04-002272PL Department Of Business And Professional Regulation, Construction Industry Licensing Board vs. Terry Lynn Gallimore Status: Closed Recommended Order on Tuesday, December 21, 2004.

Summary: Petitioner failed to show by clear and convincing evidence that a crack in the pool and a detached tile were caused by Respondent`s incompetence or misconduct.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

CONSTRUCTION INDUSTRY LICENSING )

BOARD, )

)

Petitioner, )

)

vs. ) Case No. 04 - 2272PL

)

TERRY LYNN GALLIMORE, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

administrative hearing of this case on October 22, 2004, in

Orlando, Florida, on behalf of the Division of Administrative

Hearings (DOAH) .

APPEARANCES

For Petitioner: Charles J. Pelligrini, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

For Respondent: Miriam S. Wilkinson, Esquire

McConnaughhay, Duffy, Coonrod,

Pope & Weaver, P.A.

101 North Monroe Street, Suite 900

Post Office Drawer 229

Tallahassee, Flor ida 32302

STATEMENT OF 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 war ranty.

PRELIMINARY STATEMENT

Petitioner issued an Administrative Complaint against

Respondent on September 17, 2002. Respondent requested an

administrative hearing, and Petitioner referred the matter to

DOAH to conduct the hearing.

At the hearing, Peti tioner presented the testimony of two

witnesses and submitted 22 exhibits for admission into evidence,

which are numbered 1 through 14, 16, 17, and 21 through 26.

Respondent testified, presented the testimony of two witnesses,

and submitted one exhibit fo r admission into evidence.

The identity of the witnesses and exhibits, and any

attendant rulings, are set forth in the two - volume Transcript of

the hearing filed with DOAH on November 29, 2004. The parties

timely filed their respective proposed recommend ed orders on

December 9, 2004.

FINDINGS OF FACT

1. The four - count Administrative Complaint contains

factual allegations in 15 numbered paragraphs. Respondent does

not dispute paragraphs 1 through 9, 14, and 15.

2. Petitioner is the state agency statu torily 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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).

8. 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:

10. 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.

11. The pool's structure is warranted to

remain structurally sound for the period of

time that it is owned b y the original owner.

12. Mr. Davidson contacted Respondent to

get the pool repaired, but Respondent failed

to take corrective action.

9. The literal terms of allegations in paragraph 10 of the

Administrative Complaint led the trier of fact to expect

P etitioner 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

pour ed the concrete deck.

10. 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 inspe ctions

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.

11. The vast majority of the evidence that Petitione r

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

evolve d as the deck settled when underlying soil compacted.

Second, Respondent arguably failed to honor the warranty in the

contract.

12. 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.

13. 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.

14. Several flaws in the expert op inion 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 repai red 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 r elative to

[Respondent's] conduct.

Transcript (TR) at 220 - 221.

15. 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.

16. Respondent did not use rebar to connect the poo l shell

to the pool deck. Respondent stopped the rebar approximately

two inches below the top of the pool shell.

17. 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.

18. After the mud dried, Respondent intentionally did not

clean the top edge o f 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.

19. The construction technique used by Respondent to

const ruct 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" neighb orhoods 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.

20. 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.

21. 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 fr om 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 sugges t soil compaction under the deck.

22. 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 d eck 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.

23. 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 lik ely 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.

24. Finally, the testimony of Petit ioner'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 construct ing 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 In stitute

in June 1996 (Workmanship Standards).

25. 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 b uild 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.

26. R espondent'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 fi fty jobs.

27. 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

eviden ce 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.

28. The re maining 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.

29. 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 pro blem.

Respondent also sent a service representative to the site to

retrieve some of the tiles.

30. Sometime in July 2001, Mr. Davidson again verbally

complained to Respondent about the crack and tiles. By letter

dated August 8, 2001, Mr. Davidson noti fied 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.

31. Respondent offered to provide Mr. Davidson with an

estimate of the cost of repair . Mr. Davidson elected to have

Blue Diamond make the repairs.

32. 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 s tructure included the one or two - inch area

between the top of the pool shell and the deck, as well as the

deck.

33. 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 W orkmanship Standards.

34. 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.

CONCLUSIONS OF LAW

35. DOAH has no jurisdiction over Counts II through IV of

the Administrative Complaint and the undisputed facts relevant

to those counts. The provisio ns of Subsection 120.57(1),

Florida Statutes (2004), apply only to hearings involving

disputed issues of material fact. Respondent does not dispute

the foregoing matters, and the parties did not submit evidence

relevant to those matters. Petitioner has j urisdiction to

consider undisputed issues of material fact and appropriate

penalties in a proceeding conducted pursuant to

Subsection 120.57(2), Florida Statutes (2004).

36. DOAH has jurisdiction over the parties and subject

matter of that part of this p roceeding involving Count I of the

Administrative Complaint and relevant disputed issues of

material fact. §§ 120.569 and 120.57, Fla. Stat. (2004). DOAH

provided adequate notice of the administrative hearing.

36. As a threshold matter, the Administrati ve Complaint

alleges, in relevant part, that Respondent committed

incompetence and misconduct because of "poor soil compaction."

For reasons stated in the findings of fact, the evidence is less

than clear and convincing that Respondent committed incompete nce

and misconduct by "poor soil compaction."

37. Petitioner did not allege in the Administrative

Complaint that Respondent committed incompetence and misconduct

because of poor pool construction. An administrative agency,

including DOAH and Petitioner , cannot find Respondent guilty of

committing acts not alleged in the Administrative Complaint.

38. An administrative complaint seeking disciplinary

action must allege the specific acts or omissions that form the

grounds for the violations charged in the administrative

complaint. An agency cannot find a licensee guilty of a charged

violation based on evidence of grounds not specifically alleged

in the administrative complaint. Ghani v. Department of Health ,

714 So. 2d 1113 (Fla. 1st DCA 1998); Cottrill v . Department of

Insurance , 685 So. 2d 1371 (Fla. 1st DCA 1996). In Cottrill ,

Judge Benton explained:

Predicating disciplinary action against a

licensee on conduct never alleged in an

administrative complaint . . . violates the

Administrative Procedure Act . To

countenance such a procedure would render

nugatory the right to a formal

administrative proceeding to contest the

allegations of an administrative complaint.

Cottrill , 685 So. 2d at 1372.

39. Assuming arguendo that DOAH has authority to resolve

the allegations contested by the parties during the

administrative hearing, Petitioner has the burden of proof.

Petitioner must show by clear and convincing evidence that

Respondent committed the acts alleged in the Administrative

Complaint and the reasonabl eness of any proposed penalty.

§ 120.57(1)(h), Fla. Stat. (2003); Department of Banking and

Finance v. Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996);

Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

40. Petitioner did not satisfy its burden of proof . In a

proceeding under a statute that is penal in nature, the

requirement for competent and substantial evidence takes on

vigorous implications that are not present in other proceedings

under Chapter 120, Florida Statutes (2003). Robinson v. Florida

Boa rd of Dentistry, Department of Professional Regulation , 447

So. 2d 930, 932 (Fla. 3d DCA 1984). In order for such evidence

to be clear and convincing:

. . . evidence must be found to be credible;

the facts to which witnesses testify must be

. . . precise and explicit, and witnesses

must be lacking in confusion as to the facts

in issue. The evidence must be of such

weight that it produces in the mind of the

trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the

allegations sou ght to be established.

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA

1983).

41. Terms such as pool structure, unitized structure,

incompetence, and misconduct are terms used by Petitioner to

impose discipline pursuant to a penal statute. The terms of

such statutes must be construed strictly in favor of Respondent

and against the imposition of discipline. State ex rel.

Jordan v. Pattishall , 99 Fla. 296, 126 So. 147 (Fla. 1930);

Ocampo v. Department of Health , 806 So. 2d 633 (1st DCA Fla.

200 2); Lester v. Department of Professional and Occupational

Regulations , 348 So. 2d 923 (Fla. 1st DCA 1977).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Petitioner enter a final order finding

Respon dent 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 J udge

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 Hea rings

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 Bi egalski, 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

Pr ofessional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any ex ceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.