vs. ) CASE NO. 86-3516
Respondent. )
Pursuant to the Order Granting Consolidation entered by the undersigned on June 16, 1987, a hearing was held before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings in Ft. Lauderdale, Florida, on June 22, 1987. The issue for consideration in both cases was whether the Respondent's license as a registered air conditioning contractor should be disciplined because of the alleged misconduct outlined in the two Administrative Complaints filed herein.
Petitioner: G. Vincent Soto, Esquire
On November 25, 1985, the Petitioner, Department of Professional Regulation, (DPR), on behalf of the Construction Industry Licensing Board, (CILB), through Fred Roche, then Secretary of DPR, filed an Administrative Complaint against the Respondent alleging that he had violated various sections of Florida Statutes, specifically Section 489.129 and 489.117 by being the subject of a disciplinary action by a county, by exceeding the scope of his state license, and by willful or deliberate violation of local law. Thereafter, Respondent signed an Election of Rights form in which he disputed the allegations against him and requested a formal hearing. On September 4, 1986, the file was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer and the case was originally assigned to Hearing Officer W. B. Thomas.
On March 30, 1987, DPR, through its new Secretary, Van B. Poole, filed a second Administrative Complaint against the Respondent alleging additional violations of Section 489.129 and this file was also forwarded to the Division for appointment of a Hearing Officer after Respondent again denied the allegations and requested a formal hearing. Pursuant to a Motion to Consolidate filed by counsel for Petitioner on June 11, 1987, the undersigned granted an Order of Consolidation and the hearing was set for June 22, 1987. This confirmed a prior Notice of Hearing which was entered by Mr. Thomas on March 26, 1987 wherein the case was set for that date. Respondent had been given notice of that hearing date by the March 26 Notice of Hearing.
At the hearing, Petitioner presented the testimony of Susan Marchitello, Office Manager for the Broward County Division of Building and Zoning Enforcement; William W. Whitsen, a mechanical contractor licensed in Broward County and formerly the Chairman of the Broward County Central Examining Board of Mechanical Technicians; Isabel Parra, a homeowner who contracted with Respondent for certain air conditioning work to be done to her house; Joyce Quinn, secretary to the Hollywood, Florida Building Official and custodian of licensing records for that city; Dr. Sam Eisenstein, a homeowner who also contracted with Respondent for air conditioning work; and Mr. Robert H. Adams, a state certified contractor qualified as an expert in mechanical contracting including air conditioning. Petitioner also introduced Petitioner's Exhibits 1 through 13. Respondent testified in his own behalf but produced no documentary evidence.
Subsequent to the hearing, Petitioner submitted proposed Findings of Fact which have been incorporated in this Recommended Order.
At all times pertinent to the issues herein, the Respondent, Denver Sammons, was licensed by the State of Florida as a registered air conditioning contractor, Class B, and Respondent qualified Denny's Air Conditioning Service under his license.
At the January 8, 1985 meeting of the Broward County Central Examining Board of Mechanical Technicians, (Board), the Board heard a complaint by Port Distributors, a local air conditioning supplier, to the effect that Mr. Sammons had submitted two checks to that company in August, 1982, both of which were returned for insufficient funds and that neither had been redeemed. The Board decided to notify the Respondent of the complaint against him and give him an opportunity to respond at the next regularly scheduled meeting of the Board which was held on March 12,1985.
At that Board meeting, at which Respondent was present, Mr. Julius M. Farinhouse, Jr., representative of Port Distributors, outlined its complaint against the Respondent detailing the circumstances surrounding the issuance of the bad checks and the need by the recipient to secure a judgment against the Respondent for the amount represented by the checks. There was evidence presented to the Board that these checks issued to Port Distributors were not the only checks written by Respondent that were not properly and promptly honored. Respondent testified before the Board regarding the circumstances surrounding the issuance of the checks and contested the seriousness of the offense alleging that when notified of the bad checks, he had reimbursed Port Distributors for the majority of the sum covered by the two dishonored checks, but this repayment was applied toward current accounts rather than in satisfaction of the bad checks, contra to the intention of the Respondent.
Having considered both the testimony presented by the complainants and the Respondent, the Board, that same date, March 12, 1985, nevertheless entered a Final Order finding that the passing of bad checks to Port Distributors by the Respondent constituted an act involving dishonesty, fraud, deceit, or lack of integrity in the operation of Respondent's contracting business; that he failed to make any effort to pay the outstanding bill owed to Port Distributors; and that this misconduct constituted a failure to comply with the standards of Section 9-7, Broward County Code. As a result, the Board ordered the Respondent's Broward County Certificate of Competency revoked that date. The Order of the Board made provision for Respondent to apply for reinstatement of his Certificate of Competency but no such application has ever been made.
For several years prior to the issuing of the Certificate of Competency by Broward County, Respondent had, under the old procedure, held a Certificate of Competency issued by the City of Hollywood, Florida and had, each year, renewed that Certificate upon the payment of a $30.00 fee. The Certificate issued by the city was renewed effective January 1, 1985 and reflected on its face, that it was good until December 31, 1985. However, when the Broward County Board of Mechanical Technicians began to issue its county-wide Certificate of Competency, all prior city-issued certificates were declared to be null and void. As a result, though Respondent continued to hold his Hollywood certificate, it was ineffective and he should not have been allowed to renew it by the city, since he was, at that time, covered by a county Certificate of Competency.
By action of the Board on March 12, 1985, Respondent's Board (County- wide) Certificate of Competency, which was the only valid certificate he held at the time, was revoked. Because of this revocation, Respondent was, thereafter, allowed to work as a journeyman for another Master Technician but could not contract in his own name or for his own business nor could he pull building permits from any county or city building office. Notwithstanding this, on or about August 12, 1985, Respondent entered into a contract acting as Denny's Air Conditioning, with Isabel Parra. This contract was to remove her old heating and cooling system in her residence at 2207 North 46th Avenue in Hollywood and to install a new unit to consist of a three ton gas furnace with air conditioning coil and condenser. Pursuant to the contract, Respondent did, in fact, remove the old unit and install a new one. However, he did not pull a building permit with the county or city building office and on August 26, 1985, officials of the City of Hollywood issued a Notice of Violation to Mrs. Parra reflecting that Denny's Air Conditioning installed a central air conditioning unit without permit and without possessing a valid contractor's license.
Mrs. Parra further contended that when she turned on the unit, the noise it made was extremely loud and not to her satisfaction. Evidence introduced by both Petitioner and Respondent, however, indicates that the Respondent installed the new unit exactly as the old unit had been installed. Mrs. Parra testified that she had not heard the old unit in its heating mode and therefore had no idea whether it made as much noise as the new unit did. In any event, she withheld some of the funds that were due Respondent until such time as he agreed to have someone come out and correct the problem. It has been several months since the parties agreed to this and Respondent still has not corrected the problem. He contends that the contractor with whom he arranged to correct Ms. Parra's problem has been unable to get with her since she works
during the days and is home only in the evenings. In any event, though not charged as a violation, it would appear that Respondent has failed to follow through on his work and on his commitment to complete an acceptable installation for Mrs. Parra.
Petitioner also alleges that on or about June 25, 1985, the Broward County Consumer Protection Board issued a cease and desist order to Respondent for representing that he was qualified to perform contracting work in Broward County without possessing local competency. No evidence was introduced, however, to satisfy or establish this allegation.
Because of the dispute between Mrs. Parra and the Respondent, and her dissatisfaction with the quality of his installation, she filed a complaint with the Board and on December 10, 1985, the Board again met and heard her testimony and that of Mr. Sammons. As a result, on December 20, 1985, the Board found that Respondent's contract with Mrs. Parra was based on a representation to her that he was a contractor when in fact the prior action of the Board had denied him this status. The Board further found that he failed to pull a permit for the installation of the unit in Ms. Parra's home and thereafter failed to comply with the warranty given to her under the contract executed by him on August 12, 1985, nor did he provide her with the rebate promised. Based on these Findings of Fact, the Board concluded that the Respondent willfully, deliberately, or negligently disregarded or violated the provisions of the South Florida Building Code; that he contracted to act as a qualifying agent for his business when he was not certified to do so; that he contracted and did work which was not within the description of the class (journeyman) for which he had been certified by the Board; and that he abandoned without legal excuse a construction project in which he was engaged and under contract to complete. As a result, the Board ordered that his journeyman's Certificate of Competency be revoked effective that day.
Once the journeyman's certificate was taken away, Respondent was not authorized to act as an air conditioning installer or contractor under any circumstances. Notwithstanding this, on February 20, 1986, Respondent again, acting as Denny's Air Conditioning, entered into a contract with Dr. Eisenstein to install a new two-ton split system in the doctor's home in Hollywood for a total price of $2,530.00. Since Dr. Eisenstein had previously dealt with Respondent on several occasions and found him to be reliable, the doctor responded to Respondent's request for an advance by giving him a $2,000.00 deposit. The contract was not actually finalized until late in March, 1986 and work was to begin in early April. However, on April 1, 1986, Respondent called Dr. Eisenstein and advised him that his truck, in which was stored the equipment for installation into the doctor's home and the money bag which contained the balance of the doctor's downpayment had been illegally repossessed by Respondent's bank the night before. As a result, Mr. Sammons indicated he would not be able to begin the project but assured the doctor that someone else would do so starting at the end of the week.
In fact, no work was ever started by the Respondent or anyone else on his behalf. After several days, when Dr. Eisenstein attempted to call Respondent, he found that Respondent's phone had been disconnected and when on April 5, 1986, the date promised by Respondent, no one came to begin work on the project, the doctor began undertook an investigation which led to the ultimate contact of the doctor by the Respondent. To reach Respondent, Dr. Eisenstein had checked with Respondent's business landlord and when Respondent finally
called the doctor back, he was irate that the doctor had done so. During that conversation Dr. Eisenstein advised Respondent that he should either repay the money advanced or do the work. In fact, neither was done.
During the month of April, 1986, Dr. Eisenstein sent Respondent two letters by certified mail requesting that he either refund the advance payment or do the work promised under the contract. One letter was returned undelivered. The other was apparently delivered. When neither letter resulted in any satisfaction, the doctor, in early June, 1986, sent a letter of complaint to DPR outlining the situation.
Respondent tells an incredible tale regarding the facts and circumstances which led up to the dispute with Dr. Eisenstein. Admitting that he was somewhat in debt to his bank, he claims that certain payments that he made to the bank with part of the money advanced by the doctor was used improperly by the bank and applied toward other obligations rather than the debt on his truck. He claims the repossession of the truck was illegal and improper because, by the payment mentioned above, if properly applied, the truck would have been paid off. This story is almost a duplicate of that regarding the excuse for the bad checks to Port Distributors. Respondent further contends that that bank thereafter engaged in a conspiracy against him to bring about his financial ruin; that the bank hired several individuals to assault him and his wife outside their church; that he has received several threats of bodily harm from the bank; and that all of this has resulted in his filing suit against the bank in local court. This story was told by the Respondent under oath.
However, Respondent failed to provide any names or documentation to support this with the exception of the name of the bank allegedly involved. When asked where copies of the documentation were that would support his allegations, he responded with, "Oh, they're at home in a file." In short, it would appear that Respondent's story is a gossamer of fantasy which, while possibly believed at this point by Respondent, has very little basis in fact.
Respondent also contends, for example, that Dr. Eisenstein requested that he not pull a permit for the work to be done at his house because he did not want city officials for one reason or another to know that the work was being done. This information was not brought out through Dr. Eisenstein, but rather through the testimony of the Respondent. None of these stories were backed up by any document or supporting evidence. Consequently, it is found that while Respondent may well believe what he is saying, his are in fact, incredible.
Respondent was disciplined on two separate occasions by the Broward County Central Examining Board of Mechanical Technicians and Respondent has not shown that these actions were procedurally violative of due process. Consequently, they are found to have occurred and to be valid. Respondent was not permitted to attack the circumstances leading up to the action by the board and the Hearing Officer declined to relitigate the factual propriety of the Board's two actions. Once having lost his Master Technician's license, Respondent was no longer authorized to pull building permits in Broward County and notwithstanding that, nonetheless did commence work for Mrs. Parra on a job which, under the ordinances of the county, required a permit be pulled. He also failed to live up to the terms of a warranty inherent in his contract with her. The evidence also established that subsequent to the withdrawal of his Journeyman's certificate, he nonetheless entered into a contract for the installation of a system in Dr. Eisenstein's house and accepted a substantial advance payment which he neither returned nor earned when he failed to begin any work on the project. In the opinion of the Petitioner's expert, Respondent's
conduct in this instance was totally unprofessional and unethical. In fact, as a professional, if the circumstances occurred as alleged by Respondent, he should have made immediate arrangements to in some way make restitution of the funds to his client or have the work done by someone else. The evidence here shows that Respondent made no effort to make some accommodation to the client. He entered no promissory note (Respondent claims that as a gentleman, he has no need of notes as his word is sufficient); he made no attempt to let the client know what had happened; and in short, it appears that Respondent was out to make a quick buck (the expert's phrase) without attempting to in any way satisfy his client.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes.
In the Administrative Complaint filed herein in DOAH case number 86- 3516, Petitioner alleges that Respondent violated various portions of Section 489.129(1), Florida Statutes, by:
being the subject of disciplinary action by a county,
exceeding the scope of his state registered air conditioning contractor's license, and
willful or deliberate violations of law.
In the Administrative Complaint filed in DOAH case number 87-2010, Petitioner alleges additional violations of the same statute by Respondent by:
gross negligence, incompetence, misconduct, fraud, or deceit in the practice of contracting,
diversion of funds received for a construction job which caused his inability to fulfill contractual obligations,
abandonment of a construction job he was engaged on,
being disciplined by a local government, and
exceeding the scope of his license.
Section 489.129(1) authorizes the board to discipline the certification or registration of a contractor if it finds him to be guilty of any of certain acts specified therein which include those outlined above.
As to case number 86-3516, the evidence of record presented by Petitioner clearly shows that on March 12, 1985, Respondent's Broward County Certificate of Competency was revoked in a disciplinary action taken by the Board. Broward County requires all building trades contractors to hold a valid Certificate of Competency issued by the Board, not the individual municipalities as previously in order to do business within the county. Section 489.117(2), Florida Statutes, requires registered contractors to comply with local licensing requirements.
As a result of this action, Respondent's ability to legally contract in his own name or for his own business was removed. The mitigating factors described by Respondent at the hearing do not alter the fact that his Certificate was revoked and he failed to avail himself of the appellate or reinstatement procedures available to him.
Consequently, his subsequent contracting with Mrs. Parra to do work for her that required him to have a Certificate of Competency when he knew his certificate had been revoked is a clear violation of the statute and, further, constitutes a willful violation of the law. His reliance on his prior Certificate of Competency issued by the City of Hollywood was unjustified under the circumstances. Therefore, all three violations alleged in the first Administrative Complaint have been proven.
With regard to the allegations contained in the second Administrative Complaint, again, the evidence presented by Petitioner reflects that, even after his Certificate of Competency had been revoked by the Board thereby making it unlawful to do business as a contractor, he entered into a contract with a homeowner to do work which he knew he was not legally authorized to do.
Pursuant to that contract, he took a substantial deposit which was to be used in furtherance of the contract purposes, but he failed to use them for those purposes and failed to even begin the work called for under the contract. In aggravation of the situation, Respondent has consistently failed to refund any of the deposit received. By the best available evidence, his performance in this regard constituted misconduct and possibly fraud in the practice of contracting. Again, the mitigation factors described by Respondent, even if believed, do not excuse his misconduct as described and it is clear that all allegations contained in the Administrative Complaint have been proven by competent evidence. It should be noted, however, that the allegation relating to Respondent's discipline by a local government relates to the same incident charged in the first Administrative Complaint.
Having thus concluded that Respondent has committed the misconduct alleged, without justification or legitimate excuse, the question remains as to what action should be taken by the CILB because of it. The practice of contracting is fraught with possibilities for unscrupulous operators to bilk the consuming public out of vast sums. It is for this reason, among others, that the profession is regulated.
Here, there is no substantial evidence to indicate Respondent is incompetent in the technical aspects of his performance. However, there is a substantial doubt as to his integrity and business acumen and his ability to conform to the ethical and moral standards of this field. Therefore, it is apparent that he should not be licensed.
Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:
RECOMMENDED that the Respondent's license as a registered air conditioning contractor be revoked.
RECOMMENDED this 5th day of August, 1987, at Tallahassee, Florida.
ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building
Filed with the Clerk of the Division of Administrative Hearings this 5th day of August, 1987.
G. Vincent Soto, Esquire Department of Professional
Mr. Denver Sammons Post Office Box 7437 4614 Madison Street
Mr. Fred Seely Executive Director Construction Industry
Van B. Poole, Secretary Department of Professional
Joseph A. Sole, Esquire General Counsel
