STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 88-0567

)

STEVEN A. MELNIKOFF, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on May 19, 1988, in Jacksonville, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: John O. Williams, Attorney at Law

1343 E. Tennessee St. Tallahassee, Florida 32308

For Respondent: No Appearance

The issue is whether the certified pool contractor's license of Respondent, Steven A. Melnikoff, should be revoked or otherwise penalized based on the allegations of the Administrative Complaint, to wit: violations of Sections 489.129(1)(d)(j) and (m) ; Section 489.119; and Section 489.105(4), Florida Statutes.

The Petitioner, Department of Professional Regulation, Construction Industry Licensing Board, (DPR) presented the testimony of Edythe Milton, Stanton Alexander, H. W. Winderweedle, and Jack Stanley Peeler. Petitioner's Exhibits 1- 10 were admitted in evidence.

The transcript was filed on June 9, 1988. DPR's proposed findings of fact and conclusions of law were filed on June 22, 1988. All proposed findings of fact and conclusions of law have been considered. A specific ruling of each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.

FINDINGS OF FACT

1. Melnikoff is the holder of a certified pool contractor's license, having been issued license No. CP C032540. Melnikoff used this license to qualify Ken-Mel Enterprises and license no. CB C029067 was issued to Melnikoff qualifying Ken-Mel Enterprises.

2. Ken-Mel entered into a contract with John and Edythe Milton to construct a residential pool at 7336 Pineville Drive, Jacksonville, Florida.

   
   

3. Melnikoff applied for a building permit with the City of Jacksonville to construct the pool for the Miltons. His application included a set of plans and a site plan to be approved by the City of Jacksonville.

   
   

4. The City of Jacksonville issued a building permit and provided an inspection sign-off card to be placed at the residence where the pool was to be constructed.

   
   

5. Melnikoff and Ken-Mel constructed the pool and were paid in full.

   
   

6. Melnikoff failed to request or obtain any inspections of the pool construction. This is a violation of the City of Jacksonville Building Code, Section 320.504.

   
   

7. The pool is constructed in such a way that it is flawed, deficient and hazardous. Specifically, the water slide is hooked to a potable water system and to the hot water, which is both a serious code violation and a serious and hazardous condition. The water slide is positioned improperly and attached incorrectly, such that there is a danger of injury and this is a hazardous condition. The marcite is very rough and has started to peel away from the gunnite. The marcite is stained from the finish of the pool deck. The slurry from the gunnite and pool deck is buried near the pool and is improperly disposed of. Persons are mildly shocked when touching the railing in the pool, indicating that the pool is not properly bonded, which is a hazardous condition. The pool is not level or symmetrical and there are many imperfections in the continuous curve of the wall. Steel reinforcing bars are actually protruding through the concrete near the top of the pool. Building Code requires that there be a minimum coverage of 1 1/2" of concrete. The ceramic tile is falling off the wall and it is a very poor ceramic tile job. The expansion joints are improperly placed. The main drain cover has not been fastened down, which is a very dangerous situation and a code violation. There is no means or plan for discharging water from the pool, in violation of code. Part of the deck drain is under the slab of the Milton's house which is a serious problem. The pool is deeper than the plans indicated, in violation of the building code. The pool deck is very rough in places, does not drain away from the pool, and is cracked from improper compaction and improper placement of expansion materials.

   
   

8. All of these defects and hazardous conditions establish that Melnikoff was grossly negligent and incompetent in the construction of this pool.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. By definition in Section 489.105(4) , Florida Statutes, the qualifying agent is charged with the responsibility to supervise, direct, manage, and control the contracting activities of the business entity with which he is connected and the construction activities on a job for which he has obtained the building permit.

11. Section 489.129(1) authorized the Construction Industry Licensing Board to revoke or otherwise penalize a contractor's license if the contractor is found guilty of

    
    

    (d) willful or deliberate disregard and violation of the applicable building codes or laws of the state or of any municipalities or counties thereof.

    * * *

    (j) Failure in any material respect to comply with the provisions of this act.

    * * *

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

    
    

12. The evidence clearly establishes that Melnikoff was responsible for the Milton pool and that he pulled the permit for it. Melnikoff did not obtain any of the required inspections of the pool construction and hence violated the applicable building code. Additionally, numerous construction defects and shortcomings constituted violations of the building code. Hence, Melnikoff violated Section 489.129(1)(d)

    
    

13. Melnikoff failed to fulfill his responsibilities as qualifying agent and as the contractor who pulled the permit. These responsibilities are delineated in the statutes and failure to comply is a violation. Melnikoff failed to comply with the statutes defining his responsibilities under his license and his failure in material. Hence, he also violated Section 489.129(1)(j)

    
    

14. Finally, the construction defects in the Milton pool are so egregious as to constitute gross negligence, incompetence and misconduct on the part of Melnikoff. DPR has more than carried its burden of proof in this regard. The evidence is clear and convincing. Accordingly, Melnikoff is also guilty of violating Section 489.129(1)(m)

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Construction

Industry Licensing Board, enter a Final Order finding Steve A. Melnikoff guilty of the violations charged and revoking Melnikoff's license as a certified pool contractor.

DONE and ORDERED this 29th day of June, 1988, in Tallahassee, Florida.

DIANE K. KIESLING

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 29th day of June, 1988.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-0567

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the Petitioner in this case.

Specific Rulings on Proposed Findings of Fact

Submitted by Petitioner, Department of Professional Regulation, Construction Industry Licensing Board

1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(2); 3-5(3); 6(4); 7(5); and 8 & 9 (6)

COPIES FURNISHED:

John O. Williams, Attorney at Law 1343 E. Tennessee St.

Tallahassee, Florida 32308

Steven A. Melnikoff 710 Rosedale Drive

Stephens City, VA 22655

Tom Gallagher, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 88-000567

Orders for Case No: 88-000567