Findings Of Fact Brian E. Michaels, the Codes Administrator for Putnam County testified that he regulates the building codes in Putnam County and is in charge with the effective administration thereof. He testified that the pertinent regulations and codes relative to the construction of swimming pools in Putnam County are Ordinances 73-6 and 75-4. (See Petitioner's Exhibits number 2, and number 3, received in evidence). Michaels testified that after seeing an advertisement in the Palatka Daily News on august 6, 1975, his office advised Respondent's office on two occasions to apprise him of certain local laws regulating contractors and the business of contracting. When Respondent failed to respond to approximately three phone calls to its office, Michaels advised Respondent by certified letter dated August 28, 1975, that swimming pool contractors desiring to operate in Putnam County must be locally certified even if they hold state registration. He advised Respondent that if he in fact was state certified that he could send a copy of his certificate for Putnam County official files and to discuss with their office procedures for obtaining a certification in Putnam County. He further advised that the county had adopted the standard swimming pool code, 1974 edition, which requires a plot plan as well as a plan approved before a pool permit could be issued. (See Petitioner's Composite Exhibit number 5). Michaels explained the procedures for complying with the County's certification process which included the filing of an application; taking an exam and receiving a score of at least 70 percent; posting of a $5,000.00 bond; payment of a $50.00 fee which should be included with the application which should also have included a recent photo and the issuance of an occupational license. Additionally, he advised that it was necessary to comply with registration and requirements of the Florida Construction Industry Licensing Board under Chapter 468; Florida Statutes, within 90 days. Michaels testified that Respondent received his certified letter dated August 28, 1975, the following day. (See Petitioner's Composite Exhibit number 5). Section 1020 of Ordinance No. 75-6 of the zone ordinances of Putnam County states in pertinent part that building and related permits issued by the chief building official are required in advance of the construction, erection, demolition, moving, destruction, or alteration of any building or structure with a completed evaluation of $1,000.00. (See Petitioner's Exhibit number 6). On May 27, 1975, the Putnam County Board of County Commissioners enacted Putnam County Ordinance no. 75-4, which ordinance adopted by reference the Southern Standard Swimming Pool Code, 1974 edition, which provided for the adoption of a fee schedule and charges for the issuance of permits to "defray the costs of inspections". (See Petitioner's Exhibit number 7). Jerrell Sparks of Crescent City, testified that he contacted Respondent regarding the construction of a swimming pool during the fall of 1975 following his visit to a building show. On October 21, 1975, Sparks entered into a contract with Terry Michaels, a partner of Respondent, Steve Klapach, d/b/a Starfish Pools for a total price of $5,150.00. At the execution of the contract, Sparks paid Respondent $200.00 and agreed to pay an additional $1,300.00 on November 5, 1975. (See Petitioner's Exhibit number 8, received and made a part herein). Sparks testified that Respondent made the financial arrangements with a mortgage broker in Jacksonville and that Respondent was paid $4,650.00. The construction completed by Respondent consisted of the excavation for the pool and delivery of the pool shell. He testified that he obtained a homeowner's permit but that Respondent did not obtain a permit for the installation of the swimming pool. Tom McConnell of Palatka, testified that he contacted the Respondent regarding a $2,000.00 pool kit which he had seen advertised. He testified that Respondent's partner, Tony Michaels, visited his home on October 14, 1975, at which time he executed a contract for the installation of a pool for a total price of $5,714.00. When the contract was executed, McConnell secured it by an advance payment of $500.00 and he thereafter was never able to contact Respondent. (See Petitioner's Exhibit number 9, received in evidence and made a part hereof). Kenneth L. Rue of Ormond Beach contacted the Respondent based on an ad which appeared in the Sunday supplement of the Daytona Beach News Paper. On August 21, 1975, Rue entered into a contract with Respondent's partner, Tony Michaels and a Mr. Charles Van Dent for the construction of a pool for the total price of $5,200.00. He paid Respondent $500.00 when the contract was executed and paid an additional $4,200.00 when the pool was delivered. He testified that Respondent removed shrubbery and palm trees where the pool was to be positioned and thereafter the excavation and the necessary site preparation was readied. Thereafter the pool was positioned and the plumbing and electrical-fixtures were connected. He testified that the pool did not comply with the specifications as called for in the contract which by its term called for a kidney shaped pool with dimensions of 27' X 13' and a depth of a minimum of 3 and a maximum of 5 feet. He testified that the actual dimensions of the pool installed was 25' x 11' and the depth ranged from 26" to 47". He testified that after the pool was installed it began leaking around the "circulation area" and that when he contacted the Respondent, the pool was removed and Respondent agreed to install any size pool that he desired. The pool called for in the contract was a fiberglass pool however Respondent opted for the installation of a vinyl liner pool. On November 11, 1975, Respondent sent two employees out to make forms for the construction of the pool but since that time, he has had no further contact with Respondent despite repeated attempts. He paid Respondent approximately $4,700.00 of the $5,200.00 contract price and paid another contractor an additional $2,300.00 to complete construction of the swimming pool. (See Petitioner's Composite Exhibit number 10) Brian Michaels was recalled and testified that Respondent never was issued building permits for the McConnell or Sparks projects. The Board introduced into evidence documents showing that Respondent, Steve A. Klapach, RP22049 was registered with the Florida Construction Industry Licensing Board as an active swimming pool contractor during 1975 in the period September, 1975 to December, 1975. (See Petitioner's Exhibit number 1).
Findings Of Fact At all times material to the pending Administrative Complaint, Respondent was a registered pool contractor licensed by the State of Florida, having been issued license number RP 0029202. (Petitioner's First Request for Admissions, Item 2: Pet. Exh. C) On or about December 5, 1984, Respondent, d/b/a Miller Pools, contracted with Terry Kilpatrick to construct a pool at the Kilpatrick residence. (Pet. Exh. B; T. 9-10) The contract provided for a contract price of $10,963 for the construction of the pool and $1600 for the installation of fencing. (Pet. Exh. B; T. 10) Under the provisions of the contract and pursuant to the agreement of the parties, Respondent was responsible for all aspects of the pool construction and Kilpatrick was responsible for the installation of the fencing. (Pet. Exh. B; T. 10-11) As part of the contract, Respondent gave Kilpatrick a one-year warranty on the construction of the pool. (T. 19-20) The Kilpatrick residence was located in Putnam County, Florida, within the jurisdiction of the Putnam County Building and Zoning Department. (Pet. Exh. B; T. 37) In December 1984, the 1982 Standard Swimming Pool Code was in effect in Putnam County, having been adopted by county ordinance. (Pet. Exh. E, F; T. 40- 42) The Standard Swimming Pool Code in effect in Putnam County in December 1984 required that a building permit be obtained before the commencement of construction of a swimming pool at a residence in the county. (Pet. Exh. E; T. 42) Respondent obtained the necessary building permit for the Kilpatrick pool job. (Pet. Exh. D; T. 42) The Standard Swimming Pool Code in effect in Putnam County in December 1984 also required that certain inspections be done during the course of the construction of a swimming pool. (Pet. Exh. E; T. 43) Among the required inspections was an electrical inspection and a final inspection. (Pet. Exh. E; T. 44-45) It was the responsibility of Respondent as contractor to request the Putnam County Building and Zoning Department to conduct the necessary inspections of the pool. (Pet. Exh. E; T. 44) The purpose of requiring the various pool inspections, including the electrical and the final, was to make certain that the pool had been constructed and was operating correctly and safely. (T. 45) Respondent was aware that certain inspections were required by local law. On three occasions, December 19, 1984, January 7, 1985 and January 10, 1985, inspections were performed on the Kilpatrick pool at Respondent's request. (Pet. Exh. D; T. 23, 43) Respondent did not make arrangements for the electrical or final inspections to be performed on the Kilpatrick pool. (Pet. Exh. D; T. 23, 43-44) During the construction of the Kilpatrick pool, Respondent was at the job site infrequently. (T. 12-16, 18, 19, 22) Almost immediately after the pool construction was completed, Kilpatrick began to experience problems with the pool, problems which included pitting of the marcite finish, leaks in the tiled area of the pool, and chipping of the brick and coping. (T. 24-35) The problems experienced by Kilpatrick were problems related to the construction of the pool and were covered by the one-year warranty on the pool given to Kilpatrick by Respondent. (T. 19-20) Respondent failed to take any action to correct the problems until after Kilpatrick had contacted the Putnam County Building and Zoning Department and the Department of Professional Regulation to complain about the problems with the pool. (T. 25-28, 35-36, 46-50) As of the date of the hearing in this case, Kilpatrick continued to experience problems with the pool leaking around the tile. (T. 31-31, 34) By Final Order, dated March 17, 1986, in Department of Professional Regulation Case No. 0059028, the Construction Industry Licensing Board imposed an administrative fine of $1000 and suspended Respondent's registered pool contractor's license for five years as a result of Respondent's default in a disciplinary case in which Respondent had been charged with failure to supervise a swimming pool construction project and/or performing said construction in a grossly negligent and/or incompetent manner. (Pet. Exh. C)
Recommendation Having found the Respondent guilty of violating Subsections 489.129(1)(d) and (m), Florida Statutes, it is recommended that Respondent be fined $1000, and that his license be suspended for an additional year after the suspension imposed by the Construction Industry Licensing Board in its Final Order, dated March 17, 1986, in Department of Professional Regulation Case No. 0059028. STEPHEN F. DEAN 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 12th day of January, 1987. COPIES FURNISHED: David R. Terry, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Jimmy G. Miller 706 Southeast 35 Avenue Ocala, Florida 32671 Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Wings S. Benton, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
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 Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts were found: At all times material to these proceedings Respondent was licensed by the State of Florida as a certified pool contractor, licensed No. CP C025535 and registered pool contractor, License No. RP 0041301. On June 7, 1983, Respondent entered into a Contract (Contract) with Edward and Maureen Kerstein (Kersteins) of 283 Islander Lane, Hudson, Florida, under which a pool was to be constructed on the Kersteins' property for a contract price of $7,777.00. The Contract was later amended by a letter, signed by Respondent and dated July 15, 1983, providing a penalty of $50.00 per day to be deducted from the balance due on the contract price if Respondent failed to complete the pool by July 23, 1983. Respondent obtained building permit No. 34342 on June 15, 1983, in the name of Crystal Clear Pool for the construction of the Kersteins' pool from the Pasco County Building Division. The pool steel inspection was called for and approved on July 8, 1983 and the pool bonding inspection was called for and approved on July 18, 1983. No other inspections were called for by the Respondent and the Respondent did not request an extension of time on the building permit. Therefore, on January 18, 1984, as required by the Standard Building Code of Pasco County, the permit lapsed and was invalid. However for reasons that are not clear in the record Vern Rossky, Building Inspector, Pasco County Building Division, made a final inspection of the Kersteins' pool (Permit No. 34342) on June 28, 1984 and approved the pool. Ordinarily the contractor would call for the final inspection or if the permit had lapsed or was invalid then the Pasco County Building Division would contact the contractor in order to finalize the permit. However, the record is clear that Respondent's intent was to leave the permit open due to the problems with completing the pool and satisfying the Kersteins. Although problems with the pool still existed, the pool was substantially completed in August, 1983 and the Kersteins used the pool in late summer 1983 (August) and the summer of 1984. The pool was operational in August of 1983. The respondent has received $7,055.05 for his work on the construction of the pool under the Contract with the Kersteins. While the Contract did not specify which side yard Respondent was to have access through for construction of the pool, the testimony of both the Respondent and the Kersteins was that it was the west side yard. However, the record reflects that the Kersteins gave either an expressed or implied approval for the use of the east side yard. All of the shrubbery, with the exception of the shrubbery that was part of the Contract, has been properly replaced and the clothesline has been replaced. The evidence was insufficient to show that the cracks which occurred in the house some 3-6 months after the pool construction was caused by the equipment being brought in on the east side of the house. Although Edward Kerstein's testimony was that an expert had not looked at the damage caused by the alleged water seepage around the electrical conduit pipe installed by the Respondent, his testimony that he had identified the Respondent's failure to caulk around the conduit pipe as the reason for the water seepage which resulted in damage to the carpet and speakers went unrebutted and was credible. However, Respondent was not made aware of this problem until the summer of 1984, almost a year later. The record is clear on the following: (a) that the tile placed around the top edge of the pool by Respondent was defective; (b) that there were several acceptable methods of replacing the defective tile; (c) that there were differences of opinion as to which method should be used in this situation; (d) that the reglazing over the existing tile was not an acceptable method; (e) that the pool would have to be drained to replace the defective tile; (f) that the Kersteins did not want to tile over the existing defective tile; (g) that the Respondent and Drew Tile Supply Company (Drew), the supplier of the defective tile, agreed on the method of cutting the tile away from the bull nose cap and replacing just the tile and based on this agreement; Drew delivered a check to Respondent in the sum of $823.75 ($700 for labor and $123.75 for tile) made payable to Crystal Clear Pools and Phil Klein, the subcontractor who had installed the defective tile; (h) that the Respondent, as President of Crystal Clear Pools assigned Crystal Clear Pools' interest in the check to Phil Klein provided the work on the defective tile in the Kersteins' pool commenced no later than February 1, 1984; (i) that Phil Klein endorsed and cashed the check with the knowledge of the assignment; and Phil Klein's testimony that even though the assignment was on the check at the time he endorsed and cashed the check the Respondent told him that the money was a partial payment of another job is just not credible; (j) the more credible evidence is that Respondent assigned the check to Phil Klein for labor and tile to replace the defective tile on the Kersteins' pool and there was no intent by Respondent to divert these funds to another job; (k) that the Kersteins' had not agreed to the method of replacing the defective tile which was part of the agreement between the Respondent and Drew; (1) that Drew had agreed that if the method selected was not satisfactory, then Drew would make it right; (m) that the problem with the drain in the pool, the filtering system, the telescoping rod, the damage to the air conditioning controls on the house, the failure to put tile chips on pool steps and the damage to the underground wire, were legitimate problems and it was Respondent's intent to correct all by the time the pool was drained to replace the defective tile; (n) that the Kersteins understood this when they agreed to allow Respondent to wait until the winter of 1984 to correct these problems because they were already using the pool in the latter part of the summer of 1983 and did not want to drain it at that time; (o) that none of these problems had been corrected due to the failure of both the Respondent and Drew to reach an agreement with the Kersteins on how both the defective tile problem and the other problems were to be resolved and; (p) that there had been continuous negotiations between either the Respondent and the Kersteins or Drew and the Kersteins concerning the settlement of this problem.
Recommendation Based upon the findings of fact and conclusions of law cited herein it is RECOMMENDED that the Board enter a final order finding the respondent not guilty of the violations charged in Count I, Count II, and Count III of the Administrative Complaint and that Counts I, Count II and Count III of the Administrative Complaint be DISMISSED. Respectfully submitted and entered this 10th day of July, 1985 in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 1985. COPIES FURNISHED: Douglas A. Shropshire, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Gerald A. Figurski Post Office Box 786 New Port Richey, Florida 33552 Mr. James Linnan Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue is whether the Respondent's license as a registered pool contractor should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint.
Findings Of Fact At all times material hereto, Respondent, William Losciale, was a licensed registered pool contractor in the State of Florida, having been issued license number RP-0032951, by the State of Florida, and was the qualifier of Lynn Pools. On or about October 2, 1987, John J. Kerry entered into a contract with Respondent d/b/a Lynn Pools for the Respondent to construct a pool and screen enclosure on Mr. Kerry's property located at 633 South Little John Street in Inverness, Florida. The total cost of the pool and enclosure was $19,600.00. During construction various problems developed. Among them were delays in completion, the failure to obtain the proper permits, the installation of an inadequate and improper filter, the delayed removal of excavated dirt, the gouging up of the homeowner's yard, and the improper positioning of the septic tank after relocation. At the time the pool deck was being designed, the homeowner told the Respondent that it appeared to the homeowner that the deck was slanted towards the house and would cause flooding problems. The Respondent told the homeowner that the Respondent knew what he was doing and no such problem would develop. During construction of the pool, the homeowner pointed out to the Respondent that it appeared that the pool was being constructed higher than the patio which, if true, would also cause flooding problems. Again, the Respondent denied that the pool was being constructed higher than the patio and that flooding problems would occur. During construction, Respondent removed a rain downspout which, prior to construction, was located between the patio and the screen enclosure. The pool patio was then poured without replacing the downspout underneath the patio. As a result of one or more of the foregoing conditions, the homeowner's house was almost flooded on one occasion. Thereafter, the homeowner had to put a drain hole in the patio in an attempt to prevent future flooding. Since completion of the pool, when it rains, rainwater flows down the patio towards the house. Additionally, rainwater is directed from the roof through the gutter onto the patio towards the house and occasionally water overflows from the pool towards the house. While the house has not been flooded, the pool deck floods during certain rains. During construction, the Respondent removed all of the ground wires off electrical fixtures located in the homeowner's yard without replacing them after being requested to replace them by the homeowner. After the deck was poured, it was covered with kool deck. The kool deck was soft and had indentations in it. The Respondent agreed with the homeowner that the deck was bad and that the homeowner should not accept it. The Respondent the replaced the kool deck with river rock. The deck now has ripples in it. The Respondent tried to charge the homeowner an additional $1,200 for the river rock. The homeowner had the river rock installed for an additional $850.00 by a third party. Prior to entering into the contract for the pool and enclosure with Respondent, the home owner told the Respondent that he wanted the biggest water heater available to heat the pool water instantly. When the water heater was being installed, the homeowner questioned the Respondent whether or not the water heater was big enough to meet the homeowner's requirements. The Respondent said that it was. After installation, the heater did not come close to meeting the home owner's requirements. The homeowner then called the manufacturer of the heater and was told that the installed heater was too small. The Respondent, at the homeowner's request, then changed the heater to one that would supposedly heat the pool water faster. It did not. The homeowner then called the heating company again and was told that the new heater was only one size up from the original heater and still would not meet the homeowner's requirements. That heater remains on the homeowner's property and does not meet the homeowner's requirements. Mr. Kerry paid the Respondent $5,500.00 on December 7, 1987, which made a total of $19,000.00 the homeowner had paid the Respondent. The homeowner has paid more than $600.00 in repairing and/or correcting work that was the obligation of the Respondent. Correction of all these problems has been to the homeowner's financial detriment. In the latter part of December, 1987, the Respondent entered into an oral contract with All Wright Aluminum to have All Wright Aluminum install an L- shaped pool enclosure over the pool at the Kerry residence. The total contract price was $5,185.10. Payment for the construction was due within ten days of completion which occurred on January 6, 1988. All Wright Aluminum received a $1,000.00 payment from the Respondent on or about February 2, 1988. That payment was a check from a customer of the Respondent, made payable to the Respondent's order in partial payment on pool repairs which the Respondent made for that customer. The Respondent endorsed that check and made it payable to All Wright Aluminum. On February 15, 1988, All Wright Aluminum in compliance with the mechanic's lien law, filed a valid claim of lien against Mr. Kerry's property in the amount of $4,185.10 for failure of the Respondent to pay All Wright for the construction of the pool enclosure. On May 10, 1988, the Respondent paid All Wright Aluminum $1,000.00 towards that lien. On September 16, 1988, the Respondent paid All Wright $2,000.00 towards the satisfaction of that lien from his personal account. On September 16, 1988, the Respondent gave All Wright Aluminum a personal promissory note in the amount of $1,135.10 for the balance of the lien amount. On that date All Wright Aluminum satisfied its previously filed claim of lien. Respondent has previously been disciplined by the Florida Construction Industry Licensing Board.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Construction Industry Licensing Board, enter a Final Order and therein penalize the Respondent, William Losciale, as follows: Assess a fine of $750 for the violation of Section 489.129(1)(h) Assess a fine of $750 for the violation of Sections 489.129(1)(j) , 489.105(4), and 489.119. Assess a fine of $1500 for the violation of Section 489.129(1)(m) Suspend the license of Respondent for a period of six (6) months. DONE and ENTERED this 19th day of October, 1989, in Tallahassee, Florida. DIANE K. KIESLING 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 19th day of October, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-3296 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Professional Regulation, Construction Industry Licensing Board 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-20 (1-20). COPIES FURNISHED: Jack M. Larkin Attorney at Law 806 Jackson Street Tampa, Florida 33602 William Losciale 6491 Mobile Street Inverness, Florida 32652 Kenneth E. Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
The Issue This case concerns the issue of whether the Respondent's license as a certified general contractor should be suspended, revoked, or otherwise disciplined for multiple violations of Chapter 489 of the Florida Statutes. Specifically, the Respondent is charged with having been found guilty of a crime which relates directly to the practice of contracting in violation of 489.129(1)(b)(1979); willfully or deliberately disregarding and violating the applicable building code in violation of Florida Statute 489.129(1)(d)(1979); aiding and abetting an unlicensed person in his evasion of the Contracting Practice Act in violation of 489.129 (1)(e)(1979); knowingly combining or conspiring with an unlicensed person by allowing Respondent's license to be used by said unlicensed person with the intent to evade the provisions of the Contracting Practice Act in violation of Florida Statute 489.129 (1)(f)(1979); and, violating Florida Statute 489.129(1)(j)(1979) by failing to renew his license every two years and by failing to supervise a construction project. At the formal hearing, the Petitioner called as witnesses the Respondent, Frederick G. Gervia, Leroy S. Duncan, John Knezevich, and Evodio Llevado. Respondent testified on his own behalf and also called as a witness Mr. L. Perry Curtis. Petitioner offered and had admitted without objection eight exhibits. The Respondent offered no exhibits into evidence.
Findings Of Fact The Respondent is a certified general contractor holding License No. CG C003114. Respondent is also a registered general contractor having been issued License No. RG 0009802. Respondent's license CGC003114 was delinquent as of December 7, 1981, and had not been renewed for the 1981-83 licensing period. On October 11, 1981, Fiberglass Pools of South Florida, Inc. entered into a contract with Mr. Leroy Duncan to construct a fiberglass pool at Mr. Duncan's residence located at 1385 N.W. 192nd Terrace, Miami, Florida. On November 10, 1981, Respondent applied for a building permit (see Petitioner's Exhibit 2) for the pool construction at Mr. Duncan's home. The Respondent signed the application in the block designated "Signature of Qualifier or Owner-Builder". The application named Gervia Construction Company, address 2810 S.W. 78th Court as the building contractor. Gervia Construction Company was neither the general contractor nor a subcontractor in connection with the construction of the Duncan pool. At the time that he applied for the building permit, Respondent was qualifying agent for Gervia Construction Company, 2810 S.W. 78th Court, Miami, Florida 33155. The Respondent has made no request to qualify under either of his licenses as the qualifying agent for Fiberglass Pools of South Florida, Inc. Neither Fiberglass Pools of South Florida, Inc. or its principals were licensed. Prior to and during construction, Mr. Leroy Duncan had no dealings at all with the Respondent or Gervia Construction Company. Mr. Duncan's dealings were primarily with Douglas Lake of Fiberglass Pools of South Florida, Inc. Mr. Duncan observed a substantial portion of the construction, but was not present during the form work for the deck. At no time did Mr. Duncan observe the Respondent working on the construction of the pool at his home. The only work performed by Mr. Gervia on the Duncan pool contract was to check the plumbing prior to the county inspection. The pool was actually installed by two principals of Fiberglass Pools of South Florida, Inc. and two helpers. These persons were neither supervised nor controlled by the Respondent during construction. During the time period October 11, 1980, through initial construction of the Duncan pool, the Respondent was employed by Fiberglass Pools of South Florida, Inc. at a salary of $350 per week. One of his duties was to pull permits. Although the Respondent was also hired to supervise all field construction, at the time the Duncan pool was contracted for and constructed, his supervisory status had been eliminated. The Respondent performed no supervisory duties in connection with the Duncan pool construction. All payments from Mr. Duncan, including two checks totaling $950 and a cash payment of $6,230 were made to Fiberglass Pools of South Florida, Inc. No payments were made to the Respondent or Gervia Construction Company. Mr. Gervia did not hire or fire any of the persons who worked on the Duncan pool and kept no records relating to payments received or monies spent on the job at the Duncan residence. Subsequent to the pool being completed, substantial problems and flaws in the Duncan pool developed. The following problems were present in the pool: (See Petitioner's Exhibit 5.) Seven patches on South wall, below water line, are rough, discolored and flaking. The largest two are approximately 12" in diameter and 12" x 4". There is a very small depression in the shallow end seat. The pool flange at the ladder is full of depres- sions, making the edge very rough. Flange cracks at three corners are excessive and need repair. The Southwest corner has a vertical crack down the wall about 1'. See exhibits II, III, IV, and V. The pool wall thickness at corners was 3/8" but north, south and west wall were 7/32" to 1/4" thick. Several dark circles about 2" in diameter are located around perimeter flange and show where holes were drilled and patched poorly. . . Four hydrostatic valves seem high to effectively counteract buoyancy, but approved plan approves 1' above floor at deep end plus one valve in main drain [could not check with pool full]. See notes 9, 10 & 11 - William Meyers plan. 13' x 30' x 72" pool actually measures 12'-11" x 29'-8" x 71 1/8" deep. Vertical floor variations in shallow end are about 1 3/4". Seems depressions occur between ribs. A small bow occurs at Northwest corner near surface of water. Area covers about 18" square. Some concrete voids occur beneath pool lip. Pursuant to an agreement with Mr. Duncan, the Respondent and Fiberglass Pools of South Florida, Inc. have repaired those items listed in paragraph 9 in an excellent manner and to the full satisfaction of the owner, Leroy Duncan. On November 17, 1982, the Respondent was convicted in the County Court of Dade County, Florida, of unlawfully aiding and abetting an unlicensed contractor in violation of Section 10-22(h) of the Metropolitan Dade County Code. Adjudication of guilt was withheld and Respondent was required to pay a $500 fine. The Respondent has been a licensed certified general contractor in the State of Florida since November, 1971, and has had no other charges or actions against his license. There have also been no other complaints filed with the Petitioner regarding the Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent be found guilty of those specific violations as set forth in the Conclusions of Law above and that his license as a certified general contractor be suspended for a period of six months and that the Respondent be required to pay an administrative fine of $250.00. DONE and ENTERED this 20th day of July, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, 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 20th day of July, 1983. COPIES FURNISHED: Harold M. Braxton, Esquire 45 Southwest 36th Court Miami, Florida 33135 Frederick G. Gervia 2810 Southwest 78th Court Miami, Florida 33155 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. James Linnan Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
The Issue The 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 In 1975 and 1976 John Morris, d/b/a Morris Pool Service, maintained the swimming pool at the Sunland Center in Miami, Florida under a contract with HRS. The contract for the year commencing July 1, 1976 and expiring June 30, 1977 (Exhibit 1) provided generally for Morris to maintain the Sunland Center pool for which he would be paid $520 per month. This contract further provided that a representative of Morris Pool Service check each day except Saturday and Sunday with Ms. O'Donohue, the Director of Training, or her successor. Recreation personnel at Sunland Center hoped to open the pool on Memorial Day; however, an impeller for the pump needed replacement and the pool was inoperative for some six weeks in May and June awaiting this part. During this time petitioner did little or no maintenance and the pool's condition was bad enough for the Superintendent to become involved and request a report from the Programs and Services Director (Exhibit 4). When the impeller did arrive in mid-June, 1977, the pool was in such bad shape it was necessary to drain the pool, scrub, and acid-wash the walls and floor of the pool to remove the accumulated algae and scum. Even a colony of frogs had taken up residence in the pool during this period. As a result of additional delays the next hoped-for opening date of July 4 was also missed. The pool was finally ready for operation and was opened the week following July 4, 1977. Although opened the water in the pool was not properly maintained by cleaning and chlorinating. In the latter part of July the gas chlorinator became inoperative and the pool's condition deteriorated as no chlorine was being added to the water. Under the contract Petitioner was to provide materials necessary to keep the pool water in a balanced condition. This contract expired on June 30, 1977. Nevertheless, Petitioner purported to continue working under the expired contract, pending the issuance of a new contract for 1977-1978. While the gas chlorinator was inoperative Petitioner did not hand-feed chlorine to the pool to maintain the proper chlorine level and to keep algae from growing. By early August, 1977, the pool had become so bad the supervisory personnel at Sunland Center called the Dade County Health Department to inspect the pool. A report of that inspection showing the pool unfit for use was admitted into evidence as Exhibit 3. Following the Superintendent's inquiry to Ms. Titus about the condition of the pool in June, 1977, she contacted Petitioner, who told her the pool would he hack in operation as soon as the impeller was received. Ms. Titus was the successor to Ms. O'Donohue and she told Petitioner to keep her advised regarding the status of the pool. Although the contract (Exhibit 1) required Petitioner to report to Ms. Titus daily (except Saturday and Sunday) she did not see him again, nor did she receive any report that he came to her office. Petitioner contends that he attempted to report to Ms. Titus but was unable to find her in her office and after a few attempts stopped trying. Ms. Titus and her assistant were both equipped with beepers and could be contacted any time of day by their office if they were out of the office. Following the Health Department's inspection on August 9, 1977, the pool was closed for several days, then reopened around mid-August after the chlorinator was repaired. When the pool was reopened in August its condition was barely satisfactory. Shortly after Labor Day the pool was again closed and remained closed throughout the balance of 1977. By October, the Sunland Center officials decided they should notify Petitioner that his contract would not be renewed for the 1977-1978 year and a letter dated October 27, 1977 (Exhibit 2) was forwarded to him by registered mail. This letter was mailed to an old address for Petitioner, was returned to the sender and remailed to the proper address. As a result, the letter was not received by Petitioner until December 14 or 15, 1977. Petitioner submitted bills to Respondent for services for the period July 1, 1977 through December 15, 1977, the approximate date he received Exhibit 2. Following August 10, 1977 some of Respondent's employees in the maintenance department saw Petitioner in the cafeteria at Sunland Center and on the premises, but none of them reported seeing Petitioner do any work on the pool. Petitioner contends he worked on the pool on a daily basis, however, the condition of the pool casts serious doubts on this testimony.
