STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 88-5194

)

FRANK W. HUDGENS, )

)

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 January 12, 1989, in Clearwater, Florida. Thereafter the parties were afforded leave through February 15, 1989, to submit proposed recommended orders. The parties have submitted proposed recommended orders which were considered by the undersigned in the preparation of this Recommended Order. Proposed findings which are not incorporated herein are the subject of specific rulings in an Appendix attached hereto.

APPEARANCES

For Petitioner: David E. Bryant, Esquire

1107 East Jackson, Suite 104

Tampa, Florida 33602

For Respondent: Larry L. Dillahunty, Esquire

780-94th Avenue North, Suite 108 St. Petersburg, Florida 33702

ISSUE PRESENTED

The issue presented herein is whether or not Respondent violated the Construction Industry Licensing Law as alleged in the Administrative Complaint filed herein on June 27, 1987, to wit: proceeding to work without obtaining a timely permit, violating local law either deliberately or through improper supervision, gross negligence and/or incompetence in connection with said job or through his failure to supervise, inspect, improper electrical wiring, poor duct design, damage to a customer's ceiling, failure to supply warranty papers and inadequate cooling.

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:

1. Respondent, Frank W. Hudgens, at all times relevant hereto was licensed as a certified air conditioning contractor having been issued license number CA C032442.

   
   

2. During times material, Respondent was the sole qualifier for Tampa Bay Cooling, Inc. On June 15, 1987, Respondent, through Tampa Bay Cooling, entered into a contract with Mr. and Mrs. Jack Davis to install a two and one-half ton York heat pump with a horizontal air handler and five kilowatt auxiliary heat strip with the required thermostatic controls and fiberglass and flex ducts, including registers, grills, refrigerant lines and PVC drain lines to the Davis residence for the sum of $3,214.00. (Petitioner's Exhibit 2.).

   
   

3. Respondent installed the equipment as contracted. Respondent subcontracted with a licensed electrician for the installation of the required electrical work on the project.

   
   

4. Respondent commenced performance of the installation prior to the time that he obtained a permit as required by local ordinance. However, Respondent applied for a permit at about the same time that the work started, in St. Petersburg, Florida, whereas the Davis' reside in the City of Pinellas Park, and it was therefore necessary for him to obtain a permit from Pinellas Park. Respondent in fact obtained a permit from the City of Pinellas Park later in the day that he commenced work at the Davis residence.

   
   

5. When the Davis' contracted with Respondent for the installation of the central air conditioning system in their home, a major concern was that they be able to keep their "computer room" sufficiently cooled to avoid damage to the computers. Following the installation of the system by Respondent, Mrs. Davis complained to Respondent on several occasions concerning the fact that the "computer room" was not sufficiently cool.

   
   

6. During Respondent's installation of the system at the Davis', a stop- work order was placed on the job based on Respondent's failure to have the required electrical permit and an employee was observed unwinding electrical wire that would be used to make the electrical connections for the system.

   
   

7. Respondent was paid $1,607.00 by the Davis' on June 15, 1987, at the commencement of the installation of the system with the balance due upon completion. The Davis' had refused to pay Respondent the remaining balance for the system.

   
   

8. Based on the Davis' refusal to tender Respondent the remaining one half, i.e., $1,607.00 for payment of the system, Respondent has refused to provide them the extended warranty papers for the system.

   
   

9. Following Respondent's completion of the installation of the system, the Davis' contacted Donald W. Branch, a factory trained technician employed by Gorman Air Conditioning, the supplier of the system at the Davis' residence and complained about the fact that the system was not keeping the computer room as cool as the Davis' desired. Branch, who was tendered and received as an expert in air conditioning, made a survey of the Davis residence and issued a field report regarding the system. Branch found the system installed by Respondent to be producing within the factory specifications and found that the system was operating satisfactorily and in conformance with factory specifications. Branch found that there was a need for a return air grill to be added to the "computer room" area, such that, when the door was closed in that area, there would still be correct air flow. For appearance sake, Branch determined that the outdoor

   unit needed leveling and that the drainline from the indoor unit to the outdoors needed to be insulated, possibly, if attic temperatures are too extreme which would prevent condensate from the drainline from dripping and wetting the ceiling. While Branch questioned the appearance of Respondent's insulation of the system, he found it to be operating efficiently and in conformance to specifications.

   
   

10. Respondent dispatched a plasterer to the Davis' residence to repair a damaged ceiling inadvertently caused by one of its employees.

    
    

11. York Air Conditioning, the supplier of the system, replaced the compressor in the heat pump with a new one in an attempt to appease Mrs. Davis, although this was not done based on any finding by either Branch or Respondent that the compressor which was not the original compressor, was not performing according to factory specifications.

    
    

12. Respondent, based upon the suggestion of Don Branch, installed an additional return in the computer room in an attempt to alleviate Mrs. Davis' discomfort in the computer room and was sufficient to satisfactorily cool the computer room.

    
    

13. A two and one-half ton air conditioning unit is sufficient to cool a home the size of the Davis residence, which is approximately 1,100 square feet in size, provided the system was correctly designed. Respondent, with the exception of having to reroute a return line from one of the other rooms, properly designed the system in the Davis residence, and additional tonnage was not required to adequately cool their home.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this action. Section 120.57(1), Florida Statutes (1987).

    
    

15. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

    
    

16. The authority of the Petitioner is derived from chapter 489, Florida Statutes.

    
    

17. Competent and substantial evidence was offered herein to establish that Respondent, by commencing work on the installation of the Davis air conditioning system without first obtaining a valid permit and having same on the jobsite, engaged in a willful and/or deliberate disregard of law in violation of the applicable building laws in violation of Subsection 489.129(1)(d), Florida Statutes.

    
    

18. Insufficient evidence was offered herein to establish that the Respondent either failed to supervise, was guilty of gross negligence, or incompetence relating to the allegation that he improperly wired the system, improperly designed the duct system, negligently damaged the ceiling to the Davis residence, or improperly failed to supply warranty papers or installed a system which inadequately cooled the Davis residence.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that:

1. Petitioner enter a final order imposing an administrative fine against Respondent in the amount of five hundred ($500) payable to Petitioner within thirty (30) days of the entry of its final order.

   
   

2. Petitioner enter a final order issuing a written reprimand to Respondent based on his failure to timely obtain a permit prior to commencement of a work project where a permit is required.

DONE and ENTERED this 31st day of March, 1989, in Tallahassee, Leon County, Florida.

JAMES E. BRADWELL

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 3rd day of April, 1989.

COPIES FURNISHED:

David Bryant, Esquire 1107 E. Jackson

Suite 104

Tampa, Florida 33602

Larry L. Dillahunty, Esquire 780-94th Avenue North

Suite 108

St. Petersburg, Florida 33702

Fred Seely, Executive Director Construction Industry Licensing

Board

111 East Coastline Drive Jacksonville, Florida 32202

Kenneth E. Easley, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 88-005194

Orders for Case No: 88-005194