Findings Of Fact At all times material hereto Respondent, George W. Boukater, was a certified general contractor, license number CG C012598, and a registered pool contractor, license number RP 0032042. Respondent was the qualifier for Swimming Pools by M.J. Donohue, Inc. (Donohue), under license number RP 0032042, from February 1979 until June 30, 1985. On July 29, 1984 Donohue contracted to construct a swimming pool at the residence of Ms. Loretta Hunley in Fort Lauderdale, Florida, for the sum of $6,400.00. Respondent, on behalf of Donohue, applied for and received the building and plumbing permits for the pool. Apart from securing the permits, Respondent had no contact with the job and never inspected its progress. By August 30, 1984, Donohue had substantially completed the pool. All that remained to be done was to marcite the pool, hook up the pool light and plumbing, and install the pumps. However, before these items could be completed it was necessary that the area surrounding the pool be backfilled, the patio poured, and the electric installed. Under the July 29, 1984 contract Ms. Hunley did not contract with Donohue for any patio, electric or fence work. She expressly retained responsibility for that work in an effort to save money on the pool construction. The area surrounding the pool was not backfilled and the patio slab approved by the Broward County Building and Zoning Department (County) until September 14, 1984. As of September 5, 1985, the fence work was still in violation of the County code. The electric work received the County's final approval on January 8, 1986. In October 1984 demands were exchanged between Ms. Hunley and Donohue. Ms. Hunley demanded that the pool be completed. Donohue demanded adequate electrical service so the pool could be pumped and cleaned for marciting, and dates when someone would be available at the premises. In November 1984 Donohue got its pumps in operation, however Ms. Hunley disconnected them in the evenings. Consequently, the pool could not be drained and cleaned to marcite it. In November 1984 Ms. Hunley ejected Donohue from the job site. Subsequently, Ms. Hunley and Donohue formally settled their dispute.
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 The Respondent Wilbur A. Sellars is licensed as a residential pool contractor by the Construction Industry Licensing Board through license number RP 0045541. Mr. Sellars was first licensed in 1975. At all times material to this case Respondent has owned and operated in Tallahassee, Florida, a pool contracting company called Pro Pools Service and Supply or Pro Pools, Inc. Cabana Construction In November 1977 Respondent entered into a contract with Dr. Frank S. Bilek to construct for him a 20' by 40' vinyl lined pool and a 20' by 40' cabana building. The contract price for the pool was $11,166.10. The price for the cabana was $14,517.30. The pool and building were constructed as provided in the contract. The cabana sits on an 800 square foot slab with footings and consists of three separate rooms. One room is a small bathroom containing a lavatory, water closet, and shower. Another room is fully enclosed by finished walls and sliding glass doors. The third room is open on two sides, one of which faces the swimming pool. The walls are typical stud construction with plywood siding on the exterior and half-inch drywall on the interior. The roof is supported by 2/12 2x4 prefabricated trusses with shingles on top. The ceiling inside the cabana is the same as would be found in a residential home and the floor is a cement slab covered by carpet. There is one overhead ceiling fan in the open room and another in the fully enclosed room. For all practical purposes the construction techniques and materials used in the cabana are the same as would be used in a residential dwelling, although they may not meet the code standards which would be applicable to a dwelling in the Killearn residential area where Dr. Bilek's home is located in Tallahassee, Florida. The cabana is equipped with plumbing for the bathroom and also for a wet bar in the kitchen area of the cabana. No pool accessories were located in the cabana at the time Petitioner's witness inspected the facility, however as with any other structure of its size, pool equipment such as vacuuming hoses, wands, etc., could be placed inside it. The original design for the cabana included large solar panels located on the roof. The purpose of these panels was to provide heating for the swimming pool water. After the panels were installed they malfunctioned and have since been removed from the cabana roof. Typically in home swimming pool installations such panels are placed on house roofs or are independently supported by a special structure located near the swimming pool. The swimming pool water recirculation pump and filter for Dr. Bilek's pool were not located inside the cabana in issue, but were located nearby out in the open. The cabana was not designed for the purpose of housing this equipment. It appears from the furnishings found in the cabana, its orientation with respect to the pool, and from its equipment that the cabana along with the pool coordinate to create a unified entertainment complex. Neither is essential to the other, however. The cabana could host a cocktail party without there being a drop of water in the pool and the pool can function perfectly without the cabana. Criminal Convictions On May 18, 1979 Respondent sent a work crew to Cairo, Georgia, for the construction of a residential swimming pool for Mr. and Mrs. Vanlandingham. The crew was using a dump truck to haul excavated dirt from the pool site to a dumping site several miles from the Vanlandinghams' residence. An inexperienced driver was operating the truck. Upon arrival at the dumping site he engaged the bed lift to dump the dirt but forgot to release the safety chains. As a result the chassis of the truck broke. Members of the crew called Mr. Sellars to give him the bad news. He instructed them to burn the truck, which they did. Respondent then submitted an insurance claim for the loss of his truck due to an accidental fire. As a result of this false claim he was convicted of insurance fraud as defined in Section 817.234(1)(a), Florida Statutes. He entered a guilty plea and judgment was entered on June 7, 1982. On the same date Respondent also pled guilty and was convicted on another count of insurance fraud arising from his filing a false claim for the alleged theft of three mobile radios from trucks operated and owned by Pro Pools Service and Supply. The radios had in fact not been stolen. Since his conviction Mr. Sellars has obtained insurance coverage for the business of Pro Pools including automobile liability, physical damage, general property and general liability insurance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Construction Industry Licensing Board enter a Final Order finding the Respondent Wilbur A. Sellars guilty of Counts One, Two, Three and Four in the Amended Administrative Complaint and impose discipline in the form of an administrative fine of $200 and suspending Respondent's license as a residential pool contractor for a period of three months. DONE and RECOMMENDED this 23rd day of December, 1983, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 1983.
The Issue The issue presented is whether Petitioner's application for a variance at the Sunrise Civic Center wading pool should be granted.
Findings Of Fact In conjunction with the City of Sunrise constructing its multi-purpose swimming pool at its Civic Center, Patricia Riley, an employee of the Broward County Health Department, made a site inspection on January 5, 2005. While she was conducting her inspection, she noticed that the fence between the swimming pool which was under construction and the existing wading pool had been removed and apparently was being replaced. She noticed that two columns for the new fence were large, and they encroached on the required ten-foot deck perimeter around the existing wading pool although the fence itself did not. She told Manuel Synalovski, who was present, to seek a variance for the columns, since she considered that the encroachment was a minor deviation or construction error. Synalovski applied for a variance for the deviation. The variance was approved by the Advisory Review Board for Swimming Pools and Bathing Places on March 9, 2005, and then by Respondent Department of Health on March 28, 2005. On June 16, 2005, Riley again went to inspect the swimming pool. While doing so, she noticed that there were two planters near the wading pool. Each planter was surrounded by an approximately-square concrete curb approximately six inches high. A palm tree had been planted in the center of each of the two planters. Each of the two planters extended into the required ten-foot deck perimeter around the wading pool. However, the palm trees themselves are ten feet from the pool, and the deck extends for 60-70 feet beyond the planters. On June 24, 2005, Synalovski filed another application for a variance relating to the two planters. The Broward County Health Department recommended that that variance be approved because the planters should not create a hazard for the users of the wading pool which would be operated by the City under lifeguard supervision but that the City should be fined $500 for the obstructions because it was the second request for a variance related to the wading pool. The Advisory Review Board for Swimming Pools and Bathing Places thereafter recommended denial because the failure to provide a ten-foot-wide deck around 50 percent of the wading pool might have a negative impact on the health and safety of pool patrons. The Department of Health advised the City in a letter dated July 25, 2005, that it concurred with the recommendation of the Advisory Review Board. The construction plans for the multi-purpose swimming pool reflected the existing wading pool, contained notes referring to planters, and showed boxes where the planters would be placed. Similarly, the drawing submitted with the first variance application showed the planters at the existing wading pool. Similarly, aerial photos taken before the first application for variance was filed showed the planters in place at the existing wading pool.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entering granting the variance and imposing a $500 fine to be paid by a date certain. DONE AND ENTERED this 7th day of February, 2006, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 7th day of February, 2006. COPIES FURNISHED: Manuel Synalovski Synalovski Gutierrez Romanik Architects, Inc. 3950 North 46th Avenue Hollywood, Florida 33021 Judith C. Elfont, Esquire Department of Health 2421-A Southwest Sixth Avenue Fort Lauderdale, Florida 33315-2613 Dr. John O. Agwunobi, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Timothy M. Cerio, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact At all times pertinent to this proceeding, Respondent, Alfred C. Wicht, has been registered as a pool contractor, license numbers RP 0026439 and RP A026439. At all times material herein, Respondent was the qualifier for Heritage Pools, Inc. On or about August 1, 1978, Heritage Pools, Inc. entered into a contract with Pacesetter Homes, Inc. to install a swimming pool at 3530 North 30th Terrace, Hollywood, Florida, for the sum of $5,350.00. Heritage Pools, Inc. commenced construction and completed the pool through the gunite and tile stage and received draw payments totaling approximately $4,295.00. About April or May, 1979, the pool popped out of the ground through no fault of the Respondent. The Respondent made some effort at repairing the pool and placing it back in the ground from the date it popped out through October, 1979. Respondent conceded that he delayed completing his repairs on the pool by virtue of the expense it was causing to his company and his belief that Pacesetter Homes, Inc. should have provided financial assistance. On or about December 5, 1979, Pacesetter Homes, Inc. learned that the pool could not be repaired and hired Electra Pools, Inc. to take out the pool initially installed by Respondent, and install a new pool in its place.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner enter its Final Order dismissing the charges contained in the Administrative Complaint. DONE and ENTERED this 27th day of May, 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 27th day of May, 1983. COPIES FURNISHED: Michael Cohen, Esquire Suite 101, Kristin Bldg. 2715 E. Oakland Park Blvd. Ft. Lauderdale, Florida 33306 Alfred C. Wicht 6701 Cypress Rd., #108 Plantation, Florida 33317 James Linnan, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Melnikoff is the holder of a certified pool contractor's license, having been issued license No. CP C032540. Melnikoff used this license to qualify Ken-Mel Enterprises and license no. CB C029067 was issued to Melnikoff qualifying Ken-Mel Enterprises. Ken-Mel entered into a contract with John and Edythe Milton to construct a residential pool at 7336 Pineville Drive, Jacksonville, Florida. Melnikoff applied for a building permit with the City of Jacksonville to construct the pool for the Miltons. His application included a set of plans and a site plan to be approved by the City of Jacksonville. The City of Jacksonville issued a building permit and provided an inspection sign-off card to be placed at the residence where the pool was to be constructed. Melnikoff and Ken-Mel constructed the pool and were paid in full. Melnikoff failed to request or obtain any inspections of the pool construction. This is a violation of the City of Jacksonville Building Code, Section 320.504. The pool is constructed in such a way that it is flawed, deficient and hazardous. Specifically, the water slide is hooked to a potable water system and to the hot water, which is both a serious code violation and a serious and hazardous condition. The water slide is positioned improperly and attached incorrectly, such that there is a danger of injury and this is a hazardous condition. The marcite is very rough and has started to peel away from the gunnite. The marcite is stained from the finish of the pool deck. The slurry from the gunnite and pool deck is buried near the pool and is improperly disposed of. Persons are mildly shocked when touching the railing in the pool, indicating that the pool is not properly bonded, which is a hazardous condition. The pool is not level or symmetrical and there are many imperfections in the continuous curve of the wall. Steel reinforcing bars are actually protruding through the concrete near the top of the pool. Building Code requires that there be a minimum coverage of 1 1/2" of concrete. The ceramic tile is falling off the wall and it is a very poor ceramic tile job. The expansion joints are improperly placed. The main drain cover has not been fastened down, which is a very dangerous situation and a code violation. There is no means or plan for discharging water from the pool, in violation of code. Part of the deck drain is under the slab of the Milton's house which is a serious problem. The pool is deeper than the plans indicated, in violation of the building code. The pool deck is very rough in places, does not drain away from the pool, and is cracked from improper compaction and improper placement of expansion materials. All of these defects and hazardous conditions establish that Melnikoff was grossly negligent and incompetent in the construction of this pool.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Construction Industry Licensing Board, enter a Final Order finding Steve A. Melnikoff guilty of the violations charged and revoking Melnikoff's license as a certified pool contractor. DONE and ORDERED this 29th day of June, 1988, in Tallahassee, Florida. DIANE K. KIESLING 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 June, 1988. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-0567 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the Petitioner in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Professional Regulation, Construction Industry Licensing Board 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(2); 3-5(3); 6(4); 7(5); and 8 & 9 (6) COPIES FURNISHED: John O. Williams, Attorney at Law 1343 E. Tennessee St. Tallahassee, Florida 32308 Steven A. Melnikoff 710 Rosedale Drive Stephens City, VA 22655 Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact The parties stipulated that Petitioner's Exhibit number 1, which is the Florida Construction Industry Licensing Board official records as they relate to Millard P. Hill, Jr., should be received into evidence. The parties noted further that there is little dispute as to facts, however, the Respondent contends that there is no diversion of funds based on the facts of this case. On June 10, Respondent advised Petitioner that he wished to qualify Master Pools, a corporation which he had applied to Petitioner to qualify as the name under which his pool contracting would be done to reflect the name H. B. Patten, Inc. as the name under which said contracting would be done. Petitioner changed its records to show this change. On July 12, Respondent entered into a contract with Manuel and Anna Bueno for a pool to be built at 6960 Northwest 4th Place, Margate, Florida, for a sum of $5,665. See Petitioner's Exhibit number 2 received into evidence and made a part hereof by reference. Anna Bueno testified that a hole was dug and tar paper and steel bars were erected in the hole and the work was abandoned thereafter. Prior to abandonment, the Bueno's paid approximately $4,100 to Patten Pools. To complete the construction, the Bueno's used Hallmark Pools to finish the pool which required an additional sum of approximately $5,000. As can be seen, this is approximately $3,300 over and above the contract price. The evidence also reveals that Patten Pools, Inc., through Millard P. Hill, applied for and obtained a permit for the construction of the pool for the Bueno's on August 5. See Petitioner's Exhibit number 3, received into evidence and made a part hereof by reference. On April 24, Mr. and Mrs. Edward Eskie entered a contract with Respondent for the erection of a swimming pool on their property located at 1525 Southeast 14th Court, Deerfield Beach, Florida for $6,786.00. See Petitioner's Exhibit number 4 received in evidence and made a part hereof by reference. Mr. Eskie testified that the excavation for the pool began on May 20, and on June 2 gunite services were complete. On July 9, he received a letter from Crockett- Bradley, Inc. a gunite subcontractor, indicating that it was filing a lien for $1,312 against the Eskie's property for services performed. The building permit for the Eskie project was obtained by Respondent on June 10. See Petitioner's Exhibit number 7 incorporated herein by reference. Edward Eskie paid Respondent approximately $4,778 and $1,312 was paid to Crockett-Bradley, Inc. to satisfy the lien which was placed against their property. The Eskie's completed their pool by payment of an amount in excess of $4,000 to another pool contracting firm. Prior to completing the pool and after the Respondent abandoned the project, Edward Eskie made numerous attempts to contract Respondent by phone to no avail. On June 27, Respondent entered a contract with Orlando Gonzalez for a pool to be built at his residence located at 353 Northwest 22nd Street, Boca Raton, Florida for $9,000.00. See Petitioner's Exhibit number 8 which was received and made a part hereof by reference. Orlando Gonzalez paid Respondent $3,600 through his bank toward the contract price. For that payment, Respondent dug a hole and the project was abandoned. After work was abandoned, Gonzalez made repeated attempts to contact Respondent to no avail. To complete the project, he paid another contractor approximately $6,000. On April 18, Respondent entered into a contract with Howard and Sheila Siclari for a pool to be built at their home located at 7812 Northwest 67th Avenue, Tamarac, Florida, for the sum of $4,280. To commence the construction, Respondent obtained a building permit on June 18, 1975. See Petitioner's Exhibits number 9 and number 10 received in evidence and made a part hereof by reference. The Siclari's paid Respondent $3,456.75. Thereafter they completed the work which cost them an additional $2,500 and they did most of the work themselves. James T. Anglen, a pool salesman for Patten Pools testified that he was initially employed by Master Pools until June, 1975. A reference to Petitioner's Exhibit number 1 indicates that Master Pools registered as Brian Sales Corporation as the first entity that Respondent registered with Petitioner on January 1, 1974. He was a superintendent of Patten Pools in June, 1975 when he commenced employment with Patten. He acknowledged that he received money from the Bueno's which was transmitted to Patten Pools. He also acknowledged that the Bueno's were probably hurt most of all the complaining parties in this case. Respondent discovered that its cash flow was short approximately $40,000 to $50,000 and that that amount in checks were floating with insufficient funds to cover them. He commenced efforts to try to straighten out the firms cash flow and that for a while the bank worked along with him. Anglen also acknowledged the abandonment of the Gonzalez project. He further acknowledged that monies received from projects were used to cover deficiencies on other projects to continue Respondent's operations.
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
The Issue The issues are: (1) Whether the pool at issue is a special purpose pool, and (2) Whether Petitioner is entitled to a variance to use recessed automatic surface skimmers in the pool at issue.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a Final Order denying the variance request of Tamtech Pool Builders and denying special purpose pool status for the pool built by Tamtech Pool Builders. DONE AND ENTERED this 10th day of February, 1988 in Tallahassee, Leon County, Florida. DIANE K. KIESLING 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 10th day of February, 1988. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 87-4443 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Tamtech Pool Builders Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 6(49) and 9(39). Proposed findings of fact 1, 4, and 7 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 2, 5, and 12 are rejected as being unsupported by the competent, substantial evidence. Proposed findings of fact 3, 10, and 11 are rejected as being irrelevant. Proposed finding of fact 8 is rejected as being irrelevant because this action is not a rule challenge proceeding. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Health and Rehabilitative Services Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-3(1-3); 5-7(4-6); 9-11(7-9); 12(9); 13(10); 14-34 (10-30); 36-43(31-38); 46-53(40-47); and 56-58(50-52). Proposed findings of fact 4, 8, 44, 45, and 55 are rejected as being irrelevant or unnecessary. 3 . Proposed finding of fact 54 is rejected as being unsupported by the competent, substantial evidence. 4. Proposed finding of fact 35 is subordinate to the facts actually found in this Recommended Order. COPIES FURNISHED: Margaret Smithson HRS District I Legal Counsel 160 Governmental Center P. O. Box 12836 Pensacola Florida 32576 Mark E. Walker Attorney-At-Law 723 N. Eglin Pkwy., Suite 2 Ft. Walton Beach, Florida 3254 Gregory Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Petitioner is entitled to an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes?
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made to supplement and clarify the extensive factual stipulations set forth in the parties' Revised Joint Prehearing Stipulation4: The "Investigator's Memo" referred to in the parties' Revised Joint Prehearing Stipulation was a memorandum from Jack Beamish, an investigator with Respondent, to Bruce Campbell, an attorney with Respondent. It was dated June 21, 2004, and read as follows: On June 21, 2004 I spoke on the telephone with Neal Shniderman . . . , counsel for The Pool People. He said that James Pohl, PE (Case No. 03-0045) has retired and is in the process of moving to North Carolina. Shniderman said, "Well over a year ago the company changed its way of operating. Jim Pohl was coming in and reviewing every plan and signing them. Now that he is retired, the company has a new engineer who is signing and sealing and making sure everything is up to snuff. I'm worried about them signing the affidavit because I don't want them to acknowledge that they were engaged in an unlawful act. I don't want to let my client admit to violating the law in the past, particularly where we don't believe they violated the law, and how they will act in the future. I don't understand where my client is doing anything wrong. It is not holding itself out to be an engineering firm; it's a pool contracting firm. It contracts with an engineer to provide engineering services." I cited Chapter 471.023 and told Mr. Shniderman that it appears that the firm is directly contracting to provide pool construction and engineering services, and that in order to do that the simple answer would be to apply for a certificate of authorization. (TPP [The Pool People] is then subcontracting the engineering work out.) He stated that he thought it to be lawful for TPP to practice business as it currently is. I suggested that he talk to you to further discuss his position. I said that I would have you call him.[5] The November 18, 2004, "probable cause panel proceeding" referred to in the parties' Revised Joint Prehearing Stipulation opened with Mr. Campbell, addressing the following comments to the probable cause panel6: This investigation is predicated on a complaint filed on April 9th 2004 by the Florida Board of Professional Engineers alleging that The Pool People, Inc., was practicing as an engineering firm without holding a Certificate of Authorization issued by the Florida Board of Professional Engineering. The Pool People, Inc., which is a certified contracting business licensed by the Department of Business and Professional Regulation Construction Industry Licensing Board, does not have and has never had a Certificate of Authorization to provide engineering services in the State of Florida. A notice to cease and desist the unlicensed practice of engineering was issued to The Pool, Inc., on May 24th, 2004. On . . . August 2nd, 2004 the Florida Board of Professional Engineer[s] obtained from the Palm Beach County Planning, Zoning and Building Department certified copies of five permit applications and pool plans submitted by The Pool People, Inc., during the period of June and July 2004. The permit applications were submitted by Daniel Lowe, a certified pool contractor and qualifier for The Pool People, Inc., and the plans were signed and sealed by Ming Z. Huang, P. [E]. On information and belief The Pool People, Inc., employed Mr. Huang to provide engineering services, evidenced by the five sets of pool plans, included with [The Pool People's] contracts with the property owners. By filing engineering plans signed and sealed by a professional engineer employed by [T]he [Pool People] while [T]he [Pool People] did not have a Certificate of Authorization, and by providing engineering services directly to the customer while [T]he [Pool People] does not have a Certificate of Authorization, [T]he [Pool People] has therefore practiced engineering without being duly licensed.[7] The following are other pertinent excerpts from the transcript of the November 18, 2004, "probable cause panel proceeding": The [Panel] Chairman: Well, Bruce, the reason I raised the question [of whether the county knew about the cease and desist order] was that in reading their attorney's comments I am interpreting their attorney as stating, one, he doesn't think they need a CA and, secondly, I interpret that they have no intent in getting a CA. Mr. Campbell: That is exactly why we are bringing this complaint. The Chairman: [That] is why I commented about [why] I think the county needs to know there is a cease and desist so they no longer accept any plans from this organization.[8] * * * The Chairman: True. But if they had knowledge that we had issued the cease and desist order they may in turn turn the drawings right back over to them. Mr. Tomasino[9]: You would shut down every pool contractor in the State of Florida, every one. Mr. Campbell: And part of the thing here is that I think we need to go forward with this case, and it's going to be more or less a test case that, you know, we need to establish those facts before we I think go with the lesser and perhaps ineffective notice to cease and desist. Mr. Tomasino: Well, we have taken positions two different ways in the past, and I have a problem with it because we are not consistent. Certain organizations can hire an engineer and provide a product and it is okay. Certain organizations can do that and it is not okay. And I think we need to clear up the fact who is the engineer supposed to be contracting with to avoid the contractor having the CA, design build. Just about every single one of them the contractor hires the engineer and the architect and that is part of his overall fee for construction. He doesn't have a CA and doesn't intend to get one. This situation in the State of Florida in my opinion could possibly find manufacturers exempt because they're taking various components by other people and putting it together. Mr. Campbell: This is true except for the fact that they're putting it on a site and what they are using the engineer for is to put it on a site, and that engineering - - Mr. Tomasino: But - - Mr. Campbell: - -is site specific and very definitely something for the owner of the property. Mr. Tomasino: No question about that. But so is design build.[10] * * * Mr. Campbell: There may be some requirement of clarification as far as the statute, but the way the statute exists they're entering into a contract to provide engineering services and they don't have a Certificate of Authorization. The Chairman: That is pretty clear, pretty clear in the statute. And I don't know how he is - - the attorney [for The Pool People] now - - how he is interpreting it otherwise. [11] * * * The Chairman: Well, you know, his attorney's reference to 471.023 is pretty correct paraphrasing. I mean, he hasn't restated all of it but, you know, Subsection 2 says for the purpose of this section a Certification of Authorization shall be required for any business organization or other person practicing under a fictitious name, offering engineering services to the public. That is exactly what this outfit is doing that they have to have a CA. Mr. Seckinger[12]: What part of - - I will play the devil's advocate - - what part of engineering services are they offering? Mr. Chairman: The site engineering. Mr. Seckinger: Well, all they are doing is putting a pool in a level ground in the backyard. There is no engineering there. The Chairman: Why is he sealing it? Mr. Sunshine[13]: Yeah. They have an engineer sealing it for them. Mr. Seckinger: That is a good question. The local authorities require it? Mr. Tomasino: Health department probably and probably the building department. The Chairman: But that is offering engineering services without a CA. Mr. Seckinger: If we were talking about enclosed - -pool enclosures would be even more so. Mr. Tomasino: The health department is interested because of recirculating systems and filtration systems et cetera, et cetera. Mr. Seckinger: Okay. I will get off the platform I was on.[14] * * * Mr. Tomasino: I understand what the statute is saying because the Chairman made it very clear. [15] * * * Mr. Seckinger: Mr. Chair, I move that we find probable cause in the case under discussion. The Chairman: The Pool People, Inc. Mr. Seckinger: The Pool People, Inc., unlicensed. The Chairman: Do we have a second? Mr. Tomasino: Second The Chairman: All those in favor say aye. Mr. Tomasino: Aye. Mr. Seckinger: Aye. The Chairman: Aye.[16] * * * The Chairman: I mean, if there was some gray area in the wording of Subsection 2 of 471.023. I don't see there is any gray area. And - - Mr. Campbell: I don't either. As long as that is the statute I think the prosecuting attorney has the responsibility to go forward with it.[17] * * * Mr. Sunshine: Now that we have brought it [the improper use of Mr. Pohl's seal] to their [The Pool People's] attention, they have taken the steps to bring in someone to actually review these things, but they are unwilling it appears to acquire a CA.[18] * * * The Chairman: Mr. Tomasino, since you are on that page you don't have to go back to it, again, this attorney is interpreting that item 2 from 471.023 does not apply because they are not providing engineering services. They're a consumer of them, which - - Mr. Tomasino: They are using services. The Chairman: But they're putting an engineering seal on their drawings. Mr. Sunshine: They charge their client, the home owner. The Chairman: For engineering services. Mr. Tomasino: As a separate item. Mr. Campbell: Not a separate item, I don't think. Mr. Sunshine: It's a lump sum. Incorporated in our services [is] the engineering that is necessary for this project. [Y]ou pay us and we take care of everything. Mr. Tomasino: I guess that is part of my opening comments. What is wrong with someone hiring experts to help them put a package together to sell? Mr. Campbell: You know, that is just too general. I mean, certainly the manufacturer's exemptions is sort of a narrow and specific one and we recognize that. That is where it happens. You have - -you know, this is just a different situation. It is one step over the line. It's not a package that is sold in quite the same terms. It is something that is site specific and that makes the difference. Mr. Tomasino: We need to open up the bag of worms in the aluminum enclosures again, then, because that is not site specific. Mr. Campbell: Well, it has to be at some point. Mr. Tomasino: People who prepare the master plans don't ever see the site. Mr. Sunshine: We have discussed that - - Mr. Tomasino: But we are mixing apples and oranges. The Chairman: But if a screen enclosure company gets an engineer for a very specific job and seals that set of drawing that it [is] this situation, correct? Mr. Campbell: Yes. Mr. Tomasino: So the way out is for that engineer to contract with the home owner? Mr. Sunshine: The company needs to tell them we will build it. You need to acquire an engineer and you need to pay them, not us. The Chairman: Or obtain a CA. Mr. Sunshine: Right. We will give you names of who[m] we would recommend. You go to that engineering firm, you contract with them, you pay them the fee, because otherwise we could [get] hit with unlicensed activity.[19] * * * The Administrative Complaint issued in the Underlying Proceeding contained five counts.20 Each count charged Petitioner with "violat[ing] Section 471.031(1)(a), Florida Statutes, by practicing engineering without a license." In Count One, it was alleged that, "[o]n or about June 10, 2004, [Petitioner], through its qualifying individual contractor, filed an application for a permit to build a pool for an owner, Vista Builders, at 16326 78th Road North, in Palm Beach County, Florida" and that the "application included 4 pages of engineering plans signed and sealed on June 9, 2004, by Ming Z. Huang, P. E.," whom Petitioner had "employed . . . to provide engineering services included in its contract with Vista Builders." In Count Two, it was alleged that, "[o]n or about July 7, 2004, [Petitioner], through its qualifying individual contractor, filed an application for a permit to build a pool for an owner, Toll Brothers, at 8108 Laurel Ridge Court, in Palm Beach County, Florida" and that the "application included 4 pages of engineering plans signed and sealed on June 23, 2004, by Ming Z. Huang, P. E.," whom Petitioner had "employed . . . to provide engineering services included in its contract with Toll Brothers." In Count Three, it was alleged that, "[o]n or about July 22, 2004, [Petitioner], through its qualifying individual contractor, filed an application for a permit to build a pool for an owner, Jandjel, at 10265 Brookville Lane, Boca Raton, in Palm Beach County, Florida" and that the "application included 4 pages of engineering plans signed and sealed on July 20, 2004, by Ming Z. Huang, P. E.," whom Petitioner had "employed . . . to provide engineering services included in its contract with Jandjel." In Count Four, it was alleged that, "[o]n or about July 26, 2004, [Petitioner], through its qualifying individual contractor, filed an application for a permit to build a pool for an owner, Shelby Homes, at 10681 Oak Meadow Lane, in Palm Beach County, Florida" and that the "application included 4 pages of engineering plans signed and sealed on July 22, 2004, by Ming Z. Huang, P. E.," whom Petitioner had "employed . . . to provide engineering services included in its contract with Shelby Homes." In Count Five, it was alleged that, "[o]n or about June 24, 2004, [Petitioner], through its qualifying individual contractor, filed an application for a permit to build a pool for an owner, Anthony Rycko, at 13761 76th Road North, in Palm Beach County, Florida" and that the "application included 4 pages of engineering plans signed and sealed on June 23, 2004, by Ming Z. Huang, P. E.," whom Petitioner had "employed . . . to provide engineering services included in its contract with Anthony Rycko." With respect to all five counts, Petitioner alleged that: [Petitioner] engaged in the practice of engineering in one or more of the following ways: by filing engineering plans signed and sealed by a professional engineer employed by [Petitioner] while [Petitioner] did not have a Certificate of Authorization as required by Section 471.023, Florida Statutes; by providing engineering services directly to a customer while [Petitioner] d[id] not have a Certificate of Authorization as required by Section 471.023, Florida Statutes. In the "Conclusions of Law" portion of the Recommended Order he issued in DOAH Case No. 05-0382, the undersigned stated the following, among other things: The specific allegations of wrongdoing contained in the Administrative Complaint filed in DOAH Case No. 05-0382 are that The Pool People, in connection with each of the Five Pool Projects, practiced engineering without a certificate of authorization from the FEMC in violation of Section 471.031(1)(a), Florida Statutes, by engaging "in one or more" of the following activities: by filing engineering plans signed and sealed by a professional engineer [Mr. Huang] employed by Respondent while [it] did not have a Certificate of Authorization as required by Section 471.023, Florida Statutes [hereinafter referred to as "Allegation a."]; by providing engineering services directly to a customer while [it did] not have a Certificate of Authorization as required by Section 471.023, Florida Statutes [hereinafter referred to as "Allegation b."]. It is asserted in Allegation a. that The Pool People was required by Section 471.023, Florida Statutes, to possess a certificate of authorization from the FEMC because it engaged in the practice of engineering through a licensed engineer, Mr. Huang, who was acting as The Pool People's employee when he signed and sealed the engineering plans that were subsequently filed by the Pool People in connection with each of the Five Pool Projects.[21] The FEMC, however, failed to present clear and convincing evidence at the final hearing establishing that there existed an employee- employer relationship between Mr. Huang and The Pool People. Indeed, the record affirmatively establishes that Mr. Huang was not an employee of The Pool People, but rather acted as an independent contractor, free to exercise his professional judgment in a manner that was not subject to the control of The Pool People. See Harper v. Toler, 884 So. 2d 1124, 1131 (Fla. 2d DCA 2004)("The 'extent of control' . . . has been recognized as the 'most important factor in determining whether a person is an independent contractor or an employee.' Of course, employees and independent contractors both are subject to some control by the person or entity hiring them. The extent of control exercised over the details of the work turns on whether the control is focused on simply the 'result to be obtained' or extends to the 'means to be employed.' A control directed toward means is necessarily more extensive than a control directed toward results. Thus, the mere control of results points to an independent contractor relationship; the control of means points to an employment relationship.")(citations omitted). A corporation, such as The Pool People, that retains FEMC-licensed engineers to provide engineering services on an independent contractor basis is not obligated to obtain a certificate of authorization from the FEMC inasmuch as Section 471.023's certificate of authorization requirement is triggered only where the licensees are acting as "agents,[22] employees, [or] officers" of the corporation. To construe Section 471.023 otherwise would add words to the statute not placed there by the Legislature. This neither the undersigned nor the [Board] may do. See Hayes v. State, 750 So. 2d 1, 4 (Fla. 1999)("We are not at liberty to add words to statutes that were not placed there by the Legislature."); PW Ventures, Inc. v. Nichols, 533 So. 2d 281, 283 (Fla. 1988)("The express mention of one thing implies the exclusion of another."); Cook v. State, 381 So. 2d 1368, 1369 (Fla. 1980)("According to a longstanding principle of statutory construction, this list should be presumed to be exclusive and any omissions to be deliberate."); Thayer v. State, 335 So. 2d 815, 817 (Fla. 1976)("[W]here a statute enumerates the things on which it is to operate, or forbids certain things, it is ordinarily to be construed as excluding from its operation all those not expressly mentioned."); Chaffee v. Miami Transfer Company, Inc., 288 So. 2d 209, 215 (Fla. 1974)("To say, as the employer would have us do, that in merger cases the true meaning of s 440.15(3)(u) is that disability for purposes of that section is the greater of physical impairment or loss of earning capacity only if there is a loss of earning capacity is to invoke a limitation or to add words to the statute not placed there by the Legislature. This we may not do."); Herrera-Lara v. State, 932 So. 2d 1138, 1141 (Fla. 2d DCA 2006)("Because the legislature did not include the terms 'temporary tags' or 'temporary license plates' in section 320.26, we must assume the legislature did not intend for section 320.26 to apply to those items."); and Childers v. Cape Canaveral Hosp., Inc., 898 So. 2d 973, 975 (Fla. 5th DCA 2005)("Courts must give statutory language its plain and ordinary meaning, and is not at liberty to add words that were not placed there by the legislature."). The accusation made in Allegation b. that The Pool People "provid[ed] engineering services directly to a customer" in connection with each of the Five Pool Projects is likewise not supported by clear and convincing record evidence. The record reveals that The Pool People was a direct recipient, not a direct provider, of engineering services. What it contracted to provide "directly to a customer" in each instance was not any engineering service, but rather a newly-constructed residential swimming pool, a contractual obligation its certificate of authority from the CILB authorized it to assume. To fulfill this contractual obligation, it had to have engineering plans signed and sealed by a FEMC-licensed engineer. It needed these plans to apply for the building permit required to commence construction of the pool. The Pool People obtained these engineering plans from a FEMC-licensed independent contractor, not from one of its "agents, employees, [or] officers," and it then used the plans to apply for the required building permit. In doing so, it did not run afoul of any requirement of Section 471.023, Florida Statutes. Because the specific allegations of wrongdoing contained in the Administrative Complaint filed in DOAH Case No. 05-0382 are not supported by clear and convincing evidence, the Administrative Complaint should be dismissed in its entirety.
