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Licensee, Edward G. Batter, should be revoked or suspended or the Licensee's right to practice thereunder should be withdrawn based on conduct which will be set forth hereinafter in detail as set out in the Administrative Complaint filed herein on August 23, 1979.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
Findings Of Fact Melnikoff is the holder of a certified pool contractor's license, having been issued license No. CP C032540. Melnikoff used this license to qualify Ken-Mel Enterprises and license no. CB C029067 was issued to Melnikoff qualifying Ken-Mel Enterprises. Ken-Mel entered into a contract with John and Edythe Milton to construct a residential pool at 7336 Pineville Drive, Jacksonville, Florida. Melnikoff applied for a building permit with the City of Jacksonville to construct the pool for the Miltons. His application included a set of plans and a site plan to be approved by the City of Jacksonville. The City of Jacksonville issued a building permit and provided an inspection sign-off card to be placed at the residence where the pool was to be constructed. Melnikoff and Ken-Mel constructed the pool and were paid in full. Melnikoff failed to request or obtain any inspections of the pool construction. This is a violation of the City of Jacksonville Building Code, Section 320.504. The pool is constructed in such a way that it is flawed, deficient and hazardous. Specifically, the water slide is hooked to a potable water system and to the hot water, which is both a serious code violation and a serious and hazardous condition. The water slide is positioned improperly and attached incorrectly, such that there is a danger of injury and this is a hazardous condition. The marcite is very rough and has started to peel away from the gunnite. The marcite is stained from the finish of the pool deck. The slurry from the gunnite and pool deck is buried near the pool and is improperly disposed of. Persons are mildly shocked when touching the railing in the pool, indicating that the pool is not properly bonded, which is a hazardous condition. The pool is not level or symmetrical and there are many imperfections in the continuous curve of the wall. Steel reinforcing bars are actually protruding through the concrete near the top of the pool. Building Code requires that there be a minimum coverage of 1 1/2" of concrete. The ceramic tile is falling off the wall and it is a very poor ceramic tile job. The expansion joints are improperly placed. The main drain cover has not been fastened down, which is a very dangerous situation and a code violation. There is no means or plan for discharging water from the pool, in violation of code. Part of the deck drain is under the slab of the Milton's house which is a serious problem. The pool is deeper than the plans indicated, in violation of the building code. The pool deck is very rough in places, does not drain away from the pool, and is cracked from improper compaction and improper placement of expansion materials. All of these defects and hazardous conditions establish that Melnikoff was grossly negligent and incompetent in the construction of this pool.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Construction Industry Licensing Board, enter a Final Order finding Steve A. Melnikoff guilty of the violations charged and revoking Melnikoff's license as a certified pool contractor. DONE and ORDERED this 29th day of June, 1988, in Tallahassee, Florida. DIANE K. KIESLING 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 29th day of June, 1988. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-0567 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the Petitioner in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Professional Regulation, Construction Industry Licensing Board 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(2); 3-5(3); 6(4); 7(5); and 8 & 9 (6) COPIES FURNISHED: John O. Williams, Attorney at Law 1343 E. Tennessee St. Tallahassee, Florida 32308 Steven A. Melnikoff 710 Rosedale Drive Stephens City, VA 22655 Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether Petitioner is entitled to an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes?
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made to supplement and clarify the extensive factual stipulations set forth in the parties' Revised Joint Prehearing Stipulation4: The "Investigator's Memo" referred to in the parties' Revised Joint Prehearing Stipulation was a memorandum from Jack Beamish, an investigator with Respondent, to Bruce Campbell, an attorney with Respondent. It was dated June 21, 2004, and read as follows: On June 21, 2004 I spoke on the telephone with Neal Shniderman . . . , counsel for The Pool People. He said that James Pohl, PE (Case No. 03-0045) has retired and is in the process of moving to North Carolina. Shniderman said, "Well over a year ago the company changed its way of operating. Jim Pohl was coming in and reviewing every plan and signing them. Now that he is retired, the company has a new engineer who is signing and sealing and making sure everything is up to snuff. I'm worried about them signing the affidavit because I don't want them to acknowledge that they were engaged in an unlawful act. I don't want to let my client admit to violating the law in the past, particularly where we don't believe they violated the law, and how they will act in the future. I don't understand where my client is doing anything wrong. It is not holding itself out to be an engineering firm; it's a pool contracting firm. It contracts with an engineer to provide engineering services." I cited Chapter 471.023 and told Mr. Shniderman that it appears that the firm is directly contracting to provide pool construction and engineering services, and that in order to do that the simple answer would be to apply for a certificate of authorization. (TPP [The Pool People] is then subcontracting the engineering work out.) He stated that he thought it to be lawful for TPP to practice business as it currently is. I suggested that he talk to you to further discuss his position. I said that I would have you call him.[5] The November 18, 2004, "probable cause panel proceeding" referred to in the parties' Revised Joint Prehearing Stipulation opened with Mr. Campbell, addressing the following comments to the probable cause panel6: This investigation is predicated on a complaint filed on April 9th 2004 by the Florida Board of Professional Engineers alleging that The Pool People, Inc., was practicing as an engineering firm without holding a Certificate of Authorization issued by the Florida Board of Professional Engineering. The Pool People, Inc., which is a certified contracting business licensed by the Department of Business and Professional Regulation Construction Industry Licensing Board, does not have and has never had a Certificate of Authorization to provide engineering services in the State of Florida. A notice to cease and desist the unlicensed practice of engineering was issued to The Pool, Inc., on May 24th, 2004. On . . . August 2nd, 2004 the Florida Board of Professional Engineer[s] obtained from the Palm Beach County Planning, Zoning and Building Department certified copies of five permit applications and pool plans submitted by The Pool People, Inc., during the period of June and July 2004. The permit applications were submitted by Daniel Lowe, a certified pool contractor and qualifier for The Pool People, Inc., and the plans were signed and sealed by Ming Z. Huang, P. [E]. On information and belief The Pool People, Inc., employed Mr. Huang to provide engineering services, evidenced by the five sets of pool plans, included with [The Pool People's] contracts with the property owners. By filing engineering plans signed and sealed by a professional engineer employed by [T]he [Pool People] while [T]he [Pool People] did not have a Certificate of Authorization, and by providing engineering services directly to the customer while [T]he [Pool People] does not have a Certificate of Authorization, [T]he [Pool People] has therefore practiced engineering without being duly licensed.[7] The following are other pertinent excerpts from the transcript of the November 18, 2004, "probable cause panel proceeding": The [Panel] Chairman: Well, Bruce, the reason I raised the question [of whether the county knew about the cease and desist order] was that in reading their attorney's comments I am interpreting their attorney as stating, one, he doesn't think they need a CA and, secondly, I interpret that they have no intent in getting a CA. Mr. Campbell: That is exactly why we are bringing this complaint. The Chairman: [That] is why I commented about [why] I think the county needs to know there is a cease and desist so they no longer accept any plans from this organization.[8] * * * The Chairman: True. But if they had knowledge that we had issued the cease and desist order they may in turn turn the drawings right back over to them. Mr. Tomasino[9]: You would shut down every pool contractor in the State of Florida, every one. Mr. Campbell: And part of the thing here is that I think we need to go forward with this case, and it's going to be more or less a test case that, you know, we need to establish those facts before we I think go with the lesser and perhaps ineffective notice to cease and desist. Mr. Tomasino: Well, we have taken positions two different ways in the past, and I have a problem with it because we are not consistent. Certain organizations can hire an engineer and provide a product and it is okay. Certain organizations can do that and it is not okay. And I think we need to clear up the fact who is the engineer supposed to be contracting with to avoid the contractor having the CA, design build. Just about every single one of them the contractor hires the engineer and the architect and that is part of his overall fee for construction. He doesn't have a CA and doesn't intend to get one. This situation in the State of Florida in my opinion could possibly find manufacturers exempt because they're taking various components by other people and putting it together. Mr. Campbell: This is true except for the fact that they're putting it on a site and what they are using the engineer for is to put it on a site, and that engineering - - Mr. Tomasino: But - - Mr. Campbell: - -is site specific and very definitely something for the owner of the property. Mr. Tomasino: No question about that. But so is design build.[10] * * * Mr. Campbell: There may be some requirement of clarification as far as the statute, but the way the statute exists they're entering into a contract to provide engineering services and they don't have a Certificate of Authorization. The Chairman: That is pretty clear, pretty clear in the statute. And I don't know how he is - - the attorney [for The Pool People] now - - how he is interpreting it otherwise. [11] * * * The Chairman: Well, you know, his attorney's reference to 471.023 is pretty correct paraphrasing. I mean, he hasn't restated all of it but, you know, Subsection 2 says for the purpose of this section a Certification of Authorization shall be required for any business organization or other person practicing under a fictitious name, offering engineering services to the public. That is exactly what this outfit is doing that they have to have a CA. Mr. Seckinger[12]: What part of - - I will play the devil's advocate - - what part of engineering services are they offering? Mr. Chairman: The site engineering. Mr. Seckinger: Well, all they are doing is putting a pool in a level ground in the backyard. There is no engineering there. The Chairman: Why is he sealing it? Mr. Sunshine[13]: Yeah. They have an engineer sealing it for them. Mr. Seckinger: That is a good question. The local authorities require it? Mr. Tomasino: Health department probably and probably the building department. The Chairman: But that is offering engineering services without a CA. Mr. Seckinger: If we were talking about enclosed - -pool enclosures would be even more so. Mr. Tomasino: The health department is interested because of recirculating systems and filtration systems et cetera, et cetera. Mr. Seckinger: Okay. I will get off the platform I was on.[14] * * * Mr. Tomasino: I understand what the statute is saying because the Chairman made it very clear. [15] * * * Mr. Seckinger: Mr. Chair, I move that we find probable cause in the case under discussion. The Chairman: The Pool People, Inc. Mr. Seckinger: The Pool People, Inc., unlicensed. The Chairman: Do we have a second? Mr. Tomasino: Second The Chairman: All those in favor say aye. Mr. Tomasino: Aye. Mr. Seckinger: Aye. The Chairman: Aye.[16] * * * The Chairman: I mean, if there was some gray area in the wording of Subsection 2 of 471.023. I don't see there is any gray area. And - - Mr. Campbell: I don't either. As long as that is the statute I think the prosecuting attorney has the responsibility to go forward with it.[17] * * * Mr. Sunshine: Now that we have brought it [the improper use of Mr. Pohl's seal] to their [The Pool People's] attention, they have taken the steps to bring in someone to actually review these things, but they are unwilling it appears to acquire a CA.[18] * * * The Chairman: Mr. Tomasino, since you are on that page you don't have to go back to it, again, this attorney is interpreting that item 2 from 471.023 does not apply because they are not providing engineering services. They're a consumer of them, which - - Mr. Tomasino: They are using services. The Chairman: But they're putting an engineering seal on their drawings. Mr. Sunshine: They charge their client, the home owner. The Chairman: For engineering services. Mr. Tomasino: As a separate item. Mr. Campbell: Not a separate item, I don't think. Mr. Sunshine: It's a lump sum. Incorporated in our services [is] the engineering that is necessary for this project. [Y]ou pay us and we take care of everything. Mr. Tomasino: I guess that is part of my opening comments. What is wrong with someone hiring experts to help them put a package together to sell? Mr. Campbell: You know, that is just too general. I mean, certainly the manufacturer's exemptions is sort of a narrow and specific one and we recognize that. That is where it happens. You have - -you know, this is just a different situation. It is one step over the line. It's not a package that is sold in quite the same terms. It is something that is site specific and that makes the difference. Mr. Tomasino: We need to open up the bag of worms in the aluminum enclosures again, then, because that is not site specific. Mr. Campbell: Well, it has to be at some point. Mr. Tomasino: People who prepare the master plans don't ever see the site. Mr. Sunshine: We have discussed that - - Mr. Tomasino: But we are mixing apples and oranges. The Chairman: But if a screen enclosure company gets an engineer for a very specific job and seals that set of drawing that it [is] this situation, correct? Mr. Campbell: Yes. Mr. Tomasino: So the way out is for that engineer to contract with the home owner? Mr. Sunshine: The company needs to tell them we will build it. You need to acquire an engineer and you need to pay them, not us. The Chairman: Or obtain a CA. Mr. Sunshine: Right. We will give you names of who[m] we would recommend. You go to that engineering firm, you contract with them, you pay them the fee, because otherwise we could [get] hit with unlicensed activity.[19] * * * The Administrative Complaint issued in the Underlying Proceeding contained five counts.20 Each count charged Petitioner with "violat[ing] Section 471.031(1)(a), Florida Statutes, by practicing engineering without a license." In Count One, it was alleged that, "[o]n or about June 10, 2004, [Petitioner], through its qualifying individual contractor, filed an application for a permit to build a pool for an owner, Vista Builders, at 16326 78th Road North, in Palm Beach County, Florida" and that the "application included 4 pages of engineering plans signed and sealed on June 9, 2004, by Ming Z. Huang, P. E.," whom Petitioner had "employed . . . to provide engineering services included in its contract with Vista Builders." In Count Two, it was alleged that, "[o]n or about July 7, 2004, [Petitioner], through its qualifying individual contractor, filed an application for a permit to build a pool for an owner, Toll Brothers, at 8108 Laurel Ridge Court, in Palm Beach County, Florida" and that the "application included 4 pages of engineering plans signed and sealed on June 23, 2004, by Ming Z. Huang, P. E.," whom Petitioner had "employed . . . to provide engineering services included in its contract with Toll Brothers." In Count Three, it was alleged that, "[o]n or about July 22, 2004, [Petitioner], through its qualifying individual contractor, filed an application for a permit to build a pool for an owner, Jandjel, at 10265 Brookville Lane, Boca Raton, in Palm Beach County, Florida" and that the "application included 4 pages of engineering plans signed and sealed on July 20, 2004, by Ming Z. Huang, P. E.," whom Petitioner had "employed . . . to provide engineering services included in its contract with Jandjel." In Count Four, it was alleged that, "[o]n or about July 26, 2004, [Petitioner], through its qualifying individual contractor, filed an application for a permit to build a pool for an owner, Shelby Homes, at 10681 Oak Meadow Lane, in Palm Beach County, Florida" and that the "application included 4 pages of engineering plans signed and sealed on July 22, 2004, by Ming Z. Huang, P. E.," whom Petitioner had "employed . . . to provide engineering services included in its contract with Shelby Homes." In Count Five, it was alleged that, "[o]n or about June 24, 2004, [Petitioner], through its qualifying individual contractor, filed an application for a permit to build a pool for an owner, Anthony Rycko, at 13761 76th Road North, in Palm Beach County, Florida" and that the "application included 4 pages of engineering plans signed and sealed on June 23, 2004, by Ming Z. Huang, P. E.," whom Petitioner had "employed . . . to provide engineering services included in its contract with Anthony Rycko." With respect to all five counts, Petitioner alleged that: [Petitioner] engaged in the practice of engineering in one or more of the following ways: by filing engineering plans signed and sealed by a professional engineer employed by [Petitioner] while [Petitioner] did not have a Certificate of Authorization as required by Section 471.023, Florida Statutes; by providing engineering services directly to a customer while [Petitioner] d[id] not have a Certificate of Authorization as required by Section 471.023, Florida Statutes. In the "Conclusions of Law" portion of the Recommended Order he issued in DOAH Case No. 05-0382, the undersigned stated the following, among other things: The specific allegations of wrongdoing contained in the Administrative Complaint filed in DOAH Case No. 05-0382 are that The Pool People, in connection with each of the Five Pool Projects, practiced engineering without a certificate of authorization from the FEMC in violation of Section 471.031(1)(a), Florida Statutes, by engaging "in one or more" of the following activities: by filing engineering plans signed and sealed by a professional engineer [Mr. Huang] employed by Respondent while [it] did not have a Certificate of Authorization as required by Section 471.023, Florida Statutes [hereinafter referred to as "Allegation a."]; by providing engineering services directly to a customer while [it did] not have a Certificate of Authorization as required by Section 471.023, Florida Statutes [hereinafter referred to as "Allegation b."]. It is asserted in Allegation a. that The Pool People was required by Section 471.023, Florida Statutes, to possess a certificate of authorization from the FEMC because it engaged in the practice of engineering through a licensed engineer, Mr. Huang, who was acting as The Pool People's employee when he signed and sealed the engineering plans that were subsequently filed by the Pool People in connection with each of the Five Pool Projects.[21] The FEMC, however, failed to present clear and convincing evidence at the final hearing establishing that there existed an employee- employer relationship between Mr. Huang and The Pool People. Indeed, the record affirmatively establishes that Mr. Huang was not an employee of The Pool People, but rather acted as an independent contractor, free to exercise his professional judgment in a manner that was not subject to the control of The Pool People. See Harper v. Toler, 884 So. 2d 1124, 1131 (Fla. 2d DCA 2004)("The 'extent of control' . . . has been recognized as the 'most important factor in determining whether a person is an independent contractor or an employee.' Of course, employees and independent contractors both are subject to some control by the person or entity hiring them. The extent of control exercised over the details of the work turns on whether the control is focused on simply the 'result to be obtained' or extends to the 'means to be employed.' A control directed toward means is necessarily more extensive than a control directed toward results. Thus, the mere control of results points to an independent contractor relationship; the control of means points to an employment relationship.")(citations omitted). A corporation, such as The Pool People, that retains FEMC-licensed engineers to provide engineering services on an independent contractor basis is not obligated to obtain a certificate of authorization from the FEMC inasmuch as Section 471.023's certificate of authorization requirement is triggered only where the licensees are acting as "agents,[22] employees, [or] officers" of the corporation. To construe Section 471.023 otherwise would add words to the statute not placed there by the Legislature. This neither the undersigned nor the [Board] may do. See Hayes v. State, 750 So. 2d 1, 4 (Fla. 1999)("We are not at liberty to add words to statutes that were not placed there by the Legislature."); PW Ventures, Inc. v. Nichols, 533 So. 2d 281, 283 (Fla. 1988)("The express mention of one thing implies the exclusion of another."); Cook v. State, 381 So. 2d 1368, 1369 (Fla. 1980)("According to a longstanding principle of statutory construction, this list should be presumed to be exclusive and any omissions to be deliberate."); Thayer v. State, 335 So. 2d 815, 817 (Fla. 1976)("[W]here a statute enumerates the things on which it is to operate, or forbids certain things, it is ordinarily to be construed as excluding from its operation all those not expressly mentioned."); Chaffee v. Miami Transfer Company, Inc., 288 So. 2d 209, 215 (Fla. 1974)("To say, as the employer would have us do, that in merger cases the true meaning of s 440.15(3)(u) is that disability for purposes of that section is the greater of physical impairment or loss of earning capacity only if there is a loss of earning capacity is to invoke a limitation or to add words to the statute not placed there by the Legislature. This we may not do."); Herrera-Lara v. State, 932 So. 2d 1138, 1141 (Fla. 2d DCA 2006)("Because the legislature did not include the terms 'temporary tags' or 'temporary license plates' in section 320.26, we must assume the legislature did not intend for section 320.26 to apply to those items."); and Childers v. Cape Canaveral Hosp., Inc., 898 So. 2d 973, 975 (Fla. 5th DCA 2005)("Courts must give statutory language its plain and ordinary meaning, and is not at liberty to add words that were not placed there by the legislature."). The accusation made in Allegation b. that The Pool People "provid[ed] engineering services directly to a customer" in connection with each of the Five Pool Projects is likewise not supported by clear and convincing record evidence. The record reveals that The Pool People was a direct recipient, not a direct provider, of engineering services. What it contracted to provide "directly to a customer" in each instance was not any engineering service, but rather a newly-constructed residential swimming pool, a contractual obligation its certificate of authority from the CILB authorized it to assume. To fulfill this contractual obligation, it had to have engineering plans signed and sealed by a FEMC-licensed engineer. It needed these plans to apply for the building permit required to commence construction of the pool. The Pool People obtained these engineering plans from a FEMC-licensed independent contractor, not from one of its "agents, employees, [or] officers," and it then used the plans to apply for the required building permit. In doing so, it did not run afoul of any requirement of Section 471.023, Florida Statutes. Because the specific allegations of wrongdoing contained in the Administrative Complaint filed in DOAH Case No. 05-0382 are not supported by clear and convincing evidence, the Administrative Complaint should be dismissed in its entirety.
Findings Of Fact Respondent is a certified pool contractor, holding license number CP CO27486. Respondent obtained his certificate in October, 1983. His only prior discipline consists of a letter of guidance in late 1989 or early 1990. At all material times, Respondent was qualifying agent for Gold Medallion Pcol, Inc. On March 27, 1986, Respondent and Mr. and Mrs. Don Burson entered into a contract for the construction cf a swimming pool at the Bursons' residence. The Bursons had purchased the residence while it was still under construction in May or June, 1985. The lot was low and had required fill. Clearly visible behind the lot is a large marshy wetland. The contract called for the Bursons to pay $16,315 for the construction of a 20' by 40' concrete lap pool with depths of 3' at either end and 6' in the center. Paragraph 4 of the contract provides: The Owner is responsible for increased costs incurred by the Contractor due to underground conditions which may be encountered during construction, such as but not limited to, muck, inadequate soil-bearing capacity, and excessive ground water. The Contractor, upon encountering such conditions, shall notify the Owner of their existence and give him an approximate cost estimate to rectify the problem. The Owner shall have five (5) days from the receipt of the approximate cost estimate to instruct the Contractor not to proceed with the pool. . . . If the Contractor determines that additional testing is required prior to furnishing approximate costs estimates to determine the exact nature or extent of the underground condition encountered, the Owner shall be responsible for the cost of all testing and/or engineering required by the Contractor. Paragraph 8.D states that the Owner warrants that there [is] no . . . mock . . . in that portion of the owner's property which the contractor will construct the pool [and] decking . . .. The owner is responsible for the removal, repair or replacement of any underground conditions . . . encountered during construction unless he elects to terminate the contract and pay damages to the contractor as set forth in the clause on underground conditions. Paragraph 11.A provides: Contractor warrants to the original owner for the lifetime of the original purchaser, the swimming pool structure, the shell, will not leak due to cracking. . . . This Limited Structural Warranty does not cover damage to the pool shell caused by fluctuations of the water table, construction in the vicinity of the pool site, or natural phenomenon. . . . The contractor's responsibility under this Limited Structural Warranty shall be to repair the shell so that it holds water without cost to the original owner. . . . The method of repair shall be at the discretion of the contractor. THE CONTRACTOR MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES INCLUDING THE WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE IN REGARDS TO THE POOL STRUCTURE, THE SHELL. Paragraph 11.B.2, which further describes the limited warranty, states: It is anticipated the concrete deck and deck coatings may crack due to settling of deck or weather. Cracks one-quarter inch or less with no substantial deviation in elevation are not covered. . . . The plot plan, which is part of the contract, shows the pool located on the east side of the house. The pool is oriented in a north-south direction. The southern end of the pool runs toward the back of the lot, which is on a steep slope. The southern end of the pool adjoins the widest section of decking, which Respondent constructed at the time of the construction of the pool. The plot plan also shows that excavated dirt was to be placed just south of the decking on the south end of the pool. Shortly after pulling a building permit from the Seminole County Building Department on March 27, 1986, Respondent began construction of the pool. The actual construction was performed by Mid-Florida Pool Company, which is a major pool construction company in Central Florida. Construction was completed on April 23, 1986, and the Bursons paid the amount required under the contract. Prior to commencement of construction of the pool, this area of the Bursons' lot had been filled with about 2 1/2 to 3 feet of dirt. In order to construct the pool, Respondent or his subcontractors added another 2 1/2 to 3 feet of fill, at least to the southern end of site of the pool and decking. It is at this point that the land begins to slope most steeply toward the marsh in the back. Neither Respondent nor any of his subcontractors conducted any soil tests prior to commencing construction or compressed or compacted the soil beneath the pool prior to installing the shell. This omission constitutes a departure from sound contracting practices under the facts cf this case. Respondent constructed several pilasters under the southern end of the deck, but these structural supports were designed to support the deck, not the pool. In general, the depth of the excavation had to exceed the depth of the pool by one foot in order to accommodate the shell. Thus, the extreme southern end of the shell required a hole only about four feet deep. An excavation of this depth did not exceed the combined depth of the old and new fill. There is no indication that Respondent or his subcontractors encountered muck during the excavation or construction of the pool. Likewise, there is no indication that Respondent or any of subcontractors was aware that mucky, unstable soils underlaid the location of the pool, especially the southern end. The pool was completed to the initial satisfaction of the Bursons. However, within 90 days of completion, the southern half of the shell developed five or six major cracks as a result of the settlement of the southern end of the pool. This portion of the pool settled because the underlying muck had been compressed by the weight of the shell and water. Gradually, the water loss from the settlement cracks, which were mostly below the waterline, became significant. At Respondent's suggestion, the Bursons agreed to wait through the winter before commencing repairs in order to allow the cracking to stabilize. In the spring of 1987, the Bursons drained the pool at Respondent's direction. Respondent then scored the cracks with a screwdriver and applied a filling compound in order to seal any leaks. As directed by Respondent, the Bursons then refilled the pool, but before more than two feet of water had been added, the filling compound fell out of the cracks. When the Bursons informed Respondent of the failure of the repair, he responded that he had performed under the contract and had no further obligation. The Bursons exercised their right to arbitrate, as provided in the contract. The arbitrators conducted a limited investigation. Expressly noting that they were not soil engineers and thus could not determine why the soil under the pool failed to support the shell, the arbitrators determined that the contractor was not responsible for any damage to the pool, "which was built to industry standards." The Bursons next contacted various pool contractors about repair options. Most of the contractors suggested a V-cut about 2 1/2 inches deep followed by the injection of hydraulic cement. When the Bursbns informed Respondent that this type of repair appeared necessary, he refused to undertake such work. By this time, one of the contractors documented that five of the cracks, which ranged from 1/16" to 1/4" wide, were pulling water out of the pool at a rate of 1-3" daily. This contractor charged the Bursons $125 for his services. After contacting the Seminole County Building Department, the Bursons learned that the pool had never passed a final inspection. When they had an inspector visit the site on September 13, 1991, he failed the job due to, among ether things, "massive deck cracks." At the insistence of Seminole County officials, the Bursons obtained expert opinions as to the cause of the cracks in preparation for the local hearing on the Bursons' charges against Respondent. In July, 1990, the American Testing Laboratories, Inc. conducted tests and opined that the south end of the pool had settled due to muck at a level of five feet below the bottom of the shell. Additional testing found muck at depths of 3-7 feet at two points just east of the south end of the pool. These tests cost the Bursons $498. When the Seminole County officials insisted upon further testing, the Bursons hired Jammal & Associates, Inc., which performed soil borings on August 23, 1990. The boring sites were just east of a point about midway along the southern half of the pool and a point just south of the southern end of the pool. The latter boring site revealed muck after penetrating about six feet of fill. At the request of Respondent, a Jammal employee returned to the site on November 13, 1990, to determine the potential cause of the cracking of the pool shell and deck. Jammal concluded that the cracking is the result of consolidation of the highly compressible peat layer found in the [southern] boring. Based upon the [cracking] observed, we suspect the southern 1/3 or so of the pool and deck area are underlain by the buried peat layer. The remainder of the pool and deck are most likely underlain by sandy soils. Because of the nature of the buried organic soils, the pool and deck will probably continue to settle at a diminishing rate for several years. Addition of new loads such as placement of additional fill around the pool and deck area, or a significant drop in the groundwater table could cause additional and accelerated settlement of the pool and deck. Jammal offered three repair options. The first was to patch the cracks. Jammal assumed that, although continued cracking could be expected, it would occur at a lesser rate because most of the settlement of the buried muck had already taken place. The second option was to remove the pool and then remove the underlying muck. The third option was to install inside the shell a fiberglass liner. The last option had been first suggested by Respondent. If not rigidly attached to the shell, the liner probably would not reflect further cracking of the shell. The Bursons paid Jammal the sum of $300 for its services. Ultimately, the Bursons decided to install a fiberglass liner and entered into a contract on November 19, 1990, with Fibre Tech for the work. The total cost of the project was $5415. This cost excludes the cost of replacing a pool vacuum for which Respondent does not appear responsible. The liner was later installed, and the Bursons paid the contract price. In the meantime, at a meeting on October 16, 1990, the Seminole County Swimming Pool Contractor's Board revoked Respondent's County certificate of competency until he repaired the pool or made restitution to the owners. This action was based upon a violation of Seminole County Code Section 40.151 and 40.34(2) and (9). Section 40.151 provides that "[a]11 completed pools shall be absolutely watertight." Section 40.34(a) allows the Board to revoke a certificate of competency if the contractor: (2) Continue[s] performance of building work in a negligent, incompetent or unworkmanlike manner. (9) Violate[s] any provision of this Chapter. The determination of the Seminole County Swimming Pool Board became final when Respondent failed to take a timely appeal of the order.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Construction Industry Licensing Board enter a final order imposing an administrative fine of $2500 and suspending Respondent's license until he makes restitution to the Bursons in the amount of $6338. ENTERED this 29th day of October, 1991, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1991. COPIES FURNISHED: Jack McCray, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Daniel O'Brien Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32202 Craig M. Dickinson, Senior Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Merwin C. Carter, pro se 611 Ensenada Avenue Orlando, FL 32825
The Issue Whether Respondent practiced beyond the scope of his certified commercial pool/spa contractor’s license and proceeded on a job without obtaining applicable local building department permits and inspections, as alleged in the Amended Administrative Complaint and, if so, the nature of the sanctions to be imposed.
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of the construction industry, including pool and spa contractors and electrical contractors, pursuant to section 20.165 and chapters 455 and 489, Florida Statutes. At all times material to the allegations in the Administrative Complaint, Respondent was licensed as a commercial pool/spa contractor in the State of Florida, having been issued license numbers CPC 05661, 1457406, and 1458031. Respondent was the primary qualifying agent of Cox Building Corporation, d/b/a Cox Pools (Cox Pools). Respondent has been registered, certified, or licensed as a swimming pool contractor since 1978. Over the course of his almost 40 years as a swimming pool contractor, Respondent has replaced thousands of pool lights and pool pumps. He believed that the replacement of pool equipment, which he understood to include pool lights, was within the allowable scope of work as a swimming pool contractor. On or about September 12, 2014, Cox Pools entered into a contract with John Patronis to replace four pool light fixtures, a booster pump, and other miscellaneous services for $4,681.17 at the Subject Property. The Subject Property falls within the jurisdiction of the Bay County Building Department. Respondent did not obtain an electrical permit for replacing the pool light fixtures at Subject Property. Mr. Carnley testified that the Bay County Building Department requires that pool light replacement be performed by a licensed electrician, and with a county-issued electrical permit. The permit must be obtained by an electrical contractor or a homeowner. Bay County would not have issued a permit to Respondent, because he was not an electrical contractor. The Bay County Building Department also requires an electrical permit for the replacement of a circuit breaker in the electrical box serving a swimming pool. A pool contractor is not authorized to replace circuit breakers. No permits were obtained to replace circuit breakers at the Subject Property. On September 15, 2014, during the course of replacing the pool light fixtures, an employee of Cox Pools, Joshua Cook, was electrocuted. The precise cause of the electrocution was not established, though no plausible basis exists for it being related to anything other than the replacement of the pool lights. After a period of several days following the accident involving Mr. Cook, Respondent returned to the Subject Property to complete the job. He personally went into the pool, put the light in the fixture and screwed it in, and left. The light was thereafter wired and energized by a Cox Pool service technician. Given the circumstances, Mr. Patronis was not asked to complete payment for the services performed. Nonetheless, it is clear that, but for the accident, Mr. Patronis would have been expected to pay for the services for which he contracted. The photographic evidence in this case demonstrates that between September 15, 2014, and some indeterminate time in 2016, a circuit breaker was replaced in the electrical box serving the Subject Property’s pool. The circuit breaker that existed on September 15, 2014, was a ground-fault circuit interrupter (GFCI). By 2016, the GFCI has been replaced with an arc-fault circuit interrupter (AFCI). Had Bay County performed an inspection of the electrical box with the AFCI, it would not have passed inspection. Respondent testified that he did not change the circuit breaker, that Cox Pools keeps no inventory of circuit breakers, and that service technicians do not carry circuit breakers on the trucks. Respondent acknowledged his understanding that replacing a circuit breaker is a job for an electrical contractor. At some time “recently,” Williams Electric was called to the Subject Property, at which time Mr. Williams “swapped out a breaker or two that was an incorrect type of breaker for the application.” Mr. Patronis was not clear whether an arc breaker was replaced with a ground breaker, or vice versa. Pool lights are sealed units. The light and its power cord come as a single unit. To replace a pool light, the main circuit breaker at the swimming pool sub-panel is turned off. The wires to the existing light are disconnected (unscrewed) from the circuit breaker. A lead is tied to the end of the wire. The light fixture is removed from the pool opening, and the wire is pulled through the existing conduit from the pool side. When the old fixture and wiring unit has been removed, the lead is removed from the end of the old unit’s wire, tied to the wiring of the new light, and drawn back through the conduit to the circuit breaker box. The new light is screwed into the fixture, and then energized by connecting the wires back into the existing circuit breaker. The point of connection of the light to the circuit breaker is the “load side” of the circuit. The experts who testified in this proceeding were all competent and qualified in their fields, and had served in leadership positions with the CILB (Mr. Weller, Mr. Del Vecchio, and Mr. Lenois), the Electrical Contracting Licensing Board (Mr. Tibbs), or the Florida Swimming Pool Association (Mr. Garner and Mr. Pruette). However, despite the relative simplicity of the statutes at issue, their opinions as to the allowable scope of work under a swimming pool contractor license were at odds. Respondent acknowledged, and the evidence in this case establishes, that electrical work associated with new pool construction is a task that is within the scope of work of an electrical contractor. Initial construction involves substantial work in bringing power from the main residential panel to the new pool panel, installing a junction box and circuit breakers, installing the wiring, and performing other electrical work of significantly greater complexity than that involved in the installation of equipment into a pre-constructed electrical system, which involves only the disconnect and reconnect of wires to the load side of a circuit breaker. As discussed by Mr. Lenois, a pool contractor can contract for the entire pool, but cannot self-perform the electrical components pursuant to section 489.113. As to the replacement of existing equipment, Petitioner’s experts testified that pool light fixtures differ from other pool-related equipment, e.g., pool pumps, in that the light fixtures have direct contact with the water, whereas other components do not. Lights are changed out in a submerged condition, which makes them extremely dangerous. As stated by Mr. Weller, “the whole area of electricity around pools gets complicated, between the bonding, the grounding, and all the other stuff.” It was Mr. Weller’s opinion that, although pool contractors can contract for pool light replacement, they cannot self-perform the work. Rather, the electrical work involved in replacing pool light fixtures should be subcontracted to an electrical contractor because “you can make mistakes in plumbing, and you can make mistakes in other areas, but with electricity, it's pretty non-forgiving, especially if you're around water.” Mr. Lenois distinguished pool lights, which he characterized as accessories since all pools do not have them, from pool equipment, which includes pumps and filters, heaters, specialty filters, and salt generators, which are mounted at the pump and filter area. Respondent’s experts were uniform in their opinions that the act of disconnecting and reconnecting pool lights, as well as other pool equipment, at the load side of a breaker does not constitute electrical contracting. Mr. Pruette testified that disconnecting and connecting a pool light at a circuit breaker is not a difficult or complex task, and can be easily performed with a little training. Mr. Del Vecchio testified that the disconnection and connection of pool lights at the circuit breaker is no different than that performed by a plumber in replacing a hot water heater, or an air-conditioning contractor in replacing a piece of air-conditioning equipment. Almost all of the experts either replaced pool lights as part of their routine scope of work or knew of pool contractors who did so, a practice that appears to be commonplace. Furthermore, several of the witnesses worked in areas of the state in which county building officials did not require permits, electrical or otherwise, for the replacement of pool lights, though the evidence in that regard was generally hearsay. Mr. Lenois, who testified on Petitioner’s behalf, stated his opinion that reasonable people could differ as to the meaning of the statutory language placing the “installation, repair, or replacement of existing equipment” within the scope of work of a pool/spa contractor. The issue of the extent to which electrical work is subsumed within the statutory scope of work of a pool/spa contractor of “installation, repair, or replacement of existing equipment” has been the topic of considerable discussion in the industry. In that regard, the Florida Pool and Spa Association has filed a Petition to Initiate Rulemaking with the CILB seeking, among other things, to “clarify[] the scope of a certified pool contractor’s license to include the installation, repair, and replacement of pool equipment, up to and including the electrical connection on the demand side of the power source.” There was no evidence as to the disposition of the petition. Respondent argued that Florida Administrative Code Rule 61G4-16.001(9), which establishes that five percent of the written certification exam for commercial pool/spa contractors is to cover “electrical work,” is evidence that electrical work is within the scope of work for a pool contractor. Electrical work associated with pool construction includes grounding for the pool shell itself. Thus, a degree of knowledge of basic electrical work and codes would be warranted, regardless of whether equipment electrical connections are within the scope of work for a pool/spa contractor. The parties introduced a series of DBPR-approved course outlines and instructor applications for a three-hour class, sponsored by the Florida Pool and Spa Association, entitled “Basic Electricity and the NEC [National Electric Code] for Swimming Pools,” and a one-hour class, sponsored by the Florida Pool and Spa Association, entitled “Basic Electrical Requirements for Pools.” The course outline prepared by the Florida Pool and Spa Association for each of the approved courses provides, in bold font, that: Instructor is aware that electrical work does not fall within the scope of work of licensed pool/spa contractors. No instruction on how to perform electrical work will take place. Course will provide much needed understanding of the basics of electricity as well as those aspects of the NEC as they pertain to pools and spas. Instructor will also emphasize the importance of using a licensed electrical contractor to perform required work.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Construction Industry Licensing Board enter a final order finding that Respondent violated section 489.129(1)(o), Florida Statutes, as alleged in Count One; and sections 455.227(1)(o) and 489.129(1)(c), Florida Statutes, as alleged in Count Two, but only as that count pertains to the replacement of pool lights. It is further recommended that: Respondent be subject to a fine of $1,000 for a first violation of section 489.129(1)(o); Respondent be subject to a fine of $4,000, and that Respondent’s commercial pool/spa contractor licenses be subject to a period of probation for two years for a first violation of section 455.227(1)(o) and section 489.129(1)(c); and Respondent be required to complete an approved, live seven-hour continuing education course, in addition to any otherwise required continuing education, with an emphasis on chapter 489 and the rules enacted pursuant thereto. DONE AND ENTERED this 5th day of October, 2016, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 2016.
The Issue The issue at the hearing was whether Respondent's pool contracting license should be disciplined for alleged violations of Chapter 489, Florida Statutes.
Findings Of Fact Respondent is a licensed pool contractor in Panama City, Bay County, Florida, holding license number RP 0053231. Respondent was registered as an individual with the Board. The address given on his pool contractor's license was 3414 Jenks Avenue, Panama City, Florida. National Pools of Panama City, Inc. was not registered or certified as a contractor with the Board. National Pool's address was 3416 Jenks Avenue, Panama City, Florida. No clear and convincing evidence was presented as to whether Respondent had any knowledge of National Pool's unregenerate and incertitude status. On February 16, 1988, Robert D. Hay entered into a contract with National Pools of Panama City, Inc., for the construction of a pool on his property located at 1000 Kimberly Lane, Lynn Haven, Florida. The price of the pool was $9,310.92. The contract established a schedule of payments for the construction of the pool. Each payment was made upon completion of a certain portion of the construction work. The contract also provided that National Pools would pay for all work and materials used in the construction of the pool. A building permit was obtained for the construction of the pool. No evidence was submitted on who actually pulled the construction permit. The contractor listed on the building permit was Respondent and the construction was supervised by Respondent. The pool was completed to Mr. Hay's satisfaction and he paid the last installment payment to National Pools. 1/ Mr. Hay received a release of lien from Vance White. Mr. White was the president of National Pools. However, Mr. Hay later learned That National Pools had not paid for some materials which had been used in the pool's construction. The supplied of the materials filed a lien In the amount of $1,718.49 on Mr. Hay's property. Mr. Hay attempted to get National Pools to pay the lien. However, the lien was never satisfied by National Pools. Eventually, Mr. Hay was forced to pay the lien plus attorney's fees and court costs or else have the lien foreclosed on his property. The amount Mr. Hay was forced to pay in order to clear the title to his property was $2,615.41. There was no substantial evidence submitted which demonstrated Respondent's relationship to National Pools. The fact that Respondent's name appeared on the building permit does not support a finding that Respondent is the primary contracting agent for National Pools. Likewise, the fact that Respondent's address on his license was next door to National Pools does not support a finding that Respondent is the primary contracting agent for National Pools. It is just as likely an inference that Respondent was not the qualifying agent for National Pools, but was its subcontractor and it is National Pools and its officers who are violating the provisions of Chapter 489, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a Final Order dismissing the Administrative Complaint against Respondent. DONE and ENTERED this 2nd day of August, 1990 in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 1990.
Findings Of Fact At all pertinent times, respondent Henry J. Tinkler was licensed by petitioner as a swimming pool contractor, holding license No. 0024949, under the name of "Henry J. Tinkler." At one time, Fred C. Charlton worked as a "salesman" of swimming pool construction contracts for a Ft. Lauderdale construction company. When the Ft. Lauderdale company failed, several contracts to build swimming pools remained unexecuted. So that his "sales" would not have been in valid, Mr. Charlton organized Aquapool in late 1978 or early 1979 to step in to the shoes of the Ft. Lauderdale contractor. He has been president of the corporation since its inception. He knew that he could not pull building permits himself; and Mr. Charlton did not involve himself in the actual construction of the pools. Respondent became vice-president of Aquapool and held this office until September of 1979. Respondent has built several pools pursuant to oral agreements with Charlton (acting for Aquapool), to build all pools Aquapool "sold" in Pinellas County. In these transactions, Charlton made a profit and Tinkler made a profit. Respondent never applied for any building permit under Aquapool's name. He always used his own name or the name "Hank's Custom Pools." Respondent never made application to qualify Aquapool as a registered pool contractor in Florida. Neither did respondent make application to qualify "Hank's Custom Pools" as a registered pool contractor. Not uncommonly, contractors do business under fictitious trade names like "Hank's Custom Pools." Eventually one Clay Andrews of Jacksonville made application to quality Aquapool as a swimming pool contractor in Florida until November 17, 1979. Harry George Pugh and Grace L. Pugh signed, on May 19, 1979, a contract with Aquapool for construction of a swimming pool at their Indian Rocks Beach home. Petitioner's Exhibit No. 2. On the building permit application form, Petitioner's Exhibit No. 3, the contractor is listed as "Hank's Custom Pools." The application is dated June 19, 1979. Mr. Pugh never met Mr. Tinkler. Guy Jean and Jane A. Narejo also contracted with Aquapool to build a swimming pool at their home in Largo, Florida. Petitioner's Exhibit No. 4. Mr. Pugh never met Mr. Tinkler. On June 14, 1979, "H. Tinkler" applied for a permit to build the pool. The permit issued the following day. Petitioner's Exhibit No. 5. Willard L. Marks and Helen J. Marks signed, on May 1, 1979, a contract with Aquapool for construction of a swimming pool at their home in Clearwater, Florida. Petitioner's Exhibit No. 6. Mr. Marks never met Mr. Tinkler. H. J. Tinkler applied for a permit to build the pool on June 7, 1979. Petitioner's Exhibit No. 7. Swimming pool contractors ordinarily subcontract electrical work. Sometimes as many as four or five subcontractors participate in the building of a swimming pool. Petitioner's proposed recommended order has been considered and proposed findings of fact have been adopted except where they have been deemed irrelevant or unsupported by the evidence.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner suspend respondent's registration as a swimming pool contractor for sixty (60) days. DONE and ENTERED this 27th day of April, 1982, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Telephone: (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1982. COPIES FURNISHED: Michael Egan, Esquire 217 South Adams Street Tallahassee, Florida 32301 Gerald Nelson, Esquire 4950 West Kennedy Tampa, Florida 33609 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32302 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD DEPARTMENT OF PROFESSIONAL REGULATION/CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. CASE NO. 81-3043 HENRY J. TINKLER, RP 0024949 d/b/a Individual 5243 27th Avenue St. Petersburg, Florida 33710 Respondent. /
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to this proceeding, respondent Henry C. Hollenbeck was licensed as a swimming pool contractor. In February of 1980, respondent, doing business as Acme Pools, entered into a contract with Loren Bjornson to construct a swimming pool at Bjornson's residence for a total purchase price of $8,300. Construction of this pool was completed on or about June 30, 1980. Respondent did not obtain a building permit for the Bjornson pool until January 5, 1981. Prior to the construction of a swimming pool in Ft. Walton Beach, a building permit is required. No inspections were performed by the City during construction of the Bjornson pool. Many items, such as the plumbing, walls, drain system, etc., cannot be adequately inspected after construction is completed and the pool is filled with water. Almost immediately upon construction of the Bjornson pool, a crack in the wall at the center of the pool appeared. This was repaired by respondent. Then, in July of 1980, the pool started losing one inch of water per day. In August, 1980, the pool started losing two inches of water per day. Mr. Bjornson repeatedly contacted respondent about this problem, but respondent did not respond to the calls because he felt that Mr. Bjornson had not paid his bills. Apparently, the financial dispute concerned work on a neighbor's driveway for which Mr. Bjornson was never billed. On three different occasions, Mr. Bjornson had not paid his bills. Apparently, the financial dispute concerned work on a neighbor's driveway for which Mr. Bjornson was never billed. On three different occasions, Mr. Bjornson retained another pool company to make repairs on his pool to prevent it from leaking. The three repair bills amounted to slightly over $200 and none of the repair jobs could be guaranteed. In order to make a guarantee, the service and sales manager of Aqua Pools estimated that repairs amounting to $11,365 would be necessary. It was his opinion that the repair work would involve a major rebuilding of the pool, including the removal of the pool deck and tiles and the reinforcement of walls. At the time of the hearing, the Bjornson pool was not presently leaking. By contract dated August 10,1979, respondent agreed to install a swimming pool for Mr. and Mrs. Walter Parker. Construction was competed in October of 1979 and leaking problems began almost immediately. Respondent came back on at least four occasions to do the repair work. The corners were patched and other repair work necessitating the complete draining of the pool was performed. Each time, the Parkers were charged for labor and parts. At the time of the hearing, the Parker pool still leaked approximately one inch per day. It was estimated that it would cost about $1,000 to repair the Parker pool adequately so that a one-year warranty against leaking could be given. Respondent testified that he did not respond to Mr. Bjornson's calls for repair work because Mr. Bjornson still owed him money. He believed the Parkers also owed him money. He felt that he could repair both pools adequately for a nominal sum of money.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that petitioner find respondent guilty of violating Sections 489.129(1)(d) and 489.129(1)(m), Florida Statutes, and suspend his pool contractor's license for a period of one (1) year. DONE AND ENTERED this 16th day of December 1981 in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of December 1981. COPIES FURNISHED: John O. Williams, Esquire 547 North Monroe Street Suite 204 Tallahassee, Florida 32301 Henry C. Hollenbeck Rt. 1, Box 196 F-G, Circle Drive Ft. Walton Beach, Florida 32548 Mr. Samuel Shorestein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
