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 pertinent times, respondent Henry J. Tinkler was licensed by petitioner as a swimming pool contractor, holding license No. 0024949, under the name of "Henry J. Tinkler." At one time, Fred C. Charlton worked as a "salesman" of swimming pool construction contracts for a Ft. Lauderdale construction company. When the Ft. Lauderdale company failed, several contracts to build swimming pools remained unexecuted. So that his "sales" would not have been in valid, Mr. Charlton organized Aquapool in late 1978 or early 1979 to step in to the shoes of the Ft. Lauderdale contractor. He has been president of the corporation since its inception. He knew that he could not pull building permits himself; and Mr. Charlton did not involve himself in the actual construction of the pools. Respondent became vice-president of Aquapool and held this office until September of 1979. Respondent has built several pools pursuant to oral agreements with Charlton (acting for Aquapool), to build all pools Aquapool "sold" in Pinellas County. In these transactions, Charlton made a profit and Tinkler made a profit. Respondent never applied for any building permit under Aquapool's name. He always used his own name or the name "Hank's Custom Pools." Respondent never made application to qualify Aquapool as a registered pool contractor in Florida. Neither did respondent make application to qualify "Hank's Custom Pools" as a registered pool contractor. Not uncommonly, contractors do business under fictitious trade names like "Hank's Custom Pools." Eventually one Clay Andrews of Jacksonville made application to quality Aquapool as a swimming pool contractor in Florida until November 17, 1979. Harry George Pugh and Grace L. Pugh signed, on May 19, 1979, a contract with Aquapool for construction of a swimming pool at their Indian Rocks Beach home. Petitioner's Exhibit No. 2. On the building permit application form, Petitioner's Exhibit No. 3, the contractor is listed as "Hank's Custom Pools." The application is dated June 19, 1979. Mr. Pugh never met Mr. Tinkler. Guy Jean and Jane A. Narejo also contracted with Aquapool to build a swimming pool at their home in Largo, Florida. Petitioner's Exhibit No. 4. Mr. Pugh never met Mr. Tinkler. On June 14, 1979, "H. Tinkler" applied for a permit to build the pool. The permit issued the following day. Petitioner's Exhibit No. 5. Willard L. Marks and Helen J. Marks signed, on May 1, 1979, a contract with Aquapool for construction of a swimming pool at their home in Clearwater, Florida. Petitioner's Exhibit No. 6. Mr. Marks never met Mr. Tinkler. H. J. Tinkler applied for a permit to build the pool on June 7, 1979. Petitioner's Exhibit No. 7. Swimming pool contractors ordinarily subcontract electrical work. Sometimes as many as four or five subcontractors participate in the building of a swimming pool. Petitioner's proposed recommended order has been considered and proposed findings of fact have been adopted except where they have been deemed irrelevant or unsupported by the evidence.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner suspend respondent's registration as a swimming pool contractor for sixty (60) days. DONE and ENTERED this 27th day of April, 1982, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Telephone: (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1982. COPIES FURNISHED: Michael Egan, Esquire 217 South Adams Street Tallahassee, Florida 32301 Gerald Nelson, Esquire 4950 West Kennedy Tampa, Florida 33609 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32302 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD DEPARTMENT OF PROFESSIONAL REGULATION/CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. CASE NO. 81-3043 HENRY J. TINKLER, RP 0024949 d/b/a Individual 5243 27th Avenue St. Petersburg, Florida 33710 Respondent. /
Findings Of Fact Petitioner is the Department of Professional Regulation. Respondent is James J. Hastings, the holder, at all times pertinent to these proceedings, of general contractor license number CG C009847. He is also the qualifying agent for Hastings Construction Co., Inc. James and Susan Cesiro, owners of a residence in Palm Bay, Florida, entered into a contract on June 13, 1985, with Mike Boyer, proprietor of a business known as American Fiberglass Pools, to furnish and install a swimming pool. The total contract price was $8500. The owners gave Boyer a $1,500 check at the time the contract was executed. On July 9, 1985, Boyer's employee obtained a second check from the owners for an additional $1,500 allegedly to complete the $3,000 required down payment. Unfortunately, the employee persuaded the owners to make this check payable to the employee personally. The employee subsequently disappeared after cashing the check. This complication resulted in some delay in the initiation of construction activities. On August 12, 1985, the owners were informed by Boyer that a contractor had been retained to install the fiberglass pool. On August 28, 1985, Respondent obtained a building permit from the City of Palm Bay authorizing the pool construction. The permit identified Respondent's company, Hastings Construction Co., Inc., as the contractor. The owners issued a check in the amount of $2,500 on September 6, 1985. Delivery of the check was made to Boyer, but was made payable to Respondent. In view of their past experience with furnishing a check payable to a party other than Boyer or his company, the owners obtained a receipt for the check from Boyer. The owners gave another check in the amount of $500 to Boyer on September 9, 1985. This check was also made payable to Respondent. Again, a receipt was obtained from Boyer by the owners. On September 23, 1985, Respondent personally received another check from the owners in the amount of $2,500. In September, 1985, after receipt of funds from the owners, Respondent and Boyer proceeded with the pool installation. While Boyer was present at the site more than Respondent, the Respondent was present every day at periodic intervals. The owners had the impression that Respondent was new at the installation of this type of pool. Boyer seemed to be more in charge of the construction and Respondent appeared to defer to him on questions asked by the owners during the installation process. This impression was confirmed at hearing by Respondent's admission that this was his first experience with this kind of pool. He had never "lifted pools over houses" and viewed the entire job as a "learning experience." Because of the tutorial nature of the situation, Respondent said he didn't enter into a formal contract with the owners. In May 1986, cracks appeared in the bottom of a portion of the pool. Respondent took the position that the pool should be repaired by Boyer under terms of the owners agreement with that individual. Respondent never prepared or accepted an assignment of the contract made by Boyer with the owners. Respondent is not an officer or employee of Boyer's business. Respondent is not a qualifying agent for Boyer or American Fiberglass Pools and those names do not appear on his license. The owners were never apprised that Respondent was "their" contractor. Respondent's testimony that a letter was sent from him to the owners on August 30, 1985, informing them of this fact is not credited in view of the Respondent's candor and demeanor while testifying on this point, the fact that he had obtained the building permit on August 28, 1985, and the owners denial that such letter was ever received. Respondent's credibility on this point was further undermined at one point in the hearing when he stated he was given this job by Boyer. Mike Boyer is not, and has never been, licensed by the Florida Construction Industry Licensing Board in accordance with Chapter 489, Florida Statutes. Respondent was aware that Boyer was not a licensed contractor. Respondent was previously disciplined by the Florida Construction Industry Licensing Board in Petitioner's case numbers 430077 and 50057, on or about October 29, 1984 and February 4, 1985, respectively. Discipline in the form of a $250 fine was imposed in the former case for Respondent's failure to qualify a company through which he was doing business and for deceptive representations in the practice of contracting. The latter disciplinary action resulted in the imposition of a $250 fine upon Respondent or suspension of his license for 60 days due to aiding and abetting an unlicensed individual and failing to qualify a business with the Board.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered suspending Respondent's licensure to practice contracting for one year and assessing an administrative fine in the amount of $2000. DONE AND RECOMMENDED this 18th day of March, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5328 The following constitutes my specific rulings on findings of fact submitted by the Petitioner. Included in finding number 2. Included in findings numbered 3 and 15. The last sentence is rejected as noncorroborative hearsay. Included in part in finding number 4. Included in part in finding number 5. Included in finding number 6. Included in findings numbered 7, 8, and 9. Included in finding number 10. Included in finding number 12. Included in finding number 13. Included in finding number 16. The Respondent submitted a document entitled Proposed Findings of Fact. The document consists of five unnumbered paragraphs in the nature of a closing argument as opposed to proposed findings of specific facts. This document of the Respondent has been reviewed by the Hearing Officer and numbers 1-5 applied to the paragraphs therein. Rulings on those paragraphs are as follows: Rejected as unnecessary. Rejected as unnecessary with the exception of the proffered August 30, 1985 letter. In this regard see finding number 14. Rejected as not supported by the evidence. Rejected as a conclusion of law not supported by the evidence. Rejected as unnecessary. COPIES FURNISHED: David L. Swanson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Mr. James J. Hastings 836 19th Place Vero Beach, Florida 32962 William O'Neil Department of Professional Regulation General Counsel 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seeley, Executive Director Construction Industry Licensing Post Office Box 2 Jacksonville, Florida 32201
The Issue The issues posed for decision herein are whether or not the certified pool contractor's license issued to Respondents Licensee, Edward G. Batter, should be revoked or suspended or the Licensee's right to practice thereunder should be withdrawn based on conduct which will be set forth hereinafter in detail as set out in the Administrative Complaint filed herein on August 23, 1979.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel and the entire record compiled herein, the following relevant facts are found. Edward G. Batter, d/b/a Tropicana Pools, Inc., (Respondent or Licensee) is a certified pool contractor who holds license No. CPC 012906. Respondent was first licensed on July 28, 1978, as qualifier of Tropicana Pools, Inc., which license was temporarily suspended in June, 1979, and remains in an invalid status to this date. By its Administrative Complaint, Petitioner's Executive Director took action to revoke or otherwise suspend the Respondent's rights to practice pursuant to his referenced license. As a licensed pool contractor, Respondent is subject to the Board's rules and regulations. (See Petitioner's Composite Exhibit 1.) A special meeting of the Board of Adjustment, Appeals and Examiners for general building contractors for Hillsborough County was held on Thursday, July 19, 1979, for the purpose of hearing certain allegations concerning the demise of Tropicana pools, Inc. Jerry Taylor, Petitioner's field investigator, presented the Hillsborough County Board with the results of an investigation of Respondent and presented several cases wherein funds were diverted after being collected for a specific contract to other projects or for other purposes and that projects for which funds had been collected had either been left unstarted or abandoned at the time Tropicana Pools, Inc., ceased doing business. At that meeting, the Respondent's construction activities were suspended by the Board until restitution or settlement was made and verified by affected parties. The temporary suspension by Hillsborough County became final during August of 1979. (Petitioner's Exhibits 2 and 3.) Howard Shaw, Director of Building and Zoning for the City of Tampa, appeared and testified to substantiate the disciplinary action taken against the Respondent by Hillsborough County during the summer of 1979. On June 7, 1979, Mr. and Mrs. James R. Stanton entered into a contract with Respondent to have a pool constructed for a price of $8,182.00. Respondent was paid a 10 percent deposit to commence construction of the Stantons' pool. Respondent absconded with the deposit and never notified the Stantons that their pool would not be built nor did Respondent return their deposit. (See Petitioner's Exhibits 4 and 5.) On April 19, 1979, Mr. and Mrs. Theodore Hillary entered into a contract for the construction of a swimming pool for a contract price of $8,130.00. Approximately $5,690.00 or approximately 70 percent of the contract sum was paid on June 18, 1979, and the work ceased on the Hillary project at a completion stage of approximately 40 percent. Respondent abandoned the Hillary project on approximately June 5, 1979. The Hillarys completed their pool at a price of approximately $5,000.00 over and above the contracted price. (Petitioner's Composite Exhibit 6.) On April 30, 1979, Mr. and Mrs. Leon Tope entered into a contract for the construction of a swimming pool at their residence for the contract price of $8,050.00. On June 18, 1979, the Topes had tendered to Respondent approximately 70 percent of the contract cost while the Respondent abandoned the construction of the Topes' pool after approximately 40 percent of the work was complete. Respondent abandoned the project on June 18, 1979, and the Topes completed the construction of their pool at a price of approximately $2,000.00 by engaging the services of other contractors in the area. (See Petitioner's Exhibits 7, 8, 9, 10, and the testimony of Jim Moran.) Jerry Taylor, Petitioner's field investigator, attended the probable cause hearing during August of 1979 in which the Hillsborough County Board of Examiners suspended the pool license of Respondent. Investigator Taylor briefed the Hillsborough County Board respecting the results of the investigation conducted by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Respondent's pool contractor's license No. CPC 012906 be REVOKED. ENTERED this 10th day of March, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675
Findings Of Fact Petitioner is the state agency charged, in conjunction with the Construction Industry Licensing Board, with the responsibility to prosecute Administrative Complaints pursuant to Chapters 489, 455, and 120 F.S., and the rules promulgated thereunder. At all times material to the Administrative Complaint herein, Respondent was licensed as a certified pool contractor in the State of Florida, holding license number CP 0009588. At all times material hereto, Respondent was the qualifying agent for Pools by L. S. Rule. On August 12, 1987, Ms. Mary Tillotson forwarded a $1,200 check to Pools by L. S. Rule for pool repair work including replacing the existing pool skimmer and furnishing and installing one row of new tile and remarcite. Respondent estimated the job would require two weeks to complete. On August 24, 1987, Ms. Tillotson formally entered into a written contract with Pools by L. S. Rule to perform the aforementioned pool repairs at her residence of 2110 North 41st Avenue, Hollywood, Florida for a price of $2,330.00. The contract actually signed by the parties, which is the contract which governs this case did not specify a completion date or state that "time is of the essence" for the job; however, the Respondent was clearly aware as of August 11, 1987 that Ms. Tillotson wanted the pool repaired by approximately August 24 or 25. On August 24, 1987, an employee of Pools by L. S. Rule removed the old skimmer from Ms. Tillotson's pool and replaced it with a new skimmer the next day. There was no further work done on Ms. Tillotson's pool by Pools by L. S. Rule after August 25, 1987. Ms. Tillotson contacted the Respondent repeatedly and the Respondent informed her that he was having an employment problem, but would have someone come out the next day. Neither the Respondent nor any of his employees ever visited the Tillotson residence again, with the exception of a brief visit by one employee wherein no work was performed. Ms. Tillotson discharged the Respondent on September 10, 1987, fifteen days or roughly two weeks after the contract was entered into and approximately the date the pool was supposed to have been completed. Upon cancellation, Ms. Tillotson demanded a refund of her entire $1200 deposit. Ms. Tillotson contracted with Adonis Pools, on September 11, 1987 to perform the same repairs as she had requested of Respondent. The repairs were completed by Adonis within three days. During the time of the Tillotson contract, Respondent proceeded with the construction of approximately five pools and maintained a staff of five employees. The reason offered at hearing for failure to proceed with Ms. Tillotson's pool was that he had lost a key employee and there had been rain delays. On September 21, 1987, Ms. Tillotson wrote the Respondent and requested a refund of $920, a compromise amount less than the full $1200 deposit, reflecting what she believed accounted for the services and material already expended by Respondent and Pools by L. S. Rule. Respondent refused to refund any of the deposit unless the amount were compromised upon his terms and Ms. Tillotson refused to accept what she regarded as partial payment. Ms. Tillotson filed suit against Respondent in November, 1987. She was awarded a judgment for $875 plus $54 in court costs, in the County Court in and for Broward County, Florida on April 20, 1988. The Respondent did not pay Ms. Tillotson the award monies on the date of judgment. He had already spent some of her deposit elsewhere. The Respondent has since failed to refund any portion of the deposit. The efforts Respondent has expended to negotiate or pay the judgment do not reflect good faith attempts at full payment under the judgment. Frank Abbott is a certified general contractor and a registered Florida Architect. Mr. Abbott was retained and tendered by the Department of Professional Regulation (DPR) as its expert witness on the duties and responsibilities of contractors in the construction of pools; he was accepted as such over objection. It was Mr. Abbott's opinion that the Tillotson pool job should have taken one or two weeks, and upon the material in the DPR's investigative file, he concluded that abandonment by Respondent had occurred; that because the contractor accepted a deposit, failed to perform, and did not return any funds, there had been financial misconduct; and that therefore Respondent was guilty of gross negligence or incompetence. However, Mr. Abbott never spoke to Tillotson or Rule, never saw the area, the job, or assessed the weather conditions. He saw only a poor xerox copy of the photograph of the skimmer installation which was ultimately admitted as P-5. He offered no narrative of what constituted gross negligence as far as the skimmer job was concerned and merely offered his own legal conclusion that abandonment and financial mismanagement constitute incompetence or gross negligence. Some of his opinion was based on the way he operates his own contracting business, rather than upon general education, training, and experience in the contracting profession. He had personally supervised the building of only a few pools and only had connection with building eleven pools. He had never personally built a pool or done any pool work or received any specific pool training. In drawing his conclusions and in forming his opinion, Mr. Abbott also made assumptions with regard to characterizations in the DPR investigative file which were either not necessarily supported by the greater weight of the credible evidence as a whole as presented at formal hearing or which were extraneous to the issues in the specific case at bar. Petitioner presented no evidence of any kind bearing on the charge that Respondent failed to timely secure a building permit.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Construction Industry Licensing Board enter a final order dismissing the charges against Respondent under Sections 489.129(1)(j) and (m) F.S, finding him guilty of violating Sections 489.129(1)(h) and (k) F.S., and imposing a $1,750 fine. DONE and RECOMMENDED this 19th day of December, 1988, Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3312 The following constitute specific rulings upon the parties' respective proposed findings of fact (PFOF) pursuant to Section 120.59(2) F.S. Petitioner's PFOF 1-11 Accepted, and with minor modifications of style, are adopted. 12-13 Accepted in substance but modified to conform to the greater weight of the credible evidence. 14-16 The expert opinions of Mr. Abbott are recited within the Recommended Order (RO), but were of little assistance to the trier of fact since they were mostly rendered in terms of raw conclusions of law rather than contracting expertise. To the extent they are credible and supported by the greater weight of the factual evidence of record, they have been accepted in the RO. For the most part they have been rejected for the aforesaid reason and for the reasons set out in FOF 14 and the Conclusions of Law (COL). Respondent's PFOF 1-9, and 22 Accepted. 10-11 Out of chronological context and thereby misleading as to the record evidence; for this reason and for the reason they are subordinate to the facts as found, they are rejected. 12 Sentence 1 is accepted. Sentence 2 is also out of chronological context and thereby misleading as to the record evidence and for this reason and for the reason it is immaterial, it is rejected. 13-14 Rejected as stated as not supported by the record evidence as a whole and as set out in FOF 13. 15-17 and 20 Rejected as not PFOF but proposed COL. 18-19 and 21 (on page 3 and on page 4) are partially accepted in substance in FOF 14 but otherwise are rejected as mere argument of counsel or as unnecessary. COPIES FURNISHED: Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 G. W. Harrell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399 Donald N. Bensen, Esquire 301 Southeast 10th Court Ft. Lauderdale, Florida 33316 Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether the claimants herein are entitled to payment from the Construction Industries Recovery Fund and, if so, the amount of the payment to which each claimant is entitled. Whether the license of the Petitioner is subject to automatic suspension pursuant to Section 489.143(7), Florida Statutes (Supp. 1998).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Fund is established by Section 489.140, Florida Statutes, for the purpose of reimbursing those persons who meet the eligibility requirements set forth in Section 489.141, Florida Statutes. The Board is the entity responsible for reviewing applications for payment from the Fund and entering orders approving or disapproving the applications. Sections 489.140(1) and 489.143(1), Florida Statutes. Mr. Kiselius is a licensed residential pool/spa contractor, having been first issued such a license in 1984. Mr. Kiselius's license is currently on inactive status, but at the times material to this action, Mr. Kiselius's license was active. Pool Masters was a Florida corporation incorporated on August 10, 1995. Frederick H. Martin and Abraham Zafrani were the sole shareholders of the corporation, and Mr. Martin was the President and Secretary of the corporation, and Mr. Zafrani was the Vice-President and Treasurer. From on or about October 24, 1995, until November 14, 1997, Mr. Kiselius was the qualifying agent for Pool Masters. The record does not reflect the date on which Pool Masters was issued its certificate of authority allowing it to engage in contracting as a business organization, but it was assigned Qualified Business Organization License Number QB0002327 on or about November 6, 1996. Pool Masters filed for bankruptcy pursuant to Chapter 7 of the United States Bankruptcy Code on January 1, 1998, and the corporation was administratively dissolved on October 16, 1998. DOAH Case No. 99-1665: Santibanez and Pappas Eugene Santibanez and Alexander Pappas entered into a contract with Pool Masters for construction of a swimming pool. The contract was executed on or about March 25, 1997. The total price stated in the contract was $21,000.00; a change order was executed on November 4, 1997, for an additional price of $2,890.00. Pool Masters represented to Mr. Santibanez and Mr. Pappas that it was a licensed swimming pool contractor. Pool Masters began work on the pool on or about May 17, 1997. Mr. Santibanez and Mr. Pappas made payments to Pool Masters pursuant to the contract, and Pool Masters excavated the hole for the pool, put in the foundation, and poured the concrete. Pool Masters ceased work on the swimming pool in late November 1997, after the concrete was poured. A week later, Mr. Santibanez heard that Pool Masters had declared bankruptcy. At the time Pool Masters ceased work on the pool, Mr. Santibanez and Mr. Pappas had paid Pool Masters a total of $19,690.00 for work done pursuant to the contract and change order. Although Pool Masters represented to them that the payments would be used to pay subcontractors and materialmen, there were subcontractors and materialmen who were not paid. At least one lien was filed against Mr. Santibanez's and Mr. Pappas's property, and they paid the subcontractors and materialmen directly in order to get the liens released. On January 17, 1998, the United States Bankruptcy Court for the Southern District of Florida issued a Notice of Commencement of Case Under Chapter 7 of the Bankruptcy Code, showing that Pool Masters had filed for bankruptcy on January 7, 1998. On or about March 11, 1998, Mr. Santibanez and Mr. Pappas submitted a Construction Industries Recovery Fund Claim Form to the Board, naming Pool Masters as the contractor. In an order entered April 20, 1998, the bankruptcy court lifted the automatic stay to allow Mr. Santibanez and Mr. Pappas to file suit against Pool Masters. Mr. Santibanez and Mr. Pappas filed a complaint against Pool Masters in the Circuit Court for the Seventeenth Judicial Circuit in Broward County, Florida, seeking damages for breach of the contract for construction of the pool. Mr. Santibanez and Mr. Pappas alleged in the complaint that Pool Masters had failed to complete the work; failed to perform in a reasonable and timely manner and abandoned the project for more than 90 days which is a violation of F.S. 489.129(1)(k) [Section 489.129(1)(j)];[ 3/ ] falsely represented that monies paid to them were paid to materialmen and sub- contractors which resulted in financial harm to the Plaintiffs which is a violation of F.S. 489.129(1)(l) [Section 489.129(1)(k)];[ 4/ ] committed mismanagement and misconduct which caused Plaintiffs financial harm as of [sic] liens were recorded as against the Plaintiff's [sic] home in violation of F.S. 489.129(1)(h)(1) [Section 489.129(1)(g)1.];[ 5/ ] f [sic]. committed mismanagement and misconduct which caused Plaintiffs financial harm in that the percentage of completion is less than the percentage of the total contract price paid in violation of F.S. 489.129(1)(h)(2) [Section 489.129(1)(g)2.].[ 6/ ] Mr. Santibanez and Mr. Pappas further alleged in the complaint that the cost to complete the pool after construction was abandoned by Pool Masters was $17,975.50, and they included in the complaint an itemized list of expenditures to support their claim. The circuit court entered a Default Final Judgment on August 4, 1998, awarding Mr. Santibanez and Mr. Pappas $17,675.50, to be recovered from Pool Masters, plus interest at the statutory rate. In a letter from their attorney dated August 12, 1998, Mr. Santibanez and Mr. Pappas submitted to the Board additional documents to support their claim against the Construction Industries Recovery Fund, based on their Default Final Judgment against Pool Masters. The final report of the Trustee of Pool Masters' bankruptcy estate, dated December 1, 1999, indicated that Pool Masters had no funds remaining after disbursement for administrative expenses. Mr. Santibanez and Mr. Pappas did not receive any funds from the bankruptcy estate or any other source to satisfy the judgment against Pool Masters. Mr. Santibanez and Mr. Pappas satisfy the statutory criteria for eligibility for payment from the Fund in the amount of $17,675.50. DOAH Case No. 99-1666: Klaus and Lucrecia Mueller Klaus and Lucrecia Mueller entered into a contract with Pool Masters for construction of a swimming pool. The contract was executed on or about February 24, 1997. The total price stated in the contract was $16,400.00. Pool Masters represented to Mr. and Mrs. Mueller that it was a licensed swimming pool contractor. Pool Masters began work on the pool in Spring 1997, and Mr. and Mrs. Mueller made payments to Pool Masters pursuant to the contract. Pool Masters excavated the hole for the pool, installed the steel frame, poured gunnite at the shallow end of the pool, and installed the brick and tile around the pool. Pool Masters last worked on the swimming pool in late November 1997. At the time Pool Masters ceased work on the pool, Mr. and Mrs. Mueller had paid Pool Masters approximately $12,900.00 for work done pursuant to the contract. Although Pool Masters represented to them that the payments would be used to pay subcontractors and materialmen, there were subcontractors and materialmen who were not paid. Liens were filed against Mr. and Mrs. Mueller's property, and they paid the subcontractors and materialmen directly in order to get the liens released. On January 17, 1998, the United States Bankruptcy Court for the Southern District of Florida issued a Notice of Commencement of Case Under Chapter 7 of the Bankruptcy Code, showing that Pool Masters had filed for bankruptcy on January 7, 1998. On or about March 11, 1998, Mr. and Mrs. Mueller submitted a Construction Industries Recovery Fund Claim Form to the Board, naming Pool Masters as the contractor. In an order entered April 20, 1998, the bankruptcy court lifted the automatic stay to allow Mr. and Mrs. Mueller to file suit against Pool Masters. Mr. and Mrs. Mueller filed a complaint against Pool Masters in the Circuit Court for the Seventeenth Judicial Circuit in Broward County, Florida, seeking damages for breach of the contract for construction of the pool. Mr. and Mrs. Mueller alleged in the complaint that Pool Masters had failed to complete the work; failed to perform in a reasonable and timely manner and abandoned the project for more than 90 days which is a violation of F.S. 489.129(1)(k) [Section 489.129(1)(j)];[ 7/ ] falsely represented that monies paid to them were paid to materialmen and sub- contractors which resulted in financial harm to the Plaintiffs which is a violation of F.S. 489.129(1)(l) [Section 489.129(1)(k)];[ 8/ ] committed mismanagement and misconduct which caused Plaintiffs financial harm as of [sic] liens were recorded as against the Plaintiff's [sic] home in violation of F.S. 489.129(1)(h)(1) [Section 489.129(1)(g)1.];[ 9/ ] f [sic]. committed mismanagement and misconduct which caused Plaintiffs financial harm in that the percentage of completion is less than the percentage of the total contract price paid in violation of F.S. 489.129(1)(h)(2) [Section 489.129(1)(g)2.].[ 10/ ] Mr. and Mrs. Mueller further alleged in the complaint that the cost to complete the pool after construction was abandoned by Pool Masters was $13,299.51. The matter was presented to the circuit court, ex parte, upon Mr. and Mrs. Mueller's Motion for Default Final Judgment. The court entered a Default Final Judgment in June 1998, awarding Mr. and Mrs. Mueller $13,299.51, to be recovered from Pool Masters, plus interest at the statutory rate. In a letter from their attorney dated June 23, 1998, Mr. and Mrs. Mueller submitted to the Board additional documents to support their claim against the Construction Industries Recovery Fund, based on their Default Final Judgment against Pool Masters. The final report of the Trustee of Pool Masters' bankruptcy estate, dated December 1, 1999, indicated that Pool Masters had no funds remaining after disbursement for administrative expenses. Mr. and Mrs. Mueller did not receive any funds from the bankruptcy estate or any other source to satisfy their judgment against Pool Masters. Mr. and Mrs. Mueller satisfy the statutory criteria for eligibility for payment from the Fund in the amount of $13,299.51. DOAH Case No. 99-1667: Mario and Martha Alboniga Mario and Martha Alboniga entered into a contract with Pool Masters for construction of a swimming pool. The contract was executed on or about March 17, 1997. The total price stated in the contract was $24,000.00. Pool Masters represented to Mr. and Mrs. Alboniga that it was a licensed swimming pool contractor. Pool Masters began work on the pool on November 10, 1997, and Mr. and Mrs. Alboniga made payments to Pool Masters pursuant to the contract. Pool Masters excavated the hole for the pool and poured the concrete form of the pool. The last day Pool Masters worked on the swimming pool was November 19, 1997. Mr. and Mrs. Alboniga later heard that Pool Masters had declared bankruptcy. At the time Pool Masters ceased work on the pool, Mr. and Mrs. Alboniga had paid Pool Masters a total of $15,200.00 for work done pursuant to the contract. Although Pool Masters represented to them that the payments would be used to pay subcontractors and materialmen, there were subcontractors and materialmen who were not paid. Liens were filed against Mr. and Mrs. Alboniga’s property, and they paid the subcontractors and materialmen directly in order to get the liens released. On January 17, 1998, the United States Bankruptcy Court for the Southern District of Florida issued a Notice of Commencement of Case Under Chapter 7 of the Bankruptcy Code, showing that Pool Masters had filed for bankruptcy on January 7, 1998. On or about March 11, 1998, Mr. and Mrs. Alboniga submitted a Construction Industries Recovery Fund Claim Form to the Board, naming Pool Masters as the contractor. In an order entered April 20, 1998, the bankruptcy court lifted the automatic stay to allow Mr. and Mrs. Alboniga to file suit against Pool Masters. Mr. and Mrs. Alboniga filed a complaint against Pool Masters in the Circuit Court for the Seventeenth Judicial Circuit in Broward County, Florida, seeking damages for breach of the contract for construction of the pool. Mr. and Mrs. Alboniga alleged in the complaint that Pool Masters had failed to complete the work; failed to perform in a reasonable and timely manner and abandoned the project for more than 90 days which is a violation of F.S. 489.129(1)(k) [Section 489.129(1)(j)];[ 11/ ] falsely represented that monies paid to them were paid to materialmen and sub- contractors which resulted in financial harm to the Plaintiffs which is a violation of F.S. 489.129(1)(l) [Section 489.129(1)(k)];[ 12/ ] committed mismanagement and misconduct which caused Plaintiffs financial harm as of [sic] liens were recorded as against the Plaintiff's [sic] home in violation of F.S. 489.129(1)(h)(1) [Section 489.129(1)(g)1.];[ 13/ ] f [sic]. committed mismanagement and misconduct which caused Plaintiffs financial harm in that the percentage of completion is less than the percentage of the total contract price paid in violation of F.S. 489.129(1)(h)(2) [Section 489.129(1)(g)2.].[ 14/ ] Mr. and Mrs. Alboniga further alleged in the complaint that the cost to complete the pool after construction was abandoned by Pool Masters was $10,541.77. The circuit court entered a Final Judgment "pursuant to stipulation" on August 4, 1998, awarding Mr. and Mrs. Alboniga $10,541.77, to be recovered from Pool Masters, plus interest at the statutory rate. In a letter from their attorney dated August 12, 1998, Mr. and Mrs. Alboniga submitted to the Board additional documents to support their claim against the Construction Industries Recovery Fund, based on their Final Judgment against Pool Masters. The final report of the Trustee of Pool Masters' bankruptcy estate, dated December 1, 1999, indicated that Pool Masters had no funds remaining after disbursement for administrative expenses. Mr. and Mrs. Alboniga did not receive any funds from the bankruptcy estate or any other source to satisfy their judgment against Pool Masters. Mr. and Mrs. Alboniga satisfy the statutory criteria for eligibility for payment from the Fund in the amount of $10,541.77. DOAH Case No. 99-1668: Salvator Militello and Sharon Sidorski Salvator Militello and Sharon Sidorski entered into a contract with Pool Masters for construction of a swimming pool. The contract was executed on or about April 6, 1997. The total price stated in the contract was $24,295.00. Pool Masters represented to Mr. Militello and Ms. Sidorski that it was a licensed swimming pool contractor. Mr. Militello and Ms. Sidorski made payments to Pool Masters pursuant to the contract. Pool Masters excavated the hole for the pool and spa, installed basic plumbing, and poured the concrete for the pool. Pool Masters last worked on the swimming pool in October 1997. At the time Pool Masters ceased work on the pool, Mr. Militello and Ms. Sidorski had paid Pool Masters $19,389.00 for work done pursuant to the contract. Although Pool Masters represented to them that the payments would be used to pay subcontractors and materialmen, there were subcontractors and materialmen who were not paid. Liens were filed against Mr. Militello's and Ms. Sidorski's property, and they paid the subcontractors and materialmen directly in order to get the liens released. On January 17, 1998, the United States Bankruptcy Court for the Southern District of Florida issued a Notice of Commencement of Case Under Chapter 7 of the Bankruptcy Code, showing that Pool Masters had filed for bankruptcy on January 7, 1998. On or about March 11, 1998, Mr. Militello and Ms. Sidorski submitted a Construction Industries Recovery Fund Claim Form to the Board, naming Pool Masters as the contractor. In an order entered April 20, 1998, the bankruptcy court lifted the automatic stay to allow Mr. Militello and Ms. Sidorski to file suit against Pool Masters. Mr. Militello and Ms. Sidorski filed a complaint against Pool Masters in the Circuit Court for the Seventeenth Judicial Circuit in Broward County, Florida, seeking damages for breach of the contract for construction of the pool. Mr. Militello and Ms. Sidorski alleged in the complaint that Pool Masters had failed to complete the work; failed to perform in a reasonable and timely manner and abandoned the project for more than 90 days which is a violation of F.S. 489.129(1)(k) [Section 489.129(1)(j)];[ 15/ ] falsely represented that monies paid to them were paid to materialmen and sub- contractors which resulted in financial harm to the Plaintiffs which is a violation of F.S. 489.129(1)(l) [Section 489.129(1)(k)];[ 16/ ] committed mismanagement and misconduct which caused Plaintiffs financial harm as of [sic] liens were recorded as against the Plaintiff's [sic] home in violation of F.S. 489.129(1)(h)(1) [Section 489.129(1)(g)1.];[ 17/ ] f [sic]. committed mismanagement and misconduct which caused Plaintiffs financial harm in that the percentage of completion is less than the percentage of the total contract price paid in violation of F.S. 489.129(1)(h)(2) [Section 489.129(1)(g)2.].[ 18/ ] Mr. Militello and Ms. Sidorski further alleged in the complaint that the cost to complete the pool after construction was abandoned by Pool Masters was $13,544.00 and that they paid $1,641.68 to satisfy liens and unpaid subcontractors and materialmen, for total damages of $15,185.68. The circuit court entered a Final Judgment "pursuant to stipulation" on August 4, 1998, awarding Mr. Militello and Ms. Sidorski $15,185.68, to be recovered from Pool Masters, plus interest at the statutory rate. In a letter from their attorney dated August 12, 1998, Mr. Militello and Ms. Sidorski submitted to the Board additional documents to support their claim against the Construction Industries Recovery Fund, based on their Final Judgment against Pool Masters. The final report of the Trustee of Pool Masters' bankruptcy estate, dated December 1, 1999, indicated that Pool Masters had no funds remaining after disbursement for administrative expenses. Mr. Militello and Ms. Sidorski did not receive any funds from the bankruptcy estate or any other source to satisfy their judgment against Pool Masters. Mr. Militello and Ms. Sidorski satisfy the statutory criteria for eligibility for payment from the Fund in the amount of $15,185.68. DOAH Case No. 00-0024: Jack and Paula Tieger Jack and Paula Tieger entered into a contract with Pool Masters for construction of a swimming pool. The contract was executed on or about December 17, 1995. The total price stated in the contract was $28,200.00. Pursuant to the contract, Pool Masters built a pool and screen enclosure, and Mr. and Mrs. Tieger paid Pool Masters the price specified in the contract. Mr. and Mrs. Tieger were not, however, satisfied with the work done by Pool Masters, and, in or around 1997, they filed a complaint for breach of contract against Pool Masters in the Circuit Court of the Seventeenth Judicial Circuit, in Broward County, Florida. In the complaint, Mr. and Mrs. Tieger alleged that Pool Masters had breached the contract: By failing to adequately explain the technical terms used in the Agreement to the TIEGERS; By failing to install a vacuum line with valve as specified in the Agreement; By failing to install anti-corrosive handrails in the swimming pool; By failing to properly install and/or provide a properly functioning waterfall as specified in the Agreement; By failing to properly fill the area behind the waterfall; By unilaterally, and or the TIEGERS' [sic] objection, placing a tile with the "Pool Masters" logo on the steps heading into the pool: By failing to re-route the TIEGERS' [sic] sprinkler system in a timely manner; By failing to advise the TIEGERS that they were going to need to pay for and install a separate circuit breaker box as part of the installation of the swimming pool; and By failing to install the second screen door as specified in the Agreement. Mr. and Mrs. Tieger did not identify the amount of damages they allegedly suffered as a result of Pool Masters's alleged breach of contract. Mr. and Mrs. Tieger were not aware that Pool Masters had declared bankruptcy until January 1998, when Mrs. Tieger went to Pool Masters' office and found the notice on the door. A non-jury trial was held before the circuit court on March 5, 1998; Pool Masters did not attend the trial. In a Final Judgment entered on March 25, 1998, the court awarded Mr. and Mrs. Tieger $4,200 as compensatory damages to be recovered from Pool Masters. In a Proof of Claim dated May 13, 1998, and filed with the United States Bankruptcy Court of the Southern District of Florida, Mr. and Mrs. Tieger submitted an unsecured claim against Pool Masters' bankruptcy estate in the amount of $7,300.00, which represented the compensatory damages awarded in the final judgment, together with attorney's fees and costs. Mr. and Mrs. Tieger have not collected any portion of their judgment against Pool Masters. Mr. and Mrs. Tieger submitted to the Board a Construction Industries Recovery Fund Claim Form dated December 5, 1998, and the Board awarded Mr. and Mrs. Tieger $800.00, representing the cost of the vacuum line with valve and the second screen door which Pool Masters had not installed. Mr. and Mrs. Tieger do not satisfy the statutory criteria for eligibility for payment from the Fund. Mr. and Mrs. Tieger failed to establish that they filed their claim with the Board within two years of the date they discovered the alleged deficiencies in the pool, and they failed to establish that the final judgment against Pool Masters was based on a violation of Section 489.129(1)(g), (j), or (k), Florida Statutes (Supp. 1998). The evidence presented herein is not sufficient to establish that Mr. Kiselius is the licensee against whom the claimants obtained final judgments.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, 25/ it is RECOMMENDED that the Construction Industry Licensing Board: Enter final orders as follows: In DOAH Case No. 99-1665, finding Eugene Santibanez and Alexander Pappas eligible for payment from the Fund in the amount of $17,675.00, in satisfaction of a final judgment against Pool Masters, Inc.; In DOAH Case No. 99-1666, finding Klaus and Lucrecia Mueller eligible for payment from the Fund in the amount of $13,299.51, in satisfaction of a final judgment against Pool Masters, Inc.; In DOAH Case No. 99-1667, finding Mario and Martha Alboniga eligible for payment from the Fund in the amount of $10,541.77, in satisfaction of a final judgment against Pool Masters, Inc.; In DOAH Case No. 99-1668, finding Salvator Militello and Sharon Sidorski eligible for payment from the Fund in the amount of $15,185.68, in satisfaction of a final judgment against Pool Masters, Inc.; and In DOAH Case No. 00-0024, dismissing the claim of Jack and Linda Tieger for payment from the Fund. Determine that Christopher P. Kiselius is not the "licensee" whose license is subject to automatic suspension pursuant to Section 489.143(7), Florida Statutes (Supp. 1998), as a result of payments to the claimants in DOAH Case Nos. 99- 1665, 99-1666, 99-1667, and 99-1668. DONE AND ENTERED this 31st day of August, 2000, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2000.
The Issue The 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
The Issue The issue is whether the Respondent is subject to discipline for permitting his general contractor's license to be used by another person to construct a swimming pool, thereby conspiring with an unlicensed person to avoid statutory licensure requirements, and by failing to oversee the quality of the work performed by that person under Respondent's license.
Findings Of Fact The Petitioner is the state agency responsible to prosecute administrative complaints under Chapters 455 and 489, Florida Statutes, and the rules implementing those statutes. At all times material to the complaint, Raymond Hurley was licensed as a certified general contractor, holding Florida license CGC 000773 and served as the qualifying agent for Capital Resources and Development, Inc. Kenneth R. and Lucille M. Clopper, of Fort Pierce, Florida, entered into a contract with Fred Humberstone, doing business as Southern Fiberglass Pools of the Treasure Coast, Inc., on September 21, 1987, for the construction of a pool and screened enclosure at the Clopper's home. The contract price was $15,500. Mr. Humberstone has never been a qualified contractor in St. Lucie County, Florida. Mr. Hurley became authorized to do business as a contractor in St. Lucie County, Florida, on September 29, 1987, when he provided a copy of his state certified general contractor's license, a certificate of insurance for worker's compensation and general liability property damage insurance to St. Lucie County. St. Lucie County Permit No. 44574 was issued to Capital Resources and Development, Inc., on October 9, 1987. The permit application had been dated September 24, 1987. The application bore Mr. Hurley's contractor license number. In the space for the name of the company, the application had originally been written in the name of Southern Fiberglass Pools of the Treasure Coast, of Stuart, Florida. The name of the applicant had been scratched through, and the name of Capital Resources and Development, Inc., was written over it. The application bears a handwritten signature which reads Raymond S. Hurley, but it is not his signature. Mr. Hurley did not sign the application, or authorize anyone to sign it for him. Mr. Hurley knew Mr. Humberstone, the owner of Southern Fiberglass Pools of the Treasure Coast. Humberstone had difficulty with his corporation because his qualifying contractor had left, and Humberstone owned approximately $150,000 worth of equipment which he could not use without a qualifying contractor. Humberstone made a proposal to Hurley to become the qualifying contractor for Southern Fiberglass Pools of the Treasure Coast. It was about this time that Mr. Hurley first qualified to engage in the business of contracting in St. Lucie County. Mr. Humberstone must have pulled the permit for the Clopper jor, using Mr. Hurley's licensure in St. Lucie County. This is likely because at first, the line for the permit applicant had been filled in with the name of Humberstone's business, Southern Fiberglass Pools by the Treasure Coast. Mr. Hurley had become licensed in St. Lucie County because he was contemplating going into business with Mr. Humberstone. What cannot be determined from the evidence in the record is whether Mr. Hurley had agreed with Mr. Humberstone to make his licensure available to Mr. Humberstone so Humberstone could continue in the pool contracting business in St. Lucie County. Mr. Hurley did not sign the application for the permit at the Clopper's home. He never went to the Clopper's home to see the work or to meet the Cloppers. Had he gone into partnership with Humberstone he would likely have participated, to some extent, in the work. On this matter, the Department's proof is insufficient. After the construction at the Clopper home began, there were a number of delays in completion of the pool, and the contractor failed to install stress relief for the pool deck which resulted in cracking of the pool deck. The pool itself had three leaks. The problems with the pool remained unresolved and the Clopper's finally settled with Mr. Humberstone for payment for $1,020 in exchange for providing Mr. Humberstone with the release of liability. Ultimately, the Cloppers spend $1,659 to repair the problems created by Mr. Humberstone's inadequate work. Mr. Hurley was never at the job site, and the Cloppers never knew anything about him until after their pool had been completed; all of their dealings had been with Humberstone.
Recommendation It is recommended that the administrative complaint filed by the Construction Industry Licensing Board against Raymond Hurley be dismissed. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31st day of January 1991. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of January 1991. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-4233 Rulings on findings proposed by the Petitioner: 1-7. Accepted. 8. Rejected, as there is insufficient evidence to find that Mr. Hurley, although he knew Mr. Humberstone, had entered into any agreement Humberstone to become a qualifying contractor for Humberstone's corporation. While that is one inference which could be drawn from the evidence, the evidence is not strong enough to permit such finding, at the level of certainty required for clear and convincing evidence, to be made. Rulings on findings proposed by the Respondent: 1-6. Adopted 7. Rejected. There is insufficient evidence in the record to make specific finding with respect to handwriting exemplars, but the testimony of Mr. Hurley that he did not sign the St. Lucie County permit application has been accepted. Copies furnished: Robert B. Jurand, Esquire Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Glenn N. Blake, Esquire BLAKE & TORRES Strange Building 500 South US 1 Fort Pierce, Florida 34950 Robert E. Stone, Esquire SULLIVAN, STONE, SULLIVAN LaJOIE and THACKER 100 Avenue "A", Suite 1F Fort Pierce, Florida 34950 Daniel O'Brien, Executive Director Department of Professional Regulation Construction Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Respondent, Wesley Ash, currently holds license number CP C015871 issued by the Construction Industry Licensing Board to authorize Ash to engage in the pool contracting business. Dodd Complaint (Count I). Respondent, Wesley Ash, doing business as Wada Pools, Inc., contracted with Jerry Dodd on or about June 17, 1981, to build a pneumatic concrete pool with skimmer and recirculation system. The contract did not include installation of the concrete deck around the pool. Dodd decided to contract with another independent contractor to install the deck at a lower price than Ash wanted for the job. Ash completed his work by approximately August 1981. He installed the concrete pool shell, finished the inside surface and installed tile along the water line. He then attached the skimmer assembly, plumbing it so that it was level and attaching it to the concrete pool shell by means of the skimmer's PVC plumbing piping. After Ash finished his work, Dodd's other contractor came behind Ash. He used some of the dirt Ash had excavated from the pool site to raise the ground surrounding the pool by approximately six inches above grade. He then poured the concrete deck but failed to encase the skimmer assembly with the deck concrete in the process of pouring the concrete deck. It was not Ash's practice to make any special arrangements to stabilize the skimmer assembly when he installed both pool and concrete deck. He relies on the skimmer assembly plumbing to stabilize the skimmer assembly until the concrete deck is poured. In pouring the concrete deck, Ash encases the skimmer assembly with the deck concrete to stabilize the skimmer assembly and prevent leakage. In the case of the Poland pool (paragraphs 17 and 22, below), Ash used this method to install both the pool and the concrete deck, and Poland has had no complaint of leakage at the skimmer (nor was there any evidence of leakage at the skimmer). In the case of the Priests' pool (paragraphs 11 through 13, below), Ash followed the same procedures as he did with the Dodd pool, and another contractor poured the concrete deck. As with the Poland pool, there have been no complaints (nor was there any evidence) of leakage at the skimmer. Within approximately one and one-half years after installation of the Dodd pool, Dodd began to notice what he thinks is a leak in his pool. The water level in the Dodd pool drops approximately one-quarter inch per day. But the Department's own expert witness conceded that water loss of between one-eight and one-quarter inch can be explained by evaporation. It was not proved that the Dodd pool is leaking at all. If there is a leak causing a small increment of water loss above loss through normal evaporation, the leak would have to be very small and would be very difficult to detect. Ash and others have tried but have been unable to find a leak at the skimmer of Dodd pool. In approximately summer 1985, Dodd himself dug a hole under the concrete deck to expose the bottom of the skimmer assembly. The excavation revealed an unusual amount of moisture that might be the result of a leak at the skimmer. It also revealed that the contractor who poured the Dodd concrete deck did not encase the skimmer assembly as Ash had thought he would. The Department's expert - a professional engineer with a B.S. degree in civil engineering, an M.S. degree in structural engineering and a Ph.D. degree in environmental engineering - gave his opinion that a residential pool skimmer assembly should be either (1) encased with the concrete of the pool shell or (2) encased with deck concrete which is structurally tied to the concrete pool shell. He opined that the latter method would require either a very rough surface on the pool shell concrete or steel extending from the pool shell in order for the structural tie to be accomplished. But he also conceded that it is possible for deck concrete encasing a skimmer assembly to be sufficient to stabilize the skimmer assembly even without taking any extra measures to accomplish a structural tie. There was no evidence that any building code would require a pool contractor to take these measures to accomplish a structural tie between the pool shell and skimmer assembly. Nor was there any evidence that a reasonably prudent pool contractor (as opposed to a professional engineer) would be expected to take these measures. Based on this evidence, together with all the other evidence taken as a whole, the Department did not prove that Ash was either incompetent or grossly negligent in not taking any extra measurers to accomplish a structural tie between the concrete pool shell and the skimmer assembly. Based on the evidence in this case, the contractor Dodd hired to pour the concrete deck was either incompetent or grossly negligent (assuming he was even a licensed pool contractor a fact not shown by the evidence.) He did not encase the skimmer assembly with the deck concrete, allowing it to "float" unprotected in the fill under the concrete deck. Settling of the fill could have caused the deck to settle and crack, moving the skimmer assembly and causing a small leak. Ash may have been able to prevent this by warning the contractor to be sure to encase the skimmer assembly with deck concrete when he poured the concrete deck. But there was no evidence that Ash had a duty to advise the other independent contractor Dodd hired or was responsible for the other contractor's incompetence or gross negligence. Ash's failure to advise the other contractor was not incompetence or gross negligence on Ash's part. Dodd has no other complaints about the pool Ash built for him. Priests' Complaint (Count II). On or about October 11, 1984, Ash contracted with Joseph and Rita Priest to build them a pneumatic concrete pool. The Contract included a warranty that the labor, materials and workmanship would be free of defects for one year and that the shell would be structural sound and capable of holding the water for ten years. Like Dodd, the Priests contracted with another independent contractor to install the concrete deck around the pool. Ash was responsible only for placement of decorative "river rock" on top of the deck. Ash finished his work in February 1985. Like Dodd, the Priests complained of water loss from the pool although the Priests noticed the water loss sooner than Dodd (approximately March, 1985). The water level was dropping approximately one-quarter inch per day more than it was dropping in a bucket used as a control. In response to the complaint, Ash sent his employees to the Priests' pool on several occasions. They found no leak at the skimmer. To determine whether the pool's "caretaker system" 1/ was leaking, Ash's employees plugged all but one pair of the caretaker heads. After waiting a period of days, they would try to see whether the rate of water loss changed. They tested all four pairs of caretaker heads on the bottom of the pool and the pair in the spa attached to the pool. No leaks could be found. They did not replace the last two (in the spa), and Mr. Priest had to replace them. As with the Dodd pool, the Department did not prove that the Priests' pool is leaking at all. The Priests continue to complain of water loss of approximately one-quarter inch per day, within the range of water loss from normal evaporation. As with the Dodd pool, a leak responsible for a small increment of water loss above water loss from normal evaporation would be very small and difficult to find, especially if the leak were in the caretaker heads or pipes under the pool leading to the heads. Now the Priests suspect a water leak at the filter. But the Department's expert witness could not find a leak there large enough to account for much water loss. The minor leak at the filter is a normal maintenance item for a pool as old as the Priests' pool. There was no evidence how long it has existed, and there was no evidence that the Priests ever told Ash there was a leak at the filter. The Priests now also complain that one of the caretaker heads does not re-seat properly. But this has nothing to do with the leakage complaint to which Ash is charged with not reasonably responding. Taken as a whole, the evidence did not prove that Ash committed misconduct or deceit by failing to make reasonable response to warranty service requests within a reasonable time, as charged. Nor does the evidence prove misleading or untrue representations, gross negligence, incompetence or fraud in connection with the Priests' pool, as charged. Poland Complaint (Count III). On or about December 9, 1981, Ash entered into a contract with James Poland to build Poland a pneumatic concrete pool and concrete deck. Poland contracted with another independent contractor to build a screen enclosure around the pool. Before construction began, one of Ash's employees asked Poland to sign an addendum to the contract for an additional $235 to pay for foundation footers required to comply with Lee County building code provisions for the screen enclosures. Before Ash signed the initial Poland contract on December 9, 1981, he was unaware of the Lee County Aluminum Code, adopted March 18, 1981. The code requires eight inch foundation footers for "aluminum additions." Another part of the code addresses "screen enclosures with screen roofs known to the industry as birdcage swimming pool enclosures." The language of the code is not explicit that screen swimming pool enclosures are required to meet the foundation requirements for "aluminum additions," and at first Lee County did not interpret the code that way. With a change of personnel in code enforcement, Lee County began to interpret the code that way, and screen swimming pool enclosures Ash had under construction began to fail building inspection for inadequate foundation footers. Ash inquired why and was told about the aluminum code and how it was being interpreted. Ash argued that the interpretation was erroneous but, failing to dissuade enforcement personnel, began to comply. As part of his compliance efforts, Ash had his employees try to secure the contract addendum from Poland. Poland refused to sign the contract addendum, insisting on an opportunity to verify that the additional foundation footers were indeed new building code requirements. There still is a dispute between the parties whether Poland ever agreed to pay the additional $235 after he verified that the footers were being required. (He never signed the contract addendum.) But, in any event, the evidence did not prove that Ash was incompetent, grossly negligent, deceitful or guilty of fraud or misconduct in connection with the additional $235 charge. 2/ There was some evidence that Ash did not in fact comply with the Lee County Aluminum Code, as he was told it was being interpreted, in his construction of the Poland pool deck. In two places the foundation footers were 6 and 7 inches - deeper than the four-inch normal thickness of a concrete pool deck but short of the eight-inch requirement. But Ash was not charged with failure to comply with the foundation footer requirement. He had no legally sufficient notice that he should be prepared to defend against that charge and was not prepared to defend against that charge. Therefore, no finding is made whether Ash complied with the Lee County Aluminum Code. Ash performed the Poland contract between approximately January 27 and February 26, 1982. In September, 1985, Poland began to notice that some of the tile Ash installed at the waterline around the perimeter of the pool was coming loose. As explained by the Department's expert witness, the concrete deck settled in places, cracking slightly and rotating over the fulcrum created by the wall of the concrete shell of the pool. The rotating action pulled up on the tile attached to the inside of the pool wall in places, loosening the tile. In all, less than 10 percent of the 77 foot perimeter of the Poland pool experienced problems with loose tile. The loose tile easily can be removed and replaced. The minor deck cracking and loose tile problems at the Poland pool are within the normal range for a competently constructed pool under normal conditions of ground settlement. The evidence did not prove that Ash improperly installed the pool deck or that he was incompetent or grossly negligent in the construction of the Poland pool and deck. Besides the loose tile and minor cracks in the concrete deck, the Poland pool had no apparent defects. There also was evidence that the Poland pool was finished with a coating of marcite on the inside surface of the pool shell which was mottled gray in color instead of white. Poland complained persistently about the marcite3 and insisted that Ash make it white. But the discolored marcite was a factory defect of which Ash had been unable to know before he used it. There is no way to make mottled gray marcite white. Ash tried to explain this to Poland but the customer would not be satisfied. Taken as a whole, the marcite evidence did not prove that Ash was incompetent, grossly negligent, deceitful or guilty of fraud or misconduct. Nor does the evidence prove any of those violations for failure to cure the marcite problem under warranty. First, as already stated, there was no cure. Second, Ash and Poland also had a running dispute whether Poland had paid the full contract price, including the additional $235 for foundation footers, so as to entitle him to any warranty repairs. In light of this genuine dispute, failure to do warranty work, if otherwise a reasonable request, still could not be found to be misconduct, fraud or deceit.
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 dismissing the Amended Administrative Complaint that has been filed against Respondent, Wesley Ash, in these cases. DONE AND ORDERED this 9th day of December 1986, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 9th day of December, 1986.
