STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 87-3904

)

SAM POLLACK, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on April 20, 1988, in Miami, Florida.

APPEARANCES

For Petitioner: Gregory A. Victor, Esquire

Bayview Executive Plaza

3225 Aviation Boulevard, Suite 400

Miami, Florida 33133

For Respondent: Ira M. Witlin, Esquire

17555 South Dixie Highway, Suite 107

Miami, Florida 33157 BACKGROUND

In an administrative complaint filed on July 13, 1987, petitioner, Department of Professional Regulation, Construction Industry Licensing Board, charged that respondent, Sam Pollack, licensed as a certified air conditioning contractor, had violated Subsections 489.129(1)(d), (j) and (m), Florida Statutes (1985). It is alleged generally that in April 1986 respondent entered into a contract to install an air-conditioner and perform certain ductwork on a job in Miami, Florida, that Pollack performed said work without pulling a job permit from the local building authority, that respondent did not adequately supervise the job, that he performed certain electrical work on the job even though he was unlicensed to do so, and that he was responsible for serious deficiencies in the workmanship.

Respondent disputed the above allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes (1987). The matter was referred by petitioner to the Division of Administrative Hearings on September 2, 1987, with a request that a Hearing Officer be assigned to conduct a formal hearing. By notice of hearing dated September 25, 1987, the final hearing was scheduled on November 30, 1987 in Miami, Florida. At the request of respondent,

the matter was continued to March 23, 1988 at the same location. Thereafter, at petitioner's request, the matter was rescheduled to April 20, 1988 in Miami, Florida.

At final hearing, petitioner presented the testimony of Beverlee Swerdlen, Steven Swerdlen and Russell H. Adams, an expert in residential air conditioning contracting. It also offered petitioner's exhibits 1-18. All exhibits were received in evidence. Respondent testified on his own behalf.

The transcript of hearing was filed on May 6, 1988. Proposed findings of fact and conclusions of law were filed by petitioner and respondent on May 26 and 27, 1988, respectively. A ruling on each proposed finding has been made in the Appendix attached to this Recommended Order.

The issue is whether respondent's license as a certified air-conditioner contractor should be disciplined for the reasons set forth in the administrative complaint.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. At all times relevant hereto, respondent, Sam Pollack, held certified air-conditioning contractor license number CA-C008663 issued by petitioner, Department of Professional Regulation, Construction Industry Licensing Board (Board). He has been licensed by the Board for approximately sixteen years. Respondent used his license with and was qualifying agent for a firm known as Dr. Cool's Clinic, Inc. located at 10662 Southwest 186th Lane, Miami, Florida.

   
   

2. Around April 1, 1986 Steven and Beverlee Swerdlen moved into a 1,400 square foot prefabricated modular home at 19800 Southwest 180th Avenue, Miami, Florida. The home is located in a large modular home subdivision known as Redland. Although a modular home resembles a mobile home in certain respects, it is considered to be a fixed, permanent residential dwelling under local building codes. The home had previously been a model unit in the subdivision and had never been lived in since being built at least three years earlier.

   
   

3. On April 3, 1986 respondent entered into a contract with Steven Swerdlen to install a Rheem four-ton air conditioning unit at Swerdlen's home. The contract called for a total price of $2152.50. The Swerdlens paid for the job in full the same day by credit card. Because Swerdlen's home had the ductwork and twenty outlets already in place, Pollack was to adapt the unit to the existing ductwork. Respondent's firm was selected over other firms because Mrs. Swerdlen was impressed with Pollack's advertisement which represented that Pollack provided "air conditioning designed and serviced for people with allergies and other respiratory problems." This was important to her since she suffers a heart condition and requires air-conditioning during warm weather. She also accepted respondent's oral representations that he had the experience and expertise to satisfy her needs.

   
   

4. The ductwork in the home was accessible through a small crawlspace located under the floor. There were also two vents under the floor to prevent a buildup of moisture. The flooring in the home was made of particle board and was sealed with a vapor barrier which was designed to protect it from moisture damage. When the Swerdlens purchased their home, the vapor barrier was already

   cracked in several places and, coupled with the fact that the area had only two vents, the floor was susceptible to moisture damage.

   
   

5. Before a central air-conditioning unit is installed, a prudent and competent air-conditioning contractor should take measurements of the home, perform heat loss calculations and inspect the existing ductwork to insure that the proper size unit is being installed. The evidence is sharply conflicting as to what steps, if any, were undertaken by respondent when he visited the Swerdlen home on April 3 to discuss the job. It is found, however, that Pollack made a visual inspection of the home but did not take formal measurements or make heat loss calculations. He inspected the ductwork to the extent he looked under the house through the crawlspace opening. He noted a potential problem with the vapor barrier and a supply duct hookup location that was blocked by a pier (support). He mentioned to Mrs. Swerdlen that she needed additional ventilation windows underneath the home and that she had a potential moisture problem with the vapor barrier. However, he did not suggest that she wait and have those matters corrected before he installed the unit.

   
   

6. The unit was installed on April 7, 1986, or four days after the contract was signed. Besides respondent and a helper, Mrs. Swerdlen was the only person present. No electricians were called in to assist on the job. According to Pollack, the only electrical work that he performed was the installation of the thermostat unit in the closet under the fuse box and the internal electrical connections to the unit. As to this latter work, Pollack stated he did not believe an electrical license was needed to connect the terminal wires to the air-conditioning unit. He did not obtain a building permit from the county nor did he request an inspection of his work. Both were required by county regulations.

   
   

7. Because the supply duct hookup was blocked by a pier, Pollack was forced to place a three or four foot high supply duct in a bedroom closet. Without advising the Swerdlens as to the extent or nature of modifications needed to bypass the pier, Pollack cut a large, unsightly hole in the closet floor. It was also necessary to penetrate the vapor barrier when the hole was cut. The cut was never resealed. The new duct took up much of the closet space and was vulnerable to puncture damage. A photograph of the supply duct is found in petitioner's exhibit 14. After the work was completed, Pollack did not advise the Swerdlens that the vapor barrier had been broken or that it needed to be resealed to avoid moisture damage to their floor.

   
   

8. The power source to the air-conditioning unit was a 10-gauge wire. Since the unit required a larger gauge, it was necessary that an 8-gauge wire be installed. Pollack and his helper left for one and one-half hours at lunch during the day of installation, and Pollack claims the wire was changed by someone during the time he was gone. The Swerdlens contended they knew nothing about electrical wiring and could not perform the task themselves. Their testimony is accepted as being more credible and it is found that Pollack, even though he was not licensed as an electrician, changed the electrical power source wiring. In addition, Pollack did all other electrical work required for the installation of the unit. In doing so, he made no provision for overload, left exposed wiring in the closet by the thermostat and failed to provide a service disconnection switch for the unit inside the home. Until these deficiencies were corrected several months later, the Swerdlens could smell a burning odor in their home.

   
   

9. According to industry standards and local building code requirements, the unit should have been placed on a concrete slab. However, Pollack used two

   sets of concrete runners obtained from the unit manufacturer. He justified this on the ground that many other homes in the same subdivision did not have slabs under their units. Even so, this did not justify a deviation from code requirements. Because a slab was not used, the unit sank into the ground after the first rainfall. Pollack eventually installed a cement slab in November, 1986 after being ordered to do so by local building officials.

   
   

10. The Swerdlens' floors began to buckle and ripple within a short time after the unit was installed. It began in the bathroom directly above the area where Pollack had penetrated the vapor barrier to install the supply duct and was exacerbated by the closure of one of the two vents under the floor when Pollack installed the unit. The damaged floor is memorialized in photographs received in evidence as petitioner's exhibit 14.

    
    

11. Mrs. Swerdlen contacted respondent after the above problems began to occur. Other than adjusting the thermostat to get better cooling, Pollack did nothing since he did not think he was responsible for the other problems. He offered to make the other changes for additional compensation and if the Swerdlens would agree to release him from all liability. After declining Pollack's offer, Mrs. Swerdlen had other persons or companies make the needed repairs. Most of the costs were paid by her insurance company. She also contacted the Metropolitan Dade County Building and Zoning Department (Department) and the Board. The Department learned that no permit had been obtained by Pollack even though one was required and that no inspections had been made during and after the work. Pollack obtained an after-the-fact permit on November 24, 1986, after paying a double fee and a $100 violation fee for failing to timely obtain the permit.

    
    

12. After being contacted by Mrs. Swerdlen, a Department mechanical inspector made an inspection of the Swerdlens' home on November 24, 1986. He found several violations of the local building code including (a) a failure to obtain a permit and have required inspections made, and (b) improper electrical work. A summons was issued against Pollack for these violations. The disposition of the summons is not of record. The inspector also noted that the vapor barrier around the closet supply duct had not been resealed, that the flooring was warped above the cut and that the unit was not on a concrete slab. Although the inspector suggested that Pollack correct these deficiencies, only the latter deficiency was corrected. The work never passed final inspection.

    
    

13. The Board employed a Jacksonville residential contractor as its expert in this case. Although the expert did not personally inspect the property, he reviewed photographs of the site, respondent's deposition and the investigative file and spoke with the Swerdlens by telephone. According to the Board's expert, Pollack was guilty of gross negligence by performing work that exceeded the scope of his license, performing potentially hazardous electrical wiring, installing a non-efficient system in the Swerdlens' home, failing to follow accepted industry rules concerning static friction, velocities, noise levels and filtration, failing to properly inspect the home prior to installation, improperly installing the unit, damaging the vapor barrier, installing a large supply duct in the closet without obtaining the Swerdlens' approval and failing to use a cement slab to support a heavy unit. He further opined that respondent was deceitful by selling the system in the manner that he did, particularly since it was sold and installed within a four day period with no thought given to or preparation taken as to the problems that might be encountered. The expert agreed that the work was made more difficult by the position of the pier but stated that Pollack should have explained this problem to the Swerdlens and obtained their approval prior to cutting through their closet floor.

14. Pollack has worked in the air-conditioning business for around 26 or

    27 years, of which two were spent as a building inspector for Dade County in the late 1960s. He contended he warned Mrs. Swerdlen about the penetrated vapor barrier, the blocked air duct and the lack of a sufficient number of vents. Pollack also stated he advised Mrs. Swerdlen it was her responsibility to get an electrician to do all electrical work. However, these contentions are rejected as not being credible. Moreover, if there were special problems with the Swerdlens' home, it was respondent's responsibility to design and install a system that was compatible with those special needs. Pollack asserted that the Swerdlens' home was actually a mobile home, and he was under the impression that permits were not required for work on this type of home. However, this contention is irrelevant since Dade County has required permits for air conditioning work on both fixed and mobile homes for at least the last ten years.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1987).

    
    

16. By its complaint, the agency has charged that respondent violated Subsections 489.129(1)(d), (j) and (m), Florida Statutes (1985), by his conduct on the Swerdlen job. Those subsections authorize disciplinary action against a licensee if he is guilty of the following conduct:

    
    

    (d) Willful or deliberate disregard and violation of the applicable building codes or laws of the state or of any municipalities or counties thereof.

    * * *

    (j) Failure in any material respect to comply with the provisions of this act.

    * * *

    (m) Upon proof that the licensee is guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.

    
    

    Because respondent's professional license is at risk, petitioner must prove its allegations by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

17. According to the allegations in the complaint, which admittedly are not a model of clarity, respondent is guilty of (a) a "wilful (sic) violation of local law" by failing to obtain a local permit for the job in question, (b) failing to "competently supervise the activities of said contracting business, in failing to assure that required permits and/or inspections were obtained,"

    (c) "contract(ing) to and/or perform(ing) electric work" even though unlicensed to do so, and (d) causing "serious deficiencies" in the workmanship, including a "failure to perform in a reasonable timely manner," "failure to put compression (sic) on proper slab," and "improper ducting (sic)." These allegations will be examined separately and a determination made as to whether there is clear and convincing evidence to sustain them.

18. First, the evidence reflects that respondent failed to obtain necessary permits for the job and, by doing so, was in violation of the local law. However, in order to constitute a violation of Chapter 489, the law requires that the violations be "willful or deliberate." Respondent justified his conduct on the grounds the other subdivision homes did not conform to code requirements and that he misinterpreted code provisions. These reasons are deemed to be specious, particularly since respondent has been in the air- conditioning business in Dade County for numerous years, and he knew or should have known the local law requirements. It is concluded his failure to obtain a permit and inspection equates to a "willful or deliberate disregard and violation of the applicable building codes." This in turn constitutes a violation of Subsection 489.129(1)(d), Florida Statutes (1985).

    
    

19. Next, the evidence supports a conclusion that respondent failed to "competently supervise the activities of (the job by) failing to assure that required permits and/or inspections were obtained." By using the word "competently" in the allegation, the undersigned assumes the Board is charging respondent with "incompetency" within the meaning of Subsection 489.129(1)(m), Florida Statutes (1985). The word "incompetency" is not defined by statute or rule. When this occurs, the word's common, ordinary meaning applies. State of Florida, Department of Administration v. Moore, 13 FLW 1002 (Fla. 1st DCA, April 26, 1988). The word "incompetent" is defined in Webster's New Twentieth Century Dictionary, Unabridged Second Edition (1980), as "without ability, knowledge, fitness, etc.; failing to meet requirements; incapable; unskillful." It further provides that the word "denotes a lack of requisite qualifications for performing a given act." Given these definitions, it cannot be concluded that a failure to pull job permits equates to a lack of knowledge, ability or fitness or that Pollack possessed a lack of requisite qualifications for performing that act. Therefore, this charge must fail.

    
    

20. Third, it has been shown by clear and convincing evidence that, although unlicensed to do so, respondent performed "electrical work" in conjunction with the job. By doing so, respondent engaged in work not permitted under his local registration. This violated Subsection 489.117(2), Florida Statutes (1985), which in turn constituted a violation of Subsection 489.129(1)(j), Florida Statutes (1985).

    
    

21. Finally, the evidence reflects that "there were serious deficiencies in the performance of said job, caused directly by respondent, or by respondent's failure to properly supervise the contracting activities" and which resulted in "a failure to put compression (sic) on concrete slab" and "improper ducting" (sic). Such deficiencies constitute gross negligence in the practice of contracting within the meaning of Subsection 489.129(1)(m), Florida Statutes (1985). However, they do not equate to "fraud," "deceit," "incompetency" or "misconduct." Finally, the allegation that Pollack failed "to perform in a reasonable timely manner" has been disregarded by the undersigned on the ground it is overly broad and vague. 1/

    
    

22. In his proposed order, petitioner's counsel suggests that respondent pay a $3,000 fine within thirty days of the Final Order and that respondent's license be suspended for thirty days. Respondent concedes that "technical" violations have occurred and suggests that only a $500 fine be imposed. Since petitioner's proposed penalty falls within the suggested guidelines enunciated in Rule 21E-17.002, Florida Administrative Code (1987), and the violations proven herein are of a serious nature, the recommended penalty is appropriate.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsections

489.129(1)(d), (j), and (m), Florida Statutes (1985), that he pay a $3,000 civil fine within thirty days from date of a Final Order in this cause, and that his license be suspended for thirty days, or until the fine is paid if after the expiration of said thirty day period.

DONE AND ORDERED this 3rd day of June, 1988, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 1988.

ENDNOTE

1/ The remaining charges referred to in petitioner's proposed order are not a part of the administrative complaint and are accordingly deemed to be irrelevant.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3904

Petitioner:

1. Covered in finding of fact 3.

2. Covered in finding of fact 3.

3. Covered in finding of fact 6.

4. Covered in finding of fact 6.

5. Covered in finding of fact 6.

6. Covered in finding of fact 5.

7. Covered in finding of fact 6.

8. Partially covered in finding of fact 5. However, respondent's testimony that he mentioned a possible moisture problem to Mrs. Swerdlen is accepted as being the more credible and persuasive testimony.

9. Covered in finding of fact 8.

10. Covered in finding of fact 8.

11. Covered in finding of fact 9.

12. Covered in finding of fact 7.

13. Covered in finding of fact 5.

14. Covered in finding of fact 10.

15. Covered in finding of fact 9.

16. Covered in finding of fact 11.

17. Covered in finding of fact 11.

18. Rejected since the findings are taken from an affidavit and are predicated on hearsay. The competent evidence of record which the affidavit purportedly supplements and explains has not been identified.

19. Rejected since the findings are taken from an affidavit and are predicated on hearsay. The competent evidence of record which the affidavit purportedly supplements and explains has not been identified.

20. Covered in finding of fact 11.

21. Covered in finding of fact 11.

22. Covered in findings of fact 7 and 10.

23. Covered in finding of fact 11.

24. Covered in finding of fact 11.

25. Covered in finding of fact 6.

26. Covered in finding of fact 12.

27. Rejected as being cumulative.

28. Covered in finding of fact 12.

29. Covered in finding of fact 12.

30. Covered in finding of fact 12.

31. Covered in finding of fact 12.

32. Covered in finding of fact 11.

33. Covered in finding of fact 14.

34. Covered in background.

35. Covered in finding of fact 13.

36. Covered in finding of fact 13.

37. Covered in finding of fact 14.

Respondent:

1. Covered in background.

2.A. Covered in finding of fact 8.

1. Covered in finding of fact l.

2. Covered in finding of fact 1.

3. Covered in findings of fact 3 and 6.

4. Covered in finding of fact 6

5. Covered in finding of fact 6.

6. Covered in finding of fact 6.

7. Covered in finding of fact 9.

8. Covered in finding of fact 3.

1. Generally covered in finding of fact 3.

2. Partially covered in finding of fact 8. The remainder has been rejected as being irrelevant to the issues.

3. Covered in finding of fact 2.

4. Covered in finding of fact 13

5. Covered in finding of fact 13.

6. The first sentence has been rejected as being unnecessary. The second sentence is rejected since it is contrary to the more persuasive and credible evidence.

7. Covered in findings of fact 9 and 14.

8. Covered in finding of fact 11.

9. Rejected since the evidence reflects that respondent agreed only to install a concrete slab.

10. Covered in findings of fact 6 and 8.

11. Rejected since respondent has only been charged with performing electrical work for which a license was needed.

12. Covered in findings of fact 6 and 11.

COPIES FURNISHED:

Gregory A. Victor, Esquire Bayview Executive Plaza Suite 400

3225 Aviation Boulevard

Miami, Florida 33133

Ira M. Witlin, Esquire Suite 107

17555 South Dixie Highway Miami, Florida 33157

Mr. Fred Seely Executive Director

Construction Industry Licensing Board Post Office Box 2

Jacksonville, Florida 32201

William O'Neil, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 87-003904

Orders for Case No: 87-003904