The Issue Whether Respondent violated Section 489.127(1)(f), Florida Statutes, as alleged in the Administrative Complaint filed against Respondent in this proceeding and should be disciplined.
Findings Of Fact At no time material to the allegations was Respondent licensed or certified as a contractor of any type by the Florida Construction Industry Licensing Board. On or about June 2000, Respondent entered into a written contractual agreement with Harold Knowles to construct a swimming pool at Mr. Knowles' residence located at 235 North Rosehill Drive, Tallahassee, Florida. The contract price for the swimming pool was $18,650.00. Mr. Knowles paid directly to Respondent $9,400.00. Respondent performed some work on the pool project and then stopped work on the project. Respondent failed to return to Mr. Knowles any monies received for the project. The homeowner was forced to pay out-of-pocket expenses to have a second, licensed pool contractor finish the pool that Respondent left unfinished. These expenses total in excess of $24,000.00. Respondent acknowledges that he had no license. Respondent testified at hearing along with his wife. It was clear that Respondent was sorry for his actions. He was unaware of the gravity of his acts. He does not have any financial resources, and a significant fine will not benefit Mr. Knowles. A substantial fine adversely impact Respondent's family more than Respondent.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: That Respondent be fined $500.00, together with the investigation and prosecution costs. DONE AND ENTERED this 18th day of February, 2002, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 18th day of February, 2002. COPIES FURNISHED: Patrick Creehan, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32388-2202 Robert Footman 2702 Lake Mary Street Tallahassee, Florida 32310 Gail Scott-Hill, Esquire Lead Professions Attorney Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0771 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
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
Findings Of Fact Petitioner is the state agency charged, in conjunction with the Construction Industry Licensing Board, with the responsibility to prosecute Administrative Complaints pursuant to Chapters 489, 455, and 120 F.S., and the rules promulgated thereunder. At all times material to the Administrative Complaint herein, Respondent was licensed as a certified pool contractor in the State of Florida, holding license number CP 0009588. At all times material hereto, Respondent was the qualifying agent for Pools by L. S. Rule. On August 12, 1987, Ms. Mary Tillotson forwarded a $1,200 check to Pools by L. S. Rule for pool repair work including replacing the existing pool skimmer and furnishing and installing one row of new tile and remarcite. Respondent estimated the job would require two weeks to complete. On August 24, 1987, Ms. Tillotson formally entered into a written contract with Pools by L. S. Rule to perform the aforementioned pool repairs at her residence of 2110 North 41st Avenue, Hollywood, Florida for a price of $2,330.00. The contract actually signed by the parties, which is the contract which governs this case did not specify a completion date or state that "time is of the essence" for the job; however, the Respondent was clearly aware as of August 11, 1987 that Ms. Tillotson wanted the pool repaired by approximately August 24 or 25. On August 24, 1987, an employee of Pools by L. S. Rule removed the old skimmer from Ms. Tillotson's pool and replaced it with a new skimmer the next day. There was no further work done on Ms. Tillotson's pool by Pools by L. S. Rule after August 25, 1987. Ms. Tillotson contacted the Respondent repeatedly and the Respondent informed her that he was having an employment problem, but would have someone come out the next day. Neither the Respondent nor any of his employees ever visited the Tillotson residence again, with the exception of a brief visit by one employee wherein no work was performed. Ms. Tillotson discharged the Respondent on September 10, 1987, fifteen days or roughly two weeks after the contract was entered into and approximately the date the pool was supposed to have been completed. Upon cancellation, Ms. Tillotson demanded a refund of her entire $1200 deposit. Ms. Tillotson contracted with Adonis Pools, on September 11, 1987 to perform the same repairs as she had requested of Respondent. The repairs were completed by Adonis within three days. During the time of the Tillotson contract, Respondent proceeded with the construction of approximately five pools and maintained a staff of five employees. The reason offered at hearing for failure to proceed with Ms. Tillotson's pool was that he had lost a key employee and there had been rain delays. On September 21, 1987, Ms. Tillotson wrote the Respondent and requested a refund of $920, a compromise amount less than the full $1200 deposit, reflecting what she believed accounted for the services and material already expended by Respondent and Pools by L. S. Rule. Respondent refused to refund any of the deposit unless the amount were compromised upon his terms and Ms. Tillotson refused to accept what she regarded as partial payment. Ms. Tillotson filed suit against Respondent in November, 1987. She was awarded a judgment for $875 plus $54 in court costs, in the County Court in and for Broward County, Florida on April 20, 1988. The Respondent did not pay Ms. Tillotson the award monies on the date of judgment. He had already spent some of her deposit elsewhere. The Respondent has since failed to refund any portion of the deposit. The efforts Respondent has expended to negotiate or pay the judgment do not reflect good faith attempts at full payment under the judgment. Frank Abbott is a certified general contractor and a registered Florida Architect. Mr. Abbott was retained and tendered by the Department of Professional Regulation (DPR) as its expert witness on the duties and responsibilities of contractors in the construction of pools; he was accepted as such over objection. It was Mr. Abbott's opinion that the Tillotson pool job should have taken one or two weeks, and upon the material in the DPR's investigative file, he concluded that abandonment by Respondent had occurred; that because the contractor accepted a deposit, failed to perform, and did not return any funds, there had been financial misconduct; and that therefore Respondent was guilty of gross negligence or incompetence. However, Mr. Abbott never spoke to Tillotson or Rule, never saw the area, the job, or assessed the weather conditions. He saw only a poor xerox copy of the photograph of the skimmer installation which was ultimately admitted as P-5. He offered no narrative of what constituted gross negligence as far as the skimmer job was concerned and merely offered his own legal conclusion that abandonment and financial mismanagement constitute incompetence or gross negligence. Some of his opinion was based on the way he operates his own contracting business, rather than upon general education, training, and experience in the contracting profession. He had personally supervised the building of only a few pools and only had connection with building eleven pools. He had never personally built a pool or done any pool work or received any specific pool training. In drawing his conclusions and in forming his opinion, Mr. Abbott also made assumptions with regard to characterizations in the DPR investigative file which were either not necessarily supported by the greater weight of the credible evidence as a whole as presented at formal hearing or which were extraneous to the issues in the specific case at bar. Petitioner presented no evidence of any kind bearing on the charge that Respondent failed to timely secure a building permit.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Construction Industry Licensing Board enter a final order dismissing the charges against Respondent under Sections 489.129(1)(j) and (m) F.S, finding him guilty of violating Sections 489.129(1)(h) and (k) F.S., and imposing a $1,750 fine. DONE and RECOMMENDED this 19th day of December, 1988, Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3312 The following constitute specific rulings upon the parties' respective proposed findings of fact (PFOF) pursuant to Section 120.59(2) F.S. Petitioner's PFOF 1-11 Accepted, and with minor modifications of style, are adopted. 12-13 Accepted in substance but modified to conform to the greater weight of the credible evidence. 14-16 The expert opinions of Mr. Abbott are recited within the Recommended Order (RO), but were of little assistance to the trier of fact since they were mostly rendered in terms of raw conclusions of law rather than contracting expertise. To the extent they are credible and supported by the greater weight of the factual evidence of record, they have been accepted in the RO. For the most part they have been rejected for the aforesaid reason and for the reasons set out in FOF 14 and the Conclusions of Law (COL). Respondent's PFOF 1-9, and 22 Accepted. 10-11 Out of chronological context and thereby misleading as to the record evidence; for this reason and for the reason they are subordinate to the facts as found, they are rejected. 12 Sentence 1 is accepted. Sentence 2 is also out of chronological context and thereby misleading as to the record evidence and for this reason and for the reason it is immaterial, it is rejected. 13-14 Rejected as stated as not supported by the record evidence as a whole and as set out in FOF 13. 15-17 and 20 Rejected as not PFOF but proposed COL. 18-19 and 21 (on page 3 and on page 4) are partially accepted in substance in FOF 14 but otherwise are rejected as mere argument of counsel or as unnecessary. COPIES FURNISHED: Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 G. W. Harrell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399 Donald N. Bensen, Esquire 301 Southeast 10th Court Ft. Lauderdale, Florida 33316 Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether the state certified pool construction license number CP C008904 and the state certified general contractor's license number CG C002481 of Joaquin Vazquez should be revoked.
Findings Of Fact Division A of the Construction Trade Qualifying Board held a hearing on September 15, 1976, pertaining to ten (10) charges of violating the Dade County building code against Respondent Joaquin Vazquez. At the completion of this formal hearing, Joaquin Vazquez was found guilty of eight (8) of the ten (10) charges. Charles W. Leavitt, Jr., Clerk of the Construction Trades Qualifying Board In Metropolitan Dade County, Florida, identified the minutes of the Board Meeting held on September 15, together with the charges as set forth in letters dated May 10, 1976, and August 19, 1976. Copies of these instruments were introduced into evidence without objection. The Respondent did not deny the charges at the hearing and had not appealed the finding of guilt of eight (8) of the ten (10) charges at the conclusion of the formal hearing on September 15, 1976. Briefly the charges (spanning the term from July 1, 1975 to June 29, 1976), finds and penalties are as follows: Charge 1.: Allowing permit to be applied for and taken out in Respondent's name in order for Angela J. Stevens and/or Sparkle Blue Pools to construct a swimming pool. Found guilty - letter of reprimand. Charge 3.: Similar to Charge 1 - found guilty - certificate to be suspended for one (1) year. Charge 4.: Failure to supervise, direct and control, the construction or installation of a swimming pool taken out in Respondent's name. Found guilty - one (1) year suspension to run concurrent with any other suspensions. Charge 5.: Similar to Charge 1 - found guilty - ninety (90) day concurrent suspension. Charge 6.: Similar to Charge 4 - found guilty - ninety (90) day suspension. Charge 7.: Similar to Charge 1 - found guilty - revo- cation of certificates. Charge 8.: Similar to Charge 4 - found guilty - both certificates be revoked. Charge 10.: Allowing a permit to be applied for and taken out in Respondent's name in order for Jack Goodman and/or Precision Engineering, Inc., to construct a swimming pool. Found guilty - letter of reprimand. An Administrative Complaint was filed by the Petitioner through its executive director on November 12, 1976, citing the hearing and the charges and the finding of guilt of Respondent and stating that the results of said formal hearing show a violation of Florida Statute 468.112(2)(a), willful or deliberate disregard and violation of applicable building codes or laws of the state or any municipality, cities or counties thereof. Therefore, the Board seeks to revoke the state certified pool contractors license number CP C008904 and state certified general contractors license number CG C002481 of Joaquin Vazquez, the Respondent. The Respondent did not deny the charges but presented an attack on the character and veracity of the witness, Angela Stevens, in four (4) of the charges against him. He cited the witness Angela Stevens' failure to abide by probationary requirements imposed for her acting as a contractor without a license. Furthermore, the Respondent offered his own and a witness, Mr. Gonzalez's, testimony to the fact that he was solicitated by Angela Stevens to make false testimony to the effect that Angela Stevens was an employee of his when in fact she had never been. The charges against the Respondent were brought subsequent to the charges brought against the witness Angela Stevens. The Respondent contends that the affidavits and testimony of Angela Stevens were no more than self serving statements made in her own behalf in an attempt to cover up her criminal intentions and that the charges and finding of guilt of the Respondent were based largely on the affidavit and testimony of said witness. Respondent further offered a medical report indicating that he was unable to work in the month of May, 1975, and further his testimony was that he was out of the country in mid June and July, 1975, in order to recuperate from high blood pressure attacks. Petitioner contends: the undisputed evidence presented in the finding of guilt of the charges involved in the prior hearing are sufficient to find Respondent guilty of violating Section 468.112(2)(a), Florida Statutes, and that Respondent's license should be revoked. Respondent contends: the witness against him was self serving and an attempt to cover up her criminal intentions; that he in fact supervised some of the jobs he was found guilty of not supervising; that he was ill some of the time and did not willfully violate the code. The proposed facts and conclusions of the parties submitted after the hearing herein have been considered in this Recommended Order.
Recommendation Suspend the licenses, No. CP C008904 and No. CG C002481, of the Respondent Joaquin Vazquez for a period not to exceed six (6) months. DONE and ORDERED this 31st day of May, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: David Linn, Esquire Post Office Box 1386 Tallahassee, Florida 32302 Jerome S. Reisman, Esquire 1515 Northwest 7th Street, #106 Miami Florida 33125 J. K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211
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 Whether Respondent's license as a registered pool contractor should be suspended or revoked or the licensee otherwise disciplined, for alleged violations of Chapter 489, Florida Statutes, as set forth in the Amended Administrative Complaint. This proceeding arises out of Respondent's alleged failure to remedy defects in a swimming pool that she built in 1981 which resulted in disciplinary action by the Leon County Contractor's Licensing and Examination Board; for failing to remedy defects in another pool that she built in 1981 whereby she allegedly made fraudulent representations and failed to honor a warranty; and for constructing a pool in 1982 after her Certificate of Competency had been revoked by the Leon County Contractor's Licensing and Examination Board. Respondent appeared at the hearing without counsel, and was thereupon advised of her rights and the procedures applicable to an administrative proceeding. She indicated that she understood such rights and elected to represent herself. At the hearing, Petitioner presented the testimony of nine witnesses and submitted 22 exhibits in evidence. Respondent testified in her own behalf, but did not submit any documentary evidence. Petitioner's Proposed Recommended Order has been fully considered, and those portions thereof not adopted herein are considered to be either unnecessary, irrelevant, or unsupported in law or fact, and are specifically rejected.
Findings Of Fact Respondent Laura H. Eubanks is a state registered commercial pool contractor who operates Eubanks Company Big Bend Pool Builders, Tallahassee, Florida. She was originally licensed in 1975 and remained licensed at all pertinent times relative to this proceeding, but her license was in a delinquent status as of July 1, 1983. (Petitioner's Exhibit 1) On May 2, 1981, Respondent entered into an agreement with Thomas V. and Barbara J. Mulqueen, Jr., 6719 Johnston Loop, Tallahassee, Florida, for the sale and installation of a swimming pool at their residence for the amount of $6,725.63. On September 22, 1981, Mr. Mulqueen filed a complaint against Respondent with the Leon County Contractors Licensing and Examination Board. Mr. Olin Williams, Supervisor of Inspections for the Board, investigated the complaint and found that staples were protruding underneath the pool liner, that a water pipe leaked at the pump, apron or deck concrete cracks were caused by curing tension at inside corners, about 35 percent of the concrete deck was darker in color than the remainder of the deck, an improperly placed outlet for the pool drain permitted seepage under the pool liner, and that repairs to a neighbor's fence and the owner's driveway had not been completed. He classified those discrepancies as pertaining to workmanship. In addition, he determined that there had been a violation of the health code in that a septic tank had been broken by workmen and waste sewage had flowed into the pool excavation for a period of several days. The owner was seeking to have Respondent correct the problems and complete the job. Inspector Williams contacted the Respondent on October 12, 1981, and, although she told him that she would come to his office that day and bring the individual responsible for the job, she failed to do so. No final inspection of the work had been requested by Respondent. (Testimony of Williams, Petitioner's Exhibit 4) By letter dated November 12, 1981, Respondent was advised by the Leon County Contractors Licensing and Examination Board that a formal hearing had been scheduled on the complaint for December 3, 1981. A copy of the complaint and the Building Inspector's Report was enclosed, and she was advised of her right to be represented by counsel at the hearing. In fact, the hearing by the Board was held on December 4, 1981, at which the Mulqueens were present and presented their complaint, and Inspector Williams informed the Board of his investigation and subsequent actions. Respondent was not present at the hearing, although the certified mail receipt reflected the signature of "L. H. Eubanks." At the December 4th meeting, the Board voted to suspend Respondent's license with the provision that the Board would not consider reinstatement unless repairs to the Mulqueen pool were made within thirty days after December 9, 1981, and if not, then the Board would consider permanent revocation. (Petitioner's Exhibits 5-6) By letter of January 12, 1982, the Board advised Respondent of the suspension of her license as a result of a hearing held on December 3, 1981. (No explanation was provided by Petitioner as to the discrepancy in the minutes of the Board meeting which reflected a date of December 4, 1931, and the letters sent to Respondent which stated that the hearing had been held on December 3, 1981.) Respondent was advised in the letter that the Board would not consider any application for reinstatement of Respondent's license unless repairs were effected to the Mulqueen pool within thirty days from receipt of the letter. She was further advised that if they had not been so completed, the Board would consider permanent revocation of her license, but if they had been completed within the required time, the Board would consider a written application for reinstatement at its meeting scheduled for January 28, 1982. This letter was hand delivered to Respondent's place of business on January 18, 1982. On January 20, 1982, Respondent telephoned Inspector Williams and stated that she would seek legal counsel and be at the Board meeting on January 28. She indicated to him that she had had some personal problems due to the illness of her sisters, and also had been the subject of theft (although a memo of Williams reflecting the telephone call was dated January 20, 1981, it was apparent from his testimony that the call was made on January 20, 1982.) (Testimony of Williams, Petitioner's Exhibits 7, 18) The Licensing Board met on January 28, 1982, and determined that Respondent's license would be revoked on February 26, 1982, if the previously noted defects had not been corrected. By letter dated February 3, 1982, she was advised by the Board of this fact and that the Board would meet again on February 25 concerning the matter. On February 25, the Board revoked Respondent's license. She was not present at the meeting. She was advised of this action by Letter of the Board, dated March 4, 1982. (Petitioner's Exhibits 2, 8-10) By contract dated July 15, 1981, Respondent agreed to install a swimming pool for Mr. and Mrs. Rex Tyler at their residence in Tallahassee, Florida, for the sum of $23,784.91. The project included installation of aluminum fencing and a brick wall, together with various items of pool equipment. The agreement provided that the contractor would remedy any defects in workmanship without cost, provided written notice was provided within one year after connection of the filter. After the pool was built and paid for by the Tylers, it was found that several problems existed. A pool light continuously went on and off improperly, the motor of the pool sweep leaked, the bottom drain was not adequately secured and would be knocked off by operation of the pool sweep, step tiles were not complete, one tile popped loose, and water faucets leaked. The primary problem, however, was that the main drain would not circulate water on the bottom of the pool. The Respondent was notified of these problems by the owners and repaired some of them over the course of time, but was unable to fix the pool light or the main drain. In this regard, Respondent called upon Walter Swans, another licensed pool contractor, who determined that both the light and the drain were stopped up with "marble" finish. The Tylers were obliged to spend $312.74 to pay Swann's bill and for a plumber to repair the leaking faucets. (Testimony of McCausland, A. Tyler, Clemens, Swann, Petitioner's Exhibits 21-23) By agreement dated May 28, 1982, Respondent contracted with Charles and Brenda Short for the installation of a swimming pool at 3249 Baldwin Drive West, Tallahassee, Florida, for a price of $6,809.20. During the course of construction, Mr. Short inquired of Respondent as to the need for a building permit. She initially told him that she would get one, but later when Short asked her again about the matter, she told him that if he didn't want one it would be all right with her because otherwise it would hold up completion of the pool. Short told her that that was all right with him. He was not familiar with permit requirements. After the walls of the pool had been finished, heavy rains caused the sides of the pool to partially collapse. Inspector Williams was notified of the problem and he found that the work was being done without the required permit. He therefore posted a stop work order at the construction site. On September 1, 1982, Respondent entered a plea of nolo contendere to a charge of contracting without a license in violation of Section 489.127(1)(f), Florida Statutes, in the Leon County Court, Case No. 82MM2702. The Court withheld adjudication of guilt and imposition of sentence and placed the Respondent on probation for a period of six months. The Shorts had paid Respondent a total of $4,000 on the contract price at the time work was stopped on the pool project. They eventually settled the matter with Respondent by agreement. (Testimony of Brenda Short, Charles Short, Courtney, Williams, Petitioner's Exhibits 12, 19-20) In a civil proceeding filed by the Mulqueens against Respondent in the Leon County Circuit Court, Case No. 82-68 the parties entered into a joint stipulation of settlement under which Respondent agreed by promissory note to pay the Mulqueens the sum of $2400 with interest by 24 monthly payments of $100.00 commencing January 1, 1983. On January 27, 1983, the Leon County Contractors Licensing Examination Board reinstated Respondent's license, subject to a 12 month probationary period. By letter October 24, 1983, Mr. Mulqueen advised the County Building Inspector that Respondent had only made two payments on the settlement agreement as of March 1983. (Testimony of Courtney, Petitioner's Exhibits 13-16) Section 2C, Leon County Ordinance No. 74-22, provides that its Contractors Licensing and Examination Board has the duty to suspend or revoke "authorized contractor" certificates for violation of the ordinance, violation of the County Building and Zoning Codes, or violation of any other state, municipal, or county law upon due cause shown to the Board after a hearing. Section 1E provides that the Board must provide the certificate holder with written notice of its intent to consider the revocation or suspension of the certificate, and afford him a hearing before the Board, and that all decisions concerning suspension of revocation of certificates shall be in writing. (Petitioner's Exhibit 17) Respondent testified at the hearing that she had had continuing financial problems commencing a number of years ago when some of her employees were building pools "on the side" with her materials. During the time that problems arose in connection with the Mulqueen and Tyler pools, she was preoccupied with serious personal problems involving her sisters, one of whom died of cancer and the other having been in a mental hospital. She acknowledged that she should have corrected the customer complaints and regrets that she did not do so. Respondent further stated that although she attempted to pay her note to the Mulqueens, her financial situation was such that she was unable to continue meeting the payments. Although she received notice of the various hearings before the Leon County Contractors Licensing and Examination Board, she testified that she had not been thinking of the consequences and didn't even read the letters of notification which were sent to her. She also acknowledged entering into the contract with the Shorts because she was "desperate" for money to pay her various creditors. (Testimony of Eubanks)
Recommendation That the Construction Industry Licensing Board enter a final order suspending the registration of Respondent Laura H. Eubanks as a pool contractor for a period of three months. DONE and ORDERED this 29th day of December, 1983, in Tallahassee, Florida. THOMAS C. OLDHAM 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 29th day of December, 1983. COPIES FURNISHED: James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Stephanie A. Daniel, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Laura H. Eubanks 1421 North Monroe Street Tallahassee, Florida 32303 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, vs. CASE NOS. 21738, 20754, 25386 LAURA H. EUBANKS DOAH CASE NO. 83-2362 737 North Monroe Street Tallahassee, Florida 32303 Respondent. /
