Judges: W. MATTHEW STEVENSON
Agency: Department of Business and Professional Regulation
Latest Update: Jul. 27, 1987
Summary: Petitioner failed to establish the charge that Respondent was guilty of negligence in his contracting practice.
85-4004STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, CONSTRUCTION INDUSTRY ) LICENSING BOARD, )
)
Petitioner, )
) CASE NO. 85-4004
vs. )
)
JOHN ANTHONY FANTASIA, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, W. Matthew Stevenson, held a formal hearing in this cause on April 13, and 30, 1987 in Miami, Florida. The following appearances were entered:
For Petitioner: Gus Vincent Soto, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: Edward Brigham, Esquire
25 West Flagler Street
City National Bank Building Suite 933
Miami, Florida 33130 PROCEDURAL BACKGROUND
By Amended Administrative Complaint dated October 14, 1985, the Petitioner charges that Respondent committed gross negligence in the practice of contracting and contracted beyond the scope of his license in violation of Chapter 489, Florida Statutes. Respondent disputed the factual allegations contained in the complaint and requested a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes.
At the formal hearing, the Petitioner presented the testimony of the following witnesses: Joseph Wilensky: H. E. Nason; Carlos Garcia, accepted as an expert in electrical engineering; Benny Biscotti, accepted as an expert in electrical contracting; Marvin Arnoff, a licensed electrical contractor; and Harold Schoendorf, accepted as an expert in mechanical contracting. Petitioner's Exhibits 1 through 14 were duly offered and admitted into evidence. The Respondent testified in his own behalf and presented the testimony of the following witnesses: F. Perry Seely, a licensed electrical engineer and accepted as an expert in the application of electrical aspects of the South Florida Building Code; Louis Avard, previously employed as a building official with the City of North Miami Beach; Jack Yanks, accepted as an expert in air conditioning and electrical contracting; and Patricia Fantasia. Respondent's Exhibits 2-6 were duly offered and admitted into evidence. The parties have filed post-hearing Proposed Findings of Fact. A ruling has been made on each proposed Finding of Fact in the Appendix to this Recommended Order.
At the beginning of the hearing, the Respondent filed a Motion to Dismiss. A ruling was reserved on the Motion to Dismiss because of its untimely filing. In the Motion to Dismiss, the Respondent argued that a jury trial must be afforded where an administrative agency seeks to impose a fine or an economic sanction against a citizen of the State of Florida. After due consideration, the Motion to Dismiss is denied. See Broward County vs. John La Rosa, 505 So. 2d 422 (Fla. 1987).
FINDINGS OF FACT
Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence submitted and the entire record complied herein, I hereby make the following Findings of Fact:
Respondent, John Anthony Fantasia, is, and has been at all times material hereto, a certified air conditioning contractor in the State of Florida, having been issued license number CA C024378.
Mr. Joseph Wilensky resides in a single family home at 1020 N.E. 160th Terrace in North Miami Beach, Florida. On December 23, 1983 there was a fire at Wilensky's home. The fire was primarily located in the basement near the oil heating unit,
some type of electric heating device which utilized a heat strip and part of the central air conditioning unit. The air conditioning and heating systems all sustained damage in the fire.
A few days after the fire, an insurance adjuster went to Wilensky's home and recommended a general contractor by the name of H. E. Nason. Nason inspected the damage at the Wilensky home and later sent Respondent over to inspect the damage for an estimate. Nason had previously used Respondent as a sub- contractor on other projects.
The Respondent submitted a bid of $2,600 to Nason to install an air conditioning system with a heat strip in the Wilensky home. Thereafter, Nason entered into a contract with Wilensky to make the repairs and sub-contracted the entire job to Respondent.
In January 1984, approximately one week after the contract was signed, Respondent, with the assistance of a single helper, removed the old air conditioning and heating units and installed a new central air conditioning/heating unit. Mr. Wilensky was at home while the work was performed. Wilensky observed the Respondent perform some of the work but did not watch Respondent the whole time. Wilensky was talking with his wife either in the dining room or in the kitchen when Respondent informed him that he had just finished with the switch and that the unit was "all set."
Prior to installing the new unit, no work permits were pulled nor inspections called for by either Respondent or Mr. Nason. The Respondent believed that Nason, as general contractor, was obligated to pull all necessary work permits.
The Respondent connected the new air conditioning/ heating unit to an electrical box which served as an on/off disconnect switch.
The on/off disconnect switch was wired to the power source "ahead of the main." "Ahead of the main" is a term used in the electrical industry meaning that an apparatus is wired directly to a power source, by-passing the fuse box or main circuit breaker entirely. In this manner, the apparatus cannot be turned off from the fuse box. Such wiring violates the National Electrical Code, presents a serious hazard of fire and reflects gross negligence and incompetence.
The evidence did not establish that the Respondent wired the on/off disconnect switch to the power source when he installed the new unit. There was at least an equal amount of credible evidence that the disconnect switch had been utilized with the previous unit and was in place prior to Respondent's installation work.
Shortly after the unit was installed, Wilensky became dissatisfied because he believed that the unit was not heating or cooling properly and that his electricity bills were too high.
Respondent returned to Mr. Wilensky's home on several occasions to do additional work on the unit, such as changing thermostats, in an attempt to satisfy Mr. Wilensky. Wilensky was not satisfied with the additional work performed by Respondent and their previously good relationship deteriorated rapidly.
Wilensky called Florida Power & Light Company to complain about the high electric bills and an inspector went out to his home. The inspector informed Wilensky that the wiring leading to the air conditioning/heating unit was not done properly.
On March 4, 1985, at the request of Mr. Wilensky, Benny Biscotti, an electrical building official for the City of North Miami Beach, performed an inspection at the Wilensky residence. In his inspection, Biscotti confirmed that the wiring leading to the air conditioning/heating unit was hooked up "ahead of the main."
The wiring in Wilensky's home was corrected by AVI/AMEX Electric Company on January 16, 1986.
The City of North Miami Beach has adopted the South Florida Building Code (SFBC). The SFBC required that a mechanical permit be obtained for the installation of the air conditioning/heating unit.
The SFBC did not require an electrical permit in this instance because there was no showing that the installation of the unit required new permanent wiring or an alteration or change to the existing electrical system. The evidence did not establish that electrical upgrading (an increase in capacity for voltage and amperage) was required to accommodate the new air conditioning/heating unit.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 120.57(1), Florida Statutes.
The Petitioner, Construction Industry Licensing Board, is charged with the responsibility of regulating the practice of contracting pursuant to Chapter 489, Florida Statutes. The Petitioner may revoke or suspend the 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 he or she is found guilty of any of the acts enumerated in Section 489.129, Florida Statutes.
In the instant case, the Respondent is charged with violating Section 489.129(1)(j) and (m) and 489.115(1)(b), Florida Statutes. Section 489.129(1)(j) prohibits a "failure in any material respect to comply with the provisions of" Chapter 489, Florida Statutes. Section 489.115(1)(d) provides that the contractor may "engage in contracting only for the type of work covered by the certificate". Section 489.129(1)(m) prohibits "gross negligence" in the practice of contracting.
In paragraph four (4) of the complaint, the Petitioner charges that: "Respondent exceeded the scope of his license by doing all of the electrical work in connection with the installation of the air conditioning/heating unit." The Petitioner failed to establish this charge by clear and convincing evidence. The preponderance of the evidence indicated that by common practice, many air conditioning contractors in the South Florida area routinely connect newly installed air conditioning units to existing power sources without the assistance of a licensed electrician where the capacity of the new unit is the same or less than the original. The weight of the evidence did not establish that Respondent installed or replaced the disconnect switch, connected the electrical box directly to the power source or upgraded the electrical system in any way. Where a state agency seeks to discipline a licensee for impermissibly deviating from a standard of conduct not explicitly fixed by rule or statute, and when the conduct assessed is past and beyond the licensee's power to conform it to agency standards pronounced prospectively, the agency bears a heavy burden of proof. See Purvis v. Department of Professional Regulation, 461 So. 2d 134 (Fla. 1st DCA 1984). The Respondent is not guilty of engaging
in contracting for work not covered by his certificate in violation of Section 489.115(1(b), Florida Statutes.
In paragraph five (5) of the complaint, the Respondent is charged with violating "the applicable local law by failing to obtain any permits for the work before completing the job, and failing to call for inspections of the work." The complaint does not include a statutory reference for this charge, however, Section 489.129(1)(d), Florida Statutes prohibits a "willful or deliberate disregard and violation of" local building codes.
The South Florida Building Code required that a mechanical permit be obtained and inspections called for, prior to the installation of the air conditioning/heating unit in the instant case, however, the Respondent honestly believed that H.E. Nason was acting as general contractor in this project and that he, Nason, was obligated to pull all of the necessary permits and call for inspections. There has been no judicial construction of the terms "willful" or "deliberate" as used in Section 489.124, Florida Statutes. In licensing cases, federal decisions construe the terms "willful" and "deliberate" to require that an agency seeking to impose discipline prove that the licensee knew his legal obligation and purposely disregarded it or was plainly indifferent to such requirements. Shyda v.
Director, Bureau of Alcohol, Tobacco and Firearms, 448 F.Supp
409 (M.D. Pa. 1977); Perri v. Department of Treasury, 637 F.2d 1332 (9th Cir. 1981). The Respondent is not guilty of a violation of Section 489.129(1)(d), Florida Statutes.
In paragraph six (6) of the complaint, the Petitioner charges that Respondent "was grossly negligent in that he failed to adequately supervise the installation of the unit, only visiting the job site before and after installation." This charge was not proven; to the contrary, the evidence showed that the Respondent, with the aid of one helper, personally installed the air conditioning unit.
In paragraph seven (7) of the complaint, the Petitioner charges that Respondent "exhibited gross negligence in the practice of contracting by allowing the unit to be wired directly to the 220 volt power source, by-passing the fuse box entirely." The Petitioner failed to establish this charge by clear and convincing evidence. The evidence merely showed that the Respondent connected the new air conditioning/heating unit to a disconnect switch which may have already existed for the previous unit. The Petitioner did not establish that Respondent had any part in connecting the disconnect switch "ahead of the main" directly to the 220 volt power source. The Respondent
cannot be held responsible for faulty electrical work which may have existed prior to the installation of the new air conditioning/ heating unit. The Respondent is not guilty of gross negligence in the practice of contracting in violation of Section 489.129(1)(m), Florida Statutes.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law it is
RECOMMENDED that the Amended Administrative Complaint filed herein be dismissed.
DONE and ORDERED this 27th day of July, 1987 in Tallahassee, Leon County, Florida.
W. MATTHEW STEVENSON 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 27th day of July, 1987.
APPENDIX
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.
Rulings on Proposed Findings of Fact Submitted by the Petitioner
Adopted in Finding of Fact 2
Adopted in substance in Finding of Fact 2.
Adopted in substance in Finding of Fact 3.
Adopted in substance in Finding of Fact 5.
Rejected as not supported by the weight of credible testimony.
Adopted in Finding of Fact 5.
Partially adopted in Finding of Fact 5.
Adopted in Finding of Fact 5.
Adopted in substance in Finding of Fact 5.
Rejected as not established by the weight of the evidence.
Adopted in substance in Finding of Fact 7.
Partially adopted in Finding of Fact 5. Mr. Wilensky's testimony that he saw Respondent connect the switch to the fuse box is unpersuasive, particularly in view of the fact that he did not observe all of the work performed by Respondent, his admitted lack of knowledge of air conditioning and electrical matters and his intense negative feelings regarding Respondent resulting from this entire incident.
Adopted in substance in Finding of Fact 5.
Rejected as subordinate and/or unnecessary.
Adopted in substance in Finding of Fact 8.
Rejected as unnecessary.
Adopted in substance in Finding of Fact 8.
Rejected as subordinate and/or unnecessary.
Adopted in substance in Finding of Fact 8.
Rejected as not supported by credible evidence.
Rejected as not supported by credible evidence.
Rejected as subordinate and/or unnecessary.
Adopted in substance in Finding of Fact 14.
Adopted in Finding of Fact 13.
Adopted in Finding of Fact 13.
Adopted in Finding of Fact 13.
Rejected as not supported by credible evidence. Biscotti's testimony that the wiring was "recent" was based on the history of the work related to him by Mr. Wilensky. Although Biscotti testified that it looked as if "recent work" had been done, the admitted that his opinion was primarily based on Wilensky's statement to him that Respondent had installed new wiring.
Rejected as not established by the weight of the evidence.
Rejected as not established by the weight of the evidence.
Adopted in Finding of Fact 1.
Adopted in substance in Finding of Fact 1.
Adopted in substance in Finding of Fact 4.
Rejected as not established by the weight of the evidence.
Rejected as not contrary to the weight of the evidence.
Addressed in Conclusion of Law section.
Addressed in Conclusions of Law section.
Adopted in Finding of Fact 6.
Adopted in Finding of Fact 6.
Adopted in Finding of Fact 6.
Rejected as a recitation of testimony/evidence.
Rejected as a recitation of testimony/evidence.
Rejected as a recitation of testimony/evidence.
Rejected as a recitation of testimony/evidence.
Rejected as a recitation of testimony/evidence.
Rejected as subordinate and/or unnecessary.
Addressed in Procedural Background section.
Addressed in Procedural Background section.
Addressed in Procedural Background section.
Rejected as subordinate.
Rejected as subordinate.
Rejected as subordinate.
Rejected as subordinate.
Rulings on Proposed Findings of Fact Submitted by the Respondent
(The Respondent's Proposed Recommended Order is written in the form of Conclusions of Law only and includes no specific findings of fact upon which a ruling can be made.)
COPIES FURNISHED:
Gus Vincent Soto, Esq Joe Sole, Esq.
Department of Professional Department of Professional Regulation Regulation
130 North Monroe Street 130 North Monroe Street Tallahassee, FL 32301 Tallahassee, FL 32399-0750
Edward Bringham, Esq. Fred Seely
25 West Flagler Street Executive Director
City National Bank Bldg. Department of Professional Suite 933 Regulation
Miami, FL 33130 P.O. Box 2
Jacksonville, FL 32201
Van Poole Secretary
Department of Professional Regulation
130 North Monroe Street Tallahassee, FL 32399-0750
Docket for Case No: 85-004004
Orders for Case No: 85-004004
| Issue Date |
Document |
Summary |
|
May 14, 1988 |
Agency Final Order
|
|
|
Jul. 27, 1987 |
Recommended Order
|
Petitioner failed to establish the charge that Respondent was guilty of negligence in his contracting practice.
|
