n

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2477

)

JOSE E. NOVOA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Sharyn L. Smith, held a formal hearing in this case on July 21, 1982, in Miami, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Michael J. Cohen

2715 East Oakland Park Boulevard, Suite 101 Ft. Lauderdale, Florida 33306

For Respondent: Rodolfo Sorondo, Jr.

Peninsula Federal Building, Suite 1101 Miami, Florida 33131

The issue in this case is whether the Respondent Jose E. Novoa's license as a certified air conditioning contractor should be revoked, suspended or other disciplinary action imposed based upon the facts as alleged in the Administrative Complaint filed August 12, 1981.

Pursuant to agreement of the parties, the Petitioner's Request for Admissions dated December 2, 1981 and the Respondent's Response to Request for Admissions dated March 30, 1982, are admitted as Petitioner's Exhibits 1 and 2, respectively. A copy of the "Maintenance Insurance Policy" is renumbered and admitted as Petitioner's Exhibit 3. The "Certification Change of Status" form is renumbered and admitted as Petitioner's Exhibit 4.

FINDINGS OF FACT

Pursuant to a prehearing stipulation executed by the parties on July 22, 1982, the facts in this case are essentially not in dispute. The prehearing stipulation establishes the following facts concerning the allegations contained in the Administrative Complaint:

1. Respondent Novoa is a certified air conditioning contractor having been issued license number CAC010132 and CAC010132. Respondent's address is 30 S. W. 67th Court, Miami, Florida 33144.

2. At all times material hereto, Respondent was associated with and was the qualifying licensee for Baker Service Company, Inc., d/b/a Dade Air Conditioning and Appliance Service, 11651 N.W. 7th Avenue, Miami, Florida 33168.

   
   

3. Respondent's responsibilities in said company were to pull permits and supervise installation of air conditioning systems in return for a salary of

   $100.00 per week. Petitioner has no evidence that Respondent did not fulfill that particular function for the company he qualified. However, Petitioner asserted and Respondent admitted that the company was also involved in soliciting service contracts for which it maintained a fleet of trucks and personnel to sell and solicit said contracts and to perform the obligations requested under the contracts. Petitioner asserted and Respondent admitted that it was not his function in the company to take any part in the business concerned with the service contracts.

   
   

4. The Respondent completed a "Certification Change of Status Application" on or about December 14, 1978, and submitted it to the Department of Professional and Occupational Regulation, Florida Construction Industry Licensing Board.

   
   

5. The Respondent signed an affidavit which is part of the application, certifying as true and accurate his answers on the application.

   
   

6. Respondent asserted that the Certification Change of Status Application was prepared for his signature by personnel within Baker Service Company, Inc., who represented to him the truth of the contents thereof. Petitioner has no information contrary to Respondent's assertion.

   
   

7. The Certification Change of Status Application contained false information in that it listed only Frank Baker as President of the company without listing the company's Secretary, Frank Baker III, and Albert Crooke, Vice President of the company. Respondent alleged and Petitioner has no evidence to the contrary, that he did not know of the involvement of Frank Baker III and Albert Crooke as officers of the corporation and only inadvertently filed false information with the Department.

   
   

8. Baker Service Company, Inc. entered into many service contracts with certain named parties who are listed in and made a part of the Administrative Complaint by the attachment of Exhibit A thereto, all of whom had service contracts similar to Petitioner's Exhibit 3.

   
   

9. Baker Service Company, Inc. was to provide air conditioning and other major appliance service pursuant to said contracts and did not perform its obligations thereunder, even though the company was paid and received funds to perform such service.

   
   

10. The Respondent admitted that he did not take any active part in supervising the operation of Baker Service Company, Inc., with regard to their maintenance and service contract business and therefore used his registration to evade the contracting license law in violation of Section 489.129(1)(f) Florida Statutes. However, Petitioner admitted that this violation is of a technical nature.

11. Respondent admitted that he obtained his registration by the filing of a false application, but asserted that he was not aware of its misrepresentation at the time of filing. Petitioner admitted it had no information with which to prove the Respondent knew the application was false when filed.

    
    

12. Respondent admitted that his qualification of Baker Service Company, Inc., the execution of the numerous service contracts, and abandonment of the same by Baker Service Company, Inc., constitutes violations of Section 489.129(1)(k), Florida Statutes, and Chapter 10 , Code of Metropolitan Dade County, Section 10-22G, by failing to fulfill contractual obligations.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this dispute. See Section 120.57(1), Florida Statutes.

    
    

14. Pursuant to the stipulation executed by the parties, the Respondent admitted to violating Sections 489.129(1)(f) and (k), Florida Statutes. However, the Respondent has asserted and counsel for the Petitioner has agreed that the violations committed by the Respondent were technical in nature and that under such circumstances revocation or suspension of the Respondent's license would be an inappropriate penalty.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

That a final order be entered by the Construction Industry Licensing Board finding that the Respondent Novoa committed technical violations of Sections 489.129(1)(f) and (k), Florida Statutes, and imposing a $500.00 administrative fine and a private reprimand.

DONE and ORDERED this 29th day of September, 1982, in Tallahassee, Florida.

SHARYN L. SMITH

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 1982.

COPIES FURNISHED:

Michael J. Cohen, Esquire Suite 101

2715 E. Oakland Park Boulevard Ft. Lauderdale, Florida 33306

Rodolfo Sorondo, Jr., Esquire Suite 1101

Peninsula Federal Building Miami, Florida 33131

James Linnan, Executive Director Florida Construction Industry Licensing Board

Post Office Box 2 Jacksonville, Florida 32202

Samuel R. Shorstein, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD

DEPARTMENT OF PROFESSIONAL REGULATION/CONSTRUCTION INDUSTRY LICENSING BOARD,

Petitioner,

vs. DPR Case No. 0012267

DOAH Case No. 81-2477

JOSE E. NOVOA

30 SW 67th Court Miami, Florida 33144

C & S Air, Inc. CA C010132

Post Office Box 43-2094 Miami, Florida 33144 Baker Service Company CA CA10132(deleted)

Respondent.

/

FINAL ORDER

This matter came before the Construction Industry Licensing Board on January 14, 1983, in Key West, Florida. An administrative hearing held pursuant to Section 120.57(1), Florida Statutes, resulted in the issuance of a Recommended Order (attached hereto as Exhibit A) which was reviewed by the Board. Following a review of the complete record in this proceeding, it is

ORDERED:

1. The Findings of Fact contained in the Recommended Order are approved and adopted and incorporated herein by reference.

   
   

2. The Conclusions of Law in the Recommended Order are approved and adopted and incorporated herein by reference.

   
   

3. The Recommendation in the Recommended Order is rejected as inappropriate under the circumstances.

THEREFORE, it is

ORDERED and ADJUDGED that the certified air conditioning licenses of the Respondent be and the same are hereby REVOKED.

DONE and ORDERED this 27th day of January, 1983.

FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD

John Henry Jones, Chairman

Docket for Case No: 81-002477

Orders for Case No: 81-002477