The Issue The Department adopts and incorporates in this Final Order the Statement of Issues contained in the Recommended Order.
Findings Of Fact Respondent has submitted two (2) exceptions to the Hearing Officer's Findings of Fact in the Recommended Order. These two exceptions are rejected for the reasons set forth below. Respondent's First Exception-- Finding of Fact No. 5: The Hearing Officer's finding that Rebos Club does not control the hot-line is supported by substantial competent evidence. Testimony indicated that Rebos Club does not provide counseling training to the employees or volunteers that answer the phone. Volunteers or employees handle each call using their own discretion-- they do not follow procedures or guidelines established by Rebos Club. This exception is therefore rejected. Respondent's Second Exception-- Finding of Fact No. 5: The statement as to the nature of "12th step calls" is not relevant, and is therefore rejected. RULINGS ON EXCEPTIONS TO CONCLUSIONS OF LAW Respondent has submitted two (2) exceptions to the Hearing Officer's Conclusions of Law in the Recommended Order. These two exceptions are rejected for the reasons set forth below. Respondent's First Exception-- Conclusion of Law No. 32: The Hearing Officer's findings that Rebos Club itself does not provide counseling services to alcoholics or their families, and that it does not offer active intervention has been revised in this Final Order's modification of the Hearing Officer's Conclusion of Law Number 32. This exception therefore, now is not relevant. Respondent's Second Exception- Conclusion of Law No. 34: The Hearing Officer's findings that Rebos Club does not provide the direct services required by statute and does not spend in excess of 50 percent of its expenditures directly towards a referenced charitable concern has been revised in this Final Order's modification of the Hearing Officer's Conclusion of Law Number 34. This exception is now, therefore, not relevant.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Pinellas Rebos Club's application for reissue of a sales tax exemption certificate be granted. RECOMMENDED this 8th day of February, 1996, 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 8th day of February, 1996. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 95-1800 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Accepted and incorporated herein. Accepted. - 8. Accepted and incorporated herein. Accepted. - 12. Accepted and incorporated herein. 14. - 17. Accepted and incorporated herein. 18. - 22. Accepted and incorporated herein. First clause rejected. Balance accepted. Accepted and incorporated herein. - 28. Accepted and incorporated herein. Accepted and incorporated herein. Not a proper Finding of Fact. More a statement of agency rule interpretation. FOR THE RESPONDENT: Accepted and incorporated but also a statement of the law. & 3. Accepted and incorporated herein. Not a proper Finding of fact but more a comment on the nature of the evidence. Accepted and incorporated herein. & 7. Accepted and incorporated herein. Accepted but not of major evidentiary import. & 10. Accepted and incorporated herein. Accepted and incorporated herein. & 13. Accepted and incorporated herein. 14. & 15. Accepted. COPIES FURNISHED: Nancy Francillon, Esquire Olivia P. Klein, Esquire Office of the Attorney General The Capitol - Tax Section Tallahassee, Florida 32399-1050 Carl A. Schuh, Esquire 256 3rd Street North St. Petersburg, Florida 33701 Larry Fuchs Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100 Linda Lettera General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100
Findings Of Fact At all times relevant hereto, Respondent, James H. Jasperson, held registered pool contractor's license numbers RP 0028372 and RP A028372 issued by Petitioner, Department of Professional Regulation (Petitioner's Exhibit 1). The former license was issued in 1976 and qualified Respondent to operate under the name, Orlando Pools. The latter license qualified to operate under the name, Pools by Jim, until February 25, 1981, when he qualified Piper Pools, Inc. under that registration number. Respondent is in the business of constructing swimming pools. In June, 1979, he began a business association with a James Lovett of Orange City, Florida (Petitioner's Exhibit 2). Lovett sold pool kits for Tallman Pools. Under their arrangement, Lovett would sell a prefabricated pool kit, and Jasperson would install it. However, Jasperson assumed all responsibility for sales, construction and warranties (Petitioner's Exhibit 2), and the construction and installation were done under Jasperson's registration. Work by Jasperson on jobs procured by Lovett was performed under the name, Pools by Jim. Between August and October, 1979, Lovett and Jasperson were advised on at least three separate occasions by Department Investigator Pirtle that it would be necessary for Jasperson to qualify Tallman Pools as his agent. Despite these warnings, Jasperson never qualified Tallman Pools. The exact date on which the business relationship was terminated was not disclosed, but Jasperson did advise Volusia County building officials in writing in early February, 1981, that no agent could qualify under his registration. On or about October 25, 1979, a contract was entered into by Pools by Jim and Thomason Builders of Geneva, Florida, to construct a swimming pool at a residence in Volusia County. The contract was signed on October 25, 1979, by Jim Lovett as sales representative Pools by Jim, and by Jerry Thomason on behalf of Thomason Builders (Petitioner's Exhibit 3). Jasperson signed the contract on November 8, 1979, and noted that it was "accepted." The terms of the contract provided for completion of the pool by March 14, 1980. Construction on the pool began on or about November 1, 1979. Jerry Thomason, the owner of Thomason Builders, and the contractor of the house where the pool was to be built, was a registered residential contractor in Volusia County. Thomason thought he could pull a permit from the County to construct the pool; however, he was unsuccessful. Thereafter, on November 8, 1979, a Volusia County building official placed a stop work order on the pool site. Learning that a permit was still needed, Jasperson immediately signed an application for a permit on the same date as the stop work order was posted. The permit was officially issued on November 9, 1979. Between November 8, 1979, and February 18, 1980, two more stop orders and a notice of correction were posted on the project by Volusia County officials. County records brought to the hearing did not specify the nature of the charges that formed the basis for the orders and notice, but Jasperson stated the notice of correction related to improper grounding of the wires around the pool. He also testified that this correction was subsequently made. A dispute over the amount of money owed on the project by Thomason to Lovett arose in December, 1979 (Petitioner's Exhibit 9). Because of this dispute, work on the pool was stopped in February, 1980. The matter was subsequently resolved and the pool completed, with the exception of certain interior lighting. Jasperson acknowledged that Lovett was associated with him, and that the notice and stop work orders were issued on the job in question. However, he described Lovett as simply being a sales representative and not involved in the installation of the pools. He attributed any difficulties that may have arisen to a lack of control over Lovett, and poor judgment on his part in associating with Tallman Pools.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent James H. Jasperson be found guilty of violating Section 489.129(1)(j), Florida Statutes, as set forth in Count I of the Administrative Complaint. It is further RECOMMENDED that the charges contained in Count II of the Administrative Complaint be DISMISSED. It is further RECOMMENDED that Respondent's registered pool contractor's License Number RP 0028372 be suspended for 90 days from the date of the final agency order entered herein for the aforesaid violation. DONE and ENTERED this 26th day of June, 1981, in Tallahassee, Leon County, Florida. DONALD ALEXANDER, 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 26th day of June, 1981. COPIES FURNISHED: Drucilla E. Bell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James H. Jasperson 1340 South Bumby Avenue Orlando, Florida 32896 Nancy Kelly Wittenberg, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 =================================================================
Findings Of Fact For the purposes of the motion, the parties stipulated to the following facts: The Department's action giving rise to Petitioners' petition for attorney's fees under Section 57.111, Florida Statutes, was to propose confirm a report of abuse/neglect against each of the five Petitioners in their individual capacity. Each Petitioner requested a formal hearing under Section 120.57(1), Florida Statutes, which resulted in five separate cases, none of which named Palmetto Guest Home, Inc. as a party. The five cases were consolidated but were subsequently dismissed as a result of the Department downgrading each case to "closed without classification". All five of the Petitioners worked at the Palmetto Guest Home, Inc. and are related to each other. The Palmetto Guest Home, Inc., is a Florida corporation in good standing and registered with the State of Florida as an adult congregate living facility. James E. Biggins is the president and a director of Palmetto Guest Home, Inc., and is the corporation's sole shareholder. Palmetto Guest Home, Inc., was not named as a party in the underlying administrative action and is not one of the Petitioners in this case. James E. Biggins was not named as an alleged perpetrator in the underlying administrative action and is not one of the Petitioners in this case. James E. Biggins is the father of Petitioners, K.B., J.J.B. and M.B., who are vice presidents of the corporation. James E. Biggins is the husband of Petitioner S.B., who is a director and the secretary/treasurer of the corporation. James E. Biggins is the father-in-law of Petitioner T.B., who is the administrator of Palmetto Guest Home, Inc. Palmetto Guest Home, Inc. has net a worth of less than two million dollars.
Findings Of Fact Based on the evidence presented, the following facts were found: At all times pertinent to this case, Respondent held two active contractor's licenses issued by the State of Florida, RP 0033354 and CP 015029. Respondent's current address is 1316 Hoffner Avenue, Orlando, Florida 32809. At all times pertinent to this case, Respondent owned the firm Family Pools and did business as a pool contractor under that name. At no time did Respondent ever qualify his firm, under whose name he did business, with the Florida Construction Industry Licensing Board (CILB). On some date not specified, in June, 1980, Alphonse J. and Pauline L. Rodier contracted with Family Pools to build a pool at their residence at 601 Michigan Avenue, Englewood, Sarasota County, Florida for a price of 6,700. The contract was signed by Respondent for Family Pools. The pool price was to include a screened enclosure and deck, and the entire package was to be completed by July 4, 1980. The pool was paid for by two checks from Coast Federal Sayings and Loan Association in Sarasota from the proceeds of a home improvement loan and by a final check in the amount of $900 from the Rodiers, direct, on October 13, 1980. Respondent subcontracted the pool enclosure to Climatrol Screen Company of Enqlewood, Florida, for $2,065 but failed to pay this subcontractor. As a result, on November 26, 1980, Climatrol filed a lien against Rodier's property which was released only when the Rodiers paid an additional $790 which had not been satisfied by the Respondent. Respondent had satisfied part of the debt to Climatrol by relinquishing title to a truck he owned. On July 3, 1980, Family Pools contracted with Elmer J. and Carla T. Taylor, of Bunnell, Florida, to build an above-ground pool on their property for $4,800.00. The pool was to have a one year warranty against defective parts and a 20-year prorated replacement policy. According to the contract, the pool price included the pump, liner, filter, and walls, along with all other parts. The pool was constructed by employees of Family Pools about three or four weeks after the contract was signed. Not long after the pool was completed and filled, Mr. Taylor noticed that the vinyl liner was protruding out beneath the bottom of the metal retaining wall. His calls to Family Pools were never answered by Respondent with whom he asked to talk and repair work on this problem was not accomplished by the Respondent or Family Pools. Mr. Taylor had to do the work himself and Family Pools would not honor the warranty. Respondent offers the completion certificate executed by the Taylors on August 21, 1980,as evidence the pool was installed properly and the Taylors were satisfied. Mr. Taylor indicates he signed that certificate in blank under pressure from Respondent's agent, who cajoled him into doing it on the basis that if he did not, Family Pools could not be paid by the finance company under the installment sales contract. Also, during the period of the one year warranty, the pool pump burned out. Mr. Taylor had to replace that and pay for it himself, as the warranty was not honored. Respondent contends only a 90-day warranty on the pump, but that appears nowhere in the contract, which, in its description of the pool covered by the one year warranty, includes the pump. On August 29, 1980, Family Pools contracted with Janice Conover to build a swimming pool at her home in Venice, Florida for $4,780. The pool was to be completed approximately 30 days after excavation at the site. Between August 29, 1980, and December, 1980, Ms. Conover paid Family Pools a total of $4,741 by checks which were endorsed by "P. Vescera d/b/a Family Pools" or "Pasquale M. Vescera." On October 2, 1980, Respondent pulled a permit No. 7330- N from the Sarasota County Building Department, in his own name, to construct Ms. Conover's pool. In February, 1981, when the pool was only about fifty percent complete, Respondent ceased work on Ms. Conover's pool without giving her any notice or reason therefor. When Respondent stopped work, he had only dug the hole for the pool. The liner had been delivered but was not installed. The braces were there but not affixed, notwithstanding Ms. Conover had paid almost in full for the pool. As a result, she contracted with Richard Thompson, Respondent's former employee, to finish the work Respondent had started because at this point she could not find the Respondent. Thompson installed the brackets, the liner, and the deck. She had to pay extra for the pump, the chemicals, and the sweep--all of which, except for the sweep, she had paid for when she paid Respondent's price. Respondent never returned to complete Ms. Conover's pool. On July 7, 1980, Family Pools contracted with Robert A. and Florence L. Peipher to build a pool at their property in Port Charlotte, Florida, for a price of $6,900. Between July 7 and November 28, 1980, the Peiphers paid Family Pools, by checks, the sum of $6,905. All checks-were endorsed for deposit, "P. Vescera d/b/a Family Pools." The pool price was to include a screened pool enclosure and in September 1980, Family Pools contracted with Climatrol to build the screened enclosure for Peipher's pool for $1,807. Respondent and Family Pools failed to pay Climatrol for the enclosure and as a result, Climatrol filed a lien against the Peipher's property for $1,807 which was satisfied on March 9, 1981, by the Peiphers who paid Climatrol the amount owed. On March 2, 1981, the Peiphers filed a complaint against Respondent with the Contractor License Division of the Charlotte County Building Department because of Respondent's failure to pay Climatrol and the resultant cost to them. As a result of this complaint and the subsequent investigation into the allegations, the matter was referred to the Charlotte County Building Board which, at its meeting on May 7, 1981, after notice to Respondent, voted to revoke Respondent's permit privileges in Charlotte County until he made restitution to the Peiphers and to notify the State of Respondent's actions requesting state action against his license. Respondent suffered severe financial setbacks just about the time of these incidents. He was hospitalized for a period of five or six weeks and upon his return to his business found that he had been "robbed" of approximately $50,000 worth of fully paid for inventory. When he reported the shortage to the local law enforcement officials, they told him that since there was no evidence of a breaking in, they could do nothing about it. In addition, he could not recover from his insurance company for the same reason. There was no evidence other than Respondent's sworn testimony that there was a shortage or that he reported the loss to either agency. Respondent has been in the pool business in Florida for five years and in New Jersey for 32 years before that. He feels the cause of his problem is the fact that he trusted the people who worked for him who took advantage of him. During the entire period of time he was in business in Florida he took no money from the company for his personal use, living instead on income from a mortgage he owned in New Jersey. He subsequently filed for bankruptcy on March 9, 1981. The $15,000 in current accounts receivable he had on the books at that time was utilized in the bankruptcy proceeding to pay creditors. He got-none of it. He is now working in Orlando, Florida, for a pool rehabilitation company owned by his wife and her father. Respondent alleges that on July 15, 1980, he paid Richard Thompson $1,100 to complete work started on several pools, including that of Ms. Conover. Review of the prior findings of fact, however, shows that the contract with Ms. Conover was not entered into until approximately 45 days after Respondent supposedly made this payment to cover the work left undone on her pool. In light of that development, I find his contention completely without merit or basis in fact. Respondent admits that people were hurt as a result of his actions and he regrets this. However, he claims these few incidents are insignificant when compared with the over 500 satisfied customers he alleges he has served over the years. Finally, Respondent contends that early in 1980, after being advised that he had passed the test to be a certified pool contractor, he wrote to Petitioner and, after advising how he was registered and doing business, asked if he needed to make any changes in license registration. He did in fact do this and received no reply. He thereafter assumed he was acting correctly in that regard and that appears to be a justified assumption.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent's license as a contractor be suspended for two years and that he be assessed an administrative fine of $500. RECOMMENDED this 16th day of May, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1983. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Pasquale M. Vescera 1316 Hoffner Avenue Orlando, Florida 32809 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Rocco R. Sodomire (Respondent) violated Section 489.129(1)(c) and (r) and Section 455.227(l)(o), Florida Statutes, and if so, what disciplinary action should be taken against his license to practice contracting.
Findings Of Fact Respondent is, and has been at all times material hereto, a Certified Residential Contractor in the State of Florida, having been issued license number CR CO57213. At all times material hereto, Respondent was not licensed to do any swimming pool/spa contracting in the State of Florida. On or about November 1996, Respondent submitted a proposal to Vincent Neglio for the construction of a 28' x 14' in-ground swimming pool, a deck, and a screen enclosure at a cost of $15,000.00. Shortly thereafter, pursuant to the proposal, Respondent began construction of a swimming pool and deck at Mr. Neglio's residence. Prior to completion of the pool project, Mr. Neglio paid Respondent a total of $14,200.00. Although Respondent received $14,200.00 from Vincent Neglio, he never completed the pool project. Respondent presented the proposal for the pool project to Mr. Neglio; accepted money from Mr. Neglio as payment for work on the project; distributed funds to other contractors who worked on the pool project; and performed work on the pool project at Mr. Neglio's home. On August 4, 1997, the County Court of the Twentieth Judicial Circuit in and for Lee County, Florida, Small Claims Division (Case Nos. 97-2569SP-RRS and 97-2570-SP-RRS), entered a Record of Agreement between Respondent and Mr. Neglio whereby Respondent was to pay Mr. Neglio a total of $2,600.00 to settle the dispute involving the aforementioned pool project. On January 13, 1998, the County Court of the Twentieth Judicial Circuit in and for Lee County, Florida, Small Claims Division, in the above-referenced cases entered a Final Judgment by Default against Respondent in favor of Vincent Neglio in the amount of $2,600.00, the payment amount required in the Agreement, as a result of Respondent's failing to pay monies based on the Agreement referenced in paragraph 6. To date, Respondent has failed to make any payments to Vincent Neglio based on the Small Claims Court Record of Agreement, referenced in paragraph 6 or the Final Judgment by Default referenced in paragraph 7.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Construction Industry Licensing Board enter a final order that: (1) finds Respondent committed the offenses alleged in Counts I and II of the Administrative Complaint and imposes a $500.00 fine for these violations; (2) requires Respondent to pay restitution to Vincent Neglio in the amount of $2,600.00; and (3) requires Respondent to pay to Petitioner $858.97, the costs incurred by Petitioner in the investigation and prosecution of this proceeding. DONE AND ENTERED this 23rd day of November, 1999, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 23rd day of November, 1999. COPIES FURNISHED: Paul F. Kirsch, Esquire Leonardo N. Ortiz, Qualified Representative Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Rocco R. Sodomire 3520 Southeast 2nd Avenue Cape Coral, Florida 33904 Rodney Hurst, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether the Respondent's license as a registered pool contractor should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint.
Findings Of Fact At all times material hereto, Respondent, William Losciale, was a licensed registered pool contractor in the State of Florida, having been issued license number RP-0032951, by the State of Florida, and was the qualifier of Lynn Pools. On or about October 2, 1987, John J. Kerry entered into a contract with Respondent d/b/a Lynn Pools for the Respondent to construct a pool and screen enclosure on Mr. Kerry's property located at 633 South Little John Street in Inverness, Florida. The total cost of the pool and enclosure was $19,600.00. During construction various problems developed. Among them were delays in completion, the failure to obtain the proper permits, the installation of an inadequate and improper filter, the delayed removal of excavated dirt, the gouging up of the homeowner's yard, and the improper positioning of the septic tank after relocation. At the time the pool deck was being designed, the homeowner told the Respondent that it appeared to the homeowner that the deck was slanted towards the house and would cause flooding problems. The Respondent told the homeowner that the Respondent knew what he was doing and no such problem would develop. During construction of the pool, the homeowner pointed out to the Respondent that it appeared that the pool was being constructed higher than the patio which, if true, would also cause flooding problems. Again, the Respondent denied that the pool was being constructed higher than the patio and that flooding problems would occur. During construction, Respondent removed a rain downspout which, prior to construction, was located between the patio and the screen enclosure. The pool patio was then poured without replacing the downspout underneath the patio. As a result of one or more of the foregoing conditions, the homeowner's house was almost flooded on one occasion. Thereafter, the homeowner had to put a drain hole in the patio in an attempt to prevent future flooding. Since completion of the pool, when it rains, rainwater flows down the patio towards the house. Additionally, rainwater is directed from the roof through the gutter onto the patio towards the house and occasionally water overflows from the pool towards the house. While the house has not been flooded, the pool deck floods during certain rains. During construction, the Respondent removed all of the ground wires off electrical fixtures located in the homeowner's yard without replacing them after being requested to replace them by the homeowner. After the deck was poured, it was covered with kool deck. The kool deck was soft and had indentations in it. The Respondent agreed with the homeowner that the deck was bad and that the homeowner should not accept it. The Respondent the replaced the kool deck with river rock. The deck now has ripples in it. The Respondent tried to charge the homeowner an additional $1,200 for the river rock. The homeowner had the river rock installed for an additional $850.00 by a third party. Prior to entering into the contract for the pool and enclosure with Respondent, the home owner told the Respondent that he wanted the biggest water heater available to heat the pool water instantly. When the water heater was being installed, the homeowner questioned the Respondent whether or not the water heater was big enough to meet the homeowner's requirements. The Respondent said that it was. After installation, the heater did not come close to meeting the home owner's requirements. The homeowner then called the manufacturer of the heater and was told that the installed heater was too small. The Respondent, at the homeowner's request, then changed the heater to one that would supposedly heat the pool water faster. It did not. The homeowner then called the heating company again and was told that the new heater was only one size up from the original heater and still would not meet the homeowner's requirements. That heater remains on the homeowner's property and does not meet the homeowner's requirements. Mr. Kerry paid the Respondent $5,500.00 on December 7, 1987, which made a total of $19,000.00 the homeowner had paid the Respondent. The homeowner has paid more than $600.00 in repairing and/or correcting work that was the obligation of the Respondent. Correction of all these problems has been to the homeowner's financial detriment. In the latter part of December, 1987, the Respondent entered into an oral contract with All Wright Aluminum to have All Wright Aluminum install an L- shaped pool enclosure over the pool at the Kerry residence. The total contract price was $5,185.10. Payment for the construction was due within ten days of completion which occurred on January 6, 1988. All Wright Aluminum received a $1,000.00 payment from the Respondent on or about February 2, 1988. That payment was a check from a customer of the Respondent, made payable to the Respondent's order in partial payment on pool repairs which the Respondent made for that customer. The Respondent endorsed that check and made it payable to All Wright Aluminum. On February 15, 1988, All Wright Aluminum in compliance with the mechanic's lien law, filed a valid claim of lien against Mr. Kerry's property in the amount of $4,185.10 for failure of the Respondent to pay All Wright for the construction of the pool enclosure. On May 10, 1988, the Respondent paid All Wright Aluminum $1,000.00 towards that lien. On September 16, 1988, the Respondent paid All Wright $2,000.00 towards the satisfaction of that lien from his personal account. On September 16, 1988, the Respondent gave All Wright Aluminum a personal promissory note in the amount of $1,135.10 for the balance of the lien amount. On that date All Wright Aluminum satisfied its previously filed claim of lien. Respondent has previously been disciplined by the Florida Construction Industry Licensing Board.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Construction Industry Licensing Board, enter a Final Order and therein penalize the Respondent, William Losciale, as follows: Assess a fine of $750 for the violation of Section 489.129(1)(h) Assess a fine of $750 for the violation of Sections 489.129(1)(j) , 489.105(4), and 489.119. Assess a fine of $1500 for the violation of Section 489.129(1)(m) Suspend the license of Respondent for a period of six (6) months. DONE and ENTERED this 19th day of October, 1989, in Tallahassee, Florida. DIANE K. KIESLING 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 19th day of October, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-3296 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Professional Regulation, Construction Industry Licensing Board 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-20 (1-20). COPIES FURNISHED: Jack M. Larkin Attorney at Law 806 Jackson Street Tampa, Florida 33602 William Losciale 6491 Mobile Street Inverness, Florida 32652 Kenneth E. Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
The Issue The issue presented is whether Petitioner's application for site approval and licensure of a private seaplane base near Manatee Springs on the Suwannee River should be approved.
Findings Of Fact By application dated July 18, 1990, Petitioner applied to the Department of Transportation for site approval and licensure for a private seaplane base to be known as Manatee Springs Seabase on the Suwannee River in Dixie County, Florida, seven miles south of Old Town. On the application, Petitioner agreed that the private seaplane base would be for his personal use, that it would not be used for commercial operations, that flight activities from the proposed site would be conducted only during the day, and that operations would only occur in VFR weather conditions. Petitioner owns 362 acres of land with approximately 2,400 feet of that land being riverfront property. Petitioner's property is on the west shore of the Suwannee River. Approximately across from the southern boundary of Petitioner's property is the Spring Run in Manatee Springs State Park. The Park extends a considerable distance to both the north and the south, far beyond the boundaries of Petitioner's property. Approximately 100 feet south of the entrance to Spring Run is the dock of Manatee Springs State Park. Numerous manatee have been sighted around the Park's dock, at the entrance to the Spring Run, in the Spring Run, and in the middle of the River across from the dock. The Suwannee River between Petitioner's property on the west bank and the Park's property on the east bank is between 600 and 700 feet wide. In that area, the Suwannee River is open to all kinds of boat traffic, some of which travels as fast or faster than a seaplane taking off and landing. That area of the River is used by fishing boats, ski boats, airboats, jet skis, houseboats, and canoes. There is a tour boat which travels through the area in question, and canoes can be rented at the Park from a concessionaire. Personnel at the commercial canoe rental business advise renters to stay within 50 to 100 feet from the east shore line, along the Park. However, some renters ignore the instructions and cross the River. Due to the heavier manatee and boat activity at the Spring Run and Park docking area across from the southern portion of Petitioner's property, Petitioner proposes that his landing and take-off area be located just to the north of the northern boundary of his property, away from the entrance to Manatee Springs State Park, in the middle of the River, and in a section of the River which is straighter, which would increase his visibility of boat traffic in the area. Petitioner will place no structures of any kind in the River. Under Petitioner's proposal, he will store his seaplane in an area in the northern portion of his property. No structures will be constructed in this storage area. Petitioner would taxi out from the seaplane's storage area to his take-off and landing area which starts approximately 300 feet north of his storage site. The take-off and landing area would extend approximately 2,600 feet up the River and would be 100 feet wide. Petitioner proposes to use either a two-passenger or four-passenger seaplane. Such seaplanes utilize 100 h.p. and 150 h.p. engines, respectively. Such seaplanes taxi at 3-5 knots per hour, which speed would create the same wake as a canoe. When a seaplane is idling, it creates no wake. When a seaplane takes off, it rotates onto the pontoon step within 15 to 20 seconds and completes take-off within an additional 10 to 15 seconds. The total take-off time is approximately 30-35 seconds, and the seaplane during take-off will achieve a speed of 40-45 m.p.h., less the head wind. The total take-off distance is approximately 1,000 feet. Accordingly, Petitioner would be on the River for approximately 5 minutes of taxiing and 30 seconds of take-off, at which point the seaplane is off the River. The amount of wake created during take-off is 2-3 inches. The distance betwen the entrance to the Spring Run into Manatee Springs State Park and the southern end of Petitioner's proposed landing and take-off area is 3,000 feet. Thus, Petitioner's proposed landing and take-off area is located a safe distance from where boaters and manatee congregate around the Springs. Further, although some of Petitioner's neighbors on the west shore of the Suwannee River tie their boats to trees along the shore, there are no docks extending into the River in or near the area proposed for the landing and take- off strip. There are a public boat ramp at Clay Landing approximately 2 miles above the proposed seaplane landing area, a public boat ramp somewhere south of the Park, and a third public boat ramp somewhere in the Park. The boat ramps are not close enough to Petitioner's proposed landing and take-off strip to pose any threat to their users from Petitioner's proposed use of his seaplane. Petitioner is a licensed pilot, who possesses all appropriate ratings and has passed the required physical examinations. He learned to fly in 1940 and operated a seaplane base in Fort Walton during the 1940s and 1950s. He was then employed as a pilot for Eastern Airlines for 33 years. He has 18,000 hours of flying time, which includes 1,000 hours of flying seaplanes. He will carry liability insurance on his seaplane of at least $100,000. Petitioner understands that when his seaplane is on the water, it is subject to the rules and regulations governing boats and other watercraft. Accordingly, when "no wake" restrictions are in effect on the Suwannee River when the River is high, Petitioner cannot use his seaplane base. The Department's aviation specialist assigned to process Petitioner's application for site approval visited Petitioner's property on five separate occasions, observing boat traffic on the River during his visits. On one occasion, he spent the day counting the boat traffic and estimating intervals of traffic relative to landing and take-off times. Although the River was high on that occasion, it was during a weekend when boat traffic would be heavier than during the week. He determined that the proposed location of Petitioner's seaplane base was a safe location and that Petitioner's activity would not constitute a hazard to boating traffic. The Department issued its Notice of Intent to approve Petitioner's seaplane base, subject to several conditions: All operations are conducted during daylight hours and during VFR weather conditions only. Operations are prohibited on long holiday weekends that generate a high volume of river traffic (Memorial Day, 4th of July, Labor Day). A non standard traffic pattern be used, all traffic patterns will be to the west of the extended runway center line to prevent over flight of Manatee Springs State Park. Pursuant to the Department's regulations, Petitioner was required to provide notice of his application to all property owners within 1,000 feet from any boundary of the airport operational area, and the Department's Notice of Intent was published notifying interested persons that a public meeting would be conducted, if requested, on Petitioner's application. A number of persons attended the public meeting, some of whom supported Petitioner's application, but the majority of whom opposed Petitioner's application. After the public meeting, the Department issued a letter denying Petitioner's application, citing the concerns voiced at the public meeting. Additionally, the denial letter advised Petitioner that the Trustees of the Internal Improvement Fund have state sovereignty jurisdiction of the River area where the proposed seaplane base would be located and that Petitioner would, therefore, need appropriate authorization from the Trustees through the Department of Natural Resources to use the sovereign submerged land. That letter further advised Petitioner that the Trustees' jurisdiction is subject to the navigation servitude of the federal government and that Petitioner, therefore, would need a permit from the Army Corps of Engineers to use the proposed site on the Suwannee River as a seaplane base. Although the statutes and rules regulating the Department's site approval and licensure of airports and seaplane bases do not contain a requirement for authorization from the Trustees or the requirement of a permit from the Army Corps of Engineers, Petitioner contacted those agencies. By letter dated June 28, 1991, the Florida Department of Natural Resources advised Petitioner as follows: Please be advised that you do not need authorization for the use of state-owned submerged lands if you are not storing your sea plane waterward of the Ordinary High Water Line of the Suwannee River, constructing structures waterward of the Ordinary High Water Line, or impacting state-owned submerged lands and resources when removing your seaplane from the Suwannee River. Petitioner's proposal does not contain any of those characteristics. By letter dated September 6, 1991, the Department of the Army, Jacksonville District Corps of Engineers, advised Petitioner that no authorization or permit was required for his proposed seaplane base. Petitioner can safely take-off and land in his proposed strip without presenting a danger to boaters and swimmers any greater than the risk presented by other fast moving vessels currently permitted to utilize the Suwannee River in the area under question. The height of a seaplane propeller poses no danger to swimmers or manatee. One must be fully licensed and trained to operate a seaplane, while one needs no training or licensure to operate a speed boat. The height of a seaplane presents a better view of obstacles in the River than the view of someone in a boat or in the River. A seaplane offers the ability to stop quickly or "pull up" in a split second to avoid something coming quickly into the path of the seaplane. Although the Florida Department of Natural Resources advised Petitioner that he did not need authorization to use the state-owned submerged lands of the Suwannee River, employees of the Division of Recreation and Parks of the Department of Natural Resources testified at the final hearing in opposition to Petitioner's application. Those employees believe that Petitioner's proposed landing and take-off area is within the jurisdiction of the Division of Recreation and Parks pursuant to a Management Agreement entered into between the Division and the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida. That Management Agreement entered into on November 24, 1986, and amended on January 19, 1988, does grant management responsibilities to the Division over: All those sovereign submerged lands lying within 400 feet of the Mean High Water or Ordinary High Water Line, or in the case where the shoreline is vegetated with. . .wetland vegetation, within 400 feet of the emergent edge of the vegetation, and within the riparian area of any state park. . .administered by the Division of Recreation and Parks . . . . Petitioner's proposed landing and take-off strip is within 400 feet of the emergent edge of the vegetation of Manatee Springs State Park. That Management Agreement, however, also provides that the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida retained the right to also engage in management activities over those sovereign submerged lands and further provides that the Management Agreement is not to be construed in any way to interfere with the traditional riparian rights of private landowners. Lastly, that Management Agreement required the Division of Recreation and Parks to submit to the Board for its approval a management plan for those submerged lands and prohibited the Division from engaging in activities not provided for in the required plan without the advance written approval of the Board. There was no evidence indicating that the Division had adopted any management plan for the area under consideration in this cause. Further, no explanation was offered as to how the Division of Recreation and Parks could impose requirements not imposed by the Department of Natural Resources.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting Petitioner's airport site approval and license application, with the conditions set forth in paragraph numbered 13 of this Recommended Order. DONE and ENTERED this 26th day of November, 1991, at Tallahassee, Florida. LINDA M. RIGOT 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 26th day of November, 1991. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 91-4391 Respondent's proposed findings of fact numbered 1-4 have been adopted in substance in this Recommended Order. Respondent's proposed finding of fact numbered 5 has been rejected as not constituting a finding of fact. Respondent's proposed finding of fact numbered 6 has been rejected as being subordinate to the issues involved herein. Copies furnished: Ben G. Watts, Secretary Department of Transportation Haydon Burns Building Attn: Eleanor F. Turner 605 Suwannee Street Tallahassee, Florida 32399-0458 Vernon L. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, Florida 32399-0458 Henry C. Fucik, 8290 S.W. 58th Street Miami, Florida 33143
Findings Of Fact In early September of 1979, John and Ruth E. Lockwood contracted with P & P Custom Pools, Inc. (P & P), for the construction of a swimming pool at their home, 231 El Dorado Drive, Debary, Florida. Respondent, Philip J. Mains, signed the contract on behalf of P & P and later obtained a building permit. He and his men began excavating on site in mid-September. The Lockwoods paid respondent $700.00 on September 6, 1979. As construction progressed, they paid him $1,706.25 on September 27, 1979; $1,000.00 on October 26, 1979; $1,047.50 on October 29, 1979; and $1,706.25 on November 20, 1979. At the appropriate times, a building inspector was summoned, who inspected the project, including the placement of reinforcing steel, ground wiring, and lights. Neither the "steel inspection" nor the "deck inspection" revealed any problem. The workmanship was excellent, as far as it went, but the Volusia County building inspector's office was never asked to perform a final inspection. As respondent promised there would be, there was water in the swimming pool by Christmas of 1979, but respondent did no further work after December, 1979. He never installed the pump, filter, diving board, or hand bars called for in the Lockwoods' contract. Earlier in 1979, Patrick T. Ryan, the other principal in P & P, left town and abandoned the business which was then $37,000 in debt. In November of 1979, respondent turned the company's books over to an accountant. In January of 1980 the business' financial problems became critical and, at the accountant's suggestion, respondent so advised the eight homeowners for whom he was building swimming pools, including, in January or February, Mr. Lockwood, who reacted angrily. Respondent testified that Mr. Lockwood "cussed him out." Thereafter respondent avoided the Lockwoods until April of 1980 when they found him working on another pool. There was enough money owed on the eight contracts as a group to finish all the pools, according to respondent's uncontroverted testimony, at the time the Internal Revenue Service levied on respondent's bank account and seized his tools and equipment. Even then respondent offered to finish the Lockwoods' pool if they would buy the materials. Respondent's wife asked Mrs. Lockwood to write a check to a supplier for a pump and filter so that respondent could install them and get water in the pool circulating. Instead, during the last week of April, 1980, the Lockwoods contracted with somebody else to finish the job and paid him $1,200. Respondent subcontracted with a Jacksonville cement company to pour concrete for the pool. After the concrete had been poured, the Lockwoods got a registered letter from the subcontractor threatening to place a lien on their property if he were not paid. According to Mr. Lockwood, the problem was that some check [supposedly drawn by respondent in favor of the subcontractor] had been delayed in the mail. In any event, there was no indication in the evidence that the Lockwoods heard anything further from the subcontractor.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner suspend respondent's registration for thirty (30) days. DONE AND ENTERED this 29th day of April, 1981, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1981. COPIES FURNISHED: Charles F. Tunnicliff, Esquire 130 North Monroe Street Tallahassee, Florida 32301 Philip J. Mains c/o Sue Mains Route 2, Box 799A DeLand, Florida 32720 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, vs. CASE NO. 80-2231 PHILIP J. MAINS, RP 0024663, Respondent. /
