The Issue The issue is whether the Petitioner's imposition of an administrative fine of $300 upon the Respondent should be upheld.
Findings Of Fact Riverview Rest Home is an adult congregate living facility which is subject to licensing by the Petitioner. This facility was so licensed on the dates in question, and remains licensed to the present time. On July 23, 1980, members of the professional staff of the Petitioner inspected the Respondent. Based upon this inspection the Respondent was issued a list of violations and deficiencies. In addition to those which were subsequently corrected, the violations in issue are: (1) screens in the kitchen area in need of repair, (2) a toilet which could not be flushed, and was full of human waste, (3) dust and dirt accumulated in the bed frames, and window sills cluttered with dust, lint, cigarette butts, paper and cobwebs, and (4) dirt on the floor under beds. A reinspection of Riverview Rest Home was conducted on August 15, 1980, which revealed the following: A toilet accommodating 4 residents was semi-full of toilet paper, human urine and feces, and emitting a strong odor. Two residents were sitting or lying in rooms in close proximity to this toilet. An attempt to flush this toilet disclosed the tank to be empty and the water to have been cut off. When the water was turned on, the toilet began to leak in a large stream. The toilet seat was loose, broken, and not attached to the base. Heavy accumulations of lint, dust and dirt on bed frames, and window sills cluttered with dust, lint, cigarette butts, bits of paper and cobwebs. The outside screen door adjacent to the kitchen area was torn and in need of repair. Dirty and stained mattresses in resident rooms, dirty, urine stained, and soiled sheets on resident beds. Bathroom fixtures were dirty, stained, in need of cleaning, and the floor around toilets was dirty and wet. The table in the cottage where residents eat was dirty, and showed the residue of a previous meal or meals. Other violations or deficiencies were observed during reinspection, but the above are repeat occurrences of those first noticed on July 23, 1980. In addition, a fire marshall of the City of Holly Hills conducted a fire safety inspection of the Respondent facility on August 4, 1980, and found 5 violations of the City Fire Code. A reinspection was done on August 13, 1980, to verify corrections, and the gas hot water heater which had been found improperly vented, had not been corrected. A second reinspection on August 21, 1980, found the gas hot water heater then properly vented, but the emergency lighting system was not working. The Respondent, while not admitting the violations and deficiencies described above, presented no evidence to controvert the testimony of the Petitioners witnesses relative to the results of inspections of the Respondent facility. Essentially, the Respondents position is that all of the alleged deficiencies are first-time violations not subject to fine or penalty. However, there is adequate evidence in the record to support a finding that the violations for which a penalty was assessed were recurring deficiencies not corrected after the Respondent had been advised of their existence.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Petitioner's imposition of an administrative fine in the amount of $300 be upheld. THIS RECOMMENDED ORDER entered on this 12th day of January, 1981. WILLIAM B. THOMAS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1981. COPIES FURNISHED: Leo J. Stellwagaen, Esq. Assistant District IV Counsel P.O. Box 2417 F Jacksonville, Florida 32231 Leo Siroky Riverview Rest Home 700 Daytona Avenue Holly Hill, Florida 32017
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 By his answers to Petitioner's Request for Admissions, Respondent indicates, and it is so found, that he is currently licensed by the Florida Construction Industry Licensing Board under license CA C010372 as a certified air conditioning contractor; that his license was in effect at all times material to the allegations involved in this hearing; and that his license was in effect as of the date of the hearing. The Construction Industry Licensing Board, (Board), is the state agency responsible for licensing construction trades professionals in this state. Sometime prior to August 18, 1987, Respondent's firm contracted with Ralph Worthington to replace the air conditioning system at Mr. Worthington's home in Pinellas County, Florida. The contract price was $3,075.00. The work was completed. On August 19, 1987, Dale J. Parker, a mechanical inspector for the City of St. Petersburg, which utilizes the Standard Mechanical Code as a guideline for construction in the city, inspected the unit in question installed by Respondent's concern, Residential Air Conditioning. A permit to complete the work had been issued on June 25, 1987 for the work. No explanation was given for why the inspection was not done until approximately two months after the permit was issued, but that delay is not relevant to the issues here. During his inspection, Mr. Parker found that the provisions of Sections 303.2 and 303.3 of the Standard Mechanical Code had not been followed by the Respondent's firm in that no light was available in front of the unit, no electrical disconnect was furnished for the unit, and there was no clear access to the unit. Access is required to be through an unencumbered space no less than 22 by 36 inches. When he went up into the attic to examine the unit, he found the area to be tight and dark. At the time, he was unable to see any defects other than those he listed, but his general opinion of the installation was that it was "not a good job" and was somewhat "sloppy". As a result of the defects he saw, he rejected the work and "red tagged" it. Issuance of a red tag requires correction of the defect and reinspection of the work. Evidence indicates that the required light had not been there prior to Respondent's installation and the access to the unit, which required stepping over an air duct, was the same as it had been before the installation of the new unit. The Code requirement to correct these defects existed when the house was built. It is clear the initial installation, not done by Respondent, was also deficient. Respondent admits that when he installed the new unit, he assumed the responsibility for correcting the existing deficiencies and bringing the installation up to Code requirements. However, Mr. Worthington, the homeowner, would not allow Respondent's personnel back into his residence to correct the problems. This does not excuse the improper installation but would have resulted in a waiver of the reinspection fee. On October 1, 1987, William Rinehart, owner of Johnson's Air Conditioning, who had been contacted by Mr. Worthington, sent his technician, Mr. Aleshire out to the property to make the repairs. Mr. Aleshire discovered a lot of water in the insulation in the attic in the area around the air conditioning unit. He also noticed that duct work had come loose from the unit, that the unit was tilted, and that both the primary and secondary drain pipes were clogged with sand at the outside outlet. When he moved the insulation, he found the attic floor had rotted as a result of water condensation which had spilled out of the drain pans surrounding the unit onto the floor. As a result, the attic floor fell through into the room below. Mr. Aleshire found that the air handling unit was improperly tilted. So was the primary drain pan which was improperly tilted away from the drain. Since the drain was clogged, when the condensation collected in the pan, instead of draining out, it ran over the opposite side of the pan into the secondary pan from which it could not drain because that plug was clogged as well. As a result, the condensation water ran over out onto the attic floor. Aleshire also noticed that some of the wiring had to be replaced because of a lack of sealing and failure to use Romex connectors, both of which are required by the Code. In his opinion, however, except for the electrical problems and the tilted air handling unit and drain pans, the installation was up to Code. Had it not been for the clogged drains, the unit would probably have worked satisfactorily for a long period without problems. There is no evidence to connect the clogged outside drains with the Respondent. He is, however, responsible for the other defects noted. Both Aleshire and Rinehart consider the tilted installation of the air handling unit improper. Mr. Rinehart would have used adjustable bolts to affix the unit and a carpenter's level to insure the drainage was proper. The failure to level the unit is negligence and the failure to utilize proper sealant and Romex connectors constituted misconduct since both are required by the Code. Respondent does not deny either of these defects. He contends his firm did what it agreed to do. When Mr. Worthington complained, he initially responded and attempted to correct the problems but was unable to do so to Mr. Worthington's satisfaction. The problems were not corrected by Respondent. Nonetheless, Respondent contends his firm tried to do a proper job and feels Worthington overreacted, frequently complaining when a workman was only a few minutes late for a scheduled appointment. Respondent was not personally aware of the details of the installation in question, did not do any of the work himself; nor did he inspect the job when it was completed. When this work was being done, Respondent, who is in partnership with Mr. Neidrich was in Tampa opening another office for the firm. He first found out about it after a complaint was filed and, in an effort to work out their differences, attempted to contact Worthington up until the time the Department of Professional Regulation got into the picture. Respondent, who qualified the company under his license, is an engineer and his primary function with the company is to design complicated systems. He visits jobs of "difficult installation" but acts merely as a consultant on the company's routine business. He performs quality checks from time to time on routine as well as major jobs to insure the work is being done properly. Though he testified he does this on a weekly basis, he admitted his last inspection was four weeks before the hearing. The correction of the defects identified herein was subsequently accomplished by another contractor hired by Mr. Worthington at additional cost. He also paid $422.80 to replace floor covering damaged as a result of the tilted air conditioning unit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Neal A. O'Connor be reprimanded and pay an administrative fine of $500.00. RECOMMENDED this 25th day of May, 1989 at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 25th day of May, 1989. COPIES FURNISHED: Elizabeth A. Alsobrook, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Neal A, O'Connor 1925 Hastings Drive Clearwater, Florida 34623 Kenneth A. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, vs CASE NO.: 89308 DOAH CASE NO.: 89-0186 NEAL A. O'CONNOR, LICENSE NO.: CA C010372, Respondent. /
Findings Of Fact W. C. Montgomery, trading as Montgomery's, Respondent, holds restaurant license control No. 20-00228B (Exhibit 4) On Friday, 25 July 1900, while Montgomery was attending a Gideon convention in Detroit, Michigan, the restaurant was inspected and numerous discrepancies found (Exhibit 1) . Mrs. Montgomery was present at the time and advised the inspector that her husband was out of town and would return the following Tuesday. A follow-up inspection was conducted on Monday morning 28 July by the same inspector from the Clay County Health Department. This inspection report (Exhibit 2) formed the basis for the Notice to Show Cause date 31 July 1980 issued by the Director, Division of Hotels and Restaurants in Tallahassee. Respondent was earlier issued a Notice to Show Cause regarding similar deficiencies in this restaurant. In December 1979 Montgomery entered into a contract to sell this business to another. Following the January 1980 inspection or the February 11, 1980 inspection (Exhibit 7) , charges similar to the present charges were preferred against Montgomery's. On the Call Back/Re- inspection Report dated 2/26/80 (Exhibit 7) a notation appears: "Discontinue proceedings of Notice to Show Cause. Change of ownership." Thereafter, the contract to sell was not consummated because the purchaser couldn't get financing. On March 7, 1980 the restaurant was again inspected and, to his apparent surprise, the inspector found Montgomery still the owner. A long list of discrepancies appeared on the inspection report (Exhibit 7) and the Health Department closed down the restaurant. Following a Call Back/Re-inspection Report (Exhibit 7) dated 3/14/80 a notation appears on the report: "Reinstate license this date." On Inspection Reports dated 3/31/80, 4/25/80 and 6/20/80 (Exhibit 7) only minor deficiencies were noted. During this period the automatic dishwasher was inoperable and had net been replaced and Respondent had only a three compartment sink in which to wash dishes. No separate sink in which to wash pots and pans was provided. The final Inspection Report admitted into evidence is dated 8/12/80 (Exhibit 3) . On this Inspection Report the dishwashing discrepancy again appears, as does the greasy hood ventilation filters. Also included is a requirement to provide rounded corners at baseboards in walk-in Freezer to facilitate cleaning, all of which appeared on the January 25 and 28 inspections which furnish the grounds upon which disciplinary action is here proposed. One of the discrepancies noted is failure of the commercial refrigerator to have a drain hole through the bottom shelf through which condensation can drain. Respondent's evidence was that this commercial refrigerator was not designed with such a drain hole, gratings were installed on this bottom shelf and no food container ever sat in water although water did sometimes settle on the bottom of this refrigerator. With respect to the deficiency involving vermin, Respondent's evidence that he has engaged the services of a pest control company on a continuing contract basis since opening was not disputed. Respondent has now installed a two-compartment sink in addition to the three-compartment silk and has ordered a dishwasher. Once this dishwasher (or the two-compartment sink) is installed, this longtime discrepancy will be corrected. Respondent owns and operates two other restaurants near Jacksonville which apparently are satisfactory from a sanitation standpoint. Accordingly, it clearly appears that Respondent is cognizant of various various requirements and that failure to comply with these rules can result in disciplinary action against the restaurant's license. Restaurants in Clay County, or at least those coming under the jurisdiction of the inspector here involved, are inspected monthly rather than quarterly as required by statute. Respondent's witness testified that the hood ventilation filters were washed in warm, soapy water twice weekly, yet on most of the inspection reports these filters were reported to be full of grease. Respondent's witness also testified that all defects noted had now been corrected, including the rounded corners in the walk-in freezer floors.
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
Findings Of Fact Based on the evidence received at the final hearing, the following findings of fact are made. At all times material to this case, the Respondent, Steven Ary, was a licensed air conditioning contractor in the State of Florida, holding license number CA CO36888. On October 20, 1987, a company named Jenni Temp Refrigeration Company, Inc., entered into a contract with Lauderhill Mall, Lauderhill, Florida, to install three 3 1/2 ton air conditioning units for the sum of $7,875. Jenni Temp was to provide the three separate permits required by the City of Lauderhill, Florida, for the installation. Joseph Roturra, the owner of Jenni Temp Refrigeration Company, Inc., and Respondent had, prior to October 20, 1987, entered into negotiations whereby Respondent would become employed by Jenni Temp as its qualifying agent so that Jenni Temp could engage in air conditioning contracting. Those negotiations ended before any formal efforts were made to have Jenni Temp licensed with Respondent as the qualifying agent. In late 1987, before his negotiations with Jenni Temp broke down, Respondent signed three blank application forms for electrical and air conditioning permits. Respondent then gave the three signed application forms to Joseph Roturra. Respondent knew that neither Joseph Roturra nor his company was licensed for air conditioning work. Joseph Roturra completed the signed blank application forms he received from Respondent and made application with the City of Lauderhill, Florida, for the three permits required for the job at Lauderhill Mall. The name of the applicant on the applications as completed by Joseph Roturra was All Star Service, Inc. Respondent served as the qualifying agent for All Star Service, Inc. The City of Lauderhill did not issue the permits for which Roturra applied using the forms signed by Respondent because permits had been previously issued to another company for the same job. Jenni Temp completed the Lauderhill Mall job without the permits required by local law and without further assistance from Respondent. Respondent did not supervise the job at Lauderhill Mall. There was no final inspection of the work as required by local law.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding Respondent guilty of having violated Sections 489.129(1)(e) and (m), Florida Statutes and which imposes an administrative fine on Respondent in the amount of $500 for the violation of Section 489.129(1)(e), Florida Statutes. It is further recommended that there not be a separate fine for the violation of Section 489.129(1) (m), Florida Statutes, because the conduct that establishes that violation is the same conduct which constitutes the violation for which the administrative fine is recommended. DONE and ENTERED this 22nd day of May, 1989, in Tallahassee, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 1989. APPENDIX The findings of fact contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, l0, 13, 14, 15, 19 and 20 of Petitioner's proposed findings of fact are adopted in substance, insofar as material. The findings of fact contained in paragraphs 11, 12, 16, 17 and 18 of Petitioner's proposed findings of fact are immaterial. COPIES FURNISHED: Kenneth E Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0729 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0729 Steven Ary 1217 N. E 4th Street Pompano Beach, Florida 33306
Findings Of Fact Respondent Tom E. Connelly, operates a restaurant at 3620 South Atlantic Avenue, Daytona Beach, Florida. That restaurant is known as Sally's Donut Shop. Respondent holds a license issued by the State of Florida, Department of Business Regulation, Division of Hotels and Restaurants, license number 74-16O5R. That license on its face indicates that the license is for food service with a seating capacity of eight and a class of service known as ZK. In addition, Respondent holds an occupational license issued by Volusia County, Florida, which indicates that the establishment is a restaurant with zero to thirty seats. Connelly has also been issued a license by the City of Daytona Beach Shores, Florida. In that license the business is described as a coffee shop. It is indicated that the establishment has eight seats. Finally, Respondent has been issued a permit from the Volusia County Health Department to operate the food service establishment in question. Respondent is the most recent proprietor in a series of individuals who have utilized the licensed premises for purposes of operating a restaurant. Quentin Freeman opened the licensed premises in May of 1973 and operated until January 1, 1974. At the time of his ownership the business was primarily involved with serving customers coffee and donuts. The premises had one restroom available for customers and access to that restroom was through the food preparation area. The hand washing facilities for employees of the establishment were found in the bathroom. There was no duplication of hand washing facilities for the benefit of employees in the food preparation area. Mr. Freeman held the necessary permits to operate the restaurant. Tables and chairs were available to the patrons of the restaurant and they were located within the premises proper. There were two tables and four chairs. The patrons used those tables and chairs when consuming the food served at the licensed premises. Those tables and chairs assisted Freeman in his enterprise, in that they were deemed to be of value to his business operation. Freeman also served sandwiches. The sandwiches which were served were not cooked on the licensed premises. An additional feature of the business was a takeout service where patrons would purchase their food and leave the premises before consuming the food purchased. A stove or range which is now present in the licensed premises was not there during Freeman's ownership. A donut machine with hood was located in the premises at the time of Freeman's ownership and at present. At present there are more tables and chairs in the restaurant than was the case when Freeman was the proprietor. There are now four tables in the licensed premises. Freeman was never cited with any form of violation related to licenses issued by the state, county or municipality, pertaining to the operation of his food establishment. Freeman sold the business to Dorothy and Adolf Becker. He has continued to frequent the licensed premises and has observed that tables and chairs have remained in that business premises from the time of his ownership to the present. The business has not significantly changed in that period, in the way of any reconstruction. Alterations that have been made in the licensed premises since the time of the Freeman ownership pertain to the change in location of a counter, the removal of a wall, the addition of tables and chairs, and the inclusion of the range or stove in the food preparation area. Freeman also had an ice cream machine in the licensed premises which has been removed. The Beckers operated the food service establishment from January 1974 through August, 1979. At the time of their operation, the business had only the one restroom in the licensed premises and access to that restroom was through the food preparation area. No hand wash facilities for the benefit of employees, with hot and cold water function, were found in the food preparation area. At the time of the operation by the Beckers, the stove or range which is presently located in the food preparation area was not installed. Becker was inspected during the ownership period by persons within the Volusia County Health Department who were acting in the capacity as representatives of the Petitioner. During the Becker ownership no citations were given by the Petitioner or other regulatory agencies related to deficiencies pertaining to the number of restrooms in the premises; the fact of access to the one restroom in the premises through the food preparation area; the non- existence in the food preparation area of a hand wash facility for the benefit of employees or the operation of the food service establishment without installing an exhaust hood over all the cooking gear, which hood had an automatic fire-extinguisher. Susan Niles purchased the premises from the Beckers. Niles operated the business as a donut and sandwich shop. Her ownership lasted from August 1979 through February 1981, when the business was sold to the Respondent. During her ownership Niles conducted a takeout food service, and served a small breakfast menu, with the food staples being sandwiches and donuts. In the beginning, she had two tables with three to four chairs each. She knocked out a wall and relocated the counter. She also added two or three smaller tables that would accommodate two to three chairs each. When she purchased the business there were some tables and chairs already located there. Those tables and chairs were on the inside of the licensed premises. She found the chairs and tables to be a valuable asset in the operation of the business. She had licenses necessary to conduct her business. Regular inspections were made of her licensed premises on the part of government officials, among them one James E. Jackson, an employee of the Volusia County Health Department, who inspected for the benefit of Petitioner. No citations were given for problems within the licensed premises, during Niles' ownership. During Niles' operation, approximately twenty percent of the business was for customer consumption of food on the premises with the balance being takeout. Niles added a stove or range, which is still in the licensed premises. Most of her cooking was done at home, away from the premises, and the stove was used to boil water for coffee and to cook an egg or prepare bacon. The stove which was added by Niles, did not have a vent system associated with it and still does not. Niles removed the ice cream machine which had been installed by the Freemans and was also operated by the Beckers. When Respondent took over the restaurant in 1981, he operated the business in essentially the same fashion as the prior owner. He sold donuts and sandwiches and served breakfast. The sandwiches were hot and cold sandwiches. The donuts were prepared on the premises. The donut making machine has a vent system associated with it and has had that feature at all relevant points in time. The kitchen stove or range which has been mentioned before has four top burners and it is used by Connelly to boil potatoes, for potato salad, for poaching eggs and frying eggs. In addition there is a microwave oven in the premises which is used for the preparation of bacon and sausage. Finally, the oven is used for cooking turkeys. In using the stove there Is a limited amount of steam and grease associated with its use. Connelly has made no changes to the physical layout of the licensed premises following his purchase of the business. Connelly has not added any tables or chairs subsequent to his purchase. At present there are four tables and eight chairs. When Connelly purchased the premises he verified the existence of necessary licenses and permits for the prior owner, to insure his ability to gain necessary licenses and permits for the prior owner, to insure his ability to gain necessary permission from those regulatory agencies. The licenses and permits issued to the prior owner led Connelly to believe that tables and chairs were associated with the business. He paid the proprietor $9,500.00 in cash and entered into a lease with the building owner. Connelly would not have purchased the business had he not understood that seating capacity for patrons would be made available. During the period of Connelly's ownership periodic inspections have been made of the premises. Prior to April 12, 1984, no citations had been given to Connelly related to the licensed premises. Moreover, and permit renewals have been granted Connelly at appropriate times within his conduct of business at the subject location. In the face of the present charges, Connelly has inquired of contractors on the subject of adding an additional restroom. Those two contractors on the subject of adding an additional restroom. Those two contractors have indicated that this cannot be achieved within the premises now occupied by Respondent. The State of Florida, Department of Business Regulation, Division of Hotels and Restaurants, has a contract with Volusia County Health Department to inspect premises which are licensed by the state agency. In that connection, James E. Jackson and Karen Fisher, employees of Volusia County Health Department have inspected the licensed premises while Respondent has operated the business. Moreover, Jackson inspected the premises when it was owned by other proprietors, who have been previously identified. No citations were given by Jackson, notwithstanding conditions which are similar to what was discovered by Karen Fisher when she took over Jackson's inspection responsibilities for the licensed premises in question. Her responsibility began in February, 1984. After assuming the responsibility for inspecting Connelly's business, Fisher made a routine inspection and no citations were given to Connelly based upon that inspection. Subsequently, based upon remarks made by Connelly against a competitor, to the effect that the competitor was serving meals in the competitor's licensed premises, inappropriately, an inspection was made of that premises leading to the removal of tables and chairs from that premises. In turn, the competitor complained that Connelly was inappropriately providing tables and chairs for food consumption on premises in an establishment which could not allow that circumstance. This caused Fisher to return to the licensed premises on April 12, 1984, and to cite Respondent for violations as reflected in the notice to show cause document. In particular, Fisher noted on that date that the access to the restroom was not possible without crossing the food preparation area. She observed that there was only one restroom available on the licensed premises. She observed that the food preparation area did not have available a hand wash sink with hot and cold feature, which could be used by the employees within the licensed premises. She also noted that the range or stove which had the four burners and oven did not have a vent associated with that apparatus. That ventilation system is also referred to as a hood. Further inspections on April 18 and May 2, 1984, did not indicate a change in circumstance related to the areas identified by Fisher as being problems. Following the issuance of the notice to show cause, by the Petitioner, the items complained of remain in the same status as existed on April 12, 1984. Prior to this charge, Petitioner was unaware of the existence of seating in the licensed premises however, when the management or its designee, i.e., a supervisor within the Volusia County Health Department, learned of the problem of alleged rules violations, Petitioner then placed charges against the Respondent.
