98-003713 Department Of Business And Professional Regulation, Construction Industry Licensing Board vs. Bruce E. Esquinaldo Status: Closed Recommended Order on Tuesday, June 27, 2000.

Summary: Swimming pool contractor should be disciplined because the Agency proved that the company he qualified abandoned construction projects in DOAH Case Nos. 98-3713 and 99-2655. All other counts in the Administrative Complaints should be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

CONSTRUCTION INDUSTRY )

LICENSING BOARD, )

)

Petitioner, )

)

vs. ) Case Nos. 98-3713

) 99-2654

BRUCE E. ESQUINALDO, JR., ) 99-2655

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in these

cases on October 11 and 12, 1999, and April 6 and 7, 2000, in

Miami, Florida, before Patricia Hart Malono, the duly-designated

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Diane Snell Perera, Esquire

Department of Business and

Professional Regulation

401 Northwest Second Avenue

Suite N-607

Miami, Florida 33128

For Respondent: Wellington F. Meffert, II, Esquire 1/

301 South Bronough Street

Suite 200

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

Whether the Respondent committed the violations alleged in

the Administrative Complaints dated June 3, 1998, and December

23, 1998, and, if so, the penalty that should be imposed.

PRELIMINARY STATEMENT

In a two-count Administrative Complaint dated June 3, 1998,

the Department of Business and Professional Regulation

("Department"), Construction Industry Licensing Board ("Board"),

charged Bruce E. Esquinaldo, Jr., as qualifier of Challenger

Pools, Inc., with two violations of Section 489.129(1), Florida

Statutes ( Supp. 1996), with respect to construction of a

swimming pool on the property of Irving Jovellar. Specifically,

the Department charged Mr. Esquinaldo with having violated

Section 489.129(1)(k), Florida Statutes ( Supp. 1996), by

abandoning a construction project and with having violated

Section 489.129(1)(p), Florida Statutes ( Supp. 1996), by

knowingly violating local building codes. Mr. Esquinaldo timely

requested an administrative hearing, and the Department

transmitted the matter to the Division of Administrative

Hearings for assignment of an administrative law judge. The

case was assigned DOAH Case No. 98-3713. At the hearing, the

Department dismissed Count II of the Administrative Complaint

dated June 3, 1998.

In a three-count Administrative Complaint dated December

23, 1998, the Board charged Bruce E. Esquinaldo, Jr., as

qualifier of Challenger Pools, Inc., with three violations of

Section 489.129, Florida Statutes ( Supp. 1996), with respect to

construction of a swimming pool on the property of David

Casadona. Specifically, the Department charged Mr. Esquinaldo

with having violated Section 489.129(1)(k), Florida Statutes

( Supp. 1996), by abandoning a construction project; with having

violated Section 489.129(1)(n), Florida Statutes ( Supp. 1996),

by failing to satisfy minimum industry standards and, thereby,

committing incompetency in the practice of contracting; and with

having violated Section 489.129(1)(p), Florida Statutes ( Supp.

1996), by failing to obtain passing final inspections. Mr.

Esquinaldo timely requested an administrative hearing, and the

Department transmitted the matter to the Division of

Administrative Hearings for assignment of an administrative law

judge. The case was assigned DOAH Case No. 99-2654.

In a three-Count Administrative Complaint dated December

23, 1998, the Board charged Bruce E. Esquinaldo, Jr., as

qualifier of Challenger Pools, Inc., with three violations of

Section 489.129, Florida Statutes ( Supp. 1996), with respect to

construction of a swimming pool on the property of Jameel

Quadri. Specifically, the Department charged Mr. Esquinaldo

with having violated Section 489.129(1)(k), Florida Statutes

( Supp. 1996), by abandoning a construction project; with having

violated Section 489.129(1)(n), Florida Statutes ( Supp. 1996),

by failing to satisfy minimum industry standards and, thereby,

committing incompetency in the practice of contracting; and with

having violated Section 489.129(1)(p), Florida Statutes ( Supp.

1996), by failing to obtain passing final inspections. Mr.

Esquinaldo timely requested an administrative hearing, and the

Department transmitted the matter to the Division of

Administrative Hearings for assignment of an administrative law

judge. The case was assigned DOAH Case No. 99-2655.

DOAH Case Nos. 98-3713, 99-2654, and 99-2655 were

consolidated by order entered July 14, 1999. Pursuant to

notice, a final hearing was conducted on October 11 and 12,

1999. It was not possible to conclude the hearing on October

12, 1999, and a continuation of the hearing was scheduled for

February 29 and March 1, 2000. Counsel for the Respondent was

given leave to withdraw in an order entered January 4, 2000,

and, in order to allow new counsel time to prepare for hearing,

a continuance was granted, and the hearing rescheduled in an

order entered February 24, 2000. Pursuant to notice, the

continuation of the final hearing was conducted on April 5 and

6, 2000.

At the final hearing, the Department presented the

testimony of the following witnesses in DOAH Case No. 98-3713:

Renee Smouse, Michael Sprovero, and Irving Jovellar. The

Department presented the testimony of the following witnesses in

DOAH Case No. 99-2654: David Casadona, Thomas J. Willi, Philip

A. Boyd, John Pasquale Pompilio, and Bruce Rogers. The

Department presented the testimony of the following witnesses in

DOAH Case No. 99-2655: Jameel Quadri, Michael D. Fauver,

Michael A. Barabas, Lamar A. Vetter, and Gilbert Curry, Jr. The

Department presented the testimony of Calvin B. Eden, who was

qualified as an expert witness, in all three cases.

Petitioner's Exhibits 1 through 32 were offered and received

into evidence.

With respect to all three cases, the Respondent presented

the testimony of the following witnesses: Bruce E. Esquinaldo

Jr.; Theodore Duane Camburn; Caryn Ruth Breed; Jeffrey T.

Burley; Gary Weston; Bruce Esquinaldo, Sr.; Robert Karrh; and

Frank J. Deizaguirre, who was qualified as an expert witness and

whose testimony was presented by deposition. Respondent's

Exhibits 1 through 3 and 4 through 9 were offered and received

into evidence.

The last three volumes of the seven-volume transcript of

the proceedings were filed with the Division of Administrative

Hearings on April 20, 2000, and the parties timely filed

proposed findings of fact and conclusions of law, which have

been considered.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of this proceeding, the

following findings of fact are made:

1. The Department is the state agency responsible for

investigating and prosecuting complaints made to the Department

for violations of Chapter 489, Part I, Florida Statutes.

Sections 489.131(7)(e) and 455.225, Florida Statutes (1997).

Pursuant to Section 489.129(1), Florida Statutes (1997), the

Construction Industry Licensing Board ("Board") is the entity

responsible for imposing discipline for any of the violations

set forth in that section.

2. At all times material to these proceedings, Mr.

Esquinaldo was a licensed swimming pool contractor, having been

issued license number CPCO50527 by the Board, and he was the

qualifying contractor for Challenger Pools, Inc. ("Challenger

Pools"). Mr. Esquinaldo has been a licensed swimming pool

contractor since 1987. In that time, Mr. Esquinaldo has been

cited by the Department once, in June 1992, and Mr. Esquinaldo

paid an administrative fine of $50.00 for the violation, which

was failure to obtain a final inspection after completing a

swimming pool.

3. At the times material to these proceedings, Challenger

Pools had several offices in south and central Florida, and

built approximately 1,500 pools each year. Mr. Esquinaldo was

the only qualifier for the company.

4. The building code that governed each of the projects at

issue herein was the South Florida Building Code, 1996 Edition.

This Code required a number of inspections: For the structural

portion of the pool, three inspections were required: the pool

steel, the pool deck, and the final inspection. For the

plumbing portion of the pool, three inspections were required:

the main drain, pool piping, and the final inspection. For the

electrical portion of the pool, three inspections were required:

the electrical grounding of the steel structure, the pool deck

grounding, and the final inspection. In addition, a final

inspection was required for any fencing to be installed. It is

the responsibility of the pool contractor to call for the

required inspections for work over which it has responsibility.

5. The South Florida Building Code, 1996 Edition, also

provided that building permits, including permits for the

construction of swimming pools, would expire if 180 days elapsed

without the contractor calling for an inspection.

6. It is not unusual in the pool contracting industry for

inspections to reveal code violations. The contractor is,

however, expected to correct the violations and any other

deficiencies noted in the inspection reports.

7. During the times material to these proceedings, it was

the policy of Challenger Pools that, whenever a customer

threatened a lawsuit or filed a lawsuit, it would stop work

immediately on the customer's pool and it would cease all direct

communications with the customer. Work would recommence at the

direction of Challenger Pools' attorney. This policy was

adopted on the advice of Challenger Pools' attorney.

DOAH Case No. 98-3713 - Irving Jovellar

8. On May 7, 1996, Challenger Pools, Inc., and Irving

Jovellar entered into a Swimming Pool Construction Agreement for

the construction of a swimming pool and spa at 188 Truxton

Drive, Miami Springs, Florida. Addenda to the agreement were

executed on June 6 and 22, 1996, and on September 6, 1996. The

contract price was $14,000.00, with $1,600.00 added pursuant to

the September 6, 1996, addendum. The full contract price of

$15,600.00 was paid by Mr. Jovellar, and the check for the final

payment was processed by the bank on October 2, 1996. 2/

9. On June 11, 1996, Challenger Pools applied to the City

of Miami Springs, Florida, for a building permit for the pool.

Challenger Pools began work on Mr. Jovellar's pool on June 13,

1996, and the swimming pool, plumbing, and electric permits were

issued on July 12, 1996.

10. Challenger Pools worked on Mr. Jovellar's pool

throughout the summer of 1996. The steel installation was

approved on July 19, 1996, and the slab was approved September

12, 1996. The pool was plastered on September 28, 1996, and the

pool was filled with water and operating on September 30, 1996.

3/

11. In a letter dated September 26, 1996, Mr. Jovellar's

attorney notified Challenger Pools that the gate to Mr.

Jovellar's fence had been damaged during the pool excavation and

that Mr. Jovellar expected to be compensated for the damage.

Challenger Pools advised Mr. Jovellar that the excavator, Tom

Waters, was responsible for the damage and that he should look

to Mr. Waters for compensation. Mr. Jovellar filed suit against

Mr. Waters in small claims court, served Mr. Waters in early

February 1997, and recovered approximately $450.00 in damages

from Mr. Waters.

12. Mr. Jovellar's pool did not pass the plumbing final

inspection dated November 8, 1996, because the pool heater was

not properly installed.

13. Challenger Pools renewed the structural and plumbing

permits on July 24, 1997.

14. In a letter dated October 30, 1997, Mr. Jovellar's

attorney notified Challenger Pools that, if it did not correct

the defects in the swimming pool, suit would be filed against

Challenger Pools. Challenger Pools responded in a letter dated

November 6, 1997, that it was prepared to correct the problems

with the pool. Challenger Pools further advised that, because

the pool permits had expired, it would apply to renew the

permits so that work could begin.

15. Challenger Pools renewed the structural, plumbing, and

electrical permits on January 19, 1998. Challenger Pools went

back to work on Mr. Jovellar's pool in January 1998.

16. The next inspections of Mr. Jovellar's pool took place

between July 15, 1998, and January 6, 1999, the date on which

the pool passed its final inspection.

17. Notwithstanding the plumbing inspection conducted on

November 8, 1996, and the permit renewal on July 24, 1997, Mr.

Esquinaldo testified that, on the advice of its attorney,

Challenger Pools ceased work on Mr. Jovellar's swimming pool in

early October 1996, when it received the September 26, 1996,

letter from Mr. Jovellar's attorney regarding the broken fence

gate.

18. On the basis of Mr. Esquinaldo's testimony, it is

established that Challenger Pools ceased work on Mr. Jovellar's

pool in early October 1996. The evidence also establishes that

work recommenced in early 1998. Accordingly, Challenger Pools

failed to work on Mr. Jovellar's pool for a period in excess of

90 consecutive days between October 1996 and January 1998. The

evidence further establishes that Challenger Pools ceased work

because Mr. Jovellar threatened a lawsuit to recover damages for

repair of a fence damaged by the person who excavated the pool.

Under the circumstances, the threatened lawsuit did not

constitute just cause for Challenger Pools' failure to work on

Mr. Jovellar's pool between October 1996 and January 1998 even

though Challenger Pools stopped work on the advice of its

attorney; Challenger Pools advised Mr. Jovellar to proceed

against the excavator to recover for the damages to the fence,

which Mr. Jovellar did in early 1997. The Department did not

present evidence sufficient to establish that Challenger Pools

failed to work on Mr. Jovellar's pool for 90 consecutive days

subsequent to January 1998.

19. As of October 6, 1999, the Department had expended

$160.52 in investigative costs and $2,433.90 in prosecutorial

costs with respect to Mr. Jovellar's complaint.

DOAH Case No. 99-2654 - David Casadona

20. On September 30, 1996, Challenger Pools entered into a

Swimming Pool Construction Agreement with David Casadona for

construction of a residential swimming pool at 14910 Southwest

70th Place, Davie, Florida. The full contract price was

$9,000.00, and Mr. Casadona made the final payment on the pool

in March 1997.

21. Mr. Casadona was building a house at this address,

and, a representative of Challenger Pools advised Mr. Casadona

that construction on the swimming pool would begin after

construction on the house was completed.

22. Mr. Casadona moved into the new house on November 6,

1996, and Challenger Pools began excavating the pool

approximately a week and a half later, in mid-November 1996.

23. Challenger Pools submitted applications to the Town of

Davie for the electrical, plumbing, and structural permits for

Mr. Casadona's pool on November 19, 1996. The permits to

construct the swimming pool were issued on January 2, 1997.

24. Mr. Casadona contracted separately for installation of

a fence around the pool, and, pursuant to the agreement between

Mr. Casadona and Challenger Pools, Mr. Casadona was responsible

for ensuring that the fence met local building codes.

Challenger Pools was not licensed to install fences, and the

installation of a fence was not included in any of Challenger

Pools' swimming pool construction agreements. The permit for

the fence was issued January 2, 1997.

25. The Town of Davie conducted a special inspection of

Mr. Casadona's property on December 18, 1996, before the permits

were issued for construction of the pool, to determine whether a

fence existed on the property and the height of the fence, if

one existed. At that time, the inspector discovered that the

pool had already been excavated and that the rebar was in place.

The inspector also noted that part of the footer for the rear

patio of the house had been undermined. A permit is required

before a pool is excavated, but it is not unusual for a pool

contractor to begin excavation before the permit is issued.

26. An inspection of the plumbing pool main drain was

conducted on January 3, 1997, and approved without comment.

27. An inspection of the electrical pool grounding was

conducted on January 3, 1997, and approved without comment.

28. An inspection of the structural pool steel was

conducted on January 6, 1997. The pool steel was approved with

an exception. The inspector noted that an area under the

existing structure had been undermined, and Challenger Pools was

directed to pour the gunnite for the pool as soon as possible

and to consult an engineer for directions on how to return the

existing structure to its original specifications. The

inspector further required that an engineer provide

certification that the existing structure had proper support in

the area in which it was undermined. The face of the footer

under the structure was exposed, and the earth underneath the

structure was undermined about three or four inches; the

undermining did not threaten the integrity of the existing

structure.

29. An inspection of the plumbing pool piping was

conducted on January 16, 1997, and approved without comment.

30. An inspection of the electrical pool deck bonding was

conducted on January 27, 1997, and disapproved with the comment

that all metal within 5 feet of the water must be bonded.

31. An inspection of the structural pool deck steel was

conducted on January 27, 1997, and disapproved with the comment

that the item was not ready for inspection because the form

boards were not completed.

32. The electrical pool deck bonding was inspected on

February 3, 1997, and approved without comment.

33. The structural pool deck steel was inspected on

February 4, 1997, and approved without comment.

34. Challenger Pools worked on Mr. Casadona's pool from

November 1996 through March 1997, when Challenger Pools applied

the plaster to the pool and filled the pool with water. Once

the pool was filled, Mr. Casadona began using the pool. Because

Mr. Casadona had not installed the fence when Challenger Pools

plastered the pool and filled it with water, Challenger Pools

created a temporary enclosure for the pool by surrounding the

pool with an orange plastic barrier.

35. A plumbing pool final inspection was conducted on

April 15, 1997, and disapproved because no approved plans or

permit cards were available on-site.

36. An electrical pool final inspection was conducted on

April 15, 1997, and disapproved with the comment that no

approved plans or permit cards were available on the site.

37. Between April 1997 and October 1997, Challenger Pools

corrected the violations noted on the inspection reports and

made several service calls to work on Mr. Casadona's pool. By

October 1997, Mr. Casadona had installed the required fence, but

the gate was not in compliance with the South Florida Building

Code.

38. Challenger Pools requested a replacement set of plans

for Mr. Casadona's pool on October 3, 1997, and they were

provided on October 7, 1997.

39. A plumbing pool final inspection was conducted on

October 8, 1997. The work was disapproved because the pool's

main drain was missing one screw.

40. On October 8, 1997, an electrical pool final

inspection was conducted. The electrical work was disapproved

with seven comments identifying violations of the National

Electric Code, as follows:

(1) NEC 110-3B Listed and labeled (insulate

unused lead)

(2) NEC 680-22(a)-(l) Bond all metal within

5' x 12' (must see bond at handrail)

(3) NEC 110-16(a) Working clearance at

service and controller

(4) NEC 680-20-B-1 Must see potting

compound

(5) NEC 680-6(A)(2)(3)(1), Receptacle

(B)-(1), Light

(6) NEC 680-10 UG. wiring not permitted

within 5' of pool

(8) [sic] Speaker wire not approved

Item (1) refers to insulating the unused leads on the pool

light. Item (2) refers to the lack or apparent lack of bonding

on a handrail installed in the pool deck. Item (3) refers to

the requirement that there be sufficient working clearance in

front of the pump controller, which is a time switch

transformer; with respect to this item, a hedge had been planted

in front of the pool pump and filter by someone other than

Challenger Pools, the shrubs blocked access to the pump

controller, and Mr. Casadona refused to move the shrubs. Item

(4) refers to the requirement that potting compound be used in

the wet light niche in the pool to prevent the chemicals in the

water from corroding the ground bonding connection; with respect

to this item, Richard Boyette, a licensed professional engineer,

certified in a letter to the Town of Davie dated April 3, 1998,

that potting compound had been properly placed in the lighting

niches in the pool. Item (6) refers to wiring being installed

within 5 feet of the pool. Item "(8)" refers to speaker wires

that are not allowed in the pool area. With respect to items

(6) and "(8)", the violations were not the responsibility of

Challenger Pools because they related to wiring for Malibu

lights and two speakers installed by someone other than

Challenger Pools.

41. A structural pool deck final inspection was conducted

on October 8, 1997, and approved without comment.

42. A structural pool steel inspection was conducted on

October 8, 1997, and disapproved with the comment that the pool

had been completed without a pool steel inspection. In a letter

dated April 3, 1998, Richard Boyette, a licensed professional

engineer, certified to the Town of Davie that the pool steel had

been properly placed according to the permit plans.

43. A structural fence final inspection was conducted on

October 8, 1997, and disapproved with the comment that "all

fences and gates must be 5' high for yards with pools." The

fence contractor was identified in the inspection report as

Cercas Isla - Island Fence.

44. Challenger Pools did not call for any inspections on

Mr. Casadona's pool after it corrected the deficiencies noted in

the October 1997 inspection reports until January 1999 because

Mr. Casadona did not correct the violations for which he was

responsible, that is, the fence gate height, the shrubs in front

of the pool pump, and the electrical wires for the Malibu lights

and speakers. Mr. Casadona was aware of these violations as a

result of the October 8, 1997, inspection reports.

45. Mr. Casadona and Challenger Pools' personnel were in

regular contact during the October 1997 to January 1999 hiatus.

Challenger Pools repeatedly asked Mr. Casadona to correct the

fence gate height so that a structural pool final inspection

could be approved and to remedy the electrical violations for

which he was responsible. Challenger Pools let the situation

remain unresolved because, on the basis of conversations

Challenger Pools' personnel had with Mr. Casadona, there was no

reason to believe that Mr. Casadona would not cooperate and

correct the deficiencies.

46. As of January 1999, Mr. Casadona had not made the

required corrections. He did, however, file a complaint with

the Department. At that time, Challenger Pools' attorney

advised the company to finish Mr. Casadona's pool and close out

the permit. Based on this advice, Challenger Pools renewed the

permits and called for the final inspections.

47. A plumbing pool final inspection was conducted on

January 25, 1999, and approved without comment.

48. A structural fence final inspection was conducted on

January 25, 1999, and disapproved with the comment that "[t]here

is no reference to a fence anywhere in the pool plans. The

front gate is not self closing, self latching and is about 6"

from being the 5' heighth [sic] requirement."

49. An electrical pool final inspection was conducted on

March 9, 1999, and disapproved with the comment that "working

clearance violated at pump controller." The electrical final

inspection was disapproved because Mr. Casadona would not remove

the shrubs he had planted in front of the pool pump.

50. An electrical pool final inspection was conducted on

March 22, 1999, and approved, but the inspection report

contained the comment that "working clearance violated at pump

controller."

51. A structural pool deck final was conducted on March

24, 1999, and approved with a comment that it had already been

approved by another inspector.

52. A structural fence final inspection was conducted on

March 24, 1999, and disapproved with the comment that the fence

was "not ready[;] the gate and latch are not 5' high."

53. A structural fence final inspection was conducted on

March 26, 1999, and rejected because the gate was not 5 feet

high and was not self-closing and self-latching, as required by

ordinance. The inspector also noted that no plan or permit for

the fence was posted on the property and that no one was at home

at the time of the inspection.

54. A structural pool steel inspection was conducted on

March 31, 1999, and disapproved because no one was at home and

neither the plans nor the permit cards were posted. The

inspector noted, however, that the pool was completed.

55. In a letter to the Town of Davie dated February 18,

1999, and received by the Town of Davie on April 12, 1999, Mr.

Boyette stated that the "steel and main drain inspection was

bypassed due to a lack of communication on the above referenced

pool. However, steel and main drain were in per code."

56. An electrical pool final inspection was conducted on

April 14, 1999, and disapproved with the comments "disconnect

required for pump motor ahead of controller" and "unused

transformer tap to be insulated at connection end." These were

two items that the electrical inspector did not catch during the

March 22, 1999, inspection.

57. A structural pool final inspection was conducted on

April 19, 1999, and was approved with the comments that the

engineer's letter should be consulted regarding the missed pool

steel inspection. A note was made in the report of the

structural pool final inspection conducted on April 19, 1999,

stating "Fence Final" with the comment that the fence and wall

and existing front gate were 5 feet high and self-closing and

self-latching.

58. The permit for Mr. Casadona's pool was closed out by

the Town of Davie Building Division on April 19, 1999, when the

structural pool final inspection was approved.

59. After the inspections conducted in October 1997,

Challenger Pools corrected the violations noted in the

inspection reports for which it was responsible.

60. Challenger Pools did not do any work on Mr. Casadona's

pool after it corrected the violations noted in the October 1997

inspection reports because it considered its work on the pool

complete.

61. The violations noted in the inspection reports for Mr.

Casadona's pool were not unusual for the industry and were

relatively minor. Challenger Pools corrected all of the

violations and deficiencies noted in the inspection reports for

Mr. Casadona's pool.

62. The evidence presented by the Department is not

sufficient to establish with the requisite degree of certainty

that Challenger Pools failed to work on Mr. Casadona's pool for

90 consecutive days during the period from March 1997 until

October 1997. However, the evidence presented is sufficient to

establish with the requisite degree of certainty that Challenger

Pools failed to work on Mr. Casadona's pool for 90 consecutive

days during the period from October 1997 until January 1999.

Challenger Pools could have done more to encourage Mr. Casadona

to correct the height of his fence gate, remove the shrubs from

around the pump controller, and remove the prohibited electrical

wiring around the pool. Nonetheless, Challenger Pools had just

cause to cease work on Mr. Casadona's pool because Challenger

Pools could have reasonably concluded that its work on the pool

was completed and that the only things remaining to be corrected

were items for which Mr. Casadona was responsible. All of the

violations noted on the inspection reports from January 1999

through April 1999 were the responsibility of Mr. Casadona with

the exception of two minor code violations noted in the

electrical pool final inspection conducted April 14, 1999, which

violations were corrected by Challenger Pools prior to April 19,

1999.

63. The evidence presented by the Department is not

sufficient to establish with the requisite degree of certainty

that the work Challenger Pools did on Mr. Casadona's pool was

below industry standards. 4/

64. The evidence presented by the Department is sufficient

to establish with the requisite degree of certainty that

Challenger Pools commenced construction on Mr. Casadona's pool

before the Town of Davie issued a building permit. The evidence

presented by the Department is not sufficient, however, to

establish with the requisite degree of certainty that Challenger

Pools worked on Mr. Casadona's pool without having obtained the

proper inspections. The inspection history establishes that,

notwithstanding the notations on subsequent inspection reports,

both the pool main drain and the pool steel were approved on

January 3, 1997, and January 6, 1997, respectively. In

addition, Challenger Pools called for final inspections of the

plumbing, electric, and structural components of the pool on

October 8, 1997, and again in January 1999, and closed out the

permit on April 19, 1999.

DOAH Case No. 99-2655 - Jameel Quadri

65. On August 15, 1995, Challenger Pools entered into a

Swimming Pool Construction Agreement with Jameel Quadri for

construction of a residential swimming pool and spa at 239

Landings Boulevard, Fort Lauderdale, Florida. The full contract

price was $12,240.00.

66. Mr. Quadri was building a house on the property, and

the agreement between Challenger Pools and Mr. Quadri provided

that construction of the pool would not start until construction

on the new house was completed.

67. On October 3, 1996, Challenger Pools and Mr. Quadri

entered into a contract addendum to the agreement that provided

for the addition of brick pavers, a screen enclosure, and

electrical work for the screen enclosure. The price of the

additional items was $7,860.00. Mr. Quadri made the final

payment on the pool agreement and addendum in April 1997.

68. The applications for the building, screen enclosure,

plumbing, and electrical permits for Mr. Quadri's swimming pool

and spa were received by the Broward County Building and

Permitting Department on October 15, 1996, and the permits were

issued on October 29, 1996. The building, screen enclosure, and

plumbing permits were issued to Challenger Pools as the

contractor; and the electrical permit was issued to Specialty

Device Installers. Even so, Challenger Pools remained

responsible for the electrical work on the pool because it was

included in the agreement. The permits were based on the plans

for construction submitted with the permit applications,

including the plans for the spa and the pool deck.

69. Challenger Pools began construction on Mr. Quadri's

pool on October 25, 1996, when the pool was excavated.

70. A plumbing pool and spa main drain inspection was

conducted on October 31, 1996, and was disapproved because the

work was not ready for inspection and no safety railing had been

installed around the excavation.

71. An electrical pool grounding inspection was conducted

on October 31, 1996, and disapproved for several reasons.

72. A structural pool steel inspection was conducted on

October 31, 1996, and disapproved for several reasons.

73. The plumbing pool main drain was inspected on November

15, 1996, and disapproved because no Notice of Commencement had

been recorded and because the safety fence was not completely

around the pool.

74. The electrical pool grounding was inspected and

approved on November 15, 1996.

75. The structural pool steel was inspected on November

15, 1996, and disapproved because of unsafe conditions, with the

comment that safeguards were required.

76. The plumbing pool and spa main drains were inspected

on November 20 1996, and disapproved because the pool and spa

main drains had only 38 and 33 pounds of pressure, respectively,

when the code requires 40 pounds.

77. The plumbing pool and spa main drains were inspected

and approved on November 26, 1996.

78. The structural pool steel was inspected on November

26, 1996, and approved.

79. A plumbing pool piping inspection was conducted on

December 9, 1996, and disapproved because the piping was not

properly bedded, the dirt on the job site was not proper clean

fill, and the piping was "within the angle of repose."

80. The plumbing pool piping was inspected on December 20,

1996, and disapproved because the piping was not properly

bedded.

81. The plumbing pool piping was inspected and approved on

December 24, 1996.

82. An electrical pool deck grounding inspection was

conducted on February 20, 1997, and disapproved for several

reasons.

83. A structural pool deck inspection was conducted on

February 20, 1997, and disapproved for several reasons.

84. The electrical pool deck grounding was inspected and

approved on February 28, 1997.

85. The structural pool deck was inspected and approved on

February 28, 1997.

86. Challenger Pools worked steadily on the pool until it

was plastered on April 21, 1997, and filled with water.

87. In April and May 1997, Challenger Pools received

several telephone calls from Mr. Quadri regarding problems with

his pool. In May 1997, Mr. Quadri called an attorney and asked

that the attorney write a letter to Challenger Pools regarding

what Mr. Quadri perceived were problems with the pool

construction. In a letter dated May 22, 1997, Mr. Quadri's

attorney identified the problems as follows:

The deck area is not level, causing the

pavers to break. The vacuum system has

never been delivered or installed. The

underwater pool light is dangling from its

fixture and has exposed wires sitting in the

water. The spa and jets do not work. The

waterfall does not work. There are open and

exposed wires at the pump. One of your

trucks damaged the right side corner of Mr.

Quadri's house and that condition has not

been repaired. The ceramic underwater

handles on the exterior of the spa are the

wrong color. Mr. Quadri was promised white

handles and you installed grey ones.

The "exposed wires" mentioned in reference to the pool light

were designed to be submerged in water, and the "exposed wires"

at the pump were bonding wires running from the timer to the

pump.

88. Mr. Quadri's attorney notified Challenger Pools in the

May 22, 1997, letter that, unless the defects identified in the

letter were corrected within ten days of the date of the letter,

Mr. Quadri would file suit against Challenger Pools for breach

of contract. Challenger Pools did not respond to the letter of

May 22, 1997, and no one from Challenger Pools came to the

property to work on the pool and spa in response to that letter.

89. In accordance with company policy, Challenger Pools

ceased working on Mr. Quadri's pool and spa when it received the

May 22, 1997, letter from Mr. Quadri's attorney threatening a

lawsuit.

90. In a letter dated August 14, 1997, Mr. Quadri's

attorney sent Challenger Pools a letter demanding treble damages

for theft arising out of the failure of Challenger Pools to

complete Mr. Quadri's pool and spa after having been paid in

full.

91. In August 1997, at the request of Challenger Pools'

attorney, Challenger Pools' vice president, Tom Camburn, and

Challenger Pools' Fort Lauderdale field supervisor visited Mr.

Quadri's property to view the pool and spa. Mr. Camburn and the

field supervisor were in the vicinity of Mr. Quadri's pool for

only 10 to 15 seconds before Mr. Quadri came out of the house

and told them to leave the property, asserting that he was going

to sue Challenger Pools. During those few seconds, Mr. Camburn

observed that there was water in the pool and that some of the

pavers forming the pool deck were sunken. He did not measure

the pool and spa to determine if they were larger than

represented in the original plans, although he did note that the

pool and deck were larger than Challenger Pools usually builds.

92. Challenger Pools' attorney responded to the August 14,

1997, letter with a letter dated August 20, 1997, advising Mr.

Quadri's attorney of the outcome of the visit to Mr. Quadri's

property and advising him that Challenger Pools would not go

back to Mr. Quadri's property to inspect and repair any

legitimate warranty complaints unless Mr. Quadri paid Challenger

Pools a reasonable amount for the larger pool and spa.

93. Challenger Pools based its contention that Mr. Quadri

received a larger pool and spa than that specified in his

contract on the fact that the invoice received for the pavers

used in the pool deck was much higher than expected and showed

that many more pavers were delivered to Mr. Quadri's property

than were included in the original plans for Mr. Quadri's pool

deck. The pavers were added to the contract in the addendum

executed October 3, 1996, but neither the size of the deck nor

the number of pavers was shown in the contract or in the

addendum. 5/ In addition, no Change of Plans form was filed

with the Broward County Building and Permitting Department

indicating that there were any deviations from the original

construction plans in the construction of Mr. Quadri's pool and

spa, and no deviations from the original construction plans were

noted by any of the building inspectors who conducted

inspections of Mr. Quadri's pool and spa.

94. In a notice dated August 27, 1997, Mr. Quadri was

advised by the Broward County Building and Permitting Department

that the permit for his pool and spa had expired. These notices

are routinely sent by the Broward County Building and Permitting

Department to both the property owner and the contractor when

150 days have elapsed without an inspection having been

requested. The notice advises the property owner and the

contractor that the permit will expire 30 days from the date of

the notice. Challenger Pools did not receive a copy of the

notice.

95. Mr. Quadri renewed the permits on September 12, 1997,

to avoid the penalties set forth in the notice; Challenger Pools

continued to be named as contractor on the permits.

96. A plumbing pool final inspection was conducted on

September 15, 1997, and disapproved, with the comments that the

main drain grid required two screws; 6/ the spa water level

was low, possibly because of a leak; and the pavers were sinking

around the spa.

97. An electrical pool final inspection was conducted on

September 15, 1997, which was disapproved, with comments that

the pool screen was not bonded; the pool light was not in place;

a bonding wire on the pool pump needed to be covered; and

"[s] ealtite to pump motor in grass," meaning that the flexible

electric conduit running from the timer/transformer subpanel to

the pool pump was lying in the grass. No unsafe conditions were

noted on the inspection report.

98. A structural pool final inspection was conducted on

September 15, 1997, and rejected, with the comments that there

had been no final approval of the pool plumbing and electrical;

that the paver deck was washed out in numerous places and needed

to be repaired; that the riser at the rear steps was not to

code; that the handholds were missing; and that the exterior

wall of the raised spa needed finishing.

99. Challenger Pools had installed ceramic underwater

handholds on the pool, but Mr. Quadri was not satisfied with

them because they were gray in color rather than white, the

color he had selected. Challenger Pools did not remove the

handholds.

100. Neither Mr. Quadri nor Challenger Pools called for

the inspections of Mr. Quadri's pool conducted on September 15,

1997. Rather, those inspections were apparently triggered by

the renewal of the permits.

101. Mr. Quadri did not file suit against Challenger

Pools, but, by letter dated December 12, 1997, Mr. Quadri

notified the Department that Challenger Pools had abandoned

construction on his pool and spa and that the pool and spa still

had numerous defects.

102. After Challenger Pools received notice of the

complaint filed by Mr. Quadri with the Department, Challenger

Pools was advised by its attorney to obtain final inspections on

Mr. Quadri's pool.

103. An electrical pool final inspection was conducted on

March 17, 1998, and disapproved because the screen enclosure

needed to be bonded on both sides of the column.

104. An electrical pool final inspection was conducted on

March 27, 1998, and approved.

105. A plumbing pool final inspection was conducted on

October 9, 1998, and disapproved because the building permit had

expired, the equipment was defective in that there was a cracked

filter, and the equipment needed to be anchored. 7/

106. A structural pool final inspection was conducted on

October 9, 1998, and disapproved because the permit had expired,

and because of damaged sidewalks, no handholds, and a problem

with a stairway.

107. A plumbing pool final inspection was conducted on

November 6, 1998, and disapproved because the permit card was

not displayed on the site.

108. Challenger Pools renewed the permits for Mr. Quadri's

pool on November 16, 1998.

109. A structural pool final inspection was conducted on

November 20, 1998, and disapproved because the permit card was

not at the site.

110. A structural pool final inspection was conducted on

November 30, 1998, and disapproved because of "previous

inspections" and because the marcite was coming off and stucco

was needed around the steps.

111. A structural pool final inspection was conducted on

December 3, 1998, and approved.

112. A plumbing pool final inspection was conducted and

approved on December 7, 1998.

113. The Certificate of Occupancy for Mr. Quadri's

swimming pool and spa was issued by the Broward County Building

and Permitting Department on December 8, 1998.

114. At the time of the final hearing, the pavers around

Mr. Quadri's pool were uneven and sinking. Pavers are used for

pool decks instead of concrete because concrete cracks as the

earth beneath the deck settles. They are set on sand and are

not grouted but, rather, are locked in with fine sand. It is

not uncommon for paver decks to settle because strong rains can

wash out the sand under the deck and cause erosion. As a

result, pavers will sink or lift as the earth underneath shifts.

The degree to which a paver deck shifts varies.

115. Pressure washing a paver deck can cause the sand

beneath the pavers to erode and shift, which causes the pavers

to sink and lift. Mr. Quadri has cleaned the pavers around his

pool and spa with a pressure cleaner at least every six months

since it was installed.

116. The evidence presented by the Department is

sufficient to establish that Challenger Pools did not work on

Mr. Quadri's pool between the end of April 1997 and March 1998

and between the end of March 1998 and October 1998. Challenger

Pools may have been justified when it ceased work on Mr.

Quadri's pool after the May 22, 1997, letter from Mr. Quadri's

attorney threatening a lawsuit if the enumerated defects with

the pool were not corrected. It was not justified, however, in

failing to perform work on Mr. Quadri's pool after August 20,

1997; the evidence presented by Challenger Pool to justify the

statement in the August 20, 1997, letter that it would not

correct the problems with Mr. Quadri's pool until Mr. Quadri

paid a "reasonable amount for the larger pool and spa he

received" is not sufficient to establish that the pool and spa

was, indeed, larger than the one for which Mr. Quadri

contracted. In addition, Challenger Pools was not justified in

failing to perform work on Mr. Quadri's pool between March 27,

1998, when the electrical pool final inspection was approved,

and October 1998, because its attorney, in response to the

December 1997 complaint to the Department, advised it to obtain

final inspections and close out the permit. Accordingly, the

evidence presented is sufficient to establish with the requisite

degree of certainty that Challenger Pools failed to perform work

on Mr. Quadri's pool for a period of 90 consecutive days without

just cause.

117. The evidence presented by the Department is not

sufficient to establish with the requisite degree of certainty

that the work Challenger Pools did on Mr. Quadri's pool was

below minimum industry standards. 8/

118. The evidence presented by the Department is

sufficient to establish with the requisite degree of certainty

that Challenger Pools began excavating Mr. Quadri's pool after

it applied for the necessary permits but before they were

issued. The Department presented no evidence to establish that

Challenger Pools proceeded with work on Mr. Quadri's pool

without receiving the required inspections. In addition,

Challenger Pools called for final inspections of the plumbing,

electric, and structural components of the pool and closed out

the permit on April 19, 1999.

119. As of October 6, 1999, the Department had expended

$1,088.47 in investigative costs and $1,307.47 in prosecutorial

costs with respect to Mr. Quadri's complaint.

CONCLUSIONS OF LAW

120. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (1999).

121. In its Administrative Complaints, the Department

seeks to impose penalties against Mr. Esquinaldo that include

suspension or revocation of his license and/or the imposition of

an administrative fine. Therefore, it has the burden of proving

by clear and convincing evidence that Mr. Esquinaldo committed

the violations alleged in the Administrative Complaints.

Department of Banking and Finance, Division of Securities and

Investor Protection v. Osborne Stern and Co. , 670 So. 2d 932

(Fla. 1996); and Ferris v. Turlington , 510 So. 2d 292 (Fla.

1987).

122. In Evans Packing Co. v. Department of Agriculture and

Consumer Services , 550 So. 2d 112, 116, n. 5 (Fla. 1st DCA

1989), the court explained:

[C] lear and convincing evidence

requires that the evidence must be found to

be credible; the facts to which the

witnesses testify must be distinctly

remembered; the evidence must be precise and

explicit and the 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

the firm belief of conviction, without

hesitancy, as to the truth of the

allegations sought to be established.

Slomowitz v. Walker , 429 So. 2d 797, 800

(Fla. 4th DCA 1983).

123. Section 489.129(1), Florida Statutes (1997), 9/

provides in pertinent part:

489.129 Disciplinary proceedings.--

(1) The board may take any of the following

actions against any certificateholder or

registrant: place on probation or reprimand

the licensee, revoke, suspend, or deny the

issuance or renewal of the certificate,

registration, or certificate of authority,

require financial restitution to a consumer

for financial harm directly related to a

violation of a provision of this part,

impose an administrative fine not to exceed

$5,000 per violation, require continuing

education, or assess costs associated with

investigation and prosecution, if the

contractor, financially responsible officer,

or business organization for which the

contractor is a primary qualifying agent, a

financially responsible officer, or a

secondary qualifying agent responsible under

s. 489.1195 is found guilty of any of the

following acts:

* * *

(k) Abandoning a construction project in

which the contractor is engaged or under

contract as a contractor. A project may be

presumed abandoned after 90 days if the

contractor terminates the project without

just cause or without proper notification to

the owner, including the reason for

termination, or fails to perform work

without just cause for 90 consecutive days.

* * *

(n) Committing incompetency or misconduct

in the practice of contracting.

* * *

(p) Proceeding on any job without obtaining

applicable local building department permits

and inspections.

124. In the Administrative Complaint in DOAH Case No.

98-3713, the Department alleged in Count I that Challenger Pools

failed to perform work on Mr. Jovellar's swimming pool without

just cause for a period of 90 consecutive days and, therefore,

abandoned the construction of Mr. Jovellar's swimming pool, in

violation of Section 489.129(1)(k), Florida Statutes ( Supp.

1996). On the basis of the findings of fact herein, the

evidence is clear and convincing that Challenger Pools is guilty

of this violation. The Department dismissed Count II of the

Administrative Complaint in DOAH Case No. 98-3713 at the

hearing.

125. In the Administrative Complaint in DOAH Case No.

99-2654, the Department alleged in Count I that Challenger Pools

failed to perform work on Mr. Casadona's swimming pool without

just cause for a period of 90 consecutive days and, therefore,

abandoned the construction of Mr. Casadona's swimming pool, in

violation of Section 489.129(1)(k), Florida Statutes ( Supp.

1996). On the basis of the findings of fact herein, the

Department failed to prove by clear and convincing evidence that

Challenger Pools is guilty of this violation. On the basis of

the findings of fact herein, the failure of Challenger Pools to

work on Mr. Casadona's pool from October 1997 through January

1999 was justified.

126. In the Administrative Complaint in DOAH Case No.

99-2654, the Department alleged in Count II that Challenger

Pools failed to adhere to minimum industry standards in the

practice of contracting and, therefore, committed incompetency

in the practice of contracting, in violation of Section

489.129(1)(n), Florida Statutes ( Supp. 1996). On the basis of

the findings of fact herein, the Department failed to prove this

charge by clear and convincing evidence. 10/

127. In the Administrative Complaint in DOAH Case No.

99-2654, the Department alleged in Count III that Challenger

Pools "failed to obtain . . . the required passing final

inspections" on Mr. Casadona's pool and, therefore, violated

Section 489.129(1)(p), Florida Statutes ( Supp. 1996). On the

basis of the findings of fact herein, the Department failed to

prove the violation identified in Count III of the

Administrative Complaint by clear and convincing evidence. 11/

128. In the Administrative Complaint in DOAH Case No.

99-2655, the Department alleged in Count I that Challenger Pools

failed to perform work on Mr. Quadri's swimming pool without

just cause for a period of 90 consecutive days and, therefore,

abandoned the construction of Mr. Quadri's swimming pool, in

violation of Section 489.129(1)(k), Florida Statutes ( Supp.

1996). On the basis of the findings of fact herein, the

evidence is clear and convincing that Challenger Pools is guilty

of this violation.

129. In the Administrative Complaint in DOAH Case No. 99-

2655, the Department alleged in Count II that Challenger Pools

failed to adhere to minimum industry standards in the practice

of contracting and, therefore, committed incompetency in the

practice of contracting, in violation of Section 489.129(1)(n),

Florida Statutes ( Supp. 1996). On the basis of the findings of

fact herein, the Department failed to prove this charge by clear

and convincing evidence. 12/

130. In the Administrative Complaint in DOAH Case No. 99-

2655, the Department alleged in Count III that Challenger Pools

"failed to obtain . . . the required passing final inspections"

on Mr. Quadri's pool and, therefore, violated Section

489.129(1)(p), Florida Statutes ( Supp. 1996). On the basis of

the findings of fact herein, the Department failed to prove this

charge by clear and convincing evidence. 13/

131. Rule 61G4-17.001, Florida Administrative Code,

provides the range of penalties that may be imposed for

violations of the various provisions of Section 489.129(1),

Florida Statutes (1997), and provides in pertinent part:

The following guidelines shall be used in

disciplinary cases, absent aggravating or

mitigating circumstances and subject to

other provisions of this Chapter.

* * *

(11) 489.129(1)(k): Abandonment. First

violation, $500 to $2,000 fine; repeat

violation, revocation and $5,000 fine.

* * *

(19) For purposes of these guidelines,

violations for which the Respondent has

previously been issued a citation pursuant

to Section 455.224, F.S., and rule 61G4-

19.001, shall be considered repeat

violations.

132. Rule 61G4-17.003, Florida Administrative Code,

provides:

(1) As used in this rule, a repeat

violation is any violation on which

disciplinary action is being taken where the

same licensee had previously had

disciplinary action taken against him or

received a letter of guidance in a prior

case; and said definition is to apply

regardless of whether the violations in the

present and prior disciplinary actions are

of the same or different subsections of the

disciplinary statutes.

(2) The penalty given in the above list [in

Rule 61G4-17.001] for repeat violations is

intended to apply only to situations where

the repeat violation is of a different

subsection of Chapter 489 than the first

violation. Where, on the other hand, the

repeat violation is the very same type of

violation as the first violation, the

penalty set out above will generally be

increased over what is otherwise shown for

repeat violations in the above list.

Based on the findings of facts herein, the Department has proven

that Challenger Pools has received a citation for failing to

obtain a final inspection. Therefore, the penalty ranges given

in Rule 61G4-17.001, Florida Administrative Code, for repeat

violations should be used in determining the appropriate

penalties in this case.

133. Rule 61G4-17.002, Florida Administrative Code, sets

forth the aggravating and mitigating circumstances that may be

considered for the purposes of increasing or decreasing the

penalty. The rule provides that the factors

shall include, but are not limited to, the

following:

(1) Monetary or other damage to the

licensee's customer, in any way associated

with the violation, which damage the

licensee has not relieved, as of the time

the penalty is to be assessed. (This

provision shall not be given effect to the

extent it would contravene federal

bankruptcy law.)

(2) Actual job-site violations of building

codes, or conditions exhibiting gross

negligence, incompetence, or misconduct by

the licensee, which have not been corrected

as of the time the penalty is being

assessed.

(3) The severity of the offense.

(4) The danger to the public.

(5) The number of repetitions of offenses.

(6) The number of complaints filed against

the licensee.

(7) The length of time the licensee has

practiced.

(8) The actual damage, physical or

otherwise, to the licensee's customer.

(9) The deterrent effect of the penalty

imposed.

(10) The effect of the penalty upon the

licensee's livelihood.

(11) Any efforts at rehabilitation.

(12) Any other mitigating or aggravating

circumstances.

134. The penalty guidelines and aggravating and mitigating

factors have been evaluated in light of the facts found herein

in determining the recommended penalty.

135. The recommendation by the Department that an

administrative fine in the amount of $2,500.00 be assessed for

each violation of Section 489.129(1)(k), Florida Statutes

(1997), is accepted as reasonable, as is the Department's

recommendation that Mr. Esquinaldo's license be placed on

probation rather than suspended or revoked.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED the Construction Industry Licensing Board

enter a final order:

1. Finding that Challenger Pools violated Section

489.129(1)(k), Florida Statutes (1997), in DOAH Case No. 98-3713

and DOAH Case No. 99-2655;

2. Dismissing Count II of the Administrative Complaint in

DOAH Case No. 98-3713;

3. Dismissing the Administrative Complaint in DOAH Case

No. 99-2654;

4. Dismissing Counts II and III of the Administrative

Complaint in DOAH Case No. 99-2655; and

5. Imposing the following penalties on Bruce E.

Esquinaldo, Jr., as qualifier of Challenger Pools:

a. Assessing an administrative fine in the amount of

$2,500.00 in DOAH Case No. 98-3713 and in DOAH Case No. 99-2655

for the violations of Section 489.129(1)(k), Florida Statutes

(1997), for a total administrative fine of $5,000.00;

b. Placing Mr. Esquinaldo's license on probation for a

period of one year, subject to such terms and conditions as the

Board may impose; and

c. Assessing the costs of investigation and prosecution

attributable to the violations of Section 489.129(1)(k), Florida

Statutes (1997), in DOAH Case No. 98-3713 and DOAH Case No. 99-

2655.

DONE AND ENTERED this 27th day of June, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

PATRICIA HART MALONO

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of June, 2000.

ENDNOTES

1 / E. Renee Alsobrook, Esquire, appeared for the Respondent at

that portion of the hearing conducted on October 11 and 12,

1999. Ms. Alsobrook was permitted to withdraw as counsel for

the Respondent by order entered January 4, 2000.

2 / Mr. Jovellar obtained a loan to pay for the pool, and each of

the checks issued to him was dated June 20, 1996. It is,

therefore, not possible to know the dates the checks were

actually written, so reference must be made to the processing

dates on the back of the checks.

3 / Once the pool has been plastered, a garden hose is placed in

the pool and the pool is slowly filled with water. A day or so

later, when the pool is filled, Challenger Pools' service

technician delivers the pool cleaner, the pool pole, and the

dip-net test kit. He turns on the pool pump, adds the

chemicals, and instructs the homeowner in maintaining the pool.

4 / On this point, the testimony of the Department's expert

witness, Calvin Eden, is found to be unpersuasive.

5 / The construction plans for the pool were not offered into

evidence.

6 / Because it was not noted in the inspection report that the

grid was completely detached, it must be assumed that the grid

was secured by at least one screw.

7 / This requirement was subsequently removed from the South

Florida Building Code.

8 / On this point, the testimony of the Department's expert

witness, Calvin Eden, is found to be unpersuasive.

9 / The pertinent provisions of Section 489.129(1), Florida

Statutes (1997), are identical to the pertinent provisions of

Section 489.129(1), Florida Statutes ( Supp. 1996).

10 / Although Rule 61G4-17.001(14)(b), Florida Administrative

Code, provides that a violation of Chapter 489, Florida

Statutes, constitutes misconduct and incompetency, the

Department did not cite this rule provision or plead this ground

for finding Challenger Pools guilty of incompetence, nor did it

raise this ground in its Proposed Recommended Order.

Accordingly, Challenger Pools cannot be found guilty of a

violation of Section 489.129(1)(n), Florida Statutes (1997), on

the ground that it committed another violation of Chapter 489.

See Sternberg v. Department of Professional Regulation, Board of

Medical Examiners , 465 So. 2d 1324, 1325 (Fla. 1st DCA 1985);

and Cottrill v. Department of Insurance , 685 So. 2d 1371 (Fla.

1st DCA 1996)(Even though an Administrative Complaint contains

reference to a particular statutory violation, facts or conduct

warranting disciplinary action must be alleged in the

Administrative Complaint; the fact that evidence was introduced

that "might well support a violation" does not provide basis for

finding violation when the facts or conduct are not pled in the

Administrative Complaint.). Cf . Maddox v. Department of

Professional Regulation , 592 So. 2d 717, 720 (Fla. 1st DCA

1991)(Administrative Complaint contained sufficient allegations

of the specific behavior and criteria charged to support

violation).

11 / Even though the evidence in this case was sufficient to

establish that Challenger Pools began excavation of the pool

before the local permits were issued, this evidence cannot

provide a basis on which to find that Challenger Pools violated

Section 489.129(1)(p), Florida Statutes (1997). Although a

contractor violates Section 489.129(1)(p) if it proceeds with

construction without obtaining the required local permits, the

Department did not plead this ground for finding Challenger

Pools guilty of Section 489.129(1)(p), nor did it raise this

ground in its Proposed Recommended Order. Accordingly,

Challenger Pools cannot be found guilty of a violation of

Section 489.129(1)(p), Florida Statutes (1997), on this ground.

See Sternberg v. Department of Professional Regulation, Board of

Medical Examiners , 465 So. 2d 1324, 1325 (Fla. 1st DCA 1985);

cf . Maddox v. Department of Professional Regulation , 592 So. 2d

717, 720 (Fla. 1st DCA 1991)(The specific behavior and criteria

charged must be made clear in the Administrative Complaint.)

12 / See endnote 10, supra .

13 / See endnote 11, supra .

COPIES FURNISHED:

Diane Snell Perera, Esquire

Department of Business and

Professional Regulation

401 Northwest Second Avenue

Suite N-607

Miami, Florida 33128

Wellington F. Meffert, II, Esquire

301 South Bronough Street

Suite 200

Tallahassee, Florida 32301

Barbara D. Auger, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Rodney Hurst, Executive Director

Construction Industry Licensing Board

7960 Arlington Expressway, Suite 300

Jacksonville, Florida 32211-7467

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this R ecommended O rder. Any exceptions

to this R ecommended O rder should be filed with the agency that

will issue the F inal O rder in this case.