Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts were found: At all times material to these proceedings Respondent was licensed by the State of Florida as a certified pool contractor, licensed No. CP C025535 and registered pool contractor, License No. RP 0041301. On June 7, 1983, Respondent entered into a Contract (Contract) with Edward and Maureen Kerstein (Kersteins) of 283 Islander Lane, Hudson, Florida, under which a pool was to be constructed on the Kersteins' property for a contract price of $7,777.00. The Contract was later amended by a letter, signed by Respondent and dated July 15, 1983, providing a penalty of $50.00 per day to be deducted from the balance due on the contract price if Respondent failed to complete the pool by July 23, 1983. Respondent obtained building permit No. 34342 on June 15, 1983, in the name of Crystal Clear Pool for the construction of the Kersteins' pool from the Pasco County Building Division. The pool steel inspection was called for and approved on July 8, 1983 and the pool bonding inspection was called for and approved on July 18, 1983. No other inspections were called for by the Respondent and the Respondent did not request an extension of time on the building permit. Therefore, on January 18, 1984, as required by the Standard Building Code of Pasco County, the permit lapsed and was invalid. However for reasons that are not clear in the record Vern Rossky, Building Inspector, Pasco County Building Division, made a final inspection of the Kersteins' pool (Permit No. 34342) on June 28, 1984 and approved the pool. Ordinarily the contractor would call for the final inspection or if the permit had lapsed or was invalid then the Pasco County Building Division would contact the contractor in order to finalize the permit. However, the record is clear that Respondent's intent was to leave the permit open due to the problems with completing the pool and satisfying the Kersteins. Although problems with the pool still existed, the pool was substantially completed in August, 1983 and the Kersteins used the pool in late summer 1983 (August) and the summer of 1984. The pool was operational in August of 1983. The respondent has received $7,055.05 for his work on the construction of the pool under the Contract with the Kersteins. While the Contract did not specify which side yard Respondent was to have access through for construction of the pool, the testimony of both the Respondent and the Kersteins was that it was the west side yard. However, the record reflects that the Kersteins gave either an expressed or implied approval for the use of the east side yard. All of the shrubbery, with the exception of the shrubbery that was part of the Contract, has been properly replaced and the clothesline has been replaced. The evidence was insufficient to show that the cracks which occurred in the house some 3-6 months after the pool construction was caused by the equipment being brought in on the east side of the house. Although Edward Kerstein's testimony was that an expert had not looked at the damage caused by the alleged water seepage around the electrical conduit pipe installed by the Respondent, his testimony that he had identified the Respondent's failure to caulk around the conduit pipe as the reason for the water seepage which resulted in damage to the carpet and speakers went unrebutted and was credible. However, Respondent was not made aware of this problem until the summer of 1984, almost a year later. The record is clear on the following: (a) that the tile placed around the top edge of the pool by Respondent was defective; (b) that there were several acceptable methods of replacing the defective tile; (c) that there were differences of opinion as to which method should be used in this situation; (d) that the reglazing over the existing tile was not an acceptable method; (e) that the pool would have to be drained to replace the defective tile; (f) that the Kersteins did not want to tile over the existing defective tile; (g) that the Respondent and Drew Tile Supply Company (Drew), the supplier of the defective tile, agreed on the method of cutting the tile away from the bull nose cap and replacing just the tile and based on this agreement; Drew delivered a check to Respondent in the sum of $823.75 ($700 for labor and $123.75 for tile) made payable to Crystal Clear Pools and Phil Klein, the subcontractor who had installed the defective tile; (h) that the Respondent, as President of Crystal Clear Pools assigned Crystal Clear Pools' interest in the check to Phil Klein provided the work on the defective tile in the Kersteins' pool commenced no later than February 1, 1984; (i) that Phil Klein endorsed and cashed the check with the knowledge of the assignment; and Phil Klein's testimony that even though the assignment was on the check at the time he endorsed and cashed the check the Respondent told him that the money was a partial payment of another job is just not credible; (j) the more credible evidence is that Respondent assigned the check to Phil Klein for labor and tile to replace the defective tile on the Kersteins' pool and there was no intent by Respondent to divert these funds to another job; (k) that the Kersteins' had not agreed to the method of replacing the defective tile which was part of the agreement between the Respondent and Drew; (1) that Drew had agreed that if the method selected was not satisfactory, then Drew would make it right; (m) that the problem with the drain in the pool, the filtering system, the telescoping rod, the damage to the air conditioning controls on the house, the failure to put tile chips on pool steps and the damage to the underground wire, were legitimate problems and it was Respondent's intent to correct all by the time the pool was drained to replace the defective tile; (n) that the Kersteins understood this when they agreed to allow Respondent to wait until the winter of 1984 to correct these problems because they were already using the pool in the latter part of the summer of 1983 and did not want to drain it at that time; (o) that none of these problems had been corrected due to the failure of both the Respondent and Drew to reach an agreement with the Kersteins on how both the defective tile problem and the other problems were to be resolved and; (p) that there had been continuous negotiations between either the Respondent and the Kersteins or Drew and the Kersteins concerning the settlement of this problem.
Recommendation Based upon the findings of fact and conclusions of law cited herein it is RECOMMENDED that the Board enter a final order finding the respondent not guilty of the violations charged in Count I, Count II, and Count III of the Administrative Complaint and that Counts I, Count II and Count III of the Administrative Complaint be DISMISSED. Respectfully submitted and entered this 10th day of July, 1985 in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 1985. COPIES FURNISHED: Douglas A. Shropshire, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Gerald A. Figurski Post Office Box 786 New Port Richey, Florida 33552 Mr. James Linnan Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Count I: Whether Rule 424.2.17.1.9 of the Florida Building, Code, through an amendment of Rule 9B-3.047, Florida Administrative Code, is an invalid exercise of delegated legislative authority because it: (a) enlarges, modifies, or contravenes the statute; (b) exceeds the statutory rule-making authority of the Florida Building Commission; (c) is arbitrary and capricious; and/or (d) is not based on competent substantial evidence. Count II: Whether this Rule was adopted contrary to, and in violation of, the Florida Building Commission's stated rule- making procedure due to a prior settlement. Count III: Whether, with regard to this Rule, the Florida Building Commission failed to adopt a less costly regulatory alternative; and Count IV: Whether Chapter 515, Florida Statutes, is unconstitutional.1/
Findings Of Fact The Code is a unified statewide set of building codes authorized by Chapters 98-287, 2000-141, 2001-186, 2001-372, and 2002-1, Laws of Florida. The Commission is the state agency authorized by statute to adopt, amend, promulgate and maintain the Code. The rule under challenge is Section 424.2.17.1.9 of the Florida Building Code which provides: All doors and windows providing direct access from the home to the pool shall be equipped with an exit alarm complying with UL2017 that has a minimum sound pressure rating of 85dBA at 10 feet and is either hard-wired or of the plug-in type. The exit alarm shall produce a continuous audible warning when the door and its screen are opened. The alarm shall sound immediately after the door is opened and be capable of being heard throughout the house during normal household activities. The alarm shall be equipped with a manual means to temporarily deactivate the alarm for a single opening. Such deactivation shall last no longer than 15 seconds. The deactivation switch shall be located at least 54 inches above the threshold of the door. Exceptions: Screened or protected windows having a bottom sill height of 48 inches or more measured from the interior finished floor at the pool access level. Windows facing the pool on floor above the first story. Screened or protected pass-through kitchen windows 42 inches or higher with a counter beneath. All doors providing direct access from the home to the pool must be equipped with a self-closing, self-latching device with positive mechanical latching/locking installed a minimum of 54 inches above the threshold, which is approved by the authority having jurisdiction. Section 424.2.17.1.9, above, was adopted by the Commission by reference when it adopted Rule 9B-3.047, Florida Administrative Code. The Florida Administrative Code indicates this amendment to Rule 9B-3.047, also adopted the November 6, 2001, Florida Building Code and took effect December 16, 2001.4/ Previous amendments to Rule 9B-3.047, Florida Administrative Code, had been effective on November 28, 2000, and February 7, 2001. Although several portions of the rule were addressed at hearing, see infra., the main thrust of this rule challenge is that Petitioner and Intervenor contend that the rule discriminates against battery-powered alarms in favor of hard- wired or plug-in alarms for doors and windows accessing a swimming pool. Prior drafts of 424.2.17.1.9 and prior provisions of the Standard Building Code and other swimming pool codes relating to exit alarms do not require that exit alarms be "hard-wired" or "plug-in" type alarms. The Standard Building Code does not eliminate battery-powered exit alarms as a means for limiting access to swimming pool areas. No state besides Florida has eliminated them as an option. The rule only applies to new pools or new home construction. FPSA is a non-profit statewide construction trade association of 850 company members, with 10,000 employees, whose membership includes contractors engaged in swimming pool and spa construction, repair, renovation, and service, and whose work is regulated by the Code. It promotes the swimming pool industry through educational business-to-business programs and provides legislative and administrative rule monitoring and lobbying services on behalf of its membership. The subject matter of the challenged rule is within FPSA's scope of interest and activity as a trade association. Only a licensed electrician or alarm specialist can legally install hard-wired alarms. Anyone, including the homeowner; pool contractors, such as FPSA members; or a general contractor, such as Intervenor, can install a battery-powered window or door alarm for a swimming pool. The rule has resulted in members' potential customers delaying decisions to purchase swimming pools. The rule has resulted in FPSA pool contractors having to employ licensed electricians and alarm specialists to do work swimming pool contractors previously could do themselves. Awaiting completion of work by these specialists can delay the approval (Certificate of Completion) of the pool work by building inspectors. Only licensed electricians can legally install swimming pool pumps and pool lights. Awaiting completion of this work can also delay the Certificate of Completion. The type of alarm used affects the swimming pool contractor's cost of doing the project and ultimately impacts the swimming pool contractor's "bottom line." The record is silent about the cost of plug-in alarms. Installation of hard- wired devices currently on the market which would meet the requirements of the challenged rule have been costing FPSA members approximately $400.00-$500.00 for two windows and two doors. This expense may be increased by the number of doors and windows accessing the pool by approximately $150.00-$160.00 per extra door and $70.00 per extra window. Battery alarms cost about $40.00 apiece. Intervenor is a member of the Florida Home Builders' Association. He is a Florida-licensed general contractor. As such, he is required to comply with the Code. In recent years, he has operated through a franchise agreement with Arthur Rutenberg Homes. Ninety-eight percent of his business is construction of new, custom-built, single family residences. Approximately one-third of the homes Intervenor builds include swimming pools as an amenity. Most of his homes range in price from $300,000 to $1,200,000. Intervenor usually hires swimming pool installation sub-contractors, such as members of FPSA, who obtain a separate permit for construction of any pool. Intervenor leaves it to the swimming pool contractor to call for inspections and to see to it that the pool is compatible with all existing building codes, but Intervenor has ultimate responsibility for his new residences' final Code compliance. For a new home, Intervenor usually subcontracts to have hard-wired pool alarm systems installed for approximately $695.00 for two doors and four windows in conjunction with a home security system which itself costs approximately $695.00. This expense can be increased by the number of doors and windows accessing the pool. When a hard-wired alarm is installed in a house under construction after drywall has been installed, Intervenor has to tear out the drywall so the wiring for the alarm can be run in, and then he must re-install the drywall. This method becomes necessary in the few older homes he upgrades with a swimming pool and other amenities or where a new home customer decides to install a pool in mid-construction of the house after further financing has been obtained. This method and expense would not be incurred if battery-powered alarms were allowable under the Code. During the years 2000-2001, the Florida Building Commission was engaged in a marathon rule adoption procedure designed to integrate into the Code, and thereby render uniform, all the competing local building codes within the State of Florida. The purpose thereof was to fulfill the intent of the Florida Legislature that once a uniform basis was established, any amendments to specific components, such as 424.2.17.1.9, would thereafter proceed on triennial or annual cycles. To reach a uniform starting point for the rule amendments and cycles, enabling or implementing statutes were frequently amended by the Legislature to extend their effective dates so as to coincide with the Commission's adoption of the full state- wide Code, which ultimately took effect March 1, 2002. Rule- making, pursuant to Chapter 120, Florida Statutes, continued throughout the various time frames of the statutory amendments. As of June 8, 2001,5/ Section 44, Chapter 2001-186, Laws of Florida, directed that: The Commission shall adopt no amendments to the Florida Building Code until after July 1, 2002, except for the following: emergency amendments, amendments that eliminate conflicts with state law or implement new authorities granted by law, and amendments to implement settlement agreements executed prior to March 1, 2002. (Emphasis added) Section 25, Chapter 2001-186, Laws of Florida, also directed, in pertinent part, that: Further, the Florida Building Code must provide for uniform implementation of Chapters 515.25, 515.27, and 515.29 by including standards and criteria for residential swimming pool barriers, pool covers, latching devices, door and window exit alarms, and other equipment required therein, which are consistent with the intent of Section 515.23.... This legislation was ultimately codified at Section 553.73(2), Florida Statutes (2002). Section 1, Chapter 2000-143, Laws of Florida, had previously set out the following specific legislative findings and intent which ultimately was codified into Section 515.23, Florida Statutes (2002).6/ Legislative findings and intent.--The Legislature finds that drowning is the leading cause of death of young children in this state and is also a significant cause of death for medically frail elderly persons in this state, that constant adult supervision is the key to accomplishing the objective of reducing the number of submersion incidents, and that when lapses in supervision occur a pool safety feature designed to deny, delay, or detect unsupervised entry to the swimming pool, spa, or hot tub will reduce drowning and near-drowning incidents. In addition to the incalculable human cost of these submersion incidents, the health care costs, loss of lifetime productivity, and legal and administrative expenses associated with drownings of young children and medically frail elderly persons in this state each year and the lifetime costs for the care and treatment of young children who have suffered brain disability due to near- drowning incidents each year are enormous. Therefore, it is the intent of the Legislature that all new residential swimming pools, spas, and hot tubs be equipped with at least one pool safety feature as specified in this chapter. It is also the intent of the Legislature that the Department of Health be responsible for producing its own or adopting a nationally recognized publication that provides the public with information on drowning prevention and the responsibilities of pool ownership and also for developing its own or adopting a nationally recognized drowning prevention education program for the public and for persons violating the pool safety requirements of this chapter. Pursuant to the foregoing amendments, which all concerned felt would take effect much sooner than they did, the Commission had the obligation to adopt amendments to the Code to implement new authorities granted by statute, which, in part, included adoption of standards and criteria for swimming pool exit alarms, provided the standards and criteria were consistent with the intent of Section 515.23, Florida Statutes. Section 1, Chapter 2000-143, Laws of Florida, also created Section 515.27, Florida Statutes, effective October 1, 2000, which provided: In order to pass final inspection and receive a certificate of completion, a swimming pool must meet at least one of the following requirements relating to pool safety features. The pool must be isolated from access to a home by an enclosure that meets the pool barrier requirements of Section 515.29; The pool must be equipped with an approved safety pool cover; All doors and windows providing direct access from the home to the pool must be equipped with an exit alarm that has a minimum sound pressure rating of 85 dB A at 10 feet; or All doors providing direct access from the home to the pool must be equipped with a self-closing, self-latching device with a release mechanism placed no lower than 54 inches above the floor. (Emphasis added) One of the four statutorily permissible safety options was that all doors and windows that provide direct access from the home to the pool be equipped with an exit alarm which has a minimum sound pressure rating of 85 dB A at 10 feet. See Section 515.27(1)(c), Florida Statutes. Section 515.25(4), Florida Statutes, defines "exit alarm" as: "Exit alarm" means a device that makes audible, continuous alarm sounds when any door or window which permits access from the residence to any pool area that is without an intervening enclosure is opened or left ajar. During 2001, the Commission was mindful of Section 44, Chapter 2001-186, Laws of Florida, which had been signed by the Governor and filed on June 8, 2001. In fulfilling its mandate to adopt rules to implement the Florida Building Code, the Commission was careful to state on its tracking charts, agendas, and workshop materials that it was only considering the four exceptions for which it was permitted to adopt rules prior to July 1, 2002. The Commission employed the services of the Florida Conflict Resolution Consortium to facilitate its processes. The Consortium is an entity housed within Florida State University that is legislatively mandated to perform consensus building with regard to public policy issues. In 2001, the Commission referred issues to one of three types of subcommittee: Technical Advisory Committees (TACs), Program Oversight Committees (POCs) or Ad Hoc Committees. Ad Hoc Committees were/are comprised solely of Commission members. Public comment was received by the respective subcommittees. If an issue (proposed rule amendment) received a favorable vote by at least 75% (three quarters) of the subcommittee members, a recommendation was developed and forwarded to the Commission as a whole. A 75% (three-quarters) favorable vote of the Commission was also required to adopt a rule. The failure of a subcommittee or the Commission to take affirmative action upon an issue amounted to a rejection of that issue for incorporation into a rule, but the Commission and its subcommittee did not act on motions to deny. They only voted on motions to approve the resolution of an issue. In July 2001, the Commission, sua sponte, took up provisions related to criteria and standards for pool safety measures prescribed by Chapter 515, Florida Statutes. The Commission, with the assistance of the Florida Conflict Resolution Consortium, applied its procedures described above. Commission staff generated draft provisions integrating portions of a recommendation by the Building Officials Association of Florida, independent research and review, and the existing provisions of Section 424.2, Florida Building Code. No amendments were proposed directly to the Commission or its subcommittees from the public relating to pool safety measures on the form promulgated by the Commission for that purpose. On July 9, 2001, the Commission convened an Ad Hoc Committee meeting to consider recommendations for resolution of issues raised relating to implementation of the pool safety measure. Petitioner had representatives, one of whom was its Executive Director, Mr. Bednerik, attend the meeting and offer oral comments. It appears from the transcript of that meeting that written submissions of Petitioner's and other interested persons' concerns were also received. The draft provisions authored by Commission staff included adoption of UL2017, a standard developed by Underwriters Laboratories, and specified in Section 515.27(1)(c), Florida Statutes. At the Ad Hoc Committee meeting, FPSA's Executive Director cited the need for the Code to specify a power source for exit alarms, and specifically stated that, at the time of the meeting, some jurisdictions were allowing battery-powered alarms and some were requiring hard-wired alarms. The Ad Hoc Committee also received comment from Mr. Sparks, a building official from Sarasota. Mr. Sparks expressed a preference that exit alarms be hard-wired, and that if battery-powered alarms were to be allowed, that their use should be limited to homes for which a building permit had been pulled before October 1, 2000, the effective date of Chapter 515, Florida Statutes. The Ad Hoc Committee heard comments that batteries always ultimately fail due to limited battery life and that the date of failure cannot be predicted. The Ad Hoc Committee discussed allowing plug-in type alarms as a possible solution to difficulties with installation of a hard-wired system. Mr. Sparks informed the Committee that plug-in type alarms were available and that he had worked with manufacturers of such devices. The Ad Hoc Committee unanimously voted to recommend to the Commission, during its July 11, 2001 Rule Development Workshop, that exit alarms for new construction after the amendment's effective date be hard-wired or a plug-in type. The Ad Hoc Committee's recommendation was integrated into the proposed Code amendment for the Commission's review, by providing a complete printed copy of the proposed amendment, striking through for eliminated language, and underlining for new language being added. A Rule Development Workshop was convened by the Commission on July 11, 2001. The Ad Hoc Committee's recommendation was submitted to the Commission during the Rule Development Workshop held on July 11, 2001, as a committee report. During the Workshop, Petitioner's Executive Director offered comment to the Commission urging that requiring a retrofit of existing homes was impracticable and would not comport with the "legislative intent" expressed by one of the legislators involved with the passage of Section 515.27(1), Florida Statutes. Petitioner's Director opposed any restriction to hard-wired alarms but acknowledged that battery-powered alarms require positive action to refresh their power source. He acknowledged that Underwriters' Laboratories had attempted to mitigate this shortcoming in a chirper to alert when the battery in a battery- powered alarm runs low. Comments were heard that plug-in type alarms might be dangerous to, or deactivated, by toddlers. The Commission unanimously approved the recommendations of the Ad Hoc Committee with regard to limiting allowable power sources for exit alarms to hard-wired or plug-in types, inherently rejecting the comments of Petitioner's representative. The Commission also approved Committee recommendations allowing a temporary deactivation feature and an exception of specified windows from the requirement for alarms. The expressed purpose for these provisions was to address the practical effects of the exit alarm requirement without diminishing the intent of improved safety. The Commission noticed the Code revisions for rule adoption in the Florida Administrative Weekly published on August 3, 2001, with a hearing to be held on August 28, 2001. At the Rule Adoption Hearing on August 28, 2001, Petitioner's representative expressed his belief that it was the Legislature's intent that inexpensive battery-powered alarms be used everywhere and affirmatively stated that Petitioner would concur in the view that battery-powered alarms should be permitted in existing dwellings. Petitioner's representative also implied that the Commission had the authority to adopt UL2017. The UL2017 standard provides criteria and specifications for "residential swimming pool entrance alarms." It addresses requirements for alarms that are battery-powered, hard-wired, and plug-in. The standard was adopted by Underwriters' Laboratories and available in 1995 or 1996. It encompasses 85 dBA at 10 feet of sound pressure. Its concept of "continuous" means "not intermittent" or "not variable." It allows a seven-second delay before an alarm activates and then requires that an alarm activate immediately and continually. Evidence was adduced in the instant rule challenge hearing that none of the four protective options provided in Section 515.27(1), Florida Statutes, is required to be maintained after the final inspection or certificate of occupancy has been completed. Batteries expire or homeowners may intentionally remove them. In either situation, the alarm will not sound. One of Intervenor's witnesses described a study in which the main reason for failure of battery-powered smoke detectors is that the battery had discharged. The Florida Life Safety Code (Fire Code) permits battery-powered smoke detectors in older, existing homes, but like the challenged rule, requires hard- wired devices in new home construction. Hard-wired pool exit alarms can be disabled by a power outage or by deliberately flipping a circuit breaker. Plug-in alarms can be unplugged so as to be rendered ineffective. They also may present a danger to children or the elderly if extension cords are used. Some witnesses consider it inconsistent of the rule to require an alarm deactivation switch and a self-latching device that is 54 inches above the threshold but fail to specify that an electric plug for a plug-in door or window alarm also be 54 inches above the threshold, due to the potential for children to unplug plug-in alarms. Some witnesses at hearing complained that because Section 515.27(1)(d), Florida Statutes, specifies that a release mechanism switch for self-closing, self-latching doors is to be 54 inches above the floor and the challenged rule for door and window exit alarms specifies deactivation switches are to be at least 54 inches from the threshold, there is a variance between the rule and the statute, and the rule is confusing. However, a door's "threshold" as used in the rule, is a consistent place to measure the 54 inches from; is a spot that can be agreed upon by the contractor and inspectors; and is a designation which eliminates any confusion as to whether measurement is to begin from the outside or inside "floor," while serving the spirit of the statute. Some witnesses at hearing complained that the language "immediately after the door is opened and be capable of being heard throughout the house during normal household activities," as used in the rule is vague. However, it appears that any vagueness is cured by the inclusion of the UL2017 standard in the challenged rule. Witnesses who complained of confusion as to whether doors and screens must each be "alarmed" were not credible because the challenged rule clearly specifies "warning when the door and its screen are opened." (Emphasis supplied) Some witnesses complained that they thought the term "plug-in" could refer to installing a battery into an alarm. This concept defies both the first approved dictionary definition in evidence and common sense. There were a number of battery-powered exit alarms on the market when the rule was adopted and when it became effective which would make an audible, continuous alarm when a door or window which permits access to the pool area is opened, but there were no such hard-wired or plug-in devices available at that time. Acceptable hard-wired and plug-in alarms which meet the rule's requirements are available now. The Florida Home Builders Association (FHBA) had previously challenged unrelated proposed Code rules in DOAH Case No. 00-1252RP. That rule challenge was resolved by an October 17, 2000, Settlement Agreement, which was amended on November 1, 2001, after the case was closed. The FHBA Settlement Agreement provided that, in exchange for FHBA's dismissal of DOAH Case No. 00-1252RP, the Commission would adopt a rule setting forth a procedure for adoption by the Commission of any other new amendments to the Code, including creating a fiscal statement in connection with all proposed Code revisions; review by a TAC of all technical revisions; providing notice on the Internet of all proposed revisions; providing 45 days between the date of notice and consideration of an issue by a TAC or by the Commission; and providing a reasonable time period in which the Committee and Commission respectively would hear testimony on rule proposals. The FHBA Settlement Agreement did not require immediate application of the agreed rule promulgation procedures prior to adoption, by rule, of those rule promulgation procedures. It also did not require application of new statutory requirements to the Commission's rule promulgation procedures prior to the effective date of any new statute. The Commission did not perform a fiscal analysis/statement; have a TAC consider challenged Rule 9B-3.047 or 424.2.17.1.9; or provide 45 days' notification of Committee or Commission meetings. However, pursuant to Chapter 120, Florida Statutes, Internet notice of all proposed rules and amendments was provided. The procedures required by the FHBA Settlement Agreement, including but not limited to the requirement of a fiscal impact statement, plus additional procedures, were codified in Sections 553.73(2), 553.73(3), 553.73(6) and 553.73(7), Florida Statutes. These statutes originated in Chapter 2001-186, Laws of Florida, which was subsequently amended or superceded by other legislative action. The legislative history shows the effective dates of these statutory rule promulgation procedures was postponed to March 1, 2002. See the Conclusions of Law Also, similar rule promulgation procedures which equate with the FHBA Settlement Agreement were promulgated in Rule 9B-3.050, Florida Administrative Code, which the Florida Administrative Code states took effect on November 20, 2001.
The Issue Whether the Petitioner owes sales and/or use tax as set forth in the Respondent's Notice of Decision dated May 12, 2008, and, if so, the amount that is owed.
Findings Of Fact The following facts were included in the stipulation of facts included in the parties' Joint Prehearing Statement: Bests is a domestic corporation headquartered in Broward County, Florida. Bests is a cleaning and maintenance company. The company contracts with customers to clean non-residential buildings only. The majority of the customers are government agencies and state colleges. The company hires subcontractors for some of the services such as pressure cleaning, window cleaning, grounds maintenance and landscaping. The Department is the agency of state government authorized to administer the tax laws of the State of Florida. § 213.05, Fla. Stat. (2008).1 The Department is authorized to prescribe the records to be kept by all persons subject to taxes under Chapter 212, Florida Statutes. Such persons have a duty to keep and preserve their records, and the records shall be open to examination by the Department or its authorized agents at all reasonable hours, pursuant to Section 212.12(6), Florida Statutes. The Department is authorized to conduct audits of taxpayers and to request information to ascertain their tax liability, if any, pursuant to Section 213.34, Florida Statutes. On October 3, 2005, the Department initiated an audit of Bests to determine whether Bests was properly collecting and remitting sales and use tax to the Department. The audit period was from September 1, 2002, through August 31, 2005. The audit determined liability existed in four areas2: Exhibit A01 - cleaning contracts for which documentation supporting the claimed exempt nature of the transaction could not be produced; Exhibit B01 - paper products and hand soaps purchased by Bests in performance of the facility custodial service contract with Florida Atlantic University; Exhibit B02 - items purchased by Bests for general use in the operation of its business, such as office supplies, automobile and truck expenses, repair and maintenance to equipment, computer services, etc. Only the amount assessed in Exhibit B01 is at issue. On July 26, 2006, the Department sent Bests its Notice of Intent to Make Audit Changes ("NOI"), with schedules, showing that Bests owed to the Department additional sales and use tax in the amount of $195,540.35, penalty in the amount of $41,885.11, and interest through July 27, 2006, in the amount of $41,514.08, making a total assessment in the amount of $285,939.54. Additional documentation was provided by Bests, resulting in revisions to the NOI. On January 16, 2007, the second and final revised NOI was issued. The amount of sales and use tax due had been adjusted to $47,473.46 and interest in the amount of $12,536.88. The penalty amount was waived in its entirety. On January 25, 2007, the Department issued its Notice of Proposed Assessment. Bests timely filed a written protest of the Department's proposed assessment. On May 12, 2008, the Department issued the Notice of Decision ("NOD") in response to the protest by Bests, sustaining the assessment in its entirety. By check dated July 9, 2008, Bests remitted $12,500.00 to the Department to be applied to the assessment found in Exhibits A01 and B02. The following facts are based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding: On May 1, 2003, Florida Atlantic University issued a Request for Proposal ("RFP") for facility custodial services at its Boca Raton, Florida, campus. Section 5 of the General Conditions of the RFP, advised that it was "a public corporation of the State of Florida [that] does not pay Federal Excise or Sales taxes on direct purchases of services."3 Florida Atlantic University has been considered a tax-exempt entity for the purposes of this proceeding. Section 3.0.0 of the RFP described the scope of work covered by the RFP, and, in general, required that the contractor be "fully responsible for providing services called for in this RFP."4 The scope of work described for restrooms and locker rooms included cleaning, polishing, washing, dusting, mopping, and scrubbing, and, pertinent to this case, the contractor was specifically required to "[e]mpty waste receptacles and change liner," and "[r]estock dispensers: soap, paper towel, toilet tissue and sanitary napkins."5 Section 4.4.8 of the RFP specified the supplies that were to be furnished by the contractor: Services shall include all equipment, supplies and materials to include liquid hand soap of a bactericidal type, paper towels, toilet tissue, toilet seat covers, sanitary napkins, wax bags, plastic bags for waste paper baskets, all cleaners, waxes, deodorants and other cleaning materials to perform the contract services. . . . * * * Contractor shall be responsible for keeping soap, paper towel, sanitary napkin and toilet tissue dispensers adequately filled at all times. * * * SUPPLIES AND MATERIALS All product selection and usage must be approved by the Director. Minimally, the following products are used (no equivalents without the approval of the Director): Johnson Softcare Multi-fold Natural Scott Towels JRT/JRT Escort Tissue Merfin paper towel rolls . . .[6] Section 4.5.0 of the RFP specified the cleaning standards that must be met by the contractor. Pertinent to this proceeding, general cleaning standards for restrooms included the following requirements: d. Dispensers & Receptacles - All supply dispensers shall be filled. . . . Waste receptacles shall be emptied and supply dispensers shall be refilled. . . . All toilet stalls shall be furnished with toilet seat cover dispensers. The Contractor shall be responsible for maintaining them and making certain that they are properly stocked at all times.[7] Finally, Section 1 of the "Special Conditions" portion of the RFP provides: Florida Atlantic University's Physical Plant Department ("Department") requires the services of a Facilities Services Contractor to provide Facility Custodial Services at a firm square foot price for cleaning services in designated buildings on FAU's Boca Raton Campus. FAU is also requesting unit prices to enable adding additional areas to the contract, and per man-hour prices for adding additional staffing services to the contract as needed.[8] Section 9(d) of the "Special Conditions" portion of the RFP provides with respect to contract service costs: "This RFP seeks firm pricing for facilities management services on both existing and future buildings. The fixed fee will be broken down as indicated on the forms. Charges for additional services will be provided on the forms as unit prices."9 The Contract Services Costs form to be submitted with proposals is found in Section 5.3.1 of the RFP, and the instructions provide: "The below listed annual fixed costs are quoted for the provision of necessary management, supervision, labor, material, supplies, equipment, vehicles, and all related items to perform the work described in the Scope of Work and Specifications contained herein and as related to the initial areas of coverage. "10 Bests was awarded the contract for custodial services at the Boca Raton campus, and Florida Atlantic University entered in the Agreement for Services, with services to begin on August 9, 2003, and end on June 30, 2006. In the agreement, Bests agreed to provide custodial services in accordance with the provisions of the RFP, and it agreed to be "responsible to provide all material, labor, equipment and supplies necessary to provide custodial and cleaning services for designated buildings on Florida Atlantic University's Boca Raton Campus."11 The agreement also provided that the total amount payable under the agreement would not exceed $3,500,000.00, with the amount "determined in accordance with the Vendor's price proposal dated May 29, 2003, incorporated and attached herein as Attachment A, and based on estimated usage." Bests calculated the total annual cost to include on the Contract Service Costs form, first, by examining the buildings included in the RFP and calculating the annual cost per square foot of providing the cleaning and maintenance services specified in the RFP. Bests separately calculated the annual cost of the paper products and hand soap to be used to fill the restroom dispensers by examining demographic data about the users of the restroom facilities, as well as the hours of usage, and added it to the annual cost per square foot of providing the services specified in the RFP to arrive at its total annual costs. Bests purchases the paper supplies and soap used to fill the restroom dispensers from a supplier, who delivers the supplies directly to the storage room at the Florida Atlantic University Boca Raton campus used by Bests to store their cleaning materials and supplies. These paper products are used by Bests to refill the restroom dispensers, as required by the RFP. The Department set forth the facts and legal grounds on which it based it assessment of use tax for the paper products and soap used to fill the restroom dispensers in the Notice of Decision dated May 12, 2008, in which it concluded "that the taxpayer is the ultimate consumer [of the paper products and hand soap] and therefore liable for use tax on all taxable cleaning supplies."12 The Department based this conclusion on the following reasoning: "As shown, the laws governing sales and use tax makes [sic] the purchaser obligated to pay a use tax at the moment taxable goods and services are purchased for its own use. Take toilet tissue, paper towels, feminine napkins and hand soap for instance. These items are purchased by the taxpayer, removed from their container by the taxpayer, then unwrapped from the original packaging and placed in service by placing them in paper towel holders or toilet tissue holders located in the area being cleaned (e.g. restroom) by the taxpayer. At no time during the term of the agreement does the taxpayer's customer know the quantity of items used, nor does the taxpayer's customer personally handle these items. The taxpayer takes issue with these items being subject to use tax because the taxpayer does not personally dispose of these items. . . . [I]t is not the ultimate act resulting in the disposal of the items that triggers the tax. It is the taxpayer's use during the cleaning process that makes the taxpayer the ultimate consumer.[13] Summary The evidence establishes that the services Bests agreed to perform under the Agreement for Services with Florida Atlantic University included cleaning the restrooms in the buildings covered by the agreement, refilling the restroom dispensers, and providing the paper products and soap to be used in refilling the restroom dispensers. The evidence establishes that, taken in the context of the RFP as a whole, the purchase of the paper products and soap supplies is incidental to the main purpose of Bests agreement with Florida Atlantic University, which is to provide custodial services. The Department's contention that the paper products and soap used to refill the restroom dispensers at the Florida Atlantic University Boca Raton campus are cleaning supplies taxable to Bests is rejected. The cleaning supplies taxable to Bests are such things as mops, brooms, sweepers, cleaning agents, chemical, solvents, and rags, that it uses and consumes in performing cleaning services for Florida Atlantic University, and Bests does not contest the tax assessment on such items. Bests did not use or consume the paper products and soap, or otherwise exercise the rights of ownership over these products, simply because its employees removed them from the room in which they were stored, removed them from their packaging, and placed them in the restroom dispensers. Bests never exercised any rights of ownership over the products at issue, and the Department's contention that the taxable event in this case occurred when "the items were delivered to Bests and Bests put those items into operation" is rejected.14 First, the evidence establishes that delivery of the paper products and soap was made to a storage room on the Florida Atlantic University Boca Raton campus and that Bests left in the storage room the paper products and soap remaining at the time the Florida Atlantic University contract was complete. Second, Bests did not consume or use the products simply by placing them in the restroom dispensers. Placing them in the dispensers was part of custodial service Bests provided under the agreement with Florida Atlantic University; the mere fact that Bests was required as part of its Agreement for Services with Florida Atlantic University to purchase the paper products and soap did not render Bests the user or consumer of the products. Rather, the evidence establishes that Florida Atlantic University provided the paper products and soap for the use of its students and staff, both for sanitation purposes and for the convenience and comfort of its students and staff. Florida Atlantic University, therefore, used the paper products and soap as part of the business of operating a university, and, were it not for its tax-exempt status, Florida Atlantic University would be responsible for paying Florida's sales and use tax on the paper products and soap. Finally, the Department's contention that Bests did not "sell" the paper products and soap to Florida Atlantic University because they were not separately priced in its proposal or separately listed in the invoices submitted to Florida Atlantic University is rejected. The RFP pursuant to which Bests submitted its proposal specifically required that the total cost of providing the cleaning services and supplies, including the paper products and soap used to fill the restroom dispensers, were to be included on the Contract Service Costs form, and the evidence establishes that Bests asked Florida Atlantic University if it could invoice the paper products and soap separately and was told that they could not.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue issue a final order withdrawing the sales and use tax assessment against Bests Maintenance and Janitorial Services, Inc., for the audit period extending from September 1, 2002, through August 31, 2005. DONE AND ENTERED this 3rd day of February, 2009, in Tallahassee, Leon County, Florida. PATRICIA M. HART 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 3rd day of February, 2009.
Findings Of Fact When the third vinyl liner Brenda Hanna had installed in her swimming pool also ripped, she decided concrete would serve better. A friend referred her to respondent Richard Cobb. Mrs. Hanna and Mr. Cobb entered into a written agreement on March 10, 1977, by which Mr. Cobb undertook, among other things, to cement the pool walls and bottom, in exchange for eighteen hundred eighty dollars ($1,880,00). Plumbing was not covered by this agreement. Approximately one month later two workmen began on the project. Work progressed sporadically. Mr. Cobb himself helped remove the vinyl wall, remove aluminum plates, widen the existing excavation and replace the aluminum plates with the intention of using them as part of the forms for pouring the concrete swimming pool walls. Mr. Cobb also put some steel bars in place, After several telephone calls, on October 17, 1977, Mrs. Hanna wrote respondent saying he had 15 days in which to resume work and 45 days thereafter to finish. On or about November 1, 1977, respondent appeared at the job site. The last day he worked on the project Mrs. Hanna told Mr. Cobb she would call him when she had gotten the plumbing finished. Mrs. Hanna never told Mr. Cobb not to finish the work he began for her. On or about March 10, 1977, Mrs. Hanna wrote a check in favor of DLC, a contracting company, in the amount of five hundred dollars ($500.00), which she intended as partial payment under the contract she entered into on March 10, 1977. Two weeks after work began, Mr. Cobb asked Mrs. Hanna for more money, saying that DLC had charged him five hundred dollars ($500.00) for getting the job for him. Mrs. Hanna gave him one hundred dollars ($100.00) at that time, After Mrs. Hanna investigated, she again discussed what had happened to the first five hundred dollars ($500.00) with Mr. Cobb who conceded that some bills were paid with the money. On another occasion, Mrs. Hanna advanced one hundred fifteen dollars ($115.00) which Mr. Cobb used to buy steel. Before beginning work Mr. Cobb, who held individual swimming pool servicing contractor's license No. RP 2997 from March 17, 1977, till June 30, 1977, secured building permit No. 77-338 to repair Mrs. Hanna's swimming pool. John F. Viking, an investigator in petitioner's employ since February 15, 1971, issued a notice of violation to Mr. Cobb in 1971 or 1972, when he was told that Mr. Cobb had been contracting without a license. In 1973, on the basis of similar information, he filed a complaint with the state attorney's office which he understood resulted in Mr. Cobb's conviction and probation. Lester A. Davis, a long time employee of the City of Gainesville and presently its acting building official, visited Mrs. Hanna's residence after Mr. Cobb had begun work and asked Mr. Cobb to show him engineering plans. In Mr. Davis' opinion, the plans Mr. Cobb showed him were not being followed. Mr. Davis told Mr. Cobb that he could finish the job only if he associated a contractor licensed to build swimming pools. Mr. Davis inspected and discovered that the bottom drain had been installed. No other plumbing was required to be done before cementing the pool walls and bottom.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner suspend respondent's license for one year. DONE and ENTERED this 28th day of November, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Michael Egan, Esquire Post Office Box 1386 Tallahassee, Florida 32302 Richard Cobb, Esquire 1238 Southest 18th Terrace Gainesville, Florida 32601 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. CASE NO.: 78-1553 RICHARD COBB, RP 0029977, 1238 S. E. 18th Terrace, Gainesville, Florida 32601, Respondent. /
Findings Of Fact Respondent is the holder of currently active General Contractor's license No. RG-0023888. On January 18, 1977, Norwood W. Hope (hereinafter "Developer") entered into a contract with Respondent for the construction of a commercial swimming pool. Respondent was to have been paid the amount of $43,346.40 under the contract for construction of the pool. The contract amount was to be paid pursuant to a five-stage draw schedule as follows: 1. Framing and steel draw paid $10,836.60 2. Gunite draw paid 10,836.60 3. Mancite draw 7,224.40 4. Equipment set draw 7,224.40 5. Final approval draw 7,224.40 Respondent made application for an Alachua County building permit for the swimming pool project on February 23, 1977. The permit application was approved on February 25, 1977, and a building permit was issued. Thereafter, the project received Alachua County approval on a temporary power pole inspection on June 1, 1977. An interim inspection of the property was made by Alachua County officials on November 7, 1977, with no deficiencies noted. A final inspection on the electrical work on the project was made, with satisfactory results, on November 8, 1977. The Alachua County Building Code, by incorporation of the 1973 Southern Standard Building Code, 1974 Revision, provides, in part, as follows: 108.2--INSPECTIONS REQUIRED The Building Official shall inspect or cause to be inspected at various intervals all construction or work for which a permit is required, and a final inspection shall be made of every building or structure upon completion, prior to the issuance of the Certificate of Occupancy, as required in Section 109. * * * (c) The Building Official upon notifica- tion from the permit holder or his agent shall make the following inspections of buildings and such other inspections as may be necessary, and shall either approve that portion of the construction as completed or shall notify the permit bolder or his agent wherein the same fails to comply with the law: * * * Final Inspection: To be made after the building is completed and ready for occupancy. (Emphasis added). The contract entered into on January 18, 1977 between the Developer and Respondent called for Respondent to construct the swimming pool according to the plans and specifications admitted into evidence as Petitioner's Exhibit No. 1. Associated construction, including construction of concrete pool decking, a pumphouse and a fence surrounding the swimming pool site were either completed by the Developer or by other sub contractors. By invoice dated October 12, 1977, Respondent requested a final draw on the project in the amount of 87,000, which, if paid, would have left only $224.40 unpaid under the contract. This draw request indicated that a balance due for extra time and materials would be billed ". . . upon acceptance of total pool." (Respondent's Exhibit No. 4). On October 25, 1977, the Developer paid $6,000 of the $7,000 requested to be paid by Respondent's invoice of October 12, 1977. The Developer contested Respondent's expressed intention to bill for additional time and material, asserting that the Developer had not approved any additional sums for extras. In remitting the $6,000 payment to Respondent, the Developer indicated that "[t]his leaves a balance on our account of $1,224.40, which will be paid upon checking out the pool." (Respondent's Exhibit No. 2). (Emphasis added.) An invoice for back charges on the swimming pool project in the amount of $274 was forwarded to the Developer by Respondent by invoice dated November 8, 1977. In addition, on November 8, 1977, Respondent also invoiced the Developer for a final draw on the project in the amount of $1,224.40. At some time after notification from the Developer's representatives that tile targets in the racing lanes of the pool were improperly located, Respondent returned to the job site after November 9, 1977 to relocate the targets. Respondent performed this work as a result of a written request from the Developer dated November 9, 1977. Respondent completed primary construction of the pool prior to submission of the final draw request of October 12, 1977. At that time, back- filling around the exterior of the pool structure preparatory to the pouring of the concrete pool decking had not been completed. Although by October 12, 1977, Respondent had removed much of the excess dirt and debris from around the edges of the pool. There were still areas of exposed piping which would, in due course, be covered with back-fill and tamped by the decking subcontractor. Respondent did not attempt to back-fill or tamp any areas around the pool's piping system. At some time subsequent to October 12, 1977, which date is not clearly reflected in this record, a separate sub- contractor completed back-filling work around the pool, and poured the concrete decking. Neither the Developer nor his subcontractor advised Respondent that the back-filling had been accomplished and that the deck was to be poured. Prior to October 12, 1977, Respondent "pressure tested" the pool's piping system, and determined that the pool would hold water at a level above its scum gutters. The results of this testing indicated that, at least as of October 12, 1977, there was no leakage from the pool. Standard practice in the pool construction industry dictates that a minimum of three pressure tests be made of a pool's piping system during the course of construction. The first of these tests should occur immediately after installation of the pipes, and a second test should be performed immediately before final back-filling to cover the pipe system. A final pressure test should be conducted after tamping of the fill and prior to the pouring of concrete for the pool deck. The obvious purpose of this system of pressure testing is to discover any water leaks before concrete pool decking is poured to avoid having to cut out sections of the concrete in order to locate leaks. Because the Developer and his subcontractor failed to notify Respondent of further work being done on the pool. Respondent was unable to perform a pressure test either after back-filling was completed, after the back- fill had been tamped and before the concrete deck was poured. By letter dated January 17, 1978, Respondent was furnished by the Developer with a "punch list" indicating several areas of deficiency that needed to be corrected in the pool. In that letter the Developer requested that Respondent complete the necessary work within seven days. The Developer forwarded a second letter to Respondent dated February 23, 1978 advising Respondent that the punch list items had not been corrected, and urging Respondent to complete the work described in the punch list as soon as possible. From receipt of the punch list in January of 1978 through the middle of March, 1978 Respondent had workers on the job intermittently making the corrections indicated in the punch list. Respondent satisfactorily corrected fifteen of the eighteen items listed as defective n the punch list. Some of the items were repaired by other subcontractors. Respondent had difficulty obtaining some items of equipment, which he was required to back-order. When the back-ordered equipment was slow in arriving, the Developer opted to obtain these items from a source other than Respondent. Respondent replaced a defective pump associated with the pool construction at some time subsequent to January 18, 1977. The last work performed by Respondent on the pool project occurred some time between March 10 and March 16, 1978. At no time thereafter was Respondent ever advised by the Developer that any work performed under the contract was either unsatisfactory or incomplete. The pool received a final State of Florida, Department of Health and Rehabilitative Services inspection on July 13, 1978, at which time all necessary permits for operation of the pool under applicable regulations were issued. Respondent at no time requested that Alachua County officials come to the job site to conduct the necessary final inspection of the project, nor did he advise the Developer of the necessity to do so. At some time during 1979, subsequent to the completion of the swimming pool project, the Developer discovered that the pool was losing water at a rate of approximately 2,100 gallons per day. During this period, the water level inside the pool would drop to a level equal to the piping running around the exterior of the pool shell and under the pool decking. When the Developer was unable to ascertain the cause of the leak, an outside subcontractor was hired to check the pool. This sub- contractor performed pressure tests on the pool's piping system in an attempt to determine whether the leakage was occurring through the pipes. These tests apparently showed no leakage through the piping system. The Developer then caused the concrete decking around the edge of the pool to be removed in order to more closely inspect the interior piping. At this point it was discovered that there existed flaws and breaks in the neoprene piping surrounding the exterior shell of the pool. After repairs to the damaged piping, the pool decking was repoured and there has been no subsequent leakage problem in the pool. The Developer incurred expenses in the amount of $2,288 in removing the decking around the pool and repairing the neoprene piping. Because of the fact that several subcontractors in addition to Respondent worked in the pool area during construction of the pool project, it is impossible on the basis of this record to determine the cause of the damage to the neoprene piping. Respondent's testimony is uncontroverted that pressure testing performed prior to the conclusion of primary work on the pool in October of 1977 showed no leakage through the pool's piping system. Further, at the conclusion of the primary work in October, 1977, much of the pool's piping system was left exposed and could have been damaged either by the Developer's own workers or by employees of other subcontractors in the course of back- filling and tamping fill material preparatory to pouring concrete decking. The Developer's failure to advise Respondent of the schedule for back-filling, tamping and pouring of concrete deprived Respondent of an opportunity to properly pressure test the piping system at appropriate stages of construction. Respondent has submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings of fact are not incorporated in this Recommended Order, they have been rejected as being either irrelevant to the subject matter of this proceeding or as not having been supported by the evidence.
Findings Of Fact William R. Rifenburgh, Jr. is licensed as a certified general contractor (License No. CG C011375), certified pool contractor (License No. CP C010307) and registered pool contractor (License No. RP 0023263). Respondent held the above licenses at all times material to this action. In early 1978, Rifenburgh entered an oral contract with Personalized Construction Company to install a Nautilus Spa at a house this company was constructing at 9186 Northwest 21st Street, Coral Springs. Respondent then installed the spa exclusive of deck, electrical and brick work. Periodic inspections of the spa project were conducted between February and December, 1978, by the City of Coral Springs Building Department. The facility did not pass final inspection because of electrical wiring deficiencies and the purchaser's contention that the spa lost water. A follow-up final inspection has never been requested. The house was purchased by Nathaniel Gerold in March, 1978. Gerold paid about $5,200 to Personalized Construction Company for the spa, but later recovered this amount in a judgment against Personalized Construction. Between May and December, 1978, Gerold called Respondent numerous times regarding the inability of the spa to hold water. Nothing substantial was done by Respondent during those months. However, Respondent did return to the site in January, 1979, at the urging of the Coral Springs Building Department, but was refused access to the property by Gerold. As a result of Gerold's complaints, the City of Coral Springs Building Department withheld Respondent's building permit privileges beginning in March, 1980. However, no hearing was held nor was formal disciplinary action taken by the municipality. Respondent's building permit privileges were restored by the Building Department in February, 1981, on advice of the City Attorney. Respondent and Personalized Construction had several disagreements regarding the amount and schedule for payments to Respondent. However, Respondent was paid in May, 1978, by Personalized Construction for completion of the project, and was not a party to the lawsuit wherein Gerold recovered from Personalized Construction for the defective spa. Personalized Construction subcontracted the deck work, and this subcontractor was responsible for breaking some of the spa plumbing Respondent had installed. Although the underground pipes were repaired, they remain a possible source of water loss. It was not established if the current water loss is occurring through these pipes, from leaks in the prefabricated spa or through normal evaporation.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint be DISMISSED. DONE AND ENTERED this 16th day of June, 1981 in Tallahassee, Leon County, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 1981. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Andrew M. Chansen, Esquire Suite 108 2000 East Oakland Park Boulevard Ft. Lauderdale, Florida 33306
