STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

On February 12, 2008, an administrative hearing in this case was held by video-conference at sites in Tallahassee and Fort Myers, Florida, before William F. Quattlebaum, a duly- designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Scott A. Smothers, Esquire

Wright, Fulford, Moorhead & Brown, P.A. Post Office Box 2828

Orlando, Florida 32801-2828

For Respondent: Michael D. White, Jr., pro se

Michael D. White, Jr., d/b/a Gulf Shore Pool & Spa, Inc.

306 East Paris Street Tampa, Florida 33604

STATEMENT OF THE ISSUE

The issue in the case is whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On August 13, 2007, the Department of Business and Professional Regulation (Petitioner) filed a two-count Administrative Complaint against Michael D. White (Respondent). The complaint alleged that Respondent had been a licensed pool contractor whose license had been revoked, and that Petitioner thereafter operated as a pool contractor without being properly licensed. Respondent denied the allegations and requested a formal hearing. Petitioner forwarded the request to the Division of Administrative Hearings (DOAH), which scheduled and conducted the proceeding.

At the hearing, Petitioner presented the testimony of one witness and offered seven exhibits, which were admitted during the hearing. The Petitioner requested and was granted leave to file a certified licensing document (Petitioner's Exhibit 8), which was filed on February 15, 2008, and is hereby admitted into evidence. Respondent testified on his own behalf.

The Transcript of the hearing was filed on February 25, 2008. Petitioner filed a Proposed Recommended Order on March 5, 2008.

FINDINGS OF FACT

1. Petitioner is the agency responsible for licensing and regulating pool contractors operating in the State of Florida.

2. Respondent was previously licensed as a Certified Pool Contractor by Respondent, holding license number CP C21422. On March 15, 2004, Respondent's license was revoked and was void at all times material to this case.

3. On June 3, 2005, Respondent entered into a contract with Luis Vargas and Maria Rivera (Customers) for construction of a pool at their home located at 1524 Southeast 8th Avenue, Cape Coral, Florida. The total cost of the proposed construction was $21,500.

4. The name of Respondent's company as identified on the contract was Gulfshore Pool and Spa, Inc., 207 Center Street, Tarpon Springs, Florida. At all times material to this case, Respondent was the president and owner of Gulfshore Pool and Spa, Inc.

5. During the sales presentation to the Customers, Respondent provided a copy of his license to the Customers that showed an expiration date of August 31, 2004, and told them that it was being renewed.

6. The contract contained the following notation:

   
   

   Company is being retained for services of design, consultation and assistance in construction. Customer is responsible for

   obtaining all necessary permits required for the pool construction.

   
   

7. Respondent testified that he told the Customers he would arrange for all subcontractors and would add a fee of ten percent as his fee for "overseeing" management of the project.

8. The Payment Schedule for the contract required that "progress payments" in an amount totaling the cost of the pool were to be made to Gulfshore Pool and Spa, Inc.

9. The Customers obtained the construction permit.

   
   

10. Respondent made all arrangements for site clearing and excavation.

11. Respondent made all arrangements for acquisition and delivery of pool construction materials to the job site. All materials invoices were billed to Gulfshore Pool and Spa, Inc.

12. Respondent made all arrangements for the laborers who appeared at the job site and was responsible for paying laborers.

13. Respondent made arrangements for all inspections and for correcting any problems resulting from the inspections.

14. The Customers paid a total of $20,500, by checks, made payable to Gulfshore Pool and Spa, Inc. The Customers withheld the remaining $1,000 payment for reasons that are immaterial to this proceeding.

convincing evidence the allegations set forth in the Administrative Complaint against Respondent. Department of Banking and Finance v. Osborne Stern and Company, 670 So 2d 932, 935 (Fla. 1996), Ferris v. Turlington, 510 So. 2d 292 (Fla.

1987). Clear and convincing evidence is that which is credible, precise, explicit, and lacking confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief of conviction, without hesitancy, as to the truth of the allegations.

Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983). In this case, the burden has been met.

1. Section 489.127, Florida Statutes (2004), provides in relevant part as follows:

   Prohibitions; penalties.--

   
   

   1. No person shall:

      
      

      * * *

      
      

      1. Use or attempt to use a certificate, registration, or certificate of authority which has been suspended or revoked;

      2. Engage in the business or act in the capacity of a contractor or advertise himself or herself or a business organization as available to engage in the business or act in the capacity of a contractor without being duly registered or certified or having a certificate of authority;

      
      

2. Respondent has asserted that he was not acting as a pool contractor because he did not physically perform the work himself. There is no legal support for Respondent's assertion and it is rejected. Section 489.105(3), Florida Statutes (2007), provides the following definition of the term "contractor":

   (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 . . .

   
   

   * * *

   
   

   (k) "Residential pool/spa contractor" means a contractor whose scope of work involves, but is not limited to, the construction, repair, and servicing of any residential swimming pool, or hot tub or spa, regardless of use. The scope of work includes the installation, repair, or replacement of existing equipment, any cleaning or equipment sanitizing which requires at least

   a partial disassembling, excluding filter changes, and the installation of new pool/spa equipment, interior finishes, the installation of package pool heaters, the installation of all perimeter piping and filter piping, and the construction of equipment rooms or housing for pool/spa equipment, and also includes the scope of work of a swimming pool/spa servicing contractor. The scope of such work does not include direct connections to a sanitary sewer system or to potable water lines. The installation, construction, modification, 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, 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.

   
   

3. The evidence clearly and convincingly establishes that the Respondent used his revoked license when discussing his pool proposal with the Customers, and thereafter, without being licensed, acted as the contractor for the construction of the pool.

4. Although both Mr. Vargas and the Respondent testified to matters related to the quality of construction, there are no allegations relating to construction quality set forth in the

   Administrative Complaint at issue in this proceeding, and the dispute is not addressed herein.

5. Petitioner's Proposed Recommended Order seeks imposition of a penalty of $10,000 for the two counts of the complaint, and states that the penalty guidelines should be those applicable for repeat violations, in that Respondent was the subject of a previous administrative proceeding that ultimately resulted in revocation of his license.

6. Petitioner's Proposed Recommended Order fails to include specific citations to the applicable penalty guidelines as required by Section 489.129(4), Florida Statutes (2007). The applicable guidelines appear to be set forth at Florida Administrative Code Rule 61G4-17.001, which provides for a penalty of up to $5,000 for each offense for repeat violators.

RECOMMENDATION

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

RECOMMENDED that Respondent enter a Final Order finding that Michael D. White violated Subsections 489.127(e) and (f), Florida Statutes (2004), and impose a total administrative fine of $10,000.

DONE AND ENTERED this 3rd day of April, 2008, in Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

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 3rd day of April, 2008.

COPIES FURNISHED:

Scott A. Smothers, Esquire

Wright, Fulford, Moorhead & Brown, P.A. Post Office Box 2828

Orlando, Florida 32801-2828

Michael D. White, Jr.

Michael D. White, Jr., d/b/a Gulf Shore Pool & Spa, Inc.

306 East Paris Street Tampa, Florida 33604

Nancy S. Terrel, Hearing Officer Office of the General Counsel Department Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Zed Lucynski, General Counsel 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: 07-005780

Orders for Case No: 07-005780