Findings Of Fact At all times pertinent to the allegations contained in the Administrative Complaint, the Respondent, Billy Massengill, was licensed as a certified pool contractor in the State of Florida under license number CP C037061, and his license was used to qualify Blue Dolphin Pools or Saraman, Inc., in Sarasota County, Florida. Petitioner, Construction Industry Licensing Board, is the state agency charged with the responsibility to oversee and regulate the contracting profession in this state. On March 17, 1989, Mr. C. Richard Dietz, at the time in charge of construction standards development for the Sarasota County Building and Zoning Department, notified the Respondent by certified mail that action was to be taken against him on a complaint involving faulty construction of a fiberglass swimming pool located at 2834 Concord Street in Sarasota for a Mr. M. Donald Hughes. A notice of the proposed action was also published in the Sarasota Herald on March 24, 1989. The action was based upon a phone call from a former customer of the Respondent, followed up by a letter, which indicated that a pool constructed by the Respondent for the complainant had continued to leak, and that the Respondent had failed to respond to numerous requests to fix it. The Building and Zoning Department sent out an inspector to look at the offending pool, but his report was not informative. Thereafter Mr. Dietz contacted the Respondent by phone to discuss the situation. During their conversation, Respondent promised to start repairs within two weeks. This conversation was followed up by a letter in which Mr. Dietz advised the Respondent of the consequences of his failure to correct the problem. Respondent thereafter did some work on the pool during the months of December and November, 1988, but these efforts did not correct the problem. Respondent is alleged to have told the owner, during that period, that the leak was not in the pool but in the pump. However, the owner, Mr. Hughes, disagreed with this. On December 28, 1988, Mr. Dietz wrote to the Respondent to advise him that the county Board had considered the continuing problem and wanted him to respond. This letter, sent certified mail, was not delivered. Therefore, on January 24, 1989, Mr. Dietz asked the Sheriff to serve the letter on the Respondent at the address they had for him at that time. The letter was served on February 7, 1989. On February 13, 1989, Respondent indicated in writing that he had been out to the Hughes pool on several occasions, had tested it thoroughly, and had corrected a crack which he found in the pool system but which did not hold. When he went back to attempt to correct it again, the owner would not allow him on the property. Upon inquiry, Mr. Hughes acknowledged this because he did not agree with what the Respondent proposed to do. Mr. Hughes indicated that he had had someone else out to repair the pool but it still leaked and he agreed to allow the Respondent back on the property to correct the situation if he would repair the leak. When Mr. Dietz sent the Respondent notice of this, Respondent did not respond. As a result, the matter was again taken to the County Board which held a public hearing on March 20, 1989. Respondent was notified of the hearing to be held by the March 17 letter, referenced previously. The Board again took this matter up at its April 20, 1989 meeting following the regular agenda. Respondent was not present nor was he represented by counsel. Neither was Mr. Hughes. Based on the evidence available, the County Board decided to revoke Respondent's occupational license and privilege to pull permits in Sarasota County. In doing so, the Board noted that he had been properly served with notice, and that that notice had been received by an employee, and that he was guilty of negligence. An Order to that effect was mailed to the Respondent by Certified Mail at Sweetheart Pools and Spas in Port Charlotte, Florida. This Order was receipted for. Notwithstanding the fact that Board's Order was appealable, Respondent did not appeal. Respondent contends that the only leaks in the Hughes pool were at a cracked fitting at the bottom of the skimmer, and a crack in the fiberglass wall. This latter crack was covered by a warranty from the manufacturer and was not the result of installation by the Respondent. Respondent admits the basic allegations concerning his attempts to repair the pool and that Mr. Hughes, having once ordered him off the property, again offered to allow him to come back on to repair the pool. Respondent contends, however, his attorney advised him that, since the owner had discharged him from employment and ordered him off the property, he should not go back. It was on the basis of this advice that he declined to go. Respondent admits to receiving the notice of the proposed County Board action and that he was not present at the hearing. He contends, however, that he had contracted to have a home built for himself at around that time and, because the contractor had abandoned the project with $10,000.00 of his money, he was working 7 days a week to complete the project by himself. This was all going on during the time of the County Board meeting. Respondent claims to have simply forgotten about the meeting. He did not appeal because he did not have the money to retain an attorney to appeal, and didn't intend to do any more pool contracting in the area anyway. He recognized the seriousness of the potential loss of his license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered herein imposing an administrative fine of $250.00 upon the Respondent, Billy Massengill and placing him on probation for a period of six months. RECOMMENDED this 13th day of November, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 13th day of November, 1990. COPIES FURNISHED: Robert B. Jurand, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Billy Massengill 7304 Palomino Trail Sarasota, Florida 34241 Kenneth D. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Daniel O'Brien Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
The Issue At issue is whether Respondent committed the offenses set forth in the Amended Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, the Department, is the state agency charged with the duty and responsibility of regulating the practice of contracting pursuant to Chapters 20, 455 and 489. At all times material to the allegations of the Amended Administrative Complaint, Stephen Wesley Williams, d/b/a Superior Design Construction, Co. Inc., was licensed as a Florida State Certified Building Contractor and a Florida State Certified Pool/Spa Contractor, having been issued license numbers CRC 045849 and CPC 56443 respectively. His licensure status for the Residential Contractor license is designated as "Current, Active." His licensure status for the Pool/Spa Contractor license is designated as "Delinquent, Active." On or about December 19, 2001, Respondent, doing business as Superior Design Construction Company, Inc., entered into a contract with Thomas and Denise Shinn (the Shinns) for construction of a residential swimming pool and pool enclosure to be located at 4050 Retford Drive, Jacksonville, Florida. The contract price was $40,000.00. Respondent obtained a building permit for the job in question as "Superior Design Const Co." The contract does not contain a written statement explaining the consumer's rights under the Construction Industries Recovery Fund. The Department's records establish that Respondent's Certificate of Authority for Superior Design and Construction as a Contractor Qualified Business was issued on May 9, 1997, but has been null and void since August 31, 1999. Construction on the project began around January 2002. Work on the project ceased in or around March 2002. The construction was substantially completed when work ceased on the pool. Mr. Shinn described it as "98 percent of it was finished except for the heater." Other than the heater not being installed, Mr. Shinn considered the few other items that were not completed as minor. The contract specified the installation of a heat pump called an Ice Breaker. This type of pump was specified because it can both heat and cool a pool, which is what the Shinns wanted. Mr. Shinn paid Respondent a total of $38,050 for the job. According to Mr. Shinn, he withheld the final payment of $1,950 because the Ice Breaker heat pump was not installed. According to Respondent, he did not put in the heat pump because he had not been paid the remaining $1,950. The portion of the contract entitled Contract Price & Payment Schedule requires a payment of $1,000 at contract execution and four subsequent payments: Payment #1 - 35% due at Excavation; Payment #2 - 30% due at Gunite; Payment #3 - 30% due at Deck; Payment #4 - 5% due at Plaster. The amount listed for payment number 4 is $1,950. Included in the General Terms and Conditions portion of the contract is the following: PAYMENTS & COLLECTIONS. Contractor reserves the right to stop work at any time past due payment occurs. Owner hereby expressly agrees to such work stoppage and any such work stoppage shall not constitute a breach of contract by contractor. If collection is required of any amounts due under the terms of this contract, or any subsequent approved schedule, owner expressly agrees that he shall be responsible for 18% interest and reasonable attorney's fees for trial, appeal and all costs. Mr. Shinn contacted Respondent several times regarding completion of the contract. While Respondent did not answer many of Mr. Shinn's calls, he did come to the Shinn's home at one point to resolve the situation. However, the heat pump issue remained unresolved. Out of frustration, Mr. Shinn contacted an attorney who wrote a demand letter to Respondent. On or about October 31, 2002, the City of Jacksonville, Department of Public Works, Building Inspection Division, sent a letter to Mr. Shinn notifying him that Respondent had not obtained any inspections for 180 days and that state law could consider this project abandoned. The letter suggested that he contact Respondent immediately to attempt to rectify this situation. Mr. Shinn continued to attempt to contact Respondent but was unsuccessful. Respondent did not notify the Shinns in writing that he was canceling the contract. He did not go to the city to cancel the permit. One work item that was not completed when Respondent ceased working on the job was an unfinished electrical socket near the pool. Mr. Shinn hired Thompson Electric to complete this electrical work that was contemplated by the contract. As a result, Mr. Shinn paid $207.50 to Thompson Electric to have this work completed. In January of 2004, Mr. Shinn contracted with Pinch- A-Penny to install a heater in the pool as one had never been installed. He paid Pinch-A-Penny $3,777.09 to install a pool heater. Mr. Shinn chose to install only a pool heater and not the heating and cooling system specifically referenced in the contract (Ice Breaker) because the Ice Breaker would have cost him $5,500 from Pinch-a-Penny. The amount needed to complete the job as contracted totaled was $5,707.50, which includes $207.50 for Thompson Electric and $5,500.00 for the Ice Breaker heat pump, which is what Pinch-a-Penny charges. Subtracting the $1,950 that the Shinns never paid Respondent leaves a balance of $3,757.50 that the Shinns paid or would have to pay to get the completed pool as contemplated by the contract. As of June 2, 2005, the Department's costs of investigation and prosecution, excluding legal costs, totaled $614.77. Respondent's construction company went out of business on a date that is not clear from the record although Respondent described this job as "about the last pool I built." Clearly, he was no longer in the construction business on the date of the hearing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Construction Industry Licensing Board enter a final order imposing a $100.00 fine to be deposited in the Construction Industries Recovery Fund for a violation of Section 489.1425; issue a notice of noncompliance pursuant to Section 489.119(6)(e); impose fines in the amount of $500 for abandonment of a construction job; $500 for misconduct; and $100 for failure to put his license number on the contract; pay $3,757.50 in restitution; and require Respondent to pay $614.77 in costs of investigation and prosecution. DONE AND ENTERED this 11th day of August, 2005, in Tallahassee, Leon County, Florida. S ___________________________________ BARBARA J. STAROS 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 11th day of August, 2005. COPIES FURNISHED: Brian Elzweig, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Stephen Wesley Williams 3146 Brachenbury Lane Jacksonville, Florida 32225 Tim Vaccaro, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Leon Biegalski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue Whether Respondent's License as a residential pool contractor should be suspended for alleged violation of Section 468.112(7), Florida Statutes. The Respondent did not appear at the hearing although proper notice thereof had been furnished under date of February 11, 1976 to him by the hearing officer. Accordingly, the hearing was conducted as an uncontested proceeding.
Findings Of Fact Respondent has been licensed as a registered pool contractor by the Florida Construction Industry Licensing Board since June 20, 1974. The license was not renewed for 1975/76 (Exhibit 4). Respondent filed a Voluntary Petition in Bankruptcy in the U.S. District Court for the Northern District of Florida, Bankruptcy No. TBK 75-25, on March 13, 1975 (Exhibit 5).
Recommendation That the registration of William R. MacKinnon as a residential pool contractor be suspended until such time as he meets the qualifications and other requirements for renewal of registration and applies therefor. DONE and ENTERED this 5th day of April, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 1976. COPIES FURNISHED: David Linn, Esquire 217 South Adams Street Tallahassee, Florida 32301 Mr. William R. Mackinnon Route 3, Box 584C Tallahassee, Florida 32303
The Issue This is a case in which the Petitioner, pursuant to Section 120.56(4), Florida Statutes,1 seeks a determination that certain statements by the Respondent constitute rules that the Respondent has failed to promulgate in accordance with Section 120.54, Florida Statutes. The statements on which the Petitioner seeks a determination are described in the Petitioner’s initial petition and in two supplements to the initial petition.
Findings Of Fact The Petitioner is the The Pool People, Inc., a Florida corporation with its principal office located at 2150 Southwest 10th Street, Deerfield Beach, Florida 33442. The Petitioner is qualified to construct swimming pools under Chapter 489, Florida Statutes, through its qualifying agent, Mr. Daniel Lowe, a Florida licensed swimming pool contractor. The Petitioner holds certificate number QB 0002429 issued by the Construction Industry Licensing Board; Mr. Lowe holds license number CPC 039909, issued by the same board. The Petitioner has engaged in the business of constructing residential swimming pools in Florida since 1987. The Respondent is the Florida Board of Professional Engineers, located at 2507 Callaway Road, Suite 200, Tallahassee, Florida 32303-5267. The Respondent is charged with regulating the practice of professional engineering in the State of Florida, pursuant to Chapter 471, Florida Statutes, and the rules promulgated thereunder at Florida Administrative Code Rules 61G15-18.001-37.001. The Petitioner does business in Broward, Palm Beach, Martin, St. Lucie, Collier, and Lee Counties. Approximately 90 percent of the Petitioner’s customers are contractors/developers who are constructing housing developments and who contract with the Petitioner to build pools on individual home sites in the development. The remaining 10 percent of the Petitioner’s business is derived from the construction of pools pursuant to contracts with individual homeowners. In the context of contractor/developer contracts, the contractor/developer is the Petitioner’s customer. In contracts with individual homeowners, the homeowner is the Petitioner’s customer. The Petitioner’s pre-construction activities, including specifically the preparation of plans and securing building permits, vary to some extent depending on the county in which the construction is to occur. There is, however, a common theme for almost all of the pools constructed by the Petitioner. First, all of the engineering criteria for the pools it constructs are developed by a Florida licensed engineer. Second, those criteria, including, but not limited to, floor thickness, wall thickness, main drain placement, and beam thickness, typically are identical from pool to pool. Third, the criteria are developed and converted into a portion of a full set of plans without reference to a specific construction contract. Fourth, the plans for a specific pool are finalized using the previously developed and stored set of engineering construction detail drawings and any items unique to the specific job. When and where required, the Petitioner’s plans are reviewed, signed, and sealed by a Florida licensed engineer under contract to the Petitioner, whose compensation is not tied to the “production” of a specific set of plans. Rather, the engineer is paid monthly a flat fee based on a projected hourly rate of ten hours per week to review, revise, sign, and seal plans. All counties in Florida require individual building permits for the construction of a pool, but the manner in which the actual plans for each individual pool are prepared and submitted, and the degree of review by a professional engineer, may vary, depending on the county. In certain counties, the Petitioner files a master set of detailed engineering plans, depicting specific construction details, for the various pools it will construct. Then, as the Petitioner seeks permits for the construction of a particular pool, it simply submits a permit application and a diagrammatical reference to the pool location on the property; no other engineering review or sign- off is required. In other counties, each application for a construction permit must contain a complete set of construction plans. Each of those sets includes both previously developed engineering construction details and the details depicting the location of the pool on the building site. The entire set of plans is reviewed, signed, and sealed by a Florida licensed engineer prior to submission to the local building department. To obtain any appropriate and necessary engineering drawings for a pool it has contracted to build, the Petitioner has contracted with a private Florida licensed engineer to develop the engineering criteria for its pools and then to review, make such modifications as may be necessary, and sign and seal the plans. The engineer visits the company’s premises twice weekly and reviews such plans as are ready for his review. He is compensated on a flat fee basis regardless of the number of plans reviewed. The Petitioner then files the plans with the appropriate local building department, obtains a building permit, and builds the pool. The engineering drawings are the property of the Petitioner and are delivered to the Petitioner by the engineer. They are not delivered to the client of the Petitioner who contracted for a pool. The Construction Industry Licensing Board, which authorizes the Petitioner to do business as a swimming pool construction company has never advised the Petitioner that it was operating outside the scope of its permitted authority. The manner in which the Petitioner operates with respect to the preparation and use of engineering drawings necessary to obtain a building permit is a common practice in the pool-building business in Florida. On or about May 24, 2004, the Respondent served a Notice to Cease and Desist upon the Petitioner. The Notice to Cease and Desist reads as follows in pertinent part: You are hereby ordered by the FLORIDA BOARD OF PROFESSIONAL ENGINEERS to Cease and Desist from the unlicensed and illegal practice of Engineering. You are notified that the following specifically described conduct constitutes the unlicensed practice of engineering: Filing engineering plans signed and sealed by a professional engineer employed by a corporation that does not have a Certificate of Authorization as required by Section 471.023, Florida Statutes. Providing engineering services directly through a corporation that does not have a Certificate of Authorization as required by Section 471.023, Florida Statutes. Possessing, storing or acting as custodian for the seal of a professional engineer on premises of a corporation that does not have a Certificate of Authorization. Pursuant to Chapter 471, Florida Statutes, only persons or firms licensed by the Florida Board of Professional Engineers may practice engineering in the State of Florida. The unlicensed practice of engineering is made a crime by Section 471.031, Florida Statutes. Additionally, the Board of Professional Engineers is authorized by Sections 455.228 and 471.031 to impose a fine of up to $5,000 for each incident of the unlicensed practice of engineering. The Petitioner declined to comply with the Notice to Cease and Desist because it did not believe it had offered engineering services to the public. On or about December 20, 2004, the Respondent filed a five-count Administrative Complaint against the Petitioner in which it was alleged that the Petitioner had offered professional engineering services to the public on five occasions. The Administrative Complaint also alleged that each of those five occasions constituted the unlicensed practice of engineering because the Petitioner did not have a certificate of authority to provide engineering services in Florida at the time of any of the occasions alleged in the Administrative Complaint. The Administrative Complaint reads as follows, in pertinent part: ADMINISTRATIVE COMPLAINT The Florida Board of Professional Engineers files with the Department of Business and Professional Responsibility this Administrative Complaint against The Pool People, Inc., and alleges: The Board of Professional Engineers is charged with deterring the unlicensed practice of engineering pursuant to Section 471.038(5) and Chapter 455, Florida Statutes. Respondent is a Florida corporation with a principal office at 2150 SW 10th Street, Deerfield Beach, Florida 33442. Respondent does not have and has never had a Certificate of Authorization to provide engineering services in the State of Florida. On or about May 24, 2004, Petitioner served upon respondent a Notice to Cease and Desist the unlicensed practice of engineering, a copy of which is attached and incorporated in this Administrative Complaint as “Exhibit A”. [sic] COUNT ONE Petitioner realleges and incorporates paragraphs 1 through 4 as if fully set forth in this Count One. On or about June 10, 2004, Respondent, through its qualifying individual contractor, filed an application for a permit to build a pool for an owner, Vista Builders, at 16326 78th Road North, in Palm Beach County, Florida. The Vista Builders application included 4 pages of engineering plans signed and sealed on June 9, 2004, by Ming Z. Huang, P.E. On information and belief, Respondent employed Mr. Huang to provide engineering services included in its contract with Vista Builders. Respondent engaged in the practice of engineering in one or more of the following ways: by filing engineering plans signed and sealed by a professional engineer employed by Respondent while Respondent did not have a Certificate of Authorization as required by Section 471.023, Florida Statutes; by providing engineering services directly to a customer while Respondent does not have a Certificate of Authorization as required by Section 471.023, Florida Statutes. Based on the foregoing, Respondent violated Section 471.031(1)(a), Florida Statutes, by practicing engineering without a license.[2] The Respondent has not promulgated as rules any of the statements in the Notice to Cease and Desist or in the Administrative Complaint described above.
The Issue Whether Rocco R. Sodomire (Respondent) violated Section 489.129(1)(c) and (r) and Section 455.227(l)(o), Florida Statutes, and if so, what disciplinary action should be taken against his license to practice contracting.
Findings Of Fact Respondent is, and has been at all times material hereto, a Certified Residential Contractor in the State of Florida, having been issued license number CR CO57213. At all times material hereto, Respondent was not licensed to do any swimming pool/spa contracting in the State of Florida. On or about November 1996, Respondent submitted a proposal to Vincent Neglio for the construction of a 28' x 14' in-ground swimming pool, a deck, and a screen enclosure at a cost of $15,000.00. Shortly thereafter, pursuant to the proposal, Respondent began construction of a swimming pool and deck at Mr. Neglio's residence. Prior to completion of the pool project, Mr. Neglio paid Respondent a total of $14,200.00. Although Respondent received $14,200.00 from Vincent Neglio, he never completed the pool project. Respondent presented the proposal for the pool project to Mr. Neglio; accepted money from Mr. Neglio as payment for work on the project; distributed funds to other contractors who worked on the pool project; and performed work on the pool project at Mr. Neglio's home. On August 4, 1997, the County Court of the Twentieth Judicial Circuit in and for Lee County, Florida, Small Claims Division (Case Nos. 97-2569SP-RRS and 97-2570-SP-RRS), entered a Record of Agreement between Respondent and Mr. Neglio whereby Respondent was to pay Mr. Neglio a total of $2,600.00 to settle the dispute involving the aforementioned pool project. On January 13, 1998, the County Court of the Twentieth Judicial Circuit in and for Lee County, Florida, Small Claims Division, in the above-referenced cases entered a Final Judgment by Default against Respondent in favor of Vincent Neglio in the amount of $2,600.00, the payment amount required in the Agreement, as a result of Respondent's failing to pay monies based on the Agreement referenced in paragraph 6. To date, Respondent has failed to make any payments to Vincent Neglio based on the Small Claims Court Record of Agreement, referenced in paragraph 6 or the Final Judgment by Default referenced in paragraph 7.
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 that: (1) finds Respondent committed the offenses alleged in Counts I and II of the Administrative Complaint and imposes a $500.00 fine for these violations; (2) requires Respondent to pay restitution to Vincent Neglio in the amount of $2,600.00; and (3) requires Respondent to pay to Petitioner $858.97, the costs incurred by Petitioner in the investigation and prosecution of this proceeding. DONE AND ENTERED this 23rd day of November, 1999, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 23rd day of November, 1999. COPIES FURNISHED: Paul F. Kirsch, Esquire Leonardo N. Ortiz, Qualified Representative Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Rocco R. Sodomire 3520 Southeast 2nd Avenue Cape Coral, Florida 33904 Rodney Hurst, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact The Petitioner is the Department of Professional Regulation. The Respondent is Phillip Whitaker, Jr., holder of certified pool contractor license number CP-C008325 at all times pertinent to these proceedings. He is the qualifying agent for the business known as Sunshine State Pools pursuant to requirements of Chapter 489, Florida Statutes. He is responsible for actions of that business relating to construction of the swimming pool which is the subject of this proceeding. His address of record is Miami, Florida. The customer, Ken Gibson, signed a contract with Sunshine State Pools on September 15, 1986. The contract called for construction of a residential swimming pool at 15840 S.W. 155th Avenue, Miami, Florida. The total contract price was $12,700. Testimony adduced at hearing establishes that Sunshine State Pools completed the layout of the customer's swimming pool and the excavation of soil from the proposed pool site by October 1, 1986. These tasks were accomplished under the Respondent's supervision. Metropolitan Dade County issued a building permit for construction of the swimming pool in response to a permit application bearing the signature of Phillip E. Whitaker. The permit and application are both dated October 10, 1986. At hearing, the Respondent acknowledged that initiation of construction prior to pulling the permit and termed this action an "oversight." Based on the candor, demeanor and experience of the Respondent, his explanation of the failure to timely obtain the construction permit is not credited. Initiation of construction for a swimming pool prior to obtaining permits constitutes a violation of part 301.1(n), of the South Florida Building Code and, by stipulation of the parties at hearing, the building code of Metropolitan Dade County. The Respondent was responsible for supervision of the actual pool shell construction. After completion and removal of the wood forms used in the process, steel rods or "rebar pins" required as support during the construction process were not removed. These rods extended some distance above the ground and posed a substantial hazard to Respondent's children while playing. Finally, the steel rods were removed by the customer a week after he requested the Respondent to remove them. Respondent admitted some of these reinforcements could have been left by his subordinates. Respondent admits responsibility for the "back fill" process completed on October 25, 1986. This was originally a responsibility of the customer under the contract as the party responsible for deck construction. The "back fill" process consists of compacting loose soil between the outside of the pool walls and surrounding earth by use of special tamping or pounding equipment. Under terms of the contract, the customer was responsible for construction of a sizeable two part deck surrounding at least sixty percent of the pool's circumference. There now exists a substantial height difference between the coping surrounding the perimeter of the pool and the deck or patio surface. The coping is elevated above the top of the patio approximately two to four inches. As adduced from testimony of Ben Sirkus (stipulated by both parties as an expert in swimming pools and swimming pool construction), coping along the top of the pool walls consists of flagstone rock in conformity with the contract terms. Some of the rocks are cracked. The rocky edge of the coping extends over the pool wall and has a dangerously sharp edge. The sharp edge of the coping overhang could have been avoided by cutting the flagstone coping smooth prior to installation, the acceptable practice among pool contractors. The bottom step to one set of the pool steps has a hazardous 19 inch riser as opposed to the 12 inch distance required by the building code. No hand rail is present. Hollow space under some of the coping stones are the result of either improper installation, dirty cement or sinking of the deck as a result of improper "back filling" upon completion of the pool shell. On one occasion, Respondent admitted responsibility for deficiencies in the pool coping to an employee named Rick Miro. The Respondent further stated to this employee that he intended to do nothing about the problem. Respondent was present during some, but not all, of the coping installation. The "skimmer," the apparatus by which debris is cleared from the pool water, is inoperable as a result of faulty construction of the pool. The failure of the Respondent, who admits to successful completion of approximately 2500 pools with only three complaints, to properly supervise job site activities was the major cause of the pool deficiencies identified at hearing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be placed on probation for a period of two years upon such terms and conditions as may be determined by the Construction Industry Licensing Board and assessed an administrative penalty in the amount of $1500. DONE AND RECOMMENDED this 29th day of February, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5053 The following constitutes my specific ruling on proposed findings of fact submitted by the parties. Petitioner's Proposed Findings Included in finding 2. Included in finding 3. Included in finding 4. Included in findings 5, 6 and 7. Included in findings 5 and 6. Included in finding 8. Included in finding 10 with exception of hearsay statement. Included in finding 11.1 Included in finding 12. Included in finding 11. Included in finding 11. Included in finding 11. Included in finding 11. Rejected as unnecessary. Rejected as unnecessary. Included in finding 11. COPIES FURNISHED: David L. Swanson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Mark D. Press, Esquire 2250 Southwest Third Avenue 5th Floor Miami, Florida 33129 William O'Neil General Counsel 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely Executive Director Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 =================================================================
Findings Of Fact At all material times hereto, Respondent was the holder of a registered swimming pool contractors license number RP 0035739. Respondent's license was issued in the name of Malicki Pools, Terry W. Malicki. In January, 1981, Gary Wieland entered into a contract with Patrick Barr d/b/a Pool and Spa World. Barr was to construct a pool for Weiland in Port Charlotte for $7,856.00. Barr had become known to Wieland as a builder of swimming pools through a neighbor. Barr stated to Wieland that he was a pool contractor. Wieland made all payments due under the contract to Barr. Petitioner's evidence established that the Wieland swimming pool required a building permit. On March 3, 1981, Terry Malicki d/b/a Malicki Pools obtained permit number 66970 to construct a pool at Wieland's residence in Port Charlotte. Wieland's testimony established that Malicki constructed the pool at his residence. However, all of his dealings were with Barr. Barr was not licensed as a swimming pool contractor in Charlotte County or in Florida, and was convicted in the Charlotte County court of acting as a contractor without being licensed. Mr. Robert Guariglia entered into a contract with Barr to construct a swimming pool for $9,500.00. The pool was to be constructed at Lot 17, Block 402, Subdivision 23 or 913 Cherry Chase, Port Charlotte, Florida. Petitioner's evidence established that the Guariglia pool required a building permit. On June 10, 1981, Terry Malicki d/b/a Malicki Pools obtained permit number 68962 to construct a pool at Lot 17, Block 402, Subdivision 23 or 913 Cherry Chase, Port Charlotte, Florida. Guariglia paid the first installment of his contract by check to Barr in the amount of $3,325.00. However, because the pool was not level, Guariglia told Barr or Malicki who was supervising the work that he wanted the pool redone or removed. The pool was later removed and Guariglia had to pay $1,400 to have his property restored. As noted above, Barr was not licensed as a swimming pool contractor in Charlotte County or in Florida, and was convicted of acting as a contractor without being licensed. However, the swimming pool constructed at the identified Guariglia residence required a building permit. On September 3, 1981, the Charlotte County Building Board suspended the certificate of competency of the Respondent until such time as he corrected all matters which were then pending before that Board. On November 5, 1981, the Charlotte County Building Board reinstated Malicki's license.
Recommendation In consideration of the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order suspending the swimming pool contractor's license issued to Respondent for one (1) year. DONE and ENTERED this 22nd day of April, 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 22nd day of April, 1983. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Terry W. Malicki c/o Malicki Pools 1788 S.W. Sicily Avenue Port Charlotte, Florida 33952 Stephen Schwartz, Esquire 680 Aaron Street, N.W. Port Charlotte, Florida 33952 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Respondent committed the offenses alleged in the Amended Administrative Complaint and, if so, what penalties, if any, should be imposed.
Findings Of Fact At all times material, Respondent was licensed as a certified pool/spa servicing contractor, having been issued license no. CP C053918, and Respondent was the qualifying agent of Sun Technical Systems, Inc., a Florida corporation. In 1981, Nancy Morasch moved to Florida and purchased a single-family home, which did not contain a pool, at 1210 Sunshine Tree Boulevard in Longwood, Seminole County, Florida. The following year, she had a swimming pool built without a spa. On or about February 2, 1998, Morasch sought to have her pool refurbished and add a spa. She received a written proposal by Larry Boles to perform the work, including the addition of a spa, for $22,479.00. Morasch declined to contract with Mr. Boles. Shortly thereafter, Morasch received a written proposal from Respondent to perform the refurbishment and build the spa. Respondent bid $18,800 to complete the job and indicated that he would finish by December 25, 1998. On October 17, 1998, Morasch entered into a written contract with Respondent on behalf of Pleasure Pool Services, Inc., a Florida corporation, for a price of $18,800.00. Morasch was informed by Respondent that he was licensed to construct the spa. The contract included a one-year warranty for defects in workmanship. Respondent's license number did not appear in the contract, and the contract did not contain a written statement explaining the consumer's rights under the Construction Industries Recovery Fund. Pursuant to the contract, Morasch made payments to Pleasure Pool Services, Inc., on or about the following dates and in the following amounts: October 17, 1998, $2,000.00; November 27, 1998, $5,500.00; and December 12, 1998, $7,500.00; for a total of $15,000.00. On November 27, 1998, Respondent began performing work pursuant to the contract. By Christmas Eve 1998, the work remained substantially incomplete. In December 1998, Respondent hired Anthony Keegan to remove the existing tile in Morasch's pool and install new tile around the perimeter of Morasch's pool and spa. Although Keegan usually required payment in advance, due to his long-standing relationship with Respondent, Keegan accepted a partial payment of $500.00 from Respondent and bought materials for the job on credit. Respondent never communicated to Keegan that he considered Keegan's work unsatisfactory in any way, nor did Morasch consider Keegan's work unsatisfactory in any way, and Keegan's work was a necessary part of the project. Respondent refused to pay Keegan the balance so in late January 1999, after a threat of lien by Keegan, Morasch paid him $965.68, the total balance owed him by Respondent. In January 1999, Respondent sub-contracted Magic Marcite to perform the plastering work on Morasch's pool and spa. Magic Marcite performed the work over three days ending on January 25, 1999. Respondent never communicated to Magic Marcite that he considered its work to be unsatisfactory in any way, nor did Morasch consider Magic Marcite's work unsatisfactory in any way, and Magic Marcite's work was also a necessary part of the project. Again, Respondent was threatened with a lien by Magic Marcite and paid them the $1,500.00 balance due from Respondent in three installments, on or about April 28, May 30, and June 25, 1999. From late January 1999, until August 1999, Respondent neglected to perform further work despite complaints by Morasch that the pool and spa were losing substantial amounts of water and the pool deck concrete was cracking and sinking. Furthermore, and contrary to the contract negotiations between Respondent and Morasch, Respondent positioned the spa level to the pool deck and not elevated. In addition, the jets in the spa as built by Respondent were positioned too low. In June 1999, Morasch retained counsel to assist her in her efforts to have Respondent complete the project. In July 1999, with her attorney's assistance, Morasch succeeded in getting Respondent to agree to perform further work to address the cracked tile and deck concrete. In August 1999, Respondent hired a leak specialist to repair various water leaks. In September 1999, Respondent replaced some of the cracked tile and removed some of the cracked deck concrete. In October 1999, Respondent repaired more tile. Thereafter, Respondent abandoned the project. Morasch complained to the National Spa and Pool Institute and Petitioner. Thereafter, she hired Acryla-Crete to repair the pool and spa and paid them $14,135.85 upon completion. Morasch paid attorney's fees totaling $2,304.17. Although Respondent failed to obtain any building permit or inspections for any work on Morasch's swimming pool and spa, Seminole County required them. Sun Technical Systems, Inc., has never been issued a license as a qualified business organization. As of August 8, 2001, Petitioner's cost of investigation and prosecution in this case, excluding costs associated with an attorney's time, totaled $771.77.
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, as follows: Finding that disciplinary action against Respondent is warranted for the violation of: Count I, Sections 489.129(1)(c) and 455.227(1)(m); Count II, Sections 489.129(1)(c) and 455.227(1)(o); Count III, Section 489.129(1)(f); Count IV, Sections 489.129(1)(i) and 489.119(2); Count V, Sections 489.129(1)(i) and 489.119(6)(b); Count VI, Sections 489.129(1)(i) and 489.1425; Count VII, Section 489.129(1)(j); Count VIII, Section 489.129(1)(m); and Count IX, Section 489.129(1)(o), Florida Statutes, as alleged in the Administrative Complaint. Requiring Respondent to pay an administrative fine in the amount of $5,000.00. Requiring Respondent to pay Petitioner's costs of investigation and prosecution, excluding costs associated with an attorney's time, in the amount of $771.77, plus any such further costs as may have been or may be incurred by Petitioner after August 8, 2001, through the taking of final agency action. Requiring Respondent to pay restitution in the amount of $15,231.70 to Nancy Morasch, this amount of restitution calculated as the total amount paid by Morasch to Pleasure Pools ($15,000.00), Anthony Keegan ($965.68), Magic Marcite ($1,626.00), Michelle Kane ($2,304.17), and Acryla-Crete ($14,135.85), minus the $18,800.00 contract price. Permanently revoking Respondent's certified swimming pool/spa servicing contractor license number CP C053918. DONE AND ENTERED this 29th day of October, 2002, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER 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 29th day of October, 2002. COPIES FURNISHED: Theodore R. Gay, Esquire Department of Business and Professional Regulation 401 Northwest 2nd Avenue Suite N-607 Miami, Florida 33128 Dave Hopkins 4441 North Fort Christmas Road Christmas, Florida 32709 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Robert Crabill, Executive Director Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent violated Section 489.127(1)(f), Florida Statutes, as alleged in the Administrative Complaint filed against Respondent in this proceeding and should be disciplined.
Findings Of Fact At no time material to the allegations was Respondent licensed or certified as a contractor of any type by the Florida Construction Industry Licensing Board. On or about June 2000, Respondent entered into a written contractual agreement with Harold Knowles to construct a swimming pool at Mr. Knowles' residence located at 235 North Rosehill Drive, Tallahassee, Florida. The contract price for the swimming pool was $18,650.00. Mr. Knowles paid directly to Respondent $9,400.00. Respondent performed some work on the pool project and then stopped work on the project. Respondent failed to return to Mr. Knowles any monies received for the project. The homeowner was forced to pay out-of-pocket expenses to have a second, licensed pool contractor finish the pool that Respondent left unfinished. These expenses total in excess of $24,000.00. Respondent acknowledges that he had no license. Respondent testified at hearing along with his wife. It was clear that Respondent was sorry for his actions. He was unaware of the gravity of his acts. He does not have any financial resources, and a significant fine will not benefit Mr. Knowles. A substantial fine adversely impact Respondent's family more than Respondent.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: That Respondent be fined $500.00, together with the investigation and prosecution costs. DONE AND ENTERED this 18th day of February, 2002, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 18th day of February, 2002. COPIES FURNISHED: Patrick Creehan, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32388-2202 Robert Footman 2702 Lake Mary Street Tallahassee, Florida 32310 Gail Scott-Hill, Esquire Lead Professions Attorney Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0771 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact On December 30, 1975, Collier County adopted Ordinance No. 75-57 which required, among other things, swimming pool contractors to be licensed by the county or state after establishing their competency. Prior to this time swimming pool contractors did not need certificates of competency to construct swimming pools. Anthony Schmidt had been engaged in the manufacture and installation of swimming pools for several years before opening a swimming pool business in Collier County. On April 22, 1976 Schmidt entered into a contract (Exhibit 1) to construct a swimming pool for John Dottore in Naples, Florida. Shortly thereafter Schmidt was issued a violation by an investigator of the FCILB for starting a different pool without a license. Schmidt contacted friends to ascertain who he could get to "pull" the permit needed to construct Dottore's pool, and was subsequently introduced to George C. Moyant, Respondent, a resident of Hollywood, Florida. He was introduced to Moyant at Moyant's house at a meeting arranged by mutual friends. The alleged purpose of this meeting was special tutoring of Schmidt by Moyant to prepare Schmidt for the pool contractor's exam and no other subject was discussed at this meeting. No final arrangements for such tutoring were made. Respondent holds Pool Contractor's License # CP C009205 and General Contractor's License #CG C001828 issued by the FCILB. He is president of Allstate Construction College, Inc. and prepares applicants for the various examinations required for registration with the FCILB. Subsequent to the meeting at Moyant's house Schmidt contacted Moyant regarding Moyant pulling a permit for Schmidt to construct Dottore's pool, and on a subsequent visit by Moyant to Naples Moyant, in company with Schmidt, submitted an Application for Building Permit (Exhibit 4) prepared and signed by Schmidt, showing the contractor to be George C. Moyant, License #CP C009205. At the same time Collier County Permit (Exhibit 5) was issued to Moyant as contractor for the construction of a swimming pool for Dottore. Immediately thereafter, at the Collier County Courthouse parking lot Schmidt gave Moyant a check dated May 4, 1976 in the amount of $500. Moyant's testimony that the payment was an advance for tuition is not credible. Moyant admits that Schmidt called him around the first of May for help in getting a permit for the swimming pool for Dottore and that he, Moyant, was "very reluctant" but assented to come to Naples to help Schmidt out and in fact, pulled the permit. Moyant recognized that his actions were in violation of the laws unless "one does things correctly." He advised Schmidt that his brother or the mutual friend, both of whom have general contractor's licenses would act as his, Moyant's, agent "if any problems come up". Before Schmidt completed the pool an investigator for the FCILB became aware of the circumstances surrounding the issuance of the permit and the investigation and administrative complaint followed.
