Findings Of Fact At all times relevant hereto, Respondent was licensed by Petitioner as a certified air conditioning contractor having been issued license No. C-2805 (Exhibit 1). From 1984 to June 29, 1992, Respondent was the qualifying contractor of record for Jay's Air Conditioning & Refrigeration (Exhibits 1 and 2). On December 11, 1991, Respondent and Vincent Tipaldo executed a contract for the sale and purchase of certain goodwill and inventory of Jay's Air Conditioning & Refrigeration, of Pinellas County, Florida from the Respondent to Tipaldo. (Exhibit 4). Paragraph 5 of the above agreement stated that Respondent agreed to allow Vincent Tipaldo to use Respondent's contractor license until the buyer, Vincent Tipaldo, obtained his own. Vincent Tipaldo transferred $18,000.00 to Respondent as consideration for the contract with the remaining $10,000.00 to be paid to Respondent in installments of $318 per month for three years. Respondent authorized Vincent Tipaldo and other uncertified and unregistered persons to pull and obtain permits under his license for Jay's Air Conditioning & Refrigeration from December 11, 1991 to May 5, 1992 (Exhibit 5). Shortly after the sale of the business Respondent was injured in a vehicle accident and was unable to work. Tipaldo stopped the monthly payments to Respondent and Respondent ceased supervising the projects. The situation deteriorated and civil litigation is ongoing. On May 5, 1992 and thereafter, Respondent no longer authorized anyone to pull permits or act under his license for Jay's Air Conditioning & Refrigeration using license No. C-2805 (Exhibit 5). On June 29, 1992, Respondent submitted to Petitioner a change of status no longer acting as the qualifying contractor of record for Jay's Air Conditioning & Refrigeration (Exhibit 2). Respondent did not supervise and had no active participation in the operation, management or control of the business from shortly after December 11, 1992 to June 29, 1992. Tipaldo was not licensed and has never been licensed as an air conditioning contractor by the PCCLB (Exhibit 3). After Respondent no longer authorized Tipaldi or anyone else to pull permits for Jay's Air Conditioning & Refrigeration in May 1992, Joe B. Hutson became the qualifying contractor of record for Jay's Air Conditioning & Refrigeration (Exhibits 6, 7 and 9).
Recommendation It is, therefore RECOMMENDED: That the license of Jay W. Beckner as a certified air conditioning contractor be suspended for a period of six months under such conditions as the Board deems appropriate. DONE and ENTERED this 6th day of January, 1993, at Tallahassee, Florida. K. N. AYERS 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 6th day of January, 1993. COPIES FURNISHED: David S. Sadowsky, Esquire 315 Court Street Clearwater, Florida 34616 Jay W. Beckner P.O. Box 20573 Bradenton, Florida 34203 William J. Owens, Executive Director Pinellas County Construction Licensing Board 11701 Belcher Road - Suite 102 Largo, Florida 34643 5116
The Issue The issue in this proceeding is whether Respondent's motel license should be disciplined.
Findings Of Fact Respondent holds a motel license, number 2200031. The motel is located at 4140 West Highway 90, Lake City, Florida. On June 9, 2003, and on June 16, 2003, a division inspector inspected the Respondent's motel premises and specifically inspected room 207. The inspector noted five alleged deficiencies on June 9, 2003. On June 16, 2003, the inspector noted that three of the five alleged deficiencies remained uncorrected, while two of the alleged deficiencies were corrected during the June 16, 2003, re-inspection. The three uncorrected alleged deficiencies consisted of exposed insulation around the air conditioning unit in room 207, food buildup present in the microwave in room 207, and heavy lint buildup present in the lint filter of the motel's commercial clothes dryer. The two alleged deficiencies corrected during the re-inspection were the use of an electrical extension cord and an unsecured electrical outlet cover. Room number 207 was available for rent and was rented to the public by the Respondent on May 31, 2003, and again on June 19, 2003. During the interim time and at the time of these inspections, the room was not rented because it was undergoing repairs. During this time, the room was being used primarily as a handyman workroom for ongoing repairs. Part of the repairs being done to room 207 was to replace the permanent air conditioning unit in that room. Because the air conditioning unit did not work, Respondent had temporarily installed a window air conditioning unit. The window air conditioning unit did not fit the window it was in, therefore, Respondent had placed insulation around the unit. The insulation was exposed. The insulation was not a furnishing supplied with the room but was a temporary part of the building’s window/wall system intended as a prelude to replacing the air conditioning unit. Since the insulation was not a furnishing, its exposure did not violate Rule 61C-3.001(5) that addresses the cleanliness of room furnishings such as drapes. An extension cord was being used to power the window air conditioning unit in room 207. Even though Respondent unhooked the extension cord during the re-inspection, the use of the extension cord to power the air conditioning unit was a fire hazard and violates Chapter 509. Additionally, one of the electrical outlet cover plates was attached, but was loose. However, it did function as a barrier. There was no evidence regarding the space requirements for an electrical outlet or how the outlet cover impacts that space other than as a barrier. The evidence did not show that a loose outlet cover violates NFPA 70,110.32 that deals with the space requirements around electrical equipment. Finally, the microwave in room 207 had old food buildup on its walls. The microwave is a furnishing and is required to be kept clean. Such food buildup does not meet the cleanliness requirements of Rule 61C-3.001(5). Outside of room 207, the inspector personally observed the lint buildup in the dryer. Petitioner does require that the dryer’s lint trap be cleaned once a day. However, either the trap had not been cleaned or the dryer had received heavier use on the days of the inspection. The lint is a flammable material and the dryer trap must be kept free of such flammables. The accumulation of the lint was a fire hazard and is a violation of Rule 61C-1.004(7).
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That the Department enter a final order finding Respondent guilty for violating Chapter 509, Florida Statutes, and imposing an administrative fine in the amount of $1,500.00. DONE AND ENTERED this 31st day of March, 2004, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 31st day of March, 2004. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Kana Baleswaran, pro se Piney Woods Lodge 4140 West Highway 90 Lake City, Florida 32055 Geoff Luebkemann, Director Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Nancy Campiglia, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact Randall Labadie owns the corporation, Labadie's, Inc., d/b/a Atlantic Coast Steamatic, a business engaged in interior cleaning and air duct cleaning, with a principal office located at 1599 SW 30th Avenue, Suite 11, Boynton Beach, Florida 33426. Randall Labadie has owned the business in Florida for ten years and has been personally involved in air duct cleaning for approximately 20 years. He holds a State of Florida building contractor's license, but not a sheet metal, air conditioning or mechanical contractor's license. Approximately fifty percent of the company's business is air duct cleaning, with thousands of jobs having been completed over its years of operation. Respondent, the Florida Construction Industry Licensing Board (CILB) is responsible for regulating various professions in the construction industry pursuant to Chapter 489, F.S. On August 8, 1984, CILB Administrative Assistant, Milton Rubin, issued this written opinion in response to an inquiry from the executive director of the Pinellas County Construction Licensing Board: In response to your inquiry for an opinion on the following questions, the answer is in the affirmative: Does a person or firm performing "cleaning" services for air conditioning systems have to be licensed? Yes. If, in the process of "cleaning", a person or firm cuts access openings in existing duct work, does that person or firm require competency licensure? Yes. Does "servicing" in 489.105(h) include cleaning? Yes. (Exhibit #2) * * * The Board did not adopt a rule reflecting its official position on the matter because it felt that the interpretation would have been an unnecessary restatement of the language of Chapter 489, F.S. (Stipulation of the parties filed 11/20/92) On March 13, 1992, the CILB took this official action as reflected in its General Session Minutes: There was a presentation by Mr. Dean Ellis and Jim Hasbrook of Pinellas County regarding a request from two industries. The two industry associations include The Florida Air Conditioning Contractors Association and the Refrigeration and Air Conditioning Contractors Association. The issue concerns duct cleaning and air conditioning system cleaning. This Board had previously taken a position in August of 1984 that this work must be performed by a licensed contractor in one of three categories: air conditioning, mechanical, or sheet metal. At that time the opinion was rendered by Mr. Rubin but included a disclaimer stating that it did not reflect the official position of the Board. These associations now request a formal position from the Board stating that the licensed contractor must perform this work as stated in Mr. Rubin's letter of 1984. Mr. Lopez-Cantera made motion to ratify that position as a policy of the Board. Second by Mr. Manrique. Motion carried. (Exhibit #1) After the Board action was taken, various industry organizations sent notices of the Board's position to their members. The Florida Air Conditioning Contractor's Association "...urge[d] all parties concerned to act on the FCILB decision... [and to] ...report any unlicensed activity through the proper channels." (Exhibit #4) Steamatic, Inc., is engaged in the business of franchising cleaning operations, and has a home office in Fort Worth, Texas. Around 1975, it expanded from fire and water restoration cleaning into other cleaning services, more specifically, air duct cleaning or air conditioning system cleaning. Steamatic, Inc., has approximately 144 franchises in the United States, including 14 in the State of Florida. Prior to March 13, 1992, no Florida franchise was cited for engaging in cleaning activity without a license under Chapter 489, F.S. Since March 1992, at least two franchises, in Jacksonville and in Bradenton, have received notices from Department of Professional Regulation (DPR) investigators that complaints have been filed alleging unlicensed practice of air conditioning contracting. The CILB policy formally adopted in March 1992, has not been adopted as a rule pursuant to Section 120.54, F.S. The CILB has not adopted rules setting acceptable standards for air duct cleaning, and at the March 13, 1992, Board meeting, Board member, Cosmo Tornese stated that there are no accepted standards regarding air duct cleaning. As of March 13, 1992, the National Air Duct Cleaners Association (NADCA) had not adopted standards. The duct cleaning activity conducted by Petitioner and other Steamatic franchisees is nonstructural work only. These companies do not "repair", "maintain", or "adjust" air conditioning systems. They generally obtain access to the ducts through existing openings or the registers, and they vacuum what is accessible. With a low-pressure atomizing gun they apply a germicide treatment and a sealer. In about ten percent of the cases they might cut an opening in the duct in the fogging process and they close it with duct tape. They do not cut sheet metal or disconnect the duct work from the air handler. They do not clean the coils on condensing units or fan blades in the air handler. They only cut fiber duct board, never flex duct. They do not disengage electrical connections. They do residential work only. In contrast, and for more money (base price of $595.00, as opposed to $250-300.00 charged by Steamatic), Dean Ellis' company, Climate Control Services, offers what he prefers to call "air duct sanitizing". (transcript p. 74) Dean Ellis has a Florida class A unlimited air conditioning license. He cleans the air handler coil, evaporator coil, drain pan and interior of cabinets. The components are removed and are chemically cleaned and sprayed. His workers take out the electric heat strips and fan motor. They inspect the ducts and replace duct work that is severely contaminated. They use an air source removal machine that is connected through a large hole cut in the box that fits above the air handler and suctions the entire duct system. They check and adjust freon levels and fan speeds. About five percent of Dean Ellis' business is related to the cleaning of air ducts. He considers his company is in a competitor's relationship with Steamatic. The association of which he is a board member, Florida Air Conditioning Contractors Association, brought its concerns to the CILB and wanted to know if the Board would enforce what the association already considered the law to be. Petitioner, Labadie's, Inc., d/b/a Atlantic Coast Steamatic, is substantially affected by the CILB's response to its regulated industry representatives. (See prehearing stipulation, filed 11/20/92)
Findings Of Fact The Petitioner is be Department of Professional Regulation. The Respondent is John Anthony Fantasia, at all times pertinent to these proceedings holder of certified air conditioning contractor license number CA-C024378 and qualifying agent for Fantasia Air Conditioning Refrigeration Appliance Service. Nat Weintraub contracted with Respondent on or about June 25, 1986. Under terms of the contract, Weintraub gave Respondent a $2,500 down payment to have a central air conditioning system installed in the Weintraub home. Weintraub paid Respondent an additional $1,250 when the central air conditioning unit was delivered on or about July 1, 1986. A third and final payment of $1,250 due upon completion of the work set forth in the contract has not been made by Weintraub dub to difficulties he has encountered with the Respondent concerning the quality of work on the project. While he timely commenced work shortly after delivery of the central air unit and receipt of two monetary payments from Weintraub, Respondent damaged a screen covering an opening in an overhanging eave to the Weintraub's flat roofed house. This occurred when he inserted equipment into the opening of the eave in order to place additional insulation between the roof and the ceiling of the home. Weintraub later paid someone else $52 to repair the damage. Respondent made an opening in the roof through which he placed a ventilation pipe. The opening was too large and emitted daylight around the pipe into the closet where the air conditioning unit was installed. As a result, rainwater accumulated in the closet. Weintraub later paid repair costs of $185 to another contractor to seal the opening around the pipe and replace the closet door. While repair of the opening was not a part of the written contract, the Respondent had orally promised to make this correction. A noise problem associated with overly small grillwork on the main air outlet to the air conditioning unit was fixed by another contractor at a cost of $236 to Weintraub. Dry wall covering a soffit containing duct work in the Weintraub living room was not properly finished off. Weintraub has received estimates leading him to believe correction of this deficiency will cost him approximately $510 in repairs. During installation of the air conditioning unit, closure of an existing line supplying natural gas to a heat furnace was required. Respondent "pinched off" the line in an improper manner. Further, Respondent's license does not authorize him to engage in work on heating equipment gas lines. As a result of the manner in which Respondent installed the air conditioning unit, it is extremely inconvenient if not impossible to change the unit's air filters. The job at the Weintraub home was approximately eighty percent completed when the Respondent exhausted his supply of insulation. He left the job site at that time. Later he called Weintraub demanding additional funds. Weintraub refused to pay anything additional until, in accordance with the contract terms, the job was completed. Al Childress is an enforcement officer with the Metro-Dade County Building and Zoning Department. He went to the Weintraub home on December 3, 1986. He noted the air conditioning unit had been installed without a proper permit and issued a citation by certified mail to the Respondent. The Respondent subsequently paid a $50 civil penalty for the citation. William Huckstep was a mechanical inspector for the Metro-Dade County Building and Zoning Department when he was called to the Weintraub home on or about February 3, 1987. He observed the gas line which had been altered by the Respondent. Huckstep subsequently issued a Notice of Violation by certified mail to Respondent for performing such a task without a certificate of competency as required by the Dade County Building Code. On or about April 22, 1987, Huckstep issued a second notice of violation to Respondent for failure to have called for rough and final inspections of the air conditioner installation as required by the Dade County Building Code. To date, these inspections have not been performed by local authorities or requested by the Respondent. Considerably more than 90 days have elapsed since the fall of 1986 when Respondent left the Weintraub project, prior to its completion, without notification, and without just cause to depart. The improper installation of air conditioning equipment, insulation and duct work exhibited gross negligence by the Respondent in the performance of these tasks.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered in this cause assessing the Respondent a fine of $1,500 and placing him on probation for a period of two years upon terms and conditions to be determined by the Construction Industry Licensing Board. DONE AND RECOMMENDED this 17th day of March, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5602 The following constitutes my specific ruling on the proposed findings of fact submitted by the Petitioner. Those proposed findings consisted of 18 paragraphs. Only the first five paragraphs were numbered. Numbers 6 through 18 were applied to the remaining paragraphs by the Hearing Officer. Included in finding number 2. Included in finding number 3. Included in finding number 12. Included in finding number 13. Rejected as unnecessary. Included in part in findings numbered 3 and 4. Included in findings numbered 13 and 14. Included in findings numbered 6 and 9. Included in finding number 11. Included as to the soffit in finding number 8. The remainder is rejected. Included in finding number 11. Included in finding number 12. Included in findings numbered 11 and 15. Rejected as unnecessary. Included in findings numbered 5, 6, 7, and 8. Included in finding number 13, with the exception of Petitioner's dates which are reflective of the deadline given Respondent on the citations. Included in finding number 13. Included in finding number 14, with exception of hearsay relating to testimony of Bob Wolf which is rejected. COPIES FURNISHED: Lee Sims, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 John Anthony Fantasia 149-10 Northeast Eighth Avenue North Miami, Florida 33161 William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely Executive Director Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 =================================================================
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint issued against him and, if so, what disciplinary action should be taken.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is a Spanish-speaking native of Cuba with little or no understanding of the English language. He has resided in Miami-Dade County since coming to this country 18 or 19 years ago. In or around 2006, Respondent decided he wanted to start an air conditioning contracting business in Miami-Dade County, and he went to the downtown Miami location of the Miami- Dade County Code Compliance Office (Compliance Office) to inquire about the licensing requirements with which he would have to comply to legally operate such a business in the county. The Compliance Office is responsible for licensing construction contractors (in various trades) operating in Miami- Dade County. The contractors whom the Compliance Office licenses include mechanical contractors doing air conditioning work. Individuals who desire to go into the air conditioning contracting business in Miami-Dade County must complete and submit to the Compliance Office an eight-page "initial application," accompanied by "letters of experience" and a $315.00 application fee. The application is reviewed by the Miami-Dade County Construction Trades Qualifying Board (CTQB). If the CTQB determines that the applicant is qualified to take the licensure examination, the applicant is allowed to sit for the examination. Passing the examination is a prerequisite to licensure. If a passing score is attained, the applicant is notified by the Compliance Office and given the opportunity to submit a "business application" and supporting material (including proof of liability insurance and workers' compensation coverage), accompanied by another $315.00 application fee. If the CTQB approves the "business application," the "applicant is issued a contractor's license number" and given a "competency card" (reflecting such licensure) by the Compliance Office. The applicant then must register with the Department before being able to engage in any contracting work in the county. When Respondent went to the Compliance Office's location in downtown Miami, he was approached by a man carrying a clipboard who spoke Spanish. Respondent was led to believe by the man that he worked for the county (although the man did not present any identification verifying his employment status). The man offered to help Respondent apply for a license, an offer Respondent accepted. After obtaining information from Respondent, the man filled out an application form (which was in English) for Respondent and "kept" the completed form. He then collected from Respondent $350.00. The man told Respondent that Respondent would be receiving his license "by mail." Respondent did nothing further (including taking the licensure examination) to obtain a Compliance Office-issued license for his air conditioning contracting business. Given what he was told by the man (whom he trusted) at the Compliance Office's downtown Miami location, Respondent did not think anything else was required of him, and he acted accordingly. Approximately a month after his visit to the Compliance Office, Respondent received what, on its face, appeared to be a Compliance Office-issued "competency card" indicating that his business, G & G Air Conditioning, Inc., had been issued an "A/C UNLTD" license, License No. 05M000987, with an expiration date of September 30, 2007, and that he was the "qualifying agent" for the business. Although Respondent did not realize it at the time, the "competency card" was a "fraudulent document." The Compliance Office had never in fact issued any license to Respondent or his air conditioning contracting business. Indeed, the Compliance Office had not even received a licensure application, or, for that matter, anything else, from Respondent (including the $350.00 he had paid for what he thought was an application fee). Reasonably, but erroneously, believing that the "competency card" was authentic, Respondent, with the assistance of a friend able to read and write English, completed and submitted the paperwork necessary to register with the Department so that he would be able to engage in the business of air conditioning contracting in Miami-Dade County. Respondent had picked up the application packet (the contents of which were in English) when he had visited the Compliance Office's downtown Miami location. Respondent's friend translated the contents of the application materials for Respondent. For each item requiring a response, Respondent told his friend what entry to make. The final page of the application materials contained the following "Attest Statement," which Respondent signed (after it was translated for him by his friend): I have read the questions in this application and have answered them completely and truthfully to the best of my knowledge. I have successfully completed the education, if any, required for the level of licensure, registration, or certification sought. I have the amount of experience required, if any, for the level of licensure, registration, or certification sought.[1] I pledge to comply with the applicable standards of practice upon licensure, registration, or certification. I understand the types of misconduct for which disciplinary proceedings may be initiated. Among the representations Respondent made in his completed application was that he possessed a valid "local competency card" issued by the Compliance Office. He believed, in good faith, but again, incorrectly, that the "competency card" he had received in the mail was such a card. In accordance with the instructions in the application materials, Respondent attached a copy of this card to his application. The Department received Respondent's completed application for registration on April 20, 2006. On May 23, 2006, the Department issued the registration for which Respondent had applied. Had the Department known that the "competency card" Respondent had attached to his application and had falsely, but not fraudulently, claimed to be valid was in fact a counterfeit that did not accurately represent the local licensure status of Respondent and his business, the Department would have denied Respondent's application for registration. Following a police investigation, two Compliance Office employees, along with a former Compliance Office employee, were arrested for selling "fraudulent licenses." The police alerted the Compliance Office of the results of its investigation in or around July 2006 (after the Department had already granted Respondent's application for registration). The Compliance Office thereupon conducted an audit, which revealed that Respondent was among those who had received a "fraudulent competency card" from the arrestees. Respondent was so notified by letter (sent by the Compliance Office). Prior to his receipt of the letter, Respondent had no idea that the "competency card" he had received in the mail was not what it purported to be. Had he known it was a "fraudulent document" he would have never applied for registration with the Department. The total investigative and prosecutorial costs incurred by the Department in connection with the instant case (excluding costs associated with any attorney's time) was $32.66.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board issue a Final Order revoking Respondent's registration and requiring him to pay the Department $32.66 (representing the Department's investigative and prosecutorial costs, excluding costs associated with attorney time) for the violation of Section 489.129(1)(a), Florida Statutes, Section 455.227(1)(h), Florida Statutes, and Section 489.129(1)(m), Florida Statutes, described above that the Department alleged in its Administrative Complaint and subsequently proved by clear and convincing evidence at the final hearing. DONE AND ENTERED this 22nd day of October, 2007, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 October, 2007.
Findings Of Fact At all times pertinent to the issues herein discussed, Respondent Wallace W. Stewart was licensed as a registered air conditioning contractor by the Florida Construction Industry Licensing Board under License No. RA 0022169. Since at least October 1979, Respondent has been qualifying agent for the contracting firm "Stewart's Solar Energy, Inc.," with the Florida Construction Industry Licensing Board. In September 1979, Fred Johnson was acting as real estate agent for his son, Don F. Johnson of Ponte Vedra, Florida, a licensed general contractor who at the time had several residences for sale in the area. During that period, Mr. Fred Johnson engaged in a discussion with the Respondent concerning the possibility of installing a solar cooling, heating and hot water system in the house that Mr. Johnson proposed to have his son, Don, build for him in St. Johns County, Florida. Pursuant to these discussions, on September 10, 1979, Respondent prepared a proposal for Mr. and Mrs. Fred Johnson for the installation of a complete cooling and heating system and solar collectors for the purpose of domestic hot water in the said residence. Before this proposal was accepted, Mr. Fred Johnson's son, Don, discussed the terms of the proposal with the Respondent. Specifically discussed was that portion of the proposal wherein Respondent proposed to include the following: Necessary piping for circulating chilled and hot water system, perimeter heat, storage tanks for hot and cold water, necessary heat exchangers, refrigeration equipment, circulating pumps, duct system, thermostats, heat exchanger (fireplace), also piping and controls for the hot water heater. Before allowing his father to sign this proposal and accept it, Don Johnson asked Respondent exactly what he proposed to provide regarding the fireplace and was told that Mr. Stewart would provide a firebox interior, which consisted of a steel box shaped like a fireplace, to protect the heat exchanger that was to go with it. At that time, Mr. Stewart took Don Johnson into his workshop and showed him an outfit which he indicated would be similar to, if not identical to, that which he intended to install in the senior Johnson's home. It was understood that Respondent would supply the firebox and heat exchanger, but the builder was to do the masonry work and the chimney. Thereafter, based upon that understanding, Don Johnson recommended to his father that he accept the proposal, which was accomplished on or about the September 10, 1979, date; and both Fred Johnson and his wife, Christine, did so, agreeing to pay, for the complete system, the sum of $5,483 in accordance with a schedule set forth in the proposal sheet. Construction was begun and progressed to the time it was appropriate to install the firebox. At that point, Respondent told Don Johnson, the builder, he was unable to provide the firebox at that time. Since the state of construction was such that a delay in providing the firebox would hold up the continuance of construction, Respondent asked Don Johnson if he, Don, could provide the standard firebox into which Respondent would put his heat exchanger and thereafter give a credit against the purchase price. In response to this suggestion, Don Johnson told Respondent the cost would be between $400 and $500, to which sum Respondent agreed. As a result, Don Johnson put in the firebox that he procured, and Respondent thereafter put in the heat exchanger unit. Construction on the house continued until such time as, in April 1980, the house was considered sufficiently complete for Mr. and Mrs. Fred Johnson to move in. In the interim, however, in order to get the duct work done for the air conditioning and heating system he installed, Respondent, who was not licensed to perform heating and air conditioning installation in St. Johns County, Florida, arranged with Mr. Everett Masters, owner of Masters Heating and Air Service of St. Augustine, Florida, to do the duct work for the Johnson home. A building mechanical permit is not required to do duct work, and Mr. Masters did the duct work without a permit, even though he was not satisfied that the installation called for in the drawings was sufficient to accomplish the purpose of heating and cooling for a house that size. According to Mr. Masters, he did the work according to the specifications given to him, but protested to a representative of Mr. Stewart, Respondent, that the ducts were too small. In response, he was told to put the ducts in as called for in the specifications, which he did, but was never paid for the work he provided. St. Johns County Ordinance No. 76-20, an ordinance regulating contractors and the business of contracting within that county, at Section 4 thereof requires that air conditioning contractors be certified in order to conduct that business within the county. The contract involved here for the construction of Mr. Johnson's house would have required the contractor, Respondent, to have a local license to complete the air conditioning work. Respondent does not have a license in St. Johns County and never has had one. As a matter of fact, before the work was done, Mr. Don Germain, an assistant building official for St. Johns County, told Respondent in 4Z. Germain's office that he, Respondent, would need a county license at the time Respondent had come to the office prior to installing the air conditioning unit in the Johnson house. At this point, Mr. Germain discussed the project, including the rough drawing Respondent had with him, and advised Respondent at that time what permits and what licensing provisions must be fulfilled. At that time, solar heating and hot water systems did not require the license. However, the other work called for in this contract, such as the installation of the air conditioning system, would require a type of license which Respondent did not have. Germain and the Respondent had an extensive discussion on this. As it appeared to Mr. Germain, Respondent could not seem to understand why a license would be needed. A mechanical permit was issued on April 23, 1950, to Masters Heating and Air for a part of the system. A part did not include the entire installation permit. This permit applied for by Mr. Masters was acquired at the request of Don Johnson, the contractor, who pleaded with him to do so because, according to Mr. Johnson, the only way he could get final approval of the construction in order to get the elec- tricity turned on in the house was if this permit was applied for and issued. The permit in question was issued for something other than the duct work accomplished by Mr. Masters. Mr. Masters did not install the air conditioning equipment, only the ducting. The permit, if legitimate, would allow final approval of the installation of the entire air conditioning system. The information contained on the permit was provided to Mr. Masters by Respondent. According to Mr. Germain, Respondent never did get final approval of the building inspector on the total installation. The equipment was not initially accepted by the building department, since it was not a unitary unit-- in which all segments are designed to work together as a unit. However, even though the unit was rejected by the building authorities, they let the work continue based on a letter from the engineer who approved the purchase of the system, which indicated the engineer would be responsible for the working of the unit. In addition, the building officials allowed the work on Mr. Johnson's home to continue even after the discussions regarding the lack of a proper licensee because Respondent assured Mr. Germain of the building office that Mr. Masters, who was in fact a registered and licensed air conditioning contractor in St. Johns County, was going to do the work. Though the unit was basically installed in April 1980, it was not working property even up to July 3, 1980 It did not cool properly. At that point, Respondent contends he was still owed some money by Mr. Johnson. In November 1980, when it became obvious that the initially installed compressor was insufficient in size to cool a house the size of Mr. Johnson's, Respondent replaced the compressor, installing one a half ton larger than that initially installed. At that point, Don Johnson paid Respondent the sum of $800, which, according to Mr. Johnson, was the entire sum owed on the complete installation after deduction of the credit of $483 for the firebox which Mr. Johnson fabricated in lieu of that initially proposed by Respondent and which Respondent could not provide. After Respondent was paid the $800, he stopped responding to calls to service the cooling system and the heating system, even though neither worked properly at that time. Respondent admits that at some point in time he refused to continue servicing Mr. Johnson's unit and did not honor the warranty. He contends, however, that he stopped servicing because Mr. Johnson still owed him $453. The weight of the evidence indicates otherwise. Mr. Johnson ultimately hired another craftsman to repair his system, and the system was repaired without any further assistance by Respondent.
Recommendation That Respondent pay a fine of $1,000, and that Respondent's license be placed on probation for a period of two years.
The Issue Whether the Respondent acted fraudulently, arbitrarily, illegally or dishonestly in proposing to award a contract for State Project No. 99003-3501 to the Intervenor.
Findings Of Fact The Parties. The Respondent, the Department of Transportation (hereinafter referred to as the "Department"), is an agency of the State of Florida. The Department sought bidders for a construction project by invitation to bid. The Petitioner, North Florida Construction, Inc. (hereinafter referred to as "North Florida"), submitted a bid on the Department's construction project. The Intervenor, Pro-Steel Buildings, Inc. (hereinafter referred to as "Pro-Steel"), also submitted a bid on the Department's construction project. The Subject Invitation to Bid. The Department issued an Invitation to Bid for State Project Number 99003-3501 (hereinafter referred to as the "ITB"). The ITB solicited bids on a construction contract for the relocation of the Department's maintenance yard facility in Tallahassee, Florida. The ITB required that each prime contractor either subcontract at least 25 percent of the total contract price to a Certified Minority Business Enterprises (hereinafter referred to as a "CMBE"), or show a good-faith effort to meet the 25 percent goal. Pages 78-81, Joint Exhibit 1. Included in the Instructions to Bidders, at Section B-14, are instructions concerning "Listing of Subcontractors." Page 15, Joint Exhibit 1. Section B-14 of the ITB provides: In order that the Owner may be assured that only qualified and competent subcontractors will be employed on the project, each Bidder shall submit in triplicate with his proposal a list of the subcontractors who will perform the work for each Division of the Specifications utilizing the "List of Subcontractors" form enclosed as Exhibit 5. The Bidder shall have determined to his own complete satisfaction that a listed subcontractor has been successfully engaged in this particular type of business for a reasonable length of time, has successfully completed installations comparable to that which is required by this Agreement and is qualified both technically and financially to perform that pertinent phase of this work for which he is listed. . . . Any bidder who lists a subcontractor not certified and/or registered by the State to perform the work of his trade if, such certification or registration is required for the trade by Florida Laws, will be rejected as non-responsive. No change shall be made in the list of subcontractors, before or after the award of a contract, unless agreed to in writing by the Owner. [Emphasis added]. Exhibit 5, List of Subcontractors, provides, in part, the following: THE UNDERSIGNED, HEREINAFTER CALLED "BIDDER", LISTS BELOW THE NAME OF EACH SUBCONTRACTOR WHO WILL PERFORM THE PHASES OF THE WORK INDICATED. FAILURE OF THE BIDDER TO SUPPLY SUFFICIENT INFORMATION TO ALLOW VERIFICATION OF THE CORPORATE, AND DISCIPLINE LICENSE STATUS OF THE SUBCONTRACTOR MAY DEEM THE BID AS BEING NON-RESPONSIVE. Page 55, Joint Exhibit 1. Exhibit 5 was required to be completed and submitted with all bids pursuant to Section B-14 of the ITB. From the technical specifications for Heating, Ventilation and Air Conditioning work (hereinafter referred to as "HVAC"), for the project at issue, it could be inferred that two 30-ton air conditioning units were required. The Bids Submitted by Pro-Steel and North Florida. Bids on the ITB were submitted and opened on March 24, 1994. North Florida submitted a bid in response to the ITB: On the envelope containing the sealed bid of North Florida, North Florida requested that $14,000.00 be deducted from its proposed contract price. North Florida submitted a bid of $2,997,007.00. North Florida was the apparent second low bidder. North Florida listed Gallon & Sons as the subcontractor responsible for HVAC work. North Florida also listed Gallon & Sons as a CMBE. Gallon & Sons was listed on Exhibit 5, the Minority Business Enterprise Utilization Summary, submitted with North Florida's bid. North Florida proposed to install two 30-ton air conditioning units. Pro-Steel also submitted a bid in response to the ITB. Pro-Steel submitted a bid of $2,993,000.00. Pro-Steel was the apparent low bidder. Pro-Steel listed "Watts Mechanical" as the subcontractor responsible for the HVAC work required by the ITB. Pro-Steel also listed Watts as one of two CMBE subcontractors. "Watts Mechanical" was listed on Exhibit 5, the Minority Business Enterprise Utilization Summary, submitted with Pro-Steel's bid. Pro-Steel's bid submittal proposed the installation of two 30-ton air conditioning units. The Department's Decision. It is the policy of the Department to waive minor irregularities in bid submittals. Irregularities with North Florida's bid were correctly determined to be minor by the Department and were waived. The bid tabulation sheet and the bids indicated that Pro-Steel submitted the lowest, responsive bid. The Department proposed to award the contract under the ITB to Pro-Steel. Without Watts as a CMBE, Pro-Steel would not meet the 25 percent CMBE participation goal of the ITB. The Department's project manager for the ITB determined that Watts was a CMBE in evaluating the bid submittals. Qualification of CMBE's to Perform Work Proposed. Gallon & Sons was at all times relevant to this proceeding, registered as a CMBE in hearing and air conditioning. Eddie Gallon, Sr., was at all times relevant to this proceeding, the registered qualified agent for Gallon & Sons. Mr. Gallon holds a Class A license in heating and air conditioning. The stock of Watts Mechanical, Inc. (hereinafter referred to as "Watts"), is owned 100 percent by Jacqueline Watts. Ms. Watts is also the President of Watts. Ms. Watts held and still holds a Class B HVAC license from the Department of Business and Professional Regulation. Ms. Watts was registered with the Department of Business and Professional Regulation as the qualifying agent for Watts. Watts was registered with the Department of Management Services as a CMBE under the category of heating and air conditioning contractors. On January 1, 1994, Watts acquired the assets of Energy Systems of Tallahassee (hereinafter referred to as "Energy Systems"). Energy Systems was then owned by Thomas Trapane. As of January 1, 1994, it was intended that Watts be renamed "Watts Mechanical and Energy Systems, Inc." Mr. Trapane held and still holds a Class A HVAC license from the Department of Business and Professional Regulation. Mr. Trapane was registered with the Department of Business and Professional Regulation as the qualifying agent for Energy Systems. As of January 1, 1994, Mr. Trapane became an employee of Watts. As of March 24, 1994, when bids were submitted on the ITB: Watts had not filed an amendment to its Articles of Incorporation reflecting the change in name to Watts Mechanical and Energy Systems, Inc. (hereinafter referred to as "Watts Mechanical and Energy"). The amendment was not filed until April 26, 1994. Mr. Trapane had not registered with the Department of Business and Professional Regulation as the qualifying agent for Watts or Watts Mechanical and Energy. It was not until May 2, 1994, that the Department of Business and Professional Regulation issued a letter indicating that Mr. Trapane was a secondary qualifying agent for Watts Mechanical and Energy. Watts had not notified the Department of Management Services of its name change with regard to its CMBE certification. Based upon the foregoing, at the date of the submittal of bids and the proposed award of contract pursuant to the ITB, Watts did not hold the license required in order for it to complete the work Pro-Steel had represented to the Department Watts would perform. Substitution of Subcontractors. It is the policy of the Department to allow contractors to substitute subcontractors for good cause if proper documentation is submitted. The evidence, however, failed to prove the Department's policy concerning substitution of subcontractors applies in this matter. The evidence also failed to prove that the Department's policy concerning substitution of contractors allows the Department to accept as meeting part of the CMBE requirement of the ITB a CMBE that was not qualified to perform the required work as of the date of bid award. Alternative Proposals. The ITB allows substitutions for specified systems or products contained in the ITB. Page 28, Joint Exhibit 1. Substitutions, however, must be requested of the Architect-Engineer and written approval from the Architect-Engineer must be obtained. Substitutions must be submitted within 45 days after award of the contract. No substitutions were submitted by Pro-Steel or Watts at the time of bid submittal. As of the date of the final hearing of this case, Watts had decided to suggest that the configuration of the HVAC of the project be changed in a manner that would not require a Class A license for the work to be performed. The evidence failed to prove that the Department was aware of this proposal at the time of its initial decision.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a Final Order declaring the bid submitted by Pro-Steel Builders, Inc., to be non-responsive. DONE AND ENTERED this 13th day of June, 1994, in Tallahassee, Florida. LARRY J. SARTIN 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 13th day of June, 1994 APPENDIX Case Number 94-2353BID The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. North Florida's Proposed Findings of Fact Accepted in 2 and hereby accepted. Accepted in 1. Accepted in 3 and hereby accepted. Accepted in 4 and 10. Accepted in 10-11 and 13. Accepted in 6-8. Accepted in 14. Accepted in 15. Accepted in 7. Accepted in 25 and 32. Conclusion of law. Accepted in 9. Conclusion of law. See 27 and 32. Accepted in 32. Accepted in 15. Accepted in 20. Accepted in 7-8. See 33. The Department's Proposed Findings of Fact Accepted in 4. Accepted in 2-3 and 11-12. Accepted in 6. Accepted in 10-11. Accepted in 11 and 13. Accepted in 11 and 15. See 26, 28 and 32. Watts Mechanical, Inc. was a CMBE at the time of bid submittal. Watts Mechanical & Energy Systems, Inc., did not exist at the time of bid submittal. Accepted in 22. Accepted in 9. 9 Accepted in 24. 10-11 Accepted in 25. Accepted in 31. Accepted in 29. Accepted in 32. Accepted in 23. Hereby accepted. Accepted in 20. Accepted in 21. Accepted in 36. But see 37-38. Not relevant. See 7. Accepted in 8. 23 See 36-38. Not relevant. Accepted in 17. Pro-Steel's Proposed Findings of Fact Accepted in 4. Accepted in 7-8 Accepted in 8. Not supported by the weight of the evidence. Accepted in 34. See 35. Accepted in 17. 7 Accepted in 2-3, 10-11 and 18-19. Accepted in 14. Accepted in 9 and 36. See 25-26. But see 32. Accepted in 27, 29 and 31. The last sentence is not relevant. Accepted in 32. Not supported by the weight of the evidence. 14 See 34-35. 15 See 36-39 COPIES FURNISHED: Ben G. Watts, Secretary Attn: Eleanor F. Turner, M.S. 58 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0450 Thornton J. Williams General Counsel 562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0450 Thomas H. Duffy Assistant General Counsel Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, FL 32399-0458 Tommy Strickland North Florida Construction, Inc. Post Office Box 129 Clarksville, Florida 32430 Stephen J. Kubik, Esquire 155 Office Plaza Drive Tallahassee, Florida 32301
Findings Of Fact The Petitioner, John L. Horn, applied for and took the February 22, 1980, examination for a Class B air conditioning contractor's license, having been qualified, and meeting all preliminary requirements to sit for this examination. Mr. Horn answered Question 6 of the exam by selecting multiple choice Answer E. Question 6 of the February 22, 1981, examination was as follows: The contractor for the classroom and office building shown on Drawing AC-3 is required to accurately measure the air flow from each of the air handling units. Which of the following methods should be used? A magnehelic gauge with the high pressure port connected to the supply duct and the low pressure port connected to the return duct. An inclined draft gauge with a pitot tube traverse at several points in the supply duct to determine the mean velocity. An inclined draft gauge with a pitot tube traverse in the centerline of the supply duct to determine the actual velocity. A rotating vane anemometer located in the supply duct air stream. A velometer located at each sidewall outlet. All answers except Answer B were graded as incorrect, including the answer submitted by Mr. Horn. The February, 1980, Class B air conditioning contractor's examination was developed by American Community Testing Services, located in Jacksonville, pursuant to a contract with the Department of Professional Regulation. Question 6 was prepared by Mr. Larry Simmons for the testing service. This question seeks multiple Choice Answer B as the correct answer. Each examination question is written by an expert in the field, and is then checked by another expert for accuracy. The questions are then reviewed by a consultant to the testing service who is a professor of mechanical engineering. These internal review procedures are utilized to minimize the existence of errors. Prior to the time an examination question is used, it is subjected to Departmental review to assure that any grammatical errors are corrected. Subsequent to the examination, Question 6 and the various answers given by examinees were analyzed. Based upon testing criteria, Answers C and D in Question 6 were judged to possibly be correct, in addition to Answer B. Based on this same testing criteria, however, Answers A and E were not possibly correct. A discrimination index disclosed that Question 6 was a difficult question. Nevertheless, every examinee is qualified by experience to sit for the examination, which is designed for competition among peers. The post-examination review procedures used by the Department are for the purpose of assuring that there is not another correct answer. This review is performed by the writer of the question and an expert in the field being reviewed. The preferred method for measuring air flow is to use a pitot tube traverse, as suggested by Answer B. Other methods are available alternatives, but are not given as choices in the answers to Question 6. Answer A is incorrect because it measures static pressure and not air flow. Answer D is not correct because of the large hole that would have to be cut in the duct in order to insert the instrument, and after sealing the duct no reading could be taken. Answer E is also incorrect because it would allow air to flow into the room. Answer C could be correct in a small duct, but not in the duct shown on the drawing accompanying Question 6. The question seeks the best answer among the five choices; Answer B is the only acceptable choice and the correct answer. Twelve of the 14 persons who scored in the upper 27 percent on the examination answered Question 6 correctly, by choosing Answer B. Only 7 of the 19 persons who scored in the lower 27 percent on the examination answered this question correctly. This difference produced a discrimination index of .47 percent, which is within professional testing standards as an accurate measure of the validity of the question. This evidence was not controverted. Thus, based upon generally accepted testing criteria, the discrimination index shows Question 6 to be a valid question, and Answer B to be the correct answer. Mr. Horn's contentions are not supported by the weight of the evidence presented. The burden of proof is upon an applicant for a license to demonstrate that he meets all standards for eligibility. Mr. Horn did not present sufficient evidence to meet this burden of proof, and the Board established by substantial, competent evidence the validity of Question 6 and the correctness of Answer B.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of John L. Horn for a license as a state certified Class B Air Conditioning Contractor be denied. THIS RECOMMENDED ORDER entered on this 15th day of April, 1981. WILLIAM B. THOMAS 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 15th day of April, 1981. COPIES FURNISHED: John L. Horn 114 Willow Branch Avenue Jacksonville, Florida 32205 Charles F. Tunnicliff, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Patricia R. Gleason, Esquire Assistant Attorney General The Capitol Tallahassee, Florida 32301
