STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 83-0283

)

ABE L. NEWSOME )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for administrative hearing, as noticed, before P. Michael Ruff, Hearing Officer of the Division of Administrative Hearings on Tuesday, November 1, 1983, in Milton, Florida. The appearances were as follows:

APPEARANCES

For Petitioner: John O. Williams, Esquire

BOYD, THOMPSON & WILLIAMS

2441 Monticello Drive

Tallahassee, Florida 32303

For Respondent: Abe L. Newsome, pro se

612 Highway 90 West

Milton, Florida 32570

The Department of Professional Regulation, by its Administrative Complaint filed herein, is charging Respondent with violations of Section 489.129(1)(d) , Florida Statutes (1979), by alleged deliberate disregard and violation of an applicable building code. Specifically, the Respondent is charged with violating Section 104.1 of the Standard Mechanical Code of the City of Milton by not obtaining a building permit in a timely fashion. The Petitioner has also charged the Respondent with violation of Section 489.129(1)(d) by his alleged violation of Sections 303.2-5, 303.4, 303.6(c), 504(A), 511 and 801 of that Mechanical Code (1978 revision); as well as Section 507.3 of the Gas Code; in that the Respondent allegedly installed a furnace without the required 6-inches of clearance between the furnace and building structure; failed to install a cut-off valve in certain furnace installations' failed to have an outside weatherproof disconnect installed at a central heat and air-conditioning unit; and failed to have the fan motor of that unit installed on a separate electrical circuit. Additionally, under these code provisions, the Respondent is charged with incorrect insulation of a furnace unit, incorrect wiring by failure to install a dis- connect device, failure to use weather-proof wiring, insufficient venting, use of defective plenums, and finally, failure to install a light outlet at one of the Respondent's installations.

The Petitioner has also charged the Respondent with violation of Section 499.129(1)(k) , Florida Statutes, by abandonment of an installation for which he was responsible and Section 489.l29(1)(m) , Florida Statutes, because the above described conduct evidences misconduct in the practice of contracting.

At the hearing, the Petitioner presented the testimony of Mary Beth Williamson, Harvey Smith and Anthony Thompson. The Petitioner introduced 29 exhibits, all of which were admitted into evidence. In defense against the allegations in the complaint, the Respondent testified on his own behalf and introduced 2 exhibits.

A transcript of the proceedings was requested and filed and the parties were granted time in which to submit proposed findings of fact and conclusions of law. The Petitioner submitted its proposed findings of fact and conclusions of law in a timely fashion on December 12, 1983. The Respondent did not file any post hearing pleadings. All proposed findings of fact and conclusions of law submitted by Petitioner have been considered, To the extent that they have not been adopted herein, they are rejected as being either not supported by competent, substantial evidence adduced at hearing, or as being immaterial or irrelevant to the issues in dispute or as constituting conclusions of law which are incorrect or not supported by the findings of fact.

The issue presented is thus whether the Respondent has committed the acts of misconduct or omission charged in the Administrative Complaint and, if that be the case, whether such constitute violations of the legal authority plead in the Administrative Complaint

FINDINGS OF FACT

1. The Respondent is a registered mechanical contractor having been issued license number PM 0031251. The Petitioner is an agency of the State of Florida, charged with regulating the practices of contractors, administering and regulating their licensure status, and enforcing the legal requirements of Chapter 489, Florida Statutes, and appertinent rules.

   
   

2. In the late summer of 1980, the Respondent, d/b/a Reach Services and Supply Company, entered into a verbal contract with one Harvey Smith to install an air-conditioning and heating unit in Mr. Smith's residence located at 610 Outer Drive, Milton, Florida. The contract was for approximately $1,245. The Respondent failed to obtain a permit from the City of Milton for the installation of those units at Harvey Smith's residence until after the installation was essentially completed. The building inspector for the City of Milton, Anthony Thompson (testifying for the Petitioner), inspected the premises on or about October 31, 1980, and found several violations of the building code of the City of Milton, to wit: (a) the furnace was installed too close to the wall of the house (less than the required six inches); (b) a cut-off valve for the gas supply line was not installed; (c) a weather-proof disconnect device was not installed at the furnace unit and the furnace was not wired on a separate electrical circuit from other residential electrical equipment.

   
   

3. The building inspector notified the Respondent concerning these deficiencies immediately after the inspection. The Respondent ultimately reinstalled the furnace, on February 12, 1981, so that it did comply with the minimum distance required between the furnace and the structural walls. The Respondent failed, however, to return to the job and otherwise complete the installation and correct the remaining deficiencies after several requests by both the owner and the building official, Mr. Thompson. Through his own

   efforts, the owner of the residence, Mr. Smith, eventually had the installation of the furnace completed in August of 1981.

   
   

4. In the fall of 1980, the Respondent installed a furnace at 613 Outer Drive for Mr. Frank Moss, which was inspected by the same inspector on or about December 23, 1980. The clearance between the furnace and the structural wall of the residence in this instance was also insufficient, which can cause a significant risk of the structural wall igniting due to the heat generated by the furnace. There was no cut-off valve on the gas supply line installed within six feet of the furnace (as required by Section 302.1 of the Standard Gas Code). No disconnecting device was installed on the unit such that the wire was connected directly to the unit contrary to the requirements of Section 801 of the Standard Mechanical Code. Finally, a permit was not obtained for the installation of the furnace at all, as is required by Section 104 of the Standard Mechanical Code.

   
   

5. During late 1980, the Respondent contracted for and installed a heating and air-conditioning system at 206 Berryhill Road, Milton, Florida. On or about January 12, 1980, the building official, Mr. Thompson, inspected the installation. A cutoff valve had not been installed within six feet of the furnace, ducting was improperly supported, and the furnace was located below the adjacent ground level. The ducts were not properly taped, nor was a proper type of wire used to wire the related electrical receptacle. The vent for the furnace did not extend the minimum required distance above the roof of the dwelling. No light outlet was installed in the furnace area. These deficiencies were, respectively, contrary to the requirements of Section 302.1, Section 504, Section 303.2-5(b), Section 506 and Section 511, Section 303.2-5(d) of the Standard Mechanical Code, and of Sections 302.1 and 507.3 of the Standard Gas Code of the City of Milton, Florida.

   
   

6. During late 1980, the Respondent contracted for and installed an air- conditioning and heating system at 405 Ravine Street, Milton, Florida for Mary Beth Williamson. Once again, on January 12, 1981, Mr. Thompson inspected that installation at which time the following deficiencies existed: insulation was improperly installed, there were holes in the "air plenum" and improper caulking. Once again no gas cut-off valve was installed and the wiring was improperly installed and not weather-proofed. These installations were not performed within the requirements of Section 511 of the Mechanical Code (1978 revision) and Section 302.1 of the Standard Gas Code.

   
   

7. The Respondent ultimately repaired or corrected the various deficiencies with regard to the 405 Ravine Street installation and established that the inspection for that particular installation had been prematurely called in by his son, his employee, and that the job was not yet ready for inspection at the time the inspection was mistakenly requested. Further, during the periods of time in question in the fall of 1980, the Respondent was ill with a serious heart ailment. He was consequently unable to be present at each job for an adequate period of time to fully supervise the installation, as he has done before and after the period of time in question. Since 1981, the Respondent has established a record of cooperating with the City of Milton Building Department and there have been no more recent violations.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes (1981).

9. The Construction Industry Licensing Board is charged with enforcing the provisions of Chapter 489, Part I, Florida Statutes, which sets the standards for licensure in the field of construction contracting and provides for disciplinary proceedings when certain prescribed standards have been violated. Section 489.129, Florida Statutes (1979), authorizes the Board to revoke, suspend or impose an administrative fine not to exceed $1,000, or other sanctions, if a contractor is found guilty of willful or deliberate disregard or violation of applicable building codes, state laws or building ordinances of municipalities or counties; abandonment of a construction project; or is guilty of "misconduct in the practice of contracting." Specifically, Section 489.129(1)(d) provides that the Board may revoke or suspend or impose an administrative fine not to exceed $1,000, impose probation, reprimand or censure if the contractor is found guilty of:

   
   

   Willful or deliberate disregard and violation of the applicable building codes or laws of the state or of any municipalities or counties thereof.

   
   

   Subsection (k) then provides that the above-referenced penalties may be imposed upon proof that a contractor has abandoned a con- struction project without just cause. That subsection provides that a project is considered abandoned when a contractor terminates a project without notification to the prospective owner, without just cause, for longer than 90 days. Subsection (m) of the above section authorizes the above-referenced penalties upon proof that the contractor is guilty of misconduct in the practice of contracting.

   
   

10. The Respondent orally contracted with Harvey Smith to install air- conditioning and alter a heating unit in his residence at 610 Outer Drive, Milton, Florida, for the approximate sum of $1,245. The record establishes that the Respondent failed to obtain a permit from the City of Milton authorizing the installation. It is established by the evidence and the above Findings of Fact that the furnace was indeed installed too close to the side walls of the residential structure involved and that the Respondent was on notice of this and other deficiencies found above. The evidence is uncontradicted that the Respondent failed to correct the deficiencies and never completed the installation.

    
    

11. The Respondent maintains that, although he was aware of them, the City of Milton had failed to enforce these and other provisions of the building code until after December, 1980, and he was of the belief that he was not required to comply with the building code as pertinent to that installation at that time (the fall of 1980), although the pertinent provisions had been effective since November 9, 1976.

    
    

12. In any event, the Respondent knew of the pertinent provisions of the building code and simply decided not to comply with them. Thus, the Respondent has been proven guilty of a violation of Section 489.129(1)(d) by that deliberate disregard of the various sections of the building code referred to in the above Findings of Fact, related to the allegations of Counts I, II and III of the Administrative Complaint and thus those counts have been proven.

    
    

13. Inasmuch as the Respondent did not establish just cause for failing to complete the furnace installation for Mr. Smith for a longer period than 90 days from the point of his discontinuance of construction on the furnace installation, it must be concluded that the Respondent abandoned that instal-

    lation and is concomitantly guilty of a violation of Section 489.129(1)(k), Florida Statutes (1979) , with regard to Counts I, II and III of the Administrative Complaint.

    
    

14. Count IV involves the air-conditioner and furnace installation at 613 Outer Drive for Mr. Frank Moss. In this instance also it was proven that the Respondent failed to obtain the required permit for the furnace and failed to install the furnace with proper clearance between the structural wall of the furnace unit, which constitutes a fire hazard in violation of the above-cited provision of the City of Milton's Mechanical Code. The Respondent's similar failure to install a cut-off valve, to properly install the insulation and electrical wiring, together with unrefuted evidence that he was the sole contractor ultimately responsible to see that the work on this job was performed in compliance with the building code provisions referenced in the above Findings of Fact, establish that the violation enumerated in Count IV indeed occurred. Therefore, Respondent is guilty as to Count IV of a separate violation of Section 489.129(1)(d) Florida Statutes (1979).

    
    

15. With regard to the heating and air-conditioning system installed in late 1980 at 206 Berryhill Road, Milton, Florida, it was proven that the Respondent failed to install a cut-off valve as required by the City of Milton's Gas Code and violated the code section cited in the above Findings of Fact. The Respondent, having been shown to be fully aware of the provisions of the building codes and to have ignored them, has thus been proven guilty of still another violation of Section 489.129(1)(d) as to Count V of the Administrative Complaint.

    
    

16. With regard to Count VI of the Administrative Complaint, it was established that the Respondent installed an air-conditioning and heating system at 405 Ravine Street, Milton, Florida, for Mary Beth Williamson. Although the deficiencies related to this installation, as found in the above Findings of Fact, were proven, the Respondent established that he later repaired and corrected them. The Petitioner therefore elected to voluntarily dismiss Count VI of the Administrative Complaint.

    
    

17. It has been established, with regard to Count VII, that the Respondent, for a substantial period of time, chose to ignore the various referenced building code provisions in the practice of contracting, to the extent delineated in the above Findings of Fact. The willful failure to follow the dictates of the City of Milton's building code must be concluded to constitute misconduct in the practice of contracting and therefore a violation of Section 489.129(1)(m), Florida Statutes (1979). Thus, Count VII has been proven.

    
    

18. In a mitigatory vein, however, the Respondent's testimony establishes that during the period of time these violations occurred, the Respondent was seriously ill with a heart ailment and was not able to supervise his construction projects and installations as thoroughly as he did before the period of time in question, and as he has since the period of time in the fall of 1980, when these violations occurred. The Petitioner's chief witness, Building Inspector Thompson, conceded that the Respondent, since being called to task for the above violations, has been cooperative with the City of Milton Building Department and has been in compliance with the various code provisions in the practice of his contracting work. There have been no further violations of the various provisions of Chapter 489 since the period of time in question. Thus, revocation or suspension of Respondent's licensure is not warranted under the circumstances of this case.

RECOMMENDATION

Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore

RECOMMENDED:

That a Final Order be entered finding the Respondent, Abe L. Newsome, guilty of four violations of Section 489.129(1)(d) and (k), Florida Statutes (1979), and one violation of Section 489.129(1)(m) and that a $400 fine for each of the five violations be imposed.

DONE and ENTERED this 29th day of February, 1984, in Tallahassee, Florida.

P. MICHAEL RUFF 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 February, 1984.

COPIES FURNISHED:

John O. Williams, Esquire BOYD, THOMPSON & WILLIAMS

2441 Monticello Drive

Tallahassee, Florida 32303

Abe L. Newsome

612 Highway 90 West

Milton, Florida 32570

James Linnan, Executive Director Construction Industry Licensing Board Department of Professional

Regulation

Post Office Box 2 Jacksonville, Florida 32202

Fred M. Rochep, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 83-000283

Orders for Case No: 83-000283