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 The basic issue in this case is whether the Petitioner is entitled to a variance from some of the requirements of Rule 10D-5.097, Florida Administrative Code, regarding public swimming pools. At the hearing, both parties presented the testimony of witnesses and offered exhibits. Following the hearing a transcript was filed on March 3, 1989, and the parties were allowed until March 23, 1989, within which to file their proposed recommended orders. Both parties filed proposed recommended orders containing proposed findings of fact and conclusions of law. All proposed findings of fact submitted by all parties are specifically addressed in the appendix to this recommended order.
Findings Of Fact Based on the stipulations of the parties and on the evidence received at the final hearing, I make the following findings of fact. The Petitioner submitted an application for a swimming pool operating permit to the Respondent. The Respondent denied the Petitioner's request for an operating permit, whereupon the Petitioner requested a variance from the Public Swimming and Bathing Facilities Advisory Review Board. The Board recommended favorable action on the request for variance, but by letter of July 29, 1988, the Petitioner was advised that the Respondent intended to deny the request for variance. The Petitioner's request for formal hearing followed. The Petitioner operates a public swimming pool in Grassy Key, Florida. The Petitioner has never obtained a permit to operate the pool from the Respondent. The floor and walls of the Petitioner's pool are covered with glazed tile. There is no evidence that the glazed tile on the floor and walls of the Petitioner's pool is anything other than ordinary glazed tile. The coefficient of friction for wet glazed tile is normally between .2 and .25. Approximately twenty-one percent of the surfaces of the floor and walls of the Petitioner's pool consists of grout. The grout is located between the tiles. The top surface of the grout is lower than the top surface of the tiles. The tiles covering the vast majority of the floor and walls of Petitioner's pool are medium blue to dark blue and black in color. Specifically, the tiles are not white or light pastel in color. The tiles covering the vast majority of the floor and walls of the Petitioner's pool reflect less light than would be reflected if they were white or light pastel in color. The more light present in a pool, the greater the ability to detect objects in the pool. A decrease in the amount of light in a pool increases the risk of objects in the pool not being detected. Light colors in pools also facilitate the ability to maintain proper sanitation. An epoxy coating could be placed on the floor and walls of the Petitioner's pool for approximately $1,500.00. Such a coating would improve the safety of the pool by making the pool surfaces more slip resistant. By reason of the glazed tile surface, the Petitioner's pool is a safety hazard to the public. It is not difficult to see people on the bottom of the Petitioner's pool during day or night operation, even though the pool is dark in color and does not have the characteristic of reflecting, rather than absorbing light. Objects on the bottom of the pool are visible from the pool deck. The color of the pool does not appear to be a significant safety hazard. The water clarity in Petitioner's pool is well above average. The color of the pool does not appear to cause any depth perception different from the depth perception problems inherent in any pool of water. Department inspection reports for the period 1981 through 1988 reveal no problems with cleaning the pool, reveal no findings of algae at all, and indicate that the operator of the pool has done a good job of maintaining the pool. The pool has been in continuous operation for over eight years and there have not been any accidents resulting from use of the pool.
Recommendation For all of the foregoing reasons, it is recommended that that Department of Health and Rehabilitative Services enter a final order in this case denying the Petitioner a variance from the "slip resistant" surface requirement of Rule 10D- 5.097(1), Florida Administrative Code, and granting the Petitioner a variance from the requirement of that rule that the pool floor and walls be "white or light pastel in color." DONE AND ENTERED this 15th day of May, 1989, at Tallahassee, Florida. MICHAEL M. PARRISH 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 15th day of May, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4561 The following are my specific rulings on all of the proposed findings of fact submitted by all parties. Findings proposed by Petitioner Paragraphs 1, 2, and 3: Rejected as not supported by persuasive competent substantial evidence. The Petitioner's expert testimony regarding the coefficient of friction of the tiles in question is not persuasive and has not been used as a basis for fact-finding in this case. The measurements made by the Petitioner's expert deviate dramatically from the measurements one would expect. There is no persuasive record basis to explain the deviation. The proffered suggestion that the amount of grout affected the measurements is not persuasive, because it is unlikely that the testing equipment came in contact with the grout, inasmuch as the surface of the grout is typically below the surface of the tiles. Paragraph 4: Accepted. Paragraph 5: Rejected as not supported by persuasive competent substantial evidence. (See discussion of Paragraphs 1, 2, and 3, above.) Paragraph 6: First clause (through the word "tiles") is accepted in substance. The remainder is rejected as not supported by persuasive competent substantial evidence. Paragraphs 7 through 20: Accepted in substance. Findings proposed by Respondent Paragraphs 1 through 6: Accepted. Paragraphs 7 through 9: Accepted in substance, but with numerous subordinate and unnecessary details omitted. Paragraph 10: First sentence rejected as subordinate and unnecessary details. Second sentence rejected as constituting argument rather than proposed findings of fact. Paragraphs 11 and 12: Accepted. Paragraph 13: Rejected as not completely accurate; the tiles in the subject pool reflect less light than is reflected by a white or pastel colored pool. Paragraph 14: Rejected as irrelevant, because even though the proposed statement is true, algae detection has not been a problem in the subject pool. Paragraph 15: Rejected as constituting subordinate and unnecessary details. Paragraph 16: Rejected for same reason as rejection of Paragraph 14. Paragraph 17: Rejected as being somewhat of an over statement. The subject pool is, however, less safe than a pool that complies with all of the applicable rule criteria. Paragraph 18: Rejected as not supported by persuasive competent substantial evidence. Although the Respondent's expert testified to the opinion proposed in this paragraph, I have not made any finding based on that opinion testimony, because the basis for the opinion is essentially unexplained in the record and appears to be more of a "feeling" than a "fact." Further, other evidence in the record indicates that depth perception in swimming pools is affected by a number of variables other than pool color. Paragraph 19: Rejected as irrelevant, as well as for the reasons discussed immediately above. Paragraph 20: Rejected as subordinate and unnecessary details. Paragraphs 21 through 23: Accepted in substance. Paragraph 24: Rejected as subordinate and unnecessary details. Paragraph 25: First sentence rejected as contrary to the greater weight of the evidence. The remainder of this paragraph is rejected as unnecessary repetition of previously proposed facts. COPIES FURNISHED: Mark A. Hruska, Esquire Vernis & Bowling, P.A. Post Office Drawer 529 Islamorada, Florida 33036 Morton Laitner, Esquire 401 North West 2nd Avenue Suite 5424 Miami, Florida 33128 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard 7 Tallahassee, Florida 32399-0700
Findings Of Fact Based on the evidence presented, the following facts were found: At all times pertinent to this case, Respondent held two active contractor's licenses issued by the State of Florida, RP 0033354 and CP 015029. Respondent's current address is 1316 Hoffner Avenue, Orlando, Florida 32809. At all times pertinent to this case, Respondent owned the firm Family Pools and did business as a pool contractor under that name. At no time did Respondent ever qualify his firm, under whose name he did business, with the Florida Construction Industry Licensing Board (CILB). On some date not specified, in June, 1980, Alphonse J. and Pauline L. Rodier contracted with Family Pools to build a pool at their residence at 601 Michigan Avenue, Englewood, Sarasota County, Florida for a price of 6,700. The contract was signed by Respondent for Family Pools. The pool price was to include a screened enclosure and deck, and the entire package was to be completed by July 4, 1980. The pool was paid for by two checks from Coast Federal Sayings and Loan Association in Sarasota from the proceeds of a home improvement loan and by a final check in the amount of $900 from the Rodiers, direct, on October 13, 1980. Respondent subcontracted the pool enclosure to Climatrol Screen Company of Enqlewood, Florida, for $2,065 but failed to pay this subcontractor. As a result, on November 26, 1980, Climatrol filed a lien against Rodier's property which was released only when the Rodiers paid an additional $790 which had not been satisfied by the Respondent. Respondent had satisfied part of the debt to Climatrol by relinquishing title to a truck he owned. On July 3, 1980, Family Pools contracted with Elmer J. and Carla T. Taylor, of Bunnell, Florida, to build an above-ground pool on their property for $4,800.00. The pool was to have a one year warranty against defective parts and a 20-year prorated replacement policy. According to the contract, the pool price included the pump, liner, filter, and walls, along with all other parts. The pool was constructed by employees of Family Pools about three or four weeks after the contract was signed. Not long after the pool was completed and filled, Mr. Taylor noticed that the vinyl liner was protruding out beneath the bottom of the metal retaining wall. His calls to Family Pools were never answered by Respondent with whom he asked to talk and repair work on this problem was not accomplished by the Respondent or Family Pools. Mr. Taylor had to do the work himself and Family Pools would not honor the warranty. Respondent offers the completion certificate executed by the Taylors on August 21, 1980,as evidence the pool was installed properly and the Taylors were satisfied. Mr. Taylor indicates he signed that certificate in blank under pressure from Respondent's agent, who cajoled him into doing it on the basis that if he did not, Family Pools could not be paid by the finance company under the installment sales contract. Also, during the period of the one year warranty, the pool pump burned out. Mr. Taylor had to replace that and pay for it himself, as the warranty was not honored. Respondent contends only a 90-day warranty on the pump, but that appears nowhere in the contract, which, in its description of the pool covered by the one year warranty, includes the pump. On August 29, 1980, Family Pools contracted with Janice Conover to build a swimming pool at her home in Venice, Florida for $4,780. The pool was to be completed approximately 30 days after excavation at the site. Between August 29, 1980, and December, 1980, Ms. Conover paid Family Pools a total of $4,741 by checks which were endorsed by "P. Vescera d/b/a Family Pools" or "Pasquale M. Vescera." On October 2, 1980, Respondent pulled a permit No. 7330- N from the Sarasota County Building Department, in his own name, to construct Ms. Conover's pool. In February, 1981, when the pool was only about fifty percent complete, Respondent ceased work on Ms. Conover's pool without giving her any notice or reason therefor. When Respondent stopped work, he had only dug the hole for the pool. The liner had been delivered but was not installed. The braces were there but not affixed, notwithstanding Ms. Conover had paid almost in full for the pool. As a result, she contracted with Richard Thompson, Respondent's former employee, to finish the work Respondent had started because at this point she could not find the Respondent. Thompson installed the brackets, the liner, and the deck. She had to pay extra for the pump, the chemicals, and the sweep--all of which, except for the sweep, she had paid for when she paid Respondent's price. Respondent never returned to complete Ms. Conover's pool. On July 7, 1980, Family Pools contracted with Robert A. and Florence L. Peipher to build a pool at their property in Port Charlotte, Florida, for a price of $6,900. Between July 7 and November 28, 1980, the Peiphers paid Family Pools, by checks, the sum of $6,905. All checks-were endorsed for deposit, "P. Vescera d/b/a Family Pools." The pool price was to include a screened pool enclosure and in September 1980, Family Pools contracted with Climatrol to build the screened enclosure for Peipher's pool for $1,807. Respondent and Family Pools failed to pay Climatrol for the enclosure and as a result, Climatrol filed a lien against the Peipher's property for $1,807 which was satisfied on March 9, 1981, by the Peiphers who paid Climatrol the amount owed. On March 2, 1981, the Peiphers filed a complaint against Respondent with the Contractor License Division of the Charlotte County Building Department because of Respondent's failure to pay Climatrol and the resultant cost to them. As a result of this complaint and the subsequent investigation into the allegations, the matter was referred to the Charlotte County Building Board which, at its meeting on May 7, 1981, after notice to Respondent, voted to revoke Respondent's permit privileges in Charlotte County until he made restitution to the Peiphers and to notify the State of Respondent's actions requesting state action against his license. Respondent suffered severe financial setbacks just about the time of these incidents. He was hospitalized for a period of five or six weeks and upon his return to his business found that he had been "robbed" of approximately $50,000 worth of fully paid for inventory. When he reported the shortage to the local law enforcement officials, they told him that since there was no evidence of a breaking in, they could do nothing about it. In addition, he could not recover from his insurance company for the same reason. There was no evidence other than Respondent's sworn testimony that there was a shortage or that he reported the loss to either agency. Respondent has been in the pool business in Florida for five years and in New Jersey for 32 years before that. He feels the cause of his problem is the fact that he trusted the people who worked for him who took advantage of him. During the entire period of time he was in business in Florida he took no money from the company for his personal use, living instead on income from a mortgage he owned in New Jersey. He subsequently filed for bankruptcy on March 9, 1981. The $15,000 in current accounts receivable he had on the books at that time was utilized in the bankruptcy proceeding to pay creditors. He got-none of it. He is now working in Orlando, Florida, for a pool rehabilitation company owned by his wife and her father. Respondent alleges that on July 15, 1980, he paid Richard Thompson $1,100 to complete work started on several pools, including that of Ms. Conover. Review of the prior findings of fact, however, shows that the contract with Ms. Conover was not entered into until approximately 45 days after Respondent supposedly made this payment to cover the work left undone on her pool. In light of that development, I find his contention completely without merit or basis in fact. Respondent admits that people were hurt as a result of his actions and he regrets this. However, he claims these few incidents are insignificant when compared with the over 500 satisfied customers he alleges he has served over the years. Finally, Respondent contends that early in 1980, after being advised that he had passed the test to be a certified pool contractor, he wrote to Petitioner and, after advising how he was registered and doing business, asked if he needed to make any changes in license registration. He did in fact do this and received no reply. He thereafter assumed he was acting correctly in that regard and that appears to be a justified assumption.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent's license as a contractor be suspended for two years and that he be assessed an administrative fine of $500. RECOMMENDED this 16th day of May, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 16th day of May, 1983. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Pasquale M. Vescera 1316 Hoffner Avenue Orlando, Florida 32809 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact The Warwick Condominium Association, Inc., operates a swimming pool at its condominium located at 5100 DuPont Boulevard, Fort Lauderdale, Florida. The swimming pool is licensed as a commercial swimming pool, and it has satisfactorily passed the inspections conducted by Respondent over the past two years. The Warwick pool has a perimeter gutter system which meets Respondent's regulations. The Condominium Association plans to renovate the pool. The renovation plans, which must be approved by Respondent, involve changing the pool from the approved gutter system to a recessed automatic surface skimmer system. The pool dimensions are approximately 25' x 46', and the pool surface water area is approximately 1,035 square feet. Respondent's rules prohibit the use of recessed automatic surface skimmers for pools larger than 800 square feet and for pools wider than 20'. Therefore, Petitioner's proposed modifications to the pool do not meet existing rule requirements for commercial pools. The pool renovation plans were not approved by Respondent since the plans do not meet the standards set by the Department's rules. Petitioner submitted its proposed plans to the independent Public Swimming and Bathing Facilities Advisory Review Board, and that Board recommended to the Department that Petitioner's request for a variance from the Department's rules be granted. The Department denied Petitioner's request for a variance. There is no evidence that the Department considered the Advisory Review Board's recommendation to approve a variance, and there is no evidence as to what standards the Department has used in approving variances, if any variances have been approved. The location of the Warwick pool is unique and causes the Warwick to experience extraordinary problems in maintaining the cleanliness of the pool. The Warwick pool is located adjacent to the Intracoastal Waterway and a bascule bridge crossing the Waterway. The pool receives an extraordinary amount of highway soot and dirt due to its location next to the elevated highway and bridge. Additionally, grease and oils from boats idling next to the swimming pool waiting for the bridge to open are deposited on the surface of the Warwick swimming pool. Swimming pools at nearby condominiums are not located directly on the Waterway. They are located either on the roofs of those condominium buildings or on the other side of those buildings away from the Waterway. Accordingly, the location of the Warwick pool is unusual. A prevailing southeast wind blows across the Waterway and across the Warwick pool. It then hits the wall of the condominium building and reverses its direction. It creates a great deal of turbulence on the surface water of the pool, pushing the water and the debris on the surface of the water to the south wall of the pool which is located at the pool's deep end. The dirt, debris, grease, and oil deposited by the vehicular and boat traffic accumulate at, and adhere to, the south wall of the pool at the deep end. Cleaning the tile at the south end of the pool requires constant effort. The accumulation of grease and oil at the deep end of the swimming pool is unusual. The perimeter gutter at the deep end of the Warwick pool is slightly higher than the gutters around the other three sides of the pool. Accordingly, the surface water does not overflow the gutter at the deep end except when there are a number of bathers in the pool, thereby altering the water level and creating additional turbulence. At such times and during heavy rains, the gutters flood, and the debris and grease are carried back into the pool where they come in contact with bathers. There is no guarantee that attempting to lower the level of the south gutter will make the perimeter gutter system ideally level. The condominium manager and one of the condominium owners, each of whom have substantial expertise and experience in constructing and operating swimming pools, have determined that the unique problems of the Warwick pool can be resolved by the installation of recessed automatic surface skimmers at the south end of the pool. All witnesses in this proceeding agree that proper skimmer location is determined by the prevailing wind. The amount of surface water removed is the same for both the perimeter gutter system and the recessed automatic surface skimmer system. The accessibility to debris is greater with a gutter system than with the skimmer system since the skimmer system collects debris and retains it in baskets which are then manually emptied. There are greater losses of water with the gutter system than with the skimmer system. Department employees visited the Warwick pool on one occasion for approximately 45 minutes. They placed the gutter system into operation and found that it was working. They testified that the Warwick's system is operational and therefore should simply be improved. The Warwick's witnesses agreed that the system is operational but have shown that the system does not operate properly based upon their extended familiarity with that particular swimming pool. The opinion of the experts with extended experience with the Warwick pool has been given more weight than those who visited the pool on one occasion for less than-one hour, particularly since the Department's witnesses admitted that the conditions at the Warwick during their site visit were not the normal conditions. Although the Department's witnesses clearly have a preference for gutter systems over recessed skimmer systems, no evidence was offered to show that the skimmer system (allowed by the Department in smaller swimming pools) would pose a threat to the health or safety of the bathing public should a variance be granted.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT: A Final Order be entered approving Petitioner's request for a variance. DONE and RECOMMENDED this 9th day of February, 1989, at Tallahassee, Florida. LINDA M. RIGOT 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 day 9th day of February, 1989. APPENDIX TO RECOMMENDED ORDER D0AH CASE NO. 88-3045 Petitioner's proposed findings of fact numbered 1 4, 5, 7-14, 16, and 17 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 2 has been rejected as being irrelevant to the issues under consideration in this cause. Petitioner's proposed finding of fact numbered 6 has been rejected as being subordinate to the issues under consideration herein. Petitioner's proposed findings of fact numbered 3 and 15 have been rejected as not constituting findings of fact but rather as constituting argument of counsel or conclusions of law. Respondent's proposed findings of fact numbered 1-3 and 9 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 4- 6, 10, and 11 have been rejected as not being supported by the weight of the evidence in this cause. Respondent's proposed findings of fact numbered 7 and 8 have been rejected as being contrary to the evidence presented herein. Respondent's proposed finding of fact numbered 12 has been rejected as being irrelevant to the issues under consideration herein. COPIES FURNISHED: Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, HRS Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Lois J. Minetti, Manager Warwick Condominium Association, Inc. 5100 DuPont Boulevard Fort Lauderdale, Florida 33308 Martha F. Barrera, Esquire Department of Health and Rehabilitative Services 2421 Southwest Sixth Avenue Fort Lauderdale, Florida 33315
The Issue Whether the claimants herein are entitled to payment from the Construction Industries Recovery Fund and, if so, the amount of the payment to which each claimant is entitled. Whether the license of the Petitioner is subject to automatic suspension pursuant to Section 489.143(7), Florida Statutes (Supp. 1998).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Fund is established by Section 489.140, Florida Statutes, for the purpose of reimbursing those persons who meet the eligibility requirements set forth in Section 489.141, Florida Statutes. The Board is the entity responsible for reviewing applications for payment from the Fund and entering orders approving or disapproving the applications. Sections 489.140(1) and 489.143(1), Florida Statutes. Mr. Kiselius is a licensed residential pool/spa contractor, having been first issued such a license in 1984. Mr. Kiselius's license is currently on inactive status, but at the times material to this action, Mr. Kiselius's license was active. Pool Masters was a Florida corporation incorporated on August 10, 1995. Frederick H. Martin and Abraham Zafrani were the sole shareholders of the corporation, and Mr. Martin was the President and Secretary of the corporation, and Mr. Zafrani was the Vice-President and Treasurer. From on or about October 24, 1995, until November 14, 1997, Mr. Kiselius was the qualifying agent for Pool Masters. The record does not reflect the date on which Pool Masters was issued its certificate of authority allowing it to engage in contracting as a business organization, but it was assigned Qualified Business Organization License Number QB0002327 on or about November 6, 1996. Pool Masters filed for bankruptcy pursuant to Chapter 7 of the United States Bankruptcy Code on January 1, 1998, and the corporation was administratively dissolved on October 16, 1998. DOAH Case No. 99-1665: Santibanez and Pappas Eugene Santibanez and Alexander Pappas entered into a contract with Pool Masters for construction of a swimming pool. The contract was executed on or about March 25, 1997. The total price stated in the contract was $21,000.00; a change order was executed on November 4, 1997, for an additional price of $2,890.00. Pool Masters represented to Mr. Santibanez and Mr. Pappas that it was a licensed swimming pool contractor. Pool Masters began work on the pool on or about May 17, 1997. Mr. Santibanez and Mr. Pappas made payments to Pool Masters pursuant to the contract, and Pool Masters excavated the hole for the pool, put in the foundation, and poured the concrete. Pool Masters ceased work on the swimming pool in late November 1997, after the concrete was poured. A week later, Mr. Santibanez heard that Pool Masters had declared bankruptcy. At the time Pool Masters ceased work on the pool, Mr. Santibanez and Mr. Pappas had paid Pool Masters a total of $19,690.00 for work done pursuant to the contract and change order. Although Pool Masters represented to them that the payments would be used to pay subcontractors and materialmen, there were subcontractors and materialmen who were not paid. At least one lien was filed against Mr. Santibanez's and Mr. Pappas's property, and they paid the subcontractors and materialmen directly in order to get the liens released. On January 17, 1998, the United States Bankruptcy Court for the Southern District of Florida issued a Notice of Commencement of Case Under Chapter 7 of the Bankruptcy Code, showing that Pool Masters had filed for bankruptcy on January 7, 1998. On or about March 11, 1998, Mr. Santibanez and Mr. Pappas submitted a Construction Industries Recovery Fund Claim Form to the Board, naming Pool Masters as the contractor. In an order entered April 20, 1998, the bankruptcy court lifted the automatic stay to allow Mr. Santibanez and Mr. Pappas to file suit against Pool Masters. Mr. Santibanez and Mr. Pappas filed a complaint against Pool Masters in the Circuit Court for the Seventeenth Judicial Circuit in Broward County, Florida, seeking damages for breach of the contract for construction of the pool. Mr. Santibanez and Mr. Pappas alleged in the complaint that Pool Masters had failed to complete the work; failed to perform in a reasonable and timely manner and abandoned the project for more than 90 days which is a violation of F.S. 489.129(1)(k) [Section 489.129(1)(j)];[ 3/ ] falsely represented that monies paid to them were paid to materialmen and sub- contractors which resulted in financial harm to the Plaintiffs which is a violation of F.S. 489.129(1)(l) [Section 489.129(1)(k)];[ 4/ ] committed mismanagement and misconduct which caused Plaintiffs financial harm as of [sic] liens were recorded as against the Plaintiff's [sic] home in violation of F.S. 489.129(1)(h)(1) [Section 489.129(1)(g)1.];[ 5/ ] f [sic]. committed mismanagement and misconduct which caused Plaintiffs financial harm in that the percentage of completion is less than the percentage of the total contract price paid in violation of F.S. 489.129(1)(h)(2) [Section 489.129(1)(g)2.].[ 6/ ] Mr. Santibanez and Mr. Pappas further alleged in the complaint that the cost to complete the pool after construction was abandoned by Pool Masters was $17,975.50, and they included in the complaint an itemized list of expenditures to support their claim. The circuit court entered a Default Final Judgment on August 4, 1998, awarding Mr. Santibanez and Mr. Pappas $17,675.50, to be recovered from Pool Masters, plus interest at the statutory rate. In a letter from their attorney dated August 12, 1998, Mr. Santibanez and Mr. Pappas submitted to the Board additional documents to support their claim against the Construction Industries Recovery Fund, based on their Default Final Judgment against Pool Masters. The final report of the Trustee of Pool Masters' bankruptcy estate, dated December 1, 1999, indicated that Pool Masters had no funds remaining after disbursement for administrative expenses. Mr. Santibanez and Mr. Pappas did not receive any funds from the bankruptcy estate or any other source to satisfy the judgment against Pool Masters. Mr. Santibanez and Mr. Pappas satisfy the statutory criteria for eligibility for payment from the Fund in the amount of $17,675.50. DOAH Case No. 99-1666: Klaus and Lucrecia Mueller Klaus and Lucrecia Mueller entered into a contract with Pool Masters for construction of a swimming pool. The contract was executed on or about February 24, 1997. The total price stated in the contract was $16,400.00. Pool Masters represented to Mr. and Mrs. Mueller that it was a licensed swimming pool contractor. Pool Masters began work on the pool in Spring 1997, and Mr. and Mrs. Mueller made payments to Pool Masters pursuant to the contract. Pool Masters excavated the hole for the pool, installed the steel frame, poured gunnite at the shallow end of the pool, and installed the brick and tile around the pool. Pool Masters last worked on the swimming pool in late November 1997. At the time Pool Masters ceased work on the pool, Mr. and Mrs. Mueller had paid Pool Masters approximately $12,900.00 for work done pursuant to the contract. Although Pool Masters represented to them that the payments would be used to pay subcontractors and materialmen, there were subcontractors and materialmen who were not paid. Liens were filed against Mr. and Mrs. Mueller's property, and they paid the subcontractors and materialmen directly in order to get the liens released. On January 17, 1998, the United States Bankruptcy Court for the Southern District of Florida issued a Notice of Commencement of Case Under Chapter 7 of the Bankruptcy Code, showing that Pool Masters had filed for bankruptcy on January 7, 1998. On or about March 11, 1998, Mr. and Mrs. Mueller submitted a Construction Industries Recovery Fund Claim Form to the Board, naming Pool Masters as the contractor. In an order entered April 20, 1998, the bankruptcy court lifted the automatic stay to allow Mr. and Mrs. Mueller to file suit against Pool Masters. Mr. and Mrs. Mueller filed a complaint against Pool Masters in the Circuit Court for the Seventeenth Judicial Circuit in Broward County, Florida, seeking damages for breach of the contract for construction of the pool. Mr. and Mrs. Mueller alleged in the complaint that Pool Masters had failed to complete the work; failed to perform in a reasonable and timely manner and abandoned the project for more than 90 days which is a violation of F.S. 489.129(1)(k) [Section 489.129(1)(j)];[ 7/ ] falsely represented that monies paid to them were paid to materialmen and sub- contractors which resulted in financial harm to the Plaintiffs which is a violation of F.S. 489.129(1)(l) [Section 489.129(1)(k)];[ 8/ ] committed mismanagement and misconduct which caused Plaintiffs financial harm as of [sic] liens were recorded as against the Plaintiff's [sic] home in violation of F.S. 489.129(1)(h)(1) [Section 489.129(1)(g)1.];[ 9/ ] f [sic]. committed mismanagement and misconduct which caused Plaintiffs financial harm in that the percentage of completion is less than the percentage of the total contract price paid in violation of F.S. 489.129(1)(h)(2) [Section 489.129(1)(g)2.].[ 10/ ] Mr. and Mrs. Mueller further alleged in the complaint that the cost to complete the pool after construction was abandoned by Pool Masters was $13,299.51. The matter was presented to the circuit court, ex parte, upon Mr. and Mrs. Mueller's Motion for Default Final Judgment. The court entered a Default Final Judgment in June 1998, awarding Mr. and Mrs. Mueller $13,299.51, to be recovered from Pool Masters, plus interest at the statutory rate. In a letter from their attorney dated June 23, 1998, Mr. and Mrs. Mueller submitted to the Board additional documents to support their claim against the Construction Industries Recovery Fund, based on their Default Final Judgment against Pool Masters. The final report of the Trustee of Pool Masters' bankruptcy estate, dated December 1, 1999, indicated that Pool Masters had no funds remaining after disbursement for administrative expenses. Mr. and Mrs. Mueller did not receive any funds from the bankruptcy estate or any other source to satisfy their judgment against Pool Masters. Mr. and Mrs. Mueller satisfy the statutory criteria for eligibility for payment from the Fund in the amount of $13,299.51. DOAH Case No. 99-1667: Mario and Martha Alboniga Mario and Martha Alboniga entered into a contract with Pool Masters for construction of a swimming pool. The contract was executed on or about March 17, 1997. The total price stated in the contract was $24,000.00. Pool Masters represented to Mr. and Mrs. Alboniga that it was a licensed swimming pool contractor. Pool Masters began work on the pool on November 10, 1997, and Mr. and Mrs. Alboniga made payments to Pool Masters pursuant to the contract. Pool Masters excavated the hole for the pool and poured the concrete form of the pool. The last day Pool Masters worked on the swimming pool was November 19, 1997. Mr. and Mrs. Alboniga later heard that Pool Masters had declared bankruptcy. At the time Pool Masters ceased work on the pool, Mr. and Mrs. Alboniga had paid Pool Masters a total of $15,200.00 for work done pursuant to the contract. Although Pool Masters represented to them that the payments would be used to pay subcontractors and materialmen, there were subcontractors and materialmen who were not paid. Liens were filed against Mr. and Mrs. Alboniga’s property, and they paid the subcontractors and materialmen directly in order to get the liens released. On January 17, 1998, the United States Bankruptcy Court for the Southern District of Florida issued a Notice of Commencement of Case Under Chapter 7 of the Bankruptcy Code, showing that Pool Masters had filed for bankruptcy on January 7, 1998. On or about March 11, 1998, Mr. and Mrs. Alboniga submitted a Construction Industries Recovery Fund Claim Form to the Board, naming Pool Masters as the contractor. In an order entered April 20, 1998, the bankruptcy court lifted the automatic stay to allow Mr. and Mrs. Alboniga to file suit against Pool Masters. Mr. and Mrs. Alboniga filed a complaint against Pool Masters in the Circuit Court for the Seventeenth Judicial Circuit in Broward County, Florida, seeking damages for breach of the contract for construction of the pool. Mr. and Mrs. Alboniga alleged in the complaint that Pool Masters had failed to complete the work; failed to perform in a reasonable and timely manner and abandoned the project for more than 90 days which is a violation of F.S. 489.129(1)(k) [Section 489.129(1)(j)];[ 11/ ] falsely represented that monies paid to them were paid to materialmen and sub- contractors which resulted in financial harm to the Plaintiffs which is a violation of F.S. 489.129(1)(l) [Section 489.129(1)(k)];[ 12/ ] committed mismanagement and misconduct which caused Plaintiffs financial harm as of [sic] liens were recorded as against the Plaintiff's [sic] home in violation of F.S. 489.129(1)(h)(1) [Section 489.129(1)(g)1.];[ 13/ ] f [sic]. committed mismanagement and misconduct which caused Plaintiffs financial harm in that the percentage of completion is less than the percentage of the total contract price paid in violation of F.S. 489.129(1)(h)(2) [Section 489.129(1)(g)2.].[ 14/ ] Mr. and Mrs. Alboniga further alleged in the complaint that the cost to complete the pool after construction was abandoned by Pool Masters was $10,541.77. The circuit court entered a Final Judgment "pursuant to stipulation" on August 4, 1998, awarding Mr. and Mrs. Alboniga $10,541.77, to be recovered from Pool Masters, plus interest at the statutory rate. In a letter from their attorney dated August 12, 1998, Mr. and Mrs. Alboniga submitted to the Board additional documents to support their claim against the Construction Industries Recovery Fund, based on their Final Judgment against Pool Masters. The final report of the Trustee of Pool Masters' bankruptcy estate, dated December 1, 1999, indicated that Pool Masters had no funds remaining after disbursement for administrative expenses. Mr. and Mrs. Alboniga did not receive any funds from the bankruptcy estate or any other source to satisfy their judgment against Pool Masters. Mr. and Mrs. Alboniga satisfy the statutory criteria for eligibility for payment from the Fund in the amount of $10,541.77. DOAH Case No. 99-1668: Salvator Militello and Sharon Sidorski Salvator Militello and Sharon Sidorski entered into a contract with Pool Masters for construction of a swimming pool. The contract was executed on or about April 6, 1997. The total price stated in the contract was $24,295.00. Pool Masters represented to Mr. Militello and Ms. Sidorski that it was a licensed swimming pool contractor. Mr. Militello and Ms. Sidorski made payments to Pool Masters pursuant to the contract. Pool Masters excavated the hole for the pool and spa, installed basic plumbing, and poured the concrete for the pool. Pool Masters last worked on the swimming pool in October 1997. At the time Pool Masters ceased work on the pool, Mr. Militello and Ms. Sidorski had paid Pool Masters $19,389.00 for work done pursuant to the contract. Although Pool Masters represented to them that the payments would be used to pay subcontractors and materialmen, there were subcontractors and materialmen who were not paid. Liens were filed against Mr. Militello's and Ms. Sidorski's property, and they paid the subcontractors and materialmen directly in order to get the liens released. On January 17, 1998, the United States Bankruptcy Court for the Southern District of Florida issued a Notice of Commencement of Case Under Chapter 7 of the Bankruptcy Code, showing that Pool Masters had filed for bankruptcy on January 7, 1998. On or about March 11, 1998, Mr. Militello and Ms. Sidorski submitted a Construction Industries Recovery Fund Claim Form to the Board, naming Pool Masters as the contractor. In an order entered April 20, 1998, the bankruptcy court lifted the automatic stay to allow Mr. Militello and Ms. Sidorski to file suit against Pool Masters. Mr. Militello and Ms. Sidorski filed a complaint against Pool Masters in the Circuit Court for the Seventeenth Judicial Circuit in Broward County, Florida, seeking damages for breach of the contract for construction of the pool. Mr. Militello and Ms. Sidorski alleged in the complaint that Pool Masters had failed to complete the work; failed to perform in a reasonable and timely manner and abandoned the project for more than 90 days which is a violation of F.S. 489.129(1)(k) [Section 489.129(1)(j)];[ 15/ ] falsely represented that monies paid to them were paid to materialmen and sub- contractors which resulted in financial harm to the Plaintiffs which is a violation of F.S. 489.129(1)(l) [Section 489.129(1)(k)];[ 16/ ] committed mismanagement and misconduct which caused Plaintiffs financial harm as of [sic] liens were recorded as against the Plaintiff's [sic] home in violation of F.S. 489.129(1)(h)(1) [Section 489.129(1)(g)1.];[ 17/ ] f [sic]. committed mismanagement and misconduct which caused Plaintiffs financial harm in that the percentage of completion is less than the percentage of the total contract price paid in violation of F.S. 489.129(1)(h)(2) [Section 489.129(1)(g)2.].[ 18/ ] Mr. Militello and Ms. Sidorski further alleged in the complaint that the cost to complete the pool after construction was abandoned by Pool Masters was $13,544.00 and that they paid $1,641.68 to satisfy liens and unpaid subcontractors and materialmen, for total damages of $15,185.68. The circuit court entered a Final Judgment "pursuant to stipulation" on August 4, 1998, awarding Mr. Militello and Ms. Sidorski $15,185.68, to be recovered from Pool Masters, plus interest at the statutory rate. In a letter from their attorney dated August 12, 1998, Mr. Militello and Ms. Sidorski submitted to the Board additional documents to support their claim against the Construction Industries Recovery Fund, based on their Final Judgment against Pool Masters. The final report of the Trustee of Pool Masters' bankruptcy estate, dated December 1, 1999, indicated that Pool Masters had no funds remaining after disbursement for administrative expenses. Mr. Militello and Ms. Sidorski did not receive any funds from the bankruptcy estate or any other source to satisfy their judgment against Pool Masters. Mr. Militello and Ms. Sidorski satisfy the statutory criteria for eligibility for payment from the Fund in the amount of $15,185.68. DOAH Case No. 00-0024: Jack and Paula Tieger Jack and Paula Tieger entered into a contract with Pool Masters for construction of a swimming pool. The contract was executed on or about December 17, 1995. The total price stated in the contract was $28,200.00. Pursuant to the contract, Pool Masters built a pool and screen enclosure, and Mr. and Mrs. Tieger paid Pool Masters the price specified in the contract. Mr. and Mrs. Tieger were not, however, satisfied with the work done by Pool Masters, and, in or around 1997, they filed a complaint for breach of contract against Pool Masters in the Circuit Court of the Seventeenth Judicial Circuit, in Broward County, Florida. In the complaint, Mr. and Mrs. Tieger alleged that Pool Masters had breached the contract: By failing to adequately explain the technical terms used in the Agreement to the TIEGERS; By failing to install a vacuum line with valve as specified in the Agreement; By failing to install anti-corrosive handrails in the swimming pool; By failing to properly install and/or provide a properly functioning waterfall as specified in the Agreement; By failing to properly fill the area behind the waterfall; By unilaterally, and or the TIEGERS' [sic] objection, placing a tile with the "Pool Masters" logo on the steps heading into the pool: By failing to re-route the TIEGERS' [sic] sprinkler system in a timely manner; By failing to advise the TIEGERS that they were going to need to pay for and install a separate circuit breaker box as part of the installation of the swimming pool; and By failing to install the second screen door as specified in the Agreement. Mr. and Mrs. Tieger did not identify the amount of damages they allegedly suffered as a result of Pool Masters's alleged breach of contract. Mr. and Mrs. Tieger were not aware that Pool Masters had declared bankruptcy until January 1998, when Mrs. Tieger went to Pool Masters' office and found the notice on the door. A non-jury trial was held before the circuit court on March 5, 1998; Pool Masters did not attend the trial. In a Final Judgment entered on March 25, 1998, the court awarded Mr. and Mrs. Tieger $4,200 as compensatory damages to be recovered from Pool Masters. In a Proof of Claim dated May 13, 1998, and filed with the United States Bankruptcy Court of the Southern District of Florida, Mr. and Mrs. Tieger submitted an unsecured claim against Pool Masters' bankruptcy estate in the amount of $7,300.00, which represented the compensatory damages awarded in the final judgment, together with attorney's fees and costs. Mr. and Mrs. Tieger have not collected any portion of their judgment against Pool Masters. Mr. and Mrs. Tieger submitted to the Board a Construction Industries Recovery Fund Claim Form dated December 5, 1998, and the Board awarded Mr. and Mrs. Tieger $800.00, representing the cost of the vacuum line with valve and the second screen door which Pool Masters had not installed. Mr. and Mrs. Tieger do not satisfy the statutory criteria for eligibility for payment from the Fund. Mr. and Mrs. Tieger failed to establish that they filed their claim with the Board within two years of the date they discovered the alleged deficiencies in the pool, and they failed to establish that the final judgment against Pool Masters was based on a violation of Section 489.129(1)(g), (j), or (k), Florida Statutes (Supp. 1998). The evidence presented herein is not sufficient to establish that Mr. Kiselius is the licensee against whom the claimants obtained final judgments.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, 25/ it is RECOMMENDED that the Construction Industry Licensing Board: Enter final orders as follows: In DOAH Case No. 99-1665, finding Eugene Santibanez and Alexander Pappas eligible for payment from the Fund in the amount of $17,675.00, in satisfaction of a final judgment against Pool Masters, Inc.; In DOAH Case No. 99-1666, finding Klaus and Lucrecia Mueller eligible for payment from the Fund in the amount of $13,299.51, in satisfaction of a final judgment against Pool Masters, Inc.; In DOAH Case No. 99-1667, finding Mario and Martha Alboniga eligible for payment from the Fund in the amount of $10,541.77, in satisfaction of a final judgment against Pool Masters, Inc.; In DOAH Case No. 99-1668, finding Salvator Militello and Sharon Sidorski eligible for payment from the Fund in the amount of $15,185.68, in satisfaction of a final judgment against Pool Masters, Inc.; and In DOAH Case No. 00-0024, dismissing the claim of Jack and Linda Tieger for payment from the Fund. Determine that Christopher P. Kiselius is not the "licensee" whose license is subject to automatic suspension pursuant to Section 489.143(7), Florida Statutes (Supp. 1998), as a result of payments to the claimants in DOAH Case Nos. 99- 1665, 99-1666, 99-1667, and 99-1668. DONE AND ENTERED this 31st day of August, 2000, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2000.
The Issue Count I: Whether Rule 424.2.17.1.9 of the Florida Building, Code, through an amendment of Rule 9B-3.047, Florida Administrative Code, is an invalid exercise of delegated legislative authority because it: (a) enlarges, modifies, or contravenes the statute; (b) exceeds the statutory rule-making authority of the Florida Building Commission; (c) is arbitrary and capricious; and/or (d) is not based on competent substantial evidence. Count II: Whether this Rule was adopted contrary to, and in violation of, the Florida Building Commission's stated rule- making procedure due to a prior settlement. Count III: Whether, with regard to this Rule, the Florida Building Commission failed to adopt a less costly regulatory alternative; and Count IV: Whether Chapter 515, Florida Statutes, is unconstitutional.1/
Findings Of Fact The Code is a unified statewide set of building codes authorized by Chapters 98-287, 2000-141, 2001-186, 2001-372, and 2002-1, Laws of Florida. The Commission is the state agency authorized by statute to adopt, amend, promulgate and maintain the Code. The rule under challenge is Section 424.2.17.1.9 of the Florida Building Code which provides: All doors and windows providing direct access from the home to the pool shall be equipped with an exit alarm complying with UL2017 that has a minimum sound pressure rating of 85dBA at 10 feet and is either hard-wired or of the plug-in type. The exit alarm shall produce a continuous audible warning when the door and its screen are opened. The alarm shall sound immediately after the door is opened and be capable of being heard throughout the house during normal household activities. The alarm shall be equipped with a manual means to temporarily deactivate the alarm for a single opening. Such deactivation shall last no longer than 15 seconds. The deactivation switch shall be located at least 54 inches above the threshold of the door. Exceptions: Screened or protected windows having a bottom sill height of 48 inches or more measured from the interior finished floor at the pool access level. Windows facing the pool on floor above the first story. Screened or protected pass-through kitchen windows 42 inches or higher with a counter beneath. All doors providing direct access from the home to the pool must be equipped with a self-closing, self-latching device with positive mechanical latching/locking installed a minimum of 54 inches above the threshold, which is approved by the authority having jurisdiction. Section 424.2.17.1.9, above, was adopted by the Commission by reference when it adopted Rule 9B-3.047, Florida Administrative Code. The Florida Administrative Code indicates this amendment to Rule 9B-3.047, also adopted the November 6, 2001, Florida Building Code and took effect December 16, 2001.4/ Previous amendments to Rule 9B-3.047, Florida Administrative Code, had been effective on November 28, 2000, and February 7, 2001. Although several portions of the rule were addressed at hearing, see infra., the main thrust of this rule challenge is that Petitioner and Intervenor contend that the rule discriminates against battery-powered alarms in favor of hard- wired or plug-in alarms for doors and windows accessing a swimming pool. Prior drafts of 424.2.17.1.9 and prior provisions of the Standard Building Code and other swimming pool codes relating to exit alarms do not require that exit alarms be "hard-wired" or "plug-in" type alarms. The Standard Building Code does not eliminate battery-powered exit alarms as a means for limiting access to swimming pool areas. No state besides Florida has eliminated them as an option. The rule only applies to new pools or new home construction. FPSA is a non-profit statewide construction trade association of 850 company members, with 10,000 employees, whose membership includes contractors engaged in swimming pool and spa construction, repair, renovation, and service, and whose work is regulated by the Code. It promotes the swimming pool industry through educational business-to-business programs and provides legislative and administrative rule monitoring and lobbying services on behalf of its membership. The subject matter of the challenged rule is within FPSA's scope of interest and activity as a trade association. Only a licensed electrician or alarm specialist can legally install hard-wired alarms. Anyone, including the homeowner; pool contractors, such as FPSA members; or a general contractor, such as Intervenor, can install a battery-powered window or door alarm for a swimming pool. The rule has resulted in members' potential customers delaying decisions to purchase swimming pools. The rule has resulted in FPSA pool contractors having to employ licensed electricians and alarm specialists to do work swimming pool contractors previously could do themselves. Awaiting completion of work by these specialists can delay the approval (Certificate of Completion) of the pool work by building inspectors. Only licensed electricians can legally install swimming pool pumps and pool lights. Awaiting completion of this work can also delay the Certificate of Completion. The type of alarm used affects the swimming pool contractor's cost of doing the project and ultimately impacts the swimming pool contractor's "bottom line." The record is silent about the cost of plug-in alarms. Installation of hard- wired devices currently on the market which would meet the requirements of the challenged rule have been costing FPSA members approximately $400.00-$500.00 for two windows and two doors. This expense may be increased by the number of doors and windows accessing the pool by approximately $150.00-$160.00 per extra door and $70.00 per extra window. Battery alarms cost about $40.00 apiece. Intervenor is a member of the Florida Home Builders' Association. He is a Florida-licensed general contractor. As such, he is required to comply with the Code. In recent years, he has operated through a franchise agreement with Arthur Rutenberg Homes. Ninety-eight percent of his business is construction of new, custom-built, single family residences. Approximately one-third of the homes Intervenor builds include swimming pools as an amenity. Most of his homes range in price from $300,000 to $1,200,000. Intervenor usually hires swimming pool installation sub-contractors, such as members of FPSA, who obtain a separate permit for construction of any pool. Intervenor leaves it to the swimming pool contractor to call for inspections and to see to it that the pool is compatible with all existing building codes, but Intervenor has ultimate responsibility for his new residences' final Code compliance. For a new home, Intervenor usually subcontracts to have hard-wired pool alarm systems installed for approximately $695.00 for two doors and four windows in conjunction with a home security system which itself costs approximately $695.00. This expense can be increased by the number of doors and windows accessing the pool. When a hard-wired alarm is installed in a house under construction after drywall has been installed, Intervenor has to tear out the drywall so the wiring for the alarm can be run in, and then he must re-install the drywall. This method becomes necessary in the few older homes he upgrades with a swimming pool and other amenities or where a new home customer decides to install a pool in mid-construction of the house after further financing has been obtained. This method and expense would not be incurred if battery-powered alarms were allowable under the Code. During the years 2000-2001, the Florida Building Commission was engaged in a marathon rule adoption procedure designed to integrate into the Code, and thereby render uniform, all the competing local building codes within the State of Florida. The purpose thereof was to fulfill the intent of the Florida Legislature that once a uniform basis was established, any amendments to specific components, such as 424.2.17.1.9, would thereafter proceed on triennial or annual cycles. To reach a uniform starting point for the rule amendments and cycles, enabling or implementing statutes were frequently amended by the Legislature to extend their effective dates so as to coincide with the Commission's adoption of the full state- wide Code, which ultimately took effect March 1, 2002. Rule- making, pursuant to Chapter 120, Florida Statutes, continued throughout the various time frames of the statutory amendments. As of June 8, 2001,5/ Section 44, Chapter 2001-186, Laws of Florida, directed that: The Commission shall adopt no amendments to the Florida Building Code until after July 1, 2002, except for the following: emergency amendments, amendments that eliminate conflicts with state law or implement new authorities granted by law, and amendments to implement settlement agreements executed prior to March 1, 2002. (Emphasis added) Section 25, Chapter 2001-186, Laws of Florida, also directed, in pertinent part, that: Further, the Florida Building Code must provide for uniform implementation of Chapters 515.25, 515.27, and 515.29 by including standards and criteria for residential swimming pool barriers, pool covers, latching devices, door and window exit alarms, and other equipment required therein, which are consistent with the intent of Section 515.23.... This legislation was ultimately codified at Section 553.73(2), Florida Statutes (2002). Section 1, Chapter 2000-143, Laws of Florida, had previously set out the following specific legislative findings and intent which ultimately was codified into Section 515.23, Florida Statutes (2002).6/ Legislative findings and intent.--The Legislature finds that drowning is the leading cause of death of young children in this state and is also a significant cause of death for medically frail elderly persons in this state, that constant adult supervision is the key to accomplishing the objective of reducing the number of submersion incidents, and that when lapses in supervision occur a pool safety feature designed to deny, delay, or detect unsupervised entry to the swimming pool, spa, or hot tub will reduce drowning and near-drowning incidents. In addition to the incalculable human cost of these submersion incidents, the health care costs, loss of lifetime productivity, and legal and administrative expenses associated with drownings of young children and medically frail elderly persons in this state each year and the lifetime costs for the care and treatment of young children who have suffered brain disability due to near- drowning incidents each year are enormous. Therefore, it is the intent of the Legislature that all new residential swimming pools, spas, and hot tubs be equipped with at least one pool safety feature as specified in this chapter. It is also the intent of the Legislature that the Department of Health be responsible for producing its own or adopting a nationally recognized publication that provides the public with information on drowning prevention and the responsibilities of pool ownership and also for developing its own or adopting a nationally recognized drowning prevention education program for the public and for persons violating the pool safety requirements of this chapter. Pursuant to the foregoing amendments, which all concerned felt would take effect much sooner than they did, the Commission had the obligation to adopt amendments to the Code to implement new authorities granted by statute, which, in part, included adoption of standards and criteria for swimming pool exit alarms, provided the standards and criteria were consistent with the intent of Section 515.23, Florida Statutes. Section 1, Chapter 2000-143, Laws of Florida, also created Section 515.27, Florida Statutes, effective October 1, 2000, which provided: In order to pass final inspection and receive a certificate of completion, a swimming pool must meet at least one of the following requirements relating to pool safety features. The pool must be isolated from access to a home by an enclosure that meets the pool barrier requirements of Section 515.29; The pool must be equipped with an approved safety pool cover; All doors and windows providing direct access from the home to the pool must be equipped with an exit alarm that has a minimum sound pressure rating of 85 dB A at 10 feet; or All doors providing direct access from the home to the pool must be equipped with a self-closing, self-latching device with a release mechanism placed no lower than 54 inches above the floor. (Emphasis added) One of the four statutorily permissible safety options was that all doors and windows that provide direct access from the home to the pool be equipped with an exit alarm which has a minimum sound pressure rating of 85 dB A at 10 feet. See Section 515.27(1)(c), Florida Statutes. Section 515.25(4), Florida Statutes, defines "exit alarm" as: "Exit alarm" means a device that makes audible, continuous alarm sounds when any door or window which permits access from the residence to any pool area that is without an intervening enclosure is opened or left ajar. During 2001, the Commission was mindful of Section 44, Chapter 2001-186, Laws of Florida, which had been signed by the Governor and filed on June 8, 2001. In fulfilling its mandate to adopt rules to implement the Florida Building Code, the Commission was careful to state on its tracking charts, agendas, and workshop materials that it was only considering the four exceptions for which it was permitted to adopt rules prior to July 1, 2002. The Commission employed the services of the Florida Conflict Resolution Consortium to facilitate its processes. The Consortium is an entity housed within Florida State University that is legislatively mandated to perform consensus building with regard to public policy issues. In 2001, the Commission referred issues to one of three types of subcommittee: Technical Advisory Committees (TACs), Program Oversight Committees (POCs) or Ad Hoc Committees. Ad Hoc Committees were/are comprised solely of Commission members. Public comment was received by the respective subcommittees. If an issue (proposed rule amendment) received a favorable vote by at least 75% (three quarters) of the subcommittee members, a recommendation was developed and forwarded to the Commission as a whole. A 75% (three-quarters) favorable vote of the Commission was also required to adopt a rule. The failure of a subcommittee or the Commission to take affirmative action upon an issue amounted to a rejection of that issue for incorporation into a rule, but the Commission and its subcommittee did not act on motions to deny. They only voted on motions to approve the resolution of an issue. In July 2001, the Commission, sua sponte, took up provisions related to criteria and standards for pool safety measures prescribed by Chapter 515, Florida Statutes. The Commission, with the assistance of the Florida Conflict Resolution Consortium, applied its procedures described above. Commission staff generated draft provisions integrating portions of a recommendation by the Building Officials Association of Florida, independent research and review, and the existing provisions of Section 424.2, Florida Building Code. No amendments were proposed directly to the Commission or its subcommittees from the public relating to pool safety measures on the form promulgated by the Commission for that purpose. On July 9, 2001, the Commission convened an Ad Hoc Committee meeting to consider recommendations for resolution of issues raised relating to implementation of the pool safety measure. Petitioner had representatives, one of whom was its Executive Director, Mr. Bednerik, attend the meeting and offer oral comments. It appears from the transcript of that meeting that written submissions of Petitioner's and other interested persons' concerns were also received. The draft provisions authored by Commission staff included adoption of UL2017, a standard developed by Underwriters Laboratories, and specified in Section 515.27(1)(c), Florida Statutes. At the Ad Hoc Committee meeting, FPSA's Executive Director cited the need for the Code to specify a power source for exit alarms, and specifically stated that, at the time of the meeting, some jurisdictions were allowing battery-powered alarms and some were requiring hard-wired alarms. The Ad Hoc Committee also received comment from Mr. Sparks, a building official from Sarasota. Mr. Sparks expressed a preference that exit alarms be hard-wired, and that if battery-powered alarms were to be allowed, that their use should be limited to homes for which a building permit had been pulled before October 1, 2000, the effective date of Chapter 515, Florida Statutes. The Ad Hoc Committee heard comments that batteries always ultimately fail due to limited battery life and that the date of failure cannot be predicted. The Ad Hoc Committee discussed allowing plug-in type alarms as a possible solution to difficulties with installation of a hard-wired system. Mr. Sparks informed the Committee that plug-in type alarms were available and that he had worked with manufacturers of such devices. The Ad Hoc Committee unanimously voted to recommend to the Commission, during its July 11, 2001 Rule Development Workshop, that exit alarms for new construction after the amendment's effective date be hard-wired or a plug-in type. The Ad Hoc Committee's recommendation was integrated into the proposed Code amendment for the Commission's review, by providing a complete printed copy of the proposed amendment, striking through for eliminated language, and underlining for new language being added. A Rule Development Workshop was convened by the Commission on July 11, 2001. The Ad Hoc Committee's recommendation was submitted to the Commission during the Rule Development Workshop held on July 11, 2001, as a committee report. During the Workshop, Petitioner's Executive Director offered comment to the Commission urging that requiring a retrofit of existing homes was impracticable and would not comport with the "legislative intent" expressed by one of the legislators involved with the passage of Section 515.27(1), Florida Statutes. Petitioner's Director opposed any restriction to hard-wired alarms but acknowledged that battery-powered alarms require positive action to refresh their power source. He acknowledged that Underwriters' Laboratories had attempted to mitigate this shortcoming in a chirper to alert when the battery in a battery- powered alarm runs low. Comments were heard that plug-in type alarms might be dangerous to, or deactivated, by toddlers. The Commission unanimously approved the recommendations of the Ad Hoc Committee with regard to limiting allowable power sources for exit alarms to hard-wired or plug-in types, inherently rejecting the comments of Petitioner's representative. The Commission also approved Committee recommendations allowing a temporary deactivation feature and an exception of specified windows from the requirement for alarms. The expressed purpose for these provisions was to address the practical effects of the exit alarm requirement without diminishing the intent of improved safety. The Commission noticed the Code revisions for rule adoption in the Florida Administrative Weekly published on August 3, 2001, with a hearing to be held on August 28, 2001. At the Rule Adoption Hearing on August 28, 2001, Petitioner's representative expressed his belief that it was the Legislature's intent that inexpensive battery-powered alarms be used everywhere and affirmatively stated that Petitioner would concur in the view that battery-powered alarms should be permitted in existing dwellings. Petitioner's representative also implied that the Commission had the authority to adopt UL2017. The UL2017 standard provides criteria and specifications for "residential swimming pool entrance alarms." It addresses requirements for alarms that are battery-powered, hard-wired, and plug-in. The standard was adopted by Underwriters' Laboratories and available in 1995 or 1996. It encompasses 85 dBA at 10 feet of sound pressure. Its concept of "continuous" means "not intermittent" or "not variable." It allows a seven-second delay before an alarm activates and then requires that an alarm activate immediately and continually. Evidence was adduced in the instant rule challenge hearing that none of the four protective options provided in Section 515.27(1), Florida Statutes, is required to be maintained after the final inspection or certificate of occupancy has been completed. Batteries expire or homeowners may intentionally remove them. In either situation, the alarm will not sound. One of Intervenor's witnesses described a study in which the main reason for failure of battery-powered smoke detectors is that the battery had discharged. The Florida Life Safety Code (Fire Code) permits battery-powered smoke detectors in older, existing homes, but like the challenged rule, requires hard- wired devices in new home construction. Hard-wired pool exit alarms can be disabled by a power outage or by deliberately flipping a circuit breaker. Plug-in alarms can be unplugged so as to be rendered ineffective. They also may present a danger to children or the elderly if extension cords are used. Some witnesses consider it inconsistent of the rule to require an alarm deactivation switch and a self-latching device that is 54 inches above the threshold but fail to specify that an electric plug for a plug-in door or window alarm also be 54 inches above the threshold, due to the potential for children to unplug plug-in alarms. Some witnesses at hearing complained that because Section 515.27(1)(d), Florida Statutes, specifies that a release mechanism switch for self-closing, self-latching doors is to be 54 inches above the floor and the challenged rule for door and window exit alarms specifies deactivation switches are to be at least 54 inches from the threshold, there is a variance between the rule and the statute, and the rule is confusing. However, a door's "threshold" as used in the rule, is a consistent place to measure the 54 inches from; is a spot that can be agreed upon by the contractor and inspectors; and is a designation which eliminates any confusion as to whether measurement is to begin from the outside or inside "floor," while serving the spirit of the statute. Some witnesses at hearing complained that the language "immediately after the door is opened and be capable of being heard throughout the house during normal household activities," as used in the rule is vague. However, it appears that any vagueness is cured by the inclusion of the UL2017 standard in the challenged rule. Witnesses who complained of confusion as to whether doors and screens must each be "alarmed" were not credible because the challenged rule clearly specifies "warning when the door and its screen are opened." (Emphasis supplied) Some witnesses complained that they thought the term "plug-in" could refer to installing a battery into an alarm. This concept defies both the first approved dictionary definition in evidence and common sense. There were a number of battery-powered exit alarms on the market when the rule was adopted and when it became effective which would make an audible, continuous alarm when a door or window which permits access to the pool area is opened, but there were no such hard-wired or plug-in devices available at that time. Acceptable hard-wired and plug-in alarms which meet the rule's requirements are available now. The Florida Home Builders Association (FHBA) had previously challenged unrelated proposed Code rules in DOAH Case No. 00-1252RP. That rule challenge was resolved by an October 17, 2000, Settlement Agreement, which was amended on November 1, 2001, after the case was closed. The FHBA Settlement Agreement provided that, in exchange for FHBA's dismissal of DOAH Case No. 00-1252RP, the Commission would adopt a rule setting forth a procedure for adoption by the Commission of any other new amendments to the Code, including creating a fiscal statement in connection with all proposed Code revisions; review by a TAC of all technical revisions; providing notice on the Internet of all proposed revisions; providing 45 days between the date of notice and consideration of an issue by a TAC or by the Commission; and providing a reasonable time period in which the Committee and Commission respectively would hear testimony on rule proposals. The FHBA Settlement Agreement did not require immediate application of the agreed rule promulgation procedures prior to adoption, by rule, of those rule promulgation procedures. It also did not require application of new statutory requirements to the Commission's rule promulgation procedures prior to the effective date of any new statute. The Commission did not perform a fiscal analysis/statement; have a TAC consider challenged Rule 9B-3.047 or 424.2.17.1.9; or provide 45 days' notification of Committee or Commission meetings. However, pursuant to Chapter 120, Florida Statutes, Internet notice of all proposed rules and amendments was provided. The procedures required by the FHBA Settlement Agreement, including but not limited to the requirement of a fiscal impact statement, plus additional procedures, were codified in Sections 553.73(2), 553.73(3), 553.73(6) and 553.73(7), Florida Statutes. These statutes originated in Chapter 2001-186, Laws of Florida, which was subsequently amended or superceded by other legislative action. The legislative history shows the effective dates of these statutory rule promulgation procedures was postponed to March 1, 2002. See the Conclusions of Law Also, similar rule promulgation procedures which equate with the FHBA Settlement Agreement were promulgated in Rule 9B-3.050, Florida Administrative Code, which the Florida Administrative Code states took effect on November 20, 2001.
Findings Of Fact The Respondent, Caldo Corporation, d/b/a Calypso Bay Club, operates a place of business in Clearwater, Florida, where consumption on the premises is permitted under license number 62-928, Series 4-COP SRX. The licensed premises consist of some 18,000 square feet. Seven permanent bars are located within the perimeter walls of the licensed premises. No interior walls separate the bars, and they are not located in separate rooms. The seven bars are located in different parts of one large, generally open room. A customer entering the Calypso Bay Club first enters a combination foyer/seating area. From this area, a customer can see throughout the area where the seven bars are located. All seven bars in the licensed premises are visible, at least in part, from the entrance foyer/seating area, although the view to some parts of the premises may be blocked. Two of the bars are located within an unobstructed, open lower level which is generally in the center of the premises. There is a dance floor in this lower level. The other parts of the licensed premises are located on deckings that are raised to varying heights above the dance floor area. One of the bars, known as the Oyster Bar or bar number 7, is located on its own decking to one side of the dance floor area (to the customer's right on entering the premises.) It is three and a half steps, or approximately 18 inches, above the dance floor level. The other bars are arrayed on deckings on the other side (to the customer's left on entering the premises). Except for a lower, middle decking, the deckings on the left side of the premises are two steps, or approximately 12 inches, above the dance floor level. In the middle of that side, the decking is slightly lower than either the decking in front of it or the decking to the rear of it. One of the bars, known as the Fufu bar or bar number 5, is located on the middle decking. The other bars on that side are on one of the two higher deckings. The bar known as Deck 1 (bar number 4) is on a decking that wraps around to the entrance foyer/seating area. The bars known as Deck 2 (bar number 3) and the Corner bar (bar number 2) are on a decking located beyond the lower, middle decking. Throughout the premises, where the flooring changes elevation, there is a wide, flat wood rail approximately 42 inches above the floor of the raised decking. The railing sits on top of, and is supported by, thick wood posts similar to posts used in the construction of docks. Thick hemp rope, consistent with a waterfront motif, also is wound around the posts and draped between them under the rails (as Christmas garland would be draped on a stairway bannister). All except in the area of the Oyster Bar (bar number 7), a smaller slat of wood about the size of a one by four also is nailed to the posts about five inches above the floor of the decking, forming a lower fence rail as well. In some places, banners are also hung from the railing. The railing separating the different elevations serves two primary purposes. First, it is for safety to prevent customers from accidentally falling from a higher to a lower floor elevation. Second, it also serves as a counter on which customers standing or sitting on the higher elevation can set drinks or ash trays. Openings in the railing permit customers to walk from one bar area to another. The deckings are accessible from the dance floor area by six fairly wide stairways. As previously mentioned, the stairway to the Oyster Bar has three steps; the others have just two steps. Nothing separates the Corner bar (bar number 2) from the Deck 2 bar (bar number 3). Likewise, there is direct access from part of the Deck 2 bar to the Fufu bar (bar number 5). To one side of the Deck 2 bar, a railing separates the two elevations, but a railed ramp in the middle of the railing connects to two areas. It also is possible to get from the Fufu bar to the Deck 2 bar, without having to descend to the dance floor level, by walking from the Fufu bar, around a wood column, and step up one step to the area of the Deck 2 and Corner bars. The Deck 1 bar (bar number 4) is the closest to the entrance foyer/seating area of the bars on that side of the premises. There are two ways to get from the Fufu bar to the Deck 1 bar. First, there is virtual direct access between the Fufu bar and the Deck 1 bar. Bar number 5 (the Fufu bar) is in an area one step lower than the other bars on that side of the dance floor area, including the Deck 1 bar. There is a short railed ramp that goes up alongside a wood column standing between the two bars. From the top of the ramp, there is direct access to the Deck 1 bar; from the bottom of the ramp, there is direct access to the Fufu bar. There also is indirect access by walking to the side opposite the ramp side into a small seating area. The seating area is separated from the Deck 1 bar by the one-step change in elevation and by a railing and two video games. There are two gaps in the railing where one can step up into the area where the Deck 1 bar is located.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order dismissing the Notice to Show Cause in this case. RECOMMENDED this 15th day of January, 1992, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 15th day of January, 1992. 1/ The Petitioner also offered in evidence Petitioner's Exhibit 7, a videotape to which the Respondent objected. At the hearing, ruling was reserved. At this time, the objection is sustained. The videotape is immaterial and irrelevant to the issue in this case, which is whether the Calypso Bay Club "has more than three separate rooms or enclosures." See Conclusion of Law 9, below. 2/ The evidence of the legislative history in this record may not be clear and complete. No such evidence was introduced at the final hearing. The Department attached to its proposed recommended order what appear to be certified copies of committee reports on the legislation. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5784 To comply with the requirements of Section 120.59(2), Fla. Stat. (1989), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-3. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. However, the lines referred to in the last sentence did not completely separate the five bars from the two bars; the drawings included the designation of steps leading from one elevation to another. Accepted but subordinate and unnecessary. There are two proposed findings 6. This addresses the first of them. Subpart d. is rejected as not proven. The "small exposed part of bar 3" is not "cordoned off," and there is no wall. It is accessible from the steps from the dance floor area closest to the bar by walking from the steps to the bar, passing between the railing along the dance floor area and the partial wall (actually more like a wood column). (There also is access from the Corner bar and from the Fufu bar.) Subpart e. is rejected as not proven. There is direct access, as well as indirect access, as stated above, subpart d. Subpart f. is rejected as not proven. The "cordoned" railing has an opening through there is access to the Deck 1 bar (bar number 4). The Deck 1 bar also is directly accessible from the Fufu bar and from the entrance foyer/seating area. Subpart g. is rejected as not proven. Bar number 5 is not enclosed. It is accessible by four alternative routes. There is direct access between part of the Deck 2 bar (bar number 3) and bar number 5. There also is access to other parts of the Deck 2 bar from the steps from the dance floor area closest to the bar, as described in subpart d., above, as well as via a ramp through an opening in the railing along the change in elevation between the two bars. Finally, bar number 5 is accessible from the Deck 1 bar as described in subpart f., above. Otherwise, the first proposed finding 6 is accepted and incorporated. The second proposed finding 6 is rejected in part as not proven. As previously stated, there is direct access between the Corner bar (bar number 2) and the Deck 2 bar (bar number 3), as well as between part of the latter bar and bar number 5 (the Fufu bar.) Otherwise, accepted and incorporated. Rejected in part as not proven. The televisions hang from the ceiling or are on a wood column, and the game machines are placed next to railings. Neither serves to form a separate barrier. The ropes do not in all cases, and in any case were not primarily intended to, separate bar areas. They are all along the upper level at an elevation change or are along steps or a ramp between two different elevations. 8.-9. Rejected as irrelevant to the question whether there are more than three "rooms or enclosures." See Conclusion of Law 9, above. Rejected in part as not proven (last sentence); in part, accepted but subordinate to facts contrary to those found (first three sentences). The evidence suggested that the railings are there for two primary purposes. See Finding of Fact 6, above. The effect of the use of the railings as a bar counter was as much to join as to separate the various parts of the bar. A customer could put a drink, food or ash tray on one of the railings, or lean on it, and observe parts of the premises on the other side of the railing. Rejected in part as argument and in part as not proven. The testimony regarding shortness of funds was part of an answer to a question on cross examination as to why there were different kinds of chairs and stools on the premises. The owner's intent and desire to increase profits does not prove liability for the additional $1,000 fee. The critical issue is the existence of more than three rooms or enclosures, a fact not proven by the evidence. Respondent's Proposed Findings of Fact. 1. Accepted but unnecessary. 2.-3. Accepted and incorporated. Rejected as being conclusion of law or argument. First sentence, rejected in part in that it is not "completely open." Third sentence, rejected in part in that there was no evidence to prove that the ramps are "fully handicap accessible." Fourth sentence, rejected in part in that there was no evidence to prove what the building code requirements were. Otherwise, accepted and incorporated. Accepted and incorporated. 7.-8. Rejected as conclusion of law. COPIES FURNISHED: Monica Atkins White, Esquire Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Harold F. X. Purnell, Esquire Oertel, Hoffman, Fernandez & Cole, P.A. 2700 Blair Stone Road Post Office Box 6507 Tallahassee, Florida 32314-6507 Richard W. Scully, Director Div. of Alcoholic Beverages and Tobacco Dept. of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Donald D. Conn, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee Florida 32399-1007
Findings Of Fact On August 1, 1980, Copper Door II, Inc., entered into a contract with Lang Aquatech Pools to construct a swimming pool for $22,338. Lang began construction, but Copper Door did not maintain the payment schedule called for in the contract, whereupon Lang terminated work on the pool. The parties later reached an agreement that upon payment of $5,000 by Copper Door to Lang work would recommence. After payment by Copper Door of the $5,000, little if any work was performed by Lang toward completion of the pool. Copper Door took over construction and subcontracted the remainder of the work on the pool. The pool was opened to the public by Copper Door and cited by the Department of Health and Rehabilitative Services for failure to have an operating permit in violation of Rule 10D-5.65, Florida Administrative Code. Copper Door has been unable to obtain an operating permit because of its inability to complete an application for an operating permit. The Department's application form for an operating permit (Hearing Officer's Exhibit No. 1) requires execution of a certificate by the pool's engineer and contractor. Because of the aforementioned financial dispute, neither Lang nor its engineer would sign the form. The form requires that both the pool contractor and engineer be registered or certified with the state. The pool was designed by an engineer registered in the State of Florida. Further, the design of the pool was approved by the Department prior to commencement of construction. Work completed by Copper Door after abandonment of construction by Lang included the application of concrete to the inside of the pool, pouring of the decking, installation of a water circulating pump, and a portion of the electrical work. All other work was done by Lang. The pool performs properly and in accordance with other public pools granted operating permits by the Department. The pool was subject to inspection by local building officials. These officials were responsible for ensuring that construction was in accord with plans approved by the Department and local building codes. The Department does not inspect pools during construction. The Department looks instead to the certificate of the contractor and engineer to ensure that a pool meets applicable requirements. The Department's application form has not been adopted by rule or as a rule.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department of Health and Rehabilitative Services accept the application of Copper Door II, Inc., upon execution of the contractor's certificate by Copper Door as owner. Copper Door must keep the pool closed until its application is approved. DONE and ORDERED this 18th day of February, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 1982. COPIES FURNISHED: William W. Chastain, Esquire 412 Madison Street, Suite 1207 Post Office Box 222 Tampa, Florida 33601 Donald R. Odom, Esquire Department of Health and Rehabilitative Services 2255 East Bay Drive Post Office Box 5046 Clearwater, Florida 33518 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
