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. /
The Issue Whether Respondent's license as a pool contractor should be disciplined and, if so, what penalty to recommend.
Findings Of Fact At all times relevant hereto John A. Bennett, Respondent, was licensed by the Florida Construction Industry Licensing Board as a residential pool contractor, having been issued license number RP 0033592. He is the qualifying contractor for Quality Pools and Products, Inc., 2912 Forest Wood Drive, Seffner, Florida 33584 (Exhibit 2). On or about January 25, 1988, Evelyn L. Dittmer and James W. Dittmer entered into a contract with Quality Aquatech Pools & Spas (Quality Pools), 1500 N. Parsons Avenue, Brandon, Florida, to replace the liner and repair the bottom of the pool (Exhibit 5). This contract was signed by the Dittmers and Andy Priess, presumably the foreman of Quality Pools. The Dittmers never met Respondent, but they "understood" he owned the pool company. Printed on the bottom of Exhibit 1 is Respondent's state registration number. Employees of Quality Pools arrived on the site and removed the old liner. At this time, the bottom of the pool was in bad shape, but the workers attempted to replace the liner without repairing the bottom of the pool. They were stopped from replacing the liner and departed as they had brought no equipment with which to repair the bottom. Workers returned for the next several days to attempt to repair the bottom of the pool. Due to excessive ground water entering the pool, this task was onerous. The initial contract provided that if it became necessary to establish well points to keep excess water out of the pool, an additional fee of $200 would be required. The Dittmers paid this fee, but well points were not established. An addendum to the contract was prepared for additional work needed to get the bottom of the pool back in shape (Exhibit 1) and was signed by John A. Bennett. This provided for an additional payment of $600, but was not accepted or signed by the Dittmers. The new liner was ultimately installed, but was torn in the process and the unnatural hole in the bottom of the pool was not repaired. Although the Dittmers had paid Quality Pools the full contract price of $2700, which included a $200 charge for installing well points, the work was never satisfactorily completed, and Quality Pools failed to perform the work for which they had contracted. The project was finally abandoned by Quality Pools, and two of the pumps used to dewater the pool were left on the site. At no time did anyone from Quality Pools obtain a permit from Sarasota County where this work was done, and Quality Pools was not licensed to work in Sarasota County (Exhibit 3). After it became evident Quality Pools would not complete the repairs for which they had contracted, the Dittmers hired another contractor to whom they paid an additional $2945 to restore the pool to an operating condition (Exhibit 7).
Recommendation It is recommended that the charges against John A. Bennett arising out of the contract between the Dittmers and Quality Aquatech Pools & Spas be dismissed. RECOMMENDED this 5th day of January, 1990, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of January, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-4839 Proposed findings submitted by Petitioner are accepted with the exception of findings 3, 4, 5, 6, 7, 8, 11, 13, 14, 15, 16 and 17 which are rejected for the reason that the evidence submitted does not show Respondent to be the owner or qualifying contractor of Quality Aquatech Pools and Spas with whom the Dittmers contracted. Findings of fact cannot be founded in uncorroborated hearsay evidence not admissible over objection in civil proceedings. COPIES FURNISHED: Andrea Bateman, Esquire Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Michael S. Edenfield, Esquire 206 E. Mason Street Brandon, FL 33511 John A. Bennett 1500 Parsons Avenue Brandon, FL 33511 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32201 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 N. Monroe Street Suite 60 Tallahassee, FL 32399-0792 =================================================================
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 Whether Respondent violated Section 489.127(1)(f), Florida Statutes, as alleged in the Administrative Complaint filed against Respondent in this proceeding and should be disciplined.
Findings Of Fact At no time material to the allegations was Respondent licensed or certified as a contractor of any type by the Florida Construction Industry Licensing Board. On or about June 2000, Respondent entered into a written contractual agreement with Harold Knowles to construct a swimming pool at Mr. Knowles' residence located at 235 North Rosehill Drive, Tallahassee, Florida. The contract price for the swimming pool was $18,650.00. Mr. Knowles paid directly to Respondent $9,400.00. Respondent performed some work on the pool project and then stopped work on the project. Respondent failed to return to Mr. Knowles any monies received for the project. The homeowner was forced to pay out-of-pocket expenses to have a second, licensed pool contractor finish the pool that Respondent left unfinished. These expenses total in excess of $24,000.00. Respondent acknowledges that he had no license. Respondent testified at hearing along with his wife. It was clear that Respondent was sorry for his actions. He was unaware of the gravity of his acts. He does not have any financial resources, and a significant fine will not benefit Mr. Knowles. A substantial fine adversely impact Respondent's family more than Respondent.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: That Respondent be fined $500.00, together with the investigation and prosecution costs. DONE AND ENTERED this 18th day of February, 2002, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 18th day of February, 2002. COPIES FURNISHED: Patrick Creehan, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32388-2202 Robert Footman 2702 Lake Mary Street Tallahassee, Florida 32310 Gail Scott-Hill, Esquire Lead Professions Attorney Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0771 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact Based on the evidence presented, the following facts were found: At all times pertinent to this case, Respondent held two active contractor's licenses issued by the State of Florida, RP 0033354 and CP 015029. Respondent's current address is 1316 Hoffner Avenue, Orlando, Florida 32809. At all times pertinent to this case, Respondent owned the firm Family Pools and did business as a pool contractor under that name. At no time did Respondent ever qualify his firm, under whose name he did business, with the Florida Construction Industry Licensing Board (CILB). On some date not specified, in June, 1980, Alphonse J. and Pauline L. Rodier contracted with Family Pools to build a pool at their residence at 601 Michigan Avenue, Englewood, Sarasota County, Florida for a price of 6,700. The contract was signed by Respondent for Family Pools. The pool price was to include a screened enclosure and deck, and the entire package was to be completed by July 4, 1980. The pool was paid for by two checks from Coast Federal Sayings and Loan Association in Sarasota from the proceeds of a home improvement loan and by a final check in the amount of $900 from the Rodiers, direct, on October 13, 1980. Respondent subcontracted the pool enclosure to Climatrol Screen Company of Enqlewood, Florida, for $2,065 but failed to pay this subcontractor. As a result, on November 26, 1980, Climatrol filed a lien against Rodier's property which was released only when the Rodiers paid an additional $790 which had not been satisfied by the Respondent. Respondent had satisfied part of the debt to Climatrol by relinquishing title to a truck he owned. On July 3, 1980, Family Pools contracted with Elmer J. and Carla T. Taylor, of Bunnell, Florida, to build an above-ground pool on their property for $4,800.00. The pool was to have a one year warranty against defective parts and a 20-year prorated replacement policy. According to the contract, the pool price included the pump, liner, filter, and walls, along with all other parts. The pool was constructed by employees of Family Pools about three or four weeks after the contract was signed. Not long after the pool was completed and filled, Mr. Taylor noticed that the vinyl liner was protruding out beneath the bottom of the metal retaining wall. His calls to Family Pools were never answered by Respondent with whom he asked to talk and repair work on this problem was not accomplished by the Respondent or Family Pools. Mr. Taylor had to do the work himself and Family Pools would not honor the warranty. Respondent offers the completion certificate executed by the Taylors on August 21, 1980,as evidence the pool was installed properly and the Taylors were satisfied. Mr. Taylor indicates he signed that certificate in blank under pressure from Respondent's agent, who cajoled him into doing it on the basis that if he did not, Family Pools could not be paid by the finance company under the installment sales contract. Also, during the period of the one year warranty, the pool pump burned out. Mr. Taylor had to replace that and pay for it himself, as the warranty was not honored. Respondent contends only a 90-day warranty on the pump, but that appears nowhere in the contract, which, in its description of the pool covered by the one year warranty, includes the pump. On August 29, 1980, Family Pools contracted with Janice Conover to build a swimming pool at her home in Venice, Florida for $4,780. The pool was to be completed approximately 30 days after excavation at the site. Between August 29, 1980, and December, 1980, Ms. Conover paid Family Pools a total of $4,741 by checks which were endorsed by "P. Vescera d/b/a Family Pools" or "Pasquale M. Vescera." On October 2, 1980, Respondent pulled a permit No. 7330- N from the Sarasota County Building Department, in his own name, to construct Ms. Conover's pool. In February, 1981, when the pool was only about fifty percent complete, Respondent ceased work on Ms. Conover's pool without giving her any notice or reason therefor. When Respondent stopped work, he had only dug the hole for the pool. The liner had been delivered but was not installed. The braces were there but not affixed, notwithstanding Ms. Conover had paid almost in full for the pool. As a result, she contracted with Richard Thompson, Respondent's former employee, to finish the work Respondent had started because at this point she could not find the Respondent. Thompson installed the brackets, the liner, and the deck. She had to pay extra for the pump, the chemicals, and the sweep--all of which, except for the sweep, she had paid for when she paid Respondent's price. Respondent never returned to complete Ms. Conover's pool. On July 7, 1980, Family Pools contracted with Robert A. and Florence L. Peipher to build a pool at their property in Port Charlotte, Florida, for a price of $6,900. Between July 7 and November 28, 1980, the Peiphers paid Family Pools, by checks, the sum of $6,905. All checks-were endorsed for deposit, "P. Vescera d/b/a Family Pools." The pool price was to include a screened pool enclosure and in September 1980, Family Pools contracted with Climatrol to build the screened enclosure for Peipher's pool for $1,807. Respondent and Family Pools failed to pay Climatrol for the enclosure and as a result, Climatrol filed a lien against the Peipher's property for $1,807 which was satisfied on March 9, 1981, by the Peiphers who paid Climatrol the amount owed. On March 2, 1981, the Peiphers filed a complaint against Respondent with the Contractor License Division of the Charlotte County Building Department because of Respondent's failure to pay Climatrol and the resultant cost to them. As a result of this complaint and the subsequent investigation into the allegations, the matter was referred to the Charlotte County Building Board which, at its meeting on May 7, 1981, after notice to Respondent, voted to revoke Respondent's permit privileges in Charlotte County until he made restitution to the Peiphers and to notify the State of Respondent's actions requesting state action against his license. Respondent suffered severe financial setbacks just about the time of these incidents. He was hospitalized for a period of five or six weeks and upon his return to his business found that he had been "robbed" of approximately $50,000 worth of fully paid for inventory. When he reported the shortage to the local law enforcement officials, they told him that since there was no evidence of a breaking in, they could do nothing about it. In addition, he could not recover from his insurance company for the same reason. There was no evidence other than Respondent's sworn testimony that there was a shortage or that he reported the loss to either agency. Respondent has been in the pool business in Florida for five years and in New Jersey for 32 years before that. He feels the cause of his problem is the fact that he trusted the people who worked for him who took advantage of him. During the entire period of time he was in business in Florida he took no money from the company for his personal use, living instead on income from a mortgage he owned in New Jersey. He subsequently filed for bankruptcy on March 9, 1981. The $15,000 in current accounts receivable he had on the books at that time was utilized in the bankruptcy proceeding to pay creditors. He got-none of it. He is now working in Orlando, Florida, for a pool rehabilitation company owned by his wife and her father. Respondent alleges that on July 15, 1980, he paid Richard Thompson $1,100 to complete work started on several pools, including that of Ms. Conover. Review of the prior findings of fact, however, shows that the contract with Ms. Conover was not entered into until approximately 45 days after Respondent supposedly made this payment to cover the work left undone on her pool. In light of that development, I find his contention completely without merit or basis in fact. Respondent admits that people were hurt as a result of his actions and he regrets this. However, he claims these few incidents are insignificant when compared with the over 500 satisfied customers he alleges he has served over the years. Finally, Respondent contends that early in 1980, after being advised that he had passed the test to be a certified pool contractor, he wrote to Petitioner and, after advising how he was registered and doing business, asked if he needed to make any changes in license registration. He did in fact do this and received no reply. He thereafter assumed he was acting correctly in that regard and that appears to be a justified assumption.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent's license as a contractor be suspended for two years and that he be assessed an administrative fine of $500. RECOMMENDED this 16th day of May, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1983. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Pasquale M. Vescera 1316 Hoffner Avenue Orlando, Florida 32809 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Petitioner is the state agency charged, in conjunction with the Construction Industry Licensing Board, with the responsibility to prosecute Administrative Complaints pursuant to Chapters 489, 455, and 120 F.S., and the rules promulgated thereunder. At all times material to the Administrative Complaint herein, Respondent was licensed as a certified pool contractor in the State of Florida, holding license number CP 0009588. At all times material hereto, Respondent was the qualifying agent for Pools by L. S. Rule. On August 12, 1987, Ms. Mary Tillotson forwarded a $1,200 check to Pools by L. S. Rule for pool repair work including replacing the existing pool skimmer and furnishing and installing one row of new tile and remarcite. Respondent estimated the job would require two weeks to complete. On August 24, 1987, Ms. Tillotson formally entered into a written contract with Pools by L. S. Rule to perform the aforementioned pool repairs at her residence of 2110 North 41st Avenue, Hollywood, Florida for a price of $2,330.00. The contract actually signed by the parties, which is the contract which governs this case did not specify a completion date or state that "time is of the essence" for the job; however, the Respondent was clearly aware as of August 11, 1987 that Ms. Tillotson wanted the pool repaired by approximately August 24 or 25. On August 24, 1987, an employee of Pools by L. S. Rule removed the old skimmer from Ms. Tillotson's pool and replaced it with a new skimmer the next day. There was no further work done on Ms. Tillotson's pool by Pools by L. S. Rule after August 25, 1987. Ms. Tillotson contacted the Respondent repeatedly and the Respondent informed her that he was having an employment problem, but would have someone come out the next day. Neither the Respondent nor any of his employees ever visited the Tillotson residence again, with the exception of a brief visit by one employee wherein no work was performed. Ms. Tillotson discharged the Respondent on September 10, 1987, fifteen days or roughly two weeks after the contract was entered into and approximately the date the pool was supposed to have been completed. Upon cancellation, Ms. Tillotson demanded a refund of her entire $1200 deposit. Ms. Tillotson contracted with Adonis Pools, on September 11, 1987 to perform the same repairs as she had requested of Respondent. The repairs were completed by Adonis within three days. During the time of the Tillotson contract, Respondent proceeded with the construction of approximately five pools and maintained a staff of five employees. The reason offered at hearing for failure to proceed with Ms. Tillotson's pool was that he had lost a key employee and there had been rain delays. On September 21, 1987, Ms. Tillotson wrote the Respondent and requested a refund of $920, a compromise amount less than the full $1200 deposit, reflecting what she believed accounted for the services and material already expended by Respondent and Pools by L. S. Rule. Respondent refused to refund any of the deposit unless the amount were compromised upon his terms and Ms. Tillotson refused to accept what she regarded as partial payment. Ms. Tillotson filed suit against Respondent in November, 1987. She was awarded a judgment for $875 plus $54 in court costs, in the County Court in and for Broward County, Florida on April 20, 1988. The Respondent did not pay Ms. Tillotson the award monies on the date of judgment. He had already spent some of her deposit elsewhere. The Respondent has since failed to refund any portion of the deposit. The efforts Respondent has expended to negotiate or pay the judgment do not reflect good faith attempts at full payment under the judgment. Frank Abbott is a certified general contractor and a registered Florida Architect. Mr. Abbott was retained and tendered by the Department of Professional Regulation (DPR) as its expert witness on the duties and responsibilities of contractors in the construction of pools; he was accepted as such over objection. It was Mr. Abbott's opinion that the Tillotson pool job should have taken one or two weeks, and upon the material in the DPR's investigative file, he concluded that abandonment by Respondent had occurred; that because the contractor accepted a deposit, failed to perform, and did not return any funds, there had been financial misconduct; and that therefore Respondent was guilty of gross negligence or incompetence. However, Mr. Abbott never spoke to Tillotson or Rule, never saw the area, the job, or assessed the weather conditions. He saw only a poor xerox copy of the photograph of the skimmer installation which was ultimately admitted as P-5. He offered no narrative of what constituted gross negligence as far as the skimmer job was concerned and merely offered his own legal conclusion that abandonment and financial mismanagement constitute incompetence or gross negligence. Some of his opinion was based on the way he operates his own contracting business, rather than upon general education, training, and experience in the contracting profession. He had personally supervised the building of only a few pools and only had connection with building eleven pools. He had never personally built a pool or done any pool work or received any specific pool training. In drawing his conclusions and in forming his opinion, Mr. Abbott also made assumptions with regard to characterizations in the DPR investigative file which were either not necessarily supported by the greater weight of the credible evidence as a whole as presented at formal hearing or which were extraneous to the issues in the specific case at bar. Petitioner presented no evidence of any kind bearing on the charge that Respondent failed to timely secure a building permit.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Construction Industry Licensing Board enter a final order dismissing the charges against Respondent under Sections 489.129(1)(j) and (m) F.S, finding him guilty of violating Sections 489.129(1)(h) and (k) F.S., and imposing a $1,750 fine. DONE and RECOMMENDED this 19th day of December, 1988, Tallahassee, Florida. ELLA JANE P. 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 December, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3312 The following constitute specific rulings upon the parties' respective proposed findings of fact (PFOF) pursuant to Section 120.59(2) F.S. Petitioner's PFOF 1-11 Accepted, and with minor modifications of style, are adopted. 12-13 Accepted in substance but modified to conform to the greater weight of the credible evidence. 14-16 The expert opinions of Mr. Abbott are recited within the Recommended Order (RO), but were of little assistance to the trier of fact since they were mostly rendered in terms of raw conclusions of law rather than contracting expertise. To the extent they are credible and supported by the greater weight of the factual evidence of record, they have been accepted in the RO. For the most part they have been rejected for the aforesaid reason and for the reasons set out in FOF 14 and the Conclusions of Law (COL). Respondent's PFOF 1-9, and 22 Accepted. 10-11 Out of chronological context and thereby misleading as to the record evidence; for this reason and for the reason they are subordinate to the facts as found, they are rejected. 12 Sentence 1 is accepted. Sentence 2 is also out of chronological context and thereby misleading as to the record evidence and for this reason and for the reason it is immaterial, it is rejected. 13-14 Rejected as stated as not supported by the record evidence as a whole and as set out in FOF 13. 15-17 and 20 Rejected as not PFOF but proposed COL. 18-19 and 21 (on page 3 and on page 4) are partially accepted in substance in FOF 14 but otherwise are rejected as mere argument of counsel or as unnecessary. COPIES FURNISHED: Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 G. W. Harrell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399 Donald N. Bensen, Esquire 301 Southeast 10th Court Ft. Lauderdale, Florida 33316 Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Martin R. McAndrew is a licensed general contractor and licensed pool contractor holding general contractor's license number RG 0020560 and pool contractor's license number RP 0024861. Martin R. McAndrew was provided notice in accordance with the applicable rules and statutes of the formal hearing to consider the allegations of the administrative complaint filed against him by the Florida Construction Industry Licensing Board. Ray Dowell identified a notice of violation served on McAndrew by the Florida Construction Industry Licensing Board which was received into evidence as Exhibit 1. This notice of violation related to the construction undertaken by McAndrew for Lynn McMillan. Melvin C. Huebschman entered into a contract with McAndrew for the construction of a pool. The contract price for the pool was $5,000.00. Huebschman paid McAndrew $2,000 in two payments. The first payment was in the amount of $300.00 to cover the cost of transportation of the pool materials to Pensacola, Florida. The second payment in the amount of $1,700.00 was for the first phrase of construction on the pool. Subsequent to receiving payment McAndrew provided no materials or labor pursuant to the contract. Huebschman talked with McAndrew concerning completion of the work pursuant to the contract and McAndrew failed to perform under the contract throughout the spring and summer of 1977. In August, 1977, Huebschman wrote McAndrew advising him that it had been over ninety days since they entered into the contract and McAndrew had not performed any services pursuant to the contract. Huebschman gave McAndrew thirty days within which to commence work. McAndrew did not respond to this notice. McAndrew did not return any portion of the $2,000.00 paid to him by Huebschman. Lynn McMillan entered into a contract, identified as a portion of Exhibit 4, with McAndrew. This contract called for the construction of a pool for a contract price of $5,800.00. Pursuant to that contract, McMillan paid to McAndrew $4,350.00. Subsequent to payment of the third draw, McAndrew failed to complete the job. The last work performed by McAndrew on this construction project was on May 17, 1977. Prior to May 17, 1977, all materials for completing the pool were on the site and installed. Before abandoning the project, McAndrew removed from the building site all portions of the pool construction except the poured concrete and vinyl lining. McMillan subsequently entered into a contract with Surf Side Pools for the completion of the pool. The contract price was $1275.00, which included $800.00 for equipment and materials necessary to complete the pool. In addition, McMillan found it necessary to pay $230.00 to O'Brian Enterprises to remove stumps and spoil left on the construction project by McAndrew. McMillan also paid $200.00 to Warrick Electric Company to satisfy a claim by Warrick for materials and labor provided by Warrick to McAndrew. Finally, American Ready Mix Concrete filed a claim of lien in the amount of $436.80 against the property of Lynn McMillan for labor and materials provided under the contract with McAndrew which McAndrew did not pay. On May 27, 1977, McAndrew wrote a letter to McMillan advising that he would like the opportunity to finish the pool and was invited to do so. However, McAndrew did not return to the construction site or provide any further labor or materials pursuant to the contract. Sarah White Witt entered into a contract with McAndrew for the construction of a pool at a contract price of $4,500.00. Witt paid McAndrew $500.00; however McAndrew did not finish the pool construction. Subsequently, Witt was advised by the materialmen and labors of various liens against her property totalling $2,200.00. Daryl Jernigan, electrical and pool inspector for Escambia County, inspected the work done by McAndrew on the McMillan pool. He found that the pool had been filled with water but that the equipment necessary to recirculate and chlorinate the water had been removed from the pool, thereby permitting the water to stagnate. This inspection was conducted in June, 1977. Prior to that time, Jernigan had found it necessary to order work on a pool begun by McAndrew halted because McAndrew had failed to acquire a building permit prior to commencing construction.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that Florida Construction Industry Licensing Board revoke the licenses of Martin R. McAndrew as a general contractor and as a pool contractor, and further fined a sum of $500.00. DONE and ORDERED this 24th day of May, 1978, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: J. K. Linnan Executive Director Florida Construction Industry Licensing Board P. O. Box 8621 Jacksonville, Florida 32211 Michael E. Egan, Esquire Attorney at Law 217 South Adams Tallahassee, Florida Martin R. McAndrew 3313 N. 17th Avenue Pensacola, Florida 32502
The Issue The issue is whether the Respondent's license as a registered pool contractor should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint.
Findings Of Fact At all times material hereto, Respondent, William Losciale, was a licensed registered pool contractor in the State of Florida, having been issued license number RP-0032951, by the State of Florida, and was the qualifier of Lynn Pools. On or about October 2, 1987, John J. Kerry entered into a contract with Respondent d/b/a Lynn Pools for the Respondent to construct a pool and screen enclosure on Mr. Kerry's property located at 633 South Little John Street in Inverness, Florida. The total cost of the pool and enclosure was $19,600.00. During construction various problems developed. Among them were delays in completion, the failure to obtain the proper permits, the installation of an inadequate and improper filter, the delayed removal of excavated dirt, the gouging up of the homeowner's yard, and the improper positioning of the septic tank after relocation. At the time the pool deck was being designed, the homeowner told the Respondent that it appeared to the homeowner that the deck was slanted towards the house and would cause flooding problems. The Respondent told the homeowner that the Respondent knew what he was doing and no such problem would develop. During construction of the pool, the homeowner pointed out to the Respondent that it appeared that the pool was being constructed higher than the patio which, if true, would also cause flooding problems. Again, the Respondent denied that the pool was being constructed higher than the patio and that flooding problems would occur. During construction, Respondent removed a rain downspout which, prior to construction, was located between the patio and the screen enclosure. The pool patio was then poured without replacing the downspout underneath the patio. As a result of one or more of the foregoing conditions, the homeowner's house was almost flooded on one occasion. Thereafter, the homeowner had to put a drain hole in the patio in an attempt to prevent future flooding. Since completion of the pool, when it rains, rainwater flows down the patio towards the house. Additionally, rainwater is directed from the roof through the gutter onto the patio towards the house and occasionally water overflows from the pool towards the house. While the house has not been flooded, the pool deck floods during certain rains. During construction, the Respondent removed all of the ground wires off electrical fixtures located in the homeowner's yard without replacing them after being requested to replace them by the homeowner. After the deck was poured, it was covered with kool deck. The kool deck was soft and had indentations in it. The Respondent agreed with the homeowner that the deck was bad and that the homeowner should not accept it. The Respondent the replaced the kool deck with river rock. The deck now has ripples in it. The Respondent tried to charge the homeowner an additional $1,200 for the river rock. The homeowner had the river rock installed for an additional $850.00 by a third party. Prior to entering into the contract for the pool and enclosure with Respondent, the home owner told the Respondent that he wanted the biggest water heater available to heat the pool water instantly. When the water heater was being installed, the homeowner questioned the Respondent whether or not the water heater was big enough to meet the homeowner's requirements. The Respondent said that it was. After installation, the heater did not come close to meeting the home owner's requirements. The homeowner then called the manufacturer of the heater and was told that the installed heater was too small. The Respondent, at the homeowner's request, then changed the heater to one that would supposedly heat the pool water faster. It did not. The homeowner then called the heating company again and was told that the new heater was only one size up from the original heater and still would not meet the homeowner's requirements. That heater remains on the homeowner's property and does not meet the homeowner's requirements. Mr. Kerry paid the Respondent $5,500.00 on December 7, 1987, which made a total of $19,000.00 the homeowner had paid the Respondent. The homeowner has paid more than $600.00 in repairing and/or correcting work that was the obligation of the Respondent. Correction of all these problems has been to the homeowner's financial detriment. In the latter part of December, 1987, the Respondent entered into an oral contract with All Wright Aluminum to have All Wright Aluminum install an L- shaped pool enclosure over the pool at the Kerry residence. The total contract price was $5,185.10. Payment for the construction was due within ten days of completion which occurred on January 6, 1988. All Wright Aluminum received a $1,000.00 payment from the Respondent on or about February 2, 1988. That payment was a check from a customer of the Respondent, made payable to the Respondent's order in partial payment on pool repairs which the Respondent made for that customer. The Respondent endorsed that check and made it payable to All Wright Aluminum. On February 15, 1988, All Wright Aluminum in compliance with the mechanic's lien law, filed a valid claim of lien against Mr. Kerry's property in the amount of $4,185.10 for failure of the Respondent to pay All Wright for the construction of the pool enclosure. On May 10, 1988, the Respondent paid All Wright Aluminum $1,000.00 towards that lien. On September 16, 1988, the Respondent paid All Wright $2,000.00 towards the satisfaction of that lien from his personal account. On September 16, 1988, the Respondent gave All Wright Aluminum a personal promissory note in the amount of $1,135.10 for the balance of the lien amount. On that date All Wright Aluminum satisfied its previously filed claim of lien. Respondent has previously been disciplined by the Florida Construction Industry Licensing Board.
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 and therein penalize the Respondent, William Losciale, as follows: Assess a fine of $750 for the violation of Section 489.129(1)(h) Assess a fine of $750 for the violation of Sections 489.129(1)(j) , 489.105(4), and 489.119. Assess a fine of $1500 for the violation of Section 489.129(1)(m) Suspend the license of Respondent for a period of six (6) months. DONE and ENTERED this 19th day of October, 1989, in Tallahassee, Florida. DIANE K. KIESLING 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 19th day of October, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-3296 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties 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: 1-20 (1-20). COPIES FURNISHED: Jack M. Larkin Attorney at Law 806 Jackson Street Tampa, Florida 33602 William Losciale 6491 Mobile Street Inverness, Florida 32652 Kenneth E. Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
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 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.
