STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NOS. 86-2642

) 86-2916

WESLEY ASH, ) 86-3615

)

Respondent. )

)

RECOMMENDED ORDER

For Petitioner: Lisa S. Nelson, Esquire

Tallahassee, Florida

For Respondent: Wesley Ash, pro se

Ft. Myers, Florida

The issue in this case is whether the Construction Industry Licensing Board should discipline Respondent, Wesley Ash (Ash).

Petitioner, Department of Professional Regulation (Department), initially filed a separate one-count Administrative Complaint in each of the case numbers listed in the above caption. The three complaints were consolidated for further proceedings and final hearing. Later, an Amended Administrative Complaint was filed combining the charges into a single three- count complaint.

Count I of the Amended Administrative Complaint (the Dodd complaint) alleges that Ash exhibited gross negligence and/or incompetence in the installation of the skimmer in a pool he built for Jerry Dodd, in violation of Section 489.129(1)(m), Florida Statutes. Count II again alleges gross negligence and/or incompetence in violation of Section 489.129(1)(m) but also alleges misleading, deceitful or untrue representations in failing to make a reasonable response to warranty service requests by Joseph and Rita Priest to repair alleged leakage problem in a pool Ash built for them, in violation of Sections 489.129(1)(c) and (m) and 455.227(1)(a), Florida Statutes. Count III alleges that Ash improperly installed a pool deck for James Poland and charged him an extra $235 for additional foundation footer work required by code provision already in effect, in violation of Section 489.129(1)(m), Florida Statutes.

The formal administrative hearing in this case was held in Ft. Myers on October 24, 1986. The Department ordered preparation of a transcript of the hearing. The transcript was filed on November 17, 1986.

FINDINGS OF FACT

1. Respondent, Wesley Ash, currently holds license number CP C015871 issued by the Construction Industry Licensing Board to authorize Ash to engage in the pool contracting business.

   
   

   1. Dodd Complaint (Count I).

      
      

2. Respondent, Wesley Ash, doing business as Wada Pools, Inc., contracted with Jerry Dodd on or about June 17, 1981, to build a pneumatic concrete pool with skimmer and recirculation system. The contract did not include installation of the concrete deck around the pool. Dodd decided to contract with another independent contractor to install the deck at a lower price than Ash wanted for the job.

   
   

3. Ash completed his work by approximately August 1981. He installed the concrete pool shell, finished the inside surface and installed tile along the water line. He then attached the skimmer assembly, plumbing it so that it was level and attaching it to the concrete pool shell by means of the skimmer's PVC plumbing piping.

   
   

4. After Ash finished his work, Dodd's other contractor came behind Ash. He used some of the dirt Ash had excavated from the pool site to raise the ground surrounding the pool by approximately six inches above grade. He then poured the concrete deck but failed to encase the skimmer assembly with the deck concrete in the process of pouring the concrete deck.

   
   

5. It was not Ash's practice to make any special arrangements to stabilize the skimmer assembly when he installed both pool and concrete deck. He relies on the skimmer assembly plumbing to stabilize the skimmer assembly until the concrete deck is poured. In pouring the concrete deck, Ash encases the skimmer assembly with the deck concrete to stabilize the skimmer assembly and prevent leakage. In the case of the Poland pool (paragraphs 17 and 22, below), Ash used this method to install both the pool and the concrete deck, and Poland has had no complaint of leakage at the skimmer (nor was there any evidence of leakage at the skimmer). In the case of the Priests' pool (paragraphs 11 through 13, below), Ash followed the same procedures as he did with the Dodd pool, and another contractor poured the concrete deck. As with the Poland pool, there have been no complaints (nor was there any evidence) of leakage at the skimmer.

   
   

6. Within approximately one and one-half years after installation of the Dodd pool, Dodd began to notice what he thinks is a leak in his pool. The water level in the Dodd pool drops approximately one-quarter inch per day. But the Department's own expert witness conceded that water loss of between one-eight and one-quarter inch can be explained by evaporation. It was not proved that the Dodd pool is leaking at all. If there is a leak causing a small increment of water loss above loss through normal evaporation, the leak would have to be very small and would be very difficult to detect. Ash and others have tried but have been unable to find a leak at the skimmer of Dodd pool.

   
   

7. In approximately summer 1985, Dodd himself dug a hole under the concrete deck to expose the bottom of the skimmer assembly. The excavation revealed an unusual amount of moisture that might be the result of a leak at the skimmer. It also revealed that the contractor who poured the Dodd concrete deck did not encase the skimmer assembly as Ash had thought he would.

8. The Department's expert - a professional engineer with a B.S. degree in civil engineering, an M.S. degree in structural engineering and a Ph.D. degree in environmental engineering - gave his opinion that a residential pool skimmer assembly should be either (1) encased with the concrete of the pool shell or (2) encased with deck concrete which is structurally tied to the concrete pool shell. He opined that the latter method would require either a very rough surface on the pool shell concrete or steel extending from the pool shell in order for the structural tie to be accomplished. But he also conceded that it is possible for deck concrete encasing a skimmer assembly to be sufficient to stabilize the skimmer assembly even without taking any extra measures to accomplish a structural tie. There was no evidence that any building code would require a pool contractor to take these measures to accomplish a structural tie between the pool shell and skimmer assembly. Nor was there any evidence that a reasonably prudent pool contractor (as opposed to a professional engineer) would be expected to take these measures. Based on this evidence, together with all the other evidence taken as a whole, the Department did not prove that Ash was either incompetent or grossly negligent in not taking any extra measurers to accomplish a structural tie between the concrete pool shell and the skimmer assembly.

   
   

9. Based on the evidence in this case, the contractor Dodd hired to pour the concrete deck was either incompetent or grossly negligent (assuming he was even a licensed pool contractor a fact not shown by the evidence.) He did not encase the skimmer assembly with the deck concrete, allowing it to "float" unprotected in the fill under the concrete deck. Settling of the fill could have caused the deck to settle and crack, moving the skimmer assembly and causing a small leak. Ash may have been able to prevent this by warning the contractor to be sure to encase the skimmer assembly with deck concrete when he poured the concrete deck. But there was no evidence that Ash had a duty to advise the other independent contractor Dodd hired or was responsible for the other contractor's incompetence or gross negligence. Ash's failure to advise the other contractor was not incompetence or gross negligence on Ash's part.

   
   

10. Dodd has no other complaints about the pool Ash built for him.

    
    

    1. Priests' Complaint (Count II).

       
       

11. On or about October 11, 1984, Ash contracted with Joseph and Rita Priest to build them a pneumatic concrete pool. The Contract included a warranty that the labor, materials and workmanship would be free of defects for one year and that the shell would be structural sound and capable of holding the water for ten years. Like Dodd, the Priests contracted with another independent contractor to install the concrete deck around the pool. Ash was responsible only for placement of decorative "river rock" on top of the deck. Ash finished his work in February 1985.

    
    

12. Like Dodd, the Priests complained of water loss from the pool although the Priests noticed the water loss sooner than Dodd (approximately March, 1985). The water level was dropping approximately one-quarter inch per day more than it was dropping in a bucket used as a control.

    
    

13. In response to the complaint, Ash sent his employees to the Priests' pool on several occasions. They found no leak at the skimmer. To determine whether the pool's "caretaker system" 1/ was leaking, Ash's employees plugged all but one pair of the caretaker heads. After waiting a period of days, they would try to see whether the rate of water loss changed. They tested all four pairs of caretaker heads on the bottom of the pool and the pair in the spa

    attached to the pool. No leaks could be found. They did not replace the last two (in the spa), and Mr. Priest had to replace them.

    
    

14. As with the Dodd pool, the Department did not prove that the Priests' pool is leaking at all. The Priests continue to complain of water loss of approximately one-quarter inch per day, within the range of water loss from normal evaporation. As with the Dodd pool, a leak responsible for a small increment of water loss above water loss from normal evaporation would be very small and difficult to find, especially if the leak were in the caretaker heads or pipes under the pool leading to the heads. Now the Priests suspect a water leak at the filter. But the Department's expert witness could not find a leak there large enough to account for much water loss. The minor leak at the filter is a normal maintenance item for a pool as old as the Priests' pool. There was no evidence how long it has existed, and there was no evidence that the Priests ever told Ash there was a leak at the filter.

    
    

15. The Priests now also complain that one of the caretaker heads does not re-seat properly. But this has nothing to do with the leakage complaint to which Ash is charged with not reasonably responding.

    
    

16. Taken as a whole, the evidence did not prove that Ash committed misconduct or deceit by failing to make reasonable response to warranty service requests within a reasonable time, as charged. Nor does the evidence prove misleading or untrue representations, gross negligence, incompetence or fraud in connection with the Priests' pool, as charged.

    
    

    1. Poland Complaint (Count III).

       
       

17. On or about December 9, 1981, Ash entered into a contract with James Poland to build Poland a pneumatic concrete pool and concrete deck. Poland contracted with another independent contractor to build a screen enclosure around the pool. Before construction began, one of Ash's employees asked Poland to sign an addendum to the contract for an additional $235 to pay for foundation footers required to comply with Lee County building code provisions for the screen enclosures.

    
    

18. Before Ash signed the initial Poland contract on December 9, 1981, he was unaware of the Lee County Aluminum Code, adopted March 18, 1981. The code requires eight inch foundation footers for "aluminum additions." Another part of the code addresses "screen enclosures with screen roofs known to the industry as birdcage swimming pool enclosures." The language of the code is not explicit that screen swimming pool enclosures are required to meet the foundation requirements for "aluminum additions," and at first Lee County did not interpret the code that way. With a change of personnel in code enforcement, Lee County began to interpret the code that way, and screen swimming pool enclosures Ash had under construction began to fail building inspection for inadequate foundation footers. Ash inquired why and was told about the aluminum code and how it was being interpreted. Ash argued that the interpretation was erroneous but, failing to dissuade enforcement personnel, began to comply. As part of his compliance efforts, Ash had his employees try to secure the contract addendum from Poland.

    
    

19. Poland refused to sign the contract addendum, insisting on an opportunity to verify that the additional foundation footers were indeed new building code requirements. There still is a dispute between the parties whether Poland ever agreed to pay the additional $235 after he verified that the footers were being required. (He never signed the contract addendum.) But, in any

    event, the evidence did not prove that Ash was incompetent, grossly negligent, deceitful or guilty of fraud or misconduct in connection with the additional

    $235 charge. 2/

    
    

20. There was some evidence that Ash did not in fact comply with the Lee County Aluminum Code, as he was told it was being interpreted, in his construction of the Poland pool deck. In two places the foundation footers were

    6 and 7 inches - deeper than the four-inch normal thickness of a concrete pool deck but short of the eight-inch requirement. But Ash was not charged with failure to comply with the foundation footer requirement. He had no legally sufficient notice that he should be prepared to defend against that charge and was not prepared to defend against that charge. Therefore, no finding is made whether Ash complied with the Lee County Aluminum Code.

    
    

21. Ash performed the Poland contract between approximately January 27 and February 26, 1982. In September, 1985, Poland began to notice that some of the tile Ash installed at the waterline around the perimeter of the pool was coming loose. As explained by the Department's expert witness, the concrete deck settled in places, cracking slightly and rotating over the fulcrum created by the wall of the concrete shell of the pool. The rotating action pulled up on the tile attached to the inside of the pool wall in places, loosening the tile. In all, less than 10 percent of the 77 foot perimeter of the Poland pool experienced problems with loose tile. The loose tile easily can be removed and replaced.

    
    

22. The minor deck cracking and loose tile problems at the Poland pool are within the normal range for a competently constructed pool under normal conditions of ground settlement. The evidence did not prove that Ash improperly installed the pool deck or that he was incompetent or grossly negligent in the construction of the Poland pool and deck. Besides the loose tile and minor cracks in the concrete deck, the Poland pool had no apparent defects.

    
    

23. There also was evidence that the Poland pool was finished with a coating of marcite on the inside surface of the pool shell which was mottled gray in color instead of white. Poland complained persistently about the marcite3 and insisted that Ash make it white. But the discolored marcite was a factory defect of which Ash had been unable to know before he used it. There is no way to make mottled gray marcite white. Ash tried to explain this to Poland but the customer would not be satisfied.

    
    

24. Taken as a whole, the marcite evidence did not prove that Ash was incompetent, grossly negligent, deceitful or guilty of fraud or misconduct. Nor does the evidence prove any of those violations for failure to cure the marcite problem under warranty. First, as already stated, there was no cure. Second, Ash and Poland also had a running dispute whether Poland had paid the full contract price, including the additional $235 for foundation footers, so as to entitle him to any warranty repairs. In light of this genuine dispute, failure to do warranty work, if otherwise a reasonable request, still could not be found to be misconduct, fraud or deceit.

    
    

    CONCLUSIONS OF LAW

    
    

25. Section 489.129(1), Florida Statutes (1985), states in pertinent part:

    
    

    The board may revoke, suspend, or deny the issuance or renewal of the certificate or registration of a contractor and impose

    an administrative fine not to exceed $5,000, place a contractor on probation, or reprimand or censure a contractor if the contractor,

    or if the business entity or any general partner officer, director, trustee, or member of a business entity for which the contractor is a qualifying agent, is found guilty of any of the following acts:

    . . .

    (c) Violation of chapter 455.

    . . .

    (m) Upon proof that the licensee is guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.

    
    

26. Section 455.227(1)(a), Florida Statutes (1985), provides:

    
    

    1. The board shall have the power to revoke, suspend, or deny the renewal of the

       license, or to reprimand censure or otherwise discipline a licensee, if the board finds that:

       
       

       1. The licensee has made misleading, deceptive, untrue, or fraudulent representations in the practice of his profession . . .

          
          

27. It has been found, and must be concluded, that the Department has not proved Ash guilty of any of the conduct proscribed by the above statutes. All of those findings need not be repeated here, but two points merit some discussion.

    
    

28. The Department came closest to proving a violation under Count I of the Amended Administrative Complaint involving the Dodd complaint. As found, Ash could have warned Dodd's other independent contractor to be sure to encase the skimmer assembly with deck concrete when he poured the concrete pool deck. But, under Section 489.105(3)(k), Florida Statutes (1985), "pouring of decks" is within the scope of the work of a "residential pool contractor." Therefore, the other independent contractor should have been a licensed residential pool contractor. If he was, he is responsible for his own incompetence or negligence in not encasing the skimmer assembly with deck concrete when he poured the concrete pool deck. Ash is not responsible for it. On the other hand, even if the other contractor was not a licensed residential pool contractor, there was no evidence that Ash undertook to hire or subcontract with him and to supervise the quality of his work.

    
    

29. There was evidence that Ash did not in fact comply with the Lee County Aluminum Code, as he was told it was being interpreted in his construction of the Poland pool deck, in possible violation of Section 489.129(1)(d), Florida Statutes (1985). 4/ But Ash was not charged with violation of the code. He had no legally sufficient notice that he should be prepared to defend against that charge and was not prepared to defend against it. Therefore, the charges should not be amended to conform to the evidence, and no findings should be made whether Ash complied with the Lee County Aluminum Code. See Sternberg v. Department of Professional Regulation, 465 So.2d 1324 (Fla. 1st DCA 1985); Wray

v. Department of Professional Regulation, 435 So.2d 312 (Fla. 1st DCA 1983); Department of Natural Resources v. Sheffield, 420 So.2d 892 (Fla. 1st DCA 1982).

RECOMMENDATION

Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Construction Industry Licensing Board enter a final order dismissing the Amended Administrative Complaint that has been filed against Respondent, Wesley Ash, in these cases.

DONE AND ORDERED this 9th day of December 1986, in Tallahassee, Leon County, Florida.

J. LAWRENCE JOHNSTON Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 1986.

ENDNOTES

1/ The "caretaker system" is a series of pipes entering the bottom of a pool at "heads." When in use, the heads pop up and water jets out under pressure to loosen debris from the bottom of the pool to be suspended in the water and sucked into the pool's filter system. After use, the heads are supposed to retract and re-seat themselves automatically, similar to an automatic lawn sprinkler system.

2/ There may be a question whether, under the circumstances, either Poland himself or the independent contractor with whom Poland contracted to build the screen swimming pool enclosure should have been responsible for the additional

$235, not Ash. This question was not raised by either party and need not be addressed in light of Finding Of Fact 19.

3/ Although the Amended Administrative Complaint makes no mention of the marcite complaint, Ash was able to defend against the charges. Lack of notice apparently was not a problem for Ash, and he impliedly consented to try the issue. Therefore, findings of fact will be made as to the marcite problem.

4/ Section 489.129(1)(d) prohibits "[w]illful or deliberate disregard and violation of the applicable building codes . . ." (Emphasis added.) As a result of Conclusion Of Law 5, it is not necessary to find or conclude whether any possible violation of the Lee County Aluminum Code was "[w]illful or deliberate."

APPENDIX TO RECOMMENDED ORDER

The following rulings on Petitioner's proposed findings of fact (Respondent did not submit proposed findings of fact) are required by Section 120.59(2), Florida Statutes (1985):

1. The following proposed findings of fact are accepted as substantially factually accurate and are incorporated in the Findings Of Fact in the same or similar format to the extend necessary: 1,2,4,6,14,17,21 through 28,30,31,35 through 39,43, and 49.

2. Petitioner's proposed findings of fact 13,32 and 33 would have been included in paragraph 1 above accept they are unnecessary.

3. Petitioner's proposed findings of fact 16 and 44 would have been included in paragraph 1 above accept they are subordinate and unnecessary.

4. Petitioner's proposed findings of fact 5 and 10 would have been included in paragraph 1 above accept they are irrelevant.

5. Petitioner's proposed findings of fact 3,12 and 34 are rejected as irrelevant.

6. Petitioner's proposed finding of fact 7 is rejected because the deck was poured after Respondent finished his work.

7. Petitioner's proposed finding of fact 8 is rejected because Dodd only believed his pool was leaking approximately, not in excess of, a quarter of an inch of water daily.

8. Petitioner's proposed finding of fact 9 is rejected because it never was proven that there was a "problem."

9. The first sentence of Petitioner's proposed finding of fact 11 would have been included in paragraph 1 above; the second sentence is rejected as irrelevant.

10. Petitioner's proposed finding of fact 15 would have been included in paragraph 1 above accept for the reference to "the usual method of construct," which was not proven.

11. Petitioner's proposed finding of fact 18 is rejected as not having been proven.

12. Petitioner's proposed finding of fact 19 would have been included in paragraph 1 above accept for the references to "the problems with the Dodd pool" and the reference that additional settlement "will cause more leakage," neither of which were proven.

13. Petitioner's proposed finding of fact 20 is rejected because it was not proven that the pool was leaking in the first place.

14. Petitioner's proposed finding of fact 29 is rejected because the second sentence was not proven.

15. As to Petitioner's proposed finding of fact 40, the first clause was proven and would have been included in paragraph 1 above but the second clause is rejected as irrelevant and unnecessary.

16. The first sentence of Petitioner's proposed finding of fact 41 would have been included in paragraph 1 above, but the second sentence is rejected as not having been proven.

17. As to Petitioner's proposed finding of fact 42, the first clause of the first sentence would have been included in paragraph 1 above, the second clause of the first sentence is rejected as not having been proven. and the second sentence would have been included in paragraph 1 above accept that it is unnecessary.

18. Petitioner's proposed finding of fact 45 is rejected as subordinate and unnecessary.

19. Petitioner's proposed findings of fact 46 through 48 are rejected as irrelevant to the issues framed by the Amended Administrative Complaint.

COPIES FURNISHED:

Lisa S. Nelson, Esquire Department of Professional

Regulation

130 N. Monroe Street Tallahassee, Fl 32301

Wesley Ash

12339-3 Woodrose Court Ft. Myers, Fl 33907

Fred Seely Executive Director

Construction Industry Licensing Post Office Box 2 Jacksonville, Fl 32201

Fred Roche Secretary

Department of Professional Regulation

130 N. Monroe Street Tallahassee, Fl 32301

Docket for Case No: 86-002642

Orders for Case No: 86-002642