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 Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts were found: At all times material to these proceedings Respondent was licensed by the State of Florida as a certified pool contractor, licensed No. CP C025535 and registered pool contractor, License No. RP 0041301. On June 7, 1983, Respondent entered into a Contract (Contract) with Edward and Maureen Kerstein (Kersteins) of 283 Islander Lane, Hudson, Florida, under which a pool was to be constructed on the Kersteins' property for a contract price of $7,777.00. The Contract was later amended by a letter, signed by Respondent and dated July 15, 1983, providing a penalty of $50.00 per day to be deducted from the balance due on the contract price if Respondent failed to complete the pool by July 23, 1983. Respondent obtained building permit No. 34342 on June 15, 1983, in the name of Crystal Clear Pool for the construction of the Kersteins' pool from the Pasco County Building Division. The pool steel inspection was called for and approved on July 8, 1983 and the pool bonding inspection was called for and approved on July 18, 1983. No other inspections were called for by the Respondent and the Respondent did not request an extension of time on the building permit. Therefore, on January 18, 1984, as required by the Standard Building Code of Pasco County, the permit lapsed and was invalid. However for reasons that are not clear in the record Vern Rossky, Building Inspector, Pasco County Building Division, made a final inspection of the Kersteins' pool (Permit No. 34342) on June 28, 1984 and approved the pool. Ordinarily the contractor would call for the final inspection or if the permit had lapsed or was invalid then the Pasco County Building Division would contact the contractor in order to finalize the permit. However, the record is clear that Respondent's intent was to leave the permit open due to the problems with completing the pool and satisfying the Kersteins. Although problems with the pool still existed, the pool was substantially completed in August, 1983 and the Kersteins used the pool in late summer 1983 (August) and the summer of 1984. The pool was operational in August of 1983. The respondent has received $7,055.05 for his work on the construction of the pool under the Contract with the Kersteins. While the Contract did not specify which side yard Respondent was to have access through for construction of the pool, the testimony of both the Respondent and the Kersteins was that it was the west side yard. However, the record reflects that the Kersteins gave either an expressed or implied approval for the use of the east side yard. All of the shrubbery, with the exception of the shrubbery that was part of the Contract, has been properly replaced and the clothesline has been replaced. The evidence was insufficient to show that the cracks which occurred in the house some 3-6 months after the pool construction was caused by the equipment being brought in on the east side of the house. Although Edward Kerstein's testimony was that an expert had not looked at the damage caused by the alleged water seepage around the electrical conduit pipe installed by the Respondent, his testimony that he had identified the Respondent's failure to caulk around the conduit pipe as the reason for the water seepage which resulted in damage to the carpet and speakers went unrebutted and was credible. However, Respondent was not made aware of this problem until the summer of 1984, almost a year later. The record is clear on the following: (a) that the tile placed around the top edge of the pool by Respondent was defective; (b) that there were several acceptable methods of replacing the defective tile; (c) that there were differences of opinion as to which method should be used in this situation; (d) that the reglazing over the existing tile was not an acceptable method; (e) that the pool would have to be drained to replace the defective tile; (f) that the Kersteins did not want to tile over the existing defective tile; (g) that the Respondent and Drew Tile Supply Company (Drew), the supplier of the defective tile, agreed on the method of cutting the tile away from the bull nose cap and replacing just the tile and based on this agreement; Drew delivered a check to Respondent in the sum of $823.75 ($700 for labor and $123.75 for tile) made payable to Crystal Clear Pools and Phil Klein, the subcontractor who had installed the defective tile; (h) that the Respondent, as President of Crystal Clear Pools assigned Crystal Clear Pools' interest in the check to Phil Klein provided the work on the defective tile in the Kersteins' pool commenced no later than February 1, 1984; (i) that Phil Klein endorsed and cashed the check with the knowledge of the assignment; and Phil Klein's testimony that even though the assignment was on the check at the time he endorsed and cashed the check the Respondent told him that the money was a partial payment of another job is just not credible; (j) the more credible evidence is that Respondent assigned the check to Phil Klein for labor and tile to replace the defective tile on the Kersteins' pool and there was no intent by Respondent to divert these funds to another job; (k) that the Kersteins' had not agreed to the method of replacing the defective tile which was part of the agreement between the Respondent and Drew; (1) that Drew had agreed that if the method selected was not satisfactory, then Drew would make it right; (m) that the problem with the drain in the pool, the filtering system, the telescoping rod, the damage to the air conditioning controls on the house, the failure to put tile chips on pool steps and the damage to the underground wire, were legitimate problems and it was Respondent's intent to correct all by the time the pool was drained to replace the defective tile; (n) that the Kersteins understood this when they agreed to allow Respondent to wait until the winter of 1984 to correct these problems because they were already using the pool in the latter part of the summer of 1983 and did not want to drain it at that time; (o) that none of these problems had been corrected due to the failure of both the Respondent and Drew to reach an agreement with the Kersteins on how both the defective tile problem and the other problems were to be resolved and; (p) that there had been continuous negotiations between either the Respondent and the Kersteins or Drew and the Kersteins concerning the settlement of this problem.
Recommendation Based upon the findings of fact and conclusions of law cited herein it is RECOMMENDED that the Board enter a final order finding the respondent not guilty of the violations charged in Count I, Count II, and Count III of the Administrative Complaint and that Counts I, Count II and Count III of the Administrative Complaint be DISMISSED. Respectfully submitted and entered this 10th day of July, 1985 in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 10th day of July, 1985. COPIES FURNISHED: Douglas A. Shropshire, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Gerald A. Figurski Post Office Box 786 New Port Richey, Florida 33552 Mr. James Linnan Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact The Respondent Wilbur A. Sellars is licensed as a residential pool contractor by the Construction Industry Licensing Board through license number RP 0045541. Mr. Sellars was first licensed in 1975. At all times material to this case Respondent has owned and operated in Tallahassee, Florida, a pool contracting company called Pro Pools Service and Supply or Pro Pools, Inc. Cabana Construction In November 1977 Respondent entered into a contract with Dr. Frank S. Bilek to construct for him a 20' by 40' vinyl lined pool and a 20' by 40' cabana building. The contract price for the pool was $11,166.10. The price for the cabana was $14,517.30. The pool and building were constructed as provided in the contract. The cabana sits on an 800 square foot slab with footings and consists of three separate rooms. One room is a small bathroom containing a lavatory, water closet, and shower. Another room is fully enclosed by finished walls and sliding glass doors. The third room is open on two sides, one of which faces the swimming pool. The walls are typical stud construction with plywood siding on the exterior and half-inch drywall on the interior. The roof is supported by 2/12 2x4 prefabricated trusses with shingles on top. The ceiling inside the cabana is the same as would be found in a residential home and the floor is a cement slab covered by carpet. There is one overhead ceiling fan in the open room and another in the fully enclosed room. For all practical purposes the construction techniques and materials used in the cabana are the same as would be used in a residential dwelling, although they may not meet the code standards which would be applicable to a dwelling in the Killearn residential area where Dr. Bilek's home is located in Tallahassee, Florida. The cabana is equipped with plumbing for the bathroom and also for a wet bar in the kitchen area of the cabana. No pool accessories were located in the cabana at the time Petitioner's witness inspected the facility, however as with any other structure of its size, pool equipment such as vacuuming hoses, wands, etc., could be placed inside it. The original design for the cabana included large solar panels located on the roof. The purpose of these panels was to provide heating for the swimming pool water. After the panels were installed they malfunctioned and have since been removed from the cabana roof. Typically in home swimming pool installations such panels are placed on house roofs or are independently supported by a special structure located near the swimming pool. The swimming pool water recirculation pump and filter for Dr. Bilek's pool were not located inside the cabana in issue, but were located nearby out in the open. The cabana was not designed for the purpose of housing this equipment. It appears from the furnishings found in the cabana, its orientation with respect to the pool, and from its equipment that the cabana along with the pool coordinate to create a unified entertainment complex. Neither is essential to the other, however. The cabana could host a cocktail party without there being a drop of water in the pool and the pool can function perfectly without the cabana. Criminal Convictions On May 18, 1979 Respondent sent a work crew to Cairo, Georgia, for the construction of a residential swimming pool for Mr. and Mrs. Vanlandingham. The crew was using a dump truck to haul excavated dirt from the pool site to a dumping site several miles from the Vanlandinghams' residence. An inexperienced driver was operating the truck. Upon arrival at the dumping site he engaged the bed lift to dump the dirt but forgot to release the safety chains. As a result the chassis of the truck broke. Members of the crew called Mr. Sellars to give him the bad news. He instructed them to burn the truck, which they did. Respondent then submitted an insurance claim for the loss of his truck due to an accidental fire. As a result of this false claim he was convicted of insurance fraud as defined in Section 817.234(1)(a), Florida Statutes. He entered a guilty plea and judgment was entered on June 7, 1982. On the same date Respondent also pled guilty and was convicted on another count of insurance fraud arising from his filing a false claim for the alleged theft of three mobile radios from trucks operated and owned by Pro Pools Service and Supply. The radios had in fact not been stolen. Since his conviction Mr. Sellars has obtained insurance coverage for the business of Pro Pools including automobile liability, physical damage, general property and general liability insurance.
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 finding the Respondent Wilbur A. Sellars guilty of Counts One, Two, Three and Four in the Amended Administrative Complaint and impose discipline in the form of an administrative fine of $200 and suspending Respondent's license as a residential pool contractor for a period of three months. DONE and RECOMMENDED this 23rd day of December, 1983, in Tallahassee, Florida. MICHAEL P. DODSON 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 23rd day of December, 1983.
The Issue The legal issues raised and the status of the parties in this cause are seemingly complex due to the manner in which the case was presented on the initial pleadings to the Division of Administrative Hearings. At bearing, it was determined that Fairways was seeking approval of a permit for use of its swimming pool. This application had been denied by the Department of Health and Rehabilitative Services on the grounds that the pool failed to meet the requirements of Rule 100-5.50, Florida Administrative Code. In order to place the parties in their proper positions, the Respondent, Fairways, was determined to be the movant party and its cross-petition considered to be the petition. The ultimate issue presented is whether the subject pool meets the requirements of Rule 100-5.50 and its use should be approved. PRELIMINARY RULINGS Fairways collaterally attacks the manner of application of the rule by the Department to its pool, asserting that the manner of application of the rule constitutes an unpromulgated rule. Fairways also alleges in its proposed findings that Rule 100-5.50 is an invalid exercise of validly delegated legislative authority, and that the Department is estopped to assert the pool fails to comply with Rule 100-5.50 because of a failure to communicate properly the conditional approval of construction of the pool. The allegations that the Department's application of Rule 100-5.50 constitutes an unpromulgated rule and that Rule 100-5.50 is invalid are raised for the first time in Fairways' proposed findings. The original petition (cross-petition) makes no allegation that Rule 100-5.50 is invalid, and makes no allegation that the manner of measurement is an invalidly promulgated rule. These allegations would not be properly raised within the context of a Section 120.57(1), Florida Statutes, proceeding. Although invalidity of the rules on constitutional grounds is preserved in the record for appellate review, the nature of the allegations in this instance are not grounded in a constitutional challenge. Having failed to raise these issues in their pleadings under the appropriate provision of Chapter 120, Florida Statutes, these attacks will not be considered in determining the issue presented in this proceeding.
Findings Of Fact Respondent is a six-building complex containing 13 condominium units, each building being situated on a separate lot circumscribed by property lines outlining the property within the exclusive possession and control of the occupants of the condominiums. The pool in question is located upon jointly held property and is not intended to be and has not been open for use by the public or persons other than the occupants of the condominiums and their guests. On April 2, 1979, Fairways submitted a site plan (Joint Exhibit number 4) to Petitioner at the Manatee County Health Department. The site plan showed the proposed location of the pool in relation to the condominium buildings. Approval of these plans by the Department was necessary in order for a construction permit to be issued for the pool. By a letter dated May 30, 1979 (Joint Exhibit number 2), Mr. O. P. Randle, Jr., Engineer for the Department, granted approval for the pool plans with the condition that "Wet facilities shall be provided within two hundred (200) feet of the pool." Between April 4 and May 30, 1979, Ms. Rosemary Wiley, Engineering Technician with the Department, orally informed Fairways' "project engineer" that several units were more than 200 feet from the proposed pool and that wet facilities would be required. During this period, Wiley also informed Fairways' pool contractor of the same condition and requirements. A construction permit for the pool was secured by Fairways' pool contractor on June 4, 1979. Construction of the pool began during the first week of June, 1979, and was substantially finished by July 5, 1979. Shortly after June 17, 1979, Fairways contacted the Department's local pollution control director, who visited Fairways and measured the distance between the water's edge of the pool and the farthest building. The method of measurement employed by the Health Department was to measure the shortest distance between the edge of the pool and the structure of the building. The method of measurement used by the Department has been in use 16 years and evolved because measurement from the pool to the actual sanitary facility located within a building is impractical. The only building which was not within 200 feet of the water's edge of the pool was Building 6, containing two dwelling units, which was 241 feet from the edge of the pool. Part of Building 5 is more than 200 feet from the edge of the pool; however, its closest edge is within 200 feet of the pool, meeting the requirement for wet facilities. The only toilets and lavatories constructed at this site are those contained in the individual condominium units. These facilities are not open to use by the public or other condominium owners. By letter dated June 23, 1979, the local pollution director, at the request of the Health Officer, requested from the Chief of Public Health Engineering Services an interpretation of the method of measuring the 200 feet provided in Rule 100-5.50. The request of the Health Officer was precipitated by a request for section interpretation by Fairways' agent. The request dealt specifically with what was required to be within the 200-foot radius of the pool. The interpretation of the Chief of Public Health Engineering Services was contained in his letter dated July 5, 1979, addressed to the District VI pollution control director. This interpretation advised that the building's edge must touch or fall within a 200-foot radius of the pool. This letter also advised that the Department had no power to consider or grant variances or exceptions to the rules. The information contained in this interpretation was communicated to Fairways' agent. Other proposed findings of fact presented by the Petitioner and Respondent are specifically rejected.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department deny the application of the applicant for a permit of use. DONE and ORDERED this 6th day of February, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Amelia Park, Esquire Department of HRS W. T. Edwards Facility 4000 West Buffalo Avenue, 4th Floor Tampa, Florida 33614 Janice Sorter, Esquire Department of HRS W. T. Edwards Facility 4000 West Buffalo Avenue, 4th Floor Tampa, Florida 33614 David Paul Montgomery, Esquire 2103 Manatee Avenue, West Bradenton, Florida 33505
Findings Of Fact Respondent is a certified pool contractor, holding license number CP CO27486. Respondent obtained his certificate in October, 1983. His only prior discipline consists of a letter of guidance in late 1989 or early 1990. At all material times, Respondent was qualifying agent for Gold Medallion Pcol, Inc. On March 27, 1986, Respondent and Mr. and Mrs. Don Burson entered into a contract for the construction cf a swimming pool at the Bursons' residence. The Bursons had purchased the residence while it was still under construction in May or June, 1985. The lot was low and had required fill. Clearly visible behind the lot is a large marshy wetland. The contract called for the Bursons to pay $16,315 for the construction of a 20' by 40' concrete lap pool with depths of 3' at either end and 6' in the center. Paragraph 4 of the contract provides: The Owner is responsible for increased costs incurred by the Contractor due to underground conditions which may be encountered during construction, such as but not limited to, muck, inadequate soil-bearing capacity, and excessive ground water. The Contractor, upon encountering such conditions, shall notify the Owner of their existence and give him an approximate cost estimate to rectify the problem. The Owner shall have five (5) days from the receipt of the approximate cost estimate to instruct the Contractor not to proceed with the pool. . . . If the Contractor determines that additional testing is required prior to furnishing approximate costs estimates to determine the exact nature or extent of the underground condition encountered, the Owner shall be responsible for the cost of all testing and/or engineering required by the Contractor. Paragraph 8.D states that the Owner warrants that there [is] no . . . mock . . . in that portion of the owner's property which the contractor will construct the pool [and] decking . . .. The owner is responsible for the removal, repair or replacement of any underground conditions . . . encountered during construction unless he elects to terminate the contract and pay damages to the contractor as set forth in the clause on underground conditions. Paragraph 11.A provides: Contractor warrants to the original owner for the lifetime of the original purchaser, the swimming pool structure, the shell, will not leak due to cracking. . . . This Limited Structural Warranty does not cover damage to the pool shell caused by fluctuations of the water table, construction in the vicinity of the pool site, or natural phenomenon. . . . The contractor's responsibility under this Limited Structural Warranty shall be to repair the shell so that it holds water without cost to the original owner. . . . The method of repair shall be at the discretion of the contractor. THE CONTRACTOR MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES INCLUDING THE WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE IN REGARDS TO THE POOL STRUCTURE, THE SHELL. Paragraph 11.B.2, which further describes the limited warranty, states: It is anticipated the concrete deck and deck coatings may crack due to settling of deck or weather. Cracks one-quarter inch or less with no substantial deviation in elevation are not covered. . . . The plot plan, which is part of the contract, shows the pool located on the east side of the house. The pool is oriented in a north-south direction. The southern end of the pool runs toward the back of the lot, which is on a steep slope. The southern end of the pool adjoins the widest section of decking, which Respondent constructed at the time of the construction of the pool. The plot plan also shows that excavated dirt was to be placed just south of the decking on the south end of the pool. Shortly after pulling a building permit from the Seminole County Building Department on March 27, 1986, Respondent began construction of the pool. The actual construction was performed by Mid-Florida Pool Company, which is a major pool construction company in Central Florida. Construction was completed on April 23, 1986, and the Bursons paid the amount required under the contract. Prior to commencement of construction of the pool, this area of the Bursons' lot had been filled with about 2 1/2 to 3 feet of dirt. In order to construct the pool, Respondent or his subcontractors added another 2 1/2 to 3 feet of fill, at least to the southern end of site of the pool and decking. It is at this point that the land begins to slope most steeply toward the marsh in the back. Neither Respondent nor any of his subcontractors conducted any soil tests prior to commencing construction or compressed or compacted the soil beneath the pool prior to installing the shell. This omission constitutes a departure from sound contracting practices under the facts cf this case. Respondent constructed several pilasters under the southern end of the deck, but these structural supports were designed to support the deck, not the pool. In general, the depth of the excavation had to exceed the depth of the pool by one foot in order to accommodate the shell. Thus, the extreme southern end of the shell required a hole only about four feet deep. An excavation of this depth did not exceed the combined depth of the old and new fill. There is no indication that Respondent or his subcontractors encountered muck during the excavation or construction of the pool. Likewise, there is no indication that Respondent or any of subcontractors was aware that mucky, unstable soils underlaid the location of the pool, especially the southern end. The pool was completed to the initial satisfaction of the Bursons. However, within 90 days of completion, the southern half of the shell developed five or six major cracks as a result of the settlement of the southern end of the pool. This portion of the pool settled because the underlying muck had been compressed by the weight of the shell and water. Gradually, the water loss from the settlement cracks, which were mostly below the waterline, became significant. At Respondent's suggestion, the Bursons agreed to wait through the winter before commencing repairs in order to allow the cracking to stabilize. In the spring of 1987, the Bursons drained the pool at Respondent's direction. Respondent then scored the cracks with a screwdriver and applied a filling compound in order to seal any leaks. As directed by Respondent, the Bursons then refilled the pool, but before more than two feet of water had been added, the filling compound fell out of the cracks. When the Bursons informed Respondent of the failure of the repair, he responded that he had performed under the contract and had no further obligation. The Bursons exercised their right to arbitrate, as provided in the contract. The arbitrators conducted a limited investigation. Expressly noting that they were not soil engineers and thus could not determine why the soil under the pool failed to support the shell, the arbitrators determined that the contractor was not responsible for any damage to the pool, "which was built to industry standards." The Bursons next contacted various pool contractors about repair options. Most of the contractors suggested a V-cut about 2 1/2 inches deep followed by the injection of hydraulic cement. When the Bursbns informed Respondent that this type of repair appeared necessary, he refused to undertake such work. By this time, one of the contractors documented that five of the cracks, which ranged from 1/16" to 1/4" wide, were pulling water out of the pool at a rate of 1-3" daily. This contractor charged the Bursons $125 for his services. After contacting the Seminole County Building Department, the Bursons learned that the pool had never passed a final inspection. When they had an inspector visit the site on September 13, 1991, he failed the job due to, among ether things, "massive deck cracks." At the insistence of Seminole County officials, the Bursons obtained expert opinions as to the cause of the cracks in preparation for the local hearing on the Bursons' charges against Respondent. In July, 1990, the American Testing Laboratories, Inc. conducted tests and opined that the south end of the pool had settled due to muck at a level of five feet below the bottom of the shell. Additional testing found muck at depths of 3-7 feet at two points just east of the south end of the pool. These tests cost the Bursons $498. When the Seminole County officials insisted upon further testing, the Bursons hired Jammal & Associates, Inc., which performed soil borings on August 23, 1990. The boring sites were just east of a point about midway along the southern half of the pool and a point just south of the southern end of the pool. The latter boring site revealed muck after penetrating about six feet of fill. At the request of Respondent, a Jammal employee returned to the site on November 13, 1990, to determine the potential cause of the cracking of the pool shell and deck. Jammal concluded that the cracking is the result of consolidation of the highly compressible peat layer found in the [southern] boring. Based upon the [cracking] observed, we suspect the southern 1/3 or so of the pool and deck area are underlain by the buried peat layer. The remainder of the pool and deck are most likely underlain by sandy soils. Because of the nature of the buried organic soils, the pool and deck will probably continue to settle at a diminishing rate for several years. Addition of new loads such as placement of additional fill around the pool and deck area, or a significant drop in the groundwater table could cause additional and accelerated settlement of the pool and deck. Jammal offered three repair options. The first was to patch the cracks. Jammal assumed that, although continued cracking could be expected, it would occur at a lesser rate because most of the settlement of the buried muck had already taken place. The second option was to remove the pool and then remove the underlying muck. The third option was to install inside the shell a fiberglass liner. The last option had been first suggested by Respondent. If not rigidly attached to the shell, the liner probably would not reflect further cracking of the shell. The Bursons paid Jammal the sum of $300 for its services. Ultimately, the Bursons decided to install a fiberglass liner and entered into a contract on November 19, 1990, with Fibre Tech for the work. The total cost of the project was $5415. This cost excludes the cost of replacing a pool vacuum for which Respondent does not appear responsible. The liner was later installed, and the Bursons paid the contract price. In the meantime, at a meeting on October 16, 1990, the Seminole County Swimming Pool Contractor's Board revoked Respondent's County certificate of competency until he repaired the pool or made restitution to the owners. This action was based upon a violation of Seminole County Code Section 40.151 and 40.34(2) and (9). Section 40.151 provides that "[a]11 completed pools shall be absolutely watertight." Section 40.34(a) allows the Board to revoke a certificate of competency if the contractor: (2) Continue[s] performance of building work in a negligent, incompetent or unworkmanlike manner. (9) Violate[s] any provision of this Chapter. The determination of the Seminole County Swimming Pool Board became final when Respondent failed to take a timely appeal of the order.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Construction Industry Licensing Board enter a final order imposing an administrative fine of $2500 and suspending Respondent's license until he makes restitution to the Bursons in the amount of $6338. ENTERED this 29th day of October, 1991, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1991. COPIES FURNISHED: Jack McCray, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Daniel O'Brien Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32202 Craig M. Dickinson, Senior Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Merwin C. Carter, pro se 611 Ensenada Avenue Orlando, FL 32825
Findings Of Fact Brian E. Michaels, the Codes Administrator for Putnam County testified that he regulates the building codes in Putnam County and is in charge with the effective administration thereof. He testified that the pertinent regulations and codes relative to the construction of swimming pools in Putnam County are Ordinances 73-6 and 75-4. (See Petitioner's Exhibits number 2, and number 3, received in evidence). Michaels testified that after seeing an advertisement in the Palatka Daily News on august 6, 1975, his office advised Respondent's office on two occasions to apprise him of certain local laws regulating contractors and the business of contracting. When Respondent failed to respond to approximately three phone calls to its office, Michaels advised Respondent by certified letter dated August 28, 1975, that swimming pool contractors desiring to operate in Putnam County must be locally certified even if they hold state registration. He advised Respondent that if he in fact was state certified that he could send a copy of his certificate for Putnam County official files and to discuss with their office procedures for obtaining a certification in Putnam County. He further advised that the county had adopted the standard swimming pool code, 1974 edition, which requires a plot plan as well as a plan approved before a pool permit could be issued. (See Petitioner's Composite Exhibit number 5). Michaels explained the procedures for complying with the County's certification process which included the filing of an application; taking an exam and receiving a score of at least 70 percent; posting of a $5,000.00 bond; payment of a $50.00 fee which should be included with the application which should also have included a recent photo and the issuance of an occupational license. Additionally, he advised that it was necessary to comply with registration and requirements of the Florida Construction Industry Licensing Board under Chapter 468; Florida Statutes, within 90 days. Michaels testified that Respondent received his certified letter dated August 28, 1975, the following day. (See Petitioner's Composite Exhibit number 5). Section 1020 of Ordinance No. 75-6 of the zone ordinances of Putnam County states in pertinent part that building and related permits issued by the chief building official are required in advance of the construction, erection, demolition, moving, destruction, or alteration of any building or structure with a completed evaluation of $1,000.00. (See Petitioner's Exhibit number 6). On May 27, 1975, the Putnam County Board of County Commissioners enacted Putnam County Ordinance no. 75-4, which ordinance adopted by reference the Southern Standard Swimming Pool Code, 1974 edition, which provided for the adoption of a fee schedule and charges for the issuance of permits to "defray the costs of inspections". (See Petitioner's Exhibit number 7). Jerrell Sparks of Crescent City, testified that he contacted Respondent regarding the construction of a swimming pool during the fall of 1975 following his visit to a building show. On October 21, 1975, Sparks entered into a contract with Terry Michaels, a partner of Respondent, Steve Klapach, d/b/a Starfish Pools for a total price of $5,150.00. At the execution of the contract, Sparks paid Respondent $200.00 and agreed to pay an additional $1,300.00 on November 5, 1975. (See Petitioner's Exhibit number 8, received and made a part herein). Sparks testified that Respondent made the financial arrangements with a mortgage broker in Jacksonville and that Respondent was paid $4,650.00. The construction completed by Respondent consisted of the excavation for the pool and delivery of the pool shell. He testified that he obtained a homeowner's permit but that Respondent did not obtain a permit for the installation of the swimming pool. Tom McConnell of Palatka, testified that he contacted the Respondent regarding a $2,000.00 pool kit which he had seen advertised. He testified that Respondent's partner, Tony Michaels, visited his home on October 14, 1975, at which time he executed a contract for the installation of a pool for a total price of $5,714.00. When the contract was executed, McConnell secured it by an advance payment of $500.00 and he thereafter was never able to contact Respondent. (See Petitioner's Exhibit number 9, received in evidence and made a part hereof). Kenneth L. Rue of Ormond Beach contacted the Respondent based on an ad which appeared in the Sunday supplement of the Daytona Beach News Paper. On August 21, 1975, Rue entered into a contract with Respondent's partner, Tony Michaels and a Mr. Charles Van Dent for the construction of a pool for the total price of $5,200.00. He paid Respondent $500.00 when the contract was executed and paid an additional $4,200.00 when the pool was delivered. He testified that Respondent removed shrubbery and palm trees where the pool was to be positioned and thereafter the excavation and the necessary site preparation was readied. Thereafter the pool was positioned and the plumbing and electrical-fixtures were connected. He testified that the pool did not comply with the specifications as called for in the contract which by its term called for a kidney shaped pool with dimensions of 27' X 13' and a depth of a minimum of 3 and a maximum of 5 feet. He testified that the actual dimensions of the pool installed was 25' x 11' and the depth ranged from 26" to 47". He testified that after the pool was installed it began leaking around the "circulation area" and that when he contacted the Respondent, the pool was removed and Respondent agreed to install any size pool that he desired. The pool called for in the contract was a fiberglass pool however Respondent opted for the installation of a vinyl liner pool. On November 11, 1975, Respondent sent two employees out to make forms for the construction of the pool but since that time, he has had no further contact with Respondent despite repeated attempts. He paid Respondent approximately $4,700.00 of the $5,200.00 contract price and paid another contractor an additional $2,300.00 to complete construction of the swimming pool. (See Petitioner's Composite Exhibit number 10) Brian Michaels was recalled and testified that Respondent never was issued building permits for the McConnell or Sparks projects. The Board introduced into evidence documents showing that Respondent, Steve A. Klapach, RP22049 was registered with the Florida Construction Industry Licensing Board as an active swimming pool contractor during 1975 in the period September, 1975 to December, 1975. (See Petitioner's Exhibit number 1).
The Issue The administrative complaint filed on September 17, 1987 alleges that in a residential pool contracting job Respondent Martin ". . . exhibited financial mismanagement, misconduct, or diversion, in violation of 489.129(1)(h), (m) . . . [and] failed to perform in a reasonably timely manner, and/or abandoned said job, in violation of 489.129(1)(m), (k)." The issue is whether Martin committed those violations, and if so, what disciplinary action is appropriate.
Findings Of Fact At all times relevant, Kenneth Martin was licensed in the State of Florida as a registered commercial pool contractor, holding license number RP 0021608. His license is currently in inactive status. Martin was President of Adair Pools, Inc., the corporation under which he conducted his pool construction business. In early July 1986, Adair Pools contracted to build a residential pool for Paul and Cynthia Pajak at 8304 Helena Drive in Orange County, Florida. The pool was to be kidney-shaped, approximately 14 feet by 30 feet, with a waterfall and a detached spa. The contract amount of $11,571.00 expressly excluded the deck, electrical work and screening, although the written contract included a sheet describing the specifications for the excluded work, recommended contractors, and estimated costs. This sheet and the pool contract itself clearly indicated that these items were not the responsibility of the pool company and were not included in the contract price. Work commenced in July, shortly after the contract was signed. Although the contract did not specify a completion date, Martin concedes that the pool should have taken no more than four to eight weeks to complete. The Pajaks had planned a Labor Day party and were told by Adair's employees there would be no problem getting their pool finished for the party. The pool was not finished by Labor Day. After the pool was dug, shot with concrete and tiled, someone determined that the spa was supposed to have been raised. In attempting to raise the spa and to change the water jets, the workers cracked the shell of the spa and had to replace it. Until the problems with the spa, the Pajaks felt that the construction progress was reasonable and smooth. At this point, sometime around Labor Day, the problems began. Adair delayed in paying Shotcrete Pools, the subcontractor for the concrete shell, because Adair felt it was Shotcrete's fault that the spa was cracked. Shotcrete notified the Pajaks that a lien would be placed on the property if they were not paid. The notice to owner is dated November 3, 1986. Eventually Adair paid Shotcrete and its other subcontractors for the Pajak work and no lien was filed. The evidence does not reflect a clear sequence of events, but between Labor Day and February or March 1987, little progress was made to finish the pool. Martin's supervisor left and Martin's brother took over. The Pajaks kept calling Martin and were always assured that the job would be completed. Martin admits that the company at this time was in serious financial trouble because it was not being paid for a large commercial job that it had undertaken. On December 10, 1986, Mrs. Pajak's brother-in-law, an attorney, sent Martin a demand letter, giving a 10-day deadline for completion of the work. Martin and his brother met with the attorney and assured him the job would be finished. In spite of the problems, the Pajaks continued working with Martin and paid the full contract price, less the $100.00 that was to be paid when the pool was filled. On March 5, 1987, Martin informed the Pajaks that they should have the deck poured so that Adair could finish the pool. The Pajaks were not satisfied that the pool was ready for the deck as there were leaks in the waterfall, debris was all over the yard and the spa tile work looked messy. In Martin's opinion those items were his company's responsibility, but were part of the finishing to be done after the deck was poured and the pool was lined with marblelite. On March 21, 1987, the Pajaks contracted with another pool company for $4450.00 to finish their pool. Martin denies that Adair abandoned the job, but admits that it took an inordinate amount of time. The Pajaks did not allow him to finish the cleanup, the interior coating and the pool start up because they contracted with someone else. Martin did not contest that the waterfall leaked or that extensive cleanup needed to be done, but disputed that this work should be done before the deck was poured. He contended that the leaks in the waterfall would have been fixed when the finish was done. Martin estimates that between 1974 and 1986, his company completed over fourteen hundred residential pools and approximately five hundred large commercial pools. Martin has been active on various local pool construction industry boards and has no record of prior disciplinary action against his license.
Recommendation Based upon the foregoing, it is, hereby, RECOMMENDED: That Kenneth Martin be found guilty of misconduct, in violation of Section 489.129(1)(m), Florida Statutes, not guilty of the other violations with which he is charged, and that he be required to pay an administrative fine of $500.00. DONE and RECOMMENDED this 2nd day of August, 1988, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 1988. COPIES FURNISHED: David E. Bryant, Esquire 220 East Madison Street, Suite 530 Tampa, Florida 33602 Kenneth R. Martin 3225 North Glenn Drive Orlando, Florida 32806 Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
Findings Of Fact At all pertinent times, respondent Henry J. Tinkler was licensed by petitioner as a swimming pool contractor, holding license No. 0024949, under the name of "Henry J. Tinkler." At one time, Fred C. Charlton worked as a "salesman" of swimming pool construction contracts for a Ft. Lauderdale construction company. When the Ft. Lauderdale company failed, several contracts to build swimming pools remained unexecuted. So that his "sales" would not have been in valid, Mr. Charlton organized Aquapool in late 1978 or early 1979 to step in to the shoes of the Ft. Lauderdale contractor. He has been president of the corporation since its inception. He knew that he could not pull building permits himself; and Mr. Charlton did not involve himself in the actual construction of the pools. Respondent became vice-president of Aquapool and held this office until September of 1979. Respondent has built several pools pursuant to oral agreements with Charlton (acting for Aquapool), to build all pools Aquapool "sold" in Pinellas County. In these transactions, Charlton made a profit and Tinkler made a profit. Respondent never applied for any building permit under Aquapool's name. He always used his own name or the name "Hank's Custom Pools." Respondent never made application to qualify Aquapool as a registered pool contractor in Florida. Neither did respondent make application to qualify "Hank's Custom Pools" as a registered pool contractor. Not uncommonly, contractors do business under fictitious trade names like "Hank's Custom Pools." Eventually one Clay Andrews of Jacksonville made application to quality Aquapool as a swimming pool contractor in Florida until November 17, 1979. Harry George Pugh and Grace L. Pugh signed, on May 19, 1979, a contract with Aquapool for construction of a swimming pool at their Indian Rocks Beach home. Petitioner's Exhibit No. 2. On the building permit application form, Petitioner's Exhibit No. 3, the contractor is listed as "Hank's Custom Pools." The application is dated June 19, 1979. Mr. Pugh never met Mr. Tinkler. Guy Jean and Jane A. Narejo also contracted with Aquapool to build a swimming pool at their home in Largo, Florida. Petitioner's Exhibit No. 4. Mr. Pugh never met Mr. Tinkler. On June 14, 1979, "H. Tinkler" applied for a permit to build the pool. The permit issued the following day. Petitioner's Exhibit No. 5. Willard L. Marks and Helen J. Marks signed, on May 1, 1979, a contract with Aquapool for construction of a swimming pool at their home in Clearwater, Florida. Petitioner's Exhibit No. 6. Mr. Marks never met Mr. Tinkler. H. J. Tinkler applied for a permit to build the pool on June 7, 1979. Petitioner's Exhibit No. 7. Swimming pool contractors ordinarily subcontract electrical work. Sometimes as many as four or five subcontractors participate in the building of a swimming pool. Petitioner's proposed recommended order has been considered and proposed findings of fact have been adopted except where they have been deemed irrelevant or unsupported by the evidence.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner suspend respondent's registration as a swimming pool contractor for sixty (60) days. DONE and ENTERED this 27th day of April, 1982, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Telephone: (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1982. COPIES FURNISHED: Michael Egan, Esquire 217 South Adams Street Tallahassee, Florida 32301 Gerald Nelson, Esquire 4950 West Kennedy Tampa, Florida 33609 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32302 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD DEPARTMENT OF PROFESSIONAL REGULATION/CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. CASE NO. 81-3043 HENRY J. TINKLER, RP 0024949 d/b/a Individual 5243 27th Avenue St. Petersburg, Florida 33710 Respondent. /
The Issue This case concerns the issue of whether the Respondent's license as a certified general contractor should be suspended, revoked, or otherwise disciplined for multiple violations of Chapter 489 of the Florida Statutes. Specifically, the Respondent is charged with having been found guilty of a crime which relates directly to the practice of contracting in violation of 489.129(1)(b)(1979); willfully or deliberately disregarding and violating the applicable building code in violation of Florida Statute 489.129(1)(d)(1979); aiding and abetting an unlicensed person in his evasion of the Contracting Practice Act in violation of 489.129 (1)(e)(1979); knowingly combining or conspiring with an unlicensed person by allowing Respondent's license to be used by said unlicensed person with the intent to evade the provisions of the Contracting Practice Act in violation of Florida Statute 489.129 (1)(f)(1979); and, violating Florida Statute 489.129(1)(j)(1979) by failing to renew his license every two years and by failing to supervise a construction project. At the formal hearing, the Petitioner called as witnesses the Respondent, Frederick G. Gervia, Leroy S. Duncan, John Knezevich, and Evodio Llevado. Respondent testified on his own behalf and also called as a witness Mr. L. Perry Curtis. Petitioner offered and had admitted without objection eight exhibits. The Respondent offered no exhibits into evidence.
Findings Of Fact The Respondent is a certified general contractor holding License No. CG C003114. Respondent is also a registered general contractor having been issued License No. RG 0009802. Respondent's license CGC003114 was delinquent as of December 7, 1981, and had not been renewed for the 1981-83 licensing period. On October 11, 1981, Fiberglass Pools of South Florida, Inc. entered into a contract with Mr. Leroy Duncan to construct a fiberglass pool at Mr. Duncan's residence located at 1385 N.W. 192nd Terrace, Miami, Florida. On November 10, 1981, Respondent applied for a building permit (see Petitioner's Exhibit 2) for the pool construction at Mr. Duncan's home. The Respondent signed the application in the block designated "Signature of Qualifier or Owner-Builder". The application named Gervia Construction Company, address 2810 S.W. 78th Court as the building contractor. Gervia Construction Company was neither the general contractor nor a subcontractor in connection with the construction of the Duncan pool. At the time that he applied for the building permit, Respondent was qualifying agent for Gervia Construction Company, 2810 S.W. 78th Court, Miami, Florida 33155. The Respondent has made no request to qualify under either of his licenses as the qualifying agent for Fiberglass Pools of South Florida, Inc. Neither Fiberglass Pools of South Florida, Inc. or its principals were licensed. Prior to and during construction, Mr. Leroy Duncan had no dealings at all with the Respondent or Gervia Construction Company. Mr. Duncan's dealings were primarily with Douglas Lake of Fiberglass Pools of South Florida, Inc. Mr. Duncan observed a substantial portion of the construction, but was not present during the form work for the deck. At no time did Mr. Duncan observe the Respondent working on the construction of the pool at his home. The only work performed by Mr. Gervia on the Duncan pool contract was to check the plumbing prior to the county inspection. The pool was actually installed by two principals of Fiberglass Pools of South Florida, Inc. and two helpers. These persons were neither supervised nor controlled by the Respondent during construction. During the time period October 11, 1980, through initial construction of the Duncan pool, the Respondent was employed by Fiberglass Pools of South Florida, Inc. at a salary of $350 per week. One of his duties was to pull permits. Although the Respondent was also hired to supervise all field construction, at the time the Duncan pool was contracted for and constructed, his supervisory status had been eliminated. The Respondent performed no supervisory duties in connection with the Duncan pool construction. All payments from Mr. Duncan, including two checks totaling $950 and a cash payment of $6,230 were made to Fiberglass Pools of South Florida, Inc. No payments were made to the Respondent or Gervia Construction Company. Mr. Gervia did not hire or fire any of the persons who worked on the Duncan pool and kept no records relating to payments received or monies spent on the job at the Duncan residence. Subsequent to the pool being completed, substantial problems and flaws in the Duncan pool developed. The following problems were present in the pool: (See Petitioner's Exhibit 5.) Seven patches on South wall, below water line, are rough, discolored and flaking. The largest two are approximately 12" in diameter and 12" x 4". There is a very small depression in the shallow end seat. The pool flange at the ladder is full of depres- sions, making the edge very rough. Flange cracks at three corners are excessive and need repair. The Southwest corner has a vertical crack down the wall about 1'. See exhibits II, III, IV, and V. The pool wall thickness at corners was 3/8" but north, south and west wall were 7/32" to 1/4" thick. Several dark circles about 2" in diameter are located around perimeter flange and show where holes were drilled and patched poorly. . . Four hydrostatic valves seem high to effectively counteract buoyancy, but approved plan approves 1' above floor at deep end plus one valve in main drain [could not check with pool full]. See notes 9, 10 & 11 - William Meyers plan. 13' x 30' x 72" pool actually measures 12'-11" x 29'-8" x 71 1/8" deep. Vertical floor variations in shallow end are about 1 3/4". Seems depressions occur between ribs. A small bow occurs at Northwest corner near surface of water. Area covers about 18" square. Some concrete voids occur beneath pool lip. Pursuant to an agreement with Mr. Duncan, the Respondent and Fiberglass Pools of South Florida, Inc. have repaired those items listed in paragraph 9 in an excellent manner and to the full satisfaction of the owner, Leroy Duncan. On November 17, 1982, the Respondent was convicted in the County Court of Dade County, Florida, of unlawfully aiding and abetting an unlicensed contractor in violation of Section 10-22(h) of the Metropolitan Dade County Code. Adjudication of guilt was withheld and Respondent was required to pay a $500 fine. The Respondent has been a licensed certified general contractor in the State of Florida since November, 1971, and has had no other charges or actions against his license. There have also been no other complaints filed with the Petitioner regarding the Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent be found guilty of those specific violations as set forth in the Conclusions of Law above and that his license as a certified general contractor be suspended for a period of six months and that the Respondent be required to pay an administrative fine of $250.00. DONE and ENTERED this 20th day of July, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, 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 20th day of July, 1983. COPIES FURNISHED: Harold M. Braxton, Esquire 45 Southwest 36th Court Miami, Florida 33135 Frederick G. Gervia 2810 Southwest 78th Court Miami, Florida 33155 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. James Linnan Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
