STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA CONSTRUCTION INDUSTRY ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 78-1846

)

WILLIAM RIFENBURGH, JR. )

d/b/a PLAYER POOLS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on 1 November 1978 at Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Michael Egan, Esquire

217 South Adams Street Tallahassee, Florida 32301

For Respondent: Andrew M. Chansen, Esquire

2000 East Oakland Park Boulevard, Suite 108 Fort Lauderdale, Florida 33306

By Administrative Complaint dated September 13, 1978 the Florida Construction Industry Licensing Board (FCILB), Petitioner, seeks to suspend the general contractor's license No. CG C011375 and the certified pool contractor's license No. CP C010307 issued to William Rifenburgh, Jr., Respondent, and to assess a fine against the Respondent. As grounds therefor it is alleged that Respondent, in constructing a pool under contract with general contractor Pereux, wilfully or deliberately disregarded and violated provisions of the applicable building code, viz. South Florida Building Code, and as a result the pool developed cracks and leaks when filled with water.

Prior to the taking of testimony Respondent's motion to dismiss the complaint against Respondent's general contractor's license on grounds pool was built under pool contractor's license was denied as was the motion to dismiss for failure to join the general contractor as an indispensable party.

The parties then stipulated that Respondent holds general contractor's license No. CG C011375 issued December 1976 and pool contractor's license CP C010307 issued June 1976. On March 24, 1975 Respondent was issued license No. RP 24263 as the qualifying contractor for Player Pools, Inc. By Change of Status dated April 14, 1977, Respondent qualified Player Pools with license CO C011375.

Petitioner's motion to amend the complaint to correct the date in paragraph

5 from 1975 to 1976 was granted.

Two witnesses were called by Petitioner, three witnesses were called by Respondent and eight exhibits were admitted into evidence.

FINDINGS OF FACT

1. At all times here involved Respondent held a general contractor's license No. CG C011375 and a pool contractor's license No. CP C010307 issued by Petitioner. Respondent was the owner and qualifying contractor for Player Pools, Inc.

   
   

2. In late 1975 Player Pools, Inc. entered into a contract with Robert Pereux, a general contractor, to construct a pool at a residence Pereux was building for Carl Reichenbach. Plans submitted with application for permit were approved by the City of Coral Springs Building Inspection Department and construction of the pool was commenced early in 1976 and completed in May 1976. The pool passed all inspections except the electrical inspection, which has not passed on 3-26-76. Had. the electrical discrepancies been corrected immediately, the pool would have passed final inspection.

   
   

3. Respondent completed the major portion of the construction and, while the general contractor was backfilling the pool, a large vertical crack some 4 inches wide appeared in the wall of the pool adjacent to the house. The general practice in Broward County is for the general contractor to back-fill the pool after' the floor and walls of the pool have been completed by the pool contractor.

   
   

4. No evidence was presented showing who corrected this large vertical crack or what caused the crack. Respondent's contention that this crack was caused by the vertical weight of the tractor used to back-fill, while adjacent to the wall, is not credible. Had the tractor hit the wall while back-filling, a crack could have resulted.

   
   

5. Apparently this large vertical crack from the floor to the coping was repaired by someone and the pool was subsequently filled with water in June 1976. When this occurred, hairline cracks near the cove of the pool appeared and the pool leaked. Cove was defined as the part where the wall joins the floor of the pool.

   
   

6. Respondent, pursuant to a verbal agreement with Pereux, attempted to repair the cracks but apparently without success. Pereux died early in 1977 and the provisions of this verbal agreement were not presented.

   
   

7. A dispute between Pereux and Respondent arose regarding payment for the work Respondent had done on the pool and Respondent filed a mechanic's lien against the property. A copy of release of lien against Reichenbach's property was admitted as Exhibit 8. The amount satisfied by Exhibit 8 is the same amount Respondent claims was owed him by Pereux in his demand for payment dated May 7, 1976 (Exhibit 7).

   
   

8. Following receipt of a complaint, the City of Coral Springs issued Notice of Violation to Respondent, charging violations of sections 2301.1(b) and 5001.2(b) South Florida Building Code (Exhibit 2).

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

   
   

10. Grounds for disciplinary action against licenses issued by FCILB are contained in Section 468.112 Florida Statutes which provides in pertinent part:

    
    

    1. The following acts constitute cause for disciplinary action:

       1. Willful or deliberate disregard and violation of the applicable building codes or laws of the state or any municipality, city, or county thereof.

          
          

11. Provisions of the South Florida Building Code alleged violated by Respondent provide:

    
    

    2301.1(b) Buildings and other structures and all parts thereof shall be designed and con- structed to be of sufficient strength to support the estimated or actual imposed dead, live, wind, and any other loads both during construction and after completion of the structure, without exceeding the stresses for the various materials as specified in this Code.

    
    

    5001.2(b) Residential swimming pools shall comply with Section 2 of the National Swimming Pool Institute standards "Suggested Minimum Standards for Residential Pools".

    
    

12. Section 3.1 of NSPI "Suggested Minimum Standards for Residential Swimming Pools" provides:

    
    

    Swimming pools and all appurtenances thereto shall be constructed of materials which are non-toxic to man, can stand the design stresses, which will provide a watertight structure with a smooth and easily cleaned surface without cracks or joints, excluding structural joints, or to which a smooth, easily cleaned surface finish is applied or attached.

    
    

13. The above quoted provisions of the South Florida Building Code are what Respondent is here charged with wilfully violating. The sole basis for the charge is that when the pool was filled with water it could not withstand the stresses imposed by the weight of water and cracked causing the pool to leak.

    No specific violation of the building code was shown in the design or construction of this pool. The plans were approved by the building inspectors and the structural inspections performed during construction were satisfactorily passed. Subsequent failure of the pool due to a factor not proved at the hearing does not constitute proof that Respondent wilfully violated or disregarded the provisions of the City of Coral Springs' building code.

14. The entire tenor of the Petitioner's position in this proceeding appears to be that Respondent contracted to construct a swimming pool, after completion the pool contained leaks which Respondent refused to repair, and this refusal constituted wilful disregard and violation of the building code. Even without any other factor this does not constitute a violation of Section 468.112(2)(a).

    
    

15. However, some evidence was presented of other factors that may have contributed to the defect in the pool. Although the purchaser Reichenbach testified only with respect to cracks that appeared in the pool when it was filled with water, Respondent and one other witness testified that a 4" vertical crack appeared in the wall of the pool while the hole in which the pool was built was being back-filled. No evidence was presented regarding who repaired this crack or how these repairs were accomplished. Respondent's contention that the vertical crack was caused solely by the weight of the tractor used for back- filling which caused a sufficient lateral force to rupture the wall is not credible, assuming the wall to be properly constructed. There was testimony that a properly constructed pool could withstand the stresses imposed by filling the pool with water before the pool was back-filled. If the wall could withstand the lateral force exerted by an eight-foot column of water, it would likely withstand the lateral force exerted by a tractor resting on the ground alongside the pool. However, if dynamic forces were exerted against the wall while back-filling was being accomplished, cracking could occur. If the tractor blade struck the wall or if moving rocks and sand were forced against the wall, dynamic forces would be developed which could open a vertical crack and weaken the wall to such an extent that the other cracks could develop when the pool was filled. No evidence that such occurred was presented.

    
    

16. From the foregoing it is concluded that the evidence submitted was insufficient to show that Respondent wilfully violated the City of Coral Springs' Building Code and thereby violated Section 468.112(2)(a) Florida Statutes as alleged. It is therefore

RECOMMENDED that the complaint be dismissed.

Done and entered this 22nd day of November, 1978.

COPIES FURNISHED:

Michael Egan, Esquire

217 S. Adams Street Tallahassee, Florida 32301

K. N. AYERS Hearing Officer

Division of Administrative Hearings Room 101, Collins Building

MAILING ADDRESS: Room 530

Carlton Building Tallahassee, Florida 32304

(904) 488-9675

Andrew M. Chansen, Esquire Suite 108

2000 E. Oakland Park Boulevard Fort Lauderdale, Florida 33306

Docket for Case No: 78-001846

Orders for Case No: 78-001846