The Issue The issues posed for decision herein are whether or not the certified pool contractor's license issued to Respondents Licensee, Edward G. Batter, should be revoked or suspended or the Licensee's right to practice thereunder should be withdrawn based on conduct which will be set forth hereinafter in detail as set out in the Administrative Complaint filed herein on August 23, 1979.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel and the entire record compiled herein, the following relevant facts are found. Edward G. Batter, d/b/a Tropicana Pools, Inc., (Respondent or Licensee) is a certified pool contractor who holds license No. CPC 012906. Respondent was first licensed on July 28, 1978, as qualifier of Tropicana Pools, Inc., which license was temporarily suspended in June, 1979, and remains in an invalid status to this date. By its Administrative Complaint, Petitioner's Executive Director took action to revoke or otherwise suspend the Respondent's rights to practice pursuant to his referenced license. As a licensed pool contractor, Respondent is subject to the Board's rules and regulations. (See Petitioner's Composite Exhibit 1.) A special meeting of the Board of Adjustment, Appeals and Examiners for general building contractors for Hillsborough County was held on Thursday, July 19, 1979, for the purpose of hearing certain allegations concerning the demise of Tropicana pools, Inc. Jerry Taylor, Petitioner's field investigator, presented the Hillsborough County Board with the results of an investigation of Respondent and presented several cases wherein funds were diverted after being collected for a specific contract to other projects or for other purposes and that projects for which funds had been collected had either been left unstarted or abandoned at the time Tropicana Pools, Inc., ceased doing business. At that meeting, the Respondent's construction activities were suspended by the Board until restitution or settlement was made and verified by affected parties. The temporary suspension by Hillsborough County became final during August of 1979. (Petitioner's Exhibits 2 and 3.) Howard Shaw, Director of Building and Zoning for the City of Tampa, appeared and testified to substantiate the disciplinary action taken against the Respondent by Hillsborough County during the summer of 1979. On June 7, 1979, Mr. and Mrs. James R. Stanton entered into a contract with Respondent to have a pool constructed for a price of $8,182.00. Respondent was paid a 10 percent deposit to commence construction of the Stantons' pool. Respondent absconded with the deposit and never notified the Stantons that their pool would not be built nor did Respondent return their deposit. (See Petitioner's Exhibits 4 and 5.) On April 19, 1979, Mr. and Mrs. Theodore Hillary entered into a contract for the construction of a swimming pool for a contract price of $8,130.00. Approximately $5,690.00 or approximately 70 percent of the contract sum was paid on June 18, 1979, and the work ceased on the Hillary project at a completion stage of approximately 40 percent. Respondent abandoned the Hillary project on approximately June 5, 1979. The Hillarys completed their pool at a price of approximately $5,000.00 over and above the contracted price. (Petitioner's Composite Exhibit 6.) On April 30, 1979, Mr. and Mrs. Leon Tope entered into a contract for the construction of a swimming pool at their residence for the contract price of $8,050.00. On June 18, 1979, the Topes had tendered to Respondent approximately 70 percent of the contract cost while the Respondent abandoned the construction of the Topes' pool after approximately 40 percent of the work was complete. Respondent abandoned the project on June 18, 1979, and the Topes completed the construction of their pool at a price of approximately $2,000.00 by engaging the services of other contractors in the area. (See Petitioner's Exhibits 7, 8, 9, 10, and the testimony of Jim Moran.) Jerry Taylor, Petitioner's field investigator, attended the probable cause hearing during August of 1979 in which the Hillsborough County Board of Examiners suspended the pool license of Respondent. Investigator Taylor briefed the Hillsborough County Board respecting the results of the investigation conducted by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Respondent's pool contractor's license No. CPC 012906 be REVOKED. ENTERED this 10th day of March, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue The issue in the case is whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the agency responsible for licensing and regulating pool contractors operating in the State of Florida. Respondent was previously licensed as a Certified Pool Contractor by Respondent, holding license number CP C21422. On March 15, 2004, Respondent's license was revoked and was void at all times material to this case. On June 3, 2005, Respondent entered into a contract with Luis Vargas and Maria Rivera (Customers) for construction of a pool at their home located at 1524 Southeast 8th Avenue, Cape Coral, Florida. The total cost of the proposed construction was $21,500. The name of Respondent's company as identified on the contract was Gulfshore Pool and Spa, Inc., 207 Center Street, Tarpon Springs, Florida. At all times material to this case, Respondent was the president and owner of Gulfshore Pool and Spa, Inc. During the sales presentation to the Customers, Respondent provided a copy of his license to the Customers that showed an expiration date of August 31, 2004, and told them that it was being renewed. The contract contained the following notation: Company is being retained for services of design, consultation and assistance in construction. Customer is responsible for obtaining all necessary permits required for the pool construction. Respondent testified that he told the Customers he would arrange for all subcontractors and would add a fee of ten percent as his fee for "overseeing" management of the project. The Payment Schedule for the contract required that "progress payments" in an amount totaling the cost of the pool were to be made to Gulfshore Pool and Spa, Inc. The Customers obtained the construction permit. Respondent made all arrangements for site clearing and excavation. Respondent made all arrangements for acquisition and delivery of pool construction materials to the job site. All materials invoices were billed to Gulfshore Pool and Spa, Inc. Respondent made all arrangements for the laborers who appeared at the job site and was responsible for paying laborers. Respondent made arrangements for all inspections and for correcting any problems resulting from the inspections. The Customers paid a total of $20,500, by checks, made payable to Gulfshore Pool and Spa, Inc. The Customers withheld the remaining $1,000 payment for reasons that are immaterial to this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order finding that Michael D. White violated Subsections 489.127(e) and (f), Florida Statutes (2004), and impose a total administrative fine of $10,000. DONE AND ENTERED this 3rd day of April, 2008, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of April, 2008. COPIES FURNISHED: Scott A. Smothers, Esquire Wright, Fulford, Moorhead & Brown, P.A. Post Office Box 2828 Orlando, Florida 32801-2828 Michael D. White, Jr. Michael D. White, Jr., d/b/a Gulf Shore Pool & Spa, Inc. 306 East Paris Street Tampa, Florida 33604 Nancy S. Terrel, Hearing Officer Office of the General Counsel Department Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Zed Lucynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The administrative complaint filed on September 17, 1987 alleges that in a residential pool contracting job Respondent Martin ". . . exhibited financial mismanagement, misconduct, or diversion, in violation of 489.129(1)(h), (m) . . . [and] failed to perform in a reasonably timely manner, and/or abandoned said job, in violation of 489.129(1)(m), (k)." The issue is whether Martin committed those violations, and if so, what disciplinary action is appropriate.
Findings Of Fact At all times relevant, Kenneth Martin was licensed in the State of Florida as a registered commercial pool contractor, holding license number RP 0021608. His license is currently in inactive status. Martin was President of Adair Pools, Inc., the corporation under which he conducted his pool construction business. In early July 1986, Adair Pools contracted to build a residential pool for Paul and Cynthia Pajak at 8304 Helena Drive in Orange County, Florida. The pool was to be kidney-shaped, approximately 14 feet by 30 feet, with a waterfall and a detached spa. The contract amount of $11,571.00 expressly excluded the deck, electrical work and screening, although the written contract included a sheet describing the specifications for the excluded work, recommended contractors, and estimated costs. This sheet and the pool contract itself clearly indicated that these items were not the responsibility of the pool company and were not included in the contract price. Work commenced in July, shortly after the contract was signed. Although the contract did not specify a completion date, Martin concedes that the pool should have taken no more than four to eight weeks to complete. The Pajaks had planned a Labor Day party and were told by Adair's employees there would be no problem getting their pool finished for the party. The pool was not finished by Labor Day. After the pool was dug, shot with concrete and tiled, someone determined that the spa was supposed to have been raised. In attempting to raise the spa and to change the water jets, the workers cracked the shell of the spa and had to replace it. Until the problems with the spa, the Pajaks felt that the construction progress was reasonable and smooth. At this point, sometime around Labor Day, the problems began. Adair delayed in paying Shotcrete Pools, the subcontractor for the concrete shell, because Adair felt it was Shotcrete's fault that the spa was cracked. Shotcrete notified the Pajaks that a lien would be placed on the property if they were not paid. The notice to owner is dated November 3, 1986. Eventually Adair paid Shotcrete and its other subcontractors for the Pajak work and no lien was filed. The evidence does not reflect a clear sequence of events, but between Labor Day and February or March 1987, little progress was made to finish the pool. Martin's supervisor left and Martin's brother took over. The Pajaks kept calling Martin and were always assured that the job would be completed. Martin admits that the company at this time was in serious financial trouble because it was not being paid for a large commercial job that it had undertaken. On December 10, 1986, Mrs. Pajak's brother-in-law, an attorney, sent Martin a demand letter, giving a 10-day deadline for completion of the work. Martin and his brother met with the attorney and assured him the job would be finished. In spite of the problems, the Pajaks continued working with Martin and paid the full contract price, less the $100.00 that was to be paid when the pool was filled. On March 5, 1987, Martin informed the Pajaks that they should have the deck poured so that Adair could finish the pool. The Pajaks were not satisfied that the pool was ready for the deck as there were leaks in the waterfall, debris was all over the yard and the spa tile work looked messy. In Martin's opinion those items were his company's responsibility, but were part of the finishing to be done after the deck was poured and the pool was lined with marblelite. On March 21, 1987, the Pajaks contracted with another pool company for $4450.00 to finish their pool. Martin denies that Adair abandoned the job, but admits that it took an inordinate amount of time. The Pajaks did not allow him to finish the cleanup, the interior coating and the pool start up because they contracted with someone else. Martin did not contest that the waterfall leaked or that extensive cleanup needed to be done, but disputed that this work should be done before the deck was poured. He contended that the leaks in the waterfall would have been fixed when the finish was done. Martin estimates that between 1974 and 1986, his company completed over fourteen hundred residential pools and approximately five hundred large commercial pools. Martin has been active on various local pool construction industry boards and has no record of prior disciplinary action against his license.
Recommendation Based upon the foregoing, it is, hereby, RECOMMENDED: That Kenneth Martin be found guilty of misconduct, in violation of Section 489.129(1)(m), Florida Statutes, not guilty of the other violations with which he is charged, and that he be required to pay an administrative fine of $500.00. DONE and RECOMMENDED this 2nd day of August, 1988, in Tallahassee, Florida. MARY CLARK 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 2nd day of August, 1988. COPIES FURNISHED: David E. Bryant, Esquire 220 East Madison Street, Suite 530 Tampa, Florida 33602 Kenneth R. Martin 3225 North Glenn Drive Orlando, Florida 32806 Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts were found: At all times material to these proceedings Respondent was licensed by the State of Florida as a certified pool contractor, licensed No. CP C025535 and registered pool contractor, License No. RP 0041301. On June 7, 1983, Respondent entered into a Contract (Contract) with Edward and Maureen Kerstein (Kersteins) of 283 Islander Lane, Hudson, Florida, under which a pool was to be constructed on the Kersteins' property for a contract price of $7,777.00. The Contract was later amended by a letter, signed by Respondent and dated July 15, 1983, providing a penalty of $50.00 per day to be deducted from the balance due on the contract price if Respondent failed to complete the pool by July 23, 1983. Respondent obtained building permit No. 34342 on June 15, 1983, in the name of Crystal Clear Pool for the construction of the Kersteins' pool from the Pasco County Building Division. The pool steel inspection was called for and approved on July 8, 1983 and the pool bonding inspection was called for and approved on July 18, 1983. No other inspections were called for by the Respondent and the Respondent did not request an extension of time on the building permit. Therefore, on January 18, 1984, as required by the Standard Building Code of Pasco County, the permit lapsed and was invalid. However for reasons that are not clear in the record Vern Rossky, Building Inspector, Pasco County Building Division, made a final inspection of the Kersteins' pool (Permit No. 34342) on June 28, 1984 and approved the pool. Ordinarily the contractor would call for the final inspection or if the permit had lapsed or was invalid then the Pasco County Building Division would contact the contractor in order to finalize the permit. However, the record is clear that Respondent's intent was to leave the permit open due to the problems with completing the pool and satisfying the Kersteins. Although problems with the pool still existed, the pool was substantially completed in August, 1983 and the Kersteins used the pool in late summer 1983 (August) and the summer of 1984. The pool was operational in August of 1983. The respondent has received $7,055.05 for his work on the construction of the pool under the Contract with the Kersteins. While the Contract did not specify which side yard Respondent was to have access through for construction of the pool, the testimony of both the Respondent and the Kersteins was that it was the west side yard. However, the record reflects that the Kersteins gave either an expressed or implied approval for the use of the east side yard. All of the shrubbery, with the exception of the shrubbery that was part of the Contract, has been properly replaced and the clothesline has been replaced. The evidence was insufficient to show that the cracks which occurred in the house some 3-6 months after the pool construction was caused by the equipment being brought in on the east side of the house. Although Edward Kerstein's testimony was that an expert had not looked at the damage caused by the alleged water seepage around the electrical conduit pipe installed by the Respondent, his testimony that he had identified the Respondent's failure to caulk around the conduit pipe as the reason for the water seepage which resulted in damage to the carpet and speakers went unrebutted and was credible. However, Respondent was not made aware of this problem until the summer of 1984, almost a year later. The record is clear on the following: (a) that the tile placed around the top edge of the pool by Respondent was defective; (b) that there were several acceptable methods of replacing the defective tile; (c) that there were differences of opinion as to which method should be used in this situation; (d) that the reglazing over the existing tile was not an acceptable method; (e) that the pool would have to be drained to replace the defective tile; (f) that the Kersteins did not want to tile over the existing defective tile; (g) that the Respondent and Drew Tile Supply Company (Drew), the supplier of the defective tile, agreed on the method of cutting the tile away from the bull nose cap and replacing just the tile and based on this agreement; Drew delivered a check to Respondent in the sum of $823.75 ($700 for labor and $123.75 for tile) made payable to Crystal Clear Pools and Phil Klein, the subcontractor who had installed the defective tile; (h) that the Respondent, as President of Crystal Clear Pools assigned Crystal Clear Pools' interest in the check to Phil Klein provided the work on the defective tile in the Kersteins' pool commenced no later than February 1, 1984; (i) that Phil Klein endorsed and cashed the check with the knowledge of the assignment; and Phil Klein's testimony that even though the assignment was on the check at the time he endorsed and cashed the check the Respondent told him that the money was a partial payment of another job is just not credible; (j) the more credible evidence is that Respondent assigned the check to Phil Klein for labor and tile to replace the defective tile on the Kersteins' pool and there was no intent by Respondent to divert these funds to another job; (k) that the Kersteins' had not agreed to the method of replacing the defective tile which was part of the agreement between the Respondent and Drew; (1) that Drew had agreed that if the method selected was not satisfactory, then Drew would make it right; (m) that the problem with the drain in the pool, the filtering system, the telescoping rod, the damage to the air conditioning controls on the house, the failure to put tile chips on pool steps and the damage to the underground wire, were legitimate problems and it was Respondent's intent to correct all by the time the pool was drained to replace the defective tile; (n) that the Kersteins understood this when they agreed to allow Respondent to wait until the winter of 1984 to correct these problems because they were already using the pool in the latter part of the summer of 1983 and did not want to drain it at that time; (o) that none of these problems had been corrected due to the failure of both the Respondent and Drew to reach an agreement with the Kersteins on how both the defective tile problem and the other problems were to be resolved and; (p) that there had been continuous negotiations between either the Respondent and the Kersteins or Drew and the Kersteins concerning the settlement of this problem.
Recommendation Based upon the findings of fact and conclusions of law cited herein it is RECOMMENDED that the Board enter a final order finding the respondent not guilty of the violations charged in Count I, Count II, and Count III of the Administrative Complaint and that Counts I, Count II and Count III of the Administrative Complaint be DISMISSED. Respectfully submitted and entered this 10th day of July, 1985 in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 1985. COPIES FURNISHED: Douglas A. Shropshire, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Gerald A. Figurski Post Office Box 786 New Port Richey, Florida 33552 Mr. James Linnan Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact The Respondent Wilbur A. Sellars is licensed as a residential pool contractor by the Construction Industry Licensing Board through license number RP 0045541. Mr. Sellars was first licensed in 1975. At all times material to this case Respondent has owned and operated in Tallahassee, Florida, a pool contracting company called Pro Pools Service and Supply or Pro Pools, Inc. Cabana Construction In November 1977 Respondent entered into a contract with Dr. Frank S. Bilek to construct for him a 20' by 40' vinyl lined pool and a 20' by 40' cabana building. The contract price for the pool was $11,166.10. The price for the cabana was $14,517.30. The pool and building were constructed as provided in the contract. The cabana sits on an 800 square foot slab with footings and consists of three separate rooms. One room is a small bathroom containing a lavatory, water closet, and shower. Another room is fully enclosed by finished walls and sliding glass doors. The third room is open on two sides, one of which faces the swimming pool. The walls are typical stud construction with plywood siding on the exterior and half-inch drywall on the interior. The roof is supported by 2/12 2x4 prefabricated trusses with shingles on top. The ceiling inside the cabana is the same as would be found in a residential home and the floor is a cement slab covered by carpet. There is one overhead ceiling fan in the open room and another in the fully enclosed room. For all practical purposes the construction techniques and materials used in the cabana are the same as would be used in a residential dwelling, although they may not meet the code standards which would be applicable to a dwelling in the Killearn residential area where Dr. Bilek's home is located in Tallahassee, Florida. The cabana is equipped with plumbing for the bathroom and also for a wet bar in the kitchen area of the cabana. No pool accessories were located in the cabana at the time Petitioner's witness inspected the facility, however as with any other structure of its size, pool equipment such as vacuuming hoses, wands, etc., could be placed inside it. The original design for the cabana included large solar panels located on the roof. The purpose of these panels was to provide heating for the swimming pool water. After the panels were installed they malfunctioned and have since been removed from the cabana roof. Typically in home swimming pool installations such panels are placed on house roofs or are independently supported by a special structure located near the swimming pool. The swimming pool water recirculation pump and filter for Dr. Bilek's pool were not located inside the cabana in issue, but were located nearby out in the open. The cabana was not designed for the purpose of housing this equipment. It appears from the furnishings found in the cabana, its orientation with respect to the pool, and from its equipment that the cabana along with the pool coordinate to create a unified entertainment complex. Neither is essential to the other, however. The cabana could host a cocktail party without there being a drop of water in the pool and the pool can function perfectly without the cabana. Criminal Convictions On May 18, 1979 Respondent sent a work crew to Cairo, Georgia, for the construction of a residential swimming pool for Mr. and Mrs. Vanlandingham. The crew was using a dump truck to haul excavated dirt from the pool site to a dumping site several miles from the Vanlandinghams' residence. An inexperienced driver was operating the truck. Upon arrival at the dumping site he engaged the bed lift to dump the dirt but forgot to release the safety chains. As a result the chassis of the truck broke. Members of the crew called Mr. Sellars to give him the bad news. He instructed them to burn the truck, which they did. Respondent then submitted an insurance claim for the loss of his truck due to an accidental fire. As a result of this false claim he was convicted of insurance fraud as defined in Section 817.234(1)(a), Florida Statutes. He entered a guilty plea and judgment was entered on June 7, 1982. On the same date Respondent also pled guilty and was convicted on another count of insurance fraud arising from his filing a false claim for the alleged theft of three mobile radios from trucks operated and owned by Pro Pools Service and Supply. The radios had in fact not been stolen. Since his conviction Mr. Sellars has obtained insurance coverage for the business of Pro Pools including automobile liability, physical damage, general property and general liability insurance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Construction Industry Licensing Board enter a Final Order finding the Respondent Wilbur A. Sellars guilty of Counts One, Two, Three and Four in the Amended Administrative Complaint and impose discipline in the form of an administrative fine of $200 and suspending Respondent's license as a residential pool contractor for a period of three months. DONE and RECOMMENDED this 23rd day of December, 1983, in Tallahassee, Florida. MICHAEL P. DODSON 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 23rd day of December, 1983.
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 Respondent is, and has been at all times material to this proceeding, a registered and certified pool contractor having been issued license numbers RP 0023613 and CP 0012607. Respondent's license number RP 0023613 has been delinquent since June 30, 1983, but his license number CP 0012607 was active and in full force and effect until he ceased doing business in approximately September, 1985. Respondent conducted his pool contracting business in the name of Hallmark Pools for approximately 14 years. The business entity "Hallmark Pools" was properly qualified and named on the Respondent's license. In 1985, the Respondent began to enter the business of designing outdoor patios and fountains, as well as pools. He wished to retain the good will he had gained operating under the name "Hallmark Pools" while gaining good will in the new name under which he planned to conduct business in the future, "Aquatic Environments, Inc." During this transition period, and until he closed his business, the Respondent's contracts and letterhead contained the names "Hallmark Pools" and "Aquatic Environments, Inc.," but that name never appeared on his licensure. On or about March 12, 1985, Respondent, through Hallmark Pools/Aquatic Environments, Inc., contracted with customers Mr. and Mrs. Allan Schaeffer to construct a screened-in pool and spa at their residence located at Archer Street, Lehigh Acres, Florida, for a contract price of $20,000. Later approximately $1,700 of extras were added to the contract. On or about March 21, 1985, the Schaeffers paid the Respondent $2,000 on the contract. On or about May 23, 1985, the Schaeffers paid another $17,000 on the contract. Approximately, $2,600 remained owing on the contract. The customers reside part of the time in New Jersey. In the contract, Respondent promised a June 15 completion date. When the customers arrived in Florida on or about June 14, they found that the project was not complete. When the customers contacted the Respondent, the work was resumed. The pool was quickly completed and was usable by the beginning of the July 4th weekend. Some punch list items remained to be done, but the Schaeffers preferred that the Respondent wait until after they returned to New Jersey in August, 1985. The evidence did not prove that the Respondent promised a June 15 completion date while knowing that he would not be able to finish the work by that date. During the summer of 1985, personal problems the Respondent was facing at the time mounted, and eventually he decided he no longer could continue to operate his business. He began to plan to close his business and have all pending matters either resolved by himself before he went out of business or resolved by his brother Chad Jackson, also a licensed pool contractor, after going out of business. He did this by assigning pending contracts to his brother. He also attempted to insure that all suppliers were paid either by himself before he went out of business or by his brother out of payments due under the contracts assigned to him. Except for the Schaeffer job, the Respondent's arrangements to close out his business did not result in any complaints. Near the end of August, 1985, the Schaeffers gave the Respondent a punch list of work still due under the contract to be done while the Schaeffers were in New Jersey. The Respondent called and told Mr. Schaeffer that he was closing his business but that the punch list items would be taken care of. At the time, the Respondent also knew that approximately $1,300 was owed to Jones Industries Screen Enclosures, Inc. The Respondent expected his brother to pay Jones out of the $2,600 due on the Schaeffer contract, leaving $700 to compensate his brother for the punch list work and any warranty work. In fact, there also was $2,705.12 owed to a company named FAFCO Solar, which had subcontracted the solar heating on the Schaeffer contract. The Respondent had forgotten about this debt. FAFCO had billed the Respondent on July 15, 1985, but the Respondent did not pay it or arrange for its payment. FAFCO's second billing never reached the Respondent. The Respondent sent FAFC0, along with his other suppliers and subcontractors, a notice on August 22, 1985, that he was going out of business and that mail should be sent to his home address. On receipt of this notice on August 28, 1985, FAFC0 mailed a second billing to the home address but it was returned on August 30, 1985, marked: "Moved Left No Address". The Respondent's brother did the punch list work to Mr. Schaeffer's satisfaction and sent him a bill for the $2,600 balance due on the contract. Schaeffer never paid. The Respondent's brother never paid the Jones Industries bill (and never got the FAFCO bill). Jones Industries put a lien on the property at 1414 Archer Street for $1,388.75, which the Schaeffers eventually paid. FAFCO did not file a notice to owner and could not claim a lien on the property. FAFC0 never was paid. Both Jones Industries and FAFCO refused to do warranty repairs because they were not timely paid. The evidence did not prove that the Respondent inadequately supervised the Schaeffer job while he was still in business or after he went out of business. After he went out of business, he assigned the contract to a licensed pool contractor, his brother. Eventually, serious problems developed in the Schaeffer's pool at 1414 Archer Street. But the evidence did not prove that the Respondent or his brother were responsible. The serious problems of which the Schaeffers now complain should have been apparent from the outset if caused during construction of the pool. Yet complaints were not registered until much later. Meanwhile, improper maintenance of the pool by the Schaeffers or their pool maintenance contractor, or damage to the pool during maintenance, could have caused the current problems. For six months after the Respondent closed his business and left Ft. Myers, he was traveling in the western part of the country and had no mailing address and did not give one to the Construction Industry Licensing Board. Then, he returned to Florida to a St. Petersburg address which he gave to the Board.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Construction Industry Licensing Board enter a final order finding the Respondent guilty of violating Section 489.129(1)(g) and (m), Florida Statutes (1985), reprimand him for the violation of (g) and fine him $1000 for the violation of (m). RECOMMENDED in Tallahassee this 19th day of December, 1988. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3468 To comply with Section 120.59(2), Florida Statutes (1987), the following rulings are made on the Petitioner's proposed findings of fact: Rejected. (The license number was left blank.) Accepted and incorporated. Rejected as contrary to facts found. The Respondent arranged for payment of the Jones debt but disputes among the Schaeffers, Jones and the Respondent's brother led to Jones imposing a lien on the property which the Schaeffers eventually paid. The Respondent did not make arrangements to pay FAFCO, and that bill remains unpaid. 4.-9. Rejected as contrary to facts found. COPIES FURNISHED: David Bryant, Esquire 500 North Tampa Street Tampa, Florida 33602 Thomas Jackson 5203 109th Way North St. Petersburg, Florida 33708 Fred Seely Executive Director Construction Industry Licensing Post Office Box 2 Jacksonville, Florida 32201 Bruce D. Lamb General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaints dated June 3, 1998, and December 23, 1998, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency responsible for investigating and prosecuting complaints made to the Department for violations of Chapter 489, Part I, Florida Statutes. Sections 489.131(7)(e) and 455.225, Florida Statutes (1997). Pursuant to Section 489.129(1), Florida Statutes (1997), the Construction Industry Licensing Board ("Board") is the entity responsible for imposing discipline for any of the violations set forth in that section. At all times material to these proceedings, Mr. Esquinaldo was a licensed swimming pool contractor, having been issued license number CPCO50527 by the Board, and he was the qualifying contractor for Challenger Pools, Inc. ("Challenger Pools"). Mr. Esquinaldo has been a licensed swimming pool contractor since 1987. In that time, Mr. Esquinaldo has been cited by the Department once, in June 1992, and Mr. Esquinaldo paid an administrative fine of $50.00 for the violation, which was failure to obtain a final inspection after completing a swimming pool. At the times material to these proceedings, Challenger Pools had several offices in south and central Florida, and built approximately 1,500 pools each year. Mr. Esquinaldo was the only qualifier for the company. The building code that governed each of the projects at issue herein was the South Florida Building Code, 1996 Edition. This Code required a number of inspections: For the structural portion of the pool, three inspections were required: the pool steel, the pool deck, and the final inspection. For the plumbing portion of the pool, three inspections were required: the main drain, pool piping, and the final inspection. For the electrical portion of the pool, three inspections were required: the electrical grounding of the steel structure, the pool deck grounding, and the final inspection. In addition, a final inspection was required for any fencing to be installed. It is the responsibility of the pool contractor to call for the required inspections for work over which it has responsibility. The South Florida Building Code, 1996 Edition, also provided that building permits, including permits for the construction of swimming pools, would expire if 180 days elapsed without the contractor calling for an inspection. It is not unusual in the pool contracting industry for inspections to reveal code violations. The contractor is, however, expected to correct the violations and any other deficiencies noted in the inspection reports. During the times material to these proceedings, it was the policy of Challenger Pools that, whenever a customer threatened a lawsuit or filed a lawsuit, it would stop work immediately on the customer's pool and it would cease all direct communications with the customer. Work would recommence at the direction of Challenger Pools' attorney. This policy was adopted on the advice of Challenger Pools' attorney. DOAH Case No. 98-3713 - Irving Jovellar On May 7, 1996, Challenger Pools, Inc., and Irving Jovellar entered into a Swimming Pool Construction Agreement for the construction of a swimming pool and spa at 188 Truxton Drive, Miami Springs, Florida. Addenda to the agreement were executed on June 6 and 22, 1996, and on September 6, 1996. The contract price was $14,000.00, with $1,600.00 added pursuant to the September 6, 1996, addendum. The full contract price of $15,600.00 was paid by Mr. Jovellar, and the check for the final payment was processed by the bank on October 2, 1996. 2/ On June 11, 1996, Challenger Pools applied to the City of Miami Springs, Florida, for a building permit for the pool. Challenger Pools began work on Mr. Jovellar's pool on June 13, 1996, and the swimming pool, plumbing, and electric permits were issued on July 12, 1996. Challenger Pools worked on Mr. Jovellar's pool throughout the summer of 1996. The steel installation was approved on July 19, 1996, and the slab was approved September 12, 1996. The pool was plastered on September 28, 1996, and the pool was filled with water and operating on September 30, 1996. 3/ In a letter dated September 26, 1996, Mr. Jovellar's attorney notified Challenger Pools that the gate to Mr. Jovellar's fence had been damaged during the pool excavation and that Mr. Jovellar expected to be compensated for the damage. Challenger Pools advised Mr. Jovellar that the excavator, Tom Waters, was responsible for the damage and that he should look to Mr. Waters for compensation. Mr. Jovellar filed suit against Mr. Waters in small claims court, served Mr. Waters in early February 1997, and recovered approximately $450.00 in damages from Mr. Waters. Mr. Jovellar's pool did not pass the plumbing final inspection dated November 8, 1996, because the pool heater was not properly installed. Challenger Pools renewed the structural and plumbing permits on July 24, 1997. In a letter dated October 30, 1997, Mr. Jovellar's attorney notified Challenger Pools that, if it did not correct the defects in the swimming pool, suit would be filed against Challenger Pools. Challenger Pools responded in a letter dated November 6, 1997, that it was prepared to correct the problems with the pool. Challenger Pools further advised that, because the pool permits had expired, it would apply to renew the permits so that work could begin. Challenger Pools renewed the structural, plumbing, and electrical permits on January 19, 1998. Challenger Pools went back to work on Mr. Jovellar's pool in January 1998. The next inspections of Mr. Jovellar's pool took place between July 15, 1998, and January 6, 1999, the date on which the pool passed its final inspection. Notwithstanding the plumbing inspection conducted on November 8, 1996, and the permit renewal on July 24, 1997, Mr. Esquinaldo testified that, on the advice of its attorney, Challenger Pools ceased work on Mr. Jovellar's swimming pool in early October 1996, when it received the September 26, 1996, letter from Mr. Jovellar's attorney regarding the broken fence gate. On the basis of Mr. Esquinaldo's testimony, it is established that Challenger Pools ceased work on Mr. Jovellar's pool in early October 1996. The evidence also establishes that work recommenced in early 1998. Accordingly, Challenger Pools failed to work on Mr. Jovellar's pool for a period in excess of 90 consecutive days between October 1996 and January 1998. The evidence further establishes that Challenger Pools ceased work because Mr. Jovellar threatened a lawsuit to recover damages for repair of a fence damaged by the person who excavated the pool. Under the circumstances, the threatened lawsuit did not constitute just cause for Challenger Pools' failure to work on Mr. Jovellar's pool between October 1996 and January 1998 even though Challenger Pools stopped work on the advice of its attorney; Challenger Pools advised Mr. Jovellar to proceed against the excavator to recover for the damages to the fence, which Mr. Jovellar did in early 1997. The Department did not present evidence sufficient to establish that Challenger Pools failed to work on Mr. Jovellar's pool for 90 consecutive days subsequent to January 1998. As of October 6, 1999, the Department had expended $160.52 in investigative costs and $2,433.90 in prosecutorial costs with respect to Mr. Jovellar's complaint. DOAH Case No. 99-2654 - David Casadona On September 30, 1996, Challenger Pools entered into a Swimming Pool Construction Agreement with David Casadona for construction of a residential swimming pool at 14910 Southwest 70th Place, Davie, Florida. The full contract price was $9,000.00, and Mr. Casadona made the final payment on the pool in March 1997. Mr. Casadona was building a house at this address, and, a representative of Challenger Pools advised Mr. Casadona that construction on the swimming pool would begin after construction on the house was completed. Mr. Casadona moved into the new house on November 6, 1996, and Challenger Pools began excavating the pool approximately a week and a half later, in mid-November 1996. Challenger Pools submitted applications to the Town of Davie for the electrical, plumbing, and structural permits for Mr. Casadona's pool on November 19, 1996. The permits to construct the swimming pool were issued on January 2, 1997. Mr. Casadona contracted separately for installation of a fence around the pool, and, pursuant to the agreement between Mr. Casadona and Challenger Pools, Mr. Casadona was responsible for ensuring that the fence met local building codes. Challenger Pools was not licensed to install fences, and the installation of a fence was not included in any of Challenger Pools' swimming pool construction agreements. The permit for the fence was issued January 2, 1997. The Town of Davie conducted a special inspection of Mr. Casadona's property on December 18, 1996, before the permits were issued for construction of the pool, to determine whether a fence existed on the property and the height of the fence, if one existed. At that time, the inspector discovered that the pool had already been excavated and that the rebar was in place. The inspector also noted that part of the footer for the rear patio of the house had been undermined. A permit is required before a pool is excavated, but it is not unusual for a pool contractor to begin excavation before the permit is issued. An inspection of the plumbing pool main drain was conducted on January 3, 1997, and approved without comment. An inspection of the electrical pool grounding was conducted on January 3, 1997, and approved without comment. An inspection of the structural pool steel was conducted on January 6, 1997. The pool steel was approved with an exception. The inspector noted that an area under the existing structure had been undermined, and Challenger Pools was directed to pour the gunnite for the pool as soon as possible and to consult an engineer for directions on how to return the existing structure to its original specifications. The inspector further required that an engineer provide certification that the existing structure had proper support in the area in which it was undermined. The face of the footer under the structure was exposed, and the earth underneath the structure was undermined about three or four inches; the undermining did not threaten the integrity of the existing structure. An inspection of the plumbing pool piping was conducted on January 16, 1997, and approved without comment. An inspection of the electrical pool deck bonding was conducted on January 27, 1997, and disapproved with the comment that all metal within 5 feet of the water must be bonded. An inspection of the structural pool deck steel was conducted on January 27, 1997, and disapproved with the comment that the item was not ready for inspection because the form boards were not completed. The electrical pool deck bonding was inspected on February 3, 1997, and approved without comment. The structural pool deck steel was inspected on February 4, 1997, and approved without comment. Challenger Pools worked on Mr. Casadona's pool from November 1996 through March 1997, when Challenger Pools applied the plaster to the pool and filled the pool with water. Once the pool was filled, Mr. Casadona began using the pool. Because Mr. Casadona had not installed the fence when Challenger Pools plastered the pool and filled it with water, Challenger Pools created a temporary enclosure for the pool by surrounding the pool with an orange plastic barrier. A plumbing pool final inspection was conducted on April 15, 1997, and disapproved because no approved plans or permit cards were available on-site. An electrical pool final inspection was conducted on April 15, 1997, and disapproved with the comment that no approved plans or permit cards were available on the site. Between April 1997 and October 1997, Challenger Pools corrected the violations noted on the inspection reports and made several service calls to work on Mr. Casadona's pool. By October 1997, Mr. Casadona had installed the required fence, but the gate was not in compliance with the South Florida Building Code. Challenger Pools requested a replacement set of plans for Mr. Casadona's pool on October 3, 1997, and they were provided on October 7, 1997. A plumbing pool final inspection was conducted on October 8, 1997. The work was disapproved because the pool's main drain was missing one screw. On October 8, 1997, an electrical pool final inspection was conducted. The electrical work was disapproved with seven comments identifying violations of the National Electric Code, as follows: NEC 110-3B Listed and labeled (insulate unused lead) NEC 680-22(a)-(l) Bond all metal within 5' x 12' (must see bond at handrail) NEC 110-16(a) Working clearance at service and controller NEC 680-20-B-1 Must see potting compound (5) NEC 680-6(A)(2)+(3)+(1), Receptacle (B)-(1), Light (6) NEC 680-10 UG. wiring not permitted within 5' of pool (8) [sic] Speaker wire not approved Item (1) refers to insulating the unused leads on the pool light. Item (2) refers to the lack or apparent lack of bonding on a handrail installed in the pool deck. Item (3) refers to the requirement that there be sufficient working clearance in front of the pump controller, which is a time switch transformer; with respect to this item, a hedge had been planted in front of the pool pump and filter by someone other than Challenger Pools, the shrubs blocked access to the pump controller, and Mr. Casadona refused to move the shrubs. Item (4) refers to the requirement that potting compound be used in the wet light niche in the pool to prevent the chemicals in the water from corroding the ground bonding connection; with respect to this item, Richard Boyette, a licensed professional engineer, certified in a letter to the Town of Davie dated April 3, 1998, that potting compound had been properly placed in the lighting niches in the pool. Item (6) refers to wiring being installed within 5 feet of the pool. Item "(8)" refers to speaker wires that are not allowed in the pool area. With respect to items (6) and "(8)", the violations were not the responsibility of Challenger Pools because they related to wiring for Malibu lights and two speakers installed by someone other than Challenger Pools. A structural pool deck final inspection was conducted on October 8, 1997, and approved without comment. A structural pool steel inspection was conducted on October 8, 1997, and disapproved with the comment that the pool had been completed without a pool steel inspection. In a letter dated April 3, 1998, Richard Boyette, a licensed professional engineer, certified to the Town of Davie that the pool steel had been properly placed according to the permit plans. A structural fence final inspection was conducted on October 8, 1997, and disapproved with the comment that "all fences and gates must be 5' high for yards with pools." The fence contractor was identified in the inspection report as Cercas Isla - Island Fence. Challenger Pools did not call for any inspections on Mr. Casadona's pool after it corrected the deficiencies noted in the October 1997 inspection reports until January 1999 because Mr. Casadona did not correct the violations for which he was responsible, that is, the fence gate height, the shrubs in front of the pool pump, and the electrical wires for the Malibu lights and speakers. Mr. Casadona was aware of these violations as a result of the October 8, 1997, inspection reports. Mr. Casadona and Challenger Pools' personnel were in regular contact during the October 1997 to January 1999 hiatus. Challenger Pools repeatedly asked Mr. Casadona to correct the fence gate height so that a structural pool final inspection could be approved and to remedy the electrical violations for which he was responsible. Challenger Pools let the situation remain unresolved because, on the basis of conversations Challenger Pools' personnel had with Mr. Casadona, there was no reason to believe that Mr. Casadona would not cooperate and correct the deficiencies. As of January 1999, Mr. Casadona had not made the required corrections. He did, however, file a complaint with the Department. At that time, Challenger Pools' attorney advised the company to finish Mr. Casadona's pool and close out the permit. Based on this advice, Challenger Pools renewed the permits and called for the final inspections. A plumbing pool final inspection was conducted on January 25, 1999, and approved without comment. A structural fence final inspection was conducted on January 25, 1999, and disapproved with the comment that "[t]here is no reference to a fence anywhere in the pool plans. The front gate is not self closing, self latching and is about 6" from being the 5' heighth [sic] requirement." An electrical pool final inspection was conducted on March 9, 1999, and disapproved with the comment that "working clearance violated at pump controller." The electrical final inspection was disapproved because Mr. Casadona would not remove the shrubs he had planted in front of the pool pump. An electrical pool final inspection was conducted on March 22, 1999, and approved, but the inspection report contained the comment that "working clearance violated at pump controller." A structural pool deck final was conducted on March 24, 1999, and approved with a comment that it had already been approved by another inspector. A structural fence final inspection was conducted on March 24, 1999, and disapproved with the comment that the fence was "not ready[;] the gate and latch are not 5' high." A structural fence final inspection was conducted on March 26, 1999, and rejected because the gate was not 5 feet high and was not self-closing and self-latching, as required by ordinance. The inspector also noted that no plan or permit for the fence was posted on the property and that no one was at home at the time of the inspection. A structural pool steel inspection was conducted on March 31, 1999, and disapproved because no one was at home and neither the plans nor the permit cards were posted. The inspector noted, however, that the pool was completed. In a letter to the Town of Davie dated February 18, 1999, and received by the Town of Davie on April 12, 1999, Mr. Boyette stated that the "steel and main drain inspection was bypassed due to a lack of communication on the above referenced pool. However, steel and main drain were in per code." An electrical pool final inspection was conducted on April 14, 1999, and disapproved with the comments "disconnect required for pump motor ahead of controller" and "unused transformer tap to be insulated at connection end." These were two items that the electrical inspector did not catch during the March 22, 1999, inspection. A structural pool final inspection was conducted on April 19, 1999, and was approved with the comments that the engineer's letter should be consulted regarding the missed pool steel inspection. A note was made in the report of the structural pool final inspection conducted on April 19, 1999, stating "Fence Final" with the comment that the fence and wall and existing front gate were 5 feet high and self-closing and self-latching. The permit for Mr. Casadona's pool was closed out by the Town of Davie Building Division on April 19, 1999, when the structural pool final inspection was approved. After the inspections conducted in October 1997, Challenger Pools corrected the violations noted in the inspection reports for which it was responsible. Challenger Pools did not do any work on Mr. Casadona's pool after it corrected the violations noted in the October 1997 inspection reports because it considered its work on the pool complete. The violations noted in the inspection reports for Mr. Casadona's pool were not unusual for the industry and were relatively minor. Challenger Pools corrected all of the violations and deficiencies noted in the inspection reports for Mr. Casadona's pool. The evidence presented by the Department is not sufficient to establish with the requisite degree of certainty that Challenger Pools failed to work on Mr. Casadona's pool for 90 consecutive days during the period from March 1997 until October 1997. However, the evidence presented is sufficient to establish with the requisite degree of certainty that Challenger Pools failed to work on Mr. Casadona's pool for 90 consecutive days during the period from October 1997 until January 1999. Challenger Pools could have done more to encourage Mr. Casadona to correct the height of his fence gate, remove the shrubs from around the pump controller, and remove the prohibited electrical wiring around the pool. Nonetheless, Challenger Pools had just cause to cease work on Mr. Casadona's pool because Challenger Pools could have reasonably concluded that its work on the pool was completed and that the only things remaining to be corrected were items for which Mr. Casadona was responsible. All of the violations noted on the inspection reports from January 1999 through April 1999 were the responsibility of Mr. Casadona with the exception of two minor code violations noted in the electrical pool final inspection conducted April 14, 1999, which violations were corrected by Challenger Pools prior to April 19, 1999. The evidence presented by the Department is not sufficient to establish with the requisite degree of certainty that the work Challenger Pools did on Mr. Casadona's pool was below industry standards. 4/ The evidence presented by the Department is sufficient to establish with the requisite degree of certainty that Challenger Pools commenced construction on Mr. Casadona's pool before the Town of Davie issued a building permit. The evidence presented by the Department is not sufficient, however, to establish with the requisite degree of certainty that Challenger Pools worked on Mr. Casadona's pool without having obtained the proper inspections. The inspection history establishes that, notwithstanding the notations on subsequent inspection reports, both the pool main drain and the pool steel were approved on January 3, 1997, and January 6, 1997, respectively. In addition, Challenger Pools called for final inspections of the plumbing, electric, and structural components of the pool on October 8, 1997, and again in January 1999, and closed out the permit on April 19, 1999. DOAH Case No. 99-2655 - Jameel Quadri On August 15, 1995, Challenger Pools entered into a Swimming Pool Construction Agreement with Jameel Quadri for construction of a residential swimming pool and spa at 239 Landings Boulevard, Fort Lauderdale, Florida. The full contract price was $12,240.00. Mr. Quadri was building a house on the property, and the agreement between Challenger Pools and Mr. Quadri provided that construction of the pool would not start until construction on the new house was completed. On October 3, 1996, Challenger Pools and Mr. Quadri entered into a contract addendum to the agreement that provided for the addition of brick pavers, a screen enclosure, and electrical work for the screen enclosure. The price of the additional items was $7,860.00. Mr. Quadri made the final payment on the pool agreement and addendum in April 1997. The applications for the building, screen enclosure, plumbing, and electrical permits for Mr. Quadri's swimming pool and spa were received by the Broward County Building and Permitting Department on October 15, 1996, and the permits were issued on October 29, 1996. The building, screen enclosure, and plumbing permits were issued to Challenger Pools as the contractor; and the electrical permit was issued to Specialty Device Installers. Even so, Challenger Pools remained responsible for the electrical work on the pool because it was included in the agreement. The permits were based on the plans for construction submitted with the permit applications, including the plans for the spa and the pool deck. Challenger Pools began construction on Mr. Quadri's pool on October 25, 1996, when the pool was excavated. A plumbing pool and spa main drain inspection was conducted on October 31, 1996, and was disapproved because the work was not ready for inspection and no safety railing had been installed around the excavation. An electrical pool grounding inspection was conducted on October 31, 1996, and disapproved for several reasons. A structural pool steel inspection was conducted on October 31, 1996, and disapproved for several reasons. The plumbing pool main drain was inspected on November 15, 1996, and disapproved because no Notice of Commencement had been recorded and because the safety fence was not completely around the pool. The electrical pool grounding was inspected and approved on November 15, 1996. The structural pool steel was inspected on November 15, 1996, and disapproved because of unsafe conditions, with the comment that safeguards were required. The plumbing pool and spa main drains were inspected on November 20 1996, and disapproved because the pool and spa main drains had only 38 and 33 pounds of pressure, respectively, when the code requires 40 pounds. The plumbing pool and spa main drains were inspected and approved on November 26, 1996. The structural pool steel was inspected on November 26, 1996, and approved. A plumbing pool piping inspection was conducted on December 9, 1996, and disapproved because the piping was not properly bedded, the dirt on the job site was not proper clean fill, and the piping was "within the angle of repose." The plumbing pool piping was inspected on December 20, 1996, and disapproved because the piping was not properly bedded. The plumbing pool piping was inspected and approved on December 24, 1996. An electrical pool deck grounding inspection was conducted on February 20, 1997, and disapproved for several reasons. A structural pool deck inspection was conducted on February 20, 1997, and disapproved for several reasons. The electrical pool deck grounding was inspected and approved on February 28, 1997. The structural pool deck was inspected and approved on February 28, 1997. Challenger Pools worked steadily on the pool until it was plastered on April 21, 1997, and filled with water. In April and May 1997, Challenger Pools received several telephone calls from Mr. Quadri regarding problems with his pool. In May 1997, Mr. Quadri called an attorney and asked that the attorney write a letter to Challenger Pools regarding what Mr. Quadri perceived were problems with the pool construction. In a letter dated May 22, 1997, Mr. Quadri's attorney identified the problems as follows: The deck area is not level, causing the pavers to break. The vacuum system has never been delivered or installed. The underwater pool light is dangling from its fixture and has exposed wires sitting in the water. The spa and jets do not work. The waterfall does not work. There are open and exposed wires at the pump. One of your trucks damaged the right side corner of Mr. Quadri's house and that condition has not been repaired. The ceramic underwater handles on the exterior of the spa are the wrong color. Mr. Quadri was promised white handles and you installed grey ones. The "exposed wires" mentioned in reference to the pool light were designed to be submerged in water, and the "exposed wires" at the pump were bonding wires running from the timer to the pump. Mr. Quadri's attorney notified Challenger Pools in the May 22, 1997, letter that, unless the defects identified in the letter were corrected within ten days of the date of the letter, Mr. Quadri would file suit against Challenger Pools for breach of contract. Challenger Pools did not respond to the letter of May 22, 1997, and no one from Challenger Pools came to the property to work on the pool and spa in response to that letter. In accordance with company policy, Challenger Pools ceased working on Mr. Quadri's pool and spa when it received the May 22, 1997, letter from Mr. Quadri's attorney threatening a lawsuit. In a letter dated August 14, 1997, Mr. Quadri's attorney sent Challenger Pools a letter demanding treble damages for theft arising out of the failure of Challenger Pools to complete Mr. Quadri's pool and spa after having been paid in full. In August 1997, at the request of Challenger Pools' attorney, Challenger Pools' vice president, Tom Camburn, and Challenger Pools' Fort Lauderdale field supervisor visited Mr. Quadri's property to view the pool and spa. Mr. Camburn and the field supervisor were in the vicinity of Mr. Quadri's pool for only 10 to 15 seconds before Mr. Quadri came out of the house and told them to leave the property, asserting that he was going to sue Challenger Pools. During those few seconds, Mr. Camburn observed that there was water in the pool and that some of the pavers forming the pool deck were sunken. He did not measure the pool and spa to determine if they were larger than represented in the original plans, although he did note that the pool and deck were larger than Challenger Pools usually builds. Challenger Pools' attorney responded to the August 14, 1997, letter with a letter dated August 20, 1997, advising Mr. Quadri's attorney of the outcome of the visit to Mr. Quadri's property and advising him that Challenger Pools would not go back to Mr. Quadri's property to inspect and repair any legitimate warranty complaints unless Mr. Quadri paid Challenger Pools a reasonable amount for the larger pool and spa. Challenger Pools based its contention that Mr. Quadri received a larger pool and spa than that specified in his contract on the fact that the invoice received for the pavers used in the pool deck was much higher than expected and showed that many more pavers were delivered to Mr. Quadri's property than were included in the original plans for Mr. Quadri's pool deck. The pavers were added to the contract in the addendum executed October 3, 1996, but neither the size of the deck nor the number of pavers was shown in the contract or in the addendum. 5/ In addition, no Change of Plans form was filed with the Broward County Building and Permitting Department indicating that there were any deviations from the original construction plans in the construction of Mr. Quadri's pool and spa, and no deviations from the original construction plans were noted by any of the building inspectors who conducted inspections of Mr. Quadri's pool and spa. In a notice dated August 27, 1997, Mr. Quadri was advised by the Broward County Building and Permitting Department that the permit for his pool and spa had expired. These notices are routinely sent by the Broward County Building and Permitting Department to both the property owner and the contractor when 150 days have elapsed without an inspection having been requested. The notice advises the property owner and the contractor that the permit will expire 30 days from the date of the notice. Challenger Pools did not receive a copy of the notice. Mr. Quadri renewed the permits on September 12, 1997, to avoid the penalties set forth in the notice; Challenger Pools continued to be named as contractor on the permits. A plumbing pool final inspection was conducted on September 15, 1997, and disapproved, with the comments that the main drain grid required two screws; 6/ the spa water level was low, possibly because of a leak; and the pavers were sinking around the spa. An electrical pool final inspection was conducted on September 15, 1997, which was disapproved, with comments that the pool screen was not bonded; the pool light was not in place; a bonding wire on the pool pump needed to be covered; and "[s]ealtite to pump motor in grass," meaning that the flexible electric conduit running from the timer/transformer subpanel to the pool pump was lying in the grass. No unsafe conditions were noted on the inspection report. A structural pool final inspection was conducted on September 15, 1997, and rejected, with the comments that there had been no final approval of the pool plumbing and electrical; that the paver deck was washed out in numerous places and needed to be repaired; that the riser at the rear steps was not to code; that the handholds were missing; and that the exterior wall of the raised spa needed finishing. Challenger Pools had installed ceramic underwater handholds on the pool, but Mr. Quadri was not satisfied with them because they were gray in color rather than white, the color he had selected. Challenger Pools did not remove the handholds. Neither Mr. Quadri nor Challenger Pools called for the inspections of Mr. Quadri's pool conducted on September 15, 1997. Rather, those inspections were apparently triggered by the renewal of the permits. Mr. Quadri did not file suit against Challenger Pools, but, by letter dated December 12, 1997, Mr. Quadri notified the Department that Challenger Pools had abandoned construction on his pool and spa and that the pool and spa still had numerous defects. After Challenger Pools received notice of the complaint filed by Mr. Quadri with the Department, Challenger Pools was advised by its attorney to obtain final inspections on Mr. Quadri's pool. An electrical pool final inspection was conducted on March 17, 1998, and disapproved because the screen enclosure needed to be bonded on both sides of the column. An electrical pool final inspection was conducted on March 27, 1998, and approved. A plumbing pool final inspection was conducted on October 9, 1998, and disapproved because the building permit had expired, the equipment was defective in that there was a cracked filter, and the equipment needed to be anchored. 7/ A structural pool final inspection was conducted on October 9, 1998, and disapproved because the permit had expired, and because of damaged sidewalks, no handholds, and a problem with a stairway. A plumbing pool final inspection was conducted on November 6, 1998, and disapproved because the permit card was not displayed on the site. Challenger Pools renewed the permits for Mr. Quadri's pool on November 16, 1998. A structural pool final inspection was conducted on November 20, 1998, and disapproved because the permit card was not at the site. A structural pool final inspection was conducted on November 30, 1998, and disapproved because of "previous inspections" and because the marcite was coming off and stucco was needed around the steps. A structural pool final inspection was conducted on December 3, 1998, and approved. A plumbing pool final inspection was conducted and approved on December 7, 1998. The Certificate of Occupancy for Mr. Quadri's swimming pool and spa was issued by the Broward County Building and Permitting Department on December 8, 1998. At the time of the final hearing, the pavers around Mr. Quadri's pool were uneven and sinking. Pavers are used for pool decks instead of concrete because concrete cracks as the earth beneath the deck settles. They are set on sand and are not grouted but, rather, are locked in with fine sand. It is not uncommon for paver decks to settle because strong rains can wash out the sand under the deck and cause erosion. As a result, pavers will sink or lift as the earth underneath shifts. The degree to which a paver deck shifts varies. Pressure washing a paver deck can cause the sand beneath the pavers to erode and shift, which causes the pavers to sink and lift. Mr. Quadri has cleaned the pavers around his pool and spa with a pressure cleaner at least every six months since it was installed. The evidence presented by the Department is sufficient to establish that Challenger Pools did not work on Mr. Quadri's pool between the end of April 1997 and March 1998 and between the end of March 1998 and October 1998. Challenger Pools may have been justified when it ceased work on Mr. Quadri's pool after the May 22, 1997, letter from Mr. Quadri's attorney threatening a lawsuit if the enumerated defects with the pool were not corrected. It was not justified, however, in failing to perform work on Mr. Quadri's pool after August 20, 1997; the evidence presented by Challenger Pool to justify the statement in the August 20, 1997, letter that it would not correct the problems with Mr. Quadri's pool until Mr. Quadri paid a "reasonable amount for the larger pool and spa he received" is not sufficient to establish that the pool and spa was, indeed, larger than the one for which Mr. Quadri contracted. In addition, Challenger Pools was not justified in failing to perform work on Mr. Quadri's pool between March 27, 1998, when the electrical pool final inspection was approved, and October 1998, because its attorney, in response to the December 1997 complaint to the Department, advised it to obtain final inspections and close out the permit. Accordingly, the evidence presented is sufficient to establish with the requisite degree of certainty that Challenger Pools failed to perform work on Mr. Quadri's pool for a period of 90 consecutive days without just cause. The evidence presented by the Department is not sufficient to establish with the requisite degree of certainty that the work Challenger Pools did on Mr. Quadri's pool was below minimum industry standards. 8/ The evidence presented by the Department is sufficient to establish with the requisite degree of certainty that Challenger Pools began excavating Mr. Quadri's pool after it applied for the necessary permits but before they were issued. The Department presented no evidence to establish that Challenger Pools proceeded with work on Mr. Quadri's pool without receiving the required inspections. In addition, Challenger Pools called for final inspections of the plumbing, electric, and structural components of the pool and closed out the permit on April 19, 1999. As of October 6, 1999, the Department had expended $1,088.47 in investigative costs and $1,307.47 in prosecutorial costs with respect to Mr. Quadri's complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED the Construction Industry Licensing Board enter a final order: Finding that Challenger Pools violated Section 489.129(1)(k), Florida Statutes (1997), in DOAH Case No. 98-3713 and DOAH Case No. 99-2655; Dismissing Count II of the Administrative Complaint in DOAH Case No. 98-3713; Dismissing the Administrative Complaint in DOAH Case No. 99-2654; Dismissing Counts II and III of the Administrative Complaint in DOAH Case No. 99-2655; and Imposing the following penalties on Bruce E. Esquinaldo, Jr., as qualifier of Challenger Pools: Assessing an administrative fine in the amount of $2,500.00 in DOAH Case No. 98-3713 and in DOAH Case No. 99-2655 for the violations of Section 489.129(1)(k), Florida Statutes (1997), for a total administrative fine of $5,000.00; Placing Mr. Esquinaldo's license on probation for a period of one year, subject to such terms and conditions as the Board may impose; and Assessing the costs of investigation and prosecution attributable to the violations of Section 489.129(1)(k), Florida Statutes (1997), in DOAH Case No. 98-3713 and DOAH Case No. 99- 2655. DONE AND ENTERED this 27th day of June, 2000, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 2000.
The Issue Whether Respondent's license as a pool contractor should be disciplined and, if so, what penalty to recommend.
Findings Of Fact At all times relevant hereto John A. Bennett, Respondent, was licensed by the Florida Construction Industry Licensing Board as a residential pool contractor, having been issued license number RP 0033592. He is the qualifying contractor for Quality Pools and Products, Inc., 2912 Forest Wood Drive, Seffner, Florida 33584 (Exhibit 2). On or about January 25, 1988, Evelyn L. Dittmer and James W. Dittmer entered into a contract with Quality Aquatech Pools & Spas (Quality Pools), 1500 N. Parsons Avenue, Brandon, Florida, to replace the liner and repair the bottom of the pool (Exhibit 5). This contract was signed by the Dittmers and Andy Priess, presumably the foreman of Quality Pools. The Dittmers never met Respondent, but they "understood" he owned the pool company. Printed on the bottom of Exhibit 1 is Respondent's state registration number. Employees of Quality Pools arrived on the site and removed the old liner. At this time, the bottom of the pool was in bad shape, but the workers attempted to replace the liner without repairing the bottom of the pool. They were stopped from replacing the liner and departed as they had brought no equipment with which to repair the bottom. Workers returned for the next several days to attempt to repair the bottom of the pool. Due to excessive ground water entering the pool, this task was onerous. The initial contract provided that if it became necessary to establish well points to keep excess water out of the pool, an additional fee of $200 would be required. The Dittmers paid this fee, but well points were not established. An addendum to the contract was prepared for additional work needed to get the bottom of the pool back in shape (Exhibit 1) and was signed by John A. Bennett. This provided for an additional payment of $600, but was not accepted or signed by the Dittmers. The new liner was ultimately installed, but was torn in the process and the unnatural hole in the bottom of the pool was not repaired. Although the Dittmers had paid Quality Pools the full contract price of $2700, which included a $200 charge for installing well points, the work was never satisfactorily completed, and Quality Pools failed to perform the work for which they had contracted. The project was finally abandoned by Quality Pools, and two of the pumps used to dewater the pool were left on the site. At no time did anyone from Quality Pools obtain a permit from Sarasota County where this work was done, and Quality Pools was not licensed to work in Sarasota County (Exhibit 3). After it became evident Quality Pools would not complete the repairs for which they had contracted, the Dittmers hired another contractor to whom they paid an additional $2945 to restore the pool to an operating condition (Exhibit 7).
Recommendation It is recommended that the charges against John A. Bennett arising out of the contract between the Dittmers and Quality Aquatech Pools & Spas be dismissed. RECOMMENDED this 5th day of January, 1990, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of January, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-4839 Proposed findings submitted by Petitioner are accepted with the exception of findings 3, 4, 5, 6, 7, 8, 11, 13, 14, 15, 16 and 17 which are rejected for the reason that the evidence submitted does not show Respondent to be the owner or qualifying contractor of Quality Aquatech Pools and Spas with whom the Dittmers contracted. Findings of fact cannot be founded in uncorroborated hearsay evidence not admissible over objection in civil proceedings. COPIES FURNISHED: Andrea Bateman, Esquire Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Michael S. Edenfield, Esquire 206 E. Mason Street Brandon, FL 33511 John A. Bennett 1500 Parsons Avenue Brandon, FL 33511 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32201 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 N. Monroe Street Suite 60 Tallahassee, FL 32399-0792 =================================================================
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
