Judges: DON W. DAVIS
Agency: Department of Business and Professional Regulation
Latest Update: Feb. 29, 1988
Summary: Construction begun without valid building permit, insufficient supervision and substandard construction practices found. Fine of $1500, 2 ys probation.
87-5053STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, CONSTRUCTION ) INDUSTRY LICENSING BOARD, )
)
Petitioner, )
)
vs. ) CASE NO. 87-5053
)
PHILLIP WHITAKER, JR., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Don W. Davis, on February 3, 1988 in Miami, Florida. The following appearances were entered:
APPEARANCES
For Petitioner: David L. Swanson, Esquire Department of Professional 130 North Monroe Street Regulation, Construction Tallahassee, Florida 32399 Industry Licensing Board
For Respondent: Mark D. Press, Esquire Phillip Whitaker, Jr. 2250 Southwest Third Avenue
5th Floor
Miami, Florida 33129 BACKGROUND
Petitioner filed an administrative complaint against the Respondent, a certified pool contractor. The complaint charged the Respondent with the construction of a swimming pool without a timely permit and failure to properly supervise the jobsite activities. Respondent requested a formal administrative hearing upon receipt of the complaint.
At hearing, the Petitioner presented the testimony of four witnesses and eight evidentiary exhibits. Respondent presented testimony of three witnesses and one evidentiary exhibit.
Proposed findings of fact submitted by the petitioner are addressed in the appendix to this recommended order. No proposed findings offered by Respondent have been received as of the date of this order.
Based upon all of the evidence, the following findings of fact are determined:
FINDINGS OF FACT
The Petitioner is the Department of Professional Regulation.
The Respondent is Phillip Whitaker, Jr., holder of certified pool contractor license number CP-C008325 at all times pertinent to these proceedings. He is the qualifying agent for the business known as Sunshine State Pools pursuant to requirements of Chapter 489, Florida Statutes. He is responsible for actions of that business relating to construction of the swimming pool which is the subject of this proceeding. His address of record is Miami, Florida.
The customer, Ken Gibson, signed a contract with Sunshine State Pools on September 15, 1986. The contract called for construction of a residential swimming pool at 15840 S.W. 155th Avenue, Miami, Florida. The total contract price was $12,700.
Testimony adduced at hearing establishes that Sunshine State Pools completed the layout of the customer's swimming pool and the excavation of soil from the proposed pool site by October 1, 1986. These tasks were accomplished under the Respondent's supervision.
Metropolitan Dade County issued a building permit for construction of the swimming pool in response to a permit application bearing the signature of Phillip E. Whitaker. The permit and application are both dated October 10, 1986.
At hearing, the Respondent acknowledged that initiation of construction prior to pulling the permit and termed this action an "oversight." Based on the candor, demeanor and experience of the Respondent, his explanation of the failure to timely obtain the construction permit is not credited.
Initiation of construction for a swimming pool prior to obtaining permits constitutes a violation of part 301.1(n), of the South Florida Building Code and, by stipulation of the parties at hearing, the building code of Metropolitan Dade County.
The Respondent was responsible for supervision of the actual pool shell construction. After completion and removal of the wood forms used in the process, steel rods or "rebar pins" required as support during the construction process were not removed. These rods extended some distance above the ground and posed a substantial hazard to Respondent's children while playing. Finally, the steel rods were removed by the customer a week after he requested the Respondent to remove them. Respondent admitted some of these reinforcements could have been left by his subordinates.
Respondent admits responsibility for the "back fill" process completed on October 25, 1986. This was originally a responsibility of the customer under the contract as the party responsible for deck construction. The "back fill" process consists of compacting loose soil between the outside of the pool walls and surrounding earth by use of special tamping or pounding equipment.
Under terms of the contract, the customer was responsible for construction of a sizeable two part deck surrounding at least sixty percent of the pool's circumference. There now exists a substantial height difference
between the coping surrounding the perimeter of the pool and the deck or patio surface. The coping is elevated above the top of the patio approximately two to four inches.
As adduced from testimony of Ben Sirkus (stipulated by both parties as an expert in swimming pools and swimming pool construction), coping along the top of the pool walls consists of flagstone rock in conformity with the contract terms. Some of the rocks are cracked. The rocky edge of the coping extends over the pool wall and has a dangerously sharp edge. The sharp edge of the coping overhang could have been avoided by cutting the flagstone coping smooth prior to installation, the acceptable practice among pool contractors. The bottom step to one set of the pool steps has a hazardous 19 inch riser as opposed to the 12 inch distance required by the building code. No hand rail is present. Hollow space under some of the coping stones are the result of either improper installation, dirty cement or sinking of the deck as a result of improper "back filling" upon completion of the pool shell.
On one occasion, Respondent admitted responsibility for deficiencies in the pool coping to an employee named Rick Miro. The Respondent further stated to this employee that he intended to do nothing about the problem.
Respondent was present during some, but not all, of the coping installation.
The "skimmer," the apparatus by which debris is cleared from the pool water, is inoperable as a result of faulty construction of the pool.
The failure of the Respondent, who admits to successful completion of approximately 2500 pools with only three complaints, to properly supervise job site activities was the major cause of the pool deficiencies identified at hearing.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1987).
The proof establishes that construction began without a timely permit having been issued as required by the Metropolitan Dade County Building Code. The facts also dictate that Respondent's failure to obtain such a permit prior to initiation of construction constituted a violation of the Code. Such conduct by the Respondent constitutes violation of subsection 489.105(4) and subsections 489.129(1)(d), (j) and (m), Florida Statutes.
The clear and convincing evidence of Respondent's failure to properly supervise the jobsite activities and ensure that acceptable construction practices were followed is illustrated by failure to have subordinates remove all "rebar" pins or properly install the pool steps and flagstone coping around the pool. The Respondent is guilty of violations of subsections 489.129(1)(m) and (j), Florida Statutes. Such failure by the Respondent also constitutes a violation of his duties, as qualifying agent for Sunshine State Pools, set forth in section 489.105(4) Florida Statutes.
RECOMMENDATION
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be placed on probation for a period of two
years upon such terms and conditions as may be determined by the Construction Industry Licensing Board and assessed an administrative penalty in the amount of
$1500.
DONE AND RECOMMENDED this 29th day of February, 1988, in Tallahassee, Leon County, Florida.
DON W. DAVIS
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1988.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5053
The following constitutes my specific ruling on proposed findings of fact submitted by the parties.
Petitioner's Proposed Findings
Included in finding 2.
Included in finding 3.
Included in finding 4.
Included in findings 5, 6 and 7.
Included in findings 5 and 6.
Included in finding 8.
Included in finding 10 with exception of hearsay statement.
Included in finding 11.1
Included in finding 12.
Included in finding 11.
Included in finding 11.
Included in finding 11.
Included in finding 11.
Rejected as unnecessary.
Rejected as unnecessary.
Included in finding 11.
COPIES FURNISHED:
David L. Swanson, Esquire Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
Mark D. Press, Esquire
2250 Southwest Third Avenue 5th Floor
Miami, Florida 33129
William O'Neil General Counsel
130 North Monroe Street Tallahassee, Florida 32399-0750
Fred Seely Executive Director
Department of Professional Regulation
Post Office Box 2 Jacksonville, Florida 32201
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD
DEPARTMENT OF PROFESSIONAL REGULATION,
Petitioner,
vs. CASE NO. 81416
DOAH CASE NO. 87-5053
PHILLIP E. WHITAKER, JR.,
License No. CP C008325
Respondent.
/
FINAL ORDER
THIS MATTER came before the Construction Industry Licensing Board pursuant to Section 120.57(1)(b)(9), Florida Statutes, on May 12, 1988, in Orlando, Florida for consideration of the Recommended Order (a copy of which is attached hereto and incorporated herein by reference) issued by the hearing officer in the above styled case. The Petitioner was represented by Douglas A. Shropshire. The Respondent was present with counsel.
Upon consideration of the hearing officer's Recommended Order and the arguments of the parties and after a review of the complete record in this matter, the Board makes the following findings:
FINDINGS OF FACT
Only the hearing officer's findings of fact numbered 1 through 5 are accepted. The remaining findings of fact, 6 through 15, are rejected as unsupported by the evidence.
There is competent, substantial evidence to support the hearing officer's findings of fact 1 through 5 in the Recommended Order.
CONCLUSIONS OF LAW
The Board has jurisdiction of this matter pursuant to the provisions of Section 120.57(1), and Chapter 489, Florida Statutes.
The Board approves and adopts the following conclusions of the hearing officer.
The Division of Administrative Hearings had jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1987).
The construction in question began without a timely permit having been issued as required by the Metropolitan Dade County Building Code. Respondent's failure to obtain such a permit prior to initiation of construction constituted a violation of the code. Such conduct by the Respondent constitutes violations of subsection 489.105(4) and subsections 489.129(1)(d), (j) and (m), Florida Statutes.
The Board rejects all remaining conclusions of law found by the hearing officer in this cause.
There is competent substantial evidence to support the Board's findings and conclusions.
WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED:
Respondent, Phillip E. Whitaker, Jr., is hereby REPRIMANDED.
Pursuant to Section 120.59, Florida Statutes, the Parties are hereby notified that they may appeal this Order by filing one copy of a Notice of Appeal with the Clerk of the Department of Professional Regulation, 130 N. Monroe Street, Tallahassee, Florida 32301, and by filing the filing fee and one copy of the Notice of Appeal with the District Court of Appeal within thirty
(30) days of the effective date of this Order.
This Order shall become effective upon filing with the Clerk of the Department of Professional Regulation.
DONE AND ORDERED this 27th day of June, 1988.
J. R. Crockett, Chairman Construction Industry Licensing Board
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been provided by certified mail to
Philiip E. Whitaker Mark D. Press
12969 S. W. 132nd court 2250 S.W. 3rd Avenue, 5th Floor Miami, Florida 33186 Miami, Florida 33129
and by hand delivery/United States mail to the Board Clerk, Department of Professional Regulation and its Counsel, 130 North Monroe Street, Tallahassee, Florida 32399-0750, on or before 5:00 p.m., this 1st day of August, 1988.
Docket for Case No: 87-005053
Orders for Case No: 87-005053
| Issue Date |
Document |
Summary |
|
Jun. 27, 1988 |
Agency Final Order
|
|
|
Feb. 29, 1988 |
Recommended Order
|
Construction begun without valid building permit, insufficient supervision and substandard construction practices found. Fine of $1500, 2 ys probation.
|
