vs. ) CASE NO. 87-2008
Respondent. )
Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on September 3, 1987, in Daytona Beach, Florida.
For Petitioner: W. Douglas Beason, Esquire
An Administrative Complaint dated March 30, 1987, was filed by the Petitioner, the Department of Professional Regulation, against the Respondent, Keith Lanphear. On April 23, 1987, the Respondent signed an Election of Rights disputing the allegations of fact contained in the Administrative Complaint and requesting a formal hearing pursuant to Section 120.57(1), Florida Statutes.
The case was filed with the Division of Administrative Hearings on May 8, 1987.
At the final hearing the Petitioner presented the testimony of Roger John Gardner, Frank Puleo, Paul C. Nutting and Doyle Kennedy. Mr. Nutting was accepted as an expert in the installation of in-grounds fiberglass pools and Mr. Kennedy was accepted as an expert in the construction of residential swimming pools. The Petitioner also offered 20 exhibits which were accepted into evidence.
The Respondent presented the testimony of Scott Lanphear and Chuck William Reighn. The Respondent also testified on his own behalf. The Respondent was accepted as an expert in swimming pool installation and Scott Lanphear was accepted as an expert in in-ground, residential swimming pools. The Respondent also offered 2 exhibits which were accepted into evidence.
The Respondent has filed a Closing Statement which contains proposed findings of fact. The Petitioner did not file any proposed findings of fact. A ruling on each of the Respondent's proposed findings of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.
Whether the Respondent's certified pool contractor's license should be suspended, revoked or otherwise disciplined based upon the allegations contained in the Administrative Complaint filed in this case?
At all times pertinent hereto, the Respondent held a license from the Petitioner as a certified pool contractor. The license was number CP C019024.
In March 1986, Frank Puleo spoke with Paul C. Nutting about the purchase and installation of a pool at Mr. Puleo's residence in Ormond Beach, Florida. Mr. Nutting worked for Tillman Pool Company, a manufacturer of fiberglass pools.
Tillman Pool Company agreed to sell a pool to Mr. Puleo and recommended that the Respondent install the pool for Mr. Puleo.
Mr. Puleo and the Respondent spoke about the installation of the pool and on March 22, 1986, Mr. Puleo signed a "Proposal" from the Respondent dated March 19, 1986. The Proposal specified that the Respondent would perform the following services:
Installation of 15' x 32', Tillman fiberglass pool, & 8' X 10' spa--including the following: pulling all permits excavation & rough grading electrical to existing [sic] service plumbing, inc. pipe, fittings, valves crane chg. to put pool over house installing a 4" reinforced concrete deck w/kool deck topping see plan - Page 2, which is part of this proposal
This proposal is for labor only, except for materials required with plumbing & electrical & concrete deck.
In consideration for the services to be performed by the Respondent, Mr. Puleo agreed to pay the Respondent $3,700.00, payable as follows:
At start of job--$2,000.00, when waters [sic] in pool--equipment is installed & deck is
formed up (not poured) $1,400.00, on completion--
$300.00.
In the Proposal it was indicated that the Proposal was: From: Keith Lanphear, DBA/
K.L. Construction
1480 Lakeview Drive
Deland, Fl. 32720
Work began on the installation of the pool for Mr. Puleo on April 8, 1986. On that date Mr. Puleo paid the Respondent $2,000.00 by check. The check was made payable to "Keith Lanphear K & L Construction."
Mr. Puleo made additional payments to the Respondent in the amount of
$1,000.00 by check dated April 14, 1986, and in the amount of $400.00 by check dated April 24, 1986. The April 14, 1986, check was payable to "Keith Lanphear K & L Const." and the April 24, 1986, check was payable to "Keith Lanphear K & L Construction."
The Respondent agreed to move the location of the spa for an additional
$100.00.
The Standard Building Code of 1982 has been adopted by the City of Ormond Beach as Section 8-2 of the Ormond Beach Code. Pursuant to the Standard Building Code of 1982, a building permit for the installation of a fiberglass pool must be obtained and certain inspections must be passed. The contractor is responsible for insuring that inspections are made and that the installation of the pool satisfies the inspections.
The Respondent obtained a building permit on April 8, 1986, for the construction of Mr. Puleo's pool.
One of the inspections which must be passed for the construction of a swimming pool is a deck inspection. This inspection must be performed before concrete decking is poured. If the construction fails the deck inspection, the inspector leaves a notice of the violation indicating the deficiencies. The deficiencies must be corrected and the inspection must be passed before the deck is poured. Although the electrical contractor arranges for the deck inspection; the general contractor is ultimately responsible for insuring that the deck inspection is passed.
At least one deck inspection was performed on Mr. Puleo's pool. It was performed on April 23, 1986. Upon completion of the inspection, the inspector indicated "deck grounding ok - 4/23/86" on an inspection card which was left at Mr. Puleo's. The initials "K.S." followed the note with an arrow pointing to the following:
(Ground wire not long) (enough to go to plumb) No splice allowed.
The concrete decking was poured by the Respondent on April 24, 1986. No reinspection was asked for before the concrete was poured.
A Notice of Additions or Corrections was issued on May 12, 1986. This Notice was issued by a different inspector than the inspector who performed the deck inspection on April 23; 1986. The Notice, at the time it was issued, indicated the following:
Inspection on deck rejected in April did no [sic] call for reinspection on compaction around pool ground wire not long enough heater not supported motor not
The above quoted words were written in ink. At a later date, the initials "EM," three notations of "OK" and the date "5/19/86" were added to the Notice in pencil. Final approval was also noted on the inspection card at Mr. Puleo's residence with the initials "EM," the date "5/19/86" and "(Ed McCoy)" also noted. These notations were included under "Electrical Inspection."
In order to get equipment to Mr. Puleo's backyard, where the pool was to be installed, a portion of a wooden fence on the side of Mr. Puleo's house had to be removed.
In excavating the hole where the pool was to be installed, part of a sprinkler system had to be removed. Mr. Puleo was informed prior to the removal of this portion of the sprinkler system that the Respondent was not responsible for reconnection of the sprinkler system. Mr. Puleo agreed.
After excavating the hole, the fiberglass pool which Mr. Puleo had purchased from Tillman Pool Company was delivered and lifted by crane over Mr. Puleo's house and placed into the ground.
After the pool was placed into the ground, water was jetted under the pool in an effort to fill any open areas, or voids, between the ground and the pool with dirt.
To properly install a pool, the following process should be followed:
On an in-ground fiberglass pool basically when you start construction you do your layup to find--figure out where the pool is going in.
You start your dig. You do a one-foot overdig. Otherwise, the size of the pool is exceeded by one foot.
You go ahead and dig to your elevations of the depth of the pool. Then you set your pool.
You see if you have any voids.
If you have any major voids, you lift the pool back out of the ground again, shape your hole to match the pool, because every time a pool's made there will be a little bit of difference in the thickness of the pool. And at any given time it can vary a little bit.
Then you go ahead and set the pool; you get inside the pool; make sure you do not have any major voids, like I said.
Then you put a little bit of the water in the pool and you start water-packing the water underneath the pool and around the pool.
As you are doing that water-pack and bringing the water up, you make sure you get a good solid floor all the way around the pool.
The same goes for the walls.
It is critical on fiberglass a pool that basically you keep the water just a few inches to possibly six inches above your dirt fill and as you're filling in your dirt you keep it water-packed. That is the most critical part of a fiberglass pools is, you
fill the pool up with water and at the same time you are using water to brush the dirt underneath the pool and around the pool to make it a solid base.
And at any time if you let the water on the outside of the pool exceed it, you can have
the pool float up. And if you don't water-pack it right and you have too much water, you bow the walls, or vice versa. It's very critical. That's the most critical part of the whole installation.
See Transcript, page 107-108.
If a pool is properly installed, there will be no more than 1/2 to 1 inch of flexibility in the pool before it strikes dirt.
The pool installed by the Respondent at Mr. Puleo's had 4 to 5 inches of flexibility in the shallow end of the pool. Even with that much flexibility, the pool did not touch dirt. This much flexibility can cause the pool to crack.
The area where the pool becomes deeper is called the "break area." At the break area in the pool installed at Mr. Puleo's, there was excessive flexibility.
There was also excessive flexibility at several points on the bottom of the pool.
The break area had a large bow in it--it was buckling downward.
The area near the steps in the shallow end of the pool was stretched and had a small crack in it.
There was also a crack on the side of the pool.
The condition of the pool described in findings of fact 22 through 27 was caused by the failure to place the pool in the ground properly and/or the failure to properly water-pack dirt under and around the pool after it was set into the ground.
Mr. Puleo tried to contact the Respondent by telephone and letter to inform him of the condition of the pool. Mr. Puleo was unsuccessful and the Respondent did not check to insure that there were no problems with the pool after he left.
Mr. Nutting made an effort to correct the problems with the manner in which the pool was installed. Two pick-up truck loads of dirt were brought to the site and packed under and around the pool. Some of the problems still persist.
The pool installed by the Respondent at Mr. Puleo's residence was not installed in a competent manner.
Dirt from the hole in which the pool was installed was taken to a site not too far from Mr. Puleo's residence. After the pool was installed, the Respondent had to bring dirt back in order to fill in around the pool. In order to bring dirt onto the site, the Respondent was given permission to take down a
portion of the wood fence on the other side of Mr. Puleo's house. This portion of the fence was not put back up by the Respondent after completion of the installation of the pool.
Although there was testimony indicating that dirt was taken from Mr. Puleo's yard to fill in around the pool and that the sprinkler system was damaged, the evidence failed to support such a finding of fact. The evidence proved that a portion of the sprinkler system where the pool was installed had to be removed, but the Respondent was not responsible for reinstalling this portion. The evidence concerning alleged damage to other portions of the sprinkler system is rejected.
The Proposal indicated that the concrete deck to be installed by the Respondent was to be 4 inches thick and was to be reinforced.
The deck poured by the Respondent was not 4 inches thick. There were a number of locations where the deck was only 2 and 1/2 to 3 inches thick. This was the thickness of the deck at the edge and between the edge of the deck and the pool.
The reinforcing of the deck consisted of steel mesh. It should have been installed within the concrete. In fact, the mesh was barely in the concrete in places and not in the concrete at all in others. The mesh would not, therefore, serve its function of strengthening the concrete and keeping it from cracking.
The deck also has an inadequate number of control joints.
Soil was not properly filled in around the deck after it was installed.
As a result of the manner in which the deck was installed, there are an excessive number of cracks in the deck.
The thickness of the deck is inconsistent with industry standards and the City of Ormond Beach Code. The deck should be a minimum of 3 and 1/2 inches thick.
The last amount paid by Mr. Puleo was $251.38. This amount was paid on September 12, 1986, to Rich Electric for electrical work performed.
The Respondent failed to reconnect the portion of the fence which was removed when work was first begun at Mr. Puleo's residence. This was contrary to the permit pulled by the Respondent which indicated "Existing chain link fence to be replaced."
The Respondent has not obtained a license in the name of K.L. Construction or K & L Construction, although he has operated under those names.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of, this proceeding. Section 120.57(1), Florida Statutes (1986 Supp.).
This proceeding is penal in nature. Bach v. Florida Board of Dentistry, 378 So. 2d 34 (Fla. 1st DCA 1980). Because the Respondent's license is at stake, the evidence to support the charges must be clear and convincing. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).
Section 489.129(1), Florida Statutes (1985), authorizes the Construction Industry Licensing Board to "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 . . . is found guilty of any of the acts specified in Section 489.129(1)(a)-(m), Florida Statutes (1985).
In the Administrative Complaint filed against the Respondent in this case, the Respondent has been charged with violating the following prohibited acts of Section 489.129(1); Florida Statutes (1985):
489.129(1)(j), by failure to qualify a firm he was operating through, in violation of section 489.119;
489.129(1)(m), by gross negligence, incompetence, misconduct, fraud, or deceit in the practice of contracting;
489.129(1)(j); by failure to discharge supervisory duty as qualifying agent, in violation of 489.119 and 489.105(4);
489.129(1)(d), by willful violation of local law;
Section 489.129(1)(j), Florida Statutes (1985), defines the following prohibited act:
Failure in any material respect to comply with the provisions of this act.
It has been contended that the Respondent failed in a material respect to comply with Section 489.119, Florida Statutes (1985), by failing to qualify "K & L Construction" with the Construction Industry Licensing Board. Section 489.119, Florida Statutes (1985), requires generally that contractors licensed by the State of Florida qualify their business entities by approval of an application filed with the Petitioner.
The Respondent operated under the name of K.L. Construction and K & L Construction. Neither of these names have been qualified with the Petitioner. The Respondent has therefore violated Section 489.119, Florida Statutes (1985), in violation of Section 489.129(1)(j), Florida Statutes (1985).
It has also been contended that the Respondent failed in a material respect to comply with Section 489.105(4), Florida Statutes (1985); and Section 489.119, Florida Statutes (1985). Section 489.105(4); Florida Statutes (1985); provides a definition of the terms "qualifying agent." This section does not impose any affirmative duty on the Respondent. Section 489.119, Florida Statutes (1985), as indicated above, sets out the procedural requirements which must be followed by contractors who wish to operate through a business entity other than a sole proprietorship. It does not impose any affirmative duty on the Respondent. The Respondent cannot, therefore, be found guilty of failing "in any material respect to comply with . . ." Sections 489.105(4) or 489.119; Florida Statutes (1985).
Section 489.129(1)(m); Florida Statutes (1985), defines the following prohibited act:
Upon proof that the licensee is guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.
The evidence proved that the Respondent failed to competently supervise the installation of Mr. Puleo's swimming pool. In particular, the Respondent failed to prevent the deficiencies associated with compacting dirt around and under the pool (see findings of fact 19-31), installing a concrete deck of sufficient thickness and with adequate reinforcing, and the reinstallation of Mr. Puleo's fence. The seriousness of the deficiencies associated with Mr. Puleo's pool indicates that the Respondent's failure to properly supervise in this case constituted incompetence and/or misconduct by the Respondent in violation of Section 489.129(1)(m), Florida Statutes (1985).
The Respondent was also charged with having failed to properly supervise the installation of Mr. Puleo's pool based upon his alleged "damage to the sprinkler system . . ." and his alleged "failure to provide water filtering for the spa . . . ." The evidence failed to prove that these allegations were true.
Finally, Section 489.129(1)(d), Florida Statutes (1985), defines the following prohibited act:
Willful or deliberate disregard and violation of the applicable building codes or laws of the state of any municipalities or counties thereof.
The evidence failed to prove that the Respondent willfully or deliberately disregarded the City of Ormond Beach Code's requirement that inspections be obtained. There were at least two different persons who performed inspections in this case. One of those inspectors indicated that the deck inspection was "OK." Although the Petitioner has argued that the notation that the deck was "OK" was conditioned upon certain defects being corrected, the evidence was simply insufficient to prove that this was the case. The only person who testified to any extent about the inspections performed had no personal knowledge of what inspections were performed or by whom. His testimony about the various events surrounding the inspections was speculation. It is therefore concluded that the Petitioner has failed to prove that the Respondent is guilty of violating Section 489.129(1)(d), Florida (1985).
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent be found guilty of violating Section
489.129(1)(j) and (m), Florida Statutes (1985), for failing to qualify K. L. Construction pursuant to Section 489.119, Florida Statutes (1985), and for incompetence and/or misconduct. It is further
RECOMMENDED that the Respondent be found not guilty of violating Section 489.129(1)(j); Florida Statutes (1985), by failing to discharge his supervisory
duty as qualifying agent in violation of Sections 489.119 and 489.105(4), Florida Statutes (1985), and Section 489.129(1)(d), Florida Statutes (1985). It is further
RECOMMENDED that the Respondent's license as a certified pool contractor be suspended for a period of one year. It is further
(1) year after reinstatement of his license. The terms and conditions of probation should be determined by the Petitioner.
DONE and ENTERED this 10th day of November 1987 in Tallahassee, Florida.
LARRY J. SARTIN
10th day of November 1987.
The Respondent has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.
Proposed Finding Paragraph Number in Recommended Order of Fact Number* of Acceptance or Reason for Rejection
1-1 Not a proposed finding of fact.
2-1 to 3-2 Not supported by the weight of the evidence. 4-1 See 17 and 32-33.
4-2 Hereby accepted to the extent that there was no evidence concerning water filtering for the spa. The fence was not properly reinstalled, however.
of the evidence.
11-1 36.
the evidence.
the evidence.
* The Respondent did not number his proposed findings of fact. The "Proposed Finding of Fact Numbers" indicate the number of the paragraph first and then the number of the sentence within that paragraph.
Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2
W. Douglas Beason, Esquire Department of Professional
