Findings Of Fact Martin R. McAndrew is a licensed general contractor and licensed pool contractor holding general contractor's license number RG 0020560 and pool contractor's license number RP 0024861. Martin R. McAndrew was provided notice in accordance with the applicable rules and statutes of the formal hearing to consider the allegations of the administrative complaint filed against him by the Florida Construction Industry Licensing Board. Ray Dowell identified a notice of violation served on McAndrew by the Florida Construction Industry Licensing Board which was received into evidence as Exhibit 1. This notice of violation related to the construction undertaken by McAndrew for Lynn McMillan. Melvin C. Huebschman entered into a contract with McAndrew for the construction of a pool. The contract price for the pool was $5,000.00. Huebschman paid McAndrew $2,000 in two payments. The first payment was in the amount of $300.00 to cover the cost of transportation of the pool materials to Pensacola, Florida. The second payment in the amount of $1,700.00 was for the first phrase of construction on the pool. Subsequent to receiving payment McAndrew provided no materials or labor pursuant to the contract. Huebschman talked with McAndrew concerning completion of the work pursuant to the contract and McAndrew failed to perform under the contract throughout the spring and summer of 1977. In August, 1977, Huebschman wrote McAndrew advising him that it had been over ninety days since they entered into the contract and McAndrew had not performed any services pursuant to the contract. Huebschman gave McAndrew thirty days within which to commence work. McAndrew did not respond to this notice. McAndrew did not return any portion of the $2,000.00 paid to him by Huebschman. Lynn McMillan entered into a contract, identified as a portion of Exhibit 4, with McAndrew. This contract called for the construction of a pool for a contract price of $5,800.00. Pursuant to that contract, McMillan paid to McAndrew $4,350.00. Subsequent to payment of the third draw, McAndrew failed to complete the job. The last work performed by McAndrew on this construction project was on May 17, 1977. Prior to May 17, 1977, all materials for completing the pool were on the site and installed. Before abandoning the project, McAndrew removed from the building site all portions of the pool construction except the poured concrete and vinyl lining. McMillan subsequently entered into a contract with Surf Side Pools for the completion of the pool. The contract price was $1275.00, which included $800.00 for equipment and materials necessary to complete the pool. In addition, McMillan found it necessary to pay $230.00 to O'Brian Enterprises to remove stumps and spoil left on the construction project by McAndrew. McMillan also paid $200.00 to Warrick Electric Company to satisfy a claim by Warrick for materials and labor provided by Warrick to McAndrew. Finally, American Ready Mix Concrete filed a claim of lien in the amount of $436.80 against the property of Lynn McMillan for labor and materials provided under the contract with McAndrew which McAndrew did not pay. On May 27, 1977, McAndrew wrote a letter to McMillan advising that he would like the opportunity to finish the pool and was invited to do so. However, McAndrew did not return to the construction site or provide any further labor or materials pursuant to the contract. Sarah White Witt entered into a contract with McAndrew for the construction of a pool at a contract price of $4,500.00. Witt paid McAndrew $500.00; however McAndrew did not finish the pool construction. Subsequently, Witt was advised by the materialmen and labors of various liens against her property totalling $2,200.00. Daryl Jernigan, electrical and pool inspector for Escambia County, inspected the work done by McAndrew on the McMillan pool. He found that the pool had been filled with water but that the equipment necessary to recirculate and chlorinate the water had been removed from the pool, thereby permitting the water to stagnate. This inspection was conducted in June, 1977. Prior to that time, Jernigan had found it necessary to order work on a pool begun by McAndrew halted because McAndrew had failed to acquire a building permit prior to commencing construction.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that Florida Construction Industry Licensing Board revoke the licenses of Martin R. McAndrew as a general contractor and as a pool contractor, and further fined a sum of $500.00. DONE and ORDERED this 24th day of May, 1978, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: J. K. Linnan Executive Director Florida Construction Industry Licensing Board P. O. Box 8621 Jacksonville, Florida 32211 Michael E. Egan, Esquire Attorney at Law 217 South Adams Tallahassee, Florida Martin R. McAndrew 3313 N. 17th Avenue Pensacola, Florida 32502
Findings Of Fact Respondent is the holder of currently active General Contractor's license No. RG-0023888. On January 18, 1977, Norwood W. Hope (hereinafter "Developer") entered into a contract with Respondent for the construction of a commercial swimming pool. Respondent was to have been paid the amount of $43,346.40 under the contract for construction of the pool. The contract amount was to be paid pursuant to a five-stage draw schedule as follows: 1. Framing and steel draw paid $10,836.60 2. Gunite draw paid 10,836.60 3. Mancite draw 7,224.40 4. Equipment set draw 7,224.40 5. Final approval draw 7,224.40 Respondent made application for an Alachua County building permit for the swimming pool project on February 23, 1977. The permit application was approved on February 25, 1977, and a building permit was issued. Thereafter, the project received Alachua County approval on a temporary power pole inspection on June 1, 1977. An interim inspection of the property was made by Alachua County officials on November 7, 1977, with no deficiencies noted. A final inspection on the electrical work on the project was made, with satisfactory results, on November 8, 1977. The Alachua County Building Code, by incorporation of the 1973 Southern Standard Building Code, 1974 Revision, provides, in part, as follows: 108.2--INSPECTIONS REQUIRED The Building Official shall inspect or cause to be inspected at various intervals all construction or work for which a permit is required, and a final inspection shall be made of every building or structure upon completion, prior to the issuance of the Certificate of Occupancy, as required in Section 109. * * * (c) The Building Official upon notifica- tion from the permit holder or his agent shall make the following inspections of buildings and such other inspections as may be necessary, and shall either approve that portion of the construction as completed or shall notify the permit bolder or his agent wherein the same fails to comply with the law: * * * Final Inspection: To be made after the building is completed and ready for occupancy. (Emphasis added). The contract entered into on January 18, 1977 between the Developer and Respondent called for Respondent to construct the swimming pool according to the plans and specifications admitted into evidence as Petitioner's Exhibit No. 1. Associated construction, including construction of concrete pool decking, a pumphouse and a fence surrounding the swimming pool site were either completed by the Developer or by other sub contractors. By invoice dated October 12, 1977, Respondent requested a final draw on the project in the amount of 87,000, which, if paid, would have left only $224.40 unpaid under the contract. This draw request indicated that a balance due for extra time and materials would be billed ". . . upon acceptance of total pool." (Respondent's Exhibit No. 4). On October 25, 1977, the Developer paid $6,000 of the $7,000 requested to be paid by Respondent's invoice of October 12, 1977. The Developer contested Respondent's expressed intention to bill for additional time and material, asserting that the Developer had not approved any additional sums for extras. In remitting the $6,000 payment to Respondent, the Developer indicated that "[t]his leaves a balance on our account of $1,224.40, which will be paid upon checking out the pool." (Respondent's Exhibit No. 2). (Emphasis added.) An invoice for back charges on the swimming pool project in the amount of $274 was forwarded to the Developer by Respondent by invoice dated November 8, 1977. In addition, on November 8, 1977, Respondent also invoiced the Developer for a final draw on the project in the amount of $1,224.40. At some time after notification from the Developer's representatives that tile targets in the racing lanes of the pool were improperly located, Respondent returned to the job site after November 9, 1977 to relocate the targets. Respondent performed this work as a result of a written request from the Developer dated November 9, 1977. Respondent completed primary construction of the pool prior to submission of the final draw request of October 12, 1977. At that time, back- filling around the exterior of the pool structure preparatory to the pouring of the concrete pool decking had not been completed. Although by October 12, 1977, Respondent had removed much of the excess dirt and debris from around the edges of the pool. There were still areas of exposed piping which would, in due course, be covered with back-fill and tamped by the decking subcontractor. Respondent did not attempt to back-fill or tamp any areas around the pool's piping system. At some time subsequent to October 12, 1977, which date is not clearly reflected in this record, a separate sub- contractor completed back-filling work around the pool, and poured the concrete decking. Neither the Developer nor his subcontractor advised Respondent that the back-filling had been accomplished and that the deck was to be poured. Prior to October 12, 1977, Respondent "pressure tested" the pool's piping system, and determined that the pool would hold water at a level above its scum gutters. The results of this testing indicated that, at least as of October 12, 1977, there was no leakage from the pool. Standard practice in the pool construction industry dictates that a minimum of three pressure tests be made of a pool's piping system during the course of construction. The first of these tests should occur immediately after installation of the pipes, and a second test should be performed immediately before final back-filling to cover the pipe system. A final pressure test should be conducted after tamping of the fill and prior to the pouring of concrete for the pool deck. The obvious purpose of this system of pressure testing is to discover any water leaks before concrete pool decking is poured to avoid having to cut out sections of the concrete in order to locate leaks. Because the Developer and his subcontractor failed to notify Respondent of further work being done on the pool. Respondent was unable to perform a pressure test either after back-filling was completed, after the back- fill had been tamped and before the concrete deck was poured. By letter dated January 17, 1978, Respondent was furnished by the Developer with a "punch list" indicating several areas of deficiency that needed to be corrected in the pool. In that letter the Developer requested that Respondent complete the necessary work within seven days. The Developer forwarded a second letter to Respondent dated February 23, 1978 advising Respondent that the punch list items had not been corrected, and urging Respondent to complete the work described in the punch list as soon as possible. From receipt of the punch list in January of 1978 through the middle of March, 1978 Respondent had workers on the job intermittently making the corrections indicated in the punch list. Respondent satisfactorily corrected fifteen of the eighteen items listed as defective n the punch list. Some of the items were repaired by other subcontractors. Respondent had difficulty obtaining some items of equipment, which he was required to back-order. When the back-ordered equipment was slow in arriving, the Developer opted to obtain these items from a source other than Respondent. Respondent replaced a defective pump associated with the pool construction at some time subsequent to January 18, 1977. The last work performed by Respondent on the pool project occurred some time between March 10 and March 16, 1978. At no time thereafter was Respondent ever advised by the Developer that any work performed under the contract was either unsatisfactory or incomplete. The pool received a final State of Florida, Department of Health and Rehabilitative Services inspection on July 13, 1978, at which time all necessary permits for operation of the pool under applicable regulations were issued. Respondent at no time requested that Alachua County officials come to the job site to conduct the necessary final inspection of the project, nor did he advise the Developer of the necessity to do so. At some time during 1979, subsequent to the completion of the swimming pool project, the Developer discovered that the pool was losing water at a rate of approximately 2,100 gallons per day. During this period, the water level inside the pool would drop to a level equal to the piping running around the exterior of the pool shell and under the pool decking. When the Developer was unable to ascertain the cause of the leak, an outside subcontractor was hired to check the pool. This sub- contractor performed pressure tests on the pool's piping system in an attempt to determine whether the leakage was occurring through the pipes. These tests apparently showed no leakage through the piping system. The Developer then caused the concrete decking around the edge of the pool to be removed in order to more closely inspect the interior piping. At this point it was discovered that there existed flaws and breaks in the neoprene piping surrounding the exterior shell of the pool. After repairs to the damaged piping, the pool decking was repoured and there has been no subsequent leakage problem in the pool. The Developer incurred expenses in the amount of $2,288 in removing the decking around the pool and repairing the neoprene piping. Because of the fact that several subcontractors in addition to Respondent worked in the pool area during construction of the pool project, it is impossible on the basis of this record to determine the cause of the damage to the neoprene piping. Respondent's testimony is uncontroverted that pressure testing performed prior to the conclusion of primary work on the pool in October of 1977 showed no leakage through the pool's piping system. Further, at the conclusion of the primary work in October, 1977, much of the pool's piping system was left exposed and could have been damaged either by the Developer's own workers or by employees of other subcontractors in the course of back- filling and tamping fill material preparatory to pouring concrete decking. The Developer's failure to advise Respondent of the schedule for back-filling, tamping and pouring of concrete deprived Respondent of an opportunity to properly pressure test the piping system at appropriate stages of construction. Respondent has submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings of fact are not incorporated in this Recommended Order, they have been rejected as being either irrelevant to the subject matter of this proceeding or as not having been supported by the evidence.
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 The issue is whether Respondent violated Subsection 489.129(1)(m), Florida Statutes (1997), by allegedly committing incompetence or misconduct by "poor soil compaction" and by failing to honor the terms of a written warranty.
Findings Of Fact The four-count Administrative Complaint contains factual allegations in 15 numbered paragraphs. Respondent does not dispute paragraphs 1 through 9, 14, and 15. Petitioner is the state agency statutorily charged with regulating pool contracting in the state. At all times material to this proceeding, Respondent has been licensed as a pool contractor pursuant to license number CP C052509. Respondent's business address is Bazar Pools, Inc., 6214 All America Boulevard, Orlando, Florida 32810. On March 6, 1998, Respondent entered into a written contract with Mr. Rex Davidson (the contract). Respondent agreed to construct a residential cantilever deck swimming pool at Davidson's residence located at 2800 Granada Boulevard, Kissimmee, Florida (the pool). Mr. Davidson agreed to pay $19,300 for the pool. Respondent completed the pool sometime in April 1998. Mr. Davidson paid the full amount due under the contract. The contract warranted the "pool structure" for the time that Mr. Davidson owned the pool. Sometime in July of 2000, a crack emerged around the top edge of the pool above the tiles that lined the upper edge of the pool. As the crack worsened, the tiles began to fall off the pool. Respondent did not repair the crack and tiles. Mr. Davidson paid approximately $7,025 to a company identified in the record as Blue Diamond to repair the crack and tile. The contract did not include Respondent's license number. Respondent did not obtain a certificate of authority to do business as Bazar Pools, Inc., at the time he entered into the contract. The contract did not contain a written explanation of consumer rights under the Construction Industry Recovery Fund. Respondent does not dispute Counts II through IV of the Administrative Complaint charging that the acts described in this paragraph violated Subsection 489.129(1)(i), Florida Statutes (1997). Respondent disputes the charge in Count I of the Administrative Complaint that Respondent committed incompetence or misconduct. Paragraphs 10 through 12 of the Administrative Complaint contain the only factual allegations relevant to the charge of incompetence or misconduct. The disputed factual allegations state: Around July of 2000, the pool developed a crack which extended around the entire perimeter and caused the tiles to fall off because of poor soil compaction. The pool's structure is warranted to remain structurally sound for the period of time that it is owned by the original owner. Mr. Davidson contacted Respondent to get the pool repaired, but Respondent failed to take corrective action. The literal terms of allegations in paragraph 10 of the Administrative Complaint led the trier of fact to expect Petitioner to show that Respondent improperly compacted soil under the deck and thereby allowed the deck to settle. However, Petitioner submitted little, if any, evidence pertaining to how Respondent compacted the soil under the deck before Respondent poured the concrete deck. Respondent obtained the three required county inspection approvals before each step in the construction of the pool. The inspections included an inspection to ensure proper soil grade prior to pouring the pool deck. The inspections ensured that Respondent constructed the pool in accordance with stamped engineering drawings that the county required Respondent to file as a prerequisite for a building permit from the county. The vast majority of the evidence that Petitioner submitted during the hearing was relevant to allegations that Respondent committed incompetence and misconduct in two ways. First, Respondent arguably constructed the pool shell and deck as a unitized structure so that the crack and tile problems evolved as the deck settled when underlying soil compacted. Second, Respondent arguably failed to honor the warranty in the contract. As a threshold matter, paragraph 10 in the Administrative Complaint does not allege that Respondent committed incompetence or misconduct by poor pool construction. Rather, paragraph 10 alleges only that a crack developed in the pool and tiles fell off because of "poor soil compaction." Nevertheless, the parties spent substantial hearing time submitting evidence relevant to allegations of incompetence and misconduct not specifically alleged in the Administrative Complaint. In order to prove that Respondent committed incompetence and misconduct by poor pool construction, Petitioner relies on expert opinion to show that Respondent constructed the pool and deck as a unitized structure. Petitioner's expert opined that Respondent must have connected the concrete pool shell to the concrete deck either by steel rods, identified in the record as rebar, or by a mechanical bond between the top of the pool shell and the bottom of the deck. The expert reasoned that settling of the deck could not have caused the crack in the pool unless the deck and pool shell were connected as a unitized body. Several flaws in the expert opinion offered by Petitioner prevent that testimony from reaching the level of clear and convincing evidence. Petitioner's expert did not relate his opinion to facts in evidence. First, Petitioner's expert never inspected the original construction of the pool. The expert visually inspected only the repaired pool and based his opinion on an hour and a-half inspection of the repaired pool. Counsel for Petitioner illustrated the inherent problem in such testimony when he objected to the testimony of one of Respondent's experts on the grounds that the opinion was based on a post-repair inspection. Counsel for Petitioner explained the problem as follows: Objection. Your Honor, [Respondent's expert] is testifying based on his observations of the pool as repaired by Blue Diamond. He never did - he never has made a personal observation of the pool prior to that repair when it was in the condition attributable to [Respondent's] construction method. So, he's testifying without any particular personal knowledge relative to [Respondent's] conduct. Transcript (TR) at 220-221. When Petitioner's expert inspected the post-repair pool, he did not remove the deck to determine whether the top of the pool shell was, in fact, either connected by steel to the deck or otherwise mechanically bonded to the deck. The only competent and substantial evidence in the record of whether the pool shell and the deck were constructed as a unitized structure came from Respondent. Respondent did not use rebar to connect the pool shell to the pool deck. Respondent stopped the rebar approximately two inches below the top of the pool shell. Respondent used mortar, identified in the record as "mud," to smooth variations or undulations, in the top edge of the pool shell and thereby bring the entire top edge of the pool shell up to "dead level." The maximum variation in the top edge of the pool shell prior to leveling did not exceed 1.25 inches. After the mud dried, Respondent intentionally did not clean the top edge of the pool shell. The dirt and debris remaining on the top edge of the pool shell would normally prevent a mechanical bond between the top of the pool shell and the bottom of the concrete deck. The construction technique used by Respondent to construct the pool complies with generally accepted standards for the industry. Respondent has constructed over a thousand pools since 1987 using the same or similar construction techniques. He generally constructs large residential pools in "high-end" neighborhoods that cost customers $40,000 or more, but has constructed some commercial pools. Respondent has never had this problem with his other pools and has never had any previous discipline against his license. The expert opinion offered by Petitioner has another flaw that keeps the testimony from being clear and convincing to the trier of fact. The expert concludes that the deck settled, in relevant part, because "the pool cracked and the tile fell off." In an interrelated ratiocination, the expert concludes that the pool cracked and the tile fell off because the deck settled. Petitioner's expert also concluded that the deck settled because he observed cracks in the deck when he visually inspected the post-repair pool in 2004. He concluded from the cracks he observed in 2004 that settling of the deck in 2000 caused the crack in the pool and the tile problems. Petitioner's expert did not measure the cracks or inspect them to determine if any differential existed in the cracks that would suggest soil compaction under the deck. Petitioner's expert is an expert in pool construction, but is not an expert in pool engineering and design. One of Respondent's expert witnesses is an expert in pool engineering and design. He concluded that the deck did not settle in 2000. The characteristics of the cracks in the post-repair deck in 2004 were consistent with cracks caused by heat expansion and contraction from cooling when joints in the concrete were improperly spaced. The cracks did not exhibit differential settling of the deck. The theory that the crack in the pool and tile problems could not have occurred "but for" the settling of the deck is less than clear and convincing. Faulty installation of the tile by subcontractors is a more likely cause of the problems with the pool and the tile. However, Petitioner neither alleged that Respondent engaged in such acts or that Respondent's license is subject to discipline for the acts of his subcontractors. Finally, the testimony of Petitioner's expert is based on subjective standards while the testimony of Respondent's experts is based on intelligible standards published for the entire industry. Petitioner's expert opined that Respondent committed incompetence and misconduct in constructing the pool based on the expert's personal experience and on the way the expert has constructed pools for many years. Respondent's two experts opined that Respondent complied with written standards of workmanship published by the National Spa and Pool Institute in June 1996 (Workmanship Standards). Aside from whether the pool and deck were joined as a unitized structure, Petitioner's expert opined that Respondent "shot" the pool shell about two inches short of where it should have been, used mud to build up the pool shell, and applied tile over the resulting "cold joint" between the top of the pool shell and the bottom of the deck. Petitioner's expert opined that laying tile over a cold joint is incompetence and misconduct in his experience. Respondent's experts disagree. They opined that laying tile over a cold joint is the normal practice in the industry. Petitioner's expert agreed that it is commonplace for contractors to lay tile over a cold joint and that problems arise in only one in fifty jobs. The trier of fact has discussed the competing testimony of the parties' experts to illustrate that the burden of proof is the fulcrum of decision in this case. The applicable burden of proof does not require a preponderance of evidence to show that Respondent constructed the pool in a competent manner. Rather, the trier of fact need only find that the evidence is less than clear and convincing that Respondent committed incompetence or misconduct in constructing the pool. The remaining allegation is that Respondent committed incompetence and misconduct by failing to honor the warranty and repair the pool. The evidence is less than clear and convincing that Respondent failed to honor the warranty. Sometime in June 2001, Mr. Davidson verbally complained to Respondent that a crack around the pool above the tile line had developed and that tiles around the top edge of the pool were detaching from the pool. Respondent sent a company representative to the site to evaluate the problem. Respondent also sent a service representative to the site to retrieve some of the tiles. Sometime in July 2001, Mr. Davidson again verbally complained to Respondent about the crack and tiles. By letter dated August 8, 2001, Mr. Davidson notified Respondent that a crack had developed behind the tiles sometime in the summer of 2000. The letter stated that the tiles were falling off of the side of the pool. Respondent offered to provide Mr. Davidson with an estimate of the cost of repair. Mr. Davidson elected to have Blue Diamond make the repairs. The pool structure was warranted for the time that Mr. Davidson owned the pool. It is undisputed that the pool shell was well made and water tight. The parties dispute whether the pool structure included the one or two-inch area between the top of the pool shell and the deck, as well as the deck. The contract defined the pool structure by excluding the deck, equipment, tile, and any item other than the pool shell. The definition in the contract is consistent with that in the Workmanship Standards. Petitioner's attempt to rely on a general definition of the term "structure" in a dictionary is not persuasive when considered in the light of the definitions in the contract and the Workmanship Standards. Alternatively, Petitioner argues that the pool structure included the deck and intervening area because all of the parts were constructed as a unitized structure. Based on previous findings, the evidence is less than clear and convincing that the pool shell and deck were constructed as a unitized structure.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of Counts II through IV of the Administrative Complaint and not guilty of Count I. DONE AND ENTERED this 21st day of December, 2004, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 21st day of December, 2004. COPIES FURNISHED: Charles J. Pellegrini, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 John A. Shughart, Jr., Esquire Law Offices of John A. Shughart, Jr. 500 North Maitland Avenue, Suite 305A Maitland, Florida 32751 Miriam S. Wilkinson, Esquire McConnaughhay, Duffy, Coonrod, Pope & Weaver, P.A. 101 North Monroe Street, Suite 900 Post Office Drawer 229 Tallahassee, Florida 32302 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Tim Vaccaro, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Atlas Pools, Inc., contracted with Mr. and Mrs. Jerry Thompson in May, 1978, to construct a swimming pool on the Thompson property for a completed price of $5,940. Work ceased in mid-July, 1978, by which time the Thompsons had paid Atlas Pools $5,643. The Thompsons hired another pool contractor to complete the project at additional cost in excess of $2,000. Atlas Pools contracted with Mr. and Mrs. Dennis Perry in June, 1978, to construct a swimming pool on the Perry property for a completed cost of $5,770. Work ceased in late July, 1978, after the Perrys had paid Atlas Pools $5,474.50. The Perrys completed the project through self-help and use of another pool contractor at a further cost of $1,566. Atlas Pools contracted with Mr. and Mrs. Thomas Wolters in June, 1978, to construct a swimming pool on the Wolters' property for a completed cost of $6,980. Work ceased in mid-July, 1978, after the Wolters had paid Atlas Pools $6,631. The Wolters completed the pool through self help at an additional cost in excess of $1,300. Atlas Pools contracted with Mr. and Mrs. Albert Sentman in June, 1978, to construct a spa on the Sentman property for a completed cost of $5,500. The Sentmans paid Atlas Pools a $550 deposit after which the spa was delivered but not installed. The Sentmans completed the project by other means at an additional cost of $6,137. Respondent abandoned each of the above projects without notice to the customer, who ultimately learned of the company's bankruptcy from a third party source. Each of the four projects described above was completed at a final cost to the purchaser in excess of $900 over the contract price. The company filed a Voluntary Petition of Bankruptcy with the U.S. District Court, Middle District of Florida, on August 1, 1978. Thereafter, on March 7, 1979, the Brevard County Contractors Licensing Board revoked the certificate held by Atlas Pools for a minimum period of one year, with the requirement that financial rehabilitation be demonstrated as a condition of reinstatement. At the time of bankruptcy, Respondent was president of Atlas Pools, Inc., and owned one-third of the stock. He was, at all times relevant to this proceeding, the company's only licensed pool contractor. He is currently employed in pool construction work by a licensed contractor. Proposed findings of fact were submitted by the parties. To the extent these proposed findings have not been adopted herein or are inconsistent with the above findings, they have been specifically rejected as irrelevant or not supported by the evidence.
Recommendation Based on the foregoing, it is RECOMMENDED: That Pool Contractor's License No. RP 0018040 issued to Crawford L. Grove, be suspended until Respondent demonstrates compliance with the financial responsibility standards established by Section 489.115, Florida Statutes (1979). DONE AND ENTERED this 29th day of October, 1980, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 29th day of October, 1980.
The Issue Whether Respondent's license as a registered pool contractor should be suspended or revoked or the licensee otherwise disciplined, for alleged violations of Chapter 489, Florida Statutes, as set forth in the Amended Administrative Complaint. This proceeding arises out of Respondent's alleged failure to remedy defects in a swimming pool that she built in 1981 which resulted in disciplinary action by the Leon County Contractor's Licensing and Examination Board; for failing to remedy defects in another pool that she built in 1981 whereby she allegedly made fraudulent representations and failed to honor a warranty; and for constructing a pool in 1982 after her Certificate of Competency had been revoked by the Leon County Contractor's Licensing and Examination Board. Respondent appeared at the hearing without counsel, and was thereupon advised of her rights and the procedures applicable to an administrative proceeding. She indicated that she understood such rights and elected to represent herself. At the hearing, Petitioner presented the testimony of nine witnesses and submitted 22 exhibits in evidence. Respondent testified in her own behalf, but did not submit any documentary evidence. Petitioner's Proposed Recommended Order has been fully considered, and those portions thereof not adopted herein are considered to be either unnecessary, irrelevant, or unsupported in law or fact, and are specifically rejected.
Findings Of Fact Respondent Laura H. Eubanks is a state registered commercial pool contractor who operates Eubanks Company Big Bend Pool Builders, Tallahassee, Florida. She was originally licensed in 1975 and remained licensed at all pertinent times relative to this proceeding, but her license was in a delinquent status as of July 1, 1983. (Petitioner's Exhibit 1) On May 2, 1981, Respondent entered into an agreement with Thomas V. and Barbara J. Mulqueen, Jr., 6719 Johnston Loop, Tallahassee, Florida, for the sale and installation of a swimming pool at their residence for the amount of $6,725.63. On September 22, 1981, Mr. Mulqueen filed a complaint against Respondent with the Leon County Contractors Licensing and Examination Board. Mr. Olin Williams, Supervisor of Inspections for the Board, investigated the complaint and found that staples were protruding underneath the pool liner, that a water pipe leaked at the pump, apron or deck concrete cracks were caused by curing tension at inside corners, about 35 percent of the concrete deck was darker in color than the remainder of the deck, an improperly placed outlet for the pool drain permitted seepage under the pool liner, and that repairs to a neighbor's fence and the owner's driveway had not been completed. He classified those discrepancies as pertaining to workmanship. In addition, he determined that there had been a violation of the health code in that a septic tank had been broken by workmen and waste sewage had flowed into the pool excavation for a period of several days. The owner was seeking to have Respondent correct the problems and complete the job. Inspector Williams contacted the Respondent on October 12, 1981, and, although she told him that she would come to his office that day and bring the individual responsible for the job, she failed to do so. No final inspection of the work had been requested by Respondent. (Testimony of Williams, Petitioner's Exhibit 4) By letter dated November 12, 1981, Respondent was advised by the Leon County Contractors Licensing and Examination Board that a formal hearing had been scheduled on the complaint for December 3, 1981. A copy of the complaint and the Building Inspector's Report was enclosed, and she was advised of her right to be represented by counsel at the hearing. In fact, the hearing by the Board was held on December 4, 1981, at which the Mulqueens were present and presented their complaint, and Inspector Williams informed the Board of his investigation and subsequent actions. Respondent was not present at the hearing, although the certified mail receipt reflected the signature of "L. H. Eubanks." At the December 4th meeting, the Board voted to suspend Respondent's license with the provision that the Board would not consider reinstatement unless repairs to the Mulqueen pool were made within thirty days after December 9, 1981, and if not, then the Board would consider permanent revocation. (Petitioner's Exhibits 5-6) By letter of January 12, 1982, the Board advised Respondent of the suspension of her license as a result of a hearing held on December 3, 1981. (No explanation was provided by Petitioner as to the discrepancy in the minutes of the Board meeting which reflected a date of December 4, 1931, and the letters sent to Respondent which stated that the hearing had been held on December 3, 1981.) Respondent was advised in the letter that the Board would not consider any application for reinstatement of Respondent's license unless repairs were effected to the Mulqueen pool within thirty days from receipt of the letter. She was further advised that if they had not been so completed, the Board would consider permanent revocation of her license, but if they had been completed within the required time, the Board would consider a written application for reinstatement at its meeting scheduled for January 28, 1982. This letter was hand delivered to Respondent's place of business on January 18, 1982. On January 20, 1982, Respondent telephoned Inspector Williams and stated that she would seek legal counsel and be at the Board meeting on January 28. She indicated to him that she had had some personal problems due to the illness of her sisters, and also had been the subject of theft (although a memo of Williams reflecting the telephone call was dated January 20, 1981, it was apparent from his testimony that the call was made on January 20, 1982.) (Testimony of Williams, Petitioner's Exhibits 7, 18) The Licensing Board met on January 28, 1982, and determined that Respondent's license would be revoked on February 26, 1982, if the previously noted defects had not been corrected. By letter dated February 3, 1982, she was advised by the Board of this fact and that the Board would meet again on February 25 concerning the matter. On February 25, the Board revoked Respondent's license. She was not present at the meeting. She was advised of this action by Letter of the Board, dated March 4, 1982. (Petitioner's Exhibits 2, 8-10) By contract dated July 15, 1981, Respondent agreed to install a swimming pool for Mr. and Mrs. Rex Tyler at their residence in Tallahassee, Florida, for the sum of $23,784.91. The project included installation of aluminum fencing and a brick wall, together with various items of pool equipment. The agreement provided that the contractor would remedy any defects in workmanship without cost, provided written notice was provided within one year after connection of the filter. After the pool was built and paid for by the Tylers, it was found that several problems existed. A pool light continuously went on and off improperly, the motor of the pool sweep leaked, the bottom drain was not adequately secured and would be knocked off by operation of the pool sweep, step tiles were not complete, one tile popped loose, and water faucets leaked. The primary problem, however, was that the main drain would not circulate water on the bottom of the pool. The Respondent was notified of these problems by the owners and repaired some of them over the course of time, but was unable to fix the pool light or the main drain. In this regard, Respondent called upon Walter Swans, another licensed pool contractor, who determined that both the light and the drain were stopped up with "marble" finish. The Tylers were obliged to spend $312.74 to pay Swann's bill and for a plumber to repair the leaking faucets. (Testimony of McCausland, A. Tyler, Clemens, Swann, Petitioner's Exhibits 21-23) By agreement dated May 28, 1982, Respondent contracted with Charles and Brenda Short for the installation of a swimming pool at 3249 Baldwin Drive West, Tallahassee, Florida, for a price of $6,809.20. During the course of construction, Mr. Short inquired of Respondent as to the need for a building permit. She initially told him that she would get one, but later when Short asked her again about the matter, she told him that if he didn't want one it would be all right with her because otherwise it would hold up completion of the pool. Short told her that that was all right with him. He was not familiar with permit requirements. After the walls of the pool had been finished, heavy rains caused the sides of the pool to partially collapse. Inspector Williams was notified of the problem and he found that the work was being done without the required permit. He therefore posted a stop work order at the construction site. On September 1, 1982, Respondent entered a plea of nolo contendere to a charge of contracting without a license in violation of Section 489.127(1)(f), Florida Statutes, in the Leon County Court, Case No. 82MM2702. The Court withheld adjudication of guilt and imposition of sentence and placed the Respondent on probation for a period of six months. The Shorts had paid Respondent a total of $4,000 on the contract price at the time work was stopped on the pool project. They eventually settled the matter with Respondent by agreement. (Testimony of Brenda Short, Charles Short, Courtney, Williams, Petitioner's Exhibits 12, 19-20) In a civil proceeding filed by the Mulqueens against Respondent in the Leon County Circuit Court, Case No. 82-68 the parties entered into a joint stipulation of settlement under which Respondent agreed by promissory note to pay the Mulqueens the sum of $2400 with interest by 24 monthly payments of $100.00 commencing January 1, 1983. On January 27, 1983, the Leon County Contractors Licensing Examination Board reinstated Respondent's license, subject to a 12 month probationary period. By letter October 24, 1983, Mr. Mulqueen advised the County Building Inspector that Respondent had only made two payments on the settlement agreement as of March 1983. (Testimony of Courtney, Petitioner's Exhibits 13-16) Section 2C, Leon County Ordinance No. 74-22, provides that its Contractors Licensing and Examination Board has the duty to suspend or revoke "authorized contractor" certificates for violation of the ordinance, violation of the County Building and Zoning Codes, or violation of any other state, municipal, or county law upon due cause shown to the Board after a hearing. Section 1E provides that the Board must provide the certificate holder with written notice of its intent to consider the revocation or suspension of the certificate, and afford him a hearing before the Board, and that all decisions concerning suspension of revocation of certificates shall be in writing. (Petitioner's Exhibit 17) Respondent testified at the hearing that she had had continuing financial problems commencing a number of years ago when some of her employees were building pools "on the side" with her materials. During the time that problems arose in connection with the Mulqueen and Tyler pools, she was preoccupied with serious personal problems involving her sisters, one of whom died of cancer and the other having been in a mental hospital. She acknowledged that she should have corrected the customer complaints and regrets that she did not do so. Respondent further stated that although she attempted to pay her note to the Mulqueens, her financial situation was such that she was unable to continue meeting the payments. Although she received notice of the various hearings before the Leon County Contractors Licensing and Examination Board, she testified that she had not been thinking of the consequences and didn't even read the letters of notification which were sent to her. She also acknowledged entering into the contract with the Shorts because she was "desperate" for money to pay her various creditors. (Testimony of Eubanks)
Recommendation That the Construction Industry Licensing Board enter a final order suspending the registration of Respondent Laura H. Eubanks as a pool contractor for a period of three months. DONE and ORDERED this 29th day of December, 1983, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 1983. COPIES FURNISHED: James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Stephanie A. Daniel, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Laura H. Eubanks 1421 North Monroe Street Tallahassee, Florida 32303 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, vs. CASE NOS. 21738, 20754, 25386 LAURA H. EUBANKS DOAH CASE NO. 83-2362 737 North Monroe Street Tallahassee, Florida 32303 Respondent. /
The Issue The issue is whether the Respondent is subject to discipline for permitting his general contractor's license to be used by another person to construct a swimming pool, thereby conspiring with an unlicensed person to avoid statutory licensure requirements, and by failing to oversee the quality of the work performed by that person under Respondent's license.
Findings Of Fact The Petitioner is the state agency responsible to prosecute administrative complaints under Chapters 455 and 489, Florida Statutes, and the rules implementing those statutes. At all times material to the complaint, Raymond Hurley was licensed as a certified general contractor, holding Florida license CGC 000773 and served as the qualifying agent for Capital Resources and Development, Inc. Kenneth R. and Lucille M. Clopper, of Fort Pierce, Florida, entered into a contract with Fred Humberstone, doing business as Southern Fiberglass Pools of the Treasure Coast, Inc., on September 21, 1987, for the construction of a pool and screened enclosure at the Clopper's home. The contract price was $15,500. Mr. Humberstone has never been a qualified contractor in St. Lucie County, Florida. Mr. Hurley became authorized to do business as a contractor in St. Lucie County, Florida, on September 29, 1987, when he provided a copy of his state certified general contractor's license, a certificate of insurance for worker's compensation and general liability property damage insurance to St. Lucie County. St. Lucie County Permit No. 44574 was issued to Capital Resources and Development, Inc., on October 9, 1987. The permit application had been dated September 24, 1987. The application bore Mr. Hurley's contractor license number. In the space for the name of the company, the application had originally been written in the name of Southern Fiberglass Pools of the Treasure Coast, of Stuart, Florida. The name of the applicant had been scratched through, and the name of Capital Resources and Development, Inc., was written over it. The application bears a handwritten signature which reads Raymond S. Hurley, but it is not his signature. Mr. Hurley did not sign the application, or authorize anyone to sign it for him. Mr. Hurley knew Mr. Humberstone, the owner of Southern Fiberglass Pools of the Treasure Coast. Humberstone had difficulty with his corporation because his qualifying contractor had left, and Humberstone owned approximately $150,000 worth of equipment which he could not use without a qualifying contractor. Humberstone made a proposal to Hurley to become the qualifying contractor for Southern Fiberglass Pools of the Treasure Coast. It was about this time that Mr. Hurley first qualified to engage in the business of contracting in St. Lucie County. Mr. Humberstone must have pulled the permit for the Clopper jor, using Mr. Hurley's licensure in St. Lucie County. This is likely because at first, the line for the permit applicant had been filled in with the name of Humberstone's business, Southern Fiberglass Pools by the Treasure Coast. Mr. Hurley had become licensed in St. Lucie County because he was contemplating going into business with Mr. Humberstone. What cannot be determined from the evidence in the record is whether Mr. Hurley had agreed with Mr. Humberstone to make his licensure available to Mr. Humberstone so Humberstone could continue in the pool contracting business in St. Lucie County. Mr. Hurley did not sign the application for the permit at the Clopper's home. He never went to the Clopper's home to see the work or to meet the Cloppers. Had he gone into partnership with Humberstone he would likely have participated, to some extent, in the work. On this matter, the Department's proof is insufficient. After the construction at the Clopper home began, there were a number of delays in completion of the pool, and the contractor failed to install stress relief for the pool deck which resulted in cracking of the pool deck. The pool itself had three leaks. The problems with the pool remained unresolved and the Clopper's finally settled with Mr. Humberstone for payment for $1,020 in exchange for providing Mr. Humberstone with the release of liability. Ultimately, the Cloppers spend $1,659 to repair the problems created by Mr. Humberstone's inadequate work. Mr. Hurley was never at the job site, and the Cloppers never knew anything about him until after their pool had been completed; all of their dealings had been with Humberstone.
Recommendation It is recommended that the administrative complaint filed by the Construction Industry Licensing Board against Raymond Hurley be dismissed. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31st day of January 1991. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of January 1991. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-4233 Rulings on findings proposed by the Petitioner: 1-7. Accepted. 8. Rejected, as there is insufficient evidence to find that Mr. Hurley, although he knew Mr. Humberstone, had entered into any agreement Humberstone to become a qualifying contractor for Humberstone's corporation. While that is one inference which could be drawn from the evidence, the evidence is not strong enough to permit such finding, at the level of certainty required for clear and convincing evidence, to be made. Rulings on findings proposed by the Respondent: 1-6. Adopted 7. Rejected. There is insufficient evidence in the record to make specific finding with respect to handwriting exemplars, but the testimony of Mr. Hurley that he did not sign the St. Lucie County permit application has been accepted. Copies furnished: Robert B. Jurand, Esquire Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Glenn N. Blake, Esquire BLAKE & TORRES Strange Building 500 South US 1 Fort Pierce, Florida 34950 Robert E. Stone, Esquire SULLIVAN, STONE, SULLIVAN LaJOIE and THACKER 100 Avenue "A", Suite 1F Fort Pierce, Florida 34950 Daniel O'Brien, Executive Director Department of Professional Regulation Construction Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Petitioner is the Department of Professional Regulation. Respondent is James J. Hastings, the holder, at all times pertinent to these proceedings, of general contractor license number CG C009847. He is also the qualifying agent for Hastings Construction Co., Inc. James and Susan Cesiro, owners of a residence in Palm Bay, Florida, entered into a contract on June 13, 1985, with Mike Boyer, proprietor of a business known as American Fiberglass Pools, to furnish and install a swimming pool. The total contract price was $8500. The owners gave Boyer a $1,500 check at the time the contract was executed. On July 9, 1985, Boyer's employee obtained a second check from the owners for an additional $1,500 allegedly to complete the $3,000 required down payment. Unfortunately, the employee persuaded the owners to make this check payable to the employee personally. The employee subsequently disappeared after cashing the check. This complication resulted in some delay in the initiation of construction activities. On August 12, 1985, the owners were informed by Boyer that a contractor had been retained to install the fiberglass pool. On August 28, 1985, Respondent obtained a building permit from the City of Palm Bay authorizing the pool construction. The permit identified Respondent's company, Hastings Construction Co., Inc., as the contractor. The owners issued a check in the amount of $2,500 on September 6, 1985. Delivery of the check was made to Boyer, but was made payable to Respondent. In view of their past experience with furnishing a check payable to a party other than Boyer or his company, the owners obtained a receipt for the check from Boyer. The owners gave another check in the amount of $500 to Boyer on September 9, 1985. This check was also made payable to Respondent. Again, a receipt was obtained from Boyer by the owners. On September 23, 1985, Respondent personally received another check from the owners in the amount of $2,500. In September, 1985, after receipt of funds from the owners, Respondent and Boyer proceeded with the pool installation. While Boyer was present at the site more than Respondent, the Respondent was present every day at periodic intervals. The owners had the impression that Respondent was new at the installation of this type of pool. Boyer seemed to be more in charge of the construction and Respondent appeared to defer to him on questions asked by the owners during the installation process. This impression was confirmed at hearing by Respondent's admission that this was his first experience with this kind of pool. He had never "lifted pools over houses" and viewed the entire job as a "learning experience." Because of the tutorial nature of the situation, Respondent said he didn't enter into a formal contract with the owners. In May 1986, cracks appeared in the bottom of a portion of the pool. Respondent took the position that the pool should be repaired by Boyer under terms of the owners agreement with that individual. Respondent never prepared or accepted an assignment of the contract made by Boyer with the owners. Respondent is not an officer or employee of Boyer's business. Respondent is not a qualifying agent for Boyer or American Fiberglass Pools and those names do not appear on his license. The owners were never apprised that Respondent was "their" contractor. Respondent's testimony that a letter was sent from him to the owners on August 30, 1985, informing them of this fact is not credited in view of the Respondent's candor and demeanor while testifying on this point, the fact that he had obtained the building permit on August 28, 1985, and the owners denial that such letter was ever received. Respondent's credibility on this point was further undermined at one point in the hearing when he stated he was given this job by Boyer. Mike Boyer is not, and has never been, licensed by the Florida Construction Industry Licensing Board in accordance with Chapter 489, Florida Statutes. Respondent was aware that Boyer was not a licensed contractor. Respondent was previously disciplined by the Florida Construction Industry Licensing Board in Petitioner's case numbers 430077 and 50057, on or about October 29, 1984 and February 4, 1985, respectively. Discipline in the form of a $250 fine was imposed in the former case for Respondent's failure to qualify a company through which he was doing business and for deceptive representations in the practice of contracting. The latter disciplinary action resulted in the imposition of a $250 fine upon Respondent or suspension of his license for 60 days due to aiding and abetting an unlicensed individual and failing to qualify a business with the Board.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered suspending Respondent's licensure to practice contracting for one year and assessing an administrative fine in the amount of $2000. DONE AND RECOMMENDED this 18th day of March, 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 18th day of March, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5328 The following constitutes my specific rulings on findings of fact submitted by the Petitioner. Included in finding number 2. Included in findings numbered 3 and 15. The last sentence is rejected as noncorroborative hearsay. Included in part in finding number 4. Included in part in finding number 5. Included in finding number 6. Included in findings numbered 7, 8, and 9. Included in finding number 10. Included in finding number 12. Included in finding number 13. Included in finding number 16. The Respondent submitted a document entitled Proposed Findings of Fact. The document consists of five unnumbered paragraphs in the nature of a closing argument as opposed to proposed findings of specific facts. This document of the Respondent has been reviewed by the Hearing Officer and numbers 1-5 applied to the paragraphs therein. Rulings on those paragraphs are as follows: Rejected as unnecessary. Rejected as unnecessary with the exception of the proffered August 30, 1985 letter. In this regard see finding number 14. Rejected as not supported by the evidence. Rejected as a conclusion of law not supported by the evidence. Rejected as unnecessary. COPIES FURNISHED: David L. Swanson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Mr. James J. Hastings 836 19th Place Vero Beach, Florida 32962 William O'Neil Department of Professional Regulation General Counsel 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seeley, Executive Director Construction Industry Licensing Post Office Box 2 Jacksonville, Florida 32201
Findings Of Fact The following facts, a through d, were stipulated to by the Petitioner and Respondent and are found to be true facts by the undersigned Hearing Officer. Respondent is a registered pool contractor having been issued License No. RP0033408. Respondent did not qualify Acme Building Company or Acme Pools Incorporated until October, 1981. In October, 1981, Respondent qualified Acme Pools Incorporated. On November 20, 1978, the Respondent executed and signed a contract with Mr. and Mrs. C. S. Jarrell to construct a swimming pool at the Jarrell residence. The contract price was $6,500.00. The named party to the contract with the Jarrells was Acme Pools. On September 8, 1979, the Respondent signed and executed a contract with Mr. and Mrs. James Costin to construct a swimming pool at the Costin residence. The contract price was $6,835.00. The named party to the contract with the Costins was Acme Pools. Subsequent to the execution of the contract, the Jarrell swimming pool was completed by the Respondent. Shortly following completion, the swimming pool began leaking and continues to leak. Water must be added to the pool daily. The Jarrell pool was constructed with sidewalls consisting of pre-cast concrete panels which are imbedded in the floor of the pool. The leaks occurred as a result of inadequate back bracing behind the panels. This is a construction defect. When they discovered that their pool was leaking, the Jarrells immediately contacted the Respondent. The Respondent attempted to repair the leaks on two different occasions. Both attempted repairs were unsuccessful. Respondent became aware, after construction of the Jarrell pool, that there was something basically wrong with the construction of the Jarrell pool, but the Respondent did not accomplish a permanent repair of the problem. Subsequent to executing the contract with Mr. and Mrs. Costin, the Respondent completed a swimming pool at the Costin residence. Within a day after the Costin pool was completed, Mr. Costin noticed that the pool was losing water. The pool had a substantial leak, losing as much as four to five inches per day of water in the 16 feet by 32 feet pool. Mr. Costin, after discovering the leak, immediately notified the Respondent. The Respondent made several attempted repairs of the leaks. Some of the repairs temporarily stopped the leaking, but no permanent repair of the leaks has been accomplished. The last attempted repair by the Respondent was in September, 1981. During construction of the Costin pool, the Respondent performed the electrical work on the pool. No electrical permit was obtained from Okaloosa County building officials as required by Okaloosa County Ordinance No. 75-4. It was Respondent's responsibility to obtain or make certain that his subcontractor obtained the necessary permits for construction of the Costin swimming pool. During construction, Mr. Costin and the Respondent discussed permits and the Respondent did obtain the building permit for the construction. The Respondent was aware some type of electrical permit was required. In August, 1978, Respondent purchased Acme Building Company and did business as Acme Pools until October, 1981. Respondent, prior to October, 1981, ran a fictitious name ad in the newspaper for Acme Pools and registered Acme Pools with the county but did not qualify Acme Pools. During the period August, 1978, to October, 1981, the Respondent was licensed individually as a registered pool contractor. Respondent had been in business less than one year when he constructed the Jarrell and Costin pools. The construction method of using pre-cast concrete panels is more likely to crack and leak than other available methods of swimming pool construction. The Respondent now constructs only fiberglass pools. He no longer builds the type of pools constructed for Mr. and Mrs. Jarrell and Mr. and Mrs. Costin.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent be found guilty of the violations alleged in Counts I and II and that the Board impose upon the Respondent an administrative fine of $1,500.00. It is further recommended that Counts III, IV, and V of the administrative complaint be dismissed and that the Respondent be found not guilty of the violations alleged in those counts. DONE and ENTERED this 1st day of June, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1983. COPIES FURNISHED: John O. Williams, Esquire 547 North Monroe Street Suite 204 Tallahassee, Florida 32301 Henry C. Hollenbeck 405 Marshall Court Ft. Walton Beach, Florida 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
The Issue The issues to be resolved in this proceeding are whether the Respondent has committed violations of provisions of law relating to the licensing of construction contractors and, if so, what disciplinary action should be taken against him.
Findings Of Fact The Respondent is registered by the Florida Construction Industry Licensing Board as a residential swimming pool contractor. The Respondent holds licenses numbered RP A027187 and RP 0027187 issued by the Board. During 1979 and 1980, the Respondent was registered with the Construction Industry Licensing Board as the licensed qualifier for "Cowboy Pools, Inc." Cowboy Pools, Inc., was owned by Jim Anglin. During December, 1980, the Respondent and Anglin experienced difficulties in their business relationship. The difficulties resulted from Anglin's failure to pay for work performed for Cowboy Pools by subcontractors and by Anglin's issuing checks to the Respondent which were not honored by the bank. In early January, 1981, Respondent became concerned that he was unable to control the flow of money at Cowboy Pools. He advised Anglin that he would no longer serve as the qualifier for Cowboy Pools. On January 8, 1981, the Respondent called the office of the Construction Industry Licensing Board and inquired as to steps that he needed to take to withdraw as the qualifier for Cowboy Pools. On that same date, he wrote a letter to the Board stating: This is to inform you that I am no longer associated with Cowboy Pools and will assume no responsibilities whatsoever for Cowboy Pools. The Respondent wrote that same letter to all persons that he knew had contracts with Cowboy Pools. The letter was received in the Department of Professional Regulation offices on January 12, 1981. At the Department's request, the Respondent forwarded proper forms to withdraw his qualification of Cowboy Pools. In his letter, he stated: I hereby certify that I have not been able to bind the construction moneys for Cowboy Pools and saw no hope that I would be allowed to do so in the future. Therefore 1 have withdrawn my association from Cowboy Pools as I have previously notified you. This letter was received in the offices of the Department of Professional Regulation on January 22, 1981. The Department requested that Respondent send the Board his qualifying licenses, which he did on January 28, 1981. The licenses were received in the Department's offices on February 2, 1981. On approximately January 14, 1981, Anglin asked the Respondent to obtain a permit so that Cowboy Pools could construct another swimming pool. Anglin was apparently unable to obtain permits on his own behalf. The Respondent refused to obtain such a permit and has had no business dealings with Cowboy Pools since January 8, 1981. Anglin continues to owe money to the Respondent. During 1980 and 1981, Mr. and Mrs. Robert Mosca owned a residence in Longwood, Florida. On December 26, 1980, they entered into a contract with Cowboy Pools, Inc., to construct a swimming pool at their residence for a sum of $6,800. The contract was negotiated on behalf of Cowboy Pools by Jim Anglin. Anglin signed the contract for Cowboy Pools. The Moscas paid Anglin a $100 deposit on December 26. By checks dated January 5, 1981, and January 21, 1981, the Moscas paid Cowboy Pools and Anglin an additional $4,736 on the contract. On December 27, 1980, Anglin had the pool area at the Moscas' property staked off. Nothing was done for several weeks, and the Moscas contacted Anglin, who advised them that a permit would be obtained soon. On January 14, 1981, a permit was obtained, and a crew from a company known as "Virgil Brothers" dug the hole for the pool and put in wire. Officials from Seminole County inspected that work on January 20. The following day, a crew from Virgil Brothers gunited the pool. There was a pile of dirt left from the dig. The Moscas asked Anglin about it, and he advised that it would be leveled. Approximately a week later, that was done, but no further work was done on the pool. The Moscas were not aware that there were any difficulties with completion of the pool until January 30, when a man visited their house and asked if they knew where Anglin might be. The man indicated that Anglin had left town. The same day, the Moscas received a notice from Virgil Brothers indicating that they had not been paid by Cowboy Pools. The Moscas went to the Cowboy Pools office that evening. All of the furniture had been removed. They were told by a secretary where Anglin lived. They went to his house and discovered that it was a rental house that had been vacated a couple of days before. Anglin has apparently not been seen in the central Florida area since that time. The Moscas ultimately had their pool completed by another contractor. It cost them $2,600 above the contract price to complete the pool. The building permit for the Moscas' swimming pool was obtained by Kelly Slusher, a registered swimming pool contractor. Slusher did not supervise the work and apparently, in effect, allowed Cowboy Pools to use his contractor's license to obtain the permit. Slusher did not become the qualifier for Cowboy Pools and was apparently not involved in the operation except to obtain the permit to construct the Moscas' swimming pool. Slusher has been the subject of disciplinary action initiated by the Construction Industry Licensing Board. When work on the Moscas' swimming pool was abandoned, the Moscas obtained a copy of the building permit and learned that Slusher had obtained the permit. When they contacted Slusher, he disclaimed any responsibility. The Respondent was not, until sometime in February, 1981, aware that Anglin had contracted with the Moscas to construct a swimming pool. Anglin did not tell him of the contract and was not allowing Respondent access to the company's records and books. The Respondent made a good-faith effort to advise all persons that were doing business with Cowboy Pools that he was no longer associated with the company. He wrote to all of the persons who had contracts with Cowboy Pools on January 8, 1981. He was not aware of the Mosca contract, and so he did not write to them. The Respondent did not obtain the building permit for the Moscas' swimming pool. He was asked by Anglin to obtain a permit, but refused. If Slusher had not agreed improperly to obtain a building permit for the Moscas' swimming pool, Cowboy Pools would not have been able to commence construction on the pool, and the Moscas would not have made payments to Cowboy Pools beyond the $100 deposit. The Moscas did not learn that the Respondent had any connection with Cowboy pools until sometime in February, 1981. The Moscas learned through other persons who had contracted with Cowboy Pools that the Respondent was the qualifying registered swimming pool contractor. The Moscas did contact the Respondent about the abandoned work, but it does not appear that they formally demanded that he complete the work on behalf of Cowboy Pools. No evidence was offered at the hearing from which it could be concluded that the Respondent diverted any funds in connection with the construction of the Moscas swimming pool. Indeed, it appears that he was totally uninvolved with the project.
