Findings Of Fact Respondent, Wesley Ash, currently holds license number CP C015871 issued by the Construction Industry Licensing Board to authorize Ash to engage in the pool contracting business. Dodd Complaint (Count I). Respondent, Wesley Ash, doing business as Wada Pools, Inc., contracted with Jerry Dodd on or about June 17, 1981, to build a pneumatic concrete pool with skimmer and recirculation system. The contract did not include installation of the concrete deck around the pool. Dodd decided to contract with another independent contractor to install the deck at a lower price than Ash wanted for the job. Ash completed his work by approximately August 1981. He installed the concrete pool shell, finished the inside surface and installed tile along the water line. He then attached the skimmer assembly, plumbing it so that it was level and attaching it to the concrete pool shell by means of the skimmer's PVC plumbing piping. After Ash finished his work, Dodd's other contractor came behind Ash. He used some of the dirt Ash had excavated from the pool site to raise the ground surrounding the pool by approximately six inches above grade. He then poured the concrete deck but failed to encase the skimmer assembly with the deck concrete in the process of pouring the concrete deck. It was not Ash's practice to make any special arrangements to stabilize the skimmer assembly when he installed both pool and concrete deck. He relies on the skimmer assembly plumbing to stabilize the skimmer assembly until the concrete deck is poured. In pouring the concrete deck, Ash encases the skimmer assembly with the deck concrete to stabilize the skimmer assembly and prevent leakage. In the case of the Poland pool (paragraphs 17 and 22, below), Ash used this method to install both the pool and the concrete deck, and Poland has had no complaint of leakage at the skimmer (nor was there any evidence of leakage at the skimmer). In the case of the Priests' pool (paragraphs 11 through 13, below), Ash followed the same procedures as he did with the Dodd pool, and another contractor poured the concrete deck. As with the Poland pool, there have been no complaints (nor was there any evidence) of leakage at the skimmer. Within approximately one and one-half years after installation of the Dodd pool, Dodd began to notice what he thinks is a leak in his pool. The water level in the Dodd pool drops approximately one-quarter inch per day. But the Department's own expert witness conceded that water loss of between one-eight and one-quarter inch can be explained by evaporation. It was not proved that the Dodd pool is leaking at all. If there is a leak causing a small increment of water loss above loss through normal evaporation, the leak would have to be very small and would be very difficult to detect. Ash and others have tried but have been unable to find a leak at the skimmer of Dodd pool. In approximately summer 1985, Dodd himself dug a hole under the concrete deck to expose the bottom of the skimmer assembly. The excavation revealed an unusual amount of moisture that might be the result of a leak at the skimmer. It also revealed that the contractor who poured the Dodd concrete deck did not encase the skimmer assembly as Ash had thought he would. The Department's expert - a professional engineer with a B.S. degree in civil engineering, an M.S. degree in structural engineering and a Ph.D. degree in environmental engineering - gave his opinion that a residential pool skimmer assembly should be either (1) encased with the concrete of the pool shell or (2) encased with deck concrete which is structurally tied to the concrete pool shell. He opined that the latter method would require either a very rough surface on the pool shell concrete or steel extending from the pool shell in order for the structural tie to be accomplished. But he also conceded that it is possible for deck concrete encasing a skimmer assembly to be sufficient to stabilize the skimmer assembly even without taking any extra measures to accomplish a structural tie. There was no evidence that any building code would require a pool contractor to take these measures to accomplish a structural tie between the pool shell and skimmer assembly. Nor was there any evidence that a reasonably prudent pool contractor (as opposed to a professional engineer) would be expected to take these measures. Based on this evidence, together with all the other evidence taken as a whole, the Department did not prove that Ash was either incompetent or grossly negligent in not taking any extra measurers to accomplish a structural tie between the concrete pool shell and the skimmer assembly. Based on the evidence in this case, the contractor Dodd hired to pour the concrete deck was either incompetent or grossly negligent (assuming he was even a licensed pool contractor a fact not shown by the evidence.) He did not encase the skimmer assembly with the deck concrete, allowing it to "float" unprotected in the fill under the concrete deck. Settling of the fill could have caused the deck to settle and crack, moving the skimmer assembly and causing a small leak. Ash may have been able to prevent this by warning the contractor to be sure to encase the skimmer assembly with deck concrete when he poured the concrete deck. But there was no evidence that Ash had a duty to advise the other independent contractor Dodd hired or was responsible for the other contractor's incompetence or gross negligence. Ash's failure to advise the other contractor was not incompetence or gross negligence on Ash's part. Dodd has no other complaints about the pool Ash built for him. Priests' Complaint (Count II). On or about October 11, 1984, Ash contracted with Joseph and Rita Priest to build them a pneumatic concrete pool. The Contract included a warranty that the labor, materials and workmanship would be free of defects for one year and that the shell would be structural sound and capable of holding the water for ten years. Like Dodd, the Priests contracted with another independent contractor to install the concrete deck around the pool. Ash was responsible only for placement of decorative "river rock" on top of the deck. Ash finished his work in February 1985. Like Dodd, the Priests complained of water loss from the pool although the Priests noticed the water loss sooner than Dodd (approximately March, 1985). The water level was dropping approximately one-quarter inch per day more than it was dropping in a bucket used as a control. In response to the complaint, Ash sent his employees to the Priests' pool on several occasions. They found no leak at the skimmer. To determine whether the pool's "caretaker system" 1/ was leaking, Ash's employees plugged all but one pair of the caretaker heads. After waiting a period of days, they would try to see whether the rate of water loss changed. They tested all four pairs of caretaker heads on the bottom of the pool and the pair in the spa attached to the pool. No leaks could be found. They did not replace the last two (in the spa), and Mr. Priest had to replace them. As with the Dodd pool, the Department did not prove that the Priests' pool is leaking at all. The Priests continue to complain of water loss of approximately one-quarter inch per day, within the range of water loss from normal evaporation. As with the Dodd pool, a leak responsible for a small increment of water loss above water loss from normal evaporation would be very small and difficult to find, especially if the leak were in the caretaker heads or pipes under the pool leading to the heads. Now the Priests suspect a water leak at the filter. But the Department's expert witness could not find a leak there large enough to account for much water loss. The minor leak at the filter is a normal maintenance item for a pool as old as the Priests' pool. There was no evidence how long it has existed, and there was no evidence that the Priests ever told Ash there was a leak at the filter. The Priests now also complain that one of the caretaker heads does not re-seat properly. But this has nothing to do with the leakage complaint to which Ash is charged with not reasonably responding. Taken as a whole, the evidence did not prove that Ash committed misconduct or deceit by failing to make reasonable response to warranty service requests within a reasonable time, as charged. Nor does the evidence prove misleading or untrue representations, gross negligence, incompetence or fraud in connection with the Priests' pool, as charged. Poland Complaint (Count III). On or about December 9, 1981, Ash entered into a contract with James Poland to build Poland a pneumatic concrete pool and concrete deck. Poland contracted with another independent contractor to build a screen enclosure around the pool. Before construction began, one of Ash's employees asked Poland to sign an addendum to the contract for an additional $235 to pay for foundation footers required to comply with Lee County building code provisions for the screen enclosures. Before Ash signed the initial Poland contract on December 9, 1981, he was unaware of the Lee County Aluminum Code, adopted March 18, 1981. The code requires eight inch foundation footers for "aluminum additions." Another part of the code addresses "screen enclosures with screen roofs known to the industry as birdcage swimming pool enclosures." The language of the code is not explicit that screen swimming pool enclosures are required to meet the foundation requirements for "aluminum additions," and at first Lee County did not interpret the code that way. With a change of personnel in code enforcement, Lee County began to interpret the code that way, and screen swimming pool enclosures Ash had under construction began to fail building inspection for inadequate foundation footers. Ash inquired why and was told about the aluminum code and how it was being interpreted. Ash argued that the interpretation was erroneous but, failing to dissuade enforcement personnel, began to comply. As part of his compliance efforts, Ash had his employees try to secure the contract addendum from Poland. Poland refused to sign the contract addendum, insisting on an opportunity to verify that the additional foundation footers were indeed new building code requirements. There still is a dispute between the parties whether Poland ever agreed to pay the additional $235 after he verified that the footers were being required. (He never signed the contract addendum.) But, in any event, the evidence did not prove that Ash was incompetent, grossly negligent, deceitful or guilty of fraud or misconduct in connection with the additional $235 charge. 2/ There was some evidence that Ash did not in fact comply with the Lee County Aluminum Code, as he was told it was being interpreted, in his construction of the Poland pool deck. In two places the foundation footers were 6 and 7 inches - deeper than the four-inch normal thickness of a concrete pool deck but short of the eight-inch requirement. But Ash was not charged with failure to comply with the foundation footer requirement. He had no legally sufficient notice that he should be prepared to defend against that charge and was not prepared to defend against that charge. Therefore, no finding is made whether Ash complied with the Lee County Aluminum Code. Ash performed the Poland contract between approximately January 27 and February 26, 1982. In September, 1985, Poland began to notice that some of the tile Ash installed at the waterline around the perimeter of the pool was coming loose. As explained by the Department's expert witness, the concrete deck settled in places, cracking slightly and rotating over the fulcrum created by the wall of the concrete shell of the pool. The rotating action pulled up on the tile attached to the inside of the pool wall in places, loosening the tile. In all, less than 10 percent of the 77 foot perimeter of the Poland pool experienced problems with loose tile. The loose tile easily can be removed and replaced. The minor deck cracking and loose tile problems at the Poland pool are within the normal range for a competently constructed pool under normal conditions of ground settlement. The evidence did not prove that Ash improperly installed the pool deck or that he was incompetent or grossly negligent in the construction of the Poland pool and deck. Besides the loose tile and minor cracks in the concrete deck, the Poland pool had no apparent defects. There also was evidence that the Poland pool was finished with a coating of marcite on the inside surface of the pool shell which was mottled gray in color instead of white. Poland complained persistently about the marcite3 and insisted that Ash make it white. But the discolored marcite was a factory defect of which Ash had been unable to know before he used it. There is no way to make mottled gray marcite white. Ash tried to explain this to Poland but the customer would not be satisfied. Taken as a whole, the marcite evidence did not prove that Ash was incompetent, grossly negligent, deceitful or guilty of fraud or misconduct. Nor does the evidence prove any of those violations for failure to cure the marcite problem under warranty. First, as already stated, there was no cure. Second, Ash and Poland also had a running dispute whether Poland had paid the full contract price, including the additional $235 for foundation footers, so as to entitle him to any warranty repairs. In light of this genuine dispute, failure to do warranty work, if otherwise a reasonable request, still could not be found to be misconduct, fraud or deceit.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Construction Industry Licensing Board enter a final order dismissing the Amended Administrative Complaint that has been filed against Respondent, Wesley Ash, in these cases. DONE AND ORDERED this 9th day of December 1986, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 1986.
Findings Of Fact At all times material hereto, Respondent, John R. Misiak, was a registered pool contractor, having been Issued license No. RP0033942. Respondent acted as the qualifying agent for Pool Masters, Inc., and also sewed as president of that company. On or about August 21, 1979, Respondent, on behalf of Pool Masters, Inc. , contracted with Mr. and Mrs. Rolf Schneider to construct a pool at the contract price of $9,400 at their residence at 4253 Sugar Pine Drive, Boca Raton, Florida. Pursuant to the terms of that contract, Pool Masters, Inc., guaranteed completion of the pool within eight weeks from the date of issuance of a building permit. On August 23, 1979, the Schneiders paid Pool Masters, Inc., a down payment of $948 On September 23, 1979, Respondent obtained a building permit for the pool and commenced construction. Thereafter, the Schneiders made two additional equal payments to Pool Masters, Inc., of $2,820 on October, 30, 1979, and November 4, 1979, respectively. After receipt of these payments, a remaining unpaid balance on the contract of $2,892 resulted. Work progressed on schedule through November 4, 1979, when Pool Masters, Inc., applied "shot crete" to the pool, and the Schneiders made their last payments of $2,820 as indicated above. Thereafter, work did not progress according to schedule, and the Schneiders became concerned about completion of their pool. There ensued a series of correspondence no conversations between the Schneiders, Respondent, and other officers of Pool Masters, Inc., concerning completion of the pool. Actual work on the pool continued through early December of 1979. At some time between December 4 and December 14, 1979, rough plumbing was installed in the pool. The rough plumbing was inspected and approved by the Palm Beach County Building Department on December 14, 1979. Pool Masters, Inc., had experienced financial difficulty as earl as August of 1979. Negotiations between the company and its creditors continued through late 1979 in the company's attempts to remain in business. In late November of 1979, Respondent spoke with Mrs. Schneider and informed her that the company was experiencing financial difficulties and might not be able to complete construction of the pool. On December 12, 1979, an officer of Pool Masters, Inc., spoke with Mr. Schneider, and informed him that the company would not be able to complete construction of the pool and further would be unable to refund their money. Respondent attempted to arrange completion of the Schneider's pool through another company. Under the proposed arrangement, the pool would have completed at the second company's cost, and Pool Masters, Inc., would have contributed $1,000 toward completion. At the time Respondent proposed this arrangement for completion of the pool, it appears from the record that the the pool could have been completed for approximately $2,000 above the original contract price. The Schneiders refused any offer or completion that would have exceeded the original contract price Pool Masters, Inc., was unable to make satisfactory financial arrangements with its creditors. As a result, the company filed a Voluntary Petition Under Chapter 7 of the Bankruptcy Code on January 29, 1980. No work was performed by Pool Masters, Inc., on the job after the period of December 4 through December 14, 1979. There is no evidence of record in this proceeding from which a conclusion can be drawn that any of the monies paid by the Schneider to Pool Masters, Inc., was applied other than in the partial construction of the pool pursuant to the contract. The Schneiders subsequently contracts with another firm for completion of the pool at a cost substantially in excess of the original contract price. The Schneiders also filed a civil suit for damages against Pool Masters, Inc. Respondent, and other corporate officers. In the course or that proceeding, the Schneiders recovered $1,750 from one of the corporate officers.
The Issue Whether or not the Respondent's activity and conduct in the performance and completion of several construction projects constitute unreasonable or dilatory practices and also whether Respondent's workmanship on such projects was of such an inferior quality that it would indicate proof and continued evidence of gross negligence or misconduct by Respondent in the practice of contracting within the meaning of Chapter 489.129(1)(m), Florida Statutes (1979). 2/ Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel, the memoranda submitted, and the entire record compiled herein, I hereby make the following:
Findings Of Fact By its Administrative Complaint signed April 27, 1981, Petitioner, Florida Construction Industry Licensing Board, seeks to revoke Respondent's license to practice the profession of contracting and to impose a civil penalty based on conduct set forth hereinafter. Respondent, Charles H. Bromley, is a certified pool contractor holding License No. CP-007871 (Petitioner's Composite Exhibit No. 1). During times material to the allegations of the Administrative Complaint herein, Respondent was a qualifying agent, pursuant to Section 489.119, Florida Statutes, for both Wands Construction Company, Inc., and for Magic Wands Pools, Inc. Respondent's testimony established that he was part owner of Wands Construction Company, Inc., was an officer of that company and deemed himself responsible for its activities. Respondent testified that he owned no stock in the predecessor company, Magic Wands Pools, Inc., nor was he an officer of that corporation and was not directly responsible for contracts undertaken by that company. Respondent's position is that at least two of these construction projects (Derfler and Dubovick) were projects undertaken by Magic Wands Pools, Inc., and completed by Respondent, doing business as, Wands Construction Company, Inc., inasmuch as Magic Wands Pools closed its doors in late 1979. Wands Construction Company, Inc., entered into a contract with Mariner Village, Inc., to construct a pool at a condominium site being developed by that corporation. The contract was dated September 6, 1979, and called for completion of the pool within six weeks from the date of issuance of a permit. The permit for pool construction was issued on November 6, 1979. Respondent was unable to complete construction of the pool at Mariner Village, inasmuch as problems developed after the pool was filled which caused the pool walls and decking to crack and leak. Respondent attempted to correct the deficiencies in the pool until approximately August of 1980, at which time he was ordered off the job by Mariner Village, Inc. Robert Hamilton, the developer and president of Mariner Village, was the person with whom Respondent negotiated the contract to build the pool for Mariner Village. During the course of time in which Respondent was attempting to correct the problems at Mariner Village, its president, Robert Hamilton, sent approximately six mailgrams to Petitioner reciting his contention that Mariner Village considered Respondent's actions to be a breach of its contract; that the pool was not completed in a professional-like manner and that Respondent's overall performance, or lack thereof, constituted negligence. (Petitioner's Composite Exhibits 3 and 4.) When Respondent completed the construction phase of the pool, neither the city nor the county would issue a certificate of occupancy to allow the residents of Mariner Village to use the pool. While it was noted that the county initially issued Respondent a certificate of occupancy for its construction of this pool site, that certificate was immediately revoked due to surface cracks in the pool on the north, east and west ends of the pool once it was filled to capacity. Robert Hamilton, president of Mariner Village, testified that at this time (during the hearing) he thought that the issuance of a certificate of occupancy was imminent and that while the price called for in the contract between Respondent and Mariner Village was $20,450.00, it (Mariner Village) had expended or was obligated to expend sums totaling $70,000.00 to complete the pool. Mr. Hamilton ordered two engineering studies to examine and report on performance in the Respondent's construction of the pool. According to Hamilton, the reports revealed that the pool was erected on "good" pilings. Respondent and Leslie Derfler entered into a contract on June 9, 1978, to construct a pool at his residence. The contract price was paid in full and the pool was completed, however, during the spring of 1979, Mr. Derfler detected an opening around the tile grout near the leaf-skimmer. The matter was immediately called to Respondent's attention. Failing to get a prompt response to his complaint, Mr. Derfler contacted the Better Business Bureau after which Mr. Derfler was able to communicate with Respondent during March of 1980. Respondent dispatched a repairman to regrout the tiles in the area around the leaf-skimmer, however, the repairman failed to regrout the tiles which he replaced. As a result, the door of the skimmer became inoperative and separated from the skimmer. Repeated attempts by Mr. Derfler to contact Respondent were unavailing and Mr. Derfler called another company (Boca Pool-Trol Laboratories, Inc.) to finish the necessary work. In this regard, evidence reveals that Respondent reimbursed Mr. Derfler for the monies paid to the Boca Pool-Trol Laboratories, Inc. Respondent and Lindberg Development Company, through its assistant project manager, Taisto Pistkan, entered a contract on January 31, 1980, for the installation of a commercial swimming pool at Shore Heights Condominiums in Lantana, South Palm Beach, Florida. Respondent commenced construction on the pool during August, 1980, and the pool was not completed, such that it could be used, until June, 1981. Mr. Pistkan had to make repeated requests of Respondent to correct numerous problems, including leaks, falling plaster and tiles. When Respondent initially completed construction of the pool and it was filled, during September, 1980, leaks surfaced and approximately nine months later (June, 1981) Respondent completed construction of the pool and a certificate of occupancy was issued. In this regard, Respondent admitted during the hearing that it took an inordinate amount of time to make the necessary repairs to get the Lindberg pool certified. On August 10, 1979, Mr. and Mrs. Melvin Dubovick entered into a contract with Magic Wands Pools to construct a pool at their residence in Delray Beach, Florida. This contract called for the completion of the pool within six weeks from the date that the permit was issued. In October of 1979, an agent of Wands Construction, which agent had previously been an agent of Magic Wands Pools, informed Mr. Dubovick that he would have to enter into a new contract due to a reorganization of the pool company. As a result of that advice, the Dubovicks and Respondent entered into another contract with Wands Construction Company, Inc., on October 25, 1979. (Petitioner's Exhibits 10 and 11.) According to Mr. Dubovick, the second contract was signed to "straighten out the paper work." Mr. Dubovick was advised that all of the material terms of the new contract would remain unchanged and that the work would be completed within approximately eight weeks. However, the contract with Wands Construction Company does not contain a completion date. Excavation for the pool was made during the middle of October, 1979. Thereafter, no further work was done during that year and the wooden deck of the Dubovicks' home, which was adjacent to the hole dug for the pool, collapsed on New Years Eve, 1979. Thereafter, there were a number of problems with the construction of the pool, including the fact that a spa was not built as called for in the plans for the pool which necessitated that the Respondent remove a portion of poured gunite around the pool's deck; the filter was improperly installed and leaks surfaced when the pool was filled, causing Respondent to place numerous patches and filter outlets in the pool. Additionally, the slope of the pool decking was improper and caused a flooding condition around the Dubovicks' patio. The dimensions of the pool were not completed according to plans in that the length of the pool as completed is 30 feet, 3 inches, whereas the plans called for the pool to be 34 feet in length. The contract provides that the pool would have a 15,000 gallon capacity whereas Mr. Dubovick contends that he has never been able to measure more than a 10,000 gallon capacity while he filled the pool. The pool was completed in July of 1980. Kim Parker, a certified pool contractor, testified on behalf of Petitioner concerning two of the projects complained of in the Administrative Complaint. Consultant Parker is a licensed pool contractor and has been certified approximately two years. He is presently the general manager for Almar Pools. Mr. Parker has supervised pool construction in excess of two years. Mr. Parker visited the Mariner Village project on August 28, 1981, and noted hairline cracks in the plaster around the pool. Those cracks indicated to him that the plaster was either improperly applied or cured. He also noted a return fitting protruding into the pool, which he considered to he evidence of "shoddy" workmanship. Mr. Parker also noticed that the pumps in the pump room were not installed in a "professional" manner. During this time period, Mr. Parker also visited the Dubovicks' residence and he noted that an air leak existed at the filter pump, which caused a loud noise and that the pool was situated approximately three inches above the patio which created a drainage problem. In this regard, the Dubovicks testified that two doors were ruined due to water drainage problems around the pool area. Mr. Parker considered the workmanship around the Dubovick pool to be professional in its appearance although he did note that the pool was not constructed to the measurements provided for in the contract. Respondent's Defense Respondent, Charles Bromley, qualified Magic Wands Pools during 1978. He did so, according to him, based on "bad legal advice." Respondent encountered numerous problems completing pools that were under construction for Magic Wands Pools while he also was handling the day-to-day affairs of the successor corporation. Respondent has completed all except two out of forty-two pools that remained incomplete when he took over and Magic Wands Pools ceased operations in late 1979. Respondent contends that the former owner dumped "problem" pools on him which included the Mariner Village pool. William Sheldon, a professional engineer who has acted as a consultant in the design of numerous pools (in excess of 1,000) was called as a witness to testify on behalf of Respondent. Mr. Sheldon visited the Mariner Village pool and studied the design. He concluded that inadequate pilings were the source of the problems with the Mariner Village pool. That is, he considered the pilings failed to give adequate support and that this was of no fault or could not result in any liability on Respondent's part, inasmuch as the pool contractor was not responsible for the pilings erected to provide support for the pool. Mr. Sheldon noted that the pilings were driven to substantially less depth than other short piles in the area which led him to conclude that the developers used "soft" piles which had a low-blow content. He concluded that this caused cracks to radiate out of the east end of the pool creating leaks. Mr. Sheldon's examination of the elevations around the pool indicated that the gutters were level; that the problem was therefore one relating to the pool's substructure and not due to any construction deficiency. Also, Mr. Sheldon noted that, based on his calculations, without the usual allowance in calculations for an approximate ten percent (10 percent) deviation in a pool's volume capacity, his calculations indicated that the pool would hold approximately 11,872 gallons whereas the plans called for an approximate gallonage capacity of 10,500 to 11,000 gallons. Finally, Mr. Sheldon indicated that his review of the pool construction at Mariner Village only indicated that there existed one extrusion which he considered not to be critical in view of the overall construction and the pool's layout. Respondent testified that construction at Mariner Village progressed at a reasonable pace indicating that on May 8, 1980, the pool was marble coated, however, the equipment was not completed in the pool room and therefore work could not proceed as scheduled. According to Respondent, the earliest time that the equipment was in place, by other subcontractors, was approximately August 18, 1980, and work commenced rapidly thereafter by Respondent's employees. Respondent testified that an engineer inspected the gutters on July 16, 1980, at which time the gutters were properly erected and that within four days, i.e., on July 20, 1980, the gutters were "low" and the tiles had sunk. Respondent replaced the gutters without cost, however, he refused to do further work on the pool until the substructure was solidified. During this period, Respondent also testified that Mariner Village failed to timely honor draw payment requests which forced him to stop work until funds were received according to the schedule for draws. Finally, Respondent testified that the pilings and related substructures were obligations contracted for and hired independently by the general contractor. For this reason, the Respondent offers that he was not obligated for the failures surrounding the pool at Mariner Village. Respondent admits that the Dubovick project caused problems in that it was one that was left from the predecessor entity, Magic Wands Pools. He admits to delays in construction, however, he testified that he labored as faithfully as he could under the circumstances and further that all corrections and/or repairs were made that were called to his attention. As to the contention that the pool was constructed smaller than the 15,000 gallon volume capacity as reflected in the plans and specifications, Respondent indicates that the 15,000 gallon capacity was an error and further that the Dubovicks never indicated to him that there was any discrepancy or deviations from requirements in the plans and specifications as he was required to do according to the terms of the contract. Respondent indicates a willingness to negotiate with the Dubovicks respecting this omission. Finally, Respondent testified that he never met the Derflers, although he did dispatch a repairman out to remedy their problem. Respondent considered that the problem had been resolved and was unaware that it had not until the subject complaints were filed. Respondent has, however, refunded the Derflers' monies which were expended to hire an outside contractor. Throughout the time in which Respondent was attempting to complete or correct projects which had been started or initiated by Magic Wands Pools, he labored to do so with as much dispatch as possible under the circumstances. Respondent indicates that money was due and owing Magic Wands Pools by many customers who refused or was slow to pay. Respondent has been in the pool construction business in excess of twenty years and based on the experience gained and the nature of that business he (Respondent) refuses to guarantee a completion date for a pool due to weather and other uncertainties beyond his control. He again acknowledged that the repairs took a great deal of time to complete, however, he stressed that he labored to perform those repairs in as much dispatch as possible under the circumstances. Concluding, Respondent offered that part of his problem with the Dubovick pool had to do with his attempt to stay within the setback lines of the Dubovicks' property which prompted him to make minor deviations from the plans and specifications.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Respondent, who holds certified pool contractors License No. CP- 007871, be placed on probation by Petitioner for a period of one year. RECOMMENDED this 26th day of January, 1982, in Tallahassee, Florida. JAMES E. BRADWELL, 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 26th day of January, 1982.
Findings Of Fact On October 10, 1979, the Respondent entered into a written swimming pool contract with Mr. and Mrs. Stellato, wherein the Respondent agreed to construct a swimming pool for them on their property in accordance with the plans and specifications attached to the contract. Among other things this swimming pool contract provided for the payment of a total purchase price of $11,225.00 to be paid in the following manner: ten percent to be paid at the signing of the contract. fifty percent to be paid upon the installation of the tank. thirty-five percent to be paid upon completion of the base decking and screen enclosure. five percent, or the balance of the purchase price, to be paid when the filter system was put in operation. Further, this contract provided that if the purchasers of the swimming pool failed to pay the purchase price in accordance with the prescribed schedule, the contractor reserved the right to suspend all work on the swimming pool, and to suspend all warranty work due after completion of the pool. During the month of February, 1980, the Respondent, acting through his duly authorized representatives, did all acts necessary to cause the filter system of the subject swimming pool to become operable, and requested that the Stellatos pay the five percent balance due under the contract. The Stellatos failed to make this final payment, claiming that there was a problem with the pool decking. In response to this complaint the Respondent personally met with the Stellatos, and agreed to cover the problem area of the decking with Chattahoochee River Rock at no cost to the Stellatos. In exchange for this agreement the Stellatos agreed to pay the balance due under the contract. Thereupon, the Respondent installed Chattahoochee River Rock over a substantial portion of the decking at his own expense. During the installation of this Chattahoochee River Rock, Mrs. Stellato contacted the Respondent by phone and demanded that he also install, at his own expense, Chattahoochee River Rock over an existing concrete patio area that had not been built by the Respondent. The Respondent refused to incur this additional expense, because it was not in accordance with the agreement of the parties. Thereafter, the Stellatos again failed to pay the balance due under the contract. The subject swimming pool was inspected by an inspector for Palm Bay, and the City issued a certificate of occupancy in June of 1980. The pool was ready for a certificate of occupancy in February of 1980 except for the removal of one pile of dirt that still remained on the premises. All other aspects of the pool construction passed inspection in February of 1980 when the pool filter system was activated. Since February Of 1980, the Stellatos have had full use of the subject swimming pool. Except for alleging that some low spots remain in the pool decking, the Petitioner offered no substantial evidence of any other significant problem with the Respondent's construction. Notwithstanding the failure of the Stellatos to pay the balance of the contract price in a timely manner, the Respondent performed warranty work on the subject swimming pool after February of 1980. During the course of this warranty work the Respondent added chlorine chemicals to the pool because the Stellatos had failed to properly maintain it up to June of 1980. Another claim concerning a leaking pipe on the pool sweep did not manifest itself until April of 1981, after the expiration of the one year warranty period afforded by the Respondent to all customers. The Petitioner offered no evidence to show that the leak in this pipe was caused by the Respondent. Notwithstanding the expiration of the warranty period, and the lack of evidence to show that the leak was caused by the Respondent, he did send an employee to the job site and stopped the water leak, at no cost to the Stellatos. On several occasions when the Respondent or his employees attempted to satisfy the complaints of the Stellatos, they had to leave the job site because of the abusive language and conduct directed toward them by the Stellatos. In one instance Mr. Stellato ordered the Respondent's employees from the job site and prevented performance of any work under the contract.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Administrative Complaint, as amended, against John W. Thornett be dismissed. THIS RECOMMENDED ORDER entered this 9 day of June, 1982, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 1982.
Findings Of Fact Martin R. McAndrew is a licensed general contractor and licensed pool contractor holding general contractor's license number RG 0020560 and pool contractor's license number RP 0024861. Martin R. McAndrew was provided notice in accordance with the applicable rules and statutes of the formal hearing to consider the allegations of the administrative complaint filed against him by the Florida Construction Industry Licensing Board. Ray Dowell identified a notice of violation served on McAndrew by the Florida Construction Industry Licensing Board which was received into evidence as Exhibit 1. This notice of violation related to the construction undertaken by McAndrew for Lynn McMillan. Melvin C. Huebschman entered into a contract with McAndrew for the construction of a pool. The contract price for the pool was $5,000.00. Huebschman paid McAndrew $2,000 in two payments. The first payment was in the amount of $300.00 to cover the cost of transportation of the pool materials to Pensacola, Florida. The second payment in the amount of $1,700.00 was for the first phrase of construction on the pool. Subsequent to receiving payment McAndrew provided no materials or labor pursuant to the contract. Huebschman talked with McAndrew concerning completion of the work pursuant to the contract and McAndrew failed to perform under the contract throughout the spring and summer of 1977. In August, 1977, Huebschman wrote McAndrew advising him that it had been over ninety days since they entered into the contract and McAndrew had not performed any services pursuant to the contract. Huebschman gave McAndrew thirty days within which to commence work. McAndrew did not respond to this notice. McAndrew did not return any portion of the $2,000.00 paid to him by Huebschman. Lynn McMillan entered into a contract, identified as a portion of Exhibit 4, with McAndrew. This contract called for the construction of a pool for a contract price of $5,800.00. Pursuant to that contract, McMillan paid to McAndrew $4,350.00. Subsequent to payment of the third draw, McAndrew failed to complete the job. The last work performed by McAndrew on this construction project was on May 17, 1977. Prior to May 17, 1977, all materials for completing the pool were on the site and installed. Before abandoning the project, McAndrew removed from the building site all portions of the pool construction except the poured concrete and vinyl lining. McMillan subsequently entered into a contract with Surf Side Pools for the completion of the pool. The contract price was $1275.00, which included $800.00 for equipment and materials necessary to complete the pool. In addition, McMillan found it necessary to pay $230.00 to O'Brian Enterprises to remove stumps and spoil left on the construction project by McAndrew. McMillan also paid $200.00 to Warrick Electric Company to satisfy a claim by Warrick for materials and labor provided by Warrick to McAndrew. Finally, American Ready Mix Concrete filed a claim of lien in the amount of $436.80 against the property of Lynn McMillan for labor and materials provided under the contract with McAndrew which McAndrew did not pay. On May 27, 1977, McAndrew wrote a letter to McMillan advising that he would like the opportunity to finish the pool and was invited to do so. However, McAndrew did not return to the construction site or provide any further labor or materials pursuant to the contract. Sarah White Witt entered into a contract with McAndrew for the construction of a pool at a contract price of $4,500.00. Witt paid McAndrew $500.00; however McAndrew did not finish the pool construction. Subsequently, Witt was advised by the materialmen and labors of various liens against her property totalling $2,200.00. Daryl Jernigan, electrical and pool inspector for Escambia County, inspected the work done by McAndrew on the McMillan pool. He found that the pool had been filled with water but that the equipment necessary to recirculate and chlorinate the water had been removed from the pool, thereby permitting the water to stagnate. This inspection was conducted in June, 1977. Prior to that time, Jernigan had found it necessary to order work on a pool begun by McAndrew halted because McAndrew had failed to acquire a building permit prior to commencing construction.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that Florida Construction Industry Licensing Board revoke the licenses of Martin R. McAndrew as a general contractor and as a pool contractor, and further fined a sum of $500.00. DONE and ORDERED this 24th day of May, 1978, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: J. K. Linnan Executive Director Florida Construction Industry Licensing Board P. O. Box 8621 Jacksonville, Florida 32211 Michael E. Egan, Esquire Attorney at Law 217 South Adams Tallahassee, Florida Martin R. McAndrew 3313 N. 17th Avenue Pensacola, Florida 32502
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.
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 The issue in this case is whether the Respondent, Dominick A. Solitario, committed the offenses alleged in the Amended Administrative Complaint and, if so, what disciplinary action should be taken.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made. At all times pertinent to this proceeding, Respondent, Dominick Solitario, was licensed as a certified pool contractor in the state of Florida, having been issued license no. CP CA17558. At all times pertinent to this proceeding, Respondent was the licensed qualifying agent for Jade Pools, Inc. Sometime around February of 1988, Respondent contracted with Michael and Linda Skidd to remarcite the swimming pool at the Skidd's home in Coral Springs, Florida. The contract price for the remarciting of the Skidd's pool was $2000.00. Respondent has been paid in full for this work. There is no evidence that there were any leaks in the Skidd's pool prior to the time the work was undertaken by Respondent. At the time the work was begun, one of the Respondent's employees discovered an expansion plug that had been inserted in the main drain. The employee inquired as to whether the Skidds had experienced any problems with the drain. The Skidds denied having any problems. The evidence presented at the hearing was inconclusive as to whether the main drain was working properly. At the time the Respondent began work under the contract, the Skidds were using a "creepy crawler" to clean the pool. This device required the main drain to be shut off. While Mrs. Skidd testisfied that she thought the main drain was working properly, she admitted that her husband was more familiar with the cleaning and mechanical aspects of the pool. Mr. Skidd did not testify. Respondent contends that Mr. Skidd was present at the time the plug was removed from the main drain and that the condition was brought to his attention. However, it does not appear that either Respondent or Mr. Skidd knew why the drain was plugged or the significance of the situation. Respondent proceeded with his contractual work without conducting any tests to determine whether there was a leak in the main drain. When the work was completed, the workers directed the Skidds not to use their main drain. No explanation was given for this instruction. After the work was completed, the Skidds turned on the main drain and lost approximately four inches of water from the pool in a relatively short time. The Skidds turned off the drain and called Jade Pools. An employee of Jade Pools came out and inspected the premises. He advised the Skidds not to use the main drain, but instead to use their "creepy crawler." The Respondent's employee indicated that there was a leak in the main drain. It is not cler how he reached that conclusion. In order to complete the work on the Skidd contract, Respondent's employees were required to install a pressure release valve near the pool's main drain by drilling through the bottom of the pool. The hole for this valve was drilled several inches away from the main drain and its plumbing. Petitioner suggests that the Respondent's employees may have punctured the main drain or its plumbing when this hole was drilled. However, no persuasive evidence was introducted to prove this allegation. Respondent contends that the pool was improperly constructed and/or that the main drain line had been previously damaged and plugged shut to avoid detection of the leak. In order to perform the contracted work, Respondent's employees unplugged the drain and the alleged preexisting leak became evident. Respondent has inserted a plug into the main drain and claims that the pool is now in the same condition it was when he began his work. Respondent has refused to repair the main drain or perform any additional work unless he is paid for it. At the time that Respondent first proposed to enter into a contract with the Skidds, he was told by the Skidds that there was a suction leak at the pump. In retrospect, Respondent contends that this suction leak confirms the preexisting problem with the main drain. No conclusvie evidence was presented to establish why the pool is leaking. As of the date of the hearing, the Skidds are still unable to use their main drain. The Petitioner did not present persuasive evidence to establish that Respondent was responsible for the leak in the Skidds' pool. While it is possible that the Respondent's employees caused the leak when they drilled the hole for the pressure release valve, an equally likely explanation is that there was an existing problem that had been obscured by the prior plugging of the main drain. On or about June 29, 1987, Respondent contracted with Anthony Gallagher to construct a swimming pool and a deck at Mr. Gallagher's home in Coral Springs, Florida for the contract price of $17,800.00. Respondent has been paid in full for this work less $100 for damage caused during construction. The contract with Mr. Gallagher called for Respondent's company to top the existing patio slab and tie it into a newly added patio deck surrounding the pool. The building permit for this work was pulled by Jade Pools. Although the work on the Gallagher deck and pool was completed sometime in late 1987 or early 1988, the pool and deck have still not passed final inspection by the City. The local building officials have refused to approve the final inspection on the Gallgher's deck because of the excessive slope from the back of the house to the pool. The pitch of the deck constructed by Respondent's company from the back of the Gallagher's house to the pool is very severe, effectively rendering a portion of the deck unusable. A table cannot sit flat on this portion of the deck because of the slope. The Respondent's construction of a deck with such a severe slope that it is incapable of passing final inspection constitutes incompetency in the practice of contracting. In order to provide a usable deck, Respondent should have ripped out the existing deck or placed the pool at a higher elevation. Respondent contends that his contract did not call for him to rip out the existing deck, but only to top it. He claims the existing deck that was topped had a similarly severe pitch. Nonetheless, Respondent is responsible for insuring that his final product is functional and able to pass inspection. Respondent has failed to take any remedial action to obtain a successful final inspection. During construction, the Gallaghers, on several occassions, expressed displeasure with the deck and its excessive slope in some areas. On two occasions, Respondent sent his workmen out to correct certain aspects of the construction that the Gallaghers found unacceptable. Ultimately, the homeowners paid the Respondent in full and instructed Respondent to stay off their property. Although Respondent's presentation was somewhat unclear, he appears to argue that these actions by the Gallaghers relieve him of any liability for his work under this contract. However, the evidence established that the Respondent was never able to obtain a successful final inspection of his work at the Gallagher home. This failure is the direct result of the excessive pitch in the patio he constructed. While the Gallaghers have paid the full amount of the contract and are apparently using the pool and patio, these facts do not relieve Respondent from responsibility for the incompetently constructed deck. The City of Coral Springs requires a deck electrical inspection to insure that all the steel in the deck is on the same electrical field (same electrical bond) as the pool. Jade Pools failed to call for this electrical bond inspection before pouring the Gallagher's deck. Ultimately, the city building officials required the Respondent's company to expose a portion of the steel in the deck to confirm that the pool was properly bonded. This test indicated that the pool was in fact properly bonded. On or about August 10, 1988, Respondent contracted with Kevin Fusco to construct a swimming pool and deck at Mr. Fusco's home in Boca Raton, Florida for a total contract price of $10,030.00. Respondent has been paid in full under this contract. Jade Pools obtained the building permit for the Fusco's pool. Therefore, Respondent's company was responsible for obtaining all of the inspections for the construction, including the final inspection. Prior to the time that work was begun on the Fusco contract, Respondent's employees inspected the property and were advised as to some existing problems with drainage in the backyard of the house. The Fusco's lot was designed to drain from back to front. A berm runs behind the Fusco property and causes water to drain through the backyard. On some occasions prior to construction, this drainage situation resulted in standing water against the back of the house. The installation of the Fusco's pool seriously affected the drainage plan for the property. After the pool was installed, there was often standing water all around the deck following a rain. After construction was started and the deck was formed out, the county refused to give approval for pouring the deck because of anticipated problems with drainage in the backyard. One of Respondent's employees advised the Fuscos that if they removed approximately three feet of soil from around the deck, the county would allow them to proceed with pouring the deck. Based upon this recommendation, the Fuscos entered into a contract with a company recommended by Respondent. That company removed approximately six or eight feet of soil all around the deck and installed a rock bed in the area. The cost of this removal was in addition to the contractual price agreed to between Respondent and the Fuscos and was borne by the Fuscos. As indicated above, the installation of the pool greatly exacerbated the drainage problems that previously existed on the property. Respondent did not warn the homeowners prior to construction to expect this result nor did the Respondent take steps to preclude these additional drainage problems. While Respondent contends that the Fusco's property was inappropriately graded prior to the time the work was initiated, Respondent never brought this fact to the attention of the homeowners until after the pool was installed and the increased drainage problems became evident. After the work was completed, the county inspectors advised the homeowners that the pool did not pass final inspection because of drainage problems caused by the pool and deck. By the time the Fuscos found out the pool had not passed final inspection, Respondent had been paid in full under the contract. The Fuscos contacted Jade Pools, which refused to take any corrective action. The Respondent claimed that drainage problems were not part of his company's responsibility and refused to return to the property to correct the problem even though the pool had not passed final inspection. The Fuscos hired an engineer to design an acceptable solution to the drainage problem and arranged for the completion of the work at their own expense. In accordance with this solution, the homeowners installed a series of french drains around the back yard in order to try to get the water to percolate into the ground. After this additional work was completed, the pool passed final inspection by the county. It was approximately one year after Jade Pools finished its work before the final inspection was passed. The Fuscos continue to experience increased drainage problems on their property as a result of the installation of the pool and deck. These problems include standing water around the deck after a heavy rain and, in some instances, an overflow of water into the pool. While the Respondent was installing the Fusco's pool, Respondent was concurrently installing a pool at the house next door. There has been no drainage problems on the property next door because the elevation on that house is higher. The Fusco's pool was actually installed at a level that was at or below the surrounding ground level. The problems associated with such an installation were never explained to the homeowners prior to the time the work was commenced. Respondent contends that this situation was necessary because of the existing elevations of the house and lot. He says that the pool and deck had to be installed in a manner that provided a four inch step down from the house and also matched the existing slab. The drainage problems could have been minimized by swaling out from the pool area to the side of the house. While Respondent contends that such "landscaping" efforts were not part of his contract, he should have not undertaken the work unless he could adequately deal with the drainage problem and ensure that the final installation would pass inspection. The pool contractor is responsible for insuring that, after the pool is built, proper drainage is obtained around the pool. The efforts undertaken by the Respondent were insufficient to deal with the resulting drainage problems and constitute incompetency in the practice of contracting.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Construction Industry Licensing Board enter a Final Order finding Respondent guilty of violations of Section 489.129(d) and (m), Florida Statutes, in connection with the Fusco and Gallagher contracts, issuing a reprimand and imposing a fine on Respondent in the amount of $2,000.00 for having committed these violations. In addition, Respondent should be placed on probation for two years and required to reimburse the Fusco's for the money they have expended to correct the drainage problems caused by Respondent. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 8th day of February, 1991. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 1991.
The Issue The issues presented for decision herein are whether or not Respondent failed to properly supervise a pool construction project, willfully violated local laws, is guilty of gross negligence, incompetence, misconduct, fraud or deceit in the practice of contracting and failed to discharge his supervisory duties as a qualifying agent in violation of sections 489.129(1)(d), (m), (j), and sections 489.119 and 489.105 (4), Florida Statutes.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings. At all times material hereto, Respondent was a registered pool contractor in Florida, holding license no. RP0015329 and served as the qualifying agent for Paradise Pools, Inc. (Request for Admission, responses 1- 4). Petitioner is the regulatory agency in Florida charged with the authority to regulate contractors and to determine compliance with applicable state and local building code requirements. On May 31, 1986, Respondent entered into a contract with Alex and Theresa Nitu for the construction of a swimming pool at the Nitu's residence at 9550 Lisa Road in Dade County, Florida. The following day, the Nitus were approached by John Davis, a partner of Paradise Pools, Inc. Davis identified himself as the owner of Paradise Pools and told the Nitus that Respondent was the company salesman. Davis is not a licensed contractor. During construction, Davis supervised the work for the Nitus' pool. Mrs. Nitu was ill and remained at home on the day the workers laid reinforcing steel for the pool shell. Mr. Nitu, an electrical contractor, took off work and was at home during the two days when the gunite work was done for their pool. Respondent was not present on the job site on those days. The day after the concrete deck was poured, the Nitus noticed that it contained several low spots which collected water and that rocks were protruding through the deck's surface. Additionally, a portion of the deck sloped toward the pool rather than away from it. The following day, the Nitus returned home from work to discover that the "whitecoat" for the deck surface was completed and their water hose, weighted down by a rock and a rag, was filling the pool. The pool was filled with water before the Nitus had completed a fence to secure the pool. At Mr. Nitu's request, James Tucker, a Dade County Building Inspector, inspected the pool on August 6, 1986. Tucker issued a notice of violation to Respondent for allowing water to be put in the pool without proper safety barriers in contravention of section 33-12, Dade County Code; for allowing the deck to slope toward the pool in contravention of section 5003.1 of the South Florida Building Code and for using concrete of less than 2500 psi strength in contravention of section 5003.1(a), South Florida Building Code. In an attempt to correct the low spots and improper slope of the patio, Davis poured an additional layer of cement over the pool deck and scored the surface to create the appearance of keystone. Thereafter, the Nitus discovered hollow areas under certain parts of the keystone. Eventually, the keystone began to separate from the original deck exposing large areas of the deck. Ben Sirkus was tendered and accepted as an expert in pool construction. Sirkus inspected the Nitu's pool on September 24, 1987, at Petitioner's request. Sirkus observed low spots in the pool deck which held water and contributed to the growth of algae. He also observed that large areas of the imitation keystone had separated from the original deck; that portions of the deck still drained towards rather than away from, the pool; that coping mortar had been left on the sides of the coping and the pool shell; that areas of the whitecoat were unusually rough and that the pool pump was off level, which in time could cause scoring of the bearings in the pump. Sirkus opined that the deficiencies observed could not have gone unnoticed by a pool contractor of average skill and ability; that deficiencies indicate poor supervision or gross negligence or that Respondent exhibited incompetence in contracting for the Nitu's pool. John Davis, Respondent's partner and the person who was usually on the site during all facets of the construction, credibly testified that when the angles were laid out for the sloping of the decks surrounding the Nitu's pool, Alex Nitu requested that his employees angle the deck toward the pool such that it would mesh with his patio. This required that Respondent's employees reslope the angles in accord with Mr. Nitu's wishes and contrary to the manner in which they originally sloped the deck. Mr. Davis also attempted to correct the problems that had surfaced surrounding the deck in accordance with the concerns expressed by the Nitus. However, the Nitus vehemently refused access to Respondent's employees and the matter therefore, remained unresolved. Respondent Reise was at the construction site on numerous occasions during the major facets of the construction. In addition to being the principal salesman for Paradise Pools, Respondent Reise has extensive experience in the construction of pools and frequently consulted with his partner, John Davis, about the ongoing construction of the Nitu's pool. Respondent Reise also attempted to gain access to the pool to attempt to correct the problems and other concerns expressed by the Nitus, to no avail. In this regard, a meeting was held at the Nitu's residence on January 30, 1987, by Jim Tucker and Robert Denery, employees of the Dade County Building and Zoning Department, a Mr. Wolf, Petitioner's investigator, Respondent and his partner, John Davis. After a lengthy discussion, it was agreed that all problems were to be resolved which included (1), repair and patch the keystone on the east end of the pool and (2), rework the slope on the northside of the pool to pitch away from the pool and (3), submit test results from an engineering test lab as to the structural strength of the patio slab and final approval by the electrical and plumbing departments of Dade County. Respondent agreed to correct the above-referenced items and agreed to do so as quickly as feasible. The Nitus refused to allow Respondent's employees back on the site to correct the problems. (Respondent's Exhibit 1). John Davis and Respondent's other employees denied that they started filling the Nitu's pool prior to the time that the Nitus had completed a fence to secure it. Their denial in this regard is incredible and is not worthy of belief. The Nitus, in this regard, credibly testified that they were at all times concerned about the safety of the pool and would never have started filling it prior to the time that it was secured. Respondent's employees, on the other hand, were in fact interested in completing the job and it is therefore believed that they started the water running into the pool and weighted the hose down with a rock and a rag as the Nitus found it when they returned home from work on the day that the "whitecoat" was completed. In all other respects, based on the Nitus' failure to permit Respondent's employees to return to the site to complete the deficiencies and other concerns noted, the undersigned finds that Respondent should have been afforded an opportunity to correct such deficiencies and cannot be held liable 1/ for the allegations that he improperly sloped the pool deck, used improper concrete or was otherwise negligent, incompetent, engaged in misconduct and other allegations of improper supervision, as alleged. I shall so recommend.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Respondent be assessed an administrative fine in the amount of $250.00. Respondent be issued a written reprimand for allowing his employees to fill an unsecured pool in violation of the local building code. DONE and ORDERED this 16th day of September, 1988, in Tallahassee, Florida. JAMES E. BRADWELL 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 19th day of September, 1988.
