STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, CONSTRUCTION INDUSTRY ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 82-3329

)

CHARLIE S. HIERS, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter, after due notice, at Orlando, Florida, on March 10, 1983, before Thomas C. Oldham, Hearing Officer.

APPEARANCES

For Petitioner: Michael Egan, Esquire

Roberts, Egan and Routa, P.A. Post Office Box 1386 Tallahassee, Florida 32302

For Respondent: Charlie S. Hiers

4827 Vaughn Avenue

Orlando, Florida 32806 ISSUE PRESENTED

Whether Respondent's license as a registered Class B - Air Conditioning Contractor should be suspended or revoked, or the licensee otherwise disciplined, for alleged violations of Chapter 489, Florida Statues, as set forth in the Administrative Complaint, dated September 21, 1982.

The Administrative Complaint alleges that Respondent violated various provisions of Chapter 489 in failing to install air conditioning equipment at the home of Myrtle D. Harris, Orlando, Florida, after having been paid the agreed price.

Respondent appeared at the hearing unaccompanied by legal counsel and was therefore advised by the Hearing Officer as to his rights and the procedures involved in administrative hearings. He indicated that he understood such rights and elected to represent himself.

At the hearing, Petitioner presented the testimony of one witness and submitted five exhibits in evidence. Respondent did not present evidence at the hearing.

A Proposed Recommended Order filed by the Petitioner has been fully considered, and those portions thereof which have not been adopted herein are considered to be either unnecessary, irrelevant, or unsupported in law or fact.

FINDINGS OF FACT

1. Respondent Charlie S. Hiers is registered as a Class B air conditioning contractor and qualifier for Hiers Air Conditioning and Refrigeration, Orlando, Florida. As of July 1, 1979, his license became delinquent. (Petitioner's Exhibit 1)

   
   

2. In December, 1981, Myrtle D. Harris, who resided at 7505 Ranchero Street, Orlando, engaged the services of Respondent to repair the air conditioning unit at her home. He had performed satisfactory air conditioning work for her on two prior occasions in 1979 and 1980. She had originally contacted him through an ad in the telephone directory under the name "Temp Control Service." On each occasion she had given him a check payable to Temp Control Services which was later endorsed in that name by Respondent. (Testimony of Harris, Petitioner's Exhibits 2-3)

   
   

3. Respondent advised Mrs. Harris on December 2, 1981, that the compressor of her air conditioning unit needed to be replaced with a new compressor. She thereupon gave him a check in the amount of $546.00 and he provided her with a bill marked paid in that amount. Her chock, dated December 2, 1981, was made payable to Charlie Hiers, and his bill of the same date merely had his handwritten name at the top. Mrs. Harris later added the words "Temp Control" in the payee portion of the check after it had been endorsed by Respondent and returned after payment. (Testimony of Harris, Petitioner's Exhibits 4-5)

   
   

4. Respondent proceeded to remove the old compressor and later came by Mrs. Harris' house and told her that he had had to order a replacement part. However, he never came back to her home or performed the work for which he had been paid. Mrs. Harris attempted to reach Respondent by leaving her telephone number at his answering service but received no reply. Later, sometime in January, Respondent telephoned her and stated that he had the compressor on his truck and would install it on a specified date. However, he never fulfilled his promise. Mrs. Harris attempted to reach him on subsequent occasions by telephone, but was unable to contact him. On February 1, 1982, Mrs. Harris had her nephew write a letter to Respondent requesting that he either perform the work or return the payment of $546.00. Several months later, after not having heard from the Respondent, Mrs. Harris purchased a new air-conditioner. Respondent has taken no action to perform his agreement or to return the amount which he was paid. (Testimony of Harris)

   
   

   CONCLUSIONS OF LAW

   
   

5. The Administrative Complaint alleges that by reason of his actions in connection with the Harris transaction at a time when his State registration was delinquent, Respondent should be disciplined under the provisions of subsection 489.129(1)(j), Florida Statutes, in that he failed to comply with the provisions of Chapter 489, when he practiced contracting without being duly licensed as required by subsection 489.127(1)(f) , Florida Statutes, and because he failed to renew his license every two years, as provided by subsection 489.115(3)(a), Florida Statutes. The evidence supports a conclusion that Respondent properly may be disciplined under subsection 489.129(1)(j) for violation of subsection 489.127(1)(f) because he could not be considered "duly registered" to perform contracting work when his registration was in a delinquent status. However, the

   fact that he did not renew his registration as provided under subsection 489.115(3)(a) is not grounds in itself for disciplinary action, but merely provides the basis for determining the status of delinquency.

   
   

6. The complaint further alleges that Respondent should be disciplined under subsection 489.129(1)(h), Florida Statutes, for diverting funds received for the prosecution of a construction project when as a result of the diversion, the contractor is or will be unable to fulfill the terms of his obligation or contract. The complaint also alleges that Respondent should be disciplined under subsection 489.129(1)(k), Florida Statutes, for abandoning a construction project without just cause. The evidence presented by Petitioner is sufficient to establish grounds for discipline in both respects. Respondent's unexplained failure to perform the work for which he had been paid is sufficient to show that he diverted such funds to other purposes, thus being unable to fulfill the terms of his obligation. It is also clear that his failure to complete the work on the air conditioning unit without providing any justification therefor constitutes abandonment of the project.

   
   

7. The complaint finally alleges that Respondent should be disciplined under subsection 489.129(1)(j) , Florida Statutes, in that he failed to comply with the provisions of Chapter 489 by not properly qualifying a company through which he was doing construction business, as required by subsections 489.119(2) and (3), Florida Statutes, and under subsection 4891129(1)(g) , Florida Statutes, for acting under a name other than that which appears on his license. These allegations deal with the fact that Respondent performed work under the name "Temp Control Services" which he had not qualified with the Construction Industry Licensing Board. Although the evidence at the hearing showed that Respondent had contracted in the name of Temp Control Services on prior occasions when dealing with Mrs. Harris, there was insufficient evidence to show that he did so in connection with the sole transaction alleged in the Administrative Complaint. Accordingly, it is concluded that disciplinary action cannot be taken under the aforesaid statutory provisions.

   
   

8. In view of the above established grounds for discipline, it is therefore

RECOMMENDED that the Construction Industry Licensing Board issue a final order revoking Respondent's registration as a Class B air conditioning contractor.

DONE and ENTERED this 7th day of April, 1983, in Tallahassee, Florida.

THOMAS C. OLDHAM

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 7th day of April, 1983.

COPIES FURNISHED:

Michael Egan, Esquire Roberts, Egan and Routa, P.A.

217 South Adams Street Post Office Box 1386

Tallahassee, Florida 32302

Charles S. Hiers 4727 Vaughn Avenue

Orlando, Florida 32806

J. K. Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2

Jacksonville, Florida 32202

Docket for Case No: 82-003329

Orders for Case No: 82-003329