Judges: ARNOLD H. POLLOCK
Agency: Department of Business and Professional Regulation
Latest Update: May 25, 1989
Summary: Qualifying agent for contractor is responsible for quality of work done by employees and has duty to supervise. Failure to do so is misconduct
89-0186STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, CONSTRUCTION ) INDUSTRY LICENSING BOARD, )
)
Petitioner, )
)
vs. ) CASE NO. 89-0186
)
NEAL A. O'CONNOR, )
)
Respondent. )
)
RECOMMENDED ORDER
A hearing was held in this case in Clearwater, Florida on April 5, 1989, before Arnold H. Pollock, Hearing Officer. The issue for consideration was whether Respondent's license as a certified air conditioning contractor should be disciplined because of the misconduct alleged in the Administrative Complaint filed herein.
APPEARANCES
Petitioner: Elizabeth R. Alsobrook, Esquire Department of Professional Regulation
1940 North Monroe Street Tallahassee, Florida 32399-0792
Respondent: Neal A. O'Connor, pro se
1925 Hastings Drive
Clearwater, Florida 34623 BACKGROUND INFORMATION
On July 26, 1988, Douglas A. Shropshire, for Lawrence A. Gonzalez, acting Secretary of the Department of Professional Regulation, filed an Administrative Complaint in this case alleging that Respondent was guilty of a violation of Chapter 489, Florida Statutes, by demonstrating gross negligence, incompetence, and or misconduct in connection with the contracting business. On or about August 3, 1988, the Respondent requested a formal hearing and the file was forwarded to the Division of Administrative Hearings on January 10, 1989 for appointment of a Hearing Officer. On January 23, 1989, the undersigned set the case for hearing on April 5, 1989, at which time it was held as scheduled.
At the hearing, Petitioner presented the testimony of Dale J. Parker, mechanical inspector for the City of St. Petersburg; William H. Reinhart, owner of an air conditioning company; Ronald Aleshire, a service mechanic; and Richard
L. Cihak, owner of a floor covering business, and introduced Petitioner's Exhibits 1 through 3. Respondent testified in his own behalf but did not present any documentary evidence. Petitioner requested the Hearing officer take
official recognition of Sections 303.2 and 303.3 of the Standard Mechanical Code of 1988, adopted by the City of St. Petersburg.
A transcript was furnished. Counsel for Petitioner requested several delays in the deadline for filing Proposed Findings of Fact, but none have been filed by either party.
FINDINGS OF FACT
By his answers to Petitioner's Request for Admissions, Respondent indicates, and it is so found, that he is currently licensed by the Florida Construction Industry Licensing Board under license CA C010372 as a certified air conditioning contractor; that his license was in effect at all times material to the allegations involved in this hearing; and that his license was in effect as of the date of the hearing.
The Construction Industry Licensing Board, (Board), is the state agency responsible for licensing construction trades professionals in this state.
Sometime prior to August 18, 1987, Respondent's firm contracted with Ralph Worthington to replace the air conditioning system at Mr. Worthington's home in Pinellas County, Florida. The contract price was $3,075.00. The work was completed.
On August 19, 1987, Dale J. Parker, a mechanical inspector for the City of St. Petersburg, which utilizes the Standard Mechanical Code as a guideline for construction in the city, inspected the unit in question installed by Respondent's concern, Residential Air Conditioning. A permit to complete the work had been issued on June 25, 1987 for the work. No explanation was given for why the inspection was not done until approximately two months after the permit was issued, but that delay is not relevant to the issues here.
During his inspection, Mr. Parker found that the provisions of Sections
303.2 and 303.3 of the Standard Mechanical Code had not been followed by the Respondent's firm in that no light was available in front of the unit, no electrical disconnect was furnished for the unit, and there was no clear access to the unit. Access is required to be through an unencumbered space no less than 22 by 36 inches. When he went up into the attic to examine the unit, he found the area to be tight and dark. At the time, he was unable to see any defects other than those he listed, but his general opinion of the installation was that it was "not a good job" and was somewhat "sloppy". As a result of the defects he saw, he rejected the work and "red tagged" it. Issuance of a red tag requires correction of the defect and reinspection of the work.
Evidence indicates that the required light had not been there prior to Respondent's installation and the access to the unit, which required stepping over an air duct, was the same as it had been before the installation of the new unit. The Code requirement to correct these defects existed when the house was built. It is clear the initial installation, not done by Respondent, was also deficient.
Respondent admits that when he installed the new unit, he assumed the responsibility for correcting the existing deficiencies and bringing the installation up to Code requirements. However, Mr. Worthington, the homeowner, would not allow Respondent's personnel back into his residence to correct the problems. This does not excuse the improper installation but would have resulted in a waiver of the reinspection fee.
On October 1, 1987, William Rinehart, owner of Johnson's Air Conditioning, who had been contacted by Mr. Worthington, sent his technician, Mr. Aleshire out to the property to make the repairs. Mr. Aleshire discovered a lot of water in the insulation in the attic in the area around the air conditioning unit. He also noticed that duct work had come loose from the unit, that the unit was tilted, and that both the primary and secondary drain pipes were clogged with sand at the outside outlet.
When he moved the insulation, he found the attic floor had rotted as a result of water condensation which had spilled out of the drain pans surrounding the unit onto the floor. As a result, the attic floor fell through into the room below.
Mr. Aleshire found that the air handling unit was improperly tilted. So was the primary drain pan which was improperly tilted away from the drain. Since the drain was clogged, when the condensation collected in the pan, instead of draining out, it ran over the opposite side of the pan into the secondary pan from which it could not drain because that plug was clogged as well. As a result, the condensation water ran over out onto the attic floor.
Aleshire also noticed that some of the wiring had to be replaced because of a lack of sealing and failure to use Romex connectors, both of which are required by the Code. In his opinion, however, except for the electrical problems and the tilted air handling unit and drain pans, the installation was up to Code. Had it not been for the clogged drains, the unit would probably have worked satisfactorily for a long period without problems. There is no evidence to connect the clogged outside drains with the Respondent. He is, however, responsible for the other defects noted.
Both Aleshire and Rinehart consider the tilted installation of the air handling unit improper. Mr. Rinehart would have used adjustable bolts to affix the unit and a carpenter's level to insure the drainage was proper. The failure to level the unit is negligence and the failure to utilize proper sealant and Romex connectors constituted misconduct since both are required by the Code.
Respondent does not deny either of these defects. He contends his firm did what it agreed to do. When Mr. Worthington complained, he initially responded and attempted to correct the problems but was unable to do so to Mr. Worthington's satisfaction. The problems were not corrected by Respondent. Nonetheless, Respondent contends his firm tried to do a proper job and feels Worthington overreacted, frequently complaining when a workman was only a few minutes late for a scheduled appointment.
Respondent was not personally aware of the details of the installation in question, did not do any of the work himself; nor did he inspect the job when it was completed. When this work was being done, Respondent, who is in partnership with Mr. Neidrich was in Tampa opening another office for the firm. He first found out about it after a complaint was filed and, in an effort to work out their differences, attempted to contact Worthington up until the time the Department of Professional Regulation got into the picture.
Respondent, who qualified the company under his license, is an engineer and his primary function with the company is to design complicated systems. He visits jobs of "difficult installation" but acts merely as a consultant on the company's routine business. He performs quality checks from time to time on routine as well as major jobs to insure the work is being done
properly. Though he testified he does this on a weekly basis, he admitted his last inspection was four weeks before the hearing.
The correction of the defects identified herein was subsequently accomplished by another contractor hired by Mr. Worthington at additional cost. He also paid $422.80 to replace floor covering damaged as a result of the tilted air conditioning unit.
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, Petitioner seeks to discipline Respondent's license alleging gross negligence, incompetence, and/or misconduct in connection with an air conditioning installation. This is attributed either to Respondent's actions or his failure to properly supervise the work being done and is cited as a violation of Section 489.129(d) and (m), Florida Statutes.
The burden of proof in this case is on the Petitioner, Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla 1st DCA 1977). This burden must be met by clear and convincing evidence of Respondent's guilt, Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).
Section 489.129(1), Florida Statutes, authorizes the Board to discipline the registration of a contractor if he or the employees of a business for which he is the registered agent is guilty of:
(d) Willful or deliberate disregard and violation of the applicable building codes or law of the state or of any municipalities or counties thereof.
and
(m) Upon proof that the licensee is guilty of fraud or deceit or of gross negligence, incompetency or misconduct in the practice of contracting.
The evidence of record clearly indicates that a technician for Respondent's firm, in installing Worthington's unit, violated the Standard Mechanical Code adopted by the city by failing to leave access to the unit and by failing to install a light and a disconnect for the unit in the attic. Though not initially responsible for these discrepancies, Respondent's technician failed to correct them as it was his responsibility to do.
The evidence also shows that the installation by Respondent's personnel was not properly leveled and the sealant and Romex fasteners were not utilized. Though those discrepancies might not have caused the unit to work improperly had it not been for the plugged outlet drains, the installation was still below standards, but it does not constitute gross negligence, incompetence, or misconduct. Further, the failure to correct the new installation defects, once discovered, cannot be blamed on Respondent or his people. Mr. Worthington's refusal to allow them back into his house is the cause of that situation.
Nonetheless, Respondent is qualifying agent for a company which has been guilty of a willful disregard of the Standard Mechanical Code adopted by
the city and this guilt may be imputed to him. He clearly did not properly supervise the company's professional operations.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:
RECOMMENDED that Respondent, Neal A. O'Connor be reprimanded and pay an administrative fine of $500.00.
RECOMMENDED this 25th day of May, 1989 at Tallahassee, Florida.
ARNOLD H. POLLOCK, 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 25th day of May, 1989.
COPIES FURNISHED:
Elizabeth A. Alsobrook, Esquire Department of Professional
Regulation
1940 North Monroe Street Tallahassee, Florida 32399-0792
Neal A, O'Connor 1925 Hastings Drive
Clearwater, Florida 34623
Kenneth A. Easley, Esquire General Counsel
Department of Professional Regulation
1940 North Monroe Street Tallahassee, Florida 32399-0792
Fred Seely Executive Director
Construction Industry Licensing Board
Post Office Box 2 Jacksonville, Florida 32201
STATE OF FLORIDA
DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD
DEPARTMENT OF PROFESSIONAL REGULATION,
Petitioner,
vs CASE NO.: 89308
DOAH CASE NO.: 89-0186
NEAL A. O'CONNOR, LICENSE NO.: CA C010372,
Respondent.
/
FINAL ORDER
THIS MATTER came before the Construction Industry Licensing Board pursuant to Section 120.57(1)(b)(9), Florida Statutes, on July 14, 1989, in Fort Lauderdale, for consideration of the Recommended Order (a copy of which is attached hereto and incorporated herein by reference) issued by the hearing officer in the above-styled case. The Petitioner was represented by Ray Shope. The Respondent was neither present nor represented by counsel.
Upon consideration of the hearing officer's Recommended Order, including the exceptions filed and the arguments of the parties and after a review of the complete record in this matter, the Board makes the following findings:
FINDINGS OF FACT
The hearing officer's findings of fact are hereby approved and adopted.
There is competent, substantial evidence to support the hearing officer's findings of fact.
CONCLUSIONS OF LAW
The Board has jurisdiction of this matter pursuant to the provisions of Section 120.57(1), and Chapter 489, Florida Statutes.
The Conclusions of Law of the Hearing Officer are hereby adopted and incorporated by reference except where said conclusions are in contradiction to the Conclusions of Law presented in the Petitioner's Exceptions to Hearing Officer's Recommended Order which are hereby approved and adopted and fully incorporated by reference.
That Respondent was in violation of Chapter 489.129(1)(d) and (m), Florida Statutes.
There is competent substantial evidence to support the Board's findings and conclusions.
WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED:
That Respondent shall pay to the Construction Industry Licensing Board an administrative fine of one thousand dollars ($1,000.00) within thirty (30) days.
That Respondent's license shall be SUSPENDED for one (1) year.
Pursuant to Section 120.59, Florida Statutes, the Parties are hereby notified that they may appeal this Order by filing one copy of a Notice of Appeal with the Clerk of the Department of Professional Regulation, Northwood Centre, 1940 N. Monroe Street, Tallahassee, Florida 32301, and by filing the filing fee and one copy of the Notice of Appeal with the District Court of Appeal within thirty (30) days of the effective date of this Order.
This Order shall become effective upon filing with the Clerk of the Department of Professional Regulation.
DONE AND ORDERED this 10th day of August, 1989.
MIKE BLANKENSHIP, CHAIRMAN
Construction Industry Licensing Board
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been provided by U.S. Mail to
Neal A. O'Connor 1925 Hastings Drive
Clearwater, Fl 34623
and by hand delivery/United States Mail to the Board Clerk, Department of Professional Regulation and its Counsel, Northwood Centre, 1940 North Monroe Street, Tallahassee, Florida 32399-0792, on or before 5:00 pm., this 16th day of August 1989.
F I L E D
Department of Professional Regulation Florida Construction Industry Licensing Board
Board Clerk
Clerk Date: August 16, 1989
Docket for Case No: 89-000186
Orders for Case No: 89-000186
| Issue Date |
Document |
Summary |
|
Aug. 10, 1989 |
Agency Final Order
|
|
|
May 25, 1989 |
Recommended Order
|
Qualifying agent for contractor is responsible for quality of work done by employees and has duty to supervise. Failure to do so is misconduct
|
