The Issue Whether Respondent committed the offenses alleged in the Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact At all times relevant to this proceeding, Respondent has been licensed by the Petitioner as an electrical contractor. Respondent holds license EC 0002526. Respondent does business as M. H. Electrical Services (M. H. Electrical) at 11512 41st Court North, Royal Palm Beach, Florida. Petitioner is the agency of the State of Florida charged with regulating the practice of construction contracting in the State of Florida pursuant to the provisions of Section 20.165, Chapter 455, and Part II of Chapter 489, Florida Statutes. On May 15, 2007, M. H. Electrical, though the Respondent, drafted a proposal for electrical services to be done on a residence being constructed by Mr. Malone. The location of the residence is 1664 88th Road North, Royal Palm Beach Acreage, Florida. The contract price totaled $5,140.00. Work on the project commenced on May 17, 2007. There were many problems with the work performed by Respondent’s company that were ultimately corrected by Mr. Malone. Respondent’s workmen installed 15 “12 gauge” wires in a 3/4 pipe underground that was inconsistent with the applicable building code. Respondent’s workmen installed a pipe running from one electrical panel to another incorrectly. Respondent’s workmen wired attic fans in a manner that overloaded an electrical panel. Respondent’s workmen installed a ground rod of only three and a half feet. The applicable building code required a ground rod of eight feet. A kick plate is a metal piece that protects electrical wires from being pierced when sheetrock is being installed. Petitioner asserted that Respondent failed to install kick plates. Respondent’s testimony established that kick plates were not necessary due to the depth of the wall studs that were utilized. Respondent’s workmen installed two wires incorrectly in the laundry room of the house. The wires were cut, which caused a fire hazard. Petitioner did not establish that Respondent’s workmen cut the wires. Respondent’s workmen failed to properly ground whirlpool tub wires for two whirlpools by failing to ground the wires to the main pipe as required by the applicable building code. The work did not progress as contemplated by Mr. Malone and by Respondent. As owner of the premises, Mr. Malone called for all inspections of the electrical work. These inspections were performed by employees of the Palm Beach County, Florida, Planning, Zoning and Building Department (the County Building Department). The following is the inspection history between May 21 and October 10, 2007: Temporary Power scheduled for May 21 was cancelled. Temporary power on May 22 passed. Rough electric on June 8 failed. Rough electric on July 9 passed. Rough electric on October 10 failed. The progress of the work was impeded for two primary reasons. First, the testimony of the Respondent, which the undersigned finds to be credible, established that on more than one occasion Mr. Malone did not have necessary materials at the building site. Second, Respondent fired the lead electrician on the subject project approximately two weeks into the project. Following communications with an employee of Florida Power and Light (FPL), Mr. Malone determined that portions of the work performed by Respondent’s employees did not meet the applicable building code. The record is not clear whether this communication occurred before or after the passed inspection on July 9. The last date on which one of Respondent’s employees worked on the project was July 23, 2007. Mr. Malone paid M. H. Electrical the full contract price on July 25, 2007. Mr. Malone and Respondent had a conversation about the communication with the FPL employee. Mr. Malone refused to tell Respondent the name of the FPL employee who stated that some of the work did not meet code. The date of this conversation was not established. Mr. Malone testified that when he paid Respondent on July 25, he believed that a list of ten items needed to be repaired. Mr. Malone further testified that he paid Respondent before these items had been repaired because he believed that Respondent would return to make all necessary repairs. The undersigned finds this testimony to be credible. As of July 25, 2007, when payment was made in full, Respondent knew or should have known that there existed on this project a list of repairs to the electrical wiring that needed to be done. After July 25, 2007, Mr. Malone made repeated efforts to contact Respondent. In response to those calls, Respondent sent an employee to the site to discuss Mr. Malone’s concerns. A locked gate prevented that employee’s entry on the building site. The date of that event was not established. On or before October 10, 2007, Mr. Malone requested another inspection from the County Building Department. That inspection failed. A failed inspection means that there were one or more deficiencies that had to be corrected before the job could progress. The inspector posted a Correction Notice, which advised that the following needed to be done before the job would be accepted: a smoke detector in the master bedroom would have to be relocated to a higher part of the ceiling; a conduit would have to be rerun (this is the deficiency described in paragraph 5 of this Recommended Order); and a ground rod would have to be replaced (this is the deficiency described in paragraph 8 of this Recommended Order). On October 11, 2007, two of Respondent’s employees went to the building site to make any needed corrections. Mr. Malone refused to let the employees on the property. Respondent did not return any of the funds paid by Mr. Malone. Respondent did not terminate the contract. Mr. Malone made all necessary electrical repairs. On April 2, 2008, the project passed final inspection.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner enter a final order finding Respondent guilty of the violation alleged in Count I of the Administrative Complaint and not guilty of the violation in Count II. It is further RECOMMENDED that for the Count I violation, the final order issue a reprimand to Respondent and impose an administrative fine against Respondent in the amount of $1,000.00. DONE AND ENTERED this 20th day of October, 2009, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 20th day of October, 2009.
The Issue The issues in this case are whether Respondent, who was never licensed as a contractor, engaged in the unlawful practice of contracting when he entered into (and attempted to perform under) an agreement to build a dental office; and whether, if Respondent is found guilty of unlicensed contracting, Petitioner should penalize him by imposing an administrative fine and assessing investigative costs.
Findings Of Fact Petitioner Department of Business and Professional Regulation ("Department") has jurisdiction to take punitive action against unlicensed persons who unlawfully engage in the business of contracting. At no time relevant to this proceeding was Respondent James Bresnahan ("Bresnahan") licensed, certified, or registered to do business as a contractor of any sort. In June 2007, Bresnahan entered into a contract with University Dental Health Care Center, Inc. ("University"), whereby, in exchange for University's agreement to pay Bresnahan a total of $42,350 in compensation for his work, Bresnahan promised to remodel a bay at the Shoppes of Rolling Hills ("Rolling Hills"), a shopping center located in Davie, Florida, where University planned to operate a dental office. The contract described the scope of the work that Bresnahan would perform as follows: Remove all walls per plans. Redesign interior space to reflect new office plans. New electrical per plans. New plumbing per plans. New droped [sic] ceiling and lighting per plans per Ken. Finish all walls with new paint colors per Angela. New flooring [illegible] tile to be picked by owner. Install new compressor bracket on back of building. Bring all utilities to dental chairs (vac[uum], water, electric, air and drain; five chairs per plans per Ken. Proposal is for drawings and permits and construction of office. Cabinets and installation by others. Equipment and plumbing fixtures by others per Ken. Handycap [sic] bathroom by Shops [sic] of Rolling Hills. (Quoted text reformatted from "all uppercase" to "sentence case.") Bresnahan had not previously undertaken a construction project such as this. He had, however, overseen the build-out of his wife's bakery, which was located in Rolling Hills. For that project, Bresnahan had engaged a general contractor, Johnson Beckett, Inc. ("Johnson Beckett"). Bresnahan, in other words, had been the client, Johnson Beckett the builder. Bresnahan had been introduced to University's principals by their mutual landlord, who——perhaps being unaware of Bresnahan's actual role in the construction of the bakery—— touted Bresnahan as a "builder." Bresnahan had not advertised or promoted himself as a builder, but neither did he disclaim such expertise upon meeting the principals of University; to the contrary, he ultimately offered to build a dental office for University, leading to the contract described above. On June 21, 2007, upon entering into the construction agreement with Bresnahan, University made a down payment of $10,000 to Bresnahan. Because he was not in fact a builder, Bresnahan's plan was to use this money, and other payments he would receive from University, to hire Johnson Beckett to act as the "general contractor" for all aspects of the project except the plumbing and electrical work, for which Bresnahan intended to engage separate subcontractors. Johnson Beckett would not bid a fixed price for the project, however, without a proper construction plan. Consequently, Bresnahan entered into a contract (in his personal capacity, not as an agent for University) with Johnson Beckett, pursuant to which the general contactor was to obtain a blueprint for the dental office project, appropriately sealed by a licensed engineer. For this drafting work, Bresnahan agreed to pay Johnson Beckett $5,000. As Johnson Beckett proceeded, it encountered some difficulty in obtaining information, which the engineer needed, concerning the equipment that would be installed in the dental office. Meantime, little or no work was being accomplished at the jobsite, which began to create tensions between Bresnahan and University. Nevertheless, University gave Bresnahan another check, for $5,000, on July 19, 2007. As the weeks passed, however, University became increasingly frustrated at the lack of tangible progress; it began to lose patience with Bresnahan. When Linda Commons, an owner of the company, started pressing Bresnahan for an accounting, the relationship deteriorated further. On or around August 21, 2007, Bresnahan sent University a letter that announced he was unilaterally canceling their contract. Thereupon, Bresnahan abandoned the job. As of the final hearing, Bresnahan had not refunded to University any of the compensation he received. In connection with the instant matter, the Department has incurred investigative costs in the amount of $209.55. Ultimate Factual Determinations Bresnahan's negotiation of, entry into, and attempt to perform under the construction agreement with University constituted the practice of contracting under Florida law. Thus, Bresnahan, who was not a licensed contractor, is guilty of unlicensed contracting, as charged in Count I of the Administrative Complaint. Bresnahan's negotiation of, entry into, and attempt to perform under the construction agreement with University also constituted the practice of electrical contracting under Florida law. Thus, Bresnahan, who was not a licensed electrical contractor, is guilty of unlicensed electrical contracting, as charged in Count II of the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order which: (1) finds Bresnahan guilty of (a) engaging in the business of contracting without a license and (b) practicing electrical contracting without a license; (2) imposes an administrative fine of $10,000 for these incidents of unlicensed contracting; and (3) assesses investigative costs in the amount of $209.55. DONE AND ENTERED this 12th day of September, 2008, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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.stae.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of September, 2008. COPIES FURNISHED: Sorin Ardelean, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 James Bresnahan 4950 Southwest 70th Avenue Davie, Florida 33314 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 G.W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Nancy S. Terrel, Hearing Officer Department of Business and Professional Regulation Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaints dated June 3, 1998, and December 23, 1998, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency responsible for investigating and prosecuting complaints made to the Department for violations of Chapter 489, Part I, Florida Statutes. Sections 489.131(7)(e) and 455.225, Florida Statutes (1997). Pursuant to Section 489.129(1), Florida Statutes (1997), the Construction Industry Licensing Board ("Board") is the entity responsible for imposing discipline for any of the violations set forth in that section. At all times material to these proceedings, Mr. Esquinaldo was a licensed swimming pool contractor, having been issued license number CPCO50527 by the Board, and he was the qualifying contractor for Challenger Pools, Inc. ("Challenger Pools"). Mr. Esquinaldo has been a licensed swimming pool contractor since 1987. In that time, Mr. Esquinaldo has been cited by the Department once, in June 1992, and Mr. Esquinaldo paid an administrative fine of $50.00 for the violation, which was failure to obtain a final inspection after completing a swimming pool. At the times material to these proceedings, Challenger Pools had several offices in south and central Florida, and built approximately 1,500 pools each year. Mr. Esquinaldo was the only qualifier for the company. The building code that governed each of the projects at issue herein was the South Florida Building Code, 1996 Edition. This Code required a number of inspections: For the structural portion of the pool, three inspections were required: the pool steel, the pool deck, and the final inspection. For the plumbing portion of the pool, three inspections were required: the main drain, pool piping, and the final inspection. For the electrical portion of the pool, three inspections were required: the electrical grounding of the steel structure, the pool deck grounding, and the final inspection. In addition, a final inspection was required for any fencing to be installed. It is the responsibility of the pool contractor to call for the required inspections for work over which it has responsibility. The South Florida Building Code, 1996 Edition, also provided that building permits, including permits for the construction of swimming pools, would expire if 180 days elapsed without the contractor calling for an inspection. It is not unusual in the pool contracting industry for inspections to reveal code violations. The contractor is, however, expected to correct the violations and any other deficiencies noted in the inspection reports. During the times material to these proceedings, it was the policy of Challenger Pools that, whenever a customer threatened a lawsuit or filed a lawsuit, it would stop work immediately on the customer's pool and it would cease all direct communications with the customer. Work would recommence at the direction of Challenger Pools' attorney. This policy was adopted on the advice of Challenger Pools' attorney. DOAH Case No. 98-3713 - Irving Jovellar On May 7, 1996, Challenger Pools, Inc., and Irving Jovellar entered into a Swimming Pool Construction Agreement for the construction of a swimming pool and spa at 188 Truxton Drive, Miami Springs, Florida. Addenda to the agreement were executed on June 6 and 22, 1996, and on September 6, 1996. The contract price was $14,000.00, with $1,600.00 added pursuant to the September 6, 1996, addendum. The full contract price of $15,600.00 was paid by Mr. Jovellar, and the check for the final payment was processed by the bank on October 2, 1996. 2/ On June 11, 1996, Challenger Pools applied to the City of Miami Springs, Florida, for a building permit for the pool. Challenger Pools began work on Mr. Jovellar's pool on June 13, 1996, and the swimming pool, plumbing, and electric permits were issued on July 12, 1996. Challenger Pools worked on Mr. Jovellar's pool throughout the summer of 1996. The steel installation was approved on July 19, 1996, and the slab was approved September 12, 1996. The pool was plastered on September 28, 1996, and the pool was filled with water and operating on September 30, 1996. 3/ In a letter dated September 26, 1996, Mr. Jovellar's attorney notified Challenger Pools that the gate to Mr. Jovellar's fence had been damaged during the pool excavation and that Mr. Jovellar expected to be compensated for the damage. Challenger Pools advised Mr. Jovellar that the excavator, Tom Waters, was responsible for the damage and that he should look to Mr. Waters for compensation. Mr. Jovellar filed suit against Mr. Waters in small claims court, served Mr. Waters in early February 1997, and recovered approximately $450.00 in damages from Mr. Waters. Mr. Jovellar's pool did not pass the plumbing final inspection dated November 8, 1996, because the pool heater was not properly installed. Challenger Pools renewed the structural and plumbing permits on July 24, 1997. In a letter dated October 30, 1997, Mr. Jovellar's attorney notified Challenger Pools that, if it did not correct the defects in the swimming pool, suit would be filed against Challenger Pools. Challenger Pools responded in a letter dated November 6, 1997, that it was prepared to correct the problems with the pool. Challenger Pools further advised that, because the pool permits had expired, it would apply to renew the permits so that work could begin. Challenger Pools renewed the structural, plumbing, and electrical permits on January 19, 1998. Challenger Pools went back to work on Mr. Jovellar's pool in January 1998. The next inspections of Mr. Jovellar's pool took place between July 15, 1998, and January 6, 1999, the date on which the pool passed its final inspection. Notwithstanding the plumbing inspection conducted on November 8, 1996, and the permit renewal on July 24, 1997, Mr. Esquinaldo testified that, on the advice of its attorney, Challenger Pools ceased work on Mr. Jovellar's swimming pool in early October 1996, when it received the September 26, 1996, letter from Mr. Jovellar's attorney regarding the broken fence gate. On the basis of Mr. Esquinaldo's testimony, it is established that Challenger Pools ceased work on Mr. Jovellar's pool in early October 1996. The evidence also establishes that work recommenced in early 1998. Accordingly, Challenger Pools failed to work on Mr. Jovellar's pool for a period in excess of 90 consecutive days between October 1996 and January 1998. The evidence further establishes that Challenger Pools ceased work because Mr. Jovellar threatened a lawsuit to recover damages for repair of a fence damaged by the person who excavated the pool. Under the circumstances, the threatened lawsuit did not constitute just cause for Challenger Pools' failure to work on Mr. Jovellar's pool between October 1996 and January 1998 even though Challenger Pools stopped work on the advice of its attorney; Challenger Pools advised Mr. Jovellar to proceed against the excavator to recover for the damages to the fence, which Mr. Jovellar did in early 1997. The Department did not present evidence sufficient to establish that Challenger Pools failed to work on Mr. Jovellar's pool for 90 consecutive days subsequent to January 1998. As of October 6, 1999, the Department had expended $160.52 in investigative costs and $2,433.90 in prosecutorial costs with respect to Mr. Jovellar's complaint. DOAH Case No. 99-2654 - David Casadona On September 30, 1996, Challenger Pools entered into a Swimming Pool Construction Agreement with David Casadona for construction of a residential swimming pool at 14910 Southwest 70th Place, Davie, Florida. The full contract price was $9,000.00, and Mr. Casadona made the final payment on the pool in March 1997. Mr. Casadona was building a house at this address, and, a representative of Challenger Pools advised Mr. Casadona that construction on the swimming pool would begin after construction on the house was completed. Mr. Casadona moved into the new house on November 6, 1996, and Challenger Pools began excavating the pool approximately a week and a half later, in mid-November 1996. Challenger Pools submitted applications to the Town of Davie for the electrical, plumbing, and structural permits for Mr. Casadona's pool on November 19, 1996. The permits to construct the swimming pool were issued on January 2, 1997. Mr. Casadona contracted separately for installation of a fence around the pool, and, pursuant to the agreement between Mr. Casadona and Challenger Pools, Mr. Casadona was responsible for ensuring that the fence met local building codes. Challenger Pools was not licensed to install fences, and the installation of a fence was not included in any of Challenger Pools' swimming pool construction agreements. The permit for the fence was issued January 2, 1997. The Town of Davie conducted a special inspection of Mr. Casadona's property on December 18, 1996, before the permits were issued for construction of the pool, to determine whether a fence existed on the property and the height of the fence, if one existed. At that time, the inspector discovered that the pool had already been excavated and that the rebar was in place. The inspector also noted that part of the footer for the rear patio of the house had been undermined. A permit is required before a pool is excavated, but it is not unusual for a pool contractor to begin excavation before the permit is issued. An inspection of the plumbing pool main drain was conducted on January 3, 1997, and approved without comment. An inspection of the electrical pool grounding was conducted on January 3, 1997, and approved without comment. An inspection of the structural pool steel was conducted on January 6, 1997. The pool steel was approved with an exception. The inspector noted that an area under the existing structure had been undermined, and Challenger Pools was directed to pour the gunnite for the pool as soon as possible and to consult an engineer for directions on how to return the existing structure to its original specifications. The inspector further required that an engineer provide certification that the existing structure had proper support in the area in which it was undermined. The face of the footer under the structure was exposed, and the earth underneath the structure was undermined about three or four inches; the undermining did not threaten the integrity of the existing structure. An inspection of the plumbing pool piping was conducted on January 16, 1997, and approved without comment. An inspection of the electrical pool deck bonding was conducted on January 27, 1997, and disapproved with the comment that all metal within 5 feet of the water must be bonded. An inspection of the structural pool deck steel was conducted on January 27, 1997, and disapproved with the comment that the item was not ready for inspection because the form boards were not completed. The electrical pool deck bonding was inspected on February 3, 1997, and approved without comment. The structural pool deck steel was inspected on February 4, 1997, and approved without comment. Challenger Pools worked on Mr. Casadona's pool from November 1996 through March 1997, when Challenger Pools applied the plaster to the pool and filled the pool with water. Once the pool was filled, Mr. Casadona began using the pool. Because Mr. Casadona had not installed the fence when Challenger Pools plastered the pool and filled it with water, Challenger Pools created a temporary enclosure for the pool by surrounding the pool with an orange plastic barrier. A plumbing pool final inspection was conducted on April 15, 1997, and disapproved because no approved plans or permit cards were available on-site. An electrical pool final inspection was conducted on April 15, 1997, and disapproved with the comment that no approved plans or permit cards were available on the site. Between April 1997 and October 1997, Challenger Pools corrected the violations noted on the inspection reports and made several service calls to work on Mr. Casadona's pool. By October 1997, Mr. Casadona had installed the required fence, but the gate was not in compliance with the South Florida Building Code. Challenger Pools requested a replacement set of plans for Mr. Casadona's pool on October 3, 1997, and they were provided on October 7, 1997. A plumbing pool final inspection was conducted on October 8, 1997. The work was disapproved because the pool's main drain was missing one screw. On October 8, 1997, an electrical pool final inspection was conducted. The electrical work was disapproved with seven comments identifying violations of the National Electric Code, as follows: NEC 110-3B Listed and labeled (insulate unused lead) NEC 680-22(a)-(l) Bond all metal within 5' x 12' (must see bond at handrail) NEC 110-16(a) Working clearance at service and controller NEC 680-20-B-1 Must see potting compound (5) NEC 680-6(A)(2)+(3)+(1), Receptacle (B)-(1), Light (6) NEC 680-10 UG. wiring not permitted within 5' of pool (8) [sic] Speaker wire not approved Item (1) refers to insulating the unused leads on the pool light. Item (2) refers to the lack or apparent lack of bonding on a handrail installed in the pool deck. Item (3) refers to the requirement that there be sufficient working clearance in front of the pump controller, which is a time switch transformer; with respect to this item, a hedge had been planted in front of the pool pump and filter by someone other than Challenger Pools, the shrubs blocked access to the pump controller, and Mr. Casadona refused to move the shrubs. Item (4) refers to the requirement that potting compound be used in the wet light niche in the pool to prevent the chemicals in the water from corroding the ground bonding connection; with respect to this item, Richard Boyette, a licensed professional engineer, certified in a letter to the Town of Davie dated April 3, 1998, that potting compound had been properly placed in the lighting niches in the pool. Item (6) refers to wiring being installed within 5 feet of the pool. Item "(8)" refers to speaker wires that are not allowed in the pool area. With respect to items (6) and "(8)", the violations were not the responsibility of Challenger Pools because they related to wiring for Malibu lights and two speakers installed by someone other than Challenger Pools. A structural pool deck final inspection was conducted on October 8, 1997, and approved without comment. A structural pool steel inspection was conducted on October 8, 1997, and disapproved with the comment that the pool had been completed without a pool steel inspection. In a letter dated April 3, 1998, Richard Boyette, a licensed professional engineer, certified to the Town of Davie that the pool steel had been properly placed according to the permit plans. A structural fence final inspection was conducted on October 8, 1997, and disapproved with the comment that "all fences and gates must be 5' high for yards with pools." The fence contractor was identified in the inspection report as Cercas Isla - Island Fence. Challenger Pools did not call for any inspections on Mr. Casadona's pool after it corrected the deficiencies noted in the October 1997 inspection reports until January 1999 because Mr. Casadona did not correct the violations for which he was responsible, that is, the fence gate height, the shrubs in front of the pool pump, and the electrical wires for the Malibu lights and speakers. Mr. Casadona was aware of these violations as a result of the October 8, 1997, inspection reports. Mr. Casadona and Challenger Pools' personnel were in regular contact during the October 1997 to January 1999 hiatus. Challenger Pools repeatedly asked Mr. Casadona to correct the fence gate height so that a structural pool final inspection could be approved and to remedy the electrical violations for which he was responsible. Challenger Pools let the situation remain unresolved because, on the basis of conversations Challenger Pools' personnel had with Mr. Casadona, there was no reason to believe that Mr. Casadona would not cooperate and correct the deficiencies. As of January 1999, Mr. Casadona had not made the required corrections. He did, however, file a complaint with the Department. At that time, Challenger Pools' attorney advised the company to finish Mr. Casadona's pool and close out the permit. Based on this advice, Challenger Pools renewed the permits and called for the final inspections. A plumbing pool final inspection was conducted on January 25, 1999, and approved without comment. A structural fence final inspection was conducted on January 25, 1999, and disapproved with the comment that "[t]here is no reference to a fence anywhere in the pool plans. The front gate is not self closing, self latching and is about 6" from being the 5' heighth [sic] requirement." An electrical pool final inspection was conducted on March 9, 1999, and disapproved with the comment that "working clearance violated at pump controller." The electrical final inspection was disapproved because Mr. Casadona would not remove the shrubs he had planted in front of the pool pump. An electrical pool final inspection was conducted on March 22, 1999, and approved, but the inspection report contained the comment that "working clearance violated at pump controller." A structural pool deck final was conducted on March 24, 1999, and approved with a comment that it had already been approved by another inspector. A structural fence final inspection was conducted on March 24, 1999, and disapproved with the comment that the fence was "not ready[;] the gate and latch are not 5' high." A structural fence final inspection was conducted on March 26, 1999, and rejected because the gate was not 5 feet high and was not self-closing and self-latching, as required by ordinance. The inspector also noted that no plan or permit for the fence was posted on the property and that no one was at home at the time of the inspection. A structural pool steel inspection was conducted on March 31, 1999, and disapproved because no one was at home and neither the plans nor the permit cards were posted. The inspector noted, however, that the pool was completed. In a letter to the Town of Davie dated February 18, 1999, and received by the Town of Davie on April 12, 1999, Mr. Boyette stated that the "steel and main drain inspection was bypassed due to a lack of communication on the above referenced pool. However, steel and main drain were in per code." An electrical pool final inspection was conducted on April 14, 1999, and disapproved with the comments "disconnect required for pump motor ahead of controller" and "unused transformer tap to be insulated at connection end." These were two items that the electrical inspector did not catch during the March 22, 1999, inspection. A structural pool final inspection was conducted on April 19, 1999, and was approved with the comments that the engineer's letter should be consulted regarding the missed pool steel inspection. A note was made in the report of the structural pool final inspection conducted on April 19, 1999, stating "Fence Final" with the comment that the fence and wall and existing front gate were 5 feet high and self-closing and self-latching. The permit for Mr. Casadona's pool was closed out by the Town of Davie Building Division on April 19, 1999, when the structural pool final inspection was approved. After the inspections conducted in October 1997, Challenger Pools corrected the violations noted in the inspection reports for which it was responsible. Challenger Pools did not do any work on Mr. Casadona's pool after it corrected the violations noted in the October 1997 inspection reports because it considered its work on the pool complete. The violations noted in the inspection reports for Mr. Casadona's pool were not unusual for the industry and were relatively minor. Challenger Pools corrected all of the violations and deficiencies noted in the inspection reports for Mr. Casadona's pool. The evidence presented by the Department is not sufficient to establish with the requisite degree of certainty that Challenger Pools failed to work on Mr. Casadona's pool for 90 consecutive days during the period from March 1997 until October 1997. However, the evidence presented is sufficient to establish with the requisite degree of certainty that Challenger Pools failed to work on Mr. Casadona's pool for 90 consecutive days during the period from October 1997 until January 1999. Challenger Pools could have done more to encourage Mr. Casadona to correct the height of his fence gate, remove the shrubs from around the pump controller, and remove the prohibited electrical wiring around the pool. Nonetheless, Challenger Pools had just cause to cease work on Mr. Casadona's pool because Challenger Pools could have reasonably concluded that its work on the pool was completed and that the only things remaining to be corrected were items for which Mr. Casadona was responsible. All of the violations noted on the inspection reports from January 1999 through April 1999 were the responsibility of Mr. Casadona with the exception of two minor code violations noted in the electrical pool final inspection conducted April 14, 1999, which violations were corrected by Challenger Pools prior to April 19, 1999. The evidence presented by the Department is not sufficient to establish with the requisite degree of certainty that the work Challenger Pools did on Mr. Casadona's pool was below industry standards. 4/ The evidence presented by the Department is sufficient to establish with the requisite degree of certainty that Challenger Pools commenced construction on Mr. Casadona's pool before the Town of Davie issued a building permit. The evidence presented by the Department is not sufficient, however, to establish with the requisite degree of certainty that Challenger Pools worked on Mr. Casadona's pool without having obtained the proper inspections. The inspection history establishes that, notwithstanding the notations on subsequent inspection reports, both the pool main drain and the pool steel were approved on January 3, 1997, and January 6, 1997, respectively. In addition, Challenger Pools called for final inspections of the plumbing, electric, and structural components of the pool on October 8, 1997, and again in January 1999, and closed out the permit on April 19, 1999. DOAH Case No. 99-2655 - Jameel Quadri On August 15, 1995, Challenger Pools entered into a Swimming Pool Construction Agreement with Jameel Quadri for construction of a residential swimming pool and spa at 239 Landings Boulevard, Fort Lauderdale, Florida. The full contract price was $12,240.00. Mr. Quadri was building a house on the property, and the agreement between Challenger Pools and Mr. Quadri provided that construction of the pool would not start until construction on the new house was completed. On October 3, 1996, Challenger Pools and Mr. Quadri entered into a contract addendum to the agreement that provided for the addition of brick pavers, a screen enclosure, and electrical work for the screen enclosure. The price of the additional items was $7,860.00. Mr. Quadri made the final payment on the pool agreement and addendum in April 1997. The applications for the building, screen enclosure, plumbing, and electrical permits for Mr. Quadri's swimming pool and spa were received by the Broward County Building and Permitting Department on October 15, 1996, and the permits were issued on October 29, 1996. The building, screen enclosure, and plumbing permits were issued to Challenger Pools as the contractor; and the electrical permit was issued to Specialty Device Installers. Even so, Challenger Pools remained responsible for the electrical work on the pool because it was included in the agreement. The permits were based on the plans for construction submitted with the permit applications, including the plans for the spa and the pool deck. Challenger Pools began construction on Mr. Quadri's pool on October 25, 1996, when the pool was excavated. A plumbing pool and spa main drain inspection was conducted on October 31, 1996, and was disapproved because the work was not ready for inspection and no safety railing had been installed around the excavation. An electrical pool grounding inspection was conducted on October 31, 1996, and disapproved for several reasons. A structural pool steel inspection was conducted on October 31, 1996, and disapproved for several reasons. The plumbing pool main drain was inspected on November 15, 1996, and disapproved because no Notice of Commencement had been recorded and because the safety fence was not completely around the pool. The electrical pool grounding was inspected and approved on November 15, 1996. The structural pool steel was inspected on November 15, 1996, and disapproved because of unsafe conditions, with the comment that safeguards were required. The plumbing pool and spa main drains were inspected on November 20 1996, and disapproved because the pool and spa main drains had only 38 and 33 pounds of pressure, respectively, when the code requires 40 pounds. The plumbing pool and spa main drains were inspected and approved on November 26, 1996. The structural pool steel was inspected on November 26, 1996, and approved. A plumbing pool piping inspection was conducted on December 9, 1996, and disapproved because the piping was not properly bedded, the dirt on the job site was not proper clean fill, and the piping was "within the angle of repose." The plumbing pool piping was inspected on December 20, 1996, and disapproved because the piping was not properly bedded. The plumbing pool piping was inspected and approved on December 24, 1996. An electrical pool deck grounding inspection was conducted on February 20, 1997, and disapproved for several reasons. A structural pool deck inspection was conducted on February 20, 1997, and disapproved for several reasons. The electrical pool deck grounding was inspected and approved on February 28, 1997. The structural pool deck was inspected and approved on February 28, 1997. Challenger Pools worked steadily on the pool until it was plastered on April 21, 1997, and filled with water. In April and May 1997, Challenger Pools received several telephone calls from Mr. Quadri regarding problems with his pool. In May 1997, Mr. Quadri called an attorney and asked that the attorney write a letter to Challenger Pools regarding what Mr. Quadri perceived were problems with the pool construction. In a letter dated May 22, 1997, Mr. Quadri's attorney identified the problems as follows: The deck area is not level, causing the pavers to break. The vacuum system has never been delivered or installed. The underwater pool light is dangling from its fixture and has exposed wires sitting in the water. The spa and jets do not work. The waterfall does not work. There are open and exposed wires at the pump. One of your trucks damaged the right side corner of Mr. Quadri's house and that condition has not been repaired. The ceramic underwater handles on the exterior of the spa are the wrong color. Mr. Quadri was promised white handles and you installed grey ones. The "exposed wires" mentioned in reference to the pool light were designed to be submerged in water, and the "exposed wires" at the pump were bonding wires running from the timer to the pump. Mr. Quadri's attorney notified Challenger Pools in the May 22, 1997, letter that, unless the defects identified in the letter were corrected within ten days of the date of the letter, Mr. Quadri would file suit against Challenger Pools for breach of contract. Challenger Pools did not respond to the letter of May 22, 1997, and no one from Challenger Pools came to the property to work on the pool and spa in response to that letter. In accordance with company policy, Challenger Pools ceased working on Mr. Quadri's pool and spa when it received the May 22, 1997, letter from Mr. Quadri's attorney threatening a lawsuit. In a letter dated August 14, 1997, Mr. Quadri's attorney sent Challenger Pools a letter demanding treble damages for theft arising out of the failure of Challenger Pools to complete Mr. Quadri's pool and spa after having been paid in full. In August 1997, at the request of Challenger Pools' attorney, Challenger Pools' vice president, Tom Camburn, and Challenger Pools' Fort Lauderdale field supervisor visited Mr. Quadri's property to view the pool and spa. Mr. Camburn and the field supervisor were in the vicinity of Mr. Quadri's pool for only 10 to 15 seconds before Mr. Quadri came out of the house and told them to leave the property, asserting that he was going to sue Challenger Pools. During those few seconds, Mr. Camburn observed that there was water in the pool and that some of the pavers forming the pool deck were sunken. He did not measure the pool and spa to determine if they were larger than represented in the original plans, although he did note that the pool and deck were larger than Challenger Pools usually builds. Challenger Pools' attorney responded to the August 14, 1997, letter with a letter dated August 20, 1997, advising Mr. Quadri's attorney of the outcome of the visit to Mr. Quadri's property and advising him that Challenger Pools would not go back to Mr. Quadri's property to inspect and repair any legitimate warranty complaints unless Mr. Quadri paid Challenger Pools a reasonable amount for the larger pool and spa. Challenger Pools based its contention that Mr. Quadri received a larger pool and spa than that specified in his contract on the fact that the invoice received for the pavers used in the pool deck was much higher than expected and showed that many more pavers were delivered to Mr. Quadri's property than were included in the original plans for Mr. Quadri's pool deck. The pavers were added to the contract in the addendum executed October 3, 1996, but neither the size of the deck nor the number of pavers was shown in the contract or in the addendum. 5/ In addition, no Change of Plans form was filed with the Broward County Building and Permitting Department indicating that there were any deviations from the original construction plans in the construction of Mr. Quadri's pool and spa, and no deviations from the original construction plans were noted by any of the building inspectors who conducted inspections of Mr. Quadri's pool and spa. In a notice dated August 27, 1997, Mr. Quadri was advised by the Broward County Building and Permitting Department that the permit for his pool and spa had expired. These notices are routinely sent by the Broward County Building and Permitting Department to both the property owner and the contractor when 150 days have elapsed without an inspection having been requested. The notice advises the property owner and the contractor that the permit will expire 30 days from the date of the notice. Challenger Pools did not receive a copy of the notice. Mr. Quadri renewed the permits on September 12, 1997, to avoid the penalties set forth in the notice; Challenger Pools continued to be named as contractor on the permits. A plumbing pool final inspection was conducted on September 15, 1997, and disapproved, with the comments that the main drain grid required two screws; 6/ the spa water level was low, possibly because of a leak; and the pavers were sinking around the spa. An electrical pool final inspection was conducted on September 15, 1997, which was disapproved, with comments that the pool screen was not bonded; the pool light was not in place; a bonding wire on the pool pump needed to be covered; and "[s]ealtite to pump motor in grass," meaning that the flexible electric conduit running from the timer/transformer subpanel to the pool pump was lying in the grass. No unsafe conditions were noted on the inspection report. A structural pool final inspection was conducted on September 15, 1997, and rejected, with the comments that there had been no final approval of the pool plumbing and electrical; that the paver deck was washed out in numerous places and needed to be repaired; that the riser at the rear steps was not to code; that the handholds were missing; and that the exterior wall of the raised spa needed finishing. Challenger Pools had installed ceramic underwater handholds on the pool, but Mr. Quadri was not satisfied with them because they were gray in color rather than white, the color he had selected. Challenger Pools did not remove the handholds. Neither Mr. Quadri nor Challenger Pools called for the inspections of Mr. Quadri's pool conducted on September 15, 1997. Rather, those inspections were apparently triggered by the renewal of the permits. Mr. Quadri did not file suit against Challenger Pools, but, by letter dated December 12, 1997, Mr. Quadri notified the Department that Challenger Pools had abandoned construction on his pool and spa and that the pool and spa still had numerous defects. After Challenger Pools received notice of the complaint filed by Mr. Quadri with the Department, Challenger Pools was advised by its attorney to obtain final inspections on Mr. Quadri's pool. An electrical pool final inspection was conducted on March 17, 1998, and disapproved because the screen enclosure needed to be bonded on both sides of the column. An electrical pool final inspection was conducted on March 27, 1998, and approved. A plumbing pool final inspection was conducted on October 9, 1998, and disapproved because the building permit had expired, the equipment was defective in that there was a cracked filter, and the equipment needed to be anchored. 7/ A structural pool final inspection was conducted on October 9, 1998, and disapproved because the permit had expired, and because of damaged sidewalks, no handholds, and a problem with a stairway. A plumbing pool final inspection was conducted on November 6, 1998, and disapproved because the permit card was not displayed on the site. Challenger Pools renewed the permits for Mr. Quadri's pool on November 16, 1998. A structural pool final inspection was conducted on November 20, 1998, and disapproved because the permit card was not at the site. A structural pool final inspection was conducted on November 30, 1998, and disapproved because of "previous inspections" and because the marcite was coming off and stucco was needed around the steps. A structural pool final inspection was conducted on December 3, 1998, and approved. A plumbing pool final inspection was conducted and approved on December 7, 1998. The Certificate of Occupancy for Mr. Quadri's swimming pool and spa was issued by the Broward County Building and Permitting Department on December 8, 1998. At the time of the final hearing, the pavers around Mr. Quadri's pool were uneven and sinking. Pavers are used for pool decks instead of concrete because concrete cracks as the earth beneath the deck settles. They are set on sand and are not grouted but, rather, are locked in with fine sand. It is not uncommon for paver decks to settle because strong rains can wash out the sand under the deck and cause erosion. As a result, pavers will sink or lift as the earth underneath shifts. The degree to which a paver deck shifts varies. Pressure washing a paver deck can cause the sand beneath the pavers to erode and shift, which causes the pavers to sink and lift. Mr. Quadri has cleaned the pavers around his pool and spa with a pressure cleaner at least every six months since it was installed. The evidence presented by the Department is sufficient to establish that Challenger Pools did not work on Mr. Quadri's pool between the end of April 1997 and March 1998 and between the end of March 1998 and October 1998. Challenger Pools may have been justified when it ceased work on Mr. Quadri's pool after the May 22, 1997, letter from Mr. Quadri's attorney threatening a lawsuit if the enumerated defects with the pool were not corrected. It was not justified, however, in failing to perform work on Mr. Quadri's pool after August 20, 1997; the evidence presented by Challenger Pool to justify the statement in the August 20, 1997, letter that it would not correct the problems with Mr. Quadri's pool until Mr. Quadri paid a "reasonable amount for the larger pool and spa he received" is not sufficient to establish that the pool and spa was, indeed, larger than the one for which Mr. Quadri contracted. In addition, Challenger Pools was not justified in failing to perform work on Mr. Quadri's pool between March 27, 1998, when the electrical pool final inspection was approved, and October 1998, because its attorney, in response to the December 1997 complaint to the Department, advised it to obtain final inspections and close out the permit. Accordingly, the evidence presented is sufficient to establish with the requisite degree of certainty that Challenger Pools failed to perform work on Mr. Quadri's pool for a period of 90 consecutive days without just cause. The evidence presented by the Department is not sufficient to establish with the requisite degree of certainty that the work Challenger Pools did on Mr. Quadri's pool was below minimum industry standards. 8/ The evidence presented by the Department is sufficient to establish with the requisite degree of certainty that Challenger Pools began excavating Mr. Quadri's pool after it applied for the necessary permits but before they were issued. The Department presented no evidence to establish that Challenger Pools proceeded with work on Mr. Quadri's pool without receiving the required inspections. In addition, Challenger Pools called for final inspections of the plumbing, electric, and structural components of the pool and closed out the permit on April 19, 1999. As of October 6, 1999, the Department had expended $1,088.47 in investigative costs and $1,307.47 in prosecutorial costs with respect to Mr. Quadri's complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED the Construction Industry Licensing Board enter a final order: Finding that Challenger Pools violated Section 489.129(1)(k), Florida Statutes (1997), in DOAH Case No. 98-3713 and DOAH Case No. 99-2655; Dismissing Count II of the Administrative Complaint in DOAH Case No. 98-3713; Dismissing the Administrative Complaint in DOAH Case No. 99-2654; Dismissing Counts II and III of the Administrative Complaint in DOAH Case No. 99-2655; and Imposing the following penalties on Bruce E. Esquinaldo, Jr., as qualifier of Challenger Pools: Assessing an administrative fine in the amount of $2,500.00 in DOAH Case No. 98-3713 and in DOAH Case No. 99-2655 for the violations of Section 489.129(1)(k), Florida Statutes (1997), for a total administrative fine of $5,000.00; Placing Mr. Esquinaldo's license on probation for a period of one year, subject to such terms and conditions as the Board may impose; and Assessing the costs of investigation and prosecution attributable to the violations of Section 489.129(1)(k), Florida Statutes (1997), in DOAH Case No. 98-3713 and DOAH Case No. 99- 2655. DONE AND ENTERED this 27th day of June, 2000, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 2000.
The Issue The issue is whether Respondent (“Ricky Lee Diemer”) offered to engage in unlicensed contracting as alleged in the Administrative Complaint, and, if so, what penalty should be imposed.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, matters subject to official recognition, and the entire record in this proceeding, the following Findings of Fact are made: The Department is the state agency responsible for regulating the practice of contracting pursuant to section 20.165, Florida Statutes, and chapters 455 and 489, part I, Florida Statutes. The Department initiated an undercover operation by gaining access to a house needing numerous repairs. The Department employees then utilized websites, such as Craigslist and HomeAdvisor, to identify people offering unlicensed contracting services. The Department employees found an advertisement posted by “RLD Handyman Services” on December 26, 2017, offering to perform multiple types of contracting work. This advertisement caught the Department’s attention because it did not list a contracting license number. Section 489.119(5)(b), requires every advertisement for contracting services to list such a number.2/ The advertisement listed a phone number, and the Department utilized the Accurint phone system to ascertain that the aforementioned phone number belonged to Mr. Diemer. The Department examined its records and ascertained that Mr. Diemer was not licensed to perform construction or electrical contracting in Florida. The Department contacted Mr. Diemer and approximately 12 other people offering contracting services and scheduled appointments for those people to discuss contracting work with an undercover Department employee at the house mentioned above. An undercover Department employee told Mr. Diemer and the other prospective contractors that he had recently bought the house and was hoping to sell it for a profit after making some quick repairs. An undercover Department employee met Mr. Diemer at the house and described their resulting conversation as follows: A: We looked at remodeling a deck on the back, the southern portion of the home. We looked at cabinets, flooring and painting that are nonregulated in nature, but also plumbing and general contracting services such as exterior doors that needed to be replaced, and the electrical, some appliances and light fixtures. Q: All right. So was there any follow-up communication from Mr. Diemer after your discussion at the house? A: Yes. We walked around the house. He looked at the renovations that we were asking. He took some mental notes as I recall. He didn’t make any written notes as some of the others had done. He did it all in his head, said that he was working on another project in the Southwood area at the time and just left his work crew there to come and visit with me and was rushed for time. So he was in and out of there in 10 to 15 minutes. It was pretty quick. Q: Okay. A: But he took the mental notes and said that he would go back and write something up and send me a proposal through our Gmail. . . . On February 7, 2018, Mr. Diemer transmitted an e-mail to the Department’s fictitious Gmail account offering to perform multiple types of work that require a contracting license: kitchen sink installation, bathroom remodeling, construction of an elevated deck and walkway, installation of light fixtures, and installation of front and back doors.3/ Mr. Diemer proposed to perform the aforementioned tasks for $13,200.00.4/ The work described in Mr. Diemer’s e-mail poses a danger to the public if done incorrectly or by unlicensed personnel.5/ The Department incurred costs of $118.55 for DOAH Case No. 18-6578 and $91.45 for DOAH Case No. 18-6579. The Department proved by clear and convincing evidence that Mr. Diemer advertised or offered to practice construction contracting without holding the requisite license. The Department also proved by clear and convincing evidence that Mr. Diemer practiced construction and electrical contracting when he transmitted the February 7, 2018, e-mail.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation issue a final order requiring Ricky Lee Diemer to pay a $9,000.00 administrative fine and costs of $210.00. DONE AND ENTERED this 1st day of April, 2019, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 2019.
The Issue The issues are as follows: (a) whether Respondents each engaged in the unlicensed practice of contracting as defined in Sections 489.105(3) and 489.105(6), Florida Statutes (2006), in violation of Section 489.127(1)(f), Florida Statutes (2006); (b) whether Respondents each engaged in the unlicensed practice of electrical contracting as defined by Sections 489.505(9) and 489.505(12), Florida Statutes (2006), in violation of Section 489.531(1), Florida Statutes (2006); and (c) if so, what penalty should be imposed.
Findings Of Fact At all times material here, Respondents were married and doing business together as "B and P Enterprises of Central Florida, Inc." The "B and P" stands for Brenda and Phillip. Respondents are not and never have been licensed to engage in contracting or electrical contracting in Florida. In March 2006, Carla Adams had recently purchased her first home and sought to refinance it. The lender required an inspection of the home. The lender also required that any work on the home be performed by a licensed person or entity. In March 2006, an inspector employed by Pillar to Post, Inc., conducted an inspection of Ms. Adams' home. The inspection report, dated March 10, 2006, listed a number of areas that needed work and made recommendations for correction of those problems. In July 2006, Ms. Adams saw an advertisement in a newspaper for the sale of a used car. Ms. Adams and Rev. Tracey Davis went to Respondents' property with the objective of purchasing a used vehicle. While on the property, Ms. Adams and Rev. Davis entered the Respondents' home. Because both women admired the home, Respondents gave them a tour. During the tour, Respondents stated that Henley had performed the work himself. While in Respondents' home, Ms. Adams and Rev. Davis told Respondents that Ms. Adams needed work done on her home. Ms. Adams also told Respondents that her lender required that the work be done by a licensee. Henley, both upon his own volition and after being asked, told Ms. Adams and Rev. Davis that he was a licensed contractor. Henley removed a picture-ID card from his wallet and stated this was his license to practice contracting. Respondent Carpenter condoned this statement. Ms. Adams showed Respondents the March 10, 2006, inspection report. Henley assured Ms. Adams that he could do everything on the report that needed to be done. Henley further stated that his license was issued by “DBPR” - the Department of Business and Professional Regulation. Carpenter affirmatively agreed with this statement. Henley warned Ms. Adams that she should never have work done by anyone that was not licensed or certified and that she could check licensure status with DBPR. Respondent Carpenter affirmed this warning. Before speaking with Respondents, Ms. Adams and Rev. Davis had never heard of DBPR. It was only due to Henley’s reference to DBPR that Ms. Adams knew she could contact Petitioner regarding the issues in this case. Respondents advised Ms. Adams that they were willing to go to Ms. Adams’ home and give her an estimate of what they would charge to perform the needed work. Ms. Adams and Rev. Davis left Respondents' property expecting to see Respondents in the near future. In August 2006, Respondents went to Ms. Adams’ home in Tallahassee, Florida. Ms. Adams told Respondents she needed electrical, structural and plumbing work done as set forth in the Pillar-to-Post report. Respondents then inspected the home, took measurements, and made a verbal offer to perform the needed contracting work. Respondents returned to Ms. Adams’ home later in August 2006. At that time, Respondents presented Ms. Adams with a written estimate of what they would charge to do certain contracting work on her home. The proposal included, but was not limited to, structural, plumbing and electrical work. Respondents' proposal stated as follows in relevant part: REMOVE ALL OLD FLOOR COVERING Carpet Padding Lineoleum (sic) Square Stick tile Tack strip All of the above, but not limited to just above 1,470 Sq. Ft. @ $1.10 Sq. Ft. INSTALL NEW FLOOR COVERING 1,470 Sq. Ft. of tile on floor @ $1.75 Sq. Ft. and install Durarock (sic) or hardi (sic) backing board, if needed KITCHEN Remove wall and old 1/2 bathroom and put back to finished product Not including finishing drywall and painting drywall Remove all old plumbing and re-route Electrical wires HALL BATHROOM Remove bathtub, and tub walls Install durarock (sic) and new plumbing fixtures [a]s provided by homeowner Install 100 Sq. Ft. of wall tile around old tub area @ $1.75 Sq. Ft. [m]aking a new shower in the room Build a curbing, and drypack and install shower floor tile Install drain and rubber pan REMOVE OLD RAILING FROM FRONT PORCH The total price listed for the above referenced work was $5,234.50. Ms. Adams had received other estimates for the work. Therefore, Ms. Adams was pleased with the price and sought assurance that it would not increase. Respondents promised Ms. Adams that the cost would not increase. To further assure her, they both signed the contract in her presence. During the hearing, Henley admitted that he contracted with Ms. Adams to perform the labor as listed on this contract. In an attempt to ascertain Henley’s skill as a contractor, Ms. Adams decided to begin with the renovation of the bathroom located in the entrance way to the master bedroom. Ms. Adams agreed to buy the construction, plumbing, or electrical materials that Henley needed to do the work. Ms. Adams works two jobs and was not always home when Respondents performed the contracted work. As a result, Rev. Davis, who lived nearby, was present at the home to let Respondents in and observe the work. In order to enlarge the bathroom adjoining the master bedroom, Henley demolished a wall between the old bathroom and a walk-in closet. Henley also removed the door into the old bathroom and constructed a single wall with the entrance to the enlarged room through the door to the old closet. In the course of this alteration and expansion, Henley damaged the adjoining wall to the living room. He subsequently repaired the damage. In the enlarged bathroom, Henley removed a sink from the old bathroom area and installed it in the area that had been a closet. The area of the old closet had no plumbing. The removal and installation of the sink required Henley to remove old piping and replace it with larger pipes to increase the water flow. During the hearing, Henley admitted removing the sink and disconnecting the plumbing. Henley installed the custom-built shower as described in the contract in Ms. Adams’ bathroom. During the hearing, Henley admitted cutting a hole in the floor of Ms. Adams’ bathroom and installing a shower drain pan. Henley removed and replaced the toilet in Ms. Adams’ bathroom. Additionally, Henley, with Carpenter's help, removed the old bathtub. Henley admitted removing the bathtub and disconnecting the plumbing. Henley then installed a replacement Jacuzzi bathtub at the location of the previously-removed bathtub in Ms. Adams’ bathroom. Henley had to remove the old piping and replace it with larger pipes to increase the water flow for the replacement Jacuzzi. The toilet, sink, and bathtub removal and the shower- installation required plumbing work that made it necessary to turn off the water to the home. During the course of installing the Jacuzzi bathtub, Henley discovered that his work resulted in drainage problems he could not correct. For the first time, he told Ms. Adams that his license did not allow him to perform plumbing work. Henley then told Ms. Adams that, as the contractor on the job, he could subcontract the needed plumbing work. In early September 2006, Henley called Roto-Rooter as a plumbing subcontractor. Roto-Rooter performed the following plumbing work at Ms. Adams' home: Hooked up all the basic [drain] lines and the toilet in new bathroom to the m/l [main line]. Also ran water lines for the new sink, but found problem with shower valve. It was put in wrong and will not work until it's moved. Note: Everything else is working at this time. Price includes parts and labor. ( * * * out the tile and fix shower valve, not everything is working.) The Roto-Rooter invoice indicates a total cost in the amount of $1,432.78 for the work performed in Ms. Adams' home. Ms. Adams and Respondents had a financial dispute about which party had to pay Roto-Rooter. The dispute ultimately led to a falling out regarding the completion of the contracted work. Ms. Adams’ bathroom currently is inoperable because the toilet and Jacuzzi bathtub do not work. There is raw sewage underneath her home. In order to repair her bathroom, Ms. Adams received an estimate of approximately $5,000.00. Ms. Adams’ decision to begin with the renovation of her bathroom also involved ascertaining Henley’s skills as an electrical contractor. Based on his assurances that he could do the work, Ms. Adams allowed Henley to remove and relocate electrical light fixtures and switches in the bathroom, closet, and hallway. During the course of this work, Henley left hot wires exposed. On or about September 14, 2006, Carpenter came to Ms. Adams’ home and presented an invoice for $1,200.00 for the contracted work that had been performed pursuant to the initial contract. The invoice was on the letter head of “Brenda & Phillip, Phillip Henley, Inc." It stated as follows in relevant part: Remodel Master Bathroom Take out all fixtures-sink, cabinet, cast iron tub, toilet and replace with new Jacucci (sic) tub, new sink and cabinet, new shower and put back old toilet. Take out old tile on walls and drywall, take out two closets to enlarge bathroom. Re-wire and re-plumb all fixtures and installed durarock (sic) on floor, walls and wet areas and installed blueboard on balance of walls. Built a custom shower and installed custom tile design on walls and floor. Cost: $1,900.00 Less cash advances: 8/9 $100 8/16 $300 8/22 $300 $700 -700.00 $1,200.00 Plus: Materials & receipts: 8/11 $ 81.19 8/17 23.67 8/19 26.84 8/24 108.51 $240.21 +$240.21 Balance Due: $1,440.00 Other labor -240.00 $1,200.00 The invoice was signed by Henley and Carpenter and included the following statement: "Thank you for doing business with Brenda & Phillip!" The invoice stated that the check should be payable to Carpenter. Excluding costs associated with an attorney's time, Petitioner has expended $554 in total cost relative to the investigation and prosecution of DOAH Case No. 09-2541 against Carpenter and $1,005.67 in total cost relative to the investigation and prosecution of DOAH Case No. 09-2545 against Henley.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order finding that each Respondent violated Sections 489.127(1)(f) and 489.531(1), Florida Statutes, imposing a total administrative fine in the amount of $11,000 against each Respondent, and assessing costs in the amount of $554 against Carpenter and $1,005.67 against Henley. DONE AND ENTERED this 23rd day of February, 2010, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 2010. COPIES FURNISHED: Maura M. Bolivar, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399 Brenda Carpenter Phillip Henley 5209 Southwest U.S. 221 Greenville, Florida 32331 Amy Toman, Hearing Officer Office of the General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Reginald Dixon, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether the Respondent, Dominick A. Solitario, committed the offenses alleged in the Amended Administrative Complaint and, if so, what disciplinary action should be taken.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made. At all times pertinent to this proceeding, Respondent, Dominick Solitario, was licensed as a certified pool contractor in the state of Florida, having been issued license no. CP CA17558. At all times pertinent to this proceeding, Respondent was the licensed qualifying agent for Jade Pools, Inc. Sometime around February of 1988, Respondent contracted with Michael and Linda Skidd to remarcite the swimming pool at the Skidd's home in Coral Springs, Florida. The contract price for the remarciting of the Skidd's pool was $2000.00. Respondent has been paid in full for this work. There is no evidence that there were any leaks in the Skidd's pool prior to the time the work was undertaken by Respondent. At the time the work was begun, one of the Respondent's employees discovered an expansion plug that had been inserted in the main drain. The employee inquired as to whether the Skidds had experienced any problems with the drain. The Skidds denied having any problems. The evidence presented at the hearing was inconclusive as to whether the main drain was working properly. At the time the Respondent began work under the contract, the Skidds were using a "creepy crawler" to clean the pool. This device required the main drain to be shut off. While Mrs. Skidd testisfied that she thought the main drain was working properly, she admitted that her husband was more familiar with the cleaning and mechanical aspects of the pool. Mr. Skidd did not testify. Respondent contends that Mr. Skidd was present at the time the plug was removed from the main drain and that the condition was brought to his attention. However, it does not appear that either Respondent or Mr. Skidd knew why the drain was plugged or the significance of the situation. Respondent proceeded with his contractual work without conducting any tests to determine whether there was a leak in the main drain. When the work was completed, the workers directed the Skidds not to use their main drain. No explanation was given for this instruction. After the work was completed, the Skidds turned on the main drain and lost approximately four inches of water from the pool in a relatively short time. The Skidds turned off the drain and called Jade Pools. An employee of Jade Pools came out and inspected the premises. He advised the Skidds not to use the main drain, but instead to use their "creepy crawler." The Respondent's employee indicated that there was a leak in the main drain. It is not cler how he reached that conclusion. In order to complete the work on the Skidd contract, Respondent's employees were required to install a pressure release valve near the pool's main drain by drilling through the bottom of the pool. The hole for this valve was drilled several inches away from the main drain and its plumbing. Petitioner suggests that the Respondent's employees may have punctured the main drain or its plumbing when this hole was drilled. However, no persuasive evidence was introducted to prove this allegation. Respondent contends that the pool was improperly constructed and/or that the main drain line had been previously damaged and plugged shut to avoid detection of the leak. In order to perform the contracted work, Respondent's employees unplugged the drain and the alleged preexisting leak became evident. Respondent has inserted a plug into the main drain and claims that the pool is now in the same condition it was when he began his work. Respondent has refused to repair the main drain or perform any additional work unless he is paid for it. At the time that Respondent first proposed to enter into a contract with the Skidds, he was told by the Skidds that there was a suction leak at the pump. In retrospect, Respondent contends that this suction leak confirms the preexisting problem with the main drain. No conclusvie evidence was presented to establish why the pool is leaking. As of the date of the hearing, the Skidds are still unable to use their main drain. The Petitioner did not present persuasive evidence to establish that Respondent was responsible for the leak in the Skidds' pool. While it is possible that the Respondent's employees caused the leak when they drilled the hole for the pressure release valve, an equally likely explanation is that there was an existing problem that had been obscured by the prior plugging of the main drain. On or about June 29, 1987, Respondent contracted with Anthony Gallagher to construct a swimming pool and a deck at Mr. Gallagher's home in Coral Springs, Florida for the contract price of $17,800.00. Respondent has been paid in full for this work less $100 for damage caused during construction. The contract with Mr. Gallagher called for Respondent's company to top the existing patio slab and tie it into a newly added patio deck surrounding the pool. The building permit for this work was pulled by Jade Pools. Although the work on the Gallagher deck and pool was completed sometime in late 1987 or early 1988, the pool and deck have still not passed final inspection by the City. The local building officials have refused to approve the final inspection on the Gallgher's deck because of the excessive slope from the back of the house to the pool. The pitch of the deck constructed by Respondent's company from the back of the Gallagher's house to the pool is very severe, effectively rendering a portion of the deck unusable. A table cannot sit flat on this portion of the deck because of the slope. The Respondent's construction of a deck with such a severe slope that it is incapable of passing final inspection constitutes incompetency in the practice of contracting. In order to provide a usable deck, Respondent should have ripped out the existing deck or placed the pool at a higher elevation. Respondent contends that his contract did not call for him to rip out the existing deck, but only to top it. He claims the existing deck that was topped had a similarly severe pitch. Nonetheless, Respondent is responsible for insuring that his final product is functional and able to pass inspection. Respondent has failed to take any remedial action to obtain a successful final inspection. During construction, the Gallaghers, on several occassions, expressed displeasure with the deck and its excessive slope in some areas. On two occasions, Respondent sent his workmen out to correct certain aspects of the construction that the Gallaghers found unacceptable. Ultimately, the homeowners paid the Respondent in full and instructed Respondent to stay off their property. Although Respondent's presentation was somewhat unclear, he appears to argue that these actions by the Gallaghers relieve him of any liability for his work under this contract. However, the evidence established that the Respondent was never able to obtain a successful final inspection of his work at the Gallagher home. This failure is the direct result of the excessive pitch in the patio he constructed. While the Gallaghers have paid the full amount of the contract and are apparently using the pool and patio, these facts do not relieve Respondent from responsibility for the incompetently constructed deck. The City of Coral Springs requires a deck electrical inspection to insure that all the steel in the deck is on the same electrical field (same electrical bond) as the pool. Jade Pools failed to call for this electrical bond inspection before pouring the Gallagher's deck. Ultimately, the city building officials required the Respondent's company to expose a portion of the steel in the deck to confirm that the pool was properly bonded. This test indicated that the pool was in fact properly bonded. On or about August 10, 1988, Respondent contracted with Kevin Fusco to construct a swimming pool and deck at Mr. Fusco's home in Boca Raton, Florida for a total contract price of $10,030.00. Respondent has been paid in full under this contract. Jade Pools obtained the building permit for the Fusco's pool. Therefore, Respondent's company was responsible for obtaining all of the inspections for the construction, including the final inspection. Prior to the time that work was begun on the Fusco contract, Respondent's employees inspected the property and were advised as to some existing problems with drainage in the backyard of the house. The Fusco's lot was designed to drain from back to front. A berm runs behind the Fusco property and causes water to drain through the backyard. On some occasions prior to construction, this drainage situation resulted in standing water against the back of the house. The installation of the Fusco's pool seriously affected the drainage plan for the property. After the pool was installed, there was often standing water all around the deck following a rain. After construction was started and the deck was formed out, the county refused to give approval for pouring the deck because of anticipated problems with drainage in the backyard. One of Respondent's employees advised the Fuscos that if they removed approximately three feet of soil from around the deck, the county would allow them to proceed with pouring the deck. Based upon this recommendation, the Fuscos entered into a contract with a company recommended by Respondent. That company removed approximately six or eight feet of soil all around the deck and installed a rock bed in the area. The cost of this removal was in addition to the contractual price agreed to between Respondent and the Fuscos and was borne by the Fuscos. As indicated above, the installation of the pool greatly exacerbated the drainage problems that previously existed on the property. Respondent did not warn the homeowners prior to construction to expect this result nor did the Respondent take steps to preclude these additional drainage problems. While Respondent contends that the Fusco's property was inappropriately graded prior to the time the work was initiated, Respondent never brought this fact to the attention of the homeowners until after the pool was installed and the increased drainage problems became evident. After the work was completed, the county inspectors advised the homeowners that the pool did not pass final inspection because of drainage problems caused by the pool and deck. By the time the Fuscos found out the pool had not passed final inspection, Respondent had been paid in full under the contract. The Fuscos contacted Jade Pools, which refused to take any corrective action. The Respondent claimed that drainage problems were not part of his company's responsibility and refused to return to the property to correct the problem even though the pool had not passed final inspection. The Fuscos hired an engineer to design an acceptable solution to the drainage problem and arranged for the completion of the work at their own expense. In accordance with this solution, the homeowners installed a series of french drains around the back yard in order to try to get the water to percolate into the ground. After this additional work was completed, the pool passed final inspection by the county. It was approximately one year after Jade Pools finished its work before the final inspection was passed. The Fuscos continue to experience increased drainage problems on their property as a result of the installation of the pool and deck. These problems include standing water around the deck after a heavy rain and, in some instances, an overflow of water into the pool. While the Respondent was installing the Fusco's pool, Respondent was concurrently installing a pool at the house next door. There has been no drainage problems on the property next door because the elevation on that house is higher. The Fusco's pool was actually installed at a level that was at or below the surrounding ground level. The problems associated with such an installation were never explained to the homeowners prior to the time the work was commenced. Respondent contends that this situation was necessary because of the existing elevations of the house and lot. He says that the pool and deck had to be installed in a manner that provided a four inch step down from the house and also matched the existing slab. The drainage problems could have been minimized by swaling out from the pool area to the side of the house. While Respondent contends that such "landscaping" efforts were not part of his contract, he should have not undertaken the work unless he could adequately deal with the drainage problem and ensure that the final installation would pass inspection. The pool contractor is responsible for insuring that, after the pool is built, proper drainage is obtained around the pool. The efforts undertaken by the Respondent were insufficient to deal with the resulting drainage problems and constitute incompetency in the practice of contracting.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Construction Industry Licensing Board enter a Final Order finding Respondent guilty of violations of Section 489.129(d) and (m), Florida Statutes, in connection with the Fusco and Gallagher contracts, issuing a reprimand and imposing a fine on Respondent in the amount of $2,000.00 for having committed these violations. In addition, Respondent should be placed on probation for two years and required to reimburse the Fusco's for the money they have expended to correct the drainage problems caused by Respondent. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 8th day of February, 1991. J. STEPHEN MENTON 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 8th day of February, 1991.
The Issue The issues to be resolved in this proceeding concern whether the Respondent committed the charged violations of Sections 489.127(1)(f) and 489.531(1), Florida Statutes, as set forth in the Administrative Complaint, and, if so, what if any penalty is warranted.
Findings Of Fact On or about December 11, 2006, the Respondent entered into a contract with Ms. Carolyn H. Wilson for remodeling work, at Ms. Wilson's home in St. Petersburg, Florida. The scope of the work included in the Respondent's "Quotation" or their agreement, involved structural work, plumbing, and electrical work. The Respondent presented himself as being properly licensed for the work which he contracted to perform at Ms. Wilson's property. The Respondent had dictated the terms of the agreement or contract to Mr. Caleb Alfred who wrote the terms required by the Respondent into the "Quotation" form provided by the Respondent. Mr. Alfred was paid a $200.00 commission for referring Ms. Wilson and her job to the Respondent. Mr. Alfred is not affiliated in any way with the Respondent, however, and was a coworker at a local school with Ms. Wilson, who was the Assistant Principal. Ms. Wilson understood that she was contracting for work to be done by the Respondent and not by Mr. Alfred. The Respondent and Ms. Wilson signed the "Quotation" form as the contract for the project. The Respondent was never licensed to engage in any category of contracting in the State of Florida at any time material to the facts in this case and to the allegations in the Administrative Complaint. On December 11, 2006, the Respondent was paid $7,000.00, by Ms. Wilson's check no. 1022, the day the agreement was entered into. Thereafter he was paid $11,000.00 on December 19, 2006, by check no. 1024 issued by Ms. Wilson. He was paid on December 21, 2006, $1,400.00 by check no. 1025 and another $3,000.00 on December 22, 2006, by Ms. Wilson's check no. 1026. The Respondent also incurred some additional charges on Ms. Wilson's Home Depot and Lowes accounts for certain tools and items which he kept after he left the job. The Respondent maintains that he kept those tools as a remedy for work that he had performed for which Ms. Wilson had not paid him. The work the Respondent contracted to do required a permit. No permit of any kind for the referenced project was ever obtained. The electrical work to be performed by the Respondent included the installing of 10 recessed lights and two outlets. The lights to be installed, some of which were installed by the Respondent, were plug-in lights. The outlets installed by the Respondent involved merely screwing existing wires into the new outlets. They did not involve the addition of any wiring to the project or the home. The dishwasher to be installed by the Respondent did not actually involve plumbing. The plumbing work was already done and was existing at the site. The Respondent merely had to screw the plumbing outlet on the dishwasher to the standing plumbing or pipe. The installation of the flooring and the installation of the wall in the residence accomplished by the Respondent was structural work and constituted contracting. The wall was installed and was attached to the trusses of the structure. The flooring portion of the project involved installation of the hardwood flooring and the pad beneath, the charge for which totaled approximately $15,400.00 itself. The Respondent is a native of Trinidad. While residing in Trinidad he built houses. He therefore is quite experienced in construction. He has a "handyman" license from the City of Sanford. That handyman license prohibits electrical repair or replacement of any type, roof repair, installation of exterior doors and windows, and any work that requires a permit. The Respondent apparently was of the belief that he was authorized to do the type of work at issue, based on the strength of holding handyman license. Additionally, the handyman exemption from licensure which is provided in Section 489.103(9), Florida Statutes, references contracts under $1,000.00 dollars. It also requires, for an exemption, that the work involved not require any permitting. Neither is the case here, the work involved much more than $1,000.00 and did require permitting, at least in part. The Respondent apparently finished most of the job at issue. It is debatable whether he finished the dishwasher installation which merely involved placing it and screwing it into the already existing plumbing outlet. There is apparently a dispute over whether he was to install cabinets. The Respondent maintains that Ms. Wilson was to purchase and have installed the cabinets. It is therefore debatable, and not clear from the evidence of record, whether the Respondent is indeed still owed money by Ms. Wilson, or whether he charged more money for his work during the course of the project than they had agreed to and therefore owes her a refund. In any event, the monetary dispute is not of direct relevance to the question of the violations charged in the Administrative Complaint. The Department adduced testimony of its investigator concerning investigative costs. She thus testified that she had no recollection of how many hours or how much time she had expended in investigating the case culminating in the Administrative Complaint. She testified that she relied on a computer time-tracking program of the Department. But no such record was offered into evidence, nor the custodian of such record to testify. Consequently, the cost figure asserted by the Department as investigative cost for this proceeding of $520.18 has not been proven by persuasive, competent evidence.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation finding that the Respondent violated Sections 489.127(1)(7) and 489.531(1), Florida Statutes, and imposing an administrative penalty in the amount of $2,000.00. DONE AND ENTERED this 29th day of August, 2008, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 29th day of August, 2008. COPIES FURNISHED: Sorin Ardelean, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Nancy S. Terrel, Hearing Officer Office of the General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Barry Rigby, Esquire Law Offices of Barry Rigby, P.A. 924 North Magnolia Avenue, Suite 319 Orlando, Florida 32803 G.W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times material hereto Respondent, George W. Boukater, was a certified general contractor, license number CG C012598, and a registered pool contractor, license number RP 0032042. Respondent was the qualifier for Swimming Pools by M.J. Donohue, Inc. (Donohue), under license number RP 0032042, from February 1979 until June 30, 1985. On July 29, 1984 Donohue contracted to construct a swimming pool at the residence of Ms. Loretta Hunley in Fort Lauderdale, Florida, for the sum of $6,400.00. Respondent, on behalf of Donohue, applied for and received the building and plumbing permits for the pool. Apart from securing the permits, Respondent had no contact with the job and never inspected its progress. By August 30, 1984, Donohue had substantially completed the pool. All that remained to be done was to marcite the pool, hook up the pool light and plumbing, and install the pumps. However, before these items could be completed it was necessary that the area surrounding the pool be backfilled, the patio poured, and the electric installed. Under the July 29, 1984 contract Ms. Hunley did not contract with Donohue for any patio, electric or fence work. She expressly retained responsibility for that work in an effort to save money on the pool construction. The area surrounding the pool was not backfilled and the patio slab approved by the Broward County Building and Zoning Department (County) until September 14, 1984. As of September 5, 1985, the fence work was still in violation of the County code. The electric work received the County's final approval on January 8, 1986. In October 1984 demands were exchanged between Ms. Hunley and Donohue. Ms. Hunley demanded that the pool be completed. Donohue demanded adequate electrical service so the pool could be pumped and cleaned for marciting, and dates when someone would be available at the premises. In November 1984 Donohue got its pumps in operation, however Ms. Hunley disconnected them in the evenings. Consequently, the pool could not be drained and cleaned to marcite it. In November 1984 Ms. Hunley ejected Donohue from the job site. Subsequently, Ms. Hunley and Donohue formally settled their dispute.
