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

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY CONSTRUCTION )

LICENSING BOARD, )

)

Petitioner, )

)

vs. ) Case No. 00-4228PL

)

ROBERT W. DOBSON, )

)

Respondent. )

____________________________________)

RECOMMENDED ORDER

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

Judge for the Division of Administrative Hearings, held a

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

APPEARANCES

For Petitioner: William W. Owens, Executive Director

Pinellas County Construction

Licensing Board

Suite 102

11701 Belcher Road

Largo, Florida 33773-5116

For Respondent: Robert W. Dobs on, pro se

8965 60th Street, North

Pinellas Park, Florida 33782

STATEMENT OF THE ISSUES

Did Respondent commit the violations alleged in the

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

what discipline is appropriate?

PRELIMINARY STATEMENT

By an Administrative Complaint dated September 1, 2000,

and filed with the Division of Administrative Hearings

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

Construction Licensing Board (Board) is seeking to revoke,

suspend, or otherwise discipline Respondent's Certified

Commercial Pool/Spa Contractor's License. As grounds

therefor, the Board alleges that Respondent caused financial

harm to Louis Alberto and Margaret Alberto and committed fraud

or deceit or gross negligence, incompetency, or misconduct in

the practice of contracting in violation of Section

24(2)(d)(h)(j)(m) and (3), Chapter 89-504, Laws of Florida, as

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

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

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

disputed the charges and requested an administrative hearing.

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

matter to the Division for the assignment of an Administrative

Law Judge and for the conduct of an administrative hearing.

At the hearing, the Board presented the testimony of

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

5 were admitted in evidence. Respondent testified on his own

behalf and presented the testimony of Ronald Davis.

Respondent did not offer any documentary evidence.

The Board preserved the record of the hearing using a

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

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

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

the testimony of Ronald Davis was not recorded. The Board

elected not to file proposed findings of fact and conclusions

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

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

Both of those letters have been considered by the undersigned.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence

adduced at the hearing, the following relevant findings of

fact are made:

1. The Board is the agency within Pinellas County,

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

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

license of, among others, certified commercial pool/spa

contractors.

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

hereto, a certified commercial pool/spa contractor in Pinellas

County, Florida, having been issued license C-2578

(RP0023937).

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

contract with Louis Alberto and Margaret Alberto (Albertoes).

The contract provided for Respondent to:

Remove algae and dirt from Sand Pebble

deck. Resurface entire Pebble Deck (1132

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

surface and seal with color of choice.

Place random pattern. Pressure clean

existing deck and acid wash.

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

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

paid upon completion of the contract.

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

parties agreed that Respondent had verbally agreed to give the

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

to perform under the contract, which included covering the

pool sand pebble deck with Flo Crete.

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

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

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

pebble deck with Flo-Crete is as follows:

Please be advised that as a manufacturer

Seamco Laboratories, Inc., does not

recommend going over river rock (stone and

epoxy systems) with their product Design

Flo-Crete. Going over epoxy stone would

encapsulate bacteria, which could cause

gases that could cause disruption of the

Design Flo-Crete.

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

over river rock successfully. However, Seamco's official

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

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

the time he entered into the contract with the Albertoes and

advised the Albertoes that Seamco did not recommend going over

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

Respondent advised the Albertoes that he had previously used

Flo-Crete over river rock successfully on several jobs.

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

the gases created by the encapsulated bacteria to escape

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

Seamco would warrant Flo-Crete under any condition.

Furthermore, Respondent did not verbally advise the Albertoes

that Seamco would warrant Flo-Crete under these conditions.

7. Subsequent to entering into the contract, Respondent

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

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

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

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

problems but those were corrected. However, the Albertoes

were not satisfied with the new textured surface because it

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

8. In an attempt to satisfy the Albertoes, Respondent

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

entire surface and then removing the tape leaving the lines.

Also, in a further attempt to satisfy the Albertoes,

Respondent applied a combination of two colors to darken the

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

continued to bleach through and was not satisfactory to the

Albertoes. At this point, Respondent became convinced that he

could not satisfy the Albertoes.

9. Apparently, the Albertoes' dissatisfaction with the

color of the deck resulted in Respondent not being allowed to

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

polyurethane sealer was never applied to the deck surface.

10. Subsequently, the Albertoes contracted with another

contractor to tear out the existing sand pebble deck and

refinish the deck to their specifications for a contract price

of approximately $3,600.00

11. There is insufficient evidence to show that

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

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

cause of Respondent being unable to satisfy the Albertoes as

to the color and texture of the deck.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

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

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

affirmative of an issue before an administrative tribunal,

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

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

Board must establish facts upon which its allegations are

based by a clear and convincing evidence. Department of

Banking and Finance, Division of Securities and Investor

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

1996) and Section 120.57(1)(j), Florida Statutes.

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

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

follows:

(1) On its own motion or the verified

written complaint of any person, the board

may investigate the action of any

contractor certified or registered under

this part and hold hearings pursuant to law

. . . The board may take appropriate

disciplinary action if the contractor is

found to be guilty of or has committed any

one of the acts or omissions constituting

cause for disciplinary action set out

herein or adopted as rules or regulations

by the board.

(2) The following acts constitute cause

for disciplinary action:

* * *

(d) Willfully or deliberately disregarding

and violating the applicable building codes

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

municipality or county of this state;

* * *

(h) Committing mismanagement or misconduct

in the practice contracting that causes

financial harm to a customer. Financial

mismanagement or misconduct occurs when:

* * *

(3) The contractor's job has been

completed, and it is shown that the

customer has had to pay more for the

contracted job than the original contract

price, as adjusted for subsequent change

orders, unless such increase in cost was

the result of circumstances beyond the

control of the contractor, was the result

of circumstances caused by the customer, or

was otherwise permitted by the terms of the

contract between the contractor and the

customer.

* * *

(j) Failing any material respect to comply

with the provisions of this part.

* * *

(m) Being found guilty of fraud or deceit

or of gross negligence, incompetency, or

misconduct in the practice of contracting.

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

clear and convincing evidence that Respondent is guilty of the

violations as charged in the Administrative Complaint filed

herein.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions

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

dismissing the Administrative Complaint filed against

Respondent.

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

Tallahassee, Leon County, Florida.

___________________________________

WILLIAM R. CAVE

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 22nd day of February, 2001.

COPIES FURNISHED:

William W. Owens, Executive Director

Pinellas County Construction

Licensing Board

Suite 102

11701 Belcher Road

Largo, Florida 33773-5116

Robert W. Dobson

8965 60th Street, North

Pinellas Park, Florida 33782

Kathleen O'Dowd, Executive Director

Construction Industry Licensing Board

7960 Arlington Expressway, Suite 300

Jacksonville, Florida 32211-7467

Hardy L. Roberts, III, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Don Crowell, Esquire

Pinellas County Construction Licensing Board

310 Court Street

Clearwater, Florida 33756

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit 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.