Findings Of Fact At all times relevant hereto, respondent, Sam Pollack, held certified air-conditioning contractor license number CA-C008663 issued by petitioner, Department of Professional Regulation, Construction Industry Licensing Board (Board). He has been licensed by the Board for approximately sixteen years. Respondent used his license with and was qualifying agent for a firm known as Dr. Cool's Clinic, Inc. located at 10662 Southwest 186th Lane, Miami, Florida. Around April 1, 1986 Steven and Beverlee Swerdlen moved into a 1,400 square foot prefabricated modular home at 19800 Southwest 180th Avenue, Miami, Florida. The home is located in a large modular home subdivision known as Redland. Although a modular home resembles a mobile home in certain respects, it is considered to be a fixed, permanent residential dwelling under local building codes. The home had previously been a model unit in the subdivision and had never been lived in since being built at least three years earlier. On April 3, 1986 respondent entered into a contract with Steven Swerdlen to install a Rheem four-ton air conditioning unit at Swerdlen's home. The contract called for a total price of $2152.50. The Swerdlens paid for the job in full the same day by credit card. Because Swerdlen's home had the ductwork and twenty outlets already in place, Pollack was to adapt the unit to the existing ductwork. Respondent's firm was selected over other firms because Mrs. Swerdlen was impressed with Pollack's advertisement which represented that Pollack provided "air conditioning designed and serviced for people with allergies and other respiratory problems." This was important to her since she suffers a heart condition and requires air-conditioning during warm weather. She also accepted respondent's oral representations that he had the experience and expertise to satisfy her needs. The ductwork in the home was accessible through a small crawlspace located under the floor. There were also two vents under the floor to prevent a buildup of moisture. The flooring in the home was made of particle board and was sealed with a vapor barrier which was designed to protect it from moisture damage. When the Swerdlens purchased their home, the vapor barrier was already cracked in several places and, coupled with the fact that the area had only two vents, the floor was susceptible to moisture damage. Before a central air-conditioning unit is installed, a prudent and competent air-conditioning contractor should take measurements of the home, perform heat loss calculations and inspect the existing ductwork to insure that the proper size unit is being installed. The evidence is sharply conflicting as to what steps, if any, were undertaken by respondent when he visited the Swerdlen home on April 3 to discuss the job. It is found, however, that Pollack made a visual inspection of the home but did not take formal measurements or make heat loss calculations. He inspected the ductwork to the extent he looked under the house through the crawlspace opening. He noted a potential problem with the vapor barrier and a supply duct hookup location that was blocked by a pier (support). He mentioned to Mrs. Swerdlen that she needed additional ventilation windows underneath the home and that she had a potential moisture problem with the vapor barrier. However, he did not suggest that she wait and have those matters corrected before he installed the unit. The unit was installed on April 7, 1986, or four days after the contract was signed. Besides respondent and a helper, Mrs. Swerdlen was the only person present. No electricians were called in to assist on the job. According to Pollack, the only electrical work that he performed was the installation of the thermostat unit in the closet under the fuse box and the internal electrical connections to the unit. As to this latter work, Pollack stated he did not believe an electrical license was needed to connect the terminal wires to the air-conditioning unit. He did not obtain a building permit from the county nor did he request an inspection of his work. Both were required by county regulations. Because the supply duct hookup was blocked by a pier, Pollack was forced to place a three or four foot high supply duct in a bedroom closet. Without advising the Swerdlens as to the extent or nature of modifications needed to bypass the pier, Pollack cut a large, unsightly hole in the closet floor. It was also necessary to penetrate the vapor barrier when the hole was cut. The cut was never resealed. The new duct took up much of the closet space and was vulnerable to puncture damage. A photograph of the supply duct is found in petitioner's exhibit 14. After the work was completed, Pollack did not advise the Swerdlens that the vapor barrier had been broken or that it needed to be resealed to avoid moisture damage to their floor. The power source to the air-conditioning unit was a 10-gauge wire. Since the unit required a larger gauge, it was necessary that an 8-gauge wire be installed. Pollack and his helper left for one and one-half hours at lunch during the day of installation, and Pollack claims the wire was changed by someone during the time he was gone. The Swerdlens contended they knew nothing about electrical wiring and could not perform the task themselves. Their testimony is accepted as being more credible and it is found that Pollack, even though he was not licensed as an electrician, changed the electrical power source wiring. In addition, Pollack did all other electrical work required for the installation of the unit. In doing so, he made no provision for overload, left exposed wiring in the closet by the thermostat and failed to provide a service disconnection switch for the unit inside the home. Until these deficiencies were corrected several months later, the Swerdlens could smell a burning odor in their home. According to industry standards and local building code requirements, the unit should have been placed on a concrete slab. However, Pollack used two sets of concrete runners obtained from the unit manufacturer. He justified this on the ground that many other homes in the same subdivision did not have slabs under their units. Even so, this did not justify a deviation from code requirements. Because a slab was not used, the unit sank into the ground after the first rainfall. Pollack eventually installed a cement slab in November, 1986 after being ordered to do so by local building officials. The Swerdlens' floors began to buckle and ripple within a short time after the unit was installed. It began in the bathroom directly above the area where Pollack had penetrated the vapor barrier to install the supply duct and was exacerbated by the closure of one of the two vents under the floor when Pollack installed the unit. The damaged floor is memorialized in photographs received in evidence as petitioner's exhibit 14. Mrs. Swerdlen contacted respondent after the above problems began to occur. Other than adjusting the thermostat to get better cooling, Pollack did nothing since he did not think he was responsible for the other problems. He offered to make the other changes for additional compensation and if the Swerdlens would agree to release him from all liability. After declining Pollack's offer, Mrs. Swerdlen had other persons or companies make the needed repairs. Most of the costs were paid by her insurance company. She also contacted the Metropolitan Dade County Building and Zoning Department (Department) and the Board. The Department learned that no permit had been obtained by Pollack even though one was required and that no inspections had been made during and after the work. Pollack obtained an after-the-fact permit on November 24, 1986, after paying a double fee and a $100 violation fee for failing to timely obtain the permit. After being contacted by Mrs. Swerdlen, a Department mechanical inspector made an inspection of the Swerdlens' home on November 24, 1986. He found several violations of the local building code including (a) a failure to obtain a permit and have required inspections made, and (b) improper electrical work. A summons was issued against Pollack for these violations. The disposition of the summons is not of record. The inspector also noted that the vapor barrier around the closet supply duct had not been resealed, that the flooring was warped above the cut and that the unit was not on a concrete slab. Although the inspector suggested that Pollack correct these deficiencies, only the latter deficiency was corrected. The work never passed final inspection. The Board employed a Jacksonville residential contractor as its expert in this case. Although the expert did not personally inspect the property, he reviewed photographs of the site, respondent's deposition and the investigative file and spoke with the Swerdlens by telephone. According to the Board's expert, Pollack was guilty of gross negligence by performing work that exceeded the scope of his license, performing potentially hazardous electrical wiring, installing a non-efficient system in the Swerdlens' home, failing to follow accepted industry rules concerning static friction, velocities, noise levels and filtration, failing to properly inspect the home prior to installation, improperly installing the unit, damaging the vapor barrier, installing a large supply duct in the closet without obtaining the Swerdlens' approval and failing to use a cement slab to support a heavy unit. He further opined that respondent was deceitful by selling the system in the manner that he did, particularly since it was sold and installed within a four day period with no thought given to or preparation taken as to the problems that might be encountered. The expert agreed that the work was made more difficult by the position of the pier but stated that Pollack should have explained this problem to the Swerdlens and obtained their approval prior to cutting through their closet floor. Pollack has worked in the air-conditioning business for around 26 or 27 years, of which two were spent as a building inspector for Dade County in the late 1960s. He contended he warned Mrs. Swerdlen about the penetrated vapor barrier, the blocked air duct and the lack of a sufficient number of vents. Pollack also stated he advised Mrs. Swerdlen it was her responsibility to get an electrician to do all electrical work. However, these contentions are rejected as not being credible. Moreover, if there were special problems with the Swerdlens' home, it was respondent's responsibility to design and install a system that was compatible with those special needs. Pollack asserted that the Swerdlens' home was actually a mobile home, and he was under the impression that permits were not required for work on this type of home. However, this contention is irrelevant since Dade County has required permits for air conditioning work on both fixed and mobile homes for at least the last ten years.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsections 489.129(1)(d), (j), and (m), Florida Statutes (1985), that he pay a $3,000 civil fine within thirty days from date of a Final Order in this cause, and that his license be suspended for thirty days, or until the fine is paid if after the expiration of said thirty day period. DONE AND ORDERED this 3rd day of June, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 3rd day of June, 1988.
Findings Of Fact Respondent Charlie S. Hiers is registered as a Class B air conditioning contractor and qualifier for Hiers Air Conditioning and Refrigeration, Orlando, Florida. As of July 1, 1979, his license became delinquent. (Petitioner's Exhibit 1) In December, 1981, Myrtle D. Harris, who resided at 7505 Ranchero Street, Orlando, engaged the services of Respondent to repair the air conditioning unit at her home. He had performed satisfactory air conditioning work for her on two prior occasions in 1979 and 1980. She had originally contacted him through an ad in the telephone directory under the name "Temp Control Service." On each occasion she had given him a check payable to Temp Control Services which was later endorsed in that name by Respondent. (Testimony of Harris, Petitioner's Exhibits 2-3) Respondent advised Mrs. Harris on December 2, 1981, that the compressor of her air conditioning unit needed to be replaced with a new compressor. She thereupon gave him a check in the amount of $546.00 and he provided her with a bill marked paid in that amount. Her chock, dated December 2, 1981, was made payable to Charlie Hiers, and his bill of the same date merely had his handwritten name at the top. Mrs. Harris later added the words "Temp Control" in the payee portion of the check after it had been endorsed by Respondent and returned after payment. (Testimony of Harris, Petitioner's Exhibits 4-5) Respondent proceeded to remove the old compressor and later came by Mrs. Harris' house and told her that he had had to order a replacement part. However, he never came back to her home or performed the work for which he had been paid. Mrs. Harris attempted to reach Respondent by leaving her telephone number at his answering service but received no reply. Later, sometime in January, Respondent telephoned her and stated that he had the compressor on his truck and would install it on a specified date. However, he never fulfilled his promise. Mrs. Harris attempted to reach him on subsequent occasions by telephone, but was unable to contact him. On February 1, 1982, Mrs. Harris had her nephew write a letter to Respondent requesting that he either perform the work or return the payment of $546.00. Several months later, after not having heard from the Respondent, Mrs. Harris purchased a new air-conditioner. Respondent has taken no action to perform his agreement or to return the amount which he was paid. (Testimony of Harris)
Findings Of Fact At all times material hereto, the Respondent, Thomas W. Hunter, was a certified Class B Air Conditioning contractor, having been issued license number CA C014646, by the State of Florida. At all times material hereto, Derrell Baugh (D. Baugh) was an electrical contractor having been issued a license by the State of Florida. D. Baugh has not had an air conditioning license for Lake County, but has held a City of Eustis air conditioning license for some 15 years. Gregory Duane Baugh (G. Baugh) is the son of D. Baugh. G. Baugh has not been licensed by the State of Florida. The Respondent has been doing business as Hunter Air. The Respondent has never qualified Baugh's Electric, and D. Baugh has never qualified Hunter Air. In approximately 1976, D. Baugh and his son G. Baugh, and the Respondent were partners in the business of Baugh's Electric. There was no written partnership agreement, only a handshake partnership. The Respondent did the air conditioning and refrigeration work, and D. Baugh and G. Baugh did the electrical work. All three of them shared in the profits. If a job involved electrical and air conditioning work, the partner who had already contracted for the job would encourage the main contractor to use the other partner. When the Respondent and D. Baugh were working on the same job, if one partner was behind in his work, the employees of one would assist the one who was behind to complete his work. Further, when working on the same job, and when authorized by the Respondent, D. Baugh would sometimes pull air conditioning permits for the Respondent. This partnership arrangement ended in 1980 or 1982. After the dissolution of the partnership, the Respondent continued to have access to the checking accounts, and charge accounts with wholesalers, of Baugh's Electric. The Respondent can write checks on the account and charge items with wholesalers. Even after the partnership dissolved, Baugh's electric continued to use the business cards of the partnership, which included the Respondent's name. The business part of Baugh's Electric, bookwork and the writing of proposals, is handled by G. Baugh. The field work and troubleshooting is handled by D. Baugh. On June 30, 1985, G. Baugh prepared an electrical and air conditioning proposal for Gary Wyckoff (Wyckoff) on a spec house being constructed by Wyckoff. The proposal was on proposal paper for the business of Baugh's electric and showed the electrical contractor as G. Baugh, the air conditioning contractor as the Respondent, and a breakdown of the cost for each type of work. The total cost for the work, per the proposal, was $4,170. Baugh's Electric had performed other work for Wyckoff, but had not always submitted a written proposal. G. Baugh believed that the Lake County Building Department saw no problem with either the proposals of Baugh's Electric, or with the Respondent being on the proposal sheet of Baugh's Electric, as long as it was specified who was going to do what. G. Baugh has written at least six proposals in this manner. The proposal for the Wyckoff job was written as it was because the Respondent had no proposal paper of his own and it was convenient. Before the Wyckoff job, D. Baugh had a discussion with the Lake County Construction License Investigator, Mary Pasak (Pasak), concerning himself and the Respondent working together. D. Baugh was informed that there was nothing wrong with them working together as long as the Respondent did the air conditioning work and obtained the air conditioning permits, and D. Baugh did the electrical work and obtained the electrical permits. The Respondent testified that he saw nothing wrong with putting multiple proposals from different contractors with different types of licenses on one proposal sheet because he had been employed with companies which engaged in this practice. He testified that he saw nothing wrong with putting his proposal for air conditioning on the same proposal sheet with Baugh's Electric which was to do the electrical work, because everyone who was working on a project, including the Wyckoff job, was made aware of who was doing what. D. Baugh pulled the electrical permit for the Wyckoff job. As part of the air conditioning work, duct work had to be done. To complete the duct work G. Baugh contacted a duct man, James Edwards (Edwards), whom Baugh's Electric had used on several other jobs in the City of Eustis area, because the Respondent was unable to start the job. Edwards knew that he was performing the work under the Respondent's license because he had been informed years ago, during the partnership, that among the partners the Respondent had the air conditioning license. However, Edwards informed the Lake County Building Inspector that he was employed by D. Baugh on the Wyckoff job. Edwards had neither seen nor had any contact with the Respondent. On all the jobs that Edwards had done duct work on for Baugh's Electric, either D. Baugh or G. Baugh had made the contact with him, given him the okay to do the duct work, or paid him. Edwards completed the duct work, and was paid by Baugh's Electric. The Respondent reimbursed Baugh's Electric. No permit to perform the air conditioning work, including the duct work, had been pulled before Edwards started and completed the duct work. Edwards believed that D. Baugh had taken care of the mechanical permit for the air conditioning work. Wyckoff also believed that the mechanical permit had been pulled. Wyckoff knew that the Respondent had the license to perform the air conditioning work, although he had only seen the Respondent twice. Their contact was usually by telephone. The Respondent pulled the mechanical permit for the Wyckoff job after Edwards had completed the duct work. Because the Respondent pulled the permit after the work had begun, he had to pay the Lake County Building Department a double fee for this permit. The Respondent pulled the mechanical permit as a favor to Baugh's Electric. The Respondent did not know that the duct work for the air conditioning job had begun. He knew he was to perform some air conditioning work for Wyckoff on a house, but he did not know which house it was, or where it was located. The Respondent completed the air conditioning work, and on August 21, 1985, submitted to Wyckoff an invoice in the amount of $2,200 for the work. Even though the invoice was on the letterhead of the Respondent's company, Hunter Air, the invoice was filled out by G. Baugh. Wyckoff paid the Respondent for the air conditioning work.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Thomas W. Hunter, be found guilty as charged, and that he be assessed an administrative fine in the amount of $1,000. THIS RECOMMENDED ORDER entered on this 24th day of September, 1986 in Tallahassee, Leon County, Florida. 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 24th day of September, 1986. COPIES FURNISHED: Errol H. Powell, Esquire 130 North Monroe Street Tallahassee, Florida 32301 Thomas W. Hunter 502 Citrus Avenue Eustis, Florida 32726 Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings S. Benton, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Fred Seely Executive Director Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201
The Issue The issue addressed in this proceeding is whether Respondent's license should be disciplined pursuant to Chapter 489, Florida Statues. At the hearing, Petitioner presented five witnesses and offered five exhibits into evidence. Respondent did not appear at the hearing held on March 26, 1990. However, after the March 26 hearing, Respondent informed the hearing officer that he did not receive adequate notice of the hearing. Based on Respondent's representations the hearing was re-opened to allow Respondent to present evidence on his behalf. The re-opened hearing was held on June 15, 1990. All parties were present. Respondent testified in his own behalf. Respondent did not offer any exhibits into evidence. Petitioner filed a Proposed Recommended Order on June 15, 1990. Respondent did not file a Proposed Recommended Order. The Petitioner's proposed findings of fact have been considered and utilized in the preparation of this Recommended Order except where such proposals were not supported by the weight of the evidence or were immaterial, cumulative or subordinate. Specific rulings on the Petitioner's proposed findings of fact are contained in the appendix to this Recommended Order.
Findings Of Fact Sometime around July, 1987, Respondent inquired of Leon County, Florida, officials on the requirements for obtaining a heating and air- conditioning contractor's license. At that time, Respondent was advised that he would have to take an exam for the license and was given the necessary application forms. Respondent never took the examination. However, on September 28, 1987, a new employee in the County's Office responsible for issuing such licenses erroneously issued Respondent a heating and air-conditioning contractor's license. The employee's error was caught around May, 1988. Respondent was notified of the error and the invalidity of his license by letter dated May 3, 1988. Respondent, on two separate occasions, was also verbally notified of the invalidity of his license by two other employees of the County's Building Department. After the County had erroneously issued the Respondent his license and after he was notified that the license had been issued in error and was invalid, Respondent, by application dated September 1, 1988, applied for state-wide registration based on his County licensure. The erroneous letter of licensure from the county was attached to the application. Respondent claimed that he attached the county's letter of licensure to his application on the advice of an unknown employee of the Board in its Jacksonville office. However, Respondent did not present any evidence corroborating his hearsay testimony regarding his telephone conversation on this matter. Without such corroboration such evidence is unreliable and cannot formulate the basis of a factual finding that such a conversation took place and or the content of that conversation. The reason Respondent attempted to obtain his state licensure was that by the time he was notified of the county's error he had incurred about $30,000 worth of debt to his business suppliers. Additionally, Respondent's business had financed his wife's business and supported their four children. Respondent did not believe he was in a position to simply go out of business. Respondent's priorities were simply different than those of the State. He did not perceive that his actions were wrong since he had been doing air conditioning and heating work for the past 15 years and was otherwise qualified to engage in the contracting business. State registration may be obtained from the Board once a local government issues a license to an individual. On September 22, 1988, based on Respondent's representation that he held a valid County heating and air-conditioning contractor's license, the Board issued Respondent a state license, License #RA0057606. After issuance of the license, the Board was notified by the City that Respondent did not have a valid license. Based on that information, the Board, through its investigator, contacted the Respondent on several occasions in order to rectify the situation. During several of these contacts, Respondent admitted that he knew his County and State licenses were invalid. The best evidence of Respondent's knowledge was that he signed a cease and desist order stating that he would no longer conduct a heating and air-conditioning contracting business until such time as he was lawfully licensed. Respondent continued to engage in the heating and air-conditioning business. Respondent, also, plead to criminal changes of perjury and conducting a business without a license as a result of the above facts. On November 2, 1988, the board issued an emergency suspension of Respondent's license based upon the foregoing facts. The evidence was clear that Respondent was given several opportunities to obtain both his County and State licenses. However, for unknown reasons, Respondent failed to follow up on any of these opportunities even though he had indicated to the respective officials that he would take such a course of action. On these facts, there is no question that Respondent's license should be revoked since it was issued based on an invalid County license. Further, there is no question that Respondent knew his County license was invalid and misrepresented that material fact to Petitioner. The County license is a mandatory precondition to the issuance of the state license. Given Respondent's willful misrepresentation in conjunction with the business position he was placed in due to the County's error, Respondent should be assessed a fine of $1,000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Board should enter a Final Order revoking Respondent's heating and air-conditioning license and imposing an administrative fine in the amount of $1,000. DONE and ENTERED this 27th day of June, 1990, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 27th day of June, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-0494 The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, and 9 of Petitioner's Proposed Findings of Fact are adopted in substance, in so far as material. Copies furnished: George W. Harrell, Esquire Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 James Nolan 829 West Tharpe Street Tallahassee, Florida 32303 Kenneth E. Easley, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Fred Seely Executive Director Post Office Box 2 Jacksonville, Florida 32202
The Issue The issue is whether Respondent failed to secure workers' compensation coverage for its employees and, if so, the amount of the penalty to be assessed against Respondent.
Findings Of Fact Respondent installs and maintains air conditioning and heating equipment for residential and commercial applications. On May 2, 2017, Respondent was installing a duct system at 3128 East Hillsborough Avenue in Tampa. Two of Respondent's employees were performing work at the site and were not covered by workers' compensation. Leslie Michaud is the president and sole shareholder of Respondent. The air conditioning installation work performed by Respondent's employees is classified by the National Council on Compensation Insurance (NCCI) as class code 5537. This code is for "Heating, Ventilation, Air-Conditioning and Refrigeration Systems Installation, Service and Repair . . . ." During the audit period of May 3, 2015, through May 2, 2017 (Audit Period), code 5537 bore two rates. For the Audit Period, Respondent had no workers' compensation coverage for any of its employees, although it maintained an exemption for Mr. Michaud. For the Audit Period, Respondent's gross payroll was $213,327.49 exclusive of any payments to Mr. Michaud. Applying the manual rates during the Audit Period to the gross payroll yields unpaid workers' compensation premium of $14,870.43.
Recommendation It is RECOMMENDED that the Department of Financial Services, Division of Workers' Compensation, enter a final order determining that Respondent failed to secure workers' compensation coverage for its employees during the Audit Period and imposing a penalty of $29,740.86. DONE AND ENTERED this 7th day of January, 2019, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 2019. COPIES FURNISHED: Tabitha G. Harnage, Esquire Steven R. Hart Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-4229 (eServed) Leslie G. Michaud L and M Airconditioning System, Inc. 49 North Federal Highway, No. 206 Pompano Beach, Florida 33062 Julie Jones, CP, FRP, Agency Clerk Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 (eServed)
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings. Petitioner is the State agency charged with regulating the practice of contracting. During times material hereto, Respondent was licensed by the Construction Industry Licensing Board as a certified air conditioning contractor having been issued licensed number CA C022410. Respondent has been so licensed since May 1982. During December, 1982, Petitioner submitted a change of status application requesting that his license be changed to qualify for All County Air Conditioning (All County) in Fort Lauderdale, Florida. That change of status application was approved by Petitioner and Respondent has remained the qualifier for All County continuously and his license has been renewed as such and is active for the period 1987-1989 (Petitioner's Composite Exhibit 4). On September 4, 1985, Respondent through the entity All County, entered into a contract with Ernest D'Esposito to "furnish and install 1 new Whirlpool 2 Ton condensing unit, with new slab, hook-up to existing pipes and electric". The agreed upon price to complete the work was $950.00 with a five year guarantee on the compressor and a one year guarantee on parts and labor. (Petitioner's Exhibit 1). Respondent commenced the work as agreed and completed the work as scheduled. Respondent did not obtain a permit for said work from the local building department nor was a permit posted on the job site when Respondent commenced work on the project. While the work was in progress, Respondent did not obtain any inspections for the work from the local building department. A record search of the Pembroke Pines Building and Zoning Department revealed that Respondent did not obtain a permit to install the air conditioning unit at D'Esposito's residence. (Testimony of Marie Bogart, records custodian, Building and Zoning Department, City of Pembroke Pines). Rene Pena, chief mechanical inspector for the City of Pembroke Pines, is the person who checks the installation of all air conditioning work in the City of Pembroke Pines. Mr. Pena did not perform any inspections on D'Esposito's job nor was he requested to perform any inspections by Respondent. Respondent testified at the hearing and admits that no permit was obtained for D'Esposito's job. However, Respondent offered his opinion that the code did not require a permit and that his failure to obtain one was not a violation of the South Florida Building Code. Finally, Respondent offered that to the extent that there was a technical violation of the law, it was not a willful violation and that imposition of a fine would not be appropriate in this instance as his firm "tries to stay within the confines of the South Florida Building Code". Respondent acknowledged that he is the person responsible for ensuring that permits are obtained when required for completion of projects.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: Petitioner, Construction Industry Licensing Board, enter a Final Order imposing an administrative fine against Respondent in the amount of five hundred dollars ($500.00), the payment of which shall be made to Petitioner within a time frame deemed appropriate by Petitioner. Respondent's license as a certified air conditioning contractor be placed on probation for a period of thirty (30) days. RECOMMENDED this 28th day of January, 1988, in Tallahassee, Florida. JAMES E. BRADWELL 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 28th day of January, 1988. COPIES FURNISHED: G. Vincent Soto, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Michael B. Falls 4611 Southwest 30th Way Fort Lauderdale, Florida 33312 Fred Seely, Executive Director Department of Professional Regulation, Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neill, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether Petitioner's bid was properly rejected as being nonresponsive.
