Findings Of Fact At all times material hereto, Respondent, John R. Misiak, was a registered pool contractor, having been Issued license No. RP0033942. Respondent acted as the qualifying agent for Pool Masters, Inc., and also sewed as president of that company. On or about August 21, 1979, Respondent, on behalf of Pool Masters, Inc. , contracted with Mr. and Mrs. Rolf Schneider to construct a pool at the contract price of $9,400 at their residence at 4253 Sugar Pine Drive, Boca Raton, Florida. Pursuant to the terms of that contract, Pool Masters, Inc., guaranteed completion of the pool within eight weeks from the date of issuance of a building permit. On August 23, 1979, the Schneiders paid Pool Masters, Inc., a down payment of $948 On September 23, 1979, Respondent obtained a building permit for the pool and commenced construction. Thereafter, the Schneiders made two additional equal payments to Pool Masters, Inc., of $2,820 on October, 30, 1979, and November 4, 1979, respectively. After receipt of these payments, a remaining unpaid balance on the contract of $2,892 resulted. Work progressed on schedule through November 4, 1979, when Pool Masters, Inc., applied "shot crete" to the pool, and the Schneiders made their last payments of $2,820 as indicated above. Thereafter, work did not progress according to schedule, and the Schneiders became concerned about completion of their pool. There ensued a series of correspondence no conversations between the Schneiders, Respondent, and other officers of Pool Masters, Inc., concerning completion of the pool. Actual work on the pool continued through early December of 1979. At some time between December 4 and December 14, 1979, rough plumbing was installed in the pool. The rough plumbing was inspected and approved by the Palm Beach County Building Department on December 14, 1979. Pool Masters, Inc., had experienced financial difficulty as earl as August of 1979. Negotiations between the company and its creditors continued through late 1979 in the company's attempts to remain in business. In late November of 1979, Respondent spoke with Mrs. Schneider and informed her that the company was experiencing financial difficulties and might not be able to complete construction of the pool. On December 12, 1979, an officer of Pool Masters, Inc., spoke with Mr. Schneider, and informed him that the company would not be able to complete construction of the pool and further would be unable to refund their money. Respondent attempted to arrange completion of the Schneider's pool through another company. Under the proposed arrangement, the pool would have completed at the second company's cost, and Pool Masters, Inc., would have contributed $1,000 toward completion. At the time Respondent proposed this arrangement for completion of the pool, it appears from the record that the the pool could have been completed for approximately $2,000 above the original contract price. The Schneiders refused any offer or completion that would have exceeded the original contract price Pool Masters, Inc., was unable to make satisfactory financial arrangements with its creditors. As a result, the company filed a Voluntary Petition Under Chapter 7 of the Bankruptcy Code on January 29, 1980. No work was performed by Pool Masters, Inc., on the job after the period of December 4 through December 14, 1979. There is no evidence of record in this proceeding from which a conclusion can be drawn that any of the monies paid by the Schneider to Pool Masters, Inc., was applied other than in the partial construction of the pool pursuant to the contract. The Schneiders subsequently contracts with another firm for completion of the pool at a cost substantially in excess of the original contract price. The Schneiders also filed a civil suit for damages against Pool Masters, Inc. Respondent, and other corporate officers. In the course or that proceeding, the Schneiders recovered $1,750 from one of the corporate officers.
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.
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 At all material times hereto, Respondent was the holder of a registered swimming pool contractors license number RP 0035739. Respondent's license was issued in the name of Malicki Pools, Terry W. Malicki. In January, 1981, Gary Wieland entered into a contract with Patrick Barr d/b/a Pool and Spa World. Barr was to construct a pool for Weiland in Port Charlotte for $7,856.00. Barr had become known to Wieland as a builder of swimming pools through a neighbor. Barr stated to Wieland that he was a pool contractor. Wieland made all payments due under the contract to Barr. Petitioner's evidence established that the Wieland swimming pool required a building permit. On March 3, 1981, Terry Malicki d/b/a Malicki Pools obtained permit number 66970 to construct a pool at Wieland's residence in Port Charlotte. Wieland's testimony established that Malicki constructed the pool at his residence. However, all of his dealings were with Barr. Barr was not licensed as a swimming pool contractor in Charlotte County or in Florida, and was convicted in the Charlotte County court of acting as a contractor without being licensed. Mr. Robert Guariglia entered into a contract with Barr to construct a swimming pool for $9,500.00. The pool was to be constructed at Lot 17, Block 402, Subdivision 23 or 913 Cherry Chase, Port Charlotte, Florida. Petitioner's evidence established that the Guariglia pool required a building permit. On June 10, 1981, Terry Malicki d/b/a Malicki Pools obtained permit number 68962 to construct a pool at Lot 17, Block 402, Subdivision 23 or 913 Cherry Chase, Port Charlotte, Florida. Guariglia paid the first installment of his contract by check to Barr in the amount of $3,325.00. However, because the pool was not level, Guariglia told Barr or Malicki who was supervising the work that he wanted the pool redone or removed. The pool was later removed and Guariglia had to pay $1,400 to have his property restored. As noted above, Barr was not licensed as a swimming pool contractor in Charlotte County or in Florida, and was convicted of acting as a contractor without being licensed. However, the swimming pool constructed at the identified Guariglia residence required a building permit. On September 3, 1981, the Charlotte County Building Board suspended the certificate of competency of the Respondent until such time as he corrected all matters which were then pending before that Board. On November 5, 1981, the Charlotte County Building Board reinstated Malicki's license.
Recommendation In consideration of the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order suspending the swimming pool contractor's license issued to Respondent for one (1) year. DONE and ENTERED this 22nd day of April, 1983, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1983. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Terry W. Malicki c/o Malicki Pools 1788 S.W. Sicily Avenue Port Charlotte, Florida 33952 Stephen Schwartz, Esquire 680 Aaron Street, N.W. Port Charlotte, Florida 33952 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue This case concerns the issue of whether the Respondent's license as a certified general contractor should be suspended, revoked, or otherwise disciplined for multiple violations of Chapter 489 of the Florida Statutes. Specifically, the Respondent is charged with having been found guilty of a crime which relates directly to the practice of contracting in violation of 489.129(1)(b)(1979); willfully or deliberately disregarding and violating the applicable building code in violation of Florida Statute 489.129(1)(d)(1979); aiding and abetting an unlicensed person in his evasion of the Contracting Practice Act in violation of 489.129 (1)(e)(1979); knowingly combining or conspiring with an unlicensed person by allowing Respondent's license to be used by said unlicensed person with the intent to evade the provisions of the Contracting Practice Act in violation of Florida Statute 489.129 (1)(f)(1979); and, violating Florida Statute 489.129(1)(j)(1979) by failing to renew his license every two years and by failing to supervise a construction project. At the formal hearing, the Petitioner called as witnesses the Respondent, Frederick G. Gervia, Leroy S. Duncan, John Knezevich, and Evodio Llevado. Respondent testified on his own behalf and also called as a witness Mr. L. Perry Curtis. Petitioner offered and had admitted without objection eight exhibits. The Respondent offered no exhibits into evidence.
Findings Of Fact The Respondent is a certified general contractor holding License No. CG C003114. Respondent is also a registered general contractor having been issued License No. RG 0009802. Respondent's license CGC003114 was delinquent as of December 7, 1981, and had not been renewed for the 1981-83 licensing period. On October 11, 1981, Fiberglass Pools of South Florida, Inc. entered into a contract with Mr. Leroy Duncan to construct a fiberglass pool at Mr. Duncan's residence located at 1385 N.W. 192nd Terrace, Miami, Florida. On November 10, 1981, Respondent applied for a building permit (see Petitioner's Exhibit 2) for the pool construction at Mr. Duncan's home. The Respondent signed the application in the block designated "Signature of Qualifier or Owner-Builder". The application named Gervia Construction Company, address 2810 S.W. 78th Court as the building contractor. Gervia Construction Company was neither the general contractor nor a subcontractor in connection with the construction of the Duncan pool. At the time that he applied for the building permit, Respondent was qualifying agent for Gervia Construction Company, 2810 S.W. 78th Court, Miami, Florida 33155. The Respondent has made no request to qualify under either of his licenses as the qualifying agent for Fiberglass Pools of South Florida, Inc. Neither Fiberglass Pools of South Florida, Inc. or its principals were licensed. Prior to and during construction, Mr. Leroy Duncan had no dealings at all with the Respondent or Gervia Construction Company. Mr. Duncan's dealings were primarily with Douglas Lake of Fiberglass Pools of South Florida, Inc. Mr. Duncan observed a substantial portion of the construction, but was not present during the form work for the deck. At no time did Mr. Duncan observe the Respondent working on the construction of the pool at his home. The only work performed by Mr. Gervia on the Duncan pool contract was to check the plumbing prior to the county inspection. The pool was actually installed by two principals of Fiberglass Pools of South Florida, Inc. and two helpers. These persons were neither supervised nor controlled by the Respondent during construction. During the time period October 11, 1980, through initial construction of the Duncan pool, the Respondent was employed by Fiberglass Pools of South Florida, Inc. at a salary of $350 per week. One of his duties was to pull permits. Although the Respondent was also hired to supervise all field construction, at the time the Duncan pool was contracted for and constructed, his supervisory status had been eliminated. The Respondent performed no supervisory duties in connection with the Duncan pool construction. All payments from Mr. Duncan, including two checks totaling $950 and a cash payment of $6,230 were made to Fiberglass Pools of South Florida, Inc. No payments were made to the Respondent or Gervia Construction Company. Mr. Gervia did not hire or fire any of the persons who worked on the Duncan pool and kept no records relating to payments received or monies spent on the job at the Duncan residence. Subsequent to the pool being completed, substantial problems and flaws in the Duncan pool developed. The following problems were present in the pool: (See Petitioner's Exhibit 5.) Seven patches on South wall, below water line, are rough, discolored and flaking. The largest two are approximately 12" in diameter and 12" x 4". There is a very small depression in the shallow end seat. The pool flange at the ladder is full of depres- sions, making the edge very rough. Flange cracks at three corners are excessive and need repair. The Southwest corner has a vertical crack down the wall about 1'. See exhibits II, III, IV, and V. The pool wall thickness at corners was 3/8" but north, south and west wall were 7/32" to 1/4" thick. Several dark circles about 2" in diameter are located around perimeter flange and show where holes were drilled and patched poorly. . . Four hydrostatic valves seem high to effectively counteract buoyancy, but approved plan approves 1' above floor at deep end plus one valve in main drain [could not check with pool full]. See notes 9, 10 & 11 - William Meyers plan. 13' x 30' x 72" pool actually measures 12'-11" x 29'-8" x 71 1/8" deep. Vertical floor variations in shallow end are about 1 3/4". Seems depressions occur between ribs. A small bow occurs at Northwest corner near surface of water. Area covers about 18" square. Some concrete voids occur beneath pool lip. Pursuant to an agreement with Mr. Duncan, the Respondent and Fiberglass Pools of South Florida, Inc. have repaired those items listed in paragraph 9 in an excellent manner and to the full satisfaction of the owner, Leroy Duncan. On November 17, 1982, the Respondent was convicted in the County Court of Dade County, Florida, of unlawfully aiding and abetting an unlicensed contractor in violation of Section 10-22(h) of the Metropolitan Dade County Code. Adjudication of guilt was withheld and Respondent was required to pay a $500 fine. The Respondent has been a licensed certified general contractor in the State of Florida since November, 1971, and has had no other charges or actions against his license. There have also been no other complaints filed with the Petitioner regarding the Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent be found guilty of those specific violations as set forth in the Conclusions of Law above and that his license as a certified general contractor be suspended for a period of six months and that the Respondent be required to pay an administrative fine of $250.00. DONE and ENTERED this 20th day of July, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, 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 20th day of July, 1983. COPIES FURNISHED: Harold M. Braxton, Esquire 45 Southwest 36th Court Miami, Florida 33135 Frederick G. Gervia 2810 Southwest 78th Court Miami, Florida 33155 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. James Linnan Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
Findings Of Fact At all times material hereto, Respondent has been a certified pool contractor in the state of Florida, having been issued License No. CP C029646. At all tines material hereto, Respondent has been the qualifying agent for Pools by Andrews, Inc., and the owner of that company. On August 21, 1986, George Silvers, a building inspector for the Village of Tequesta, saw people working at a pool site with no identification on the truck parked nearby. When he stopped, he discovered a crew installing- plumbing pipes for a swimming pool. When he asked for identification, Roland R. Androy identified himself as an employee of Pools by Andrews, Inc. Although "piping a pool" does not itself require specialized licensure, Silvers asked Androy if he were a licensed contractor, and Androy said that he was not. By way of further identification, Androy produced a personal card which read "Andy's Elite Pools." Silvers "red flagged" the job stopping construction and filed a complaint with the Department of Professional Regulation. Androy was an employee of Pools by Andrews, Inc., for approximately one year in 1974. He returned to Florida and again became an employee of Pools by Andrews, Inc. in February, 1985. During the remainder of that calendar year Androy drew a regular weekly salary from that company, received holiday pay, and drove a company vehicle. Taxes were deducted from his salary check, and the company provided him with health insurance. Androy was a fast worker and frequently finished piping pools early in the day at which time he was given odd jobs to perform for the company such as building shelves in the warehouse. Androy decided that he could make the same amount of money and substantially shorten his work day if he were paid on a piecework basis rather than for an eight hour work day. That way he would also be able to 'moonlight' by using his free time performing maintenance and repair work for swimming pool owners. Respondent agreed to pay Androy on the basis of piecework rather than a 40-hour work week. Since January 1, 1986, Androy appears at Pools by Andrews, Inc., at 6:00 a.m. six days a week at which time he is given a list of pools to plumb that day. All materials and equipment necessary to perform the work are supplied by the Respondent. When Androy finishes, he goes home. Every Friday he gives Respondent a list of pools that he piped that week, and Respondent pays Androy by check. Because Androy wanted to be free to leave when he finishes that day's work, he no longer drives a company truck but rather drives his own truck so he does not have to return the truck before he can go home. Under the new salary arrangement, he is paid by the job and no longer receives a regular weekly salary or holiday pay or health insurance. Further, Respondent has ceased deducting withholding tax and social security taxes from Androy's paycheck. The card which Androy gave to Inspector Silver is a card that he used prior to moving to Florida. He had new cards printed with his Florida address and telephone number. He uses them when persons ask how they can get in touch with him. Respondent had no knowledge of Androy having or using such a card. As a certified pool contractor, Respondent is aware of the requirements for licensure, that is, installation of a swimming pool must be done by a licensed contractor. However, there is no requirement for licensure for that portion of the installation known as piping a pool. Rather, that work can be performed by anyone under the supervision of a licensed contractor. Further, no separate permit is required for that "plumbing" portion of pool installation. All permits for the job in question were obtained by Pools by Andrews, Inc., pursuant to Respondent's state licensure. No other permits were necessary for the job, including the work done for Respondent by Androy. Respondent (like Androy) believes that Androy is an employee of his and not an independent contractor or a subcontractor. There is no intent on Respondent's part to evade he state licensure requirements. Respondent has had no other disciplinary actions filed against him.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding Respondent not guilty and dismissing the Administrative Complaint filed against him in this cause. DONE and RECOMMENDED this 29th day of February, 1988, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4395 Petitioner's proposed findings of fact numbered 1, 2, and 4-6 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of tact numbered 2 has been rejected as not being supported by any evidence in this cause. Petitioner's proposed finding of fact numbered 7 has been rejected as being contrary to the evidence in this cause. Respondent's proposed findings of fact numbered 1, 2, 6, 8, 9, and 12 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 3, 7, and 10 have been rejected as being irrelevant to the issues under consideration herein. Respondent's proposed findings of fact numbered 4, 5, and 11 have been rejected as not constituting findings of fact but rather as constituting argument of counsel or conclusions of law. COPIES FURNISHED: Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 David L. Swanson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Edward W. Andrews 8300 Resource Drive Riviera Beach, Florida 33404 William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
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 =================================================================
Findings Of Fact Based on the stipulation of the parties and on the evidence presented at the hearing, I make the following findings of fact. The Respondent was issued a certified residential contractor's license to qualify Towne & County Homes, Post Office Box 11, Flagler Beach, Florida 32306, and License No. CRCO11317 was issued to qualify said entity together with License No. RG0024736. The Respondent was also issued a Class B pool contractor's license, License No. CPC023590 to qualify Mullen Pools, Inc., 2100 South Flagler Avenue, Flagler Beach, Florida 32036. The Respondent presently maintains three current licenses issued by the Petitioner, which are as follows: Registered General Contractor, License No. RG0024736 Certified Residential Contractor, License No. CRCO11317 Certified Pool Contractor, Class B, License No. CPC023590 On September 8, 1986, the Respondent entered into a contract with Mr. and Mrs. Richard Davis to construct a single family residence in the City of Flagler Beach, Florida. The construction site was located in an area of the city zoned for single family residences only. On October 3, 1986, the Respondent submitted an application to the City of Flagler Beach to obtain a building permit, together with plans and specifications upon which a building permit was to be issued. On February 18, 1987, during an inspection, the building official, Mr. R. A. Law, observed that the Respondent had made some changes in the construction of the residence which deviated from the plans and specifications. The specific changes noticed on this occasion were (a) some rough plumbing had been stubbed in on the first floor where none was indicated on the plans, (b) an additional door had been cut into the rear of the first floor, and (c) a door on the plans between the first and second floors had not been cut in. The building official thought that the foregoing changes constituted an effort to violate the zoning law by building a two-family residence in a one-family zone. Accordingly, he issued a stop work order. After the stop work order of February 18, 1987, was posted, the Respondent removed the additional plumbing and installed a doorway between the first and second floors so that the residence complied with the approved plans and specifications. The building official removed the stop work order. On or about March 24, 1987, the building official, Mr. R. A. Law, was back on the construction site. On this occasion he observed a double electric meter can installed on the residence. This observation caused the building official to again suspect that the Respondent was attempting to violate the zoning law by building a two-family residence in a one-family zone, because he assumed that the meter can had been added to the residence since his February inspection. Actually, the double meter can had been in place since the electrical rough in was done and was simply overlooked during the February inspection. The building official wrote to the Respondent advising him that it appeared that he was "installing an extra apartment on the first floor," and ordering the Respondent to remove the double electric meter can from the house. The Respondent wrote back to the building official stating, among other things, that such was not his intent and that he did not have a contract to finish the first floor of the residence. No electrical service was ever installed to the first floor and, in any event, the power company would not have connected the second service without a second certificate of occupancy from the City. Consistent with the Respondent's contentions that he did not intend to build a two-family residence is the fact that written across the face of the plans submitted to the city were the words "Entire first floor is future area, rough in plumbing only." The Respondent's work orders to subcontractors also support his contention that he did not intend to construct a two-family dwelling. At the time of the inspections noted above, Mr. R.A. Law had only recently assumed the position of building official. There had been prior inspections by the predecessor building official at which no objection was made to the changes that Mr. Law objected to.
Recommendation For all of the foregoing reasons, it is recommended that the Construction Industry Licensing Board enter a final order in this case dismissing all charges against the Respondent. DONE AND ENTERED this 18th day of May, 1988, at Tallahassee, Florida. MICHAEL M. PARRISH, 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 18th day of May, 1988. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 87-5040 The following are my specific rulings on all proposed findings of fact submitted by all parties. Findings proposed by the Petitioner: All of the proposed findings of fact submitted by the Petitioner have been accepted in substance, except as specifically set forth below. Paragraph 6: The portion of this paragraph that states or implies that there was an effort to convert a single family residence to a two-family residence is rejected as contrary to the greater weight of the evidence. (The building official suspected such an effort, but there was no such effort by the Respondent.) Paragraph 8: The portion of this paragraph that describes the Respondent's intent is rejected as contrary to the greater weight of the evidence. Paragraph 10: This paragraph is rejected as in part redundant and in part irrelevant, in view of the fact that the changes were minor and were not for the purpose suspected by the building official. Findings proposed by the Respondent: All of the proposed findings of fact submitted by the Respondent have been accepted in substance. COPIES FURNISHED: John O. Williams, Esquire Lindsey & Williams, P.A. Renaissance Square 1343 East Tennessee Street Tallahassee, Florida 32308 Stephen P. Sapienza, Esquire P. O. Box 159 Flagler Beach, Florida 32036 Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 William O'Neil, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether Respondents Adams Group Home, Inc., and Joyce Adams' ("Respondents") group home licensure renewal applications should be denied.
Findings Of Fact Parties and Background APD is the state agency charged with regulating the licensing and operation of foster care facilities, group home facilities, and residential centers, pursuant to sections 20.197 and 393.067, Florida Statutes. Under section 393.063(19), a group home facility means a residential facility "which provides a family living environment including supervision and care necessary to meet the physical, emotional, and social needs of its residents." The capacity of such a facility must be at least four but not more than 15 residents. Respondents are licensees of two group home facilities, known as Adams Group Home #1, located at 2400 Oleander Drive, Miramar, Florida 33023, and Adams Group Home #2, located at 7131 Southwest 16th Street, Pembroke Pines, Florida 33023. Respondents' group homes provide a family living environment within a residential, single-family structure with a combined total of not more than 12 adult residents with developmental disabilities. Joyce Adams is Adams Group Homes' corporate officer. Ms. Adams has been licensed through APD to provide group home services for 18 years. Group homes licensed by APD are required to apply for a renewal license every year. The renewal process involves a review of the applications to make sure they are accurate and complete and an observation by a licensing specialist at the facilities to ensure the facilities are in compliance with the applicable statutes and administrative rules. Every year prior to 2018, including 2014 through 2017, Respondents' group home licensure renewal applications for Adams Group Home #1 and Adams Group Home #2 were approved by APD. No evidence was presented at hearing demonstrating that Respondents have ever been the subject of any corrective action plan or proposed disciplinary agency action in the form of an administrative fine, suspension or revocation of a license, or moratorium on admissions, prior to APD's March 13, 2018, denial letter. The March 13, 2018, Denial Letter Against this backdrop, on December 20, 2017, Respondents submitted applications to APD for renewal of the licenses of Adams Group Home #1 and Adams Group Home #2, which were set to expire in March 2018. By letter dated March 13, 2018, APD notified Respondents of the denial of their group home licensure renewal applications. APD's grounds for the denial of the license applications are set forth in the denial letter in four counts. In Counts I and II, APD alleges the Department of Children and Families ("DCF") commenced investigations which resulted in DCF's verified findings of abuse, neglect or exploitation against Ms. Adams in February 2014 and December 2015, respectively. APD further alleges that based on section 393.0673(2), it "may" deny an application for licensure based solely on DCF's verified findings. In Count III, APD alleges Respondents used video cameras in the common areas in 2016 and 2017 without written consents for the common areas in violation of Florida Administrative Code Rule 65G-2.009(7), which constitutes a Class II violation. In "Count IIII," APD alleges that after Hurricane Irma struck south Florida on September 10, 2017, Respondents had "no power at the group home," Respondents utilized a "makeshift grill" less than ten feet from the structure, and failed to care for its residents. APD specifically alleges that on September 19, 2017, a resident of Adams Group Home #2 "was taken to the emergency room at Memorial Regional Hospital for confusion and fever." APD further alleges that Respondents' conduct described in "Count IIII" constitutes Class I violations, and that the conduct violates rule 65G-2.009(1)(d) with regard to the minimum standards of facilities to ensure the health and safety of the residents and address the provision of appropriate physical care and supervision; adhering to and protecting resident rights and freedoms in accordance with the Bill of Rights of Persons with Developmental Disabilities, as provided in section 393.13; and section 393.13(3)(a) and (g), relating to humane care, abuse, neglect, or exploitation. Count I The parties stipulated that on December 29, 2013, DCF commenced an investigation of Respondents' group homes, and that on February 25, 2014, DCF closed its investigation with verified findings of abuse, neglect, or exploitation on the part of Ms. Adams. APD was aware of DCF's verified findings upon completion of DCF's investigation. At hearing, APD provided no witnesses with first-hand knowledge of the specific facts involved in the violation. Instead, APD presented unsigned DCF investigative reports and a DCF supervisor's testimony regarding the general investigative process. At hearing, Ms. Adams explained the facts and circumstances surrounding the violation. Ms. Adams testified the incident involved M.K., a 41-year-old female resident of Respondents' group home since 2006, who is developmentally disabled. According to Ms. Adams, on Sunday, December 29, 2013, M.K. was taken by personal car to the emergency room at Memorial Hospital, Pembroke Pines, where she was admitted. Ms. Adams testified that M.K. had been coughing for a few days, and she had consulted with a nurse practitioner about M.K.'s condition on Thursday, December 26, 2013. However, M.K.'s condition had not improved by Sunday, she looked weak, and Ms. Adams did not want to wait until Monday for M.K. to be seen by a doctor. M.K. was transported to the hospital on Sunday, December 29, 2013, by a facility employee. Emergency (911) had been called for M.K. on approximately eight occasions prior to December 29, 2013. Ms. Adams persuasively and credibly testified she would not have hesitated to call 911 for M.K. if she felt it was necessary. On Monday, December 30, 2013, the next business day, Ms. Adams provided an incident report to APD. Ms. Adams also immediately notified M.K.'s waiver support coordinator. M.K. returned to Respondents' group home after her release from the hospital where she has continued to reside since then. Count II The parties stipulated that on November 4, 2015, DCF commenced an investigation of Respondents' group homes, and that on December 12, 2015, DCF closed its investigation with verified findings of abuse, neglect, or exploitation on the part of Ms. Adams. APD was aware of DCF's verified findings upon completion of DCF's investigation. At hearing, Ashley Cole, regional program supervisor for the southeast region of APD, testified about the facts and circumstances surrounding the violation. The violation involved the use of residents' funds to request a new support coordinator.1/ Specifically, in November 2015, Ms. Cole conducted a review of client files at one of Respondents' group homes, including a review of financial ledgers, and saw disbursements of money from three residents to an attorney, totaling $1,300.00. When asked about this by Ms. Cole, Ms. Adams explained that the funds were used to pay an attorney to write letters on behalf of the three residents requesting new support coordinators. The funds were used to benefit the three residents and the letters were written by Respondents' attorney on behalf of the three residents. At hearing, Ms. Cole testified that it is typical for an APD client or the client's guardian to request a new support coordinator, not the group home owner, and that it is not required that a request for a new support coordinator be in writing. Although it may not be typical for the group home owner to request a new support coordinator in writing on behalf of the residents, it is not prohibited by law. None of the three residents had guardians or family members to assist in the handling of their affairs. Ms. Adams testified that she had attempted to obtain assistance from the current support coordinator to act on the residents' behalf, but to no avail. Two of the residents still resided at Respondents' group home as of the beginning of 2018; the other resident died about a year after the incident for reasons unrelated to the written requests for a new support coordinator. Count III Delmarva Foundation, n/k/a Qlarant, has contracted with the State of Florida to evaluate the performance of group home providers such as those operated by Respondents. On May 31, 2016, Delmarva Foundation Quality Assurance Reviewer Martina Pocaterra performed an unannounced observation visit at one of Respondents' group homes. Ms. Pocaterra observed video cameras in the common areas of the group home. The next morning, Respondents provided consent forms from residents for use of cameras in the bedrooms, but not for use in the common areas of the group home. Because there were no consent forms signed by residents allowing the use of video cameras in the common areas, an alert notification form was submitted to APD. On October 3, 2017, Delmarva Foundation Quality Assurance Reviewer Michelle Ceville performed a provider discovery review at one of Respondents' group homes. On this occasion, Ms. Ceville observed video cameras in the common areas of the group home. Respondents again provided consent forms from residents for use of cameras in the bedrooms, but not for use in the common areas. Because there were no consent forms signed by residents allowing the use of video cameras in the common areas, an alert notification form was submitted to APD. The clear and convincing evidence adduced at hearing demonstrates that Respondents violated rule 65G-2.009(7)(a) and (b) by failing to obtain written consent of residents for the use of video monitoring equipment in the common areas. "Count IIII" On September 10, 2017, Hurricane Irma struck Florida. After the hurricane, APD contacted group homes to ensure that the homes had electricity, lights, and air conditioning, and that the homes were safe. On September 15, 2017, Adams Group Home, Inc., informed APD that Adams Group Home #2 had electricity and running water, and that Adams Group Home #2 residents had not been evacuated. On September 19, 2017, Kimberly Robinson, an APD human services program analyst, conducted a wellness check at one of Respondents' group homes. It is unclear from Ms. Robinson's testimony which group home she actually visited. However, Ms. Robinson observed that the home had air conditioning, and that "everything in the home was fine." On September 19, 2017, Pembroke Pines Assistant Fire Marshal Shawn Hallich visited Adams Group Home #2 and conducted an inspection. He testified that he "did a walk around real quick," and that on the enclosed outdoor patio on the back porch of the home, he noticed "a pot on two blocks with two pieces of wood and an open flame with charcoal, and something . . . being cooked on it." According to Mr. Hallich, the cooking device was located on the back patio "approximately, probably 10 feet from the sliding glass door, maybe a little bit less than that." Mr. Hallich did not use any device to measure the distance of the cooking device from the structure of the home. Mr. Hallich testified that the cooking device was a safety hazard because there was an open flame and there was nothing to prevent the cooking device from being tipped over or falling over on its own. During his inspection, Mr. Hallich also observed that there was no air conditioning inside the home. There was some electricity inside the home, but not enough voltage necessary for the air conditioning system to operate. However, there were fans located and operating in every room of the home, and the windows were open. Mr. Hallich testified it was hot, but he did not use any device to measure the temperature inside the home. Mr. Hallich also acknowledged that if the fans were on inside the home, the circulation would have made it feel cooler inside the home. On September 19, 2017, Mr. Hallich issued a Notice of Violation, stating the nature of the violation as: "No air conditioning and unsafe cooking practices being conducted." Mr. Hallich recommended the following action be taken: (1) "Must relocate all residence [sic] until all power has been restored[; (2)] All cooking must be conducted at least 10 feet away from the structure using a commercial cooking appliance." As to the violation found by Mr. Hallich with respect to the outside cooking device, Ms. Adams asked Mr. Hallich whether she could use it outside, and he told her that "it had to be 10 feet away from the structure for cooking." In issuing the Notice of Violation with respect to the cooking device, Mr. Hallich specifically relied on section 10.10.6.1 of the Florida Fire Prevention Code which provides as follows: For other than one- and two-family dwellings, no hibachi, grill, or other similar devices used for cooking, heating, or any other purpose shall be used or kindled on any Balcony, under any overhanging portion, or within 10 ft (3 m) of any structure. Mr. Hallich's reliance on section 10.10.6.1 of the Florida Fire Prevention Code is misplaced because Adams Group Home #2 is a single-family dwelling. As a single- family dwelling, Respondents' group home is exempt from section 10.10.6.1. In any event, APD failed to present clear and convincing evidence that the cooking device was located within ten feet of the single-family dwelling. In addition, APD failed to present clear and convincing evidence that any residents of the group home were taken to the hospital or were not properly cared for by Respondents because of the lack of air conditioning. In sum, APD failed to present clear and convincing evidence at hearing to demonstrate a violation of rule 65G- 2.009(1)(d) and section 393.13.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that that the Agency for Persons with Disability enter a final order granting Respondents' applications for licensure renewal.3/ DONE AND ENTERED this 22nd day of August, 2018, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 22nd day of August, 2018.
