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
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaints dated June 3, 1998, and December 23, 1998, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency responsible for investigating and prosecuting complaints made to the Department for violations of Chapter 489, Part I, Florida Statutes. Sections 489.131(7)(e) and 455.225, Florida Statutes (1997). Pursuant to Section 489.129(1), Florida Statutes (1997), the Construction Industry Licensing Board ("Board") is the entity responsible for imposing discipline for any of the violations set forth in that section. At all times material to these proceedings, Mr. Esquinaldo was a licensed swimming pool contractor, having been issued license number CPCO50527 by the Board, and he was the qualifying contractor for Challenger Pools, Inc. ("Challenger Pools"). Mr. Esquinaldo has been a licensed swimming pool contractor since 1987. In that time, Mr. Esquinaldo has been cited by the Department once, in June 1992, and Mr. Esquinaldo paid an administrative fine of $50.00 for the violation, which was failure to obtain a final inspection after completing a swimming pool. At the times material to these proceedings, Challenger Pools had several offices in south and central Florida, and built approximately 1,500 pools each year. Mr. Esquinaldo was the only qualifier for the company. The building code that governed each of the projects at issue herein was the South Florida Building Code, 1996 Edition. This Code required a number of inspections: For the structural portion of the pool, three inspections were required: the pool steel, the pool deck, and the final inspection. For the plumbing portion of the pool, three inspections were required: the main drain, pool piping, and the final inspection. For the electrical portion of the pool, three inspections were required: the electrical grounding of the steel structure, the pool deck grounding, and the final inspection. In addition, a final inspection was required for any fencing to be installed. It is the responsibility of the pool contractor to call for the required inspections for work over which it has responsibility. The South Florida Building Code, 1996 Edition, also provided that building permits, including permits for the construction of swimming pools, would expire if 180 days elapsed without the contractor calling for an inspection. It is not unusual in the pool contracting industry for inspections to reveal code violations. The contractor is, however, expected to correct the violations and any other deficiencies noted in the inspection reports. During the times material to these proceedings, it was the policy of Challenger Pools that, whenever a customer threatened a lawsuit or filed a lawsuit, it would stop work immediately on the customer's pool and it would cease all direct communications with the customer. Work would recommence at the direction of Challenger Pools' attorney. This policy was adopted on the advice of Challenger Pools' attorney. DOAH Case No. 98-3713 - Irving Jovellar On May 7, 1996, Challenger Pools, Inc., and Irving Jovellar entered into a Swimming Pool Construction Agreement for the construction of a swimming pool and spa at 188 Truxton Drive, Miami Springs, Florida. Addenda to the agreement were executed on June 6 and 22, 1996, and on September 6, 1996. The contract price was $14,000.00, with $1,600.00 added pursuant to the September 6, 1996, addendum. The full contract price of $15,600.00 was paid by Mr. Jovellar, and the check for the final payment was processed by the bank on October 2, 1996. 2/ On June 11, 1996, Challenger Pools applied to the City of Miami Springs, Florida, for a building permit for the pool. Challenger Pools began work on Mr. Jovellar's pool on June 13, 1996, and the swimming pool, plumbing, and electric permits were issued on July 12, 1996. Challenger Pools worked on Mr. Jovellar's pool throughout the summer of 1996. The steel installation was approved on July 19, 1996, and the slab was approved September 12, 1996. The pool was plastered on September 28, 1996, and the pool was filled with water and operating on September 30, 1996. 3/ In a letter dated September 26, 1996, Mr. Jovellar's attorney notified Challenger Pools that the gate to Mr. Jovellar's fence had been damaged during the pool excavation and that Mr. Jovellar expected to be compensated for the damage. Challenger Pools advised Mr. Jovellar that the excavator, Tom Waters, was responsible for the damage and that he should look to Mr. Waters for compensation. Mr. Jovellar filed suit against Mr. Waters in small claims court, served Mr. Waters in early February 1997, and recovered approximately $450.00 in damages from Mr. Waters. Mr. Jovellar's pool did not pass the plumbing final inspection dated November 8, 1996, because the pool heater was not properly installed. Challenger Pools renewed the structural and plumbing permits on July 24, 1997. In a letter dated October 30, 1997, Mr. Jovellar's attorney notified Challenger Pools that, if it did not correct the defects in the swimming pool, suit would be filed against Challenger Pools. Challenger Pools responded in a letter dated November 6, 1997, that it was prepared to correct the problems with the pool. Challenger Pools further advised that, because the pool permits had expired, it would apply to renew the permits so that work could begin. Challenger Pools renewed the structural, plumbing, and electrical permits on January 19, 1998. Challenger Pools went back to work on Mr. Jovellar's pool in January 1998. The next inspections of Mr. Jovellar's pool took place between July 15, 1998, and January 6, 1999, the date on which the pool passed its final inspection. Notwithstanding the plumbing inspection conducted on November 8, 1996, and the permit renewal on July 24, 1997, Mr. Esquinaldo testified that, on the advice of its attorney, Challenger Pools ceased work on Mr. Jovellar's swimming pool in early October 1996, when it received the September 26, 1996, letter from Mr. Jovellar's attorney regarding the broken fence gate. On the basis of Mr. Esquinaldo's testimony, it is established that Challenger Pools ceased work on Mr. Jovellar's pool in early October 1996. The evidence also establishes that work recommenced in early 1998. Accordingly, Challenger Pools failed to work on Mr. Jovellar's pool for a period in excess of 90 consecutive days between October 1996 and January 1998. The evidence further establishes that Challenger Pools ceased work because Mr. Jovellar threatened a lawsuit to recover damages for repair of a fence damaged by the person who excavated the pool. Under the circumstances, the threatened lawsuit did not constitute just cause for Challenger Pools' failure to work on Mr. Jovellar's pool between October 1996 and January 1998 even though Challenger Pools stopped work on the advice of its attorney; Challenger Pools advised Mr. Jovellar to proceed against the excavator to recover for the damages to the fence, which Mr. Jovellar did in early 1997. The Department did not present evidence sufficient to establish that Challenger Pools failed to work on Mr. Jovellar's pool for 90 consecutive days subsequent to January 1998. As of October 6, 1999, the Department had expended $160.52 in investigative costs and $2,433.90 in prosecutorial costs with respect to Mr. Jovellar's complaint. DOAH Case No. 99-2654 - David Casadona On September 30, 1996, Challenger Pools entered into a Swimming Pool Construction Agreement with David Casadona for construction of a residential swimming pool at 14910 Southwest 70th Place, Davie, Florida. The full contract price was $9,000.00, and Mr. Casadona made the final payment on the pool in March 1997. Mr. Casadona was building a house at this address, and, a representative of Challenger Pools advised Mr. Casadona that construction on the swimming pool would begin after construction on the house was completed. Mr. Casadona moved into the new house on November 6, 1996, and Challenger Pools began excavating the pool approximately a week and a half later, in mid-November 1996. Challenger Pools submitted applications to the Town of Davie for the electrical, plumbing, and structural permits for Mr. Casadona's pool on November 19, 1996. The permits to construct the swimming pool were issued on January 2, 1997. Mr. Casadona contracted separately for installation of a fence around the pool, and, pursuant to the agreement between Mr. Casadona and Challenger Pools, Mr. Casadona was responsible for ensuring that the fence met local building codes. Challenger Pools was not licensed to install fences, and the installation of a fence was not included in any of Challenger Pools' swimming pool construction agreements. The permit for the fence was issued January 2, 1997. The Town of Davie conducted a special inspection of Mr. Casadona's property on December 18, 1996, before the permits were issued for construction of the pool, to determine whether a fence existed on the property and the height of the fence, if one existed. At that time, the inspector discovered that the pool had already been excavated and that the rebar was in place. The inspector also noted that part of the footer for the rear patio of the house had been undermined. A permit is required before a pool is excavated, but it is not unusual for a pool contractor to begin excavation before the permit is issued. An inspection of the plumbing pool main drain was conducted on January 3, 1997, and approved without comment. An inspection of the electrical pool grounding was conducted on January 3, 1997, and approved without comment. An inspection of the structural pool steel was conducted on January 6, 1997. The pool steel was approved with an exception. The inspector noted that an area under the existing structure had been undermined, and Challenger Pools was directed to pour the gunnite for the pool as soon as possible and to consult an engineer for directions on how to return the existing structure to its original specifications. The inspector further required that an engineer provide certification that the existing structure had proper support in the area in which it was undermined. The face of the footer under the structure was exposed, and the earth underneath the structure was undermined about three or four inches; the undermining did not threaten the integrity of the existing structure. An inspection of the plumbing pool piping was conducted on January 16, 1997, and approved without comment. An inspection of the electrical pool deck bonding was conducted on January 27, 1997, and disapproved with the comment that all metal within 5 feet of the water must be bonded. An inspection of the structural pool deck steel was conducted on January 27, 1997, and disapproved with the comment that the item was not ready for inspection because the form boards were not completed. The electrical pool deck bonding was inspected on February 3, 1997, and approved without comment. The structural pool deck steel was inspected on February 4, 1997, and approved without comment. Challenger Pools worked on Mr. Casadona's pool from November 1996 through March 1997, when Challenger Pools applied the plaster to the pool and filled the pool with water. Once the pool was filled, Mr. Casadona began using the pool. Because Mr. Casadona had not installed the fence when Challenger Pools plastered the pool and filled it with water, Challenger Pools created a temporary enclosure for the pool by surrounding the pool with an orange plastic barrier. A plumbing pool final inspection was conducted on April 15, 1997, and disapproved because no approved plans or permit cards were available on-site. An electrical pool final inspection was conducted on April 15, 1997, and disapproved with the comment that no approved plans or permit cards were available on the site. Between April 1997 and October 1997, Challenger Pools corrected the violations noted on the inspection reports and made several service calls to work on Mr. Casadona's pool. By October 1997, Mr. Casadona had installed the required fence, but the gate was not in compliance with the South Florida Building Code. Challenger Pools requested a replacement set of plans for Mr. Casadona's pool on October 3, 1997, and they were provided on October 7, 1997. A plumbing pool final inspection was conducted on October 8, 1997. The work was disapproved because the pool's main drain was missing one screw. On October 8, 1997, an electrical pool final inspection was conducted. The electrical work was disapproved with seven comments identifying violations of the National Electric Code, as follows: NEC 110-3B Listed and labeled (insulate unused lead) NEC 680-22(a)-(l) Bond all metal within 5' x 12' (must see bond at handrail) NEC 110-16(a) Working clearance at service and controller NEC 680-20-B-1 Must see potting compound (5) NEC 680-6(A)(2)+(3)+(1), Receptacle (B)-(1), Light (6) NEC 680-10 UG. wiring not permitted within 5' of pool (8) [sic] Speaker wire not approved Item (1) refers to insulating the unused leads on the pool light. Item (2) refers to the lack or apparent lack of bonding on a handrail installed in the pool deck. Item (3) refers to the requirement that there be sufficient working clearance in front of the pump controller, which is a time switch transformer; with respect to this item, a hedge had been planted in front of the pool pump and filter by someone other than Challenger Pools, the shrubs blocked access to the pump controller, and Mr. Casadona refused to move the shrubs. Item (4) refers to the requirement that potting compound be used in the wet light niche in the pool to prevent the chemicals in the water from corroding the ground bonding connection; with respect to this item, Richard Boyette, a licensed professional engineer, certified in a letter to the Town of Davie dated April 3, 1998, that potting compound had been properly placed in the lighting niches in the pool. Item (6) refers to wiring being installed within 5 feet of the pool. Item "(8)" refers to speaker wires that are not allowed in the pool area. With respect to items (6) and "(8)", the violations were not the responsibility of Challenger Pools because they related to wiring for Malibu lights and two speakers installed by someone other than Challenger Pools. A structural pool deck final inspection was conducted on October 8, 1997, and approved without comment. A structural pool steel inspection was conducted on October 8, 1997, and disapproved with the comment that the pool had been completed without a pool steel inspection. In a letter dated April 3, 1998, Richard Boyette, a licensed professional engineer, certified to the Town of Davie that the pool steel had been properly placed according to the permit plans. A structural fence final inspection was conducted on October 8, 1997, and disapproved with the comment that "all fences and gates must be 5' high for yards with pools." The fence contractor was identified in the inspection report as Cercas Isla - Island Fence. Challenger Pools did not call for any inspections on Mr. Casadona's pool after it corrected the deficiencies noted in the October 1997 inspection reports until January 1999 because Mr. Casadona did not correct the violations for which he was responsible, that is, the fence gate height, the shrubs in front of the pool pump, and the electrical wires for the Malibu lights and speakers. Mr. Casadona was aware of these violations as a result of the October 8, 1997, inspection reports. Mr. Casadona and Challenger Pools' personnel were in regular contact during the October 1997 to January 1999 hiatus. Challenger Pools repeatedly asked Mr. Casadona to correct the fence gate height so that a structural pool final inspection could be approved and to remedy the electrical violations for which he was responsible. Challenger Pools let the situation remain unresolved because, on the basis of conversations Challenger Pools' personnel had with Mr. Casadona, there was no reason to believe that Mr. Casadona would not cooperate and correct the deficiencies. As of January 1999, Mr. Casadona had not made the required corrections. He did, however, file a complaint with the Department. At that time, Challenger Pools' attorney advised the company to finish Mr. Casadona's pool and close out the permit. Based on this advice, Challenger Pools renewed the permits and called for the final inspections. A plumbing pool final inspection was conducted on January 25, 1999, and approved without comment. A structural fence final inspection was conducted on January 25, 1999, and disapproved with the comment that "[t]here is no reference to a fence anywhere in the pool plans. The front gate is not self closing, self latching and is about 6" from being the 5' heighth [sic] requirement." An electrical pool final inspection was conducted on March 9, 1999, and disapproved with the comment that "working clearance violated at pump controller." The electrical final inspection was disapproved because Mr. Casadona would not remove the shrubs he had planted in front of the pool pump. An electrical pool final inspection was conducted on March 22, 1999, and approved, but the inspection report contained the comment that "working clearance violated at pump controller." A structural pool deck final was conducted on March 24, 1999, and approved with a comment that it had already been approved by another inspector. A structural fence final inspection was conducted on March 24, 1999, and disapproved with the comment that the fence was "not ready[;] the gate and latch are not 5' high." A structural fence final inspection was conducted on March 26, 1999, and rejected because the gate was not 5 feet high and was not self-closing and self-latching, as required by ordinance. The inspector also noted that no plan or permit for the fence was posted on the property and that no one was at home at the time of the inspection. A structural pool steel inspection was conducted on March 31, 1999, and disapproved because no one was at home and neither the plans nor the permit cards were posted. The inspector noted, however, that the pool was completed. In a letter to the Town of Davie dated February 18, 1999, and received by the Town of Davie on April 12, 1999, Mr. Boyette stated that the "steel and main drain inspection was bypassed due to a lack of communication on the above referenced pool. However, steel and main drain were in per code." An electrical pool final inspection was conducted on April 14, 1999, and disapproved with the comments "disconnect required for pump motor ahead of controller" and "unused transformer tap to be insulated at connection end." These were two items that the electrical inspector did not catch during the March 22, 1999, inspection. A structural pool final inspection was conducted on April 19, 1999, and was approved with the comments that the engineer's letter should be consulted regarding the missed pool steel inspection. A note was made in the report of the structural pool final inspection conducted on April 19, 1999, stating "Fence Final" with the comment that the fence and wall and existing front gate were 5 feet high and self-closing and self-latching. The permit for Mr. Casadona's pool was closed out by the Town of Davie Building Division on April 19, 1999, when the structural pool final inspection was approved. After the inspections conducted in October 1997, Challenger Pools corrected the violations noted in the inspection reports for which it was responsible. Challenger Pools did not do any work on Mr. Casadona's pool after it corrected the violations noted in the October 1997 inspection reports because it considered its work on the pool complete. The violations noted in the inspection reports for Mr. Casadona's pool were not unusual for the industry and were relatively minor. Challenger Pools corrected all of the violations and deficiencies noted in the inspection reports for Mr. Casadona's pool. The evidence presented by the Department is not sufficient to establish with the requisite degree of certainty that Challenger Pools failed to work on Mr. Casadona's pool for 90 consecutive days during the period from March 1997 until October 1997. However, the evidence presented is sufficient to establish with the requisite degree of certainty that Challenger Pools failed to work on Mr. Casadona's pool for 90 consecutive days during the period from October 1997 until January 1999. Challenger Pools could have done more to encourage Mr. Casadona to correct the height of his fence gate, remove the shrubs from around the pump controller, and remove the prohibited electrical wiring around the pool. Nonetheless, Challenger Pools had just cause to cease work on Mr. Casadona's pool because Challenger Pools could have reasonably concluded that its work on the pool was completed and that the only things remaining to be corrected were items for which Mr. Casadona was responsible. All of the violations noted on the inspection reports from January 1999 through April 1999 were the responsibility of Mr. Casadona with the exception of two minor code violations noted in the electrical pool final inspection conducted April 14, 1999, which violations were corrected by Challenger Pools prior to April 19, 1999. The evidence presented by the Department is not sufficient to establish with the requisite degree of certainty that the work Challenger Pools did on Mr. Casadona's pool was below industry standards. 4/ The evidence presented by the Department is sufficient to establish with the requisite degree of certainty that Challenger Pools commenced construction on Mr. Casadona's pool before the Town of Davie issued a building permit. The evidence presented by the Department is not sufficient, however, to establish with the requisite degree of certainty that Challenger Pools worked on Mr. Casadona's pool without having obtained the proper inspections. The inspection history establishes that, notwithstanding the notations on subsequent inspection reports, both the pool main drain and the pool steel were approved on January 3, 1997, and January 6, 1997, respectively. In addition, Challenger Pools called for final inspections of the plumbing, electric, and structural components of the pool on October 8, 1997, and again in January 1999, and closed out the permit on April 19, 1999. DOAH Case No. 99-2655 - Jameel Quadri On August 15, 1995, Challenger Pools entered into a Swimming Pool Construction Agreement with Jameel Quadri for construction of a residential swimming pool and spa at 239 Landings Boulevard, Fort Lauderdale, Florida. The full contract price was $12,240.00. Mr. Quadri was building a house on the property, and the agreement between Challenger Pools and Mr. Quadri provided that construction of the pool would not start until construction on the new house was completed. On October 3, 1996, Challenger Pools and Mr. Quadri entered into a contract addendum to the agreement that provided for the addition of brick pavers, a screen enclosure, and electrical work for the screen enclosure. The price of the additional items was $7,860.00. Mr. Quadri made the final payment on the pool agreement and addendum in April 1997. The applications for the building, screen enclosure, plumbing, and electrical permits for Mr. Quadri's swimming pool and spa were received by the Broward County Building and Permitting Department on October 15, 1996, and the permits were issued on October 29, 1996. The building, screen enclosure, and plumbing permits were issued to Challenger Pools as the contractor; and the electrical permit was issued to Specialty Device Installers. Even so, Challenger Pools remained responsible for the electrical work on the pool because it was included in the agreement. The permits were based on the plans for construction submitted with the permit applications, including the plans for the spa and the pool deck. Challenger Pools began construction on Mr. Quadri's pool on October 25, 1996, when the pool was excavated. A plumbing pool and spa main drain inspection was conducted on October 31, 1996, and was disapproved because the work was not ready for inspection and no safety railing had been installed around the excavation. An electrical pool grounding inspection was conducted on October 31, 1996, and disapproved for several reasons. A structural pool steel inspection was conducted on October 31, 1996, and disapproved for several reasons. The plumbing pool main drain was inspected on November 15, 1996, and disapproved because no Notice of Commencement had been recorded and because the safety fence was not completely around the pool. The electrical pool grounding was inspected and approved on November 15, 1996. The structural pool steel was inspected on November 15, 1996, and disapproved because of unsafe conditions, with the comment that safeguards were required. The plumbing pool and spa main drains were inspected on November 20 1996, and disapproved because the pool and spa main drains had only 38 and 33 pounds of pressure, respectively, when the code requires 40 pounds. The plumbing pool and spa main drains were inspected and approved on November 26, 1996. The structural pool steel was inspected on November 26, 1996, and approved. A plumbing pool piping inspection was conducted on December 9, 1996, and disapproved because the piping was not properly bedded, the dirt on the job site was not proper clean fill, and the piping was "within the angle of repose." The plumbing pool piping was inspected on December 20, 1996, and disapproved because the piping was not properly bedded. The plumbing pool piping was inspected and approved on December 24, 1996. An electrical pool deck grounding inspection was conducted on February 20, 1997, and disapproved for several reasons. A structural pool deck inspection was conducted on February 20, 1997, and disapproved for several reasons. The electrical pool deck grounding was inspected and approved on February 28, 1997. The structural pool deck was inspected and approved on February 28, 1997. Challenger Pools worked steadily on the pool until it was plastered on April 21, 1997, and filled with water. In April and May 1997, Challenger Pools received several telephone calls from Mr. Quadri regarding problems with his pool. In May 1997, Mr. Quadri called an attorney and asked that the attorney write a letter to Challenger Pools regarding what Mr. Quadri perceived were problems with the pool construction. In a letter dated May 22, 1997, Mr. Quadri's attorney identified the problems as follows: The deck area is not level, causing the pavers to break. The vacuum system has never been delivered or installed. The underwater pool light is dangling from its fixture and has exposed wires sitting in the water. The spa and jets do not work. The waterfall does not work. There are open and exposed wires at the pump. One of your trucks damaged the right side corner of Mr. Quadri's house and that condition has not been repaired. The ceramic underwater handles on the exterior of the spa are the wrong color. Mr. Quadri was promised white handles and you installed grey ones. The "exposed wires" mentioned in reference to the pool light were designed to be submerged in water, and the "exposed wires" at the pump were bonding wires running from the timer to the pump. Mr. Quadri's attorney notified Challenger Pools in the May 22, 1997, letter that, unless the defects identified in the letter were corrected within ten days of the date of the letter, Mr. Quadri would file suit against Challenger Pools for breach of contract. Challenger Pools did not respond to the letter of May 22, 1997, and no one from Challenger Pools came to the property to work on the pool and spa in response to that letter. In accordance with company policy, Challenger Pools ceased working on Mr. Quadri's pool and spa when it received the May 22, 1997, letter from Mr. Quadri's attorney threatening a lawsuit. In a letter dated August 14, 1997, Mr. Quadri's attorney sent Challenger Pools a letter demanding treble damages for theft arising out of the failure of Challenger Pools to complete Mr. Quadri's pool and spa after having been paid in full. In August 1997, at the request of Challenger Pools' attorney, Challenger Pools' vice president, Tom Camburn, and Challenger Pools' Fort Lauderdale field supervisor visited Mr. Quadri's property to view the pool and spa. Mr. Camburn and the field supervisor were in the vicinity of Mr. Quadri's pool for only 10 to 15 seconds before Mr. Quadri came out of the house and told them to leave the property, asserting that he was going to sue Challenger Pools. During those few seconds, Mr. Camburn observed that there was water in the pool and that some of the pavers forming the pool deck were sunken. He did not measure the pool and spa to determine if they were larger than represented in the original plans, although he did note that the pool and deck were larger than Challenger Pools usually builds. Challenger Pools' attorney responded to the August 14, 1997, letter with a letter dated August 20, 1997, advising Mr. Quadri's attorney of the outcome of the visit to Mr. Quadri's property and advising him that Challenger Pools would not go back to Mr. Quadri's property to inspect and repair any legitimate warranty complaints unless Mr. Quadri paid Challenger Pools a reasonable amount for the larger pool and spa. Challenger Pools based its contention that Mr. Quadri received a larger pool and spa than that specified in his contract on the fact that the invoice received for the pavers used in the pool deck was much higher than expected and showed that many more pavers were delivered to Mr. Quadri's property than were included in the original plans for Mr. Quadri's pool deck. The pavers were added to the contract in the addendum executed October 3, 1996, but neither the size of the deck nor the number of pavers was shown in the contract or in the addendum. 5/ In addition, no Change of Plans form was filed with the Broward County Building and Permitting Department indicating that there were any deviations from the original construction plans in the construction of Mr. Quadri's pool and spa, and no deviations from the original construction plans were noted by any of the building inspectors who conducted inspections of Mr. Quadri's pool and spa. In a notice dated August 27, 1997, Mr. Quadri was advised by the Broward County Building and Permitting Department that the permit for his pool and spa had expired. These notices are routinely sent by the Broward County Building and Permitting Department to both the property owner and the contractor when 150 days have elapsed without an inspection having been requested. The notice advises the property owner and the contractor that the permit will expire 30 days from the date of the notice. Challenger Pools did not receive a copy of the notice. Mr. Quadri renewed the permits on September 12, 1997, to avoid the penalties set forth in the notice; Challenger Pools continued to be named as contractor on the permits. A plumbing pool final inspection was conducted on September 15, 1997, and disapproved, with the comments that the main drain grid required two screws; 6/ the spa water level was low, possibly because of a leak; and the pavers were sinking around the spa. An electrical pool final inspection was conducted on September 15, 1997, which was disapproved, with comments that the pool screen was not bonded; the pool light was not in place; a bonding wire on the pool pump needed to be covered; and "[s]ealtite to pump motor in grass," meaning that the flexible electric conduit running from the timer/transformer subpanel to the pool pump was lying in the grass. No unsafe conditions were noted on the inspection report. A structural pool final inspection was conducted on September 15, 1997, and rejected, with the comments that there had been no final approval of the pool plumbing and electrical; that the paver deck was washed out in numerous places and needed to be repaired; that the riser at the rear steps was not to code; that the handholds were missing; and that the exterior wall of the raised spa needed finishing. Challenger Pools had installed ceramic underwater handholds on the pool, but Mr. Quadri was not satisfied with them because they were gray in color rather than white, the color he had selected. Challenger Pools did not remove the handholds. Neither Mr. Quadri nor Challenger Pools called for the inspections of Mr. Quadri's pool conducted on September 15, 1997. Rather, those inspections were apparently triggered by the renewal of the permits. Mr. Quadri did not file suit against Challenger Pools, but, by letter dated December 12, 1997, Mr. Quadri notified the Department that Challenger Pools had abandoned construction on his pool and spa and that the pool and spa still had numerous defects. After Challenger Pools received notice of the complaint filed by Mr. Quadri with the Department, Challenger Pools was advised by its attorney to obtain final inspections on Mr. Quadri's pool. An electrical pool final inspection was conducted on March 17, 1998, and disapproved because the screen enclosure needed to be bonded on both sides of the column. An electrical pool final inspection was conducted on March 27, 1998, and approved. A plumbing pool final inspection was conducted on October 9, 1998, and disapproved because the building permit had expired, the equipment was defective in that there was a cracked filter, and the equipment needed to be anchored. 7/ A structural pool final inspection was conducted on October 9, 1998, and disapproved because the permit had expired, and because of damaged sidewalks, no handholds, and a problem with a stairway. A plumbing pool final inspection was conducted on November 6, 1998, and disapproved because the permit card was not displayed on the site. Challenger Pools renewed the permits for Mr. Quadri's pool on November 16, 1998. A structural pool final inspection was conducted on November 20, 1998, and disapproved because the permit card was not at the site. A structural pool final inspection was conducted on November 30, 1998, and disapproved because of "previous inspections" and because the marcite was coming off and stucco was needed around the steps. A structural pool final inspection was conducted on December 3, 1998, and approved. A plumbing pool final inspection was conducted and approved on December 7, 1998. The Certificate of Occupancy for Mr. Quadri's swimming pool and spa was issued by the Broward County Building and Permitting Department on December 8, 1998. At the time of the final hearing, the pavers around Mr. Quadri's pool were uneven and sinking. Pavers are used for pool decks instead of concrete because concrete cracks as the earth beneath the deck settles. They are set on sand and are not grouted but, rather, are locked in with fine sand. It is not uncommon for paver decks to settle because strong rains can wash out the sand under the deck and cause erosion. As a result, pavers will sink or lift as the earth underneath shifts. The degree to which a paver deck shifts varies. Pressure washing a paver deck can cause the sand beneath the pavers to erode and shift, which causes the pavers to sink and lift. Mr. Quadri has cleaned the pavers around his pool and spa with a pressure cleaner at least every six months since it was installed. The evidence presented by the Department is sufficient to establish that Challenger Pools did not work on Mr. Quadri's pool between the end of April 1997 and March 1998 and between the end of March 1998 and October 1998. Challenger Pools may have been justified when it ceased work on Mr. Quadri's pool after the May 22, 1997, letter from Mr. Quadri's attorney threatening a lawsuit if the enumerated defects with the pool were not corrected. It was not justified, however, in failing to perform work on Mr. Quadri's pool after August 20, 1997; the evidence presented by Challenger Pool to justify the statement in the August 20, 1997, letter that it would not correct the problems with Mr. Quadri's pool until Mr. Quadri paid a "reasonable amount for the larger pool and spa he received" is not sufficient to establish that the pool and spa was, indeed, larger than the one for which Mr. Quadri contracted. In addition, Challenger Pools was not justified in failing to perform work on Mr. Quadri's pool between March 27, 1998, when the electrical pool final inspection was approved, and October 1998, because its attorney, in response to the December 1997 complaint to the Department, advised it to obtain final inspections and close out the permit. Accordingly, the evidence presented is sufficient to establish with the requisite degree of certainty that Challenger Pools failed to perform work on Mr. Quadri's pool for a period of 90 consecutive days without just cause. The evidence presented by the Department is not sufficient to establish with the requisite degree of certainty that the work Challenger Pools did on Mr. Quadri's pool was below minimum industry standards. 8/ The evidence presented by the Department is sufficient to establish with the requisite degree of certainty that Challenger Pools began excavating Mr. Quadri's pool after it applied for the necessary permits but before they were issued. The Department presented no evidence to establish that Challenger Pools proceeded with work on Mr. Quadri's pool without receiving the required inspections. In addition, Challenger Pools called for final inspections of the plumbing, electric, and structural components of the pool and closed out the permit on April 19, 1999. As of October 6, 1999, the Department had expended $1,088.47 in investigative costs and $1,307.47 in prosecutorial costs with respect to Mr. Quadri's complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED the Construction Industry Licensing Board enter a final order: Finding that Challenger Pools violated Section 489.129(1)(k), Florida Statutes (1997), in DOAH Case No. 98-3713 and DOAH Case No. 99-2655; Dismissing Count II of the Administrative Complaint in DOAH Case No. 98-3713; Dismissing the Administrative Complaint in DOAH Case No. 99-2654; Dismissing Counts II and III of the Administrative Complaint in DOAH Case No. 99-2655; and Imposing the following penalties on Bruce E. Esquinaldo, Jr., as qualifier of Challenger Pools: Assessing an administrative fine in the amount of $2,500.00 in DOAH Case No. 98-3713 and in DOAH Case No. 99-2655 for the violations of Section 489.129(1)(k), Florida Statutes (1997), for a total administrative fine of $5,000.00; Placing Mr. Esquinaldo's license on probation for a period of one year, subject to such terms and conditions as the Board may impose; and Assessing the costs of investigation and prosecution attributable to the violations of Section 489.129(1)(k), Florida Statutes (1997), in DOAH Case No. 98-3713 and DOAH Case No. 99- 2655. DONE AND ENTERED this 27th day of June, 2000, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 2000.
Findings Of Fact Atlas Pools, Inc., contracted with Mr. and Mrs. Jerry Thompson in May, 1978, to construct a swimming pool on the Thompson property for a completed price of $5,940. Work ceased in mid-July, 1978, by which time the Thompsons had paid Atlas Pools $5,643. The Thompsons hired another pool contractor to complete the project at additional cost in excess of $2,000. Atlas Pools contracted with Mr. and Mrs. Dennis Perry in June, 1978, to construct a swimming pool on the Perry property for a completed cost of $5,770. Work ceased in late July, 1978, after the Perrys had paid Atlas Pools $5,474.50. The Perrys completed the project through self-help and use of another pool contractor at a further cost of $1,566. Atlas Pools contracted with Mr. and Mrs. Thomas Wolters in June, 1978, to construct a swimming pool on the Wolters' property for a completed cost of $6,980. Work ceased in mid-July, 1978, after the Wolters had paid Atlas Pools $6,631. The Wolters completed the pool through self help at an additional cost in excess of $1,300. Atlas Pools contracted with Mr. and Mrs. Albert Sentman in June, 1978, to construct a spa on the Sentman property for a completed cost of $5,500. The Sentmans paid Atlas Pools a $550 deposit after which the spa was delivered but not installed. The Sentmans completed the project by other means at an additional cost of $6,137. Respondent abandoned each of the above projects without notice to the customer, who ultimately learned of the company's bankruptcy from a third party source. Each of the four projects described above was completed at a final cost to the purchaser in excess of $900 over the contract price. The company filed a Voluntary Petition of Bankruptcy with the U.S. District Court, Middle District of Florida, on August 1, 1978. Thereafter, on March 7, 1979, the Brevard County Contractors Licensing Board revoked the certificate held by Atlas Pools for a minimum period of one year, with the requirement that financial rehabilitation be demonstrated as a condition of reinstatement. At the time of bankruptcy, Respondent was president of Atlas Pools, Inc., and owned one-third of the stock. He was, at all times relevant to this proceeding, the company's only licensed pool contractor. He is currently employed in pool construction work by a licensed contractor. Proposed findings of fact were submitted by the parties. To the extent these proposed findings have not been adopted herein or are inconsistent with the above findings, they have been specifically rejected as irrelevant or not supported by the evidence.
Recommendation Based on the foregoing, it is RECOMMENDED: That Pool Contractor's License No. RP 0018040 issued to Crawford L. Grove, be suspended until Respondent demonstrates compliance with the financial responsibility standards established by Section 489.115, Florida Statutes (1979). DONE AND ENTERED this 29th day of October, 1980, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 29th day of October, 1980.
The Issue The issue is whether Respondent violated Subsection 489.129(1)(m), Florida Statutes (1997), by allegedly committing incompetence or misconduct by "poor soil compaction" and by failing to honor the terms of a written warranty.
Findings Of Fact The four-count Administrative Complaint contains factual allegations in 15 numbered paragraphs. Respondent does not dispute paragraphs 1 through 9, 14, and 15. Petitioner is the state agency statutorily charged with regulating pool contracting in the state. At all times material to this proceeding, Respondent has been licensed as a pool contractor pursuant to license number CP C052509. Respondent's business address is Bazar Pools, Inc., 6214 All America Boulevard, Orlando, Florida 32810. On March 6, 1998, Respondent entered into a written contract with Mr. Rex Davidson (the contract). Respondent agreed to construct a residential cantilever deck swimming pool at Davidson's residence located at 2800 Granada Boulevard, Kissimmee, Florida (the pool). Mr. Davidson agreed to pay $19,300 for the pool. Respondent completed the pool sometime in April 1998. Mr. Davidson paid the full amount due under the contract. The contract warranted the "pool structure" for the time that Mr. Davidson owned the pool. Sometime in July of 2000, a crack emerged around the top edge of the pool above the tiles that lined the upper edge of the pool. As the crack worsened, the tiles began to fall off the pool. Respondent did not repair the crack and tiles. Mr. Davidson paid approximately $7,025 to a company identified in the record as Blue Diamond to repair the crack and tile. The contract did not include Respondent's license number. Respondent did not obtain a certificate of authority to do business as Bazar Pools, Inc., at the time he entered into the contract. The contract did not contain a written explanation of consumer rights under the Construction Industry Recovery Fund. Respondent does not dispute Counts II through IV of the Administrative Complaint charging that the acts described in this paragraph violated Subsection 489.129(1)(i), Florida Statutes (1997). Respondent disputes the charge in Count I of the Administrative Complaint that Respondent committed incompetence or misconduct. Paragraphs 10 through 12 of the Administrative Complaint contain the only factual allegations relevant to the charge of incompetence or misconduct. The disputed factual allegations state: Around July of 2000, the pool developed a crack which extended around the entire perimeter and caused the tiles to fall off because of poor soil compaction. The pool's structure is warranted to remain structurally sound for the period of time that it is owned by the original owner. Mr. Davidson contacted Respondent to get the pool repaired, but Respondent failed to take corrective action. The literal terms of allegations in paragraph 10 of the Administrative Complaint led the trier of fact to expect Petitioner to show that Respondent improperly compacted soil under the deck and thereby allowed the deck to settle. However, Petitioner submitted little, if any, evidence pertaining to how Respondent compacted the soil under the deck before Respondent poured the concrete deck. Respondent obtained the three required county inspection approvals before each step in the construction of the pool. The inspections included an inspection to ensure proper soil grade prior to pouring the pool deck. The inspections ensured that Respondent constructed the pool in accordance with stamped engineering drawings that the county required Respondent to file as a prerequisite for a building permit from the county. The vast majority of the evidence that Petitioner submitted during the hearing was relevant to allegations that Respondent committed incompetence and misconduct in two ways. First, Respondent arguably constructed the pool shell and deck as a unitized structure so that the crack and tile problems evolved as the deck settled when underlying soil compacted. Second, Respondent arguably failed to honor the warranty in the contract. As a threshold matter, paragraph 10 in the Administrative Complaint does not allege that Respondent committed incompetence or misconduct by poor pool construction. Rather, paragraph 10 alleges only that a crack developed in the pool and tiles fell off because of "poor soil compaction." Nevertheless, the parties spent substantial hearing time submitting evidence relevant to allegations of incompetence and misconduct not specifically alleged in the Administrative Complaint. In order to prove that Respondent committed incompetence and misconduct by poor pool construction, Petitioner relies on expert opinion to show that Respondent constructed the pool and deck as a unitized structure. Petitioner's expert opined that Respondent must have connected the concrete pool shell to the concrete deck either by steel rods, identified in the record as rebar, or by a mechanical bond between the top of the pool shell and the bottom of the deck. The expert reasoned that settling of the deck could not have caused the crack in the pool unless the deck and pool shell were connected as a unitized body. Several flaws in the expert opinion offered by Petitioner prevent that testimony from reaching the level of clear and convincing evidence. Petitioner's expert did not relate his opinion to facts in evidence. First, Petitioner's expert never inspected the original construction of the pool. The expert visually inspected only the repaired pool and based his opinion on an hour and a-half inspection of the repaired pool. Counsel for Petitioner illustrated the inherent problem in such testimony when he objected to the testimony of one of Respondent's experts on the grounds that the opinion was based on a post-repair inspection. Counsel for Petitioner explained the problem as follows: Objection. Your Honor, [Respondent's expert] is testifying based on his observations of the pool as repaired by Blue Diamond. He never did - he never has made a personal observation of the pool prior to that repair when it was in the condition attributable to [Respondent's] construction method. So, he's testifying without any particular personal knowledge relative to [Respondent's] conduct. Transcript (TR) at 220-221. When Petitioner's expert inspected the post-repair pool, he did not remove the deck to determine whether the top of the pool shell was, in fact, either connected by steel to the deck or otherwise mechanically bonded to the deck. The only competent and substantial evidence in the record of whether the pool shell and the deck were constructed as a unitized structure came from Respondent. Respondent did not use rebar to connect the pool shell to the pool deck. Respondent stopped the rebar approximately two inches below the top of the pool shell. Respondent used mortar, identified in the record as "mud," to smooth variations or undulations, in the top edge of the pool shell and thereby bring the entire top edge of the pool shell up to "dead level." The maximum variation in the top edge of the pool shell prior to leveling did not exceed 1.25 inches. After the mud dried, Respondent intentionally did not clean the top edge of the pool shell. The dirt and debris remaining on the top edge of the pool shell would normally prevent a mechanical bond between the top of the pool shell and the bottom of the concrete deck. The construction technique used by Respondent to construct the pool complies with generally accepted standards for the industry. Respondent has constructed over a thousand pools since 1987 using the same or similar construction techniques. He generally constructs large residential pools in "high-end" neighborhoods that cost customers $40,000 or more, but has constructed some commercial pools. Respondent has never had this problem with his other pools and has never had any previous discipline against his license. The expert opinion offered by Petitioner has another flaw that keeps the testimony from being clear and convincing to the trier of fact. The expert concludes that the deck settled, in relevant part, because "the pool cracked and the tile fell off." In an interrelated ratiocination, the expert concludes that the pool cracked and the tile fell off because the deck settled. Petitioner's expert also concluded that the deck settled because he observed cracks in the deck when he visually inspected the post-repair pool in 2004. He concluded from the cracks he observed in 2004 that settling of the deck in 2000 caused the crack in the pool and the tile problems. Petitioner's expert did not measure the cracks or inspect them to determine if any differential existed in the cracks that would suggest soil compaction under the deck. Petitioner's expert is an expert in pool construction, but is not an expert in pool engineering and design. One of Respondent's expert witnesses is an expert in pool engineering and design. He concluded that the deck did not settle in 2000. The characteristics of the cracks in the post-repair deck in 2004 were consistent with cracks caused by heat expansion and contraction from cooling when joints in the concrete were improperly spaced. The cracks did not exhibit differential settling of the deck. The theory that the crack in the pool and tile problems could not have occurred "but for" the settling of the deck is less than clear and convincing. Faulty installation of the tile by subcontractors is a more likely cause of the problems with the pool and the tile. However, Petitioner neither alleged that Respondent engaged in such acts or that Respondent's license is subject to discipline for the acts of his subcontractors. Finally, the testimony of Petitioner's expert is based on subjective standards while the testimony of Respondent's experts is based on intelligible standards published for the entire industry. Petitioner's expert opined that Respondent committed incompetence and misconduct in constructing the pool based on the expert's personal experience and on the way the expert has constructed pools for many years. Respondent's two experts opined that Respondent complied with written standards of workmanship published by the National Spa and Pool Institute in June 1996 (Workmanship Standards). Aside from whether the pool and deck were joined as a unitized structure, Petitioner's expert opined that Respondent "shot" the pool shell about two inches short of where it should have been, used mud to build up the pool shell, and applied tile over the resulting "cold joint" between the top of the pool shell and the bottom of the deck. Petitioner's expert opined that laying tile over a cold joint is incompetence and misconduct in his experience. Respondent's experts disagree. They opined that laying tile over a cold joint is the normal practice in the industry. Petitioner's expert agreed that it is commonplace for contractors to lay tile over a cold joint and that problems arise in only one in fifty jobs. The trier of fact has discussed the competing testimony of the parties' experts to illustrate that the burden of proof is the fulcrum of decision in this case. The applicable burden of proof does not require a preponderance of evidence to show that Respondent constructed the pool in a competent manner. Rather, the trier of fact need only find that the evidence is less than clear and convincing that Respondent committed incompetence or misconduct in constructing the pool. The remaining allegation is that Respondent committed incompetence and misconduct by failing to honor the warranty and repair the pool. The evidence is less than clear and convincing that Respondent failed to honor the warranty. Sometime in June 2001, Mr. Davidson verbally complained to Respondent that a crack around the pool above the tile line had developed and that tiles around the top edge of the pool were detaching from the pool. Respondent sent a company representative to the site to evaluate the problem. Respondent also sent a service representative to the site to retrieve some of the tiles. Sometime in July 2001, Mr. Davidson again verbally complained to Respondent about the crack and tiles. By letter dated August 8, 2001, Mr. Davidson notified Respondent that a crack had developed behind the tiles sometime in the summer of 2000. The letter stated that the tiles were falling off of the side of the pool. Respondent offered to provide Mr. Davidson with an estimate of the cost of repair. Mr. Davidson elected to have Blue Diamond make the repairs. The pool structure was warranted for the time that Mr. Davidson owned the pool. It is undisputed that the pool shell was well made and water tight. The parties dispute whether the pool structure included the one or two-inch area between the top of the pool shell and the deck, as well as the deck. The contract defined the pool structure by excluding the deck, equipment, tile, and any item other than the pool shell. The definition in the contract is consistent with that in the Workmanship Standards. Petitioner's attempt to rely on a general definition of the term "structure" in a dictionary is not persuasive when considered in the light of the definitions in the contract and the Workmanship Standards. Alternatively, Petitioner argues that the pool structure included the deck and intervening area because all of the parts were constructed as a unitized structure. Based on previous findings, the evidence is less than clear and convincing that the pool shell and deck were constructed as a unitized structure.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of Counts II through IV of the Administrative Complaint and not guilty of Count I. DONE AND ENTERED this 21st day of December, 2004, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 2004. COPIES FURNISHED: Charles J. Pellegrini, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 John A. Shughart, Jr., Esquire Law Offices of John A. Shughart, Jr. 500 North Maitland Avenue, Suite 305A Maitland, Florida 32751 Miriam S. Wilkinson, Esquire McConnaughhay, Duffy, Coonrod, Pope & Weaver, P.A. 101 North Monroe Street, Suite 900 Post Office Drawer 229 Tallahassee, Florida 32302 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Tim Vaccaro, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Richard A. Howarth, Petitioner, owns Birdsong Motel located at 12928 Seminole Boulevard, Largo, Florida, and has applied to Respondent for a public swimming pool operating permit. An inspection on September 14, 1984 by representatives of Respondent indicated the pool does not meet the minimum width requirement set forth in Rule 10D-5.67(2), F.A.C. Petitioner contracted with Aquamarine Pool Co., Inc., for the construction of a public swimming pool at Birdsong Motel. The President of Aquamarine Pool, Mr. Trevor A. Jones, admitted that a mistake was made in constructing the pool such that it is only fourteen (14) feet, two (2) inches wide. There is no factual dispute that the pool is fourteen feet, two inches wide although petitioner contracted for a public swimming pool that would meet all state and local health requirements. The pool was designed and engineered properly but the mistake occurred in construction of the concrete pool. The ten inch shortage of width of Petitioner's pool represents a 5 1/2 percent error in the minimum width required by Respondent for public swimming pools. Minimum width requirements are a safety feature to avoid injury resulting from jumping into a pool from one side and striking the opposite side of the pool. The parties have submitted proposed findings of fact pursuant to Section 120.57(1)(b)4, F.S. In making the above findings of fact, Petitioner's proposed findings of fact 1, 2 and 3, and Respondent's proposed findings 1, 2, 3, 4, 5, 6, 9 and 10 are specifically approved. The remaining proposed findings of fact submitted by the parties have been rejected as subordinate, cumulative, immaterial, unnecessary or not based upon competent, substantial evidence.
Findings Of Fact Respondent is a licensed general contractor and pool contractor. He is employed by Sally Dysart, Inc., and is currently the qualifying contractor for that company. Additionally, Respondent has served as qualifier for ARK Swimming Pool Service, Inc. On June 6, 1981, Sally Dysart, Inc., contracted with Theresa Pica to construct a swimming pool at her North Lauderdale residence. On June 9, 1981, Respondent obtained a permit from the City of North Lauderdale to construct the Pica pool. The permit indicated that ARK Swimming Pool Service, Inc., was the contractor. The contract specified that the pool would measure 16 x 32 x 3 x 6 1/2 feet, with stainless steel walls. The contract allowed "minor variations in dimensions . . ." and provided that, "Dysart is authorized to use its discretion in making changes or additions if the customer is not immediately available." The pool as installed was 8 feet rather than 6 1/2 feet deep, and the walls were of aluminum rather than stainless steel. These changes were not approved by Theresa Pica and she complained to Petitioner regarding these changes and other problems which are not relevant to the charges herein. This was an 18 inch change in pool depth and could not be considered a minor variation in dimensions, nor could the change in materials be considered insignificant. Respondent should have, but did not, obtain the owner's concurrence before substituting the 8 foot aluminum pool for the 6 1/2 foot steel pool, which the contract called for. This installation was also held to be in violation of Broward County Ordinance Section 9-14(b)(9), by the local board having jurisdiction. Respondent was not properly registered as the qualifying agent for Sally Dysart, Inc., at the time of this project. He was registered as the qualifier for Ark beginning in 1977, but his application to qualify Sally Dysart, Inc., was not received by Petitioner until November 1981 and not issued until December 1981. A Julius Kaplan was also a qualifier for Sally Dysart, Inc., but his application was not received by Petitioner until October 1981. Sally Dysart, Inc., was therefore not qualified by a licensed pool contractor at the time this company undertook the Pica project. The permit was improperly drawn on Ark Pool Service, Inc., by Respondent since Ark was not a party to the Pica contract. Respondent demonstrated that the administrator for Sally Dysart, Inc., was attempting to secure a qualifier for this company between April and December 1981. Thus, while some effort had been made to qualify Sally Dysart, Inc., this had not been accomplished at the time the Pica project was undertaken. Sally Dysart, Inc., contracted with James J. Mirrione to install a spa for him at his residence in Boca Raton. The permit was obtained by Respondent on behalf of Sally Dysart, Inc., on April 23, 1981. As noted above, Respondent was not a qualifier for Sally Dysart until December 1981. No final inspection of the Mirrione installation was ever made. Respondent believed that officer personnel at Sally Dysart, Inc., had arranged for such inspection, but it was either not requested or requested but not performed. On June 25, 1981, Warren Schober contracted with Sally Dysart, Inc., to construct a pool at his Miami residence. He negotiated the contract with a Milton Wolf who he understood to be the sales manager for Sally Dysart, Inc. The project was completed, but Schober encountered problems with a defective light and leaks in the pool. The difficulties were eventually corrected and Schober is now satisfied with the installation. In late August 1981, Milton Wolf agreed to sell Dr. Ronald Scott a swimming pool for $5,970. Scott made an initial payment of $3,970 to Milton Wolf by cashier's check dated September 8, 1981. Scott believed he was dealing with Sally Dysart, Inc., since Wolf held himself out as a representative of that company. Although he had some reservations about making the check payable to Milton Wolf personally, he had contacted a Better Business Bureau to determine that Sally Dysart, Inc., was a reputable company. Further, Wolf was available when he telephoned him at the Sally Dysart, Inc., offices. Sally Dysart, Inc., later disclaimed the Wolf agreement but offered to honor it if Scott would turn over the balance due. However, Scott rejected this offer and it was later withdrawn. He did not receive the pool or return of his initial payment. The evidence did not establish whether or not Sally Dysart, Inc., approved the contract for sale of the pool negotiated by Wolf. However, there was no construction contemplated and therefore no active involvement by Respondent in his capacity as construction supervisor. On July 31, 1981, Milton Wolf, on behalf of Sally Dysart, Inc., contracted with Mr. William D. Black for the sale and installation of a swimming pool at the latter's Miami resident. By check dated August 28, 1981, Black made an initial payment of $4,585 to Wolf. Black left the payee portion of the check blank at Wolf's request on the representation that he would use a stamp to supply the Dysart firm name. Wolf later filled in his own name, cashed the check and absconded. Black had no reason to distrust Wolf as he had communicated with Wolf at Sally Dysart, Inc., and had checked on the company through the Better Business Bureau. Wolf held himself out as sales manager and this was not repudiated by Sally Dysart, Inc., until after Wolf absconded. Respondent obtained a permit for the Black project on October 13, 1981, and some of the initial approvals were made. However, by letter dated September 22, 1981, Sally Dysart, Inc. (by its president, Sally Dysart), advised Black that the company would attempt to complete the project only if he would pay the balance of all payments due. This letter also disclaimed responsibility for Wolf's representations. In response, Black demanded that Sally Dysart, Inc., honor the contract and proposed that remaining payments be placed in escrow pending satisfactory completion. This proposal was rejected, and Black did not obtain the pool nor was his $4,585 "deposit" returned. Respondent sought to establish that Milton Wolf was not authorized to act on behalf of Sally Dysart, Inc., but that he was merely present in the Dysart offices as a potential business partner. His contact with customers was purportedly limited to investigation of leads and company business potential. However, the testimony of a former Dysart employee established that Wolf did make sales and brought in cash receipts to the company prior to his defalcation. Therefore, regardless of any private understanding between Sally Dysart, Inc., and Milton Wolf, the latter was holding himself out to the public as a company representative with the knowledge and approval of Sally Dysart, Inc.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner enter a Final Order suspending Respondent's contractor licenses for a period of ninety (90) days. DONE AND ENTERED this 16th day of May, 1984, in Tallahassee, Florida. R. T. CARPENTER 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 May 1984.
Findings Of Fact Respondent is, and has been at all times material to this proceeding, a registered and certified pool contractor having been issued license numbers RP 0023613 and CP 0012607. Respondent's license number RP 0023613 has been delinquent since June 30, 1983, but his license number CP 0012607 was active and in full force and effect until he ceased doing business in approximately September, 1985. Respondent conducted his pool contracting business in the name of Hallmark Pools for approximately 14 years. The business entity "Hallmark Pools" was properly qualified and named on the Respondent's license. In 1985, the Respondent began to enter the business of designing outdoor patios and fountains, as well as pools. He wished to retain the good will he had gained operating under the name "Hallmark Pools" while gaining good will in the new name under which he planned to conduct business in the future, "Aquatic Environments, Inc." During this transition period, and until he closed his business, the Respondent's contracts and letterhead contained the names "Hallmark Pools" and "Aquatic Environments, Inc.," but that name never appeared on his licensure. On or about March 12, 1985, Respondent, through Hallmark Pools/Aquatic Environments, Inc., contracted with customers Mr. and Mrs. Allan Schaeffer to construct a screened-in pool and spa at their residence located at Archer Street, Lehigh Acres, Florida, for a contract price of $20,000. Later approximately $1,700 of extras were added to the contract. On or about March 21, 1985, the Schaeffers paid the Respondent $2,000 on the contract. On or about May 23, 1985, the Schaeffers paid another $17,000 on the contract. Approximately, $2,600 remained owing on the contract. The customers reside part of the time in New Jersey. In the contract, Respondent promised a June 15 completion date. When the customers arrived in Florida on or about June 14, they found that the project was not complete. When the customers contacted the Respondent, the work was resumed. The pool was quickly completed and was usable by the beginning of the July 4th weekend. Some punch list items remained to be done, but the Schaeffers preferred that the Respondent wait until after they returned to New Jersey in August, 1985. The evidence did not prove that the Respondent promised a June 15 completion date while knowing that he would not be able to finish the work by that date. During the summer of 1985, personal problems the Respondent was facing at the time mounted, and eventually he decided he no longer could continue to operate his business. He began to plan to close his business and have all pending matters either resolved by himself before he went out of business or resolved by his brother Chad Jackson, also a licensed pool contractor, after going out of business. He did this by assigning pending contracts to his brother. He also attempted to insure that all suppliers were paid either by himself before he went out of business or by his brother out of payments due under the contracts assigned to him. Except for the Schaeffer job, the Respondent's arrangements to close out his business did not result in any complaints. Near the end of August, 1985, the Schaeffers gave the Respondent a punch list of work still due under the contract to be done while the Schaeffers were in New Jersey. The Respondent called and told Mr. Schaeffer that he was closing his business but that the punch list items would be taken care of. At the time, the Respondent also knew that approximately $1,300 was owed to Jones Industries Screen Enclosures, Inc. The Respondent expected his brother to pay Jones out of the $2,600 due on the Schaeffer contract, leaving $700 to compensate his brother for the punch list work and any warranty work. In fact, there also was $2,705.12 owed to a company named FAFCO Solar, which had subcontracted the solar heating on the Schaeffer contract. The Respondent had forgotten about this debt. FAFCO had billed the Respondent on July 15, 1985, but the Respondent did not pay it or arrange for its payment. FAFCO's second billing never reached the Respondent. The Respondent sent FAFC0, along with his other suppliers and subcontractors, a notice on August 22, 1985, that he was going out of business and that mail should be sent to his home address. On receipt of this notice on August 28, 1985, FAFC0 mailed a second billing to the home address but it was returned on August 30, 1985, marked: "Moved Left No Address". The Respondent's brother did the punch list work to Mr. Schaeffer's satisfaction and sent him a bill for the $2,600 balance due on the contract. Schaeffer never paid. The Respondent's brother never paid the Jones Industries bill (and never got the FAFCO bill). Jones Industries put a lien on the property at 1414 Archer Street for $1,388.75, which the Schaeffers eventually paid. FAFCO did not file a notice to owner and could not claim a lien on the property. FAFC0 never was paid. Both Jones Industries and FAFCO refused to do warranty repairs because they were not timely paid. The evidence did not prove that the Respondent inadequately supervised the Schaeffer job while he was still in business or after he went out of business. After he went out of business, he assigned the contract to a licensed pool contractor, his brother. Eventually, serious problems developed in the Schaeffer's pool at 1414 Archer Street. But the evidence did not prove that the Respondent or his brother were responsible. The serious problems of which the Schaeffers now complain should have been apparent from the outset if caused during construction of the pool. Yet complaints were not registered until much later. Meanwhile, improper maintenance of the pool by the Schaeffers or their pool maintenance contractor, or damage to the pool during maintenance, could have caused the current problems. For six months after the Respondent closed his business and left Ft. Myers, he was traveling in the western part of the country and had no mailing address and did not give one to the Construction Industry Licensing Board. Then, he returned to Florida to a St. Petersburg address which he gave to the Board.
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 guilty of violating Section 489.129(1)(g) and (m), Florida Statutes (1985), reprimand him for the violation of (g) and fine him $1000 for the violation of (m). RECOMMENDED in Tallahassee this 19th day of December, 1988. J. LAWRENCE JOHNSTON 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 December, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3468 To comply with Section 120.59(2), Florida Statutes (1987), the following rulings are made on the Petitioner's proposed findings of fact: Rejected. (The license number was left blank.) Accepted and incorporated. Rejected as contrary to facts found. The Respondent arranged for payment of the Jones debt but disputes among the Schaeffers, Jones and the Respondent's brother led to Jones imposing a lien on the property which the Schaeffers eventually paid. The Respondent did not make arrangements to pay FAFCO, and that bill remains unpaid. 4.-9. Rejected as contrary to facts found. COPIES FURNISHED: David Bryant, Esquire 500 North Tampa Street Tampa, Florida 33602 Thomas Jackson 5203 109th Way North St. Petersburg, Florida 33708 Fred Seely Executive Director Construction Industry Licensing Post Office Box 2 Jacksonville, Florida 32201 Bruce D. Lamb General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
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 =================================================================
The Issue Whether the state certified pool construction license number CP C008904 and the state certified general contractor's license number CG C002481 of Joaquin Vazquez should be revoked.
Findings Of Fact Division A of the Construction Trade Qualifying Board held a hearing on September 15, 1976, pertaining to ten (10) charges of violating the Dade County building code against Respondent Joaquin Vazquez. At the completion of this formal hearing, Joaquin Vazquez was found guilty of eight (8) of the ten (10) charges. Charles W. Leavitt, Jr., Clerk of the Construction Trades Qualifying Board In Metropolitan Dade County, Florida, identified the minutes of the Board Meeting held on September 15, together with the charges as set forth in letters dated May 10, 1976, and August 19, 1976. Copies of these instruments were introduced into evidence without objection. The Respondent did not deny the charges at the hearing and had not appealed the finding of guilt of eight (8) of the ten (10) charges at the conclusion of the formal hearing on September 15, 1976. Briefly the charges (spanning the term from July 1, 1975 to June 29, 1976), finds and penalties are as follows: Charge 1.: Allowing permit to be applied for and taken out in Respondent's name in order for Angela J. Stevens and/or Sparkle Blue Pools to construct a swimming pool. Found guilty - letter of reprimand. Charge 3.: Similar to Charge 1 - found guilty - certificate to be suspended for one (1) year. Charge 4.: Failure to supervise, direct and control, the construction or installation of a swimming pool taken out in Respondent's name. Found guilty - one (1) year suspension to run concurrent with any other suspensions. Charge 5.: Similar to Charge 1 - found guilty - ninety (90) day concurrent suspension. Charge 6.: Similar to Charge 4 - found guilty - ninety (90) day suspension. Charge 7.: Similar to Charge 1 - found guilty - revo- cation of certificates. Charge 8.: Similar to Charge 4 - found guilty - both certificates be revoked. Charge 10.: Allowing a permit to be applied for and taken out in Respondent's name in order for Jack Goodman and/or Precision Engineering, Inc., to construct a swimming pool. Found guilty - letter of reprimand. An Administrative Complaint was filed by the Petitioner through its executive director on November 12, 1976, citing the hearing and the charges and the finding of guilt of Respondent and stating that the results of said formal hearing show a violation of Florida Statute 468.112(2)(a), willful or deliberate disregard and violation of applicable building codes or laws of the state or any municipality, cities or counties thereof. Therefore, the Board seeks to revoke the state certified pool contractors license number CP C008904 and state certified general contractors license number CG C002481 of Joaquin Vazquez, the Respondent. The Respondent did not deny the charges but presented an attack on the character and veracity of the witness, Angela Stevens, in four (4) of the charges against him. He cited the witness Angela Stevens' failure to abide by probationary requirements imposed for her acting as a contractor without a license. Furthermore, the Respondent offered his own and a witness, Mr. Gonzalez's, testimony to the fact that he was solicitated by Angela Stevens to make false testimony to the effect that Angela Stevens was an employee of his when in fact she had never been. The charges against the Respondent were brought subsequent to the charges brought against the witness Angela Stevens. The Respondent contends that the affidavits and testimony of Angela Stevens were no more than self serving statements made in her own behalf in an attempt to cover up her criminal intentions and that the charges and finding of guilt of the Respondent were based largely on the affidavit and testimony of said witness. Respondent further offered a medical report indicating that he was unable to work in the month of May, 1975, and further his testimony was that he was out of the country in mid June and July, 1975, in order to recuperate from high blood pressure attacks. Petitioner contends: the undisputed evidence presented in the finding of guilt of the charges involved in the prior hearing are sufficient to find Respondent guilty of violating Section 468.112(2)(a), Florida Statutes, and that Respondent's license should be revoked. Respondent contends: the witness against him was self serving and an attempt to cover up her criminal intentions; that he in fact supervised some of the jobs he was found guilty of not supervising; that he was ill some of the time and did not willfully violate the code. The proposed facts and conclusions of the parties submitted after the hearing herein have been considered in this Recommended Order.
Recommendation Suspend the licenses, No. CP C008904 and No. CG C002481, of the Respondent Joaquin Vazquez for a period not to exceed six (6) months. DONE and ORDERED this 31st day of May, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: David Linn, Esquire Post Office Box 1386 Tallahassee, Florida 32302 Jerome S. Reisman, Esquire 1515 Northwest 7th Street, #106 Miami Florida 33125 J. K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211
