Findings Of Fact Respondent is a licensed general contractor and pool contractor. He is employed by Sally Dysart, Inc., and is currently the qualifying contractor for that company. Additionally, Respondent has served as qualifier for ARK Swimming Pool Service, Inc. On June 6, 1981, Sally Dysart, Inc., contracted with Theresa Pica to construct a swimming pool at her North Lauderdale residence. On June 9, 1981, Respondent obtained a permit from the City of North Lauderdale to construct the Pica pool. The permit indicated that ARK Swimming Pool Service, Inc., was the contractor. The contract specified that the pool would measure 16 x 32 x 3 x 6 1/2 feet, with stainless steel walls. The contract allowed "minor variations in dimensions . . ." and provided that, "Dysart is authorized to use its discretion in making changes or additions if the customer is not immediately available." The pool as installed was 8 feet rather than 6 1/2 feet deep, and the walls were of aluminum rather than stainless steel. These changes were not approved by Theresa Pica and she complained to Petitioner regarding these changes and other problems which are not relevant to the charges herein. This was an 18 inch change in pool depth and could not be considered a minor variation in dimensions, nor could the change in materials be considered insignificant. Respondent should have, but did not, obtain the owner's concurrence before substituting the 8 foot aluminum pool for the 6 1/2 foot steel pool, which the contract called for. This installation was also held to be in violation of Broward County Ordinance Section 9-14(b)(9), by the local board having jurisdiction. Respondent was not properly registered as the qualifying agent for Sally Dysart, Inc., at the time of this project. He was registered as the qualifier for Ark beginning in 1977, but his application to qualify Sally Dysart, Inc., was not received by Petitioner until November 1981 and not issued until December 1981. A Julius Kaplan was also a qualifier for Sally Dysart, Inc., but his application was not received by Petitioner until October 1981. Sally Dysart, Inc., was therefore not qualified by a licensed pool contractor at the time this company undertook the Pica project. The permit was improperly drawn on Ark Pool Service, Inc., by Respondent since Ark was not a party to the Pica contract. Respondent demonstrated that the administrator for Sally Dysart, Inc., was attempting to secure a qualifier for this company between April and December 1981. Thus, while some effort had been made to qualify Sally Dysart, Inc., this had not been accomplished at the time the Pica project was undertaken. Sally Dysart, Inc., contracted with James J. Mirrione to install a spa for him at his residence in Boca Raton. The permit was obtained by Respondent on behalf of Sally Dysart, Inc., on April 23, 1981. As noted above, Respondent was not a qualifier for Sally Dysart until December 1981. No final inspection of the Mirrione installation was ever made. Respondent believed that officer personnel at Sally Dysart, Inc., had arranged for such inspection, but it was either not requested or requested but not performed. On June 25, 1981, Warren Schober contracted with Sally Dysart, Inc., to construct a pool at his Miami residence. He negotiated the contract with a Milton Wolf who he understood to be the sales manager for Sally Dysart, Inc. The project was completed, but Schober encountered problems with a defective light and leaks in the pool. The difficulties were eventually corrected and Schober is now satisfied with the installation. In late August 1981, Milton Wolf agreed to sell Dr. Ronald Scott a swimming pool for $5,970. Scott made an initial payment of $3,970 to Milton Wolf by cashier's check dated September 8, 1981. Scott believed he was dealing with Sally Dysart, Inc., since Wolf held himself out as a representative of that company. Although he had some reservations about making the check payable to Milton Wolf personally, he had contacted a Better Business Bureau to determine that Sally Dysart, Inc., was a reputable company. Further, Wolf was available when he telephoned him at the Sally Dysart, Inc., offices. Sally Dysart, Inc., later disclaimed the Wolf agreement but offered to honor it if Scott would turn over the balance due. However, Scott rejected this offer and it was later withdrawn. He did not receive the pool or return of his initial payment. The evidence did not establish whether or not Sally Dysart, Inc., approved the contract for sale of the pool negotiated by Wolf. However, there was no construction contemplated and therefore no active involvement by Respondent in his capacity as construction supervisor. On July 31, 1981, Milton Wolf, on behalf of Sally Dysart, Inc., contracted with Mr. William D. Black for the sale and installation of a swimming pool at the latter's Miami resident. By check dated August 28, 1981, Black made an initial payment of $4,585 to Wolf. Black left the payee portion of the check blank at Wolf's request on the representation that he would use a stamp to supply the Dysart firm name. Wolf later filled in his own name, cashed the check and absconded. Black had no reason to distrust Wolf as he had communicated with Wolf at Sally Dysart, Inc., and had checked on the company through the Better Business Bureau. Wolf held himself out as sales manager and this was not repudiated by Sally Dysart, Inc., until after Wolf absconded. Respondent obtained a permit for the Black project on October 13, 1981, and some of the initial approvals were made. However, by letter dated September 22, 1981, Sally Dysart, Inc. (by its president, Sally Dysart), advised Black that the company would attempt to complete the project only if he would pay the balance of all payments due. This letter also disclaimed responsibility for Wolf's representations. In response, Black demanded that Sally Dysart, Inc., honor the contract and proposed that remaining payments be placed in escrow pending satisfactory completion. This proposal was rejected, and Black did not obtain the pool nor was his $4,585 "deposit" returned. Respondent sought to establish that Milton Wolf was not authorized to act on behalf of Sally Dysart, Inc., but that he was merely present in the Dysart offices as a potential business partner. His contact with customers was purportedly limited to investigation of leads and company business potential. However, the testimony of a former Dysart employee established that Wolf did make sales and brought in cash receipts to the company prior to his defalcation. Therefore, regardless of any private understanding between Sally Dysart, Inc., and Milton Wolf, the latter was holding himself out to the public as a company representative with the knowledge and approval of Sally Dysart, Inc.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner enter a Final Order suspending Respondent's contractor licenses for a period of ninety (90) days. DONE AND ENTERED this 16th day of May, 1984, in Tallahassee, Florida. R. T. CARPENTER 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 16th day of May 1984.
Findings Of Fact In 1975 and 1976 John Morris, d/b/a Morris Pool Service, maintained the swimming pool at the Sunland Center in Miami, Florida under a contract with HRS. The contract for the year commencing July 1, 1976 and expiring June 30, 1977 (Exhibit 1) provided generally for Morris to maintain the Sunland Center pool for which he would be paid $520 per month. This contract further provided that a representative of Morris Pool Service check each day except Saturday and Sunday with Ms. O'Donohue, the Director of Training, or her successor. Recreation personnel at Sunland Center hoped to open the pool on Memorial Day; however, an impeller for the pump needed replacement and the pool was inoperative for some six weeks in May and June awaiting this part. During this time petitioner did little or no maintenance and the pool's condition was bad enough for the Superintendent to become involved and request a report from the Programs and Services Director (Exhibit 4). When the impeller did arrive in mid-June, 1977, the pool was in such bad shape it was necessary to drain the pool, scrub, and acid-wash the walls and floor of the pool to remove the accumulated algae and scum. Even a colony of frogs had taken up residence in the pool during this period. As a result of additional delays the next hoped-for opening date of July 4 was also missed. The pool was finally ready for operation and was opened the week following July 4, 1977. Although opened the water in the pool was not properly maintained by cleaning and chlorinating. In the latter part of July the gas chlorinator became inoperative and the pool's condition deteriorated as no chlorine was being added to the water. Under the contract Petitioner was to provide materials necessary to keep the pool water in a balanced condition. This contract expired on June 30, 1977. Nevertheless, Petitioner purported to continue working under the expired contract, pending the issuance of a new contract for 1977-1978. While the gas chlorinator was inoperative Petitioner did not hand-feed chlorine to the pool to maintain the proper chlorine level and to keep algae from growing. By early August, 1977, the pool had become so bad the supervisory personnel at Sunland Center called the Dade County Health Department to inspect the pool. A report of that inspection showing the pool unfit for use was admitted into evidence as Exhibit 3. Following the Superintendent's inquiry to Ms. Titus about the condition of the pool in June, 1977, she contacted Petitioner, who told her the pool would he hack in operation as soon as the impeller was received. Ms. Titus was the successor to Ms. O'Donohue and she told Petitioner to keep her advised regarding the status of the pool. Although the contract (Exhibit 1) required Petitioner to report to Ms. Titus daily (except Saturday and Sunday) she did not see him again, nor did she receive any report that he came to her office. Petitioner contends that he attempted to report to Ms. Titus but was unable to find her in her office and after a few attempts stopped trying. Ms. Titus and her assistant were both equipped with beepers and could be contacted any time of day by their office if they were out of the office. Following the Health Department's inspection on August 9, 1977, the pool was closed for several days, then reopened around mid-August after the chlorinator was repaired. When the pool was reopened in August its condition was barely satisfactory. Shortly after Labor Day the pool was again closed and remained closed throughout the balance of 1977. By October, the Sunland Center officials decided they should notify Petitioner that his contract would not be renewed for the 1977-1978 year and a letter dated October 27, 1977 (Exhibit 2) was forwarded to him by registered mail. This letter was mailed to an old address for Petitioner, was returned to the sender and remailed to the proper address. As a result, the letter was not received by Petitioner until December 14 or 15, 1977. Petitioner submitted bills to Respondent for services for the period July 1, 1977 through December 15, 1977, the approximate date he received Exhibit 2. Following August 10, 1977 some of Respondent's employees in the maintenance department saw Petitioner in the cafeteria at Sunland Center and on the premises, but none of them reported seeing Petitioner do any work on the pool. Petitioner contends he worked on the pool on a daily basis, however, the condition of the pool casts serious doubts on this testimony.
Findings Of Fact Martin R. McAndrew is a licensed general contractor and licensed pool contractor holding general contractor's license number RG 0020560 and pool contractor's license number RP 0024861. Martin R. McAndrew was provided notice in accordance with the applicable rules and statutes of the formal hearing to consider the allegations of the administrative complaint filed against him by the Florida Construction Industry Licensing Board. Ray Dowell identified a notice of violation served on McAndrew by the Florida Construction Industry Licensing Board which was received into evidence as Exhibit 1. This notice of violation related to the construction undertaken by McAndrew for Lynn McMillan. Melvin C. Huebschman entered into a contract with McAndrew for the construction of a pool. The contract price for the pool was $5,000.00. Huebschman paid McAndrew $2,000 in two payments. The first payment was in the amount of $300.00 to cover the cost of transportation of the pool materials to Pensacola, Florida. The second payment in the amount of $1,700.00 was for the first phrase of construction on the pool. Subsequent to receiving payment McAndrew provided no materials or labor pursuant to the contract. Huebschman talked with McAndrew concerning completion of the work pursuant to the contract and McAndrew failed to perform under the contract throughout the spring and summer of 1977. In August, 1977, Huebschman wrote McAndrew advising him that it had been over ninety days since they entered into the contract and McAndrew had not performed any services pursuant to the contract. Huebschman gave McAndrew thirty days within which to commence work. McAndrew did not respond to this notice. McAndrew did not return any portion of the $2,000.00 paid to him by Huebschman. Lynn McMillan entered into a contract, identified as a portion of Exhibit 4, with McAndrew. This contract called for the construction of a pool for a contract price of $5,800.00. Pursuant to that contract, McMillan paid to McAndrew $4,350.00. Subsequent to payment of the third draw, McAndrew failed to complete the job. The last work performed by McAndrew on this construction project was on May 17, 1977. Prior to May 17, 1977, all materials for completing the pool were on the site and installed. Before abandoning the project, McAndrew removed from the building site all portions of the pool construction except the poured concrete and vinyl lining. McMillan subsequently entered into a contract with Surf Side Pools for the completion of the pool. The contract price was $1275.00, which included $800.00 for equipment and materials necessary to complete the pool. In addition, McMillan found it necessary to pay $230.00 to O'Brian Enterprises to remove stumps and spoil left on the construction project by McAndrew. McMillan also paid $200.00 to Warrick Electric Company to satisfy a claim by Warrick for materials and labor provided by Warrick to McAndrew. Finally, American Ready Mix Concrete filed a claim of lien in the amount of $436.80 against the property of Lynn McMillan for labor and materials provided under the contract with McAndrew which McAndrew did not pay. On May 27, 1977, McAndrew wrote a letter to McMillan advising that he would like the opportunity to finish the pool and was invited to do so. However, McAndrew did not return to the construction site or provide any further labor or materials pursuant to the contract. Sarah White Witt entered into a contract with McAndrew for the construction of a pool at a contract price of $4,500.00. Witt paid McAndrew $500.00; however McAndrew did not finish the pool construction. Subsequently, Witt was advised by the materialmen and labors of various liens against her property totalling $2,200.00. Daryl Jernigan, electrical and pool inspector for Escambia County, inspected the work done by McAndrew on the McMillan pool. He found that the pool had been filled with water but that the equipment necessary to recirculate and chlorinate the water had been removed from the pool, thereby permitting the water to stagnate. This inspection was conducted in June, 1977. Prior to that time, Jernigan had found it necessary to order work on a pool begun by McAndrew halted because McAndrew had failed to acquire a building permit prior to commencing construction.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that Florida Construction Industry Licensing Board revoke the licenses of Martin R. McAndrew as a general contractor and as a pool contractor, and further fined a sum of $500.00. DONE and ORDERED this 24th day of May, 1978, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: J. K. Linnan Executive Director Florida Construction Industry Licensing Board P. O. Box 8621 Jacksonville, Florida 32211 Michael E. Egan, Esquire Attorney at Law 217 South Adams Tallahassee, Florida Martin R. McAndrew 3313 N. 17th Avenue Pensacola, Florida 32502
The Issue The issue in this case is whether Respondent should grant Petitioner's request for licensure by endorsement as a physical therapist pursuant to Sections 486.031 or 486.081, Florida Statutes (1997), and Florida Administrative Code Rule 64B17- (All statutory references are to Florida Statutes (1997) unless otherwise stated. All references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.)
Findings Of Fact It is uncontroverted that Petitioner is 48 years old and of good moral character within the meaning of Section 486.031(1) and (2). Petitioner has been a resident of Florida for 34 years. He is licensed in Florida as a chiropractor and is a graduate of a four-year degree program at Palmer College of Chiropractic ("Palmer College"). Petitioner is board certified as a chiropractor orthopedist and as a chiropractic neurologist. Both board certifications required additional training after graduation from Palmer College. In June 1995, Petitioner attended the University of Health Sciences Antigua School of Allied Health Professionals and received a Bachelor of Science in Physical Therapy from that institution in August 1996. Petitioner traveled to the University of Antigua eight times in two years for education sessions. Each session lasted approximately two weeks. In addition to the hours Petitioner spent at the University of Antigua, Petitioner spent approximately 1,200 hours during an eight-month period at a physical therapy facility associated with the hospital in Antigua. In addition, Petitioner spent approximately 650 hours interning at the Spinal Rehabilitation Institute in Titusville, Florida. The University of Antigua required Petitioner to complete the 1,200 hours at the physical therapy facility and the 650 hours as an intern as part of its educational program. After obtaining a degree in physical therapy from the University of Antigua, Petitioner applied to the State of Colorado to take an examination prepared under the auspices of Profession Examination Services ("PES"). Colorado evaluated Petitioner's education and allowed Petitioner to take the PES exam. Petitioner passed the PES exam and has been licensed as a physical therapist in Colorado since April 11, 1997. On February 9, 1999, Petitioner applied to the State of Florida for a license as a physical therapist. Petitioner received and relied upon application materials provided by Respondent. In particular, Petitioner utilized Respondent's "List of Currently Qualified Credentialing Agencies" to select the International Education Research Foundation (the "Foundation") to evaluate Petitioner's foreign education. The Foundation is the appropriate agency identified by the Board, within the meaning of Section 486.031(3)(b), to determine whether Petitioner has educational credentials equivalent to those required for the educational preparation of physical therapists in the United States. The Foundation gave Petitioner credit for 60 semester hours of physical therapy education including six clinical hours. The Foundation determined that Petitioner has the U.S. equivalent of a Bachelor of Science in Physical Therapy (non-traditional program awarded by nonaccredited colleges and universities). The Foundation prepared its evaluation: . . . in accordance with guidelines developed by several state licensing boards and was completed in close collaboration with a physical therapy consultant. Records from the institution attended showing coursework completed, hours of study and grades earned, were used as the basis for this report. Joint Exhibit 1 at 399. The Board denied Petitioner's application for the following reasons: The applicant does not meet the requirements of Sections 486.031(3)(b) or 486.081(1) . . . and Rules 64B17-3.001(3) and (4) or 64B17- 3.003 . . . in that the applicant does not possess credentials that are deemed equivalent to a bachelor's degree in physical therapy in the United States. At best the applicant's training is a six week lecture series that would constitute a continuing education course. It is not the length and content of a CAPTE approved bachelors or masters in science program in physical therapy that would be the bulk of the final year of training. Denial Order at 1. The actual basis for Respondent's denial has little to do with factual disputes concerning Petitioner's educational hours. As Respondent admits in its PRO: While there may be some factual disputes about Petitioner's educational hours, both in modules and clinical time, these are not really material facts for the [ALJ] to resolve. The real issue is the legal interpretation of . . . Sections 486.031 and 486.081. . . . Respondent's PRO at 5. The findings in paragraphs 12-15 of Respondent's PRO are not material to the real issue concerning the interpretation of Sections 486.031 and 486.081. Respondent does not approve the physical therapy program at the University of Antigua for the educational preparation of physical therapists within the meaning of Section 486.031(3)(a). The record does not show whether the United States Department of Education approves the program. Petitioner has received a diploma from a program in a foreign country within the meaning of Section 486.031(3)(b). The Foundation, as the appropriate agency identified by the Board, has determined that Petitioner possesses educational credentials required for the educational preparation of physical therapists in this country. Petitioner passed the Colorado PES exam in 1997. Petitioner passed a national examination approved by the Board to determine Petitioner's fitness to practice as a physical therapist within the meaning of Section 486.031(3)(a) and (b). Petitioner is entitled to licensure in Florida without examination, pursuant to Section 486.031(3)(c), as provided in Section 486.081. Petitioner passed the PES exam in 1997. The written examination taken by Petitioner for licensure in Colorado was an examination prepared under the auspices of the Professional Examination Services within the meaning of Rule 64B17-3.003. Respondent has long construed applicable Florida Statutes to require an applicant for licensure without examination to pass the requisite national examination and to meet those educational requirements approved by the Commission on Accreditation for Physical Therapy ("CAPTE") in accordance with the requirements of Section 486.031(3)(a). Respondent's legal interpretation of applicable statutes and rules is a legal interpretation rather than a matter within the ambit of agency expertise.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order granting Petitioner's request for a license in Florida as a physical therapist pursuant to Sections 486.031(3)(b), 486.031(3)(c), and 486.081. DONE AND ENTERED this 13th day of April, 2000, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 13th day of April, 2000. COPIES FURNISHED: Dr. Kaye Howerton, Executive Director Board of Physical Therapy Practice Department of Health Division of Medical Quality Assurance Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 William Large, General Counsel Department of Health Bin A02 2020 Capitol Circle, Southeast Tallahassee, Florida 32399-1701 Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Ann Cocheu, Esquire Office of the Attorney General Administrative Law Section The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Wilson Jerry Foster, Esquire 1342 Timberlane Road, Suite 101A Tallahassee, Florida 32312-1775
The Issue The issue in this case is whether the Department of Health, Board of Massage Therapy, should discipline the Respondent, Meihua Qiu, based on the manner in which she applied for and obtained her license.
Findings Of Fact The Respondent, who was born in China, came to the United States in 2001. She enrolled in Royal Irvin College in California to study massage therapy. She completed a 500-hour course of study and graduated in September 2007. The course of study included classes on HIV/AIDS and prevention of medical errors. In November 2007, she sat for and passed the examination administered by the National Certification Board for Therapeutic Massage and Bodywork (NCBTMB). The Respondent moved to Florida because she had family and friends there. One of her friends knew someone who had gone to the Florida College of Natural Health (FCNH), which is approved by the Board of Massage Therapy (Board). In December 2007, the Respondent went to FCNH’s Pompano campus to determine what was necessary for the Respondent to be licensed in Florida as a massage therapist. When the Respondent arrived at FCNH's Pompano campus on December 21, 2007, the receptionist directed her to see Glenda Johnson, who was the school's student coordinator and functioned as the registrar. The Respondent showed Johnson a copy of her Royal Irvin College diploma and transcript and her NCBTMB certificate, which Johnson reviewed. The diploma and transcript were not official, but the Department does not dispute that they are true and correct. It was not FCNH's normal practice at the time for Johnson to review transcripts to determine how much credit to accept from another school. This was normally done by the school's education department. However, Johnson was acting as the school’s registrar and appeared to have the authority to make the determination; and it was reasonable for the Respondent to believe that Johnson was authorized to do so. Johnson then had the Respondent fill out and sign an application for licensure in Florida by examination based on her 500-hour course of study at, and diploma from, Royal Irvin College and her NCBTMB certificate. Everything in the application filled out and signed by the Respondent was true and correct at that time. Johnson also had the Respondent fill out and sign an FCNH enrollment agreement. Johnson signed the agreement, acting as school registrar, to enroll the Respondent at FCNH. The enrollment agreement included a statement that FCNH would evaluate collegiate and post-secondary training, military experience, or civilian occupations, and that the Respondent would be given appropriate credit, if criteria to measure the value of such training and experience were met, as determined by FCNH. Johnson then gave the Respondent a copy of the April 2003 edition of the statutes and rules governing the practice of massage therapy in Florida and materials for FCNH’s course in Prevention of Medical Errors and brought her to a classroom. There was an instructor in the classroom who explained the materials to the Respondent and answered her questions as she read and studied the materials for about three to four hours. There were other students and staff in the classroom with the Respondent but they were not studying the same materials as the Respondent and the instructor was directing his explanations and answers to questions to the Respondent, not the other students. The Respondent was not tested or graded on what she studied. When the Respondent finished studying the materials, Johnson told her that she had completed the course requirements. The Respondent did not have any reason to doubt Johnson, who was acting as the school’s registrar. Cf. § 1005.04(1)(a) & (d), Fla. Stat. (2012)(a nonpublic, secondary institution accredited by the Commission for Independent Education must disclose to prospective students the transferability of credit to and from other institutions and accurate information regarding the relationship of its programs to state licensure requirements). Actually, even if credit for all other educational requirements for Florida licensure by examination were transferred from the Royal Irvin College, the Respondent was required to complete a ten-hour class in Florida statutes and rules. Fla. Admin. Code R. 64B7-32.003 (Apr. 25, 2007). (Notwithstanding some testimony to the contrary, other mandatory courses of study are not required by rule to be Florida- specific.) Id. Like all other educational requirements for licensure by examination, this class had to be taken in-person, with a faculty member present. Fla. Admin. Code R. 64B7-32.001 (Mar. 25, 1986). Johnson had the Respondent pay $520 for FCNH's tuition and the Board's $205 license application fee. Johnson said she would file the application for the Respondent. The Respondent did not speak to Johnson again or return to FCNH’s Pompano campus after December 21, 2007. At some point in time on or after December 21, 2007, Johnson completed section III of the Florida license application, which is a transfer of credit form, and the Respondent's FCNH transcript. The transfer of credit form indicated that FCNH was accepting: 150 credit hours from Royal Irvin College in the category Anatomy and Physiology (for a course titled Musculoskeletal); 225 credit hours in the category Basic Massage Therapy and Clinical Practicum (for a course titled Neuromuscular Massage); 15 credit hours in the category Theory and Practice of Hydrotherapy (without specifying the course taken); 95 credit hours in the category Allied Modalities (for a course titled Sports Massage); and 3 hours in the category HIV/AIDS (for a course titled HIV/AIDS). The form indicated that to qualify for examination the Respondent needed to take ten hours in the category Statutes/Rules and History of Massage and two hours in the category Allied Modalities (for medical errors prevention) at FCNH. Finally, the form showed the total credit hours for all schools: 150 credit hours in the category Anatomy and Physiology; 225 credit hours in the category Basic Massage Therapy and Clinical Practicum; ten credit hours in the category Statutes/Rules and History of Massage; 15 credit hours in the category Theory and Practice of Hydrotherapy; 97 credit hours in the category Allied Modalities; and 3 credit hours in the category HIV/AIDS. At some point in time on or after December 21, 2007, Johnson also completed a FCNH transcript for the Respondent indicating that the Respondent completed all the credit hours on the credit transfer form (a total of 500 credit hours, including 12 hours having been taken at FCNH), and assigning credits for those credit hours (a total of 25.84 credits, including 0.8 credit earned at FCNH). At some point in time on or after December 21, 2007, Johnson also completed FCNH certificates of completion for the Respondent indicating that the Respondent took and successfully completed FCNH's two-hour class titled Prevention of Medical Errors and 12 hours of FCNH's Therapeutic Massage Training Program (Transfer of License). Johnson sent the Respondent's license application (with $205 fee), Royal Irvin College diploma and transcript, and NCBTMB certificate, together with the documents Johnson completed on or after December 21, 2007. She did not provide copies to the Respondent. The Board received the submission on December 27, 2007. On December 28, 2007, the Board sent the Respondent a copy of her application, without the supporting documentation, and a letter saying the application was incomplete because her driver license number was omitted. The Respondent added the driver license number and re-submitted the application on January 7, 2008. On January 9, 2008, the Board issued the Respondent massage therapy license MA 52312. The Respondent paid Johnson by check. There was no evidence as to what happened to the balance of the money paid to Johnson. No canceled check was produced, and the evidence is not clear if the check was made payable to FCNH or to Johnson. Either way, subsequent events suggest Johnson probably pocketed the difference between the $520 paid and the $205 license application fee. The Respondent's license application included both the representation that the answers and statements in or in support of her application were true and correct and the acknowledgement that any false information on or in support of the application was cause for denial, suspension, or revocation of her license. Although true and correct when the Respondent filled it out and signed it, the Respondent's application was not true and correct as submitted to the Board on her behalf, with the false supporting documentation prepared by Johnson. In December 2011, it came to the attention of Melissa Wade, FCNH's vice-president for Compliance and Institutional Effectiveness, that a number of people were claiming to have graduated from FCNH's Pompano campus based on documentation indicating that they did not complete FCNH's 768-hour course of study that was approved by the Board. Wade investigated and was unable to find any record of the individuals having been students at FCNH. Wade investigated further and discovered discrepancies in the documentation being submitted by those individuals. Wade investigated further and discovered that Johnson never registered these individuals as enrolled students. Johnson was terminated from her employment as registrar for the school. Beginning in January or February 2012, Wade began notifying the Board about the individuals purporting to be FCNH graduates, but who never actually were registered as enrolled students and did not complete the school's Board-approved course of study. As more such individuals were identified, the Board was notified. The Respondent was one of the individuals reported to the Board. At some point in time, the Respondent became aware of the Department’s concerns about the manner in which she obtained her Florida massage therapist license. In October 2012, in an attempt to resolve the Department's issues regarding her license, the Respondent took and successfully completed a Board-approved continuing education (CE) course consisting of six hours of Ethics and Standards, two hours of Preventing Medical Errors, two hours of Laws and Rules Massage Practice, two hours of Pathology of Chronic Conditions for Massage Therapists, and Living with HIV/AIDS. In October 2012, the Department filed emergency suspension orders and administrative complaints against a number of licensees who submitted suspect FCNH documentation with their applications, including the Respondent. Between her licensure and the emergency suspension order, the Respondent practiced massage therapy in Florida. During that time, there were no complaints of any kind against the Respondent either by the Department or any consumer. It was not proven by clear and convincing evidence that the Respondent had any intent to defraud the Department or the Board. However, even assuming that Johnson had at least apparent authority to transfer credit hours from Royal Irvin College and assign FCNH credit, it is clear that the application submitted on the Respondent's behalf by Johnson was supported by documentation that falsely represented that the Respondent took 12 hours of classes at FCNH, including a ten-hour class on Florida statutes and rules and a two-hour class in Prevention of Medical Errors. At the same time, those false misrepresentations were made by FCNH, through its registrar, not by the Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Massage Therapy enter a final order dismissing the Administrative Complaint against the Respondent. DONE AND ENTERED this 17th day of June, 2013, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 17th day of June, 2013. COPIES FURNISHED: Candace Rochester, Esquire Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399-3265 Maggie M. Schultz, Esquire Rutledge, Ecenia and Purnell, P.A. 119 South Monroe Street, Suite 202 Post Office Box 551 Tallahassee, Florida 32302 Anthony Jusevitch, Executive Director Board of Massage Therapy Department of Health Bin C06 4052 Bald Cypress Way Tallahassee, Florida 32399-3256 Jennifer A. Tschetter, General Counsel Department of Health Bin A02 4052 Bald Cypress Way Tallahassee, Florida 32399-1701
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.
The Issue The issue is whether Respondent violated Subsection 489.129(1)(m), Florida Statutes (1997), by allegedly committing incompetence or misconduct by "poor soil compaction" and by failing to honor the terms of a written warranty.
Findings Of Fact The four-count Administrative Complaint contains factual allegations in 15 numbered paragraphs. Respondent does not dispute paragraphs 1 through 9, 14, and 15. Petitioner is the state agency statutorily charged with regulating pool contracting in the state. At all times material to this proceeding, Respondent has been licensed as a pool contractor pursuant to license number CP C052509. Respondent's business address is Bazar Pools, Inc., 6214 All America Boulevard, Orlando, Florida 32810. On March 6, 1998, Respondent entered into a written contract with Mr. Rex Davidson (the contract). Respondent agreed to construct a residential cantilever deck swimming pool at Davidson's residence located at 2800 Granada Boulevard, Kissimmee, Florida (the pool). Mr. Davidson agreed to pay $19,300 for the pool. Respondent completed the pool sometime in April 1998. Mr. Davidson paid the full amount due under the contract. The contract warranted the "pool structure" for the time that Mr. Davidson owned the pool. Sometime in July of 2000, a crack emerged around the top edge of the pool above the tiles that lined the upper edge of the pool. As the crack worsened, the tiles began to fall off the pool. Respondent did not repair the crack and tiles. Mr. Davidson paid approximately $7,025 to a company identified in the record as Blue Diamond to repair the crack and tile. The contract did not include Respondent's license number. Respondent did not obtain a certificate of authority to do business as Bazar Pools, Inc., at the time he entered into the contract. The contract did not contain a written explanation of consumer rights under the Construction Industry Recovery Fund. Respondent does not dispute Counts II through IV of the Administrative Complaint charging that the acts described in this paragraph violated Subsection 489.129(1)(i), Florida Statutes (1997). Respondent disputes the charge in Count I of the Administrative Complaint that Respondent committed incompetence or misconduct. Paragraphs 10 through 12 of the Administrative Complaint contain the only factual allegations relevant to the charge of incompetence or misconduct. The disputed factual allegations state: Around July of 2000, the pool developed a crack which extended around the entire perimeter and caused the tiles to fall off because of poor soil compaction. The pool's structure is warranted to remain structurally sound for the period of time that it is owned by the original owner. Mr. Davidson contacted Respondent to get the pool repaired, but Respondent failed to take corrective action. The literal terms of allegations in paragraph 10 of the Administrative Complaint led the trier of fact to expect Petitioner to show that Respondent improperly compacted soil under the deck and thereby allowed the deck to settle. However, Petitioner submitted little, if any, evidence pertaining to how Respondent compacted the soil under the deck before Respondent poured the concrete deck. Respondent obtained the three required county inspection approvals before each step in the construction of the pool. The inspections included an inspection to ensure proper soil grade prior to pouring the pool deck. The inspections ensured that Respondent constructed the pool in accordance with stamped engineering drawings that the county required Respondent to file as a prerequisite for a building permit from the county. The vast majority of the evidence that Petitioner submitted during the hearing was relevant to allegations that Respondent committed incompetence and misconduct in two ways. First, Respondent arguably constructed the pool shell and deck as a unitized structure so that the crack and tile problems evolved as the deck settled when underlying soil compacted. Second, Respondent arguably failed to honor the warranty in the contract. As a threshold matter, paragraph 10 in the Administrative Complaint does not allege that Respondent committed incompetence or misconduct by poor pool construction. Rather, paragraph 10 alleges only that a crack developed in the pool and tiles fell off because of "poor soil compaction." Nevertheless, the parties spent substantial hearing time submitting evidence relevant to allegations of incompetence and misconduct not specifically alleged in the Administrative Complaint. In order to prove that Respondent committed incompetence and misconduct by poor pool construction, Petitioner relies on expert opinion to show that Respondent constructed the pool and deck as a unitized structure. Petitioner's expert opined that Respondent must have connected the concrete pool shell to the concrete deck either by steel rods, identified in the record as rebar, or by a mechanical bond between the top of the pool shell and the bottom of the deck. The expert reasoned that settling of the deck could not have caused the crack in the pool unless the deck and pool shell were connected as a unitized body. Several flaws in the expert opinion offered by Petitioner prevent that testimony from reaching the level of clear and convincing evidence. Petitioner's expert did not relate his opinion to facts in evidence. First, Petitioner's expert never inspected the original construction of the pool. The expert visually inspected only the repaired pool and based his opinion on an hour and a-half inspection of the repaired pool. Counsel for Petitioner illustrated the inherent problem in such testimony when he objected to the testimony of one of Respondent's experts on the grounds that the opinion was based on a post-repair inspection. Counsel for Petitioner explained the problem as follows: Objection. Your Honor, [Respondent's expert] is testifying based on his observations of the pool as repaired by Blue Diamond. He never did - he never has made a personal observation of the pool prior to that repair when it was in the condition attributable to [Respondent's] construction method. So, he's testifying without any particular personal knowledge relative to [Respondent's] conduct. Transcript (TR) at 220-221. When Petitioner's expert inspected the post-repair pool, he did not remove the deck to determine whether the top of the pool shell was, in fact, either connected by steel to the deck or otherwise mechanically bonded to the deck. The only competent and substantial evidence in the record of whether the pool shell and the deck were constructed as a unitized structure came from Respondent. Respondent did not use rebar to connect the pool shell to the pool deck. Respondent stopped the rebar approximately two inches below the top of the pool shell. Respondent used mortar, identified in the record as "mud," to smooth variations or undulations, in the top edge of the pool shell and thereby bring the entire top edge of the pool shell up to "dead level." The maximum variation in the top edge of the pool shell prior to leveling did not exceed 1.25 inches. After the mud dried, Respondent intentionally did not clean the top edge of the pool shell. The dirt and debris remaining on the top edge of the pool shell would normally prevent a mechanical bond between the top of the pool shell and the bottom of the concrete deck. The construction technique used by Respondent to construct the pool complies with generally accepted standards for the industry. Respondent has constructed over a thousand pools since 1987 using the same or similar construction techniques. He generally constructs large residential pools in "high-end" neighborhoods that cost customers $40,000 or more, but has constructed some commercial pools. Respondent has never had this problem with his other pools and has never had any previous discipline against his license. The expert opinion offered by Petitioner has another flaw that keeps the testimony from being clear and convincing to the trier of fact. The expert concludes that the deck settled, in relevant part, because "the pool cracked and the tile fell off." In an interrelated ratiocination, the expert concludes that the pool cracked and the tile fell off because the deck settled. Petitioner's expert also concluded that the deck settled because he observed cracks in the deck when he visually inspected the post-repair pool in 2004. He concluded from the cracks he observed in 2004 that settling of the deck in 2000 caused the crack in the pool and the tile problems. Petitioner's expert did not measure the cracks or inspect them to determine if any differential existed in the cracks that would suggest soil compaction under the deck. Petitioner's expert is an expert in pool construction, but is not an expert in pool engineering and design. One of Respondent's expert witnesses is an expert in pool engineering and design. He concluded that the deck did not settle in 2000. The characteristics of the cracks in the post-repair deck in 2004 were consistent with cracks caused by heat expansion and contraction from cooling when joints in the concrete were improperly spaced. The cracks did not exhibit differential settling of the deck. The theory that the crack in the pool and tile problems could not have occurred "but for" the settling of the deck is less than clear and convincing. Faulty installation of the tile by subcontractors is a more likely cause of the problems with the pool and the tile. However, Petitioner neither alleged that Respondent engaged in such acts or that Respondent's license is subject to discipline for the acts of his subcontractors. Finally, the testimony of Petitioner's expert is based on subjective standards while the testimony of Respondent's experts is based on intelligible standards published for the entire industry. Petitioner's expert opined that Respondent committed incompetence and misconduct in constructing the pool based on the expert's personal experience and on the way the expert has constructed pools for many years. Respondent's two experts opined that Respondent complied with written standards of workmanship published by the National Spa and Pool Institute in June 1996 (Workmanship Standards). Aside from whether the pool and deck were joined as a unitized structure, Petitioner's expert opined that Respondent "shot" the pool shell about two inches short of where it should have been, used mud to build up the pool shell, and applied tile over the resulting "cold joint" between the top of the pool shell and the bottom of the deck. Petitioner's expert opined that laying tile over a cold joint is incompetence and misconduct in his experience. Respondent's experts disagree. They opined that laying tile over a cold joint is the normal practice in the industry. Petitioner's expert agreed that it is commonplace for contractors to lay tile over a cold joint and that problems arise in only one in fifty jobs. The trier of fact has discussed the competing testimony of the parties' experts to illustrate that the burden of proof is the fulcrum of decision in this case. The applicable burden of proof does not require a preponderance of evidence to show that Respondent constructed the pool in a competent manner. Rather, the trier of fact need only find that the evidence is less than clear and convincing that Respondent committed incompetence or misconduct in constructing the pool. The remaining allegation is that Respondent committed incompetence and misconduct by failing to honor the warranty and repair the pool. The evidence is less than clear and convincing that Respondent failed to honor the warranty. Sometime in June 2001, Mr. Davidson verbally complained to Respondent that a crack around the pool above the tile line had developed and that tiles around the top edge of the pool were detaching from the pool. Respondent sent a company representative to the site to evaluate the problem. Respondent also sent a service representative to the site to retrieve some of the tiles. Sometime in July 2001, Mr. Davidson again verbally complained to Respondent about the crack and tiles. By letter dated August 8, 2001, Mr. Davidson notified Respondent that a crack had developed behind the tiles sometime in the summer of 2000. The letter stated that the tiles were falling off of the side of the pool. Respondent offered to provide Mr. Davidson with an estimate of the cost of repair. Mr. Davidson elected to have Blue Diamond make the repairs. The pool structure was warranted for the time that Mr. Davidson owned the pool. It is undisputed that the pool shell was well made and water tight. The parties dispute whether the pool structure included the one or two-inch area between the top of the pool shell and the deck, as well as the deck. The contract defined the pool structure by excluding the deck, equipment, tile, and any item other than the pool shell. The definition in the contract is consistent with that in the Workmanship Standards. Petitioner's attempt to rely on a general definition of the term "structure" in a dictionary is not persuasive when considered in the light of the definitions in the contract and the Workmanship Standards. Alternatively, Petitioner argues that the pool structure included the deck and intervening area because all of the parts were constructed as a unitized structure. Based on previous findings, the evidence is less than clear and convincing that the pool shell and deck were constructed as a unitized structure.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of Counts II through IV of the Administrative Complaint and not guilty of Count I. DONE AND ENTERED this 21st day of December, 2004, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 21st day of December, 2004. COPIES FURNISHED: Charles J. Pellegrini, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 John A. Shughart, Jr., Esquire Law Offices of John A. Shughart, Jr. 500 North Maitland Avenue, Suite 305A Maitland, Florida 32751 Miriam S. Wilkinson, Esquire McConnaughhay, Duffy, Coonrod, Pope & Weaver, P.A. 101 North Monroe Street, Suite 900 Post Office Drawer 229 Tallahassee, Florida 32302 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Tim Vaccaro, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
