The Issue The issues presented for decision herein are whether or not Respondent failed to properly supervise a pool construction project, willfully violated local laws, is guilty of gross negligence, incompetence, misconduct, fraud or deceit in the practice of contracting and failed to discharge his supervisory duties as a qualifying agent in violation of sections 489.129(1)(d), (m), (j), and sections 489.119 and 489.105 (4), Florida Statutes.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings. At all times material hereto, Respondent was a registered pool contractor in Florida, holding license no. RP0015329 and served as the qualifying agent for Paradise Pools, Inc. (Request for Admission, responses 1- 4). Petitioner is the regulatory agency in Florida charged with the authority to regulate contractors and to determine compliance with applicable state and local building code requirements. On May 31, 1986, Respondent entered into a contract with Alex and Theresa Nitu for the construction of a swimming pool at the Nitu's residence at 9550 Lisa Road in Dade County, Florida. The following day, the Nitus were approached by John Davis, a partner of Paradise Pools, Inc. Davis identified himself as the owner of Paradise Pools and told the Nitus that Respondent was the company salesman. Davis is not a licensed contractor. During construction, Davis supervised the work for the Nitus' pool. Mrs. Nitu was ill and remained at home on the day the workers laid reinforcing steel for the pool shell. Mr. Nitu, an electrical contractor, took off work and was at home during the two days when the gunite work was done for their pool. Respondent was not present on the job site on those days. The day after the concrete deck was poured, the Nitus noticed that it contained several low spots which collected water and that rocks were protruding through the deck's surface. Additionally, a portion of the deck sloped toward the pool rather than away from it. The following day, the Nitus returned home from work to discover that the "whitecoat" for the deck surface was completed and their water hose, weighted down by a rock and a rag, was filling the pool. The pool was filled with water before the Nitus had completed a fence to secure the pool. At Mr. Nitu's request, James Tucker, a Dade County Building Inspector, inspected the pool on August 6, 1986. Tucker issued a notice of violation to Respondent for allowing water to be put in the pool without proper safety barriers in contravention of section 33-12, Dade County Code; for allowing the deck to slope toward the pool in contravention of section 5003.1 of the South Florida Building Code and for using concrete of less than 2500 psi strength in contravention of section 5003.1(a), South Florida Building Code. In an attempt to correct the low spots and improper slope of the patio, Davis poured an additional layer of cement over the pool deck and scored the surface to create the appearance of keystone. Thereafter, the Nitus discovered hollow areas under certain parts of the keystone. Eventually, the keystone began to separate from the original deck exposing large areas of the deck. Ben Sirkus was tendered and accepted as an expert in pool construction. Sirkus inspected the Nitu's pool on September 24, 1987, at Petitioner's request. Sirkus observed low spots in the pool deck which held water and contributed to the growth of algae. He also observed that large areas of the imitation keystone had separated from the original deck; that portions of the deck still drained towards rather than away from, the pool; that coping mortar had been left on the sides of the coping and the pool shell; that areas of the whitecoat were unusually rough and that the pool pump was off level, which in time could cause scoring of the bearings in the pump. Sirkus opined that the deficiencies observed could not have gone unnoticed by a pool contractor of average skill and ability; that deficiencies indicate poor supervision or gross negligence or that Respondent exhibited incompetence in contracting for the Nitu's pool. John Davis, Respondent's partner and the person who was usually on the site during all facets of the construction, credibly testified that when the angles were laid out for the sloping of the decks surrounding the Nitu's pool, Alex Nitu requested that his employees angle the deck toward the pool such that it would mesh with his patio. This required that Respondent's employees reslope the angles in accord with Mr. Nitu's wishes and contrary to the manner in which they originally sloped the deck. Mr. Davis also attempted to correct the problems that had surfaced surrounding the deck in accordance with the concerns expressed by the Nitus. However, the Nitus vehemently refused access to Respondent's employees and the matter therefore, remained unresolved. Respondent Reise was at the construction site on numerous occasions during the major facets of the construction. In addition to being the principal salesman for Paradise Pools, Respondent Reise has extensive experience in the construction of pools and frequently consulted with his partner, John Davis, about the ongoing construction of the Nitu's pool. Respondent Reise also attempted to gain access to the pool to attempt to correct the problems and other concerns expressed by the Nitus, to no avail. In this regard, a meeting was held at the Nitu's residence on January 30, 1987, by Jim Tucker and Robert Denery, employees of the Dade County Building and Zoning Department, a Mr. Wolf, Petitioner's investigator, Respondent and his partner, John Davis. After a lengthy discussion, it was agreed that all problems were to be resolved which included (1), repair and patch the keystone on the east end of the pool and (2), rework the slope on the northside of the pool to pitch away from the pool and (3), submit test results from an engineering test lab as to the structural strength of the patio slab and final approval by the electrical and plumbing departments of Dade County. Respondent agreed to correct the above-referenced items and agreed to do so as quickly as feasible. The Nitus refused to allow Respondent's employees back on the site to correct the problems. (Respondent's Exhibit 1). John Davis and Respondent's other employees denied that they started filling the Nitu's pool prior to the time that the Nitus had completed a fence to secure it. Their denial in this regard is incredible and is not worthy of belief. The Nitus, in this regard, credibly testified that they were at all times concerned about the safety of the pool and would never have started filling it prior to the time that it was secured. Respondent's employees, on the other hand, were in fact interested in completing the job and it is therefore believed that they started the water running into the pool and weighted the hose down with a rock and a rag as the Nitus found it when they returned home from work on the day that the "whitecoat" was completed. In all other respects, based on the Nitus' failure to permit Respondent's employees to return to the site to complete the deficiencies and other concerns noted, the undersigned finds that Respondent should have been afforded an opportunity to correct such deficiencies and cannot be held liable 1/ for the allegations that he improperly sloped the pool deck, used improper concrete or was otherwise negligent, incompetent, engaged in misconduct and other allegations of improper supervision, as alleged. I shall so recommend.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Respondent be assessed an administrative fine in the amount of $250.00. Respondent be issued a written reprimand for allowing his employees to fill an unsecured pool in violation of the local building code. DONE and ORDERED this 16th day of September, 1988, 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 19th day of September, 1988.
Findings Of Fact Respondent is, and has been at all times material to this proceeding, a registered and certified pool contractor having been issued license numbers RP 0023613 and CP 0012607. Respondent's license number RP 0023613 has been delinquent since June 30, 1983, but his license number CP 0012607 was active and in full force and effect until he ceased doing business in approximately September, 1985. Respondent conducted his pool contracting business in the name of Hallmark Pools for approximately 14 years. The business entity "Hallmark Pools" was properly qualified and named on the Respondent's license. In 1985, the Respondent began to enter the business of designing outdoor patios and fountains, as well as pools. He wished to retain the good will he had gained operating under the name "Hallmark Pools" while gaining good will in the new name under which he planned to conduct business in the future, "Aquatic Environments, Inc." During this transition period, and until he closed his business, the Respondent's contracts and letterhead contained the names "Hallmark Pools" and "Aquatic Environments, Inc.," but that name never appeared on his licensure. On or about March 12, 1985, Respondent, through Hallmark Pools/Aquatic Environments, Inc., contracted with customers Mr. and Mrs. Allan Schaeffer to construct a screened-in pool and spa at their residence located at Archer Street, Lehigh Acres, Florida, for a contract price of $20,000. Later approximately $1,700 of extras were added to the contract. On or about March 21, 1985, the Schaeffers paid the Respondent $2,000 on the contract. On or about May 23, 1985, the Schaeffers paid another $17,000 on the contract. Approximately, $2,600 remained owing on the contract. The customers reside part of the time in New Jersey. In the contract, Respondent promised a June 15 completion date. When the customers arrived in Florida on or about June 14, they found that the project was not complete. When the customers contacted the Respondent, the work was resumed. The pool was quickly completed and was usable by the beginning of the July 4th weekend. Some punch list items remained to be done, but the Schaeffers preferred that the Respondent wait until after they returned to New Jersey in August, 1985. The evidence did not prove that the Respondent promised a June 15 completion date while knowing that he would not be able to finish the work by that date. During the summer of 1985, personal problems the Respondent was facing at the time mounted, and eventually he decided he no longer could continue to operate his business. He began to plan to close his business and have all pending matters either resolved by himself before he went out of business or resolved by his brother Chad Jackson, also a licensed pool contractor, after going out of business. He did this by assigning pending contracts to his brother. He also attempted to insure that all suppliers were paid either by himself before he went out of business or by his brother out of payments due under the contracts assigned to him. Except for the Schaeffer job, the Respondent's arrangements to close out his business did not result in any complaints. Near the end of August, 1985, the Schaeffers gave the Respondent a punch list of work still due under the contract to be done while the Schaeffers were in New Jersey. The Respondent called and told Mr. Schaeffer that he was closing his business but that the punch list items would be taken care of. At the time, the Respondent also knew that approximately $1,300 was owed to Jones Industries Screen Enclosures, Inc. The Respondent expected his brother to pay Jones out of the $2,600 due on the Schaeffer contract, leaving $700 to compensate his brother for the punch list work and any warranty work. In fact, there also was $2,705.12 owed to a company named FAFCO Solar, which had subcontracted the solar heating on the Schaeffer contract. The Respondent had forgotten about this debt. FAFCO had billed the Respondent on July 15, 1985, but the Respondent did not pay it or arrange for its payment. FAFCO's second billing never reached the Respondent. The Respondent sent FAFC0, along with his other suppliers and subcontractors, a notice on August 22, 1985, that he was going out of business and that mail should be sent to his home address. On receipt of this notice on August 28, 1985, FAFC0 mailed a second billing to the home address but it was returned on August 30, 1985, marked: "Moved Left No Address". The Respondent's brother did the punch list work to Mr. Schaeffer's satisfaction and sent him a bill for the $2,600 balance due on the contract. Schaeffer never paid. The Respondent's brother never paid the Jones Industries bill (and never got the FAFCO bill). Jones Industries put a lien on the property at 1414 Archer Street for $1,388.75, which the Schaeffers eventually paid. FAFCO did not file a notice to owner and could not claim a lien on the property. FAFC0 never was paid. Both Jones Industries and FAFCO refused to do warranty repairs because they were not timely paid. The evidence did not prove that the Respondent inadequately supervised the Schaeffer job while he was still in business or after he went out of business. After he went out of business, he assigned the contract to a licensed pool contractor, his brother. Eventually, serious problems developed in the Schaeffer's pool at 1414 Archer Street. But the evidence did not prove that the Respondent or his brother were responsible. The serious problems of which the Schaeffers now complain should have been apparent from the outset if caused during construction of the pool. Yet complaints were not registered until much later. Meanwhile, improper maintenance of the pool by the Schaeffers or their pool maintenance contractor, or damage to the pool during maintenance, could have caused the current problems. For six months after the Respondent closed his business and left Ft. Myers, he was traveling in the western part of the country and had no mailing address and did not give one to the Construction Industry Licensing Board. Then, he returned to Florida to a St. Petersburg address which he gave to the Board.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Construction Industry Licensing Board enter a final order finding the Respondent guilty of violating Section 489.129(1)(g) and (m), Florida Statutes (1985), reprimand him for the violation of (g) and fine him $1000 for the violation of (m). RECOMMENDED in Tallahassee this 19th day of December, 1988. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3468 To comply with Section 120.59(2), Florida Statutes (1987), the following rulings are made on the Petitioner's proposed findings of fact: Rejected. (The license number was left blank.) Accepted and incorporated. Rejected as contrary to facts found. The Respondent arranged for payment of the Jones debt but disputes among the Schaeffers, Jones and the Respondent's brother led to Jones imposing a lien on the property which the Schaeffers eventually paid. The Respondent did not make arrangements to pay FAFCO, and that bill remains unpaid. 4.-9. Rejected as contrary to facts found. COPIES FURNISHED: David Bryant, Esquire 500 North Tampa Street Tampa, Florida 33602 Thomas Jackson 5203 109th Way North St. Petersburg, Florida 33708 Fred Seely Executive Director Construction Industry Licensing Post Office Box 2 Jacksonville, Florida 32201 Bruce D. Lamb General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaints dated June 3, 1998, and December 23, 1998, and, if so, the penalty that should be imposed.
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 Department is the state agency responsible for investigating and prosecuting complaints made to the Department for violations of Chapter 489, Part I, Florida Statutes. Sections 489.131(7)(e) and 455.225, Florida Statutes (1997). Pursuant to Section 489.129(1), Florida Statutes (1997), the Construction Industry Licensing Board ("Board") is the entity responsible for imposing discipline for any of the violations set forth in that section. At all times material to these proceedings, Mr. Esquinaldo was a licensed swimming pool contractor, having been issued license number CPCO50527 by the Board, and he was the qualifying contractor for Challenger Pools, Inc. ("Challenger Pools"). Mr. Esquinaldo has been a licensed swimming pool contractor since 1987. In that time, Mr. Esquinaldo has been cited by the Department once, in June 1992, and Mr. Esquinaldo paid an administrative fine of $50.00 for the violation, which was failure to obtain a final inspection after completing a swimming pool. At the times material to these proceedings, Challenger Pools had several offices in south and central Florida, and built approximately 1,500 pools each year. Mr. Esquinaldo was the only qualifier for the company. The building code that governed each of the projects at issue herein was the South Florida Building Code, 1996 Edition. This Code required a number of inspections: For the structural portion of the pool, three inspections were required: the pool steel, the pool deck, and the final inspection. For the plumbing portion of the pool, three inspections were required: the main drain, pool piping, and the final inspection. For the electrical portion of the pool, three inspections were required: the electrical grounding of the steel structure, the pool deck grounding, and the final inspection. In addition, a final inspection was required for any fencing to be installed. It is the responsibility of the pool contractor to call for the required inspections for work over which it has responsibility. The South Florida Building Code, 1996 Edition, also provided that building permits, including permits for the construction of swimming pools, would expire if 180 days elapsed without the contractor calling for an inspection. It is not unusual in the pool contracting industry for inspections to reveal code violations. The contractor is, however, expected to correct the violations and any other deficiencies noted in the inspection reports. During the times material to these proceedings, it was the policy of Challenger Pools that, whenever a customer threatened a lawsuit or filed a lawsuit, it would stop work immediately on the customer's pool and it would cease all direct communications with the customer. Work would recommence at the direction of Challenger Pools' attorney. This policy was adopted on the advice of Challenger Pools' attorney. DOAH Case No. 98-3713 - Irving Jovellar On May 7, 1996, Challenger Pools, Inc., and Irving Jovellar entered into a Swimming Pool Construction Agreement for the construction of a swimming pool and spa at 188 Truxton Drive, Miami Springs, Florida. Addenda to the agreement were executed on June 6 and 22, 1996, and on September 6, 1996. The contract price was $14,000.00, with $1,600.00 added pursuant to the September 6, 1996, addendum. The full contract price of $15,600.00 was paid by Mr. Jovellar, and the check for the final payment was processed by the bank on October 2, 1996. 2/ On June 11, 1996, Challenger Pools applied to the City of Miami Springs, Florida, for a building permit for the pool. Challenger Pools began work on Mr. Jovellar's pool on June 13, 1996, and the swimming pool, plumbing, and electric permits were issued on July 12, 1996. Challenger Pools worked on Mr. Jovellar's pool throughout the summer of 1996. The steel installation was approved on July 19, 1996, and the slab was approved September 12, 1996. The pool was plastered on September 28, 1996, and the pool was filled with water and operating on September 30, 1996. 3/ In a letter dated September 26, 1996, Mr. Jovellar's attorney notified Challenger Pools that the gate to Mr. Jovellar's fence had been damaged during the pool excavation and that Mr. Jovellar expected to be compensated for the damage. Challenger Pools advised Mr. Jovellar that the excavator, Tom Waters, was responsible for the damage and that he should look to Mr. Waters for compensation. Mr. Jovellar filed suit against Mr. Waters in small claims court, served Mr. Waters in early February 1997, and recovered approximately $450.00 in damages from Mr. Waters. Mr. Jovellar's pool did not pass the plumbing final inspection dated November 8, 1996, because the pool heater was not properly installed. Challenger Pools renewed the structural and plumbing permits on July 24, 1997. In a letter dated October 30, 1997, Mr. Jovellar's attorney notified Challenger Pools that, if it did not correct the defects in the swimming pool, suit would be filed against Challenger Pools. Challenger Pools responded in a letter dated November 6, 1997, that it was prepared to correct the problems with the pool. Challenger Pools further advised that, because the pool permits had expired, it would apply to renew the permits so that work could begin. Challenger Pools renewed the structural, plumbing, and electrical permits on January 19, 1998. Challenger Pools went back to work on Mr. Jovellar's pool in January 1998. The next inspections of Mr. Jovellar's pool took place between July 15, 1998, and January 6, 1999, the date on which the pool passed its final inspection. Notwithstanding the plumbing inspection conducted on November 8, 1996, and the permit renewal on July 24, 1997, Mr. Esquinaldo testified that, on the advice of its attorney, Challenger Pools ceased work on Mr. Jovellar's swimming pool in early October 1996, when it received the September 26, 1996, letter from Mr. Jovellar's attorney regarding the broken fence gate. On the basis of Mr. Esquinaldo's testimony, it is established that Challenger Pools ceased work on Mr. Jovellar's pool in early October 1996. The evidence also establishes that work recommenced in early 1998. Accordingly, Challenger Pools failed to work on Mr. Jovellar's pool for a period in excess of 90 consecutive days between October 1996 and January 1998. The evidence further establishes that Challenger Pools ceased work because Mr. Jovellar threatened a lawsuit to recover damages for repair of a fence damaged by the person who excavated the pool. Under the circumstances, the threatened lawsuit did not constitute just cause for Challenger Pools' failure to work on Mr. Jovellar's pool between October 1996 and January 1998 even though Challenger Pools stopped work on the advice of its attorney; Challenger Pools advised Mr. Jovellar to proceed against the excavator to recover for the damages to the fence, which Mr. Jovellar did in early 1997. The Department did not present evidence sufficient to establish that Challenger Pools failed to work on Mr. Jovellar's pool for 90 consecutive days subsequent to January 1998. As of October 6, 1999, the Department had expended $160.52 in investigative costs and $2,433.90 in prosecutorial costs with respect to Mr. Jovellar's complaint. DOAH Case No. 99-2654 - David Casadona On September 30, 1996, Challenger Pools entered into a Swimming Pool Construction Agreement with David Casadona for construction of a residential swimming pool at 14910 Southwest 70th Place, Davie, Florida. The full contract price was $9,000.00, and Mr. Casadona made the final payment on the pool in March 1997. Mr. Casadona was building a house at this address, and, a representative of Challenger Pools advised Mr. Casadona that construction on the swimming pool would begin after construction on the house was completed. Mr. Casadona moved into the new house on November 6, 1996, and Challenger Pools began excavating the pool approximately a week and a half later, in mid-November 1996. Challenger Pools submitted applications to the Town of Davie for the electrical, plumbing, and structural permits for Mr. Casadona's pool on November 19, 1996. The permits to construct the swimming pool were issued on January 2, 1997. Mr. Casadona contracted separately for installation of a fence around the pool, and, pursuant to the agreement between Mr. Casadona and Challenger Pools, Mr. Casadona was responsible for ensuring that the fence met local building codes. Challenger Pools was not licensed to install fences, and the installation of a fence was not included in any of Challenger Pools' swimming pool construction agreements. The permit for the fence was issued January 2, 1997. The Town of Davie conducted a special inspection of Mr. Casadona's property on December 18, 1996, before the permits were issued for construction of the pool, to determine whether a fence existed on the property and the height of the fence, if one existed. At that time, the inspector discovered that the pool had already been excavated and that the rebar was in place. The inspector also noted that part of the footer for the rear patio of the house had been undermined. A permit is required before a pool is excavated, but it is not unusual for a pool contractor to begin excavation before the permit is issued. An inspection of the plumbing pool main drain was conducted on January 3, 1997, and approved without comment. An inspection of the electrical pool grounding was conducted on January 3, 1997, and approved without comment. An inspection of the structural pool steel was conducted on January 6, 1997. The pool steel was approved with an exception. The inspector noted that an area under the existing structure had been undermined, and Challenger Pools was directed to pour the gunnite for the pool as soon as possible and to consult an engineer for directions on how to return the existing structure to its original specifications. The inspector further required that an engineer provide certification that the existing structure had proper support in the area in which it was undermined. The face of the footer under the structure was exposed, and the earth underneath the structure was undermined about three or four inches; the undermining did not threaten the integrity of the existing structure. An inspection of the plumbing pool piping was conducted on January 16, 1997, and approved without comment. An inspection of the electrical pool deck bonding was conducted on January 27, 1997, and disapproved with the comment that all metal within 5 feet of the water must be bonded. An inspection of the structural pool deck steel was conducted on January 27, 1997, and disapproved with the comment that the item was not ready for inspection because the form boards were not completed. The electrical pool deck bonding was inspected on February 3, 1997, and approved without comment. The structural pool deck steel was inspected on February 4, 1997, and approved without comment. Challenger Pools worked on Mr. Casadona's pool from November 1996 through March 1997, when Challenger Pools applied the plaster to the pool and filled the pool with water. Once the pool was filled, Mr. Casadona began using the pool. Because Mr. Casadona had not installed the fence when Challenger Pools plastered the pool and filled it with water, Challenger Pools created a temporary enclosure for the pool by surrounding the pool with an orange plastic barrier. A plumbing pool final inspection was conducted on April 15, 1997, and disapproved because no approved plans or permit cards were available on-site. An electrical pool final inspection was conducted on April 15, 1997, and disapproved with the comment that no approved plans or permit cards were available on the site. Between April 1997 and October 1997, Challenger Pools corrected the violations noted on the inspection reports and made several service calls to work on Mr. Casadona's pool. By October 1997, Mr. Casadona had installed the required fence, but the gate was not in compliance with the South Florida Building Code. Challenger Pools requested a replacement set of plans for Mr. Casadona's pool on October 3, 1997, and they were provided on October 7, 1997. A plumbing pool final inspection was conducted on October 8, 1997. The work was disapproved because the pool's main drain was missing one screw. On October 8, 1997, an electrical pool final inspection was conducted. The electrical work was disapproved with seven comments identifying violations of the National Electric Code, as follows: NEC 110-3B Listed and labeled (insulate unused lead) NEC 680-22(a)-(l) Bond all metal within 5' x 12' (must see bond at handrail) NEC 110-16(a) Working clearance at service and controller NEC 680-20-B-1 Must see potting compound (5) NEC 680-6(A)(2)+(3)+(1), Receptacle (B)-(1), Light (6) NEC 680-10 UG. wiring not permitted within 5' of pool (8) [sic] Speaker wire not approved Item (1) refers to insulating the unused leads on the pool light. Item (2) refers to the lack or apparent lack of bonding on a handrail installed in the pool deck. Item (3) refers to the requirement that there be sufficient working clearance in front of the pump controller, which is a time switch transformer; with respect to this item, a hedge had been planted in front of the pool pump and filter by someone other than Challenger Pools, the shrubs blocked access to the pump controller, and Mr. Casadona refused to move the shrubs. Item (4) refers to the requirement that potting compound be used in the wet light niche in the pool to prevent the chemicals in the water from corroding the ground bonding connection; with respect to this item, Richard Boyette, a licensed professional engineer, certified in a letter to the Town of Davie dated April 3, 1998, that potting compound had been properly placed in the lighting niches in the pool. Item (6) refers to wiring being installed within 5 feet of the pool. Item "(8)" refers to speaker wires that are not allowed in the pool area. With respect to items (6) and "(8)", the violations were not the responsibility of Challenger Pools because they related to wiring for Malibu lights and two speakers installed by someone other than Challenger Pools. A structural pool deck final inspection was conducted on October 8, 1997, and approved without comment. A structural pool steel inspection was conducted on October 8, 1997, and disapproved with the comment that the pool had been completed without a pool steel inspection. In a letter dated April 3, 1998, Richard Boyette, a licensed professional engineer, certified to the Town of Davie that the pool steel had been properly placed according to the permit plans. A structural fence final inspection was conducted on October 8, 1997, and disapproved with the comment that "all fences and gates must be 5' high for yards with pools." The fence contractor was identified in the inspection report as Cercas Isla - Island Fence. Challenger Pools did not call for any inspections on Mr. Casadona's pool after it corrected the deficiencies noted in the October 1997 inspection reports until January 1999 because Mr. Casadona did not correct the violations for which he was responsible, that is, the fence gate height, the shrubs in front of the pool pump, and the electrical wires for the Malibu lights and speakers. Mr. Casadona was aware of these violations as a result of the October 8, 1997, inspection reports. Mr. Casadona and Challenger Pools' personnel were in regular contact during the October 1997 to January 1999 hiatus. Challenger Pools repeatedly asked Mr. Casadona to correct the fence gate height so that a structural pool final inspection could be approved and to remedy the electrical violations for which he was responsible. Challenger Pools let the situation remain unresolved because, on the basis of conversations Challenger Pools' personnel had with Mr. Casadona, there was no reason to believe that Mr. Casadona would not cooperate and correct the deficiencies. As of January 1999, Mr. Casadona had not made the required corrections. He did, however, file a complaint with the Department. At that time, Challenger Pools' attorney advised the company to finish Mr. Casadona's pool and close out the permit. Based on this advice, Challenger Pools renewed the permits and called for the final inspections. A plumbing pool final inspection was conducted on January 25, 1999, and approved without comment. A structural fence final inspection was conducted on January 25, 1999, and disapproved with the comment that "[t]here is no reference to a fence anywhere in the pool plans. The front gate is not self closing, self latching and is about 6" from being the 5' heighth [sic] requirement." An electrical pool final inspection was conducted on March 9, 1999, and disapproved with the comment that "working clearance violated at pump controller." The electrical final inspection was disapproved because Mr. Casadona would not remove the shrubs he had planted in front of the pool pump. An electrical pool final inspection was conducted on March 22, 1999, and approved, but the inspection report contained the comment that "working clearance violated at pump controller." A structural pool deck final was conducted on March 24, 1999, and approved with a comment that it had already been approved by another inspector. A structural fence final inspection was conducted on March 24, 1999, and disapproved with the comment that the fence was "not ready[;] the gate and latch are not 5' high." A structural fence final inspection was conducted on March 26, 1999, and rejected because the gate was not 5 feet high and was not self-closing and self-latching, as required by ordinance. The inspector also noted that no plan or permit for the fence was posted on the property and that no one was at home at the time of the inspection. A structural pool steel inspection was conducted on March 31, 1999, and disapproved because no one was at home and neither the plans nor the permit cards were posted. The inspector noted, however, that the pool was completed. In a letter to the Town of Davie dated February 18, 1999, and received by the Town of Davie on April 12, 1999, Mr. Boyette stated that the "steel and main drain inspection was bypassed due to a lack of communication on the above referenced pool. However, steel and main drain were in per code." An electrical pool final inspection was conducted on April 14, 1999, and disapproved with the comments "disconnect required for pump motor ahead of controller" and "unused transformer tap to be insulated at connection end." These were two items that the electrical inspector did not catch during the March 22, 1999, inspection. A structural pool final inspection was conducted on April 19, 1999, and was approved with the comments that the engineer's letter should be consulted regarding the missed pool steel inspection. A note was made in the report of the structural pool final inspection conducted on April 19, 1999, stating "Fence Final" with the comment that the fence and wall and existing front gate were 5 feet high and self-closing and self-latching. The permit for Mr. Casadona's pool was closed out by the Town of Davie Building Division on April 19, 1999, when the structural pool final inspection was approved. After the inspections conducted in October 1997, Challenger Pools corrected the violations noted in the inspection reports for which it was responsible. Challenger Pools did not do any work on Mr. Casadona's pool after it corrected the violations noted in the October 1997 inspection reports because it considered its work on the pool complete. The violations noted in the inspection reports for Mr. Casadona's pool were not unusual for the industry and were relatively minor. Challenger Pools corrected all of the violations and deficiencies noted in the inspection reports for Mr. Casadona's pool. The evidence presented by the Department is not sufficient to establish with the requisite degree of certainty that Challenger Pools failed to work on Mr. Casadona's pool for 90 consecutive days during the period from March 1997 until October 1997. However, the evidence presented is sufficient to establish with the requisite degree of certainty that Challenger Pools failed to work on Mr. Casadona's pool for 90 consecutive days during the period from October 1997 until January 1999. Challenger Pools could have done more to encourage Mr. Casadona to correct the height of his fence gate, remove the shrubs from around the pump controller, and remove the prohibited electrical wiring around the pool. Nonetheless, Challenger Pools had just cause to cease work on Mr. Casadona's pool because Challenger Pools could have reasonably concluded that its work on the pool was completed and that the only things remaining to be corrected were items for which Mr. Casadona was responsible. All of the violations noted on the inspection reports from January 1999 through April 1999 were the responsibility of Mr. Casadona with the exception of two minor code violations noted in the electrical pool final inspection conducted April 14, 1999, which violations were corrected by Challenger Pools prior to April 19, 1999. The evidence presented by the Department is not sufficient to establish with the requisite degree of certainty that the work Challenger Pools did on Mr. Casadona's pool was below industry standards. 4/ The evidence presented by the Department is sufficient to establish with the requisite degree of certainty that Challenger Pools commenced construction on Mr. Casadona's pool before the Town of Davie issued a building permit. The evidence presented by the Department is not sufficient, however, to establish with the requisite degree of certainty that Challenger Pools worked on Mr. Casadona's pool without having obtained the proper inspections. The inspection history establishes that, notwithstanding the notations on subsequent inspection reports, both the pool main drain and the pool steel were approved on January 3, 1997, and January 6, 1997, respectively. In addition, Challenger Pools called for final inspections of the plumbing, electric, and structural components of the pool on October 8, 1997, and again in January 1999, and closed out the permit on April 19, 1999. DOAH Case No. 99-2655 - Jameel Quadri On August 15, 1995, Challenger Pools entered into a Swimming Pool Construction Agreement with Jameel Quadri for construction of a residential swimming pool and spa at 239 Landings Boulevard, Fort Lauderdale, Florida. The full contract price was $12,240.00. Mr. Quadri was building a house on the property, and the agreement between Challenger Pools and Mr. Quadri provided that construction of the pool would not start until construction on the new house was completed. On October 3, 1996, Challenger Pools and Mr. Quadri entered into a contract addendum to the agreement that provided for the addition of brick pavers, a screen enclosure, and electrical work for the screen enclosure. The price of the additional items was $7,860.00. Mr. Quadri made the final payment on the pool agreement and addendum in April 1997. The applications for the building, screen enclosure, plumbing, and electrical permits for Mr. Quadri's swimming pool and spa were received by the Broward County Building and Permitting Department on October 15, 1996, and the permits were issued on October 29, 1996. The building, screen enclosure, and plumbing permits were issued to Challenger Pools as the contractor; and the electrical permit was issued to Specialty Device Installers. Even so, Challenger Pools remained responsible for the electrical work on the pool because it was included in the agreement. The permits were based on the plans for construction submitted with the permit applications, including the plans for the spa and the pool deck. Challenger Pools began construction on Mr. Quadri's pool on October 25, 1996, when the pool was excavated. A plumbing pool and spa main drain inspection was conducted on October 31, 1996, and was disapproved because the work was not ready for inspection and no safety railing had been installed around the excavation. An electrical pool grounding inspection was conducted on October 31, 1996, and disapproved for several reasons. A structural pool steel inspection was conducted on October 31, 1996, and disapproved for several reasons. The plumbing pool main drain was inspected on November 15, 1996, and disapproved because no Notice of Commencement had been recorded and because the safety fence was not completely around the pool. The electrical pool grounding was inspected and approved on November 15, 1996. The structural pool steel was inspected on November 15, 1996, and disapproved because of unsafe conditions, with the comment that safeguards were required. The plumbing pool and spa main drains were inspected on November 20 1996, and disapproved because the pool and spa main drains had only 38 and 33 pounds of pressure, respectively, when the code requires 40 pounds. The plumbing pool and spa main drains were inspected and approved on November 26, 1996. The structural pool steel was inspected on November 26, 1996, and approved. A plumbing pool piping inspection was conducted on December 9, 1996, and disapproved because the piping was not properly bedded, the dirt on the job site was not proper clean fill, and the piping was "within the angle of repose." The plumbing pool piping was inspected on December 20, 1996, and disapproved because the piping was not properly bedded. The plumbing pool piping was inspected and approved on December 24, 1996. An electrical pool deck grounding inspection was conducted on February 20, 1997, and disapproved for several reasons. A structural pool deck inspection was conducted on February 20, 1997, and disapproved for several reasons. The electrical pool deck grounding was inspected and approved on February 28, 1997. The structural pool deck was inspected and approved on February 28, 1997. Challenger Pools worked steadily on the pool until it was plastered on April 21, 1997, and filled with water. In April and May 1997, Challenger Pools received several telephone calls from Mr. Quadri regarding problems with his pool. In May 1997, Mr. Quadri called an attorney and asked that the attorney write a letter to Challenger Pools regarding what Mr. Quadri perceived were problems with the pool construction. In a letter dated May 22, 1997, Mr. Quadri's attorney identified the problems as follows: The deck area is not level, causing the pavers to break. The vacuum system has never been delivered or installed. The underwater pool light is dangling from its fixture and has exposed wires sitting in the water. The spa and jets do not work. The waterfall does not work. There are open and exposed wires at the pump. One of your trucks damaged the right side corner of Mr. Quadri's house and that condition has not been repaired. The ceramic underwater handles on the exterior of the spa are the wrong color. Mr. Quadri was promised white handles and you installed grey ones. The "exposed wires" mentioned in reference to the pool light were designed to be submerged in water, and the "exposed wires" at the pump were bonding wires running from the timer to the pump. Mr. Quadri's attorney notified Challenger Pools in the May 22, 1997, letter that, unless the defects identified in the letter were corrected within ten days of the date of the letter, Mr. Quadri would file suit against Challenger Pools for breach of contract. Challenger Pools did not respond to the letter of May 22, 1997, and no one from Challenger Pools came to the property to work on the pool and spa in response to that letter. In accordance with company policy, Challenger Pools ceased working on Mr. Quadri's pool and spa when it received the May 22, 1997, letter from Mr. Quadri's attorney threatening a lawsuit. In a letter dated August 14, 1997, Mr. Quadri's attorney sent Challenger Pools a letter demanding treble damages for theft arising out of the failure of Challenger Pools to complete Mr. Quadri's pool and spa after having been paid in full. In August 1997, at the request of Challenger Pools' attorney, Challenger Pools' vice president, Tom Camburn, and Challenger Pools' Fort Lauderdale field supervisor visited Mr. Quadri's property to view the pool and spa. Mr. Camburn and the field supervisor were in the vicinity of Mr. Quadri's pool for only 10 to 15 seconds before Mr. Quadri came out of the house and told them to leave the property, asserting that he was going to sue Challenger Pools. During those few seconds, Mr. Camburn observed that there was water in the pool and that some of the pavers forming the pool deck were sunken. He did not measure the pool and spa to determine if they were larger than represented in the original plans, although he did note that the pool and deck were larger than Challenger Pools usually builds. Challenger Pools' attorney responded to the August 14, 1997, letter with a letter dated August 20, 1997, advising Mr. Quadri's attorney of the outcome of the visit to Mr. Quadri's property and advising him that Challenger Pools would not go back to Mr. Quadri's property to inspect and repair any legitimate warranty complaints unless Mr. Quadri paid Challenger Pools a reasonable amount for the larger pool and spa. Challenger Pools based its contention that Mr. Quadri received a larger pool and spa than that specified in his contract on the fact that the invoice received for the pavers used in the pool deck was much higher than expected and showed that many more pavers were delivered to Mr. Quadri's property than were included in the original plans for Mr. Quadri's pool deck. The pavers were added to the contract in the addendum executed October 3, 1996, but neither the size of the deck nor the number of pavers was shown in the contract or in the addendum. 5/ In addition, no Change of Plans form was filed with the Broward County Building and Permitting Department indicating that there were any deviations from the original construction plans in the construction of Mr. Quadri's pool and spa, and no deviations from the original construction plans were noted by any of the building inspectors who conducted inspections of Mr. Quadri's pool and spa. In a notice dated August 27, 1997, Mr. Quadri was advised by the Broward County Building and Permitting Department that the permit for his pool and spa had expired. These notices are routinely sent by the Broward County Building and Permitting Department to both the property owner and the contractor when 150 days have elapsed without an inspection having been requested. The notice advises the property owner and the contractor that the permit will expire 30 days from the date of the notice. Challenger Pools did not receive a copy of the notice. Mr. Quadri renewed the permits on September 12, 1997, to avoid the penalties set forth in the notice; Challenger Pools continued to be named as contractor on the permits. A plumbing pool final inspection was conducted on September 15, 1997, and disapproved, with the comments that the main drain grid required two screws; 6/ the spa water level was low, possibly because of a leak; and the pavers were sinking around the spa. An electrical pool final inspection was conducted on September 15, 1997, which was disapproved, with comments that the pool screen was not bonded; the pool light was not in place; a bonding wire on the pool pump needed to be covered; and "[s]ealtite to pump motor in grass," meaning that the flexible electric conduit running from the timer/transformer subpanel to the pool pump was lying in the grass. No unsafe conditions were noted on the inspection report. A structural pool final inspection was conducted on September 15, 1997, and rejected, with the comments that there had been no final approval of the pool plumbing and electrical; that the paver deck was washed out in numerous places and needed to be repaired; that the riser at the rear steps was not to code; that the handholds were missing; and that the exterior wall of the raised spa needed finishing. Challenger Pools had installed ceramic underwater handholds on the pool, but Mr. Quadri was not satisfied with them because they were gray in color rather than white, the color he had selected. Challenger Pools did not remove the handholds. Neither Mr. Quadri nor Challenger Pools called for the inspections of Mr. Quadri's pool conducted on September 15, 1997. Rather, those inspections were apparently triggered by the renewal of the permits. Mr. Quadri did not file suit against Challenger Pools, but, by letter dated December 12, 1997, Mr. Quadri notified the Department that Challenger Pools had abandoned construction on his pool and spa and that the pool and spa still had numerous defects. After Challenger Pools received notice of the complaint filed by Mr. Quadri with the Department, Challenger Pools was advised by its attorney to obtain final inspections on Mr. Quadri's pool. An electrical pool final inspection was conducted on March 17, 1998, and disapproved because the screen enclosure needed to be bonded on both sides of the column. An electrical pool final inspection was conducted on March 27, 1998, and approved. A plumbing pool final inspection was conducted on October 9, 1998, and disapproved because the building permit had expired, the equipment was defective in that there was a cracked filter, and the equipment needed to be anchored. 7/ A structural pool final inspection was conducted on October 9, 1998, and disapproved because the permit had expired, and because of damaged sidewalks, no handholds, and a problem with a stairway. A plumbing pool final inspection was conducted on November 6, 1998, and disapproved because the permit card was not displayed on the site. Challenger Pools renewed the permits for Mr. Quadri's pool on November 16, 1998. A structural pool final inspection was conducted on November 20, 1998, and disapproved because the permit card was not at the site. A structural pool final inspection was conducted on November 30, 1998, and disapproved because of "previous inspections" and because the marcite was coming off and stucco was needed around the steps. A structural pool final inspection was conducted on December 3, 1998, and approved. A plumbing pool final inspection was conducted and approved on December 7, 1998. The Certificate of Occupancy for Mr. Quadri's swimming pool and spa was issued by the Broward County Building and Permitting Department on December 8, 1998. At the time of the final hearing, the pavers around Mr. Quadri's pool were uneven and sinking. Pavers are used for pool decks instead of concrete because concrete cracks as the earth beneath the deck settles. They are set on sand and are not grouted but, rather, are locked in with fine sand. It is not uncommon for paver decks to settle because strong rains can wash out the sand under the deck and cause erosion. As a result, pavers will sink or lift as the earth underneath shifts. The degree to which a paver deck shifts varies. Pressure washing a paver deck can cause the sand beneath the pavers to erode and shift, which causes the pavers to sink and lift. Mr. Quadri has cleaned the pavers around his pool and spa with a pressure cleaner at least every six months since it was installed. The evidence presented by the Department is sufficient to establish that Challenger Pools did not work on Mr. Quadri's pool between the end of April 1997 and March 1998 and between the end of March 1998 and October 1998. Challenger Pools may have been justified when it ceased work on Mr. Quadri's pool after the May 22, 1997, letter from Mr. Quadri's attorney threatening a lawsuit if the enumerated defects with the pool were not corrected. It was not justified, however, in failing to perform work on Mr. Quadri's pool after August 20, 1997; the evidence presented by Challenger Pool to justify the statement in the August 20, 1997, letter that it would not correct the problems with Mr. Quadri's pool until Mr. Quadri paid a "reasonable amount for the larger pool and spa he received" is not sufficient to establish that the pool and spa was, indeed, larger than the one for which Mr. Quadri contracted. In addition, Challenger Pools was not justified in failing to perform work on Mr. Quadri's pool between March 27, 1998, when the electrical pool final inspection was approved, and October 1998, because its attorney, in response to the December 1997 complaint to the Department, advised it to obtain final inspections and close out the permit. Accordingly, the evidence presented is sufficient to establish with the requisite degree of certainty that Challenger Pools failed to perform work on Mr. Quadri's pool for a period of 90 consecutive days without just cause. The evidence presented by the Department is not sufficient to establish with the requisite degree of certainty that the work Challenger Pools did on Mr. Quadri's pool was below minimum industry standards. 8/ The evidence presented by the Department is sufficient to establish with the requisite degree of certainty that Challenger Pools began excavating Mr. Quadri's pool after it applied for the necessary permits but before they were issued. The Department presented no evidence to establish that Challenger Pools proceeded with work on Mr. Quadri's pool without receiving the required inspections. In addition, Challenger Pools called for final inspections of the plumbing, electric, and structural components of the pool and closed out the permit on April 19, 1999. As of October 6, 1999, the Department had expended $1,088.47 in investigative costs and $1,307.47 in prosecutorial costs with respect to Mr. Quadri's complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED the Construction Industry Licensing Board enter a final order: Finding that Challenger Pools violated Section 489.129(1)(k), Florida Statutes (1997), in DOAH Case No. 98-3713 and DOAH Case No. 99-2655; Dismissing Count II of the Administrative Complaint in DOAH Case No. 98-3713; Dismissing the Administrative Complaint in DOAH Case No. 99-2654; Dismissing Counts II and III of the Administrative Complaint in DOAH Case No. 99-2655; and Imposing the following penalties on Bruce E. Esquinaldo, Jr., as qualifier of Challenger Pools: Assessing an administrative fine in the amount of $2,500.00 in DOAH Case No. 98-3713 and in DOAH Case No. 99-2655 for the violations of Section 489.129(1)(k), Florida Statutes (1997), for a total administrative fine of $5,000.00; Placing Mr. Esquinaldo's license on probation for a period of one year, subject to such terms and conditions as the Board may impose; and Assessing the costs of investigation and prosecution attributable to the violations of Section 489.129(1)(k), Florida Statutes (1997), in DOAH Case No. 98-3713 and DOAH Case No. 99- 2655. DONE AND ENTERED this 27th day of June, 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 27th day of June, 2000.
The Issue The issues are: (1) Whether the pool at issue is a special purpose pool, and (2) Whether Petitioner is entitled to a variance to use recessed automatic surface skimmers in the pool at issue.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a Final Order denying the variance request of Tamtech Pool Builders and denying special purpose pool status for the pool built by Tamtech Pool Builders. DONE AND ENTERED this 10th day of February, 1988 in Tallahassee, Leon County, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1988. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 87-4443 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Tamtech Pool Builders Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 6(49) and 9(39). Proposed findings of fact 1, 4, and 7 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 2, 5, and 12 are rejected as being unsupported by the competent, substantial evidence. Proposed findings of fact 3, 10, and 11 are rejected as being irrelevant. Proposed finding of fact 8 is rejected as being irrelevant because this action is not a rule challenge proceeding. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Health and Rehabilitative Services Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-3(1-3); 5-7(4-6); 9-11(7-9); 12(9); 13(10); 14-34 (10-30); 36-43(31-38); 46-53(40-47); and 56-58(50-52). Proposed findings of fact 4, 8, 44, 45, and 55 are rejected as being irrelevant or unnecessary. 3 . Proposed finding of fact 54 is rejected as being unsupported by the competent, substantial evidence. 4. Proposed finding of fact 35 is subordinate to the facts actually found in this Recommended Order. COPIES FURNISHED: Margaret Smithson HRS District I Legal Counsel 160 Governmental Center P. O. Box 12836 Pensacola Florida 32576 Mark E. Walker Attorney-At-Law 723 N. Eglin Pkwy., Suite 2 Ft. Walton Beach, Florida 3254 Gregory Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue 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 Whether the state certified pool construction license number CP C008904 and the state certified general contractor's license number CG C002481 of Joaquin Vazquez should be revoked.
Findings Of Fact Division A of the Construction Trade Qualifying Board held a hearing on September 15, 1976, pertaining to ten (10) charges of violating the Dade County building code against Respondent Joaquin Vazquez. At the completion of this formal hearing, Joaquin Vazquez was found guilty of eight (8) of the ten (10) charges. Charles W. Leavitt, Jr., Clerk of the Construction Trades Qualifying Board In Metropolitan Dade County, Florida, identified the minutes of the Board Meeting held on September 15, together with the charges as set forth in letters dated May 10, 1976, and August 19, 1976. Copies of these instruments were introduced into evidence without objection. The Respondent did not deny the charges at the hearing and had not appealed the finding of guilt of eight (8) of the ten (10) charges at the conclusion of the formal hearing on September 15, 1976. Briefly the charges (spanning the term from July 1, 1975 to June 29, 1976), finds and penalties are as follows: Charge 1.: Allowing permit to be applied for and taken out in Respondent's name in order for Angela J. Stevens and/or Sparkle Blue Pools to construct a swimming pool. Found guilty - letter of reprimand. Charge 3.: Similar to Charge 1 - found guilty - certificate to be suspended for one (1) year. Charge 4.: Failure to supervise, direct and control, the construction or installation of a swimming pool taken out in Respondent's name. Found guilty - one (1) year suspension to run concurrent with any other suspensions. Charge 5.: Similar to Charge 1 - found guilty - ninety (90) day concurrent suspension. Charge 6.: Similar to Charge 4 - found guilty - ninety (90) day suspension. Charge 7.: Similar to Charge 1 - found guilty - revo- cation of certificates. Charge 8.: Similar to Charge 4 - found guilty - both certificates be revoked. Charge 10.: Allowing a permit to be applied for and taken out in Respondent's name in order for Jack Goodman and/or Precision Engineering, Inc., to construct a swimming pool. Found guilty - letter of reprimand. An Administrative Complaint was filed by the Petitioner through its executive director on November 12, 1976, citing the hearing and the charges and the finding of guilt of Respondent and stating that the results of said formal hearing show a violation of Florida Statute 468.112(2)(a), willful or deliberate disregard and violation of applicable building codes or laws of the state or any municipality, cities or counties thereof. Therefore, the Board seeks to revoke the state certified pool contractors license number CP C008904 and state certified general contractors license number CG C002481 of Joaquin Vazquez, the Respondent. The Respondent did not deny the charges but presented an attack on the character and veracity of the witness, Angela Stevens, in four (4) of the charges against him. He cited the witness Angela Stevens' failure to abide by probationary requirements imposed for her acting as a contractor without a license. Furthermore, the Respondent offered his own and a witness, Mr. Gonzalez's, testimony to the fact that he was solicitated by Angela Stevens to make false testimony to the effect that Angela Stevens was an employee of his when in fact she had never been. The charges against the Respondent were brought subsequent to the charges brought against the witness Angela Stevens. The Respondent contends that the affidavits and testimony of Angela Stevens were no more than self serving statements made in her own behalf in an attempt to cover up her criminal intentions and that the charges and finding of guilt of the Respondent were based largely on the affidavit and testimony of said witness. Respondent further offered a medical report indicating that he was unable to work in the month of May, 1975, and further his testimony was that he was out of the country in mid June and July, 1975, in order to recuperate from high blood pressure attacks. Petitioner contends: the undisputed evidence presented in the finding of guilt of the charges involved in the prior hearing are sufficient to find Respondent guilty of violating Section 468.112(2)(a), Florida Statutes, and that Respondent's license should be revoked. Respondent contends: the witness against him was self serving and an attempt to cover up her criminal intentions; that he in fact supervised some of the jobs he was found guilty of not supervising; that he was ill some of the time and did not willfully violate the code. The proposed facts and conclusions of the parties submitted after the hearing herein have been considered in this Recommended Order.
Recommendation Suspend the licenses, No. CP C008904 and No. CG C002481, of the Respondent Joaquin Vazquez for a period not to exceed six (6) months. DONE and ORDERED this 31st day of May, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: David Linn, Esquire Post Office Box 1386 Tallahassee, Florida 32302 Jerome S. Reisman, Esquire 1515 Northwest 7th Street, #106 Miami Florida 33125 J. K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211
The Issue Whether Respondent practiced beyond the scope of his certified commercial pool/spa contractor’s license and proceeded on a job without obtaining applicable local building department permits and inspections, as alleged in the Amended Administrative Complaint and, if so, the nature of the sanctions to be imposed.
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of the construction industry, including pool and spa contractors and electrical contractors, pursuant to section 20.165 and chapters 455 and 489, Florida Statutes. At all times material to the allegations in the Administrative Complaint, Respondent was licensed as a commercial pool/spa contractor in the State of Florida, having been issued license numbers CPC 05661, 1457406, and 1458031. Respondent was the primary qualifying agent of Cox Building Corporation, d/b/a Cox Pools (Cox Pools). Respondent has been registered, certified, or licensed as a swimming pool contractor since 1978. Over the course of his almost 40 years as a swimming pool contractor, Respondent has replaced thousands of pool lights and pool pumps. He believed that the replacement of pool equipment, which he understood to include pool lights, was within the allowable scope of work as a swimming pool contractor. On or about September 12, 2014, Cox Pools entered into a contract with John Patronis to replace four pool light fixtures, a booster pump, and other miscellaneous services for $4,681.17 at the Subject Property. The Subject Property falls within the jurisdiction of the Bay County Building Department. Respondent did not obtain an electrical permit for replacing the pool light fixtures at Subject Property. Mr. Carnley testified that the Bay County Building Department requires that pool light replacement be performed by a licensed electrician, and with a county-issued electrical permit. The permit must be obtained by an electrical contractor or a homeowner. Bay County would not have issued a permit to Respondent, because he was not an electrical contractor. The Bay County Building Department also requires an electrical permit for the replacement of a circuit breaker in the electrical box serving a swimming pool. A pool contractor is not authorized to replace circuit breakers. No permits were obtained to replace circuit breakers at the Subject Property. On September 15, 2014, during the course of replacing the pool light fixtures, an employee of Cox Pools, Joshua Cook, was electrocuted. The precise cause of the electrocution was not established, though no plausible basis exists for it being related to anything other than the replacement of the pool lights. After a period of several days following the accident involving Mr. Cook, Respondent returned to the Subject Property to complete the job. He personally went into the pool, put the light in the fixture and screwed it in, and left. The light was thereafter wired and energized by a Cox Pool service technician. Given the circumstances, Mr. Patronis was not asked to complete payment for the services performed. Nonetheless, it is clear that, but for the accident, Mr. Patronis would have been expected to pay for the services for which he contracted. The photographic evidence in this case demonstrates that between September 15, 2014, and some indeterminate time in 2016, a circuit breaker was replaced in the electrical box serving the Subject Property’s pool. The circuit breaker that existed on September 15, 2014, was a ground-fault circuit interrupter (GFCI). By 2016, the GFCI has been replaced with an arc-fault circuit interrupter (AFCI). Had Bay County performed an inspection of the electrical box with the AFCI, it would not have passed inspection. Respondent testified that he did not change the circuit breaker, that Cox Pools keeps no inventory of circuit breakers, and that service technicians do not carry circuit breakers on the trucks. Respondent acknowledged his understanding that replacing a circuit breaker is a job for an electrical contractor. At some time “recently,” Williams Electric was called to the Subject Property, at which time Mr. Williams “swapped out a breaker or two that was an incorrect type of breaker for the application.” Mr. Patronis was not clear whether an arc breaker was replaced with a ground breaker, or vice versa. Pool lights are sealed units. The light and its power cord come as a single unit. To replace a pool light, the main circuit breaker at the swimming pool sub-panel is turned off. The wires to the existing light are disconnected (unscrewed) from the circuit breaker. A lead is tied to the end of the wire. The light fixture is removed from the pool opening, and the wire is pulled through the existing conduit from the pool side. When the old fixture and wiring unit has been removed, the lead is removed from the end of the old unit’s wire, tied to the wiring of the new light, and drawn back through the conduit to the circuit breaker box. The new light is screwed into the fixture, and then energized by connecting the wires back into the existing circuit breaker. The point of connection of the light to the circuit breaker is the “load side” of the circuit. The experts who testified in this proceeding were all competent and qualified in their fields, and had served in leadership positions with the CILB (Mr. Weller, Mr. Del Vecchio, and Mr. Lenois), the Electrical Contracting Licensing Board (Mr. Tibbs), or the Florida Swimming Pool Association (Mr. Garner and Mr. Pruette). However, despite the relative simplicity of the statutes at issue, their opinions as to the allowable scope of work under a swimming pool contractor license were at odds. Respondent acknowledged, and the evidence in this case establishes, that electrical work associated with new pool construction is a task that is within the scope of work of an electrical contractor. Initial construction involves substantial work in bringing power from the main residential panel to the new pool panel, installing a junction box and circuit breakers, installing the wiring, and performing other electrical work of significantly greater complexity than that involved in the installation of equipment into a pre-constructed electrical system, which involves only the disconnect and reconnect of wires to the load side of a circuit breaker. As discussed by Mr. Lenois, a pool contractor can contract for the entire pool, but cannot self-perform the electrical components pursuant to section 489.113. As to the replacement of existing equipment, Petitioner’s experts testified that pool light fixtures differ from other pool-related equipment, e.g., pool pumps, in that the light fixtures have direct contact with the water, whereas other components do not. Lights are changed out in a submerged condition, which makes them extremely dangerous. As stated by Mr. Weller, “the whole area of electricity around pools gets complicated, between the bonding, the grounding, and all the other stuff.” It was Mr. Weller’s opinion that, although pool contractors can contract for pool light replacement, they cannot self-perform the work. Rather, the electrical work involved in replacing pool light fixtures should be subcontracted to an electrical contractor because “you can make mistakes in plumbing, and you can make mistakes in other areas, but with electricity, it's pretty non-forgiving, especially if you're around water.” Mr. Lenois distinguished pool lights, which he characterized as accessories since all pools do not have them, from pool equipment, which includes pumps and filters, heaters, specialty filters, and salt generators, which are mounted at the pump and filter area. Respondent’s experts were uniform in their opinions that the act of disconnecting and reconnecting pool lights, as well as other pool equipment, at the load side of a breaker does not constitute electrical contracting. Mr. Pruette testified that disconnecting and connecting a pool light at a circuit breaker is not a difficult or complex task, and can be easily performed with a little training. Mr. Del Vecchio testified that the disconnection and connection of pool lights at the circuit breaker is no different than that performed by a plumber in replacing a hot water heater, or an air-conditioning contractor in replacing a piece of air-conditioning equipment. Almost all of the experts either replaced pool lights as part of their routine scope of work or knew of pool contractors who did so, a practice that appears to be commonplace. Furthermore, several of the witnesses worked in areas of the state in which county building officials did not require permits, electrical or otherwise, for the replacement of pool lights, though the evidence in that regard was generally hearsay. Mr. Lenois, who testified on Petitioner’s behalf, stated his opinion that reasonable people could differ as to the meaning of the statutory language placing the “installation, repair, or replacement of existing equipment” within the scope of work of a pool/spa contractor. The issue of the extent to which electrical work is subsumed within the statutory scope of work of a pool/spa contractor of “installation, repair, or replacement of existing equipment” has been the topic of considerable discussion in the industry. In that regard, the Florida Pool and Spa Association has filed a Petition to Initiate Rulemaking with the CILB seeking, among other things, to “clarify[] the scope of a certified pool contractor’s license to include the installation, repair, and replacement of pool equipment, up to and including the electrical connection on the demand side of the power source.” There was no evidence as to the disposition of the petition. Respondent argued that Florida Administrative Code Rule 61G4-16.001(9), which establishes that five percent of the written certification exam for commercial pool/spa contractors is to cover “electrical work,” is evidence that electrical work is within the scope of work for a pool contractor. Electrical work associated with pool construction includes grounding for the pool shell itself. Thus, a degree of knowledge of basic electrical work and codes would be warranted, regardless of whether equipment electrical connections are within the scope of work for a pool/spa contractor. The parties introduced a series of DBPR-approved course outlines and instructor applications for a three-hour class, sponsored by the Florida Pool and Spa Association, entitled “Basic Electricity and the NEC [National Electric Code] for Swimming Pools,” and a one-hour class, sponsored by the Florida Pool and Spa Association, entitled “Basic Electrical Requirements for Pools.” The course outline prepared by the Florida Pool and Spa Association for each of the approved courses provides, in bold font, that: Instructor is aware that electrical work does not fall within the scope of work of licensed pool/spa contractors. No instruction on how to perform electrical work will take place. Course will provide much needed understanding of the basics of electricity as well as those aspects of the NEC as they pertain to pools and spas. Instructor will also emphasize the importance of using a licensed electrical contractor to perform required work.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Construction Industry Licensing Board enter a final order finding that Respondent violated section 489.129(1)(o), Florida Statutes, as alleged in Count One; and sections 455.227(1)(o) and 489.129(1)(c), Florida Statutes, as alleged in Count Two, but only as that count pertains to the replacement of pool lights. It is further recommended that: Respondent be subject to a fine of $1,000 for a first violation of section 489.129(1)(o); Respondent be subject to a fine of $4,000, and that Respondent’s commercial pool/spa contractor licenses be subject to a period of probation for two years for a first violation of section 455.227(1)(o) and section 489.129(1)(c); and Respondent be required to complete an approved, live seven-hour continuing education course, in addition to any otherwise required continuing education, with an emphasis on chapter 489 and the rules enacted pursuant thereto. DONE AND ENTERED this 5th day of October, 2016, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 2016.
The Issue Whether the claimants herein are entitled to payment from the Construction Industries Recovery Fund and, if so, the amount of the payment to which each claimant is entitled. Whether the license of the Petitioner is subject to automatic suspension pursuant to Section 489.143(7), Florida Statutes (Supp. 1998).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Fund is established by Section 489.140, Florida Statutes, for the purpose of reimbursing those persons who meet the eligibility requirements set forth in Section 489.141, Florida Statutes. The Board is the entity responsible for reviewing applications for payment from the Fund and entering orders approving or disapproving the applications. Sections 489.140(1) and 489.143(1), Florida Statutes. Mr. Kiselius is a licensed residential pool/spa contractor, having been first issued such a license in 1984. Mr. Kiselius's license is currently on inactive status, but at the times material to this action, Mr. Kiselius's license was active. Pool Masters was a Florida corporation incorporated on August 10, 1995. Frederick H. Martin and Abraham Zafrani were the sole shareholders of the corporation, and Mr. Martin was the President and Secretary of the corporation, and Mr. Zafrani was the Vice-President and Treasurer. From on or about October 24, 1995, until November 14, 1997, Mr. Kiselius was the qualifying agent for Pool Masters. The record does not reflect the date on which Pool Masters was issued its certificate of authority allowing it to engage in contracting as a business organization, but it was assigned Qualified Business Organization License Number QB0002327 on or about November 6, 1996. Pool Masters filed for bankruptcy pursuant to Chapter 7 of the United States Bankruptcy Code on January 1, 1998, and the corporation was administratively dissolved on October 16, 1998. DOAH Case No. 99-1665: Santibanez and Pappas Eugene Santibanez and Alexander Pappas entered into a contract with Pool Masters for construction of a swimming pool. The contract was executed on or about March 25, 1997. The total price stated in the contract was $21,000.00; a change order was executed on November 4, 1997, for an additional price of $2,890.00. Pool Masters represented to Mr. Santibanez and Mr. Pappas that it was a licensed swimming pool contractor. Pool Masters began work on the pool on or about May 17, 1997. Mr. Santibanez and Mr. Pappas made payments to Pool Masters pursuant to the contract, and Pool Masters excavated the hole for the pool, put in the foundation, and poured the concrete. Pool Masters ceased work on the swimming pool in late November 1997, after the concrete was poured. A week later, Mr. Santibanez heard that Pool Masters had declared bankruptcy. At the time Pool Masters ceased work on the pool, Mr. Santibanez and Mr. Pappas had paid Pool Masters a total of $19,690.00 for work done pursuant to the contract and change order. Although Pool Masters represented to them that the payments would be used to pay subcontractors and materialmen, there were subcontractors and materialmen who were not paid. At least one lien was filed against Mr. Santibanez's and Mr. Pappas's property, and they paid the subcontractors and materialmen directly in order to get the liens released. On January 17, 1998, the United States Bankruptcy Court for the Southern District of Florida issued a Notice of Commencement of Case Under Chapter 7 of the Bankruptcy Code, showing that Pool Masters had filed for bankruptcy on January 7, 1998. On or about March 11, 1998, Mr. Santibanez and Mr. Pappas submitted a Construction Industries Recovery Fund Claim Form to the Board, naming Pool Masters as the contractor. In an order entered April 20, 1998, the bankruptcy court lifted the automatic stay to allow Mr. Santibanez and Mr. Pappas to file suit against Pool Masters. Mr. Santibanez and Mr. Pappas filed a complaint against Pool Masters in the Circuit Court for the Seventeenth Judicial Circuit in Broward County, Florida, seeking damages for breach of the contract for construction of the pool. Mr. Santibanez and Mr. Pappas alleged in the complaint that Pool Masters had failed to complete the work; failed to perform in a reasonable and timely manner and abandoned the project for more than 90 days which is a violation of F.S. 489.129(1)(k) [Section 489.129(1)(j)];[ 3/ ] falsely represented that monies paid to them were paid to materialmen and sub- contractors which resulted in financial harm to the Plaintiffs which is a violation of F.S. 489.129(1)(l) [Section 489.129(1)(k)];[ 4/ ] committed mismanagement and misconduct which caused Plaintiffs financial harm as of [sic] liens were recorded as against the Plaintiff's [sic] home in violation of F.S. 489.129(1)(h)(1) [Section 489.129(1)(g)1.];[ 5/ ] f [sic]. committed mismanagement and misconduct which caused Plaintiffs financial harm in that the percentage of completion is less than the percentage of the total contract price paid in violation of F.S. 489.129(1)(h)(2) [Section 489.129(1)(g)2.].[ 6/ ] Mr. Santibanez and Mr. Pappas further alleged in the complaint that the cost to complete the pool after construction was abandoned by Pool Masters was $17,975.50, and they included in the complaint an itemized list of expenditures to support their claim. The circuit court entered a Default Final Judgment on August 4, 1998, awarding Mr. Santibanez and Mr. Pappas $17,675.50, to be recovered from Pool Masters, plus interest at the statutory rate. In a letter from their attorney dated August 12, 1998, Mr. Santibanez and Mr. Pappas submitted to the Board additional documents to support their claim against the Construction Industries Recovery Fund, based on their Default Final Judgment against Pool Masters. The final report of the Trustee of Pool Masters' bankruptcy estate, dated December 1, 1999, indicated that Pool Masters had no funds remaining after disbursement for administrative expenses. Mr. Santibanez and Mr. Pappas did not receive any funds from the bankruptcy estate or any other source to satisfy the judgment against Pool Masters. Mr. Santibanez and Mr. Pappas satisfy the statutory criteria for eligibility for payment from the Fund in the amount of $17,675.50. DOAH Case No. 99-1666: Klaus and Lucrecia Mueller Klaus and Lucrecia Mueller entered into a contract with Pool Masters for construction of a swimming pool. The contract was executed on or about February 24, 1997. The total price stated in the contract was $16,400.00. Pool Masters represented to Mr. and Mrs. Mueller that it was a licensed swimming pool contractor. Pool Masters began work on the pool in Spring 1997, and Mr. and Mrs. Mueller made payments to Pool Masters pursuant to the contract. Pool Masters excavated the hole for the pool, installed the steel frame, poured gunnite at the shallow end of the pool, and installed the brick and tile around the pool. Pool Masters last worked on the swimming pool in late November 1997. At the time Pool Masters ceased work on the pool, Mr. and Mrs. Mueller had paid Pool Masters approximately $12,900.00 for work done pursuant to the contract. Although Pool Masters represented to them that the payments would be used to pay subcontractors and materialmen, there were subcontractors and materialmen who were not paid. Liens were filed against Mr. and Mrs. Mueller's property, and they paid the subcontractors and materialmen directly in order to get the liens released. On January 17, 1998, the United States Bankruptcy Court for the Southern District of Florida issued a Notice of Commencement of Case Under Chapter 7 of the Bankruptcy Code, showing that Pool Masters had filed for bankruptcy on January 7, 1998. On or about March 11, 1998, Mr. and Mrs. Mueller submitted a Construction Industries Recovery Fund Claim Form to the Board, naming Pool Masters as the contractor. In an order entered April 20, 1998, the bankruptcy court lifted the automatic stay to allow Mr. and Mrs. Mueller to file suit against Pool Masters. Mr. and Mrs. Mueller filed a complaint against Pool Masters in the Circuit Court for the Seventeenth Judicial Circuit in Broward County, Florida, seeking damages for breach of the contract for construction of the pool. Mr. and Mrs. Mueller alleged in the complaint that Pool Masters had failed to complete the work; failed to perform in a reasonable and timely manner and abandoned the project for more than 90 days which is a violation of F.S. 489.129(1)(k) [Section 489.129(1)(j)];[ 7/ ] falsely represented that monies paid to them were paid to materialmen and sub- contractors which resulted in financial harm to the Plaintiffs which is a violation of F.S. 489.129(1)(l) [Section 489.129(1)(k)];[ 8/ ] committed mismanagement and misconduct which caused Plaintiffs financial harm as of [sic] liens were recorded as against the Plaintiff's [sic] home in violation of F.S. 489.129(1)(h)(1) [Section 489.129(1)(g)1.];[ 9/ ] f [sic]. committed mismanagement and misconduct which caused Plaintiffs financial harm in that the percentage of completion is less than the percentage of the total contract price paid in violation of F.S. 489.129(1)(h)(2) [Section 489.129(1)(g)2.].[ 10/ ] Mr. and Mrs. Mueller further alleged in the complaint that the cost to complete the pool after construction was abandoned by Pool Masters was $13,299.51. The matter was presented to the circuit court, ex parte, upon Mr. and Mrs. Mueller's Motion for Default Final Judgment. The court entered a Default Final Judgment in June 1998, awarding Mr. and Mrs. Mueller $13,299.51, to be recovered from Pool Masters, plus interest at the statutory rate. In a letter from their attorney dated June 23, 1998, Mr. and Mrs. Mueller submitted to the Board additional documents to support their claim against the Construction Industries Recovery Fund, based on their Default Final Judgment against Pool Masters. The final report of the Trustee of Pool Masters' bankruptcy estate, dated December 1, 1999, indicated that Pool Masters had no funds remaining after disbursement for administrative expenses. Mr. and Mrs. Mueller did not receive any funds from the bankruptcy estate or any other source to satisfy their judgment against Pool Masters. Mr. and Mrs. Mueller satisfy the statutory criteria for eligibility for payment from the Fund in the amount of $13,299.51. DOAH Case No. 99-1667: Mario and Martha Alboniga Mario and Martha Alboniga entered into a contract with Pool Masters for construction of a swimming pool. The contract was executed on or about March 17, 1997. The total price stated in the contract was $24,000.00. Pool Masters represented to Mr. and Mrs. Alboniga that it was a licensed swimming pool contractor. Pool Masters began work on the pool on November 10, 1997, and Mr. and Mrs. Alboniga made payments to Pool Masters pursuant to the contract. Pool Masters excavated the hole for the pool and poured the concrete form of the pool. The last day Pool Masters worked on the swimming pool was November 19, 1997. Mr. and Mrs. Alboniga later heard that Pool Masters had declared bankruptcy. At the time Pool Masters ceased work on the pool, Mr. and Mrs. Alboniga had paid Pool Masters a total of $15,200.00 for work done pursuant to the contract. Although Pool Masters represented to them that the payments would be used to pay subcontractors and materialmen, there were subcontractors and materialmen who were not paid. Liens were filed against Mr. and Mrs. Alboniga’s property, and they paid the subcontractors and materialmen directly in order to get the liens released. On January 17, 1998, the United States Bankruptcy Court for the Southern District of Florida issued a Notice of Commencement of Case Under Chapter 7 of the Bankruptcy Code, showing that Pool Masters had filed for bankruptcy on January 7, 1998. On or about March 11, 1998, Mr. and Mrs. Alboniga submitted a Construction Industries Recovery Fund Claim Form to the Board, naming Pool Masters as the contractor. In an order entered April 20, 1998, the bankruptcy court lifted the automatic stay to allow Mr. and Mrs. Alboniga to file suit against Pool Masters. Mr. and Mrs. Alboniga filed a complaint against Pool Masters in the Circuit Court for the Seventeenth Judicial Circuit in Broward County, Florida, seeking damages for breach of the contract for construction of the pool. Mr. and Mrs. Alboniga alleged in the complaint that Pool Masters had failed to complete the work; failed to perform in a reasonable and timely manner and abandoned the project for more than 90 days which is a violation of F.S. 489.129(1)(k) [Section 489.129(1)(j)];[ 11/ ] falsely represented that monies paid to them were paid to materialmen and sub- contractors which resulted in financial harm to the Plaintiffs which is a violation of F.S. 489.129(1)(l) [Section 489.129(1)(k)];[ 12/ ] committed mismanagement and misconduct which caused Plaintiffs financial harm as of [sic] liens were recorded as against the Plaintiff's [sic] home in violation of F.S. 489.129(1)(h)(1) [Section 489.129(1)(g)1.];[ 13/ ] f [sic]. committed mismanagement and misconduct which caused Plaintiffs financial harm in that the percentage of completion is less than the percentage of the total contract price paid in violation of F.S. 489.129(1)(h)(2) [Section 489.129(1)(g)2.].[ 14/ ] Mr. and Mrs. Alboniga further alleged in the complaint that the cost to complete the pool after construction was abandoned by Pool Masters was $10,541.77. The circuit court entered a Final Judgment "pursuant to stipulation" on August 4, 1998, awarding Mr. and Mrs. Alboniga $10,541.77, to be recovered from Pool Masters, plus interest at the statutory rate. In a letter from their attorney dated August 12, 1998, Mr. and Mrs. Alboniga submitted to the Board additional documents to support their claim against the Construction Industries Recovery Fund, based on their Final Judgment against Pool Masters. The final report of the Trustee of Pool Masters' bankruptcy estate, dated December 1, 1999, indicated that Pool Masters had no funds remaining after disbursement for administrative expenses. Mr. and Mrs. Alboniga did not receive any funds from the bankruptcy estate or any other source to satisfy their judgment against Pool Masters. Mr. and Mrs. Alboniga satisfy the statutory criteria for eligibility for payment from the Fund in the amount of $10,541.77. DOAH Case No. 99-1668: Salvator Militello and Sharon Sidorski Salvator Militello and Sharon Sidorski entered into a contract with Pool Masters for construction of a swimming pool. The contract was executed on or about April 6, 1997. The total price stated in the contract was $24,295.00. Pool Masters represented to Mr. Militello and Ms. Sidorski that it was a licensed swimming pool contractor. Mr. Militello and Ms. Sidorski made payments to Pool Masters pursuant to the contract. Pool Masters excavated the hole for the pool and spa, installed basic plumbing, and poured the concrete for the pool. Pool Masters last worked on the swimming pool in October 1997. At the time Pool Masters ceased work on the pool, Mr. Militello and Ms. Sidorski had paid Pool Masters $19,389.00 for work done pursuant to the contract. Although Pool Masters represented to them that the payments would be used to pay subcontractors and materialmen, there were subcontractors and materialmen who were not paid. Liens were filed against Mr. Militello's and Ms. Sidorski's property, and they paid the subcontractors and materialmen directly in order to get the liens released. On January 17, 1998, the United States Bankruptcy Court for the Southern District of Florida issued a Notice of Commencement of Case Under Chapter 7 of the Bankruptcy Code, showing that Pool Masters had filed for bankruptcy on January 7, 1998. On or about March 11, 1998, Mr. Militello and Ms. Sidorski submitted a Construction Industries Recovery Fund Claim Form to the Board, naming Pool Masters as the contractor. In an order entered April 20, 1998, the bankruptcy court lifted the automatic stay to allow Mr. Militello and Ms. Sidorski to file suit against Pool Masters. Mr. Militello and Ms. Sidorski filed a complaint against Pool Masters in the Circuit Court for the Seventeenth Judicial Circuit in Broward County, Florida, seeking damages for breach of the contract for construction of the pool. Mr. Militello and Ms. Sidorski alleged in the complaint that Pool Masters had failed to complete the work; failed to perform in a reasonable and timely manner and abandoned the project for more than 90 days which is a violation of F.S. 489.129(1)(k) [Section 489.129(1)(j)];[ 15/ ] falsely represented that monies paid to them were paid to materialmen and sub- contractors which resulted in financial harm to the Plaintiffs which is a violation of F.S. 489.129(1)(l) [Section 489.129(1)(k)];[ 16/ ] committed mismanagement and misconduct which caused Plaintiffs financial harm as of [sic] liens were recorded as against the Plaintiff's [sic] home in violation of F.S. 489.129(1)(h)(1) [Section 489.129(1)(g)1.];[ 17/ ] f [sic]. committed mismanagement and misconduct which caused Plaintiffs financial harm in that the percentage of completion is less than the percentage of the total contract price paid in violation of F.S. 489.129(1)(h)(2) [Section 489.129(1)(g)2.].[ 18/ ] Mr. Militello and Ms. Sidorski further alleged in the complaint that the cost to complete the pool after construction was abandoned by Pool Masters was $13,544.00 and that they paid $1,641.68 to satisfy liens and unpaid subcontractors and materialmen, for total damages of $15,185.68. The circuit court entered a Final Judgment "pursuant to stipulation" on August 4, 1998, awarding Mr. Militello and Ms. Sidorski $15,185.68, to be recovered from Pool Masters, plus interest at the statutory rate. In a letter from their attorney dated August 12, 1998, Mr. Militello and Ms. Sidorski submitted to the Board additional documents to support their claim against the Construction Industries Recovery Fund, based on their Final Judgment against Pool Masters. The final report of the Trustee of Pool Masters' bankruptcy estate, dated December 1, 1999, indicated that Pool Masters had no funds remaining after disbursement for administrative expenses. Mr. Militello and Ms. Sidorski did not receive any funds from the bankruptcy estate or any other source to satisfy their judgment against Pool Masters. Mr. Militello and Ms. Sidorski satisfy the statutory criteria for eligibility for payment from the Fund in the amount of $15,185.68. DOAH Case No. 00-0024: Jack and Paula Tieger Jack and Paula Tieger entered into a contract with Pool Masters for construction of a swimming pool. The contract was executed on or about December 17, 1995. The total price stated in the contract was $28,200.00. Pursuant to the contract, Pool Masters built a pool and screen enclosure, and Mr. and Mrs. Tieger paid Pool Masters the price specified in the contract. Mr. and Mrs. Tieger were not, however, satisfied with the work done by Pool Masters, and, in or around 1997, they filed a complaint for breach of contract against Pool Masters in the Circuit Court of the Seventeenth Judicial Circuit, in Broward County, Florida. In the complaint, Mr. and Mrs. Tieger alleged that Pool Masters had breached the contract: By failing to adequately explain the technical terms used in the Agreement to the TIEGERS; By failing to install a vacuum line with valve as specified in the Agreement; By failing to install anti-corrosive handrails in the swimming pool; By failing to properly install and/or provide a properly functioning waterfall as specified in the Agreement; By failing to properly fill the area behind the waterfall; By unilaterally, and or the TIEGERS' [sic] objection, placing a tile with the "Pool Masters" logo on the steps heading into the pool: By failing to re-route the TIEGERS' [sic] sprinkler system in a timely manner; By failing to advise the TIEGERS that they were going to need to pay for and install a separate circuit breaker box as part of the installation of the swimming pool; and By failing to install the second screen door as specified in the Agreement. Mr. and Mrs. Tieger did not identify the amount of damages they allegedly suffered as a result of Pool Masters's alleged breach of contract. Mr. and Mrs. Tieger were not aware that Pool Masters had declared bankruptcy until January 1998, when Mrs. Tieger went to Pool Masters' office and found the notice on the door. A non-jury trial was held before the circuit court on March 5, 1998; Pool Masters did not attend the trial. In a Final Judgment entered on March 25, 1998, the court awarded Mr. and Mrs. Tieger $4,200 as compensatory damages to be recovered from Pool Masters. In a Proof of Claim dated May 13, 1998, and filed with the United States Bankruptcy Court of the Southern District of Florida, Mr. and Mrs. Tieger submitted an unsecured claim against Pool Masters' bankruptcy estate in the amount of $7,300.00, which represented the compensatory damages awarded in the final judgment, together with attorney's fees and costs. Mr. and Mrs. Tieger have not collected any portion of their judgment against Pool Masters. Mr. and Mrs. Tieger submitted to the Board a Construction Industries Recovery Fund Claim Form dated December 5, 1998, and the Board awarded Mr. and Mrs. Tieger $800.00, representing the cost of the vacuum line with valve and the second screen door which Pool Masters had not installed. Mr. and Mrs. Tieger do not satisfy the statutory criteria for eligibility for payment from the Fund. Mr. and Mrs. Tieger failed to establish that they filed their claim with the Board within two years of the date they discovered the alleged deficiencies in the pool, and they failed to establish that the final judgment against Pool Masters was based on a violation of Section 489.129(1)(g), (j), or (k), Florida Statutes (Supp. 1998). The evidence presented herein is not sufficient to establish that Mr. Kiselius is the licensee against whom the claimants obtained final judgments.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, 25/ it is RECOMMENDED that the Construction Industry Licensing Board: Enter final orders as follows: In DOAH Case No. 99-1665, finding Eugene Santibanez and Alexander Pappas eligible for payment from the Fund in the amount of $17,675.00, in satisfaction of a final judgment against Pool Masters, Inc.; In DOAH Case No. 99-1666, finding Klaus and Lucrecia Mueller eligible for payment from the Fund in the amount of $13,299.51, in satisfaction of a final judgment against Pool Masters, Inc.; In DOAH Case No. 99-1667, finding Mario and Martha Alboniga eligible for payment from the Fund in the amount of $10,541.77, in satisfaction of a final judgment against Pool Masters, Inc.; In DOAH Case No. 99-1668, finding Salvator Militello and Sharon Sidorski eligible for payment from the Fund in the amount of $15,185.68, in satisfaction of a final judgment against Pool Masters, Inc.; and In DOAH Case No. 00-0024, dismissing the claim of Jack and Linda Tieger for payment from the Fund. Determine that Christopher P. Kiselius is not the "licensee" whose license is subject to automatic suspension pursuant to Section 489.143(7), Florida Statutes (Supp. 1998), as a result of payments to the claimants in DOAH Case Nos. 99- 1665, 99-1666, 99-1667, and 99-1668. DONE AND ENTERED this 31st day of August, 2000, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2000.
Findings Of Fact The Petitioner is the Department of Professional Regulation. The Respondent is Phillip Whitaker, Jr., holder of certified pool contractor license number CP-C008325 at all times pertinent to these proceedings. He is the qualifying agent for the business known as Sunshine State Pools pursuant to requirements of Chapter 489, Florida Statutes. He is responsible for actions of that business relating to construction of the swimming pool which is the subject of this proceeding. His address of record is Miami, Florida. The customer, Ken Gibson, signed a contract with Sunshine State Pools on September 15, 1986. The contract called for construction of a residential swimming pool at 15840 S.W. 155th Avenue, Miami, Florida. The total contract price was $12,700. Testimony adduced at hearing establishes that Sunshine State Pools completed the layout of the customer's swimming pool and the excavation of soil from the proposed pool site by October 1, 1986. These tasks were accomplished under the Respondent's supervision. Metropolitan Dade County issued a building permit for construction of the swimming pool in response to a permit application bearing the signature of Phillip E. Whitaker. The permit and application are both dated October 10, 1986. At hearing, the Respondent acknowledged that initiation of construction prior to pulling the permit and termed this action an "oversight." Based on the candor, demeanor and experience of the Respondent, his explanation of the failure to timely obtain the construction permit is not credited. Initiation of construction for a swimming pool prior to obtaining permits constitutes a violation of part 301.1(n), of the South Florida Building Code and, by stipulation of the parties at hearing, the building code of Metropolitan Dade County. The Respondent was responsible for supervision of the actual pool shell construction. After completion and removal of the wood forms used in the process, steel rods or "rebar pins" required as support during the construction process were not removed. These rods extended some distance above the ground and posed a substantial hazard to Respondent's children while playing. Finally, the steel rods were removed by the customer a week after he requested the Respondent to remove them. Respondent admitted some of these reinforcements could have been left by his subordinates. Respondent admits responsibility for the "back fill" process completed on October 25, 1986. This was originally a responsibility of the customer under the contract as the party responsible for deck construction. The "back fill" process consists of compacting loose soil between the outside of the pool walls and surrounding earth by use of special tamping or pounding equipment. Under terms of the contract, the customer was responsible for construction of a sizeable two part deck surrounding at least sixty percent of the pool's circumference. There now exists a substantial height difference between the coping surrounding the perimeter of the pool and the deck or patio surface. The coping is elevated above the top of the patio approximately two to four inches. As adduced from testimony of Ben Sirkus (stipulated by both parties as an expert in swimming pools and swimming pool construction), coping along the top of the pool walls consists of flagstone rock in conformity with the contract terms. Some of the rocks are cracked. The rocky edge of the coping extends over the pool wall and has a dangerously sharp edge. The sharp edge of the coping overhang could have been avoided by cutting the flagstone coping smooth prior to installation, the acceptable practice among pool contractors. The bottom step to one set of the pool steps has a hazardous 19 inch riser as opposed to the 12 inch distance required by the building code. No hand rail is present. Hollow space under some of the coping stones are the result of either improper installation, dirty cement or sinking of the deck as a result of improper "back filling" upon completion of the pool shell. On one occasion, Respondent admitted responsibility for deficiencies in the pool coping to an employee named Rick Miro. The Respondent further stated to this employee that he intended to do nothing about the problem. Respondent was present during some, but not all, of the coping installation. The "skimmer," the apparatus by which debris is cleared from the pool water, is inoperable as a result of faulty construction of the pool. The failure of the Respondent, who admits to successful completion of approximately 2500 pools with only three complaints, to properly supervise job site activities was the major cause of the pool deficiencies identified at hearing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be placed on probation for a period of two years upon such terms and conditions as may be determined by the Construction Industry Licensing Board and assessed an administrative penalty in the amount of $1500. DONE AND RECOMMENDED this 29th day of February, 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 19th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5053 The following constitutes my specific ruling on proposed findings of fact submitted by the parties. Petitioner's Proposed Findings Included in finding 2. Included in finding 3. Included in finding 4. Included in findings 5, 6 and 7. Included in findings 5 and 6. Included in finding 8. Included in finding 10 with exception of hearsay statement. Included in finding 11.1 Included in finding 12. Included in finding 11. Included in finding 11. Included in finding 11. Included in finding 11. Rejected as unnecessary. Rejected as unnecessary. Included in finding 11. COPIES FURNISHED: David L. Swanson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Mark D. Press, Esquire 2250 Southwest Third Avenue 5th Floor Miami, Florida 33129 William O'Neil General Counsel 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely Executive Director Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 =================================================================
