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 =================================================================
The Issue Whether or not the Respondent's activity and conduct in the performance and completion of several construction projects constitute unreasonable or dilatory practices and also whether Respondent's workmanship on such projects was of such an inferior quality that it would indicate proof and continued evidence of gross negligence or misconduct by Respondent in the practice of contracting within the meaning of Chapter 489.129(1)(m), Florida Statutes (1979). 2/ Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel, the memoranda submitted, and the entire record compiled herein, I hereby make the following:
Findings Of Fact By its Administrative Complaint signed April 27, 1981, Petitioner, Florida Construction Industry Licensing Board, seeks to revoke Respondent's license to practice the profession of contracting and to impose a civil penalty based on conduct set forth hereinafter. Respondent, Charles H. Bromley, is a certified pool contractor holding License No. CP-007871 (Petitioner's Composite Exhibit No. 1). During times material to the allegations of the Administrative Complaint herein, Respondent was a qualifying agent, pursuant to Section 489.119, Florida Statutes, for both Wands Construction Company, Inc., and for Magic Wands Pools, Inc. Respondent's testimony established that he was part owner of Wands Construction Company, Inc., was an officer of that company and deemed himself responsible for its activities. Respondent testified that he owned no stock in the predecessor company, Magic Wands Pools, Inc., nor was he an officer of that corporation and was not directly responsible for contracts undertaken by that company. Respondent's position is that at least two of these construction projects (Derfler and Dubovick) were projects undertaken by Magic Wands Pools, Inc., and completed by Respondent, doing business as, Wands Construction Company, Inc., inasmuch as Magic Wands Pools closed its doors in late 1979. Wands Construction Company, Inc., entered into a contract with Mariner Village, Inc., to construct a pool at a condominium site being developed by that corporation. The contract was dated September 6, 1979, and called for completion of the pool within six weeks from the date of issuance of a permit. The permit for pool construction was issued on November 6, 1979. Respondent was unable to complete construction of the pool at Mariner Village, inasmuch as problems developed after the pool was filled which caused the pool walls and decking to crack and leak. Respondent attempted to correct the deficiencies in the pool until approximately August of 1980, at which time he was ordered off the job by Mariner Village, Inc. Robert Hamilton, the developer and president of Mariner Village, was the person with whom Respondent negotiated the contract to build the pool for Mariner Village. During the course of time in which Respondent was attempting to correct the problems at Mariner Village, its president, Robert Hamilton, sent approximately six mailgrams to Petitioner reciting his contention that Mariner Village considered Respondent's actions to be a breach of its contract; that the pool was not completed in a professional-like manner and that Respondent's overall performance, or lack thereof, constituted negligence. (Petitioner's Composite Exhibits 3 and 4.) When Respondent completed the construction phase of the pool, neither the city nor the county would issue a certificate of occupancy to allow the residents of Mariner Village to use the pool. While it was noted that the county initially issued Respondent a certificate of occupancy for its construction of this pool site, that certificate was immediately revoked due to surface cracks in the pool on the north, east and west ends of the pool once it was filled to capacity. Robert Hamilton, president of Mariner Village, testified that at this time (during the hearing) he thought that the issuance of a certificate of occupancy was imminent and that while the price called for in the contract between Respondent and Mariner Village was $20,450.00, it (Mariner Village) had expended or was obligated to expend sums totaling $70,000.00 to complete the pool. Mr. Hamilton ordered two engineering studies to examine and report on performance in the Respondent's construction of the pool. According to Hamilton, the reports revealed that the pool was erected on "good" pilings. Respondent and Leslie Derfler entered into a contract on June 9, 1978, to construct a pool at his residence. The contract price was paid in full and the pool was completed, however, during the spring of 1979, Mr. Derfler detected an opening around the tile grout near the leaf-skimmer. The matter was immediately called to Respondent's attention. Failing to get a prompt response to his complaint, Mr. Derfler contacted the Better Business Bureau after which Mr. Derfler was able to communicate with Respondent during March of 1980. Respondent dispatched a repairman to regrout the tiles in the area around the leaf-skimmer, however, the repairman failed to regrout the tiles which he replaced. As a result, the door of the skimmer became inoperative and separated from the skimmer. Repeated attempts by Mr. Derfler to contact Respondent were unavailing and Mr. Derfler called another company (Boca Pool-Trol Laboratories, Inc.) to finish the necessary work. In this regard, evidence reveals that Respondent reimbursed Mr. Derfler for the monies paid to the Boca Pool-Trol Laboratories, Inc. Respondent and Lindberg Development Company, through its assistant project manager, Taisto Pistkan, entered a contract on January 31, 1980, for the installation of a commercial swimming pool at Shore Heights Condominiums in Lantana, South Palm Beach, Florida. Respondent commenced construction on the pool during August, 1980, and the pool was not completed, such that it could be used, until June, 1981. Mr. Pistkan had to make repeated requests of Respondent to correct numerous problems, including leaks, falling plaster and tiles. When Respondent initially completed construction of the pool and it was filled, during September, 1980, leaks surfaced and approximately nine months later (June, 1981) Respondent completed construction of the pool and a certificate of occupancy was issued. In this regard, Respondent admitted during the hearing that it took an inordinate amount of time to make the necessary repairs to get the Lindberg pool certified. On August 10, 1979, Mr. and Mrs. Melvin Dubovick entered into a contract with Magic Wands Pools to construct a pool at their residence in Delray Beach, Florida. This contract called for the completion of the pool within six weeks from the date that the permit was issued. In October of 1979, an agent of Wands Construction, which agent had previously been an agent of Magic Wands Pools, informed Mr. Dubovick that he would have to enter into a new contract due to a reorganization of the pool company. As a result of that advice, the Dubovicks and Respondent entered into another contract with Wands Construction Company, Inc., on October 25, 1979. (Petitioner's Exhibits 10 and 11.) According to Mr. Dubovick, the second contract was signed to "straighten out the paper work." Mr. Dubovick was advised that all of the material terms of the new contract would remain unchanged and that the work would be completed within approximately eight weeks. However, the contract with Wands Construction Company does not contain a completion date. Excavation for the pool was made during the middle of October, 1979. Thereafter, no further work was done during that year and the wooden deck of the Dubovicks' home, which was adjacent to the hole dug for the pool, collapsed on New Years Eve, 1979. Thereafter, there were a number of problems with the construction of the pool, including the fact that a spa was not built as called for in the plans for the pool which necessitated that the Respondent remove a portion of poured gunite around the pool's deck; the filter was improperly installed and leaks surfaced when the pool was filled, causing Respondent to place numerous patches and filter outlets in the pool. Additionally, the slope of the pool decking was improper and caused a flooding condition around the Dubovicks' patio. The dimensions of the pool were not completed according to plans in that the length of the pool as completed is 30 feet, 3 inches, whereas the plans called for the pool to be 34 feet in length. The contract provides that the pool would have a 15,000 gallon capacity whereas Mr. Dubovick contends that he has never been able to measure more than a 10,000 gallon capacity while he filled the pool. The pool was completed in July of 1980. Kim Parker, a certified pool contractor, testified on behalf of Petitioner concerning two of the projects complained of in the Administrative Complaint. Consultant Parker is a licensed pool contractor and has been certified approximately two years. He is presently the general manager for Almar Pools. Mr. Parker has supervised pool construction in excess of two years. Mr. Parker visited the Mariner Village project on August 28, 1981, and noted hairline cracks in the plaster around the pool. Those cracks indicated to him that the plaster was either improperly applied or cured. He also noted a return fitting protruding into the pool, which he considered to he evidence of "shoddy" workmanship. Mr. Parker also noticed that the pumps in the pump room were not installed in a "professional" manner. During this time period, Mr. Parker also visited the Dubovicks' residence and he noted that an air leak existed at the filter pump, which caused a loud noise and that the pool was situated approximately three inches above the patio which created a drainage problem. In this regard, the Dubovicks testified that two doors were ruined due to water drainage problems around the pool area. Mr. Parker considered the workmanship around the Dubovick pool to be professional in its appearance although he did note that the pool was not constructed to the measurements provided for in the contract. Respondent's Defense Respondent, Charles Bromley, qualified Magic Wands Pools during 1978. He did so, according to him, based on "bad legal advice." Respondent encountered numerous problems completing pools that were under construction for Magic Wands Pools while he also was handling the day-to-day affairs of the successor corporation. Respondent has completed all except two out of forty-two pools that remained incomplete when he took over and Magic Wands Pools ceased operations in late 1979. Respondent contends that the former owner dumped "problem" pools on him which included the Mariner Village pool. William Sheldon, a professional engineer who has acted as a consultant in the design of numerous pools (in excess of 1,000) was called as a witness to testify on behalf of Respondent. Mr. Sheldon visited the Mariner Village pool and studied the design. He concluded that inadequate pilings were the source of the problems with the Mariner Village pool. That is, he considered the pilings failed to give adequate support and that this was of no fault or could not result in any liability on Respondent's part, inasmuch as the pool contractor was not responsible for the pilings erected to provide support for the pool. Mr. Sheldon noted that the pilings were driven to substantially less depth than other short piles in the area which led him to conclude that the developers used "soft" piles which had a low-blow content. He concluded that this caused cracks to radiate out of the east end of the pool creating leaks. Mr. Sheldon's examination of the elevations around the pool indicated that the gutters were level; that the problem was therefore one relating to the pool's substructure and not due to any construction deficiency. Also, Mr. Sheldon noted that, based on his calculations, without the usual allowance in calculations for an approximate ten percent (10 percent) deviation in a pool's volume capacity, his calculations indicated that the pool would hold approximately 11,872 gallons whereas the plans called for an approximate gallonage capacity of 10,500 to 11,000 gallons. Finally, Mr. Sheldon indicated that his review of the pool construction at Mariner Village only indicated that there existed one extrusion which he considered not to be critical in view of the overall construction and the pool's layout. Respondent testified that construction at Mariner Village progressed at a reasonable pace indicating that on May 8, 1980, the pool was marble coated, however, the equipment was not completed in the pool room and therefore work could not proceed as scheduled. According to Respondent, the earliest time that the equipment was in place, by other subcontractors, was approximately August 18, 1980, and work commenced rapidly thereafter by Respondent's employees. Respondent testified that an engineer inspected the gutters on July 16, 1980, at which time the gutters were properly erected and that within four days, i.e., on July 20, 1980, the gutters were "low" and the tiles had sunk. Respondent replaced the gutters without cost, however, he refused to do further work on the pool until the substructure was solidified. During this period, Respondent also testified that Mariner Village failed to timely honor draw payment requests which forced him to stop work until funds were received according to the schedule for draws. Finally, Respondent testified that the pilings and related substructures were obligations contracted for and hired independently by the general contractor. For this reason, the Respondent offers that he was not obligated for the failures surrounding the pool at Mariner Village. Respondent admits that the Dubovick project caused problems in that it was one that was left from the predecessor entity, Magic Wands Pools. He admits to delays in construction, however, he testified that he labored as faithfully as he could under the circumstances and further that all corrections and/or repairs were made that were called to his attention. As to the contention that the pool was constructed smaller than the 15,000 gallon volume capacity as reflected in the plans and specifications, Respondent indicates that the 15,000 gallon capacity was an error and further that the Dubovicks never indicated to him that there was any discrepancy or deviations from requirements in the plans and specifications as he was required to do according to the terms of the contract. Respondent indicates a willingness to negotiate with the Dubovicks respecting this omission. Finally, Respondent testified that he never met the Derflers, although he did dispatch a repairman out to remedy their problem. Respondent considered that the problem had been resolved and was unaware that it had not until the subject complaints were filed. Respondent has, however, refunded the Derflers' monies which were expended to hire an outside contractor. Throughout the time in which Respondent was attempting to complete or correct projects which had been started or initiated by Magic Wands Pools, he labored to do so with as much dispatch as possible under the circumstances. Respondent indicates that money was due and owing Magic Wands Pools by many customers who refused or was slow to pay. Respondent has been in the pool construction business in excess of twenty years and based on the experience gained and the nature of that business he (Respondent) refuses to guarantee a completion date for a pool due to weather and other uncertainties beyond his control. He again acknowledged that the repairs took a great deal of time to complete, however, he stressed that he labored to perform those repairs in as much dispatch as possible under the circumstances. Concluding, Respondent offered that part of his problem with the Dubovick pool had to do with his attempt to stay within the setback lines of the Dubovicks' property which prompted him to make minor deviations from the plans and specifications.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Respondent, who holds certified pool contractors License No. CP- 007871, be placed on probation by Petitioner for a period of one year. RECOMMENDED this 26th day of January, 1982, 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 26th day of January, 1982.
Findings Of Fact On October 10, 1979, the Respondent entered into a written swimming pool contract with Mr. and Mrs. Stellato, wherein the Respondent agreed to construct a swimming pool for them on their property in accordance with the plans and specifications attached to the contract. Among other things this swimming pool contract provided for the payment of a total purchase price of $11,225.00 to be paid in the following manner: ten percent to be paid at the signing of the contract. fifty percent to be paid upon the installation of the tank. thirty-five percent to be paid upon completion of the base decking and screen enclosure. five percent, or the balance of the purchase price, to be paid when the filter system was put in operation. Further, this contract provided that if the purchasers of the swimming pool failed to pay the purchase price in accordance with the prescribed schedule, the contractor reserved the right to suspend all work on the swimming pool, and to suspend all warranty work due after completion of the pool. During the month of February, 1980, the Respondent, acting through his duly authorized representatives, did all acts necessary to cause the filter system of the subject swimming pool to become operable, and requested that the Stellatos pay the five percent balance due under the contract. The Stellatos failed to make this final payment, claiming that there was a problem with the pool decking. In response to this complaint the Respondent personally met with the Stellatos, and agreed to cover the problem area of the decking with Chattahoochee River Rock at no cost to the Stellatos. In exchange for this agreement the Stellatos agreed to pay the balance due under the contract. Thereupon, the Respondent installed Chattahoochee River Rock over a substantial portion of the decking at his own expense. During the installation of this Chattahoochee River Rock, Mrs. Stellato contacted the Respondent by phone and demanded that he also install, at his own expense, Chattahoochee River Rock over an existing concrete patio area that had not been built by the Respondent. The Respondent refused to incur this additional expense, because it was not in accordance with the agreement of the parties. Thereafter, the Stellatos again failed to pay the balance due under the contract. The subject swimming pool was inspected by an inspector for Palm Bay, and the City issued a certificate of occupancy in June of 1980. The pool was ready for a certificate of occupancy in February of 1980 except for the removal of one pile of dirt that still remained on the premises. All other aspects of the pool construction passed inspection in February of 1980 when the pool filter system was activated. Since February Of 1980, the Stellatos have had full use of the subject swimming pool. Except for alleging that some low spots remain in the pool decking, the Petitioner offered no substantial evidence of any other significant problem with the Respondent's construction. Notwithstanding the failure of the Stellatos to pay the balance of the contract price in a timely manner, the Respondent performed warranty work on the subject swimming pool after February of 1980. During the course of this warranty work the Respondent added chlorine chemicals to the pool because the Stellatos had failed to properly maintain it up to June of 1980. Another claim concerning a leaking pipe on the pool sweep did not manifest itself until April of 1981, after the expiration of the one year warranty period afforded by the Respondent to all customers. The Petitioner offered no evidence to show that the leak in this pipe was caused by the Respondent. Notwithstanding the expiration of the warranty period, and the lack of evidence to show that the leak was caused by the Respondent, he did send an employee to the job site and stopped the water leak, at no cost to the Stellatos. On several occasions when the Respondent or his employees attempted to satisfy the complaints of the Stellatos, they had to leave the job site because of the abusive language and conduct directed toward them by the Stellatos. In one instance Mr. Stellato ordered the Respondent's employees from the job site and prevented performance of any work under the contract.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Administrative Complaint, as amended, against John W. Thornett be dismissed. THIS RECOMMENDED ORDER entered this 9 day of June, 1982, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 1982.
Findings Of Fact When the third vinyl liner Brenda Hanna had installed in her swimming pool also ripped, she decided concrete would serve better. A friend referred her to respondent Richard Cobb. Mrs. Hanna and Mr. Cobb entered into a written agreement on March 10, 1977, by which Mr. Cobb undertook, among other things, to cement the pool walls and bottom, in exchange for eighteen hundred eighty dollars ($1,880,00). Plumbing was not covered by this agreement. Approximately one month later two workmen began on the project. Work progressed sporadically. Mr. Cobb himself helped remove the vinyl wall, remove aluminum plates, widen the existing excavation and replace the aluminum plates with the intention of using them as part of the forms for pouring the concrete swimming pool walls. Mr. Cobb also put some steel bars in place, After several telephone calls, on October 17, 1977, Mrs. Hanna wrote respondent saying he had 15 days in which to resume work and 45 days thereafter to finish. On or about November 1, 1977, respondent appeared at the job site. The last day he worked on the project Mrs. Hanna told Mr. Cobb she would call him when she had gotten the plumbing finished. Mrs. Hanna never told Mr. Cobb not to finish the work he began for her. On or about March 10, 1977, Mrs. Hanna wrote a check in favor of DLC, a contracting company, in the amount of five hundred dollars ($500.00), which she intended as partial payment under the contract she entered into on March 10, 1977. Two weeks after work began, Mr. Cobb asked Mrs. Hanna for more money, saying that DLC had charged him five hundred dollars ($500.00) for getting the job for him. Mrs. Hanna gave him one hundred dollars ($100.00) at that time, After Mrs. Hanna investigated, she again discussed what had happened to the first five hundred dollars ($500.00) with Mr. Cobb who conceded that some bills were paid with the money. On another occasion, Mrs. Hanna advanced one hundred fifteen dollars ($115.00) which Mr. Cobb used to buy steel. Before beginning work Mr. Cobb, who held individual swimming pool servicing contractor's license No. RP 2997 from March 17, 1977, till June 30, 1977, secured building permit No. 77-338 to repair Mrs. Hanna's swimming pool. John F. Viking, an investigator in petitioner's employ since February 15, 1971, issued a notice of violation to Mr. Cobb in 1971 or 1972, when he was told that Mr. Cobb had been contracting without a license. In 1973, on the basis of similar information, he filed a complaint with the state attorney's office which he understood resulted in Mr. Cobb's conviction and probation. Lester A. Davis, a long time employee of the City of Gainesville and presently its acting building official, visited Mrs. Hanna's residence after Mr. Cobb had begun work and asked Mr. Cobb to show him engineering plans. In Mr. Davis' opinion, the plans Mr. Cobb showed him were not being followed. Mr. Davis told Mr. Cobb that he could finish the job only if he associated a contractor licensed to build swimming pools. Mr. Davis inspected and discovered that the bottom drain had been installed. No other plumbing was required to be done before cementing the pool walls and bottom.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner suspend respondent's license for one year. DONE and ENTERED this 28th day of November, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Michael Egan, Esquire Post Office Box 1386 Tallahassee, Florida 32302 Richard Cobb, Esquire 1238 Southest 18th Terrace Gainesville, Florida 32601 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. CASE NO.: 78-1553 RICHARD COBB, RP 0029977, 1238 S. E. 18th Terrace, Gainesville, Florida 32601, Respondent. /
Findings Of Fact Respondent is, and has been at all times material to this proceeding, a registered and certified pool contractor having been issued license numbers RP 0023613 and CP 0012607. Respondent's license number RP 0023613 has been delinquent since June 30, 1983, but his license number CP 0012607 was active and in full force and effect until he ceased doing business in approximately September, 1985. Respondent conducted his pool contracting business in the name of Hallmark Pools for approximately 14 years. The business entity "Hallmark Pools" was properly qualified and named on the Respondent's license. In 1985, the Respondent began to enter the business of designing outdoor patios and fountains, as well as pools. He wished to retain the good will he had gained operating under the name "Hallmark Pools" while gaining good will in the new name under which he planned to conduct business in the future, "Aquatic Environments, Inc." During this transition period, and until he closed his business, the Respondent's contracts and letterhead contained the names "Hallmark Pools" and "Aquatic Environments, Inc.," but that name never appeared on his licensure. On or about March 12, 1985, Respondent, through Hallmark Pools/Aquatic Environments, Inc., contracted with customers Mr. and Mrs. Allan Schaeffer to construct a screened-in pool and spa at their residence located at Archer Street, Lehigh Acres, Florida, for a contract price of $20,000. Later approximately $1,700 of extras were added to the contract. On or about March 21, 1985, the Schaeffers paid the Respondent $2,000 on the contract. On or about May 23, 1985, the Schaeffers paid another $17,000 on the contract. Approximately, $2,600 remained owing on the contract. The customers reside part of the time in New Jersey. In the contract, Respondent promised a June 15 completion date. When the customers arrived in Florida on or about June 14, they found that the project was not complete. When the customers contacted the Respondent, the work was resumed. The pool was quickly completed and was usable by the beginning of the July 4th weekend. Some punch list items remained to be done, but the Schaeffers preferred that the Respondent wait until after they returned to New Jersey in August, 1985. The evidence did not prove that the Respondent promised a June 15 completion date while knowing that he would not be able to finish the work by that date. During the summer of 1985, personal problems the Respondent was facing at the time mounted, and eventually he decided he no longer could continue to operate his business. He began to plan to close his business and have all pending matters either resolved by himself before he went out of business or resolved by his brother Chad Jackson, also a licensed pool contractor, after going out of business. He did this by assigning pending contracts to his brother. He also attempted to insure that all suppliers were paid either by himself before he went out of business or by his brother out of payments due under the contracts assigned to him. Except for the Schaeffer job, the Respondent's arrangements to close out his business did not result in any complaints. Near the end of August, 1985, the Schaeffers gave the Respondent a punch list of work still due under the contract to be done while the Schaeffers were in New Jersey. The Respondent called and told Mr. Schaeffer that he was closing his business but that the punch list items would be taken care of. At the time, the Respondent also knew that approximately $1,300 was owed to Jones Industries Screen Enclosures, Inc. The Respondent expected his brother to pay Jones out of the $2,600 due on the Schaeffer contract, leaving $700 to compensate his brother for the punch list work and any warranty work. In fact, there also was $2,705.12 owed to a company named FAFCO Solar, which had subcontracted the solar heating on the Schaeffer contract. The Respondent had forgotten about this debt. FAFCO had billed the Respondent on July 15, 1985, but the Respondent did not pay it or arrange for its payment. FAFCO's second billing never reached the Respondent. The Respondent sent FAFC0, along with his other suppliers and subcontractors, a notice on August 22, 1985, that he was going out of business and that mail should be sent to his home address. On receipt of this notice on August 28, 1985, FAFC0 mailed a second billing to the home address but it was returned on August 30, 1985, marked: "Moved Left No Address". The Respondent's brother did the punch list work to Mr. Schaeffer's satisfaction and sent him a bill for the $2,600 balance due on the contract. Schaeffer never paid. The Respondent's brother never paid the Jones Industries bill (and never got the FAFCO bill). Jones Industries put a lien on the property at 1414 Archer Street for $1,388.75, which the Schaeffers eventually paid. FAFCO did not file a notice to owner and could not claim a lien on the property. FAFC0 never was paid. Both Jones Industries and FAFCO refused to do warranty repairs because they were not timely paid. The evidence did not prove that the Respondent inadequately supervised the Schaeffer job while he was still in business or after he went out of business. After he went out of business, he assigned the contract to a licensed pool contractor, his brother. Eventually, serious problems developed in the Schaeffer's pool at 1414 Archer Street. But the evidence did not prove that the Respondent or his brother were responsible. The serious problems of which the Schaeffers now complain should have been apparent from the outset if caused during construction of the pool. Yet complaints were not registered until much later. Meanwhile, improper maintenance of the pool by the Schaeffers or their pool maintenance contractor, or damage to the pool during maintenance, could have caused the current problems. For six months after the Respondent closed his business and left Ft. Myers, he was traveling in the western part of the country and had no mailing address and did not give one to the Construction Industry Licensing Board. Then, he returned to Florida to a St. Petersburg address which he gave to the Board.
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 guilty of violating Section 489.129(1)(g) and (m), Florida Statutes (1985), reprimand him for the violation of (g) and fine him $1000 for the violation of (m). RECOMMENDED in Tallahassee this 19th day of December, 1988. J. LAWRENCE JOHNSTON 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. 86-3468 To comply with Section 120.59(2), Florida Statutes (1987), the following rulings are made on the Petitioner's proposed findings of fact: Rejected. (The license number was left blank.) Accepted and incorporated. Rejected as contrary to facts found. The Respondent arranged for payment of the Jones debt but disputes among the Schaeffers, Jones and the Respondent's brother led to Jones imposing a lien on the property which the Schaeffers eventually paid. The Respondent did not make arrangements to pay FAFCO, and that bill remains unpaid. 4.-9. Rejected as contrary to facts found. COPIES FURNISHED: David Bryant, Esquire 500 North Tampa Street Tampa, Florida 33602 Thomas Jackson 5203 109th Way North St. Petersburg, Florida 33708 Fred Seely Executive Director Construction Industry Licensing Post Office Box 2 Jacksonville, Florida 32201 Bruce D. Lamb General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
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.
Findings Of Fact In 1975 and 1976 John Morris, d/b/a Morris Pool Service, maintained the swimming pool at the Sunland Center in Miami, Florida under a contract with HRS. The contract for the year commencing July 1, 1976 and expiring June 30, 1977 (Exhibit 1) provided generally for Morris to maintain the Sunland Center pool for which he would be paid $520 per month. This contract further provided that a representative of Morris Pool Service check each day except Saturday and Sunday with Ms. O'Donohue, the Director of Training, or her successor. Recreation personnel at Sunland Center hoped to open the pool on Memorial Day; however, an impeller for the pump needed replacement and the pool was inoperative for some six weeks in May and June awaiting this part. During this time petitioner did little or no maintenance and the pool's condition was bad enough for the Superintendent to become involved and request a report from the Programs and Services Director (Exhibit 4). When the impeller did arrive in mid-June, 1977, the pool was in such bad shape it was necessary to drain the pool, scrub, and acid-wash the walls and floor of the pool to remove the accumulated algae and scum. Even a colony of frogs had taken up residence in the pool during this period. As a result of additional delays the next hoped-for opening date of July 4 was also missed. The pool was finally ready for operation and was opened the week following July 4, 1977. Although opened the water in the pool was not properly maintained by cleaning and chlorinating. In the latter part of July the gas chlorinator became inoperative and the pool's condition deteriorated as no chlorine was being added to the water. Under the contract Petitioner was to provide materials necessary to keep the pool water in a balanced condition. This contract expired on June 30, 1977. Nevertheless, Petitioner purported to continue working under the expired contract, pending the issuance of a new contract for 1977-1978. While the gas chlorinator was inoperative Petitioner did not hand-feed chlorine to the pool to maintain the proper chlorine level and to keep algae from growing. By early August, 1977, the pool had become so bad the supervisory personnel at Sunland Center called the Dade County Health Department to inspect the pool. A report of that inspection showing the pool unfit for use was admitted into evidence as Exhibit 3. Following the Superintendent's inquiry to Ms. Titus about the condition of the pool in June, 1977, she contacted Petitioner, who told her the pool would he hack in operation as soon as the impeller was received. Ms. Titus was the successor to Ms. O'Donohue and she told Petitioner to keep her advised regarding the status of the pool. Although the contract (Exhibit 1) required Petitioner to report to Ms. Titus daily (except Saturday and Sunday) she did not see him again, nor did she receive any report that he came to her office. Petitioner contends that he attempted to report to Ms. Titus but was unable to find her in her office and after a few attempts stopped trying. Ms. Titus and her assistant were both equipped with beepers and could be contacted any time of day by their office if they were out of the office. Following the Health Department's inspection on August 9, 1977, the pool was closed for several days, then reopened around mid-August after the chlorinator was repaired. When the pool was reopened in August its condition was barely satisfactory. Shortly after Labor Day the pool was again closed and remained closed throughout the balance of 1977. By October, the Sunland Center officials decided they should notify Petitioner that his contract would not be renewed for the 1977-1978 year and a letter dated October 27, 1977 (Exhibit 2) was forwarded to him by registered mail. This letter was mailed to an old address for Petitioner, was returned to the sender and remailed to the proper address. As a result, the letter was not received by Petitioner until December 14 or 15, 1977. Petitioner submitted bills to Respondent for services for the period July 1, 1977 through December 15, 1977, the approximate date he received Exhibit 2. Following August 10, 1977 some of Respondent's employees in the maintenance department saw Petitioner in the cafeteria at Sunland Center and on the premises, but none of them reported seeing Petitioner do any work on the pool. Petitioner contends he worked on the pool on a daily basis, however, the condition of the pool casts serious doubts on this testimony.
The Issue The issues posed for decision herein are whether or not the certified pool contractor's license issued to Respondents Licensee, Edward G. Batter, should be revoked or suspended or the Licensee's right to practice thereunder should be withdrawn based on conduct which will be set forth hereinafter in detail as set out in the Administrative Complaint filed herein on August 23, 1979.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel and the entire record compiled herein, the following relevant facts are found. Edward G. Batter, d/b/a Tropicana Pools, Inc., (Respondent or Licensee) is a certified pool contractor who holds license No. CPC 012906. Respondent was first licensed on July 28, 1978, as qualifier of Tropicana Pools, Inc., which license was temporarily suspended in June, 1979, and remains in an invalid status to this date. By its Administrative Complaint, Petitioner's Executive Director took action to revoke or otherwise suspend the Respondent's rights to practice pursuant to his referenced license. As a licensed pool contractor, Respondent is subject to the Board's rules and regulations. (See Petitioner's Composite Exhibit 1.) A special meeting of the Board of Adjustment, Appeals and Examiners for general building contractors for Hillsborough County was held on Thursday, July 19, 1979, for the purpose of hearing certain allegations concerning the demise of Tropicana pools, Inc. Jerry Taylor, Petitioner's field investigator, presented the Hillsborough County Board with the results of an investigation of Respondent and presented several cases wherein funds were diverted after being collected for a specific contract to other projects or for other purposes and that projects for which funds had been collected had either been left unstarted or abandoned at the time Tropicana Pools, Inc., ceased doing business. At that meeting, the Respondent's construction activities were suspended by the Board until restitution or settlement was made and verified by affected parties. The temporary suspension by Hillsborough County became final during August of 1979. (Petitioner's Exhibits 2 and 3.) Howard Shaw, Director of Building and Zoning for the City of Tampa, appeared and testified to substantiate the disciplinary action taken against the Respondent by Hillsborough County during the summer of 1979. On June 7, 1979, Mr. and Mrs. James R. Stanton entered into a contract with Respondent to have a pool constructed for a price of $8,182.00. Respondent was paid a 10 percent deposit to commence construction of the Stantons' pool. Respondent absconded with the deposit and never notified the Stantons that their pool would not be built nor did Respondent return their deposit. (See Petitioner's Exhibits 4 and 5.) On April 19, 1979, Mr. and Mrs. Theodore Hillary entered into a contract for the construction of a swimming pool for a contract price of $8,130.00. Approximately $5,690.00 or approximately 70 percent of the contract sum was paid on June 18, 1979, and the work ceased on the Hillary project at a completion stage of approximately 40 percent. Respondent abandoned the Hillary project on approximately June 5, 1979. The Hillarys completed their pool at a price of approximately $5,000.00 over and above the contracted price. (Petitioner's Composite Exhibit 6.) On April 30, 1979, Mr. and Mrs. Leon Tope entered into a contract for the construction of a swimming pool at their residence for the contract price of $8,050.00. On June 18, 1979, the Topes had tendered to Respondent approximately 70 percent of the contract cost while the Respondent abandoned the construction of the Topes' pool after approximately 40 percent of the work was complete. Respondent abandoned the project on June 18, 1979, and the Topes completed the construction of their pool at a price of approximately $2,000.00 by engaging the services of other contractors in the area. (See Petitioner's Exhibits 7, 8, 9, 10, and the testimony of Jim Moran.) Jerry Taylor, Petitioner's field investigator, attended the probable cause hearing during August of 1979 in which the Hillsborough County Board of Examiners suspended the pool license of Respondent. Investigator Taylor briefed the Hillsborough County Board respecting the results of the investigation conducted by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Respondent's pool contractor's license No. CPC 012906 be REVOKED. ENTERED this 10th day of March, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675
Findings Of Fact 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
The Issue The administrative complaint filed on September 17, 1987 alleges that in a residential pool contracting job Respondent Martin ". . . exhibited financial mismanagement, misconduct, or diversion, in violation of 489.129(1)(h), (m) . . . [and] failed to perform in a reasonably timely manner, and/or abandoned said job, in violation of 489.129(1)(m), (k)." The issue is whether Martin committed those violations, and if so, what disciplinary action is appropriate.
Findings Of Fact At all times relevant, Kenneth Martin was licensed in the State of Florida as a registered commercial pool contractor, holding license number RP 0021608. His license is currently in inactive status. Martin was President of Adair Pools, Inc., the corporation under which he conducted his pool construction business. In early July 1986, Adair Pools contracted to build a residential pool for Paul and Cynthia Pajak at 8304 Helena Drive in Orange County, Florida. The pool was to be kidney-shaped, approximately 14 feet by 30 feet, with a waterfall and a detached spa. The contract amount of $11,571.00 expressly excluded the deck, electrical work and screening, although the written contract included a sheet describing the specifications for the excluded work, recommended contractors, and estimated costs. This sheet and the pool contract itself clearly indicated that these items were not the responsibility of the pool company and were not included in the contract price. Work commenced in July, shortly after the contract was signed. Although the contract did not specify a completion date, Martin concedes that the pool should have taken no more than four to eight weeks to complete. The Pajaks had planned a Labor Day party and were told by Adair's employees there would be no problem getting their pool finished for the party. The pool was not finished by Labor Day. After the pool was dug, shot with concrete and tiled, someone determined that the spa was supposed to have been raised. In attempting to raise the spa and to change the water jets, the workers cracked the shell of the spa and had to replace it. Until the problems with the spa, the Pajaks felt that the construction progress was reasonable and smooth. At this point, sometime around Labor Day, the problems began. Adair delayed in paying Shotcrete Pools, the subcontractor for the concrete shell, because Adair felt it was Shotcrete's fault that the spa was cracked. Shotcrete notified the Pajaks that a lien would be placed on the property if they were not paid. The notice to owner is dated November 3, 1986. Eventually Adair paid Shotcrete and its other subcontractors for the Pajak work and no lien was filed. The evidence does not reflect a clear sequence of events, but between Labor Day and February or March 1987, little progress was made to finish the pool. Martin's supervisor left and Martin's brother took over. The Pajaks kept calling Martin and were always assured that the job would be completed. Martin admits that the company at this time was in serious financial trouble because it was not being paid for a large commercial job that it had undertaken. On December 10, 1986, Mrs. Pajak's brother-in-law, an attorney, sent Martin a demand letter, giving a 10-day deadline for completion of the work. Martin and his brother met with the attorney and assured him the job would be finished. In spite of the problems, the Pajaks continued working with Martin and paid the full contract price, less the $100.00 that was to be paid when the pool was filled. On March 5, 1987, Martin informed the Pajaks that they should have the deck poured so that Adair could finish the pool. The Pajaks were not satisfied that the pool was ready for the deck as there were leaks in the waterfall, debris was all over the yard and the spa tile work looked messy. In Martin's opinion those items were his company's responsibility, but were part of the finishing to be done after the deck was poured and the pool was lined with marblelite. On March 21, 1987, the Pajaks contracted with another pool company for $4450.00 to finish their pool. Martin denies that Adair abandoned the job, but admits that it took an inordinate amount of time. The Pajaks did not allow him to finish the cleanup, the interior coating and the pool start up because they contracted with someone else. Martin did not contest that the waterfall leaked or that extensive cleanup needed to be done, but disputed that this work should be done before the deck was poured. He contended that the leaks in the waterfall would have been fixed when the finish was done. Martin estimates that between 1974 and 1986, his company completed over fourteen hundred residential pools and approximately five hundred large commercial pools. Martin has been active on various local pool construction industry boards and has no record of prior disciplinary action against his license.
Recommendation Based upon the foregoing, it is, hereby, RECOMMENDED: That Kenneth Martin be found guilty of misconduct, in violation of Section 489.129(1)(m), Florida Statutes, not guilty of the other violations with which he is charged, and that he be required to pay an administrative fine of $500.00. DONE and RECOMMENDED this 2nd day of August, 1988, in Tallahassee, Florida. MARY CLARK 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 2nd day of August, 1988. COPIES FURNISHED: David E. Bryant, Esquire 220 East Madison Street, Suite 530 Tampa, Florida 33602 Kenneth R. Martin 3225 North Glenn Drive Orlando, Florida 32806 Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
