Findings Of Fact At all times material hereto Respondent, George W. Boukater, was a certified general contractor, license number CG C012598, and a registered pool contractor, license number RP 0032042. Respondent was the qualifier for Swimming Pools by M.J. Donohue, Inc. (Donohue), under license number RP 0032042, from February 1979 until June 30, 1985. On July 29, 1984 Donohue contracted to construct a swimming pool at the residence of Ms. Loretta Hunley in Fort Lauderdale, Florida, for the sum of $6,400.00. Respondent, on behalf of Donohue, applied for and received the building and plumbing permits for the pool. Apart from securing the permits, Respondent had no contact with the job and never inspected its progress. By August 30, 1984, Donohue had substantially completed the pool. All that remained to be done was to marcite the pool, hook up the pool light and plumbing, and install the pumps. However, before these items could be completed it was necessary that the area surrounding the pool be backfilled, the patio poured, and the electric installed. Under the July 29, 1984 contract Ms. Hunley did not contract with Donohue for any patio, electric or fence work. She expressly retained responsibility for that work in an effort to save money on the pool construction. The area surrounding the pool was not backfilled and the patio slab approved by the Broward County Building and Zoning Department (County) until September 14, 1984. As of September 5, 1985, the fence work was still in violation of the County code. The electric work received the County's final approval on January 8, 1986. In October 1984 demands were exchanged between Ms. Hunley and Donohue. Ms. Hunley demanded that the pool be completed. Donohue demanded adequate electrical service so the pool could be pumped and cleaned for marciting, and dates when someone would be available at the premises. In November 1984 Donohue got its pumps in operation, however Ms. Hunley disconnected them in the evenings. Consequently, the pool could not be drained and cleaned to marcite it. In November 1984 Ms. Hunley ejected Donohue from the job site. Subsequently, Ms. Hunley and Donohue formally settled their dispute.
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 =================================================================
The Issue Did Respondent commit the violations alleged in the Administrative Complaint dated September 1, 2000, and if so, what discipline is appropriate?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Board is the agency within Pinellas County, Florida, which is given the authority under Chapter 89-504, Laws of Florida, as amended, to regulate and discipline the license of, among others, certified commercial pool/spa contractors. Respondent is, and has been at all times material hereto, a certified commercial pool/spa contractor in Pinellas County, Florida, having been issued license C-2578 (RP0023937). On September 9, 1999, Respondent entered into a contract with Louis Alberto and Margaret Alberto (Albertoes). The contract provided for Respondent to: Remove algae and dirt from Sand Pebble deck. Resurface entire Pebble Deck (1132 sq. ft.) with Flo-Crete. Retexture entire surface and seal with color of choice. Place random pattern. Pressure clean existing deck and acid wash. The contract price was $3,600.00 with 50 percent to be paid at the beginning of the contract and the balance to be paid upon completion of the contract. Although it is not covered in the contract, both parties agreed that Respondent had verbally agreed to give the Albertoes his personal five-year warranty on the work he was to perform under the contract, which included covering the pool sand pebble deck with Flo Crete. Design Flo-Crete (Flo-Crete) is a product manufactured by Seamco Laboratories, Inc. (Seamco) and used in covering pool decks. Seamco's position on covering a sand pebble deck with Flo-Crete is as follows: Please be advised that as a manufacturer Seamco Laboratories, Inc., does not recommend going over river rock (stone and epoxy systems) with their product Design Flo-Crete. Going over epoxy stone would encapsulate bacteria, which could cause gases that could cause disruption of the Design Flo-Crete. Seamco is aware that some of their dealers install Flo-Crete over river rock successfully. However, Seamco's official position is as stated above. Respondent was aware of Seamco's position on the installation of Flo-Crete over river rock at the time he entered into the contract with the Albertoes and advised the Albertoes that Seamco did not recommend going over river rock (stone and epoxy systems) with Flo-Crete. However, Respondent advised the Albertoes that he had previously used Flo-Crete over river rock successfully on several jobs. Respondent's did not seal the sides of the deck which allowed the gases created by the encapsulated bacteria to escape through the sides. There is no mention in the contract that Seamco would warrant Flo-Crete under any condition. Furthermore, Respondent did not verbally advise the Albertoes that Seamco would warrant Flo-Crete under these conditions. Subsequent to entering into the contract, Respondent proceeded to: (a) remove the algae and dirt from the sand pebble deck by pressure cleaning and acid wash; (b) resurface entire pebble deck with Flo-Crete; and (c) retexture entire surface and seal with color of choice. There were some minor problems but those were corrected. However, the Albertoes were not satisfied with the new textured surface because it tended to show scuff marks and the color was too light. In an attempt to satisfy the Albertoes, Respondent put lines on the deck by applying tape and painting over the entire surface and then removing the tape leaving the lines. Also, in a further attempt to satisfy the Albertoes, Respondent applied a combination of two colors to darken the original color. However, the original color (bone white) continued to bleach through and was not satisfactory to the Albertoes. At this point, Respondent became convinced that he could not satisfy the Albertoes. Apparently, the Albertoes' dissatisfaction with the color of the deck resulted in Respondent not being allowed to apply the polyurethane sealer to the deck. In any event, the polyurethane sealer was never applied to the deck surface. Subsequently, the Albertoes contracted with another contractor to tear out the existing sand pebble deck and refinish the deck to their specifications for a contract price of approximately $3,600.00 There is insufficient evidence to show that Respondent's method of applying Flo-Crete over the sand pebble deck resulted in the disruption of the Flo-Crete or was the cause of Respondent being unable to satisfy the Albertoes as to the color and texture of the deck.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board enter a Final Order dismissing the Administrative Complaint filed against Respondent. DONE AND ENTERED this 22nd of February, 2001, in Tallahassee, Leon County, Florida. ___________________________________ WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February, 2001. COPIES FURNISHED: William W. Owens, Executive Director Pinellas County Construction Licensing Board Suite 102 11701 Belcher Road Largo, Florida 33773-5116 Robert W. Dobson 8965 60th Street, North Pinellas Park, Florida 33782 Kathleen O'Dowd, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Don Crowell, Esquire Pinellas County Construction Licensing Board 310 Court Street Clearwater, Florida 33756
Findings Of Fact When the third vinyl liner Brenda Hanna had installed in her swimming pool also ripped, she decided concrete would serve better. A friend referred her to respondent Richard Cobb. Mrs. Hanna and Mr. Cobb entered into a written agreement on March 10, 1977, by which Mr. Cobb undertook, among other things, to cement the pool walls and bottom, in exchange for eighteen hundred eighty dollars ($1,880,00). Plumbing was not covered by this agreement. Approximately one month later two workmen began on the project. Work progressed sporadically. Mr. Cobb himself helped remove the vinyl wall, remove aluminum plates, widen the existing excavation and replace the aluminum plates with the intention of using them as part of the forms for pouring the concrete swimming pool walls. Mr. Cobb also put some steel bars in place, After several telephone calls, on October 17, 1977, Mrs. Hanna wrote respondent saying he had 15 days in which to resume work and 45 days thereafter to finish. On or about November 1, 1977, respondent appeared at the job site. The last day he worked on the project Mrs. Hanna told Mr. Cobb she would call him when she had gotten the plumbing finished. Mrs. Hanna never told Mr. Cobb not to finish the work he began for her. On or about March 10, 1977, Mrs. Hanna wrote a check in favor of DLC, a contracting company, in the amount of five hundred dollars ($500.00), which she intended as partial payment under the contract she entered into on March 10, 1977. Two weeks after work began, Mr. Cobb asked Mrs. Hanna for more money, saying that DLC had charged him five hundred dollars ($500.00) for getting the job for him. Mrs. Hanna gave him one hundred dollars ($100.00) at that time, After Mrs. Hanna investigated, she again discussed what had happened to the first five hundred dollars ($500.00) with Mr. Cobb who conceded that some bills were paid with the money. On another occasion, Mrs. Hanna advanced one hundred fifteen dollars ($115.00) which Mr. Cobb used to buy steel. Before beginning work Mr. Cobb, who held individual swimming pool servicing contractor's license No. RP 2997 from March 17, 1977, till June 30, 1977, secured building permit No. 77-338 to repair Mrs. Hanna's swimming pool. John F. Viking, an investigator in petitioner's employ since February 15, 1971, issued a notice of violation to Mr. Cobb in 1971 or 1972, when he was told that Mr. Cobb had been contracting without a license. In 1973, on the basis of similar information, he filed a complaint with the state attorney's office which he understood resulted in Mr. Cobb's conviction and probation. Lester A. Davis, a long time employee of the City of Gainesville and presently its acting building official, visited Mrs. Hanna's residence after Mr. Cobb had begun work and asked Mr. Cobb to show him engineering plans. In Mr. Davis' opinion, the plans Mr. Cobb showed him were not being followed. Mr. Davis told Mr. Cobb that he could finish the job only if he associated a contractor licensed to build swimming pools. Mr. Davis inspected and discovered that the bottom drain had been installed. No other plumbing was required to be done before cementing the pool walls and bottom.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner suspend respondent's license for one year. DONE and ENTERED this 28th day of November, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Michael Egan, Esquire Post Office Box 1386 Tallahassee, Florida 32302 Richard Cobb, Esquire 1238 Southest 18th Terrace Gainesville, Florida 32601 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. CASE NO.: 78-1553 RICHARD COBB, RP 0029977, 1238 S. E. 18th Terrace, Gainesville, Florida 32601, Respondent. /
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.
The Issue The issue is whether the Respondent is subject to discipline for permitting his general contractor's license to be used by another person to construct a swimming pool, thereby conspiring with an unlicensed person to avoid statutory licensure requirements, and by failing to oversee the quality of the work performed by that person under Respondent's license.
Findings Of Fact The Petitioner is the state agency responsible to prosecute administrative complaints under Chapters 455 and 489, Florida Statutes, and the rules implementing those statutes. At all times material to the complaint, Raymond Hurley was licensed as a certified general contractor, holding Florida license CGC 000773 and served as the qualifying agent for Capital Resources and Development, Inc. Kenneth R. and Lucille M. Clopper, of Fort Pierce, Florida, entered into a contract with Fred Humberstone, doing business as Southern Fiberglass Pools of the Treasure Coast, Inc., on September 21, 1987, for the construction of a pool and screened enclosure at the Clopper's home. The contract price was $15,500. Mr. Humberstone has never been a qualified contractor in St. Lucie County, Florida. Mr. Hurley became authorized to do business as a contractor in St. Lucie County, Florida, on September 29, 1987, when he provided a copy of his state certified general contractor's license, a certificate of insurance for worker's compensation and general liability property damage insurance to St. Lucie County. St. Lucie County Permit No. 44574 was issued to Capital Resources and Development, Inc., on October 9, 1987. The permit application had been dated September 24, 1987. The application bore Mr. Hurley's contractor license number. In the space for the name of the company, the application had originally been written in the name of Southern Fiberglass Pools of the Treasure Coast, of Stuart, Florida. The name of the applicant had been scratched through, and the name of Capital Resources and Development, Inc., was written over it. The application bears a handwritten signature which reads Raymond S. Hurley, but it is not his signature. Mr. Hurley did not sign the application, or authorize anyone to sign it for him. Mr. Hurley knew Mr. Humberstone, the owner of Southern Fiberglass Pools of the Treasure Coast. Humberstone had difficulty with his corporation because his qualifying contractor had left, and Humberstone owned approximately $150,000 worth of equipment which he could not use without a qualifying contractor. Humberstone made a proposal to Hurley to become the qualifying contractor for Southern Fiberglass Pools of the Treasure Coast. It was about this time that Mr. Hurley first qualified to engage in the business of contracting in St. Lucie County. Mr. Humberstone must have pulled the permit for the Clopper jor, using Mr. Hurley's licensure in St. Lucie County. This is likely because at first, the line for the permit applicant had been filled in with the name of Humberstone's business, Southern Fiberglass Pools by the Treasure Coast. Mr. Hurley had become licensed in St. Lucie County because he was contemplating going into business with Mr. Humberstone. What cannot be determined from the evidence in the record is whether Mr. Hurley had agreed with Mr. Humberstone to make his licensure available to Mr. Humberstone so Humberstone could continue in the pool contracting business in St. Lucie County. Mr. Hurley did not sign the application for the permit at the Clopper's home. He never went to the Clopper's home to see the work or to meet the Cloppers. Had he gone into partnership with Humberstone he would likely have participated, to some extent, in the work. On this matter, the Department's proof is insufficient. After the construction at the Clopper home began, there were a number of delays in completion of the pool, and the contractor failed to install stress relief for the pool deck which resulted in cracking of the pool deck. The pool itself had three leaks. The problems with the pool remained unresolved and the Clopper's finally settled with Mr. Humberstone for payment for $1,020 in exchange for providing Mr. Humberstone with the release of liability. Ultimately, the Cloppers spend $1,659 to repair the problems created by Mr. Humberstone's inadequate work. Mr. Hurley was never at the job site, and the Cloppers never knew anything about him until after their pool had been completed; all of their dealings had been with Humberstone.
Recommendation It is recommended that the administrative complaint filed by the Construction Industry Licensing Board against Raymond Hurley be dismissed. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31st day of January 1991. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of January 1991. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-4233 Rulings on findings proposed by the Petitioner: 1-7. Accepted. 8. Rejected, as there is insufficient evidence to find that Mr. Hurley, although he knew Mr. Humberstone, had entered into any agreement Humberstone to become a qualifying contractor for Humberstone's corporation. While that is one inference which could be drawn from the evidence, the evidence is not strong enough to permit such finding, at the level of certainty required for clear and convincing evidence, to be made. Rulings on findings proposed by the Respondent: 1-6. Adopted 7. Rejected. There is insufficient evidence in the record to make specific finding with respect to handwriting exemplars, but the testimony of Mr. Hurley that he did not sign the St. Lucie County permit application has been accepted. Copies furnished: Robert B. Jurand, Esquire Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Glenn N. Blake, Esquire BLAKE & TORRES Strange Building 500 South US 1 Fort Pierce, Florida 34950 Robert E. Stone, Esquire SULLIVAN, STONE, SULLIVAN LaJOIE and THACKER 100 Avenue "A", Suite 1F Fort Pierce, Florida 34950 Daniel O'Brien, Executive Director Department of Professional Regulation Construction Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times material to the pending Administrative Complaint, Respondent was a registered pool contractor licensed by the State of Florida, having been issued license number RP 0029202. (Petitioner's First Request for Admissions, Item 2: Pet. Exh. C) On or about December 5, 1984, Respondent, d/b/a Miller Pools, contracted with Terry Kilpatrick to construct a pool at the Kilpatrick residence. (Pet. Exh. B; T. 9-10) The contract provided for a contract price of $10,963 for the construction of the pool and $1600 for the installation of fencing. (Pet. Exh. B; T. 10) Under the provisions of the contract and pursuant to the agreement of the parties, Respondent was responsible for all aspects of the pool construction and Kilpatrick was responsible for the installation of the fencing. (Pet. Exh. B; T. 10-11) As part of the contract, Respondent gave Kilpatrick a one-year warranty on the construction of the pool. (T. 19-20) The Kilpatrick residence was located in Putnam County, Florida, within the jurisdiction of the Putnam County Building and Zoning Department. (Pet. Exh. B; T. 37) In December 1984, the 1982 Standard Swimming Pool Code was in effect in Putnam County, having been adopted by county ordinance. (Pet. Exh. E, F; T. 40- 42) The Standard Swimming Pool Code in effect in Putnam County in December 1984 required that a building permit be obtained before the commencement of construction of a swimming pool at a residence in the county. (Pet. Exh. E; T. 42) Respondent obtained the necessary building permit for the Kilpatrick pool job. (Pet. Exh. D; T. 42) The Standard Swimming Pool Code in effect in Putnam County in December 1984 also required that certain inspections be done during the course of the construction of a swimming pool. (Pet. Exh. E; T. 43) Among the required inspections was an electrical inspection and a final inspection. (Pet. Exh. E; T. 44-45) It was the responsibility of Respondent as contractor to request the Putnam County Building and Zoning Department to conduct the necessary inspections of the pool. (Pet. Exh. E; T. 44) The purpose of requiring the various pool inspections, including the electrical and the final, was to make certain that the pool had been constructed and was operating correctly and safely. (T. 45) Respondent was aware that certain inspections were required by local law. On three occasions, December 19, 1984, January 7, 1985 and January 10, 1985, inspections were performed on the Kilpatrick pool at Respondent's request. (Pet. Exh. D; T. 23, 43) Respondent did not make arrangements for the electrical or final inspections to be performed on the Kilpatrick pool. (Pet. Exh. D; T. 23, 43-44) During the construction of the Kilpatrick pool, Respondent was at the job site infrequently. (T. 12-16, 18, 19, 22) Almost immediately after the pool construction was completed, Kilpatrick began to experience problems with the pool, problems which included pitting of the marcite finish, leaks in the tiled area of the pool, and chipping of the brick and coping. (T. 24-35) The problems experienced by Kilpatrick were problems related to the construction of the pool and were covered by the one-year warranty on the pool given to Kilpatrick by Respondent. (T. 19-20) Respondent failed to take any action to correct the problems until after Kilpatrick had contacted the Putnam County Building and Zoning Department and the Department of Professional Regulation to complain about the problems with the pool. (T. 25-28, 35-36, 46-50) As of the date of the hearing in this case, Kilpatrick continued to experience problems with the pool leaking around the tile. (T. 31-31, 34) By Final Order, dated March 17, 1986, in Department of Professional Regulation Case No. 0059028, the Construction Industry Licensing Board imposed an administrative fine of $1000 and suspended Respondent's registered pool contractor's license for five years as a result of Respondent's default in a disciplinary case in which Respondent had been charged with failure to supervise a swimming pool construction project and/or performing said construction in a grossly negligent and/or incompetent manner. (Pet. Exh. C)
Recommendation Having found the Respondent guilty of violating Subsections 489.129(1)(d) and (m), Florida Statutes, it is recommended that Respondent be fined $1000, and that his license be suspended for an additional year after the suspension imposed by the Construction Industry Licensing Board in its Final Order, dated March 17, 1986, in Department of Professional Regulation Case No. 0059028. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1987. COPIES FURNISHED: David R. Terry, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Jimmy G. Miller 706 Southeast 35 Avenue Ocala, Florida 32671 Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Wings S. Benton, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue is whether the swimming pool permit no. 46-181-84 and spa permit no. 46-241-87 for Fords Gym and Health Spa should be revoked pursuant to Florida Administrative Code Chapter 10D-5 and Chapter 514, Florida Statutes.
Findings Of Fact Larry Ford owns and operated a swimming pool and a spa (whirlpool) in Fort Walton Beach, Florida. On May 10, 1988, and September 29, 1988, Mr. Ford's pool and spa were inspected and found to be in violation of Florida law. It was necessary to close the pool and spa on both of these occasions because there were several violations pertaining to the chlorine level and ph level, and also required equipment was disconnected or inoperable. Mr. Ford's pool was inspected on September 27, 1990, and the inspector found the chlorine and the ph feeder were disconnected. Also on September 27, 1990, the spa chlorine was below adequate level and the temperature was too high. The chlorinator and ph feeder were disconnected. The spa was closed based on these violations. On November 30, 1990, the spa was found to have inadequate chlorine and the chlorinator was disconnected. Due to these violations the spa was closed. On March 13, 1991, violations were found in the spa. The chlorine feeder was disconnected, the chlorine was low, the ph was below the adequate level and the ph feeder was disconnected. The spa was then closed. On April 11, 1991, the pool was inspected based on a complaint and found to have several violations of the Florida Administrative Code to include water level too high, no depth markers, broken scum gutter, inoperable underwater lights, missing "no diving" signs, and toilet seats without open fronts. On January 14, 1992, the spa was closed because of no chlorine and the chlorinator and the ph feeder were disconnected. Mr. Ford's pool and spa were closed again on March 2, 1992, due to violations. The facilities were reinspected on March 5, 1992, and remained closed because the violations had not been corrected. These violations included: No chlorine in the pool PH level was low. Automatic chlorinator and automatic ph feeder were not connected. On March 19, 1992, the HRS investigator was denied access to the pool and spa during an inspection visit. When the pool and spa were inspected on March 24, 1992, both the pool and the spa contained several violations to include no safety line in the pool, disconnected chlorinator and ph feeder; missing depth markers were missing, missing "no diving" signs, water level was too high, and the drinking fountain was clogged. On May 20, 1992, the HRS inspector was denied access to the pool and spa for a routine inspection. HRS, Okaloosa County Public Health Unit, had closed Mr. Fords pool in August 1991. Mr. Ford instructed an employee to pull down the signs in which HRS had posted to close the pool and he further allowed clients into the pool during the time that it was closed. During 1991, Mr. Ford did not utilize a chlorine or ph feeder as required by the Florida Administrative Code and instructed employees to hand feed the pool, bypassing the feeder system. On April 1, and April 2, 1992, Mr. Ford allowed clients to use the pool. During this time HRS had closed the pool due to violations. During the months of January and February, 1992, Mr. Ford's engineer drafted proposed modifications for the swimming pool filtering system and replacement of the chlorinator. According to Mr. Ford this work was completed; however, HRS never received notice of completion of the modification from the pool engineer as required by the Florida Administrative Code. As a result the pool was never inspected by HRS after the modifications were made and recertified.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Department of Health and Rehabilitative Services revoke pool permit No. 46-181-84 and spa permit no. 46-241-87. DONE and ENTERED this 26th day of April, 1993, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of April, 1993. APPENDIX A Both the parties filed proposed findings which were read and considered. The following states which of the proposed findings were adopted, and which were rejected and why: Petitioner's Findings: Proposed Order: Paragraph 1-12 Paragraph 1-12 Respondent's Findings: Proposed Order: Unnumbered Paragraphs in Rejected as the Findings of Fact Arguement. COPIES FURNISHED: Charles Wade, Esquire 468 North Main Street Post Office Box 785 Crestview, Florida 34536 Frank C. Bozeman, III, Esquire HRS District 1 Legal Office Post Office Box 8420 Pensacola, FL 32505-8420 Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
