The Issue Whether the claimants herein are entitled to payment from the Construction Industries Recovery Fund and, if so, the amount of the payment to which each claimant is entitled. Whether the license of the Petitioner is subject to automatic suspension pursuant to Section 489.143(7), Florida Statutes (Supp. 1998).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Fund is established by Section 489.140, Florida Statutes, for the purpose of reimbursing those persons who meet the eligibility requirements set forth in Section 489.141, Florida Statutes. The Board is the entity responsible for reviewing applications for payment from the Fund and entering orders approving or disapproving the applications. Sections 489.140(1) and 489.143(1), Florida Statutes. Mr. Kiselius is a licensed residential pool/spa contractor, having been first issued such a license in 1984. Mr. Kiselius's license is currently on inactive status, but at the times material to this action, Mr. Kiselius's license was active. Pool Masters was a Florida corporation incorporated on August 10, 1995. Frederick H. Martin and Abraham Zafrani were the sole shareholders of the corporation, and Mr. Martin was the President and Secretary of the corporation, and Mr. Zafrani was the Vice-President and Treasurer. From on or about October 24, 1995, until November 14, 1997, Mr. Kiselius was the qualifying agent for Pool Masters. The record does not reflect the date on which Pool Masters was issued its certificate of authority allowing it to engage in contracting as a business organization, but it was assigned Qualified Business Organization License Number QB0002327 on or about November 6, 1996. Pool Masters filed for bankruptcy pursuant to Chapter 7 of the United States Bankruptcy Code on January 1, 1998, and the corporation was administratively dissolved on October 16, 1998. DOAH Case No. 99-1665: Santibanez and Pappas Eugene Santibanez and Alexander Pappas entered into a contract with Pool Masters for construction of a swimming pool. The contract was executed on or about March 25, 1997. The total price stated in the contract was $21,000.00; a change order was executed on November 4, 1997, for an additional price of $2,890.00. Pool Masters represented to Mr. Santibanez and Mr. Pappas that it was a licensed swimming pool contractor. Pool Masters began work on the pool on or about May 17, 1997. Mr. Santibanez and Mr. Pappas made payments to Pool Masters pursuant to the contract, and Pool Masters excavated the hole for the pool, put in the foundation, and poured the concrete. Pool Masters ceased work on the swimming pool in late November 1997, after the concrete was poured. A week later, Mr. Santibanez heard that Pool Masters had declared bankruptcy. At the time Pool Masters ceased work on the pool, Mr. Santibanez and Mr. Pappas had paid Pool Masters a total of $19,690.00 for work done pursuant to the contract and change order. Although Pool Masters represented to them that the payments would be used to pay subcontractors and materialmen, there were subcontractors and materialmen who were not paid. At least one lien was filed against Mr. Santibanez's and Mr. Pappas's property, and they paid the subcontractors and materialmen directly in order to get the liens released. On January 17, 1998, the United States Bankruptcy Court for the Southern District of Florida issued a Notice of Commencement of Case Under Chapter 7 of the Bankruptcy Code, showing that Pool Masters had filed for bankruptcy on January 7, 1998. On or about March 11, 1998, Mr. Santibanez and Mr. Pappas submitted a Construction Industries Recovery Fund Claim Form to the Board, naming Pool Masters as the contractor. In an order entered April 20, 1998, the bankruptcy court lifted the automatic stay to allow Mr. Santibanez and Mr. Pappas to file suit against Pool Masters. Mr. Santibanez and Mr. Pappas filed a complaint against Pool Masters in the Circuit Court for the Seventeenth Judicial Circuit in Broward County, Florida, seeking damages for breach of the contract for construction of the pool. Mr. Santibanez and Mr. Pappas alleged in the complaint that Pool Masters had failed to complete the work; failed to perform in a reasonable and timely manner and abandoned the project for more than 90 days which is a violation of F.S. 489.129(1)(k) [Section 489.129(1)(j)];[ 3/ ] falsely represented that monies paid to them were paid to materialmen and sub- contractors which resulted in financial harm to the Plaintiffs which is a violation of F.S. 489.129(1)(l) [Section 489.129(1)(k)];[ 4/ ] committed mismanagement and misconduct which caused Plaintiffs financial harm as of [sic] liens were recorded as against the Plaintiff's [sic] home in violation of F.S. 489.129(1)(h)(1) [Section 489.129(1)(g)1.];[ 5/ ] f [sic]. committed mismanagement and misconduct which caused Plaintiffs financial harm in that the percentage of completion is less than the percentage of the total contract price paid in violation of F.S. 489.129(1)(h)(2) [Section 489.129(1)(g)2.].[ 6/ ] Mr. Santibanez and Mr. Pappas further alleged in the complaint that the cost to complete the pool after construction was abandoned by Pool Masters was $17,975.50, and they included in the complaint an itemized list of expenditures to support their claim. The circuit court entered a Default Final Judgment on August 4, 1998, awarding Mr. Santibanez and Mr. Pappas $17,675.50, to be recovered from Pool Masters, plus interest at the statutory rate. In a letter from their attorney dated August 12, 1998, Mr. Santibanez and Mr. Pappas submitted to the Board additional documents to support their claim against the Construction Industries Recovery Fund, based on their Default Final Judgment against Pool Masters. The final report of the Trustee of Pool Masters' bankruptcy estate, dated December 1, 1999, indicated that Pool Masters had no funds remaining after disbursement for administrative expenses. Mr. Santibanez and Mr. Pappas did not receive any funds from the bankruptcy estate or any other source to satisfy the judgment against Pool Masters. Mr. Santibanez and Mr. Pappas satisfy the statutory criteria for eligibility for payment from the Fund in the amount of $17,675.50. DOAH Case No. 99-1666: Klaus and Lucrecia Mueller Klaus and Lucrecia Mueller entered into a contract with Pool Masters for construction of a swimming pool. The contract was executed on or about February 24, 1997. The total price stated in the contract was $16,400.00. Pool Masters represented to Mr. and Mrs. Mueller that it was a licensed swimming pool contractor. Pool Masters began work on the pool in Spring 1997, and Mr. and Mrs. Mueller made payments to Pool Masters pursuant to the contract. Pool Masters excavated the hole for the pool, installed the steel frame, poured gunnite at the shallow end of the pool, and installed the brick and tile around the pool. Pool Masters last worked on the swimming pool in late November 1997. At the time Pool Masters ceased work on the pool, Mr. and Mrs. Mueller had paid Pool Masters approximately $12,900.00 for work done pursuant to the contract. Although Pool Masters represented to them that the payments would be used to pay subcontractors and materialmen, there were subcontractors and materialmen who were not paid. Liens were filed against Mr. and Mrs. Mueller's property, and they paid the subcontractors and materialmen directly in order to get the liens released. On January 17, 1998, the United States Bankruptcy Court for the Southern District of Florida issued a Notice of Commencement of Case Under Chapter 7 of the Bankruptcy Code, showing that Pool Masters had filed for bankruptcy on January 7, 1998. On or about March 11, 1998, Mr. and Mrs. Mueller submitted a Construction Industries Recovery Fund Claim Form to the Board, naming Pool Masters as the contractor. In an order entered April 20, 1998, the bankruptcy court lifted the automatic stay to allow Mr. and Mrs. Mueller to file suit against Pool Masters. Mr. and Mrs. Mueller filed a complaint against Pool Masters in the Circuit Court for the Seventeenth Judicial Circuit in Broward County, Florida, seeking damages for breach of the contract for construction of the pool. Mr. and Mrs. Mueller alleged in the complaint that Pool Masters had failed to complete the work; failed to perform in a reasonable and timely manner and abandoned the project for more than 90 days which is a violation of F.S. 489.129(1)(k) [Section 489.129(1)(j)];[ 7/ ] falsely represented that monies paid to them were paid to materialmen and sub- contractors which resulted in financial harm to the Plaintiffs which is a violation of F.S. 489.129(1)(l) [Section 489.129(1)(k)];[ 8/ ] committed mismanagement and misconduct which caused Plaintiffs financial harm as of [sic] liens were recorded as against the Plaintiff's [sic] home in violation of F.S. 489.129(1)(h)(1) [Section 489.129(1)(g)1.];[ 9/ ] f [sic]. committed mismanagement and misconduct which caused Plaintiffs financial harm in that the percentage of completion is less than the percentage of the total contract price paid in violation of F.S. 489.129(1)(h)(2) [Section 489.129(1)(g)2.].[ 10/ ] Mr. and Mrs. Mueller further alleged in the complaint that the cost to complete the pool after construction was abandoned by Pool Masters was $13,299.51. The matter was presented to the circuit court, ex parte, upon Mr. and Mrs. Mueller's Motion for Default Final Judgment. The court entered a Default Final Judgment in June 1998, awarding Mr. and Mrs. Mueller $13,299.51, to be recovered from Pool Masters, plus interest at the statutory rate. In a letter from their attorney dated June 23, 1998, Mr. and Mrs. Mueller submitted to the Board additional documents to support their claim against the Construction Industries Recovery Fund, based on their Default Final Judgment against Pool Masters. The final report of the Trustee of Pool Masters' bankruptcy estate, dated December 1, 1999, indicated that Pool Masters had no funds remaining after disbursement for administrative expenses. Mr. and Mrs. Mueller did not receive any funds from the bankruptcy estate or any other source to satisfy their judgment against Pool Masters. Mr. and Mrs. Mueller satisfy the statutory criteria for eligibility for payment from the Fund in the amount of $13,299.51. DOAH Case No. 99-1667: Mario and Martha Alboniga Mario and Martha Alboniga entered into a contract with Pool Masters for construction of a swimming pool. The contract was executed on or about March 17, 1997. The total price stated in the contract was $24,000.00. Pool Masters represented to Mr. and Mrs. Alboniga that it was a licensed swimming pool contractor. Pool Masters began work on the pool on November 10, 1997, and Mr. and Mrs. Alboniga made payments to Pool Masters pursuant to the contract. Pool Masters excavated the hole for the pool and poured the concrete form of the pool. The last day Pool Masters worked on the swimming pool was November 19, 1997. Mr. and Mrs. Alboniga later heard that Pool Masters had declared bankruptcy. At the time Pool Masters ceased work on the pool, Mr. and Mrs. Alboniga had paid Pool Masters a total of $15,200.00 for work done pursuant to the contract. Although Pool Masters represented to them that the payments would be used to pay subcontractors and materialmen, there were subcontractors and materialmen who were not paid. Liens were filed against Mr. and Mrs. Alboniga’s property, and they paid the subcontractors and materialmen directly in order to get the liens released. On January 17, 1998, the United States Bankruptcy Court for the Southern District of Florida issued a Notice of Commencement of Case Under Chapter 7 of the Bankruptcy Code, showing that Pool Masters had filed for bankruptcy on January 7, 1998. On or about March 11, 1998, Mr. and Mrs. Alboniga submitted a Construction Industries Recovery Fund Claim Form to the Board, naming Pool Masters as the contractor. In an order entered April 20, 1998, the bankruptcy court lifted the automatic stay to allow Mr. and Mrs. Alboniga to file suit against Pool Masters. Mr. and Mrs. Alboniga filed a complaint against Pool Masters in the Circuit Court for the Seventeenth Judicial Circuit in Broward County, Florida, seeking damages for breach of the contract for construction of the pool. Mr. and Mrs. Alboniga alleged in the complaint that Pool Masters had failed to complete the work; failed to perform in a reasonable and timely manner and abandoned the project for more than 90 days which is a violation of F.S. 489.129(1)(k) [Section 489.129(1)(j)];[ 11/ ] falsely represented that monies paid to them were paid to materialmen and sub- contractors which resulted in financial harm to the Plaintiffs which is a violation of F.S. 489.129(1)(l) [Section 489.129(1)(k)];[ 12/ ] committed mismanagement and misconduct which caused Plaintiffs financial harm as of [sic] liens were recorded as against the Plaintiff's [sic] home in violation of F.S. 489.129(1)(h)(1) [Section 489.129(1)(g)1.];[ 13/ ] f [sic]. committed mismanagement and misconduct which caused Plaintiffs financial harm in that the percentage of completion is less than the percentage of the total contract price paid in violation of F.S. 489.129(1)(h)(2) [Section 489.129(1)(g)2.].[ 14/ ] Mr. and Mrs. Alboniga further alleged in the complaint that the cost to complete the pool after construction was abandoned by Pool Masters was $10,541.77. The circuit court entered a Final Judgment "pursuant to stipulation" on August 4, 1998, awarding Mr. and Mrs. Alboniga $10,541.77, to be recovered from Pool Masters, plus interest at the statutory rate. In a letter from their attorney dated August 12, 1998, Mr. and Mrs. Alboniga submitted to the Board additional documents to support their claim against the Construction Industries Recovery Fund, based on their Final Judgment against Pool Masters. The final report of the Trustee of Pool Masters' bankruptcy estate, dated December 1, 1999, indicated that Pool Masters had no funds remaining after disbursement for administrative expenses. Mr. and Mrs. Alboniga did not receive any funds from the bankruptcy estate or any other source to satisfy their judgment against Pool Masters. Mr. and Mrs. Alboniga satisfy the statutory criteria for eligibility for payment from the Fund in the amount of $10,541.77. DOAH Case No. 99-1668: Salvator Militello and Sharon Sidorski Salvator Militello and Sharon Sidorski entered into a contract with Pool Masters for construction of a swimming pool. The contract was executed on or about April 6, 1997. The total price stated in the contract was $24,295.00. Pool Masters represented to Mr. Militello and Ms. Sidorski that it was a licensed swimming pool contractor. Mr. Militello and Ms. Sidorski made payments to Pool Masters pursuant to the contract. Pool Masters excavated the hole for the pool and spa, installed basic plumbing, and poured the concrete for the pool. Pool Masters last worked on the swimming pool in October 1997. At the time Pool Masters ceased work on the pool, Mr. Militello and Ms. Sidorski had paid Pool Masters $19,389.00 for work done pursuant to the contract. Although Pool Masters represented to them that the payments would be used to pay subcontractors and materialmen, there were subcontractors and materialmen who were not paid. Liens were filed against Mr. Militello's and Ms. Sidorski's property, and they paid the subcontractors and materialmen directly in order to get the liens released. On January 17, 1998, the United States Bankruptcy Court for the Southern District of Florida issued a Notice of Commencement of Case Under Chapter 7 of the Bankruptcy Code, showing that Pool Masters had filed for bankruptcy on January 7, 1998. On or about March 11, 1998, Mr. Militello and Ms. Sidorski submitted a Construction Industries Recovery Fund Claim Form to the Board, naming Pool Masters as the contractor. In an order entered April 20, 1998, the bankruptcy court lifted the automatic stay to allow Mr. Militello and Ms. Sidorski to file suit against Pool Masters. Mr. Militello and Ms. Sidorski filed a complaint against Pool Masters in the Circuit Court for the Seventeenth Judicial Circuit in Broward County, Florida, seeking damages for breach of the contract for construction of the pool. Mr. Militello and Ms. Sidorski alleged in the complaint that Pool Masters had failed to complete the work; failed to perform in a reasonable and timely manner and abandoned the project for more than 90 days which is a violation of F.S. 489.129(1)(k) [Section 489.129(1)(j)];[ 15/ ] falsely represented that monies paid to them were paid to materialmen and sub- contractors which resulted in financial harm to the Plaintiffs which is a violation of F.S. 489.129(1)(l) [Section 489.129(1)(k)];[ 16/ ] committed mismanagement and misconduct which caused Plaintiffs financial harm as of [sic] liens were recorded as against the Plaintiff's [sic] home in violation of F.S. 489.129(1)(h)(1) [Section 489.129(1)(g)1.];[ 17/ ] f [sic]. committed mismanagement and misconduct which caused Plaintiffs financial harm in that the percentage of completion is less than the percentage of the total contract price paid in violation of F.S. 489.129(1)(h)(2) [Section 489.129(1)(g)2.].[ 18/ ] Mr. Militello and Ms. Sidorski further alleged in the complaint that the cost to complete the pool after construction was abandoned by Pool Masters was $13,544.00 and that they paid $1,641.68 to satisfy liens and unpaid subcontractors and materialmen, for total damages of $15,185.68. The circuit court entered a Final Judgment "pursuant to stipulation" on August 4, 1998, awarding Mr. Militello and Ms. Sidorski $15,185.68, to be recovered from Pool Masters, plus interest at the statutory rate. In a letter from their attorney dated August 12, 1998, Mr. Militello and Ms. Sidorski submitted to the Board additional documents to support their claim against the Construction Industries Recovery Fund, based on their Final Judgment against Pool Masters. The final report of the Trustee of Pool Masters' bankruptcy estate, dated December 1, 1999, indicated that Pool Masters had no funds remaining after disbursement for administrative expenses. Mr. Militello and Ms. Sidorski did not receive any funds from the bankruptcy estate or any other source to satisfy their judgment against Pool Masters. Mr. Militello and Ms. Sidorski satisfy the statutory criteria for eligibility for payment from the Fund in the amount of $15,185.68. DOAH Case No. 00-0024: Jack and Paula Tieger Jack and Paula Tieger entered into a contract with Pool Masters for construction of a swimming pool. The contract was executed on or about December 17, 1995. The total price stated in the contract was $28,200.00. Pursuant to the contract, Pool Masters built a pool and screen enclosure, and Mr. and Mrs. Tieger paid Pool Masters the price specified in the contract. Mr. and Mrs. Tieger were not, however, satisfied with the work done by Pool Masters, and, in or around 1997, they filed a complaint for breach of contract against Pool Masters in the Circuit Court of the Seventeenth Judicial Circuit, in Broward County, Florida. In the complaint, Mr. and Mrs. Tieger alleged that Pool Masters had breached the contract: By failing to adequately explain the technical terms used in the Agreement to the TIEGERS; By failing to install a vacuum line with valve as specified in the Agreement; By failing to install anti-corrosive handrails in the swimming pool; By failing to properly install and/or provide a properly functioning waterfall as specified in the Agreement; By failing to properly fill the area behind the waterfall; By unilaterally, and or the TIEGERS' [sic] objection, placing a tile with the "Pool Masters" logo on the steps heading into the pool: By failing to re-route the TIEGERS' [sic] sprinkler system in a timely manner; By failing to advise the TIEGERS that they were going to need to pay for and install a separate circuit breaker box as part of the installation of the swimming pool; and By failing to install the second screen door as specified in the Agreement. Mr. and Mrs. Tieger did not identify the amount of damages they allegedly suffered as a result of Pool Masters's alleged breach of contract. Mr. and Mrs. Tieger were not aware that Pool Masters had declared bankruptcy until January 1998, when Mrs. Tieger went to Pool Masters' office and found the notice on the door. A non-jury trial was held before the circuit court on March 5, 1998; Pool Masters did not attend the trial. In a Final Judgment entered on March 25, 1998, the court awarded Mr. and Mrs. Tieger $4,200 as compensatory damages to be recovered from Pool Masters. In a Proof of Claim dated May 13, 1998, and filed with the United States Bankruptcy Court of the Southern District of Florida, Mr. and Mrs. Tieger submitted an unsecured claim against Pool Masters' bankruptcy estate in the amount of $7,300.00, which represented the compensatory damages awarded in the final judgment, together with attorney's fees and costs. Mr. and Mrs. Tieger have not collected any portion of their judgment against Pool Masters. Mr. and Mrs. Tieger submitted to the Board a Construction Industries Recovery Fund Claim Form dated December 5, 1998, and the Board awarded Mr. and Mrs. Tieger $800.00, representing the cost of the vacuum line with valve and the second screen door which Pool Masters had not installed. Mr. and Mrs. Tieger do not satisfy the statutory criteria for eligibility for payment from the Fund. Mr. and Mrs. Tieger failed to establish that they filed their claim with the Board within two years of the date they discovered the alleged deficiencies in the pool, and they failed to establish that the final judgment against Pool Masters was based on a violation of Section 489.129(1)(g), (j), or (k), Florida Statutes (Supp. 1998). The evidence presented herein is not sufficient to establish that Mr. Kiselius is the licensee against whom the claimants obtained final judgments.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, 25/ it is RECOMMENDED that the Construction Industry Licensing Board: Enter final orders as follows: In DOAH Case No. 99-1665, finding Eugene Santibanez and Alexander Pappas eligible for payment from the Fund in the amount of $17,675.00, in satisfaction of a final judgment against Pool Masters, Inc.; In DOAH Case No. 99-1666, finding Klaus and Lucrecia Mueller eligible for payment from the Fund in the amount of $13,299.51, in satisfaction of a final judgment against Pool Masters, Inc.; In DOAH Case No. 99-1667, finding Mario and Martha Alboniga eligible for payment from the Fund in the amount of $10,541.77, in satisfaction of a final judgment against Pool Masters, Inc.; In DOAH Case No. 99-1668, finding Salvator Militello and Sharon Sidorski eligible for payment from the Fund in the amount of $15,185.68, in satisfaction of a final judgment against Pool Masters, Inc.; and In DOAH Case No. 00-0024, dismissing the claim of Jack and Linda Tieger for payment from the Fund. Determine that Christopher P. Kiselius is not the "licensee" whose license is subject to automatic suspension pursuant to Section 489.143(7), Florida Statutes (Supp. 1998), as a result of payments to the claimants in DOAH Case Nos. 99- 1665, 99-1666, 99-1667, and 99-1668. DONE AND ENTERED this 31st day of August, 2000, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2000.
Findings Of Fact Based on the evidence presented, the following facts were found: At all times pertinent to this case, Respondent held two active contractor's licenses issued by the State of Florida, RP 0033354 and CP 015029. Respondent's current address is 1316 Hoffner Avenue, Orlando, Florida 32809. At all times pertinent to this case, Respondent owned the firm Family Pools and did business as a pool contractor under that name. At no time did Respondent ever qualify his firm, under whose name he did business, with the Florida Construction Industry Licensing Board (CILB). On some date not specified, in June, 1980, Alphonse J. and Pauline L. Rodier contracted with Family Pools to build a pool at their residence at 601 Michigan Avenue, Englewood, Sarasota County, Florida for a price of 6,700. The contract was signed by Respondent for Family Pools. The pool price was to include a screened enclosure and deck, and the entire package was to be completed by July 4, 1980. The pool was paid for by two checks from Coast Federal Sayings and Loan Association in Sarasota from the proceeds of a home improvement loan and by a final check in the amount of $900 from the Rodiers, direct, on October 13, 1980. Respondent subcontracted the pool enclosure to Climatrol Screen Company of Enqlewood, Florida, for $2,065 but failed to pay this subcontractor. As a result, on November 26, 1980, Climatrol filed a lien against Rodier's property which was released only when the Rodiers paid an additional $790 which had not been satisfied by the Respondent. Respondent had satisfied part of the debt to Climatrol by relinquishing title to a truck he owned. On July 3, 1980, Family Pools contracted with Elmer J. and Carla T. Taylor, of Bunnell, Florida, to build an above-ground pool on their property for $4,800.00. The pool was to have a one year warranty against defective parts and a 20-year prorated replacement policy. According to the contract, the pool price included the pump, liner, filter, and walls, along with all other parts. The pool was constructed by employees of Family Pools about three or four weeks after the contract was signed. Not long after the pool was completed and filled, Mr. Taylor noticed that the vinyl liner was protruding out beneath the bottom of the metal retaining wall. His calls to Family Pools were never answered by Respondent with whom he asked to talk and repair work on this problem was not accomplished by the Respondent or Family Pools. Mr. Taylor had to do the work himself and Family Pools would not honor the warranty. Respondent offers the completion certificate executed by the Taylors on August 21, 1980,as evidence the pool was installed properly and the Taylors were satisfied. Mr. Taylor indicates he signed that certificate in blank under pressure from Respondent's agent, who cajoled him into doing it on the basis that if he did not, Family Pools could not be paid by the finance company under the installment sales contract. Also, during the period of the one year warranty, the pool pump burned out. Mr. Taylor had to replace that and pay for it himself, as the warranty was not honored. Respondent contends only a 90-day warranty on the pump, but that appears nowhere in the contract, which, in its description of the pool covered by the one year warranty, includes the pump. On August 29, 1980, Family Pools contracted with Janice Conover to build a swimming pool at her home in Venice, Florida for $4,780. The pool was to be completed approximately 30 days after excavation at the site. Between August 29, 1980, and December, 1980, Ms. Conover paid Family Pools a total of $4,741 by checks which were endorsed by "P. Vescera d/b/a Family Pools" or "Pasquale M. Vescera." On October 2, 1980, Respondent pulled a permit No. 7330- N from the Sarasota County Building Department, in his own name, to construct Ms. Conover's pool. In February, 1981, when the pool was only about fifty percent complete, Respondent ceased work on Ms. Conover's pool without giving her any notice or reason therefor. When Respondent stopped work, he had only dug the hole for the pool. The liner had been delivered but was not installed. The braces were there but not affixed, notwithstanding Ms. Conover had paid almost in full for the pool. As a result, she contracted with Richard Thompson, Respondent's former employee, to finish the work Respondent had started because at this point she could not find the Respondent. Thompson installed the brackets, the liner, and the deck. She had to pay extra for the pump, the chemicals, and the sweep--all of which, except for the sweep, she had paid for when she paid Respondent's price. Respondent never returned to complete Ms. Conover's pool. On July 7, 1980, Family Pools contracted with Robert A. and Florence L. Peipher to build a pool at their property in Port Charlotte, Florida, for a price of $6,900. Between July 7 and November 28, 1980, the Peiphers paid Family Pools, by checks, the sum of $6,905. All checks-were endorsed for deposit, "P. Vescera d/b/a Family Pools." The pool price was to include a screened pool enclosure and in September 1980, Family Pools contracted with Climatrol to build the screened enclosure for Peipher's pool for $1,807. Respondent and Family Pools failed to pay Climatrol for the enclosure and as a result, Climatrol filed a lien against the Peipher's property for $1,807 which was satisfied on March 9, 1981, by the Peiphers who paid Climatrol the amount owed. On March 2, 1981, the Peiphers filed a complaint against Respondent with the Contractor License Division of the Charlotte County Building Department because of Respondent's failure to pay Climatrol and the resultant cost to them. As a result of this complaint and the subsequent investigation into the allegations, the matter was referred to the Charlotte County Building Board which, at its meeting on May 7, 1981, after notice to Respondent, voted to revoke Respondent's permit privileges in Charlotte County until he made restitution to the Peiphers and to notify the State of Respondent's actions requesting state action against his license. Respondent suffered severe financial setbacks just about the time of these incidents. He was hospitalized for a period of five or six weeks and upon his return to his business found that he had been "robbed" of approximately $50,000 worth of fully paid for inventory. When he reported the shortage to the local law enforcement officials, they told him that since there was no evidence of a breaking in, they could do nothing about it. In addition, he could not recover from his insurance company for the same reason. There was no evidence other than Respondent's sworn testimony that there was a shortage or that he reported the loss to either agency. Respondent has been in the pool business in Florida for five years and in New Jersey for 32 years before that. He feels the cause of his problem is the fact that he trusted the people who worked for him who took advantage of him. During the entire period of time he was in business in Florida he took no money from the company for his personal use, living instead on income from a mortgage he owned in New Jersey. He subsequently filed for bankruptcy on March 9, 1981. The $15,000 in current accounts receivable he had on the books at that time was utilized in the bankruptcy proceeding to pay creditors. He got-none of it. He is now working in Orlando, Florida, for a pool rehabilitation company owned by his wife and her father. Respondent alleges that on July 15, 1980, he paid Richard Thompson $1,100 to complete work started on several pools, including that of Ms. Conover. Review of the prior findings of fact, however, shows that the contract with Ms. Conover was not entered into until approximately 45 days after Respondent supposedly made this payment to cover the work left undone on her pool. In light of that development, I find his contention completely without merit or basis in fact. Respondent admits that people were hurt as a result of his actions and he regrets this. However, he claims these few incidents are insignificant when compared with the over 500 satisfied customers he alleges he has served over the years. Finally, Respondent contends that early in 1980, after being advised that he had passed the test to be a certified pool contractor, he wrote to Petitioner and, after advising how he was registered and doing business, asked if he needed to make any changes in license registration. He did in fact do this and received no reply. He thereafter assumed he was acting correctly in that regard and that appears to be a justified assumption.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent's license as a contractor be suspended for two years and that he be assessed an administrative fine of $500. RECOMMENDED this 16th day of May, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 16th day of May, 1983. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Pasquale M. Vescera 1316 Hoffner Avenue Orlando, Florida 32809 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact At all times material hereto, Respondent has been a certified pool contractor in the state of Florida, having been issued License No. CP C029646. At all tines material hereto, Respondent has been the qualifying agent for Pools by Andrews, Inc., and the owner of that company. On August 21, 1986, George Silvers, a building inspector for the Village of Tequesta, saw people working at a pool site with no identification on the truck parked nearby. When he stopped, he discovered a crew installing- plumbing pipes for a swimming pool. When he asked for identification, Roland R. Androy identified himself as an employee of Pools by Andrews, Inc. Although "piping a pool" does not itself require specialized licensure, Silvers asked Androy if he were a licensed contractor, and Androy said that he was not. By way of further identification, Androy produced a personal card which read "Andy's Elite Pools." Silvers "red flagged" the job stopping construction and filed a complaint with the Department of Professional Regulation. Androy was an employee of Pools by Andrews, Inc., for approximately one year in 1974. He returned to Florida and again became an employee of Pools by Andrews, Inc. in February, 1985. During the remainder of that calendar year Androy drew a regular weekly salary from that company, received holiday pay, and drove a company vehicle. Taxes were deducted from his salary check, and the company provided him with health insurance. Androy was a fast worker and frequently finished piping pools early in the day at which time he was given odd jobs to perform for the company such as building shelves in the warehouse. Androy decided that he could make the same amount of money and substantially shorten his work day if he were paid on a piecework basis rather than for an eight hour work day. That way he would also be able to 'moonlight' by using his free time performing maintenance and repair work for swimming pool owners. Respondent agreed to pay Androy on the basis of piecework rather than a 40-hour work week. Since January 1, 1986, Androy appears at Pools by Andrews, Inc., at 6:00 a.m. six days a week at which time he is given a list of pools to plumb that day. All materials and equipment necessary to perform the work are supplied by the Respondent. When Androy finishes, he goes home. Every Friday he gives Respondent a list of pools that he piped that week, and Respondent pays Androy by check. Because Androy wanted to be free to leave when he finishes that day's work, he no longer drives a company truck but rather drives his own truck so he does not have to return the truck before he can go home. Under the new salary arrangement, he is paid by the job and no longer receives a regular weekly salary or holiday pay or health insurance. Further, Respondent has ceased deducting withholding tax and social security taxes from Androy's paycheck. The card which Androy gave to Inspector Silver is a card that he used prior to moving to Florida. He had new cards printed with his Florida address and telephone number. He uses them when persons ask how they can get in touch with him. Respondent had no knowledge of Androy having or using such a card. As a certified pool contractor, Respondent is aware of the requirements for licensure, that is, installation of a swimming pool must be done by a licensed contractor. However, there is no requirement for licensure for that portion of the installation known as piping a pool. Rather, that work can be performed by anyone under the supervision of a licensed contractor. Further, no separate permit is required for that "plumbing" portion of pool installation. All permits for the job in question were obtained by Pools by Andrews, Inc., pursuant to Respondent's state licensure. No other permits were necessary for the job, including the work done for Respondent by Androy. Respondent (like Androy) believes that Androy is an employee of his and not an independent contractor or a subcontractor. There is no intent on Respondent's part to evade he state licensure requirements. Respondent has had no other disciplinary actions filed against him.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding Respondent not guilty and dismissing the Administrative Complaint filed against him in this cause. 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. 87-4395 Petitioner's proposed findings of fact numbered 1, 2, and 4-6 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of tact numbered 2 has been rejected as not being supported by any evidence in this cause. Petitioner's proposed finding of fact numbered 7 has been rejected as being contrary to the evidence in this cause. Respondent's proposed findings of fact numbered 1, 2, 6, 8, 9, and 12 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 3, 7, and 10 have been rejected as being irrelevant to the issues under consideration herein. Respondent's proposed findings of fact numbered 4, 5, and 11 have been rejected as not constituting findings of fact but rather as constituting argument of counsel or conclusions of law. COPIES FURNISHED: Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 David L. Swanson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Edward W. Andrews 8300 Resource Drive Riviera Beach, Florida 33404 William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
Findings Of Fact Respondent is the holder of currently active General Contractor's license No. RG-0023888. On January 18, 1977, Norwood W. Hope (hereinafter "Developer") entered into a contract with Respondent for the construction of a commercial swimming pool. Respondent was to have been paid the amount of $43,346.40 under the contract for construction of the pool. The contract amount was to be paid pursuant to a five-stage draw schedule as follows: 1. Framing and steel draw paid $10,836.60 2. Gunite draw paid 10,836.60 3. Mancite draw 7,224.40 4. Equipment set draw 7,224.40 5. Final approval draw 7,224.40 Respondent made application for an Alachua County building permit for the swimming pool project on February 23, 1977. The permit application was approved on February 25, 1977, and a building permit was issued. Thereafter, the project received Alachua County approval on a temporary power pole inspection on June 1, 1977. An interim inspection of the property was made by Alachua County officials on November 7, 1977, with no deficiencies noted. A final inspection on the electrical work on the project was made, with satisfactory results, on November 8, 1977. The Alachua County Building Code, by incorporation of the 1973 Southern Standard Building Code, 1974 Revision, provides, in part, as follows: 108.2--INSPECTIONS REQUIRED The Building Official shall inspect or cause to be inspected at various intervals all construction or work for which a permit is required, and a final inspection shall be made of every building or structure upon completion, prior to the issuance of the Certificate of Occupancy, as required in Section 109. * * * (c) The Building Official upon notifica- tion from the permit holder or his agent shall make the following inspections of buildings and such other inspections as may be necessary, and shall either approve that portion of the construction as completed or shall notify the permit bolder or his agent wherein the same fails to comply with the law: * * * Final Inspection: To be made after the building is completed and ready for occupancy. (Emphasis added). The contract entered into on January 18, 1977 between the Developer and Respondent called for Respondent to construct the swimming pool according to the plans and specifications admitted into evidence as Petitioner's Exhibit No. 1. Associated construction, including construction of concrete pool decking, a pumphouse and a fence surrounding the swimming pool site were either completed by the Developer or by other sub contractors. By invoice dated October 12, 1977, Respondent requested a final draw on the project in the amount of 87,000, which, if paid, would have left only $224.40 unpaid under the contract. This draw request indicated that a balance due for extra time and materials would be billed ". . . upon acceptance of total pool." (Respondent's Exhibit No. 4). On October 25, 1977, the Developer paid $6,000 of the $7,000 requested to be paid by Respondent's invoice of October 12, 1977. The Developer contested Respondent's expressed intention to bill for additional time and material, asserting that the Developer had not approved any additional sums for extras. In remitting the $6,000 payment to Respondent, the Developer indicated that "[t]his leaves a balance on our account of $1,224.40, which will be paid upon checking out the pool." (Respondent's Exhibit No. 2). (Emphasis added.) An invoice for back charges on the swimming pool project in the amount of $274 was forwarded to the Developer by Respondent by invoice dated November 8, 1977. In addition, on November 8, 1977, Respondent also invoiced the Developer for a final draw on the project in the amount of $1,224.40. At some time after notification from the Developer's representatives that tile targets in the racing lanes of the pool were improperly located, Respondent returned to the job site after November 9, 1977 to relocate the targets. Respondent performed this work as a result of a written request from the Developer dated November 9, 1977. Respondent completed primary construction of the pool prior to submission of the final draw request of October 12, 1977. At that time, back- filling around the exterior of the pool structure preparatory to the pouring of the concrete pool decking had not been completed. Although by October 12, 1977, Respondent had removed much of the excess dirt and debris from around the edges of the pool. There were still areas of exposed piping which would, in due course, be covered with back-fill and tamped by the decking subcontractor. Respondent did not attempt to back-fill or tamp any areas around the pool's piping system. At some time subsequent to October 12, 1977, which date is not clearly reflected in this record, a separate sub- contractor completed back-filling work around the pool, and poured the concrete decking. Neither the Developer nor his subcontractor advised Respondent that the back-filling had been accomplished and that the deck was to be poured. Prior to October 12, 1977, Respondent "pressure tested" the pool's piping system, and determined that the pool would hold water at a level above its scum gutters. The results of this testing indicated that, at least as of October 12, 1977, there was no leakage from the pool. Standard practice in the pool construction industry dictates that a minimum of three pressure tests be made of a pool's piping system during the course of construction. The first of these tests should occur immediately after installation of the pipes, and a second test should be performed immediately before final back-filling to cover the pipe system. A final pressure test should be conducted after tamping of the fill and prior to the pouring of concrete for the pool deck. The obvious purpose of this system of pressure testing is to discover any water leaks before concrete pool decking is poured to avoid having to cut out sections of the concrete in order to locate leaks. Because the Developer and his subcontractor failed to notify Respondent of further work being done on the pool. Respondent was unable to perform a pressure test either after back-filling was completed, after the back- fill had been tamped and before the concrete deck was poured. By letter dated January 17, 1978, Respondent was furnished by the Developer with a "punch list" indicating several areas of deficiency that needed to be corrected in the pool. In that letter the Developer requested that Respondent complete the necessary work within seven days. The Developer forwarded a second letter to Respondent dated February 23, 1978 advising Respondent that the punch list items had not been corrected, and urging Respondent to complete the work described in the punch list as soon as possible. From receipt of the punch list in January of 1978 through the middle of March, 1978 Respondent had workers on the job intermittently making the corrections indicated in the punch list. Respondent satisfactorily corrected fifteen of the eighteen items listed as defective n the punch list. Some of the items were repaired by other subcontractors. Respondent had difficulty obtaining some items of equipment, which he was required to back-order. When the back-ordered equipment was slow in arriving, the Developer opted to obtain these items from a source other than Respondent. Respondent replaced a defective pump associated with the pool construction at some time subsequent to January 18, 1977. The last work performed by Respondent on the pool project occurred some time between March 10 and March 16, 1978. At no time thereafter was Respondent ever advised by the Developer that any work performed under the contract was either unsatisfactory or incomplete. The pool received a final State of Florida, Department of Health and Rehabilitative Services inspection on July 13, 1978, at which time all necessary permits for operation of the pool under applicable regulations were issued. Respondent at no time requested that Alachua County officials come to the job site to conduct the necessary final inspection of the project, nor did he advise the Developer of the necessity to do so. At some time during 1979, subsequent to the completion of the swimming pool project, the Developer discovered that the pool was losing water at a rate of approximately 2,100 gallons per day. During this period, the water level inside the pool would drop to a level equal to the piping running around the exterior of the pool shell and under the pool decking. When the Developer was unable to ascertain the cause of the leak, an outside subcontractor was hired to check the pool. This sub- contractor performed pressure tests on the pool's piping system in an attempt to determine whether the leakage was occurring through the pipes. These tests apparently showed no leakage through the piping system. The Developer then caused the concrete decking around the edge of the pool to be removed in order to more closely inspect the interior piping. At this point it was discovered that there existed flaws and breaks in the neoprene piping surrounding the exterior shell of the pool. After repairs to the damaged piping, the pool decking was repoured and there has been no subsequent leakage problem in the pool. The Developer incurred expenses in the amount of $2,288 in removing the decking around the pool and repairing the neoprene piping. Because of the fact that several subcontractors in addition to Respondent worked in the pool area during construction of the pool project, it is impossible on the basis of this record to determine the cause of the damage to the neoprene piping. Respondent's testimony is uncontroverted that pressure testing performed prior to the conclusion of primary work on the pool in October of 1977 showed no leakage through the pool's piping system. Further, at the conclusion of the primary work in October, 1977, much of the pool's piping system was left exposed and could have been damaged either by the Developer's own workers or by employees of other subcontractors in the course of back- filling and tamping fill material preparatory to pouring concrete decking. The Developer's failure to advise Respondent of the schedule for back-filling, tamping and pouring of concrete deprived Respondent of an opportunity to properly pressure test the piping system at appropriate stages of construction. Respondent has submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings of fact are not incorporated in this Recommended Order, they have been rejected as being either irrelevant to the subject matter of this proceeding or as not having been supported by the evidence.
Findings Of Fact Respondent, Wesley Ash, currently holds license number CP C015871 issued by the Construction Industry Licensing Board to authorize Ash to engage in the pool contracting business. Dodd Complaint (Count I). Respondent, Wesley Ash, doing business as Wada Pools, Inc., contracted with Jerry Dodd on or about June 17, 1981, to build a pneumatic concrete pool with skimmer and recirculation system. The contract did not include installation of the concrete deck around the pool. Dodd decided to contract with another independent contractor to install the deck at a lower price than Ash wanted for the job. Ash completed his work by approximately August 1981. He installed the concrete pool shell, finished the inside surface and installed tile along the water line. He then attached the skimmer assembly, plumbing it so that it was level and attaching it to the concrete pool shell by means of the skimmer's PVC plumbing piping. After Ash finished his work, Dodd's other contractor came behind Ash. He used some of the dirt Ash had excavated from the pool site to raise the ground surrounding the pool by approximately six inches above grade. He then poured the concrete deck but failed to encase the skimmer assembly with the deck concrete in the process of pouring the concrete deck. It was not Ash's practice to make any special arrangements to stabilize the skimmer assembly when he installed both pool and concrete deck. He relies on the skimmer assembly plumbing to stabilize the skimmer assembly until the concrete deck is poured. In pouring the concrete deck, Ash encases the skimmer assembly with the deck concrete to stabilize the skimmer assembly and prevent leakage. In the case of the Poland pool (paragraphs 17 and 22, below), Ash used this method to install both the pool and the concrete deck, and Poland has had no complaint of leakage at the skimmer (nor was there any evidence of leakage at the skimmer). In the case of the Priests' pool (paragraphs 11 through 13, below), Ash followed the same procedures as he did with the Dodd pool, and another contractor poured the concrete deck. As with the Poland pool, there have been no complaints (nor was there any evidence) of leakage at the skimmer. Within approximately one and one-half years after installation of the Dodd pool, Dodd began to notice what he thinks is a leak in his pool. The water level in the Dodd pool drops approximately one-quarter inch per day. But the Department's own expert witness conceded that water loss of between one-eight and one-quarter inch can be explained by evaporation. It was not proved that the Dodd pool is leaking at all. If there is a leak causing a small increment of water loss above loss through normal evaporation, the leak would have to be very small and would be very difficult to detect. Ash and others have tried but have been unable to find a leak at the skimmer of Dodd pool. In approximately summer 1985, Dodd himself dug a hole under the concrete deck to expose the bottom of the skimmer assembly. The excavation revealed an unusual amount of moisture that might be the result of a leak at the skimmer. It also revealed that the contractor who poured the Dodd concrete deck did not encase the skimmer assembly as Ash had thought he would. The Department's expert - a professional engineer with a B.S. degree in civil engineering, an M.S. degree in structural engineering and a Ph.D. degree in environmental engineering - gave his opinion that a residential pool skimmer assembly should be either (1) encased with the concrete of the pool shell or (2) encased with deck concrete which is structurally tied to the concrete pool shell. He opined that the latter method would require either a very rough surface on the pool shell concrete or steel extending from the pool shell in order for the structural tie to be accomplished. But he also conceded that it is possible for deck concrete encasing a skimmer assembly to be sufficient to stabilize the skimmer assembly even without taking any extra measures to accomplish a structural tie. There was no evidence that any building code would require a pool contractor to take these measures to accomplish a structural tie between the pool shell and skimmer assembly. Nor was there any evidence that a reasonably prudent pool contractor (as opposed to a professional engineer) would be expected to take these measures. Based on this evidence, together with all the other evidence taken as a whole, the Department did not prove that Ash was either incompetent or grossly negligent in not taking any extra measurers to accomplish a structural tie between the concrete pool shell and the skimmer assembly. Based on the evidence in this case, the contractor Dodd hired to pour the concrete deck was either incompetent or grossly negligent (assuming he was even a licensed pool contractor a fact not shown by the evidence.) He did not encase the skimmer assembly with the deck concrete, allowing it to "float" unprotected in the fill under the concrete deck. Settling of the fill could have caused the deck to settle and crack, moving the skimmer assembly and causing a small leak. Ash may have been able to prevent this by warning the contractor to be sure to encase the skimmer assembly with deck concrete when he poured the concrete deck. But there was no evidence that Ash had a duty to advise the other independent contractor Dodd hired or was responsible for the other contractor's incompetence or gross negligence. Ash's failure to advise the other contractor was not incompetence or gross negligence on Ash's part. Dodd has no other complaints about the pool Ash built for him. Priests' Complaint (Count II). On or about October 11, 1984, Ash contracted with Joseph and Rita Priest to build them a pneumatic concrete pool. The Contract included a warranty that the labor, materials and workmanship would be free of defects for one year and that the shell would be structural sound and capable of holding the water for ten years. Like Dodd, the Priests contracted with another independent contractor to install the concrete deck around the pool. Ash was responsible only for placement of decorative "river rock" on top of the deck. Ash finished his work in February 1985. Like Dodd, the Priests complained of water loss from the pool although the Priests noticed the water loss sooner than Dodd (approximately March, 1985). The water level was dropping approximately one-quarter inch per day more than it was dropping in a bucket used as a control. In response to the complaint, Ash sent his employees to the Priests' pool on several occasions. They found no leak at the skimmer. To determine whether the pool's "caretaker system" 1/ was leaking, Ash's employees plugged all but one pair of the caretaker heads. After waiting a period of days, they would try to see whether the rate of water loss changed. They tested all four pairs of caretaker heads on the bottom of the pool and the pair in the spa attached to the pool. No leaks could be found. They did not replace the last two (in the spa), and Mr. Priest had to replace them. As with the Dodd pool, the Department did not prove that the Priests' pool is leaking at all. The Priests continue to complain of water loss of approximately one-quarter inch per day, within the range of water loss from normal evaporation. As with the Dodd pool, a leak responsible for a small increment of water loss above water loss from normal evaporation would be very small and difficult to find, especially if the leak were in the caretaker heads or pipes under the pool leading to the heads. Now the Priests suspect a water leak at the filter. But the Department's expert witness could not find a leak there large enough to account for much water loss. The minor leak at the filter is a normal maintenance item for a pool as old as the Priests' pool. There was no evidence how long it has existed, and there was no evidence that the Priests ever told Ash there was a leak at the filter. The Priests now also complain that one of the caretaker heads does not re-seat properly. But this has nothing to do with the leakage complaint to which Ash is charged with not reasonably responding. Taken as a whole, the evidence did not prove that Ash committed misconduct or deceit by failing to make reasonable response to warranty service requests within a reasonable time, as charged. Nor does the evidence prove misleading or untrue representations, gross negligence, incompetence or fraud in connection with the Priests' pool, as charged. Poland Complaint (Count III). On or about December 9, 1981, Ash entered into a contract with James Poland to build Poland a pneumatic concrete pool and concrete deck. Poland contracted with another independent contractor to build a screen enclosure around the pool. Before construction began, one of Ash's employees asked Poland to sign an addendum to the contract for an additional $235 to pay for foundation footers required to comply with Lee County building code provisions for the screen enclosures. Before Ash signed the initial Poland contract on December 9, 1981, he was unaware of the Lee County Aluminum Code, adopted March 18, 1981. The code requires eight inch foundation footers for "aluminum additions." Another part of the code addresses "screen enclosures with screen roofs known to the industry as birdcage swimming pool enclosures." The language of the code is not explicit that screen swimming pool enclosures are required to meet the foundation requirements for "aluminum additions," and at first Lee County did not interpret the code that way. With a change of personnel in code enforcement, Lee County began to interpret the code that way, and screen swimming pool enclosures Ash had under construction began to fail building inspection for inadequate foundation footers. Ash inquired why and was told about the aluminum code and how it was being interpreted. Ash argued that the interpretation was erroneous but, failing to dissuade enforcement personnel, began to comply. As part of his compliance efforts, Ash had his employees try to secure the contract addendum from Poland. Poland refused to sign the contract addendum, insisting on an opportunity to verify that the additional foundation footers were indeed new building code requirements. There still is a dispute between the parties whether Poland ever agreed to pay the additional $235 after he verified that the footers were being required. (He never signed the contract addendum.) But, in any event, the evidence did not prove that Ash was incompetent, grossly negligent, deceitful or guilty of fraud or misconduct in connection with the additional $235 charge. 2/ There was some evidence that Ash did not in fact comply with the Lee County Aluminum Code, as he was told it was being interpreted, in his construction of the Poland pool deck. In two places the foundation footers were 6 and 7 inches - deeper than the four-inch normal thickness of a concrete pool deck but short of the eight-inch requirement. But Ash was not charged with failure to comply with the foundation footer requirement. He had no legally sufficient notice that he should be prepared to defend against that charge and was not prepared to defend against that charge. Therefore, no finding is made whether Ash complied with the Lee County Aluminum Code. Ash performed the Poland contract between approximately January 27 and February 26, 1982. In September, 1985, Poland began to notice that some of the tile Ash installed at the waterline around the perimeter of the pool was coming loose. As explained by the Department's expert witness, the concrete deck settled in places, cracking slightly and rotating over the fulcrum created by the wall of the concrete shell of the pool. The rotating action pulled up on the tile attached to the inside of the pool wall in places, loosening the tile. In all, less than 10 percent of the 77 foot perimeter of the Poland pool experienced problems with loose tile. The loose tile easily can be removed and replaced. The minor deck cracking and loose tile problems at the Poland pool are within the normal range for a competently constructed pool under normal conditions of ground settlement. The evidence did not prove that Ash improperly installed the pool deck or that he was incompetent or grossly negligent in the construction of the Poland pool and deck. Besides the loose tile and minor cracks in the concrete deck, the Poland pool had no apparent defects. There also was evidence that the Poland pool was finished with a coating of marcite on the inside surface of the pool shell which was mottled gray in color instead of white. Poland complained persistently about the marcite3 and insisted that Ash make it white. But the discolored marcite was a factory defect of which Ash had been unable to know before he used it. There is no way to make mottled gray marcite white. Ash tried to explain this to Poland but the customer would not be satisfied. Taken as a whole, the marcite evidence did not prove that Ash was incompetent, grossly negligent, deceitful or guilty of fraud or misconduct. Nor does the evidence prove any of those violations for failure to cure the marcite problem under warranty. First, as already stated, there was no cure. Second, Ash and Poland also had a running dispute whether Poland had paid the full contract price, including the additional $235 for foundation footers, so as to entitle him to any warranty repairs. In light of this genuine dispute, failure to do warranty work, if otherwise a reasonable request, still could not be found to be misconduct, fraud or deceit.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Construction Industry Licensing Board enter a final order dismissing the Amended Administrative Complaint that has been filed against Respondent, Wesley Ash, in these cases. DONE AND ORDERED this 9th day of December 1986, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 9th day of December, 1986.
Findings Of Fact Brian E. Michaels, the Codes Administrator for Putnam County testified that he regulates the building codes in Putnam County and is in charge with the effective administration thereof. He testified that the pertinent regulations and codes relative to the construction of swimming pools in Putnam County are Ordinances 73-6 and 75-4. (See Petitioner's Exhibits number 2, and number 3, received in evidence). Michaels testified that after seeing an advertisement in the Palatka Daily News on august 6, 1975, his office advised Respondent's office on two occasions to apprise him of certain local laws regulating contractors and the business of contracting. When Respondent failed to respond to approximately three phone calls to its office, Michaels advised Respondent by certified letter dated August 28, 1975, that swimming pool contractors desiring to operate in Putnam County must be locally certified even if they hold state registration. He advised Respondent that if he in fact was state certified that he could send a copy of his certificate for Putnam County official files and to discuss with their office procedures for obtaining a certification in Putnam County. He further advised that the county had adopted the standard swimming pool code, 1974 edition, which requires a plot plan as well as a plan approved before a pool permit could be issued. (See Petitioner's Composite Exhibit number 5). Michaels explained the procedures for complying with the County's certification process which included the filing of an application; taking an exam and receiving a score of at least 70 percent; posting of a $5,000.00 bond; payment of a $50.00 fee which should be included with the application which should also have included a recent photo and the issuance of an occupational license. Additionally, he advised that it was necessary to comply with registration and requirements of the Florida Construction Industry Licensing Board under Chapter 468; Florida Statutes, within 90 days. Michaels testified that Respondent received his certified letter dated August 28, 1975, the following day. (See Petitioner's Composite Exhibit number 5). Section 1020 of Ordinance No. 75-6 of the zone ordinances of Putnam County states in pertinent part that building and related permits issued by the chief building official are required in advance of the construction, erection, demolition, moving, destruction, or alteration of any building or structure with a completed evaluation of $1,000.00. (See Petitioner's Exhibit number 6). On May 27, 1975, the Putnam County Board of County Commissioners enacted Putnam County Ordinance no. 75-4, which ordinance adopted by reference the Southern Standard Swimming Pool Code, 1974 edition, which provided for the adoption of a fee schedule and charges for the issuance of permits to "defray the costs of inspections". (See Petitioner's Exhibit number 7). Jerrell Sparks of Crescent City, testified that he contacted Respondent regarding the construction of a swimming pool during the fall of 1975 following his visit to a building show. On October 21, 1975, Sparks entered into a contract with Terry Michaels, a partner of Respondent, Steve Klapach, d/b/a Starfish Pools for a total price of $5,150.00. At the execution of the contract, Sparks paid Respondent $200.00 and agreed to pay an additional $1,300.00 on November 5, 1975. (See Petitioner's Exhibit number 8, received and made a part herein). Sparks testified that Respondent made the financial arrangements with a mortgage broker in Jacksonville and that Respondent was paid $4,650.00. The construction completed by Respondent consisted of the excavation for the pool and delivery of the pool shell. He testified that he obtained a homeowner's permit but that Respondent did not obtain a permit for the installation of the swimming pool. Tom McConnell of Palatka, testified that he contacted the Respondent regarding a $2,000.00 pool kit which he had seen advertised. He testified that Respondent's partner, Tony Michaels, visited his home on October 14, 1975, at which time he executed a contract for the installation of a pool for a total price of $5,714.00. When the contract was executed, McConnell secured it by an advance payment of $500.00 and he thereafter was never able to contact Respondent. (See Petitioner's Exhibit number 9, received in evidence and made a part hereof). Kenneth L. Rue of Ormond Beach contacted the Respondent based on an ad which appeared in the Sunday supplement of the Daytona Beach News Paper. On August 21, 1975, Rue entered into a contract with Respondent's partner, Tony Michaels and a Mr. Charles Van Dent for the construction of a pool for the total price of $5,200.00. He paid Respondent $500.00 when the contract was executed and paid an additional $4,200.00 when the pool was delivered. He testified that Respondent removed shrubbery and palm trees where the pool was to be positioned and thereafter the excavation and the necessary site preparation was readied. Thereafter the pool was positioned and the plumbing and electrical-fixtures were connected. He testified that the pool did not comply with the specifications as called for in the contract which by its term called for a kidney shaped pool with dimensions of 27' X 13' and a depth of a minimum of 3 and a maximum of 5 feet. He testified that the actual dimensions of the pool installed was 25' x 11' and the depth ranged from 26" to 47". He testified that after the pool was installed it began leaking around the "circulation area" and that when he contacted the Respondent, the pool was removed and Respondent agreed to install any size pool that he desired. The pool called for in the contract was a fiberglass pool however Respondent opted for the installation of a vinyl liner pool. On November 11, 1975, Respondent sent two employees out to make forms for the construction of the pool but since that time, he has had no further contact with Respondent despite repeated attempts. He paid Respondent approximately $4,700.00 of the $5,200.00 contract price and paid another contractor an additional $2,300.00 to complete construction of the swimming pool. (See Petitioner's Composite Exhibit number 10) Brian Michaels was recalled and testified that Respondent never was issued building permits for the McConnell or Sparks projects. The Board introduced into evidence documents showing that Respondent, Steve A. Klapach, RP22049 was registered with the Florida Construction Industry Licensing Board as an active swimming pool contractor during 1975 in the period September, 1975 to December, 1975. (See Petitioner's Exhibit number 1).
The Issue Whether the state certified pool construction license number CP C008904 and the state certified general contractor's license number CG C002481 of Joaquin Vazquez should be revoked.
Findings Of Fact Division A of the Construction Trade Qualifying Board held a hearing on September 15, 1976, pertaining to ten (10) charges of violating the Dade County building code against Respondent Joaquin Vazquez. At the completion of this formal hearing, Joaquin Vazquez was found guilty of eight (8) of the ten (10) charges. Charles W. Leavitt, Jr., Clerk of the Construction Trades Qualifying Board In Metropolitan Dade County, Florida, identified the minutes of the Board Meeting held on September 15, together with the charges as set forth in letters dated May 10, 1976, and August 19, 1976. Copies of these instruments were introduced into evidence without objection. The Respondent did not deny the charges at the hearing and had not appealed the finding of guilt of eight (8) of the ten (10) charges at the conclusion of the formal hearing on September 15, 1976. Briefly the charges (spanning the term from July 1, 1975 to June 29, 1976), finds and penalties are as follows: Charge 1.: Allowing permit to be applied for and taken out in Respondent's name in order for Angela J. Stevens and/or Sparkle Blue Pools to construct a swimming pool. Found guilty - letter of reprimand. Charge 3.: Similar to Charge 1 - found guilty - certificate to be suspended for one (1) year. Charge 4.: Failure to supervise, direct and control, the construction or installation of a swimming pool taken out in Respondent's name. Found guilty - one (1) year suspension to run concurrent with any other suspensions. Charge 5.: Similar to Charge 1 - found guilty - ninety (90) day concurrent suspension. Charge 6.: Similar to Charge 4 - found guilty - ninety (90) day suspension. Charge 7.: Similar to Charge 1 - found guilty - revo- cation of certificates. Charge 8.: Similar to Charge 4 - found guilty - both certificates be revoked. Charge 10.: Allowing a permit to be applied for and taken out in Respondent's name in order for Jack Goodman and/or Precision Engineering, Inc., to construct a swimming pool. Found guilty - letter of reprimand. An Administrative Complaint was filed by the Petitioner through its executive director on November 12, 1976, citing the hearing and the charges and the finding of guilt of Respondent and stating that the results of said formal hearing show a violation of Florida Statute 468.112(2)(a), willful or deliberate disregard and violation of applicable building codes or laws of the state or any municipality, cities or counties thereof. Therefore, the Board seeks to revoke the state certified pool contractors license number CP C008904 and state certified general contractors license number CG C002481 of Joaquin Vazquez, the Respondent. The Respondent did not deny the charges but presented an attack on the character and veracity of the witness, Angela Stevens, in four (4) of the charges against him. He cited the witness Angela Stevens' failure to abide by probationary requirements imposed for her acting as a contractor without a license. Furthermore, the Respondent offered his own and a witness, Mr. Gonzalez's, testimony to the fact that he was solicitated by Angela Stevens to make false testimony to the effect that Angela Stevens was an employee of his when in fact she had never been. The charges against the Respondent were brought subsequent to the charges brought against the witness Angela Stevens. The Respondent contends that the affidavits and testimony of Angela Stevens were no more than self serving statements made in her own behalf in an attempt to cover up her criminal intentions and that the charges and finding of guilt of the Respondent were based largely on the affidavit and testimony of said witness. Respondent further offered a medical report indicating that he was unable to work in the month of May, 1975, and further his testimony was that he was out of the country in mid June and July, 1975, in order to recuperate from high blood pressure attacks. Petitioner contends: the undisputed evidence presented in the finding of guilt of the charges involved in the prior hearing are sufficient to find Respondent guilty of violating Section 468.112(2)(a), Florida Statutes, and that Respondent's license should be revoked. Respondent contends: the witness against him was self serving and an attempt to cover up her criminal intentions; that he in fact supervised some of the jobs he was found guilty of not supervising; that he was ill some of the time and did not willfully violate the code. The proposed facts and conclusions of the parties submitted after the hearing herein have been considered in this Recommended Order.
Recommendation Suspend the licenses, No. CP C008904 and No. CG C002481, of the Respondent Joaquin Vazquez for a period not to exceed six (6) months. DONE and ORDERED this 31st day of May, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: David Linn, Esquire Post Office Box 1386 Tallahassee, Florida 32302 Jerome S. Reisman, Esquire 1515 Northwest 7th Street, #106 Miami Florida 33125 J. K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211
Findings Of Fact At all times pertinent to this proceeding, Respondent, Alfred C. Wicht, has been registered as a pool contractor, license numbers RP 0026439 and RP A026439. At all times material herein, Respondent was the qualifier for Heritage Pools, Inc. On or about August 1, 1978, Heritage Pools, Inc. entered into a contract with Pacesetter Homes, Inc. to install a swimming pool at 3530 North 30th Terrace, Hollywood, Florida, for the sum of $5,350.00. Heritage Pools, Inc. commenced construction and completed the pool through the gunite and tile stage and received draw payments totaling approximately $4,295.00. About April or May, 1979, the pool popped out of the ground through no fault of the Respondent. The Respondent made some effort at repairing the pool and placing it back in the ground from the date it popped out through October, 1979. Respondent conceded that he delayed completing his repairs on the pool by virtue of the expense it was causing to his company and his belief that Pacesetter Homes, Inc. should have provided financial assistance. On or about December 5, 1979, Pacesetter Homes, Inc. learned that the pool could not be repaired and hired Electra Pools, Inc. to take out the pool initially installed by Respondent, and install a new pool in its place.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner enter its Final Order dismissing the charges contained in the Administrative Complaint. DONE and ENTERED this 27th day of May, 1983, in Tallahassee, Florida. R. T. CARPENTER, 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 27th day of May, 1983. COPIES FURNISHED: Michael Cohen, Esquire Suite 101, Kristin Bldg. 2715 E. Oakland Park Blvd. Ft. Lauderdale, Florida 33306 Alfred C. Wicht 6701 Cypress Rd., #108 Plantation, Florida 33317 James Linnan, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
