The Issue Whether Respondent's license as a pool contractor should be disciplined and, if so, what penalty to recommend.
Findings Of Fact At all times relevant hereto John A. Bennett, Respondent, was licensed by the Florida Construction Industry Licensing Board as a residential pool contractor, having been issued license number RP 0033592. He is the qualifying contractor for Quality Pools and Products, Inc., 2912 Forest Wood Drive, Seffner, Florida 33584 (Exhibit 2). On or about January 25, 1988, Evelyn L. Dittmer and James W. Dittmer entered into a contract with Quality Aquatech Pools & Spas (Quality Pools), 1500 N. Parsons Avenue, Brandon, Florida, to replace the liner and repair the bottom of the pool (Exhibit 5). This contract was signed by the Dittmers and Andy Priess, presumably the foreman of Quality Pools. The Dittmers never met Respondent, but they "understood" he owned the pool company. Printed on the bottom of Exhibit 1 is Respondent's state registration number. Employees of Quality Pools arrived on the site and removed the old liner. At this time, the bottom of the pool was in bad shape, but the workers attempted to replace the liner without repairing the bottom of the pool. They were stopped from replacing the liner and departed as they had brought no equipment with which to repair the bottom. Workers returned for the next several days to attempt to repair the bottom of the pool. Due to excessive ground water entering the pool, this task was onerous. The initial contract provided that if it became necessary to establish well points to keep excess water out of the pool, an additional fee of $200 would be required. The Dittmers paid this fee, but well points were not established. An addendum to the contract was prepared for additional work needed to get the bottom of the pool back in shape (Exhibit 1) and was signed by John A. Bennett. This provided for an additional payment of $600, but was not accepted or signed by the Dittmers. The new liner was ultimately installed, but was torn in the process and the unnatural hole in the bottom of the pool was not repaired. Although the Dittmers had paid Quality Pools the full contract price of $2700, which included a $200 charge for installing well points, the work was never satisfactorily completed, and Quality Pools failed to perform the work for which they had contracted. The project was finally abandoned by Quality Pools, and two of the pumps used to dewater the pool were left on the site. At no time did anyone from Quality Pools obtain a permit from Sarasota County where this work was done, and Quality Pools was not licensed to work in Sarasota County (Exhibit 3). After it became evident Quality Pools would not complete the repairs for which they had contracted, the Dittmers hired another contractor to whom they paid an additional $2945 to restore the pool to an operating condition (Exhibit 7).
Recommendation It is recommended that the charges against John A. Bennett arising out of the contract between the Dittmers and Quality Aquatech Pools & Spas be dismissed. RECOMMENDED this 5th day of January, 1990, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of January, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-4839 Proposed findings submitted by Petitioner are accepted with the exception of findings 3, 4, 5, 6, 7, 8, 11, 13, 14, 15, 16 and 17 which are rejected for the reason that the evidence submitted does not show Respondent to be the owner or qualifying contractor of Quality Aquatech Pools and Spas with whom the Dittmers contracted. Findings of fact cannot be founded in uncorroborated hearsay evidence not admissible over objection in civil proceedings. COPIES FURNISHED: Andrea Bateman, Esquire Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Michael S. Edenfield, Esquire 206 E. Mason Street Brandon, FL 33511 John A. Bennett 1500 Parsons Avenue Brandon, FL 33511 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32201 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 N. Monroe Street Suite 60 Tallahassee, FL 32399-0792 =================================================================
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 The Petitioner is the Department of Professional Regulation. The Respondent is Phillip Whitaker, Jr., holder of certified pool contractor license number CP-C008325 at all times pertinent to these proceedings. He is the qualifying agent for the business known as Sunshine State Pools pursuant to requirements of Chapter 489, Florida Statutes. He is responsible for actions of that business relating to construction of the swimming pool which is the subject of this proceeding. His address of record is Miami, Florida. The customer, Ken Gibson, signed a contract with Sunshine State Pools on September 15, 1986. The contract called for construction of a residential swimming pool at 15840 S.W. 155th Avenue, Miami, Florida. The total contract price was $12,700. Testimony adduced at hearing establishes that Sunshine State Pools completed the layout of the customer's swimming pool and the excavation of soil from the proposed pool site by October 1, 1986. These tasks were accomplished under the Respondent's supervision. Metropolitan Dade County issued a building permit for construction of the swimming pool in response to a permit application bearing the signature of Phillip E. Whitaker. The permit and application are both dated October 10, 1986. At hearing, the Respondent acknowledged that initiation of construction prior to pulling the permit and termed this action an "oversight." Based on the candor, demeanor and experience of the Respondent, his explanation of the failure to timely obtain the construction permit is not credited. Initiation of construction for a swimming pool prior to obtaining permits constitutes a violation of part 301.1(n), of the South Florida Building Code and, by stipulation of the parties at hearing, the building code of Metropolitan Dade County. The Respondent was responsible for supervision of the actual pool shell construction. After completion and removal of the wood forms used in the process, steel rods or "rebar pins" required as support during the construction process were not removed. These rods extended some distance above the ground and posed a substantial hazard to Respondent's children while playing. Finally, the steel rods were removed by the customer a week after he requested the Respondent to remove them. Respondent admitted some of these reinforcements could have been left by his subordinates. Respondent admits responsibility for the "back fill" process completed on October 25, 1986. This was originally a responsibility of the customer under the contract as the party responsible for deck construction. The "back fill" process consists of compacting loose soil between the outside of the pool walls and surrounding earth by use of special tamping or pounding equipment. Under terms of the contract, the customer was responsible for construction of a sizeable two part deck surrounding at least sixty percent of the pool's circumference. There now exists a substantial height difference between the coping surrounding the perimeter of the pool and the deck or patio surface. The coping is elevated above the top of the patio approximately two to four inches. As adduced from testimony of Ben Sirkus (stipulated by both parties as an expert in swimming pools and swimming pool construction), coping along the top of the pool walls consists of flagstone rock in conformity with the contract terms. Some of the rocks are cracked. The rocky edge of the coping extends over the pool wall and has a dangerously sharp edge. The sharp edge of the coping overhang could have been avoided by cutting the flagstone coping smooth prior to installation, the acceptable practice among pool contractors. The bottom step to one set of the pool steps has a hazardous 19 inch riser as opposed to the 12 inch distance required by the building code. No hand rail is present. Hollow space under some of the coping stones are the result of either improper installation, dirty cement or sinking of the deck as a result of improper "back filling" upon completion of the pool shell. On one occasion, Respondent admitted responsibility for deficiencies in the pool coping to an employee named Rick Miro. The Respondent further stated to this employee that he intended to do nothing about the problem. Respondent was present during some, but not all, of the coping installation. The "skimmer," the apparatus by which debris is cleared from the pool water, is inoperable as a result of faulty construction of the pool. The failure of the Respondent, who admits to successful completion of approximately 2500 pools with only three complaints, to properly supervise job site activities was the major cause of the pool deficiencies identified at hearing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be placed on probation for a period of two years upon such terms and conditions as may be determined by the Construction Industry Licensing Board and assessed an administrative penalty in the amount of $1500. DONE AND RECOMMENDED this 29th day of February, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5053 The following constitutes my specific ruling on proposed findings of fact submitted by the parties. Petitioner's Proposed Findings Included in finding 2. Included in finding 3. Included in finding 4. Included in findings 5, 6 and 7. Included in findings 5 and 6. Included in finding 8. Included in finding 10 with exception of hearsay statement. Included in finding 11.1 Included in finding 12. Included in finding 11. Included in finding 11. Included in finding 11. Included in finding 11. Rejected as unnecessary. Rejected as unnecessary. Included in finding 11. COPIES FURNISHED: David L. Swanson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Mark D. Press, Esquire 2250 Southwest Third Avenue 5th Floor Miami, Florida 33129 William O'Neil General Counsel 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely Executive Director Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 =================================================================
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to this proceeding, respondent Henry C. Hollenbeck was licensed as a swimming pool contractor. In February of 1980, respondent, doing business as Acme Pools, entered into a contract with Loren Bjornson to construct a swimming pool at Bjornson's residence for a total purchase price of $8,300. Construction of this pool was completed on or about June 30, 1980. Respondent did not obtain a building permit for the Bjornson pool until January 5, 1981. Prior to the construction of a swimming pool in Ft. Walton Beach, a building permit is required. No inspections were performed by the City during construction of the Bjornson pool. Many items, such as the plumbing, walls, drain system, etc., cannot be adequately inspected after construction is completed and the pool is filled with water. Almost immediately upon construction of the Bjornson pool, a crack in the wall at the center of the pool appeared. This was repaired by respondent. Then, in July of 1980, the pool started losing one inch of water per day. In August, 1980, the pool started losing two inches of water per day. Mr. Bjornson repeatedly contacted respondent about this problem, but respondent did not respond to the calls because he felt that Mr. Bjornson had not paid his bills. Apparently, the financial dispute concerned work on a neighbor's driveway for which Mr. Bjornson was never billed. On three different occasions, Mr. Bjornson had not paid his bills. Apparently, the financial dispute concerned work on a neighbor's driveway for which Mr. Bjornson was never billed. On three different occasions, Mr. Bjornson retained another pool company to make repairs on his pool to prevent it from leaking. The three repair bills amounted to slightly over $200 and none of the repair jobs could be guaranteed. In order to make a guarantee, the service and sales manager of Aqua Pools estimated that repairs amounting to $11,365 would be necessary. It was his opinion that the repair work would involve a major rebuilding of the pool, including the removal of the pool deck and tiles and the reinforcement of walls. At the time of the hearing, the Bjornson pool was not presently leaking. By contract dated August 10,1979, respondent agreed to install a swimming pool for Mr. and Mrs. Walter Parker. Construction was competed in October of 1979 and leaking problems began almost immediately. Respondent came back on at least four occasions to do the repair work. The corners were patched and other repair work necessitating the complete draining of the pool was performed. Each time, the Parkers were charged for labor and parts. At the time of the hearing, the Parker pool still leaked approximately one inch per day. It was estimated that it would cost about $1,000 to repair the Parker pool adequately so that a one-year warranty against leaking could be given. Respondent testified that he did not respond to Mr. Bjornson's calls for repair work because Mr. Bjornson still owed him money. He believed the Parkers also owed him money. He felt that he could repair both pools adequately for a nominal sum of money.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that petitioner find respondent guilty of violating Sections 489.129(1)(d) and 489.129(1)(m), Florida Statutes, and suspend his pool contractor's license for a period of one (1) year. DONE AND ENTERED this 16th day of December 1981 in Tallahassee, Florida. DIANE D. TREMOR 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 16th day of December 1981. COPIES FURNISHED: John O. Williams, Esquire 547 North Monroe Street Suite 204 Tallahassee, Florida 32301 Henry C. Hollenbeck Rt. 1, Box 196 F-G, Circle Drive Ft. Walton Beach, Florida 32548 Mr. Samuel Shorestein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
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 Based on the evidence presented, the following facts were found: At all times pertinent to this case, Respondent held two active contractor's licenses issued by the State of Florida, RP 0033354 and CP 015029. Respondent's current address is 1316 Hoffner Avenue, Orlando, Florida 32809. At all times pertinent to this case, Respondent owned the firm Family Pools and did business as a pool contractor under that name. At no time did Respondent ever qualify his firm, under whose name he did business, with the Florida Construction Industry Licensing Board (CILB). On some date not specified, in June, 1980, Alphonse J. and Pauline L. Rodier contracted with Family Pools to build a pool at their residence at 601 Michigan Avenue, Englewood, Sarasota County, Florida for a price of 6,700. The contract was signed by Respondent for Family Pools. The pool price was to include a screened enclosure and deck, and the entire package was to be completed by July 4, 1980. The pool was paid for by two checks from Coast Federal Sayings and Loan Association in Sarasota from the proceeds of a home improvement loan and by a final check in the amount of $900 from the Rodiers, direct, on October 13, 1980. Respondent subcontracted the pool enclosure to Climatrol Screen Company of Enqlewood, Florida, for $2,065 but failed to pay this subcontractor. As a result, on November 26, 1980, Climatrol filed a lien against Rodier's property which was released only when the Rodiers paid an additional $790 which had not been satisfied by the Respondent. Respondent had satisfied part of the debt to Climatrol by relinquishing title to a truck he owned. On July 3, 1980, Family Pools contracted with Elmer J. and Carla T. Taylor, of Bunnell, Florida, to build an above-ground pool on their property for $4,800.00. The pool was to have a one year warranty against defective parts and a 20-year prorated replacement policy. According to the contract, the pool price included the pump, liner, filter, and walls, along with all other parts. The pool was constructed by employees of Family Pools about three or four weeks after the contract was signed. Not long after the pool was completed and filled, Mr. Taylor noticed that the vinyl liner was protruding out beneath the bottom of the metal retaining wall. His calls to Family Pools were never answered by Respondent with whom he asked to talk and repair work on this problem was not accomplished by the Respondent or Family Pools. Mr. Taylor had to do the work himself and Family Pools would not honor the warranty. Respondent offers the completion certificate executed by the Taylors on August 21, 1980,as evidence the pool was installed properly and the Taylors were satisfied. Mr. Taylor indicates he signed that certificate in blank under pressure from Respondent's agent, who cajoled him into doing it on the basis that if he did not, Family Pools could not be paid by the finance company under the installment sales contract. Also, during the period of the one year warranty, the pool pump burned out. Mr. Taylor had to replace that and pay for it himself, as the warranty was not honored. Respondent contends only a 90-day warranty on the pump, but that appears nowhere in the contract, which, in its description of the pool covered by the one year warranty, includes the pump. On August 29, 1980, Family Pools contracted with Janice Conover to build a swimming pool at her home in Venice, Florida for $4,780. The pool was to be completed approximately 30 days after excavation at the site. Between August 29, 1980, and December, 1980, Ms. Conover paid Family Pools a total of $4,741 by checks which were endorsed by "P. Vescera d/b/a Family Pools" or "Pasquale M. Vescera." On October 2, 1980, Respondent pulled a permit No. 7330- N from the Sarasota County Building Department, in his own name, to construct Ms. Conover's pool. In February, 1981, when the pool was only about fifty percent complete, Respondent ceased work on Ms. Conover's pool without giving her any notice or reason therefor. When Respondent stopped work, he had only dug the hole for the pool. The liner had been delivered but was not installed. The braces were there but not affixed, notwithstanding Ms. Conover had paid almost in full for the pool. As a result, she contracted with Richard Thompson, Respondent's former employee, to finish the work Respondent had started because at this point she could not find the Respondent. Thompson installed the brackets, the liner, and the deck. She had to pay extra for the pump, the chemicals, and the sweep--all of which, except for the sweep, she had paid for when she paid Respondent's price. Respondent never returned to complete Ms. Conover's pool. On July 7, 1980, Family Pools contracted with Robert A. and Florence L. Peipher to build a pool at their property in Port Charlotte, Florida, for a price of $6,900. Between July 7 and November 28, 1980, the Peiphers paid Family Pools, by checks, the sum of $6,905. All checks-were endorsed for deposit, "P. Vescera d/b/a Family Pools." The pool price was to include a screened pool enclosure and in September 1980, Family Pools contracted with Climatrol to build the screened enclosure for Peipher's pool for $1,807. Respondent and Family Pools failed to pay Climatrol for the enclosure and as a result, Climatrol filed a lien against the Peipher's property for $1,807 which was satisfied on March 9, 1981, by the Peiphers who paid Climatrol the amount owed. On March 2, 1981, the Peiphers filed a complaint against Respondent with the Contractor License Division of the Charlotte County Building Department because of Respondent's failure to pay Climatrol and the resultant cost to them. As a result of this complaint and the subsequent investigation into the allegations, the matter was referred to the Charlotte County Building Board which, at its meeting on May 7, 1981, after notice to Respondent, voted to revoke Respondent's permit privileges in Charlotte County until he made restitution to the Peiphers and to notify the State of Respondent's actions requesting state action against his license. Respondent suffered severe financial setbacks just about the time of these incidents. He was hospitalized for a period of five or six weeks and upon his return to his business found that he had been "robbed" of approximately $50,000 worth of fully paid for inventory. When he reported the shortage to the local law enforcement officials, they told him that since there was no evidence of a breaking in, they could do nothing about it. In addition, he could not recover from his insurance company for the same reason. There was no evidence other than Respondent's sworn testimony that there was a shortage or that he reported the loss to either agency. Respondent has been in the pool business in Florida for five years and in New Jersey for 32 years before that. He feels the cause of his problem is the fact that he trusted the people who worked for him who took advantage of him. During the entire period of time he was in business in Florida he took no money from the company for his personal use, living instead on income from a mortgage he owned in New Jersey. He subsequently filed for bankruptcy on March 9, 1981. The $15,000 in current accounts receivable he had on the books at that time was utilized in the bankruptcy proceeding to pay creditors. He got-none of it. He is now working in Orlando, Florida, for a pool rehabilitation company owned by his wife and her father. Respondent alleges that on July 15, 1980, he paid Richard Thompson $1,100 to complete work started on several pools, including that of Ms. Conover. Review of the prior findings of fact, however, shows that the contract with Ms. Conover was not entered into until approximately 45 days after Respondent supposedly made this payment to cover the work left undone on her pool. In light of that development, I find his contention completely without merit or basis in fact. Respondent admits that people were hurt as a result of his actions and he regrets this. However, he claims these few incidents are insignificant when compared with the over 500 satisfied customers he alleges he has served over the years. Finally, Respondent contends that early in 1980, after being advised that he had passed the test to be a certified pool contractor, he wrote to Petitioner and, after advising how he was registered and doing business, asked if he needed to make any changes in license registration. He did in fact do this and received no reply. He thereafter assumed he was acting correctly in that regard and that appears to be a justified assumption.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent's license as a contractor be suspended for two years and that he be assessed an administrative fine of $500. RECOMMENDED this 16th day of May, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 16th day of May, 1983. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Pasquale M. Vescera 1316 Hoffner Avenue Orlando, Florida 32809 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Ronald B. Haendiges is a registered general contractor in the State of Florida holding license number RG 0039437. The Respondent was so licensed at all times material to the Administrative Complaint and at the time the Administrative Complaint issued. On May 29, 1981, the Respondent contracted with Mary Raney to put into operation a pool located at 479 East Main Street, Longwood, Florida, for a contract price of $4,025. Said pool had been partially floated out of the ground. The contract between Raney and the Respondent specifically provided that the Respondent would perform the following: Knock off existing tile; Reform beam; Reset new level of skimmer; Pressure-test existing plumbing and repair as needed (but not to exceed $300 of extra cost); Reform new deck area (450 square feet) Fill as needed; Place wire mesh in new deck area and pour new deck; Retile waterline, 6 by 6 bullnose; Re-(illegible) cracked area on bottom of pool; Recement pool with Pool-tight; Put cool deck topping on new deck area; Reform and pour new steps and tile step edge with matching tile; Replace pump and motor with new comparable. The Respondent commenced work in workmanlike fashion on or about May 29, 1981. As work progressed on the pool, he received various payments from Raney in accordance with their contract. The Respondent received a total of $2,750 of the $4,025 contract price. On or about July 13, 1981, the Respondent, nearing completion of his work, filled the swimming pool with water. At that time, additional cracks and leaks developed in the sides and bottom of the Raney pool. when these cracks developed, Raney refused to pay any of the balance of the contract price, or a total of $1,275. At that time, all work covered under the contract was completed, to include reinforcing the cracked areas with steel, except that the pool deck had not been poured. A square hole at one end of the pool and a larger area at the shallow end had not been finished. The cracks in the pool were created when the pool was filled with water because a void had been created beaten the bottom of the pool and the foundation of the pool when the pool floated up out of the ground. when the weight of the water was placed in the pool, it broke out the bottom of the pool. The problem with this void was not anticipated by Raney, the pool's owner, or the Respondent. Harvey's Bobcat Service provided fill dirt and labor to the Respondent for repairs on the pool, which were not paid for, and a lien of $382 was filed against the Raney property. Dove Henson performed marcite work and pool decking on the Raney pool for the Respondent. The Respondent was to pay Henson $400 for the work performed and, as of the date of the hearing, had not done so. The Respondent purchased Pool-tight on two occasions from Contractor's Supply of Orlando, Florida. On July 8, 1981, the Respondent purchased $275.60 worth of Pool-tight. On July 11, 1981, the Respondent purchased another $78 worth of Pool-tight from Contractor's Supply. On July 10, 1981, the Respondent paid $275.60 on this bill. This left a remaining balance of $78 due Contractor's Supply, which was not paid. Raney subsequently contracted with another contractor to repair the pool's bottom. This contract between Mary Raney and Reid Baker provided that Baker would perform the following work for a contract price of $2,780: Remove cracked bottom; Install or replace dead line and rock bottom and steel; Re-Gunite bottom and walls where necessary; Check all piping and repair; Marcite entire pool; Furnish and install grab rails; Recoat cool deck where necessary for a first-class job; Reinstall owner's filter, pump, valve, etc.; Clean up pool debris. The contract between Raney and the Respondent did not call for the replacement of the bottom of the pool, and the replacement of the bottom of the pool was not anticipated in said contract. The standard building code of the City of Longwood requires that a contractor obtain a building permit prior to construction or repair of a pool.
Recommendation Having found the Respondent, Ronald B. Haendiges, not guilty of violating Section 489.129(1)(h), Florida Statutes, the Hearing Officer recommends that this charge be dismissed. Having found the Respondent guilty of violating Section 489.129(1)(d), Florida Statutes, by failing to obtain a permit as required by the local building codes, the Hearing Officer recommends that the Respondent receive a letter of reprimand. DONE and RECOMMENDED this 15th day of April, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 15th day of April, 1983. COPIES FURNISHED: Stephanie A. Daniel, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Ronald B. Haendiges Post Office Box 388 Winter Park, Florida 32790 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 J. K. Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
Findings Of Fact When the third vinyl liner Brenda Hanna had installed in her swimming pool also ripped, she decided concrete would serve better. A friend referred her to respondent Richard Cobb. Mrs. Hanna and Mr. Cobb entered into a written agreement on March 10, 1977, by which Mr. Cobb undertook, among other things, to cement the pool walls and bottom, in exchange for eighteen hundred eighty dollars ($1,880,00). Plumbing was not covered by this agreement. Approximately one month later two workmen began on the project. Work progressed sporadically. Mr. Cobb himself helped remove the vinyl wall, remove aluminum plates, widen the existing excavation and replace the aluminum plates with the intention of using them as part of the forms for pouring the concrete swimming pool walls. Mr. Cobb also put some steel bars in place, After several telephone calls, on October 17, 1977, Mrs. Hanna wrote respondent saying he had 15 days in which to resume work and 45 days thereafter to finish. On or about November 1, 1977, respondent appeared at the job site. The last day he worked on the project Mrs. Hanna told Mr. Cobb she would call him when she had gotten the plumbing finished. Mrs. Hanna never told Mr. Cobb not to finish the work he began for her. On or about March 10, 1977, Mrs. Hanna wrote a check in favor of DLC, a contracting company, in the amount of five hundred dollars ($500.00), which she intended as partial payment under the contract she entered into on March 10, 1977. Two weeks after work began, Mr. Cobb asked Mrs. Hanna for more money, saying that DLC had charged him five hundred dollars ($500.00) for getting the job for him. Mrs. Hanna gave him one hundred dollars ($100.00) at that time, After Mrs. Hanna investigated, she again discussed what had happened to the first five hundred dollars ($500.00) with Mr. Cobb who conceded that some bills were paid with the money. On another occasion, Mrs. Hanna advanced one hundred fifteen dollars ($115.00) which Mr. Cobb used to buy steel. Before beginning work Mr. Cobb, who held individual swimming pool servicing contractor's license No. RP 2997 from March 17, 1977, till June 30, 1977, secured building permit No. 77-338 to repair Mrs. Hanna's swimming pool. John F. Viking, an investigator in petitioner's employ since February 15, 1971, issued a notice of violation to Mr. Cobb in 1971 or 1972, when he was told that Mr. Cobb had been contracting without a license. In 1973, on the basis of similar information, he filed a complaint with the state attorney's office which he understood resulted in Mr. Cobb's conviction and probation. Lester A. Davis, a long time employee of the City of Gainesville and presently its acting building official, visited Mrs. Hanna's residence after Mr. Cobb had begun work and asked Mr. Cobb to show him engineering plans. In Mr. Davis' opinion, the plans Mr. Cobb showed him were not being followed. Mr. Davis told Mr. Cobb that he could finish the job only if he associated a contractor licensed to build swimming pools. Mr. Davis inspected and discovered that the bottom drain had been installed. No other plumbing was required to be done before cementing the pool walls and bottom.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner suspend respondent's license for one year. DONE and ENTERED this 28th day of November, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Michael Egan, Esquire Post Office Box 1386 Tallahassee, Florida 32302 Richard Cobb, Esquire 1238 Southest 18th Terrace Gainesville, Florida 32601 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. CASE NO.: 78-1553 RICHARD COBB, RP 0029977, 1238 S. E. 18th Terrace, Gainesville, Florida 32601, Respondent. /
Findings Of Fact Petitioner, in conjunction with the Construction Industry Licensing Board, is the state agency charged with the responsibility to prosecute administrative complaints pursuant to Chapters 120, 455 and 489, Florida Statutes and rules and regulations promulgated thereunder. During times material, Respondent, Donald F. Colombo, was licensed as a certified pool contractor in Florida, having been issued license number CP 15343. During times material, Respondent's license was registered with Petitioner as the qualifying agent for National and Spa Builders, Inc. (National). On or about May 27, 1988, National, the entity which Respondent was the qualifying agent, contracted with Diane and Leonard Cline to construct a pool at the Cline's residence in Tarpon Springs, Florida, for the contract price of $9825.00. The Clines financed the construction of the pool by placing a security interest against their property for the full purchase price of the pool. The full contract price of $9825.00 was paid to National and after National completed approximately 40% of the pool construction, National abandoned the project without notice or just cause. National never completed construction of the pool and the Clines obtained a homeowner's building permit and completed the pool project at an additional cost of approximately $5,000.00. Additionally, liens were filed against the property of the Clines by Florida Mining and Materials Concrete Corporation in the amount of $682.00 and Jim's Custom Pool Work in the amount of $135.00. The above-referred liens were for work performed and/or materials supplied in the construction of the Cline pool project by National. On or about May 20, 1988, National entered into a contract with Ben and Linda Thomas to construct a pool at their residence in Lutz, Florida, for the contract price of $9000.00. Following commencement of construction, National received approximately 60% of the contract price ($5,400.00) and later abandoned the project without notification or just cause to the Thomas's. The Thomas's subsequently completed their pool at an additional cost of approximately $1,000.00 over and above National's original contract price. On or about January 11, 1989, Respondent was disciplined by the Hillsborough County Building Department, Building Board of Adjustments, Appeals and Examiners for alleged violation of local laws including abandoning a construction project; alleged willful and deliberate disregard of applicable building codes; allegedly allowing liens to be filed against a project for which he was the contractor and for allegedly diverting funds from a construction project. Respondent was assessed an administrative penalty of a 30-day suspension of his permitting privileges by the Hillsborough County Building Department. Respondent was the qualifying agent for National during the 90-day period commencing April 1 through June 30,1988. Respondent formally terminated his status as qualifying agent for National and also tendered his resignation from that entity based on difficulties that he ecountered respecting his attempts to serve as qualifier to include his inability to control the finances, to be kept apprised of accounts receivable, accounts payable, an inability to select contractors and material suppliers and to assure that the payments for such services were timely remitted. Prior to Respondent's engagement with National as a pool salesman and later as qualifier, National was a well reputed pool company, having been in existence in excess of twelve years. National annually constructed approximately 750 pools with accounts receivable in the $10 to $12 million dollar range. Prior to April 1988, National was a secure and stable company that regularly paid its bills and grew at a rapid pace. While engaged with National, Respondent was unaware that there was internal collusion among its owners respecting diversion of funds. Respondent repeatedly attempted to gather a handle on the internal financial operations of the company and on each occasion he was rebuffed. within the first month that Respondent qualified National, he began to seek advice as to the proper means of salvaging his license by contacting a local attorney, the local office of Petitioner, and Petitioner's headquarters in Tallahassee seeking the proper procedures for ending his relationship with National. This came about once it became apparent that he was unable to effectively manage or otherwise perform the functions of a qualifying agent. Respondent formally severed his relationship as qualifying agent for National on June 30, 1988. Subsequent to ending his status as qualifying agent for National, Respondent assisted the Clines in the completion of their pool. Mr. Cline specifically recalled that Respondent assisted him in locating other subcontractors and with the purchase of plumbing supplies for his pool without remuneration from the Clines. (Petitioner's Exhibit 1F; Tr. 30-32.) Likewise, Respondent also assisted the Thomas's in completing their pool. (Tr. 45, lines 23-24.) Respondent demonstrated compassion and a proper concern which was evident based on the testimony of the complaining witnesses who appeared at the formal hearing. Significantly, Petitioner's investigator, H. Dennis Force, related that Respondent assisted him in his investigation of the subject charges. To this end, Respondent supplied him with the names of all customers with which National had contracts with during the period that he was National's qualifying agent. It is unfortunate that Respondent was not able to control the fiscal policies of National during the period that he was the qualifying agent, although from a review of the evidence herein, it is apparent that this was not based on his failure to attempt to gain control over the situation as a qualifying agent, but was rather based on the collusion of National's higher-ups who was determined to keep Respondent in the dark. Noteworthy was the fact that within a three-month period, National changed banks at least eight times. It would have been, at best, difficult if not impossible for Respondent to have gained a handle on National's financial condition and to do the things with which a qualifying agent is charged with during the short period during which Respondent was National's qualifying agent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a Final Order imposing an administrative fine against Respondent in the amount of $1,000.00 and placing his certified pool contractor's license on probation for a period of six (6) months. 1/ DONE and ENTERED this 7th day of March, 1991, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 7th day of March, 1991.
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
