Judges: JAMES E. BRADWELL
Agency: Department of Business and Professional Regulation
Latest Update: Jan. 28, 1988
Summary: Whether Respondent's certified air conditioning contractor's license should be disciplined for conduct, set forth herein in detail, which allegedly violates Chapter 489, Florida Statutes.Whether respondent failed to obtain permits and call for required inspections while acting as a contractor.
87-1506STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, CONSTRUCTION INDUSTRY ) LICENSING BOARD, )
)
Petitioner, )
)
vs. ) CASE NO. 87-1506
)
MICHAEL B. FALLS, )
)
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 September 23, 1987 in Fort Lauderdale, Florida. Petitioner submitted a Proposed Recommended Order which is incorporated herein.
APPEARANCES
For Petitioner: G. Vincent Soto, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0760
For Respondent: Michael B. Falls, pro se
4611 Southwest 30th Way
Fort Lauderdale, Florida 33312 ISSUE
Whether Respondent's certified air conditioning contractor's license should be disciplined for conduct, set forth herein in detail, which allegedly violates Chapter 489, Florida Statutes.
BACKGROUND
On March 3, 1987, Petitioner filed an Administrative Complaint alleging Respondent violated Chapter 489, Florida Statutes.
Petitioner timely requested a hearing pursuant to Section 120.57(1), Florida Statutes and the hearing was held as noticed on September 23, 1987.
At final hearing, Petitioner presented the testimony of witnesses Ernest D'Esposito, Marie Bogart and Rene Pena. Petitioner's Exhibits one (1) through four (4) were admitted into evidence. Respondent testified on his behalf and did not offer any Exhibits.
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.
Petitioner is the State agency charged with regulating the practice of contracting.
During times material hereto, Respondent was licensed by the Construction Industry Licensing Board as a certified air conditioning contractor having been issued licensed number CA C022410. Respondent has been so licensed since May 1982.
During December, 1982, Petitioner submitted a change of status application requesting that his license be changed to qualify for All County Air Conditioning (All County) in Fort Lauderdale, Florida. That change of status application was approved by Petitioner and Respondent has remained the qualifier for All County continuously and his license has been renewed as such and is active for the period 1987-1989 (Petitioner's Composite Exhibit 4).
On September 4, 1985, Respondent through the entity All County, entered into a contract with Ernest D'Esposito to "furnish and install 1 new Whirlpool 2 Ton condensing unit, with new slab, hook-up to existing pipes and electric".
The agreed upon price to complete the work was $950.00 with a five year guarantee on the compressor and a one year guarantee on parts and labor. (Petitioner's Exhibit 1).
Respondent commenced the work as agreed and completed the work as scheduled.
Respondent did not obtain a permit for said work from the local building department nor was a permit posted on the job site when Respondent commenced work on the project. While the work was in progress, Respondent did not obtain any inspections for the work from the local building department.
A record search of the Pembroke Pines Building and Zoning Department revealed that Respondent did not obtain a permit to install the air conditioning unit at D'Esposito's residence. (Testimony of Marie Bogart, records custodian, Building and Zoning Department, City of Pembroke Pines).
Rene Pena, chief mechanical inspector for the City of Pembroke Pines, is the person who checks the installation of all air conditioning work in the City of Pembroke Pines. Mr. Pena did not perform any inspections on D'Esposito's job nor was he requested to perform any inspections by Respondent.
Respondent testified at the hearing and admits that no permit was obtained for D'Esposito's job. However, Respondent offered his opinion that the code did not require a permit and that his failure to obtain one was not a violation of the South Florida Building Code. Finally, Respondent offered that to the extent that there was a technical violation of the law, it was not a willful violation and that imposition of a fine would not be appropriate in this instance as his firm "tries to stay within the confines of the South Florida Building Code". Respondent acknowledged that he is the person responsible for ensuring that permits are obtained when required for completion of projects.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes.
The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.
The authority of the Petitioner is derived from Chapter 489, Florida Statutes.
Respondent, a licensed and certified air conditioning contractor, is subject to the disciplinary guides of Chapter 489, Florida Statutes.
The City of Pembroke Pines has adopted Chapter 48 of the South Florida Building Code to, inter alia, regulate the installation of air conditioning systems. (Petitioner's Exhibits 2 and 3).
Section 4801.03 of Chapter 48, South Florida Building Code provides as follows:
Permits required: A permit,
. . . shall be required for the installation. . . of any air conditioning, refrigeration or other mechanical systems.
Section 4801.05 of Chapter 48, South Florida Building Code requires inspections as follows:
SCHEDULED: Chief mechanical inspector, may, at the time the permit is issued, determine the mandatory inspection schedule based upon the complexity of the system. However, the schedules shall be no less than:
Before installations or otherwise concealing any portion of the system and (2) final inspection.
Inspection Required:
Mechanical inspections by certified mechanical inspectors shall be required on all systems.
The system here involved was a new system which was not a window air conditioning unit and therefore not subject to any of the exceptions to the inspections requirement as provided in Section 4801.05(d) of the South Florida Building Code.
Respondent, by failing to assure that the required permits and/or inspections for the D'Esposito's project were obtained, engaged in conduct within the purview of Section 489.129(1)(d), Florida Statutes, as he thereby
violated the local permit and inspection requirements. Based thereon, Respondent thereby engaged in incompetence and misconduct in the practice of contracting within the purview of Section 489.129(1)(m), Florida Statutes.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:
Petitioner, Construction Industry Licensing Board, enter a Final Order imposing an administrative fine against Respondent in the amount of five hundred dollars ($500.00), the payment of which shall be made to Petitioner within a time frame deemed appropriate by Petitioner.
Respondent's license as a certified air conditioning contractor be placed on probation for a period of thirty (30) days.
RECOMMENDED this 28th day of January, 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 28th day of January, 1988.
COPIES FURNISHED:
G. Vincent Soto, Esquire Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
Michael B. Falls
4611 Southwest 30th Way
Fort Lauderdale, Florida 33312
Fred Seely, Executive Director Department of Professional Regulation, Construction Industry Licensing Board
Post Office Box 2 Jacksonville, Florida 32201
Tom Gallagher, Secretary Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
William O'Neill, Esquire General Counsel
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
Docket for Case No: 87-001506
Orders for Case No: 87-001506
| Issue Date |
Document |
Summary |
|
May 14, 1988 |
Agency Final Order
|
|
|
Jan. 28, 1988 |
Recommended Order
|
Whether respondent failed to obtain permits and call for required inspections while acting as a contractor.
|
