00-004228PL Pinellas County Construction Licensing Board vs. Robert W. Dobson
 Status: Closed
Recommended Order on Thursday, February 22, 2001.


View Dockets  
Summary: Petitioner failed to present sufficient evidence to show that Respondent committed the violation alleged in the Administrative Complaint.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8PINELLAS COUNTY CONSTRUCTION )

12LICENSING BOARD, )

15)

16Petitioner, )

18)

19vs. ) Case No. 00-4228PL

24)

25ROBERT W. DOBSON, )

29)

30Respondent. )

32____________________________________)

33RECOMMENDED ORDER

35Upon due notice, William R. Cave, an Administrative Law

44Judge for the Division of Administrative Hearings, held a

53formal hearing on January 26, 2001, in Largo, Florida.

62APPEARANCES

63For Petitioner: William W. Owens, Executive Director

70Pinellas County Construction

73Licensing Board

75Suite 102

7711701 Belcher Road

80Largo, Florida 33773-5116

83For Respondent: Robert W. Dobs on, pro se

918965 60th Street, North

95Pinellas Park, Florida 33782

99STATEMENT OF THE ISSUES

103Did Respondent commit the violations alleged in the

111Administrative Complaint dated September 1, 2000, and if so,

120what discipline is appropriate?

124PRELIMINARY STATEMENT

126By an Administrative Complaint dated September 1, 2000,

134and filed with the Division of Administrative Hearings

142(Division) on October 12, 2000, the Pinellas County

150Construction Licensing Board (Board) is seeking to revoke,

158suspend, or otherwise discipline Respondent's Certified

164Commercial Pool/Spa Contractor's License. As grounds

170therefor, the Board alleges that Respondent caused financial

178harm to Louis Alberto and Margaret Alberto and committed fraud

188or deceit or gross negligence, incompetency, or misconduct in

197the practice of contracting in violation of Section

20524(2)(d)(h)(j)(m) and (3), Chapter 89-504, Laws of Florida, as

214amended, when he covered the Alberto's existing river rock

223(stone and epoxy) pool deck with Flo-Crete which voided the

233manufacture's warranty. By an Election of Rights, Respondent

241disputed the charges and requested an administrative hearing.

249By letter dated October 9, 2000, the Board referred this

259matter to the Division for the assignment of an Administrative

269Law Judge and for the conduct of an administrative hearing.

279At the hearing, the Board presented the testimony of

288Louis Alberto and Paul Paine. The Board's Exhibits 1 through

2985 were admitted in evidence. Respondent testified on his own

308behalf and presented the testimony of Ronald Davis.

316Respondent did not offer any documentary evidence.

323The Board preserved the record of the hearing using a

333tape recorder and filed a copy of the tape with the Division

345upon the conclusion of the hearing. A review of the tape

356reveals that a portion of Respondent's testimony and all of

366the testimony of Ronald Davis was not recorded. The Board

376elected not to file proposed findings of fact and conclusions

386of law. Respondent filed a letter with the Board, as did the

398Complainant, which was filed with the Division by the Board.

408Both of those letters have been considered by the undersigned.

418FINDINGS OF FACT

421Upon consideration of the oral and documentary evidence

429adduced at the hearing, the following relevant findings of

438fact are made:

4411. The Board is the agency within Pinellas County,

450Florida, which is given the authority under Chapter 89-504,

459Laws of Florida, as amended, to regulate and discipline the

469license of, among others, certified commercial pool/spa

476contractors.

4772. Respondent is, and has been at all times material

487hereto, a certified commercial pool/spa contractor in Pinellas

495County, Florida, having been issued license C-2578

502(RP0023937).

5033. On September 9, 1999, Respondent entered into a

512contract with Louis Alberto and Margaret Alberto (Albertoes).

520The contract provided for Respondent to:

526Remove algae and dirt from Sand Pebble

533deck. Resurface entire Pebble Deck (1132

539sq. ft.) with Flo-Crete. Retexture entire

545surface and seal with color of choice.

552Place random pattern. Pressure clean

557existing deck and acid wash.

5624. The contract price was $3,600.00 with 50 percent to

573be paid at the beginning of the contract and the balance to be

586paid upon completion of the contract.

5925. Although it is not covered in the contract, both

602parties agreed that Respondent had verbally agreed to give the

612Albertoes his personal five-year warranty on the work he was

622to perform under the contract, which included covering the

631pool sand pebble deck with Flo Crete.

6386. Design Flo-Crete (Flo-Crete) is a product

645manufactured by Seamco Laboratories, Inc. (Seamco) and used in

654covering pool decks. Seamco's position on covering a sand

663pebble deck with Flo-Crete is as follows:

670Please be advised that as a manufacturer

677Seamco Laboratories, Inc., does not

682recommend going over river rock (stone and

689epoxy systems) with their product Design

695Flo-Crete. Going over epoxy stone would

701encapsulate bacteria, which could cause

706gases that could cause disruption of the

713Design Flo-Crete.

715Seamco is aware that some of their dealers install Flo-Crete

725over river rock successfully. However, Seamco's official

732position is as stated above. Respondent was aware of Seamco's

742position on the installation of Flo-Crete over river rock at

752the time he entered into the contract with the Albertoes and

763advised the Albertoes that Seamco did not recommend going over

773river rock (stone and epoxy systems) with Flo-Crete. However,

782Respondent advised the Albertoes that he had previously used

791Flo-Crete over river rock successfully on several jobs.

799Respondent's did not seal the sides of the deck which allowed

810the gases created by the encapsulated bacteria to escape

819through the sides. There is no mention in the contract that

830Seamco would warrant Flo-Crete under any condition.

837Furthermore, Respondent did not verbally advise the Albertoes

845that Seamco would warrant Flo-Crete under these conditions.

8537. Subsequent to entering into the contract, Respondent

861proceeded to: (a) remove the algae and dirt from the sand

872pebble deck by pressure cleaning and acid wash; (b) resurface

882entire pebble deck with Flo-Crete; and (c) retexture entire

891surface and seal with color of choice. There were some minor

902problems but those were corrected. However, the Albertoes

910were not satisfied with the new textured surface because it

920tended to show scuff marks and the color was too light.

9318. In an attempt to satisfy the Albertoes, Respondent

940put lines on the deck by applying tape and painting over the

952entire surface and then removing the tape leaving the lines.

962Also, in a further attempt to satisfy the Albertoes,

971Respondent applied a combination of two colors to darken the

981original color. However, the original color (bone white)

989continued to bleach through and was not satisfactory to the

999Albertoes. At this point, Respondent became convinced that he

1008could not satisfy the Albertoes.

10139. Apparently, the Albertoes' dissatisfaction with the

1020color of the deck resulted in Respondent not being allowed to

1031apply the polyurethane sealer to the deck. In any event, the

1042polyurethane sealer was never applied to the deck surface.

105110. Subsequently, the Albertoes contracted with another

1058contractor to tear out the existing sand pebble deck and

1068refinish the deck to their specifications for a contract price

1078of approximately $3,600.00

108211. There is insufficient evidence to show that

1090Respondent's method of applying Flo-Crete over the sand pebble

1099deck resulted in the disruption of the Flo-Crete or was the

1110cause of Respondent being unable to satisfy the Albertoes as

1120to the color and texture of the deck.

1128CONCLUSIONS OF LAW

113112. The Division of Administrative Hearings has

1138jurisdiction over the parties and the subject matter of this

1148proceeding pursuant to Section 120.57(1), Florida Statutes.

115513. The burden of proof is on the party asserting the

1166affirmative of an issue before an administrative tribunal,

1174Florida Department of Transportation v. J.W.C. Company, Inc .,

1183396 So. 2d 778 (Fla. 1st DCA 1981). To meet this burden, the

1196Board must establish facts upon which its allegations are

1205based by a clear and convincing evidence. Department of

1214Banking and Finance, Division of Securities and Investor

1222Protection v. Osborne Stern Company , 670 So. 2d 932 (Fla.

12321996) and Section 120.57(1)(j), Florida Statutes.

123814. Sections 24 (1),(2),(d ),(h)(3),(j),and (m),

1249Chapter 89-504, Laws of Florida, as amended, provide as

1258follows:

1259(1) On its own motion or the verified

1267written complaint of any person, the board

1274may investigate the action of any

1280contractor certified or registered under

1285this part and hold hearings pursuant to law

1293. . . The board may take appropriate

1301disciplinary action if the contractor is

1307found to be guilty of or has committed any

1316one of the acts or omissions constituting

1323cause for disciplinary action set out

1329herein or adopted as rules or regulations

1336by the board.

1339(2) The following acts constitute cause

1345for disciplinary action:

1348* * *

1351(d) Willfully or deliberately disregarding

1356and violating the applicable building codes

1362or laws of the state, this board, or of any

1372municipality or county of this state;

1378* * *

1381(h) Committing mismanagement or misconduct

1386in the practice contracting that causes

1392financial harm to a customer. Financial

1398mismanagement or misconduct occurs when:

1403* * *

1406(3) The contractor's job has been

1412completed, and it is shown that the

1419customer has had to pay more for the

1427contracted job than the original contract

1433price, as adjusted for subsequent change

1439orders, unless such increase in cost was

1446the result of circumstances beyond the

1452control of the contractor, was the result

1459of circumstances caused by the customer, or

1466was otherwise permitted by the terms of the

1474contract between the contractor and the

1480customer.

1481* * *

1484(j) Failing any material respect to comply

1491with the provisions of this part.

1497* * *

1500(m) Being found guilty of fraud or deceit

1508or of gross negligence, incompetency, or

1514misconduct in the practice of contracting.

152015. The Board has failed to meet its burden to show by

1532clear and convincing evidence that Respondent is guilty of the

1542violations as charged in the Administrative Complaint filed

1550herein.

1551RECOMMENDATION

1552Based on the foregoing Findings of Fact and Conclusions

1561of Law, it is recommended that the Board enter a Final Order

1573dismissing the Administrative Complaint filed against

1579Respondent.

1580DONE AND ENTERED this 22nd of February, 2001, in

1589Tallahassee, Leon County, Florida.

1593___________________________________

1594WILLIAM R. CAVE

1597Administrative Law Judge

1600Division of Administrative Hearings

1604The DeSoto Building

16071230 Apalachee Parkway

1610Tallahassee, Florida 32399-3060

1613(850) 488-9675 SUNCOM 278-9675

1617Fax Filing (850) 921-6947

1621www.doah.state.fl.us

1622Filed with the Clerk of the

1628Division of Administrative Hearings

1632this 22nd day of February, 2001.

1638COPIES FURNISHED:

1640William W. Owens, Executive Director

1645Pinellas County Construction

1648Licensing Board

1650Suite 102

165211701 Belcher Road

1655Largo, Florida 33773-5116

1658Robert W. Dobson

16618965 60th Street, North

1665Pinellas Park, Florida 33782

1669Kathleen O'Dowd, Executive Director

1673Construction Industry Licensing Board

16777960 Arlington Expressway, Suite 300

1682Jacksonville, Florida 32211-7467

1685Hardy L. Roberts, III, General Counsel

1691Department of Business and

1695Professional Regulation

1697Northwood Centre

16991940 North Monroe Street

1703Tallahassee, Florida 32399-0792

1706Don Crowell, Esquire

1709Pinellas County Construction Licensing Board

1714310 Court Street

1717Clearwater, Florida 33756

1720NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

1726All parties have the right to submit exceptions within 15 days

1737from the date of this Recommended Order. Any exceptions to

1747this Recommended Order should be filed with the agency that

1757will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 03/06/2001
Proceedings: Letter to W. Owens from C. Wentworth regarding recommended order filed.
PDF:
Date: 03/05/2001
Proceedings: Letter to Judge Cave from C. O`Dowd regarding returning the recommended order, original exhibits and tape recording of hearing filed.
PDF:
Date: 02/22/2001
Proceedings: Recommended Order
PDF:
Date: 02/22/2001
Proceedings: Recommended Order issued (hearing held January 26, 2001) CASE CLOSED.
PDF:
Date: 02/15/2001
Proceedings: Letter to Judge Cave from W. Owens In re: received the ex parte letter from the respondent; Letter to Mr. Owen from R. Dobson Re: work performed from Mr. Alberto`s deck filed.
PDF:
Date: 01/31/2001
Proceedings: Letter to Judge W. Cave from W. Owens In re: letter for consideration filed.
Date: 01/26/2001
Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
PDF:
Date: 12/22/2000
Proceedings: Order Granting Continuance and Re-scheduling Hearing issued (hearing set for January 26, 2001; 9:00 a.m.; Largo, FL).
PDF:
Date: 12/21/2000
Proceedings: Letter to Judge A. Pollock from W. Owens In re: continuance (filed via facsimile).
Date: 12/05/2000
Proceedings: Petitioner, Pinellas County Construction Licensing Board`s Request for Issuance of a Subpoena (filed via facsimile).
PDF:
Date: 11/01/2000
Proceedings: Notice of Hearing issued (hearing set for December 22, 2000; 9:00 a.m.; Largo, FL).
PDF:
Date: 10/27/2000
Proceedings: Letter to Judge A. Pollock from W. Owens In re: Response to Initial Order filed.
Date: 10/13/2000
Proceedings: Initial Order issued.
PDF:
Date: 10/12/2000
Proceedings: Election of Rights filed.
PDF:
Date: 10/12/2000
Proceedings: Administrative Complaint filed.
PDF:
Date: 10/12/2000
Proceedings: Agency referral filed.

Case Information

Judge:
WILLIAM R. CAVE
Date Filed:
10/12/2000
Date Assignment:
01/22/2001
Last Docket Entry:
03/06/2001
Location:
Largo, Florida
District:
Middle
Agency:
Self-contained Agencies
Suffix:
PL
 

Counsels

Related DOAH Cases(s) (1):

Related Florida Statute(s) (1):