Findings Of Fact Hiram Bowden, age 65 years, has owned the property and lived for 25 years at Bowden's Trailer Park, 514 Glen Road, Orlando, Orange County, Florida. He resides with his wife, Deana, and adult son, Joe. Bowden's Trailer Park is licensed as a mobile home park by the Department of Health and Rehabilitative Services, pursuant to Chapter 513, F.S. The permit allows 21 mobile homes and several recreational vehicles. The park is served by an on-site sewage disposal system, also known as septic tanks. This system provides anaerobic treatment, with waste solids settling out and liquids passing through filters and into a drain field. Because of the high water table in the area, the Bowdens' system is above ground. That is, the tank is below ground and the effluent is pumped up to a treatment box and into perforated drain tile pipes. The drainfields, including the drain tiles, are above ground, covered with earth, with cement block walls. The Bowdens have two drainfields, a large one serving about three-fourths of the trailers and a laundry, and a smaller field serving the rest of the trailers. Tom Yurchenco has been an environmental health specialist with the Orange County Health Department since 1983. He has a 4-year undergraduate degree in environmental studies and is a certified Class B Wastewater Treatment System Operator. He was first assigned to inspect Bowden's Trailer Park on July 25, 1988. On that date he found both drainfields overgrown and cluttered with debris. There was a distinct odor, but it was impossible to tell what the problem was. His inspection report, left at the site, required the area to be mowed. The mowing was accomplished, and on August 8, 1988, Yurchenco found the drainfields leaking. The Bowdens were given a sanitary nuisance citation and a week to correct the problem. Another inspector visited the site on August 16, 1988. Yurchenco returned on September 1, 1983 and found the large field was no longer leaking. The repair job appeared, however, to be make-shift, with dirt piled and packed in. The small drainfield was leaking. On October 26, 1988, Yurchenco found the large drainfield was leaking again, with effluent flowing into a county ditch. The small drainfield was too overgrown for a close inspection. On November 4, 1988, there was no change in the conditions. A letter was sent to the Bowdens reminding them of the August 8, 1988, notice to abate, and warning them of legal action. On December 13, 1988, Thomas Yurchenco found no change in the drainfields, and referred the case for legal action. He made other inspections on January 30, 1989; February 2, 1989; February 16 and 17, 1989; April 5, 1989; and May 3, 10 and 18, 1989. On each occasion one or the other or both drainfields were leaking sewer effluent, on some days draining into the county drainage ditch. Some, but not all, of the inspection reports are signed by the Bowdens- -Deana, Hiram or Joe. The health department inspector tried to deliver the reports, but a dog guarded the Bowden's trailer and when the inspector drove up and honked his horn, sometimes there would be no response. On those occasions he left the report at the pump house. He also spoke with the Bowdens by telephone, and numerous letters were sent describing the problem and urging correction. It was obvious that some work was done from time to time in response to the requests, but nothing of lasting significance. Jim Craigo, an inspection supervisor with the Orange County Health Department, visited the site most recently on October 10, 1989, and December 11, 1989. On both days the large drainfield was operating but the smaller (northside) drainfield was leaking. Defective sewage treatment facilities are a serious health hazard. Pathogenic enteric diseases are spread by exposure to sewage effluent. The drainfields at Bowdens Trailer Park are near the trailers, where children play and pets are allowed to wander. The organisms from the effluent are also transmitted to humans indirectly by flies and roaches. Failure in a sewage disposal system such as the Bowdens' can be caused by faulty construction, poor soil, misuse of detergents, grease-laden products, driving vehicles over the drainfield or too much water. When Bowden closed the laundry, the conditions in the system serving that facility improved. The inspectors also noted that the leakage was worse when the pumps were operating, thus indicating that the system could not handle the volume being generated. Health department staff can make suggestions to owners regarding corrections to the system but the owner is ultimately responsible for identifying the cause of the failure and for taking all necessary corrective action. Hiram Bowden made some repairs to his system, but he did not consult an engineer as suggested by Inspectors Yurchenco and Craigo. He used to install septic tanks, although he does not claim that he has ever been registered by the department as required in Rule 10D-6.070, F.A.C. The repairs made to the Bowdens' system have been effective in preventing the leakage continually noted by the inspectors for approximately eighteen months. Dean Bodager is an HRS Environmental Health Consultant Environmental Health Consultant in District 7. He helps the county health units prepare legal cases. After the Bowden complaint was drafted and signed, he gave it to his secretary to send certified mail. The complaint itself is not dated, but the post office return receipt was received at Bodager's District 7 Health Program Office on April 18, 1988, with a signature "Deana Bowden", and date of delivery of April 15, 1989. Hiram Bowden admits that he received the official notice to abate dated August 8, 1988. He also admits that he received the Administrative Complaint. He claims that he called someone at HRS, but he did not respond in writing within 30 days, as required in the complaint, as he did not understand that this was a form of legal action at the time. He admits there are still problems with the small drainfield, but claims that he keeps trying to fix them and to do what the inspectors suggest.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED That a Final Order be entered revoking Respondents' mobile home park permit. DONE AND RECOMMENDED this 16th day of February, 1990, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 1990. COPIES FURNISHED: Sonia N. Burton, Esquire HRS-District 7 Legal Office 400 W. Robinson St., Suite 701 Orlando, FL 32801 J. Thomas Bowden, Esquire P.O. Box 3187 Orlando, FL 32801-3187 R. Sam Power, Agency Clerk HRS 1323 Winewood Blvd. Tallahassee, FL 32399-0700 John Miller, General Counsel HRS 1323 Winewood Blvd. Tallahassee, FL 32399-0700 =================================================================
Findings Of Fact Respondent made a timely request for formal hearing in response to Petitioner's Administrative Complaint. Respondent is Mark Allen Vanderwater. At all times pertinent to these proceedings, Mr. Vanderwater held certified general contractor license number CG-CO15948. His address of record is Coral Springs, Florida. John Andrews Anagnostaras, acting on behalf of Expedia Limited (Expedia), executed an agreement on December 17, 1986 with 2C.D.M., Inc., represented by Mark Allan Vanderwater, the Respondent. Under terms of the agreement ("Expedia- Vanderwater Agreement"), the Respondent's corporation agreed to act as General Contractor and provide certain services to Expedia in connection with the construction of the project known as "Bergin's Beer & Wine Garden" located in the Bayside Marketplace Development in Miami, Florida. This agreement titled the role of Expedia as "Owners Project Representative/Construction Manager." Among services to be provided by Respondent's corporation under the terms of the Expedia-Vanderwater Agreement, were: general construction services consisting of day to day supervision as requested by Expedia; provision of required licensing necessary to obtain construction permits; securing and delivery to Expedia of any required inspection, testing and approval certificates; collection and delivery to Expedia of all written warranties and equipment manuals; provision to Expedia of proof of Respondent's workman's compensation and general liability insurance coverage; and coordination of subcontractors and suppliers and delivery of the completed project to Expedia. Payments to Respondent, under terms of the Expedia-Vanderwater Agreement, were to consist of a $500 payment upon execution of the document, professional fees of $2,500, and $125 per day for daily supervision. As adduced from testimony at the hearing, a grand total of approximately $8,500 in fees was generated by Respondent. He received payments totalling $5,000 and claims he is still owed $3,500 by Expedia. The Expedia-Vanderwater Agreement specifically provided that payments to the various suppliers and subcontractors would be made directly by Expedia, as opposed to Respondent making such payments. While Respondent ordered materials, he made no payments of any consequence to subcontractors. Rather, the customers, Bergin and Sherman, made monetary payments to John Andrews Anagnostaras on behalf of Expedia. Numerous liens totalling at least $30,000 have been filed by various subcontractors due to lack of payment for supplies or services. The Expedia-Vanderwater Agreement further stipulated that Respondent's corporation would conduct all communications with the owners of the project through Expedia. The evidence fails to show that any communication from Respondent to Mr. Bergin or Ms. Sherman, the owners and customers, ever occurred through the conduit of Expedia. For that matter, the proof establishes that neither of the owners was aware of the involvement of Respondent or his corporation in the construction of the project until the closing days of March, 1987. Subsequent to execution of the "Expedia-Vanderwater Agreement," John Andrews Anagnostaras, again acting as representative for Expedia, executed an agreement with customers Kevin Bergin and Arlene Sherman. This agreement ("Expedia-Bergin Agreement") was signed on January 16, 1987, to confirm commencement of work on the Bergin project as of December 20, 1986. The Expedia-Bergin Agreement contemplated total project costs of $130,000 for construction of the commercial beer and wine retail store. The agreement designated Expedia as "Contractor" on the project. While the document reflects the signature of Arlene Sherman in a space provided for a witness, testimony at hearing established Ms. Sherman was also an owner in the project. An agreement with a subcontractor for supply and installation of the electrical network and accessories needed on the Bergin project was signed by John Andrews Anagnostaras on January 8, 1987. He also executed an agreement on January 7, 1987, with another subcontractor for manufacture, supply and installation of millwork on the Bergin project. An application, signed by Respondent and bearing the name and local address of Arlene Sherman as owner, resulted in the issuance of a building permit for construction of interior partitions, millwork, electrical and plumbing services, floor finishing and ceiling suspension work associated with the Bergin project. The permit was issued on January 29, 1987, well after the beginning of the project as documented in the Expedia-Bergin Agreement. Other than the pulling of the building permit and ordering of materials, Respondent's involvement with the project was negligible until the latter part of March, 1987. On March 18, 1987, during the course of a "walk through" inspection of the development where the Bergin project was being constructed, Petitioner's investigator was apprised that certain records of the developer of the Market Place at Bayside, Rouse Corporation, reflected the identity of the contractor on the Bergin project to be John Andrews Anagnostaras. Subsequent investigation revealed that neither John Andrews Anagnostaras or Expedia Limited are, or ever have been, registered or qualified as general contractors by the Florida Construction Licensing Board as required by law of the State of Florida. While the record is not clear regarding the exact date, a short time later a cease and desist agreement was executed by John Andrews Anagnostaras with the Petitioner wherein Mr. Anagnostaras agreed to desist from unlicensed contracting work. At about the time of the exposure of the unlicensed status of Expedia and its representative, Ms. Sherman was informed by Petitioner's investigator that the Bergin project would be shut down because of the contractor's lack of license. This was also the time when she received her first knowledge of the involvement of the Respondent in the Bergin project. Testimony of Kevin Bergin substantiates this evidence. Although he possessed a vague recollection of seeing Respondent in the background in one meeting with John Andrews Anagnostaras, Kevin Bergin learned of the Respondent's involvement in the construction project and the unlicensed situation regarding Expedia on or about April 1, 1987. Ms. Sherman met with Respondent at the construction site to prepare a "punch list" of unfinished items on the Bergin Project around the third week of March, 1987. This list of needs was formalized by Respondent and presented to Ms. Sherman on April 10, 1987. Respondent accomplished a minimal number of the items set forth in the "punch list," but failed to correct many major noted deficiencies such as installation of a brass bar, kitchen cabinets, beveled mirrors, ventilation for an ice machine, or replacement of three quarter inch counter topping for the previously installed one quarter inch topping. Ms. Sherman visited the project construction site an average of four days a week beginning in February, 1987, but has no clear recollection of the Respondent being there until meeting with him to prepare the "punch list." She does recall discussing the delay in millwork with the Respondent, and, while the date of this conversation could not be recalled, the discussion likely took place in the latter part of March, 1987. Respondent testified he appeared on the project construction site approximately 30 of the roughly 90 days of the project's duration. The length of his visits varied from a few minutes to a few hours, according to Respondent. He also testified that he considered himself the general contractor on the project and was without knowledge of the Expedia-Bergin Agreement assigning that role to Expedia. Further, he testified that he figured the owners lived in New York. This testimony of the Respondent is not credited in view of the address of Ms. Sherman on the building permit application and the Respondent's unsuccessful, insistent and contradictory attempts during the hearing to have Ms. Sherman recall several meetings with him during the time of the construction of the project. While Respondent provided a March 9, 1987, notice to the Rouse Corporation as the developer of the Marketplace at Bayside that Respondent was providing general contracting, site supervision and coordination services in connection with the Bergin project, the evidence fails to show provision of similar notice to owners Sherman and Bergin. Respondent was aware that Expedia and John Andrews Anagnostaras were not licensed as general contractors under Florida law. Respondent failed to qualify either Mr. Anagnostaras or Expedia as an affiliate with Respondent's corporation as required by section 488.119, Florida Statutes. Respondent aided a contractor (John Andrews Anagnostaras d/b/a Expedia) not properly licensed under state licensing laws by obtaining or authorizing the obtaining of a permit, through use of Respondent's license, for a construction job known as "Bergin's Beer and Wine Garden." Respondent failed to properly supervise the finances on such construction job. By his own admission and the terms of the Expedia-Vanderwater Agreement, he relinquished to the unlicensed contractor all responsibility for finances connected with subcontractors.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the offenses charged in the administrative complaint and imposing a penalty of $1500 and probation for a period of one year upon such terms and conditions as may be set by the Construction Industry Licensing Board. DONE AND RECOMMENDED this 18th day of February, 1988, in Tallahassee, 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 18th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5331 The following constitutes my specific rulings in accordance with section 120.59 (2), Florida Statutes, on all proposed findings of fact submitted by the parties: Proposed findings submitted by Petitioner Proposed findings submitted by the Petitioner consisted of 12 paragraphs, paragraphs 5-12 being unnumbered. Those paragraphs have been numbered and all proposed findings are treated as follows: Included in finding number 2. Rejected as unnecessary. Included in finding number 10. Included in finding number 10. Included in findings number 3, 4, 10, 12, 14 and 15. Included in finding number 14. Included in findings number 3, 4, 6, 14, IS and 22. The first sentence is included in finding number 16. Remainder rejected as unnecessary. Included in findings 16, 17 and 18. Included in findings 7 and 11. Included in finding number 7. Included in findings 18 and 19. Proposed findings submitted by Respondent While unrepresented at hearing, Respondent's proposed findings were filed on his behalf by Edmond L. Sugar, Esquire. Although untimely filed with the Division of Administrative Hearings (6 days after the required deadline determined at hearing) and unnumbered, those 21 paragraphs have been numbered 1- 21 and are treated as follows: Included in finding number 2. Rejected as unnecessary. Included in finding number 10. As to co-ownership, this proposal is included In finding number 10. The remainder is rejected as unnecessary. Rejected as contrary to the weight of the evidence. Mr. Anagnostaras held himself out to the owners as an independent contractor. Included in findings numbered 3, 4 and 6. Rejected as not supported by the evidence, see Petitioner's exhibit number 5. Rejected on the basis of credibility. Included in finding number 19. Included in finding number 12. Rejected as not consistent with the evidence. Rejected as not consistent with the evidence. Rejected as unnecessary. Rejected as unnecessary. Included only as to signing of cease and desist agreement in finding number 14. Rejected as to remainder of proposal as not supported by the evidence. See Petitioner Exhibit 3. Included in finding number 17 as to date documentation of the punch list was submitted to Ms. Sherman. Remainder of proposal rejected as not supported by the evidence. Rejected, not supported by the evidence. Rejected as unnecessary. Rejected as unnecessary and not supported by the evidence. Rejected as not supported by the evidence. Rejected as not supported by the evidence. COPIES FURNISHED: Lee Sims, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Mark Allen Vanderwater 3244 Coral Ridge Drive Coral Springs, Florida 33065 Edmond L. Sugar, Esquire HUNTER & HUNTER, P.A. 1930 Tyler Street Hollywood, Florida 33020 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely, Executive Director Post Office Box 2 Jacksonville, Florida 32201
The Issue Whether the North Fort Myers Homeowners Association, Inc.'s participation in the underlying proceeding entitles Florida Cities Water Company, Inc., to an award of attorney's fees and costs pursuant to Sections 120.57(1)(b)5 and 120.59(6), Florida Statutes.
Findings Of Fact By Consent Order 88-0384 between the Department of Environmental Regulation ("DER") and the Florida Cities Water Company, Inc., ("FCWC"), the FCWC agreed to complete certain modifications to its Waterway Estates wastewater treatment plant. The consent agreement established deadlines for said modifications. The FCWC was apparently unable to meet the deadlines for completion of modifications. By Consent Order 90-1747, executed in December, 1990, the DER extended the previously established deadlines and provided for issuance of a temporary operating permit by the DER to the FCWC. In December, 1990, the North Fort Myers Homeowners Association, Inc., ("Homeowners") filed a Petition for Administrative Hearing, challenging the consent agreement deadline extension and the provision related to issuance of a temporary operating permit by the DER to the FCWC. The case was referred to the Division of Administrative Hearings (DOAH Case No. 91-0235). In April, 1991, the DER and FCWC executed an Amended Consent Order #90- 1747, deleting the provisions related to issuance of a temporary operating permit. The DER thereafter moved to dismiss the Homeowners petition for hearing. In May, 1991, the Hearing Officer granted the motion to dismiss without prejudice and provided the Homeowners with an opportunity to file an amended petition. In June 1991, Homeowners filed an amended petition challenging the amended consent order. The DER and FCWC filed a joint motion to strike substantial portions of the amended petition. In July, 1991, the joint motion to strike was granted. In October, 1991, the DER filed a motion for summary recommended order of dismissal. On October 31, 1991, the Hearing Officer entered a Recommended Order of Dismissal. A Final Order was subsequently issued by the DER adopting the Recommended Order. During the pendency of DOAH Case No. 91-0235, Homeowners filed DOAH Case No. 91-6436, North Fort Myers Homeowners Association, Inc., v. State of Florida Department of Environmental Regulation, Florida Cities Water Company and Bradley Development Company. In this case, the Homeowners challenged the proposed award of a wastewater collection system permit to Bradley Development Company, the developer of the Barrett Park housing project. On October 1, 1991, FCWC moved to be dismissed as a party to Case No. 91-6436. The motion was granted on October 31, 1991. On December 12, 1991, based on Bradley Development Company's previously filed motion, the Hearing Officer entered a Recommended Order of Dismissal for failure to state a claim in Case No. 91-6436. A Final Order was issued by the DER adopting the Recommended Order and ordering the issuance of a collection system permit to Bradley. There is clear evidence that the Homeowners were opposed to the development of the Barrett Park housing project for a number of reasons, one of which was the fact that the project would tie into the apparently inadequate Waterway Estates wastewater treatment plant. The Homeowners desired to force the FCWC to complete the modifications required by relevant regulatory agencies prior to additional burdens being placed upon the treatment system. The evidence fails to establish that the participation of Homeowners in the foregoing proceedings was for an improper purpose.
Findings Of Fact At all times material hereto, Respondent has been a registered roofing contractor having been issued License No. RC 0041149. Respondent's address of record is Miami, Florida. The Dade County Construction Trades Qualifying Board is authorized to discipline tradesmen and contractors in Dade County, Florida. By letter dated September 17, 1986, the Metropolitan Dade County, Florida, Building & Zoning Department advised Respondent that a formal hearing would be held before the Dade County Construction Trades Qualifying Board on 35 charges arising out of Respondent's roofing and painting activities. A formal hearing was conducted on November 13, 1986, at which time 24 of the 35 charges were dismissed, and the formal hearing was continued. By letter dated January 21, 1987, the Metropolitan Dade County, Florida, Building & Zoning Department advised Respondent that the continuation of his formal hearing would be held on February 12, 1987, at which time 4 additional charges, enumerated in that letter, would also be heard. At the conclusion of the formal hearing on February 12, 1987, 12 more of the charges were dismissed. Out of the total of 39 charges filed against Respondent, Respondent was found guilty of 3 charges. The Construction Trades Qualifying Board ordered that the business and personal certificates of Respondent be revoked and that Respondent be fined a total of $5,000. Respondent was present and had the opportunity to be heard at the formal hearing conducted on November 13, 1986, and on February 12, 1987. After Respondent was advised of the disciplinary action imposed by the Construction Trades Qualifying Board, he paid the fine imposed upon him. He also made restitution to the two homeowners involved. One of the homeowners was complaining about a leak in the roof that Respondent had installed. Respondent gave the homeowner another new roof at no cost. The other homeowner had refused to pay for the installation of the roof, and Respondent had placed a lien against the property. Respondent cancelled the lien on the property so that that homeowner received the new roof for free. Respondent's licenses were reinstated by the Dade County Construction Trades Qualifying Board, and Respondent remains in good standing with that local agency. Respondent has been previously disciplined by the Florida Construction Industry Licensing Board as a result of an informal proceeding held on January 9, 1986. The final order from that proceeding assessed a $250 fine against Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in the Administrative Complaint filed herein and imposing against him an administrative fine in the amount of $500 to be paid by a date certain. DONE and RECOMMENDED this 29th day of February, 1988, at Tallahassee, Florida. LINDA M. RIGOT, 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 29th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3892 Petitioner's proposed finding of fact numbered 1 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law. The remainder of Petitioner's proposed findings of fact have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact are contained in a letter which, essentially, is simply an attempt to reargue the facts underlying the local disciplinary action and to establish the fact that he is an excellent roofer. Only those sentences which relate to the restitution made to the two customers by giving them free roofs have been adopted in this Recommended Order, and the remainder of the sentences have been rejected as being irrelevant to the issue involved in this proceeding. COPIES FURNISHED: Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Jonathan Ring, Esquire Peter Fleitman, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Louis Gordon 14870 Southwest 205th Avenue Miami, Florida 33187 William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
