The Issue The issue is whether Respondents discriminated against Petitioner because of her physical disability in violation of the Fair Housing Act.
Findings Of Fact Petitioner is a white female who alleges that Respondents discriminated against her because of a physical disability in violation of the Fair Housing Act. Respondent Fountains Apartments is a fictitious name of the landlord. Respondent Theodora Allen is the on-site manager of the apartment complex. Respondent Emmer Management is the management entity that manages the apartment complex. Petitioner is disabled due to a partially amputated right foot. She wares a leg brace. However, there is no persuasive evidence that Petitioner is disabled due to allergies or asthma.1 Petitioner's husband, Mr. Trent, initially leased the apartment at the Fountains Apartments in November of 1991. Petitioner moved into the apartment with Mr. Trent in the spring of 1992. Petitioner and Mr. Trent subsequently renewed the lease on the apartment in both of their names. They lived in the same apartment until June of 1996. Petitioner referred at least forty-two (42) work orders to the apartment complex's maintenance department between April 1992 and April 1996. She made numerous other written requests for repairs. The maintenance department addressed each and every work order. Over the four-year tenancy, maintenance personnel made a substantial number of repairs to the apartment, including but not limited to, replacing the following: kitchen counter tops, stove burners, carpet, vinyl flooring, front door, water heater, outside central air conditioner condensing unit, inside central air conditioning evaporator, heater and air handler, and the toilet. These repairs were made without causing damage to Petitioner's personal property. As a result of Petitioner's demands, her apartment was in better condition than any other apartment in the complex. The apartment complex has a policy concerning pets. There is a twenty (20) pound weight limit for a dog on the premises. Additionally, a dog must be walked on a leash and never tied outside. Mr. Walker, another tenant in apartment number 62, owned a dog. Occasionally, Mr. Walker tethered the dog outside his apartment on a grassy area between two apartment buildings. The apartment buildings were located directly across the street from Petitioner's building. Petitioner complained to the office staff that, when the dog was tethered outside, she could not take a short cut to the mail box, office, laundry, or pool by walking between the buildings in front of her apartment. According to Petitioner, her disability made it difficult for her to walk past the dog or to walk the longer way (approximately 100 feet) around the buildings. At times, Petitioner picked up her mail in her car as she drove in and out of the complex. She could also park near the office, laundry, and pool. There were handicapped parking spaces and handicapped ramps available in those areas.2 The apartment manager made a reasonable effort to keep unauthorized persons from parking in the handicapped parking places. On or about March 22, 1996, Petitioner and her husband sent the apartment manager a letter, which referenced their concerns regarding Mr. Walker's dog among other complaints. A copy of this letter was sent to the property management entity. The apartment manager and staff from the county's animal control department, as well Mr. Trent, asked Mr. Walker not to chain his dog outside. When Mr. Walker did not comply with the apartment manager's request, she sent him statutory notice, dated March 25, 1996, demanding that he remedy his noncompliance in ten (10) days or face eviction. The manager asked Petitioner to go around the buildings on her way to and from the office area until Mr. Walker complied with the demand or was evicted. A letter dated March 27, 1996 informed Petitioner that the apartment manager had sent Mr. Walker a notice allowing him ten (10) days to stop tying his dog outside or to find another residence. On or about April 16, 1996, Petitioner sent the property management entity another letter. In this letter, Petitioner complained that Mr. Walker was still chaining his dog between the buildings in the evenings and on the weekends when the apartment manager was not on the premises. Petitioner's letter also set forth numerous other complaints about her apartment and the complex in general. The property management entity responded with a letter dated April 24, 1996. The letter states, in part, that the situation with the dog was currently being addressed pursuant to legal procedures. The letter also discussed Petitioner's other concerns and complaints. Petitioner wrote a letter dated May 1, 1996, to the property management entity. In this letter, Petitioner acknowledged that the situation with Mr. Walker's dog was being addressed. However, Petitioner listed numerous other complaints. On another occasion, a water pipe began to leak in the grassy area between the buildings across the street from Petitioner's apartment. The leak caused a hole or washed-out area to develop. Respondents repaired the leak and covered up the hole. A barrier was erected to keep all residents from walking between the buildings. Respondents never intended for that area to be a walk way. On or about April 22, 1996, Petitioner advised Respondents that the bottom shelf of the bathroom medicine cabinet was rusted. Her complaint about the shelf was part of a long list of other requests for repairs. The most persuasive evidence indicates that the rust on the medicine cabinet covered an area the size of a dollar bill. It was a cosmetic blemish and did not affect the usability of the cabinet. The maintenance man promptly addressed Petitioner's concerns regarding the medicine cabinet. He sanded the rust spot and began to prime and paint the shelf. At that point, Petitioner told him to stop. She did not want him to paint the cabinet inside her apartment. The maintenance man informed the apartment manager that Petitioner refused to allow him to continue painting. The apartment manager immediately went to Petitioner's apartment to inquire about Petitioner's concerns. Petitioner wanted the cabinet removed and painted outside. Learning that her request was impracticable, Petitioner asked the apartment manager whether the paint would dry in two (2) hours. She did not offer to allow the painting of the cabinet to continue while she was at work or shopping.3 Petitioner did not verbally advise the apartment manager that she had asthma or that she was allergic to paint fumes. She never mentioned the medicine cabinet or her alleged allergy or asthma in her subsequent letters which listed her complaints in detail. On or about May 30, 1996, Respondents provided Petitioner with notice that the lease on her apartment would not be renewed. The notice reminded Petitioner that the lease expired on August 31, 1996. Petitioner and Mr. Trent did not pay their rent when it was due on June 1, 1996. On June 11, 1996, Respondents furnished Petitioner with a three (3) day notice to pay rent. Petitioner and Mr. Trent did not comply with the demand for payment of rent. On June 17, 1996, the landlord filed an action in circuit court to evict Petitioner and Mr. Trent. On or about June 29, 1996, Petitioner vacated her apartment. On July 10, 1996, a circuit court judge in Escambia County issued a Writ of Possession directing the sheriff to remove all persons from the apartment and to return it to Respondents' possession.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that FCHR enter a Final Order dismissing Petitioner's Petition for Relief. DONE AND ENTERED this 31st day of March, 1999, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1999.
The Issue At issue is whether Respondent committed the offenses set forth in the Amended Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, the Department, is the state agency charged with the duty and responsibility of regulating the practice of contracting pursuant to Chapters 20, 455 and 489. At all times material to the allegations of the Amended Administrative Complaint, Stephen Wesley Williams, d/b/a Superior Design Construction, Co. Inc., was licensed as a Florida State Certified Building Contractor and a Florida State Certified Pool/Spa Contractor, having been issued license numbers CRC 045849 and CPC 56443 respectively. His licensure status for the Residential Contractor license is designated as "Current, Active." His licensure status for the Pool/Spa Contractor license is designated as "Delinquent, Active." On or about December 19, 2001, Respondent, doing business as Superior Design Construction Company, Inc., entered into a contract with Thomas and Denise Shinn (the Shinns) for construction of a residential swimming pool and pool enclosure to be located at 4050 Retford Drive, Jacksonville, Florida. The contract price was $40,000.00. Respondent obtained a building permit for the job in question as "Superior Design Const Co." The contract does not contain a written statement explaining the consumer's rights under the Construction Industries Recovery Fund. The Department's records establish that Respondent's Certificate of Authority for Superior Design and Construction as a Contractor Qualified Business was issued on May 9, 1997, but has been null and void since August 31, 1999. Construction on the project began around January 2002. Work on the project ceased in or around March 2002. The construction was substantially completed when work ceased on the pool. Mr. Shinn described it as "98 percent of it was finished except for the heater." Other than the heater not being installed, Mr. Shinn considered the few other items that were not completed as minor. The contract specified the installation of a heat pump called an Ice Breaker. This type of pump was specified because it can both heat and cool a pool, which is what the Shinns wanted. Mr. Shinn paid Respondent a total of $38,050 for the job. According to Mr. Shinn, he withheld the final payment of $1,950 because the Ice Breaker heat pump was not installed. According to Respondent, he did not put in the heat pump because he had not been paid the remaining $1,950. The portion of the contract entitled Contract Price & Payment Schedule requires a payment of $1,000 at contract execution and four subsequent payments: Payment #1 - 35% due at Excavation; Payment #2 - 30% due at Gunite; Payment #3 - 30% due at Deck; Payment #4 - 5% due at Plaster. The amount listed for payment number 4 is $1,950. Included in the General Terms and Conditions portion of the contract is the following: PAYMENTS & COLLECTIONS. Contractor reserves the right to stop work at any time past due payment occurs. Owner hereby expressly agrees to such work stoppage and any such work stoppage shall not constitute a breach of contract by contractor. If collection is required of any amounts due under the terms of this contract, or any subsequent approved schedule, owner expressly agrees that he shall be responsible for 18% interest and reasonable attorney's fees for trial, appeal and all costs. Mr. Shinn contacted Respondent several times regarding completion of the contract. While Respondent did not answer many of Mr. Shinn's calls, he did come to the Shinn's home at one point to resolve the situation. However, the heat pump issue remained unresolved. Out of frustration, Mr. Shinn contacted an attorney who wrote a demand letter to Respondent. On or about October 31, 2002, the City of Jacksonville, Department of Public Works, Building Inspection Division, sent a letter to Mr. Shinn notifying him that Respondent had not obtained any inspections for 180 days and that state law could consider this project abandoned. The letter suggested that he contact Respondent immediately to attempt to rectify this situation. Mr. Shinn continued to attempt to contact Respondent but was unsuccessful. Respondent did not notify the Shinns in writing that he was canceling the contract. He did not go to the city to cancel the permit. One work item that was not completed when Respondent ceased working on the job was an unfinished electrical socket near the pool. Mr. Shinn hired Thompson Electric to complete this electrical work that was contemplated by the contract. As a result, Mr. Shinn paid $207.50 to Thompson Electric to have this work completed. In January of 2004, Mr. Shinn contracted with Pinch- A-Penny to install a heater in the pool as one had never been installed. He paid Pinch-A-Penny $3,777.09 to install a pool heater. Mr. Shinn chose to install only a pool heater and not the heating and cooling system specifically referenced in the contract (Ice Breaker) because the Ice Breaker would have cost him $5,500 from Pinch-a-Penny. The amount needed to complete the job as contracted totaled was $5,707.50, which includes $207.50 for Thompson Electric and $5,500.00 for the Ice Breaker heat pump, which is what Pinch-a-Penny charges. Subtracting the $1,950 that the Shinns never paid Respondent leaves a balance of $3,757.50 that the Shinns paid or would have to pay to get the completed pool as contemplated by the contract. As of June 2, 2005, the Department's costs of investigation and prosecution, excluding legal costs, totaled $614.77. Respondent's construction company went out of business on a date that is not clear from the record although Respondent described this job as "about the last pool I built." Clearly, he was no longer in the construction business on the date of the hearing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Construction Industry Licensing Board enter a final order imposing a $100.00 fine to be deposited in the Construction Industries Recovery Fund for a violation of Section 489.1425; issue a notice of noncompliance pursuant to Section 489.119(6)(e); impose fines in the amount of $500 for abandonment of a construction job; $500 for misconduct; and $100 for failure to put his license number on the contract; pay $3,757.50 in restitution; and require Respondent to pay $614.77 in costs of investigation and prosecution. DONE AND ENTERED this 11th day of August, 2005, in Tallahassee, Leon County, Florida. S ___________________________________ BARBARA J. STAROS 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 11th day of August, 2005. COPIES FURNISHED: Brian Elzweig, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Stephen Wesley Williams 3146 Brachenbury Lane Jacksonville, Florida 32225 Tim Vaccaro, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Leon Biegalski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issues presented here concern the questions of whether Intervenor's response to Request for Proposal (RFP) number 700:0561, for the lease of office space was responsive to the RFP; whether the Respondent in rating the responses to the proposal made a reasonable application of the rating formula and which prospective lessor should be awarded the contract, if anyone.
Findings Of Fact Respondent through RFP number 700:0561, solicited responses for the lease of office space for its employees working in the Daytona Beach, Florida, area. A copy of that solicitation may be found as Joint Exhibit 1 admitted into evidence. Respondent received timely responses from the Petitioner and Intervenor. Those responses were in keeping with the requirement to submit sealed bids on or before 11:00 a.m. April 19, 1990. Prior to the deadline for submitting bids a preproposal conference was conducted on April 5, 1990. A copy of the minutes of that conference may be found as Petitioner's exhibit 1 admitted into evidence. Among the highlights in this conference, as commented on in the minutes, was a discussion concerning the requirement for the provision of restrooms. The specific requirement for restrooms is set forth in the RFP at page 5 under B.6. and identifies the fact that the restrooms must meet standards for special facilities for physically disabled and calls for public restrooms for men and women and staff restrooms for men and women, describing the conveniences for each of those facilities. No indication is made concerning the placement of those restrooms. On the other hand, in the course of a suggested floor plan, Attachment H to the solicitation document, public restrooms are depicted in the reception area and staff restrooms are shown in the staff service area. This Attachment H is under the auspices of the space requirement criteria announced at B.1. on page 4 of the solicitation document, in which the comment is made "see floor plan, Attachment H, for suggested configuration of offices and rooms." The remarks concerning restrooms that were made in the course of the preproposal conference show that by the discussion in that conference it was determined that two male restrooms and two females restrooms, one each for the public and one each for the staff were contemplated and that they must meet handicapped standards. According to the minutes Petitioner asked if there was a requirement for the men's restroom to have urinals or would an additional water closet suffice and he was told that a water closet would suffice. No other discussion was held about the restrooms. The space requirement criteria, to include the discussion of the requirements for restrooms, do not contemplate that in order for a prospective lessor to be successful in responding to the solicitation, that it would be necessary for that prospective lessor to present a design which closely approximated that set forth in Attachment H. It could be expected that a submission which more closely resembled the suggested configuration would be entitled to receive a higher score under the evaluation criterion set out at C.2. Similarly the score under evaluation criterion C.2. would be greater for the prospective lessor who most closely approximated the number and size of spaces that are described at B.1. wherein it is stated: Approximate number/size a) 0 offices not to exceed 220 sq.ft. each 0 b) 3 offices not to exceed 150 sq.ft. each 450 c) 25 offices not to exceed 120 sq.ft. each 3000 d) 13 offices not to exceed 150 sq.ft. each 1170 e) 3 offices or open clerical areas not to exceed 60 sq.ft. each (Computer area) 220 f) Internal circulation 1202 g) File area 466 h) Reception area sq.ft. 400 i) Conference Room 800 j) Storage Area 345 k) Copier machine area 250 l) Employee lounge 240 m) Mail room (inc'l) with k above) 0 n) Other requirements (Automation Equipment) 240 o) Urinalysis Lab Area 72 The critical item concerning space requirements is announced at A.1. on page 1 of the solicitation document. Therein the net square footage is estimated to be 8,855 feet plus 3 percent measured in accordance with the Standard Method of Space Measurement as identified in Attachment A. Both prospective lessors met the net square footage requirement. Both prospective lessors achieved substantial compliance with the more specific requirements set forth in B.1. as to approximate number and sizes of offices and other spaces. Petitioner did the better job in that sense as shown in the comparison of the spaces that are contemplated by the Petitioner's proposal contrasted with that of the Intervenor. That comparison is shown in Petitioner's Exhibit 2 admitted into evidence. It can also be seen in the comparison of the rough sketches of floor plans submitted by the prospective lessors. Joint Exhibit 2 describes the prospective floor plan for Petitioner and Joint Exhibit 3 describes the prospective floor plan for the Intervenor. The Intervenor's submission is a recapitulation of the spaces associated with its most recent tenant, the State Attorney for the Daytona Beach, Florida, Circuit. No special emphasis has been placed on having this floor plan approximate suggested design of Attachment H. Petitioner's attempt is one which more closely approximates Attachment H, at least as to specific spaces contemplated in B.1. to the solicitation document. At the preproposal conference of April 5, 1990, the prospective lessors were told that the support staff offices could be open space or be separated with half-wall partitions as opposed to being fully enclosed offices. The spaces that are offered by the Intervenor correspond to this opportunity. Both proposals responded adequately to all other criteria as well as the space requirement criterion. In examining the proposals by the competitors, Joint Exhibit 2 admitted into evidence for the Petitioner and Joint Exhibit 3 admitted into evidence for Intervenor, Respondent used the evaluation criteria set out in C. at page 7 of the Solicitation Document. Three people constituted the review committee. The evaluation by the committee members was through independent consideration of the proposals. Their aggregate scores were 252 points for Petitioner and 290 for the Intervenor of a possible 300 points. The scoring in the aggregate and through individual observations of the committee members may be found in Joint Exhibit 4 admitted into evidence, a composite. Over the period of the lease and the option period, Intervenor's proposal is much more economical. Therefore, under Criteria C.1. the scores that were given individually by the committee members and the aggregate scoring, which the committee members continue to urge in the course of the final hearing were reasonable. All other scores were reasonable in the aggregate and individually with the exception of the scores under C.2.; the scores for Petitioner under C.4. assigned by two committee members, which were three points low in the aggregate, and the scores assigned by two committee members for criterion C.11 which were four points low in the aggregate. Concerning the scores under C.2., having considered the testimony at hearing, scores assigned should be reversed. These adjustments would increase Petitioner's score to 267 and lower Intervenor's score to 282. Intervenor would still win with these adjustments. Petitioner timely filed its protest of the decision to award a contract to Intervenor. Intervenor timely filed its request to intervene in this action.
Recommendation In consideration of the facts found and conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which dismisses Petitioner's Formal Written Protest and finds that the Intervenor submitted the lowest and best proposal for provision of lease space under RFP 700:0561. DONE and ENTERED this 25th day of September, 1990, in Tallahassee, Florida. CHARMS C. ADAMS, 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 25th day of September, 1990. APPENDIX CASE NO. 90-3007BID The following discussion is given concerning the proposed facts set out in the proposed recommended orders of the parties: Petitioner' s Facts Paragraphs A-D are subordinate to facts found. Paragraph E.1 is contrary to facts found. Concerning Paragraph E.6., sufficient description has been given of the present configuration of space in relationship to net rentable square footage. Paragraph E.7 is contrary to facts found. Paragraph E.8 is contrary to facts found. The remaining sentences of Paragraph E. are subordinate to facts found. Paragraph F is contrary to facts found. Concerning Paragraph G, although the performance by the committee members was not entirely acceptable, their determinations have been modified. The adjustment did not change the outcome. Concerning Paragraph H, see remarks concerning Paragraph G. Respondent' s Facts Paragraph 1 is subordinate to facts found. Paragraph 2 is not necessary to the resolution of the dispute. Paragraphs 3 through 8 are subordinate to facts found. Paragraph 9 is not necessary to the resolution of the dispute. Paragraph 10 is accepted and no finding has been made to the effect that public restrooms must be placed in the lobby area. Paragraphs 11 through 17 are subordinate to facts found. Intervenor has joined in the proposed recommended order of Respondent. COPIES FURNISHED: Glenn D. Storch, Esquire STORCH & HANSEN, P.A. Suite 300 1620 South Clyde Morris Boulevard Daytona Beach, Florida 32119 Perri M. King, Esquire Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Lawrence W. Borns, Esquire 312 North Halifax Avenue Daytona Beach, Florida 32118 Richard L. Dugger, Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500
The Issue The issue in the case is whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the agency responsible for licensing and regulating pool contractors operating in the State of Florida. Respondent was previously licensed as a Certified Pool Contractor by Respondent, holding license number CP C21422. On March 15, 2004, Respondent's license was revoked and was void at all times material to this case. On June 3, 2005, Respondent entered into a contract with Luis Vargas and Maria Rivera (Customers) for construction of a pool at their home located at 1524 Southeast 8th Avenue, Cape Coral, Florida. The total cost of the proposed construction was $21,500. The name of Respondent's company as identified on the contract was Gulfshore Pool and Spa, Inc., 207 Center Street, Tarpon Springs, Florida. At all times material to this case, Respondent was the president and owner of Gulfshore Pool and Spa, Inc. During the sales presentation to the Customers, Respondent provided a copy of his license to the Customers that showed an expiration date of August 31, 2004, and told them that it was being renewed. The contract contained the following notation: Company is being retained for services of design, consultation and assistance in construction. Customer is responsible for obtaining all necessary permits required for the pool construction. Respondent testified that he told the Customers he would arrange for all subcontractors and would add a fee of ten percent as his fee for "overseeing" management of the project. The Payment Schedule for the contract required that "progress payments" in an amount totaling the cost of the pool were to be made to Gulfshore Pool and Spa, Inc. The Customers obtained the construction permit. Respondent made all arrangements for site clearing and excavation. Respondent made all arrangements for acquisition and delivery of pool construction materials to the job site. All materials invoices were billed to Gulfshore Pool and Spa, Inc. Respondent made all arrangements for the laborers who appeared at the job site and was responsible for paying laborers. Respondent made arrangements for all inspections and for correcting any problems resulting from the inspections. The Customers paid a total of $20,500, by checks, made payable to Gulfshore Pool and Spa, Inc. The Customers withheld the remaining $1,000 payment for reasons that are immaterial to this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order finding that Michael D. White violated Subsections 489.127(e) and (f), Florida Statutes (2004), and impose a total administrative fine of $10,000. DONE AND ENTERED this 3rd day of April, 2008, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 3rd day of April, 2008. COPIES FURNISHED: Scott A. Smothers, Esquire Wright, Fulford, Moorhead & Brown, P.A. Post Office Box 2828 Orlando, Florida 32801-2828 Michael D. White, Jr. Michael D. White, Jr., d/b/a Gulf Shore Pool & Spa, Inc. 306 East Paris Street Tampa, Florida 33604 Nancy S. Terrel, Hearing Officer Office of the General Counsel Department Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Zed Lucynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
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 =================================================================
Findings Of Fact Based on the stipulation of the parties and on the evidence presented at the hearing, I make the following findings of fact. The Respondent was issued a certified residential contractor's license to qualify Towne & County Homes, Post Office Box 11, Flagler Beach, Florida 32306, and License No. CRCO11317 was issued to qualify said entity together with License No. RG0024736. The Respondent was also issued a Class B pool contractor's license, License No. CPC023590 to qualify Mullen Pools, Inc., 2100 South Flagler Avenue, Flagler Beach, Florida 32036. The Respondent presently maintains three current licenses issued by the Petitioner, which are as follows: Registered General Contractor, License No. RG0024736 Certified Residential Contractor, License No. CRCO11317 Certified Pool Contractor, Class B, License No. CPC023590 On September 8, 1986, the Respondent entered into a contract with Mr. and Mrs. Richard Davis to construct a single family residence in the City of Flagler Beach, Florida. The construction site was located in an area of the city zoned for single family residences only. On October 3, 1986, the Respondent submitted an application to the City of Flagler Beach to obtain a building permit, together with plans and specifications upon which a building permit was to be issued. On February 18, 1987, during an inspection, the building official, Mr. R. A. Law, observed that the Respondent had made some changes in the construction of the residence which deviated from the plans and specifications. The specific changes noticed on this occasion were (a) some rough plumbing had been stubbed in on the first floor where none was indicated on the plans, (b) an additional door had been cut into the rear of the first floor, and (c) a door on the plans between the first and second floors had not been cut in. The building official thought that the foregoing changes constituted an effort to violate the zoning law by building a two-family residence in a one-family zone. Accordingly, he issued a stop work order. After the stop work order of February 18, 1987, was posted, the Respondent removed the additional plumbing and installed a doorway between the first and second floors so that the residence complied with the approved plans and specifications. The building official removed the stop work order. On or about March 24, 1987, the building official, Mr. R. A. Law, was back on the construction site. On this occasion he observed a double electric meter can installed on the residence. This observation caused the building official to again suspect that the Respondent was attempting to violate the zoning law by building a two-family residence in a one-family zone, because he assumed that the meter can had been added to the residence since his February inspection. Actually, the double meter can had been in place since the electrical rough in was done and was simply overlooked during the February inspection. The building official wrote to the Respondent advising him that it appeared that he was "installing an extra apartment on the first floor," and ordering the Respondent to remove the double electric meter can from the house. The Respondent wrote back to the building official stating, among other things, that such was not his intent and that he did not have a contract to finish the first floor of the residence. No electrical service was ever installed to the first floor and, in any event, the power company would not have connected the second service without a second certificate of occupancy from the City. Consistent with the Respondent's contentions that he did not intend to build a two-family residence is the fact that written across the face of the plans submitted to the city were the words "Entire first floor is future area, rough in plumbing only." The Respondent's work orders to subcontractors also support his contention that he did not intend to construct a two-family dwelling. At the time of the inspections noted above, Mr. R.A. Law had only recently assumed the position of building official. There had been prior inspections by the predecessor building official at which no objection was made to the changes that Mr. Law objected to.
Recommendation For all of the foregoing reasons, it is recommended that the Construction Industry Licensing Board enter a final order in this case dismissing all charges against the Respondent. DONE AND ENTERED this 18th day of May, 1988, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 1988. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 87-5040 The following are my specific rulings on all proposed findings of fact submitted by all parties. Findings proposed by the Petitioner: All of the proposed findings of fact submitted by the Petitioner have been accepted in substance, except as specifically set forth below. Paragraph 6: The portion of this paragraph that states or implies that there was an effort to convert a single family residence to a two-family residence is rejected as contrary to the greater weight of the evidence. (The building official suspected such an effort, but there was no such effort by the Respondent.) Paragraph 8: The portion of this paragraph that describes the Respondent's intent is rejected as contrary to the greater weight of the evidence. Paragraph 10: This paragraph is rejected as in part redundant and in part irrelevant, in view of the fact that the changes were minor and were not for the purpose suspected by the building official. Findings proposed by the Respondent: All of the proposed findings of fact submitted by the Respondent have been accepted in substance. COPIES FURNISHED: John O. Williams, Esquire Lindsey & Williams, P.A. Renaissance Square 1343 East Tennessee Street Tallahassee, Florida 32308 Stephen P. Sapienza, Esquire P. O. Box 159 Flagler Beach, Florida 32036 Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 William O'Neil, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
