The Issue The issues presented for decision herein are whether or not Respondent failed to properly supervise a pool construction project, willfully violated local laws, is guilty of gross negligence, incompetence, misconduct, fraud or deceit in the practice of contracting and failed to discharge his supervisory duties as a qualifying agent in violation of sections 489.129(1)(d), (m), (j), and sections 489.119 and 489.105 (4), Florida Statutes.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings. At all times material hereto, Respondent was a registered pool contractor in Florida, holding license no. RP0015329 and served as the qualifying agent for Paradise Pools, Inc. (Request for Admission, responses 1- 4). Petitioner is the regulatory agency in Florida charged with the authority to regulate contractors and to determine compliance with applicable state and local building code requirements. On May 31, 1986, Respondent entered into a contract with Alex and Theresa Nitu for the construction of a swimming pool at the Nitu's residence at 9550 Lisa Road in Dade County, Florida. The following day, the Nitus were approached by John Davis, a partner of Paradise Pools, Inc. Davis identified himself as the owner of Paradise Pools and told the Nitus that Respondent was the company salesman. Davis is not a licensed contractor. During construction, Davis supervised the work for the Nitus' pool. Mrs. Nitu was ill and remained at home on the day the workers laid reinforcing steel for the pool shell. Mr. Nitu, an electrical contractor, took off work and was at home during the two days when the gunite work was done for their pool. Respondent was not present on the job site on those days. The day after the concrete deck was poured, the Nitus noticed that it contained several low spots which collected water and that rocks were protruding through the deck's surface. Additionally, a portion of the deck sloped toward the pool rather than away from it. The following day, the Nitus returned home from work to discover that the "whitecoat" for the deck surface was completed and their water hose, weighted down by a rock and a rag, was filling the pool. The pool was filled with water before the Nitus had completed a fence to secure the pool. At Mr. Nitu's request, James Tucker, a Dade County Building Inspector, inspected the pool on August 6, 1986. Tucker issued a notice of violation to Respondent for allowing water to be put in the pool without proper safety barriers in contravention of section 33-12, Dade County Code; for allowing the deck to slope toward the pool in contravention of section 5003.1 of the South Florida Building Code and for using concrete of less than 2500 psi strength in contravention of section 5003.1(a), South Florida Building Code. In an attempt to correct the low spots and improper slope of the patio, Davis poured an additional layer of cement over the pool deck and scored the surface to create the appearance of keystone. Thereafter, the Nitus discovered hollow areas under certain parts of the keystone. Eventually, the keystone began to separate from the original deck exposing large areas of the deck. Ben Sirkus was tendered and accepted as an expert in pool construction. Sirkus inspected the Nitu's pool on September 24, 1987, at Petitioner's request. Sirkus observed low spots in the pool deck which held water and contributed to the growth of algae. He also observed that large areas of the imitation keystone had separated from the original deck; that portions of the deck still drained towards rather than away from, the pool; that coping mortar had been left on the sides of the coping and the pool shell; that areas of the whitecoat were unusually rough and that the pool pump was off level, which in time could cause scoring of the bearings in the pump. Sirkus opined that the deficiencies observed could not have gone unnoticed by a pool contractor of average skill and ability; that deficiencies indicate poor supervision or gross negligence or that Respondent exhibited incompetence in contracting for the Nitu's pool. John Davis, Respondent's partner and the person who was usually on the site during all facets of the construction, credibly testified that when the angles were laid out for the sloping of the decks surrounding the Nitu's pool, Alex Nitu requested that his employees angle the deck toward the pool such that it would mesh with his patio. This required that Respondent's employees reslope the angles in accord with Mr. Nitu's wishes and contrary to the manner in which they originally sloped the deck. Mr. Davis also attempted to correct the problems that had surfaced surrounding the deck in accordance with the concerns expressed by the Nitus. However, the Nitus vehemently refused access to Respondent's employees and the matter therefore, remained unresolved. Respondent Reise was at the construction site on numerous occasions during the major facets of the construction. In addition to being the principal salesman for Paradise Pools, Respondent Reise has extensive experience in the construction of pools and frequently consulted with his partner, John Davis, about the ongoing construction of the Nitu's pool. Respondent Reise also attempted to gain access to the pool to attempt to correct the problems and other concerns expressed by the Nitus, to no avail. In this regard, a meeting was held at the Nitu's residence on January 30, 1987, by Jim Tucker and Robert Denery, employees of the Dade County Building and Zoning Department, a Mr. Wolf, Petitioner's investigator, Respondent and his partner, John Davis. After a lengthy discussion, it was agreed that all problems were to be resolved which included (1), repair and patch the keystone on the east end of the pool and (2), rework the slope on the northside of the pool to pitch away from the pool and (3), submit test results from an engineering test lab as to the structural strength of the patio slab and final approval by the electrical and plumbing departments of Dade County. Respondent agreed to correct the above-referenced items and agreed to do so as quickly as feasible. The Nitus refused to allow Respondent's employees back on the site to correct the problems. (Respondent's Exhibit 1). John Davis and Respondent's other employees denied that they started filling the Nitu's pool prior to the time that the Nitus had completed a fence to secure it. Their denial in this regard is incredible and is not worthy of belief. The Nitus, in this regard, credibly testified that they were at all times concerned about the safety of the pool and would never have started filling it prior to the time that it was secured. Respondent's employees, on the other hand, were in fact interested in completing the job and it is therefore believed that they started the water running into the pool and weighted the hose down with a rock and a rag as the Nitus found it when they returned home from work on the day that the "whitecoat" was completed. In all other respects, based on the Nitus' failure to permit Respondent's employees to return to the site to complete the deficiencies and other concerns noted, the undersigned finds that Respondent should have been afforded an opportunity to correct such deficiencies and cannot be held liable 1/ for the allegations that he improperly sloped the pool deck, used improper concrete or was otherwise negligent, incompetent, engaged in misconduct and other allegations of improper supervision, as alleged. I shall so recommend.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Respondent be assessed an administrative fine in the amount of $250.00. Respondent be issued a written reprimand for allowing his employees to fill an unsecured pool in violation of the local building code. DONE and ORDERED this 16th day of September, 1988, in Tallahassee, Florida. JAMES E. BRADWELL 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 19th day of September, 1988.
Findings Of Fact Respondent is the holder of currently active General Contractor's license No. RG-0023888. On January 18, 1977, Norwood W. Hope (hereinafter "Developer") entered into a contract with Respondent for the construction of a commercial swimming pool. Respondent was to have been paid the amount of $43,346.40 under the contract for construction of the pool. The contract amount was to be paid pursuant to a five-stage draw schedule as follows: 1. Framing and steel draw paid $10,836.60 2. Gunite draw paid 10,836.60 3. Mancite draw 7,224.40 4. Equipment set draw 7,224.40 5. Final approval draw 7,224.40 Respondent made application for an Alachua County building permit for the swimming pool project on February 23, 1977. The permit application was approved on February 25, 1977, and a building permit was issued. Thereafter, the project received Alachua County approval on a temporary power pole inspection on June 1, 1977. An interim inspection of the property was made by Alachua County officials on November 7, 1977, with no deficiencies noted. A final inspection on the electrical work on the project was made, with satisfactory results, on November 8, 1977. The Alachua County Building Code, by incorporation of the 1973 Southern Standard Building Code, 1974 Revision, provides, in part, as follows: 108.2--INSPECTIONS REQUIRED The Building Official shall inspect or cause to be inspected at various intervals all construction or work for which a permit is required, and a final inspection shall be made of every building or structure upon completion, prior to the issuance of the Certificate of Occupancy, as required in Section 109. * * * (c) The Building Official upon notifica- tion from the permit holder or his agent shall make the following inspections of buildings and such other inspections as may be necessary, and shall either approve that portion of the construction as completed or shall notify the permit bolder or his agent wherein the same fails to comply with the law: * * * Final Inspection: To be made after the building is completed and ready for occupancy. (Emphasis added). The contract entered into on January 18, 1977 between the Developer and Respondent called for Respondent to construct the swimming pool according to the plans and specifications admitted into evidence as Petitioner's Exhibit No. 1. Associated construction, including construction of concrete pool decking, a pumphouse and a fence surrounding the swimming pool site were either completed by the Developer or by other sub contractors. By invoice dated October 12, 1977, Respondent requested a final draw on the project in the amount of 87,000, which, if paid, would have left only $224.40 unpaid under the contract. This draw request indicated that a balance due for extra time and materials would be billed ". . . upon acceptance of total pool." (Respondent's Exhibit No. 4). On October 25, 1977, the Developer paid $6,000 of the $7,000 requested to be paid by Respondent's invoice of October 12, 1977. The Developer contested Respondent's expressed intention to bill for additional time and material, asserting that the Developer had not approved any additional sums for extras. In remitting the $6,000 payment to Respondent, the Developer indicated that "[t]his leaves a balance on our account of $1,224.40, which will be paid upon checking out the pool." (Respondent's Exhibit No. 2). (Emphasis added.) An invoice for back charges on the swimming pool project in the amount of $274 was forwarded to the Developer by Respondent by invoice dated November 8, 1977. In addition, on November 8, 1977, Respondent also invoiced the Developer for a final draw on the project in the amount of $1,224.40. At some time after notification from the Developer's representatives that tile targets in the racing lanes of the pool were improperly located, Respondent returned to the job site after November 9, 1977 to relocate the targets. Respondent performed this work as a result of a written request from the Developer dated November 9, 1977. Respondent completed primary construction of the pool prior to submission of the final draw request of October 12, 1977. At that time, back- filling around the exterior of the pool structure preparatory to the pouring of the concrete pool decking had not been completed. Although by October 12, 1977, Respondent had removed much of the excess dirt and debris from around the edges of the pool. There were still areas of exposed piping which would, in due course, be covered with back-fill and tamped by the decking subcontractor. Respondent did not attempt to back-fill or tamp any areas around the pool's piping system. At some time subsequent to October 12, 1977, which date is not clearly reflected in this record, a separate sub- contractor completed back-filling work around the pool, and poured the concrete decking. Neither the Developer nor his subcontractor advised Respondent that the back-filling had been accomplished and that the deck was to be poured. Prior to October 12, 1977, Respondent "pressure tested" the pool's piping system, and determined that the pool would hold water at a level above its scum gutters. The results of this testing indicated that, at least as of October 12, 1977, there was no leakage from the pool. Standard practice in the pool construction industry dictates that a minimum of three pressure tests be made of a pool's piping system during the course of construction. The first of these tests should occur immediately after installation of the pipes, and a second test should be performed immediately before final back-filling to cover the pipe system. A final pressure test should be conducted after tamping of the fill and prior to the pouring of concrete for the pool deck. The obvious purpose of this system of pressure testing is to discover any water leaks before concrete pool decking is poured to avoid having to cut out sections of the concrete in order to locate leaks. Because the Developer and his subcontractor failed to notify Respondent of further work being done on the pool. Respondent was unable to perform a pressure test either after back-filling was completed, after the back- fill had been tamped and before the concrete deck was poured. By letter dated January 17, 1978, Respondent was furnished by the Developer with a "punch list" indicating several areas of deficiency that needed to be corrected in the pool. In that letter the Developer requested that Respondent complete the necessary work within seven days. The Developer forwarded a second letter to Respondent dated February 23, 1978 advising Respondent that the punch list items had not been corrected, and urging Respondent to complete the work described in the punch list as soon as possible. From receipt of the punch list in January of 1978 through the middle of March, 1978 Respondent had workers on the job intermittently making the corrections indicated in the punch list. Respondent satisfactorily corrected fifteen of the eighteen items listed as defective n the punch list. Some of the items were repaired by other subcontractors. Respondent had difficulty obtaining some items of equipment, which he was required to back-order. When the back-ordered equipment was slow in arriving, the Developer opted to obtain these items from a source other than Respondent. Respondent replaced a defective pump associated with the pool construction at some time subsequent to January 18, 1977. The last work performed by Respondent on the pool project occurred some time between March 10 and March 16, 1978. At no time thereafter was Respondent ever advised by the Developer that any work performed under the contract was either unsatisfactory or incomplete. The pool received a final State of Florida, Department of Health and Rehabilitative Services inspection on July 13, 1978, at which time all necessary permits for operation of the pool under applicable regulations were issued. Respondent at no time requested that Alachua County officials come to the job site to conduct the necessary final inspection of the project, nor did he advise the Developer of the necessity to do so. At some time during 1979, subsequent to the completion of the swimming pool project, the Developer discovered that the pool was losing water at a rate of approximately 2,100 gallons per day. During this period, the water level inside the pool would drop to a level equal to the piping running around the exterior of the pool shell and under the pool decking. When the Developer was unable to ascertain the cause of the leak, an outside subcontractor was hired to check the pool. This sub- contractor performed pressure tests on the pool's piping system in an attempt to determine whether the leakage was occurring through the pipes. These tests apparently showed no leakage through the piping system. The Developer then caused the concrete decking around the edge of the pool to be removed in order to more closely inspect the interior piping. At this point it was discovered that there existed flaws and breaks in the neoprene piping surrounding the exterior shell of the pool. After repairs to the damaged piping, the pool decking was repoured and there has been no subsequent leakage problem in the pool. The Developer incurred expenses in the amount of $2,288 in removing the decking around the pool and repairing the neoprene piping. Because of the fact that several subcontractors in addition to Respondent worked in the pool area during construction of the pool project, it is impossible on the basis of this record to determine the cause of the damage to the neoprene piping. Respondent's testimony is uncontroverted that pressure testing performed prior to the conclusion of primary work on the pool in October of 1977 showed no leakage through the pool's piping system. Further, at the conclusion of the primary work in October, 1977, much of the pool's piping system was left exposed and could have been damaged either by the Developer's own workers or by employees of other subcontractors in the course of back- filling and tamping fill material preparatory to pouring concrete decking. The Developer's failure to advise Respondent of the schedule for back-filling, tamping and pouring of concrete deprived Respondent of an opportunity to properly pressure test the piping system at appropriate stages of construction. Respondent has submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings of fact are not incorporated in this Recommended Order, they have been rejected as being either irrelevant to the subject matter of this proceeding or as not having been supported by the evidence.
The Issue The issue is whether the Respondent is subject to discipline for permitting his general contractor's license to be used by another person to construct a swimming pool, thereby conspiring with an unlicensed person to avoid statutory licensure requirements, and by failing to oversee the quality of the work performed by that person under Respondent's license.
Findings Of Fact The Petitioner is the state agency responsible to prosecute administrative complaints under Chapters 455 and 489, Florida Statutes, and the rules implementing those statutes. At all times material to the complaint, Raymond Hurley was licensed as a certified general contractor, holding Florida license CGC 000773 and served as the qualifying agent for Capital Resources and Development, Inc. Kenneth R. and Lucille M. Clopper, of Fort Pierce, Florida, entered into a contract with Fred Humberstone, doing business as Southern Fiberglass Pools of the Treasure Coast, Inc., on September 21, 1987, for the construction of a pool and screened enclosure at the Clopper's home. The contract price was $15,500. Mr. Humberstone has never been a qualified contractor in St. Lucie County, Florida. Mr. Hurley became authorized to do business as a contractor in St. Lucie County, Florida, on September 29, 1987, when he provided a copy of his state certified general contractor's license, a certificate of insurance for worker's compensation and general liability property damage insurance to St. Lucie County. St. Lucie County Permit No. 44574 was issued to Capital Resources and Development, Inc., on October 9, 1987. The permit application had been dated September 24, 1987. The application bore Mr. Hurley's contractor license number. In the space for the name of the company, the application had originally been written in the name of Southern Fiberglass Pools of the Treasure Coast, of Stuart, Florida. The name of the applicant had been scratched through, and the name of Capital Resources and Development, Inc., was written over it. The application bears a handwritten signature which reads Raymond S. Hurley, but it is not his signature. Mr. Hurley did not sign the application, or authorize anyone to sign it for him. Mr. Hurley knew Mr. Humberstone, the owner of Southern Fiberglass Pools of the Treasure Coast. Humberstone had difficulty with his corporation because his qualifying contractor had left, and Humberstone owned approximately $150,000 worth of equipment which he could not use without a qualifying contractor. Humberstone made a proposal to Hurley to become the qualifying contractor for Southern Fiberglass Pools of the Treasure Coast. It was about this time that Mr. Hurley first qualified to engage in the business of contracting in St. Lucie County. Mr. Humberstone must have pulled the permit for the Clopper jor, using Mr. Hurley's licensure in St. Lucie County. This is likely because at first, the line for the permit applicant had been filled in with the name of Humberstone's business, Southern Fiberglass Pools by the Treasure Coast. Mr. Hurley had become licensed in St. Lucie County because he was contemplating going into business with Mr. Humberstone. What cannot be determined from the evidence in the record is whether Mr. Hurley had agreed with Mr. Humberstone to make his licensure available to Mr. Humberstone so Humberstone could continue in the pool contracting business in St. Lucie County. Mr. Hurley did not sign the application for the permit at the Clopper's home. He never went to the Clopper's home to see the work or to meet the Cloppers. Had he gone into partnership with Humberstone he would likely have participated, to some extent, in the work. On this matter, the Department's proof is insufficient. After the construction at the Clopper home began, there were a number of delays in completion of the pool, and the contractor failed to install stress relief for the pool deck which resulted in cracking of the pool deck. The pool itself had three leaks. The problems with the pool remained unresolved and the Clopper's finally settled with Mr. Humberstone for payment for $1,020 in exchange for providing Mr. Humberstone with the release of liability. Ultimately, the Cloppers spend $1,659 to repair the problems created by Mr. Humberstone's inadequate work. Mr. Hurley was never at the job site, and the Cloppers never knew anything about him until after their pool had been completed; all of their dealings had been with Humberstone.
Recommendation It is recommended that the administrative complaint filed by the Construction Industry Licensing Board against Raymond Hurley be dismissed. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31st day of January 1991. WILLIAM R. DORSEY, JR. 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 31st day of January 1991. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-4233 Rulings on findings proposed by the Petitioner: 1-7. Accepted. 8. Rejected, as there is insufficient evidence to find that Mr. Hurley, although he knew Mr. Humberstone, had entered into any agreement Humberstone to become a qualifying contractor for Humberstone's corporation. While that is one inference which could be drawn from the evidence, the evidence is not strong enough to permit such finding, at the level of certainty required for clear and convincing evidence, to be made. Rulings on findings proposed by the Respondent: 1-6. Adopted 7. Rejected. There is insufficient evidence in the record to make specific finding with respect to handwriting exemplars, but the testimony of Mr. Hurley that he did not sign the St. Lucie County permit application has been accepted. Copies furnished: Robert B. Jurand, Esquire Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Glenn N. Blake, Esquire BLAKE & TORRES Strange Building 500 South US 1 Fort Pierce, Florida 34950 Robert E. Stone, Esquire SULLIVAN, STONE, SULLIVAN LaJOIE and THACKER 100 Avenue "A", Suite 1F Fort Pierce, Florida 34950 Daniel O'Brien, Executive Director Department of Professional Regulation Construction Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times material hereto, Respondent, John R. Misiak, was a registered pool contractor, having been Issued license No. RP0033942. Respondent acted as the qualifying agent for Pool Masters, Inc., and also sewed as president of that company. On or about August 21, 1979, Respondent, on behalf of Pool Masters, Inc. , contracted with Mr. and Mrs. Rolf Schneider to construct a pool at the contract price of $9,400 at their residence at 4253 Sugar Pine Drive, Boca Raton, Florida. Pursuant to the terms of that contract, Pool Masters, Inc., guaranteed completion of the pool within eight weeks from the date of issuance of a building permit. On August 23, 1979, the Schneiders paid Pool Masters, Inc., a down payment of $948 On September 23, 1979, Respondent obtained a building permit for the pool and commenced construction. Thereafter, the Schneiders made two additional equal payments to Pool Masters, Inc., of $2,820 on October, 30, 1979, and November 4, 1979, respectively. After receipt of these payments, a remaining unpaid balance on the contract of $2,892 resulted. Work progressed on schedule through November 4, 1979, when Pool Masters, Inc., applied "shot crete" to the pool, and the Schneiders made their last payments of $2,820 as indicated above. Thereafter, work did not progress according to schedule, and the Schneiders became concerned about completion of their pool. There ensued a series of correspondence no conversations between the Schneiders, Respondent, and other officers of Pool Masters, Inc., concerning completion of the pool. Actual work on the pool continued through early December of 1979. At some time between December 4 and December 14, 1979, rough plumbing was installed in the pool. The rough plumbing was inspected and approved by the Palm Beach County Building Department on December 14, 1979. Pool Masters, Inc., had experienced financial difficulty as earl as August of 1979. Negotiations between the company and its creditors continued through late 1979 in the company's attempts to remain in business. In late November of 1979, Respondent spoke with Mrs. Schneider and informed her that the company was experiencing financial difficulties and might not be able to complete construction of the pool. On December 12, 1979, an officer of Pool Masters, Inc., spoke with Mr. Schneider, and informed him that the company would not be able to complete construction of the pool and further would be unable to refund their money. Respondent attempted to arrange completion of the Schneider's pool through another company. Under the proposed arrangement, the pool would have completed at the second company's cost, and Pool Masters, Inc., would have contributed $1,000 toward completion. At the time Respondent proposed this arrangement for completion of the pool, it appears from the record that the the pool could have been completed for approximately $2,000 above the original contract price. The Schneiders refused any offer or completion that would have exceeded the original contract price Pool Masters, Inc., was unable to make satisfactory financial arrangements with its creditors. As a result, the company filed a Voluntary Petition Under Chapter 7 of the Bankruptcy Code on January 29, 1980. No work was performed by Pool Masters, Inc., on the job after the period of December 4 through December 14, 1979. There is no evidence of record in this proceeding from which a conclusion can be drawn that any of the monies paid by the Schneider to Pool Masters, Inc., was applied other than in the partial construction of the pool pursuant to the contract. The Schneiders subsequently contracts with another firm for completion of the pool at a cost substantially in excess of the original contract price. The Schneiders also filed a civil suit for damages against Pool Masters, Inc. Respondent, and other corporate officers. In the course or that proceeding, the Schneiders recovered $1,750 from one of the corporate officers.
Findings Of Fact The Respondent Wilbur A. Sellars is licensed as a residential pool contractor by the Construction Industry Licensing Board through license number RP 0045541. Mr. Sellars was first licensed in 1975. At all times material to this case Respondent has owned and operated in Tallahassee, Florida, a pool contracting company called Pro Pools Service and Supply or Pro Pools, Inc. Cabana Construction In November 1977 Respondent entered into a contract with Dr. Frank S. Bilek to construct for him a 20' by 40' vinyl lined pool and a 20' by 40' cabana building. The contract price for the pool was $11,166.10. The price for the cabana was $14,517.30. The pool and building were constructed as provided in the contract. The cabana sits on an 800 square foot slab with footings and consists of three separate rooms. One room is a small bathroom containing a lavatory, water closet, and shower. Another room is fully enclosed by finished walls and sliding glass doors. The third room is open on two sides, one of which faces the swimming pool. The walls are typical stud construction with plywood siding on the exterior and half-inch drywall on the interior. The roof is supported by 2/12 2x4 prefabricated trusses with shingles on top. The ceiling inside the cabana is the same as would be found in a residential home and the floor is a cement slab covered by carpet. There is one overhead ceiling fan in the open room and another in the fully enclosed room. For all practical purposes the construction techniques and materials used in the cabana are the same as would be used in a residential dwelling, although they may not meet the code standards which would be applicable to a dwelling in the Killearn residential area where Dr. Bilek's home is located in Tallahassee, Florida. The cabana is equipped with plumbing for the bathroom and also for a wet bar in the kitchen area of the cabana. No pool accessories were located in the cabana at the time Petitioner's witness inspected the facility, however as with any other structure of its size, pool equipment such as vacuuming hoses, wands, etc., could be placed inside it. The original design for the cabana included large solar panels located on the roof. The purpose of these panels was to provide heating for the swimming pool water. After the panels were installed they malfunctioned and have since been removed from the cabana roof. Typically in home swimming pool installations such panels are placed on house roofs or are independently supported by a special structure located near the swimming pool. The swimming pool water recirculation pump and filter for Dr. Bilek's pool were not located inside the cabana in issue, but were located nearby out in the open. The cabana was not designed for the purpose of housing this equipment. It appears from the furnishings found in the cabana, its orientation with respect to the pool, and from its equipment that the cabana along with the pool coordinate to create a unified entertainment complex. Neither is essential to the other, however. The cabana could host a cocktail party without there being a drop of water in the pool and the pool can function perfectly without the cabana. Criminal Convictions On May 18, 1979 Respondent sent a work crew to Cairo, Georgia, for the construction of a residential swimming pool for Mr. and Mrs. Vanlandingham. The crew was using a dump truck to haul excavated dirt from the pool site to a dumping site several miles from the Vanlandinghams' residence. An inexperienced driver was operating the truck. Upon arrival at the dumping site he engaged the bed lift to dump the dirt but forgot to release the safety chains. As a result the chassis of the truck broke. Members of the crew called Mr. Sellars to give him the bad news. He instructed them to burn the truck, which they did. Respondent then submitted an insurance claim for the loss of his truck due to an accidental fire. As a result of this false claim he was convicted of insurance fraud as defined in Section 817.234(1)(a), Florida Statutes. He entered a guilty plea and judgment was entered on June 7, 1982. On the same date Respondent also pled guilty and was convicted on another count of insurance fraud arising from his filing a false claim for the alleged theft of three mobile radios from trucks operated and owned by Pro Pools Service and Supply. The radios had in fact not been stolen. Since his conviction Mr. Sellars has obtained insurance coverage for the business of Pro Pools including automobile liability, physical damage, general property and general liability insurance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Construction Industry Licensing Board enter a Final Order finding the Respondent Wilbur A. Sellars guilty of Counts One, Two, Three and Four in the Amended Administrative Complaint and impose discipline in the form of an administrative fine of $200 and suspending Respondent's license as a residential pool contractor for a period of three months. DONE and RECOMMENDED this 23rd day of December, 1983, in Tallahassee, Florida. MICHAEL P. DODSON 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 23rd day of December, 1983.
The Issue Whether Respondent engaged in construction contracting without a license as alleged in the Administrative Complaint; and, if so, the appropriate penalty.
Findings Of Fact DBPR is the state agency responsible for regulating the practice of construction contracting pursuant to section 20.165 and chapters 455 and 489, Florida Statutes. DBPR has jurisdiction over the unlicensed practice of construction contracting pursuant to sections 455.227, 455.228, and 489.13, Florida Statutes. At all times material to this matter, Mr. Johnson was the owner of J3. Mr. Johnson is not licensed, registered, or certified to perform construction contracting services in Florida. At the heart of this case is whether Mr. Johnson “offered, contracted, or performed regulated construction contracting services, including but not limited to, installation of a pool pump at 3905 Cardiff Place, Parrish, Florida.” Mr. Johnson, via J3, provided pool service, specifically pool cleaning to Mr. Sylvester. Mr. Sylvester thought the pool cleaning service was very good, and agreed that the two men (Mr. Johnson and Mr. Sylvester) had a “good customer-client relationship.” In April 2016, Mr. Sylvester hired Mr. Johnson to install a pool pump motor (motor) at a residence located at 3905 Cardiff Place, Parrish, Florida.5/ At that time, Mr. Sylvester did not know Mr. Johnson was not licensed to install a motor. On the installation day, Mr. Johnson left a voicemail message for Mr. Sylvester advising him that the motor had been installed, but it would not work. Mr. Johnson speculated that the electricity to the motor was turned off, and the switch was located in a closed garage. After arriving at the house, Mr. Sylvester turned the electricity on, the motor did not work, and Mr. Sylvester called Mr. Johnson. Mr. Johnson came to the pool location and worked on the motor. The motor started working. On April 7, 2016, after the motor was installed, Mr. Sylvester (or his wife) wrote a check to “J3 Pools & Pressure Washing” for $310.00 for the “motor.” A warranty was included with the installation; however there was no description of the type or length of the warranty provided.6/ In April 2016, Mr. Johnson sold his “pool route,” including the 3905 Cardiff Place location to another company. When contacted about the motor not working, Mr. Johnson advised Mr. Sylvester to contact the other company for the warranty work. Mr. Sylvester credibly testified that his only contact with the other company was shortly after the notification that Mr. Johnson had sold his pool route. Mr. Sylvester called the other company and “fired” them, as he wished to engage a different pool service. Approximately three to four months (July or August 2016) after the motor was installed, it stopped working. The pool turned green because the motor was not cycling on and off. This complaint was generated after the motor failed, and it came to light that Respondent was not licensed. Petitioner established that it incurred $217.09 in investigative costs while investigating this complaint. The evidence is clear and convincing that Respondent’s installation of the motor constituted the practice of construction contracting without a license. As a result, Respondent is guilty of unlicensed contracting, as charged in the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation issue a final order that: Finds Respondent guilty of unlicensed contracting in violation of section 489.13(1), as alleged in the Administrative Complaint; Imposes an administrative fine of $3,000; and Requires Mr. Johnson to pay the Department’s investigative costs of $217.09. DONE AND ENTERED this 12th day of June, 2017, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 12th day of June, 2017.
The Issue Whether the claimants herein are entitled to payment from the Construction Industries Recovery Fund and, if so, the amount of the payment to which each claimant is entitled. Whether the license of the Petitioner is subject to automatic suspension pursuant to Section 489.143(7), Florida Statutes (Supp. 1998).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Fund is established by Section 489.140, Florida Statutes, for the purpose of reimbursing those persons who meet the eligibility requirements set forth in Section 489.141, Florida Statutes. The Board is the entity responsible for reviewing applications for payment from the Fund and entering orders approving or disapproving the applications. Sections 489.140(1) and 489.143(1), Florida Statutes. Mr. Kiselius is a licensed residential pool/spa contractor, having been first issued such a license in 1984. Mr. Kiselius's license is currently on inactive status, but at the times material to this action, Mr. Kiselius's license was active. Pool Masters was a Florida corporation incorporated on August 10, 1995. Frederick H. Martin and Abraham Zafrani were the sole shareholders of the corporation, and Mr. Martin was the President and Secretary of the corporation, and Mr. Zafrani was the Vice-President and Treasurer. From on or about October 24, 1995, until November 14, 1997, Mr. Kiselius was the qualifying agent for Pool Masters. The record does not reflect the date on which Pool Masters was issued its certificate of authority allowing it to engage in contracting as a business organization, but it was assigned Qualified Business Organization License Number QB0002327 on or about November 6, 1996. Pool Masters filed for bankruptcy pursuant to Chapter 7 of the United States Bankruptcy Code on January 1, 1998, and the corporation was administratively dissolved on October 16, 1998. DOAH Case No. 99-1665: Santibanez and Pappas Eugene Santibanez and Alexander Pappas entered into a contract with Pool Masters for construction of a swimming pool. The contract was executed on or about March 25, 1997. The total price stated in the contract was $21,000.00; a change order was executed on November 4, 1997, for an additional price of $2,890.00. Pool Masters represented to Mr. Santibanez and Mr. Pappas that it was a licensed swimming pool contractor. Pool Masters began work on the pool on or about May 17, 1997. Mr. Santibanez and Mr. Pappas made payments to Pool Masters pursuant to the contract, and Pool Masters excavated the hole for the pool, put in the foundation, and poured the concrete. Pool Masters ceased work on the swimming pool in late November 1997, after the concrete was poured. A week later, Mr. Santibanez heard that Pool Masters had declared bankruptcy. At the time Pool Masters ceased work on the pool, Mr. Santibanez and Mr. Pappas had paid Pool Masters a total of $19,690.00 for work done pursuant to the contract and change order. Although Pool Masters represented to them that the payments would be used to pay subcontractors and materialmen, there were subcontractors and materialmen who were not paid. At least one lien was filed against Mr. Santibanez's and Mr. Pappas's property, and they paid the subcontractors and materialmen directly in order to get the liens released. On January 17, 1998, the United States Bankruptcy Court for the Southern District of Florida issued a Notice of Commencement of Case Under Chapter 7 of the Bankruptcy Code, showing that Pool Masters had filed for bankruptcy on January 7, 1998. On or about March 11, 1998, Mr. Santibanez and Mr. Pappas submitted a Construction Industries Recovery Fund Claim Form to the Board, naming Pool Masters as the contractor. In an order entered April 20, 1998, the bankruptcy court lifted the automatic stay to allow Mr. Santibanez and Mr. Pappas to file suit against Pool Masters. Mr. Santibanez and Mr. Pappas filed a complaint against Pool Masters in the Circuit Court for the Seventeenth Judicial Circuit in Broward County, Florida, seeking damages for breach of the contract for construction of the pool. Mr. Santibanez and Mr. Pappas alleged in the complaint that Pool Masters had failed to complete the work; failed to perform in a reasonable and timely manner and abandoned the project for more than 90 days which is a violation of F.S. 489.129(1)(k) [Section 489.129(1)(j)];[ 3/ ] falsely represented that monies paid to them were paid to materialmen and sub- contractors which resulted in financial harm to the Plaintiffs which is a violation of F.S. 489.129(1)(l) [Section 489.129(1)(k)];[ 4/ ] committed mismanagement and misconduct which caused Plaintiffs financial harm as of [sic] liens were recorded as against the Plaintiff's [sic] home in violation of F.S. 489.129(1)(h)(1) [Section 489.129(1)(g)1.];[ 5/ ] f [sic]. committed mismanagement and misconduct which caused Plaintiffs financial harm in that the percentage of completion is less than the percentage of the total contract price paid in violation of F.S. 489.129(1)(h)(2) [Section 489.129(1)(g)2.].[ 6/ ] Mr. Santibanez and Mr. Pappas further alleged in the complaint that the cost to complete the pool after construction was abandoned by Pool Masters was $17,975.50, and they included in the complaint an itemized list of expenditures to support their claim. The circuit court entered a Default Final Judgment on August 4, 1998, awarding Mr. Santibanez and Mr. Pappas $17,675.50, to be recovered from Pool Masters, plus interest at the statutory rate. In a letter from their attorney dated August 12, 1998, Mr. Santibanez and Mr. Pappas submitted to the Board additional documents to support their claim against the Construction Industries Recovery Fund, based on their Default Final Judgment against Pool Masters. The final report of the Trustee of Pool Masters' bankruptcy estate, dated December 1, 1999, indicated that Pool Masters had no funds remaining after disbursement for administrative expenses. Mr. Santibanez and Mr. Pappas did not receive any funds from the bankruptcy estate or any other source to satisfy the judgment against Pool Masters. Mr. Santibanez and Mr. Pappas satisfy the statutory criteria for eligibility for payment from the Fund in the amount of $17,675.50. DOAH Case No. 99-1666: Klaus and Lucrecia Mueller Klaus and Lucrecia Mueller entered into a contract with Pool Masters for construction of a swimming pool. The contract was executed on or about February 24, 1997. The total price stated in the contract was $16,400.00. Pool Masters represented to Mr. and Mrs. Mueller that it was a licensed swimming pool contractor. Pool Masters began work on the pool in Spring 1997, and Mr. and Mrs. Mueller made payments to Pool Masters pursuant to the contract. Pool Masters excavated the hole for the pool, installed the steel frame, poured gunnite at the shallow end of the pool, and installed the brick and tile around the pool. Pool Masters last worked on the swimming pool in late November 1997. At the time Pool Masters ceased work on the pool, Mr. and Mrs. Mueller had paid Pool Masters approximately $12,900.00 for work done pursuant to the contract. Although Pool Masters represented to them that the payments would be used to pay subcontractors and materialmen, there were subcontractors and materialmen who were not paid. Liens were filed against Mr. and Mrs. Mueller's property, and they paid the subcontractors and materialmen directly in order to get the liens released. On January 17, 1998, the United States Bankruptcy Court for the Southern District of Florida issued a Notice of Commencement of Case Under Chapter 7 of the Bankruptcy Code, showing that Pool Masters had filed for bankruptcy on January 7, 1998. On or about March 11, 1998, Mr. and Mrs. Mueller submitted a Construction Industries Recovery Fund Claim Form to the Board, naming Pool Masters as the contractor. In an order entered April 20, 1998, the bankruptcy court lifted the automatic stay to allow Mr. and Mrs. Mueller to file suit against Pool Masters. Mr. and Mrs. Mueller filed a complaint against Pool Masters in the Circuit Court for the Seventeenth Judicial Circuit in Broward County, Florida, seeking damages for breach of the contract for construction of the pool. Mr. and Mrs. Mueller alleged in the complaint that Pool Masters had failed to complete the work; failed to perform in a reasonable and timely manner and abandoned the project for more than 90 days which is a violation of F.S. 489.129(1)(k) [Section 489.129(1)(j)];[ 7/ ] falsely represented that monies paid to them were paid to materialmen and sub- contractors which resulted in financial harm to the Plaintiffs which is a violation of F.S. 489.129(1)(l) [Section 489.129(1)(k)];[ 8/ ] committed mismanagement and misconduct which caused Plaintiffs financial harm as of [sic] liens were recorded as against the Plaintiff's [sic] home in violation of F.S. 489.129(1)(h)(1) [Section 489.129(1)(g)1.];[ 9/ ] f [sic]. committed mismanagement and misconduct which caused Plaintiffs financial harm in that the percentage of completion is less than the percentage of the total contract price paid in violation of F.S. 489.129(1)(h)(2) [Section 489.129(1)(g)2.].[ 10/ ] Mr. and Mrs. Mueller further alleged in the complaint that the cost to complete the pool after construction was abandoned by Pool Masters was $13,299.51. The matter was presented to the circuit court, ex parte, upon Mr. and Mrs. Mueller's Motion for Default Final Judgment. The court entered a Default Final Judgment in June 1998, awarding Mr. and Mrs. Mueller $13,299.51, to be recovered from Pool Masters, plus interest at the statutory rate. In a letter from their attorney dated June 23, 1998, Mr. and Mrs. Mueller submitted to the Board additional documents to support their claim against the Construction Industries Recovery Fund, based on their Default Final Judgment against Pool Masters. The final report of the Trustee of Pool Masters' bankruptcy estate, dated December 1, 1999, indicated that Pool Masters had no funds remaining after disbursement for administrative expenses. Mr. and Mrs. Mueller did not receive any funds from the bankruptcy estate or any other source to satisfy their judgment against Pool Masters. Mr. and Mrs. Mueller satisfy the statutory criteria for eligibility for payment from the Fund in the amount of $13,299.51. DOAH Case No. 99-1667: Mario and Martha Alboniga Mario and Martha Alboniga entered into a contract with Pool Masters for construction of a swimming pool. The contract was executed on or about March 17, 1997. The total price stated in the contract was $24,000.00. Pool Masters represented to Mr. and Mrs. Alboniga that it was a licensed swimming pool contractor. Pool Masters began work on the pool on November 10, 1997, and Mr. and Mrs. Alboniga made payments to Pool Masters pursuant to the contract. Pool Masters excavated the hole for the pool and poured the concrete form of the pool. The last day Pool Masters worked on the swimming pool was November 19, 1997. Mr. and Mrs. Alboniga later heard that Pool Masters had declared bankruptcy. At the time Pool Masters ceased work on the pool, Mr. and Mrs. Alboniga had paid Pool Masters a total of $15,200.00 for work done pursuant to the contract. Although Pool Masters represented to them that the payments would be used to pay subcontractors and materialmen, there were subcontractors and materialmen who were not paid. Liens were filed against Mr. and Mrs. Alboniga’s property, and they paid the subcontractors and materialmen directly in order to get the liens released. On January 17, 1998, the United States Bankruptcy Court for the Southern District of Florida issued a Notice of Commencement of Case Under Chapter 7 of the Bankruptcy Code, showing that Pool Masters had filed for bankruptcy on January 7, 1998. On or about March 11, 1998, Mr. and Mrs. Alboniga submitted a Construction Industries Recovery Fund Claim Form to the Board, naming Pool Masters as the contractor. In an order entered April 20, 1998, the bankruptcy court lifted the automatic stay to allow Mr. and Mrs. Alboniga to file suit against Pool Masters. Mr. and Mrs. Alboniga filed a complaint against Pool Masters in the Circuit Court for the Seventeenth Judicial Circuit in Broward County, Florida, seeking damages for breach of the contract for construction of the pool. Mr. and Mrs. Alboniga alleged in the complaint that Pool Masters had failed to complete the work; failed to perform in a reasonable and timely manner and abandoned the project for more than 90 days which is a violation of F.S. 489.129(1)(k) [Section 489.129(1)(j)];[ 11/ ] falsely represented that monies paid to them were paid to materialmen and sub- contractors which resulted in financial harm to the Plaintiffs which is a violation of F.S. 489.129(1)(l) [Section 489.129(1)(k)];[ 12/ ] committed mismanagement and misconduct which caused Plaintiffs financial harm as of [sic] liens were recorded as against the Plaintiff's [sic] home in violation of F.S. 489.129(1)(h)(1) [Section 489.129(1)(g)1.];[ 13/ ] f [sic]. committed mismanagement and misconduct which caused Plaintiffs financial harm in that the percentage of completion is less than the percentage of the total contract price paid in violation of F.S. 489.129(1)(h)(2) [Section 489.129(1)(g)2.].[ 14/ ] Mr. and Mrs. Alboniga further alleged in the complaint that the cost to complete the pool after construction was abandoned by Pool Masters was $10,541.77. The circuit court entered a Final Judgment "pursuant to stipulation" on August 4, 1998, awarding Mr. and Mrs. Alboniga $10,541.77, to be recovered from Pool Masters, plus interest at the statutory rate. In a letter from their attorney dated August 12, 1998, Mr. and Mrs. Alboniga submitted to the Board additional documents to support their claim against the Construction Industries Recovery Fund, based on their Final Judgment against Pool Masters. The final report of the Trustee of Pool Masters' bankruptcy estate, dated December 1, 1999, indicated that Pool Masters had no funds remaining after disbursement for administrative expenses. Mr. and Mrs. Alboniga did not receive any funds from the bankruptcy estate or any other source to satisfy their judgment against Pool Masters. Mr. and Mrs. Alboniga satisfy the statutory criteria for eligibility for payment from the Fund in the amount of $10,541.77. DOAH Case No. 99-1668: Salvator Militello and Sharon Sidorski Salvator Militello and Sharon Sidorski entered into a contract with Pool Masters for construction of a swimming pool. The contract was executed on or about April 6, 1997. The total price stated in the contract was $24,295.00. Pool Masters represented to Mr. Militello and Ms. Sidorski that it was a licensed swimming pool contractor. Mr. Militello and Ms. Sidorski made payments to Pool Masters pursuant to the contract. Pool Masters excavated the hole for the pool and spa, installed basic plumbing, and poured the concrete for the pool. Pool Masters last worked on the swimming pool in October 1997. At the time Pool Masters ceased work on the pool, Mr. Militello and Ms. Sidorski had paid Pool Masters $19,389.00 for work done pursuant to the contract. Although Pool Masters represented to them that the payments would be used to pay subcontractors and materialmen, there were subcontractors and materialmen who were not paid. Liens were filed against Mr. Militello's and Ms. Sidorski's property, and they paid the subcontractors and materialmen directly in order to get the liens released. On January 17, 1998, the United States Bankruptcy Court for the Southern District of Florida issued a Notice of Commencement of Case Under Chapter 7 of the Bankruptcy Code, showing that Pool Masters had filed for bankruptcy on January 7, 1998. On or about March 11, 1998, Mr. Militello and Ms. Sidorski submitted a Construction Industries Recovery Fund Claim Form to the Board, naming Pool Masters as the contractor. In an order entered April 20, 1998, the bankruptcy court lifted the automatic stay to allow Mr. Militello and Ms. Sidorski to file suit against Pool Masters. Mr. Militello and Ms. Sidorski filed a complaint against Pool Masters in the Circuit Court for the Seventeenth Judicial Circuit in Broward County, Florida, seeking damages for breach of the contract for construction of the pool. Mr. Militello and Ms. Sidorski alleged in the complaint that Pool Masters had failed to complete the work; failed to perform in a reasonable and timely manner and abandoned the project for more than 90 days which is a violation of F.S. 489.129(1)(k) [Section 489.129(1)(j)];[ 15/ ] falsely represented that monies paid to them were paid to materialmen and sub- contractors which resulted in financial harm to the Plaintiffs which is a violation of F.S. 489.129(1)(l) [Section 489.129(1)(k)];[ 16/ ] committed mismanagement and misconduct which caused Plaintiffs financial harm as of [sic] liens were recorded as against the Plaintiff's [sic] home in violation of F.S. 489.129(1)(h)(1) [Section 489.129(1)(g)1.];[ 17/ ] f [sic]. committed mismanagement and misconduct which caused Plaintiffs financial harm in that the percentage of completion is less than the percentage of the total contract price paid in violation of F.S. 489.129(1)(h)(2) [Section 489.129(1)(g)2.].[ 18/ ] Mr. Militello and Ms. Sidorski further alleged in the complaint that the cost to complete the pool after construction was abandoned by Pool Masters was $13,544.00 and that they paid $1,641.68 to satisfy liens and unpaid subcontractors and materialmen, for total damages of $15,185.68. The circuit court entered a Final Judgment "pursuant to stipulation" on August 4, 1998, awarding Mr. Militello and Ms. Sidorski $15,185.68, to be recovered from Pool Masters, plus interest at the statutory rate. In a letter from their attorney dated August 12, 1998, Mr. Militello and Ms. Sidorski submitted to the Board additional documents to support their claim against the Construction Industries Recovery Fund, based on their Final Judgment against Pool Masters. The final report of the Trustee of Pool Masters' bankruptcy estate, dated December 1, 1999, indicated that Pool Masters had no funds remaining after disbursement for administrative expenses. Mr. Militello and Ms. Sidorski did not receive any funds from the bankruptcy estate or any other source to satisfy their judgment against Pool Masters. Mr. Militello and Ms. Sidorski satisfy the statutory criteria for eligibility for payment from the Fund in the amount of $15,185.68. DOAH Case No. 00-0024: Jack and Paula Tieger Jack and Paula Tieger entered into a contract with Pool Masters for construction of a swimming pool. The contract was executed on or about December 17, 1995. The total price stated in the contract was $28,200.00. Pursuant to the contract, Pool Masters built a pool and screen enclosure, and Mr. and Mrs. Tieger paid Pool Masters the price specified in the contract. Mr. and Mrs. Tieger were not, however, satisfied with the work done by Pool Masters, and, in or around 1997, they filed a complaint for breach of contract against Pool Masters in the Circuit Court of the Seventeenth Judicial Circuit, in Broward County, Florida. In the complaint, Mr. and Mrs. Tieger alleged that Pool Masters had breached the contract: By failing to adequately explain the technical terms used in the Agreement to the TIEGERS; By failing to install a vacuum line with valve as specified in the Agreement; By failing to install anti-corrosive handrails in the swimming pool; By failing to properly install and/or provide a properly functioning waterfall as specified in the Agreement; By failing to properly fill the area behind the waterfall; By unilaterally, and or the TIEGERS' [sic] objection, placing a tile with the "Pool Masters" logo on the steps heading into the pool: By failing to re-route the TIEGERS' [sic] sprinkler system in a timely manner; By failing to advise the TIEGERS that they were going to need to pay for and install a separate circuit breaker box as part of the installation of the swimming pool; and By failing to install the second screen door as specified in the Agreement. Mr. and Mrs. Tieger did not identify the amount of damages they allegedly suffered as a result of Pool Masters's alleged breach of contract. Mr. and Mrs. Tieger were not aware that Pool Masters had declared bankruptcy until January 1998, when Mrs. Tieger went to Pool Masters' office and found the notice on the door. A non-jury trial was held before the circuit court on March 5, 1998; Pool Masters did not attend the trial. In a Final Judgment entered on March 25, 1998, the court awarded Mr. and Mrs. Tieger $4,200 as compensatory damages to be recovered from Pool Masters. In a Proof of Claim dated May 13, 1998, and filed with the United States Bankruptcy Court of the Southern District of Florida, Mr. and Mrs. Tieger submitted an unsecured claim against Pool Masters' bankruptcy estate in the amount of $7,300.00, which represented the compensatory damages awarded in the final judgment, together with attorney's fees and costs. Mr. and Mrs. Tieger have not collected any portion of their judgment against Pool Masters. Mr. and Mrs. Tieger submitted to the Board a Construction Industries Recovery Fund Claim Form dated December 5, 1998, and the Board awarded Mr. and Mrs. Tieger $800.00, representing the cost of the vacuum line with valve and the second screen door which Pool Masters had not installed. Mr. and Mrs. Tieger do not satisfy the statutory criteria for eligibility for payment from the Fund. Mr. and Mrs. Tieger failed to establish that they filed their claim with the Board within two years of the date they discovered the alleged deficiencies in the pool, and they failed to establish that the final judgment against Pool Masters was based on a violation of Section 489.129(1)(g), (j), or (k), Florida Statutes (Supp. 1998). The evidence presented herein is not sufficient to establish that Mr. Kiselius is the licensee against whom the claimants obtained final judgments.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, 25/ it is RECOMMENDED that the Construction Industry Licensing Board: Enter final orders as follows: In DOAH Case No. 99-1665, finding Eugene Santibanez and Alexander Pappas eligible for payment from the Fund in the amount of $17,675.00, in satisfaction of a final judgment against Pool Masters, Inc.; In DOAH Case No. 99-1666, finding Klaus and Lucrecia Mueller eligible for payment from the Fund in the amount of $13,299.51, in satisfaction of a final judgment against Pool Masters, Inc.; In DOAH Case No. 99-1667, finding Mario and Martha Alboniga eligible for payment from the Fund in the amount of $10,541.77, in satisfaction of a final judgment against Pool Masters, Inc.; In DOAH Case No. 99-1668, finding Salvator Militello and Sharon Sidorski eligible for payment from the Fund in the amount of $15,185.68, in satisfaction of a final judgment against Pool Masters, Inc.; and In DOAH Case No. 00-0024, dismissing the claim of Jack and Linda Tieger for payment from the Fund. Determine that Christopher P. Kiselius is not the "licensee" whose license is subject to automatic suspension pursuant to Section 489.143(7), Florida Statutes (Supp. 1998), as a result of payments to the claimants in DOAH Case Nos. 99- 1665, 99-1666, 99-1667, and 99-1668. DONE AND ENTERED this 31st day of August, 2000, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2000.
Findings Of Fact At all times material hereto, Respondent has been a certified pool contractor in the state of Florida, having been issued License No. CP C029646. At all tines material hereto, Respondent has been the qualifying agent for Pools by Andrews, Inc., and the owner of that company. On August 21, 1986, George Silvers, a building inspector for the Village of Tequesta, saw people working at a pool site with no identification on the truck parked nearby. When he stopped, he discovered a crew installing- plumbing pipes for a swimming pool. When he asked for identification, Roland R. Androy identified himself as an employee of Pools by Andrews, Inc. Although "piping a pool" does not itself require specialized licensure, Silvers asked Androy if he were a licensed contractor, and Androy said that he was not. By way of further identification, Androy produced a personal card which read "Andy's Elite Pools." Silvers "red flagged" the job stopping construction and filed a complaint with the Department of Professional Regulation. Androy was an employee of Pools by Andrews, Inc., for approximately one year in 1974. He returned to Florida and again became an employee of Pools by Andrews, Inc. in February, 1985. During the remainder of that calendar year Androy drew a regular weekly salary from that company, received holiday pay, and drove a company vehicle. Taxes were deducted from his salary check, and the company provided him with health insurance. Androy was a fast worker and frequently finished piping pools early in the day at which time he was given odd jobs to perform for the company such as building shelves in the warehouse. Androy decided that he could make the same amount of money and substantially shorten his work day if he were paid on a piecework basis rather than for an eight hour work day. That way he would also be able to 'moonlight' by using his free time performing maintenance and repair work for swimming pool owners. Respondent agreed to pay Androy on the basis of piecework rather than a 40-hour work week. Since January 1, 1986, Androy appears at Pools by Andrews, Inc., at 6:00 a.m. six days a week at which time he is given a list of pools to plumb that day. All materials and equipment necessary to perform the work are supplied by the Respondent. When Androy finishes, he goes home. Every Friday he gives Respondent a list of pools that he piped that week, and Respondent pays Androy by check. Because Androy wanted to be free to leave when he finishes that day's work, he no longer drives a company truck but rather drives his own truck so he does not have to return the truck before he can go home. Under the new salary arrangement, he is paid by the job and no longer receives a regular weekly salary or holiday pay or health insurance. Further, Respondent has ceased deducting withholding tax and social security taxes from Androy's paycheck. The card which Androy gave to Inspector Silver is a card that he used prior to moving to Florida. He had new cards printed with his Florida address and telephone number. He uses them when persons ask how they can get in touch with him. Respondent had no knowledge of Androy having or using such a card. As a certified pool contractor, Respondent is aware of the requirements for licensure, that is, installation of a swimming pool must be done by a licensed contractor. However, there is no requirement for licensure for that portion of the installation known as piping a pool. Rather, that work can be performed by anyone under the supervision of a licensed contractor. Further, no separate permit is required for that "plumbing" portion of pool installation. All permits for the job in question were obtained by Pools by Andrews, Inc., pursuant to Respondent's state licensure. No other permits were necessary for the job, including the work done for Respondent by Androy. Respondent (like Androy) believes that Androy is an employee of his and not an independent contractor or a subcontractor. There is no intent on Respondent's part to evade he state licensure requirements. Respondent has had no other disciplinary actions filed against him.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding Respondent not guilty and dismissing the Administrative Complaint filed against him in this cause. DONE and RECOMMENDED this 29th day of February, 1988, at Tallahassee, Florida. LINDA M. RIGOT, 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 29th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4395 Petitioner's proposed findings of fact numbered 1, 2, and 4-6 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of tact numbered 2 has been rejected as not being supported by any evidence in this cause. Petitioner's proposed finding of fact numbered 7 has been rejected as being contrary to the evidence in this cause. Respondent's proposed findings of fact numbered 1, 2, 6, 8, 9, and 12 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 3, 7, and 10 have been rejected as being irrelevant to the issues under consideration herein. Respondent's proposed findings of fact numbered 4, 5, and 11 have been rejected as not constituting findings of fact but rather as constituting argument of counsel or conclusions of law. COPIES FURNISHED: Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 David L. Swanson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Edward W. Andrews 8300 Resource Drive Riviera Beach, Florida 33404 William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
Findings Of Fact The Petitioner is the Department of Professional Regulation. The Respondent is Phillip Whitaker, Jr., holder of certified pool contractor license number CP-C008325 at all times pertinent to these proceedings. He is the qualifying agent for the business known as Sunshine State Pools pursuant to requirements of Chapter 489, Florida Statutes. He is responsible for actions of that business relating to construction of the swimming pool which is the subject of this proceeding. His address of record is Miami, Florida. The customer, Ken Gibson, signed a contract with Sunshine State Pools on September 15, 1986. The contract called for construction of a residential swimming pool at 15840 S.W. 155th Avenue, Miami, Florida. The total contract price was $12,700. Testimony adduced at hearing establishes that Sunshine State Pools completed the layout of the customer's swimming pool and the excavation of soil from the proposed pool site by October 1, 1986. These tasks were accomplished under the Respondent's supervision. Metropolitan Dade County issued a building permit for construction of the swimming pool in response to a permit application bearing the signature of Phillip E. Whitaker. The permit and application are both dated October 10, 1986. At hearing, the Respondent acknowledged that initiation of construction prior to pulling the permit and termed this action an "oversight." Based on the candor, demeanor and experience of the Respondent, his explanation of the failure to timely obtain the construction permit is not credited. Initiation of construction for a swimming pool prior to obtaining permits constitutes a violation of part 301.1(n), of the South Florida Building Code and, by stipulation of the parties at hearing, the building code of Metropolitan Dade County. The Respondent was responsible for supervision of the actual pool shell construction. After completion and removal of the wood forms used in the process, steel rods or "rebar pins" required as support during the construction process were not removed. These rods extended some distance above the ground and posed a substantial hazard to Respondent's children while playing. Finally, the steel rods were removed by the customer a week after he requested the Respondent to remove them. Respondent admitted some of these reinforcements could have been left by his subordinates. Respondent admits responsibility for the "back fill" process completed on October 25, 1986. This was originally a responsibility of the customer under the contract as the party responsible for deck construction. The "back fill" process consists of compacting loose soil between the outside of the pool walls and surrounding earth by use of special tamping or pounding equipment. Under terms of the contract, the customer was responsible for construction of a sizeable two part deck surrounding at least sixty percent of the pool's circumference. There now exists a substantial height difference between the coping surrounding the perimeter of the pool and the deck or patio surface. The coping is elevated above the top of the patio approximately two to four inches. As adduced from testimony of Ben Sirkus (stipulated by both parties as an expert in swimming pools and swimming pool construction), coping along the top of the pool walls consists of flagstone rock in conformity with the contract terms. Some of the rocks are cracked. The rocky edge of the coping extends over the pool wall and has a dangerously sharp edge. The sharp edge of the coping overhang could have been avoided by cutting the flagstone coping smooth prior to installation, the acceptable practice among pool contractors. The bottom step to one set of the pool steps has a hazardous 19 inch riser as opposed to the 12 inch distance required by the building code. No hand rail is present. Hollow space under some of the coping stones are the result of either improper installation, dirty cement or sinking of the deck as a result of improper "back filling" upon completion of the pool shell. On one occasion, Respondent admitted responsibility for deficiencies in the pool coping to an employee named Rick Miro. The Respondent further stated to this employee that he intended to do nothing about the problem. Respondent was present during some, but not all, of the coping installation. The "skimmer," the apparatus by which debris is cleared from the pool water, is inoperable as a result of faulty construction of the pool. The failure of the Respondent, who admits to successful completion of approximately 2500 pools with only three complaints, to properly supervise job site activities was the major cause of the pool deficiencies identified at hearing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be placed on probation for a period of two years upon such terms and conditions as may be determined by the Construction Industry Licensing Board and assessed an administrative penalty in the amount of $1500. DONE AND RECOMMENDED this 29th day of February, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5053 The following constitutes my specific ruling on proposed findings of fact submitted by the parties. Petitioner's Proposed Findings Included in finding 2. Included in finding 3. Included in finding 4. Included in findings 5, 6 and 7. Included in findings 5 and 6. Included in finding 8. Included in finding 10 with exception of hearsay statement. Included in finding 11.1 Included in finding 12. Included in finding 11. Included in finding 11. Included in finding 11. Included in finding 11. Rejected as unnecessary. Rejected as unnecessary. Included in finding 11. COPIES FURNISHED: David L. Swanson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Mark D. Press, Esquire 2250 Southwest Third Avenue 5th Floor Miami, Florida 33129 William O'Neil General Counsel 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely Executive Director Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 =================================================================
