STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1301

)

WALLACE W. STEWART, )

)

Respondent. )

)

RECOMMENDED ORDER

Based upon notice properly given, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, in Jacksonville, Florida, on February 7, 1984. The issue for consideration was whether the Respondent's license as a registered air conditioning contractor should be disciplined because of allegations of misconduct contained in the Administrative Complaint.

BACKGROUND INFORMATION

Petitioner, Construction Industry Licensing Board, filed a two-count indictment on March 23, 1983, in which it alleged basically that Respondent made fraudulent representations in his failure to honor a warranty in violation of Section 489.129(1)(c), Florida Statutes (1979), and that he engaged in contracting in a county without complying with local licensing requirements as provided by Section 489.117(2), Florida Statutes (1979). Thereafter, Respondent submitted an Election of Rights in which he disputed the allegations of fact contained in the Administrative Complaint and requested a formal hearing.

At the hearing, Petitioner presented the testimony of E. Fred Johnson, the individual with whom Respondent contracted; Don F. Johnson, son of Fred Johnson and for whom, as general contractor, Respondent did certain work on the construction of Fred Johnson's home; Don G. Germain, assistant building official in St. Johns County, Florida; and Everett Masters, subcontractor who did the actual duct work in Mr. Johnson's home; and Petitioner's Exhibits 1 and 2.

Respondent testified in his own behalf and introduced Respondent's Exhibits A, B and C.

RECOMMENDATION

That Respondent pay a fine of $1,000, and that Respondent's license be placed on probation for a period of two years.

RATIONALE FINDINGS OF FACT

1. At all times pertinent to the issues herein discussed, Respondent Wallace W. Stewart was licensed as a registered air conditioning contractor by the Florida Construction Industry Licensing Board under License No. RA 0022169. Since at least October 1979, Respondent has been qualifying agent for the contracting firm "Stewart's Solar Energy, Inc.," with the Florida Construction Industry Licensing Board.

   
   

2. In September 1979, Fred Johnson was acting as real estate agent for his son, Don F. Johnson of Ponte Vedra, Florida, a licensed general contractor who at the time had several residences for sale in the area. During that period, Mr. Fred Johnson engaged in a discussion with the Respondent concerning the possibility of installing a solar cooling, heating and hot water system in the house that Mr. Johnson proposed to have his son, Don, build for him in St. Johns County, Florida. Pursuant to these discussions, on September 10, 1979, Respondent prepared a proposal for Mr. and Mrs. Fred Johnson for the installation of a complete cooling and heating system and solar collectors for the purpose of domestic hot water in the said residence. Before this proposal was accepted, Mr. Fred Johnson's son, Don, discussed the terms of the proposal with the Respondent. Specifically discussed was that portion of the proposal wherein Respondent proposed to include the following:

   
   

   Necessary piping for circulating chilled and hot water system, perimeter

   heat, storage tanks for hot and cold water, necessary heat exchangers, refrigeration equipment, circulating pumps, duct system, thermostats, heat exchanger (fireplace), also piping and controls for the hot water heater.

   
   

3. Before allowing his father to sign this proposal and accept it, Don Johnson asked Respondent exactly what he proposed to provide regarding the fireplace and was told that Mr. Stewart would provide a firebox interior, which consisted of a steel box shaped like a fireplace, to protect the heat exchanger that was to go with it. At that time, Mr. Stewart took Don Johnson into his workshop and showed him an outfit which he indicated would be similar to, if not identical to, that which he intended to install in the senior Johnson's home. It was understood that Respondent would supply the firebox and heat exchanger, but the builder was to do the masonry work and the chimney.

   
   

4. Thereafter, based upon that understanding, Don Johnson recommended to his father that he accept the proposal, which was accomplished on or about the September 10, 1979, date; and both Fred Johnson and his wife, Christine, did so, agreeing to pay, for the complete system, the sum of $5,483 in accordance with a schedule set forth in the proposal sheet.

   
   

5. Construction was begun and progressed to the time it was appropriate to install the firebox. At that point, Respondent told Don Johnson, the builder, he was unable to provide the firebox at that time. Since the state of construction was such that a delay in providing the firebox would hold up the continuance of construction, Respondent asked Don Johnson if he, Don, could provide the standard firebox into which Respondent would put his heat exchanger and thereafter give a credit against the purchase price. In response to this suggestion, Don Johnson told Respondent the cost would be between $400 and $500,

   to which sum Respondent agreed. As a result, Don Johnson put in the firebox that he procured, and Respondent thereafter put in the heat exchanger unit.

   
   

6. Construction on the house continued until such time as, in April 1980, the house was considered sufficiently complete for Mr. and Mrs. Fred Johnson to move in.

   
   

7. In the interim, however, in order to get the duct work done for the air conditioning and heating system he installed, Respondent, who was not licensed to perform heating and air conditioning installation in St. Johns County, Florida, arranged with Mr. Everett Masters, owner of Masters Heating and Air Service of St. Augustine, Florida, to do the duct work for the Johnson home. A building mechanical permit is not required to do duct work, and Mr. Masters did the duct work without a permit, even though he was not satisfied that the installation called for in the drawings was sufficient to accomplish the purpose of heating and cooling for a house that size. According to Mr. Masters, he did the work according to the specifications given to him, but protested to a representative of Mr. Stewart, Respondent, that the ducts were too small. In response, he was told to put the ducts in as called for in the specifications, which he did, but was never paid for the work he provided.

   
   

8. St. Johns County Ordinance No. 76-20, an ordinance regulating contractors and the business of contracting within that county, at Section 4 thereof requires that air conditioning contractors be certified in order to conduct that business within the county. The contract involved here for the construction of Mr. Johnson's house would have required the contractor, Respondent, to have a local license to complete the air conditioning work. Respondent does not have a license in St. Johns County and never has had one. As a matter of fact, before the work was done, Mr. Don Germain, an assistant building official for St. Johns County, told Respondent in 4Z. Germain's office

   that he, Respondent, would need a county license at the time Respondent had come to the office prior to installing the air conditioning unit in the Johnson house. At this point, Mr. Germain discussed the project, including the rough drawing Respondent had with him, and advised Respondent at that time what permits and what licensing provisions must be fulfilled. At that time, solar heating and hot water systems did not require the license. However, the other work called for in this contract, such as the installation of the air conditioning system, would require a type of license which Respondent did not have. Germain and the Respondent had an extensive discussion on this. As it appeared to Mr. Germain, Respondent could not seem to understand why a license would be needed. A mechanical permit was issued on April 23, 1950, to Masters Heating and Air for a part of the system. A part did not include the entire installation permit.

   
   

9. This permit applied for by Mr. Masters was acquired at the request of Don Johnson, the contractor, who pleaded with him to do so because, according to Mr. Johnson, the only way he could get final approval of the construction in order to get the elec- tricity turned on in the house was if this permit was applied for and issued. The permit in question was issued for something other than the duct work accomplished by Mr. Masters. Mr. Masters did not install the air conditioning equipment, only the ducting. The permit, if legitimate, would allow final approval of the installation of the entire air conditioning system. The information contained on the permit was provided to Mr. Masters by Respondent.

   
   

10. According to Mr. Germain, Respondent never did get final approval of the building inspector on the total installation. The equipment was not

    initially accepted by the building department, since it was not a unitary unit-- in which all segments are designed to work together as a unit. However, even though the unit was rejected by the building authorities, they let the work continue based on a letter from the engineer who approved the purchase of the system, which indicated the engineer would be responsible for the working of the unit. In addition, the building officials allowed the work on Mr. Johnson's home to continue even after the discussions regarding the lack of a proper licensee because Respondent assured Mr. Germain of the building office that Mr. Masters, who was in fact a registered and licensed air conditioning contractor in St. Johns County, was going to do the work.

    
    

11. Though the unit was basically installed in April 1980, it was not working property even up to July 3, 1980 It did not cool properly. At that point, Respondent contends he was still owed some money by Mr. Johnson. In November 1980, when it became obvious that the initially installed compressor was insufficient in size to cool a house the size of Mr. Johnson's, Respondent replaced the compressor, installing one a half ton larger than that initially installed. At that point, Don Johnson paid Respondent the sum of $800, which, according to Mr. Johnson, was the entire sum owed on the complete installation after deduction of the credit of $483 for the firebox which Mr. Johnson fabricated in lieu of that initially proposed by Respondent and which Respondent could not provide. After Respondent was paid the $800, he stopped responding to calls to service the cooling system and the heating system, even though neither worked properly at that time.

    
    

12. Respondent admits that at some point in time he refused to continue servicing Mr. Johnson's unit and did not honor the warranty. He contends, however, that he stopped servicing because Mr. Johnson still owed him $453. The weight of the evidence indicates otherwise.

    
    

13. Mr. Johnson ultimately hired another craftsman to repair his system, and the system was repaired without any further assistance by Respondent.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of the proceedings.

    
    

15. In Count One of the Administrative Complaint, Petitioner alleges that Respondent violated Section 489.129(1)(c), Florida Statutes (1979), in that he made fraudulent representations in his failure to honor a warranty, which itself violates Section 455.227(1)(a), Florida Statutes (1979).

    
    

16. Section 489.129(1)(c), Florida Statutes (1979), provides:

    
    

    1. The board may revoke, suspend, or deny the issuance or renewal of the certificate or registration of a contractor or impose an administra- tive fine not to exceed $1,000, place the contractor on probation, repri- mand or censure, a contractor if the contractor is found guilty of any of the following acts:

       * * *

       (c) Violation of chapter 455.

       Section 455.227(1)(a) permits discipline of a license if the Board finds that:

       
       

       (a) The licensee has made misleading, deceptive, untrue, or fraudulent representations in the practice of his profession....

       
       

       Here, the evidence tends to show that Respondent and Mr. Johnson entered into an agreement on a proposal for the installation of a heating, air conditioning, and solar hot water system in Mr. Johnson's house by the Respondent. Mr. Johnson accepted Respondent's proposal after a discussion between his son and the Respondent in which Respondent made representations to the younger Johnson that the price included the firebox for the heat exchanger in the fireplace. This firebox was never provided by the Respondent. Respondent claims that the terms of the proposal did not call for it Mr, Johnson, the younger, indicates that Respondent assured him the firebox would be included and that at some point after the signing of the agreement Respondent indicated he could not prepare and furnish the firebox and agreed that a credit would be given if the younger Johnson would do so. At the hearing, Respondent denied that the agreement called for him to furnish a firebox and that Mr. Johnson's withholding of $483 was unjustified and therefore permits him to further refrain from honoring the warranty. An examination of the terms of the proposal drafted by the Respondent reflects that the proposal itself is not clear, and it is a basic axiom of contract law that a contract that is ambiguous will be construed against the person who draws it. There is little doubt that the proposal implies that, if not the fireplace itself, at least an integral part thereof would be furnished as a part of the system to be provided by the Respondent. It is apparent that that representation, as well as his representation to Don Johnson regarding the authorization to take a reduction for the furnishing of the unsupplied firebox, constitute in both cases a fraudulent representation upon which he cannot now rely as basis for his failure to honor the warranty.

       
       

17. In Count Two, Respondent is charged with failing to comply with local licensing requirements before contracting in a county requiring such compliance, in violation of Section 489.117 (2), Florida Statutes (1979), which states:

    
    

    (2) Registration allows the registrant to engage in contract- ing only in the counties, munici- palities, or development districts where he has complied with all local licensing requirements and only for the type of work covered by the registration.

    
    

    Here, Respondent is a registered contractor, not a certified contractor. According to the statute, registration permits the registrant to practice his profession only in those counties where he is registered. The evidence here shows that Respondent was not registered to practice contracting or to engage in contracting in St. Johns County, Florida. Yet, he installed a complete heating and air conditioning system with the exception of the duct work in construction in that county without being properly registered. The ordinance of St. Johns County required local licensing, and Respondent violated the ordinance. As such, he is in violation of Section 489.129(1)(j), Florida Statutes (1979), which permits discipline for "failure in any material respect to comply with the provisions of this act."

18. The parties have submitted posthearing legal memoranda which include proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law above. They have been otherwise rejected as contrary to the better weight of the evidence, not supported by the evidence, irrelevant to the issues, or legally erroneous.

RECOMMENDATION

Based on the foregoing, it is, therefore,

RECOMMENDED that Respondent pay an administrative fine of $1,000 and that his license be placed on probation for a period of two years.

RECOMMENDED this day of March, 1984, in Tallahassee, Florida.

ARNOLD H. POLLOCK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 1984.

COPIES FURNISHED:

Douglas A. Shropshire, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Ronald Maxwell, Esq.

12 North University Boulevard Jacksonville, Florida 32211

Mr. Fred Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. James Linnan Executive Director

Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2

Jacksonville, Florida 32202

Docket for Case No: 83-001301

Orders for Case No: 83-001301