The Issue Whether Petitioners, Charles and Andrea Abraham, were subject to a discriminatory housing practice by Respondent, Sandy Cove 3 Association, Inc., based on their national origin, in violation of Florida's Fair Housing Act. 1 All statutory references are to Florida Statutes (2020), unless otherwise noted.
Findings Of Fact Sandy Cove 3 ("Sandy Cove") is a small development of condominiums located in Sarasota, Florida. Sandy Cove was built in 1973 and consists of 16 units. Sandy Cove is governed and operated by the Association. Petitioners own a two-bedroom condominium in Sandy Cove. Petitioners purchased their unit (#220) in 2009. They primarily use their condominium as rental property. At the final hearing, Petitioner Charles Abraham testified that he and his wife, Andrea, reside primarily in Maryland and Hungary. The focus of this dispute centers on a corkscrew of copper water pipes that runs from the top of the water heater in Petitioners' condominium into the primary water pipes within the unit's walls. This matter specifically concerns who should pay to replace these pipes. Each party believes that the other side should bear the costs. In their initial housing discrimination complaint filed with the Commission, Petitioners attribute the Association's refusal to replace the copper pipes in their condominium to discrimination based on their national origin (Hungarian). At the final hearing, Mr. Abraham testified that, sometime in 2016, Petitioners noticed that the water pipes connected to their water heater were beginning to show ominous signs of age and wear. The bends and joints of several pipe sections had turned green and were developing a buildup of corrosion. Petitioners felt that the pipes were a "disaster" waiting to happen. Mr. Abraham stated that initially he attempted to repair the pipes himself by applying glue to several connections. However, because he noticed a small amount of water leakage "from time to time," he believed that the pipes were in real danger of cracking or popping open. In 2018, Petitioners turned to the Association for assistance in fixing the potential plumbing problem. On November 28, 2018, Petitioners wrote the Association requesting it to repair their pipes. Thereafter, according to Mr. Abraham, the parties exchanged "around 100 emails" discussing how the pipes should be fixed, and who should pay for the repairs. Eventually, in the summer of 2019, Sandy Cove management contacted Daniel's Plumbing Service to inspect Petitioners' plumbing situation. On July 29, 2019, a plumber from Daniel's Plumbing Service examined Petitioners' water heater and the pipes attached to it. Following his inspection, the plumber wrote on the service invoice: Arrived and found corrosion on copper adapters to water heater. Water heater is 30 gallon electric that is 19 years old. Water heater should be replaced. Relief valve is 1/2" which should be changed to 3/4". Gate valve to water heater is no good and also needs to be replaced. No leaks at this time. The plumber then added: Notes-Dylan from management said to pick up-no further work is to be done at this time. He said work that is to be done is homeowners responsibility. Mr. Abraham testified that, after the plumbing inspection, the Association informed him that the pipes located inside his condominium were his responsibility as the unit owner, not the Association's responsibility. Mr. Abraham declared that the Association has refused to pay to replace the copper pipes in his unit. Mr. Abraham claimed that the Association's response was contrary to what he had seen and heard regarding the water pipes in other units. He insisted that the Association has paid to replace pipes for other condominium owners within Sandy Cove. Mr. Abraham specifically believed that in 2016, the Association repaired or replaced pipes with similar issues in units 115, 116, 117, 215, and 216. To support his position, Mr. Abraham relayed that, in 2017, the Association collected a special assessment from every unit owner specifically to cover the plumbing issues at Sandy Cove. Mr. Abraham recounted that he personally paid the Association $2,100. Consequently, Petitioners were quite frustrated that, after paying the Association several thousand dollars specifically for Sandy Cove plumbing problems, the Association refused his request for assistance to fix his own copper pipes. Seeking to confirm the necessary repairs, Petitioners hired two additional plumbers to inspect the water pipes in their unit. A plumber from Michael Douglas Plumbers visited Petitioners' condominium on September 9, 2020, and documented the following: Proposal to replace copper piping in water heater closet (very corroded and recommend replacing) * * * All piping from wall to water heater to be in PEX with new ballvalves Water heater is 20 yrs old 30 gal low (30 amp breaker) recommended replacement. * * * Replacement will cost … $1511.76 … this price includes replacing pipes as well. Petitioners also introduced the testimony of Robert DeForge, the current Operations Manager for Daniels Plumbing Service. Mr. DeForge was not the plumber who inspected Petitioners' water heater in July 2019. However, as a Master Plumber with over 30 years of plumbing experience, he credibly expounded on the description written on the July 29, 2019, invoice. Mr. DeForge explained that copper pipes are no longer favored within the plumbing industry. Instead, the current industry standard is to use PVC pipes (polyvinyl chloride – a synthetic plastic) for cold water pipes and CPVC pipes for hot water (CPVC is designed to handle a hotter temperature range). Regarding the status of Petitioners' pipes, Mr. DeForge confirmed that copper pipes can corrode over time. Following his review of a photograph of Petitioners' copper pipes and water heater, Mr. DeForge opined that the corrosion about which Petitioners complain did not result from a water leak, but is due to electrolysis from metal on metal contact (galvanized pipe to copper pipe). Mr. DeForge further remarked that corrosion can lead to water leaks, which will require the pipes to be replaced. At that point, if Petitioners are experiencing leaking pipes, Mr. DeForge would recommend that the current copper pipes be replaced with PVC/CPVC pipes. Mr. DeForge also commented that a pipe replacement job would likely increase the size of the pipes connected to the water heater. The 1/2" copper pipes currently attached to Petitioners' water heater would be replaced with 3/4" PVC/CPVC pipes. Mr. DeForge added that the pipes could be replaced without having to displace Petitioners' current water heater. The procedure would require an adapter to connect the 3/4" PVC pipe to the 1/2" relief valve affixed atop the existing water heater. Addressing the cost of the plumbing services to rectify the problem, Mr. DeForge testified that simply replacing the pipes above the water heater will cost about $150. To replace everything (new pipes and new water heater), the plumbing services would cost approximately $1,000 to $1,200. Mr. Abraham expressed that Petitioners' ultimate goal is to have the Association pay to replaced the copper pipes in his unit. Regarding the water heater, Mr. Abraham stated that he understands that the old water heater is his responsibility as the unit owner. Therefore, Petitioners are prepared to bear that expense. That being said, Mr. Abraham asserts that the water heater is functioning perfectly fine at present. Therefore, the only problem that needs to be remedied at this moment is the condition of the aging copper pipes. In doing so, however, Mr. Abraham added that the current plumbing situation is complicated by the fact that, to install new PVC/CPVC pipes, the relief valve connecting the water heater to the (new) pipes should be replaced. And, if the relief valve must be replaced, then Mr. Abraham asserts that the water heater should be replaced, as well. Mr. Abraham estimates that the entire service job will cost between $1,500 and $2,000. John Meuschke testified on behalf of the Association. Mr. Meuschke currently serves as president of the Association's board of directors, a position he has held for over 11 years. He also owns a unit in Sandy Cove. Mr. Meuschke stated that, generally, the Association assumes all financial responsibility for maintaining and repairing the "common elements" within Sandy Cove. Mr. Meuschke explained that the "common elements" consist of everything outside the individual condominium units. Conversely, the individual owners are responsible for the maintenance and repair costs for issues occurring inside their units' walls. Regarding Petitioners' specific complaint, Mr. Meuschke recounted that the Association received Petitioners' 2018 correspondence regarding a water leak in their unit. Mr. Meuschke advised, however, that the Association declined to pay for the requested repairs because the copper pipes which Petitioners sought to replace were located inside Petitioners' unit, directly above the water heater to be precise. Accordingly, Mr. Meuschke contended that Petitioners were responsible for any costs associated with the pipes' repair or replacement. Conversely, Mr. Meuschke stated that if the water pipes were leaking inside the walls that divide the separate units, the Association would have assumed financial responsibility for any plumbing costs. Because the inspection by Daniels Plumbing Service revealed, "no leaks at this time," however, Mr. Meuschke asserted that nothing indicated that the Association should pay for any repairs involving Petitioners' copper pipes. Further, replacing a unit's water heater is the sole responsibility of each condominium owner, because it too is located within the confines of an individual unit at Sandy Cove. To support the Association's position, Mr. Meuschke referenced the Declaration of Condominium of Sandy Cove 3 (the "Declaration"). In determining who is financially responsible for repairs, Mr. Meuschke pointed to Article 6, entitled Maintenance, Alteration and Improvement, which provides: By the Association. The Association shall maintain, repair and replace at the Association's expense: All portions of a Unit, except interior surfaces, contributing to the support of the Unit, which portions shall include but not be limited to load- bearing columns and load-bearing walls. All … plumbing, … and other facilities for the furnishing of utility services contained in the portions of a Unit maintained by the Association, and all such facilities contained within a Unit that service part or parts of the Condominium other than the Unit within which contained. * * * By the Unit Owner. The responsibility of the Unit Owner shall be as follows: To maintain, repair, and replace, at his expense, all portions of his Unit except portions to be maintained, repaired and replaced by the Association. Such shall be done without disturbing the rights of other Unit Owners. * * * 6.5) Common Elements, By the Association. The maintenance and operation of the common elements shall be the responsibility of the Association as a common expense. Mr. Meuschke pithily explained that a unit owner owns everything from the paint on the Unit's walls inward, and the Association is responsible for everything from the walls out. Mr. Meuschke also voiced that the Association collects a monthly assessment from each condominium owner in Sandy Cove. This money is designated for the Association's annual operating budget. The assessments also pay for the upkeep of the Sandy Cove "common elements," as well as any necessary repairs of the same. Mr. Meuschke relayed that occasionally the Association imposes a special assessment against the unit owners to generate additional funds for the Association's operating budget. Pertinent to Petitioners' dispute, in March 2017, the Association levied an additional charge on all Sandy Cove condominiums. Mr. Meuschke confirmed that owners of one-bedroom units were assessed in the amount of $1,908, and two-bedroom units (including Petitioners) were tasked to pay an additional $2,100. The purpose of the Special Assessment was to replenish the Association's reserves, as well as pay for several unexpected plumbing issues. Mr. Meuschke explained that these plumbing issues concerned the original cast iron pipes that ran within the walls between the units. Several of these pipes had deteriorated and burst causing a number of active leaks. Because the cast iron pipes were not located inside the individual units, the Association considered them "common elements" and assumed the repair/replacement costs as an Association responsibility. None of the special assessment funds, however, were designated for repairs to Petitioners' unit or to pipes inside any other unit. To conclude, Mr. Meuschke steadfastly refuted Petitioners' allegation that the Association's decision regarding Petitioners' request for plumbing repairs was unfair. He specifically rejected Petitioners' claim that the Association took any action against Petitioners, or denied them services, based on their national origin. On the contrary, Mr. Meuschke asserted that the Association would have made the same decision regarding any unit owners' request to replace the copper pipes above the water heater located inside the boundaries of their condominium. Mr. Meuschke maintained that the Association's common and consistent practice has been to only pay to repair plumbing issues located in the Sandy Cove "common elements." Mr. Meuschke maintained that the Association has never paid to replace pipes or repair plumbing problems that have occurred inside an individual unit. Instead, the unit owner has always been responsible for that repair or maintenance activity. Petitioners offered no evidence to prove otherwise. Based on the competent substantial evidence in the record, the preponderance of the evidence does not establish that the Association discriminated against Petitioners based on their national origin. Accordingly, Petitioners failed to meet their burden of proving that the Association committed unlawful discrimination in violation of the FHA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order determining that Respondent, Sandy Cove 3 Association, Inc., did not commit a discriminatory housing practice against Petitioners and dismissing their Petition for Relief. 4 See, e.g., Gooden v. Internal Rev. Serv., 679 Fed. Appx. 958, 966 (11th Cir. 2017)(“[G]eneral allegations, based on mere speculation and hunches, in no way establish that any alleged [discriminatory activity] was race-, gender-, or disability based.”). DONE AND ENTERED this 10th day of February, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Charles Abraham Andrea Abraham Post Office Box 162 Highland, Maryland 20777 Brett Stolson Argus Property Management, Inc. 2477 Stickney Point Road, Suite 118A Sarasota, Florida 34231 Robert Braland 4413 Claybrooke Drive Lothian, Maryland 20711 S J. BRUCE CULPEPPER Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 2021. Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Paul Edward Olah, Esquire Law Offices of Wells Olah, P.A. 1800 Second Street, Suite 808 Sarasota, Florida 34236 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399
The Issue The issue is whether Petitioner is entitled to a passing grade on the Principles and Practice of Engineering portion of the engineering licensure examination administered on April 23, 1999, by the National Council of Examiners for Engineers and Surveyors.
Findings Of Fact Petitioner has a bachelor of science degree in mechanical engineering from California State University in Sacramento. He has worked as a mechanical engineer for Long and Associates in Tampa for ten years. His responsibilities include the calculation of cooling and heating loads and design of heating, ventilating, and air-conditioning (HVAC) systems. He has ten additional years' engineering experience in his home country of Iran, which he left in 1978. Petitioner challenges the scoring of two essay questions on the Principles and Practice Engineering Examination (Exam) administered on April 23, 1999. By stipulation, the parties agree that Petitioner would pass the Exam if he receives an additional credit of one raw point. Petitioner challenges Questions 146 and 147. Question 146 asks whether an existing rooftop heat pump, as specified, has the capacity to supply 100 percent outside air makeup to specified space, under specified usage, during the summer and winter. The question tells the applicant to ignore solar heat gain. Question 147 asks the applicant to determine the overall heat transfer coefficient and the exit temperature of water being heated, assuming a clean shell-and-tube heat exchanger of a specified capacity and subject to specified usage. Scoresheets for both questions describe the standards for points to be awarded to answers. The purpose of these descriptions is to normalize the scoring that is performed by different scorers. The scoresheet descriptions address points in two-point increments: each scoresheet describes the requirements for 10, 8, 6, 4, and 2 points, but not odd-numbered points. For Question 146, an answer receiving ten points must be "[e]xceptionally competent." The description for a maximum of 10 points states: Correct evaluation of both winter and summer conditions, with only minor math error is required. A complete and correct solution which demonstrates knowledge, skills, and abilities with no conceptual errors is sought. Correct use of equations or the psychrometric chart is imperative. A minor error in reading the chart is acceptable. For eight points, an answer must demonstrate "more than minimum, but less than exceptional competence." The description for eight points states: The solution is essentially correct with one of the following errors: Incorrect application of load equations (Winter or Summer) including structural heat or cooling load, people, lights, and equipment, Incorrect application of the fresh air load, Incorrect conclusion of whether the unit is satisfactory for both winter or [sic] summer. For six points, the answer must demonstrate "minimum competence," with any two of the three errors listed in the preceding paragraph. For four points, the answer must demonstrate "more than rudimentary knowledge but insufficient to demonstrate minimum competence," with all three of the errors listed in the preceding paragraph. For two points, the answer must demonstrate "rudimentary knowledge," with a presentation of any one of the "concepts defined above," but without an attempted "solution." For zero points, the answer must demonstrate "no knowledge," with a presentation of "[n]othing significant . . . to indicate knowledge of the problem." For Question 147, the descriptions omit the labels, such as "exceptionally competent," present in the scoresheet descriptions for Question 146. However, the descriptions for Question 147 are detailed. For ten points, the answer must demonstrate "[c]orrect analysis." The description states that the answer "[m]ay have minor errors (sloppy chart reading or decimal error)." For eight points, the answer may demonstrate three types of error: errors valued at 20 percent, errors valued at 10 percent, and errors with a variable value. For errors valued at 20 percent, the description allows three sources of error: a "units error," "incorrect evaluation of LMTD [log-mean temperature difference]," or "incorrect calculation of q (use of LMTD instead of (?T)fluid or vice- versa)." valued at no more than 20 percent and four types of error valued at no more than 10 percent, and one error having a variable value. For errors valued at ten percent, the description allows four sources of error: "no heat exchanger correction factor used (or uses F = 1.0)," "incorrect use of the fouling factor," "incorrect evaluation of the NTU [Number of Transfer Units] or effectiveness," or "failure to evaluate the final temperature of the water being heated." For errors with variable value, the description allows one source of error: "incomplete solution." For six points, the answer may demonstrate an error valued at 40 percent, if from the following two sources: "failure to realize that fouling causes a change in LMTD" or "a score resulting from any combination of the above listed errors adding up to 40 percent." For four points, the answer may demonstrate any combination of the above-listed errors valued at no more than 60 percent. For two points, the answer may demonstrate "[v]ery little progress toward a solution," or any combination of the above-listed errors valued at no more than 80 percent. For zero points, the answer must demonstrate "[n]o significant work." The National Council of Examiners for Engineering and Surveying (NCEES) scored all of the Exams. The NCEES scorer assigned Respondent four points for his answer to Question 146 and two points for his answer to Question 147. Petitioner appealed the two scores, and an NCEES scorer rescored them the same. For Respondent's answer to Question 146, the NCEES scorer noted: The examinee did not consider at all the added heat gain in the summer and the added heat loss in the winter due to the 4000 cfm ventilation load. These are egregious errors. In addition the 40,000 Btu/hr equipment load was not included, and the examinee did not neglect the solar heat gain as stated in the problem (which was done to simplify the problem). This is a total of four errors. The examinee did not meet the criteria for minimum competence, hence only a score of 4 was earned. For the answer to Question 147, the NCEES scorer noted: The examinee has made the following mistakes and/or omissions. The examinee used an incorrect equation to determine the log-mean temperature difference (LMTD). It cannot be a parallel flow heat exchanger as assumed by the examinee since the exit temperature of the cold stream would be at a higher temperature than the exit temperature of the hot stream for parallel flow. Also, see the diagram given with the exam question. Examinee has assumed a correction factor, F, of 1.0. This is an incorrect value. Units on calculated Q value of 10,080 are incorrect. Units would be Btu/min, not Btu/hr. Also, mass rate of flow was given as 10,000 lb/hr. LMTD)dirty ? LMTD)clean. Need to use this Effectiveness-NTU method to determine Tc,o. No indication of knowing the need for Cmin and ?Tmin to determine Q for dirty conditions. Based on above analysis and the scoring plan, a score of 2 is recommended. In asking the examinee to assess the capacity of the rooftop HVAC unit, Question 146 asks the examinee to evaluate the summer loads and the winter loads. The description for eight points appears to list only three possible errors. However, paragraphs a) and c) each describe two possible errors because of the division of the problem into winter and summer situations. Paragraph a) explicitly identifies two errors: the incorrect application of load equations--in the winter or summer. Despite its illogical linkage of "both" with the disjunctive, "or," paragraph c) also identifies two possible errors: the capacity of the unit for wintertime heating and the capacity of the unit for summertime cooling. Paragraph b) is ambiguous regarding whether it identifies one or two errors. Although the fresh air load is clearly relevant to heating and cooling tabulations, paragraph b), unlike paragraphs a) and c), omits mention of the two seasons. Militating in favor of an interpretation of paragraph b) as identifying two errors, Question 146 clearly identifies two seasons for solution. Also, the fresh air load is almost equal to the total of the other heating loads for summertime cooling and about five times greater than the total of the other cooling loads for wintertime heating. On the other hand, paragraphs a) and c) mention the two seasons and paragraph b) does not. Also, the importance of the fresh air load is already reflected in the fact that its omission means (at least) one error under paragraph b) and almost always means another error for the wintertime result under paragraph c). On balance, the better interpretation is to limit paragraph b) to one error. Respondent has already received the benefit of the doubt in the interpretation that the two paragraphs, a) and c), establish four errors. Given the high likelihood, as in this case, that the omission of the fresh air load will also cause an error under paragraph c), the interpretation that paragraph b) identifies two (and, thus, probably three) errors is unfair and unsupported by the record. Petitioner does not dispute that he incorrectly omitted the fresh air load, which is paragraph b). Petitioner's attribution of this omission to "exam stress" is irrelevant. For the reasons already noted, this omission, although a flaw in his summertime and wintertime tabulations, constitutes only one error. Due to the omission of the fresh air load from his wintertime calculations, Petitioner also incorrectly concluded that the HVAC unit is adequate for wintertime heating, which is paragraph c). This is Petitioner's second error. However, Petitioner correctly concluded that the HVAC unit is adequate for summertime cooling. Respondent's contention that this conclusion is guesswork is irrelevant. The simple fact is that Paragraph c) does not justify the finding of an error as long as the conclusion is correct. Perhaps the NCEES may wish to revise paragraph c) in future tests. However, the assertion of guesswork is relevant only to a determination whether an answer is entitled to eight points. For eight points, the description effectively precludes guesswork by requiring, in addition to no more than one of the possible five errors, an "essentially correct solution." An "essentially correct solution" would contain sufficient information as to preclude the possibility of guesswork. In any event, the NCEES elected not to impose the requirement of an "essentially correct solution" for the "minimum competence" required for a score of six points. The sole requirement for six points is that the examinee not make more than two of the five possible errors described in the description for eight points. For this reason, much of the testimony of Respondent's expert concerning the overall inadequacy of Petitioner's answer is irrelevant to the issue of whether Petitioner is entitled to six points. The testimony of Respondent's expert that Petitioner's summertime conclusion is the product of guesswork is also unsupported by the record. As noted below, Petitioner's analysis of summertime loads addresses all load components, other than the fresh air load, and does so in a substantially accurate manner. The issue concerning Question 146 therefore turns on whether Petitioner committed any error regarding paragraph a). If he committed even one error, he would have committed three of the five described errors and would be entitled only to the four points that he was awarded. If he committed no errors, he would have committed only two of the five described errors and would be entitled to six points, which would earn him a passing grade. Petitioner correctly accounted for the wintertime heating loads or credits attributable to the roof, walls, and equipment. Although he ignored the impacts of the lights and people, Petitioner adequately explained his exclusion of these items, in accordance with generally accepted engineering practices. Petitioner thus did not commit an error in his answer to the wintertime application of the load equations. The preceding statement is unaffected by the recognition that Petitioner's answer ignores the largest single factor in wintertime heating: fresh outside air. This significant omission cost Petitioner two errors: one under paragraph b) where Petitioner ignored the fresh air load and one under paragraph c) where, due to the size of the fresh air load, Petitioner erroneously concluded that the HVAC unit was sufficient for wintertime heating. Under the scoring scheme of the Exam, Petitioner did not commit a third error under paragraph a) due to this omission of fresh outside air. Petitioner correctly accounted for the summertime cooling loads attributable to the people, lights, equipment, roof, and walls. Respondent's expert admits that Petitioner correctly tabulated the cooling loads for the people, lights, and equipment, but contends that Petitioner incorrectly tabulated the cooling loads for the roof and walls. Petitioner calculated excessive cooling loads for the roof and walls. His calculations were 14,377.5 Btu/hr for the roof and 2700 Btu/hr for the walls. The correct calculations were 6390 Btu/hr for the roof and 1200 Btu/hr for the walls. However, this discrepancy is attributable to Petitioner's failure to ignore the effects of solar heat gain. The purpose of the direction to ignore the effects of solar heat gain was to simplify the problem. In determining whether Petitioner's answer correctly applied the load equations, the issue is the application of the loading factors for the roof and walls, not that Petitioner overly complicated his answer by adjusting these factors for solar gain. Petitioner thus did not commit an error in his answer to the summertime application of the load equations. The record does not permit a comprehensive finding as to the source of the error in the original scoring of Petitioner's answer to Question 146, but it does in the rescoring and the testimony of Respondent's expert witness. Incorrectly identifying two possible errors identified by paragraph b), the NCEES scorer found two errors in Petitioner's failure to consider the fresh air load in summertime cooling or wintertime heating. This should have been only one error. The NCEES scorer then identifies as another error Petitioner's failure to account for the equipment cooling load. This is a mistake by the scorer because, as Respondent's expert witness admitted, Petitioner's answer includes the impact of the equipment in the summer and winter. The NCEES scorer then finds a fourth error in Respondent's failure to ignore solar heat gain, as instructed by Question 146. There are two problems with this assertion. First, the direction to ignore solar heat gain was to simplify the problem, so it would not appear that an examinee's disregarding of the direction should necessarily result in the loss of credit. More importantly, the failure to disregard solar heat gain is not one of the five errors identified in the description for eight points. The NCEES scorer improperly failed to proceed to analyze Petitioner's summertime load tabulations. Respondent's expert recognized that Petitioner's answer accounted for the equipment in both seasons. However, in finding six errors in Petitioner's answer to Question 146 (Respondent Exhibit 12), Respondent's expert makes several errors. Respondent's expert repeats the error of the NCEES scorer concerning Petitioner's failure to ignore solar heat gain in his summertime load tabulations. For the reasons already noted, Respondent's expert discredits Petitioner's correct conclusion that the HVAC unit is adequate for summer use. Respondent then improperly counts as another error Petitioner's failure to address the "new process." Respondent's expert also counts as three errors, under the categories of the "new process," the heating capacity of the heat pump, and the conclusion of the adequacy of the heat pump for winter use, the single error of the conclusion of the adequacy of the heat pump for winter use. In general, Respondent's expert, who is not a qualified NCEES scorer, did not restrict his analysis to the scoring criteria contained in the Exam. Question 147 asks two questions of the examinee. First, Question 147 asks the examinee to determine the overall heat transfer coefficient in a clean shell-and-tube heat exchanger, assuming no heat loss. Second, Question 147 asks the examinee to determine the heat exchange (Q) and exit temperature of the heated water after the exchanger has been in service sufficiently long to build up a specified resistance from fouling. The scoring criteria for Question 147 are different from those for Question 146. To earn four points, Petitioner would have to show that the total number of cited errors added up to only 60 percent. Petitioner's basic problem on Question 147 is that he incorrectly treated the heat exchanger as a parallel flow exchanger, rather than the more common counter flow exchanger, which should have been evident from the text and diagram constituting Question 147. Again, Petitioner's explanation of the stressful testing conditions is rejected as irrelevant. Petitioner's challenge of Question 147 is groundless. His answer contained the following errors valued at 20 percent: a units error, an incorrect evaluation of LMTD, and an incorrect evaluation of q. His answer contained the following errors valued at 10 percent: the use of a heat exchanger correction factor of F = 1.0, an incorrect evaluation of NTU or effectiveness, and a failure to evaluate the final temperature of the heated water. His answer contained the following error valued at 40 percent: a failure to realize that fouling causes a change in LMTD. These errors total 130 percent. However, the NCEES scorer properly awarded Petitioner two points for his answer to Question 147. An answer is entitled to two points if the total value of the listed errors does not exceed 80 percent or if the answer displays "[v]ery little progress toward a solution," as opposed to the standard of "[n]o significant work," for which an answer earns zero points. Revealing more than "no significant work," Petitioner's answer achieved "very little progress toward a solution." Awarding Petitioner two more points for his answer to Question 146 means that Petitioner has passed the Exam.
Recommendation It is RECOMMENDED that the Florida Engineers Management Corporation enter a final order declaring that Respondent has passed the Exam. DONE AND ENTERED this 21st day of April, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 2000. COPIES FURNISHED: Houshang Ansari-Jaberi 121 Hickory Creek Drive Brandon, Florida 33511 William H. Hollimon Ausley & McMullen 227 South Calhoun Street Tallahassee, Florida 32301 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Dennis Barton, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 1208 Hays Street Tallahassee, Florida 32301 Natalie A. Lowe, Esquire Vice President for Legal Affairs Florida Engineers Management Corporation 1208 Hays Street Tallahassee, Florida 32301
The Issue Whether Respondent, Lakeland Manor Health Care Associates, LLC, d/b/a Wedgewood Healthcare Center, committed a Class I deficiency at the time of a survey conducted on October 29, 2004, so as to justify the issuance of a "conditional" license; and whether to impose an administrative fine of $10,000 under Section 400.23, Florida Statutes (2004), and an additional fine of $6,000 under Section 400.19, Florida Statutes (2004).
Findings Of Fact Based upon the evidence presented at the final hearing, the following relevant findings of fact are made: At all times material hereto, Petitioner is the state agency charged with licensing of nursing homes in Florida under Subsection 400.021(2), Florida Statutes (2004), and the assignment of a license status pursuant to Subsection 400.23(7), Florida Statutes (2004). Petitioner is charged with evaluating nursing home facilities to determine their degree of compliance with established rules as a basis for making the required licensure assignment. Pursuant to Subsection 400.23(8), Florida Statutes (2004), Petitioner must classify deficiencies according to the nature and scope of the deficiency when the criteria established under Subsection 400.23(2), Florida Statutes (2004), are not met. The classification of any deficiencies discovered determines whether the licensure status of a nursing home is "standard" or "conditional" and the amount of the administrative fine that may be imposed, if any. Surveyors note their findings on a standard prescribed Center for Medicare and Medicaid Services (CMS) Form 2567, entitled, "Statement of Deficiencies and Plan of Correction," which is commonly referred to as "Form 2567." During the survey of a facility, if violations of regulations are found, the violations are noted and referred to as "Tags." A tag identifies the applicable regulatory standard that the surveyors believe has been violated, provides a summary of the violation, and sets forth specific factual allegations that they believe support the violation. Insofar as relevant to this proceeding, Form 2567 identifies Tag F323, which is the basis of Petitioner's charging document. Respondent is a licensed nursing facility located at 1010 Carpenter's Way, Lakeland, Florida 33809. Based on the state requirements of Subsections 400.23(7) and (8), Florida Statutes (2004), and pursuant to Florida Administrative Code Rule 59A-4.133(16)(d), Petitioner determined that Respondent failed to comply with state requirements and under the Florida classification system, classified the noncompliance as an isolated state Class I deficiency which required immediate corrective action because Respondent's noncompliance was likely to cause serious injury, harm, impairment, or death to residents receiving care at Respondent. Should Respondent be found to have committed the alleged deficient practice, the period of the "conditional" licensure status would extend from October 29, 2004, through December 7, 2004, the date of Petitioner's follow-up survey in which the cited violations were found to have been corrected. On October 26, 2004, through October 29, 2004, Petitioner conducted an annual health and life safety survey of Respondent. On the morning of October 26, 2004, Thomas Gill, Petitioner's surveyor, who was the team leader of the survey team, toured the 800 hall of Respondent's facility. Gill was accompanied during his tour of the 800 hall with one of Respondent's employees, Kelly Riehn, an LPN. The survey procedure involved, inter alia, sampling rooms on the hall to determine if the hot water was felt to be within accepted temperature ranges. After the hot water in the lavatories in Rooms 800 through 803 had been turned on for more than 30 seconds, Gill noted that the skin on his hands turned a reddish color after holding his hands under the water for one to two seconds. He believed the water to be hotter than it should be. Gill proceeded to check the hot water by hand-inspection in the remainder of the rooms on the 800 hall. He found that the other rooms appeared to have hot water within the accepted range, including the bathing areas. The bathrooms in the residents' rooms contain only a toilet and sink. Gill then determined that he needed the maintenance director to come to the 800 hall to test the water temperatures with a thermometer. Gill informed Riehn that he needed the maintenance director. After some delay, Gill reported his findings to the survey team. He then located the life safety surveyor, who conducts an independent survey, and requested that he locate the facility maintenance director and assist him in measuring the water temperature in the four rooms and throughout the facility. After some delay in locating Respondent's employee, Leslie Bower, the life safety surveyor, accompanied the maintenance director, Mark Mulligan, to the maintenance office to review the blueprints for the facility and then proceeded to the room where the hot water heater was located to inspect the water heating devices and system. Bower then observed Mulligan test the water with a thermometer in three of the resident rooms. The temperature of the hot water coming out of the lavatory faucets in the residents' rooms registered 140 degrees Fahrenheit. To check the water temperatures, the water was allowed to run for 30 to 40 seconds, in order for it to get hot. Bower informed Gill that the hot water in the four affected rooms registered 140 degrees Fahrenheit. Gill reported his findings to the survey team. The survey team determined that because the hot water coming out of the tap was 140 degrees Fahrenheit, there was a likelihood of harm, injury, or death to residents and action need to be taken quickly. The survey team did not suggest that any resident was at risk of receiving extensive burns from immersion in a tub or placement under a shower. The only allegation of likelihood of harm to residents pertained to the sinks in Rooms 800 to 803. Gill informed Respondent's administrator, Clark Evans, at approximately 2:00 p.m., that the hot water in the four residents' rooms was 140 degrees Fahrenheit. Evans immediately proceeded to the four rooms (Rooms 800 through 803), where he tested the hot water with his hands in one of the affected rooms. After approximately 30 seconds, the water became "uncomfortable," and he had to remove his hands. Evans then turned the hot water off under the sink. He instructed Mulligan to turn off the hot water to the other three sinks, which was done. The evidence clearly reflects that the hot water temperature in the sinks of the four rooms was 140 degrees Fahrenheit on October 24, 2004, if the water was allowed to run for 30 to 40 seconds. During the time of Petitioner's survey, Riehn was a floor nurse on the 700 and 800 halls working the 7:00 a.m. to 3:00 p.m. shift. Riehn presented testimony that she washed her hands after giving medications to residents who resided in Rooms 800 through 803 prior to Petitioner's tour of the 800 hall. She typically washes her hands for 45 seconds. Then, she passes medications out to 30 residents each morning over a period of "about an hour and a half." Riehn testified that she "sometimes" turn on both the hot and cold water faucets when washing her hands. She did not recall anything "exceptional" about the water and that it "seemed normal." Riehn also administered medications at 12:00 noon and 2:00 p.m. on her unit, however, she presented no testimony concerning the water temperature at those times. Respondent had a system in place to check water temperatures on a weekly basis. The maintenance director checked one room on each hall, selected randomly, and checked all bathing areas each week. The reports were written in a log book, though the room number was not written down. Respondent also had a system for reporting maintenance and safety issues and kept a log for those purposes, as well. Staff received training on how to report safety issues. There was no record of any complaints of the water being excessively hot. There were also no incidents involving hot water in the facility's incident and accident reporting logs. When told that the water temperature in the four rooms was 140 degrees Fahrenheit, Evans attempted to determine the cause of the problem. He and the maintenance director pulled blueprints of the building and determined that those rooms were on a separate water heater from the remainder of the hall. This was an unusual system. As he had experience running a small nursing home, where he also had maintenance director duties, Evans, along with the maintenance director, also inspected the water heater and tried to adjust the mixing valve, which mixes hot and cold water to the appropriate temperature. Instead of resulting in an adjustment, the temperatures changed inconsistently, demonstrating that there was a problem with the valve. The circulating pumps that keep the water flowing through the hot water pipes, which provide hot water to the four affected rooms, were not working. The hot water pipes were on a loop system. Because the circulating pumps were not working, the hot water, once turned off at the sink, would just sit in the pipes instead of circulating back to the hot water heater. When the hot water was turned on at the sinks, it could come out hot or cold depending on how long it had been since the hot water was last turned off. A plumber was called immediately, and the problem was corrected before the end of the survey. While there was some hearsay evidence that some staff, upon questioning by the surveyors, indicated the water in the affected rooms was overly hot, this evidence was not reliable, as it was not known what questions were asked by the surveyors or in what context, and some of this hearsay was refuted by testimony. The greater weight of the evidence was that facility management had no reason to be aware of a problem with the hot water in those rooms and that as soon as they became aware of the problem, they responded quickly and thoroughly. Resident No. 27, who resides in one of the subject rooms, had dementia, resulting in poor safety awareness; and as a consequence, was at risk for falls. She was in a wheelchair, but would sometimes attempt to stand. Because of these concerns, she had a wheelchair alarm and a bed alarm which would sound if she attempted to get up. Additionally, she was positioned in her chair in front of the nurses' station so she could be monitored. She was closely observed, and this is reflected in the nursing notes. Staff was required to help Resident No. 27 ambulate. The resident was sufficiently alert to know when she had to go to the bathroom and would request staff assistance. The routine was that staff would take her to the bathroom, place her on the toilet, get her up, and then turn on the water to help her wash. CNAs check water temperatures before wetting a cloth to give to the resident. On one occasion, on September 24, 2004, Resident No. 27 was found in the bathroom by herself. Her bed alarm was going off, and Riehn, who found her, recorded the incident in the nursing notes. Though the water was running, there was apparently no problem with the temperature. This was the only known occasion when the resident tried to use the bathroom without assistance, as she was not allowed to use the bathroom without assistance. Resident No. 27 had no medical problems which would affect feeling in her extremities, and she was capable of feeling pain and reacting to it. She would not leave her hand in water hot enough to cause pain. Resident No. 29, who resides in one of the subject rooms, was more cognitively impaired than Resident No. 27. She required staff assistance for all her activities. She was in a Broda chair, which is a chair positioned to lean back so that a resident will not fall out. While the chair was mobile, Resident No. 29 did not have the cognitive capability to negotiate it through doorways to reach the bathroom and had never been known to do so. Resident No. 29 also did not have any condition which would cause her to lose feeling in her extremities or prevent her from withdrawing from pain. Resident No. 29 was not capable of getting herself into the bathroom. Resident No. 29 was under close and careful supervision, not because of fear of burns, but because she had a tendency to try to walk and fall. Even if she managed to get into the bathroom without staff observation, even if she turned on the hot water, even if the mixing valve was malfunctioning at that time, even if the water in the pipes was still excessively hot, and even if the facility had not detected and corrected the problem by then, she would have to defy pain while holding some part of her body under the faucet for several seconds. This occurrence was highly unlikely. There did not appear to be a sufficiently significant risk of harm to residents for the lead surveyor to notify facility staff when he checked the water temperature on the initial tour. Instead, he waited to report it at the team meeting, and the team thought it appropriate to wait for the maintenance director to return from lunch to check the temperatures, even though their protocol requires that the survey staff measure with their own equipment. A second-degree burn from water at 140 degrees Fahrenheit requires immersion for approximately five seconds. A second-degree burn damages, but does not destroy the top two layers of skin and heals in ten to 21 days. As it took approximately 30 to 40 seconds for water in the taps to reach 140 degrees Fahrenheit, a scalding burn would require that a person run the water for that period of time, and then hold his hand under the water, in spite of pain, for another five seconds. The problem with the hot water was either of recent origin or very intermittent, as there were no recorded difficulties. The water had been of appropriate temperature just prior to the survey, and no problems had been discovered in the weekly random room checks. Petitioner's position that water coming out of a sink at 140 degrees Fahrenheit constitutes a likelihood of serious injury or death to a resident is at odds with other regulations it enforces. Petitioner requires that hot foods be maintained at 140 degrees Fahrenheit for serving, so that a bowl of soup must be served to a resident at that temperature. It appears that there would be as much, if not more, chance of a burn from spilling a bowl of soup than from using a sink, where a resident would have to turn on the water and let it run and then voluntarily place her hand under the water. The evidence is not convincing that Respondent knew or should have known that water temperatures in the lavatories of four rooms were in excess of 115 degrees Fahrenheit on the day of the survey. The preponderance of evidence does not support the assertion that Residents 27 and 29 were in immediate risk of harm and were likely to be scalded by the hot water. The evidence does not support the likelihood of harm, injury, or death to those residents from the hot water.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that Petitioner, Agency for Healthcare Administration, enter a final order revising the October 24, 2004, survey report by deleting the deficiencies described under Tag F324, issuing a "standard" rating to Respondent to replace the previously-issued "conditional" rating, directing that all other records maintained by Petitioner that reflect the deficiency be revised by deleting it, and dismissing the Administrative Complaint. DONE AND ENTERED this 29th day of June, 2005, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 2005.
The Issue Whether Respondent is guilty of failing to discharge his supervisory duties as a qualifying agent, in violation of Section 489.11 and 489.105(4), Florida Statutes. Whether Respondent is guilty of making misleading, deceitful or untrue representations, in violation of Sections 489.129(1)(c) and 455.227(1)(a), Florida Statutes. Whether Respondent is guilty of gross negligence, incompetence, misconduct, fraud or deceit in the practice of contracting, in violation of Section 489.129(1)(m), Florida Statutes. Whether Respondent is guilty of exceeding the scope of his state registered mechanical contractor's license, in violation of Section 489.117(2), Florida Statutes.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts were found: Respondent, Arwood Hollins, in 1986 held a mechanical contractor's license (RM0016479) with the State of Florida. Respondent owned a 50% interest in All Florida Air Conditioning, Refrigeration, Heating and Ventilation, Inc. (hereinafter referred to as "All Florida"), a Florida corporation. The Respondent has resided in Lake Jem, Lake County, Florida for approximately 15 years. The main offices of All Florida are located in Lake Jem, Lake County, Florida, with a branch office in Orlando, Orange County, Florida. In 1986 the Respondent was the sole qualifying agent for All Florida. Pursuant to the Respondent's mechanical contractor's license with the State of Florida, he is required to comply with all local license requirements. Respondent has never held nor applied for a license in Seminole County to practice mechanical contracting. The Respondent holds a certificate of competency in Lake and Orange Counties, and inactive certificates for Dade and Sumter Counties, but does not hold a certificate in Seminole County. In 1986 All Florida advertised in the Donnelly Directory for United Telephone (Exhibit 2) in the Central Florida area. Said ad depicts All Florida as being a repair specialist. Complainant, Janis Chamberlin, resides at 105 Rockingham Court, Longwood, Seminole County, Florida. All work performed by All Florida on the Complainant's air conditioning system was performed at the Rockingham Court address in Seminole County, Florida. Respondent testified that although he has lived in Central Florida for 15 years, he is unfamiliar with Seminole County and practices only in Lake and Orange Counties. Seminole County has enacted an ordinance (Number 83-15) which requires that before any person can be issued a license to practice mechanical contracting in Seminole County, they must meet certain requirements. Between January 28, 1986 and August 3, 1986, Robert Hollins, the son of Respondent and an employee of All Florida, traveled to the Complainant's house at 105 Rockingham Court, Longwood, Seminole County, Florida on at least six (6) occasions to perform inspections and/or repairs on the Complainant's air conditioning and heating equipment. Five (5) of the visits, between March 17, 1986 and August 3, 1986, involved problems with the cooling of the air conditioning system. Complainant, Janis Chamberlin, contacted All Florida after she found the company in a Yellow Page and in the Donnelly Directory phone book in late January, 1986 regarding problems with her heating system. Robert Hollins travel led to Mrs. Chamberlin's house at 105 Rockingham Court in Longwood, Seminole County, Florida and made repairs to a circuit breaker. Mrs. Chamberlin again contacted All Florida on or about March 17, 1986 due to a problem with her air conditioning unit. Mrs. Chamberlin spoke with Robert Hollins and gave him directions to her house. Mr. Hollins did not ask if she resided in Seminole County. Robert Hollins advised Mrs. Chamberlin that there was an extensive freon leak in her air conditioning unit and that her ECU unit on the air conditioner would need to be disconnected to insure that all the leaks would be stopped. Thereafter, Robert Hollins assured Mrs. Chamberlin that all of the leaks had been taken care of. She was charged $245.45 for the visit for labor and materials, which she paid. Approximately two months later, on or about May 19, 1986, Janis Chamberlin heard noises from the air conditioning unit. Robert Hollis was called and he traveled to Mrs. Chamberlin's house and charged her a total of $28.00 for the visit and the air conditioning unit stopped making noises. Approximately two months later, the same air conditioning unit was failing to cool properly and Mrs. Chamberlin again called All Florida. Robert Hollis traveled to the Chamberlin residence and advised that the condenser fan motor had quit working and needed to be replaced. Mrs. Chamberlin authorized the work and thereafter Robert Hollins assured her that he had replaced the condenser fan motor with a new one. Mrs. Chamberlin was charged a total of $248.50 for the new fan motor, other materials and labor. On August 3, 1986, Mrs. Chamberlin noticed a loud screeching noise coming from the air conditioning unit. She called Robert Hollins who arrived at Mrs. Chamberlin's house on the same day. He left the Chamberlin residence before telling Mrs. Chamberlin what was wrong with the unit. Mrs. Chamberlin noticed that the noise she had heard earlier had stopped temporarily. By approximately 9:00 p.m. on the same day, the noise returned and she noticed that there was a decrease in the cooling of the unit. By the following morning, the air conditioning unit was not working. Mrs. Janis Chamberlin contacted All Florida on August 4, 1989. Mrs. Chamberlin advised Robert Hollins that if he would not work on the unit that day, she would have to get someone else to do the job and to call her by 5:00 pm. that day to let her know. Robert Hollins did not call or come to her home by 5:00 p.m. Mrs. Chamberlin called Four Seasons Air Conditioning and Heating, Inc. to repair her air conditioning unit. William Pierce, an employee of Four Seasons Air Conditioning and Heating, Inc. in 1986, serviced the air conditioning unit at the Chamberlin residence on August 5, 1986. Mr. Pierce inspected the unit and found that the crank shaft was wrung off inside the compressor. There was a refrigerant leak and oil was visible all over the front of the condenser coil. Also, the fan motor was running backwards. Mr. Pierce's inspection of the condenser fan motor indicated rust around the shaft and fan hub. According to Mr. Pierce, if a fan motor is put on backwards, or rotates in the wrong direction, this would cause the head and back pressure to go up and could eventually internally overload the compressor. It did not do so in this instance, since the crankshaft was wrung off and the compressor froze up. Janis Chamberlin took pictures of the air conditioning unit (Composite Exhibit 10). These photographs were taken after William Pierce had pulled apart the air conditioning unit in preparation for installation of a new unit. The fan motor appears to show rust. The entire air conditioning unit in question was replaced by Four Seasons. Janis Chamberlin requested in writing that All Florida refund her the money paid to All Florida for repairs made to the air conditioning unit in the total amount of $516.95. The letter was dated August 12, 1986 and requested the refund by August 18, 1986. All Florida did not refund the monies. The Respondent never traveled to Mrs. Chamberlin's house to inspect the air conditioner in question or discuss with Mrs. Chamberlin the problems with the air conditioning unit. Robert H. Adams was accepted as an expert witness in the area of service of residential units in air conditioning and the responsibilities of a qualifying agent. Robert H. Adams is a certified residential contractor and he held a City of Jacksonville Master Heating and Air Conditioning license since approximately 1968. A qualifying agent is responsible for the conduct and supervision of the business, the supervision of it and the actions of its employees. The test for a freon leak in a residential unit is relatively simple. This includes looking for oil around any of the fittings, tubes and condensers. It normally takes only one service call to repair leaks. However, it is not unusual for a service technician to make more than one service call in order to locate all of the leaks. If a leak cannot be repaired, the serviceman should tell the client that it is not repairable. Unless a fan motor was exposed to chemicals or salt water, there would be no reason in a three week time span as to why it would rust. If an employee of a qualifying agent told a customer he was installing a new motor which turned out to be untrue, this would be the equivalent of deceit and fraud. Answering complaints from a customer is a distinct responsibility of a qualifying agent. If the fan motor installed in an air conditioning unit similar to the one installed at the Chamberlin residence has an improper rotation, this would affect the air conditioning unit. This would include causing an increase in pressures, inadequate cooling and could damage the compressor. During the period between March and July, 1986 and following three service calls, it is incompetence to fail to find freon and oil leaks. The Respondent received a minimum of three phone calls from his son, Robert Hollins, on July 15, 1986 concerning repairs needed to Mrs. Chamberlin's air conditioning unit. The Respondent spoke with his son, Robert Hollins, on May 19, 1986 concerning the service call at the Chamberlin residence. Robert Hollins in 1986 did not have a license to practice mechanical engineering in Seminole County, Florida and did not hold any license with the State of Florida other than a driver's license. In 1986, Robert Hollins resided in Leesburg, Florida, but was the sole employee at All Florida's branch office in Orlando, Florida. Although Robert Hollins would drive through Seminole County to and from work each day, he stated he was not familiar with Seminole County. Respondent testified that he had instructed his son to use a map in order to avoid performing any work in Seminole County, Florida. Robert Hollins did not examine a map to verify if the Chamberlin residence was in Seminole County, nor did he ask Mrs. Chamberlin which county she resided in. Every time Robert Hollins went to the Chamberlin residence for a service call, he checked in with the Respondent. On July 15, 1986, Hollins inspected the air conditioning unit at the Chamberlin residence and advised Mrs. Chamberlin she needed a new fan motor. Robert Hollins first obtains approval from Respondent before any purchase of equipment or machinery is made. On July 15, 1986, he obtained permission to purchase a new fan motor for the Chamberlin air conditioning unit. That same day Robert Hollins installed a new fan motor at the Chamberlin residence. The fan motor Hollis installed on July 15, 1986 had a 90 day warranty. All Florida warrants its work under the manufacturer's warranty. Subsequently, Chamberlin advised Hollins that the air conditioning unit was not working. He replied that if she had any problems with the unit he would rather not come out and work on it.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Respondent be found guilty of failure to discharge supervisory duties as a qualifying agent, violating Sections 489.119 and 489.105(4), Florida Statutes and that Respondent be reprimanded. Respondent be found not guilty of making misleading, deceitful, or untrue representations. Respondent be found guilty of incompetence, in violation of Section 489.129(1)(m), Florida Statutes, which caused monetary harm to the licensee's customer and that an administrative fine be imposed in the amount of $500. Respondent be found guilty of contracting in a county without a local license, in violation of Section 489.117, Florida Statutes, and that Respondent be reprimanded. DONE and RECOMMENDED this 21st day of September, 1989, at Tallahassee, Florida. DANIEL M. KILBRIDE 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 21st day of September, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-1611 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the Petitioner. The following Findings of Fact are Accepted: Paragraphs 1,2,3,4(in part) ,5,6,7,8,9,10,11,12,13,14,15(in part), 16,17, (in part),18,19,20,21,24,25,26,(in part),27,28,29,30(in part),31,32,33,34,35,36,37,38,39(in substance),40 The following Findings of Fact are Rejected: Paragraphs 22 and 23 - uncorroborated hearsay Pargraph 15(in part) - not relevant Paragraph 17(in part) - witness cannot give expert opinion testimony, since he was not qualified to testify as an expert COPIES FURNISHED: Fred Sealy Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 John E. Jordan, Esquire Wool folk, Estes and Keough, P.A. 131 Park Lake Street Post Office Drawer 3751 Orlando, Florida 32802 Richard A. Howard, Esquire Brownlee and Jacobs, P.A. Post Office Box 1448 Tavares, Florida 32778
Findings Of Fact Arnold J. Pergament, an employee of Petitioner for almost 20 years, has been inspecting rooming houses licensed by Petitioner in Belle Glade for almost all of that time. For many years, he has inspected Rader's Rooming House at 657 Southwest Avenue E in Belle Glade, which consists of two buildings owned by Respondent, to whom Petitioner has issued license No. 60-00737H, covering the premises. A two-storied stucco-on-wood building contains six to eight separately rented rooms and a frame building with a single story is divided into about a dozen units. Their exterior walls are weather-beaten and deteriorated; there is evidence of wood rot. On August 13, 1980, Mr. Pergament, in conducting a routine inspection, found only two fire extinguishers, not the three he testified were required for Respondent's premises. There was no fire extinguisher on the ground floor of the stucco-on-wood building. There were no light bulbs in at least some of the public bathrooms; in all, there were four bathrooms, one per building for each sex. The bathrooms needed cleaning and some had torn or missing screens. Trash and garbage had accumulated under the buildings and on the grounds. A stair railing consisted of a pipe supported by dangerously infrequent uprights. All these items and more Mr. Pergament noted on a public lodging inspection record. Petitioner's Exhibit No. 1. After marking it to indicate that it was a warning, he personally delivered a carbon copy of the inspection record to Respondent at his office. On the form, Respondent was advised that minor violations in the operation of his establishment were to be corrected by October 13, 1980. Petitioner's Exhibit No. 1. Mr. Pergament returned to Rader's Rooming House on October 15, 1980 to find trash and garbage, including broken glass, on the grounds and under the buildings, an unaltered stair railing, and no fire extinguisher on the ground floor of the stucco building. In the bathroom, light bulbs were missing, windows were broken, screens were torn and missing; and no hot water was available in the sinks or showers. He noted these matters in a contemporaneous reinspection report, Petitioner's Exhibit No. 2, a copy of which was mailed to Respondent. On November 25, 1980, Mr. Pergament returned and reinspected. A hall was being painted but the matters specified in Petitioner's Exhibit No. 2 were substantially unchanged. On the morning of the final hearing, Mr. Pergament and James R. Gallagher inspected Rader's Rooming House and found a new stair railing that Mr. Pergament testified was satisfactory. A third fire extinguisher had been installed. Although it lacked an "approved" tag, it had a tag with a date on it. There was hot water. Fluorescent light bulbs in the bathroom were missing and bathroom windows were broken. The ground were littered with trash of apparently recent origin. Johnny Marchane Lewis is one of four men who regularly work for respondent, who owns other rental property in addition to Rader's Rooming House. Mr. Lewis replaced some windows and screens last summer at Rader's Rooming House, again two months later, and again in March of 1981. The week before the final hearing, he discovered a missing screen, which he replaced, but no other problems with screens or broken windows. On the Saturday before the final hearing, Tommy Lee Williams, another of Respondent's employees, cleared the grounds at Rader's Rooming House, but he testified that garbage might still remain under the buildings. Five months previously, Respondent's men had cleared under the buildings. Somebody rakes "the yard" every other day. Mr. Williams fixed the hot water heater twice, once by replacing the heating element and once by replacing a switch. Although he does not live there, Mr. Williams visits Rader's Rooming House more than once a week. Mr. Pergament testified that he had never had a problem with Respondent's trying to make repairs to any of his properties, and Respondent testified that he tried to make all repairs promptly and would have been more prompt about seeing to the stair railing, except that he misunderstood which railing was meant in Petitioner's Exhibit No. 1. As Respondent conceded, there was no reasonable basis for his misunderstanding, but he did take steps to remedy the situation when he understood the problem.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That Petitioner impose a fine against Respondent in the amount of $100.00. DONE and ENTERED this 12th day of May, 1981, in Tallahassee, Florida. COPIES FURNISHED: Mary Jo M. Gallay, Esquire 725 South Bronough Street Tallahassee, FL 32301 Milton Rader Rader's Rooming House 657 Southwest Avenue E Belle Glade, FL 33430 Norman J. Hayes 538 State Office Building 1350 Northwest 12th Avenue Miami, FL 33136 Lewis Reif Robert Hayes Gore Building Room 104 201 West Broward Boulevard Fort Lauderdale, FL 33301 ROBERT T. BENTON, II, 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 12th day of May, 1981.
The Issue The issues are whether the violations cited by the Division of Hotels and Restaurants during its inspection and re- inspection of Respondent's hotel existed, and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following facts were established by clear and convincing evidence: Parties Petitioner is the state agency responsible for regulating hotels pursuant to Part I of Chapter 509, Florida Statutes (the Act). Respondent operates the Traveler's Inn hotel on West Irlo Bronson Highway (U.S. Route 192) in Kissimmee, Florida. The Hotel The hotel is near the intersection of U.S. Route 192 and State Road 535. The hotel has approximately 125 guest rooms and is three stories in height. The record does not reflect the year that the hotel was constructed. Only the first floor and half of the second floor of the hotel are currently in use. Respondent "closed" the third floor of the hotel as a result of the hotel's low occupancy rate (less than 30 percent), which is due in large part to the post-September 11 decline in the tourism industry. The record does not reflect whether the third floor rooms are in condition to be used if there was additional demand for rooms at the hotel, nor does it reflect whether those rooms were "closed" at the time of the Division's initial inspection in August 2001, or the re-inspection in October 2001. Hotel Inspection Process Followed by the Division The Division is required to routinely inspect hotels that are subject to the Act. If violations are identified, the hotel operator is given a period of time within which to correct the violation. The correction period varies based upon the severity of the violation. The period is typically shorter for "critical" violations (those which are life-threatening or present a safety hazard) than it is for "non-critical" violations (those which do not immediately affect life safety issues and which can be fixed or corrected on a routine basis). The Division's inspectors have the authority to extend the correction period as circumstances warrant. After the expiration of the correction period, the Division re-inspects the facility to determine whether the violation has been corrected. If the violation has not been corrected and the time for doing so is not extended by the inspector, the Division initiates the administrative process to impose sanctions on the hotel's license. Violations Documented at Respondent's Hotel Based Upon the Division's Inspection and Re-inspection The Division conducted a routine investigation of Respondent's hotel on August 31, 2001. The inspection was conducted by Michael Campbell. Mr. Campbell's inspection report documented a number of violations at Respondent's hotel, including (1) the certification for the hotel's boiler had expired; (2) the hotel's fire sprinkler system had not been inspected within the prior 12 months; (3) an advertising brochure contained a false statement regarding the travel time from the hotel to Walt Disney World and Sea World; and (4) the hotel's dock and approach walkway were not safe. Based upon his report, Mr. Campbell issued a written warning to Respondent. The warning gave Respondent until October 1, 2001, to correct the cited violations. Mr. Campbell performed a re-inspection of Respondent's hotel on October 3, 2001. Based upon that re-inspection, Mr. Campbell issued another report which documented that the four violations listed above had not been corrected. The other violations cited by Mr. Campbell in his initial inspection report had been corrected prior to the re-inspection. The inspection report forms designate the sprinkler system violation and the advertising brochure violation to be "critical violations" and "of critical concern." The boiler violation is designated as a "non-critical violation." Despite the forms' characterizations of the sprinkler system and advertising brochure violations as requiring immediate correction, Mr. Campbell gave Respondent a full month to correct the violations. This suggests that Mr. Campbell did not consider the violations to pose a threat to public health, safety, or welfare, and the evidence fails to establish that any of the violations posed such a threat (although, as discussed below, the evidence does clearly and conclusively establish the violations). Mr. Campbell's October 2001 report informed Respondent that the Division would be initiating the administrative process in order to assess sanctions against Respondent's license. The Division's Administrative Complaint and this proceeding followed. Only the first three violations remain at issue; the violation based upon the dock and approach walkway is no longer at issue. The circumstances related to each of the violations still at issue are described below. Boiler Respondent has a Lochinvar boiler which supplies hot water to the hotel. The boiler is rated at 570,000 BTU per hour (BTU/hr), which represents the maximum heat input. The boiler only operates at the maximum level. Thus, whether or not the boiler is heating water to serve all 125 guest rooms or only a portion of those rooms, it is operating at 570,000 BTU/hr. The boiler was first inspected by the State Fire Marshall in May 1999. The inspection was performed by John Norman. Mr. Norman placed an identification tag on the boiler with a May 1999 date. However, he did not recommend that a certificate be issued for the boiler at that time because of an insufficient safety valve on the boiler. Respondent fixed the safety valve and Mr. Norman re- inspected the boiler in September 1999. Based upon that re- inspection, Mr. Norman recommended that a certificate be issued. The 1999 certificate was not introduced at the hearing. However, Mr. Norman testified that upon issuance, the certificate would have been valid for two years from the date that the certificate was issued, or until September 2001. Neither the certificate, nor any of Mr. Norman's inspection reports were posted in the room where the boiler was located at the time of Mr. Campbell's inspections in August 2001 and October 2001. Mr. Norman inspected the boiler again in May 2002 and a boiler certificate was issued by the State Fire Marshall on June 11, 2002. The certificate is valid until May 9, 2004. Mr. Norman characterized the boiler as being in good condition, both in September 1999, and presently. He further testified that the state of the boiler at those times indicate that it would have been in good condition during the intervening period as well, which would include the times of Mr. Campbell's inspection and re-inspection. 2. Sprinkler System The fire sprinkler system in Respondent's hotel only covers the laundry room, the maintenance room, and the boiler room. The guest rooms are not covered by the sprinkler system. The tag on the sprinkler system indicated that it was last inspected on August 3, 2000. Because the system is required to be inspected annually, the inspection expired on August 3, 2001. Accordingly, at the time Mr. Campbell conducted his initial inspection, the fire sprinkler system's inspection had expired. The system was not inspected prior to Mr. Campbell's re-inspection, and, as of the date of the hearing, it still has not been inspected. The cost to inspect the sprinkler system is between $800.00 and $1,000.00. Respondent's owner failed to have the sprinkler system inspected because he could not afford the cost of the inspection as a result of the reduction in business at the hotel post- September 11, and because of his independent interpretation of Section 509.215, Florida Statutes, which prescribes fire safety requirements for hotels. Respondent's owner relied upon the 1993 version of Section 509.215, Florida Statutes, because that was the most current version of the statute in the hotel's "library." The current version of the statute is materially the same as the 1993 version. 3. Advertising Brochure At the time of Mr. Campbell's initial inspection, Respondent had a brochure advertising its hotel which included the following statement on the front cover: "Five minutes from Walt Disney World Resort and Sea World." The brochures were available at or near the hotel's front desk. The record does not reflect whether the brochures were distributed by Respondent in any other manner, e.g., mailing to prospective guests, placed in kiosks or advertising racks around the area. Mr. Campbell obtained a brochure from the hotel's front desk during his August 2001 inspection. That brochure was not introduced at the hearing. The brochures were printed in 1996 and, at that time, the statement on the brochure may have been accurate.1 However, as a result of the growth and additional traffic congestion in the area, Respondent's hotel is no longer five minutes from Disney or Sea World. It is now approximately 18 minutes from Sea World and a similar distance time-wise from Disney. In an effort to correct the brochure in response to the August 2001 inspection report, Respondent's owner directed his staff to strike through the words "Five minutes from" on each of the brochures with a black marker. The brochure introduced by Respondent at the hearing was marked-out in that manner. Division supervisor Jo Beekman confirmed at the hearing that marking-out those words on the brochure would be sufficient to address the cited violation. Apparently, however, all of the brochures were not marked-out because Mr. Campbell obtained an unmodified brochure during his October 2001 re-inspection. That brochure was not introduced at the hearing, but Respondent's owner acknowledged that his staff may have "missed a few" brochures when they marked through the others.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Hotels and Restaurants issue a Final Order which: finds that Respondent violated: Rule 61C-1.004(12), Florida Administrative Code, because it failed to have the boiler certificate posted in the boiler room; and Section 509.215(5), Florida Statutes, and the applicable NFPA standards incorporated into the State Fire Marshall's rules because Respondent failed to have the fire sprinkler system at its hotel inspected annually; and Rule 61C-3.002(3)(a), Florida Administrative Code, because its advertising brochure contained a false statement; and imposes an administrative fine in the total amount of $750.00, as calculated above; requires Respondent to have the fire sprinkler system inspected within 15 days of the date of the Final Order, and to provide proof thereof to the Division of Hotels and Restaurants; and requires Respondent's owner and/or general manager to attend an educational program sponsored by the Hospitality Education Program within 60 days of the date of the Final Order, and to provide proof thereof to the Division of Hotels and Restaurants. DONE AND ENTERED this 22nd day of January, 2003, in Tallahassee, Leon County, Florida. T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 2003.
Findings Of Fact The Respondents, Charles and Minnie Hall t/a Hall Rooming House, were on July 7, 1978, licensed as a public lodging establishment. An inspection of the premises on July 7, 1978, revealed that no fire extinguishers were provided on the second floor, stairway hand rails were incomplete and loose and in need of resetting, in one apartment the commode and kitchen sink leaked, hot water heater was not working in one apartment and washing machines were draining on the ground behind the building into an area strewn with trash and debris. A subsequent inspection of the premises revealed that the violations had not been remedied.
Findings Of Fact Stephen G. Blume, the Respondent, is a state certified Class A contractor under Chapter 489, Florida Statutes. He holds license number CA C009753, and he is the qualifying agent for BCH Mechanical, Inc. (BCH), a Florida corporation, in which Blume is the principle stockholder. BCH is a mechanical contractor and concentrates its efforts in commercial construction work, particularly in shopping center construction. BCH subcontracts from owners or general contractors for the installation of heating, ventilating, and air conditioning for individual establishments within shopping malls. Prior to February 18, 1983, the Respondent contracted with a general contractor for the Respondent to provide heating, ventilation, and air conditioning equipment to approximately 15 stores in the Aventura Mall in Dade County, Florida. The work was of a nature for which the Respondent and BCH were qualified to perform under Chapter 489, Florida Statutes. On February 18, 1983, the Respondent and his company contracted with Richard E. Hahn, doing business as Temp-Rite Air Conditioning and Refrigeration, Inc., to install air conditioning systems in spaces 128, 163, 645, and 677 at the Aventura Mall. See attachment to Respondent's Exhibit 1, and paragraph 3 of the administrative complaint. On February 23, 1983, the Respondent obtained building and mechanical permits to perform heating, ventilation, and air conditioning work on spaces 163, 645, 677, and 128 at the Aventura Mall. See Petitioner's Exhibit 1. The Respondent did not attempt to list the permits in the name of Hahn at the time of application or subsequently. Richard Hahn did not have a certificate of competency to do air conditioning construction work, and was not qualified in Dade County to obtain a permit to do that work himself. He also was not licensed by the Construction Industry Licensing Board to perform this work. The Respondent selected Hahn by the following process. When he got to the mall, he contacted Robert Shaw Controls, the company that was doing work on the concourse air conditioning systems at the mall. Employees of Robert Shaw told the Respondent of three pipe fitting companies that were then doing work at the mall. All three gave the Respondent bids, and Respondent selected Hahn's company as low bidder. There is no evidence that Blume was a friend of Hahn prior to this contract. Respondent's company specializes in installation of air conditioning systems in shops in commercial malls. Respondent's company employs 30 to 40 people. Most of this is handled by his own employees, without subcontracts. Thus, for most of his work, there is no need for a licensed subcontractor. At the Aventura Mall project, the Respondent determined that he needed to hire a subcontractor affiliated with the pipefitters union for the work on first floor shops. The Respondent did not have a bargaining agreement with the pipefitters union, and thus could not call the Dade County pipefitters' hiring hall to hire a pipefitter as a temporary employee. Instead, Respondent had to subcontract the work to a pipe fitter union member. Respondent determined that he needed pipefitter union affiliation because that union was quite strong in Dade County, and use of nonunion members might have caused labor unrest at the mall work site. It was not to the economic advantage of the Respondent to subcontract the work to Hahn. It would have been more profitable to the Respondent to have followed his usual business practice of doing the air conditioning pipe fitting work using his own nonunion pipefitter employees. The Respondent asked Hahn if he was a licensed contractor for his work, whether he was a union pipe fitter, and whether he carried worker's compensation coverage. The Respondent was told by Hahn that he had a license, that he was a journeyman union pipe fitter, and that he did carry worker's compensation coverage. Following his past practice, the Respondent asked Hahn only for proof of his worker's compensation coverage. The Respondent did nothing to attempt to verify the truth of Hahn's assertion that he was a licensed contractor. The Respondent could have verified the existence of Hahn's license by either asking Hahn to show him his license card or by telephoning the license record officer in Dade County and asking that agency to verify Hahn's license. The Respondent did not do either of these things both of which were relatively easy to do. The Respondent had memorized his own contract license number. William Lessaris was employed by the Respondent and BCH Mechanical, Inc., to provide daily supervision of the project. Lessaris was at the job site daily. Other BCH employees were also on the job site. John D. Arition is Mechanical and Building Inspector and Plans Processor for far the Building and Zoning Department of Dade County, Florida. Arition was called by Lessaris to come to the job site to perform the air conditioning inspection. Arition did not tell BCH Mechanical, Inc., when he would arrive. When Arition arrived on the job site, Hahn was there. Arition asked Hahn for his license to do the work. Hahn told Arition that he did not have a license. Arition ordered Hahn to cease work. Hanh picked up his tools and left the job site. Arition then talked with Lessaris and told him about the problem with Hahn. The work was completed satisfactorily, without defects. Subsequently, Hahn was administratively charged with violating various provisions of Dade County construction law, was found to have committed six violations, was fined a total of $2,700 and had his personal certificate of competency suspended for one year. Blume was asked to appear at the hearing, but could not due to prior scheduled work. There is no evidence that Blume was given adequate notice of the date of the hearing, and it appears that he was given only short notice of the precise date. Blume was not subpoened to appear, and was not at fault in failing to appear. Blume voluntarily supplied Dade County with all documentary evidence requested.
Recommendation In consideration of the foregoing, it is recommended that the Petitioner enter a final order finding no violations as alleged, and dismissing the administrative complaint. DONE and ORDERED this 29th day of March, 1985, in Tallahassee, Florida. WILLIAM C. SHERRILL, JR. 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 29th day of March, 1985. COPIES FURNISHED: Mr. Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 H. Reynolds Sampson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 William Sizemore, Esquire Suite 838, Plaza On The Mall 201 East Kennedy Boulevard Tampa, Florida 33602 Salvatore Carprino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue This matter began when Respondent, a certified air conditioning contractor, was charged by Petitioner in an administrative complaint with violation of Section 489.129(1)(m), Florida Statutes, through the commission of gross negligence, incompetence, or misconduct in connection with a certain job undertaken by the air conditioning business for which Respondent was responsible as the qualifying agent. Respondent requested a formal administrative hearing. This proceeding followed. At hearing, Petitioner presented testimony of two witnesses and six evidentiary exhibits. Respondent presented testimony of two witnesses, including himself, and three evidentiary exhibits. Petitioner was granted leave to submit a post hearing exhibit no later than March 3, 1989. Proposed findings of fact submitted by Petitioner are addressed in the appendix to this recommended order. No proposed findings were received from Respondent by the required deadline or at the time of the preparation of this recommended order. Based upon all of the evidence, the following findings of fact are determined:
Findings Of Fact Respondent is Steven E. Taucher, a certified air conditioning contractor and the qualifying agent for Discount Air Conditioning & Heating Services, Inc., at all times pertinent to these proceedings. He has been licensed by Petitioner since 1985 and holds license CA-CO36835. His address of record is Tampa, Florida. In May of 1987, Janet Daniels contracted with Respondent's company for the installation in her home of a heat pump system. The system was to consist of one supply duct and a filter back return; a three ton condenser heat pump; a three ton air handler; a 3 ton coil; and a heat strip, thermostat and outdoor slab. The unit was to fulfill heating and cooling functions. Installation work was to be completed in a "substantial and workmanlike manner"; using existing ductwork and electrical connections. Upon execution of the written agreement, Daniels paid Respondent $2,000. A sales rebate of $525 was also signed over to Respondent by Daniels, leaving a total owed to Respondent of $125. This amount was to be paid by June 30, 1987. Daniels never paid this final sum to Respondent because she was not satisfied with his work and eventually had to pay another contractor $420 to make certain repairs to the system. Respondent, by his own admission, failed to timely pull the permits for the project; however, he did install the system, connecting it to existing ductwork and electrical connections as specified in the contractual agreement. Within two and a half hours after installation, the temperature gauge reflected that the unit was not cooling the Daniels' house to the desired 76 degree thermostat setting. Respondent informed Daniels that the unit's capacitor wasn't functioning. Respondent replaced the capacitor. The unit did not function properly and Respondent attempted other repairs at later dates varying from replacement of the thermostat to installation of a sump pump for removal of condensation from the unit. Daniels was still unable to get the unit to cool the residence to the desired thermostat setting. Further, there was a disparity in the temperature between rooms in the residence. On July 23, 1987, Respondent, accompanied by a factory representative from the manufacturer of the heat pump system, returned to the Daniels home. It is undisputed by the parties that the factory representative found that a portion of the unit, the vertical air handler, was not level and not well mounted and, as a result, was poorly installed. He further determined that the unit contained an excess amount of freon, a refrigerant gas. Respondent maintains that he performed the installation task strictly in accordance with the contract between the parties. It is his position that the installation of the air handler without a new wooden support base under it or replacement of the leaking existent return air plenum was in compliance with the parties' agreement to use existing ductwork. Respondent's position as to compliance with contractual terminology is supported by testimony of Petitioner's expert that the meaning within the trade of the terminology "use of existing ductwork" ordinarily includes the existing return air plenum as part of that ductwork. However, testimony of Petitioner's expert also establishes that Respondent's failure to realize and advise Daniels that the existing ductwork was obviously inadequate and might not permit the system to function effectively, demonstrated incompetence with regard to his ability to properly design and install a relatively simple system. The overall sloppiness of the workmanship in the system installation also reflects incompetence on the part of Respondent.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered assessing the Respondent an administrative penalty of $500 in accordance with disciplinary guidelines set forth in section 21E-17.001(19)(b), Florida Administrative Code. RECOMMENDED this day of March, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 15th day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5193 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. PETITIONER'S PROPOSED FINDINGS 1.-6. Addressed and adopted in substance. COPIES FURNISHED: David Bryant, Esquire 220 East Madison Street, Suite 530 Tampa, Florida 33617 Steven E. Taucher Post Office Box 271581 Tampa, Florida 33688 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
