STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA CONSTRUCTION ) INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 79-2059

)

JOHN H. HOLLAND, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this cause on January 10, 1980, in Gainesville, Florida.

APPEARANCES

For Petitioner: Barry S. Sinoff, Esquire

2400 Independent Square One, Independent Drive

Jacksonville, Florida 32202

For Respondent: Steven H. Gray, Esquire

116 S. E. Fort King Street Ocala, Florida 32670

By Administrative Complaint dated September 26, 1979, the State of Florida, Division of Occupations, Department of Professional Regulation, Florida Construction Industry Licensing Board ("Petitioner") charged John H. Holland d/b/a Aqua-Line Pools, Division of Aluminex Corporation ("Respondent"). The holder of registered general contractor's license No. RG-0023888, with willful or deliberate disregard and violation of the applicable building codes or laws of the State or any municipalities. Cities or counties thereof, in violation of Section 468.112(2)(a), Florida Statutes, and abandonment of a construction project in violation of Section 468.112(2)(h), Florida Statutes. Respondent disputed the allegations of fact contained in the Administrative Complaint, and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes.

Thereafter, by letter dated October 11, 1979, Petitioner requested the appointment of a Hearing Officer from the Division of Administrative Hearings to conduct the formal hearing in this cause. Formal hearing was scheduled for January 10, 1980, by Notice of Hearing dated November 7, 1979.

At the final hearing, Petitioner called M. L. Jones, Norwood Forest Hope, Marc Edelstein and Tod Dun as its witnesses. Petitioner offered Petitioner's exhibits numbered 1 through 9, each of which was received into evidence.

Respondent testified in his own behalf, and called Tod Dun and Bill Milby as his

witnesses. Respondent offered Respondent's exhibits numbers 1 through 9, inclusive, which were received into evidence.

At the conclusion of the final hearing, counsel for both Petitioner and Respondent waived the requirement of Chapter 120, Florida Statutes, that a Recommended Order be entered by the Hearing Officer within 30 days from the conclusion of the final hearing in this case.

FINDINGS OF FACT

1. Respondent is the holder of currently active General Contractor's license No. RG-0023888.

   
   

2. On January 18, 1977, Norwood W. Hope (hereinafter "Developer") entered into a contract with Respondent for the construction of a commercial swimming pool. Respondent was to have been paid the amount of $43,346.40 under the contract for construction of the pool. The contract amount was to be paid pursuant to a five-stage draw schedule as follows:

   
   

   1. Framing and steel draw	paid	$10,836.60
   2. Gunite draw paid		10,836.60
   3. Mancite draw		7,224.40
   4. Equipment set draw		7,224.40
   5. Final approval draw		7,224.40

   
   

3. Respondent made application for an Alachua County building permit for the swimming pool project on February 23, 1977. The permit application was approved on February 25, 1977, and a building permit was issued. Thereafter, the project received Alachua County approval on a temporary power pole inspection on June 1, 1977. An interim inspection of the property was made by Alachua County officials on November 7, 1977, with no deficiencies noted. A final inspection on the electrical work on the project was made, with satisfactory results, on November 8, 1977. The Alachua County Building Code, by incorporation of the 1973 Southern Standard Building Code, 1974 Revision, provides, in part, as follows:

   
   

   108.2--INSPECTIONS REQUIRED

   
   

   1. The Building Official shall inspect

      or cause to be inspected at various intervals all construction or work for which a permit is required, and a final inspection shall be made of every building or structure upon completion, prior to the issuance of the Certificate of Occupancy, as required in Section 109.

      * * *

      (c) The Building Official upon notifica-

      tion from the permit holder or his agent shall make the following inspections of buildings

      and such other inspections as may be necessary, and shall either approve that portion of the construction as completed or shall notify the permit bolder or his agent wherein the same fails to comply with the law:

      * * *

      Final Inspection: To be made after the building is completed and ready for occupancy.

      (Emphasis added).

      
      

4. The contract entered into on January 18, 1977 between the Developer and Respondent called for Respondent to construct the swimming pool according to the plans and specifications admitted into evidence as Petitioner's Exhibit No. 1. Associated construction, including construction of concrete pool decking, a pumphouse and a fence surrounding the swimming pool site were either completed by the Developer or by other sub contractors.

   
   

5. By invoice dated October 12, 1977, Respondent requested a final draw on the project in the amount of 87,000, which, if paid, would have left only

   $224.40 unpaid under the contract. This draw request indicated that a balance due for extra time and materials would be billed ". . . upon acceptance of total pool." (Respondent's Exhibit No. 4).

   
   

6. On October 25, 1977, the Developer paid $6,000 of the $7,000 requested to be paid by Respondent's invoice of October 12, 1977. The Developer contested Respondent's expressed intention to bill for additional time and material, asserting that the Developer had not approved any additional sums for extras.

   In remitting the $6,000 payment to Respondent, the Developer indicated that "[t]his leaves a balance on our account of $1,224.40, which will be paid upon checking out the pool." (Respondent's Exhibit No. 2). (Emphasis added.)

   
   

7. An invoice for back charges on the swimming pool project in the amount of $274 was forwarded to the Developer by Respondent by invoice dated November 8, 1977. In addition, on November 8, 1977, Respondent also invoiced the Developer for a final draw on the project in the amount of $1,224.40.

   
   

8. At some time after notification from the Developer's representatives that tile targets in the racing lanes of the pool were improperly located, Respondent returned to the job site after November 9, 1977 to relocate the targets. Respondent performed this work as a result of a written request from the Developer dated November 9, 1977.

   
   

9. Respondent completed primary construction of the pool prior to submission of the final draw request of October 12, 1977. At that time, back- filling around the exterior of the pool structure preparatory to the pouring of the concrete pool decking had not been completed. Although by October 12, 1977, Respondent had removed much of the excess dirt and debris from around the edges of the pool. There were still areas of exposed piping which would, in due course, be covered with back-fill and tamped by the decking subcontractor. Respondent did not attempt to back-fill or tamp any areas around the pool's piping system.

   
   

10. At some time subsequent to October 12, 1977, which date is not clearly reflected in this record, a separate sub- contractor completed back-filling work around the pool, and poured the concrete decking. Neither the Developer nor his subcontractor advised Respondent that the back-filling had been accomplished and that the deck was to be poured.

    
    

11. Prior to October 12, 1977, Respondent "pressure tested" the pool's piping system, and determined that the pool would hold water at a level above its scum gutters. The results of this testing indicated that, at least as of October 12, 1977, there was no leakage from the pool.

    
    

12. Standard practice in the pool construction industry dictates that a minimum of three pressure tests be made of a pool's piping system during the

    course of construction. The first of these tests should occur immediately after installation of the pipes, and a second test should be performed immediately before final back-filling to cover the pipe system. A final pressure test should be conducted after tamping of the fill and prior to the pouring of concrete for the pool deck. The obvious purpose of this system of pressure testing is to discover any water leaks before concrete pool decking is poured to avoid having to cut out sections of the concrete in order to locate leaks.

    
    

13. Because the Developer and his subcontractor failed to notify Respondent of further work being done on the pool. Respondent was unable to perform a pressure test either after back-filling was completed, after the back- fill had been tamped and before the concrete deck was poured.

    
    

14. By letter dated January 17, 1978, Respondent was furnished by the Developer with a "punch list" indicating several areas of deficiency that needed to be corrected in the pool. In that letter the Developer requested that Respondent complete the necessary work within seven days. The Developer forwarded a second letter to Respondent dated February 23, 1978 advising Respondent that the punch list items had not been corrected, and urging Respondent to complete the work described in the punch list as soon as possible.

    
    

15. From receipt of the punch list in January of 1978 through the middle of March, 1978 Respondent had workers on the job intermittently making the corrections indicated in the punch list. Respondent satisfactorily corrected fifteen of the eighteen items listed as defective n the punch list. Some of the items were repaired by other subcontractors. Respondent had difficulty obtaining some items of equipment, which he was required to back-order. When the back-ordered equipment was slow in arriving, the Developer opted to obtain these items from a source other than Respondent. Respondent replaced a defective pump associated with the pool construction at some time subsequent to January 18, 1977.

    
    

16. The last work performed by Respondent on the pool project occurred some time between March 10 and March 16, 1978. At no time thereafter was Respondent ever advised by the Developer that any work performed under the contract was either unsatisfactory or incomplete.

    
    

17. The pool received a final State of Florida, Department of Health and Rehabilitative Services inspection on July 13, 1978, at which time all necessary permits for operation of the pool under applicable regulations were issued. Respondent at no time requested that Alachua County officials come to the job site to conduct the necessary final inspection of the project, nor did he advise the Developer of the necessity to do so.

    
    

18. At some time during 1979, subsequent to the completion of the swimming pool project, the Developer discovered that the pool was losing water at a rate of approximately 2,100 gallons per day. During this period, the water level inside the pool would drop to a level equal to the piping running around the exterior of the pool shell and under the pool decking. When the Developer was unable to ascertain the cause of the leak, an outside subcontractor was hired to check the pool. This sub- contractor performed pressure tests on the pool's piping system in an attempt to determine whether the leakage was occurring through the pipes. These tests apparently showed no leakage through the piping system. The Developer then caused the concrete decking around the edge of the pool to be removed in order to more closely inspect the interior piping. At this point it was discovered that there existed flaws and breaks in the neoprene piping surrounding the exterior shell of the pool. After repairs to the damaged

    piping, the pool decking was repoured and there has been no subsequent leakage problem in the pool. The Developer incurred expenses in the amount of $2,288 in removing the decking around the pool and repairing the neoprene piping.

    
    

19. Because of the fact that several subcontractors in addition to Respondent worked in the pool area during construction of the pool project, it is impossible on the basis of this record to determine the cause of the damage to the neoprene piping. Respondent's testimony is uncontroverted that pressure testing performed prior to the conclusion of primary work on the pool in October of 1977 showed no leakage through the pool's piping system. Further, at the conclusion of the primary work in October, 1977, much of the pool's piping system was left exposed and could have been damaged either by the Developer's own workers or by employees of other subcontractors in the course of back- filling and tamping fill material preparatory to pouring concrete decking. The Developer's failure to advise Respondent of the schedule for back-filling, tamping and pouring of concrete deprived Respondent of an opportunity to properly pressure test the piping system at appropriate stages of construction.

    
    

20. Respondent has submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings of fact are not incorporated in this Recommended Order, they have been rejected as being either irrelevant to the subject matter of this proceeding or as not having been supported by the evidence.

    
    

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this action. Section 120.57(1), Florida Statutes

    
    

22. Section 468.112(2), Florida Statutes, provides that the following acts constitute cause for disciplinary action to be taken against a licensee by Petitioner:

    
    

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

       * * *

       (h) Abandonment of a construction project in which the contractor is engaged or under contract as a contractor. A project is to be considered abandoned after 90 days if the contractor termi- nates said project without notification to the prospective owner and without just cause.

       
       

23. Section 468.112(3), Florida Statutes, provides that the Florida Construction Industry Licensing Board is authorized to take the following disciplinary action upon establishing a violation:

    
    

    1. Suspend the certificate holder or registrant from all operations as a con- tractor during the period fixed by the board but the board may permit the cer- tificate holder or registrant to complete any contracts then uncompleted.

    2. Revoke a certificate or registration.

    3. Impose an administrative fine or penalty not to exceed 500, which shall be recoverable by the board only in an action at law.

       
       

24. Respondent violated Section 468.112(2)(a), Florida Statutes, by failing to request a final inspection of the project as required by Section 108.2(a) of the Alachua County Building Code. As the holder of a license allowing him to engage in a regulated profession, Respondent is presumed to know the legal requirements conditioning continued participation in that profession.

    
    

25. There is insufficient evidence in the record in this proceeding to establish that Respondent abandoned the construction project here involved within the meaning of Section 468.112(2)(h), Florida Statutes.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That a Final Order be entered by the Florida Construction Industry Licensing Board finding: that Respondent, John H. Holland, has violated Section 468.112(2)(a), Florida Statutes, as indicated above; that Respondent be issued a written reprimand for such conduct; and that an administrative fine of $50 be assessed against Respondent.

DONE and ENTERED this 20th day of June, 1980, in Tallahassee, Florida.

COPIES FURNISHED:

Barry S. Sinoff, Esquire 2400 Independent Square One, Independent Drive

Jacksonville, Florida 32202

Steven H. Gray, Esquire

116 S. E. Fort King Street Ocala, Florida 32670

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

904/488-9675

Docket for Case No: 79-002059

Orders for Case No: 79-002059