97-000834 Construction Industry Licensing Board vs. Mark Peters Status: Closed Recommended Order on Wednesday, April 21, 1999.

Summary: Pool contractor failed to obtain inspections and failed to supervise field crew.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

CONSTRUCTION INDUSTRY LICENSING )

BOARD, )

)

Petitioner, )

)

vs. ) Case No. 97-0834

)

MARK PETERS, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

by video on January 25, 1999, between Tallahassee and Miami,

Florida, before Claude B. Arrington, a duly-designated

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Theodore R. Gay, Esquire

Department of Business and

Professional Regulation

401 Northwest Second Avenue, Suite N-607

Miami, Florida 33128

For Respondent: Mark Peters, pro se

452 South Congress Avenue

West Palm Beach, Florida 33406

STATEMENT OF THE ISSUES

Whether Respondent, a certified swimming pool contractor,

committed the offenses alleged in the Amended Administrative

Complaint and the penalties, if any, that should be imposed.

PRELIMINARY STATEMENT

On December 30, 1996, Petitioner filed an Amended

Administrative Complaint against Respondent, a certified

swimming pool contractor. The Amended Administrative Complaint

alleged certain facts pertaining to a job performed by

Respondent's company for Mary Gonzalez. Based on those factual

allegations, Petitioner charged, in four separate counts, that

Respondent committed the following violations:

COUNT I: Willful or deliberate disregard

and violation of applicable building codes

or laws of the State or of any municipality

or county in violation of Section

489.129(1)(d), Florida Statutes;

COUNT II: Proceeding on any job without

obtaining applicable local building

department permits and inspections in

violation of Section 489.129(1)(n), Florida

Statutes;

COUNT III: Committing fraud, deceit,

gross negligence, incompetency, or

misconduct in the practice of contracting in

violation of Section 489.129(1)(m), Florida

Statutes; and

COUNT IV: Failing in a material respect

to comply with the provisions of Part I of

Chapter 489, Florida Statutes, in violation

of Section 489.129(1)(j), Florida Statutes.

Respondent timely requested a formal hearing, the matter

was referred to the Division of Administrative Hearings, and

this proceeding followed. The parties engaged in extensive

efforts to settle this matter, which would have required

Respondent to perform certain work for the complaining party.

Because those efforts to settle the matter were not successful,

a formal hearing was necessary. At the formal hearing, the

Respondent did not dispute the material facts alleged by

Petitioner.

At the formal hearing, Petitioner presented the testimony

of Gloria Gonzalez, Robert Hevia, and James Gomez. Petitioner

presented twenty-four exhibits, numbered 1-7 and 9-25, all of

which except Exhibit 24 were admitted into evidence. Pre-

marked Exhibit 8 was not moved into evidence. The testimony of

James Powers, a consulting engineer, was presented by

deposition. The Respondent testified on his own behalf and

offered one composite exhibit, which was accepted into evidence.

A transcript of the proceedings has been filed. The

undersigned ordered that post-hearings submittals would have to

be filed within 20 days of the filing of the transcript with the

Division of Administrative Hearings. Petitioner timely filed a

Proposed Recommended Order, which has been duly-considered by

the undersigned in the preparation of this Recommended Order.

Respondent did not file a post-hearing submittal.

FINDINGS OF FACT

1. At all times pertinent to this proceeding, Respondent

was licensed by the Construction Industry Licensing Board (CILB)

as a certified swimming pool contractor, having been issued

license number CP C012912, and at all times material the

Respondent was a qualifying agent of Blue Dolphin Fiberglass

Installations, Inc. (Blue Dolphin).

2. On May 4, 1990, Blue Dolphin entered into a contract

with Mary Gonzalez to install a fiberglass swimming pool at

Ms. Gonzalez's home at 351 Southwest Thirtieth Court, Miami,

Florida, for the total sum of $14,395.

3. The written contract was a form prepared by Blue

Dolphin. Among other provisions, the contract required Blue

Dolphin to have its work inspected.

4. The property owners paid the $14,395 contract price as

follows: $1,395 on May 4, 1990; $10,000 on May 11, 1990; $2,000

on May 29, 1990, and $1,000 in March 1992.

5. In June of 1990, Blue Dolphin installed a fiberglass

swimming pool at the Gonzalez home.

6. At all times pertinent to this proceeding, the Gonzalez

home was located within the City of Miami, where construction,

including the installation of swimming pools, was governed by

the South Florida Building Code (SFBC).

7. To prevent a fiberglass pool from being moved upward by

rises in the groundwater table when the pool was empty, the SFBC

required the installation of the subject fiberglass pool to

include a 36-inch by 4-inch concrete perimeter walkway

strengthened with welded steel wire mesh reinforcement.

8. The SFBC required that Blue Dolphin have the placement

of the reinforcing steel wires inspected by the City of Miami

building department before it poured the concrete for the

perimeter walkway. Respondent knew of this requirement.

9. When the subject pool was originally installed by Blue

Dolphin, steel reinforcement for the concrete walkway was

properly placed before the concrete was poured.

10. The pool as originally installed was not level. On

June 12, 1990, Blue Dolphin performed work in an effort to

correct that condition. Gloria Gonzalez, the daughter of Mary

Gonzalez, lives at the subject property and observed the

original work and the corrective work. She testified that the

corrective work included removal of a portion of the deck along

the entire south side and parts of the east and west sides of

the pool. She estimated that approximately sixty percent of the

entire deck was removed and subsequently replaced. When Blue

Dolphin replaced the parts of the deck that it had removed, it

did not place reinforcing steel in a substantial portion of the

replaced deck. Gloria Gonzalez estimated that eighty percent of

the deck that was replaced did not have steel reinforcement. 1

11. Blue Dolphin failed to have the steel reinforcement

inspected by the City of Miami as required by the SFBC when it

originally poured the concrete deck and when it replaced part of

the concrete deck when the corrective action was taken.

12. The SFBC required Blue Dolphin to obtain a

satisfactory final inspection for the project by the City of

Miami. As of the time of the final hearing, the project had not

passed final inspection.

13. On May 10, 1990, Blue Dolphin obtained two building

permits from the City of Miami for the subject project. Blue

Dolphin obtained permits to complete the project on June 25,

1992, and, after the first permit expired, it obtained a second

completion permit on August 19, 1997. The second completion

permit expired on November 14, 1998.

14. At the final hearing, Respondent acknowledged Blue

Dolphin's continuing duty to obtain a satisfactory final

inspection of the job and expressed willingness to do whatever

was necessary in order to pass the final inspection. Respondent

also admitted that he and his company were negligent in the

completion of this project.

15. Passing final inspection establishes that the pool was

legally built and can be legally used.

16. On February 28, 1998, the City of Miami issued a

letter to Mary Gonzalez threatening to impose a fine against her

in the amount of $250.00 for failing to obtain mandatory

inspections for one of the building permits obtained by Blue

Dolphin in 1990. Ms. Gonzalez's daughter, Gloria Gonzalez, was

able to get the City of Miami building department to agree to

waive the fine by explaining the history of the project to the

building officials.

17. The ability of Mary Gonzalez and her family to use the

pool was impaired by Blue Dolphin's failure to properly install

the pool and to correct defects in the pool so that the project

could pass final inspection.

18. Petitioner presented the testimony of a pool

contractor 2 who estimated that the cost of replacing the entire

deck would be $8,975.00. The lack of steel reinforcement could

be rectified by the removal of the portions of the deck that do

not have the steel reinforcement. Petitioner's expert was not

prepared to estimate the cost of replacing only the portions of

the deck that had not been reinforced before the concrete was

poured. Respondent's testimony established that replacing only

the portions of the deck that had not been reinforced would be

substantially less than the estimate provided by Petitioner's

witness.

19. At the time the subject pool was initially installed,

Blue Dolphin was in the height of its busy season and had more

jobs going than Respondent could properly supervise. Section

489.1195(1), Florida Statutes, imposed on Respondent, as Blue

Dolphin's qualifying agent, the duty to supervise the company's

operations, including all field work at all sites.

20. Petitioner's costs of investigation and prosecution of

this proceeding, excluding attorney's fees, totaled $1,436.50 as

of April 23, 1998.

21. Respondent has been disciplined by Petitioner on three

prior occasions. On December 8, 1994, Petitioner entered a

Final Order in Petitioner's case number 92-15716 pursuant to a

settlement agreement of alleged violations of Section

489.129(1)(e), (f), and (g), Florida Statutes (1992). By the

settlement, Respondent neither admitted nor denied the alleged

violations. Respondent agreed to pay a fine of $100 and costs

in the amount of $625.

22. On August 13, 1990, Petitioner entered a Final Order

in Petitioner's case number 101966 that found Respondent guilty

of violating the provisions of Section 489.129(1)(d) and (m),

Florida Statutes, by failing to obtain a final inspection for a

pool installation and for committing negligence, incompetence,

misconduct, and/or deceit in the practice of contracting. As a

result of the Final Order, Respondent paid an administrative

fine in the amount of $2,500 and his license was suspended from

August 13, 1990, to September 18, 1990 (the date he paid the

administrative fine).

23. On April 1, 1986, Petitioner entered a Final Order in

Petitioner's case number 0058699 pursuant to a settlement

agreement of alleged violations of Sections 489.1119,

489.129(1)(g), (j), and (m), Florida Statutes. By the

settlement, Respondent neither admitted nor denied the alleged

violations. Respondent agreed to pay a fine of $1,000.

CONCLUSIONS OF LAW

24. The Division of Administrative Hearings has

jurisdiction of the parties to and the subject of this

proceeding. Section 120.57(1), Florida Statutes.

25. Section 489.129(1)(d), (m), and (n), Florida Statutes

(1989), and Section 489.129(1)(j), Florida Statutes (1991), are

the provisions of law that Petitioner alleged Respondent

violated.

26. Section 489.129(1)(m) and (n), Florida Statutes

(1989), provides, in pertinent part, as follows:

(1) The board revoke, suspend, or deny

the issuance or renewal of the certificate

or registration of a contractor, require

financial restitution to a consumer, impose

an administrative fine not to exceed $5,000

per violation, place a contractor on

probation, require continuing education,

assess costs associated with investigation

and prosecution, or reprimand or censure a

contractor if the contractor, or if the

business organization for which the

contractor is a primary qualifying agent or

is a secondary qualifying agent responsible

under s. 489.1195, is found guilty of any of

the following acts:

* * *

(d) Willfully or deliberately

disregarding and violating the applicable

building codes or laws of the state or of

any municipalities or counties thereof.

* * *

(m) Being found guilty of fraud or deceit

or of gross negligence, incompetency, or

misconduct in the practice of contracting.

(n) Proceeding on any job without

obtaining applicable local building

department permits and inspections.

27. Section 489.129(1)(j), Florida Statutes (1991),

provides that a contractor is subject to being disciplined if

the contractor fails in any material respect to comply with the

provisions of Chapter 489, Florida Statutes.

28. Section 489.129(1)(d), Florida Statutes (1989), has

been revoked. Petitioner concedes that Count I should be

dismissed.

29. Petitioner has the burden of proving by clear and

convincing evidence the allegations against Respondent. See

Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987); Evans Packing

Co. v. Department of Agriculture and Consumer Services , 550

So. 2d 112 (Fla. 1st DCA 1989); Inquiry Concerning a Judge , 645

So. 2d 398 (Fla. 1994); and Department of Banking and Finance v.

Osborne Stern and Company , 670 So. 2d 932 (Fla. 1996). The

following statement has been repeatedly cited in discussions of

the clear and convincing evidence standard:

Clear and convincing evidence requires

that the evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly remembered; the

evidence must be precise and explicit and

the witnesses must be lacking in confusion

as to the facts in issue. The evidence must

be of such weight that it produces in the

mind of the trier of fact the firm belief of

(sic) conviction, without hesitancy, as to

the truth of the allegations sought to be

established. Slomowitz v. Walker , 429 So.

2d 797, 800 (Fla. 4th DCA 1983).

30. Petitioner established by clear and convincing

evidence that Respondent violated the provisions of Section

489.129(1)(n), Florida Statutes (1989), as alleged in Count II

of the Amended Administrative Complaint by failing to secure the

inspection for the deck and by failing to secure the final

inspection for the project.

31. Petitioner established by clear and convincing

evidence that Respondent violated the provisions of Section

489.129(1)(m), Florida Statutes (1989), as alleged in Count III

of the Amended Administrative Complaint, by his admitted

negligence.

32. Petitioner established by clear and convincing

evidence that Respondent violated the provisions of Section

489.129(1)(j), Florida Statutes (1991), as alleged in Count IV

of the Amended Administrative Complaint by his failure to

properly supervise his field crews. Had there been proper

supervision when the pool was originally installed or when the

corrective work was done, this entire fiasco could have been

avoided.

33. Petitioner has adopted penalty guidelines that apply

to this proceeding. In 1990, those guidelines were found in

Chapter 21E-17, Florid a Administrative Code. Now the guidelines

are found in Chapter 61G4-17, Florida Administrative Code.

These guidelines provide for a normal range of penalties that

may be enhanced if there are aggravating circumstances. In this

case, there exist two aggravating factors that justify enhancing

the amount of the administrative fines that should be imposed.

The first aggravating factor is the length of time the Gonzalez

family has been without the benefit of its bargain. The

problems with this project should have been corrected years ago.

The second aggravating factor is the Respondent's prior

disciplinary history. The recommended fines are those contained

in Petitioner's Proposed Recommended Order. The fines

recommended by Petitioner's Proposed Recommended Order are

within Petitioner's disciplinary guidelines and are reasonable,

considering all circumstances of this proceeding.

34. Petitioner's Proposed Recommended Order includes the

following proposed penalty:

Permanent revocation of the Respondent's

license if the Respondent fails, within 90

days following the filing date of the final

order, to submit proof to the executive

director of the CILB of having either (i)

paid restitution to the estate of Mary

Gonzalez in the amount of $8,975.00, or (ii)

obtain from the City of Miami a satisfactory

final inspection of the Gonzalez pool

installation.

35. The option of restitution, as proposed by Petitioner

in its Proposed Recommended Order, will not be recommended

because Petitioner did not establish the reasonable cost to

replace the portions of the deck that have no steel

reinforcement.

36. Instead of recommending that Respondent's license be

revoked unless he obtains a satisfactory final inspection within

90 days, the undersigned will recommend that Respondent be

ordered to obtain a satisfactory final inspection within 90

days. If Respondent fails to comply with that order, that

failure should be addressed pursuant to the provisions of

Chapter 120, Florida Statutes, not unilaterally by the executive

director of the CILB.

37. Pursuant to Section 455.227(3), Florida Statutes,

Petitioner is entitled to recoup the costs of its investigation,

excluding costs associated with attorney's time.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a Final Order be entered that

dismisses Count I of the Amended Administrative Complaint, but

finds Respondent guilty of Counts II, III, and IV of the Amended

Administrative Complaint.

For the violation of Count II, Petitioner should impose an

administrative fine against Respondent in the amount of $1,000.

For the violation of Count III, Petitioner should impose an

administrative fine against Respondent in the amount of $2,000.

For the violation of Count IV, Petitioner should impose an

administrative fine against Respondent in the amount of $2,000.

The Final Order should order Respondent to obtain from the

City of Miami a satisfactory final inspection of the Gonzalez

pool within 90 days of the entry of the Final Order.

The Final Order should place Respondent's licensure on

probation for two years and should impose reasonable conditions

of probation pursuant to Rule 61G4-17.007, Florida

Administrative Code.

The Final Order should order Respondent to pay within 90

days of the entry of the Final Order Petitioner's costs of

investigating and prosecuting this matter, excluding costs

associated with attorney's time.

DONE AND ENTERED this 21st day of April, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative

Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative

Hearings

this 21st day of April, 1999

ENDNOTES

1/ At the time of the formal hearing, this problem had not been

corrected.

2/ This witness supervised the installation of approximately

14 concrete pools during the seven years he has been licensed.

He has never installed a fiberglass pool.

COPIES FURNISHED:

Theodore R. Gay, Esquire

Department of Business and

Professional Regulation

401 Northwest Second Avenue, Suite N-607

Miami, Florida 33128

Mark Peters

452 South Congress Avenue

West Palm Beach, Florida 33406

Rodney Hurst, Executive Director

Construction Industry Licensing Board

Department of Business and

Professional Regulation

7960 Arlington Expressway, Suite 300

Jacksonville, Florida 32211-7467

William Woodyard, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.

1 At the time of the formal hearing, this problem had not been corrected.

2 This witness supervised the installation of approximately 14 concrete pools

during the seven years he has been licensed. He has never installed a

fiberglass pool.