Did Mr. Dean practice fraud, deceit, or misrepresentation in the performance of radon mitigation? (Count III)
On September 17, 2012, Petitioner, Department of Health (Department), filed an Administrative Complaint against Mr. Dean. The Complaint alleged that Mr. Dean violated chapter 404, Florida Statutes (2010),1/ and Florida Administrative Code Chapter 64E-5 by improperly installing a radon mitigation system, by performing radon measurements without certification, by engaging in misrepresentations in the performance of radon mitigation, and by performing radon mitigation without a license. On November 2, 2012, Mr. Dean requested a formal hearing to contest the allegations. The Department referred the matter to the Division of Administrative Hearings on November 2, 2012. The Division scheduled the matter for hearing to be held January 7, 2013.
Based upon changes in representation for both parties, the parties filed a stipulated motion for continuance that was granted. The hearing was re-scheduled for March 27, 2013.
By Order dated March 8, 2013, the undersigned granted the Department's February 22, 2013, motion to amend its complaint to remove the charge that Mr. Dean performed radon mitigation without a license and denied the Department's February 14, 2013,
Motion to Strike Affirmative Defenses. The hearing was conducted as noticed.
When the hearing began, the parties stipulated that: In the State of Florida there are radon mitigation systems that have been installed, maintained, operated in ways that do not comply with certification requirements and do promote mold growth.
The Department offered the testimony of Clark Eldredge and Jorge Laguna. Department Exhibits 4, 5, 6, 10 and 18 were accepted into evidence.
Mr. Dean testified and presented the testimony of Marianne Dwyer. Mr. Dean offered Exhibits 8, 9, 17, 19, 20, and 21, which were pre-marked and originally submitted as proposed Department exhibits in the Department's exhibit notebook. Those exhibits were accepted without objection. In addition, Mr. Dean's Exhibits 8 through 13, 22 through 26, 28, 30, 31, 34, 35, and 40 were admitted into evidence without objection.
The Transcript of the proceeding was filed April 10, 2013. The parties timely filed proposed recommended orders. They have been considered in preparation of this Recommended Order.
The Department is a state agency charged with certifying persons providing radon services pursuant to chapter 404, Florida Statutes.
Radon is an inert gas that human senses cannot detect.
Radon gas occurs naturally in the soil. It is the second leading cause of lung cancer. Limiting human exposure to radon is essential to the public health and welfare. The Legislature created the Florida radon certification program to address the dangers of radon.
At all times material to this proceeding, Mr. Dean was certified to provide radon mitigation services for a fee. He held radon mitigation specialist certificate number R1878, radon measurement specialist certificate number R1121, and radon mitigation business certificate number RB2077, which is registered under the corporate name Air Quality Engineering, LLC, a/k/a Air Quality Engineering Associates, LLC, and d/b/a RadonMan, Inc. Mr. Dean was not certified to provide radon measurement services to the public. He also did not own and was not employed by a certified radon measurement business. At all times material to this case, Mr. Dean was president of RadonMan,
Inc.
On or about December 17, 2010, Mr. Dean caused a radon
mitigation system to be installed at a residence located at
352 Bay Forest Drive, Unit 103, Naples, Florida. Mr. Dean engaged the installer, provided the directions for installation of the system, and provided the system components. The property owner, Mark Hopkins, engaged Mr. Dean, through his business
RadonMan, Inc., to install the system as part of activities resulting in the sale of their home to Dominique Olree. Mr. Dean never checked to determine if the system was installed as directed.
In March 2011, the Department received a complaint from Mr. Olree, which reported that the radon mitigation system installed in 352 Bay Forest Drive, Unit 103, was not performing properly.
At Mr. Olree's request, Department employees Clark Eldredge, Program Administrator for the Radon and Indoor Air Quality Program, and Jorge Laguna, Environmental Manager, conducted an on-site investigation on April 13, 2011, of the radon mitigation system Mr. Dean installed at the Bay Forest Drive home.
At the time a Collier County code compliance officer and a general contractor were also at the home. The compliance officer was responding to a complaint of Mr. Olree's. The contractor was removing the system for Mr. Olree.
On April 13, 2011, Mr. Eldredge and Mr. Laguna observed the system components and installation as the contractor disassembled it.2/
On December 5, 2011, Mr. Eldredge and Mr. Laguna conducted a second inspection of the system's duct work which remained in the house.
The system Mr. Dean provided at 352 Bay Forest Drive was an engineered radon mitigation system required to have a warning device that alerts the occupants of the building if the system is operating properly. The device must be conveniently visible or must produce an audible signal of at least 60 decibels.3/
The device in the Forest Bay system relied upon an LED light to provide the warning. The light glowed red when the system was working. It stopped glowing when the system was not working. The system did not have an audible signal. The light was not visible when the cabinet door was closed. When the cabinet door was open, the light and the device were not conveniently visible to a person five feet, eleven inches tall or shorter.
The radon mitigation system Mr. Dean provided for the Forest Bay system ventilated the home with fresh air from outside the home to mitigate radon in the home by dilution and pressurization. The system routed the fresh air through ducts into the home's air conditioning system duct work.4/ The system included a motion sensor intended to turn the system on when people are in the home and to shut the system off whenever the home is vacant for 60 hours.
The system also included filters and other features intended to reduce the risk of the system contributing to mold
growth in the home. This issue is one about which Mr. Dean has extremely strong feelings. He believes that the Department does not adequately or responsibly address mold growth in its regulation of radon mitigation or enforcement of existing requirements. Mr. Dean has made his beliefs known over the years.
After the April 13, 2013, inspection of the radon mitigation system, Mr. Eldredge and Mr. Laguna continued the investigation by requesting additional information from Mr. Dean, including information about the system and its design.
Mr. Dean's response included a schematic diagram of the system. The diagram represented the system as tying the fresh air intake into the home's air conditioning system.
Mr. Dean, however, wrote in his July 29, 2011, letter to Mr. Laguna that "[t]he system . . . does not connect to the air conditioning system "
He also stated that because the system did not connect to the air conditioning system, he was not required to obtain a Collier County permit for the installation.
The documents obtained during the investigation included a December 17, 2010, letter from Mr. Dean to Mark Hopkins, owner of the Bay Forest home at the time.
The letter to Mr. Hopkins described the work RadonMan had performed. It did not describe connecting the fresh air
source to the air conditioning system. It described duct work delivering "the outdoor air to a soffit mounted grill mounted near the ceiling in the hallway."
In a section of the letter titled "Post Mitigation Testing," Mr. Dean stated:
RadonMan performed initial radon testing during the course of radon mitigation. The radon level was found to be easily below 4.0 picocuries per liter, which is the USEPA Action Level. Final tuning and testing will be performed over the next week in order to deliver the precise radon level desired by the new owners. After all tuning is complete, RadonMan recommends that third party arm's length final testing be performed by the same radon measurement firm who found elevated radon level, with the same instrument in order to eliminate even the appearance of conflict of interest. If elevated radon levels are found, RadonMan technicians will adjust the system accordingly.
Mr. Dean also provided an exemplar of a letter he provides customers after installation of a radon mitigation system. It is not a reproduction of an actual letter sent to a customer.5/ The exemplar was similar to the letter to Mr. Hopkins. The letter includes a section titled "Post Mitigation Testing" that indicates Mr. Dean tested the residence for radon and reports the radon level detected. It also includes a recommendation for "third party arm's length final testing." The letter includes a sample print out of radon testing results.
The clear and convincing evidence proves that, in the case of the installation for Mr. Hopkins, Mr. Dean tested the Bay Forest home's radon levels and reported the levels to the owner as part of the installation of the system.
CONCLUSIONS OF LAW
Jurisdiction
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with sections 120.569 and 120.57(1), Florida Statutes (2012).
Burden and Standard of Proof
This is a proceeding to take disciplinary action against Mr. Dean. Because of the penal nature of these proceedings, the Department bears the burden of proving the allegations in the Amended Administrative Complaint by clear and convincing evidence. Nair v. Dep't of Bus. & Prof'l Reg., Bd. of
Med., 654 So. 2d 205 (Fla. 1st DCA 1995). As stated by the Supreme Court of Florida,
Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and lacking in confusion as to the facts in issue. The evidence must be of such a weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
In re Henson, 913 So. 2d 579, 590 (Fla. 2005)(quoting Slomowitz v.
Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).
Moreover, in disciplinary proceedings, the statutes and rules allegedly violated must be strictly construed in favor of Respondent. Elmariah v. Dep't of Prof'l Reg., 574 So. 2d 164 (Fla. 1st DCA 1990); Taylor v. Dep't of Prof'l Reg., 534 So. 2d 782, 784 (Fla. 1st DCA 1988).
Count I--Failure to Properly Install Device
Section 502.3 of the Florida Standard For Mitigation of Radon in Existing Buildings, adopted by reference in Florida Administrative Code Rule 61-38.001 and applied by rule
64E-5.1207(11), requires: "Any engineered system must have a mechanism installed to automatically indicate failure of the system to building occupants, which shall be either a visual device conveniently visible to building occupants, or a device that produces a minimum 60 db audible signal." The failure indicator for the system did not meet this standard. It was located in a cabinet and not visible when the cabinet door was closed. When the cabinet door was open, the device was not visible to a person five feet, eleven inches, tall or shorter. The Department proved the violation alleged in Count I by clear and convincing evidence.
Count II--Unlawful Radon Measurement
Sections 404.056(2)(a) and (b) provide:
The department may certify persons who perform radon gas or radon progeny measurements, including sample collection, analysis, or interpretation of such measurements, and who perform mitigation of buildings for radon gas or radon progeny, and shall collect a fee for such certification. Before performing radon measurement or radon mitigation services, including collecting samples, performing analysis, or interpreting measurement results, a certified individual must own, be employed by, or be retained as a consultant to a certified radon measurement or certified radon mitigation business. The department may establish criteria for the application, certification, and annual renewal of basic and advanced levels of certification for individuals, which may include requirements for education and experience, approved training, examinations, and reporting. The department may approve training courses for certification and establish criteria for training courses and instructors. The department may observe and evaluate training sessions, instructors, and course material without charge.
A person may not participate in performing radon gas or radon progeny measurements, including sample collection, analysis, or interpretation of such measurements, or perform mitigation of buildings for radon gas or radon progeny, and charge a fee or obtain other remuneration as benefit for such services or devices, unless that person is certified by the department. A certification issued in accordance with this section automatically expires at the end of the certification period stated on the certificate. An uncertified commercial business may subcontract radon measurements to a
certified radon business. The uncertified commercial business must provide the complete radon report from the certified radon business to the client and direct all the client's questions about the measurements or radon report to the certified radon business.
Clear and convincing evidence proves that Mr. Dean performed radon gas measurement at the Bay Forest home, even though he also recommended independent testing. Since the tests were part of the system and installation that he sold, he was compensated for them.
The parties stipulated that:
At all times material hereto, Wayne Dean has been certified to provide radon mitigation services for a fee, holding radon mitigation specialist certificate (No. R1878), radon measurement specialist certificate (No.
R1121), and radon mitigation business certificate (No. RB2077), which is registered under the corporation name Air Quality Engineering, LLC a.k.a. Air Quality Engineering Associates, LLC and d.b.a.
RadonMan, Inc. At all times material hereto, Respondent [Mr. Dean] is [sic] the president of RadonMan, Inc.
The plain and ordinary meaning of the words of section 404.056(2)(a) permit a person who owns or is employed by a certified radon mitigation business to make radon measurements. The plain and ordinary meaning controls. Cherry v. State, 959 So. 2d 702, 713 (Fla.2007). The parties' stipulation establishes that Mr. Dean is a member of the class of people permitted to
perform radon measurement for a fee. The Department did not prove Count II.
Count III--Fraud, Deceit, or Misrepresentation
Section 404.056(2) provides: "Any person who practices fraud, deception, or misrepresentation in performing radon gas or radon progeny measurements or in performing mitigation of buildings for radon gas or radon progeny is subject to the penalties provided in s. 404.161." The Department's theory on this charge is that since the duct work connected to the air conditioning system, a Collier County permit was required and that Mr. Dean fraudulently or deceptively misrepresented to
Mr. Hopkins that no permit was required. The charge fails for two reasons.
First, the Department did not submit persuasive or non-hearsay evidence that Collier County required a permit for
radon mitigation systems connected to an air conditioning system. For instance, the record does not contain and no citation has been made to a Collier County code or ordinance requiring a permit. Second, proof of fraud, deception, or misrepresentation requires proof the person knew his representations were false.
First Nat'l Bank v. Jackson, 267 So. 2d 697 (Fla. 4th DCA 1972). Clear and convincing evidence does not establish this element.
The evidence, including Mr. Dean's conduct, demeanor, and testimony at the final hearing, indicates confusion, not deceit.
Conclusion
The Department proved the violation of section 502.3 of the Florida Standard for Mitigation of Radon in Existing Buildings, adopted by reference in Florida Administrative Code Rule 61-38.001 and applied by rule 64E-5.1207(11), charged in Count I by clear and convincing evidence. The requested fine of
