a price of $18,800.00. Morasch was informed by Respondent that he was licensed to construct the spa. The contract included a one-year warranty for defects in workmanship.

5. Respondent's license number did not appear in the contract, and the contract did not contain a written statement explaining the consumer's rights under the Construction Industries Recovery Fund.

6. Pursuant to the contract, Morasch made payments to Pleasure Pool Services, Inc., on or about the following dates and in the following amounts: October 17, 1998, $2,000.00; November 27, 1998, $5,500.00; and December 12, 1998, $7,500.00; for a total of $15,000.00.

7. On November 27, 1998, Respondent began performing work pursuant to the contract. By Christmas Eve 1998, the work remained substantially incomplete.

8. In December 1998, Respondent hired Anthony Keegan to remove the existing tile in Morasch's pool and install new tile around the perimeter of Morasch's pool and spa. Although Keegan usually required payment in advance, due to his long-standing relationship with Respondent, Keegan accepted a partial payment of $500.00 from Respondent and bought materials for the job on credit. Respondent never communicated to Keegan that he

   considered Keegan's work unsatisfactory in any way, nor did Morasch consider Keegan's work unsatisfactory in any way, and Keegan's work was a necessary part of the project. Respondent refused to pay Keegan the balance so in late January 1999, after a threat of lien by Keegan, Morasch paid him $965.68, the total balance owed him by Respondent.

9. In January 1999, Respondent sub-contracted Magic Marcite to perform the plastering work on Morasch's pool and spa. Magic Marcite performed the work over three days ending on January 25, 1999. Respondent never communicated to Magic Marcite that he considered its work to be unsatisfactory in any way, nor did Morasch consider Magic Marcite's work unsatisfactory in any way, and Magic Marcite's work was also a necessary part of the project. Again, Respondent was threatened with a lien by Magic Marcite and paid them the $1,500.00 balance due from Respondent in three installments, on or about April 28, May 30, and June 25, 1999.

10. From late January 1999, until August 1999, Respondent neglected to perform further work despite complaints by Morasch that the pool and spa were losing substantial amounts of water and the pool deck concrete was cracking and sinking. Furthermore, and contrary to the contract negotiations between Respondent and Morasch, Respondent positioned the spa level to

    the pool deck and not elevated. In addition, the jets in the spa as built by Respondent were positioned too low.

11. In June 1999, Morasch retained counsel to assist her in her efforts to have Respondent complete the project. In July 1999, with her attorney's assistance, Morasch succeeded in getting Respondent to agree to perform further work to address the cracked tile and deck concrete. In August 1999, Respondent hired a leak specialist to repair various water leaks. In

    September 1999, Respondent replaced some of the cracked tile and removed some of the cracked deck concrete. In October 1999, Respondent repaired more tile. Thereafter, Respondent abandoned the project. Morasch complained to the National Spa and Pool Institute and Petitioner. Thereafter, she hired Acryla-Crete to repair the pool and spa and paid them $14,135.85 upon completion. Morasch paid attorney's fees totaling $2,304.17.

12. Although Respondent failed to obtain any building permit or inspections for any work on Morasch's swimming pool and spa, Seminole County required them.

13. Sun Technical Systems, Inc., has never been issued a license as a qualified business organization.

14. As of August 8, 2001, Petitioner's cost of investigation and prosecution in this case, excluding costs associated with an attorney's time, totaled $771.77.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Sections 120.569, 120.57(1), and 455.225(5), Florida Statutes.

16. Petitioner, the Department of Business and Professional Regulation, is the state agency charged with regulating the practice of construction contracting pursuant to Section 20.165, Chapter 455, and Part I of Chapter 489, Florida Statutes.

17. In this license disciplinary proceeding, Petitioner bears the burden of proving its allegations by clear and convincing evidence. Section 120.57(1)(j), Florida Statutes, and Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996).

18. The Amended Administrative Complaint requests the CILB to take disciplinary action against Respondent for violation of the following sections of the Florida Statutes: Count I, Sections 489.129(1)(c) and 455.227(1)(m); Count II, Sections 489.129(1)(c) and 455.227(1)(o); Count III, Section 489.129(1)(f); Count IV, Sections 489.129(1)(i) and 489.119(2); Count V, Sections 489.129(1)(i) and 489.119(6)(b); Count VI, Sections 489.129(1)(i) and 489.1425; Count VII,

    Section 489.129(1)(j); Count VIII, Section 489.129(1)(m); and Count IX, Section 489.129(1)(o).

19. Section 489.105(3)(l), Florida Statutes (Supp. 1998), defines the scope of a swimming pool/spa servicing contractor license as follows:

    489.105 Definitions.– As used in this part:

    
    

    * * *

    
    

    (3) "Contractor" means the person who is qualified for, and shall only be responsible for, the project contracted for and means, except as exempted in this part, the person who, for compensation, undertakes to, submits a bid to, or does himself or herself or by others construct, repair, alter, remodel, add to, demolish, subtract from, or improve any building or structure, including related improvements to real estate, for others or for resale to others; and whose job scope is substantially similar to the job scope described in one of the subsequent paragraphs of this subsection. . . .

    
    

    * * *

    
    

    (l) "Swimming pool/spa servicing contractor" means a contractor whose scope of work involves the servicing and repair of any swimming pool or hot tub or spa, whether public or private. The scope of such work may include any necessary piping and repairs, replacement and repair of existing equipment, or installation of new additional equipment as necessary. The scope of such work includes the reinstallation of tile and coping, repair and replacement of all piping, filter equipment, and chemical feeders of any type, replastering, reconstruction of decks, and reinstallation or addition of pool heaters. The installation, construction, modification,

    substantial or complete disassembly, or replacement of equipment permanently attached to and associated with the pool or spa for the purpose of water treatment or cleaning of the pool or spa requires licensure; however, the usage of such equipment for the purposes of water treatment or cleaning shall not require licensure unless the usage involves construction, modification, substantial or complete disassembly, or replacement of such equipment. Water treatment that does not require such equipment does not require a license. In addition, a license shall not be required for the cleaning of the pool or spa in any way that does not affect the structural integrity of the pool or spa or its associated equipment.

    
    

20. Petitioner has met its burden of proof and has established by clear and convincing evidence the charges against Respondent set forth as Counts I through IX in the Amended Administrative Complaint.

21. In accordance with Section 455.2273(5), Florida Statutes, in determining what penalty to recommend, the penalty guidelines established by the CILB are controlling.

22. The penalty guidelines of the CILB are set forth in Chapter 61G4-17, Florida Administrative Code. Those guidelines provide, in pertinent part, as follows:

    61G4-17.001 Normal Penalty Ranges.

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

    
    

    * * *

    (3) 489.129(1)(c): Violating any part of Chapter 455. Penalty within ranges prescribed by Section 455.227, unless otherwise prescribed herein.

    
    

    * * *

    
    

    (7) 489.129(1)(g), 489.119: Failure to

    qualify a firm, and/or acting under a name not on license. Repeat violation $750 to

    $1,500 fine.

    
    

    * * *

    
    

    1. 489.129(1)(j): Failing in any material respect to comply with the provisions of Part I of Chapter 489.

       
       

       * * *

       
       

       (b) 489.113, 489.117: Contracting beyond scope of practice allowed by license, no safety hazard. First violation, $500 fine, repeat violation, $500 to $2,500 fine and suspension or revocation.

       
       

       * * *

       
       

       1. 489.117, 489.113: Contracting beyond scope of license, safety hazard is created. First violation, $1,000 to $2,500 fine; repeat violation, $2,500 to $5,000 fine and suspension or revocation.

       2. 489.119: License number not appearing in advertisement. First violation, $100; repeat violation, reprimand and $250 to $1,000 fine.

       
       

       * * *

       
       

       1. 489.119: Failure to register qualified business organization. Repeat violation, $500 to $1,000 fine and suspension or revocation.

       2. 489.1425: Failure to notify residential property owner of recovery fund.

       First violation, $100 to $500 fine; repeat violation, $1,000 fine.

    2. 489.129(1)(k): Abandonment. First violation, $500 to $2,000 fine; repeat violation, revocation and $5,000 fine.

    
    

    * * *

    
    

    1. 489.129(1)(m): Committing fraud or deceit in the practice of contracting.

       1. Causing no monetary or other harm to licensee's customer, and no physical harm to any person. First violation, $500 to $1,000 fine; repeat violation, $1,000 to $1,500 fine and suspension or revocation.

       2. Causing monetary or other harm to licensee's customer or physical harm to any person. First violation, $500 to $2,000 fine and suspension or revocation; repeat violation, $2,000 to $5,000 fine and suspension or revocation.

    2. Misconduct or incompetency in the practice of contracting as set forth in Section 489.129(1)(n), Florida Statutes, shall include, but is not limited to:

       1. Failure to honor a warranty.

       2. Violation of any provision of Chapter 61G4, Florida Administrative Code, or Chapter 489, Part I, F.S.

    
    

    * * *

    
    

    1. The following guidelines shall apply to cases involving misconduct or incompetency in the practice of contracting, absent aggravating or mitigating circumstances:

       1. Misconduct by failure to honor warranty. First violation, $500 to $1,000 fine; repeat violation, $1,000 to $2,000 fine and suspension or revocation.

       2. Violation of any provision of Chapter 61G4, Florida Administrative Code, or Chapter 489, Part I, F.S. First violation, $500 to $1,000 fine; repeat violations $1,000 to $5,000 fine and suspension or revocation.

       3. Any other form of misconduct or incompetency. First violation, $250 to

    $1,000 fine and/or probation; repeat violations $1,000 to $5,000 fine and suspension or revocation.

    
    

    * * *

    
    

    1. 489.129(1)(p): Proceeding on any job without obtaining applicable local building department permits and/or inspections.

       1. Late permits. Contractor pulls permit after starting job but prior to completion of same and does not miss any inspections. First violation, $100 fine; repeat violation, $500 to $1,000 fine.

       2. Failure to obtain inspections. Repeat violation, $500 to $2,500 fine and suspension, or revocation.

       3. Job finished without a permit having been pulled, or no permit until caught after job, or late permit during the job resulting in missed inspection or inspections. First violation, $500 to $1,500 fine; repeat violation, $1,000 to $2,500 fine and suspension or revocation.

    
    

    * * *

    
    

    1. For any violation occurring after October 1, 1989, the board may assess the costs of investigation and prosecution. The assessment of such costs may be made in addition to the penalties provided by these guidelines without demonstration of aggravating factors set forth in rule 61G4- 17.002.

    2. For any violation occurring after October 1, 1988, the board may order the contractor to make restitution in the amount of financial loss suffered by the consumer. Such restitution may be ordered in addition to the penalties provided by these guidelines without demonstration of aggravating factors set forth in rule 61G4- 17.002, and to the extent that such order does not contravene federal bankruptcy law.

    3. The absence of any violation from this Chapter shall be viewed as an oversight, and shall not be construed as an indication that no penalty is to be assessed. The Guideline penalty for the offense most closely resembling the omitted violation shall apply.

    
    

    * * *

    
    

    61G4-17.002 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.)

    2. Actual job-site violations of building codes, or conditions exhibiting gross negligence, incompetence, or misconduct by the licensee, which have not been corrected as of the time the penalty is being assessed.

    3. The severity of the offense.

    4. The danger to the public.

    5. The number of repetitions of offenses.

    6. The number of complaints filed against the licensee.

    7. The length of time the licensee has practiced.

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

    9. The deterrent effect of the penalty imposed.

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

    11. Any efforts at rehabilitation.

    12. Any other mitigating or aggravating circumstances.

23. Also applicable to the issue of penalty assessment, Section 455.227(3), Florida Statutes (1997), provides, in pertinent part, as follows:

(3) In addition to any other discipline imposed pursuant to this section or discipline imposed for a violation of any practice act, the board, or the department when there is no board, may assess costs related to the investigation and prosecution of the case excluding costs associated with an attorney's time.

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, as follows:

1. Finding that disciplinary action against Respondent is warranted for the violation of: Count I, Sections 489.129(1)(c) and 455.227(1)(m); Count II, Sections 489.129(1)(c) and 455.227(1)(o); Count III, Section 489.129(1)(f); Count IV, Sections 489.129(1)(i) and 489.119(2); Count V, Sections 489.129(1)(i) and 489.119(6)(b); Count VI, Sections 489.129(1)(i) and 489.1425; Count VII, Section 489.129(1)(j); Count VIII, Section 489.129(1)(m); and Count IX, Section 489.129(1)(o), Florida Statutes, as alleged in the Administrative Complaint.

2. Requiring Respondent to pay an administrative fine in the amount of $5,000.00.

3. Requiring Respondent to pay Petitioner's costs of investigation and prosecution, excluding costs associated with an attorney's time, in the amount of $771.77, plus any such further costs as may have been or may be incurred by Petitioner after August 8, 2001, through the taking of final agency action.

4. Requiring Respondent to pay restitution in the amount of $15,231.70 to Nancy Morasch, this amount of restitution calculated as the total amount paid by Morasch to Pleasure Pools ($15,000.00), Anthony Keegan ($965.68), Magic Marcite ($1,626.00), Michelle Kane ($2,304.17), and Acryla-Crete ($14,135.85), minus the $18,800.00 contract price.

5. Permanently revoking Respondent's certified swimming pool/spa servicing contractor license number CP C053918.

DONE AND ENTERED this 29th day of October, 2002, in Tallahassee, Leon County, Florida.

WILLIAM R. PFEIFFER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 2002.

COPIES FURNISHED:

Theodore R. Gay, Esquire Department of Business and

Professional Regulation

401 Northwest 2nd Avenue Suite N-607

Miami, Florida 33128

Dave Hopkins

4441 North Fort Christmas Road Christmas, Florida 32709

Hardy L. Roberts, III, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2202

Robert Crabill, Executive Director Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of 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: 02-001120PL

Orders for Case No: 02-001120PL