The Issue The issue presented for decision herein is whether or not Respondent violated local law by engaging in the installation of a range hood without timely obtaining a permit; improperly supervised the project and exceeded the scope of work that he is licensed, in violation of subsections 489.129(1)(d)(m), and (j) 489.115; 489.117(2) and 489.119 and 489.105(4), Florida Statutes.
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, Department of Professional Regulation, Construction Industry Licensing Board, was, at all times material hereto, the state agency charged with regulating the construction industry in Florida. Respondent was, at all times material hereto, a certified air conditioning contractor, License Number CA-C018243, in Fort Lauderdale, Florida, and was the qualifying agent for Kitchen Ventilation Specialists (KVS or Respondent). Roberto Villanueva is the owner and president of R.V. Air Conditioning Incorporated (RV). RV had a permit to perform air conditioning work at the Cardoza Hotel in Miami Beach, Florida. During May, 1987, KVS obtained a contract to install a six foot stainless steel hood in the kitchen of the Cardoza. The job was scheduled for June 4, 1987. Respondent dispatched too employees to the Cardoza at 6:30 a.m. on June 4, 1987 to hang the hood per "Falios plans." Villanueva observed KVS' employees installing the rang- hood at the Cardoza and notified chief inspector Ed Stein that he had the permit for the air conditioning work at the Cardoza Hotel, that the employees of KVS were not working under his permit, and that they were installing the hood without a permit. Ed Stein approached the KVS employees and determined that they did not have a permit and did not hold a certificate of competency to make the installation. He issued a stop-work order and a notice of violation to KVS once he determined that they were employees of that entity. Stein asked the employees to gather their tools and leave the job site. The employees left the site at that time. He returned the following day and noticed that the hood had been completely installed in contravention of the stop-work order. R.V. Air Conditioning ran the ductwork and connected the ventilation system to the hood installed by EVS. While Respondent denied that his employees completed the installation of the hood in contravention of the work-order, such testimony is not credible in view of the fact that R.V.'s employees had no incentive to complete the installation for the hood when it was Villanueva who called the building department to advise that work was being done on the job-site which they had obtained a permit for and that KVS employees failed to obtain a permit. It is common knowledge, within the construction industry, that attaching the hood in the manner in which KVS employees did so was, in effect, installing a hood and not just "hanging" a hood. Respondent, on the other hand, contended that setting this hood on the Cardoza job-site was not installing a hood because he did not run the ductwork to the hood. However, on cross-examination, Respondent conceded that there was no difference between hanging or installing the hood. Respondent's contention that he was under the impression that he was working under the permit obtained by the general contractor, R.V. Air Conditioning, is unpersuasive and is not credited herein. This is especially so in view of the fact that when the stop-work order was issued to his employees, he phoned Ed Stein and explained that his employees were only delivering and setting the hood and that a permit was not required. Stein thereupon replied that he had to either obtain a permit or get a writing from the general contractor, R.V. Air Conditioning, explaining that he was working under that contract. Respondent failed to obtain such a writing and did not obtain a permit until July 7, 1987, at which time he completed an application for a permit to "hang" the hood. Respondent paid an administrative fine and a fee amounting to twice the usual amount for the permit. (Petitioner's Exhibit 1).
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Respondent's certified air conditioning contractor's license be placed on probation for a period of twelve (12) months. Petitioner imposed an administrative fine against Respondent in the amount of one thousand dollars ($1,000.00) payable to Petitioner within 30 days of the filing of its Final Order. DONE and ORDERED this 31st day of October, 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 31st day of October, 1988.
Findings Of Fact The Respondent, Mary Anne Shiell, is a licensed real estate salesman holding license No. 0044116. The Petitioner, the Department of Professional Regulation, Board of Real Estate, is an agency of the State of Florida, having jurisdiction over licensing and the regulation of licensure status of real estate salesmen. This dispute arose out of a business transaction involving the showing by the Respondent and others of a piece of residential real property to the complaining witnesses, William G. and Geraldine Fellows (son and mother). On March 6, 1979, the Respondent, Juanda Marsh and Skip Mark were employed as real estate salesmen by Mannix, Inc. On that day Juanda Marsh, while attempting to find residential property listings, became aware of a home owned by Paul E. Phipps and his wife which was for sale. After talking to the owners of the house, Mr. and Mrs. Phipps, Ms. Marsh went back to the Mannix realty office where she spoke to the Respondent and advised the Respondent of the Phippses' home being for sale. Ms. Marsh then met the complaining witnesses, the Fellowses, and took them to meet Mr. Phipps at the home in question. This was late in the afternoon of March 6, 1979, and the electricity had been turned off in the home. Mr. Phipps was then in the process of wallpapering and painting the dwelling, which he used as rental property. After leaving the home that evening, the complainants decided to offer the Phippses $37,000 for the property. The complainants and Ms. Marsh prepared the contract, which was executed that evening by the complainants. The sellers executed the contract the following day, and the transaction was closed March 15, 1979. The complainants did not take possession of the premises until sometime in April of 1979. On March 6, 1979, when the complainants first viewed the premises, the Respondent, Marsh, Mark, as well as Phipps, the seller, were present. The complainant addressed the group of people generally, asking what kind of condition the roof was in. All concerned looked toward Mr. Phipps; he nodded his head, assenting that the roof was in good condition. There was a general agreement that the house appeared to be in good condition. Neither the Respondent nor Ms. Marsh nor Skip Mark had any additional knowledge regarding the condition of the house other than that which they saw that day in the presence of the complainants. All were seeing it for the first time. The Respondent did not give any assurance to the complainants that the roof was in good condition; she relied, as did all present, on the assurance given by Mr. Phipps at the time. Immediately prior to the drafting of the contract on that evening, the complainants were advised by the Respondent that if an "as is" clause were placed in the contract it might induce the seller to accept the lower offer which the complainants had in mind, and the complainants agreed. Accordingly, Ms. Marsh inserted in the contract the "as is" clause on the face of the contract, meaning that the purchasers, the Fellowses, would buy the property in the condition it was in at the time for the price they were offering and which, ultimately, the owner accepted. Prior to the closing of the transaction, the Fellowses called the Respondent by telephone to ascertain that all checks had been made pursuant to the Buyer Protection Plan and the Respondent advised that she thought everything was in good working condition, but she would attempt to inspect the premises to ascertain for sure if all equipment and appliances were working. The Respondent attempted to make an inspection of the premises a day or two before closing and there was no electricity or water turned on so that the various appliances could not be tested. She informed the complainants of this, but they said they could not afford to have the utilities turned on. The Respondent then called Mr. Phipps and explained the situation to him. She asked if he was in a position to tell the complainants what condition everything was in and he told her that so far as he knew the only thing in the house that might not function properly was the dishwasher. Mr. Phipps told the Respondent that the air conditioner functioned properly and indeed the vents were in the walls or ceiling and appeared to be in order. The Respondent looked in the oven door of the range in the kitchen and the oven element appeared to be in good condition, although it was impossible to test it because the utilities were not on. The Respondent removed the kitchen range elements and visually inspected them. Again, no electricity was available to test them after this fact had been disclosed to the complainants. Upon taking possession of the property in April, 1979, the complainants discovered certain defects consisting of: a leaky roof; duct work missing from the air conditioning system; the oven was inoperable; the range had several inoperative elements; the plumbing in the toilets leaked; the hot water heater was inoperable; and the disposal was not connected. Witness Ralph Porch inspected the air conditioning system and found that no duct work existed in the hall ceiling to connect the air conditioning system to the mechanical unit. He did not try to turn on the air conditioner. He did recall seeing the air supply grills and stated that the only way one could find out that there were no ducts in place was to climb up in the attic and look; that it was not a defect observable from the normal living areas of the house. The Respondent, in addition to inspecting the kitchen appliances, inspected but saw no evidence of a mineral deposit or other symptoms of leaks around the toilets. Mr. Phipps had represented that the hot water heater was not very old and so the Respondent had no reason to believe that the hot water heater was inoperable. She looked beneath the sink to examine the garbage disposal and did not notice any pipes or electrical wiring absent. The complainants maintained that the Respondent represented to them that the electricity had been turned on for one day and that all the appliances had been checked out and were in working order. The Hearing Officer finds this testimony not credible inasmuch as the Respondent testified that she had never made such a representation, but rather had visually inspected them to the best of her ability with no electricity available to actually test the functioning of the appliances, which testimony was corroborated by the testimony of Bernice Shackleford from the Orlando Utilities Commission, who established that the electricity was turned off March 5, 1979, the day before the property was first shown to the Fellowses and to the Respondent. Ms. Shackleford also testified that the utilities were inactive continuously until April 20, 1979, long after the closing and long after the alleged inspection of the appliances took place. The undersigned thus finds that the Respondent never represented to the Fellowses that the electricity had been turned on for a day, nor that she had thus tested the appliances and found them all in working order. The Respondent did not make any statement to the effect that the roof did or did not leak. A reasonable inspection of the residence would not disclose that the air conditioning vents or air supply grills were not connected by ducts to the mechanical portion of the air conditioning system. Subsequent to their taking possession of the house and initially complaining to the Respondent and Mannix, Inc., concerning the defects in the dwelling, the complainants filed a civil action regarding their complaints. The complainants sued the Phippses, who were the sellers; Juanda Marsh; Mannix, Inc.; the Respondent; and Electronic Realty Associates, Inc. Although the complainants denied settlement of the case, in their testimony in the instant proceeding, the civil litigation was in fact dismissed by their attorney (see Notice of Voluntary Dismissal; Respondent's Exhibit A). In that civil action, only Juanda Marsh and Skip Mark were alleged to have made false representations to the complainants. In summary, the Respondent was not shown to have had any knowledge regarding the condition of the premises which she failed to reveal to the complainants and sometime after the controversy arose, the Respondent offered, on behalf of Mannix, Inc., to purchase the property back from the complainants for what they had paid for it, but this offer was rejected.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of counsel, it is, therefore, RECOMMENDED that the Administrative Complaint filed herein against Mary Anne Shiell be dismissed. DONE AND ENTERED this 29th day of July, 1982, at Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 FILED with the Clerk of the Division of Administrative Hearings this 29th day of July, 1982. COPIES FURNISHED: Joseph Doherty, Esquire 3220 Chelsea Street Orlando, Florida 32803 Charles N. Prather, Esquire 17 South Lake Avenue, Suite 103 Orlando, Florida 32801 Frederick H. Wilsen, Esquire Department of Professional Regulation 400 West Robinson Street Orlando, Florida 32801 C. B. Stafford, Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
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 following findings of fact are based upon the evidence presented, Respondent's admissions and matters deemed admitted due to Respondent's failure to timely respond to Petitioner's Second Request for Admissions: At all times material hereto, Respondent was licensed by the Construction Industry Licensing Board as a registered air conditioning contractor with license number RA-0035721. He was the qualifying agent for Wallace's Air Conditioning and Heating. Respondent's address of record is 4710 Cypress Ridge Place, Tampa, Florida 33624, and it was to this address that notice of the hearing was sent. At no time prior to the hearing did Respondent contact counsel for Petitioner or the undersigned regarding any problem he had with the date scheduled for this hearing. Respondent did not appear, and was not represented at the hearing which commenced at 9:00 a.m. on May 11, 1988. However, at 1:56 p.m. on the day of hearing, a letter from Respondent addressed to Petitioner's counsel was filed at the Division of Administrative Hearings in Tallahassee, Florida. This letter was postmarked on May 9, 1988 and requests rescheduling of the hearing due to his being out of town on "urgent business." By Order entered on May 13, 1988, Respondent's untimely and insufficient motion for continuance was denied for failure to comply with Rule 22I-6.017, Florida Administrative Code, and this case has proceeded to the issuance of this Recommended Order in accordance with the procedures established at hearing. On or about March 18, 1986, Respondent, as qualifying agent for Wallace's Air Conditioning and Heating, entered into a contract with General Engineering and Machine Company for the installation of heating, ventilation and cooling services (HVAC) at the Sebring Square Plaza shopping mall in Sebring, Florida. The work to be performed included the installation of heating, ventilation, air conditioning and temperature control systems for stores in the mall, which included Zayre's Department Store and thirty "strip stores." The contract price for this work was $275,460. Respondent thereafter began work on the mall under this contract. However, he has never held any certificate of competency, occupational license, or registration in the City of Sebring, as required by local ordinance sections 5-18 and 5-19. On or about May, 1986 Respondent entered into a subcontract agreement with Long's Air Conditioning and Heating for sheetmetal duct work, venting of exhaust fans and installation of flex duct and grilles at the Sebring Square Plaza. The original amount of Respondent's contract with Long's Air Conditioning was $69,200, but this was increased by agreement to $72,200. On or about June 19, 1986, work on the thirty "strip stores" was deleted from this subcontract agreement, and the contract price was then reduced by $3,760, making a final contract price of $68,440. Respondent received draw requests totaling $68,440 from Long's Air Conditioning for work performed under this subcontract. Although all contracted work was performed by Long's Air Conditioning, Respondent has only made payments totaling $66,500, leaving an unpaid amount of $1,940. In connection with his work on the Sebring Square Plaza, Respondent purchased equipment and supplies from Florida Air Conditioners, Inc., in the total amount of $122,019.80, but made no payments on this account. On October 6, 1986, Respondent's account with Florida Air Conditioners was paid in full by Highway 27 Associates, the owners of the Sebring Square Plaza, who in turn charged this amount to the general contractor, General Engineering and Machine Company, by reducing the amount they paid to said general contractor on the Sebring Square Plaza. Charles R. Baldwin was the general administrator on this shopping mall job for the general contractor, General Engineering and Machine Company. In accordance with his subcontract agreement with Respondent, if Respondent did not pay his materialmen, the general contractor was responsible, and, in fact, in this case the general contractor was charged for payments made by the mall owner on Respondent's account at Florida Air Conditioners. Respondent failed to regularly attend weekly job site status meetings with Baldwin. When schedules were established, Respondent voiced no objection, but he then frequently failed to complete work in accordance with those schedules. Respondent made little effort to complete his work on time, or to make up for delays. He failed to supervise the work he was performing at the Sebring Square Plaza. On or about June 24, 1986 Respondent walked off the job without completing the work which he had contracted to perform, and this caused further delay in the mall's completion since Baldwin had to find another contractor to complete Respondent's job. Baldwin paid Respondent $174,467.70 on June 18, 1986 in connection with this job after Respondent signed an affidavit certifying that he had paid all his materialmen and subcontractors. The record establishes that said affidavit was false. With the amount Baldwin was charged for Respondent's unpaid account with Florida Air Conditioners, and the amount paid on June 18, 1986, General Engineering and Machine Company paid or was charged approximately $296,000 for work performed by Respondent, although their contract with Respondent was only $275,460. According to Bernard Verse, who was accepted as an expert in commercial construction, Respondent's failure to pay for supplies and equipment, and his failure to complete his contract with General Engineering and Machine Company constitute misconduct in contracting. In addition, Respondent failed to properly supervise the work he was performing, and for which he contracted, on this job.
Recommendation Based upon the foregoing, it is recommended that the Construction Industry Licensing Board enter a Final Order suspending Respondent's license number RA- 0035721 for one (1) year and imposing an administrative fine of $5,000; provided that after the expiration of thirty (30) days from the issuance of the Final Order if Respondent pays said administrative fine in full, his license shall be immediately reinstated. DONE AND ENTERED this 23rd day of May, 1988, in Tallahassee, Florida. DONALD D. CONN 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 23rd day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5050 Rulings on Petitioner's Proposed Findings of Fact: 1 Adopted in Finding of Fact 1. 2-3 Adopted in Finding of Fact 3. 4 Adopted in Finding of Fact 4. 5 Adopted in Finding of Fact 9 6 Adopted in Finding of Fact 5. 7 Adopted in Finding of Fact 7. 8 Adopted in Findings of Fact 7, 8. 9-10 Adopted in Finding of Fact 6. Adopted in Finding of Fact 10. Adopted in Finding of Fact 6. Rejected as irrelevant and not based on competent substantial evidence. Adopted in Finding of Fact 7. Rejected as irrelevant. COPIES FURNISHED: David L. Swanson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Frank W. Wallace 4710 Cypress Ridge Place Tampa, Florida 33624 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
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 =================================================================
Findings Of Fact Chanticleer Apartments contain 38 units and have been issued license number 23-2425H by the Division of Hotels and Restaurants. An inspector from Petitioner's Miami office, in response to complaints from tenants, inspected the Chanticleer Apartments on July 14, 1978, immediately following a heavy rainfall. It was noted that the air conditioner over the door of apartment No. 27 was dripping onto the sidewalk below. It was also noted that refrigerators in apartments No. 3 and No. 28 were dripping. When queried from whence the drip was coming, the inspector did not know or remember. Nor did he know if the refrigerator was dripping because it needed defrosting. Outside steps had recently been painted with enamel paint which was slippery when wet. Following the heavy rain that had recently fallen, there were puddles on the sidewalk in one or two places and a puddle on the paved area between the parking lot and the apartments. Testifying on behalf of Respondent, the manager of the apartments stated that a defective refrigerator in apartment No. 3 had been replaced when she was advised it was bad but that older refrigerators were not frost free and unless the tenants defrosted them, ice formed around the coils would melt and drip. Between the time of the inspection and this hearing, the error perpetrated by the enamel paint on the steps had been corrected with a non-skid paint applied to the steps. With respect to the puddling of water, this witness stated an additional baffle had been installed on the roof to divert water away from the paved areas. She also stated that a project had been underway for some time to replace all drains on wall-mounted air conditioners and this project was continuing.
The Issue The issue presented herein is whether or not Respondent violated the Construction Industry Licensing Law as alleged in the Administrative Complaint filed herein on June 27, 1987, to wit: proceeding to work without obtaining a timely permit, violating local law either deliberately or through improper supervision, gross negligence and/or incompetence in connection with said job or through his failure to supervise, inspect, improper electrical wiring, poor duct design, damage to a customer's ceiling, failure to supply warranty papers and inadequate cooling.
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: Respondent, Frank W. Hudgens, at all times relevant hereto was licensed as a certified air conditioning contractor having been issued license number CA C032442. During times material, Respondent was the sole qualifier for Tampa Bay Cooling, Inc. On June 15, 1987, Respondent, through Tampa Bay Cooling, entered into a contract with Mr. and Mrs. Jack Davis to install a two and one-half ton York heat pump with a horizontal air handler and five kilowatt auxiliary heat strip with the required thermostatic controls and fiberglass and flex ducts, including registers, grills, refrigerant lines and PVC drain lines to the Davis residence for the sum of $3,214.00. (Petitioner's Exhibit 2.). Respondent installed the equipment as contracted. Respondent subcontracted with a licensed electrician for the installation of the required electrical work on the project. Respondent commenced performance of the installation prior to the time that he obtained a permit as required by local ordinance. However, Respondent applied for a permit at about the same time that the work started, in St. Petersburg, Florida, whereas the Davis' reside in the City of Pinellas Park, and it was therefore necessary for him to obtain a permit from Pinellas Park. Respondent in fact obtained a permit from the City of Pinellas Park later in the day that he commenced work at the Davis residence. When the Davis' contracted with Respondent for the installation of the central air conditioning system in their home, a major concern was that they be able to keep their "computer room" sufficiently cooled to avoid damage to the computers. Following the installation of the system by Respondent, Mrs. Davis complained to Respondent on several occasions concerning the fact that the "computer room" was not sufficiently cool. During Respondent's installation of the system at the Davis', a stop- work order was placed on the job based on Respondent's failure to have the required electrical permit and an employee was observed unwinding electrical wire that would be used to make the electrical connections for the system. Respondent was paid $1,607.00 by the Davis' on June 15, 1987, at the commencement of the installation of the system with the balance due upon completion. The Davis' had refused to pay Respondent the remaining balance for the system. Based on the Davis' refusal to tender Respondent the remaining one half, i.e., $1,607.00 for payment of the system, Respondent has refused to provide them the extended warranty papers for the system. Following Respondent's completion of the installation of the system, the Davis' contacted Donald W. Branch, a factory trained technician employed by Gorman Air Conditioning, the supplier of the system at the Davis' residence and complained about the fact that the system was not keeping the computer room as cool as the Davis' desired. Branch, who was tendered and received as an expert in air conditioning, made a survey of the Davis residence and issued a field report regarding the system. Branch found the system installed by Respondent to be producing within the factory specifications and found that the system was operating satisfactorily and in conformance with factory specifications. Branch found that there was a need for a return air grill to be added to the "computer room" area, such that, when the door was closed in that area, there would still be correct air flow. For appearance sake, Branch determined that the outdoor unit needed leveling and that the drainline from the indoor unit to the outdoors needed to be insulated, possibly, if attic temperatures are too extreme which would prevent condensate from the drainline from dripping and wetting the ceiling. While Branch questioned the appearance of Respondent's insulation of the system, he found it to be operating efficiently and in conformance to specifications. Respondent dispatched a plasterer to the Davis' residence to repair a damaged ceiling inadvertently caused by one of its employees. York Air Conditioning, the supplier of the system, replaced the compressor in the heat pump with a new one in an attempt to appease Mrs. Davis, although this was not done based on any finding by either Branch or Respondent that the compressor which was not the original compressor, was not performing according to factory specifications. Respondent, based upon the suggestion of Don Branch, installed an additional return in the computer room in an attempt to alleviate Mrs. Davis' discomfort in the computer room and was sufficient to satisfactorily cool the computer room. A two and one-half ton air conditioning unit is sufficient to cool a home the size of the Davis residence, which is approximately 1,100 square feet in size, provided the system was correctly designed. Respondent, with the exception of having to reroute a return line from one of the other rooms, properly designed the system in the Davis residence, and additional tonnage was not required to adequately cool their home.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a final order imposing an administrative fine against Respondent in the amount of five hundred ($500) payable to Petitioner within thirty (30) days of the entry of its final order. Petitioner enter a final order issuing a written reprimand to Respondent based on his failure to timely obtain a permit prior to commencement of a work project where a permit is required. DONE and ENTERED this 31st day of March, 1989, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 3rd day of April, 1989. COPIES FURNISHED: David Bryant, Esquire 1107 E. Jackson Suite 104 Tampa, Florida 33602 Larry L. Dillahunty, Esquire 780-94th Avenue North Suite 108 St. Petersburg, Florida 33702 Fred Seely, Executive Director Construction Industry Licensing Board 111 East Coastline Drive Jacksonville, Florida 32202 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue is whether Respondent should deny Petitioner the right to take the state air conditioning contractor examination for lack of good moral character.
Findings Of Fact The National Assessment Institute ("NAI") provides examinations to the State Construction Industry Licensing Board, including the examination given for certification as a state air conditioning contractor. Petitioner has unsuccessfully taken the state air conditioning contractor examination approximately four times in the past. Petitioner has reviewed previous examinations and is familiar with procedures imposed pursuant to Section 455.229(2), Florida Statutes. No part of the examination may be copied, including any part of the questions or answers. Loose-leaf student manuals purchased from NAI may be taken into a review and retained by the student after the review is completed. Scratch paper provided by NAI officials during a review must be turned in at the conclusion of the review. On April 23, 1993, Petitioner reviewed a recent state air conditioning contractor examination. Petitioner reviewed the examination at a branch office of the NAI. Prior to April 23, 1993, Petitioner purchased a student manual. Petitioner placed one piece of carbon paper over one piece of blank paper and inserted the carbon set between two pages of the student manual. Petitioner taped closed the two pages of the student manual and tabbed the taped pages of the student manual ("altered pages"). Petitioner inserted three more carbon sets inside the student manual in identical fashion, producing a total of four altered pages. During the examination review on April 23, 1993, Petitioner placed a blank sheet of scratch paper on top of the first altered page of the student manual. Petitioner wrote the answers to the first part of the examination on the scratch paper. The answers were copied on the carbon set underneath the scratch paper. In a similar manner, Petitioner copied answers to each of the remaining three parts of the examination on the carbon sets inside each of the remaining altered pages in the student manual. Petitioner used a numeric code of "1-4" to represent answers "a-d" on each part of the examination. Petitioner used arithmetic symbols and other lines to disguise his effort by making it appear he was writing down mathematical formulas. However, the sequence of numbers "1-4" correspond to the correct answers "a-d" for each part of the examination reviewed. Petitioner copied 200 examination answers. During his testimony at the formal hearing, Petitioner explained: I did do something wrong. Transcript at 47. What I was trying to do was take down all the different letters. . . . I wanted to see if there was some kind of sequence where there were more A's, B's, more C's or more D's used. Transcript at 49. I was desperate. My whole life is air conditioning and refrigeration. * * * I've been trying to pass that test for at least the last two years, maybe more. . . . I believe it's been at least four times, maybe more. Transcript at 47. NAI representatives monitoring the examination review telephoned local police, and Petitioner was arrested pursuant to Section 455.2175, Florida Statutes. The materials used by Petitioner to copy examination answers were confiscated by police. Criminal charges were dismissed without conviction. Each examination question costs the state approximately $200. The 200 questions corresponding to the 200 answers copied by Petitioner will no longer be used by the state. Petitioner testified that he has dyslexia and attention deficit disorder. However, Petitioner has never requested additional time for an examination, never notified Respondent of Petitioner's disability, and never requested Respondent to provide special examination facilities or procedures.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order denying Petitioner's request to take the state air conditioning contractor examination for the reasons stated herein. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of October, 1994. DANIEL MANRY 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 26th day of October, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1766 Petitioner's Proposed Findings of Fact Accepted in substance Rejected as conclusion of law 3.-8. Accepted in substance 9.-12. Rejected as irrelevant and immaterial 13. Accepted in substance 14.-15. Rejected as irrelevant and immaterial 16. Rejected as not supported by credible and persuasive evidence 17.-18. Rejected as irrelevant and immaterial Rejected as not supported by credible and persuasive evidence Rejected as irrelevant and immaterial and as recited testimony Rejected as not supported by credible and persuasive evidence Respondent's Proposed Findings of Fact 1.-8. Accepted in substance Rejected as irrelevant and immaterial Rejected as not supported by credible and persuasive evidence 11.-13. Accepted in substance COPIES FURNISHED: Richard Hickok Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Jack McRay Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 James W. Kline, Esquire P.O. Drawer 30 180 South Knowles Avenue Winter Park, Florida 32790-0030 Clark R. Jennings, Esquire Assistant Attorney General Deptartment of Legal Affairs Administrative Law Section Suite PL-01, The Capitol Building Tallahassee, FL 32399-1050
