Findings Of Fact John Lopez was employed as an instructor at The Lemon Tree International Health Spa, Clearwater, Florida, from November 4, 1980, until he was involuntarily terminated on February 20, 1981. Lopez was hired by John Prevatt, the manager of the health spa who left some three weeks after CP was hired. Prevatt loaned CP a white smock to wear as part of the uniform prescribed for male instructors. Prevatt was replaced as manager by Paula Peters who, during the first few weeks she was manager, was at the spa only part of two or three days each week. Diane McDaniel, who was a counsellor at the Clearwater spa, was acting manager when Paula Peters was absent. During this period of time discipline and the enforcement of the uniform requirements for instructors were lax. McDaniel reminded CP he was supposed to wear a white smock but apparently did little else along these lines and CP did not purchase a smock. Instructors were also required to learn the "tour," a prepared speech that was to be given to prospective clients being shown around the facilities by the instructors. CP never learned the "tour" verbatim and expressed his displeasure with parts of this "tour" to other instructors. After being told several times by Paula Peters that he must wear a smock, CP purchased one in late December or early January. However, he never learned the "tour" although he was told he must learn the "tour" by Prevatt, McDaniel and Peters. Instructors escorting prospective members on tour were given a one or two percent commission of the membership fees of those escorted who joined the spa. Names of those escorted were written on the back of instructors' time sheets by the instructor. CP did not list the names of prospective members he took on tour on the back of his time sheets and he was never paid a commission for those who subsequently became members. CP was the only instructor who did not receive a commission. He was also the only one who did not place the names of those whom he took on tour on the back of his time sheets and the only instructor who acknowledged that he never really learned the "tour." Instructors were supposed to know the "tour" and follow the script to be eligible for the commission. At the time Lopez was hired he had a second job as a bartender and was told by Prevatt that he could leave at 3:00 p.m. (instead of 4:00 p.m.) on Wednesdays, Thursdays and Fridays to go to the other job. The evidence was unclear whether this information was passed to Peters by either CP or Prevatt or if she concurred with this arrangement. On several occasions Lopez was late reporting for work. He reported sick fewer days while he was employed than did some other instructors. On at least one occasion when CP's presence was desired to take prospects on tour after 9:30 a.m., CP was not available as he was taking a shower, shaving, etc. Other employees contended that CP spent most of his time in the reception room rather than in the male side of the spa where he was supposed to be. CP was fired by Paula Peters on February 20, 1981. Lopez testified that he was required to clean mirrors, glass and sweep up in the wet area and no other instructors were given similar chores. All of the employees called by Respondent testified that they performed these chores every day during slack periods as time permitted. The major shareholder of Respondent testified that continual cleaning of these spaces was essential to the operation of a successful health spa and was a chore demanded from all employees and that all instructors were required to wear the prescribed uniform. He further testified that considerable time had been spent developing the "tour" and that it was essential that all employees strictly follow the script prepared for the "tour" and not deviate therefrom. No evidence was presented that anyone employed by Respondent ever referred to CP as a Mexican or that he was fired because of his national origin. Exhibit 1 indicates that Celia Diaz was employed by Respondent from January 7, 1980, until September 20, 1980, and that Betty Gomez was employed from June 21, 1980, until October 6, 1980. Instructors are paid the minimum wage rate of $3.10 per hour and few remain for a long period of time. Some move up to receptionist and counsellor, but the increased salary is apparently not sufficient to keep even these in the spa employ for extended periods. Exhibit 1 indicates that the average time of employment for the eight listed thereon was slightly less than four months.
Findings Of Fact 11. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on March 6, 2009, the Amended Order of Penalty Assessment issued on March 11, 2009, and the Second Amended Order of Penalty Assessment issued on October 15, 2009, which are fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Alex Sink, Chief Financial Officer of the State of Florida, or her designee, having considered the record in this case, including the Stop- Work Order and Order of Penalty Assessment and the Amended Orders of Penalty Assessment served in Division of Workers’ Compensation Case No. 09-059-D7, and being otherwise fully advised in the premises, hereby finds that: 1. On March 6, 2009, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Stop-Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 09-059-D7 to CHRISTOPHER BURTIS DBA C BURTIS PLUMBING SERVICE. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein CHRISTOPHER BURTIS DBA C BURTIS PLUMBING SERVICE was advised that any request for an administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Stop-Work Order and Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 2. On March 6, 2009, the Stop-Work Order and Order of Penalty Assessment was served by personal service on CHRISTOPHER BURTIS DBA C BURTIS PLUMBING SERVICE. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On March 11, 2009, the Department issued an Amended Order of Penalty Assessment in Case No. 09-059-D7 to CHRISTOPHER BURTIS DBA C BURTIS PLUMBING SERVICE. The Amended Order of Penalty Assessment assessed a total penalty of $23,054.38 against CHRISTOPHER BURTIS DBA C BURTIS PLUMBING SERVICE. The Amended Order of Penalty Assessment included a Notice of Rights wherein CHRISTOPHER BURTIS DBA C BURTIS PLUMBING SERVICE was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 4. On March 11, 2009, the Amended Order of Penalty Assessment was served by personal service on CHRISTOPHER BURTIS DBA C BURTIS PLUMBING SERVICE. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On March 11, 2009, CHRISTOPHER BURTIS DBA C BURTIS PLUMBING SERVICE signed a Payment Agreement Schedule for Periodic Payment of Penalty in Case No. 09- 059-D7. A copy of the Payment Agreement Schedule for Periodic Payment of Penalty is attached hereto as “Exhibit C” and incorporated herein by reference. 6. On March 11, 2009, the Department issued an Order of Conditional Release from Stop-Work Order in Case No. 09-059-D7 to CHRISTOPHER BURTIS DBA C BURTIS PLUMBING SERVICE. A copy of the Order of Conditional Release from Stop-Work Order is attached hereto as “Exhibit D” and incorporated herein by reference. 7. _ On March 27, 2009, CHRISTOPHER BURTIS DBA C BURTIS PLUMBING SERVICE filed a Petition for Formal Hearing Under Sections 120.569 and 120.57 with the Department. The Petition for Formal Hearing Under Sections 120.569 and 120.57 was forwarded to the Division of Administrative Hearings on April 13, 2009, and the matter was assigned DOAH Case No. 09-1841. 8. On October 15, 2009, the Department issued a Second Amended Order of Penalty Assessment in Case No. 09-059-D7 to CHRISTOPHER BURTIS DBA C BURTIS PLUMBING SERVICE. The Second Amended Order of Penalty Assessment assessed a total penalty of $5,599.61 against CHRISTOPHER BURTIS DBA C BURTIS PLUMBING SERVICE. A copy of the Second Amended Order of Penalty Assessment is attached hereto as “Exhibit E” and incorporated herein by reference. 9. On October 16, 2009, the Department filed an Unopposed Motion to Amend Order of Penalty Assessment. The Administrative Law Judge entered an Order on October 19, 2009, which granted leave to amend the order of penalty assessment and filed for record the Second Amended Order of Penalty Assessment. A copy of the ‘Order is attached hereto as “Exhibit F” and incorporated herein by reference. 10. On November 2, 2009, CHRISTOPHER BURTIS DBA C BURTIS PLUMBING SERVICE filed a Notice of Voluntary Dismissal with the Division of Administrative Hearings. Subsequently, on November 4, 2009, the Administrative Law Judge issued an Order Closing File which relinquished jurisdiction to the Department for final agency action. A copy of the Order Closing File is attached hereto as “Exhibit G” and incorporated herein by reference.
Findings Of Fact Based on the evidence received at the hearing, the following facts are found: The Respondent, Dana Carlos, is a licensed massage therapist in the State of Florida, having been issued license number MA 0002811. The Respondent has been so licensed at all times material to this proceeding. On December 10, 1986, the Respondent was the co-owner of a massage establishment known as Massage by Dana and Jan, which at that time was located at 721 U.S. Highway 1, Suite 222, North Palm Beach, Florida 33408. That establishment was licensed by the State of Florida, having been issued license number MM 0000202. When Inspector Jean Robinson inspected that establishment on December 10, 1990, Gemma V. Koder was massaging a client without being supervised by either the Respondent or Jan Carlos. The client had come in early and Ms. Koder had called the Respondent by telephone to ask what she should do. The Respondent had told Gemma V. Koder to go ahead and start massaging the client and that she (the Respondent) would be there as soon as possible. The Respondent was approved as a sponsor for Gemma V. Koder, which sponsorship terminated on May 14, 1987. Gemma V. Koder was an apprentice for Dana Carlos. Gemma V. Koder had an apprentice license that allowed her to perform massages only when either the Respondent or Jan Carlos were physically present to supervise her. Either the Respondent or Jan Carlos could supervise Ms. Koder, because they were "co-sponsors." The Respondent later moved her massage establishment to 3700 Georgia Avenue, West Palm Beach, Florida. At that location she practiced massage under the name Massage by Dana and Jan. Dana Carlos leased the premises at that location. On April 13, 1988, the premises at 3700 Georgia Avenue were inspected by Inspector Jean Robinson. On that day Tammy Coxey was working as an unlicensed apprentice for the Respondent. The Respondent had applied for an apprentice license for Tammy Coxey, but the apprentice license was never approved by the Board of Massage. Therefore, the Respondent was never approved as a sponsor for Tammy Coxey and the Respondent knew that Tammy Coxey did not have an apprentice license or any other type of license. Nevertheless, admittedly motivated by profit potential, the Respondent disregarded the licensing requirements and put Tammy Coxey to work. On April 13, 1988, the room in which Tammy Coxey was performing massages as an employee of the Respondent was across the hall from the licensed massage establishment the Respondent was authorized to operate. The room in which Tammy Coxey was performing massages as an employee of the Respondent was never a licensed massage establishment. On the 6th and 7th of October, 1988, Sergeant Harvey Starr, of the West Palm Beach Police Department, called the establishment known as Massage by Dana and Jan and spoke to the Respondent on the telephone. He inquired about a "full body treatment" and was told that "all her girls gave full body treatments that included a release." In street jargon, a massage that includes "full body treatment including release," means a massage that includes masturbation to climax. On October 11, 1988, Sergeant Starr made an appointment for a massage and went to the premises of Massage by Dana and Jan, where he was met by the Respondent. Sergeant Starr told the Respondent that his name was "Richard," that he was the one who had called her on the telephone, and then asked what the charge was for a "full body treatment." The Respondent said it would be $25. Sergeant Starr than asked if that included a "release" and the Respondent told him that would cost $28. Sergeant Starr then specifically asked the Respondent if a "release" meant that he would be masturbated, and the Respondent answered that it did. Sergeant Starr then asked if the Respondent wanted to be paid. She, answered in the affirmative, Sergeant Starr handed her $30, and at that time he identified himself as a police officer and told her that she was under arrest. The Respondent was arrested on the charge of soliciting for the purpose of prostitution. Beginning in 1974 and for several years thereafter, in an effort to compete effectively, attract repeat business, and maintain market share in the Palm Beach County massage market, the Respondent engaged in the practiced of regularly masturbating massage clients.
Recommendation Upon consideration of all of the foregoing, it is recommended that the Board of Massage enter a Final Order in this case to the following effect: Dismissing all charges of violations set forth in Count II of the Amended Administrative Complaint; Dismissing the charges in Count III of the Amended Administrative Complaint that allege violations based on Section 480.47, Florida Statutes (the violations alleged at subparagraphs (a) and (c) of Paragraph 18 of the Amended Administrative Complaint); Finding the Respondent guilty of the violation charged in Count I of the Amended Administrative Complaint; Finding the Respondent guilty of the violations of Section 480.046(1)(e) and 480.046(1)(k), Florida Statutes, alleged in subparagraphs (b) and (d) of Paragraph 18 of Count III of the Amended Administrative Complaint; and Imposing a penalty , for the foregoing violations consisting of the revocation of the Respondent's license. DONE AND ENTERED at Tallahassee, Leon County, Florida, this 4th day of June, 1990. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NUMBER 89-6091 Consistent with the requirements of Section 120.59(2), Florida Statutes, the following are my specific rulings on the proposed findings of fact contained in the Petitioner's Proposed Recommended Order. Paragraphs 1 through 5: Accepted in substance. Paragraph 6: Rejected as constituting a conclusion of law rather than a finding of fact. Paragraph 7: Rejected as irrelevant to charges in this case. Paragraphs 8 through 14: Accepted in substance. Paragraph 15: Rejected because only record basis is uncorroborated hearsay. Paragraphs 16 through 23: Accepted in substance. Paragraph 24: Rejected as subordinate and unnecessary, even though supported by record evidence. Paragraph 25: Accepted in substance. With regard to the post-hearing submissions of the Respondent, it is first noted that, even after a deadline extension of over a month, the Respondent's post-hearing submissions were filed late. Section 120.59(2), Florida Statutes, requires a ruling on each proposed finding only where proposed findings are submitted "in accordance with agency rules." Rule 22I-6.031(1), Florida Administrative Code, provides for the filing of proposed findings of fact and other proposed matters "within a time designated by the Hearing Officer." The Respondent's post-hearing materials were not submitted in accordance with the cited rule because they were filed beyond the extended deadline. Therefore, Section 120.59(2), Florida Statutes, does not require a specific ruling on each and every random sentence that might arguably constitute a proposed finding wherever found within the 47 pages of assorted post-hearing material submitted by the Respondent. Accordingly, while I have carefully read each of the 47 pages of post-hearing material submitted by the Respondent, I have not attempted the herculean task of gleaning through the Respondent's eclectic accumulation of papers and attempting to sort out the few statements that might arguably be construed as proposed findings of fact from the morass of arguments, statements of law, total irrelevancies, inappropriate documents (such as rejected exhibits), and other documents that serve no useful purpose. Suffice it to say that it is clear that the Respondent is of the view that the Petitioner has failed to prove its case, and it is clear from the findings of fact made in the Recommended Order that the Hearing Officer is, for the most part, of the view that the record in this case warrants an opposite finding. COPIES FURNISHED: Cynthia Gelmine, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Ms. Dana Carlos 4425 Rachael Way West Palm Beach, FL 33406 Mildred Gardner Kenneth D. Easley, Esquire Executive Director General Counsel, Department Board of Massage of Professional Regulation Northwood Centre 1940 North Monroe Street 1940 North Monroe Street Tallahassee, FL 32399-0792 Tallahassee, FL 32399-0792
The Issue The issues in this case are whether Respondent, Mehdi Safdari, L.M.T., committed the offenses alleged in the Administrative Complaint issued August 8, 2001, and, if so, to what extent should his license be disciplined or should he be otherwise penalized.
Findings Of Fact Petitioner, the Department of Health, Board of Massage Therapy (hereinafter referred to as the "Board") is the state agency charged with the authority and duty to regulate the practice of massage therapy in the State of Florida. Pursuant to Subsection 20.43(3)(g), Florida Statutes, the Department of Health has contracted with the Agency for Health Care Administration to provide consumer complaint, investigative, and prosecutorial services required by the Board, as appropriate. Respondent, Mehdi Safdari, was a licensed massage therapist in the State of Florida at all times material to the allegations in the Administrative Complaint. Respondent's license number is MA 11488. He was originally certified on January 14, 1991; his current license will expire on August 31, 2003. The complainant, R.C., a 44-year-old female who has an associate's degree in social services from Hesston College in Hesston, Kansas, is a certified activities director. At all times material to the allegations in this matter, she was employed as an activities director at an assisted living facility, Altera Wynwood. On May 4, 2000, Respondent and another person presented an educational program on occupational therapy, physical therapy, and speech and massage therapy for the residents of Altera Wynwood. Incidental to the program, Respondent brought his massage chair and performed massages at the facility. On that day, Respondent performed a chair massage on R.C. R.C. had not known Respondent prior to that day. R.C. advised Respondent that she had been involved in an automobile accident and had injured three discs in her neck. Respondent suggested that she allow him to perform massage therapy on her to alleviate discomfort incidental to the neck injury. On May 15, 2000, R.C. presented herself to Respondent's place of employment for massage therapy. After disrobing, R.C. dressed herself in a hospital gown and towel which was provided. She wore the towel like a diaper. Respondent massaged R.C.'s head and neck and around her breasts. R.C. testified that Respondent "touched her genital area in a very, very subtle manner, almost as if it was an accident." The remainder of the "full body" massage consisted largely of leg stretching. On May 17, 2000, R.C. presented herself for a second massage. On this occasion she found no gown, but was provided a sheet and towel. During this massage, Respondent pulled down the sheet and exposed R.C.'s breasts without her consent. During the massage, Respondent touched R.C.'s breasts, but she was uncertain as to whether the touching was "out of line." Her next massage was on May 19, 2000. She again found only a sheet and towel in which to dress. During this massage, Respondent got up on the massage table and straddled R.C., sitting on her hips and buttocks with his legs on each side of her body. She advised him that the pressure of him sitting on her buttocks was causing her pain in the back, so he got off. At all times she was covered by the sheet and had the towel between her legs. Respondent did not advise her that he was going to straddle her nor did he have her permission to do so. On her fourth and final visit, she dressed herself in the sheet that was provided, but left her underpants on because she was having a menstrual period. After massaging R.C.'s upper body, Respondent turned her over on her stomach. He then got up on the massage table, straddling R.C., and pulled her underwear back. He then unzipped the zipper of his trousers and placed his penis between R.C.'s buttocks. Respondent was leaning up against R.C. and pumping against her. She advised Respondent that he was hurting her and, as a result, he got off. He then told her to lie on her side and face the wall; he then got up on the massage table beside her and with his full body began pushing up against her from behind. She was afraid she was going to be raped and was afraid to say anything. Respondent remained behind R.C. for a short period of time and then left. R.C. went to the bathroom and washed herself but did not discover any semen on herself. She then left, seeking to avoid Respondent. R.C. believed that she had been sexually assaulted and filed a report with an appropriate law enforcement agency. R.C.'s testimony in this matter was clear, consistent, and credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Health, Board of Massage Therapy, finding that Mehdi Safdari violated Rule 64B7-26.010(1) and (3), Florida Administrative Code, Section 480.0485, Florida Statutes, and Subsection 455.624(1)(u), Florida Statutes (1999), as alleged in the Administrative Complaint issued on August 8, 2001; it is further RECOMMENDED that the Department of Health, Board of Massage Therapy, suspend Mehdi Safdari's license to practice massage therapy for a period of three (3) years, during which time he must present himself for examination and/or treatment by a psychiatrist licensed to practice medicine in the State of Florida, who, upon conclusion of his examination and/or treatment, shall opine to the Board of Massage Therapy that Respondent is not a threat to his patients as a prerequisite to Respondent returning to the practice of massage therapy; impose an administrative fine against Respondent of $3,000; and assess against Respondent the costs of investigating and prosecuting this case. DONE AND ENTERED this 31st day of May, 2002, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 31st day of May, 2002. COPIES FURNISHED: Scott L. Richardson, Esquire 126 East Jefferson Street Orlando, Florida 32801 Ruby Seymour-Barr, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Mail Station 39 Tallahassee, Florida 32308 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William H. Buckhalt, Executive Director Board of Massage Therapy Department of Health 4052 Bald Cypress Way, Bin C06 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The sole issue is whether Petitioner's application for a variance meets the criteria set forth in Section 131.016(e) of the Clearwater City Ordinances. Both parties submitted proposed findings of fact and conclusions of law. To the extent the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based on the most credible evidence, or not being a finding of fact.
Findings Of Fact The real property involved in the Petitioner's application is presently zoned RS-75, a category of single-family dwellings. This real property is a single lot, which is a portion of a large tract of land acquired by Petitioner some years ago for the purpose of residential development. The subject tract of land is the site of a model home. It is Petitioner's intention to use the home on this site as a model until such time as it is no longer needed as a model, at which time it will be sold. The adjacent lot is also owned by Petitioner and is also used as a model home. The area surrounding these model homes will be developed as a residential single-family subdivision. Petitioner intends to market this subdivision as a luxury subdivision, and the homes are therefore relatively large and luxurious. 6.. The lots within the subdivision, including the subject lot, were platted by Petitioner. Petitioner submitted a site plan and plans and specifications in application for a building permit to construct a home on the subject lot. Certain of the building plans and specifications show an optional hot tub. From the plans, it is unclear whether the construction would include the option. The plans also call for construction of a swimming pool. Respondent processed Petitioner's application for a building permit for a single-family dwelling on the subject lot. Respondent's zoning enforcement officer stamped approval on Petitioner's site plan (Petitioner's Exhibit "A", page 3), noting on the approval that a minimum side setback is six feet and an additional permit(s) would be required for pool and enclosure. Petitioner constructed a single-family dwelling on the subject lot pursuant to the plans and specifications for the home which it had submitted to Respondent, to include a wooden deck extending from the side of the model. The deck encircled a hot tub, which in turn was encircled by a fence. The deck, hot tub and fence extend to within one foot of the side property (set-a back) line. The fence is six feet high, but because the house is on a grade the fence measures approximately nine feet from the ground level. The maximum allowable height for a fence, absent a variance, is six feet above ground level. After construction of the dwelling, hot tub and fence, Respondent cited Petitioner for violation of the building setback requirements of the Code of Ordinances of the City of Clearwater, Section 131.033. The value of the improvements is between $6,500 and $7,000, and the cost of their removal and re-landscaping, etc., is approximately $3,000. Petitioner applied for a variance from the Board of Adjustment and Appeals on Zoning to permit the hot tub, decking and enclosure within the side setback area and for a variance to permit a fence in excess of the permitted height. Both variances were denied.
The Issue The issue is whether the Petitioner, Nelson Castillo, is entitled to be certified for a commercial pool/spa contractor’s license.
Findings Of Fact The Petitioner is an applicant for certification as a commercial pool/spa contractor. The Petitioner currently holds certification as a pool/spa servicing contractor. The Petitioner has held this certification for approximately eight years. The Petitioner, in his capacity as a certified pool/spa servicing contractor, was the subject of three administrative cases referred to the Division of Administrative Hearings. The cases were designated DOAH Case Nos. 04-2380PL, 04-2381PL, and 04-2382PL. As to all three cases, on September 20, 2004, the Petitioner executed a Stipulation (the Stipulation) that provided, in pertinent part: 3. Respondent [this Petitioner] neither admits nor denies the allegations of fact contained in the Administrative Complaints attached hereto as Exhibit “A.” * * * FINE AND COSTS: Respondent shall pay a fine in the amount of Ten Thousand and 00/100 dollars ($10,000.00) and costs in the amount of One Thousand Three Hundred Ten and 51/100 dollars ($1,310.51), for a total of Eleven Thousand Three Hundred Ten and 51/100 dollars ($11,310.51), to the Board. RESTITUTION: The Respondent shall pay restitution to Jose and Bernardina Rodriguez in the amount of Five Thousand One Hundred Seventy Five dollars ($5,175.00) and to Orestes and Lourdes Martinez in the amount of Six Thousand Five Hundred dollars ($6,500.00), in installments, as set forth below. * * * 6. EARLY TERMINATION OF PROBATION AFTER TWO (2) YEARS: After two (2) years of satisfactory probation appearances, if the Respondent pays in full all of the fine and costs described in paragraph 2 above and pays in full all of the restitution described in paragraph 3 above and furnishes satisfactory written evidence thereof to the Executive Director of the Board, then the Respondent’s probation shall terminate. * * * 12. Upon the Board’s adoption of this Stipulation, Respondent understands and agrees that this Stipulation constitutes disciplinary action within the meaning of Section 455.227(1)(f), and 489.129, Florida Statutes. [Emphasis and Italic in original.] The Stipulation was approved by the Respondent at its public meeting on November 11, 2004. Since that time, the Respondent has not taken any other administrative action against the Petitioner. Also considered at the November 2004 meeting, however, was the Petitioner’s application to become a certified commercial pool/spa contractor. The denial of the Petitioner’s application for that certification was the genesis of the instant case. The Petitioner freely, and with advice of counsel, executed and accepted the terms of the Stipulation. At the time the Stipulation was executed, the Petitioner understood the terms of the agreement. The Petitioner’s certification as a pool/spa servicing contractor is valid. The Respondent has taken no additional adverse action against the servicing certification. The Petitioner has not paid all the sums required by the stipulation. It is barely two years since the Final Order Approving Settlement Stipulation was entered. The Petitioner’s certification as a pool/spa servicing contractor was disciplined as a result of the entry of the Final Order Approving the Settlement Stipulation. The scope of work that the Petitioner may perform pursuant to his certification as a pool/spa servicing contractor differs from the scope of work authorized by the certification sought in the instant matter.
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 that denies the Petitioner’s application for certification as a commercial pool/spa contractor. DONE AND ENTERED this 20th day of February, 2007, in Tallahassee, Leon County, Florida. S J. D. Parrish 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 20th day of February, 2007. COPIES FURNISHED: Claudel Pressa, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Warren Diener, Esquire Bared & Associates, P.A. The Atrium 1500 San Remo Avenue, Suite 248 Coral Gables, Florida 33146 G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
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.
Findings Of Fact Petitioner is the agency responsible for licensing and regulating pool contractors operating in the State of Florida. 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. 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. 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. 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. 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. 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. 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. The Customers obtained the construction permit. Respondent made all arrangements for site clearing and excavation. 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. Respondent made all arrangements for the laborers who appeared at the job site and was responsible for paying laborers. Respondent made arrangements for all inspections and for correcting any problems resulting from the inspections. 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.
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
