Findings Of Fact The Subject Property. The Applicant is the owner of approximately 799.58 acres of land (hereinafter referred to as the "Country Club Property"), located on Loch Rane Boulevard, Clay County, Florida. In the early part of 1987, the Applicant applied to rezone the Country Club Property as a planned unit development district (hereinafter referred to as a "PUD"). The Country Club Property is to be developed in phases. At issue in this proceeding is that portion of the Country Club Property other than Unit One, which consists of lots 1 through 295. Development of the Property; Government Action Relied Upon by the Applicant. Prior to approving the rezoning of the Country Club Property requested in the early part of 1987, Clay County advised the Applicant that it would be required to commit to resignalize and expand the Loch Rane/Blanding Boulevards interchange as a condition to Clay County approving the rezoning of the Country Club Property as a PUD. Clay County approved the requested rezoning of, and the master land use plan for, the Country Club Property on March 24, 1987. The master land use plan specifies that the Country Club Property will include development of the following: (a) up to 599 single-family dwelling units within the residential portion; (b) ten acres of commercial uses, including retail shops, a day-care center and a restaurant; (c) a sales center; and (d) a golf course and club facilities. Engineering plans for phase one of the proposed development were submitted to Clay County in 1987. As part of the engineering plans, the Applicant obtained permits from the Army Corps of Engineers, the St. Johns' River Water Management District and the Florida Department of Environmental Regulation. The plat for phase one of the Country Club Property was submitted to Clay County and on May 12, 1987, Clay County approved the final plat for phase one. In April, 1989, the Applicant applied for building permits for construction of the golf course clubhouse, pool facilities and the golf cart storage barn. Permits for these facilities were issued by Clay County in October, 1989. In 1991, engineering plans for phase two of the Country Club Property were submitted to Clay County. They were approved effective January 1, 1992. On February 12, 1993, Clay County issued a Vested Property Certificate for phase one of the development, Lots 1 through 295 of Unit One, pursuant to Section 20.8-6 of the Vested Rights Review Ordinance of Clay County, Florida. The Applicant's Detrimental Reliance. In reliance on Clay County's actions in approving the PUD rezoning and accompanying master plan and the engineering plans for phase one and phase two, the Applicant constructed master infrastructure improvements for the project. Improvements have included drainage, water and sewer systems, a master road system designed and sized to serve the entire development at a cost of approximately $4,972,670.00. These improvements were made between November, 1988 and April, 1990. The Applicant has also constructed the entry features for the Country Club Property, master recreational facilities, including an eighteen-hole golf course, golf course clubhouse, pool and tennis facilities and a sales center. Total costs of these improvements were approximately $7,224,917.00. These improvements were made between November, 1988 and April, 1990. Finally, the Applicant has resignalized and expanded the Loch Rane/Blanding Boulevards interchange. The cost of these improvements was approximately $72,000.00. These improvements were made between October, 1991 and January, 1992. Rights That Will Be Destroyed. Pursuant to the Clay County 2001 Comprehensive Plan, the portion of Blanding Boulevard impacted by the Country Club Property development does not have sufficient capacity to develop the property as proposed. To comply with the comprehensive plan will require considerable delays in completion of the project which will result in a substantial adverse financial impact on the Applicants. Procedural Requirements. The parties stipulated that the procedural requirements of the Vested Rights Review Process of Clay County, adopted by Clay County Ordinance 92-18, as amended by Clay County Ordinance 92-22 have been met.
The Issue The issue in this case is whether the Respondent, Dominick A. Solitario, committed the offenses alleged in the Amended Administrative Complaint and, if so, what disciplinary action should be taken.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made. At all times pertinent to this proceeding, Respondent, Dominick Solitario, was licensed as a certified pool contractor in the state of Florida, having been issued license no. CP CA17558. At all times pertinent to this proceeding, Respondent was the licensed qualifying agent for Jade Pools, Inc. Sometime around February of 1988, Respondent contracted with Michael and Linda Skidd to remarcite the swimming pool at the Skidd's home in Coral Springs, Florida. The contract price for the remarciting of the Skidd's pool was $2000.00. Respondent has been paid in full for this work. There is no evidence that there were any leaks in the Skidd's pool prior to the time the work was undertaken by Respondent. At the time the work was begun, one of the Respondent's employees discovered an expansion plug that had been inserted in the main drain. The employee inquired as to whether the Skidds had experienced any problems with the drain. The Skidds denied having any problems. The evidence presented at the hearing was inconclusive as to whether the main drain was working properly. At the time the Respondent began work under the contract, the Skidds were using a "creepy crawler" to clean the pool. This device required the main drain to be shut off. While Mrs. Skidd testisfied that she thought the main drain was working properly, she admitted that her husband was more familiar with the cleaning and mechanical aspects of the pool. Mr. Skidd did not testify. Respondent contends that Mr. Skidd was present at the time the plug was removed from the main drain and that the condition was brought to his attention. However, it does not appear that either Respondent or Mr. Skidd knew why the drain was plugged or the significance of the situation. Respondent proceeded with his contractual work without conducting any tests to determine whether there was a leak in the main drain. When the work was completed, the workers directed the Skidds not to use their main drain. No explanation was given for this instruction. After the work was completed, the Skidds turned on the main drain and lost approximately four inches of water from the pool in a relatively short time. The Skidds turned off the drain and called Jade Pools. An employee of Jade Pools came out and inspected the premises. He advised the Skidds not to use the main drain, but instead to use their "creepy crawler." The Respondent's employee indicated that there was a leak in the main drain. It is not cler how he reached that conclusion. In order to complete the work on the Skidd contract, Respondent's employees were required to install a pressure release valve near the pool's main drain by drilling through the bottom of the pool. The hole for this valve was drilled several inches away from the main drain and its plumbing. Petitioner suggests that the Respondent's employees may have punctured the main drain or its plumbing when this hole was drilled. However, no persuasive evidence was introducted to prove this allegation. Respondent contends that the pool was improperly constructed and/or that the main drain line had been previously damaged and plugged shut to avoid detection of the leak. In order to perform the contracted work, Respondent's employees unplugged the drain and the alleged preexisting leak became evident. Respondent has inserted a plug into the main drain and claims that the pool is now in the same condition it was when he began his work. Respondent has refused to repair the main drain or perform any additional work unless he is paid for it. At the time that Respondent first proposed to enter into a contract with the Skidds, he was told by the Skidds that there was a suction leak at the pump. In retrospect, Respondent contends that this suction leak confirms the preexisting problem with the main drain. No conclusvie evidence was presented to establish why the pool is leaking. As of the date of the hearing, the Skidds are still unable to use their main drain. The Petitioner did not present persuasive evidence to establish that Respondent was responsible for the leak in the Skidds' pool. While it is possible that the Respondent's employees caused the leak when they drilled the hole for the pressure release valve, an equally likely explanation is that there was an existing problem that had been obscured by the prior plugging of the main drain. On or about June 29, 1987, Respondent contracted with Anthony Gallagher to construct a swimming pool and a deck at Mr. Gallagher's home in Coral Springs, Florida for the contract price of $17,800.00. Respondent has been paid in full for this work less $100 for damage caused during construction. The contract with Mr. Gallagher called for Respondent's company to top the existing patio slab and tie it into a newly added patio deck surrounding the pool. The building permit for this work was pulled by Jade Pools. Although the work on the Gallagher deck and pool was completed sometime in late 1987 or early 1988, the pool and deck have still not passed final inspection by the City. The local building officials have refused to approve the final inspection on the Gallgher's deck because of the excessive slope from the back of the house to the pool. The pitch of the deck constructed by Respondent's company from the back of the Gallagher's house to the pool is very severe, effectively rendering a portion of the deck unusable. A table cannot sit flat on this portion of the deck because of the slope. The Respondent's construction of a deck with such a severe slope that it is incapable of passing final inspection constitutes incompetency in the practice of contracting. In order to provide a usable deck, Respondent should have ripped out the existing deck or placed the pool at a higher elevation. Respondent contends that his contract did not call for him to rip out the existing deck, but only to top it. He claims the existing deck that was topped had a similarly severe pitch. Nonetheless, Respondent is responsible for insuring that his final product is functional and able to pass inspection. Respondent has failed to take any remedial action to obtain a successful final inspection. During construction, the Gallaghers, on several occassions, expressed displeasure with the deck and its excessive slope in some areas. On two occasions, Respondent sent his workmen out to correct certain aspects of the construction that the Gallaghers found unacceptable. Ultimately, the homeowners paid the Respondent in full and instructed Respondent to stay off their property. Although Respondent's presentation was somewhat unclear, he appears to argue that these actions by the Gallaghers relieve him of any liability for his work under this contract. However, the evidence established that the Respondent was never able to obtain a successful final inspection of his work at the Gallagher home. This failure is the direct result of the excessive pitch in the patio he constructed. While the Gallaghers have paid the full amount of the contract and are apparently using the pool and patio, these facts do not relieve Respondent from responsibility for the incompetently constructed deck. The City of Coral Springs requires a deck electrical inspection to insure that all the steel in the deck is on the same electrical field (same electrical bond) as the pool. Jade Pools failed to call for this electrical bond inspection before pouring the Gallagher's deck. Ultimately, the city building officials required the Respondent's company to expose a portion of the steel in the deck to confirm that the pool was properly bonded. This test indicated that the pool was in fact properly bonded. On or about August 10, 1988, Respondent contracted with Kevin Fusco to construct a swimming pool and deck at Mr. Fusco's home in Boca Raton, Florida for a total contract price of $10,030.00. Respondent has been paid in full under this contract. Jade Pools obtained the building permit for the Fusco's pool. Therefore, Respondent's company was responsible for obtaining all of the inspections for the construction, including the final inspection. Prior to the time that work was begun on the Fusco contract, Respondent's employees inspected the property and were advised as to some existing problems with drainage in the backyard of the house. The Fusco's lot was designed to drain from back to front. A berm runs behind the Fusco property and causes water to drain through the backyard. On some occasions prior to construction, this drainage situation resulted in standing water against the back of the house. The installation of the Fusco's pool seriously affected the drainage plan for the property. After the pool was installed, there was often standing water all around the deck following a rain. After construction was started and the deck was formed out, the county refused to give approval for pouring the deck because of anticipated problems with drainage in the backyard. One of Respondent's employees advised the Fuscos that if they removed approximately three feet of soil from around the deck, the county would allow them to proceed with pouring the deck. Based upon this recommendation, the Fuscos entered into a contract with a company recommended by Respondent. That company removed approximately six or eight feet of soil all around the deck and installed a rock bed in the area. The cost of this removal was in addition to the contractual price agreed to between Respondent and the Fuscos and was borne by the Fuscos. As indicated above, the installation of the pool greatly exacerbated the drainage problems that previously existed on the property. Respondent did not warn the homeowners prior to construction to expect this result nor did the Respondent take steps to preclude these additional drainage problems. While Respondent contends that the Fusco's property was inappropriately graded prior to the time the work was initiated, Respondent never brought this fact to the attention of the homeowners until after the pool was installed and the increased drainage problems became evident. After the work was completed, the county inspectors advised the homeowners that the pool did not pass final inspection because of drainage problems caused by the pool and deck. By the time the Fuscos found out the pool had not passed final inspection, Respondent had been paid in full under the contract. The Fuscos contacted Jade Pools, which refused to take any corrective action. The Respondent claimed that drainage problems were not part of his company's responsibility and refused to return to the property to correct the problem even though the pool had not passed final inspection. The Fuscos hired an engineer to design an acceptable solution to the drainage problem and arranged for the completion of the work at their own expense. In accordance with this solution, the homeowners installed a series of french drains around the back yard in order to try to get the water to percolate into the ground. After this additional work was completed, the pool passed final inspection by the county. It was approximately one year after Jade Pools finished its work before the final inspection was passed. The Fuscos continue to experience increased drainage problems on their property as a result of the installation of the pool and deck. These problems include standing water around the deck after a heavy rain and, in some instances, an overflow of water into the pool. While the Respondent was installing the Fusco's pool, Respondent was concurrently installing a pool at the house next door. There has been no drainage problems on the property next door because the elevation on that house is higher. The Fusco's pool was actually installed at a level that was at or below the surrounding ground level. The problems associated with such an installation were never explained to the homeowners prior to the time the work was commenced. Respondent contends that this situation was necessary because of the existing elevations of the house and lot. He says that the pool and deck had to be installed in a manner that provided a four inch step down from the house and also matched the existing slab. The drainage problems could have been minimized by swaling out from the pool area to the side of the house. While Respondent contends that such "landscaping" efforts were not part of his contract, he should have not undertaken the work unless he could adequately deal with the drainage problem and ensure that the final installation would pass inspection. The pool contractor is responsible for insuring that, after the pool is built, proper drainage is obtained around the pool. The efforts undertaken by the Respondent were insufficient to deal with the resulting drainage problems and constitute incompetency in the practice of contracting.
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 finding Respondent guilty of violations of Section 489.129(d) and (m), Florida Statutes, in connection with the Fusco and Gallagher contracts, issuing a reprimand and imposing a fine on Respondent in the amount of $2,000.00 for having committed these violations. In addition, Respondent should be placed on probation for two years and required to reimburse the Fusco's for the money they have expended to correct the drainage problems caused by Respondent. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 8th day of February, 1991. J. STEPHEN MENTON 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, 1991.
Findings Of Fact Atlas Pools, Inc., contracted with Mr. and Mrs. Jerry Thompson in May, 1978, to construct a swimming pool on the Thompson property for a completed price of $5,940. Work ceased in mid-July, 1978, by which time the Thompsons had paid Atlas Pools $5,643. The Thompsons hired another pool contractor to complete the project at additional cost in excess of $2,000. Atlas Pools contracted with Mr. and Mrs. Dennis Perry in June, 1978, to construct a swimming pool on the Perry property for a completed cost of $5,770. Work ceased in late July, 1978, after the Perrys had paid Atlas Pools $5,474.50. The Perrys completed the project through self-help and use of another pool contractor at a further cost of $1,566. Atlas Pools contracted with Mr. and Mrs. Thomas Wolters in June, 1978, to construct a swimming pool on the Wolters' property for a completed cost of $6,980. Work ceased in mid-July, 1978, after the Wolters had paid Atlas Pools $6,631. The Wolters completed the pool through self help at an additional cost in excess of $1,300. Atlas Pools contracted with Mr. and Mrs. Albert Sentman in June, 1978, to construct a spa on the Sentman property for a completed cost of $5,500. The Sentmans paid Atlas Pools a $550 deposit after which the spa was delivered but not installed. The Sentmans completed the project by other means at an additional cost of $6,137. Respondent abandoned each of the above projects without notice to the customer, who ultimately learned of the company's bankruptcy from a third party source. Each of the four projects described above was completed at a final cost to the purchaser in excess of $900 over the contract price. The company filed a Voluntary Petition of Bankruptcy with the U.S. District Court, Middle District of Florida, on August 1, 1978. Thereafter, on March 7, 1979, the Brevard County Contractors Licensing Board revoked the certificate held by Atlas Pools for a minimum period of one year, with the requirement that financial rehabilitation be demonstrated as a condition of reinstatement. At the time of bankruptcy, Respondent was president of Atlas Pools, Inc., and owned one-third of the stock. He was, at all times relevant to this proceeding, the company's only licensed pool contractor. He is currently employed in pool construction work by a licensed contractor. Proposed findings of fact were submitted by the parties. To the extent these proposed findings have not been adopted herein or are inconsistent with the above findings, they have been specifically rejected as irrelevant or not supported by the evidence.
Recommendation Based on the foregoing, it is RECOMMENDED: That Pool Contractor's License No. RP 0018040 issued to Crawford L. Grove, be suspended until Respondent demonstrates compliance with the financial responsibility standards established by Section 489.115, Florida Statutes (1979). DONE AND ENTERED this 29th day of October, 1980, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 29th day of October, 1980.
The Issue Whether Respondent discriminated against Petitioners in violation of the Florida Fair Housing Act (Florida FHA); and, if so, the relief to which Petitioners are entitled.
Findings Of Fact Sun Lake is an apartment complex located in Lake Mary, Florida. Ms. Pollock is the property manager of Sun Lake, and has been employed in this capacity for approximately seven years. Mr. Green is an African-American male. The brothers leased and resided in an apartment at Sun Lake from 2012 through July 31, 2017. Mr. Green asserted that Jude is disabled, however, no other evidence to support that assertion was provided. Mr. Green alleged that Respondent failed to provide Petitioners accommodations that were requested in December 2016: change their apartment locks to the brothers’ “own private locks”; stop the trash service pick-up to the brothers’ apartment; and establish a community garden within the Sun Lake property. It is undisputed that Respondent ceased the trash service pick-up, but the evidence was insufficient to support whether the apartment locks were or were not changed. There was insufficient evidence to support a finding of fact regarding the establishment of a community garden within the Sun Lake property.5/ Mr. Green suggested a December 2016 police report was fraudulent because a name on the report was incorrect, and he had not filed a police complaint regarding noise above their apartment. The evidence was insufficient to support a finding of fact on this allegation. Mr. Green admitted to withholding rent on several occasions as a method to have the requested accommodations secured. Ms. Pollack confirmed there was a valid lease agreement between Sun Lake and Petitioners. Further, she provided that Respondent did, in fact, stop the trash service pick-up to their apartment as Petitioners requested. Ms. Pollack lacked specific knowledge regarding whether Petitioners’ apartment door locks were changed, but offered that Respondent must maintain an apartment key. This is done in order to secure access to each apartment in a timely manner for health and safety reasons. Respondent’s maintenance staff would not enter any apartment without a specific request for service. Ms. Pollack provided the multiple dates on which Petitioners’ rental payments were late. Petitioners and Respondent became involved in eviction proceedings in circuit court. At some point, Petitioners and Respondent entered a settlement stipulation that Petitioners would vacate their apartment earlier than their lease agreement, and pay the rental fees and other associated fees to Respondent. Following Mr. Green’s testimony, and both the direct and cross-examination testimony of Respondent’s sole witness, Ms. Pollock, Mr. Green moved to dismiss the case. No credible evidence was presented that Respondent discriminated against Petitioners in any fashion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing Petitioners’ Petition for Relief in its entirety. DONE AND ENTERED this 21st day of May, 2019, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 2019.
Findings Of Fact Lake Waldena Resort is a mobile home park as defined by Section 723.003(6), Florida Statutes. It is located at Route 4, Box 300, Silver Springs, Florida 32688. The mobile home park is subject to regulation pursuant to Section 723.002(1), Florida Statutes. That law is administered by the Petitioner. All Respondents are mobile home park owners as defined by Section 723.003(7), Florida Statutes. The Hilgemans are park owners and have been at all relevant times for this dispute. At the times relevant to the inquiry Pat Montgomery was the park operator, which equates to park owner under the terms of the statute. Pat Montgomery concluded her affiliation with Lake Waldena Resort in May 1989. Pat Montgomery, as the park operator, who had been employed by Donald L. Hilgeman, collected the rent from the mobile homeowners who had lots within the park. She attended any problems that the mobile homeowners confronted her with. She ordered supplies for the operation of the mobile home park. She sold mobile homes for use in the park and ordered them for sale. She was involved with the provision of carports and screen rooms associated with mobile homes in the park. She was responsible for the payroll and basically everything that transpired in the day-to- day operations in the mobile home park. The Hilgemans had limited affiliation with the park. Mr. Hilgeman was involved with doing physical labor at the park and was Montgomery's employer. On July 26, 1988, a notice of lot rental increase was mailed to all tenants in the Lake Waldena Resort Mobile Home Park. This notice was provided in accordance with Rule 7D-32.002(1), Florida Administrative Code. The basis for this increase was associated with the economic pressures on the park owner brought about by increases in real estate taxes, insurance costs, sanitation fees, other fees payable to the Petitioner, and wage increases. An exemplar of the form notice which had been sent out to each mobile home owner may be seen in Respondents' Exhibit 5 admitted into evidence. All notices were dispatched by U.S. Mail. As contemplated by Rule 7D-32.002(4), Florida Administrative Code, official notice was considered to have been made within five days of July 26, 1988, which corresponded to July 31, 1988. A meeting within 30 days of the provision of notice as described in Section 723.037(3), Florida Statutes, would equate to August 30, 1988. The proposed lot increase was from $78 to $88. At the time of notification of the lot increase Lloyd Carter was the vice president of the homeowners' association at Lake Waldena Resort. He was residing in the mobile home park. Gordon Gibson was the president of the homeowner's association who, at the moment of the lot increase, was residing in Minden, Ontario, Canada. Mr. Carter picked up a copy of the notice of lot rental increase from the office at the mobile home park shortly after the notice had been prepared on July 26, 1988. He then called Mr. Gibson in Canada and explained the particulars of that notice. At that time, Mr. Carter stated no concerns to Mr. Gibson about the notice of lot rental increase. He merely informed Mr. Gibson of the pendency of the lot rental increase. Under ordinary circumstances the' expected time for delivery of mail dispatched from the United States to Canada was in the neighborhood of five to seven days; however, in August 1988, the Canadians were undergoing a postal strike which delayed matters. Nonetheless, Mr. Gibson received his copy of the notice and on August 4, 1988, he wrote Mr. Hilgeman. A copy of that correspondence may be seen as Respondents' Exhibit 6 admitted into evidence. Mr. Gibson informed Mr. Hilgeman in that correspondence that he wished to have a meeting to discuss the lot rental increase. The meeting would be attended by a committee of not more than four persons under the direction of Mr. Carter. He asked that the meeting be held at a convenient time prior to August 26, 1988. The basis for Mr. Gibson's action in which he requested a meeting with the park owner was through the process of discussion with his board of directors in independent conversations in which it was decided that a meeting was desired. A meeting to discuss the reasons for the lot rental increase was not held before August 26, 1988, or before August 30, 1988. When Mr. Gibson sent his August 4, 1988 correspondence he was aware of the problems of the postal strike in Canada and the delay that this might promote in the receipt of his letter by the park owner. He had not instructed Mr. Carter to make any contact with the park owner prior to the park owner's receipt of the correspondence which outlined the fact of Mr. Carter's duties as chairman of the committee. The return receipt correspondence from Gibson to Hilgeman dated August 4, 1988, was received by, Pat Montgomery in mid August 1988. By correspondence of August 22, 1988, addressed from Mr. Hilgeman to Mr. Gibson, a copy of which may be seen as Respondents' Exhibit 7 admitted into evidence, Mr. Hilgeman demanded of Mr. Gibson that he confirm that a majority of the Lake Waldena residents had in fact selected Mr. Gibson to represent them. Reference is made in that letter to section 723.078(2)(b), Florida Statutes, having to do with the requirements for bylaws in homeowners' associations. This request of Mr. Gibson is not a prerogative of Mr. Hilgeman as park owner in dealing with the issue of the conduct of the meeting. Nor is it available to Mr. Hilgeman to remind Mr. Gibson that he had to comply Section 723.037(1), Florida Statutes or Section 723.076(1), Florida Statutes. To the extent that those provisions have any relevance to the homeowners' association, the former pertains to standing to challenge increases in such things as the lot rental amount through the homeowners' association, something that the park owner is not called upon to advise the homeowners' association about. This question of standing does not enter in to the matter of the ability to represent mobile home owners at a meeting pursuant to Section 723.037(3), Florida Statutes, for purposes of discussing the lot rental increase. Likewise, the latter statutory reference that describes the idea of incorporation of a homeowners' association and the need to notify the park owner is not associated with the meeting to discuss the purposes of the lot rental increase. On the other hand, when Mr. Hilgeman referred to Rules 7D-32.003(1) and 7D-32.004(2), Florida Administrative Code, those are provisions which have some significance in considering the matter of a meeting to discuss a lot rental increase. Rule 7D-32.004(2), Florida Administrative Codes, states: If requested to do so by the park owner or subdivision developer, the committee shall certify that it has been selected as described Rule 7D-32.003, Florida Administrative Code. The certification shall include a certificate of all members of the committee attesting to its proper formation under the statute in these rules. Significantly, that provision does not describe the relationship of such a request to the obligation of the park owner to meet within 30 days of notice of lot rental increase as contemplated by Section 723.037(3), Florida Statutes. None of the principals, given the statutory scheme and rules that were designed to effectuate the purposes of the statute, could have reasonably understood on what terms the park owner was entitled to make this request taking into account the complications of corresponding back and forth between the United States and Canada in the midst of a mail strike, the consequence of which made it unlikely that the meeting would take place on or before August 30, 1988. In the conclusions of law a discussion is made of the effect of the request for certification and whether it tolls the time for conducting the informational session to discuss the reasons for the lot rental increase. The envelope for the August 22, 1988 correspondence was stamped in the United States on August 23, 1988, in Bradenton, Florida. It also bears a date of August 29, 1988, which is seen as a part of the verification of receipt of that letter in Canada. Mr. Gibson received the Hilgeman correspondence of August 22, 1988 on August 29, 1988. Mr. Carter also received a copy of the August 22, 1988 correspondence by Mr. Hilgeman and had a discussion with Mr. Hilgeman about that letter sometime around August 23 or August 24, 1988. That conversation took place in the mobile home park. This did not lead to the resolution of the certification request made by Mr. Hilgeman to the homeowners' association. It was left to Mr. Gibson to take care of the response to the request for certification. In the conversation being described, between Hilgeman and Carter, Carter made it known that he intended to complain to the Petitioner about the park owner not meeting with the homeowners' committee within 30 days of notice. A complaint was made as may be seen in a copy of that complaint which is Respondent's Exhibit No. 2 admitted into evidence. That complaint was sent out on August 26, 1988. The basis for the homeowners' association complaining to the Petitioner was related to their concern that they preserve their right to have the meeting even if it transpired beyond the 30 days contemplated in the statute. Notwithstanding the complaint's existence, Mr. Gibson went forward with his attempts to try to satisfy Mr. Hilgeman concerning certification and did so with the assistance of Victor Davis a member of the board of directors of the homeowners' association. Mr. Gibson's attitude about this was to the effect that the request by Mr. Hilgeman was a legitimate request that should be complied with. A discussion had also been held between Carter and Hilgeman on August 18, 1988, in which Mr. Hilgeman gave advance notice of the fact that he needed several questions answered and that there would be a delay in the meeting. The indication was made that a letter would be sent to Mr. Gibson to have those questions answered. That eventuated in the August 22, 1988 correspondence from Hilgeman to Gibson. Upon making these matters known to Mr. Carter on August 18, 1988, Mr. Carter's only remark was that this would be "fine." On September 9, 1988, a letter was written from Ralph B. Murray, Jr., Specialist Enforcement Section, Bureau of Mobile Homes within the Petitioner's department which was sent to Mr. Hilgeman reminding him of the necessity to respond to allegations that had been made by the Lake Waldena Resort Homeowners' Association concerning the claim that Mr. Hilgeman had refused to meet with those mobile homeowners in the statutorily prescribed time as announced at Section 723.037(3), Florida Statutes. A copy of this correspondence may be found as Respondent's Exhibit No. 9, admitted into evidence. On September 13, 1988, by correspondence, a copy of which may be found as Respondent's Exhibit No. 10 admitted into evidence, Mr. Hilgeman offered his reply. He tells Mr. Murray that he is not sure whether the homeowners' association is legitimate and that they had not responded to his August 22, 1988 correspondence to Mr. Gibson which he enclosed in his letter to Mr. Murray. He spoke of delays in the mailing time for mail coming from Canada. He makes mention of the fact of having informed Mr. Carter that the manager, who was Ms. Montgomery was on vacation and would not return until August 30, 1988. In fact, Ms. Montgomery was not available to meet with the homeowners' association in the period August 18 through August 30, 1988. This would not have relieved Mr. Hilgeman of the necessity to meet with the homeowners' association on or before August 30, 1988, had they complied with his request for certification prior to that date. They did not. Compliance with the certification process was achieved by correspondence of September 12, 1988 from Gibson to Hilgeman in which he sets out the explanation of certification of the credentials of the homeowners' association to form a committee and meet with the park owner. That was received by the park owner on September 19, 1988, in the person of Pat Montgomery. A copy of this correspondence and the certification of receipt may be found as Respondent's Exhibit No. 11 admitted into evidence. After receipt of the information concerning the certification of the homeowners' association committee, Mr. Hilgeman sent a letter to Mr. Carter on September 29, 1988, to establish a meeting. A copy of that correspondence may be found as Respondent's Exhibit No. 13 admitted into evidence. It outlines the fact that Mr. Hilgeman is sufficiently satisfied concerning the certification to have the meeting and offers a meeting prior to October 4, 1988 or after October 9, 1988, and invites Mr. Carter to consult with Pat Montgomery to establish a mutually convenient time for the meeting. A meeting was held between Mr. Murray and Mr. Hilgeman in October, 1988, in which a discussion ensued concerning whether or not Mr. Hilgeman himself would meet with the homeowners' committee. Mr. Hilgeman held firm in his attitude that his manager Pat Montgomery would be available to meet with the homeowners' committee, but that Mr. Hilgeman would not be meeting with them. As explained in the correspondence of October 14, 1988, addressed from Mr. Carter to Mr. Murray, a copy of which may be found as Respondent's Exhibit No. 14 admitted into evidence, contact was made between Carter and Montgomery and Carter was told on October 11, 1988 that a meeting would be held at 10:00 a.m. on October 14, 1988, between Montgomery and the committee. She was told by Carter that this meeting would not be acceptable unless Mr. Hilgeman was in attendance. Based upon conversations with Mr. Murray, the homeowners' association had been persuaded that it was only appropriate to meet with Mr. Hilgeman. Consequently, by this logic it was not appropriate to meet with Ms. Montgomery. A copy of this correspondence of August 14, 1988 was made available to Mr. Hilgeman. On June 7, 1989, the Petitioner brought an action against the Respondent and he sought a formal hearing which was conducted on February 22, 1990. Prior to that hearing the homeowners did have their meeting with Mr. Hilgeman on November 14, 1989, in which they were made aware of the reasons for the lot rental increase. The homeowners accepted the explanation and the idea of the increase and do not desire to pursue the present complaint against the Respondents. When Mr. Hilgeman sought certification of the credentials of the committee assigned by the homeowners association he was acting in good faith. In addition, he was entitled to look to Pat Montgomery as park operator and by consequence park owner under the definition of Section 723.003(7), Florida Statutes, to speak for him in the course of the meeting to discuss the lot rental increase. The misconception of the committee of mobile home owners concerning the necessity to meet with Mr. Hilgeman and not with his park operator, as fostered by the remarks of Mr. Murray, who lead those mobile homeowners to believe that they could only meet with Mr. Hilgeman, caused a delay in arranging the meeting. Mr. Hilgeman should not be hold accountable for that delay.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered that dismisses these actions against the Respondents. DONE and ENTERED this 18th day of April, 1990, in Tallahassee, Florida. CHARLES C. ADAMS, 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 18th day of April, 1990. APPENDIX CASE NO. 89-4100 The following discussion is given concerning the proposed facts of the parties. Petitioner's Facts Paragraphs 1-9 are subordinate to facts found. Although Paragraph 10 is an accurate portrayal of the meeting of August 24, 1988 between Mr. Carter and Mr. Hilgeman, it should be stated that any meeting to discuss lot rental increase was contingent upon the response to the certification request made by Mr. Hilgeman and replied to by Mr. Gibson on a date beyond the 30 day period. Paragraphs 11 and 12 are subordinate to facts found. Concerning Paragraph 13, whatever Mr. Hilgeman perceptions would be about the role of Ms. Montgomery, whether she was considered to be the same as an attorney representing or in some other capacity, in law she was a park owner and entitled to act in behalf of the park owners at the meeting. Concerning Paragraph 14, the effect of failing to respond to the request for certification within the 30 day period was tantamount to a waiver or agreement to meet at a time later. Paragraph 15 is subordinate to facts found. Concerning Paragraph 16, to the extent this paragraph suggests that the length of the meeting or breadth of detail in the explanation made by Mr. Hilgeman was inadequate, that idea is rejected in that sufficient explanation was given to comply with the requirements of law. The comments in Paragraph 17 are not relevant. The accommodation that was made between counsel was not a necessary arrangement to mitigate the circumstance in an instance where Respondent Donald L. Hilgeman had violated Chapter 723, Florida Statutes. This meeting was beneficial to the homeowners and park owners alike, but came at this late date based upon the failure of the homeowners to meet with Pat Montgomery over a year earlier. Respondents' Facts Paragraph 1 is subordinate to facts found Paragraph 2 is not necessary to the resolution to the dispute. Paragraph 3 is subordinate to facts found with the exception of those two sentences that come before the last sentence in that paragraph. Paragraphs 4 and 5 and all sentences save the last of Paragraph 6 are subordinate to facts found. That sentence is not necessary to the resolution of the dispute. Paragraphs 7 through 11 with the exception of the second sentence in Paragraph 11 are subordinate to facts found. The second sentence is not necessary to the resolution of the dispute. Paragraph 12 is subordinate to facts found. Paragraph 13 is misleading in that it intimates that Mr. Carter was derelict in his duties to make contact with Mr. Hilgeman to establish a meeting; however, the contacts that were made were in accordance with the expectations of Mr. Hilgeman and Mr. Gibson who were controlling the timing of that meeting. Paragraphs 14 through 16 with the exception of the last sentence to Paragraph 16 are subordinate to facts found. The last sentence to Paragraph 16 is not necessary to the resolution of the dispute. Paragraph 17 is subordinate to facts found with the exception of the last sentence which is not necessary to the resolution of this dispute. Paragraphs 18 and 19 are subordinate to facts found. Paragraph 20 is subordinate to facts found with the exception of the last sentence which is not necessary to the resolution of this dispute. Paragraph 21 is not necessary to the resolution of the dispute and is an inaccurate portrayal of the requirements of law as to gaining the approval of the majority of homeowners before representing them in the course of a meeting to discuss lot rental increases. Paragraphs 22 through 25 are subordinate to facts found. COPIES FURNISHED: Stephen R. MacNamara, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 Joseph A. Sole, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 David D. Eastman, Esquire Parker, Skelding, Labasky & Corry Post Office Box 669 Tallahassee, FL 32302 Susan C. Marvin Pamela Leslie Assistants General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL, 32399-1007
The Issue The ultimate issues to be resolved in this proceeding are whether the Respondent has committed violations of The Condominium Act, Chapter 718, Florida Statutes, and, if so, the appropriate action that should be taken by the Petitioner. Petitioner contends that the Respondent participated in board of directors' meetings regarding the Golden Lakes Village condominium, without first posting notice of the meetings and without maintaining minutes of the meetings as required by the provisions of The Condominium Act. Respondent denies the allegations.
Findings Of Fact The Respondent, Florida Planned Communities, Inc., is the developer of a condominium known as Golden Lakes Village, Phase B. The affairs of Golden Lakes Village are administered by a board of directors that is controlled by the developer. There are three members of the board. Two are selected by the developer, and one by unit owners within the condominium. The bylaws of the condominium provide that meetings of the board of directors shall be open to all unit owners and that notice of meetings shall be posted conspicuously at the condominium property forty-eight hours in advance of the meeting. The bylaws provide that a quorum of the directors means a majority of the entire board. The bylaws require that minutes of all meetings of the board of directors be kept. The condominium association maintains a minutes book. There are minutes from nine board of directors' meetings since 1979. Four of these meetings had as their purpose consideration of proposed budgets. Four were organizational meetings to elect officers. One was a special meeting called to consider a proposal to engage the services of a management company. Minutes were not kept for any other meetings of the board of directors that were conducted from 1979 until the present, neither was there any posting to advise unit owners of these meetings in advance. There were numerous meetings of the Board of Directors of Golden Lakes Village, Phase B, other than those that were properly noticed and for which minutes were taken. During these meetings, matters affecting the condominium were discussed. Many of the meetings were conducted on a very informal basis when the unit owners' representative on the board contacted one of the developer's representatives and asked for a meeting. Among the matters discussed were repairs to facilities, additional facilities, budget, and the like. It does not appear that business was conducted in this manner so as to hide the meetings from unit owners. Rather, the purpose appears to have been to conduct operations in a simple manner and to allow the unit owners' representative on the board ready access to the developer's representatives. While the motives of the developer do not appear to have been bad ones, conducting the meetings without first posting notice and without keeping minutes violated the provisions of the condominium bylaws.
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. /
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 the Respondent's real estate broker's license should be disciplined based upon the allegations that Respondent was guilty of fraud, misrepresentation, concealment, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence or breach of trust in a business transaction in violation of Section 475.25(1)(b) Florida Statutes.
Findings Of Fact Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes, Chapters 120, 455 and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent David William Tricker is now and was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0270690 in accordance with Chapter 475, Florida Statutes. The last license issued to the Respondent was as a broker in care of Florida Country Clubs International, Inc., 555 Estates Place, Longwood, Florida, 32779, a Florida corporation. Respondent became the broker for Henro, Inc. (hereinafter Henro) and Henro Realty, Inc. early in 1993 and served until approximately October 21, 1993, when Respondent submitted his letter of resignation to the Florida Real Estate Commission ("FREC"). The Henro companies were owned by a British couple, David and Marion Moth, who also did business in the United Kingdom as Henro Land Leisure Limited. On or about July 8, 1993, Henro negotiated a verbal contract with Gilman Pool Services to maintain and provide pool cleaning services at homes managed by Henro on behalf of its owners. The contract was followed up with a letter dated the same date from Henro and signed by Marion Moth, as vice president. The fee for the service was $65.00 per month for each pool cleaned. Payment terms were to be on 30-day invoice. Heather and Peter Shimmin operated the pool service, and relied upon Henro to pay them for their services. There was no clear and convincing evidence that the Shimmins relied upon Respondent to pay them for their services, or that Respondent was aware of this contract between Gilman Pool Services and Henro. The July 1993 bill to Henro was $5,227.40. On September 1, 1993, Henro issued check #2123 in the amount of $5,227.40 to Gilman Pool Services. This check did not clear and was later made good by Henro by payment in cash to Gilman Pool Service. The August 1993 bill was in the amount of $6,352.36 was not paid. The September, 1993 bill, which amounted to $5,887.00 and the October, 1993 partial bill in the amount of $1,595.00 remains due, owing and unpaid. On October 31, 1993, Henro went out of business. At the time Henro closed, Henro owed Gilman Pool Services $13,061.76, in unpaid maintenance and pool cleaning services. Gilman Pool Services made no demand upon Respondent for past due invoices. The testimony of the witness, Hal Klein, was not credible.
Recommendation Based on the foregoing, it is RECOMMENDED that the Florida Real Estate Commission issue and file a Final Order finding the Respondent not guilty of violating Subsections 475.25(1)(b), Florida Statutes, and DISMISSING the Administrative Complaint. DONE and ENTERED this 1st day of December, 1994, in Tallahassee, Florida. DANIEL M. KILBRIDE 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 1st day of December, 1994. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: paragraphs 1, 2, 3(in part), 4(in part), 5(in part), 6, 7, 8, 9, 10(in part). Rejected as against the greater weight of credible evidence: paragraphs 3(in part), 4(in part), 5(in part),10(in part), 11, 12. Respondent's proposed findings of fact. Accepted in substance: paragraphs 1, 2, 3(in part), 4, 5, 6, 7, 8, 9, 10, 11, 12(in part). Rejected as against the greater weight of evidence: paragraph 3(in part). Rejected as argument: paragraph 12. COPIES FURNISHED: Jack McRay, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Darlene F. Keller Division Director Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Steven W. Johnson, Esquire Senior Attorney Florida Department of Business and Professional Regulation Division of Real Estate Legal Section - Suite N 308 Hurston Building North Tower 400 West Robinson Street Orlando, Florida 32801-1772 David W. Tricker (pro se) 555 Estates Place Longwood, Florida Stephen T. Ball, Esquire Maguire, Voorhis & Wells, P.A. Two South Orange Plaza Post Office Box 633 Orlando, Florida 32802-0633
