The Issue The issue in this case is whether the Respondent, Dominick A. Solitario, committed the offenses alleged in the Amended Administrative Complaint and, if so, what disciplinary action should be taken.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made. At all times pertinent to this proceeding, Respondent, Dominick Solitario, was licensed as a certified pool contractor in the state of Florida, having been issued license no. CP CA17558. At all times pertinent to this proceeding, Respondent was the licensed qualifying agent for Jade Pools, Inc. Sometime around February of 1988, Respondent contracted with Michael and Linda Skidd to remarcite the swimming pool at the Skidd's home in Coral Springs, Florida. The contract price for the remarciting of the Skidd's pool was $2000.00. Respondent has been paid in full for this work. There is no evidence that there were any leaks in the Skidd's pool prior to the time the work was undertaken by Respondent. At the time the work was begun, one of the Respondent's employees discovered an expansion plug that had been inserted in the main drain. The employee inquired as to whether the Skidds had experienced any problems with the drain. The Skidds denied having any problems. The evidence presented at the hearing was inconclusive as to whether the main drain was working properly. At the time the Respondent began work under the contract, the Skidds were using a "creepy crawler" to clean the pool. This device required the main drain to be shut off. While Mrs. Skidd testisfied that she thought the main drain was working properly, she admitted that her husband was more familiar with the cleaning and mechanical aspects of the pool. Mr. Skidd did not testify. Respondent contends that Mr. Skidd was present at the time the plug was removed from the main drain and that the condition was brought to his attention. However, it does not appear that either Respondent or Mr. Skidd knew why the drain was plugged or the significance of the situation. Respondent proceeded with his contractual work without conducting any tests to determine whether there was a leak in the main drain. When the work was completed, the workers directed the Skidds not to use their main drain. No explanation was given for this instruction. After the work was completed, the Skidds turned on the main drain and lost approximately four inches of water from the pool in a relatively short time. The Skidds turned off the drain and called Jade Pools. An employee of Jade Pools came out and inspected the premises. He advised the Skidds not to use the main drain, but instead to use their "creepy crawler." The Respondent's employee indicated that there was a leak in the main drain. It is not cler how he reached that conclusion. In order to complete the work on the Skidd contract, Respondent's employees were required to install a pressure release valve near the pool's main drain by drilling through the bottom of the pool. The hole for this valve was drilled several inches away from the main drain and its plumbing. Petitioner suggests that the Respondent's employees may have punctured the main drain or its plumbing when this hole was drilled. However, no persuasive evidence was introducted to prove this allegation. Respondent contends that the pool was improperly constructed and/or that the main drain line had been previously damaged and plugged shut to avoid detection of the leak. In order to perform the contracted work, Respondent's employees unplugged the drain and the alleged preexisting leak became evident. Respondent has inserted a plug into the main drain and claims that the pool is now in the same condition it was when he began his work. Respondent has refused to repair the main drain or perform any additional work unless he is paid for it. At the time that Respondent first proposed to enter into a contract with the Skidds, he was told by the Skidds that there was a suction leak at the pump. In retrospect, Respondent contends that this suction leak confirms the preexisting problem with the main drain. No conclusvie evidence was presented to establish why the pool is leaking. As of the date of the hearing, the Skidds are still unable to use their main drain. The Petitioner did not present persuasive evidence to establish that Respondent was responsible for the leak in the Skidds' pool. While it is possible that the Respondent's employees caused the leak when they drilled the hole for the pressure release valve, an equally likely explanation is that there was an existing problem that had been obscured by the prior plugging of the main drain. On or about June 29, 1987, Respondent contracted with Anthony Gallagher to construct a swimming pool and a deck at Mr. Gallagher's home in Coral Springs, Florida for the contract price of $17,800.00. Respondent has been paid in full for this work less $100 for damage caused during construction. The contract with Mr. Gallagher called for Respondent's company to top the existing patio slab and tie it into a newly added patio deck surrounding the pool. The building permit for this work was pulled by Jade Pools. Although the work on the Gallagher deck and pool was completed sometime in late 1987 or early 1988, the pool and deck have still not passed final inspection by the City. The local building officials have refused to approve the final inspection on the Gallgher's deck because of the excessive slope from the back of the house to the pool. The pitch of the deck constructed by Respondent's company from the back of the Gallagher's house to the pool is very severe, effectively rendering a portion of the deck unusable. A table cannot sit flat on this portion of the deck because of the slope. The Respondent's construction of a deck with such a severe slope that it is incapable of passing final inspection constitutes incompetency in the practice of contracting. In order to provide a usable deck, Respondent should have ripped out the existing deck or placed the pool at a higher elevation. Respondent contends that his contract did not call for him to rip out the existing deck, but only to top it. He claims the existing deck that was topped had a similarly severe pitch. Nonetheless, Respondent is responsible for insuring that his final product is functional and able to pass inspection. Respondent has failed to take any remedial action to obtain a successful final inspection. During construction, the Gallaghers, on several occassions, expressed displeasure with the deck and its excessive slope in some areas. On two occasions, Respondent sent his workmen out to correct certain aspects of the construction that the Gallaghers found unacceptable. Ultimately, the homeowners paid the Respondent in full and instructed Respondent to stay off their property. Although Respondent's presentation was somewhat unclear, he appears to argue that these actions by the Gallaghers relieve him of any liability for his work under this contract. However, the evidence established that the Respondent was never able to obtain a successful final inspection of his work at the Gallagher home. This failure is the direct result of the excessive pitch in the patio he constructed. While the Gallaghers have paid the full amount of the contract and are apparently using the pool and patio, these facts do not relieve Respondent from responsibility for the incompetently constructed deck. The City of Coral Springs requires a deck electrical inspection to insure that all the steel in the deck is on the same electrical field (same electrical bond) as the pool. Jade Pools failed to call for this electrical bond inspection before pouring the Gallagher's deck. Ultimately, the city building officials required the Respondent's company to expose a portion of the steel in the deck to confirm that the pool was properly bonded. This test indicated that the pool was in fact properly bonded. On or about August 10, 1988, Respondent contracted with Kevin Fusco to construct a swimming pool and deck at Mr. Fusco's home in Boca Raton, Florida for a total contract price of $10,030.00. Respondent has been paid in full under this contract. Jade Pools obtained the building permit for the Fusco's pool. Therefore, Respondent's company was responsible for obtaining all of the inspections for the construction, including the final inspection. Prior to the time that work was begun on the Fusco contract, Respondent's employees inspected the property and were advised as to some existing problems with drainage in the backyard of the house. The Fusco's lot was designed to drain from back to front. A berm runs behind the Fusco property and causes water to drain through the backyard. On some occasions prior to construction, this drainage situation resulted in standing water against the back of the house. The installation of the Fusco's pool seriously affected the drainage plan for the property. After the pool was installed, there was often standing water all around the deck following a rain. After construction was started and the deck was formed out, the county refused to give approval for pouring the deck because of anticipated problems with drainage in the backyard. One of Respondent's employees advised the Fuscos that if they removed approximately three feet of soil from around the deck, the county would allow them to proceed with pouring the deck. Based upon this recommendation, the Fuscos entered into a contract with a company recommended by Respondent. That company removed approximately six or eight feet of soil all around the deck and installed a rock bed in the area. The cost of this removal was in addition to the contractual price agreed to between Respondent and the Fuscos and was borne by the Fuscos. As indicated above, the installation of the pool greatly exacerbated the drainage problems that previously existed on the property. Respondent did not warn the homeowners prior to construction to expect this result nor did the Respondent take steps to preclude these additional drainage problems. While Respondent contends that the Fusco's property was inappropriately graded prior to the time the work was initiated, Respondent never brought this fact to the attention of the homeowners until after the pool was installed and the increased drainage problems became evident. After the work was completed, the county inspectors advised the homeowners that the pool did not pass final inspection because of drainage problems caused by the pool and deck. By the time the Fuscos found out the pool had not passed final inspection, Respondent had been paid in full under the contract. The Fuscos contacted Jade Pools, which refused to take any corrective action. The Respondent claimed that drainage problems were not part of his company's responsibility and refused to return to the property to correct the problem even though the pool had not passed final inspection. The Fuscos hired an engineer to design an acceptable solution to the drainage problem and arranged for the completion of the work at their own expense. In accordance with this solution, the homeowners installed a series of french drains around the back yard in order to try to get the water to percolate into the ground. After this additional work was completed, the pool passed final inspection by the county. It was approximately one year after Jade Pools finished its work before the final inspection was passed. The Fuscos continue to experience increased drainage problems on their property as a result of the installation of the pool and deck. These problems include standing water around the deck after a heavy rain and, in some instances, an overflow of water into the pool. While the Respondent was installing the Fusco's pool, Respondent was concurrently installing a pool at the house next door. There has been no drainage problems on the property next door because the elevation on that house is higher. The Fusco's pool was actually installed at a level that was at or below the surrounding ground level. The problems associated with such an installation were never explained to the homeowners prior to the time the work was commenced. Respondent contends that this situation was necessary because of the existing elevations of the house and lot. He says that the pool and deck had to be installed in a manner that provided a four inch step down from the house and also matched the existing slab. The drainage problems could have been minimized by swaling out from the pool area to the side of the house. While Respondent contends that such "landscaping" efforts were not part of his contract, he should have not undertaken the work unless he could adequately deal with the drainage problem and ensure that the final installation would pass inspection. The pool contractor is responsible for insuring that, after the pool is built, proper drainage is obtained around the pool. The efforts undertaken by the Respondent were insufficient to deal with the resulting drainage problems and constitute incompetency in the practice of contracting.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Construction Industry Licensing Board enter a Final Order finding Respondent guilty of violations of Section 489.129(d) and (m), Florida Statutes, in connection with the Fusco and Gallagher contracts, issuing a reprimand and imposing a fine on Respondent in the amount of $2,000.00 for having committed these violations. In addition, Respondent should be placed on probation for two years and required to reimburse the Fusco's for the money they have expended to correct the drainage problems caused by Respondent. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 8th day of February, 1991. J. STEPHEN MENTON 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 8th day of February, 1991.
Findings Of Fact The parties stipulated that Petitioner's Exhibit number 1, which is the Florida Construction Industry Licensing Board official records as they relate to Millard P. Hill, Jr., should be received into evidence. The parties noted further that there is little dispute as to facts, however, the Respondent contends that there is no diversion of funds based on the facts of this case. On June 10, Respondent advised Petitioner that he wished to qualify Master Pools, a corporation which he had applied to Petitioner to qualify as the name under which his pool contracting would be done to reflect the name H. B. Patten, Inc. as the name under which said contracting would be done. Petitioner changed its records to show this change. On July 12, Respondent entered into a contract with Manuel and Anna Bueno for a pool to be built at 6960 Northwest 4th Place, Margate, Florida, for a sum of $5,665. See Petitioner's Exhibit number 2 received into evidence and made a part hereof by reference. Anna Bueno testified that a hole was dug and tar paper and steel bars were erected in the hole and the work was abandoned thereafter. Prior to abandonment, the Bueno's paid approximately $4,100 to Patten Pools. To complete the construction, the Bueno's used Hallmark Pools to finish the pool which required an additional sum of approximately $5,000. As can be seen, this is approximately $3,300 over and above the contract price. The evidence also reveals that Patten Pools, Inc., through Millard P. Hill, applied for and obtained a permit for the construction of the pool for the Bueno's on August 5. See Petitioner's Exhibit number 3, received into evidence and made a part hereof by reference. On April 24, Mr. and Mrs. Edward Eskie entered a contract with Respondent for the erection of a swimming pool on their property located at 1525 Southeast 14th Court, Deerfield Beach, Florida for $6,786.00. See Petitioner's Exhibit number 4 received in evidence and made a part hereof by reference. Mr. Eskie testified that the excavation for the pool began on May 20, and on June 2 gunite services were complete. On July 9, he received a letter from Crockett- Bradley, Inc. a gunite subcontractor, indicating that it was filing a lien for $1,312 against the Eskie's property for services performed. The building permit for the Eskie project was obtained by Respondent on June 10. See Petitioner's Exhibit number 7 incorporated herein by reference. Edward Eskie paid Respondent approximately $4,778 and $1,312 was paid to Crockett-Bradley, Inc. to satisfy the lien which was placed against their property. The Eskie's completed their pool by payment of an amount in excess of $4,000 to another pool contracting firm. Prior to completing the pool and after the Respondent abandoned the project, Edward Eskie made numerous attempts to contract Respondent by phone to no avail. On June 27, Respondent entered a contract with Orlando Gonzalez for a pool to be built at his residence located at 353 Northwest 22nd Street, Boca Raton, Florida for $9,000.00. See Petitioner's Exhibit number 8 which was received and made a part hereof by reference. Orlando Gonzalez paid Respondent $3,600 through his bank toward the contract price. For that payment, Respondent dug a hole and the project was abandoned. After work was abandoned, Gonzalez made repeated attempts to contact Respondent to no avail. To complete the project, he paid another contractor approximately $6,000. On April 18, Respondent entered into a contract with Howard and Sheila Siclari for a pool to be built at their home located at 7812 Northwest 67th Avenue, Tamarac, Florida, for the sum of $4,280. To commence the construction, Respondent obtained a building permit on June 18, 1975. See Petitioner's Exhibits number 9 and number 10 received in evidence and made a part hereof by reference. The Siclari's paid Respondent $3,456.75. Thereafter they completed the work which cost them an additional $2,500 and they did most of the work themselves. James T. Anglen, a pool salesman for Patten Pools testified that he was initially employed by Master Pools until June, 1975. A reference to Petitioner's Exhibit number 1 indicates that Master Pools registered as Brian Sales Corporation as the first entity that Respondent registered with Petitioner on January 1, 1974. He was a superintendent of Patten Pools in June, 1975 when he commenced employment with Patten. He acknowledged that he received money from the Bueno's which was transmitted to Patten Pools. He also acknowledged that the Bueno's were probably hurt most of all the complaining parties in this case. Respondent discovered that its cash flow was short approximately $40,000 to $50,000 and that that amount in checks were floating with insufficient funds to cover them. He commenced efforts to try to straighten out the firms cash flow and that for a while the bank worked along with him. Anglen also acknowledged the abandonment of the Gonzalez project. He further acknowledged that monies received from projects were used to cover deficiencies on other projects to continue Respondent's operations.
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).
Findings Of Fact Melnikoff is the holder of a certified pool contractor's license, having been issued license No. CP C032540. Melnikoff used this license to qualify Ken-Mel Enterprises and license no. CB C029067 was issued to Melnikoff qualifying Ken-Mel Enterprises. Ken-Mel entered into a contract with John and Edythe Milton to construct a residential pool at 7336 Pineville Drive, Jacksonville, Florida. Melnikoff applied for a building permit with the City of Jacksonville to construct the pool for the Miltons. His application included a set of plans and a site plan to be approved by the City of Jacksonville. The City of Jacksonville issued a building permit and provided an inspection sign-off card to be placed at the residence where the pool was to be constructed. Melnikoff and Ken-Mel constructed the pool and were paid in full. Melnikoff failed to request or obtain any inspections of the pool construction. This is a violation of the City of Jacksonville Building Code, Section 320.504. The pool is constructed in such a way that it is flawed, deficient and hazardous. Specifically, the water slide is hooked to a potable water system and to the hot water, which is both a serious code violation and a serious and hazardous condition. The water slide is positioned improperly and attached incorrectly, such that there is a danger of injury and this is a hazardous condition. The marcite is very rough and has started to peel away from the gunnite. The marcite is stained from the finish of the pool deck. The slurry from the gunnite and pool deck is buried near the pool and is improperly disposed of. Persons are mildly shocked when touching the railing in the pool, indicating that the pool is not properly bonded, which is a hazardous condition. The pool is not level or symmetrical and there are many imperfections in the continuous curve of the wall. Steel reinforcing bars are actually protruding through the concrete near the top of the pool. Building Code requires that there be a minimum coverage of 1 1/2" of concrete. The ceramic tile is falling off the wall and it is a very poor ceramic tile job. The expansion joints are improperly placed. The main drain cover has not been fastened down, which is a very dangerous situation and a code violation. There is no means or plan for discharging water from the pool, in violation of code. Part of the deck drain is under the slab of the Milton's house which is a serious problem. The pool is deeper than the plans indicated, in violation of the building code. The pool deck is very rough in places, does not drain away from the pool, and is cracked from improper compaction and improper placement of expansion materials. All of these defects and hazardous conditions establish that Melnikoff was grossly negligent and incompetent in the construction of this pool.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Construction Industry Licensing Board, enter a Final Order finding Steve A. Melnikoff guilty of the violations charged and revoking Melnikoff's license as a certified pool contractor. DONE and ORDERED this 29th day of June, 1988, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1988. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-0567 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the Petitioner in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Professional Regulation, Construction Industry Licensing Board 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(2); 3-5(3); 6(4); 7(5); and 8 & 9 (6) COPIES FURNISHED: John O. Williams, Attorney at Law 1343 E. Tennessee St. Tallahassee, Florida 32308 Steven A. Melnikoff 710 Rosedale Drive Stephens City, VA 22655 Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether Respondent's license as a registered pool contractor should be suspended or revoked or the licensee otherwise disciplined, for alleged violations of Chapter 489, Florida Statutes, as set forth in the Amended Administrative Complaint. This proceeding arises out of Respondent's alleged failure to remedy defects in a swimming pool that she built in 1981 which resulted in disciplinary action by the Leon County Contractor's Licensing and Examination Board; for failing to remedy defects in another pool that she built in 1981 whereby she allegedly made fraudulent representations and failed to honor a warranty; and for constructing a pool in 1982 after her Certificate of Competency had been revoked by the Leon County Contractor's Licensing and Examination Board. Respondent appeared at the hearing without counsel, and was thereupon advised of her rights and the procedures applicable to an administrative proceeding. She indicated that she understood such rights and elected to represent herself. At the hearing, Petitioner presented the testimony of nine witnesses and submitted 22 exhibits in evidence. Respondent testified in her own behalf, but did not submit any documentary evidence. Petitioner's Proposed Recommended Order has been fully considered, and those portions thereof not adopted herein are considered to be either unnecessary, irrelevant, or unsupported in law or fact, and are specifically rejected.
Findings Of Fact Respondent Laura H. Eubanks is a state registered commercial pool contractor who operates Eubanks Company Big Bend Pool Builders, Tallahassee, Florida. She was originally licensed in 1975 and remained licensed at all pertinent times relative to this proceeding, but her license was in a delinquent status as of July 1, 1983. (Petitioner's Exhibit 1) On May 2, 1981, Respondent entered into an agreement with Thomas V. and Barbara J. Mulqueen, Jr., 6719 Johnston Loop, Tallahassee, Florida, for the sale and installation of a swimming pool at their residence for the amount of $6,725.63. On September 22, 1981, Mr. Mulqueen filed a complaint against Respondent with the Leon County Contractors Licensing and Examination Board. Mr. Olin Williams, Supervisor of Inspections for the Board, investigated the complaint and found that staples were protruding underneath the pool liner, that a water pipe leaked at the pump, apron or deck concrete cracks were caused by curing tension at inside corners, about 35 percent of the concrete deck was darker in color than the remainder of the deck, an improperly placed outlet for the pool drain permitted seepage under the pool liner, and that repairs to a neighbor's fence and the owner's driveway had not been completed. He classified those discrepancies as pertaining to workmanship. In addition, he determined that there had been a violation of the health code in that a septic tank had been broken by workmen and waste sewage had flowed into the pool excavation for a period of several days. The owner was seeking to have Respondent correct the problems and complete the job. Inspector Williams contacted the Respondent on October 12, 1981, and, although she told him that she would come to his office that day and bring the individual responsible for the job, she failed to do so. No final inspection of the work had been requested by Respondent. (Testimony of Williams, Petitioner's Exhibit 4) By letter dated November 12, 1981, Respondent was advised by the Leon County Contractors Licensing and Examination Board that a formal hearing had been scheduled on the complaint for December 3, 1981. A copy of the complaint and the Building Inspector's Report was enclosed, and she was advised of her right to be represented by counsel at the hearing. In fact, the hearing by the Board was held on December 4, 1981, at which the Mulqueens were present and presented their complaint, and Inspector Williams informed the Board of his investigation and subsequent actions. Respondent was not present at the hearing, although the certified mail receipt reflected the signature of "L. H. Eubanks." At the December 4th meeting, the Board voted to suspend Respondent's license with the provision that the Board would not consider reinstatement unless repairs to the Mulqueen pool were made within thirty days after December 9, 1981, and if not, then the Board would consider permanent revocation. (Petitioner's Exhibits 5-6) By letter of January 12, 1982, the Board advised Respondent of the suspension of her license as a result of a hearing held on December 3, 1981. (No explanation was provided by Petitioner as to the discrepancy in the minutes of the Board meeting which reflected a date of December 4, 1931, and the letters sent to Respondent which stated that the hearing had been held on December 3, 1981.) Respondent was advised in the letter that the Board would not consider any application for reinstatement of Respondent's license unless repairs were effected to the Mulqueen pool within thirty days from receipt of the letter. She was further advised that if they had not been so completed, the Board would consider permanent revocation of her license, but if they had been completed within the required time, the Board would consider a written application for reinstatement at its meeting scheduled for January 28, 1982. This letter was hand delivered to Respondent's place of business on January 18, 1982. On January 20, 1982, Respondent telephoned Inspector Williams and stated that she would seek legal counsel and be at the Board meeting on January 28. She indicated to him that she had had some personal problems due to the illness of her sisters, and also had been the subject of theft (although a memo of Williams reflecting the telephone call was dated January 20, 1981, it was apparent from his testimony that the call was made on January 20, 1982.) (Testimony of Williams, Petitioner's Exhibits 7, 18) The Licensing Board met on January 28, 1982, and determined that Respondent's license would be revoked on February 26, 1982, if the previously noted defects had not been corrected. By letter dated February 3, 1982, she was advised by the Board of this fact and that the Board would meet again on February 25 concerning the matter. On February 25, the Board revoked Respondent's license. She was not present at the meeting. She was advised of this action by Letter of the Board, dated March 4, 1982. (Petitioner's Exhibits 2, 8-10) By contract dated July 15, 1981, Respondent agreed to install a swimming pool for Mr. and Mrs. Rex Tyler at their residence in Tallahassee, Florida, for the sum of $23,784.91. The project included installation of aluminum fencing and a brick wall, together with various items of pool equipment. The agreement provided that the contractor would remedy any defects in workmanship without cost, provided written notice was provided within one year after connection of the filter. After the pool was built and paid for by the Tylers, it was found that several problems existed. A pool light continuously went on and off improperly, the motor of the pool sweep leaked, the bottom drain was not adequately secured and would be knocked off by operation of the pool sweep, step tiles were not complete, one tile popped loose, and water faucets leaked. The primary problem, however, was that the main drain would not circulate water on the bottom of the pool. The Respondent was notified of these problems by the owners and repaired some of them over the course of time, but was unable to fix the pool light or the main drain. In this regard, Respondent called upon Walter Swans, another licensed pool contractor, who determined that both the light and the drain were stopped up with "marble" finish. The Tylers were obliged to spend $312.74 to pay Swann's bill and for a plumber to repair the leaking faucets. (Testimony of McCausland, A. Tyler, Clemens, Swann, Petitioner's Exhibits 21-23) By agreement dated May 28, 1982, Respondent contracted with Charles and Brenda Short for the installation of a swimming pool at 3249 Baldwin Drive West, Tallahassee, Florida, for a price of $6,809.20. During the course of construction, Mr. Short inquired of Respondent as to the need for a building permit. She initially told him that she would get one, but later when Short asked her again about the matter, she told him that if he didn't want one it would be all right with her because otherwise it would hold up completion of the pool. Short told her that that was all right with him. He was not familiar with permit requirements. After the walls of the pool had been finished, heavy rains caused the sides of the pool to partially collapse. Inspector Williams was notified of the problem and he found that the work was being done without the required permit. He therefore posted a stop work order at the construction site. On September 1, 1982, Respondent entered a plea of nolo contendere to a charge of contracting without a license in violation of Section 489.127(1)(f), Florida Statutes, in the Leon County Court, Case No. 82MM2702. The Court withheld adjudication of guilt and imposition of sentence and placed the Respondent on probation for a period of six months. The Shorts had paid Respondent a total of $4,000 on the contract price at the time work was stopped on the pool project. They eventually settled the matter with Respondent by agreement. (Testimony of Brenda Short, Charles Short, Courtney, Williams, Petitioner's Exhibits 12, 19-20) In a civil proceeding filed by the Mulqueens against Respondent in the Leon County Circuit Court, Case No. 82-68 the parties entered into a joint stipulation of settlement under which Respondent agreed by promissory note to pay the Mulqueens the sum of $2400 with interest by 24 monthly payments of $100.00 commencing January 1, 1983. On January 27, 1983, the Leon County Contractors Licensing Examination Board reinstated Respondent's license, subject to a 12 month probationary period. By letter October 24, 1983, Mr. Mulqueen advised the County Building Inspector that Respondent had only made two payments on the settlement agreement as of March 1983. (Testimony of Courtney, Petitioner's Exhibits 13-16) Section 2C, Leon County Ordinance No. 74-22, provides that its Contractors Licensing and Examination Board has the duty to suspend or revoke "authorized contractor" certificates for violation of the ordinance, violation of the County Building and Zoning Codes, or violation of any other state, municipal, or county law upon due cause shown to the Board after a hearing. Section 1E provides that the Board must provide the certificate holder with written notice of its intent to consider the revocation or suspension of the certificate, and afford him a hearing before the Board, and that all decisions concerning suspension of revocation of certificates shall be in writing. (Petitioner's Exhibit 17) Respondent testified at the hearing that she had had continuing financial problems commencing a number of years ago when some of her employees were building pools "on the side" with her materials. During the time that problems arose in connection with the Mulqueen and Tyler pools, she was preoccupied with serious personal problems involving her sisters, one of whom died of cancer and the other having been in a mental hospital. She acknowledged that she should have corrected the customer complaints and regrets that she did not do so. Respondent further stated that although she attempted to pay her note to the Mulqueens, her financial situation was such that she was unable to continue meeting the payments. Although she received notice of the various hearings before the Leon County Contractors Licensing and Examination Board, she testified that she had not been thinking of the consequences and didn't even read the letters of notification which were sent to her. She also acknowledged entering into the contract with the Shorts because she was "desperate" for money to pay her various creditors. (Testimony of Eubanks)
Recommendation That the Construction Industry Licensing Board enter a final order suspending the registration of Respondent Laura H. Eubanks as a pool contractor for a period of three months. DONE and ORDERED this 29th day of December, 1983, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 1983. COPIES FURNISHED: James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Stephanie A. Daniel, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Laura H. Eubanks 1421 North Monroe Street Tallahassee, Florida 32303 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, vs. CASE NOS. 21738, 20754, 25386 LAURA H. EUBANKS DOAH CASE NO. 83-2362 737 North Monroe Street Tallahassee, Florida 32303 Respondent. /
Findings Of Fact At all times material hereto Respondent, George W. Boukater, was a certified general contractor, license number CG C012598, and a registered pool contractor, license number RP 0032042. Respondent was the qualifier for Swimming Pools by M.J. Donohue, Inc. (Donohue), under license number RP 0032042, from February 1979 until June 30, 1985. On July 29, 1984 Donohue contracted to construct a swimming pool at the residence of Ms. Loretta Hunley in Fort Lauderdale, Florida, for the sum of $6,400.00. Respondent, on behalf of Donohue, applied for and received the building and plumbing permits for the pool. Apart from securing the permits, Respondent had no contact with the job and never inspected its progress. By August 30, 1984, Donohue had substantially completed the pool. All that remained to be done was to marcite the pool, hook up the pool light and plumbing, and install the pumps. However, before these items could be completed it was necessary that the area surrounding the pool be backfilled, the patio poured, and the electric installed. Under the July 29, 1984 contract Ms. Hunley did not contract with Donohue for any patio, electric or fence work. She expressly retained responsibility for that work in an effort to save money on the pool construction. The area surrounding the pool was not backfilled and the patio slab approved by the Broward County Building and Zoning Department (County) until September 14, 1984. As of September 5, 1985, the fence work was still in violation of the County code. The electric work received the County's final approval on January 8, 1986. In October 1984 demands were exchanged between Ms. Hunley and Donohue. Ms. Hunley demanded that the pool be completed. Donohue demanded adequate electrical service so the pool could be pumped and cleaned for marciting, and dates when someone would be available at the premises. In November 1984 Donohue got its pumps in operation, however Ms. Hunley disconnected them in the evenings. Consequently, the pool could not be drained and cleaned to marcite it. In November 1984 Ms. Hunley ejected Donohue from the job site. Subsequently, Ms. Hunley and Donohue formally settled their dispute.
Findings Of Fact On August 1, 1980, Copper Door II, Inc., entered into a contract with Lang Aquatech Pools to construct a swimming pool for $22,338. Lang began construction, but Copper Door did not maintain the payment schedule called for in the contract, whereupon Lang terminated work on the pool. The parties later reached an agreement that upon payment of $5,000 by Copper Door to Lang work would recommence. After payment by Copper Door of the $5,000, little if any work was performed by Lang toward completion of the pool. Copper Door took over construction and subcontracted the remainder of the work on the pool. The pool was opened to the public by Copper Door and cited by the Department of Health and Rehabilitative Services for failure to have an operating permit in violation of Rule 10D-5.65, Florida Administrative Code. Copper Door has been unable to obtain an operating permit because of its inability to complete an application for an operating permit. The Department's application form for an operating permit (Hearing Officer's Exhibit No. 1) requires execution of a certificate by the pool's engineer and contractor. Because of the aforementioned financial dispute, neither Lang nor its engineer would sign the form. The form requires that both the pool contractor and engineer be registered or certified with the state. The pool was designed by an engineer registered in the State of Florida. Further, the design of the pool was approved by the Department prior to commencement of construction. Work completed by Copper Door after abandonment of construction by Lang included the application of concrete to the inside of the pool, pouring of the decking, installation of a water circulating pump, and a portion of the electrical work. All other work was done by Lang. The pool performs properly and in accordance with other public pools granted operating permits by the Department. The pool was subject to inspection by local building officials. These officials were responsible for ensuring that construction was in accord with plans approved by the Department and local building codes. The Department does not inspect pools during construction. The Department looks instead to the certificate of the contractor and engineer to ensure that a pool meets applicable requirements. The Department's application form has not been adopted by rule or as a rule.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department of Health and Rehabilitative Services accept the application of Copper Door II, Inc., upon execution of the contractor's certificate by Copper Door as owner. Copper Door must keep the pool closed until its application is approved. DONE and ORDERED this 18th day of February, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 1982. COPIES FURNISHED: William W. Chastain, Esquire 412 Madison Street, Suite 1207 Post Office Box 222 Tampa, Florida 33601 Donald R. Odom, Esquire Department of Health and Rehabilitative Services 2255 East Bay Drive Post Office Box 5046 Clearwater, Florida 33518 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issue is whether the Respondent is subject to discipline for permitting his general contractor's license to be used by another person to construct a swimming pool, thereby conspiring with an unlicensed person to avoid statutory licensure requirements, and by failing to oversee the quality of the work performed by that person under Respondent's license.
Findings Of Fact The Petitioner is the state agency responsible to prosecute administrative complaints under Chapters 455 and 489, Florida Statutes, and the rules implementing those statutes. At all times material to the complaint, Raymond Hurley was licensed as a certified general contractor, holding Florida license CGC 000773 and served as the qualifying agent for Capital Resources and Development, Inc. Kenneth R. and Lucille M. Clopper, of Fort Pierce, Florida, entered into a contract with Fred Humberstone, doing business as Southern Fiberglass Pools of the Treasure Coast, Inc., on September 21, 1987, for the construction of a pool and screened enclosure at the Clopper's home. The contract price was $15,500. Mr. Humberstone has never been a qualified contractor in St. Lucie County, Florida. Mr. Hurley became authorized to do business as a contractor in St. Lucie County, Florida, on September 29, 1987, when he provided a copy of his state certified general contractor's license, a certificate of insurance for worker's compensation and general liability property damage insurance to St. Lucie County. St. Lucie County Permit No. 44574 was issued to Capital Resources and Development, Inc., on October 9, 1987. The permit application had been dated September 24, 1987. The application bore Mr. Hurley's contractor license number. In the space for the name of the company, the application had originally been written in the name of Southern Fiberglass Pools of the Treasure Coast, of Stuart, Florida. The name of the applicant had been scratched through, and the name of Capital Resources and Development, Inc., was written over it. The application bears a handwritten signature which reads Raymond S. Hurley, but it is not his signature. Mr. Hurley did not sign the application, or authorize anyone to sign it for him. Mr. Hurley knew Mr. Humberstone, the owner of Southern Fiberglass Pools of the Treasure Coast. Humberstone had difficulty with his corporation because his qualifying contractor had left, and Humberstone owned approximately $150,000 worth of equipment which he could not use without a qualifying contractor. Humberstone made a proposal to Hurley to become the qualifying contractor for Southern Fiberglass Pools of the Treasure Coast. It was about this time that Mr. Hurley first qualified to engage in the business of contracting in St. Lucie County. Mr. Humberstone must have pulled the permit for the Clopper jor, using Mr. Hurley's licensure in St. Lucie County. This is likely because at first, the line for the permit applicant had been filled in with the name of Humberstone's business, Southern Fiberglass Pools by the Treasure Coast. Mr. Hurley had become licensed in St. Lucie County because he was contemplating going into business with Mr. Humberstone. What cannot be determined from the evidence in the record is whether Mr. Hurley had agreed with Mr. Humberstone to make his licensure available to Mr. Humberstone so Humberstone could continue in the pool contracting business in St. Lucie County. Mr. Hurley did not sign the application for the permit at the Clopper's home. He never went to the Clopper's home to see the work or to meet the Cloppers. Had he gone into partnership with Humberstone he would likely have participated, to some extent, in the work. On this matter, the Department's proof is insufficient. After the construction at the Clopper home began, there were a number of delays in completion of the pool, and the contractor failed to install stress relief for the pool deck which resulted in cracking of the pool deck. The pool itself had three leaks. The problems with the pool remained unresolved and the Clopper's finally settled with Mr. Humberstone for payment for $1,020 in exchange for providing Mr. Humberstone with the release of liability. Ultimately, the Cloppers spend $1,659 to repair the problems created by Mr. Humberstone's inadequate work. Mr. Hurley was never at the job site, and the Cloppers never knew anything about him until after their pool had been completed; all of their dealings had been with Humberstone.
Recommendation It is recommended that the administrative complaint filed by the Construction Industry Licensing Board against Raymond Hurley be dismissed. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31st day of January 1991. WILLIAM R. DORSEY, JR. 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 31st day of January 1991. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-4233 Rulings on findings proposed by the Petitioner: 1-7. Accepted. 8. Rejected, as there is insufficient evidence to find that Mr. Hurley, although he knew Mr. Humberstone, had entered into any agreement Humberstone to become a qualifying contractor for Humberstone's corporation. While that is one inference which could be drawn from the evidence, the evidence is not strong enough to permit such finding, at the level of certainty required for clear and convincing evidence, to be made. Rulings on findings proposed by the Respondent: 1-6. Adopted 7. Rejected. There is insufficient evidence in the record to make specific finding with respect to handwriting exemplars, but the testimony of Mr. Hurley that he did not sign the St. Lucie County permit application has been accepted. Copies furnished: Robert B. Jurand, Esquire Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Glenn N. Blake, Esquire BLAKE & TORRES Strange Building 500 South US 1 Fort Pierce, Florida 34950 Robert E. Stone, Esquire SULLIVAN, STONE, SULLIVAN LaJOIE and THACKER 100 Avenue "A", Suite 1F Fort Pierce, Florida 34950 Daniel O'Brien, Executive Director Department of Professional Regulation Construction Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
