STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 87-4452

)

ALBERT HEISLER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on January 14, 1988, in Miami, Florida.

Petitioner Department of Professional Regulation, Florida Real Estate Commission, was represented by David L. Swanson, Esquire, Tallahassee, Florida; and Respondent Albert Heisler was represented by M. Stephen Turner, Esquire, Tallahassee, Florida.

Petitioner filed an Administrative Complaint against Respondent alleging various violations of the construction contracting laws, and Respondent timely requested a formal hearing. Accordingly, the issues for determination herein are whether Respondent is guilty of the allegations contained within the Administrative Complaint, and, if so, what disciplinary action should be taken, if any.

The parties presented the testimony of Connor Adams, Respondent Albert Heisler, Richard Vanni, Sylvia Vanni, and Michael Lawrence. Additionally, Petitioner's Exhibits numbered 1-4 and Respondent's Exhibits numbered 1 and 2 were admitted in evidence.

Both parties submitted proposed findings of fact in the form of proposed recommended orders. Rulings on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondent has been a certified air conditioning contractor, holding License No. CAC009065, and has been the qualifying agent for Residential Air Conditioning Corporation (hereinafter "Residential Air") in Miami, Florida.

   
   

2. On October 1, 1985, Residential Air entered into a contract with June Davidson to install air conditioning in her mother's house in the City of Miami on a rush basis because of the health needs of the elderly mother and because Davidson needed to return to New York.

3. Residential Air's salesman was told by Davidson that a medical emergency situation existed for the Davidson job. The following notation appears in the comments section of the contract signed on October 1, 1985: "Please rush this job--woman needs a/c for health ... woman going back to New York--mother needs job." In the contract addendum signed on October 2, 1985, it was noted that Davidson was waiving her 3-day rescission rights because of the medical situation in the family and that the air conditioner needed to be installed immediately.

   
   

4. Respondent was out of town on vacation at the time and was not scheduled to return for several days. Respondent has done job drawings and pulled permits for the company over its 16 years of existence. It was Respondent's practice to pull all permits necessary to cover the next several weeks before going on vacation.

   
   

5. As a special accommodation to the customer in an emergency situation, Richard Vanni, a part-owner of Residential Air with 30 years of experience in air conditioning installation, assembled a crew to install the system for the Davidson job on October 2, 1985. Mr. Vanni assumed that Respondent would pull the permit on a late basis when he returned from vacation.

   
   

6. The ordinance adopting the South Florida Building Code in the City of Miami provides for a late fee in the event an application for job permit is filed after the job begins.

   
   

7. It was Mr. Vanni's understanding that in rush or emergency situations legitimate contractors could proceed with work and file late for the permit, that this was acceptable to the various municipal building departments in the south Florida area, and that most building departments are fair in the administration of permit laws and allow appropriate latitude to responsible contractors proceeding in good faith. No evidence was presented that Mr. Vanni or Residential Air had any intent to avoid paying a permit fee, including the appropriate late penalty, or to evade final inspection when the job was completed.

   
   

8. Respondent, as qualifying agent for Residential Air, regularly procures permits for all of the company's jobs, and the company is a highly responsible air conditioning contractor. Conner Adams, the Chief Mechanical Inspector for the City of Miami, is aware of no code violations or previous late penalties regarding Respondent or Residential Air and recalls no problems of any kind with Respondent or with the company.

   
   

9. Respondent's only previous violation of the state contracting laws involved payment to the Department of Professional Regulation of a small stipulated fine to settle a highly technical charge of using the word "company" instead of the word "corporation" on its contract form prepared by its attorney.

   
   

10. The air conditioning unit for the Davidson job was installed with a temporary hook-up which was to be followed by an audit inspection by Florida Power & Light Company and an increase in the electrical service by the electrical subcontractor. The increased service was not done because the customer stopped payment on her check and would not let the company back on the premises.

11. When Respondent returned from vacation a few days later, he immediately became immersed in accumulated office problems and the problem created by the Davidson job. He tried to pacify and accommodate Davidson by visiting the premises and proposing compromises.

    
    

12. No one called to Respondent's attention the fact that the Davidson job was not yet permitted. Respondent was not focusing on that issue, and with the other problems engrossing him, it simply slipped his mind to inquire or to check.

12. As Respondent explained, it would be absurd for him to intentionally not procure a permit for a job involving electrical service increase or customer problems. Lack of a permit is readily discovered in such instances and may provide an excuse for the customer to try to avoid payment.

1. Mrs. Sylvia Vanni, wife of co-owner Richard Vanni, is and has been the office manager of Residential Air. Her system has been to place pending job orders and contracts into a "3-day rescission file." After the 3-day rescission time has elapsed and payment arrangements have been made, the job orders or contracts are routinely given to Respondent to pull permits for those jobs. Because Respondent was not present when the Davidson job was undertaken, the contract was not then given to him to pull a permit. When the job was started, Mrs. Vanni mistakenly placed the contract into the "jobs in progress" file, and it was never presented to Respondent to pull a permit after he returned from vacation.

   
   

2. The electrical subcontractor also did not notify Respondent of the need for a permit. Since the company was not allowed back on the premises, the electrical subcontractor was not called upon to apply for an electrical permit to increase the electrical service, which would have called Respondent's attention to the need for a mechanical permit.

   
   

3. The system and procedures normally relied upon in the office did not function to alert Respondent to apply for a permit on the Davidson job. When the City of Miami Building Department contacted Respondent pursuant to Davidson's inquiry whether a job permit existed, Respondent immediately made application, paid the late fee, and obtained a mechanical permit on November 5, 1985.

   
   

4. Respondent's plans and drawings for the job were deemed satisfactory by the City of Miami Building Department.

   
   

5. No evidence was presented of any intentional or willful disregard of, or obstinate indifference to, the building permit laws.

   
   

6. Respondent's delay in obtaining a late permit after he returned from vacation was caused by simple oversight in the midst of trying to satisfactorily resolve a difficult customer problem in that no one advised him that a permit had not been pulled or that the Davidson job was not one for which he had pulled a permit prior to going on vacation.

   
   

7. The initial charging document in this cause is an Amended Administrative Complaint signed on August 24, 1987. The charges in the Amended Administrative Complaint are the same charges that were contained in an Administrative Complaint filed by the Petitioner against Respondent on July 24,

   1986. That complaint was voluntarily dismissed by Petitioner on February 10, 1987, just before the final hearing scheduled in that case for February 16, 1987.

   
   

8. Petitioner's probable cause panel met on August 12, 1987, and approved the filing of the Administrative Complaint which became the initial charging document in this cause. The probable cause panel was not told that charges related to the same matter had been dismissed by the Department six months earlier. Indeed, no explanation or discussion of the charges occurred at all. There was only an approval of the prosecutor's recommendation, and the entire discussion of the probable cause panel regarding the existence of probable cause to file the Amended Administrative Complaint consists of the following exchange:

   
   

   MR. SHROPSHIRE [agency attorney]: The next case is against Mr. Heisler, No. 65634. Prosecutor recommends a finding of probable cause and the filing of a formal complaint.

   MR. CARSON: I'd like to make a motion we accept the prosecutor's recommendations. MR. SUTTON: Second.

   MR. CARSON: All in favor say aye. MR. SUTTON: Aye.

   MR. CARSON: All opposed?

   MR. SHROPSHIRE: The next case is ...

   
   

9. Whether probable cause was properly determined was reserved in the Prehearing Stipulation as a issue for determination at the final hearing in this case. No evidence bearing on the probable cause determination was offered by the Department.

1. The charges in the Amended Administrative Complaint were brought (signed) on behalf of the Secretary of the Department of Professional Regulation by Douglas A. Shropshire, an attorney and the Tectonics Section Chief. Whether Mr. Shropshire had authority to institute the complaint on behalf of the Department was also reserved as an issue for final hearing. Mr. Shropshire is not the head of the agency. The Department offered no evidence of his designation to act for the Secretary in regard to instituting disciplinary charges.

   
   

   CONCLUSIONS OF LAW

   
   

2. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes.

   
   

3. Probable cause for filing the Amended Administrative Complaint was not properly determined. According to Kibler v. Department of Professional Regulation, 418 So.2d 1081 (Fla. 1982), there must be some form of evaluation by the probable cause panel, which means submission of evidence or discussion of the charges and not merely a rubber stamp approval of the prosecutor's proposal. In this case, charges were not discussed or documented, and nothing was presented to sustain or justify the claims of intentional or willful disregard of local law or gross negligence, incompetence or misconduct. The probable cause panel was not even informed that the same charges had been voluntarily dismissed by the prosecutor six months earlier. Respondent sought and obtained discovery of the probable cause determination and raised that as an issue in

   this case. Petitioner offered no evidence to show adequate consideration and evaluation of the amended charges. Accordingly, the Amended Administrative Complaint filed in this case must be dismissed.

   
   

4. An issue was also raised in the Prehearing Stipulation as to the authority of a Department of Professional Regulation attorney to institute the penal charges in the Amended Administrative Complaint. On its face, the Complaint was not executed by the Secretary as head of the agency. Petitioner offered no evidence to establish an authorized designation from the agency head to the attorney signing the charges. The Amended Administrative Complaint charging Respondent with violations of the licensure statute, while brought in the name of the Department, is not executed by the person statutorily given authority to execute the powers of the Department. Sections 20.03, 20.30, and 455.225(3), Florida Statutes. Petitioner offered no evidence to show that the Tectonics Section Chief or a Department staff attorney or Douglas A. Shropshire was duly designated to file a complaint or this Amended Administrative Complaint. Absent proof in the record that the agency had properly delegated this authority, the charges filed in this case are legally insufficient, and the Amended Administrative Complaint must be dismissed for this additional reason.

   
   

5. Even assuming the charges were properly brought, they are nevertheless not well founded and were not proven. The charges contained in the Amended Administrative Complaint all involve failure to timely obtain a building permit regarding the Davidson job. Respondent is charged with violation of Section 489.129(1)(d), Florida Administrative Code, which authorizes disciplinary action for willful or deliberate disregard and violation of applicable local building codes. To discipline under this section, Petitioner must clearly and convincingly prove purposeful disregard or plain indifference by Respondent to building code requirements. Department of Professional Regulation v. Gory, 9 FALR 394 (1986); Department of Professional Regulation v. Wallace, 8 FALR 567 (1985). Petitioner has failed to meet its burden of proof concerning this alleged violation. The City of Miami Building Code allows issuance of permits upon late-filed requests. Respondent submitted plans conforming to the Code and paid a late fee, as numerous other contractors did and do from time to time.

   The emergency circumstances surrounding the Davidson contract constituted justification for failure to obtain a permit in advance. Respondent was entitled to have a permit issued for the job. In this particular instance, where medical circumstances required immediate action, the fact that the permit was requested late resulted in only one consequence--the payment of an increased fee. To the extent there was any violation, it was not in willful or deliberate disregard of, or in obstinate or plain indifference to, the permit requirements of Dade County or the City of Miami, and it was not unreasonable or unjustified in the circumstances present in this case.

   
   

6. Respondent is also charged with violation of Section 489.129(1)(m), Florida Statutes, for gross negligence, incompetence, or misconduct in the practice of contracting by failing to timely apply for a permit. This charge cannot lie in the circumstances alleged. The legislature specifically required proof of a deliberate or willful disregard of local building codes in subsection

   (d) of the statute. A lesser burden of proof for failing to comply with the local building code is necessarily precluded by this more specific and stricter part of the statute. The more narrowly drawn statute expressly covering a particular subject controls over a statute covering the same subject in more general terms--in this case covering, generally, the practice of contracting.

   
   

7. Moreover, the mention of one thing in a statute implies the exclusion of another. The legislature did not condemn grossly negligent violation of

   building codes. The legislature expressly required willful or deliberate disregard to be a prosecutable offense. The Department's attempt to charge violations of building codes under other more general and non-explicit provisions of a statute in the face of an explicit provision renders the legislatively imposed standard of willfulness or deliberateness meaningless. The alleged violation of Section 489.029(1)(m) is not supported on the facts alleged and must be dismissed. In any event, Respondent was not shown to be grossly negligent, incompetent, or guilty of misconduct in the practice of contracting by failure to timely procure a permit since this was not proven by clear and convincing evidence. While Respondent was on vacation, the company's co-owner who had 30 years of experience in the air conditioning business was confronted with an unusual circumstance. He determined that it was acceptable to accommodate the customer in an emergency medical situation and have Respondent pull the building permit by payment of a late fee when he returned.

   This was known to be a reasonable and accepted procedure with municipal building departments. Upon his return, Respondent through oversight did not apply for a late permit but did so when he became aware of the fact that no permit had been pulled. These actions were done in good faith and were not shown to be grossly aberrant from any prevailing standards. It is important to note that Petitioner makes no mention of a violation of section 489.129(1)(m) in its proposed recommended order, and it can only be assumed that Petitioner agrees that there is no basis for a charge relating to gross negligence, incompetence, or misconduct in the practice of contracting.

   
   

8. Finally, Respondent is charged with violation of section 489.129(1)(j), Florida Statutes, by violating sections 489.119 and 489.105(4), Florida Statutes, by failing to supervise the Davidson job by not timely obtaining a building permit. Again, the more specific section of the statute, which prescribes willful or deliberate disregard and violation of a local building code, controls over a general section (improper project supervision). Furthermore, section 489.119 sets out the requirements to become a qualifying agent of a corporation and maintain that status. Section 489.105(4) is definitional, containing no mandate or prohibition. Neither of these relate to obtaining building permits. These provisions are presumably violated when a qualifying agent misuses his license because someone else actually is in charge of and responsible for the work. A qualifying agent cannot associate himself with a project by pulling a permit and divorce himself from responsibility for the construction. This would enable a licensee to simply lend or rent his license to others.

   
   

9. This is not what occurred here. Respondent is not charged with failing to supervise construction which turned out defective. To the contrary, Respondent is actively involved in company jobs, and in fact became involved in the Davidson job immediately upon his return from vacation. The issue here focuses on the commencement of a job undertaken without Respondent's association while he was in fact on vacation. Lack of his supervision could have nothing to do with the permit not being pulled timely. In any event, the company's actions in Respondent's absence were justifiable in the circumstances presented, and there was no willful or deliberate disregard and violation of permit requirements to subject Respondent to discipline.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered dismissing with prejudice the

Amended Administrative Complaint filed in this case.

DONE and RECOMMENDED this 10th day of March, 1988, at Tallahassee, Florida.

LINDA M. RIGOT, 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 10th day of March, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4452

1. Petitioner's proposed findings of fact numbered 1-10 have been adopted in substance or verbatim in this Recommended Order.

   
   

2. Respondent's proposed findings of fact numbered 1-27 have been adopted in substance or verbatim in this Recommended Order.

COPIES FURNISHED:

Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2

Jacksonville, Florida 32201

David L. Swanson, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

M. Stephen Turner, Esquire Post Office Box 11300

Tallahassee, Florida 32301-3300

William O'Neil, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs CASE NO.: 65634

DOAH CASE NO.: 87-4452

ALBERT HEISLER,

License Number: CA C009065

Respondent.

/

FINAL ORDER

THIS MATTER came before the Construction Industry Licensing Board pursuant to Section 120.57(1)(b)(9), Florida Statutes, on May 12, 1988, in Orlando, for consideration of the Recommended Order (a copy of which is attached hereto and incorporated herein by reference) issued by the hearing officer in the above styled case. The Petitioner was represented by Douglas A. Shropshire. The Respondent was neither present nor represented by counsel at the board meeting.

Upon consideration of the hearing officer's Recommended Order, the exceptions filed thereto and the arguments of the parties and after a review of the complete record in this matter, the Board makes the following findings:

FINDINGS OF FACT

1. The hearing officer's findings of fact are hereby approved and adopted.

   
   

2. There is competent, substantial evidence to support the hearing officer's findings of fact.

CONCLUSIONS OF LAW

1. The Board has jurisdiction of this matter pursuant to the provisions of Section 120.57(1), and Chapter 489, Florida Statutes.

   
   

2. The hearing officer's conclusions of law, are hereby approved and adopted except where they are in contradiction with those exceptions filed by the Petitioner to the Hearing Officer's recommended Conclusions of Law.

   
   

3. The exceptions filed by the Petitioner to the Hearing Officer's recommended Conclusions of Law are hereby approved and adopted in toto and fully incorporated herein by reference.

   
   

4. There is competent substantial evidence to support the Board's findings and conclusions.

WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED:

That this Administrative Complaint issued in this cause be and hereby is DISMISSED.

Pursuant to Section 120.59, Florida Statutes, the Parties are hereby notified that they may appeal this Order by filing one copy of a Notice of Appeal with the Clerk of the Department of Professional Regulation, 130 N. Monroe Street, Tallahassee Florida 32301, and by filing the filing fee and one copy of the Notice of Appeal with the District Court of Appeal within thirty

(30) days of the effective date of this Order.

This Order shall become effective upon filing with the Clerk of the Department of Professional Regulation.

DONE AND ORDERED this 6th day of October, 1988.

J. R. CROCKETT, CHAIRMAN Construction Industry Licensing Board

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been provided by certified mail to

Albert Heisler

20250 N.E. 15th Court

North Miami Beach, Florida 33179

and by hand delivery/United States mail to the Board Clerk, Department of Professional Regulation and its Counsel, 130 North Monroe Street, Tallahassee, Florida 32399-0750, on or before 5:00 p.m., this 26th day of October, 1988.

Docket for Case No: 87-004452

Orders for Case No: 87-004452