STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL REGULATION, )
)
Petitioner, )
)
v. ) CASE NO. 89-1611
)
ARWOOD HOLLINS, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, an administrative hearing was held before Daniel M. Kilbride, Hearing Officer with the Division of Administrative Hearings on June 27, 1989, in Orlando, Florida. The following appearances were entered:
APPEARANCES
For Petitioner: John E. Jordan, Esquire
Woolfolk, Estes and Keough, P.A.
131 Park Lake Street Post Office Drawer 3751 Orlando, Florida 32802
For Respondent: Richard A. Howard, Esquire
Brownlee and Jacobs, P.A. Post Office Box 1448 Tavares, Florida 32778
STATEMENT OF THE ISSUES
Whether Respondent is guilty of failing to discharge his supervisory duties as a qualifying agent, in violation of Section 489.11 and 489.105(4), Florida Statutes.
Whether Respondent is guilty of making misleading, deceitful or untrue representations, in violation of Sections 489.129(1)(c) and 455.227(1)(a), Florida Statutes.
Whether Respondent is guilty of gross negligence, incompetence, misconduct, fraud or deceit in the practice of contracting, in violation of Section 489.129(1)(m), Florida Statutes.
Whether Respondent is guilty of exceeding the scope of his state registered mechanical contractor's license, in violation of Section 489.117(2), Florida Statutes.
PRELIMINARY STATEMENT
Respondent is a mechanical contractor licensed by Petitioner. Charged by Petitioner in an Administrative Complaint with numerous violations of Chapter
489 and 455, Florida Statutes, the Respondent requested a formal administrative hearing. This proceeding followed.
At the hearing, Petitioner presented the testimony of the Respondent, Arwood Hollins, Robert Hollins, Robert Adams, William Pierce, and Janis Chamberlin. Petitioner's Exhibits 1 through 10 were received into evidence. Respondent testified on his own behalf and presented the testimony of his son, Robert Hollins. Respondent's Exhibits 1 and 2 were received into evidence.
Both parties were advised to file their proposed recommended orders within
15 days of the filing of the transcript. The transcript of the proceedings was filed with the Clerk of the Division on July 13, 1989. Petitioner filed its proposed recommended order on July 27, 1989 and it was received by the Division on July 31, 1989. Respondent filed his proposed recommended order on August 4, 1989, and it was received by the Division on August 7, 1989. Petitioner filed a Motion to Strike Proposed Findings of Respondent on August 9, 1989 and Respondent filed his response to the motion on August 14, 1989. After review of the motion and response, Petitioner's motion is GRANTED and Respondent's Proposed Findings of Fact and Conclusions of Law are struck and shall not be considered.
Petitioner's proposals have been considered and have been incorporated where appropriate. Specific rulings are addressed in the Appendix attached to this order.
FINDINGS OF FACT
Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts were found:
Respondent, Arwood Hollins, in 1986 held a mechanical contractor's license (RM0016479) with the State of Florida. Respondent owned a 50% interest in All Florida Air Conditioning, Refrigeration, Heating and Ventilation, Inc. (hereinafter referred to as "All Florida"), a Florida corporation.
The Respondent has resided in Lake Jem, Lake County, Florida for approximately 15 years. The main offices of All Florida are located in Lake Jem, Lake County, Florida, with a branch office in Orlando, Orange County, Florida.
In 1986 the Respondent was the sole qualifying agent for All Florida.
Pursuant to the Respondent's mechanical contractor's license with the State of Florida, he is required to comply with all local license requirements.
Respondent has never held nor applied for a license in Seminole County to practice mechanical contracting.
The Respondent holds a certificate of competency in Lake and Orange Counties, and inactive certificates for Dade and Sumter Counties, but does not hold a certificate in Seminole County.
In 1986 All Florida advertised in the Donnelly Directory for United Telephone (Exhibit 2) in the Central Florida area. Said ad depicts All Florida as being a repair specialist.
Complainant, Janis Chamberlin, resides at 105 Rockingham Court, Longwood, Seminole County, Florida. All work performed by All Florida on the Complainant's air conditioning system was performed at the Rockingham Court address in Seminole County, Florida.
Respondent testified that although he has lived in Central Florida for
15 years, he is unfamiliar with Seminole County and practices only in Lake and Orange Counties.
Seminole County has enacted an ordinance (Number 83-15) which requires that before any person can be issued a license to practice mechanical contracting in Seminole County, they must meet certain requirements.
Between January 28, 1986 and August 3, 1986, Robert Hollins, the son of Respondent and an employee of All Florida, traveled to the Complainant's house at 105 Rockingham Court, Longwood, Seminole County, Florida on at least six (6) occasions to perform inspections and/or repairs on the Complainant's air conditioning and heating equipment. Five (5) of the visits, between March 17, 1986 and August 3, 1986, involved problems with the cooling of the air conditioning system.
Complainant, Janis Chamberlin, contacted All Florida after she found the company in a Yellow Page and in the Donnelly Directory phone book in late January, 1986 regarding problems with her heating system. Robert Hollins travel led to Mrs. Chamberlin's house at 105 Rockingham Court in Longwood, Seminole County, Florida and made repairs to a circuit breaker.
Mrs. Chamberlin again contacted All Florida on or about March 17, 1986 due to a problem with her air conditioning unit. Mrs. Chamberlin spoke with Robert Hollins and gave him directions to her house. Mr. Hollins did not ask if she resided in Seminole County.
Robert Hollins advised Mrs. Chamberlin that there was an extensive freon leak in her air conditioning unit and that her ECU unit on the air conditioner would need to be disconnected to insure that all the leaks would be stopped. Thereafter, Robert Hollins assured Mrs. Chamberlin that all of the leaks had been taken care of. She was charged $245.45 for the visit for labor and materials, which she paid.
Approximately two months later, on or about May 19, 1986, Janis Chamberlin heard noises from the air conditioning unit. Robert Hollis was called and he traveled to Mrs. Chamberlin's house and charged her a total of
$28.00 for the visit and the air conditioning unit stopped making noises.
Approximately two months later, the same air conditioning unit was failing to cool properly and Mrs. Chamberlin again called All Florida. Robert Hollis traveled to the Chamberlin residence and advised that the condenser fan motor had quit working and needed to be replaced. Mrs. Chamberlin authorized the work and thereafter Robert Hollins assured her that he had replaced the condenser fan motor with a new one. Mrs. Chamberlin was charged a total of
$248.50 for the new fan motor, other materials and labor.
On August 3, 1986, Mrs. Chamberlin noticed a loud screeching noise coming from the air conditioning unit. She called Robert Hollins who arrived at Mrs. Chamberlin's house on the same day. He left the Chamberlin residence before telling Mrs. Chamberlin what was wrong with the unit. Mrs. Chamberlin noticed that the noise she had heard earlier had stopped temporarily. By approximately 9:00 p.m. on the same day, the noise returned and she noticed that there was a decrease in the cooling of the unit. By the following morning, the air conditioning unit was not working.
Mrs. Janis Chamberlin contacted All Florida on August 4, 1989. Mrs. Chamberlin advised Robert Hollins that if he would not work on the unit that day, she would have to get someone else to do the job and to call her by 5:00 pm. that day to let her know. Robert Hollins did not call or come to her home by 5:00 p.m. Mrs. Chamberlin called Four Seasons Air Conditioning and Heating, Inc. to repair her air conditioning unit.
William Pierce, an employee of Four Seasons Air Conditioning and Heating, Inc. in 1986, serviced the air conditioning unit at the Chamberlin residence on August 5, 1986. Mr. Pierce inspected the unit and found that the crank shaft was wrung off inside the compressor. There was a refrigerant leak and oil was visible all over the front of the condenser coil. Also, the fan motor was running backwards.
Mr. Pierce's inspection of the condenser fan motor indicated rust around the shaft and fan hub.
According to Mr. Pierce, if a fan motor is put on backwards, or rotates in the wrong direction, this would cause the head and back pressure to go up and could eventually internally overload the compressor. It did not do so in this instance, since the crankshaft was wrung off and the compressor froze up.
Janis Chamberlin took pictures of the air conditioning unit (Composite Exhibit 10). These photographs were taken after William Pierce had pulled apart the air conditioning unit in preparation for installation of a new unit. The fan motor appears to show rust.
The entire air conditioning unit in question was replaced by Four Seasons.
Janis Chamberlin requested in writing that All Florida refund her the money paid to All Florida for repairs made to the air conditioning unit in the total amount of $516.95. The letter was dated August 12, 1986 and requested the refund by August 18, 1986. All Florida did not refund the monies.
The Respondent never traveled to Mrs. Chamberlin's house to inspect the air conditioner in question or discuss with Mrs. Chamberlin the problems with the air conditioning unit.
Robert H. Adams was accepted as an expert witness in the area of service of residential units in air conditioning and the responsibilities of a qualifying agent. Robert H. Adams is a certified residential contractor and he held a City of Jacksonville Master Heating and Air Conditioning license since approximately 1968.
A qualifying agent is responsible for the conduct and supervision of the business, the supervision of it and the actions of its employees.
The test for a freon leak in a residential unit is relatively simple. This includes looking for oil around any of the fittings, tubes and condensers. It normally takes only one service call to repair leaks. However, it is not unusual for a service technician to make more than one service call in order to locate all of the leaks. If a leak cannot be repaired, the serviceman should tell the client that it is not repairable.
Unless a fan motor was exposed to chemicals or salt water, there would be no reason in a three week time span as to why it would rust. If an employee of a qualifying agent told a customer he was installing a new motor which turned out to be untrue, this would be the equivalent of deceit and fraud.
Answering complaints from a customer is a distinct responsibility of a qualifying agent.
If the fan motor installed in an air conditioning unit similar to the one installed at the Chamberlin residence has an improper rotation, this would affect the air conditioning unit. This would include causing an increase in pressures, inadequate cooling and could damage the compressor.
During the period between March and July, 1986 and following three service calls, it is incompetence to fail to find freon and oil leaks.
The Respondent received a minimum of three phone calls from his son, Robert Hollins, on July 15, 1986 concerning repairs needed to Mrs. Chamberlin's air conditioning unit. The Respondent spoke with his son, Robert Hollins, on May 19, 1986 concerning the service call at the Chamberlin residence.
Robert Hollins in 1986 did not have a license to practice mechanical engineering in Seminole County, Florida and did not hold any license with the State of Florida other than a driver's license.
In 1986, Robert Hollins resided in Leesburg, Florida, but was the sole employee at All Florida's branch office in Orlando, Florida. Although Robert Hollins would drive through Seminole County to and from work each day, he stated he was not familiar with Seminole County.
Respondent testified that he had instructed his son to use a map in order to avoid performing any work in Seminole County, Florida.
Robert Hollins did not examine a map to verify if the Chamberlin residence was in Seminole County, nor did he ask Mrs. Chamberlin which county she resided in.
Every time Robert Hollins went to the Chamberlin residence for a service call, he checked in with the Respondent.
On July 15, 1986, Hollins inspected the air conditioning unit at the Chamberlin residence and advised Mrs. Chamberlin she needed a new fan motor.
Robert Hollins first obtains approval from Respondent before any purchase of equipment or machinery is made. On July 15, 1986, he obtained permission to purchase a new fan motor for the Chamberlin air conditioning unit.
That same day Robert Hollins installed a new fan motor at the Chamberlin residence.
The fan motor Hollis installed on July 15, 1986 had a 90 day warranty. All Florida warrants its work under the manufacturer's warranty.
Subsequently, Chamberlin advised Hollins that the air conditioning unit was not working. He replied that if she had any problems with the unit he would rather not come out and work on it.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings. Sections 120.57(1), Florida Statutes.
The Construction Industry Licensing Board may revoke, suspend or deny the issuance or renewal of a certificate or registration of a contractor and impose an administrative fine not to exceed $5,000.00, place the contractor on probation, or reprimand or censure the contractor if the contractor, or if the business entity or any general partner, officer, director, trustee or member of the business entity for which the contractor is the qualifying agent, is found guilty of the following: making misleading, deceptive, untrue or fraudulent representations, Sections 489.129(1)(c) and 455.227(1)(a), Florida Statutes; failing to discharge supervisory duties as a qualifying agent, Sections 489.1290(1)(j), 489.119 and 49.105(4), Florida Statutes; fraud or deceit or of gross negligence, incompetency, or misconduct in the practicing of contracting Section 489.129(1)(m), Florida Statutes; and by exceeding the scope of his state registered mechanical contractor's license by failing to comply with local licensing requirements in violation of Section 489.117(2), Florida Statutes.
A "qualifying agent" is defined as:
A person who possesses the requisite skills, knowledge and experience, and has the responsibility, to supervise, direct, manage and control the contracting activities of the business entity with which he is connected; who has the responsibility to supervise, direct, manage, and control construction activities on a job for which he has obtained the building permit; and whose technical and personal qualifications have been determined by investigation and examination as provided in this act, as attested by the department.
Section 489.105(4), Florida Statutes. (emphasis supplied)
Under Section 489.119, Florida Statutes, a corporation cannot engage in the practice of contracting in the State of Florida unless an individual acts as the qualifying agent for said corporation. All Florida entered into a contract for the repairs on the Complainant, Janis Chamberlin's, residential air conditioning unit between March 17, 1986 and July 15, 1986.
Petitioner has the burden of proving by clear and convincing evidence that Respondent committed the acts alleged. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).
The Respondent, Arwood Hollins, was the sole qualifying agent of All Florida at all material times in question and had the responsibility to supervise, direct, manage and control the activities of All Florida and Robert Hollins as it related to the service calls and work performed at the Chamberlin residence on March 17, 1986, May 19, 1986 and July 15, 1986. Alles v. Department of Professional Regulation, 423 So.2d 624 (Fla. 5th DCA 1982) and Gatwood v. McGee, 475 So.2d 720 (Fla. 1st DCA 1985).
Respondent, Arwood Hollins, is a registered mechanical contractor (#RM0016479) and held himself and All Florida out to be a repair specialist to Complainant, Janis Chamberlin.
Seminole County, Florida, requires that before a person can practice mechanical contracting in Seminole County, they must make application for and be issued a license, also known as a Certificate of Competency for Seminole County. (Ordinance #83-15, Seminole County, Florida. Enacted May 10, 1983).
Neither the Respondent, individually, nor any employee of All Florida held a license or certificate of competency to practice mechanical contracting in Seminole County at any time material hereto.
Failing to Discharge Supervisory Duties as Qualifying Agent.
As the qualifying agent for All Florida, Respondent is responsible to supervise, direct and control the contracting activities of All Florida and its employees. Section 489.105(4), Florida Statutes. See: Alles vs. Department of Professionals Regulation, supra, Gatwood, supra, and Hart v. Department of Professional Regulation, 444 So.2d 997 (Fla. 1st DCA 1983). The defense that that qualifying agent was not involved with a particular project has been specifically rejected by the First and Fifth District Courts of Appeal in the aforesaid cases. In this case, the Respondent had personal involvement in the work performed at the Chamberlin residence. The Respondent and his son, Robert Hollins, were in close telephone contact on all service calls. As it relates to the July 15, 1986 service call, the Respondent had talked to his son several times by telephone, approved the installation of a new fan motor and contacted R & R Supply Company concerning the purchase of a new motor.
The Complainant, Janis Chamberlin, forwarded a letter on August 12, 1986 to Robert Hollins at the Lake Jem, Florida address and related the problems that she had experienced with All Florida's service of her air conditioning unit. In that letter, she also requested a refund of the monies paid. The Respondent did not contact Mrs. Chamberlin to discuss the problems, or come out to her house to inspect the air conditioning unit. The failure of the Respondent to discharge his responsibility to supervise, direct, manage and control the contracting activities of All Florida by responding to Mrs. Chamberlin's verbal and written complaints to All Florida, failure to insure the repairs were completed properly and failure to honor the guarantee on All Florida's work, was a violation of Section 489.119 and 489.105(4), Florida Statutes and subjects the Respondent to discipline.
Misleading, Deceitful or Untrue Representations
Robert Hollins performed all the work at Mrs. Chamberlin's home, was an employee of All Florida, pursuant to Section 489.129, Florida Statutes and case law interpreting said statute as cited herein. Robert Hollins was the sole employee of the Orlando, Florida office of All Florida. Therefore, if Robert Hollins made misleading, deceitful or untrue representations to Janis
Chamberlin, Arwood Hollins, as qualifying agent of All Florida, is subject to discipline under Section 489.129, Florida Statutes.
The evidence is not clear and convincing that Robert Hollins made misleading, deceitful or untrue representations in violation of Section 455.227(1)(a), Florida Statutes as alleged by the Department. Therefore, Arwood Hollins is not guilty of violating this section of the law.
Gross Negligence, Incompetence, Misconduct, Fraud or Deceit
It is incompetence to fail to find and correct freon and oil leaks following three service calls on an air conditioning unit, if they can be corrected at all. This unit had a freon gas leak that was clearly evident. A freon leak in a residential unit is relatively simple to test, and Respondent was incompetent after the third service call by failing to tell Mrs. Chamberlin that he had either not repaired all of the leaks or that the leaks were not repairable.
At the time Mr. Pierce examined the air conditioning unit in question in early August, 1986, he noted that the fan motor was blowing the wrong way. This is not a sophisticated test. By simply putting one's hand over the air conditioning unit, it can be determined whether the fan is pushing or pulling the air. Mr. Pierce also found that the crank shaft had wrung off inside the compressor and that there was a refrigerant leak that was visible all over the front of the condenser coils. If a fan motor is put in backwards, this would cause the head and back pressure to go up and would internally overload the compressor. The evidence is convincing that Respondent's employee installed the wrong fan motor or installed it in the wrong manner.
Failure to fix the freon leaks and installing the wrong fan motor into the unit, adversely affected the operation of the air conditioning unit and amounts to incompetence, in violation of Section 489.129(1)(m), Florida Statutes.
Failing to Secure Local Licenses
Under Ordinance 83-15 Seminole County, Florida (enacted May 30, 1983), in order to practice mechanical construction in Seminole County, a person must be licensed with the County. A review of the ordinance clearly shows that an individual must make application before securing a license, which was also testified as being a Certificate of Competency. This is required even if reciprocity with another County was available. Neither the Respondent nor Robert Hollins held a Certificate of Competency with Seminole County, Florida. The Respondent did hold such licenses with Lake and Orange Counties.
Under Section 489.117(2), Florida Statutes, the Respondent is allowed to engage in contracting only in the counties where he has complied with local licensing requirements. The Respondent exceeded the scope of his state mechanical contracting license by failing to meet those local licensing requirements.
A mechanical contractor is defined as:
Any person whose services are unlimited in the execution of contracts requiring the experience, knowledge, and skill to install, maintain, repair, fabricate, alter, extend or design, when not prohibited by law, central
air conditioning, refrigeration, heating, and ventilating systems... Section 489.105(3)(i), Florida Statutes. (emphasis added)
The term "mechanical contractor" is not limited to those situations which involve the requirement of pulling a building permit. "Mechanical contractor" includes the function of repairing or maintaining an air conditioning unit, such as was done in the case before this tribunal.
The Respondent has been a resident of Central Florida for 15 years, and resides in Lake Jem, Lake County, Florida. According to the map submitted into evidence, Mrs. Chamberlin's residence is clearly located in Seminole County, Florida. There is no excuse as to why the Respondent failed to verify whether the Chamberlin residence was in Seminole County or not.
The failure to obtain a license to practice mechanical contracting in Seminole County on the part of the Respondent is a violation of Florida law.
There was no evidence that Respondent has been previously disciplined in unrelated cases by the Construction Industry Licensing Board.
The Construction Industry Licensing Board rules provide in part that the following guidelines shall be used in disciplinary cases, absent aggravating or mitigate circumstances:
Rule 21E-17001, Florida Administrative Code
(2) 489.117: Contracting in a city or county not licensed in first violation, reprimand (See: Rule 21E-17.004, Florida Administrative Code)
(19) 489.129(1)(m): Gross negligence, incompetence, and/or misconduct, fraud or deceit.
(b) Causing monetary harm or other harm to licensee's customer, or physical harm to any person. First violation $500 to $1,500 fine.
Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that:
Respondent be found guilty of failure to discharge supervisory duties as a qualifying agent, violating Sections 489.119 and 489.105(4), Florida Statutes and that Respondent be reprimanded.
Respondent be found not guilty of making misleading, deceitful, or untrue representations.
Respondent be found guilty of incompetence, in violation of Section 489.129(1)(m), Florida Statutes, which caused monetary harm to the licensee's customer and that an administrative fine be imposed in the amount of $500.
Respondent be found guilty of contracting in a county without a local license, in violation of Section 489.117, Florida Statutes, and that Respondent be reprimanded.
DONE and RECOMMENDED this 21st day of September, 1989, at Tallahassee, Florida.
DANIEL M. KILBRIDE
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 1989.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-1611
The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the Petitioner.
The following Findings of Fact are Accepted:
Paragraphs 1,2,3,4(in part) ,5,6,7,8,9,10,11,12,13,14,15(in part), 16,17,
(in part),18,19,20,21,24,25,26,(in part),27,28,29,30(in
part),31,32,33,34,35,36,37,38,39(in substance),40 The following Findings of Fact are Rejected:
Paragraphs 22 and 23 - uncorroborated hearsay Pargraph 15(in part) - not relevant
Paragraph 17(in part) - witness cannot give expert opinion testimony, since he was not qualified to testify as an expert
COPIES FURNISHED:
Fred Sealy Executive Director
Construction Industry Licensing Board Post Office Box 2
Jacksonville, Florida 32201
Kenneth E. Easley General Counsel
Department of Professional Regulation 1940 North Monroe Street
Tallahassee, Florida 32399-0792
John E. Jordan, Esquire
Wool folk, Estes and Keough, P.A.
131 Park Lake Street Post Office Drawer 3751 Orlando, Florida 32802
Richard A. Howard, Esquire Brownlee and Jacobs, P.A. Post Office Box 1448 Tavares, Florida 32778
| Issue Date | Proceedings |
|---|---|
| Sep. 21, 1989 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 21, 1990 | Agency Final Order | |
| Sep. 21, 1989 | Recommended Order | Contractor failed to supervise job Employee not misleading; incompetence to fail to detect leaks; improper to fail to obtain county licsense; fine. |
CONSTRUCTION INDUSTRY LICENSING BOARD vs. GREGORY S. KIJANKA, 89-001611 (1989)
CONSTRUCTION INDUSTRY LICENSING BOARD vs. CHARLIE S. HIERS, 89-001611 (1989)
CONSTRUCTION INDUSTRY LICENSING BOARD vs. STEPHEN G. BLUME, 89-001611 (1989)
CONSTRUCTION INDUSTRY LICENSING BOARD vs. FRANK W. HUDGENS, 89-001611 (1989)
CONSTRUCTION INDUSTRY LICENSING BOARD vs. NEAL O'CONNER, 89-001611 (1989)
