Chavis, duly designated Hearing Officer of the Division of Administrative Hearings on April 14, 1983, in Ft. Walton Beach, Florida.
For Petitioner: John O. Williams, Esquire
For Respondent: Harold F. Peek, Jr., Esquire
By administrative complaint filed November 23, 1982, the Department of Professional Regulation charged the Respondent, Hoyt Page with multiple violations of Chapter 489, Florida Statutes. Specifically, Mr. Page was charged with a violation of Section 489.129(1)(g) in that he acted in a capacity of a contractor in a name other than that stated in his registration. The Respondent was also charged with violating Section 489.129(1)(j), Florida Statutes (1979) , in that he failed to comply with the registration provisions of Chapter 489 by failing to qualify Page Services. Respondent was also charged with violating Section 489.129(1)(i) by performing work not covered by his registration as prohibited by Section 489.117(2), Florida Statutes (1979). By failing to obtain building permits and the proper license from the City of Niceville, the Respondent was alleged to have violated Section 489.129(1)(d), Florida Statutes (1979). Lastly, Respondent was charged with gross negligence, incompetency, or misconduct in the practice of contracting in violation of Section 489.129()(m), Florida Statutes (1979).
At the formal hearing, the Petitioner called as witnesses Mr. Don Baccadutre, Carl Cain, Lillian Owens Mark, S. L. Giddings, and Agnes Webb.
Respondent testified on his own behalf. Petitioner offered and had admitted six exhibits, and the Respondent offered and had admitted three exhibits.
Counsel for the Respondent and counsel for the Petitioner submitted proposed findings of fact and conclusions of law for consideration by the undersigned Hearing Officer. To the extent that those proposed findings of fact and conclusions of law are not adopted in this order, they were considered by the Hearing Officer and determined to be irrelevant to the issues in this cause or not supported by the evidence.
The following facts (a) through (r) are found based upon a stipulation by and between counsel for Petitioner and counsel for Respondent as to the truth of these facts:
Respondent is a registered general con- tractor having been issued License No. RG0019039. Respondent's last known address is c/o Page Construction Company,
402 Davenport Drive, Valparaiso, Florida 32580.
At all times material herein, Respondent was the qualifying agent for Page Con- struction Company.
In August, 1980, Lillian Mark contacted the Respondent for advice as to how to get the central air conditioning system at her residence into operation.
On August 15, 1980, Respondent inspected the old air conditioning unit and recommended that Lillian Mark have a new air conditioning system installed in
the residence.
On August 20, 1980, Respondent, who was doing business as Page Services, orally contracted to install a new Mammoth water-
to-air heat pump at Lillian Mark's residence, located at 408 West Cedar Street, Niceville, Florida.
Lillian Mark paid to Respondent a $1,600 down payment on the system, by check payable to Page Services.
Respondent immediately started work on the installation and completed the work on August 23, 1980.
On August 23, 1980, Lillian Mark gave Respondent a check in the amount of $435 payable to Page Services. A portion of the
$435 was to pay for repairs to the duct system.
The only license held by Respondent was a general contractor's license. At the time Respondent performed the work for Lillian, he was doing business as Page Services.
The Mammoth heat pump installed by Respon- dent failed to heat the residence during cold weather. Further, the system required a large quantity of water to operate, which resulted in excessive water utility bills.
Respondent agreed to remove the Mammoth water-to-air unit and replace it with
a Ruud Air Conditioning System. However, the Respondent failed to install the new system properly, and water leaked from
the unit causing property damage to Lillian Mark's residence. Further, the new Ruud unit failed to operate as installed.
In May, 1980, Agnes Webb contacted Respon- dent for advice as to what work was required to make the air conditioning system in her residence operable.
Respondent inspected the old air conditioning unit, and recommended that Agnes Webb have a new air conditioning system installed in the residence.
On or about May 21, 1980, Respondent orally contracted with Agnes Webb to install a Ruud heat pump at her residence located at 1008 Bayshore Drive, Niceville, Florida.
Respondent installed the unit and Agnes Webb paid Respondent $1,700 for the work.
When Respondent performed the work for Agnes Webb, he had only his general contractor's license.
Respondent has made full restitution to Lillian Mark for all costs incurred by her as a result of work performed by Mr. Page.
Respondent has made full restitution to Agnes Webb for all costs incurred by her as a result of work performed by Mr. Page.
Respondent failed to obtain a permit for the installation of the air conditioning system at the Mark residence.
Respondent failed to obtain a permit for the installation of the air conditioning system at the Webb residence.
Niceville City Ordinance 309 (1973) required that a permit be obtained for the installations at the Mark and Webb residences.
The Respondent installed an air handler unit inside and the heat pump unit outside at the Mark residence. He hired another person to do the electrical work.
Following the Mark installation, the air conditioning function worked fine but the unit would not heat. The unit used an excessive amount of water. Respondent, at Ms. Mark's request, replaced the heat pump unit with a totally electric Ruud unit. The second unit worked fine but leaked large amounts of water and soaked the carpet. The Respondent then paid two men to install a third unit in the Mark's home. The installation of the third unit required additional work because of the following problems: (1) the refrigeration lines
were spliced and of two different sizes, (2) the electrical lines were spliced and had to be replaced, and (3) the control circuits had to be completely redone. The cost of these repairs was $349.
The Respondent replaced the thermostat and entire air conditioning unit, and did some duct work at the Webb residence. The thermostat was not the proper type of thermostat for the unit installed and the outside duct work was not properly covered to protect it from weather.
At the time of the Mark and Webb installations, the Niceville City Ordinance No. 304 (-1974) required registration of general contractors, electrical contractors, plumbing contractors, and mechanical contractors. The Respondent was not registered with the City of Niceville. In addition to his state general contractor's license, the Respondent holds an Okaloosa County occupational license as a general contractor and an occupational license with the City of Valparaiso, Florida, as an electrical contractor.
At no time did Respondent qualify Page Services to engage in the business of contracting in the State of Florida.
Respondent was the contractor who was responsible for the entire installation at the Mark and Webb residences. He was aware certain licenses and permits were required by the City of Niceville. There was no evidence that Respondent checked with any City of Niceville official to determine if a permit was required for installation of air conditioning systems. Respondent had performed work on other jobs for other contractors where permits had been obtained for this type work. The Respondent was also aware that if he put in a new air conditioning system, including duct work, he would need a permit. He also understood that if he ran a new circuit, he needed a permit. Respondent understood that the work performed for Agnes Webb and Lillian Mark was replacement of a system, not repair of a system.
Respondent did not check with any official of the City of Niceville to determine if he needed a particular license to perform air conditioning work in the City of Niceville. He was not personally aware that such a license was required. Since the filing of this action, Respondent has registered to take the examination in Okaloosa County for a license to do air conditioning repair work.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this action.
Florida Statute 489.129 (1979), empowers the Construction Industry Licensing Board to suspend, revoke, or otherwise discipline a licensed contractor if he is found to be guilty of any violation listed in Section 489.129.
Florida Statute 489.129(1)(j)(1979), provides that a contractor's license may be disciplined for failure in any material respect to comply with the provisions of Chapter 489, Florida Statutes. Section 489.119(2) and (3), Florida Statutes (1979), provide:
(2) If the applicant proposes to engage in contracting as a partnership, corpora- tion, business trust, or other legal
entity, the applicant shall apply through a qualifying agent; the application shall state the name of the partnership and of its partners, the name of the corporation and of its officers and directors, the
name of the business trust and its trustees, or the name of such other legal entity and its members; and the applicant shall fur- nish evidence of statutory compliance if
a fictitious name is used. Such applica- tion shall also show that the qualifying agent is legally qualified to act for the business organization in all matters con- nected with its contracting business and that he has authority to supervise con- struction undertaken by such business organization. The registration or certification, when issued upon applica- tion of a business organization, shall
be in the name of the qualifying agent, and the name of the business organiza- tion shall be noted thereon.
(3)(a) The qualifying agent shall be certified or registered under this act in order for the business organization to be certified or registered in the category of the business conducted for which the qualifying agent is certified or registered. If any qualifying agent ceases to be affiliated with such
business organization, he shall so inform the department. In addition, if such qualifying agent is the only certified
or registered individual affiliated with the business organization, the business organization shall notify the department of the termination of the qualifying agent and shall have a minimum of 60 days from the termination of the qualifying agent's affiliation with the business organiza- tion in which to employ another qualifying agent. The business organization may
not engage in contracting until a qualify- ing agent is employed.
(b) The qualifying agent shall inform
the department in writing when he proposes to engage in contracting in his own name or in affiliation with another business organization, and he or such new business
organization shall supply the same informa- tion to the department as required of applicants under this act.
The evidence established that the Respondent was doing business in the name "Page Services" at the time he contracted with and performed work for Agnes Webb
and Lillian Mark. The Respondent has never qualified "Page Services" as required by Florida Statute 489.119 (1979), and is, therefore, guilty of a violation of Florida Statute 489.129(1)(j)(979), as alleged in Count 1 of the Administrative Complaint.
The Respondent at the time of contracting with and performing work for Agnes Webb and Lillian Mark, was the qualifying agent for Page Construction Company and had, in fact, qualified Page Construction Company. By doing business in the name Page Services, the Respondent violated Florida Statute 489.129(1)(g) which provides as a disciplinary ground:
(g) Acting in the capacity of a contractor under any certificate or registration issued hereunder except in the name of the certifi- cate holder or registrant as set forth on the issued certificate or registration, or in accordance with the personnel of the certificate holder or registrant as set forth in the application for the certifi- cate or registration, or as later changed
as provided in this act.
Respondent is, therefore, guilty of a violation of 489.129(1)(g) as alleged in Count I of the Administrative Complaint.
Respondent is also charged with violating Section 489.129 (1)(j) by contracting outside the area of his registration. At the time Respondent contracted with and performed work for Lillian Mark and Agnes Webb, the only license he held with the State of Florida was as a registered general contractor. With regard to registration as a contractor, Florida Statute 489.117(1) and (2)(1979) , provide:
Any person engaged in the business of contracting in the state shall be registered in the proper classification, unless he is certified. Any person entering the business of contracting shall be registered prior to engaging
in contracting, unless he is certified. To be initially registered, the applicant shall submit the required fee and file evidence, in a form provided by the department, of holding a current local occupational license issued by any municipality, county, or development district for the type of work for which registration is desired and evidence of successful compliance with the local exam- ination and licensing requirements, if any, in the area for which registration
is desired. No examination shall be required for registration.
Registration allows the registrant to engage in contracting only in the counties, municipalities, or development districts where he has complied with
all local licensing requirements and only for the type of work covered by the registration.
Florida Statute 489.105 defines various types of contractors and includes three different levels of air conditioning contractors. A class "A" and class "B" air conditioning contractor may install central air conditioning systems and a class "C" air conditioning contractor is limited to the servicing of air conditioning and heating systems.
Section 489.113 (3) provides:
(3) A contractor shall subcontract the electrical, mechanical, plumbing, roofing, sheet metal, and air conditioning work
for which a local examination for a certificate of competency or a license
is required, unless such contractor holds a state certificate of competency or license of the respective trade category, as required by the appropriate local authority. However, a general building, or residential contractor shall not be required to subcontract the installation of shingle roofing materials. Further,
a general contractor, on new site develop- ment work, site redevelopment work,
mobile home parks, and commercial prop- erties, shall not be required to subcon- tract the construction of the main sanitary sewer collection system and the water distribution system, not including the continuation of utility lines from the mains to the buildings. Further, as to mobile home parks, the general contractor shall not be required to subcontract the continuation of utility lines from the mains, and the continuations are to be considered a part of the main sewer col- lection and main water distribution systems. This subsection does not apply
if the local authority does not require a certificate of competency or license
for such trade. Nothing in this act shall be construed to require the subcontracting of asphalt roofing shingles.
When read together, Sections 489.105, 489.113, and 489.117, Florida Statutes (979) , make it clear that a general contractor's license does not include the installation of central air conditioning systems or units. The Respondent installed complete central heat and air conditioning units in the Webb and Mark residences. This type of work was not covered by his registration as a general contractor and he, therefore, has violated Florida Statute 489.117(2)(1979).
Respondent is, therefore, guilty of the violation of Section 489.129(1)(j)(1979), as alleged in Counts I and II of the Administrative Complaint.
Respondent is also charged with a violation of Section 489.129(1)(d), Florida Statutes (1979) , which provides as a ground for discipline:
Willful or deliberate disregard and violation of the applicable building codes or laws of the state or of any municipalities or counties thereof.
City of Niceville Ordinance No. 301 by incorporating Section 105.1 of the Southern Standard Mechanical Code required a permit for the installation of central heat and air conditioning systems in the City of Niceville. Respondent did not obtain permits for the Webb or Mark installations. The Respondent contends that he was not aware that a permit was required for these installations.
The evidence and stipulations of counsel established that Respondent knew that certain types of air conditioning work required permits. He was aware that if he ran a new electrical line, a permit is required. Be was also aware that if he installed a new air conditioning system, including duct work, a permit was required. He knew that the work he was doing at the Webb and Mark residences was replacement and not repair. He was also aware that, generally, permits are required for certain types of work. There was no evidence that Respondent made any effort to check with the Niceville building department. On each of the two jobs in question, he was clearly replacing all the major air conditioning components, the inside air handler, the outside compressor, and the thermostat. Such a major replacement coupled with Respondent's awareness that" permits were required for a new air conditioning system, as well as other types of work, required that Respondent inquire to determine if, in fact, a permit was required. With such knowledge, his failure to inquire constitutes a deliberate, willful disregard of the municipal ordinances of the City of Niceville.
The Respondent was likewise charged with deliberately and intentionally violating Niceville City Ordinance No. 304 by failing to obtain a license as required by that section. Respondent has no license at all with the City of Niceville. As a "registered" contractor, he is only authorized by Florida Statute 489.117 (1979) to perform work in "counties, municipalities, or development districts" where he has complied with all local licensing requirements. Respondent had obtained an occupational license from Okaloosa County and an occupational license from the City of Valparaiso. The City of Valparaiso and City of Niceville are both located within Okaloosa County and are contiguous cities. The evidence was insufficient to establish that Respondent knew or was aware that the City of Niceville required a particular license for the type of work performed at the Webb and Mark homes. Niceville City Ordinance
304 does not designate specifically the kind of work which requires the particular licenses listed in that ordinance. Although the evidence clearly established that Respondent had no license in the City of Niceville, and, therefore, violated Ordinance No. 304, the evidence did not show a deliberate or willful disregard and violation of the ordinance on the part of Respondent.
Count III of the Administrative Complaint charged Respondent with a violation of Florida Statute 489.129(1)(m) which provides as a grounds for discipline:
Upon proof and continued evidence that the licensee is guilty of fraud or deceit or of gross negligence, incom-
petency, or misconduct in the practice of contracting.
The evidence did not establish or show the violation as alleged in Count III, and, therefore, the Respondent should be found not guilty of Count III.
Penalty: License revocation is an extreme and drastic penalty which should be applied only in the most flagrant cases. Taylor v. State Beverage Department, 194 So.2d 321 (Fla. 2nd DCA 1967). In the instant case, the Respondent has demonstrated a general lack of knowledge and understanding of the licensing requirements and licensing restrictions under Florida and local law. He has as a result of this action now applied to Okaloosa County to take the examination to qualify for the service and repair of air conditioners in Okaloosa County. The Respondent made good faith efforts to satisfy Agnes Webb and Lillian Mark, and in the case of Lillian Mark, replaced her system twice at no extra charge when it failed to work properly the first time. He also made full restitution to Lillian Mark and Agnes Webb for the additional work required on the systems he installed. There was no evidence of any prior violations or charges against Respondent's license. The violations of which Respondent is guilty do not justify revocation. Accordingly, it is concluded that a six (6) month suspension and $500 administrative fine are warranted and appropriate in this case.
