STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 86-4752

)

ARNOLD A. DIXON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a formal hearing was held in this case on March 10, 1987, in Room 411, Richard P. Daniel Building, 111 East Coast Line Drive, Jacksonville, Florida, before Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case was presented on an Administrative Complaint filed by Petitioner against Respondent alleging several violations of Chapter 4897 Florida Statutes.

APPEARANCES

For Petitioner: Edward C. Hill, Jr., Esquire

Senior Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: No appearance

ISSUE

The issues are (1) whether engaging in air conditioning contracting regulated by the Florida Electrical Contractors Licensing Board pursuant to Section 489.500 et seq. Part II, Florida Statutes, constitutes exceeding the scope of one's license as an electrical contractor, (2) whether performing air conditioning contracting in the name of "Dixon's Heating and Air Conditioning" constitutes operating in a name other than the name his electrical contracting license is issued in, contrary to Subsection 489.533(1)(l), and (3) whether Respondent willfully violated the building codes by venting the heater improperly, failing to get a permit and get work inspected.

FINDINGS OF FACT

1. Notice of hearing was given to Respondent at Route 2, Box 595, Yulee, Florida 32097.

2. Arnold Dixon is and has been at all times material to this case a registered electrical contractor, license number ER0004417. (Pet. Ex. 1 & 2) He has maintained his address of record as Route 2, Box 595, Yulee, Florida 32097. (T-Pg. 6) He has held such license since 1976. (Pet. Ex. 1 & 2)

   
   

3. Arnold Dixon does not hold a license, a state registration or certification to engage in contracting as a heating or air conditioning contractor. (Pet. Ex. 4 & 6) Arnold Dixon does hold a Nassau County Occupational License as an electrical contractor and as a heating and air conditioning contractor. No check of local records was conducted to see if he had a local license as an air conditioning contractor. (T-Pg. 22)

   
   

4. On or about June 1985, the Respondent's company, Dixon's Heating and Air Conditioning, contracted to install an air conditioning and heating unit at the home of John Williams for a contract price of $1985. (Pet. Ex. 5 and T-Pgs.

   10 & 11) The work on this contract was done by David Everett, who negotiated the contract.

   
   

5. The Respondent's company, Dixon's Heating and Air Conditioning, did not obtain a permit to perform the work at the Williams' residence. Inspections on the Williams' job were not called for by Dixon's Heating and Air Conditioning.

   
   

6. Permits and inspections were required by the applicable building code. (T-Pgs. 25 & 26)

   
   

7. Entering into a contract to perform air conditioning and heating work and performing such work is air conditioning contracting, which is regulated under Part I, Chapter 489, Florida Statutes.

   
   

8. After installation by Dixon's Hearing and Air Conditioning, the Williams' heating system generated carbon monoxide when operating because there was insufficient fresh air being provided to the unit. Because the air intake was in a closet which restricted the air supply to the hot air handling system, the air handling unit sucked fumes from the exhaust side of the unit back through the unit's combustion chamber and circulated it through the house. The longer the unit ran, the more debris was trapped in the louvered door of the closet and the more combustion gases were pulled through the combustion chamber and distributed through the house by the air handling unit. (T-Pg. 34)

   
   

9. According to the manufacturer's representative, the hot air return is required to be ducted into the unit. In this case, the return air was pulled from inside a closet which had louvered doors. No duct was used and this installation was not in accordance with the manufacturer's instructions. Although the unit as installed was unsafe and had the potential to kill, no evidence was received that failure to install the unit in accordance with the manufacturer's instructions was a violation of local building code. (T-Pgs. 34- 38)

   
   

10. Dixon's Heating and Air Conditioning did not hold itself out to be and was not engaged in electrical contracting in fulfilling the Williams' contract.

    
    

11. Dixon's Heating and Air Conditioning did hold itself out to be an air conditioning contractor and the work performed in fulfilling the Williams' contract was air conditioning contracting.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Section 120.57(1), Florida Statutes. Part II, Chapter 489, Florida Statutes, authorizes the Electrical Contractors' Licensing Board to discipline the registration or certificate of the contractor and impose an administrative fine, suspend, revoke or reprimand a contractor for violations of the prohibitions of the Chapter.

    
    

13. Dixon held local occupational licenses as an air conditioning contractor and as an electrical contractor. The electrical contractor's license is based upon the Respondent's Florida Electrical Contractor's License.

    Although the work done by Respondent's company on the Williams' contract was not electrical contracting, the evidence indicates Respondent violated local building codes and State statutes. The Florida Electrical Contractors Licensing Board has an interest in insuring that its licensees comply with such laws.

    Therefore, the Board has jurisdiction to adjudicate the alleged violations.

    
    

14. In summary, the Administrative Complaint filed against the Respondent charges him with violating Section 489.513(4), Florida Statutes, by exceeding the scope of his electrical contractor's license; with violating Section 489.533(1)(l), Florida Statutes, by acting in a name other than on his electrical contractor's license; with violating Section 489.533(1)(i), Florida Statutes, by willfully or deliberately disregarding the applicable building codes or (building) laws of the State or of any municipality or county; and by violating Section 489.533(1)(f), Florida Statutes, by fraud, deceit, negligence, incompetence or misconduct in the practice of electrical contracting.

    
    

15. No evidence was presented that the Respondent or his company engaged in electrical contracting in fulfilling the Williams' contract. Therefore, the Respondent is not guilty of violating Section 489.533(1)(f), Florida Statutes, which specifically limits its applicability to the practice of electrical contracting and is not guilty of violating Subsection 489.533(1)(l), Florida Statutes, which is applicable to electrical contractors practicing electrical contracting. Similarly, Section 489.513 speaks to the registration of persons as electrical contractors. In the absence of evidence that the Respondent was engaged in electrical contracting, the provisions of Section 489.513 would not be applicable.

    
    

16. The evidence does reflect that the Respondent's company engaged in air conditioning contracting. Part I, Chapter 489, Florida Statutes, requires registration or certification of air conditioning contractors. The local ordinances of Nassau County required a permit for the installation of a gas heater of the type installed by Respondent's company. The Respondent's company did not obtain a permit nor call for inspections of the completed work.

    
    

17. Section 489.533(1)(i) makes it a violation to willfully and deliberately disregard applicable building codes and laws of the State of Florida. The facts reflect that the Respondent's company performed the Williams' contract without obtaining a permit and did not call for inspections as required by local ordinances. In addition, the Respondent did not register or seek certification with the State as an air conditioning contractor as required by Part I of Chapter 489, Florida Statutes. Even if Respondent held a locally issued license, he was required by Section 489.117(1), Florida Statutes, to register with the State as an air conditioning contractor. Thereby, the Respondent violated Section 489.533(1)(i), Florida Statutes.

18. There was conflicting evidence presented concerning how the Respondent vented the heater. The most credible testimony was that of Mr. Boyer, who found the heater to be vented properly. It was the hot air return duct which was improperly installed. However, no evidence was received that the failure to duct the hot air return was a violation of local code.

    
    

19. Having determined that the Respondent's company violated Section 489.533(1)(i) by failing to register as an air conditioning contractor, by failing to obtain a permit, and by failing to request inspections of the work which it did, it is

RECOMMENDED:

That the Florida Electrical Contractors Licensing Board suspend the Respondent's electrical contractor's license for a period of two (2) years and pose an administrative fine of $1,000.

DONE and ORDERED this 8th day of April, 1987, in Tallahassee, Florida.

STEPHEN F. DEAN

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 8th day of April, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4752

Petitioner filed Proposed Findings of Fact which were read, considered and adopted with the exception of Paragraph 7, which was rejected. Substitute findings based upon the testimony of Robert F. Boyer were adopted by the Hearing Officer as being more credible.

COPIES FURNISHED:

Edward C. Hill, Jr., Esquire Van Poole, Secretary Senior Attorney Department of Professional Department of Professional Regulation

Regulation 130 North Monroe Street

130 North Monroe Street Tallahassee, Florida 32399-0750 Tallahassee, Florida 32399-0750

Joseph A. Sole, Esquire

Arnold A. Dixon General Counsel

Route 2, Box 595 Department of Professional Yulee, Florida 32097 Regulation

130 North Monroe Street

Pat Ard, Executive Director Tallahassee, Florida 32399-0750 Electrical Contractors

Licensing Board Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 86-004752

Orders for Case No: 86-004752