The Issue The issues in this cause are those promoted by the filing of an Administrative Complaint by the Department of Professional Regulation accusing the Respondent of various violations of Chapter 489, Florida Statutes. Should the Respondent be found guilty, this action contemplates the imposition of a penalty against Respondent's license as a commercial pool contractor in Florida.
Findings Of Fact 1. Respondent, at all times relevant to this inquiry, was a registered commercial pool contractor having been issued license number RP0041725. This is a license issued by the Florida Construction Industry Licensing Board. 2..On November 18, 1983, Respondent entered into a contract under the name Kennedy Pool and Construction Co., an entity for whom Respondent serves as a qualifying agent in the commercial pool contracting business. This contract was with one Marie Robertson; however, the contract was not for the purpose of construction of a pool. It was for construction of a 20' by 24' block garage. This structure was to be free-standing and would be located adjacent to Ms. Robertson's residence, which is also used in her business. Petitioner's exhibit number 2 is a copy of the contract and reflects the $4,800.00 contract price. Robertson has paid the full amount of the contract and the garage construction was completed in January, 1984. Respondent personally built the garage. Respondent built the garage without obtaining a building permit from the City of Jacksonville, Florida. Respondent also failed to submit plans and specifications to the City of Jacksonville, which set forth the design and placement of this garage structure. Having failed to request a permit or to submit plans and specifications, Respondent made no request of the City of Jacksonville Building Department to inspect the construction related to the garage. Finally, Respondent in his licensure with the State of Florida, and license recognition with the City of Jacksonville, was not authorized to serve as a building contractor engaging in the construction of structures such as the garage in question. The project at issue entailed the pouring of a foundation; the erection of block walls the erection of a roof truss system and the installation of a roof covering of shingles. All of these items were beyond the license recognition which respondent held with the State of Florida and the City of Jacksonville. When the City of Jacksonville discovered the existence of the garage, it made the owner aware that the structure was in violation of the City of Jacksonville Building Code related to the need for obtaining a building permit, and the fact that the garage structure violated the city's set-back requirement. This later item pertained to the fact that given the commercial utilization of the property, on the part of Ms. Robertson, the garage was too close to the city street. As a consequence, Robertson was put to the inconvenience of obtaining and paying for a building permit and gaining a variance from the set-back requirements mentioned. Had the City of Jacksonville been presented with building plans and specifications, this would have alerted the city to the fact that the placement of the garage was too close to the street. When confronted with her difficulty, Ms. Robertson contacted the Respondent to gain his assistance in obtaining a building permit. The Respondent indicated that it was her problem and said that he could not get a permit because the property was business property and not private property. The Respondent was charged by the City of Jacksonville through a notice of violation of local zoning requirements related to the failure to obtain a building permit and the fact that the Respondent was not licensed by the City of Jacksonville to construct a garage at the Robertson residence. Attempts at serving the violations were not successful in that calls to the Respondent and issuance of notice of violations through certified mail, return receipt requested, were not acknowledged by the Respondent.
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 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
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. /
The Issue Count I: Whether Rule 424.2.17.1.9 of the Florida Building, Code, through an amendment of Rule 9B-3.047, Florida Administrative Code, is an invalid exercise of delegated legislative authority because it: (a) enlarges, modifies, or contravenes the statute; (b) exceeds the statutory rule-making authority of the Florida Building Commission; (c) is arbitrary and capricious; and/or (d) is not based on competent substantial evidence. Count II: Whether this Rule was adopted contrary to, and in violation of, the Florida Building Commission's stated rule- making procedure due to a prior settlement. Count III: Whether, with regard to this Rule, the Florida Building Commission failed to adopt a less costly regulatory alternative; and Count IV: Whether Chapter 515, Florida Statutes, is unconstitutional.1/
Findings Of Fact The Code is a unified statewide set of building codes authorized by Chapters 98-287, 2000-141, 2001-186, 2001-372, and 2002-1, Laws of Florida. The Commission is the state agency authorized by statute to adopt, amend, promulgate and maintain the Code. The rule under challenge is Section 424.2.17.1.9 of the Florida Building Code which provides: All doors and windows providing direct access from the home to the pool shall be equipped with an exit alarm complying with UL2017 that has a minimum sound pressure rating of 85dBA at 10 feet and is either hard-wired or of the plug-in type. The exit alarm shall produce a continuous audible warning when the door and its screen are opened. The alarm shall sound immediately after the door is opened and be capable of being heard throughout the house during normal household activities. The alarm shall be equipped with a manual means to temporarily deactivate the alarm for a single opening. Such deactivation shall last no longer than 15 seconds. The deactivation switch shall be located at least 54 inches above the threshold of the door. Exceptions: Screened or protected windows having a bottom sill height of 48 inches or more measured from the interior finished floor at the pool access level. Windows facing the pool on floor above the first story. Screened or protected pass-through kitchen windows 42 inches or higher with a counter beneath. All doors providing direct access from the home to the pool must be equipped with a self-closing, self-latching device with positive mechanical latching/locking installed a minimum of 54 inches above the threshold, which is approved by the authority having jurisdiction. Section 424.2.17.1.9, above, was adopted by the Commission by reference when it adopted Rule 9B-3.047, Florida Administrative Code. The Florida Administrative Code indicates this amendment to Rule 9B-3.047, also adopted the November 6, 2001, Florida Building Code and took effect December 16, 2001.4/ Previous amendments to Rule 9B-3.047, Florida Administrative Code, had been effective on November 28, 2000, and February 7, 2001. Although several portions of the rule were addressed at hearing, see infra., the main thrust of this rule challenge is that Petitioner and Intervenor contend that the rule discriminates against battery-powered alarms in favor of hard- wired or plug-in alarms for doors and windows accessing a swimming pool. Prior drafts of 424.2.17.1.9 and prior provisions of the Standard Building Code and other swimming pool codes relating to exit alarms do not require that exit alarms be "hard-wired" or "plug-in" type alarms. The Standard Building Code does not eliminate battery-powered exit alarms as a means for limiting access to swimming pool areas. No state besides Florida has eliminated them as an option. The rule only applies to new pools or new home construction. FPSA is a non-profit statewide construction trade association of 850 company members, with 10,000 employees, whose membership includes contractors engaged in swimming pool and spa construction, repair, renovation, and service, and whose work is regulated by the Code. It promotes the swimming pool industry through educational business-to-business programs and provides legislative and administrative rule monitoring and lobbying services on behalf of its membership. The subject matter of the challenged rule is within FPSA's scope of interest and activity as a trade association. Only a licensed electrician or alarm specialist can legally install hard-wired alarms. Anyone, including the homeowner; pool contractors, such as FPSA members; or a general contractor, such as Intervenor, can install a battery-powered window or door alarm for a swimming pool. The rule has resulted in members' potential customers delaying decisions to purchase swimming pools. The rule has resulted in FPSA pool contractors having to employ licensed electricians and alarm specialists to do work swimming pool contractors previously could do themselves. Awaiting completion of work by these specialists can delay the approval (Certificate of Completion) of the pool work by building inspectors. Only licensed electricians can legally install swimming pool pumps and pool lights. Awaiting completion of this work can also delay the Certificate of Completion. The type of alarm used affects the swimming pool contractor's cost of doing the project and ultimately impacts the swimming pool contractor's "bottom line." The record is silent about the cost of plug-in alarms. Installation of hard- wired devices currently on the market which would meet the requirements of the challenged rule have been costing FPSA members approximately $400.00-$500.00 for two windows and two doors. This expense may be increased by the number of doors and windows accessing the pool by approximately $150.00-$160.00 per extra door and $70.00 per extra window. Battery alarms cost about $40.00 apiece. Intervenor is a member of the Florida Home Builders' Association. He is a Florida-licensed general contractor. As such, he is required to comply with the Code. In recent years, he has operated through a franchise agreement with Arthur Rutenberg Homes. Ninety-eight percent of his business is construction of new, custom-built, single family residences. Approximately one-third of the homes Intervenor builds include swimming pools as an amenity. Most of his homes range in price from $300,000 to $1,200,000. Intervenor usually hires swimming pool installation sub-contractors, such as members of FPSA, who obtain a separate permit for construction of any pool. Intervenor leaves it to the swimming pool contractor to call for inspections and to see to it that the pool is compatible with all existing building codes, but Intervenor has ultimate responsibility for his new residences' final Code compliance. For a new home, Intervenor usually subcontracts to have hard-wired pool alarm systems installed for approximately $695.00 for two doors and four windows in conjunction with a home security system which itself costs approximately $695.00. This expense can be increased by the number of doors and windows accessing the pool. When a hard-wired alarm is installed in a house under construction after drywall has been installed, Intervenor has to tear out the drywall so the wiring for the alarm can be run in, and then he must re-install the drywall. This method becomes necessary in the few older homes he upgrades with a swimming pool and other amenities or where a new home customer decides to install a pool in mid-construction of the house after further financing has been obtained. This method and expense would not be incurred if battery-powered alarms were allowable under the Code. During the years 2000-2001, the Florida Building Commission was engaged in a marathon rule adoption procedure designed to integrate into the Code, and thereby render uniform, all the competing local building codes within the State of Florida. The purpose thereof was to fulfill the intent of the Florida Legislature that once a uniform basis was established, any amendments to specific components, such as 424.2.17.1.9, would thereafter proceed on triennial or annual cycles. To reach a uniform starting point for the rule amendments and cycles, enabling or implementing statutes were frequently amended by the Legislature to extend their effective dates so as to coincide with the Commission's adoption of the full state- wide Code, which ultimately took effect March 1, 2002. Rule- making, pursuant to Chapter 120, Florida Statutes, continued throughout the various time frames of the statutory amendments. As of June 8, 2001,5/ Section 44, Chapter 2001-186, Laws of Florida, directed that: The Commission shall adopt no amendments to the Florida Building Code until after July 1, 2002, except for the following: emergency amendments, amendments that eliminate conflicts with state law or implement new authorities granted by law, and amendments to implement settlement agreements executed prior to March 1, 2002. (Emphasis added) Section 25, Chapter 2001-186, Laws of Florida, also directed, in pertinent part, that: Further, the Florida Building Code must provide for uniform implementation of Chapters 515.25, 515.27, and 515.29 by including standards and criteria for residential swimming pool barriers, pool covers, latching devices, door and window exit alarms, and other equipment required therein, which are consistent with the intent of Section 515.23.... This legislation was ultimately codified at Section 553.73(2), Florida Statutes (2002). Section 1, Chapter 2000-143, Laws of Florida, had previously set out the following specific legislative findings and intent which ultimately was codified into Section 515.23, Florida Statutes (2002).6/ Legislative findings and intent.--The Legislature finds that drowning is the leading cause of death of young children in this state and is also a significant cause of death for medically frail elderly persons in this state, that constant adult supervision is the key to accomplishing the objective of reducing the number of submersion incidents, and that when lapses in supervision occur a pool safety feature designed to deny, delay, or detect unsupervised entry to the swimming pool, spa, or hot tub will reduce drowning and near-drowning incidents. In addition to the incalculable human cost of these submersion incidents, the health care costs, loss of lifetime productivity, and legal and administrative expenses associated with drownings of young children and medically frail elderly persons in this state each year and the lifetime costs for the care and treatment of young children who have suffered brain disability due to near- drowning incidents each year are enormous. Therefore, it is the intent of the Legislature that all new residential swimming pools, spas, and hot tubs be equipped with at least one pool safety feature as specified in this chapter. It is also the intent of the Legislature that the Department of Health be responsible for producing its own or adopting a nationally recognized publication that provides the public with information on drowning prevention and the responsibilities of pool ownership and also for developing its own or adopting a nationally recognized drowning prevention education program for the public and for persons violating the pool safety requirements of this chapter. Pursuant to the foregoing amendments, which all concerned felt would take effect much sooner than they did, the Commission had the obligation to adopt amendments to the Code to implement new authorities granted by statute, which, in part, included adoption of standards and criteria for swimming pool exit alarms, provided the standards and criteria were consistent with the intent of Section 515.23, Florida Statutes. Section 1, Chapter 2000-143, Laws of Florida, also created Section 515.27, Florida Statutes, effective October 1, 2000, which provided: In order to pass final inspection and receive a certificate of completion, a swimming pool must meet at least one of the following requirements relating to pool safety features. The pool must be isolated from access to a home by an enclosure that meets the pool barrier requirements of Section 515.29; The pool must be equipped with an approved safety pool cover; All doors and windows providing direct access from the home to the pool must be equipped with an exit alarm that has a minimum sound pressure rating of 85 dB A at 10 feet; or All doors providing direct access from the home to the pool must be equipped with a self-closing, self-latching device with a release mechanism placed no lower than 54 inches above the floor. (Emphasis added) One of the four statutorily permissible safety options was that all doors and windows that provide direct access from the home to the pool be equipped with an exit alarm which has a minimum sound pressure rating of 85 dB A at 10 feet. See Section 515.27(1)(c), Florida Statutes. Section 515.25(4), Florida Statutes, defines "exit alarm" as: "Exit alarm" means a device that makes audible, continuous alarm sounds when any door or window which permits access from the residence to any pool area that is without an intervening enclosure is opened or left ajar. During 2001, the Commission was mindful of Section 44, Chapter 2001-186, Laws of Florida, which had been signed by the Governor and filed on June 8, 2001. In fulfilling its mandate to adopt rules to implement the Florida Building Code, the Commission was careful to state on its tracking charts, agendas, and workshop materials that it was only considering the four exceptions for which it was permitted to adopt rules prior to July 1, 2002. The Commission employed the services of the Florida Conflict Resolution Consortium to facilitate its processes. The Consortium is an entity housed within Florida State University that is legislatively mandated to perform consensus building with regard to public policy issues. In 2001, the Commission referred issues to one of three types of subcommittee: Technical Advisory Committees (TACs), Program Oversight Committees (POCs) or Ad Hoc Committees. Ad Hoc Committees were/are comprised solely of Commission members. Public comment was received by the respective subcommittees. If an issue (proposed rule amendment) received a favorable vote by at least 75% (three quarters) of the subcommittee members, a recommendation was developed and forwarded to the Commission as a whole. A 75% (three-quarters) favorable vote of the Commission was also required to adopt a rule. The failure of a subcommittee or the Commission to take affirmative action upon an issue amounted to a rejection of that issue for incorporation into a rule, but the Commission and its subcommittee did not act on motions to deny. They only voted on motions to approve the resolution of an issue. In July 2001, the Commission, sua sponte, took up provisions related to criteria and standards for pool safety measures prescribed by Chapter 515, Florida Statutes. The Commission, with the assistance of the Florida Conflict Resolution Consortium, applied its procedures described above. Commission staff generated draft provisions integrating portions of a recommendation by the Building Officials Association of Florida, independent research and review, and the existing provisions of Section 424.2, Florida Building Code. No amendments were proposed directly to the Commission or its subcommittees from the public relating to pool safety measures on the form promulgated by the Commission for that purpose. On July 9, 2001, the Commission convened an Ad Hoc Committee meeting to consider recommendations for resolution of issues raised relating to implementation of the pool safety measure. Petitioner had representatives, one of whom was its Executive Director, Mr. Bednerik, attend the meeting and offer oral comments. It appears from the transcript of that meeting that written submissions of Petitioner's and other interested persons' concerns were also received. The draft provisions authored by Commission staff included adoption of UL2017, a standard developed by Underwriters Laboratories, and specified in Section 515.27(1)(c), Florida Statutes. At the Ad Hoc Committee meeting, FPSA's Executive Director cited the need for the Code to specify a power source for exit alarms, and specifically stated that, at the time of the meeting, some jurisdictions were allowing battery-powered alarms and some were requiring hard-wired alarms. The Ad Hoc Committee also received comment from Mr. Sparks, a building official from Sarasota. Mr. Sparks expressed a preference that exit alarms be hard-wired, and that if battery-powered alarms were to be allowed, that their use should be limited to homes for which a building permit had been pulled before October 1, 2000, the effective date of Chapter 515, Florida Statutes. The Ad Hoc Committee heard comments that batteries always ultimately fail due to limited battery life and that the date of failure cannot be predicted. The Ad Hoc Committee discussed allowing plug-in type alarms as a possible solution to difficulties with installation of a hard-wired system. Mr. Sparks informed the Committee that plug-in type alarms were available and that he had worked with manufacturers of such devices. The Ad Hoc Committee unanimously voted to recommend to the Commission, during its July 11, 2001 Rule Development Workshop, that exit alarms for new construction after the amendment's effective date be hard-wired or a plug-in type. The Ad Hoc Committee's recommendation was integrated into the proposed Code amendment for the Commission's review, by providing a complete printed copy of the proposed amendment, striking through for eliminated language, and underlining for new language being added. A Rule Development Workshop was convened by the Commission on July 11, 2001. The Ad Hoc Committee's recommendation was submitted to the Commission during the Rule Development Workshop held on July 11, 2001, as a committee report. During the Workshop, Petitioner's Executive Director offered comment to the Commission urging that requiring a retrofit of existing homes was impracticable and would not comport with the "legislative intent" expressed by one of the legislators involved with the passage of Section 515.27(1), Florida Statutes. Petitioner's Director opposed any restriction to hard-wired alarms but acknowledged that battery-powered alarms require positive action to refresh their power source. He acknowledged that Underwriters' Laboratories had attempted to mitigate this shortcoming in a chirper to alert when the battery in a battery- powered alarm runs low. Comments were heard that plug-in type alarms might be dangerous to, or deactivated, by toddlers. The Commission unanimously approved the recommendations of the Ad Hoc Committee with regard to limiting allowable power sources for exit alarms to hard-wired or plug-in types, inherently rejecting the comments of Petitioner's representative. The Commission also approved Committee recommendations allowing a temporary deactivation feature and an exception of specified windows from the requirement for alarms. The expressed purpose for these provisions was to address the practical effects of the exit alarm requirement without diminishing the intent of improved safety. The Commission noticed the Code revisions for rule adoption in the Florida Administrative Weekly published on August 3, 2001, with a hearing to be held on August 28, 2001. At the Rule Adoption Hearing on August 28, 2001, Petitioner's representative expressed his belief that it was the Legislature's intent that inexpensive battery-powered alarms be used everywhere and affirmatively stated that Petitioner would concur in the view that battery-powered alarms should be permitted in existing dwellings. Petitioner's representative also implied that the Commission had the authority to adopt UL2017. The UL2017 standard provides criteria and specifications for "residential swimming pool entrance alarms." It addresses requirements for alarms that are battery-powered, hard-wired, and plug-in. The standard was adopted by Underwriters' Laboratories and available in 1995 or 1996. It encompasses 85 dBA at 10 feet of sound pressure. Its concept of "continuous" means "not intermittent" or "not variable." It allows a seven-second delay before an alarm activates and then requires that an alarm activate immediately and continually. Evidence was adduced in the instant rule challenge hearing that none of the four protective options provided in Section 515.27(1), Florida Statutes, is required to be maintained after the final inspection or certificate of occupancy has been completed. Batteries expire or homeowners may intentionally remove them. In either situation, the alarm will not sound. One of Intervenor's witnesses described a study in which the main reason for failure of battery-powered smoke detectors is that the battery had discharged. The Florida Life Safety Code (Fire Code) permits battery-powered smoke detectors in older, existing homes, but like the challenged rule, requires hard- wired devices in new home construction. Hard-wired pool exit alarms can be disabled by a power outage or by deliberately flipping a circuit breaker. Plug-in alarms can be unplugged so as to be rendered ineffective. They also may present a danger to children or the elderly if extension cords are used. Some witnesses consider it inconsistent of the rule to require an alarm deactivation switch and a self-latching device that is 54 inches above the threshold but fail to specify that an electric plug for a plug-in door or window alarm also be 54 inches above the threshold, due to the potential for children to unplug plug-in alarms. Some witnesses at hearing complained that because Section 515.27(1)(d), Florida Statutes, specifies that a release mechanism switch for self-closing, self-latching doors is to be 54 inches above the floor and the challenged rule for door and window exit alarms specifies deactivation switches are to be at least 54 inches from the threshold, there is a variance between the rule and the statute, and the rule is confusing. However, a door's "threshold" as used in the rule, is a consistent place to measure the 54 inches from; is a spot that can be agreed upon by the contractor and inspectors; and is a designation which eliminates any confusion as to whether measurement is to begin from the outside or inside "floor," while serving the spirit of the statute. Some witnesses at hearing complained that the language "immediately after the door is opened and be capable of being heard throughout the house during normal household activities," as used in the rule is vague. However, it appears that any vagueness is cured by the inclusion of the UL2017 standard in the challenged rule. Witnesses who complained of confusion as to whether doors and screens must each be "alarmed" were not credible because the challenged rule clearly specifies "warning when the door and its screen are opened." (Emphasis supplied) Some witnesses complained that they thought the term "plug-in" could refer to installing a battery into an alarm. This concept defies both the first approved dictionary definition in evidence and common sense. There were a number of battery-powered exit alarms on the market when the rule was adopted and when it became effective which would make an audible, continuous alarm when a door or window which permits access to the pool area is opened, but there were no such hard-wired or plug-in devices available at that time. Acceptable hard-wired and plug-in alarms which meet the rule's requirements are available now. The Florida Home Builders Association (FHBA) had previously challenged unrelated proposed Code rules in DOAH Case No. 00-1252RP. That rule challenge was resolved by an October 17, 2000, Settlement Agreement, which was amended on November 1, 2001, after the case was closed. The FHBA Settlement Agreement provided that, in exchange for FHBA's dismissal of DOAH Case No. 00-1252RP, the Commission would adopt a rule setting forth a procedure for adoption by the Commission of any other new amendments to the Code, including creating a fiscal statement in connection with all proposed Code revisions; review by a TAC of all technical revisions; providing notice on the Internet of all proposed revisions; providing 45 days between the date of notice and consideration of an issue by a TAC or by the Commission; and providing a reasonable time period in which the Committee and Commission respectively would hear testimony on rule proposals. The FHBA Settlement Agreement did not require immediate application of the agreed rule promulgation procedures prior to adoption, by rule, of those rule promulgation procedures. It also did not require application of new statutory requirements to the Commission's rule promulgation procedures prior to the effective date of any new statute. The Commission did not perform a fiscal analysis/statement; have a TAC consider challenged Rule 9B-3.047 or 424.2.17.1.9; or provide 45 days' notification of Committee or Commission meetings. However, pursuant to Chapter 120, Florida Statutes, Internet notice of all proposed rules and amendments was provided. The procedures required by the FHBA Settlement Agreement, including but not limited to the requirement of a fiscal impact statement, plus additional procedures, were codified in Sections 553.73(2), 553.73(3), 553.73(6) and 553.73(7), Florida Statutes. These statutes originated in Chapter 2001-186, Laws of Florida, which was subsequently amended or superceded by other legislative action. The legislative history shows the effective dates of these statutory rule promulgation procedures was postponed to March 1, 2002. See the Conclusions of Law Also, similar rule promulgation procedures which equate with the FHBA Settlement Agreement were promulgated in Rule 9B-3.050, Florida Administrative Code, which the Florida Administrative Code states took effect on November 20, 2001.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying and the entire record compiled, the following relevant facts are found. Bradford Clough, Respondent, is a registered pool contractor who holds license No. RP 0031551, which license is current and active. Respondent was first licensed on December 6, 1977, as qualifier of Aqua-Vac Self Clean Swim Pools. (Petitioner's Exhibit 1.) Arnold Verway has been the Building Director for Charlotte County since May 8, 1978. As Building Director, Mr. Verway is in charge of receiving and investigating complaints filed by homeowners against contractors licensed by the Charlotte County Building Board. In this regard, on October 5, 1978, the Charlotte County Building Board listened to two complaints which had been filed with the Department against Respondent "for not fulfilling his contract and for jobs done in an unworkmanlike manner . These complaints were filed by Mr. and Mrs. Phillip J. Greulich and Mr. and Mrs. George Beveridge, of Port Charlotte. After discussion, the Board sent formal notification to Respondent to attend the Board's next regular meeting in order to allow him an opportunity to present any defense respecting the above referenced complaints. Respondent was notified by certified letter dated October 13, 1978, return receipt requested. (Petitioner's Exhibit 2.) At the Board's meeting on November 2, 1978, complainants George Beveridge and Phillip Greulich restated their complaints which had earlier been made to the Board at its October 5, 1978, meeting. Respondent had not resolved the complaints to the satisfaction of complainants as of the date of this hearing. Respondent did not appear at the Board's November 2, 1978, meeting. The Board suspended Respondent's certificate of competency "until such time as he demonstrated to the Board that he had rehabilitated himself and was thus eligible and capable of working in Charlotte County". (Petitioner's Composite Exhibit 3.) The Petitioner has reviewed the disciplinary action taken by the Charlotte County Building Board. (Testimony of Petitioner's investigator, John Viking.) RESPONDENT'S DEFENSE As stated, Respondent did not appear at this hearing or at the hearing before the Charlotte County Building Board, despite proper notice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Respondent's registered pool contractor's license, RP 0031551, be REVOKED RECOMMENDED this 30th day of April, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Respondent James W. Geary presently holds certified general contractor's license number CG C005775. Respondent Geary apparently entered into a contract with Phillip Smith to add a screened porch to the Smith residence. Neither the contract nor the testimony of Mr. Smith were made available to the undersigned Hearing Officer. Respondent had difficulty obtaining a roofer and completion of the project was therefore delayed. During the interim, the interior of the Smith's living room suffered water damage. After receiving a complaint from the Smiths, Mr. Robert Jahn, Chief Building Official for the City of Tamarac, personally inspected the Smith project. He found that the water damage was caused by the uncompleted work of respondent and certain violations of the Southern Florida Building Code. Jahn did not know how long the project had not been worked on, but Smith told him he had tried for about one month to get respondent to return to correct the situation. Respondent testified that when he sent a man to the Smith residence to install the roof columns, Smith chased the man off the job. Upon the delivery of certain supplies for his projects, respondent Geary, d/b/a First Triangle Corporation, wrote two checks in the total amount of $391.41 payable to Rinker Materials. (Exhibit 1) These checks were offered for payment by Rinker, and were returned due to insufficient funds. The former credit manager of Rinker Materials did not know whether anyone from Rinker had contacted respondent about the checks. Respondent testified that no one from Rinker had informed him that the checks were dishonored. However, respondent did receive notice from his bank that the checks had been returned. He was changing banks about the same time and felt that the bank had made mistakes in the past. He felt that the checks were good when issued and he therefore did not put much reliance upon the notices received from the bank. Respondent testified that he is ready, willing and able to honor the checks written to Rinker Materials. Respondent Geary apparently entered into a contract with Richard Decker for the addition of a five by eleven foot bathroom to the Decker's residence. Neither the contract, the plans or specifications nor the testimony of Mr. Decker were offered into evidence at the Hearing. Respondent felt there were no deviations between the finished product and the job specifications, and that, even if there had been, there was no way he could put a five foot vanity into the project without violating the applicable building code. The field investigator for petitioner's District No. 10 found deviations from the plans with regard to the size of the vanity, the bathroom door and the illumination. He found that the Deckers had not indicated their approval of such deviations by placing their initials on the plans or specification. The South Florida Building Code (302.2(b)) provides that when the cost of a job is over $5,000.00, the permit applicant must present plans signed and sealed by a registered architect or engineer. A larger permit fee is also required for jobs costing over $5,000.00. On or about April 9, 1976, respondent Geary applied to the City of Tamarac for two building permits. (Exhibit 2). While blueprints were submitted, no plans signed and sealed by a registered architect Or engineer were submitted. From the square footages contained on the right hand column of the application, Chief Building Official Jahn determined that the value of the two projects were $7,300.00 and $6,620.00. The contract prices for these projects were approximately $8,000.00 and $10,000.00. There was no conclusive testimony as to who supplied the footage information on these applications, It was respondent's opinion that the actual costs of these projects did not exceed $5,000.00. Respondent apparently entered into a contract with Daniel Salzman for some project, and then entered into a second contract for the construction and installation of a fence and a trellis. For this second project, respondent received a deposit of $825.00. The first job was never completed by respondent and respondent never began work on the fence and trellis project. Respondent admitted that some $500.00 was due Mr. Salzman as a refund for the second project. He testified that he instructed Mr. Salzman to have the work on the first project completed by someone else and then to send respondent the bill for the same. Respondent has not heard from Salzman regarding this matter. By letter dated November 20, 1976, Chief Building Official Jahn notified respondent that "No further building permits [would] be issued to First Triangle Builders with you as their qualifier because of numerous complaints and unfinished projects." As indicated in the Introduction, petitioner filed an administrative complaint against respondent seeking to revoke his license for violations of certain ordinances and Florida Statutes S468.112(2). The cause was referred to the Division of Administrative Hearings for the appointment of a Hearing Officer, and the undersigned was designated to conduct the hearing.
Recommendation Based upon the findings of fact and conclusions of law recited above, as well as the seriousness of the offenses of which respondent has been found guilty, It Is recommended that respondent's certified general contractor's license number CG C005775 be revoked. Respectfully submitted and entered this 18th day of July, 1977, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (488-9675) Area Code 904 COPIES FURNISHED: Barry Sinoff, Esquire 1010 Blackstone Building Jacksonville, Florida 32202 Mr. James W. Geary 4370 Northwest 32nd Court Lauderdale Lakes, Florida Wallace Norman Construction Industry Licensing Board 305 South Andrews Avenue Ft. Lauderdale, Florida 33301 J. K. Linnan, Executive Director Construction Industry Licensing Board Post Office Box 8621 JacksonvIlle, Florida 32211
