07-005780 Department Of Business And Professional Regulation vs. Michael D. White, Jr. Status: Closed Recommended Order on Thursday, April 3, 2008.

Summary: Respondent acted as a pool contractor after his license had been revoked.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. ) Case No. 07-5780

)

MICHAEL D. WHITE, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

On February 12, 2008, an administrative hearing in this

case was held by video-conference at sites in Tallahassee and

Fort Myers, Florida, before William F. Quattlebaum, a duly-

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Scott A. Smothers, Esquire

Wright, Fulford, Moorhead & Brown, P.A.

Post Office Box 2828

Orlando, Florida 32801-2828

For Respondent: Michael D. White, Jr., pro se

Michael D. White, Jr., d/b/a Gulf Shore

Pool & Spa, Inc.

306 East Paris Street

Tampa, Florida 33604

STATEMENT OF THE ISSUE

The issue in the case is whether the allegations of the

Administrative Complaint are correct, and, if so, what penalty

should be imposed.

PRELIMINARY STATEMENT

On August 13, 2007, the Department of Business and

Professional Regulation (Petitioner) filed a two-count

Administrative Complaint against Michael D. White (Respondent).

The complaint alleged that Respondent had been a licensed pool

contractor whose license had been revoked, and that Petitioner

thereafter operated as a pool contractor without being properly

licensed. Respondent denied the allegations and requested a

formal hearing. Petitioner forwarded the request to the

Division of Administrative Hearings (DOAH), which scheduled and

conducted the proceeding.

At the hearing, Petitioner presented the testimony of one

witness and offered seven exhibits, which were admitted during

the hearing. The Petitioner requested and was granted leave to

file a certified licensing document (Petitioner's Exhibit 8),

which was filed on February 15, 2008, and is hereby admitted

into evidence. Respondent testified on his own behalf.

The Transcript of the hearing was filed on February 25,

2008. Petitioner filed a Proposed Recommended Order on March 5,

2008.

FINDINGS OF FACT

1. Petitioner is the agency responsible for licensing and

regulating pool contractors operating in the State of Florida.

2. Respondent was previously licensed as a Certified Pool

Contractor by Respondent, holding license number CP C21422. On

March 15, 2004, Respondent's license was revoked and was void at

all times material to this case.

3. On June 3, 2005, Respondent entered into a contract

with Luis Vargas and Maria Rivera (Customers) for construction

of a pool at their home located at 1524 Southeast 8th Avenue,

Cape Coral, Florida. The total cost of the proposed

construction was $21,500.

4. The name of Respondent's company as identified on the

contract was Gulfshore Pool and Spa, Inc., 207 Center Street,

Tarpon Springs, Florida. At all times material to this case,

Respondent was the president and owner of Gulfshore Pool and

Spa, Inc.

5. During the sales presentation to the Customers,

Respondent provided a copy of his license to the Customers that

showed an expiration date of August 31, 2004, and told them that

it was being renewed.

6. The contract contained the following notation:

Company is being retained for services of

design, consultation and assistance in

construction. Customer is responsible for

obtaining all necessary permits required for

the pool construction.

7. Respondent testified that he told the Customers he

would arrange for all subcontractors and would add a fee of ten

percent as his fee for "overseeing" management of the project.

8. The Payment Schedule for the contract required that

"progress payments" in an amount totaling the cost of the pool

were to be made to Gulfshore Pool and Spa, Inc.

9. The Customers obtained the construction permit.

10. Respondent made all arrangements for site clearing and

excavation.

11. Respondent made all arrangements for acquisition and

delivery of pool construction materials to the job site. All

materials invoices were billed to Gulfshore Pool and Spa, Inc.

12. Respondent made all arrangements for the laborers who

appeared at the job site and was responsible for paying

laborers.

13. Respondent made arrangements for all inspections and

for correcting any problems resulting from the inspections.

14. The Customers paid a total of $20,500, by checks, made

payable to Gulfshore Pool and Spa, Inc. The Customers withheld

the remaining $1,000 payment for reasons that are immaterial to

this proceeding.

CONCLUSIONS OF LAW

15. DOAH has jurisdiction over the parties to and subject

matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat.

(2007).

16. Petitioner has the burden of proving by clear and

convincing evidence the allegations set forth in the

Administrative Complaint against Respondent. Department of

Banking and Finance v. Osborne Stern and Company , 670 So 2d 932,

935 (Fla. 1996), Ferris v. Turlington , 510 So. 2d 292 (Fla.

1987). Clear and convincing evidence is that which is credible,

precise, explicit, and lacking 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 conviction,

without hesitancy, as to the truth of the allegations.

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

In this case, the burden has been met.

17. Section 489.127, Florida Statutes (2004), provides in

relevant part as follows:

Prohibitions; penalties.--

(1) No person shall:

* * *

(e) Use or attempt to use a certificate,

registration, or certificate of authority

which has been suspended or revoked;

(f) Engage in the business or act in the

capacity of a contractor or advertise

himself or herself or a business

organization as available to engage in the

business or act in the capacity of a

contractor without being duly registered or

certified or having a certificate of

authority;

18. Respondent has asserted that he was not acting as a

pool contractor because he did not physically perform the work

himself. There is no legal support for Respondent's assertion

and it is rejected. Section 489.105(3), Florida Statutes

(2007), provides the following definition of the term

"contractor":

(3) "Contractor" means the person who is

qualified for, and shall only be responsible

for, the project contracted for and means,

except as exempted in this part, the person

who, for compensation, undertakes to,

submits a bid to, or does himself or herself

or by others construct , repair, alter,

remodel, add to, demolish, subtract from, or

improve any building or structure, including

related improvements to real estate, for

others or for resale to others; and whose

job scope is substantially similar to the

job scope described in one of the subsequent

paragraphs of this subsection . . .

* * *

(k) "Residential pool/spa contractor" means

a contractor whose scope of work involves,

but is not limited to, the construction,

repair, and servicing of any residential

swimming pool, or hot tub or spa, regardless

of use. The scope of work includes the

installation, repair, or replacement of

existing equipment, any cleaning or

equipment sanitizing which requires at least

a partial disassembling, excluding filter

changes, and the installation of new

pool/spa equipment, interior finishes, the

installation of package pool heaters, the

installation of all perimeter piping and

filter piping, and the construction of

equipment rooms or housing for pool/spa

equipment, and also includes the scope of

work of a swimming pool/spa servicing

contractor. The scope of such work does not

include direct connections to a sanitary

sewer system or to potable water lines. The

installation, construction, modification, or

replacement of equipment permanently

attached to and associated with the pool or

spa for the purpose of water treatment or

cleaning of the pool or spa requires

licensure; however, the usage of such

equipment for the purposes of water

treatment or cleaning shall not require

licensure unless the usage involves

construction, modification, or replacement

of such equipment. Water treatment that

does not require such equipment does not

require a license. In addition, a license

shall not be required for the cleaning of

the pool or spa in any way that does not

affect the structural integrity of the pool

or spa or its associated equipment.

19. The evidence clearly and convincingly establishes that

the Respondent used his revoked license when discussing his pool

proposal with the Customers, and thereafter, without being

licensed, acted as the contractor for the construction of the

pool.

20. Although both Mr. Vargas and the Respondent testified

to matters related to the quality of construction, there are no

allegations relating to construction quality set forth in the

Administrative Complaint at issue in this proceeding, and the

dispute is not addressed herein.

21. Petitioner's Proposed Recommended Order seeks

imposition of a penalty of $10,000 for the two counts of the

complaint, and states that the penalty guidelines should be

those applicable for repeat violations, in that Respondent was

the subject of a previous administrative proceeding that

ultimately resulted in revocation of his license.

22. Petitioner's Proposed Recommended Order fails to

include specific citations to the applicable penalty guidelines

as required by Section 489.129(4), Florida Statutes (2007). The

applicable guidelines appear to be set forth at Florida

Administrative Code Rule 61G4-17.001, which provides for a

penalty of up to $5,000 for each offense for repeat violators.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Respondent enter a Final Order finding

that Michael D. White violated Subsections 489.127(e) and (f),

Florida Statutes (2004), and impose a total administrative fine

of $10,000.

DONE AND ENTERED this 3rd day of April, 2008, in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

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 3rd day of April, 2008.

COPIES FURNISHED :

Scott A. Smothers, Esquire

Wright, Fulford, Moorhead & Brown, P.A.

Post Office Box 2828

Orlando, Florida 32801-2828

Michael D. White, Jr.

Michael D. White, Jr., d/b/a Gulf Shore

Pool & Spa, Inc.

306 East Paris Street

Tampa, Florida 33604

Nancy S. Terrel, Hearing Officer

Office of the General Counsel

Department Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Zed Lucynski, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

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.