The Issue The issues presented for decision herein are whether or not Respondent failed to properly supervise a pool construction project, willfully violated local laws, is guilty of gross negligence, incompetence, misconduct, fraud or deceit in the practice of contracting and failed to discharge his supervisory duties as a qualifying agent in violation of sections 489.129(1)(d), (m), (j), and sections 489.119 and 489.105 (4), Florida Statutes.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings. At all times material hereto, Respondent was a registered pool contractor in Florida, holding license no. RP0015329 and served as the qualifying agent for Paradise Pools, Inc. (Request for Admission, responses 1- 4). Petitioner is the regulatory agency in Florida charged with the authority to regulate contractors and to determine compliance with applicable state and local building code requirements. On May 31, 1986, Respondent entered into a contract with Alex and Theresa Nitu for the construction of a swimming pool at the Nitu's residence at 9550 Lisa Road in Dade County, Florida. The following day, the Nitus were approached by John Davis, a partner of Paradise Pools, Inc. Davis identified himself as the owner of Paradise Pools and told the Nitus that Respondent was the company salesman. Davis is not a licensed contractor. During construction, Davis supervised the work for the Nitus' pool. Mrs. Nitu was ill and remained at home on the day the workers laid reinforcing steel for the pool shell. Mr. Nitu, an electrical contractor, took off work and was at home during the two days when the gunite work was done for their pool. Respondent was not present on the job site on those days. The day after the concrete deck was poured, the Nitus noticed that it contained several low spots which collected water and that rocks were protruding through the deck's surface. Additionally, a portion of the deck sloped toward the pool rather than away from it. The following day, the Nitus returned home from work to discover that the "whitecoat" for the deck surface was completed and their water hose, weighted down by a rock and a rag, was filling the pool. The pool was filled with water before the Nitus had completed a fence to secure the pool. At Mr. Nitu's request, James Tucker, a Dade County Building Inspector, inspected the pool on August 6, 1986. Tucker issued a notice of violation to Respondent for allowing water to be put in the pool without proper safety barriers in contravention of section 33-12, Dade County Code; for allowing the deck to slope toward the pool in contravention of section 5003.1 of the South Florida Building Code and for using concrete of less than 2500 psi strength in contravention of section 5003.1(a), South Florida Building Code. In an attempt to correct the low spots and improper slope of the patio, Davis poured an additional layer of cement over the pool deck and scored the surface to create the appearance of keystone. Thereafter, the Nitus discovered hollow areas under certain parts of the keystone. Eventually, the keystone began to separate from the original deck exposing large areas of the deck. Ben Sirkus was tendered and accepted as an expert in pool construction. Sirkus inspected the Nitu's pool on September 24, 1987, at Petitioner's request. Sirkus observed low spots in the pool deck which held water and contributed to the growth of algae. He also observed that large areas of the imitation keystone had separated from the original deck; that portions of the deck still drained towards rather than away from, the pool; that coping mortar had been left on the sides of the coping and the pool shell; that areas of the whitecoat were unusually rough and that the pool pump was off level, which in time could cause scoring of the bearings in the pump. Sirkus opined that the deficiencies observed could not have gone unnoticed by a pool contractor of average skill and ability; that deficiencies indicate poor supervision or gross negligence or that Respondent exhibited incompetence in contracting for the Nitu's pool. John Davis, Respondent's partner and the person who was usually on the site during all facets of the construction, credibly testified that when the angles were laid out for the sloping of the decks surrounding the Nitu's pool, Alex Nitu requested that his employees angle the deck toward the pool such that it would mesh with his patio. This required that Respondent's employees reslope the angles in accord with Mr. Nitu's wishes and contrary to the manner in which they originally sloped the deck. Mr. Davis also attempted to correct the problems that had surfaced surrounding the deck in accordance with the concerns expressed by the Nitus. However, the Nitus vehemently refused access to Respondent's employees and the matter therefore, remained unresolved. Respondent Reise was at the construction site on numerous occasions during the major facets of the construction. In addition to being the principal salesman for Paradise Pools, Respondent Reise has extensive experience in the construction of pools and frequently consulted with his partner, John Davis, about the ongoing construction of the Nitu's pool. Respondent Reise also attempted to gain access to the pool to attempt to correct the problems and other concerns expressed by the Nitus, to no avail. In this regard, a meeting was held at the Nitu's residence on January 30, 1987, by Jim Tucker and Robert Denery, employees of the Dade County Building and Zoning Department, a Mr. Wolf, Petitioner's investigator, Respondent and his partner, John Davis. After a lengthy discussion, it was agreed that all problems were to be resolved which included (1), repair and patch the keystone on the east end of the pool and (2), rework the slope on the northside of the pool to pitch away from the pool and (3), submit test results from an engineering test lab as to the structural strength of the patio slab and final approval by the electrical and plumbing departments of Dade County. Respondent agreed to correct the above-referenced items and agreed to do so as quickly as feasible. The Nitus refused to allow Respondent's employees back on the site to correct the problems. (Respondent's Exhibit 1). John Davis and Respondent's other employees denied that they started filling the Nitu's pool prior to the time that the Nitus had completed a fence to secure it. Their denial in this regard is incredible and is not worthy of belief. The Nitus, in this regard, credibly testified that they were at all times concerned about the safety of the pool and would never have started filling it prior to the time that it was secured. Respondent's employees, on the other hand, were in fact interested in completing the job and it is therefore believed that they started the water running into the pool and weighted the hose down with a rock and a rag as the Nitus found it when they returned home from work on the day that the "whitecoat" was completed. In all other respects, based on the Nitus' failure to permit Respondent's employees to return to the site to complete the deficiencies and other concerns noted, the undersigned finds that Respondent should have been afforded an opportunity to correct such deficiencies and cannot be held liable 1/ for the allegations that he improperly sloped the pool deck, used improper concrete or was otherwise negligent, incompetent, engaged in misconduct and other allegations of improper supervision, as alleged. I shall so recommend.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Respondent be assessed an administrative fine in the amount of $250.00. Respondent be issued a written reprimand for allowing his employees to fill an unsecured pool in violation of the local building code. DONE and ORDERED this 16th day of September, 1988, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 1988.
Findings Of Fact Melnikoff is the holder of a certified pool contractor's license, having been issued license No. CP C032540. Melnikoff used this license to qualify Ken-Mel Enterprises and license no. CB C029067 was issued to Melnikoff qualifying Ken-Mel Enterprises. Ken-Mel entered into a contract with John and Edythe Milton to construct a residential pool at 7336 Pineville Drive, Jacksonville, Florida. Melnikoff applied for a building permit with the City of Jacksonville to construct the pool for the Miltons. His application included a set of plans and a site plan to be approved by the City of Jacksonville. The City of Jacksonville issued a building permit and provided an inspection sign-off card to be placed at the residence where the pool was to be constructed. Melnikoff and Ken-Mel constructed the pool and were paid in full. Melnikoff failed to request or obtain any inspections of the pool construction. This is a violation of the City of Jacksonville Building Code, Section 320.504. The pool is constructed in such a way that it is flawed, deficient and hazardous. Specifically, the water slide is hooked to a potable water system and to the hot water, which is both a serious code violation and a serious and hazardous condition. The water slide is positioned improperly and attached incorrectly, such that there is a danger of injury and this is a hazardous condition. The marcite is very rough and has started to peel away from the gunnite. The marcite is stained from the finish of the pool deck. The slurry from the gunnite and pool deck is buried near the pool and is improperly disposed of. Persons are mildly shocked when touching the railing in the pool, indicating that the pool is not properly bonded, which is a hazardous condition. The pool is not level or symmetrical and there are many imperfections in the continuous curve of the wall. Steel reinforcing bars are actually protruding through the concrete near the top of the pool. Building Code requires that there be a minimum coverage of 1 1/2" of concrete. The ceramic tile is falling off the wall and it is a very poor ceramic tile job. The expansion joints are improperly placed. The main drain cover has not been fastened down, which is a very dangerous situation and a code violation. There is no means or plan for discharging water from the pool, in violation of code. Part of the deck drain is under the slab of the Milton's house which is a serious problem. The pool is deeper than the plans indicated, in violation of the building code. The pool deck is very rough in places, does not drain away from the pool, and is cracked from improper compaction and improper placement of expansion materials. All of these defects and hazardous conditions establish that Melnikoff was grossly negligent and incompetent in the construction of this pool.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Construction Industry Licensing Board, enter a Final Order finding Steve A. Melnikoff guilty of the violations charged and revoking Melnikoff's license as a certified pool contractor. DONE and ORDERED this 29th day of June, 1988, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1988. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-0567 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the Petitioner in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Professional Regulation, Construction Industry Licensing Board 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(2); 3-5(3); 6(4); 7(5); and 8 & 9 (6) COPIES FURNISHED: John O. Williams, Attorney at Law 1343 E. Tennessee St. Tallahassee, Florida 32308 Steven A. Melnikoff 710 Rosedale Drive Stephens City, VA 22655 Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issues to be resolved in this proceeding are whether the Respondent has committed violations of provisions of law relating to the licensing of construction contractors and, if so, what disciplinary action should be taken against him.
Findings Of Fact The Respondent is registered by the Florida Construction Industry Licensing Board as a residential swimming pool contractor. The Respondent holds licenses numbered RP A027187 and RP 0027187 issued by the Board. During 1979 and 1980, the Respondent was registered with the Construction Industry Licensing Board as the licensed qualifier for "Cowboy Pools, Inc." Cowboy Pools, Inc., was owned by Jim Anglin. During December, 1980, the Respondent and Anglin experienced difficulties in their business relationship. The difficulties resulted from Anglin's failure to pay for work performed for Cowboy Pools by subcontractors and by Anglin's issuing checks to the Respondent which were not honored by the bank. In early January, 1981, Respondent became concerned that he was unable to control the flow of money at Cowboy Pools. He advised Anglin that he would no longer serve as the qualifier for Cowboy Pools. On January 8, 1981, the Respondent called the office of the Construction Industry Licensing Board and inquired as to steps that he needed to take to withdraw as the qualifier for Cowboy Pools. On that same date, he wrote a letter to the Board stating: This is to inform you that I am no longer associated with Cowboy Pools and will assume no responsibilities whatsoever for Cowboy Pools. The Respondent wrote that same letter to all persons that he knew had contracts with Cowboy Pools. The letter was received in the Department of Professional Regulation offices on January 12, 1981. At the Department's request, the Respondent forwarded proper forms to withdraw his qualification of Cowboy Pools. In his letter, he stated: I hereby certify that I have not been able to bind the construction moneys for Cowboy Pools and saw no hope that I would be allowed to do so in the future. Therefore 1 have withdrawn my association from Cowboy Pools as I have previously notified you. This letter was received in the offices of the Department of Professional Regulation on January 22, 1981. The Department requested that Respondent send the Board his qualifying licenses, which he did on January 28, 1981. The licenses were received in the Department's offices on February 2, 1981. On approximately January 14, 1981, Anglin asked the Respondent to obtain a permit so that Cowboy Pools could construct another swimming pool. Anglin was apparently unable to obtain permits on his own behalf. The Respondent refused to obtain such a permit and has had no business dealings with Cowboy Pools since January 8, 1981. Anglin continues to owe money to the Respondent. During 1980 and 1981, Mr. and Mrs. Robert Mosca owned a residence in Longwood, Florida. On December 26, 1980, they entered into a contract with Cowboy Pools, Inc., to construct a swimming pool at their residence for a sum of $6,800. The contract was negotiated on behalf of Cowboy Pools by Jim Anglin. Anglin signed the contract for Cowboy Pools. The Moscas paid Anglin a $100 deposit on December 26. By checks dated January 5, 1981, and January 21, 1981, the Moscas paid Cowboy Pools and Anglin an additional $4,736 on the contract. On December 27, 1980, Anglin had the pool area at the Moscas' property staked off. Nothing was done for several weeks, and the Moscas contacted Anglin, who advised them that a permit would be obtained soon. On January 14, 1981, a permit was obtained, and a crew from a company known as "Virgil Brothers" dug the hole for the pool and put in wire. Officials from Seminole County inspected that work on January 20. The following day, a crew from Virgil Brothers gunited the pool. There was a pile of dirt left from the dig. The Moscas asked Anglin about it, and he advised that it would be leveled. Approximately a week later, that was done, but no further work was done on the pool. The Moscas were not aware that there were any difficulties with completion of the pool until January 30, when a man visited their house and asked if they knew where Anglin might be. The man indicated that Anglin had left town. The same day, the Moscas received a notice from Virgil Brothers indicating that they had not been paid by Cowboy Pools. The Moscas went to the Cowboy Pools office that evening. All of the furniture had been removed. They were told by a secretary where Anglin lived. They went to his house and discovered that it was a rental house that had been vacated a couple of days before. Anglin has apparently not been seen in the central Florida area since that time. The Moscas ultimately had their pool completed by another contractor. It cost them $2,600 above the contract price to complete the pool. The building permit for the Moscas' swimming pool was obtained by Kelly Slusher, a registered swimming pool contractor. Slusher did not supervise the work and apparently, in effect, allowed Cowboy Pools to use his contractor's license to obtain the permit. Slusher did not become the qualifier for Cowboy Pools and was apparently not involved in the operation except to obtain the permit to construct the Moscas' swimming pool. Slusher has been the subject of disciplinary action initiated by the Construction Industry Licensing Board. When work on the Moscas' swimming pool was abandoned, the Moscas obtained a copy of the building permit and learned that Slusher had obtained the permit. When they contacted Slusher, he disclaimed any responsibility. The Respondent was not, until sometime in February, 1981, aware that Anglin had contracted with the Moscas to construct a swimming pool. Anglin did not tell him of the contract and was not allowing Respondent access to the company's records and books. The Respondent made a good-faith effort to advise all persons that were doing business with Cowboy Pools that he was no longer associated with the company. He wrote to all of the persons who had contracts with Cowboy Pools on January 8, 1981. He was not aware of the Mosca contract, and so he did not write to them. The Respondent did not obtain the building permit for the Moscas' swimming pool. He was asked by Anglin to obtain a permit, but refused. If Slusher had not agreed improperly to obtain a building permit for the Moscas' swimming pool, Cowboy Pools would not have been able to commence construction on the pool, and the Moscas would not have made payments to Cowboy Pools beyond the $100 deposit. The Moscas did not learn that the Respondent had any connection with Cowboy pools until sometime in February, 1981. The Moscas learned through other persons who had contracted with Cowboy Pools that the Respondent was the qualifying registered swimming pool contractor. The Moscas did contact the Respondent about the abandoned work, but it does not appear that they formally demanded that he complete the work on behalf of Cowboy Pools. No evidence was offered at the hearing from which it could be concluded that the Respondent diverted any funds in connection with the construction of the Moscas swimming pool. Indeed, it appears that he was totally uninvolved with the project.
Findings Of Fact Petitioner, in conjunction with the Construction Industry Licensing Board, is the state agency charged with the responsibility to prosecute administrative complaints pursuant to Chapters 120, 455 and 489, Florida Statutes and rules and regulations promulgated thereunder. During times material, Respondent, Donald F. Colombo, was licensed as a certified pool contractor in Florida, having been issued license number CP 15343. During times material, Respondent's license was registered with Petitioner as the qualifying agent for National and Spa Builders, Inc. (National). On or about May 27, 1988, National, the entity which Respondent was the qualifying agent, contracted with Diane and Leonard Cline to construct a pool at the Cline's residence in Tarpon Springs, Florida, for the contract price of $9825.00. The Clines financed the construction of the pool by placing a security interest against their property for the full purchase price of the pool. The full contract price of $9825.00 was paid to National and after National completed approximately 40% of the pool construction, National abandoned the project without notice or just cause. National never completed construction of the pool and the Clines obtained a homeowner's building permit and completed the pool project at an additional cost of approximately $5,000.00. Additionally, liens were filed against the property of the Clines by Florida Mining and Materials Concrete Corporation in the amount of $682.00 and Jim's Custom Pool Work in the amount of $135.00. The above-referred liens were for work performed and/or materials supplied in the construction of the Cline pool project by National. On or about May 20, 1988, National entered into a contract with Ben and Linda Thomas to construct a pool at their residence in Lutz, Florida, for the contract price of $9000.00. Following commencement of construction, National received approximately 60% of the contract price ($5,400.00) and later abandoned the project without notification or just cause to the Thomas's. The Thomas's subsequently completed their pool at an additional cost of approximately $1,000.00 over and above National's original contract price. On or about January 11, 1989, Respondent was disciplined by the Hillsborough County Building Department, Building Board of Adjustments, Appeals and Examiners for alleged violation of local laws including abandoning a construction project; alleged willful and deliberate disregard of applicable building codes; allegedly allowing liens to be filed against a project for which he was the contractor and for allegedly diverting funds from a construction project. Respondent was assessed an administrative penalty of a 30-day suspension of his permitting privileges by the Hillsborough County Building Department. Respondent was the qualifying agent for National during the 90-day period commencing April 1 through June 30,1988. Respondent formally terminated his status as qualifying agent for National and also tendered his resignation from that entity based on difficulties that he ecountered respecting his attempts to serve as qualifier to include his inability to control the finances, to be kept apprised of accounts receivable, accounts payable, an inability to select contractors and material suppliers and to assure that the payments for such services were timely remitted. Prior to Respondent's engagement with National as a pool salesman and later as qualifier, National was a well reputed pool company, having been in existence in excess of twelve years. National annually constructed approximately 750 pools with accounts receivable in the $10 to $12 million dollar range. Prior to April 1988, National was a secure and stable company that regularly paid its bills and grew at a rapid pace. While engaged with National, Respondent was unaware that there was internal collusion among its owners respecting diversion of funds. Respondent repeatedly attempted to gather a handle on the internal financial operations of the company and on each occasion he was rebuffed. within the first month that Respondent qualified National, he began to seek advice as to the proper means of salvaging his license by contacting a local attorney, the local office of Petitioner, and Petitioner's headquarters in Tallahassee seeking the proper procedures for ending his relationship with National. This came about once it became apparent that he was unable to effectively manage or otherwise perform the functions of a qualifying agent. Respondent formally severed his relationship as qualifying agent for National on June 30, 1988. Subsequent to ending his status as qualifying agent for National, Respondent assisted the Clines in the completion of their pool. Mr. Cline specifically recalled that Respondent assisted him in locating other subcontractors and with the purchase of plumbing supplies for his pool without remuneration from the Clines. (Petitioner's Exhibit 1F; Tr. 30-32.) Likewise, Respondent also assisted the Thomas's in completing their pool. (Tr. 45, lines 23-24.) Respondent demonstrated compassion and a proper concern which was evident based on the testimony of the complaining witnesses who appeared at the formal hearing. Significantly, Petitioner's investigator, H. Dennis Force, related that Respondent assisted him in his investigation of the subject charges. To this end, Respondent supplied him with the names of all customers with which National had contracts with during the period that he was National's qualifying agent. It is unfortunate that Respondent was not able to control the fiscal policies of National during the period that he was the qualifying agent, although from a review of the evidence herein, it is apparent that this was not based on his failure to attempt to gain control over the situation as a qualifying agent, but was rather based on the collusion of National's higher-ups who was determined to keep Respondent in the dark. Noteworthy was the fact that within a three-month period, National changed banks at least eight times. It would have been, at best, difficult if not impossible for Respondent to have gained a handle on National's financial condition and to do the things with which a qualifying agent is charged with during the short period during which Respondent was National's qualifying agent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a Final Order imposing an administrative fine against Respondent in the amount of $1,000.00 and placing his certified pool contractor's license on probation for a period of six (6) months. 1/ DONE and ENTERED this 7th day of March, 1991, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 7th day of March, 1991.
The Issue The issues are: (1) Whether the pool at issue is a special purpose pool, and (2) Whether Petitioner is entitled to a variance to use recessed automatic surface skimmers in the pool at issue.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a Final Order denying the variance request of Tamtech Pool Builders and denying special purpose pool status for the pool built by Tamtech Pool Builders. DONE AND ENTERED this 10th day of February, 1988 in Tallahassee, Leon County, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1988. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 87-4443 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Tamtech Pool Builders Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 6(49) and 9(39). Proposed findings of fact 1, 4, and 7 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 2, 5, and 12 are rejected as being unsupported by the competent, substantial evidence. Proposed findings of fact 3, 10, and 11 are rejected as being irrelevant. Proposed finding of fact 8 is rejected as being irrelevant because this action is not a rule challenge proceeding. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Health and Rehabilitative Services Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-3(1-3); 5-7(4-6); 9-11(7-9); 12(9); 13(10); 14-34 (10-30); 36-43(31-38); 46-53(40-47); and 56-58(50-52). Proposed findings of fact 4, 8, 44, 45, and 55 are rejected as being irrelevant or unnecessary. 3 . Proposed finding of fact 54 is rejected as being unsupported by the competent, substantial evidence. 4. Proposed finding of fact 35 is subordinate to the facts actually found in this Recommended Order. COPIES FURNISHED: Margaret Smithson HRS District I Legal Counsel 160 Governmental Center P. O. Box 12836 Pensacola Florida 32576 Mark E. Walker Attorney-At-Law 723 N. Eglin Pkwy., Suite 2 Ft. Walton Beach, Florida 3254 Gregory Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether the state certified pool construction license number CP C008904 and the state certified general contractor's license number CG C002481 of Joaquin Vazquez should be revoked.
Findings Of Fact Division A of the Construction Trade Qualifying Board held a hearing on September 15, 1976, pertaining to ten (10) charges of violating the Dade County building code against Respondent Joaquin Vazquez. At the completion of this formal hearing, Joaquin Vazquez was found guilty of eight (8) of the ten (10) charges. Charles W. Leavitt, Jr., Clerk of the Construction Trades Qualifying Board In Metropolitan Dade County, Florida, identified the minutes of the Board Meeting held on September 15, together with the charges as set forth in letters dated May 10, 1976, and August 19, 1976. Copies of these instruments were introduced into evidence without objection. The Respondent did not deny the charges at the hearing and had not appealed the finding of guilt of eight (8) of the ten (10) charges at the conclusion of the formal hearing on September 15, 1976. Briefly the charges (spanning the term from July 1, 1975 to June 29, 1976), finds and penalties are as follows: Charge 1.: Allowing permit to be applied for and taken out in Respondent's name in order for Angela J. Stevens and/or Sparkle Blue Pools to construct a swimming pool. Found guilty - letter of reprimand. Charge 3.: Similar to Charge 1 - found guilty - certificate to be suspended for one (1) year. Charge 4.: Failure to supervise, direct and control, the construction or installation of a swimming pool taken out in Respondent's name. Found guilty - one (1) year suspension to run concurrent with any other suspensions. Charge 5.: Similar to Charge 1 - found guilty - ninety (90) day concurrent suspension. Charge 6.: Similar to Charge 4 - found guilty - ninety (90) day suspension. Charge 7.: Similar to Charge 1 - found guilty - revo- cation of certificates. Charge 8.: Similar to Charge 4 - found guilty - both certificates be revoked. Charge 10.: Allowing a permit to be applied for and taken out in Respondent's name in order for Jack Goodman and/or Precision Engineering, Inc., to construct a swimming pool. Found guilty - letter of reprimand. An Administrative Complaint was filed by the Petitioner through its executive director on November 12, 1976, citing the hearing and the charges and the finding of guilt of Respondent and stating that the results of said formal hearing show a violation of Florida Statute 468.112(2)(a), willful or deliberate disregard and violation of applicable building codes or laws of the state or any municipality, cities or counties thereof. Therefore, the Board seeks to revoke the state certified pool contractors license number CP C008904 and state certified general contractors license number CG C002481 of Joaquin Vazquez, the Respondent. The Respondent did not deny the charges but presented an attack on the character and veracity of the witness, Angela Stevens, in four (4) of the charges against him. He cited the witness Angela Stevens' failure to abide by probationary requirements imposed for her acting as a contractor without a license. Furthermore, the Respondent offered his own and a witness, Mr. Gonzalez's, testimony to the fact that he was solicitated by Angela Stevens to make false testimony to the effect that Angela Stevens was an employee of his when in fact she had never been. The charges against the Respondent were brought subsequent to the charges brought against the witness Angela Stevens. The Respondent contends that the affidavits and testimony of Angela Stevens were no more than self serving statements made in her own behalf in an attempt to cover up her criminal intentions and that the charges and finding of guilt of the Respondent were based largely on the affidavit and testimony of said witness. Respondent further offered a medical report indicating that he was unable to work in the month of May, 1975, and further his testimony was that he was out of the country in mid June and July, 1975, in order to recuperate from high blood pressure attacks. Petitioner contends: the undisputed evidence presented in the finding of guilt of the charges involved in the prior hearing are sufficient to find Respondent guilty of violating Section 468.112(2)(a), Florida Statutes, and that Respondent's license should be revoked. Respondent contends: the witness against him was self serving and an attempt to cover up her criminal intentions; that he in fact supervised some of the jobs he was found guilty of not supervising; that he was ill some of the time and did not willfully violate the code. The proposed facts and conclusions of the parties submitted after the hearing herein have been considered in this Recommended Order.
Recommendation Suspend the licenses, No. CP C008904 and No. CG C002481, of the Respondent Joaquin Vazquez for a period not to exceed six (6) months. DONE and ORDERED this 31st day of May, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: David Linn, Esquire Post Office Box 1386 Tallahassee, Florida 32302 Jerome S. Reisman, Esquire 1515 Northwest 7th Street, #106 Miami Florida 33125 J. K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211
The Issue The issue at the hearing was whether Respondent's pool contracting license should be disciplined for alleged violations of Chapter 489, Florida Statutes.
Findings Of Fact Respondent is a licensed pool contractor in Panama City, Bay County, Florida, holding license number RP 0053231. Respondent was registered as an individual with the Board. The address given on his pool contractor's license was 3414 Jenks Avenue, Panama City, Florida. National Pools of Panama City, Inc. was not registered or certified as a contractor with the Board. National Pool's address was 3416 Jenks Avenue, Panama City, Florida. No clear and convincing evidence was presented as to whether Respondent had any knowledge of National Pool's unregenerate and incertitude status. On February 16, 1988, Robert D. Hay entered into a contract with National Pools of Panama City, Inc., for the construction of a pool on his property located at 1000 Kimberly Lane, Lynn Haven, Florida. The price of the pool was $9,310.92. The contract established a schedule of payments for the construction of the pool. Each payment was made upon completion of a certain portion of the construction work. The contract also provided that National Pools would pay for all work and materials used in the construction of the pool. A building permit was obtained for the construction of the pool. No evidence was submitted on who actually pulled the construction permit. The contractor listed on the building permit was Respondent and the construction was supervised by Respondent. The pool was completed to Mr. Hay's satisfaction and he paid the last installment payment to National Pools. 1/ Mr. Hay received a release of lien from Vance White. Mr. White was the president of National Pools. However, Mr. Hay later learned That National Pools had not paid for some materials which had been used in the pool's construction. The supplied of the materials filed a lien In the amount of $1,718.49 on Mr. Hay's property. Mr. Hay attempted to get National Pools to pay the lien. However, the lien was never satisfied by National Pools. Eventually, Mr. Hay was forced to pay the lien plus attorney's fees and court costs or else have the lien foreclosed on his property. The amount Mr. Hay was forced to pay in order to clear the title to his property was $2,615.41. There was no substantial evidence submitted which demonstrated Respondent's relationship to National Pools. The fact that Respondent's name appeared on the building permit does not support a finding that Respondent is the primary contracting agent for National Pools. Likewise, the fact that Respondent's address on his license was next door to National Pools does not support a finding that Respondent is the primary contracting agent for National Pools. It is just as likely an inference that Respondent was not the qualifying agent for National Pools, but was its subcontractor and it is National Pools and its officers who are violating the provisions of Chapter 489, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a Final Order dismissing the Administrative Complaint against Respondent. DONE and ENTERED this 2nd day of August, 1990 in Tallahassee, Florida. DIANE CLEAVINGER 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 2nd day of August, 1990.
Findings Of Fact Respondent is, and has been at all times material to this proceeding, a registered and certified pool contractor having been issued license numbers RP 0023613 and CP 0012607. Respondent's license number RP 0023613 has been delinquent since June 30, 1983, but his license number CP 0012607 was active and in full force and effect until he ceased doing business in approximately September, 1985. Respondent conducted his pool contracting business in the name of Hallmark Pools for approximately 14 years. The business entity "Hallmark Pools" was properly qualified and named on the Respondent's license. In 1985, the Respondent began to enter the business of designing outdoor patios and fountains, as well as pools. He wished to retain the good will he had gained operating under the name "Hallmark Pools" while gaining good will in the new name under which he planned to conduct business in the future, "Aquatic Environments, Inc." During this transition period, and until he closed his business, the Respondent's contracts and letterhead contained the names "Hallmark Pools" and "Aquatic Environments, Inc.," but that name never appeared on his licensure. On or about March 12, 1985, Respondent, through Hallmark Pools/Aquatic Environments, Inc., contracted with customers Mr. and Mrs. Allan Schaeffer to construct a screened-in pool and spa at their residence located at Archer Street, Lehigh Acres, Florida, for a contract price of $20,000. Later approximately $1,700 of extras were added to the contract. On or about March 21, 1985, the Schaeffers paid the Respondent $2,000 on the contract. On or about May 23, 1985, the Schaeffers paid another $17,000 on the contract. Approximately, $2,600 remained owing on the contract. The customers reside part of the time in New Jersey. In the contract, Respondent promised a June 15 completion date. When the customers arrived in Florida on or about June 14, they found that the project was not complete. When the customers contacted the Respondent, the work was resumed. The pool was quickly completed and was usable by the beginning of the July 4th weekend. Some punch list items remained to be done, but the Schaeffers preferred that the Respondent wait until after they returned to New Jersey in August, 1985. The evidence did not prove that the Respondent promised a June 15 completion date while knowing that he would not be able to finish the work by that date. During the summer of 1985, personal problems the Respondent was facing at the time mounted, and eventually he decided he no longer could continue to operate his business. He began to plan to close his business and have all pending matters either resolved by himself before he went out of business or resolved by his brother Chad Jackson, also a licensed pool contractor, after going out of business. He did this by assigning pending contracts to his brother. He also attempted to insure that all suppliers were paid either by himself before he went out of business or by his brother out of payments due under the contracts assigned to him. Except for the Schaeffer job, the Respondent's arrangements to close out his business did not result in any complaints. Near the end of August, 1985, the Schaeffers gave the Respondent a punch list of work still due under the contract to be done while the Schaeffers were in New Jersey. The Respondent called and told Mr. Schaeffer that he was closing his business but that the punch list items would be taken care of. At the time, the Respondent also knew that approximately $1,300 was owed to Jones Industries Screen Enclosures, Inc. The Respondent expected his brother to pay Jones out of the $2,600 due on the Schaeffer contract, leaving $700 to compensate his brother for the punch list work and any warranty work. In fact, there also was $2,705.12 owed to a company named FAFCO Solar, which had subcontracted the solar heating on the Schaeffer contract. The Respondent had forgotten about this debt. FAFCO had billed the Respondent on July 15, 1985, but the Respondent did not pay it or arrange for its payment. FAFCO's second billing never reached the Respondent. The Respondent sent FAFC0, along with his other suppliers and subcontractors, a notice on August 22, 1985, that he was going out of business and that mail should be sent to his home address. On receipt of this notice on August 28, 1985, FAFC0 mailed a second billing to the home address but it was returned on August 30, 1985, marked: "Moved Left No Address". The Respondent's brother did the punch list work to Mr. Schaeffer's satisfaction and sent him a bill for the $2,600 balance due on the contract. Schaeffer never paid. The Respondent's brother never paid the Jones Industries bill (and never got the FAFCO bill). Jones Industries put a lien on the property at 1414 Archer Street for $1,388.75, which the Schaeffers eventually paid. FAFCO did not file a notice to owner and could not claim a lien on the property. FAFC0 never was paid. Both Jones Industries and FAFCO refused to do warranty repairs because they were not timely paid. The evidence did not prove that the Respondent inadequately supervised the Schaeffer job while he was still in business or after he went out of business. After he went out of business, he assigned the contract to a licensed pool contractor, his brother. Eventually, serious problems developed in the Schaeffer's pool at 1414 Archer Street. But the evidence did not prove that the Respondent or his brother were responsible. The serious problems of which the Schaeffers now complain should have been apparent from the outset if caused during construction of the pool. Yet complaints were not registered until much later. Meanwhile, improper maintenance of the pool by the Schaeffers or their pool maintenance contractor, or damage to the pool during maintenance, could have caused the current problems. For six months after the Respondent closed his business and left Ft. Myers, he was traveling in the western part of the country and had no mailing address and did not give one to the Construction Industry Licensing Board. Then, he returned to Florida to a St. Petersburg address which he gave to the Board.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Construction Industry Licensing Board enter a final order finding the Respondent guilty of violating Section 489.129(1)(g) and (m), Florida Statutes (1985), reprimand him for the violation of (g) and fine him $1000 for the violation of (m). RECOMMENDED in Tallahassee this 19th day of December, 1988. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3468 To comply with Section 120.59(2), Florida Statutes (1987), the following rulings are made on the Petitioner's proposed findings of fact: Rejected. (The license number was left blank.) Accepted and incorporated. Rejected as contrary to facts found. The Respondent arranged for payment of the Jones debt but disputes among the Schaeffers, Jones and the Respondent's brother led to Jones imposing a lien on the property which the Schaeffers eventually paid. The Respondent did not make arrangements to pay FAFCO, and that bill remains unpaid. 4.-9. Rejected as contrary to facts found. COPIES FURNISHED: David Bryant, Esquire 500 North Tampa Street Tampa, Florida 33602 Thomas Jackson 5203 109th Way North St. Petersburg, Florida 33708 Fred Seely Executive Director Construction Industry Licensing Post Office Box 2 Jacksonville, Florida 32201 Bruce D. Lamb General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
