The Issue Whether the claimants herein are entitled to payment from the Construction Industries Recovery Fund and, if so, the amount of the payment to which each claimant is entitled. Whether the license of the Petitioner is subject to automatic suspension pursuant to Section 489.143(7), Florida Statutes (Supp. 1998).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Fund is established by Section 489.140, Florida Statutes, for the purpose of reimbursing those persons who meet the eligibility requirements set forth in Section 489.141, Florida Statutes. The Board is the entity responsible for reviewing applications for payment from the Fund and entering orders approving or disapproving the applications. Sections 489.140(1) and 489.143(1), Florida Statutes. Mr. Kiselius is a licensed residential pool/spa contractor, having been first issued such a license in 1984. Mr. Kiselius's license is currently on inactive status, but at the times material to this action, Mr. Kiselius's license was active. Pool Masters was a Florida corporation incorporated on August 10, 1995. Frederick H. Martin and Abraham Zafrani were the sole shareholders of the corporation, and Mr. Martin was the President and Secretary of the corporation, and Mr. Zafrani was the Vice-President and Treasurer. From on or about October 24, 1995, until November 14, 1997, Mr. Kiselius was the qualifying agent for Pool Masters. The record does not reflect the date on which Pool Masters was issued its certificate of authority allowing it to engage in contracting as a business organization, but it was assigned Qualified Business Organization License Number QB0002327 on or about November 6, 1996. Pool Masters filed for bankruptcy pursuant to Chapter 7 of the United States Bankruptcy Code on January 1, 1998, and the corporation was administratively dissolved on October 16, 1998. DOAH Case No. 99-1665: Santibanez and Pappas Eugene Santibanez and Alexander Pappas entered into a contract with Pool Masters for construction of a swimming pool. The contract was executed on or about March 25, 1997. The total price stated in the contract was $21,000.00; a change order was executed on November 4, 1997, for an additional price of $2,890.00. Pool Masters represented to Mr. Santibanez and Mr. Pappas that it was a licensed swimming pool contractor. Pool Masters began work on the pool on or about May 17, 1997. Mr. Santibanez and Mr. Pappas made payments to Pool Masters pursuant to the contract, and Pool Masters excavated the hole for the pool, put in the foundation, and poured the concrete. Pool Masters ceased work on the swimming pool in late November 1997, after the concrete was poured. A week later, Mr. Santibanez heard that Pool Masters had declared bankruptcy. At the time Pool Masters ceased work on the pool, Mr. Santibanez and Mr. Pappas had paid Pool Masters a total of $19,690.00 for work done pursuant to the contract and change order. Although Pool Masters represented to them that the payments would be used to pay subcontractors and materialmen, there were subcontractors and materialmen who were not paid. At least one lien was filed against Mr. Santibanez's and Mr. Pappas's property, and they paid the subcontractors and materialmen directly in order to get the liens released. On January 17, 1998, the United States Bankruptcy Court for the Southern District of Florida issued a Notice of Commencement of Case Under Chapter 7 of the Bankruptcy Code, showing that Pool Masters had filed for bankruptcy on January 7, 1998. On or about March 11, 1998, Mr. Santibanez and Mr. Pappas submitted a Construction Industries Recovery Fund Claim Form to the Board, naming Pool Masters as the contractor. In an order entered April 20, 1998, the bankruptcy court lifted the automatic stay to allow Mr. Santibanez and Mr. Pappas to file suit against Pool Masters. Mr. Santibanez and Mr. Pappas filed a complaint against Pool Masters in the Circuit Court for the Seventeenth Judicial Circuit in Broward County, Florida, seeking damages for breach of the contract for construction of the pool. Mr. Santibanez and Mr. Pappas alleged in the complaint that Pool Masters had failed to complete the work; failed to perform in a reasonable and timely manner and abandoned the project for more than 90 days which is a violation of F.S. 489.129(1)(k) [Section 489.129(1)(j)];[ 3/ ] falsely represented that monies paid to them were paid to materialmen and sub- contractors which resulted in financial harm to the Plaintiffs which is a violation of F.S. 489.129(1)(l) [Section 489.129(1)(k)];[ 4/ ] committed mismanagement and misconduct which caused Plaintiffs financial harm as of [sic] liens were recorded as against the Plaintiff's [sic] home in violation of F.S. 489.129(1)(h)(1) [Section 489.129(1)(g)1.];[ 5/ ] f [sic]. committed mismanagement and misconduct which caused Plaintiffs financial harm in that the percentage of completion is less than the percentage of the total contract price paid in violation of F.S. 489.129(1)(h)(2) [Section 489.129(1)(g)2.].[ 6/ ] Mr. Santibanez and Mr. Pappas further alleged in the complaint that the cost to complete the pool after construction was abandoned by Pool Masters was $17,975.50, and they included in the complaint an itemized list of expenditures to support their claim. The circuit court entered a Default Final Judgment on August 4, 1998, awarding Mr. Santibanez and Mr. Pappas $17,675.50, to be recovered from Pool Masters, plus interest at the statutory rate. In a letter from their attorney dated August 12, 1998, Mr. Santibanez and Mr. Pappas submitted to the Board additional documents to support their claim against the Construction Industries Recovery Fund, based on their Default Final Judgment against Pool Masters. The final report of the Trustee of Pool Masters' bankruptcy estate, dated December 1, 1999, indicated that Pool Masters had no funds remaining after disbursement for administrative expenses. Mr. Santibanez and Mr. Pappas did not receive any funds from the bankruptcy estate or any other source to satisfy the judgment against Pool Masters. Mr. Santibanez and Mr. Pappas satisfy the statutory criteria for eligibility for payment from the Fund in the amount of $17,675.50. DOAH Case No. 99-1666: Klaus and Lucrecia Mueller Klaus and Lucrecia Mueller entered into a contract with Pool Masters for construction of a swimming pool. The contract was executed on or about February 24, 1997. The total price stated in the contract was $16,400.00. Pool Masters represented to Mr. and Mrs. Mueller that it was a licensed swimming pool contractor. Pool Masters began work on the pool in Spring 1997, and Mr. and Mrs. Mueller made payments to Pool Masters pursuant to the contract. Pool Masters excavated the hole for the pool, installed the steel frame, poured gunnite at the shallow end of the pool, and installed the brick and tile around the pool. Pool Masters last worked on the swimming pool in late November 1997. At the time Pool Masters ceased work on the pool, Mr. and Mrs. Mueller had paid Pool Masters approximately $12,900.00 for work done pursuant to the contract. Although Pool Masters represented to them that the payments would be used to pay subcontractors and materialmen, there were subcontractors and materialmen who were not paid. Liens were filed against Mr. and Mrs. Mueller's property, and they paid the subcontractors and materialmen directly in order to get the liens released. On January 17, 1998, the United States Bankruptcy Court for the Southern District of Florida issued a Notice of Commencement of Case Under Chapter 7 of the Bankruptcy Code, showing that Pool Masters had filed for bankruptcy on January 7, 1998. On or about March 11, 1998, Mr. and Mrs. Mueller submitted a Construction Industries Recovery Fund Claim Form to the Board, naming Pool Masters as the contractor. In an order entered April 20, 1998, the bankruptcy court lifted the automatic stay to allow Mr. and Mrs. Mueller to file suit against Pool Masters. Mr. and Mrs. Mueller filed a complaint against Pool Masters in the Circuit Court for the Seventeenth Judicial Circuit in Broward County, Florida, seeking damages for breach of the contract for construction of the pool. Mr. and Mrs. Mueller alleged in the complaint that Pool Masters had failed to complete the work; failed to perform in a reasonable and timely manner and abandoned the project for more than 90 days which is a violation of F.S. 489.129(1)(k) [Section 489.129(1)(j)];[ 7/ ] falsely represented that monies paid to them were paid to materialmen and sub- contractors which resulted in financial harm to the Plaintiffs which is a violation of F.S. 489.129(1)(l) [Section 489.129(1)(k)];[ 8/ ] committed mismanagement and misconduct which caused Plaintiffs financial harm as of [sic] liens were recorded as against the Plaintiff's [sic] home in violation of F.S. 489.129(1)(h)(1) [Section 489.129(1)(g)1.];[ 9/ ] f [sic]. committed mismanagement and misconduct which caused Plaintiffs financial harm in that the percentage of completion is less than the percentage of the total contract price paid in violation of F.S. 489.129(1)(h)(2) [Section 489.129(1)(g)2.].[ 10/ ] Mr. and Mrs. Mueller further alleged in the complaint that the cost to complete the pool after construction was abandoned by Pool Masters was $13,299.51. The matter was presented to the circuit court, ex parte, upon Mr. and Mrs. Mueller's Motion for Default Final Judgment. The court entered a Default Final Judgment in June 1998, awarding Mr. and Mrs. Mueller $13,299.51, to be recovered from Pool Masters, plus interest at the statutory rate. In a letter from their attorney dated June 23, 1998, Mr. and Mrs. Mueller submitted to the Board additional documents to support their claim against the Construction Industries Recovery Fund, based on their Default Final Judgment against Pool Masters. The final report of the Trustee of Pool Masters' bankruptcy estate, dated December 1, 1999, indicated that Pool Masters had no funds remaining after disbursement for administrative expenses. Mr. and Mrs. Mueller did not receive any funds from the bankruptcy estate or any other source to satisfy their judgment against Pool Masters. Mr. and Mrs. Mueller satisfy the statutory criteria for eligibility for payment from the Fund in the amount of $13,299.51. DOAH Case No. 99-1667: Mario and Martha Alboniga Mario and Martha Alboniga entered into a contract with Pool Masters for construction of a swimming pool. The contract was executed on or about March 17, 1997. The total price stated in the contract was $24,000.00. Pool Masters represented to Mr. and Mrs. Alboniga that it was a licensed swimming pool contractor. Pool Masters began work on the pool on November 10, 1997, and Mr. and Mrs. Alboniga made payments to Pool Masters pursuant to the contract. Pool Masters excavated the hole for the pool and poured the concrete form of the pool. The last day Pool Masters worked on the swimming pool was November 19, 1997. Mr. and Mrs. Alboniga later heard that Pool Masters had declared bankruptcy. At the time Pool Masters ceased work on the pool, Mr. and Mrs. Alboniga had paid Pool Masters a total of $15,200.00 for work done pursuant to the contract. Although Pool Masters represented to them that the payments would be used to pay subcontractors and materialmen, there were subcontractors and materialmen who were not paid. Liens were filed against Mr. and Mrs. Alboniga’s property, and they paid the subcontractors and materialmen directly in order to get the liens released. On January 17, 1998, the United States Bankruptcy Court for the Southern District of Florida issued a Notice of Commencement of Case Under Chapter 7 of the Bankruptcy Code, showing that Pool Masters had filed for bankruptcy on January 7, 1998. On or about March 11, 1998, Mr. and Mrs. Alboniga submitted a Construction Industries Recovery Fund Claim Form to the Board, naming Pool Masters as the contractor. In an order entered April 20, 1998, the bankruptcy court lifted the automatic stay to allow Mr. and Mrs. Alboniga to file suit against Pool Masters. Mr. and Mrs. Alboniga filed a complaint against Pool Masters in the Circuit Court for the Seventeenth Judicial Circuit in Broward County, Florida, seeking damages for breach of the contract for construction of the pool. Mr. and Mrs. Alboniga alleged in the complaint that Pool Masters had failed to complete the work; failed to perform in a reasonable and timely manner and abandoned the project for more than 90 days which is a violation of F.S. 489.129(1)(k) [Section 489.129(1)(j)];[ 11/ ] falsely represented that monies paid to them were paid to materialmen and sub- contractors which resulted in financial harm to the Plaintiffs which is a violation of F.S. 489.129(1)(l) [Section 489.129(1)(k)];[ 12/ ] committed mismanagement and misconduct which caused Plaintiffs financial harm as of [sic] liens were recorded as against the Plaintiff's [sic] home in violation of F.S. 489.129(1)(h)(1) [Section 489.129(1)(g)1.];[ 13/ ] f [sic]. committed mismanagement and misconduct which caused Plaintiffs financial harm in that the percentage of completion is less than the percentage of the total contract price paid in violation of F.S. 489.129(1)(h)(2) [Section 489.129(1)(g)2.].[ 14/ ] Mr. and Mrs. Alboniga further alleged in the complaint that the cost to complete the pool after construction was abandoned by Pool Masters was $10,541.77. The circuit court entered a Final Judgment "pursuant to stipulation" on August 4, 1998, awarding Mr. and Mrs. Alboniga $10,541.77, to be recovered from Pool Masters, plus interest at the statutory rate. In a letter from their attorney dated August 12, 1998, Mr. and Mrs. Alboniga submitted to the Board additional documents to support their claim against the Construction Industries Recovery Fund, based on their Final Judgment against Pool Masters. The final report of the Trustee of Pool Masters' bankruptcy estate, dated December 1, 1999, indicated that Pool Masters had no funds remaining after disbursement for administrative expenses. Mr. and Mrs. Alboniga did not receive any funds from the bankruptcy estate or any other source to satisfy their judgment against Pool Masters. Mr. and Mrs. Alboniga satisfy the statutory criteria for eligibility for payment from the Fund in the amount of $10,541.77. DOAH Case No. 99-1668: Salvator Militello and Sharon Sidorski Salvator Militello and Sharon Sidorski entered into a contract with Pool Masters for construction of a swimming pool. The contract was executed on or about April 6, 1997. The total price stated in the contract was $24,295.00. Pool Masters represented to Mr. Militello and Ms. Sidorski that it was a licensed swimming pool contractor. Mr. Militello and Ms. Sidorski made payments to Pool Masters pursuant to the contract. Pool Masters excavated the hole for the pool and spa, installed basic plumbing, and poured the concrete for the pool. Pool Masters last worked on the swimming pool in October 1997. At the time Pool Masters ceased work on the pool, Mr. Militello and Ms. Sidorski had paid Pool Masters $19,389.00 for work done pursuant to the contract. Although Pool Masters represented to them that the payments would be used to pay subcontractors and materialmen, there were subcontractors and materialmen who were not paid. Liens were filed against Mr. Militello's and Ms. Sidorski's property, and they paid the subcontractors and materialmen directly in order to get the liens released. On January 17, 1998, the United States Bankruptcy Court for the Southern District of Florida issued a Notice of Commencement of Case Under Chapter 7 of the Bankruptcy Code, showing that Pool Masters had filed for bankruptcy on January 7, 1998. On or about March 11, 1998, Mr. Militello and Ms. Sidorski submitted a Construction Industries Recovery Fund Claim Form to the Board, naming Pool Masters as the contractor. In an order entered April 20, 1998, the bankruptcy court lifted the automatic stay to allow Mr. Militello and Ms. Sidorski to file suit against Pool Masters. Mr. Militello and Ms. Sidorski filed a complaint against Pool Masters in the Circuit Court for the Seventeenth Judicial Circuit in Broward County, Florida, seeking damages for breach of the contract for construction of the pool. Mr. Militello and Ms. Sidorski alleged in the complaint that Pool Masters had failed to complete the work; failed to perform in a reasonable and timely manner and abandoned the project for more than 90 days which is a violation of F.S. 489.129(1)(k) [Section 489.129(1)(j)];[ 15/ ] falsely represented that monies paid to them were paid to materialmen and sub- contractors which resulted in financial harm to the Plaintiffs which is a violation of F.S. 489.129(1)(l) [Section 489.129(1)(k)];[ 16/ ] committed mismanagement and misconduct which caused Plaintiffs financial harm as of [sic] liens were recorded as against the Plaintiff's [sic] home in violation of F.S. 489.129(1)(h)(1) [Section 489.129(1)(g)1.];[ 17/ ] f [sic]. committed mismanagement and misconduct which caused Plaintiffs financial harm in that the percentage of completion is less than the percentage of the total contract price paid in violation of F.S. 489.129(1)(h)(2) [Section 489.129(1)(g)2.].[ 18/ ] Mr. Militello and Ms. Sidorski further alleged in the complaint that the cost to complete the pool after construction was abandoned by Pool Masters was $13,544.00 and that they paid $1,641.68 to satisfy liens and unpaid subcontractors and materialmen, for total damages of $15,185.68. The circuit court entered a Final Judgment "pursuant to stipulation" on August 4, 1998, awarding Mr. Militello and Ms. Sidorski $15,185.68, to be recovered from Pool Masters, plus interest at the statutory rate. In a letter from their attorney dated August 12, 1998, Mr. Militello and Ms. Sidorski submitted to the Board additional documents to support their claim against the Construction Industries Recovery Fund, based on their Final Judgment against Pool Masters. The final report of the Trustee of Pool Masters' bankruptcy estate, dated December 1, 1999, indicated that Pool Masters had no funds remaining after disbursement for administrative expenses. Mr. Militello and Ms. Sidorski did not receive any funds from the bankruptcy estate or any other source to satisfy their judgment against Pool Masters. Mr. Militello and Ms. Sidorski satisfy the statutory criteria for eligibility for payment from the Fund in the amount of $15,185.68. DOAH Case No. 00-0024: Jack and Paula Tieger Jack and Paula Tieger entered into a contract with Pool Masters for construction of a swimming pool. The contract was executed on or about December 17, 1995. The total price stated in the contract was $28,200.00. Pursuant to the contract, Pool Masters built a pool and screen enclosure, and Mr. and Mrs. Tieger paid Pool Masters the price specified in the contract. Mr. and Mrs. Tieger were not, however, satisfied with the work done by Pool Masters, and, in or around 1997, they filed a complaint for breach of contract against Pool Masters in the Circuit Court of the Seventeenth Judicial Circuit, in Broward County, Florida. In the complaint, Mr. and Mrs. Tieger alleged that Pool Masters had breached the contract: By failing to adequately explain the technical terms used in the Agreement to the TIEGERS; By failing to install a vacuum line with valve as specified in the Agreement; By failing to install anti-corrosive handrails in the swimming pool; By failing to properly install and/or provide a properly functioning waterfall as specified in the Agreement; By failing to properly fill the area behind the waterfall; By unilaterally, and or the TIEGERS' [sic] objection, placing a tile with the "Pool Masters" logo on the steps heading into the pool: By failing to re-route the TIEGERS' [sic] sprinkler system in a timely manner; By failing to advise the TIEGERS that they were going to need to pay for and install a separate circuit breaker box as part of the installation of the swimming pool; and By failing to install the second screen door as specified in the Agreement. Mr. and Mrs. Tieger did not identify the amount of damages they allegedly suffered as a result of Pool Masters's alleged breach of contract. Mr. and Mrs. Tieger were not aware that Pool Masters had declared bankruptcy until January 1998, when Mrs. Tieger went to Pool Masters' office and found the notice on the door. A non-jury trial was held before the circuit court on March 5, 1998; Pool Masters did not attend the trial. In a Final Judgment entered on March 25, 1998, the court awarded Mr. and Mrs. Tieger $4,200 as compensatory damages to be recovered from Pool Masters. In a Proof of Claim dated May 13, 1998, and filed with the United States Bankruptcy Court of the Southern District of Florida, Mr. and Mrs. Tieger submitted an unsecured claim against Pool Masters' bankruptcy estate in the amount of $7,300.00, which represented the compensatory damages awarded in the final judgment, together with attorney's fees and costs. Mr. and Mrs. Tieger have not collected any portion of their judgment against Pool Masters. Mr. and Mrs. Tieger submitted to the Board a Construction Industries Recovery Fund Claim Form dated December 5, 1998, and the Board awarded Mr. and Mrs. Tieger $800.00, representing the cost of the vacuum line with valve and the second screen door which Pool Masters had not installed. Mr. and Mrs. Tieger do not satisfy the statutory criteria for eligibility for payment from the Fund. Mr. and Mrs. Tieger failed to establish that they filed their claim with the Board within two years of the date they discovered the alleged deficiencies in the pool, and they failed to establish that the final judgment against Pool Masters was based on a violation of Section 489.129(1)(g), (j), or (k), Florida Statutes (Supp. 1998). The evidence presented herein is not sufficient to establish that Mr. Kiselius is the licensee against whom the claimants obtained final judgments.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, 25/ it is RECOMMENDED that the Construction Industry Licensing Board: Enter final orders as follows: In DOAH Case No. 99-1665, finding Eugene Santibanez and Alexander Pappas eligible for payment from the Fund in the amount of $17,675.00, in satisfaction of a final judgment against Pool Masters, Inc.; In DOAH Case No. 99-1666, finding Klaus and Lucrecia Mueller eligible for payment from the Fund in the amount of $13,299.51, in satisfaction of a final judgment against Pool Masters, Inc.; In DOAH Case No. 99-1667, finding Mario and Martha Alboniga eligible for payment from the Fund in the amount of $10,541.77, in satisfaction of a final judgment against Pool Masters, Inc.; In DOAH Case No. 99-1668, finding Salvator Militello and Sharon Sidorski eligible for payment from the Fund in the amount of $15,185.68, in satisfaction of a final judgment against Pool Masters, Inc.; and In DOAH Case No. 00-0024, dismissing the claim of Jack and Linda Tieger for payment from the Fund. Determine that Christopher P. Kiselius is not the "licensee" whose license is subject to automatic suspension pursuant to Section 489.143(7), Florida Statutes (Supp. 1998), as a result of payments to the claimants in DOAH Case Nos. 99- 1665, 99-1666, 99-1667, and 99-1668. DONE AND ENTERED this 31st day of August, 2000, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2000.
Findings Of Fact At all times material hereto, Respondent has been a certified pool contractor in the state of Florida, having been issued License No. CP C029646. At all tines material hereto, Respondent has been the qualifying agent for Pools by Andrews, Inc., and the owner of that company. On August 21, 1986, George Silvers, a building inspector for the Village of Tequesta, saw people working at a pool site with no identification on the truck parked nearby. When he stopped, he discovered a crew installing- plumbing pipes for a swimming pool. When he asked for identification, Roland R. Androy identified himself as an employee of Pools by Andrews, Inc. Although "piping a pool" does not itself require specialized licensure, Silvers asked Androy if he were a licensed contractor, and Androy said that he was not. By way of further identification, Androy produced a personal card which read "Andy's Elite Pools." Silvers "red flagged" the job stopping construction and filed a complaint with the Department of Professional Regulation. Androy was an employee of Pools by Andrews, Inc., for approximately one year in 1974. He returned to Florida and again became an employee of Pools by Andrews, Inc. in February, 1985. During the remainder of that calendar year Androy drew a regular weekly salary from that company, received holiday pay, and drove a company vehicle. Taxes were deducted from his salary check, and the company provided him with health insurance. Androy was a fast worker and frequently finished piping pools early in the day at which time he was given odd jobs to perform for the company such as building shelves in the warehouse. Androy decided that he could make the same amount of money and substantially shorten his work day if he were paid on a piecework basis rather than for an eight hour work day. That way he would also be able to 'moonlight' by using his free time performing maintenance and repair work for swimming pool owners. Respondent agreed to pay Androy on the basis of piecework rather than a 40-hour work week. Since January 1, 1986, Androy appears at Pools by Andrews, Inc., at 6:00 a.m. six days a week at which time he is given a list of pools to plumb that day. All materials and equipment necessary to perform the work are supplied by the Respondent. When Androy finishes, he goes home. Every Friday he gives Respondent a list of pools that he piped that week, and Respondent pays Androy by check. Because Androy wanted to be free to leave when he finishes that day's work, he no longer drives a company truck but rather drives his own truck so he does not have to return the truck before he can go home. Under the new salary arrangement, he is paid by the job and no longer receives a regular weekly salary or holiday pay or health insurance. Further, Respondent has ceased deducting withholding tax and social security taxes from Androy's paycheck. The card which Androy gave to Inspector Silver is a card that he used prior to moving to Florida. He had new cards printed with his Florida address and telephone number. He uses them when persons ask how they can get in touch with him. Respondent had no knowledge of Androy having or using such a card. As a certified pool contractor, Respondent is aware of the requirements for licensure, that is, installation of a swimming pool must be done by a licensed contractor. However, there is no requirement for licensure for that portion of the installation known as piping a pool. Rather, that work can be performed by anyone under the supervision of a licensed contractor. Further, no separate permit is required for that "plumbing" portion of pool installation. All permits for the job in question were obtained by Pools by Andrews, Inc., pursuant to Respondent's state licensure. No other permits were necessary for the job, including the work done for Respondent by Androy. Respondent (like Androy) believes that Androy is an employee of his and not an independent contractor or a subcontractor. There is no intent on Respondent's part to evade he state licensure requirements. Respondent has had no other disciplinary actions filed against him.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding Respondent not guilty and dismissing the Administrative Complaint filed against him in this cause. DONE and RECOMMENDED this 29th day of February, 1988, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4395 Petitioner's proposed findings of fact numbered 1, 2, and 4-6 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of tact numbered 2 has been rejected as not being supported by any evidence in this cause. Petitioner's proposed finding of fact numbered 7 has been rejected as being contrary to the evidence in this cause. Respondent's proposed findings of fact numbered 1, 2, 6, 8, 9, and 12 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 3, 7, and 10 have been rejected as being irrelevant to the issues under consideration herein. Respondent's proposed findings of fact numbered 4, 5, and 11 have been rejected as not constituting findings of fact but rather as constituting argument of counsel or conclusions of law. COPIES FURNISHED: Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 David L. Swanson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Edward W. Andrews 8300 Resource Drive Riviera Beach, Florida 33404 William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
The Issue Whether or not the Respondent's activity and conduct in the performance and completion of several construction projects constitute unreasonable or dilatory practices and also whether Respondent's workmanship on such projects was of such an inferior quality that it would indicate proof and continued evidence of gross negligence or misconduct by Respondent in the practice of contracting within the meaning of Chapter 489.129(1)(m), Florida Statutes (1979). 2/ Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel, the memoranda submitted, and the entire record compiled herein, I hereby make the following:
Findings Of Fact By its Administrative Complaint signed April 27, 1981, Petitioner, Florida Construction Industry Licensing Board, seeks to revoke Respondent's license to practice the profession of contracting and to impose a civil penalty based on conduct set forth hereinafter. Respondent, Charles H. Bromley, is a certified pool contractor holding License No. CP-007871 (Petitioner's Composite Exhibit No. 1). During times material to the allegations of the Administrative Complaint herein, Respondent was a qualifying agent, pursuant to Section 489.119, Florida Statutes, for both Wands Construction Company, Inc., and for Magic Wands Pools, Inc. Respondent's testimony established that he was part owner of Wands Construction Company, Inc., was an officer of that company and deemed himself responsible for its activities. Respondent testified that he owned no stock in the predecessor company, Magic Wands Pools, Inc., nor was he an officer of that corporation and was not directly responsible for contracts undertaken by that company. Respondent's position is that at least two of these construction projects (Derfler and Dubovick) were projects undertaken by Magic Wands Pools, Inc., and completed by Respondent, doing business as, Wands Construction Company, Inc., inasmuch as Magic Wands Pools closed its doors in late 1979. Wands Construction Company, Inc., entered into a contract with Mariner Village, Inc., to construct a pool at a condominium site being developed by that corporation. The contract was dated September 6, 1979, and called for completion of the pool within six weeks from the date of issuance of a permit. The permit for pool construction was issued on November 6, 1979. Respondent was unable to complete construction of the pool at Mariner Village, inasmuch as problems developed after the pool was filled which caused the pool walls and decking to crack and leak. Respondent attempted to correct the deficiencies in the pool until approximately August of 1980, at which time he was ordered off the job by Mariner Village, Inc. Robert Hamilton, the developer and president of Mariner Village, was the person with whom Respondent negotiated the contract to build the pool for Mariner Village. During the course of time in which Respondent was attempting to correct the problems at Mariner Village, its president, Robert Hamilton, sent approximately six mailgrams to Petitioner reciting his contention that Mariner Village considered Respondent's actions to be a breach of its contract; that the pool was not completed in a professional-like manner and that Respondent's overall performance, or lack thereof, constituted negligence. (Petitioner's Composite Exhibits 3 and 4.) When Respondent completed the construction phase of the pool, neither the city nor the county would issue a certificate of occupancy to allow the residents of Mariner Village to use the pool. While it was noted that the county initially issued Respondent a certificate of occupancy for its construction of this pool site, that certificate was immediately revoked due to surface cracks in the pool on the north, east and west ends of the pool once it was filled to capacity. Robert Hamilton, president of Mariner Village, testified that at this time (during the hearing) he thought that the issuance of a certificate of occupancy was imminent and that while the price called for in the contract between Respondent and Mariner Village was $20,450.00, it (Mariner Village) had expended or was obligated to expend sums totaling $70,000.00 to complete the pool. Mr. Hamilton ordered two engineering studies to examine and report on performance in the Respondent's construction of the pool. According to Hamilton, the reports revealed that the pool was erected on "good" pilings. Respondent and Leslie Derfler entered into a contract on June 9, 1978, to construct a pool at his residence. The contract price was paid in full and the pool was completed, however, during the spring of 1979, Mr. Derfler detected an opening around the tile grout near the leaf-skimmer. The matter was immediately called to Respondent's attention. Failing to get a prompt response to his complaint, Mr. Derfler contacted the Better Business Bureau after which Mr. Derfler was able to communicate with Respondent during March of 1980. Respondent dispatched a repairman to regrout the tiles in the area around the leaf-skimmer, however, the repairman failed to regrout the tiles which he replaced. As a result, the door of the skimmer became inoperative and separated from the skimmer. Repeated attempts by Mr. Derfler to contact Respondent were unavailing and Mr. Derfler called another company (Boca Pool-Trol Laboratories, Inc.) to finish the necessary work. In this regard, evidence reveals that Respondent reimbursed Mr. Derfler for the monies paid to the Boca Pool-Trol Laboratories, Inc. Respondent and Lindberg Development Company, through its assistant project manager, Taisto Pistkan, entered a contract on January 31, 1980, for the installation of a commercial swimming pool at Shore Heights Condominiums in Lantana, South Palm Beach, Florida. Respondent commenced construction on the pool during August, 1980, and the pool was not completed, such that it could be used, until June, 1981. Mr. Pistkan had to make repeated requests of Respondent to correct numerous problems, including leaks, falling plaster and tiles. When Respondent initially completed construction of the pool and it was filled, during September, 1980, leaks surfaced and approximately nine months later (June, 1981) Respondent completed construction of the pool and a certificate of occupancy was issued. In this regard, Respondent admitted during the hearing that it took an inordinate amount of time to make the necessary repairs to get the Lindberg pool certified. On August 10, 1979, Mr. and Mrs. Melvin Dubovick entered into a contract with Magic Wands Pools to construct a pool at their residence in Delray Beach, Florida. This contract called for the completion of the pool within six weeks from the date that the permit was issued. In October of 1979, an agent of Wands Construction, which agent had previously been an agent of Magic Wands Pools, informed Mr. Dubovick that he would have to enter into a new contract due to a reorganization of the pool company. As a result of that advice, the Dubovicks and Respondent entered into another contract with Wands Construction Company, Inc., on October 25, 1979. (Petitioner's Exhibits 10 and 11.) According to Mr. Dubovick, the second contract was signed to "straighten out the paper work." Mr. Dubovick was advised that all of the material terms of the new contract would remain unchanged and that the work would be completed within approximately eight weeks. However, the contract with Wands Construction Company does not contain a completion date. Excavation for the pool was made during the middle of October, 1979. Thereafter, no further work was done during that year and the wooden deck of the Dubovicks' home, which was adjacent to the hole dug for the pool, collapsed on New Years Eve, 1979. Thereafter, there were a number of problems with the construction of the pool, including the fact that a spa was not built as called for in the plans for the pool which necessitated that the Respondent remove a portion of poured gunite around the pool's deck; the filter was improperly installed and leaks surfaced when the pool was filled, causing Respondent to place numerous patches and filter outlets in the pool. Additionally, the slope of the pool decking was improper and caused a flooding condition around the Dubovicks' patio. The dimensions of the pool were not completed according to plans in that the length of the pool as completed is 30 feet, 3 inches, whereas the plans called for the pool to be 34 feet in length. The contract provides that the pool would have a 15,000 gallon capacity whereas Mr. Dubovick contends that he has never been able to measure more than a 10,000 gallon capacity while he filled the pool. The pool was completed in July of 1980. Kim Parker, a certified pool contractor, testified on behalf of Petitioner concerning two of the projects complained of in the Administrative Complaint. Consultant Parker is a licensed pool contractor and has been certified approximately two years. He is presently the general manager for Almar Pools. Mr. Parker has supervised pool construction in excess of two years. Mr. Parker visited the Mariner Village project on August 28, 1981, and noted hairline cracks in the plaster around the pool. Those cracks indicated to him that the plaster was either improperly applied or cured. He also noted a return fitting protruding into the pool, which he considered to he evidence of "shoddy" workmanship. Mr. Parker also noticed that the pumps in the pump room were not installed in a "professional" manner. During this time period, Mr. Parker also visited the Dubovicks' residence and he noted that an air leak existed at the filter pump, which caused a loud noise and that the pool was situated approximately three inches above the patio which created a drainage problem. In this regard, the Dubovicks testified that two doors were ruined due to water drainage problems around the pool area. Mr. Parker considered the workmanship around the Dubovick pool to be professional in its appearance although he did note that the pool was not constructed to the measurements provided for in the contract. Respondent's Defense Respondent, Charles Bromley, qualified Magic Wands Pools during 1978. He did so, according to him, based on "bad legal advice." Respondent encountered numerous problems completing pools that were under construction for Magic Wands Pools while he also was handling the day-to-day affairs of the successor corporation. Respondent has completed all except two out of forty-two pools that remained incomplete when he took over and Magic Wands Pools ceased operations in late 1979. Respondent contends that the former owner dumped "problem" pools on him which included the Mariner Village pool. William Sheldon, a professional engineer who has acted as a consultant in the design of numerous pools (in excess of 1,000) was called as a witness to testify on behalf of Respondent. Mr. Sheldon visited the Mariner Village pool and studied the design. He concluded that inadequate pilings were the source of the problems with the Mariner Village pool. That is, he considered the pilings failed to give adequate support and that this was of no fault or could not result in any liability on Respondent's part, inasmuch as the pool contractor was not responsible for the pilings erected to provide support for the pool. Mr. Sheldon noted that the pilings were driven to substantially less depth than other short piles in the area which led him to conclude that the developers used "soft" piles which had a low-blow content. He concluded that this caused cracks to radiate out of the east end of the pool creating leaks. Mr. Sheldon's examination of the elevations around the pool indicated that the gutters were level; that the problem was therefore one relating to the pool's substructure and not due to any construction deficiency. Also, Mr. Sheldon noted that, based on his calculations, without the usual allowance in calculations for an approximate ten percent (10 percent) deviation in a pool's volume capacity, his calculations indicated that the pool would hold approximately 11,872 gallons whereas the plans called for an approximate gallonage capacity of 10,500 to 11,000 gallons. Finally, Mr. Sheldon indicated that his review of the pool construction at Mariner Village only indicated that there existed one extrusion which he considered not to be critical in view of the overall construction and the pool's layout. Respondent testified that construction at Mariner Village progressed at a reasonable pace indicating that on May 8, 1980, the pool was marble coated, however, the equipment was not completed in the pool room and therefore work could not proceed as scheduled. According to Respondent, the earliest time that the equipment was in place, by other subcontractors, was approximately August 18, 1980, and work commenced rapidly thereafter by Respondent's employees. Respondent testified that an engineer inspected the gutters on July 16, 1980, at which time the gutters were properly erected and that within four days, i.e., on July 20, 1980, the gutters were "low" and the tiles had sunk. Respondent replaced the gutters without cost, however, he refused to do further work on the pool until the substructure was solidified. During this period, Respondent also testified that Mariner Village failed to timely honor draw payment requests which forced him to stop work until funds were received according to the schedule for draws. Finally, Respondent testified that the pilings and related substructures were obligations contracted for and hired independently by the general contractor. For this reason, the Respondent offers that he was not obligated for the failures surrounding the pool at Mariner Village. Respondent admits that the Dubovick project caused problems in that it was one that was left from the predecessor entity, Magic Wands Pools. He admits to delays in construction, however, he testified that he labored as faithfully as he could under the circumstances and further that all corrections and/or repairs were made that were called to his attention. As to the contention that the pool was constructed smaller than the 15,000 gallon volume capacity as reflected in the plans and specifications, Respondent indicates that the 15,000 gallon capacity was an error and further that the Dubovicks never indicated to him that there was any discrepancy or deviations from requirements in the plans and specifications as he was required to do according to the terms of the contract. Respondent indicates a willingness to negotiate with the Dubovicks respecting this omission. Finally, Respondent testified that he never met the Derflers, although he did dispatch a repairman out to remedy their problem. Respondent considered that the problem had been resolved and was unaware that it had not until the subject complaints were filed. Respondent has, however, refunded the Derflers' monies which were expended to hire an outside contractor. Throughout the time in which Respondent was attempting to complete or correct projects which had been started or initiated by Magic Wands Pools, he labored to do so with as much dispatch as possible under the circumstances. Respondent indicates that money was due and owing Magic Wands Pools by many customers who refused or was slow to pay. Respondent has been in the pool construction business in excess of twenty years and based on the experience gained and the nature of that business he (Respondent) refuses to guarantee a completion date for a pool due to weather and other uncertainties beyond his control. He again acknowledged that the repairs took a great deal of time to complete, however, he stressed that he labored to perform those repairs in as much dispatch as possible under the circumstances. Concluding, Respondent offered that part of his problem with the Dubovick pool had to do with his attempt to stay within the setback lines of the Dubovicks' property which prompted him to make minor deviations from the plans and specifications.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Respondent, who holds certified pool contractors License No. CP- 007871, be placed on probation by Petitioner for a period of one year. RECOMMENDED this 26th day of January, 1982, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 1982.
Findings Of Fact At all material times hereto, Respondent was the holder of a registered swimming pool contractors license number RP 0035739. Respondent's license was issued in the name of Malicki Pools, Terry W. Malicki. In January, 1981, Gary Wieland entered into a contract with Patrick Barr d/b/a Pool and Spa World. Barr was to construct a pool for Weiland in Port Charlotte for $7,856.00. Barr had become known to Wieland as a builder of swimming pools through a neighbor. Barr stated to Wieland that he was a pool contractor. Wieland made all payments due under the contract to Barr. Petitioner's evidence established that the Wieland swimming pool required a building permit. On March 3, 1981, Terry Malicki d/b/a Malicki Pools obtained permit number 66970 to construct a pool at Wieland's residence in Port Charlotte. Wieland's testimony established that Malicki constructed the pool at his residence. However, all of his dealings were with Barr. Barr was not licensed as a swimming pool contractor in Charlotte County or in Florida, and was convicted in the Charlotte County court of acting as a contractor without being licensed. Mr. Robert Guariglia entered into a contract with Barr to construct a swimming pool for $9,500.00. The pool was to be constructed at Lot 17, Block 402, Subdivision 23 or 913 Cherry Chase, Port Charlotte, Florida. Petitioner's evidence established that the Guariglia pool required a building permit. On June 10, 1981, Terry Malicki d/b/a Malicki Pools obtained permit number 68962 to construct a pool at Lot 17, Block 402, Subdivision 23 or 913 Cherry Chase, Port Charlotte, Florida. Guariglia paid the first installment of his contract by check to Barr in the amount of $3,325.00. However, because the pool was not level, Guariglia told Barr or Malicki who was supervising the work that he wanted the pool redone or removed. The pool was later removed and Guariglia had to pay $1,400 to have his property restored. As noted above, Barr was not licensed as a swimming pool contractor in Charlotte County or in Florida, and was convicted of acting as a contractor without being licensed. However, the swimming pool constructed at the identified Guariglia residence required a building permit. On September 3, 1981, the Charlotte County Building Board suspended the certificate of competency of the Respondent until such time as he corrected all matters which were then pending before that Board. On November 5, 1981, the Charlotte County Building Board reinstated Malicki's license.
Recommendation In consideration of the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order suspending the swimming pool contractor's license issued to Respondent for one (1) year. DONE and ENTERED this 22nd day of April, 1983, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1983. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Terry W. Malicki c/o Malicki Pools 1788 S.W. Sicily Avenue Port Charlotte, Florida 33952 Stephen Schwartz, Esquire 680 Aaron Street, N.W. Port Charlotte, Florida 33952 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Based on the evidence presented, the following facts were found: At all times pertinent to this case, Respondent held two active contractor's licenses issued by the State of Florida, RP 0033354 and CP 015029. Respondent's current address is 1316 Hoffner Avenue, Orlando, Florida 32809. At all times pertinent to this case, Respondent owned the firm Family Pools and did business as a pool contractor under that name. At no time did Respondent ever qualify his firm, under whose name he did business, with the Florida Construction Industry Licensing Board (CILB). On some date not specified, in June, 1980, Alphonse J. and Pauline L. Rodier contracted with Family Pools to build a pool at their residence at 601 Michigan Avenue, Englewood, Sarasota County, Florida for a price of 6,700. The contract was signed by Respondent for Family Pools. The pool price was to include a screened enclosure and deck, and the entire package was to be completed by July 4, 1980. The pool was paid for by two checks from Coast Federal Sayings and Loan Association in Sarasota from the proceeds of a home improvement loan and by a final check in the amount of $900 from the Rodiers, direct, on October 13, 1980. Respondent subcontracted the pool enclosure to Climatrol Screen Company of Enqlewood, Florida, for $2,065 but failed to pay this subcontractor. As a result, on November 26, 1980, Climatrol filed a lien against Rodier's property which was released only when the Rodiers paid an additional $790 which had not been satisfied by the Respondent. Respondent had satisfied part of the debt to Climatrol by relinquishing title to a truck he owned. On July 3, 1980, Family Pools contracted with Elmer J. and Carla T. Taylor, of Bunnell, Florida, to build an above-ground pool on their property for $4,800.00. The pool was to have a one year warranty against defective parts and a 20-year prorated replacement policy. According to the contract, the pool price included the pump, liner, filter, and walls, along with all other parts. The pool was constructed by employees of Family Pools about three or four weeks after the contract was signed. Not long after the pool was completed and filled, Mr. Taylor noticed that the vinyl liner was protruding out beneath the bottom of the metal retaining wall. His calls to Family Pools were never answered by Respondent with whom he asked to talk and repair work on this problem was not accomplished by the Respondent or Family Pools. Mr. Taylor had to do the work himself and Family Pools would not honor the warranty. Respondent offers the completion certificate executed by the Taylors on August 21, 1980,as evidence the pool was installed properly and the Taylors were satisfied. Mr. Taylor indicates he signed that certificate in blank under pressure from Respondent's agent, who cajoled him into doing it on the basis that if he did not, Family Pools could not be paid by the finance company under the installment sales contract. Also, during the period of the one year warranty, the pool pump burned out. Mr. Taylor had to replace that and pay for it himself, as the warranty was not honored. Respondent contends only a 90-day warranty on the pump, but that appears nowhere in the contract, which, in its description of the pool covered by the one year warranty, includes the pump. On August 29, 1980, Family Pools contracted with Janice Conover to build a swimming pool at her home in Venice, Florida for $4,780. The pool was to be completed approximately 30 days after excavation at the site. Between August 29, 1980, and December, 1980, Ms. Conover paid Family Pools a total of $4,741 by checks which were endorsed by "P. Vescera d/b/a Family Pools" or "Pasquale M. Vescera." On October 2, 1980, Respondent pulled a permit No. 7330- N from the Sarasota County Building Department, in his own name, to construct Ms. Conover's pool. In February, 1981, when the pool was only about fifty percent complete, Respondent ceased work on Ms. Conover's pool without giving her any notice or reason therefor. When Respondent stopped work, he had only dug the hole for the pool. The liner had been delivered but was not installed. The braces were there but not affixed, notwithstanding Ms. Conover had paid almost in full for the pool. As a result, she contracted with Richard Thompson, Respondent's former employee, to finish the work Respondent had started because at this point she could not find the Respondent. Thompson installed the brackets, the liner, and the deck. She had to pay extra for the pump, the chemicals, and the sweep--all of which, except for the sweep, she had paid for when she paid Respondent's price. Respondent never returned to complete Ms. Conover's pool. On July 7, 1980, Family Pools contracted with Robert A. and Florence L. Peipher to build a pool at their property in Port Charlotte, Florida, for a price of $6,900. Between July 7 and November 28, 1980, the Peiphers paid Family Pools, by checks, the sum of $6,905. All checks-were endorsed for deposit, "P. Vescera d/b/a Family Pools." The pool price was to include a screened pool enclosure and in September 1980, Family Pools contracted with Climatrol to build the screened enclosure for Peipher's pool for $1,807. Respondent and Family Pools failed to pay Climatrol for the enclosure and as a result, Climatrol filed a lien against the Peipher's property for $1,807 which was satisfied on March 9, 1981, by the Peiphers who paid Climatrol the amount owed. On March 2, 1981, the Peiphers filed a complaint against Respondent with the Contractor License Division of the Charlotte County Building Department because of Respondent's failure to pay Climatrol and the resultant cost to them. As a result of this complaint and the subsequent investigation into the allegations, the matter was referred to the Charlotte County Building Board which, at its meeting on May 7, 1981, after notice to Respondent, voted to revoke Respondent's permit privileges in Charlotte County until he made restitution to the Peiphers and to notify the State of Respondent's actions requesting state action against his license. Respondent suffered severe financial setbacks just about the time of these incidents. He was hospitalized for a period of five or six weeks and upon his return to his business found that he had been "robbed" of approximately $50,000 worth of fully paid for inventory. When he reported the shortage to the local law enforcement officials, they told him that since there was no evidence of a breaking in, they could do nothing about it. In addition, he could not recover from his insurance company for the same reason. There was no evidence other than Respondent's sworn testimony that there was a shortage or that he reported the loss to either agency. Respondent has been in the pool business in Florida for five years and in New Jersey for 32 years before that. He feels the cause of his problem is the fact that he trusted the people who worked for him who took advantage of him. During the entire period of time he was in business in Florida he took no money from the company for his personal use, living instead on income from a mortgage he owned in New Jersey. He subsequently filed for bankruptcy on March 9, 1981. The $15,000 in current accounts receivable he had on the books at that time was utilized in the bankruptcy proceeding to pay creditors. He got-none of it. He is now working in Orlando, Florida, for a pool rehabilitation company owned by his wife and her father. Respondent alleges that on July 15, 1980, he paid Richard Thompson $1,100 to complete work started on several pools, including that of Ms. Conover. Review of the prior findings of fact, however, shows that the contract with Ms. Conover was not entered into until approximately 45 days after Respondent supposedly made this payment to cover the work left undone on her pool. In light of that development, I find his contention completely without merit or basis in fact. Respondent admits that people were hurt as a result of his actions and he regrets this. However, he claims these few incidents are insignificant when compared with the over 500 satisfied customers he alleges he has served over the years. Finally, Respondent contends that early in 1980, after being advised that he had passed the test to be a certified pool contractor, he wrote to Petitioner and, after advising how he was registered and doing business, asked if he needed to make any changes in license registration. He did in fact do this and received no reply. He thereafter assumed he was acting correctly in that regard and that appears to be a justified assumption.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent's license as a contractor be suspended for two years and that he be assessed an administrative fine of $500. RECOMMENDED this 16th day of May, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1983. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Pasquale M. Vescera 1316 Hoffner Avenue Orlando, Florida 32809 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact When the third vinyl liner Brenda Hanna had installed in her swimming pool also ripped, she decided concrete would serve better. A friend referred her to respondent Richard Cobb. Mrs. Hanna and Mr. Cobb entered into a written agreement on March 10, 1977, by which Mr. Cobb undertook, among other things, to cement the pool walls and bottom, in exchange for eighteen hundred eighty dollars ($1,880,00). Plumbing was not covered by this agreement. Approximately one month later two workmen began on the project. Work progressed sporadically. Mr. Cobb himself helped remove the vinyl wall, remove aluminum plates, widen the existing excavation and replace the aluminum plates with the intention of using them as part of the forms for pouring the concrete swimming pool walls. Mr. Cobb also put some steel bars in place, After several telephone calls, on October 17, 1977, Mrs. Hanna wrote respondent saying he had 15 days in which to resume work and 45 days thereafter to finish. On or about November 1, 1977, respondent appeared at the job site. The last day he worked on the project Mrs. Hanna told Mr. Cobb she would call him when she had gotten the plumbing finished. Mrs. Hanna never told Mr. Cobb not to finish the work he began for her. On or about March 10, 1977, Mrs. Hanna wrote a check in favor of DLC, a contracting company, in the amount of five hundred dollars ($500.00), which she intended as partial payment under the contract she entered into on March 10, 1977. Two weeks after work began, Mr. Cobb asked Mrs. Hanna for more money, saying that DLC had charged him five hundred dollars ($500.00) for getting the job for him. Mrs. Hanna gave him one hundred dollars ($100.00) at that time, After Mrs. Hanna investigated, she again discussed what had happened to the first five hundred dollars ($500.00) with Mr. Cobb who conceded that some bills were paid with the money. On another occasion, Mrs. Hanna advanced one hundred fifteen dollars ($115.00) which Mr. Cobb used to buy steel. Before beginning work Mr. Cobb, who held individual swimming pool servicing contractor's license No. RP 2997 from March 17, 1977, till June 30, 1977, secured building permit No. 77-338 to repair Mrs. Hanna's swimming pool. John F. Viking, an investigator in petitioner's employ since February 15, 1971, issued a notice of violation to Mr. Cobb in 1971 or 1972, when he was told that Mr. Cobb had been contracting without a license. In 1973, on the basis of similar information, he filed a complaint with the state attorney's office which he understood resulted in Mr. Cobb's conviction and probation. Lester A. Davis, a long time employee of the City of Gainesville and presently its acting building official, visited Mrs. Hanna's residence after Mr. Cobb had begun work and asked Mr. Cobb to show him engineering plans. In Mr. Davis' opinion, the plans Mr. Cobb showed him were not being followed. Mr. Davis told Mr. Cobb that he could finish the job only if he associated a contractor licensed to build swimming pools. Mr. Davis inspected and discovered that the bottom drain had been installed. No other plumbing was required to be done before cementing the pool walls and bottom.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner suspend respondent's license for one year. DONE and ENTERED this 28th day of November, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Michael Egan, Esquire Post Office Box 1386 Tallahassee, Florida 32302 Richard Cobb, Esquire 1238 Southest 18th Terrace Gainesville, Florida 32601 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. CASE NO.: 78-1553 RICHARD COBB, RP 0029977, 1238 S. E. 18th Terrace, Gainesville, Florida 32601, Respondent. /
Findings Of Fact Respondent is, and has been at all times material to this proceeding, a registered and certified pool contractor having been issued license numbers RP 0023613 and CP 0012607. Respondent's license number RP 0023613 has been delinquent since June 30, 1983, but his license number CP 0012607 was active and in full force and effect until he ceased doing business in approximately September, 1985. Respondent conducted his pool contracting business in the name of Hallmark Pools for approximately 14 years. The business entity "Hallmark Pools" was properly qualified and named on the Respondent's license. In 1985, the Respondent began to enter the business of designing outdoor patios and fountains, as well as pools. He wished to retain the good will he had gained operating under the name "Hallmark Pools" while gaining good will in the new name under which he planned to conduct business in the future, "Aquatic Environments, Inc." During this transition period, and until he closed his business, the Respondent's contracts and letterhead contained the names "Hallmark Pools" and "Aquatic Environments, Inc.," but that name never appeared on his licensure. On or about March 12, 1985, Respondent, through Hallmark Pools/Aquatic Environments, Inc., contracted with customers Mr. and Mrs. Allan Schaeffer to construct a screened-in pool and spa at their residence located at Archer Street, Lehigh Acres, Florida, for a contract price of $20,000. Later approximately $1,700 of extras were added to the contract. On or about March 21, 1985, the Schaeffers paid the Respondent $2,000 on the contract. On or about May 23, 1985, the Schaeffers paid another $17,000 on the contract. Approximately, $2,600 remained owing on the contract. The customers reside part of the time in New Jersey. In the contract, Respondent promised a June 15 completion date. When the customers arrived in Florida on or about June 14, they found that the project was not complete. When the customers contacted the Respondent, the work was resumed. The pool was quickly completed and was usable by the beginning of the July 4th weekend. Some punch list items remained to be done, but the Schaeffers preferred that the Respondent wait until after they returned to New Jersey in August, 1985. The evidence did not prove that the Respondent promised a June 15 completion date while knowing that he would not be able to finish the work by that date. During the summer of 1985, personal problems the Respondent was facing at the time mounted, and eventually he decided he no longer could continue to operate his business. He began to plan to close his business and have all pending matters either resolved by himself before he went out of business or resolved by his brother Chad Jackson, also a licensed pool contractor, after going out of business. He did this by assigning pending contracts to his brother. He also attempted to insure that all suppliers were paid either by himself before he went out of business or by his brother out of payments due under the contracts assigned to him. Except for the Schaeffer job, the Respondent's arrangements to close out his business did not result in any complaints. Near the end of August, 1985, the Schaeffers gave the Respondent a punch list of work still due under the contract to be done while the Schaeffers were in New Jersey. The Respondent called and told Mr. Schaeffer that he was closing his business but that the punch list items would be taken care of. At the time, the Respondent also knew that approximately $1,300 was owed to Jones Industries Screen Enclosures, Inc. The Respondent expected his brother to pay Jones out of the $2,600 due on the Schaeffer contract, leaving $700 to compensate his brother for the punch list work and any warranty work. In fact, there also was $2,705.12 owed to a company named FAFCO Solar, which had subcontracted the solar heating on the Schaeffer contract. The Respondent had forgotten about this debt. FAFCO had billed the Respondent on July 15, 1985, but the Respondent did not pay it or arrange for its payment. FAFCO's second billing never reached the Respondent. The Respondent sent FAFC0, along with his other suppliers and subcontractors, a notice on August 22, 1985, that he was going out of business and that mail should be sent to his home address. On receipt of this notice on August 28, 1985, FAFC0 mailed a second billing to the home address but it was returned on August 30, 1985, marked: "Moved Left No Address". The Respondent's brother did the punch list work to Mr. Schaeffer's satisfaction and sent him a bill for the $2,600 balance due on the contract. Schaeffer never paid. The Respondent's brother never paid the Jones Industries bill (and never got the FAFCO bill). Jones Industries put a lien on the property at 1414 Archer Street for $1,388.75, which the Schaeffers eventually paid. FAFCO did not file a notice to owner and could not claim a lien on the property. FAFC0 never was paid. Both Jones Industries and FAFCO refused to do warranty repairs because they were not timely paid. The evidence did not prove that the Respondent inadequately supervised the Schaeffer job while he was still in business or after he went out of business. After he went out of business, he assigned the contract to a licensed pool contractor, his brother. Eventually, serious problems developed in the Schaeffer's pool at 1414 Archer Street. But the evidence did not prove that the Respondent or his brother were responsible. The serious problems of which the Schaeffers now complain should have been apparent from the outset if caused during construction of the pool. Yet complaints were not registered until much later. Meanwhile, improper maintenance of the pool by the Schaeffers or their pool maintenance contractor, or damage to the pool during maintenance, could have caused the current problems. For six months after the Respondent closed his business and left Ft. Myers, he was traveling in the western part of the country and had no mailing address and did not give one to the Construction Industry Licensing Board. Then, he returned to Florida to a St. Petersburg address which he gave to the Board.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Construction Industry Licensing Board enter a final order finding the Respondent guilty of violating Section 489.129(1)(g) and (m), Florida Statutes (1985), reprimand him for the violation of (g) and fine him $1000 for the violation of (m). RECOMMENDED in Tallahassee this 19th day of December, 1988. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3468 To comply with Section 120.59(2), Florida Statutes (1987), the following rulings are made on the Petitioner's proposed findings of fact: Rejected. (The license number was left blank.) Accepted and incorporated. Rejected as contrary to facts found. The Respondent arranged for payment of the Jones debt but disputes among the Schaeffers, Jones and the Respondent's brother led to Jones imposing a lien on the property which the Schaeffers eventually paid. The Respondent did not make arrangements to pay FAFCO, and that bill remains unpaid. 4.-9. Rejected as contrary to facts found. COPIES FURNISHED: David Bryant, Esquire 500 North Tampa Street Tampa, Florida 33602 Thomas Jackson 5203 109th Way North St. Petersburg, Florida 33708 Fred Seely Executive Director Construction Industry Licensing Post Office Box 2 Jacksonville, Florida 32201 Bruce D. Lamb General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
