STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 85-0037

)

GEORGE A. WALLACE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a public hearing in the above-styled case on June 4, 1985, at Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Theodore R. Gay, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: George A. Wallace, pro se

Post Office Box 23597

Fort Lauderdale, Florida 33307 PRELIMINARY STATEMENT

By Administrative Complaint, filed January 3, 1985 and·amended June 4, 1985, Petitioner, Department of Professional Regulation, Construction Industry Licensing Board (Department), charged that Respondent, George A. Wallace, contracted with one Sophie Griffin to sell and install a new reverse cycle air conditioning unit, in place of an existing unit, and that the installation of the new unit failed to comport with local building code provisions. Consequently, the Department charges

Respondent violated Sections 489.113(3), 489.129(1)(d) and 489.129(1)(j), Florida Statutes.

At final hearing the Department called Sophie T. Griffin, Thomas G. Frank, George Stavron, Charles Huffstetler, and Harold Cummings, as witnesses. The Department offered Exhibits 1- 17, and they were received into evidence. Respondent testified on his own behalf. Respondent offered Exhibits 1- 3, and they were received into evidence.

The transcript of the proceedings was filed July 10, 1985.

The Department has filed proposed findings of fact and conclusions of law, and they have been reviewed and considered. No proposed findings of fact and conclusions of law have been submitted on behalf of Respondent. To the extent any proposed findings have not been adopted in this Recommended Order, they have been rejected as being subordinate, cumulative, immaterial, or unnecessary, or as being contrary to the facts as found in this Recommended Order.

FINDINGS OF FACT

1. Respondent, George A. Wallace, was, at all times material hereto, licensed as a Class "A" air conditioning contractor by the State of Florida, having been issued license number CA CO13239. Respondent was, at all times material hereto, the qualifier for EMC Corp.

   
   

2. On May 14, 1981, EMC Corp. entered into a written agreement with Sophie Griffin to replace the heating and air conditioning unit at Ms. Griffin's home in Fort Lauderdale, Florida. The unit was installed in May, 1981, and Ms. Griffin promptly paid the full contract price of $2,200.00.

   
   

3. Section 301(a), South Florida Building Code, provides:

   
   

   It shall be unlawful . . . to install or alter any equipment for which provision is made or the installation of which is regulated by this Code without first having filed application and obtained a permit therefore from the Building Official. A permit shall be deemed issued when signed by the Building Official and impressed with the seal of the governmental agency issuing said permit.

4. Section 301.1(1), South Florida Building Code, provides:

   
   

   Permits, to be issued by the Building Official, shall be required for the following operations:

   
   

   * * *

   
   

   1. The installation, alteration, or repair of any air conditioning or refrigeration apparatus. . . .

      
      

5. The South Florida Building Code has been adopted by Broward County.

   
   

6. EMC Corp. installed the new heating and air conditioning unit at Ms. Griffin's home without first having obtained a building permit from the City of Fort Lauderdale, Florida. On March 20, 1984, EMC Corp. obtained the required permit, and paid a penalty of $25.00 for having failed to secure the permit before undertaking the work.

   
   

7. On March 26, 1984 an inspector with the City of Fort Lauderdale inspected the installation of the unit and found, contrary to the provisions of Sections 2306 and 4801.10, South Florida Building Code, that the unit had not been anchored. EMC Corp. promptly anchored the unit.

   
   

8. Section 4505.1. South Florida Building Code, provides:

   
   

   1. PERMITS REQUIRED: It shall be unlawful to do or commence to do any electrical work on a new installation of permanent or temporary wiring, any electrical apparatus or equipment or make extensions and/or changes to existing wiring systems . . . without having first filed application and obtained an electrical permit therefore from the Electrical Inspector.

      
      

   2. APPLICATIONS: Applications for permit will be accepted from only qualified persons or firms. . . .

   Neither Respondent nor EMC Corp. was a qualified electrician, nor were they licensed by the state of Florida as electrical contractors.

   
   

9. EMC, without an electrical permit, connected the wiring of the new unit with the existing electrical service. Respondent contends, and the City of Fort Lauderdale agrees, that it is an accepted practice for an air conditioning contractor to disconnect the leads from an existing air conditioning unit and reconnect them to the new unit, without

   the necessity of an electrical permit, if there is no difference between the units. In this case the evidence establishes that, although the replacement and existing units were 3-ton units, the amperage demands of the replacement unit were greater than the existing unit, and that the existing wiring was inadequate. However, no hazardous condition was created by EMC Corp. reconnecting the leads from the existing unit to the replacement unit.

   
   

10. Apart from the foregoing discrepancies, EMC Corp.'s installation of Ms. Griffin's new unit met all standards established by the South Florida Building Code. Further, EMC Corp. has faithfully fulfilled all warranty and service work it contracted to perform.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of these proceedings.

    
    

12. The allegations 1n this case are that Respondent violated Sections 459.129(1)(d), 489.129(1)(j), and 489.113(3), Florida Statutes.

    
    

13. Section 489.129(1), Florida Statutes, provides 1n pertinent part:

    
    

    1. The board may revoke, suspend, or deny the issuance or renewal of the certificate or registration of a contractor and impose an administrative fine not to exceed $5,000, place a contractor on probation, or reprimand or censure a contractor if the contractor, or if the business entity or any general partner, officer, director, trustee, or member of a business entity for which the

       contractor is qualifying agent, is found guilty of any of the following acts:

       
       

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

       
       

       * * *

       
       

       (j) Failure in any material respect to comply with the provisions of this act.

       
       

14. Section 489.113(3), Florida Statutes, provides in pertinent part:

    
    

    A contractor shall subcontract the electrical, mechanical, plumbing, roofing, sheet metal, and air conditioning work for which a local examination for a certificate of competency or a license is required, unless such contractor holds a state certificate of competency or license of the respective trade category, as required by the appropriate local authority.

    
    

15. The Department charges Respondent violated Section 489.129(1)(d), Florida Statutes, by failing to obtain a building permit before installing the new unit; and by failing to anchor the new unit, all as required by the South Florida Building Code (Code.) The evidence does establish that Respondent failed to comply with the Code in these respects. However, there is no evidence from which it could be reasonably concluded that Respondent, or EMC Corp., acted in willful or deliberate disregard of the Code.

    
    

16. The Department charges that Respondent violated Section 489.129(1)(j), Florida Statutes, by failing to subcontract the electrical work required to connect the new unit, as required by Section 489.113(3), Florida Statutes. The evidence establishes that Respondent did violate the provisions of Section 489.129(1)(j), Florida Statutes, as alleged.

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Department enter a Final order:

1. Dismissing Count I of the Administrative Complaint.

   
   

2. Finding Respondent violated the provisions of Section 489.129(1)(j), as alleged in the Administrative Complaint and

   
   

3. Reprimanding Respondent.

DONE AND ENTERED this 26th day of July, 1985, at Tallahassee, Florida.

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301 904/488-9675

FILED with the Clerk of the Division of Administrative Hearings this 26th day of July, 1985.

COPIES FURNISHED:

Theodore R. Gay, Esq.

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

George A. Wallace Post Office Box 23597

Fort Lauderdale, Florida 33307

James Linnan, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2

Jacksonville, Florida 32202

Fred M. Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore A. Carpino, Esq. General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 85-000037

Orders for Case No: 85-000037