STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTME1NT OF PROFESSIONAL ) REGULATION, CONSTRUCTION INDUSTRY ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 87-5399

)

GREGORY S. KIJANKA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on April 29 and June 2, 1988 in Fort Lauderdale, Florida. Thereafter, the parties filed Proposed Recommended Orders which were considered in preparation of this Recommended Order. Proposed findings which are not incorporated herein are the subject of specific rulings in an Appendix attached hereto. A transcript of the proceeding was received on October 28, 1988.

APPEARANCES

For Petitioner: Carol M. Anderson, Esquire

Anderson and Anderson, P.A. 1313 South Andrews Avenue

Fort Lauderdale, Florida 33316

For Respondent: James P. Durkin and

Chester Just, Esquires 1/ 2605 East Atlantic Boulevard Pompano Beach, Florida 33602

ISSUE PRESENTED

The issue presented for decision herein is whether or not Respondent violated local law by engaging in the installation of a range hood without timely obtaining a permit; improperly supervised the project and exceeded the scope of work that he is licensed, in violation of subsections 489.129(1)(d)(m), and (j) 489.115; 489.117(2) and 489.119 and 489.105(4), Florida Statutes.

INTRODUCTION

By its Administrative Complaint filed herein, Petitioner seeks to impose disciplinary sanctions against Respondent for conduct set forth hereinafter in detail. Petitioner timely executed an election of rights form wherein he disputed the allegations of fact and requested a formal hearing pursuant to section 120.57(1), Florida Statutes.

Petitioner presented the testimony of Mr. Roberto Villanueva, the owner of

1. Air Conditioning, Mr. Ed Stein, Chief Inspector, Miami Beach Building Department and Mr. Paul Raymond, Mechanical Inspector, Miami Beach Building Department. Respondent testified on his own behalf.

   
   

   Petitioner introduced into evidence exhibits 1-5 which were received during the final hearing.

   
   

   Respondent's Motion to Withdraw the Request for Admissions filed herein was granted after consideration of the legal argument advanced by his newly retained counsel.

   
   

   FINDINGS OF FACT

   
   

   Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings:

   
   

   1. Petitioner, Department of Professional Regulation, Construction Industry Licensing Board, was, at all times material hereto, the state agency charged with regulating the construction industry in Florida.

      
      

   2. Respondent was, at all times material hereto, a certified air conditioning contractor, License Number CA-C018243, in Fort Lauderdale, Florida, and was the qualifying agent for Kitchen Ventilation Specialists (KVS or Respondent).

      
      

   3. Roberto Villanueva is the owner and president of R.V. Air Conditioning Incorporated (RV). RV had a permit to perform air conditioning work at the Cardoza Hotel in Miami Beach, Florida. During May, 1987, KVS obtained a contract to install a six foot stainless steel hood in the kitchen of the Cardoza. The job was scheduled for June 4, 1987. Respondent dispatched too employees to the Cardoza at 6:30 a.m. on June 4, 1987 to hang the hood per "Falios plans."

      
      

   4. Villanueva observed KVS' employees installing the rang- hood at the Cardoza and notified chief inspector Ed Stein that he had the permit for the air conditioning work at the Cardoza Hotel, that the employees of KVS were not working under his permit, and that they were installing the hood without a permit. Ed Stein approached the KVS employees and determined that they did not have a permit and did not hold a certificate of competency to make the installation. He issued a stop-work order and a notice of violation to KVS once he determined that they were employees of that entity. Stein asked the employees to gather their tools and leave the job site. The employees left the site at that time. He returned the following day and noticed that the hood had been completely installed in contravention of the stop-work order.

      
      

   5. R.V. Air Conditioning ran the ductwork and connected the ventilation system to the hood installed by EVS.

      
      

   6. While Respondent denied that his employees completed the installation of the hood in contravention of the work-order, such testimony is not credible in view of the fact that R.V.'s employees had no incentive to complete the installation for the hood when it was Villanueva who called the building department to advise that work was being done on the job-site which they had obtained a permit for and that KVS employees failed to obtain a permit.

   7. It is common knowledge, within the construction industry, that attaching the hood in the manner in which KVS employees did so was, in effect, installing a hood and not just "hanging" a hood.

      
      

   8. Respondent, on the other hand, contended that setting this hood on the Cardoza job-site was not installing a hood because he did not run the ductwork to the hood. However, on cross-examination, Respondent conceded that there was no difference between hanging or installing the hood.

      
      

   9. Respondent's contention that he was under the impression that he was working under the permit obtained by the general contractor, R.V. Air Conditioning, is unpersuasive and is not credited herein. This is especially so in view of the fact that when the stop-work order was issued to his employees, he phoned Ed Stein and explained that his employees were only delivering and setting the hood and that a permit was not required. Stein thereupon replied that he had to either obtain a permit or get a writing from the general contractor, R.V. Air Conditioning, explaining that he was working under that contract. Respondent failed to obtain such a writing and did not obtain a permit until July 7, 1987, at which time he completed an application for a permit to "hang" the hood. Respondent paid an administrative fine and a fee amounting to twice the usual amount for the permit. (Petitioner's Exhibit 1).

      
      

      CONCLUSIONS OF LAW

      
      

   10. The Division of Administrative Hearings has jurisdiction over the subject matter of, and the parties to, this action. Section 120.57(1), Florida Statutes.

       
       

   11. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

       
       

   12. The authority of the Petitioner is derived from Chapter 489, Florida Statutes.

       
       

   13. Respondent, a certified air conditioning contractor, is subject to the disciplinary provisions of Chapter 489, Florida Statutes.

       
       

   14. Chapter 489.129 provides, in pertinent part, that the Construction Industry Licensing Board is authorized to revoke, suspend or deny the issuance or renewal of the certificate or registration of a contractor and impose an administrative fine not to exceed $5,000.00, place a contractor on probation, or reprimand or censure a contractor if a contractor, or if the business entity or any general partner, officer, director, trustee or member of a business entity for which the contract is a qualifying agent, is found guilty of F.S. 489.129(1)(d), (j), and (m).

       
       

   15. The City of Miami Beach has adopted the South Florida Building Code (Code). Chapter 3, subsection 301.1(e) of the code requires Respondent to obtain a permit to install fixtures such as the six (6) foot stainless-steel hood that he installed to the ceiling of the Cardoza Hotel. Respondent was issued a stop-work order on June 4, 1987 for working without a permit and another stop-work order on June 5, 1987 for failing to obtain a permit and for failure to have a certificate of competency for the employees on the job-site. The June 5, 1987 stop-work order noted that the order issued on the prior day was ignored and that the range hood was installed notwithstanding the issuance of that stop-work order. Respondent thereby engaged in acts and/or conduct

amounting to a willful or deliberate disregard and violation of the applicable building codes or laws of the State of Florida. Respondent thereby violated section 489.129(d), Florida Statutes. By so doing, Respondent engaged in misconduct in the practice of contracting in violation of section 489.129(m), Florida Statutes, and failed, in a material respect, to comply with the provisions of sections 489.129 in violation of section 489.129(1)(j), Florida Statutes.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that:

1. Respondent's certified air conditioning contractor's license be placed on probation for a period of twelve (12) months.

   
   

2. Petitioner imposed an administrative fine against Respondent in the amount of one thousand dollars ($1,000.00) payable to Petitioner within 30 days of the filing of its Final Order.

DONE and ORDERED this 31st day of October, 1988, in Tallahassee, Florida.

JAMES E. BRADWELL

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 31st day of October, 1988.

ENDNOTE

1/ Chester Just is licensed to practice law in New Jersey.

COPIES FURNISHED:

Lee Sims, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0705

James P. Durkin, Esquire 2605 East Atlantic Boulevard Pompano Beach, Florida 33062

Bruce D. Lamb General Counsel

130 North Monroe Street Tallahassee, Florida 32399-0750

Fred Seely, Executive Director Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0705

Docket for Case No: 87-005399

Orders for Case No: 87-005399