Findings Of Fact At all times pertinent to this proceeding, Respondent, Alfred C. Wicht, has been registered as a pool contractor, license numbers RP 0026439 and RP A026439. At all times material herein, Respondent was the qualifier for Heritage Pools, Inc. On or about August 1, 1978, Heritage Pools, Inc. entered into a contract with Pacesetter Homes, Inc. to install a swimming pool at 3530 North 30th Terrace, Hollywood, Florida, for the sum of $5,350.00. Heritage Pools, Inc. commenced construction and completed the pool through the gunite and tile stage and received draw payments totaling approximately $4,295.00. About April or May, 1979, the pool popped out of the ground through no fault of the Respondent. The Respondent made some effort at repairing the pool and placing it back in the ground from the date it popped out through October, 1979. Respondent conceded that he delayed completing his repairs on the pool by virtue of the expense it was causing to his company and his belief that Pacesetter Homes, Inc. should have provided financial assistance. On or about December 5, 1979, Pacesetter Homes, Inc. learned that the pool could not be repaired and hired Electra Pools, Inc. to take out the pool initially installed by Respondent, and install a new pool in its place.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner enter its Final Order dismissing the charges contained in the Administrative Complaint. DONE and ENTERED this 27th day of May, 1983, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 1983. COPIES FURNISHED: Michael Cohen, Esquire Suite 101, Kristin Bldg. 2715 E. Oakland Park Blvd. Ft. Lauderdale, Florida 33306 Alfred C. Wicht 6701 Cypress Rd., #108 Plantation, Florida 33317 James Linnan, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Respondent, Wesley Ash, currently holds license number CP C015871 issued by the Construction Industry Licensing Board to authorize Ash to engage in the pool contracting business. Dodd Complaint (Count I). Respondent, Wesley Ash, doing business as Wada Pools, Inc., contracted with Jerry Dodd on or about June 17, 1981, to build a pneumatic concrete pool with skimmer and recirculation system. The contract did not include installation of the concrete deck around the pool. Dodd decided to contract with another independent contractor to install the deck at a lower price than Ash wanted for the job. Ash completed his work by approximately August 1981. He installed the concrete pool shell, finished the inside surface and installed tile along the water line. He then attached the skimmer assembly, plumbing it so that it was level and attaching it to the concrete pool shell by means of the skimmer's PVC plumbing piping. After Ash finished his work, Dodd's other contractor came behind Ash. He used some of the dirt Ash had excavated from the pool site to raise the ground surrounding the pool by approximately six inches above grade. He then poured the concrete deck but failed to encase the skimmer assembly with the deck concrete in the process of pouring the concrete deck. It was not Ash's practice to make any special arrangements to stabilize the skimmer assembly when he installed both pool and concrete deck. He relies on the skimmer assembly plumbing to stabilize the skimmer assembly until the concrete deck is poured. In pouring the concrete deck, Ash encases the skimmer assembly with the deck concrete to stabilize the skimmer assembly and prevent leakage. In the case of the Poland pool (paragraphs 17 and 22, below), Ash used this method to install both the pool and the concrete deck, and Poland has had no complaint of leakage at the skimmer (nor was there any evidence of leakage at the skimmer). In the case of the Priests' pool (paragraphs 11 through 13, below), Ash followed the same procedures as he did with the Dodd pool, and another contractor poured the concrete deck. As with the Poland pool, there have been no complaints (nor was there any evidence) of leakage at the skimmer. Within approximately one and one-half years after installation of the Dodd pool, Dodd began to notice what he thinks is a leak in his pool. The water level in the Dodd pool drops approximately one-quarter inch per day. But the Department's own expert witness conceded that water loss of between one-eight and one-quarter inch can be explained by evaporation. It was not proved that the Dodd pool is leaking at all. If there is a leak causing a small increment of water loss above loss through normal evaporation, the leak would have to be very small and would be very difficult to detect. Ash and others have tried but have been unable to find a leak at the skimmer of Dodd pool. In approximately summer 1985, Dodd himself dug a hole under the concrete deck to expose the bottom of the skimmer assembly. The excavation revealed an unusual amount of moisture that might be the result of a leak at the skimmer. It also revealed that the contractor who poured the Dodd concrete deck did not encase the skimmer assembly as Ash had thought he would. The Department's expert - a professional engineer with a B.S. degree in civil engineering, an M.S. degree in structural engineering and a Ph.D. degree in environmental engineering - gave his opinion that a residential pool skimmer assembly should be either (1) encased with the concrete of the pool shell or (2) encased with deck concrete which is structurally tied to the concrete pool shell. He opined that the latter method would require either a very rough surface on the pool shell concrete or steel extending from the pool shell in order for the structural tie to be accomplished. But he also conceded that it is possible for deck concrete encasing a skimmer assembly to be sufficient to stabilize the skimmer assembly even without taking any extra measures to accomplish a structural tie. There was no evidence that any building code would require a pool contractor to take these measures to accomplish a structural tie between the pool shell and skimmer assembly. Nor was there any evidence that a reasonably prudent pool contractor (as opposed to a professional engineer) would be expected to take these measures. Based on this evidence, together with all the other evidence taken as a whole, the Department did not prove that Ash was either incompetent or grossly negligent in not taking any extra measurers to accomplish a structural tie between the concrete pool shell and the skimmer assembly. Based on the evidence in this case, the contractor Dodd hired to pour the concrete deck was either incompetent or grossly negligent (assuming he was even a licensed pool contractor a fact not shown by the evidence.) He did not encase the skimmer assembly with the deck concrete, allowing it to "float" unprotected in the fill under the concrete deck. Settling of the fill could have caused the deck to settle and crack, moving the skimmer assembly and causing a small leak. Ash may have been able to prevent this by warning the contractor to be sure to encase the skimmer assembly with deck concrete when he poured the concrete deck. But there was no evidence that Ash had a duty to advise the other independent contractor Dodd hired or was responsible for the other contractor's incompetence or gross negligence. Ash's failure to advise the other contractor was not incompetence or gross negligence on Ash's part. Dodd has no other complaints about the pool Ash built for him. Priests' Complaint (Count II). On or about October 11, 1984, Ash contracted with Joseph and Rita Priest to build them a pneumatic concrete pool. The Contract included a warranty that the labor, materials and workmanship would be free of defects for one year and that the shell would be structural sound and capable of holding the water for ten years. Like Dodd, the Priests contracted with another independent contractor to install the concrete deck around the pool. Ash was responsible only for placement of decorative "river rock" on top of the deck. Ash finished his work in February 1985. Like Dodd, the Priests complained of water loss from the pool although the Priests noticed the water loss sooner than Dodd (approximately March, 1985). The water level was dropping approximately one-quarter inch per day more than it was dropping in a bucket used as a control. In response to the complaint, Ash sent his employees to the Priests' pool on several occasions. They found no leak at the skimmer. To determine whether the pool's "caretaker system" 1/ was leaking, Ash's employees plugged all but one pair of the caretaker heads. After waiting a period of days, they would try to see whether the rate of water loss changed. They tested all four pairs of caretaker heads on the bottom of the pool and the pair in the spa attached to the pool. No leaks could be found. They did not replace the last two (in the spa), and Mr. Priest had to replace them. As with the Dodd pool, the Department did not prove that the Priests' pool is leaking at all. The Priests continue to complain of water loss of approximately one-quarter inch per day, within the range of water loss from normal evaporation. As with the Dodd pool, a leak responsible for a small increment of water loss above water loss from normal evaporation would be very small and difficult to find, especially if the leak were in the caretaker heads or pipes under the pool leading to the heads. Now the Priests suspect a water leak at the filter. But the Department's expert witness could not find a leak there large enough to account for much water loss. The minor leak at the filter is a normal maintenance item for a pool as old as the Priests' pool. There was no evidence how long it has existed, and there was no evidence that the Priests ever told Ash there was a leak at the filter. The Priests now also complain that one of the caretaker heads does not re-seat properly. But this has nothing to do with the leakage complaint to which Ash is charged with not reasonably responding. Taken as a whole, the evidence did not prove that Ash committed misconduct or deceit by failing to make reasonable response to warranty service requests within a reasonable time, as charged. Nor does the evidence prove misleading or untrue representations, gross negligence, incompetence or fraud in connection with the Priests' pool, as charged. Poland Complaint (Count III). On or about December 9, 1981, Ash entered into a contract with James Poland to build Poland a pneumatic concrete pool and concrete deck. Poland contracted with another independent contractor to build a screen enclosure around the pool. Before construction began, one of Ash's employees asked Poland to sign an addendum to the contract for an additional $235 to pay for foundation footers required to comply with Lee County building code provisions for the screen enclosures. Before Ash signed the initial Poland contract on December 9, 1981, he was unaware of the Lee County Aluminum Code, adopted March 18, 1981. The code requires eight inch foundation footers for "aluminum additions." Another part of the code addresses "screen enclosures with screen roofs known to the industry as birdcage swimming pool enclosures." The language of the code is not explicit that screen swimming pool enclosures are required to meet the foundation requirements for "aluminum additions," and at first Lee County did not interpret the code that way. With a change of personnel in code enforcement, Lee County began to interpret the code that way, and screen swimming pool enclosures Ash had under construction began to fail building inspection for inadequate foundation footers. Ash inquired why and was told about the aluminum code and how it was being interpreted. Ash argued that the interpretation was erroneous but, failing to dissuade enforcement personnel, began to comply. As part of his compliance efforts, Ash had his employees try to secure the contract addendum from Poland. Poland refused to sign the contract addendum, insisting on an opportunity to verify that the additional foundation footers were indeed new building code requirements. There still is a dispute between the parties whether Poland ever agreed to pay the additional $235 after he verified that the footers were being required. (He never signed the contract addendum.) But, in any event, the evidence did not prove that Ash was incompetent, grossly negligent, deceitful or guilty of fraud or misconduct in connection with the additional $235 charge. 2/ There was some evidence that Ash did not in fact comply with the Lee County Aluminum Code, as he was told it was being interpreted, in his construction of the Poland pool deck. In two places the foundation footers were 6 and 7 inches - deeper than the four-inch normal thickness of a concrete pool deck but short of the eight-inch requirement. But Ash was not charged with failure to comply with the foundation footer requirement. He had no legally sufficient notice that he should be prepared to defend against that charge and was not prepared to defend against that charge. Therefore, no finding is made whether Ash complied with the Lee County Aluminum Code. Ash performed the Poland contract between approximately January 27 and February 26, 1982. In September, 1985, Poland began to notice that some of the tile Ash installed at the waterline around the perimeter of the pool was coming loose. As explained by the Department's expert witness, the concrete deck settled in places, cracking slightly and rotating over the fulcrum created by the wall of the concrete shell of the pool. The rotating action pulled up on the tile attached to the inside of the pool wall in places, loosening the tile. In all, less than 10 percent of the 77 foot perimeter of the Poland pool experienced problems with loose tile. The loose tile easily can be removed and replaced. The minor deck cracking and loose tile problems at the Poland pool are within the normal range for a competently constructed pool under normal conditions of ground settlement. The evidence did not prove that Ash improperly installed the pool deck or that he was incompetent or grossly negligent in the construction of the Poland pool and deck. Besides the loose tile and minor cracks in the concrete deck, the Poland pool had no apparent defects. There also was evidence that the Poland pool was finished with a coating of marcite on the inside surface of the pool shell which was mottled gray in color instead of white. Poland complained persistently about the marcite3 and insisted that Ash make it white. But the discolored marcite was a factory defect of which Ash had been unable to know before he used it. There is no way to make mottled gray marcite white. Ash tried to explain this to Poland but the customer would not be satisfied. Taken as a whole, the marcite evidence did not prove that Ash was incompetent, grossly negligent, deceitful or guilty of fraud or misconduct. Nor does the evidence prove any of those violations for failure to cure the marcite problem under warranty. First, as already stated, there was no cure. Second, Ash and Poland also had a running dispute whether Poland had paid the full contract price, including the additional $235 for foundation footers, so as to entitle him to any warranty repairs. In light of this genuine dispute, failure to do warranty work, if otherwise a reasonable request, still could not be found to be misconduct, fraud or deceit.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Construction Industry Licensing Board enter a final order dismissing the Amended Administrative Complaint that has been filed against Respondent, Wesley Ash, in these cases. DONE AND ORDERED this 9th day of December 1986, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 1986.
Findings Of Fact On August 1, 1980, Copper Door II, Inc., entered into a contract with Lang Aquatech Pools to construct a swimming pool for $22,338. Lang began construction, but Copper Door did not maintain the payment schedule called for in the contract, whereupon Lang terminated work on the pool. The parties later reached an agreement that upon payment of $5,000 by Copper Door to Lang work would recommence. After payment by Copper Door of the $5,000, little if any work was performed by Lang toward completion of the pool. Copper Door took over construction and subcontracted the remainder of the work on the pool. The pool was opened to the public by Copper Door and cited by the Department of Health and Rehabilitative Services for failure to have an operating permit in violation of Rule 10D-5.65, Florida Administrative Code. Copper Door has been unable to obtain an operating permit because of its inability to complete an application for an operating permit. The Department's application form for an operating permit (Hearing Officer's Exhibit No. 1) requires execution of a certificate by the pool's engineer and contractor. Because of the aforementioned financial dispute, neither Lang nor its engineer would sign the form. The form requires that both the pool contractor and engineer be registered or certified with the state. The pool was designed by an engineer registered in the State of Florida. Further, the design of the pool was approved by the Department prior to commencement of construction. Work completed by Copper Door after abandonment of construction by Lang included the application of concrete to the inside of the pool, pouring of the decking, installation of a water circulating pump, and a portion of the electrical work. All other work was done by Lang. The pool performs properly and in accordance with other public pools granted operating permits by the Department. The pool was subject to inspection by local building officials. These officials were responsible for ensuring that construction was in accord with plans approved by the Department and local building codes. The Department does not inspect pools during construction. The Department looks instead to the certificate of the contractor and engineer to ensure that a pool meets applicable requirements. The Department's application form has not been adopted by rule or as a rule.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department of Health and Rehabilitative Services accept the application of Copper Door II, Inc., upon execution of the contractor's certificate by Copper Door as owner. Copper Door must keep the pool closed until its application is approved. DONE and ORDERED this 18th day of February, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 1982. COPIES FURNISHED: William W. Chastain, Esquire 412 Madison Street, Suite 1207 Post Office Box 222 Tampa, Florida 33601 Donald R. Odom, Esquire Department of Health and Rehabilitative Services 2255 East Bay Drive Post Office Box 5046 Clearwater, Florida 33518 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact Based on the evidence presented, the following facts were found: At all times pertinent to this case, Respondent held two active contractor's licenses issued by the State of Florida, RP 0033354 and CP 015029. Respondent's current address is 1316 Hoffner Avenue, Orlando, Florida 32809. At all times pertinent to this case, Respondent owned the firm Family Pools and did business as a pool contractor under that name. At no time did Respondent ever qualify his firm, under whose name he did business, with the Florida Construction Industry Licensing Board (CILB). On some date not specified, in June, 1980, Alphonse J. and Pauline L. Rodier contracted with Family Pools to build a pool at their residence at 601 Michigan Avenue, Englewood, Sarasota County, Florida for a price of 6,700. The contract was signed by Respondent for Family Pools. The pool price was to include a screened enclosure and deck, and the entire package was to be completed by July 4, 1980. The pool was paid for by two checks from Coast Federal Sayings and Loan Association in Sarasota from the proceeds of a home improvement loan and by a final check in the amount of $900 from the Rodiers, direct, on October 13, 1980. Respondent subcontracted the pool enclosure to Climatrol Screen Company of Enqlewood, Florida, for $2,065 but failed to pay this subcontractor. As a result, on November 26, 1980, Climatrol filed a lien against Rodier's property which was released only when the Rodiers paid an additional $790 which had not been satisfied by the Respondent. Respondent had satisfied part of the debt to Climatrol by relinquishing title to a truck he owned. On July 3, 1980, Family Pools contracted with Elmer J. and Carla T. Taylor, of Bunnell, Florida, to build an above-ground pool on their property for $4,800.00. The pool was to have a one year warranty against defective parts and a 20-year prorated replacement policy. According to the contract, the pool price included the pump, liner, filter, and walls, along with all other parts. The pool was constructed by employees of Family Pools about three or four weeks after the contract was signed. Not long after the pool was completed and filled, Mr. Taylor noticed that the vinyl liner was protruding out beneath the bottom of the metal retaining wall. His calls to Family Pools were never answered by Respondent with whom he asked to talk and repair work on this problem was not accomplished by the Respondent or Family Pools. Mr. Taylor had to do the work himself and Family Pools would not honor the warranty. Respondent offers the completion certificate executed by the Taylors on August 21, 1980,as evidence the pool was installed properly and the Taylors were satisfied. Mr. Taylor indicates he signed that certificate in blank under pressure from Respondent's agent, who cajoled him into doing it on the basis that if he did not, Family Pools could not be paid by the finance company under the installment sales contract. Also, during the period of the one year warranty, the pool pump burned out. Mr. Taylor had to replace that and pay for it himself, as the warranty was not honored. Respondent contends only a 90-day warranty on the pump, but that appears nowhere in the contract, which, in its description of the pool covered by the one year warranty, includes the pump. On August 29, 1980, Family Pools contracted with Janice Conover to build a swimming pool at her home in Venice, Florida for $4,780. The pool was to be completed approximately 30 days after excavation at the site. Between August 29, 1980, and December, 1980, Ms. Conover paid Family Pools a total of $4,741 by checks which were endorsed by "P. Vescera d/b/a Family Pools" or "Pasquale M. Vescera." On October 2, 1980, Respondent pulled a permit No. 7330- N from the Sarasota County Building Department, in his own name, to construct Ms. Conover's pool. In February, 1981, when the pool was only about fifty percent complete, Respondent ceased work on Ms. Conover's pool without giving her any notice or reason therefor. When Respondent stopped work, he had only dug the hole for the pool. The liner had been delivered but was not installed. The braces were there but not affixed, notwithstanding Ms. Conover had paid almost in full for the pool. As a result, she contracted with Richard Thompson, Respondent's former employee, to finish the work Respondent had started because at this point she could not find the Respondent. Thompson installed the brackets, the liner, and the deck. She had to pay extra for the pump, the chemicals, and the sweep--all of which, except for the sweep, she had paid for when she paid Respondent's price. Respondent never returned to complete Ms. Conover's pool. On July 7, 1980, Family Pools contracted with Robert A. and Florence L. Peipher to build a pool at their property in Port Charlotte, Florida, for a price of $6,900. Between July 7 and November 28, 1980, the Peiphers paid Family Pools, by checks, the sum of $6,905. All checks-were endorsed for deposit, "P. Vescera d/b/a Family Pools." The pool price was to include a screened pool enclosure and in September 1980, Family Pools contracted with Climatrol to build the screened enclosure for Peipher's pool for $1,807. Respondent and Family Pools failed to pay Climatrol for the enclosure and as a result, Climatrol filed a lien against the Peipher's property for $1,807 which was satisfied on March 9, 1981, by the Peiphers who paid Climatrol the amount owed. On March 2, 1981, the Peiphers filed a complaint against Respondent with the Contractor License Division of the Charlotte County Building Department because of Respondent's failure to pay Climatrol and the resultant cost to them. As a result of this complaint and the subsequent investigation into the allegations, the matter was referred to the Charlotte County Building Board which, at its meeting on May 7, 1981, after notice to Respondent, voted to revoke Respondent's permit privileges in Charlotte County until he made restitution to the Peiphers and to notify the State of Respondent's actions requesting state action against his license. Respondent suffered severe financial setbacks just about the time of these incidents. He was hospitalized for a period of five or six weeks and upon his return to his business found that he had been "robbed" of approximately $50,000 worth of fully paid for inventory. When he reported the shortage to the local law enforcement officials, they told him that since there was no evidence of a breaking in, they could do nothing about it. In addition, he could not recover from his insurance company for the same reason. There was no evidence other than Respondent's sworn testimony that there was a shortage or that he reported the loss to either agency. Respondent has been in the pool business in Florida for five years and in New Jersey for 32 years before that. He feels the cause of his problem is the fact that he trusted the people who worked for him who took advantage of him. During the entire period of time he was in business in Florida he took no money from the company for his personal use, living instead on income from a mortgage he owned in New Jersey. He subsequently filed for bankruptcy on March 9, 1981. The $15,000 in current accounts receivable he had on the books at that time was utilized in the bankruptcy proceeding to pay creditors. He got-none of it. He is now working in Orlando, Florida, for a pool rehabilitation company owned by his wife and her father. Respondent alleges that on July 15, 1980, he paid Richard Thompson $1,100 to complete work started on several pools, including that of Ms. Conover. Review of the prior findings of fact, however, shows that the contract with Ms. Conover was not entered into until approximately 45 days after Respondent supposedly made this payment to cover the work left undone on her pool. In light of that development, I find his contention completely without merit or basis in fact. Respondent admits that people were hurt as a result of his actions and he regrets this. However, he claims these few incidents are insignificant when compared with the over 500 satisfied customers he alleges he has served over the years. Finally, Respondent contends that early in 1980, after being advised that he had passed the test to be a certified pool contractor, he wrote to Petitioner and, after advising how he was registered and doing business, asked if he needed to make any changes in license registration. He did in fact do this and received no reply. He thereafter assumed he was acting correctly in that regard and that appears to be a justified assumption.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent's license as a contractor be suspended for two years and that he be assessed an administrative fine of $500. RECOMMENDED this 16th day of May, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1983. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Pasquale M. Vescera 1316 Hoffner Avenue Orlando, Florida 32809 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue presented is whether Petitioner's application for a variance at the Sunrise Civic Center wading pool should be granted.
Findings Of Fact In conjunction with the City of Sunrise constructing its multi-purpose swimming pool at its Civic Center, Patricia Riley, an employee of the Broward County Health Department, made a site inspection on January 5, 2005. While she was conducting her inspection, she noticed that the fence between the swimming pool which was under construction and the existing wading pool had been removed and apparently was being replaced. She noticed that two columns for the new fence were large, and they encroached on the required ten-foot deck perimeter around the existing wading pool although the fence itself did not. She told Manuel Synalovski, who was present, to seek a variance for the columns, since she considered that the encroachment was a minor deviation or construction error. Synalovski applied for a variance for the deviation. The variance was approved by the Advisory Review Board for Swimming Pools and Bathing Places on March 9, 2005, and then by Respondent Department of Health on March 28, 2005. On June 16, 2005, Riley again went to inspect the swimming pool. While doing so, she noticed that there were two planters near the wading pool. Each planter was surrounded by an approximately-square concrete curb approximately six inches high. A palm tree had been planted in the center of each of the two planters. Each of the two planters extended into the required ten-foot deck perimeter around the wading pool. However, the palm trees themselves are ten feet from the pool, and the deck extends for 60-70 feet beyond the planters. On June 24, 2005, Synalovski filed another application for a variance relating to the two planters. The Broward County Health Department recommended that that variance be approved because the planters should not create a hazard for the users of the wading pool which would be operated by the City under lifeguard supervision but that the City should be fined $500 for the obstructions because it was the second request for a variance related to the wading pool. The Advisory Review Board for Swimming Pools and Bathing Places thereafter recommended denial because the failure to provide a ten-foot-wide deck around 50 percent of the wading pool might have a negative impact on the health and safety of pool patrons. The Department of Health advised the City in a letter dated July 25, 2005, that it concurred with the recommendation of the Advisory Review Board. The construction plans for the multi-purpose swimming pool reflected the existing wading pool, contained notes referring to planters, and showed boxes where the planters would be placed. Similarly, the drawing submitted with the first variance application showed the planters at the existing wading pool. Similarly, aerial photos taken before the first application for variance was filed showed the planters in place at the existing wading pool.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entering granting the variance and imposing a $500 fine to be paid by a date certain. DONE AND ENTERED this 7th day of February, 2006, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 7th day of February, 2006. COPIES FURNISHED: Manuel Synalovski Synalovski Gutierrez Romanik Architects, Inc. 3950 North 46th Avenue Hollywood, Florida 33021 Judith C. Elfont, Esquire Department of Health 2421-A Southwest Sixth Avenue Fort Lauderdale, Florida 33315-2613 Dr. John O. Agwunobi, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Timothy M. Cerio, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issues posed for decision herein are whether or not the certified pool contractor's license issued to Respondents Licensee, Edward G. Batter, should be revoked or suspended or the Licensee's right to practice thereunder should be withdrawn based on conduct which will be set forth hereinafter in detail as set out in the Administrative Complaint filed herein on August 23, 1979.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel and the entire record compiled herein, the following relevant facts are found. Edward G. Batter, d/b/a Tropicana Pools, Inc., (Respondent or Licensee) is a certified pool contractor who holds license No. CPC 012906. Respondent was first licensed on July 28, 1978, as qualifier of Tropicana Pools, Inc., which license was temporarily suspended in June, 1979, and remains in an invalid status to this date. By its Administrative Complaint, Petitioner's Executive Director took action to revoke or otherwise suspend the Respondent's rights to practice pursuant to his referenced license. As a licensed pool contractor, Respondent is subject to the Board's rules and regulations. (See Petitioner's Composite Exhibit 1.) A special meeting of the Board of Adjustment, Appeals and Examiners for general building contractors for Hillsborough County was held on Thursday, July 19, 1979, for the purpose of hearing certain allegations concerning the demise of Tropicana pools, Inc. Jerry Taylor, Petitioner's field investigator, presented the Hillsborough County Board with the results of an investigation of Respondent and presented several cases wherein funds were diverted after being collected for a specific contract to other projects or for other purposes and that projects for which funds had been collected had either been left unstarted or abandoned at the time Tropicana Pools, Inc., ceased doing business. At that meeting, the Respondent's construction activities were suspended by the Board until restitution or settlement was made and verified by affected parties. The temporary suspension by Hillsborough County became final during August of 1979. (Petitioner's Exhibits 2 and 3.) Howard Shaw, Director of Building and Zoning for the City of Tampa, appeared and testified to substantiate the disciplinary action taken against the Respondent by Hillsborough County during the summer of 1979. On June 7, 1979, Mr. and Mrs. James R. Stanton entered into a contract with Respondent to have a pool constructed for a price of $8,182.00. Respondent was paid a 10 percent deposit to commence construction of the Stantons' pool. Respondent absconded with the deposit and never notified the Stantons that their pool would not be built nor did Respondent return their deposit. (See Petitioner's Exhibits 4 and 5.) On April 19, 1979, Mr. and Mrs. Theodore Hillary entered into a contract for the construction of a swimming pool for a contract price of $8,130.00. Approximately $5,690.00 or approximately 70 percent of the contract sum was paid on June 18, 1979, and the work ceased on the Hillary project at a completion stage of approximately 40 percent. Respondent abandoned the Hillary project on approximately June 5, 1979. The Hillarys completed their pool at a price of approximately $5,000.00 over and above the contracted price. (Petitioner's Composite Exhibit 6.) On April 30, 1979, Mr. and Mrs. Leon Tope entered into a contract for the construction of a swimming pool at their residence for the contract price of $8,050.00. On June 18, 1979, the Topes had tendered to Respondent approximately 70 percent of the contract cost while the Respondent abandoned the construction of the Topes' pool after approximately 40 percent of the work was complete. Respondent abandoned the project on June 18, 1979, and the Topes completed the construction of their pool at a price of approximately $2,000.00 by engaging the services of other contractors in the area. (See Petitioner's Exhibits 7, 8, 9, 10, and the testimony of Jim Moran.) Jerry Taylor, Petitioner's field investigator, attended the probable cause hearing during August of 1979 in which the Hillsborough County Board of Examiners suspended the pool license of Respondent. Investigator Taylor briefed the Hillsborough County Board respecting the results of the investigation conducted by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Respondent's pool contractor's license No. CPC 012906 be REVOKED. ENTERED this 10th day of March, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue The legal issues raised and the status of the parties in this cause are seemingly complex due to the manner in which the case was presented on the initial pleadings to the Division of Administrative Hearings. At bearing, it was determined that Fairways was seeking approval of a permit for use of its swimming pool. This application had been denied by the Department of Health and Rehabilitative Services on the grounds that the pool failed to meet the requirements of Rule 100-5.50, Florida Administrative Code. In order to place the parties in their proper positions, the Respondent, Fairways, was determined to be the movant party and its cross-petition considered to be the petition. The ultimate issue presented is whether the subject pool meets the requirements of Rule 100-5.50 and its use should be approved. PRELIMINARY RULINGS Fairways collaterally attacks the manner of application of the rule by the Department to its pool, asserting that the manner of application of the rule constitutes an unpromulgated rule. Fairways also alleges in its proposed findings that Rule 100-5.50 is an invalid exercise of validly delegated legislative authority, and that the Department is estopped to assert the pool fails to comply with Rule 100-5.50 because of a failure to communicate properly the conditional approval of construction of the pool. The allegations that the Department's application of Rule 100-5.50 constitutes an unpromulgated rule and that Rule 100-5.50 is invalid are raised for the first time in Fairways' proposed findings. The original petition (cross-petition) makes no allegation that Rule 100-5.50 is invalid, and makes no allegation that the manner of measurement is an invalidly promulgated rule. These allegations would not be properly raised within the context of a Section 120.57(1), Florida Statutes, proceeding. Although invalidity of the rules on constitutional grounds is preserved in the record for appellate review, the nature of the allegations in this instance are not grounded in a constitutional challenge. Having failed to raise these issues in their pleadings under the appropriate provision of Chapter 120, Florida Statutes, these attacks will not be considered in determining the issue presented in this proceeding.
Findings Of Fact Respondent is a six-building complex containing 13 condominium units, each building being situated on a separate lot circumscribed by property lines outlining the property within the exclusive possession and control of the occupants of the condominiums. The pool in question is located upon jointly held property and is not intended to be and has not been open for use by the public or persons other than the occupants of the condominiums and their guests. On April 2, 1979, Fairways submitted a site plan (Joint Exhibit number 4) to Petitioner at the Manatee County Health Department. The site plan showed the proposed location of the pool in relation to the condominium buildings. Approval of these plans by the Department was necessary in order for a construction permit to be issued for the pool. By a letter dated May 30, 1979 (Joint Exhibit number 2), Mr. O. P. Randle, Jr., Engineer for the Department, granted approval for the pool plans with the condition that "Wet facilities shall be provided within two hundred (200) feet of the pool." Between April 4 and May 30, 1979, Ms. Rosemary Wiley, Engineering Technician with the Department, orally informed Fairways' "project engineer" that several units were more than 200 feet from the proposed pool and that wet facilities would be required. During this period, Wiley also informed Fairways' pool contractor of the same condition and requirements. A construction permit for the pool was secured by Fairways' pool contractor on June 4, 1979. Construction of the pool began during the first week of June, 1979, and was substantially finished by July 5, 1979. Shortly after June 17, 1979, Fairways contacted the Department's local pollution control director, who visited Fairways and measured the distance between the water's edge of the pool and the farthest building. The method of measurement employed by the Health Department was to measure the shortest distance between the edge of the pool and the structure of the building. The method of measurement used by the Department has been in use 16 years and evolved because measurement from the pool to the actual sanitary facility located within a building is impractical. The only building which was not within 200 feet of the water's edge of the pool was Building 6, containing two dwelling units, which was 241 feet from the edge of the pool. Part of Building 5 is more than 200 feet from the edge of the pool; however, its closest edge is within 200 feet of the pool, meeting the requirement for wet facilities. The only toilets and lavatories constructed at this site are those contained in the individual condominium units. These facilities are not open to use by the public or other condominium owners. By letter dated June 23, 1979, the local pollution director, at the request of the Health Officer, requested from the Chief of Public Health Engineering Services an interpretation of the method of measuring the 200 feet provided in Rule 100-5.50. The request of the Health Officer was precipitated by a request for section interpretation by Fairways' agent. The request dealt specifically with what was required to be within the 200-foot radius of the pool. The interpretation of the Chief of Public Health Engineering Services was contained in his letter dated July 5, 1979, addressed to the District VI pollution control director. This interpretation advised that the building's edge must touch or fall within a 200-foot radius of the pool. This letter also advised that the Department had no power to consider or grant variances or exceptions to the rules. The information contained in this interpretation was communicated to Fairways' agent. Other proposed findings of fact presented by the Petitioner and Respondent are specifically rejected.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department deny the application of the applicant for a permit of use. DONE and ORDERED this 6th day of February, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Amelia Park, Esquire Department of HRS W. T. Edwards Facility 4000 West Buffalo Avenue, 4th Floor Tampa, Florida 33614 Janice Sorter, Esquire Department of HRS W. T. Edwards Facility 4000 West Buffalo Avenue, 4th Floor Tampa, Florida 33614 David Paul Montgomery, Esquire 2103 Manatee Avenue, West Bradenton, Florida 33505
Findings Of Fact At all times material hereto Respondent, George W. Boukater, was a certified general contractor, license number CG C012598, and a registered pool contractor, license number RP 0032042. Respondent was the qualifier for Swimming Pools by M.J. Donohue, Inc. (Donohue), under license number RP 0032042, from February 1979 until June 30, 1985. On July 29, 1984 Donohue contracted to construct a swimming pool at the residence of Ms. Loretta Hunley in Fort Lauderdale, Florida, for the sum of $6,400.00. Respondent, on behalf of Donohue, applied for and received the building and plumbing permits for the pool. Apart from securing the permits, Respondent had no contact with the job and never inspected its progress. By August 30, 1984, Donohue had substantially completed the pool. All that remained to be done was to marcite the pool, hook up the pool light and plumbing, and install the pumps. However, before these items could be completed it was necessary that the area surrounding the pool be backfilled, the patio poured, and the electric installed. Under the July 29, 1984 contract Ms. Hunley did not contract with Donohue for any patio, electric or fence work. She expressly retained responsibility for that work in an effort to save money on the pool construction. The area surrounding the pool was not backfilled and the patio slab approved by the Broward County Building and Zoning Department (County) until September 14, 1984. As of September 5, 1985, the fence work was still in violation of the County code. The electric work received the County's final approval on January 8, 1986. In October 1984 demands were exchanged between Ms. Hunley and Donohue. Ms. Hunley demanded that the pool be completed. Donohue demanded adequate electrical service so the pool could be pumped and cleaned for marciting, and dates when someone would be available at the premises. In November 1984 Donohue got its pumps in operation, however Ms. Hunley disconnected them in the evenings. Consequently, the pool could not be drained and cleaned to marcite it. In November 1984 Ms. Hunley ejected Donohue from the job site. Subsequently, Ms. Hunley and Donohue formally settled their dispute.
