STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, CONSTRUCTION INDUSTRY ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 87-3955

)

STUART REISE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on April 28, 1988 in Miami, Florida. Thereafter the parties were granted leave to submit memoranda supportive of their respective positions.

Petitioner's counsel has submitted a Proposed Recommended Order which was considered by me in preparation of this Recommended Order. Proposed findings which are not incorporated herein are the subject of specific rulings in an Appendix attached hereto.

APPEARANCES

For Petitioner: David L. Swanson, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Robert M. Abramson, Esquire

1045 Ingraham Building

25 Southeast 2nd Avenue Miami, Florida 33131

ISSUES PRESENTED

The issues presented for decision herein are whether or not Respondent failed to properly supervise a pool construction project, willfully violated local laws, is guilty of gross negligence, incompetence, misconduct, fraud or deceit in the practice of contracting and failed to discharge his supervisory duties as a qualifying agent in violation of sections 489.129(1)(d), (m), (j), and sections 489.119 and 489.105 (4), Florida Statutes.

INTRODUCTION AND BACKGROUND

By its Administrative Complaint filed July 13, 1987, Petitioner requests that the Construction Industry Licensing Board enter a final order imposing, inter alia, revocation or suspension of Respondent's registered pool contractors

license, restriction of Respondent's practice, imposition of an administrative fine, issuance of a reprimand or placement on probation or other appropriate relief under the circumstances.

By execution of an Election of Rights form on July 21, 1987, 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, the matter was twice set for hearing on December 10, 1987 and February 3, 1988 and was continued based on Motions for Continuance filed by Petitioner's counsel. The matter was rescheduled for April 28, 1988 and was heard on that date. Petitioner's Exhibits 1-11 were received into evidence and Respondent's Exhibit 1 was received.

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings.

1. At all times material hereto, Respondent was a registered pool contractor in Florida, holding license no. RP0015329 and served as the qualifying agent for Paradise Pools, Inc. (Request for Admission, responses 1- 4).

   
   

2. Petitioner is the regulatory agency in Florida charged with the authority to regulate contractors and to determine compliance with applicable state and local building code requirements.

   
   

3. On May 31, 1986, Respondent entered into a contract with Alex and Theresa Nitu for the construction of a swimming pool at the Nitu's residence at 9550 Lisa Road in Dade County, Florida.

   
   

4. The following day, the Nitus were approached by John Davis, a partner of Paradise Pools, Inc. Davis identified himself as the owner of Paradise Pools and told the Nitus that Respondent was the company salesman. Davis is not a licensed contractor.

   
   

5. During construction, Davis supervised the work for the Nitus' pool. Mrs. Nitu was ill and remained at home on the day the workers laid reinforcing steel for the pool shell. Mr. Nitu, an electrical contractor, took off work and was at home during the two days when the gunite work was done for their pool. Respondent was not present on the job site on those days.

   
   

6. The day after the concrete deck was poured, the Nitus noticed that it contained several low spots which collected water and that rocks were protruding through the deck's surface. Additionally, a portion of the deck sloped toward the pool rather than away from it.

   
   

7. The following day, the Nitus returned home from work to discover that the "whitecoat" for the deck surface was completed and their water hose, weighted down by a rock and a rag, was filling the pool. The pool was filled with water before the Nitus had completed a fence to secure the pool.

   
   

8. At Mr. Nitu's request, James Tucker, a Dade County Building Inspector, inspected the pool on August 6, 1986. Tucker issued a notice of violation to Respondent for allowing water to be put in the pool without proper safety barriers in contravention of section 33-12, Dade County Code; for allowing the

   deck to slope toward the pool in contravention of section 5003.1 of the South Florida Building Code and for using concrete of less than 2500 psi strength in contravention of section 5003.1(a), South Florida Building Code.

   
   

9. In an attempt to correct the low spots and improper slope of the patio, Davis poured an additional layer of cement over the pool deck and scored the surface to create the appearance of keystone. Thereafter, the Nitus discovered hollow areas under certain parts of the keystone. Eventually, the keystone began to separate from the original deck exposing large areas of the deck.

   
   

10. Ben Sirkus was tendered and accepted as an expert in pool construction. Sirkus inspected the Nitu's pool on September 24, 1987, at Petitioner's request. Sirkus observed low spots in the pool deck which held water and contributed to the growth of algae. He also observed that large areas of the imitation keystone had separated from the original deck; that portions of the deck still drained towards rather than away from, the pool; that coping mortar had been left on the sides of the coping and the pool shell; that areas of the whitecoat were unusually rough and that the pool pump was off level, which in time could cause scoring of the bearings in the pump.

    
    

11. Sirkus opined that the deficiencies observed could not have gone unnoticed by a pool contractor of average skill and ability; that deficiencies indicate poor supervision or gross negligence or that Respondent exhibited incompetence in contracting for the Nitu's pool.

    
    

12. John Davis, Respondent's partner and the person who was usually on the site during all facets of the construction, credibly testified that when the angles were laid out for the sloping of the decks surrounding the Nitu's pool, Alex Nitu requested that his employees angle the deck toward the pool such that it would mesh with his patio. This required that Respondent's employees reslope the angles in accord with Mr. Nitu's wishes and contrary to the manner in which they originally sloped the deck. Mr. Davis also attempted to correct the problems that had surfaced surrounding the deck in accordance with the concerns expressed by the Nitus. However, the Nitus vehemently refused access to Respondent's employees and the matter therefore, remained unresolved.

    Respondent Reise was at the construction site on numerous occasions during the major facets of the construction. In addition to being the principal salesman for Paradise Pools, Respondent Reise has extensive experience in the construction of pools and frequently consulted with his partner, John Davis, about the ongoing construction of the Nitu's pool. Respondent Reise also attempted to gain access to the pool to attempt to correct the problems and other concerns expressed by the Nitus, to no avail.

    
    

13. In this regard, a meeting was held at the Nitu's residence on January 30, 1987, by Jim Tucker and Robert Denery, employees of the Dade County Building and Zoning Department, a Mr. Wolf, Petitioner's investigator, Respondent and his partner, John Davis. After a lengthy discussion, it was agreed that all problems were to be resolved which included (1), repair and patch the keystone on the east end of the pool and (2), rework the slope on the northside of the pool to pitch away from the pool and (3), submit test results from an engineering test lab as to the structural strength of the patio slab and final approval by the electrical and plumbing departments of Dade County. Respondent agreed to correct the above-referenced items and agreed to do so as quickly as feasible. The Nitus refused to allow Respondent's employees back on the site to correct the problems. (Respondent's Exhibit 1).

14. John Davis and Respondent's other employees denied that they started filling the Nitu's pool prior to the time that the Nitus had completed a fence to secure it. Their denial in this regard is incredible and is not worthy of belief. The Nitus, in this regard, credibly testified that they were at all times concerned about the safety of the pool and would never have started filling it prior to the time that it was secured. Respondent's employees, on the other hand, were in fact interested in completing the job and it is therefore believed that they started the water running into the pool and weighted the hose down with a rock and a rag as the Nitus found it when they returned home from work on the day that the "whitecoat" was completed.

    
    

15. In all other respects, based on the Nitus' failure to permit Respondent's employees to return to the site to complete the deficiencies and other concerns noted, the undersigned finds that Respondent should have been afforded an opportunity to correct such deficiencies and cannot be held liable 1/ for the allegations that he improperly sloped the pool deck, used improper concrete or was otherwise negligent, incompetent, engaged in misconduct and other allegations of improper supervision, as alleged. I shall so recommend.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action.

    
    

17. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

    
    

18. The authority of the Petitioner is derived from Chapter 489, Florida Statutes.

    
    

19. Respondent, a registered pool contractor, is subject to the disciplinary provisions of Chapter 489, Florida Statutes.

    
    

20. Respondent, by allowing his employees to place water in an unfenced pool without safety barriers, engaged in conduct amounting to a deliberate disregard of local code requirements, Section 33-12, Dade County Code, in violation of section 489.129(1)(d), Florida Statutes.

    
    

21. Insufficient evidence was offered herein to establish that Respondent failed to properly supervise the construction of the Nitu's pool as alleged or that the work by Respondent at the Nitu's pool failed to meet acceptable standards as alleged. Finally, insufficient evidence was offered herein to establish that the Respondent was guilty of gross negligence or incompetence in the practice of contracting as alleged in violation of section 489.129(1)(m), Florida Statutes.

RECOMMENDATION

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

1. Respondent be assessed an administrative fine in the amount of $250.00.

   
   

2. Respondent be issued a written reprimand for allowing his employees to fill an unsecured pool in violation of the local building code.

DONE and ORDERED this 16th day of September, 1988, in Tallahassee, Florida.

JAMES E. BRADWELL

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 19th day of September, 1988.

ENDNOTE

1/ Except as found herein, respecting the finding that his employees negligently filled the pool before it was secured, in view of the circumstances noted herein.

COPIES FURNISHED:

David L. Swanson, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Robert Abramson

1045 Ingraham Building

25 S. E. 2nd Avenue Miami, Florida 33131

Bruce D. Lamb, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Fred Seely, Executive Director Department of Professional Regulation, Construction Industry

Licensing Board

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 87-003955

Orders for Case No: 87-003955