00-004228PL
Pinellas County Construction Licensing Board vs.
Robert W. Dobson
Status: Closed
Recommended Order on Thursday, February 22, 2001.
Recommended Order on Thursday, February 22, 2001.
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.
- 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 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.
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
-
Donald S Crowell, Esquire
Address of Record -
Robert W Dobson
Address of Record -
William J Owens, Executive Director
Address of Record -
Donald S. Crowell, Esquire
Address of Record