The Issue The issue for determination in this proceeding is whether Respondent committed the acts alleged in the Administrative Complaint and, if so, what disciplinary action, if any, should be imposed.
Findings Of Fact Petitioner is the state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida. Respondent is now and has been at all times material to this proceeding a licensed real estate salesman in the state, holding license number 0488568. The license was issued %Tequesta Properties, Inc., 169 Tequesta Drive, Tequesta, Florida 33458 ("Tequesta"). On June 29, 1989, Respondent negotiated a contract for the sale and purchase of a single family residence located at 65 Willow Road, Tequesta, Florida (the "contract"). The residence was listed for sale with Tequesta. The sellers were Frank and Hilda Sceusa, and the buyers were Dale and Cathy Favre. The buyers first saw the listed property at an open house. Respondent was present at the open house because the listing agent was busy with another transaction. The contract provided: Inspection, Repair And Maintenance: Seller warrants that as of 10 days prior to closing, the ceiling, roof . . . and exterior and interior walls do not have any VISIBLE EVIDENCE of leaks or water damage and that the septic tank, pool, all major appliances, heating, cooling, electrical, plumbing systems, and machinery, are in WORKING CONDITION. Buyer may, at Buyer's expense, have inspections made of those items by an appropriately Florida licensed person dealing in the construction, repair, or maintenance of those items and shall report in writing to Seller such items that do not meet the above standards as to defects together with the cost of repairing them prior to Buyer's occupancy or not less than 10 days prior to closing whichever occurs first. Unless Buyers report such defects within that time, Buyer shall be deemed to have waived Seller's responsibilities as to defects not reported. . . . Buyer shall be permitted access for inspection of property to determine compliance with this Standard. Respondent failed to give the buyers a reasonable opportunity to inspect the house or to have it inspected by a professional inspector. Buyers requested a pre-closing inspection approximately three or four times. Each time the buyers made their request through Respondent. The buyers asked Respondent to arrange for their access into the property for the purpose of conducting an inspection. Respondent ultimately accompanied the buyers through the premises the night before the closing. Respondent misrepresented the condition of plumbing in the house. During the walk-through the night before the closing, the buyers asked Respondent about a rag covering the goose neck under the kitchen sink. Respondent advised the buyers that the rag was left there after cleaning and that nothing was wrong with the plumbing. Respondent misrepresented the provisions of a warranty that was transferred to the buyers with the sale of the house. The house was sold to the buyers with a home owners warranty ("HOW") purchased by the listing broker. Respondent told the buyers they did not have to worry about the appliances in the house, including the air conditioning, because the entire property was covered by the warranty. Respondent specifically represented that the air conditioning system was in good working order. Respondent never read the HOW contract and did not explain to the buyers exclusions for preexisting conditions, prorations for other conditions, and the requirement that the buyers pay a $100 deductible for each covered defect. Respondent failed to familiarize himself with the house and failed to inquire of the sellers as to any problems that existed in the house. The kitchen sink backed up within a month after the date of closing because it was clogged with sand. The pipe was rusted completely through and there was a three inch gash in the pipe. The rag that had covered the pipe during the walk through concealed the defects in the pipe that otherwise would have been readily visible. The air conditioning system failed after closing. The repairs to the air conditioning system were not covered by the HOW contract. Representatives of HOW determined that the problems with the air conditioning system were preexisting and not covered under the terms of the contract. The air conditioning unit was replaced by the buyers who were reimbursed by the listing broker. The buyers experienced problems with a number of the components in the house. In addition to the previously mentioned air conditioning and plumbing problems, there were electrical problems and all of the appliances had to be replaced. Respondent misrepresented the amount of known repairs. The buyers knew prior to closing that the pool needed to be re-marcited. Respondent represented that the cost of such a repair would be approximately $1,000. The actual cost was approximately $3,000. Some of the problems experienced by the buyers were patent defects and some were latent defects. All of the problems, however, could have been discovered and corrected prior to closing if an inspection had been conducted by a Florida licensed person experienced in the construction, repair, and maintenance of such matters. Respondent failed to carry out his responsibilities as a real estate professional. It is customary practice in the community for the selling agent to arrange for pre-closing inspections done by professional licensed inspectors. The listing agent for the residence asked Respondent the day before the closing if Respondent had scheduled the pre-closing inspection. Respondent admitted that he had forgotten to schedule the inspection. When Respondent scheduled a walk through for the buyers the night before closing, there was insufficient time for the buyers to schedule an inspection by a professional inspector. The buyers relied upon the representations of Respondent with respect to the HOW contract and the condition of the house.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that Petitioner should enter a Final Order finding Respondent guilty of misrepresentation and culpable negligence in violation of Section 475.25(1)(b), Florida Statutes, suspending Respondent's license for 90 days, imposing an administrative fine of $600, and placing Respondent on probation for one year. The Final Order should further provide that during the period of probation Respondent should complete 60 hours of post-licensure education. DONE and ENTERED this 22nd day of January, 1992, in Tallahassee, Leon County, Florida. 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 23rd day of January 1992.
Findings Of Fact The following facts (a) through (r) are found based upon a stipulation by and between counsel for Petitioner and counsel for Respondent as to the truth of these facts: Respondent is a registered general con- tractor having been issued License No. RG0019039. Respondent's last known address is c/o Page Construction Company, 402 Davenport Drive, Valparaiso, Florida 32580. At all times material herein, Respondent was the qualifying agent for Page Con- struction Company. In August, 1980, Lillian Mark contacted the Respondent for advice as to how to get the central air conditioning system at her residence into operation. On August 15, 1980, Respondent inspected the old air conditioning unit and recommended that Lillian Mark have a new air conditioning system installed in the residence. On August 20, 1980, Respondent, who was doing business as Page Services, orally contracted to install a new Mammoth water- to-air heat pump at Lillian Mark's residence, located at 408 West Cedar Street, Niceville, Florida. Lillian Mark paid to Respondent a $1,600 down payment on the system, by check payable to Page Services. Respondent immediately started work on the installation and completed the work on August 23, 1980. On August 23, 1980, Lillian Mark gave Respondent a check in the amount of $435 payable to Page Services. A portion of the $435 was to pay for repairs to the duct system. The only license held by Respondent was a general contractor's license. At the time Respondent performed the work for Lillian, he was doing business as Page Services. The Mammoth heat pump installed by Respon- dent failed to heat the residence during cold weather. Further, the system required a large quantity of water to operate, which resulted in excessive water utility bills. Respondent agreed to remove the Mammoth water-to-air unit and replace it with a Ruud Air Conditioning System. However, the Respondent failed to install the new system properly, and water leaked from the unit causing property damage to Lillian Mark's residence. Further, the new Ruud unit failed to operate as installed. In May, 1980, Agnes Webb contacted Respon- dent for advice as to what work was required to make the air conditioning system in her residence operable. Respondent inspected the old air conditioning unit, and recommended that Agnes Webb have a new air conditioning system installed in the residence. On or about May 21, 1980, Respondent orally contracted with Agnes Webb to install a Ruud heat pump at her residence located at 1008 Bayshore Drive, Niceville, Florida. Respondent installed the unit and Agnes Webb paid Respondent $1,700 for the work. When Respondent performed the work for Agnes Webb, he had only his general contractor's license. Respondent has made full restitution to Lillian Mark for all costs incurred by her as a result of work performed by Mr. Page. Respondent has made full restitution to Agnes Webb for all costs incurred by her as a result of work performed by Mr. Page. Respondent failed to obtain a permit for the installation of the air conditioning system at the Mark residence. Respondent failed to obtain a permit for the installation of the air conditioning system at the Webb residence. Niceville City Ordinance 309 (1973) required that a permit be obtained for the installations at the Mark and Webb residences. The Respondent installed an air handler unit inside and the heat pump unit outside at the Mark residence. He hired another person to do the electrical work. Following the Mark installation, the air conditioning function worked fine but the unit would not heat. The unit used an excessive amount of water. Respondent, at Ms. Mark's request, replaced the heat pump unit with a totally electric Ruud unit. The second unit worked fine but leaked large amounts of water and soaked the carpet. The Respondent then paid two men to install a third unit in the Mark's home. The installation of the third unit required additional work because of the following problems: (1) the refrigeration lines were spliced and of two different sizes, (2) the electrical lines were spliced and had to be replaced, and (3) the control circuits had to be completely redone. The cost of these repairs was $349. The Respondent replaced the thermostat and entire air conditioning unit, and did some duct work at the Webb residence. The thermostat was not the proper type of thermostat for the unit installed and the outside duct work was not properly covered to protect it from weather. At the time of the Mark and Webb installations, the Niceville City Ordinance No. 304 (-1974) required registration of general contractors, electrical contractors, plumbing contractors, and mechanical contractors. The Respondent was not registered with the City of Niceville. In addition to his state general contractor's license, the Respondent holds an Okaloosa County occupational license as a general contractor and an occupational license with the City of Valparaiso, Florida, as an electrical contractor. At no time did Respondent qualify Page Services to engage in the business of contracting in the State of Florida. Respondent was the contractor who was responsible for the entire installation at the Mark and Webb residences. He was aware certain licenses and permits were required by the City of Niceville. There was no evidence that Respondent checked with any City of Niceville official to determine if a permit was required for installation of air conditioning systems. Respondent had performed work on other jobs for other contractors where permits had been obtained for this type work. The Respondent was also aware that if he put in a new air conditioning system, including duct work, he would need a permit. He also understood that if he ran a new circuit, he needed a permit. Respondent understood that the work performed for Agnes Webb and Lillian Mark was replacement of a system, not repair of a system. Respondent did not check with any official of the City of Niceville to determine if he needed a particular license to perform air conditioning work in the City of Niceville. He was not personally aware that such a license was required. Since the filing of this action, Respondent has registered to take the examination in Okaloosa County for a license to do air conditioning repair work.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent be found guilty of those specific violations as set forth above and that he be required to pay an administrative fine of $500. It is further recommended that Respondent's license as a registered general contractor be suspended for a period of 6 months. DONE and ENTERED this 21st day of June, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, 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 22nd day of June, 1983. COPIES FURNISHED: John O. Williams, Esquire 547 North Monroe Street Tallahassee, Florida 32031 Harold F. Peek, Jr., Esquire Post Office Box 147 Valparaiso, Florida 32580 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. James Linnan Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
The Issue The issue is whether Respondent failed to secure workers' compensation coverage for its employees and, if so, the amount of the penalty to be assessed against Respondent.
Findings Of Fact Respondent installs and maintains air conditioning and heating equipment for residential and commercial applications. On May 2, 2017, Respondent was installing a duct system at 3128 East Hillsborough Avenue in Tampa. Two of Respondent's employees were performing work at the site and were not covered by workers' compensation. Leslie Michaud is the president and sole shareholder of Respondent. The air conditioning installation work performed by Respondent's employees is classified by the National Council on Compensation Insurance (NCCI) as class code 5537. This code is for "Heating, Ventilation, Air-Conditioning and Refrigeration Systems Installation, Service and Repair . . . ." During the audit period of May 3, 2015, through May 2, 2017 (Audit Period), code 5537 bore two rates. For the Audit Period, Respondent had no workers' compensation coverage for any of its employees, although it maintained an exemption for Mr. Michaud. For the Audit Period, Respondent's gross payroll was $213,327.49 exclusive of any payments to Mr. Michaud. Applying the manual rates during the Audit Period to the gross payroll yields unpaid workers' compensation premium of $14,870.43.
Recommendation It is RECOMMENDED that the Department of Financial Services, Division of Workers' Compensation, enter a final order determining that Respondent failed to secure workers' compensation coverage for its employees during the Audit Period and imposing a penalty of $29,740.86. DONE AND ENTERED this 7th day of January, 2019, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 2019. COPIES FURNISHED: Tabitha G. Harnage, Esquire Steven R. Hart Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-4229 (eServed) Leslie G. Michaud L and M Airconditioning System, Inc. 49 North Federal Highway, No. 206 Pompano Beach, Florida 33062 Julie Jones, CP, FRP, Agency Clerk Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 (eServed)
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence submitted and the entire record complied herein, I hereby make the following Findings of Fact: Respondent, John Anthony Fantasia, is, and has been at all times material hereto, a certified air conditioning contractor in the State of Florida, having been issued license number CA C024378. Mr. Joseph Wilensky resides in a single family home at 1020 N.E. 160th Terrace in North Miami Beach, Florida. On December 23, 1983 there was a fire at Wilensky's home. The fire was primarily located in the basement near the oil heating unit, some type of electric heating device which utilized a heat strip and part of the central air conditioning unit. The air conditioning and heating systems all sustained damage in the fire. A few days after the fire, an insurance adjuster went to Wilensky's home and recommended a general contractor by the name of H. E. Nason. Nason inspected the damage at the Wilensky home and later sent Respondent over to inspect the damage for an estimate. Nason had previously used Respondent as a sub- contractor on other projects. The Respondent submitted a bid of $2,600 to Nason to install an air conditioning system with a heat strip in the Wilensky home. Thereafter, Nason entered into a contract with Wilensky to make the repairs and sub-contracted the entire job to Respondent. In January 1984, approximately one week after the contract was signed, Respondent, with the assistance of a single helper, removed the old air conditioning and heating units and installed a new central air conditioning/heating unit. Mr. Wilensky was at home while the work was performed. Wilensky observed the Respondent perform some of the work but did not watch Respondent the whole time. Wilensky was talking with his wife either in the dining room or in the kitchen when Respondent informed him that he had just finished with the switch and that the unit was "all set." Prior to installing the new unit, no work permits were pulled nor inspections called for by either Respondent or Mr. Nason. The Respondent believed that Nason, as general contractor, was obligated to pull all necessary work permits. The Respondent connected the new air conditioning/ heating unit to an electrical box which served as an on/off disconnect switch. The on/off disconnect switch was wired to the power source "ahead of the main." "Ahead of the main" is a term used in the electrical industry meaning that an apparatus is wired directly to a power source, by-passing the fuse box or main circuit breaker entirely. In this manner, the apparatus cannot be turned off from the fuse box. Such wiring violates the National Electrical Code, presents a serious hazard of fire and reflects gross negligence and incompetence. The evidence did not establish that the Respondent wired the on/off disconnect switch to the power source when he installed the new unit. There was at least an equal amount of credible evidence that the disconnect switch had been utilized with the previous unit and was in place prior to Respondent's installation work. Shortly after the unit was installed, Wilensky became dissatisfied because he believed that the unit was not heating or cooling properly and that his electricity bills were too high. Respondent returned to Mr. Wilensky's home on several occasions to do additional work on the unit, such as changing thermostats, in an attempt to satisfy Mr. Wilensky. Wilensky was not satisfied with the additional work performed by Respondent and their previously good relationship deteriorated rapidly. Wilensky called Florida Power & Light Company to complain about the high electric bills and an inspector went out to his home. The inspector informed Wilensky that the wiring leading to the air conditioning/heating unit was not done properly. On March 4, 1985, at the request of Mr. Wilensky, Benny Biscotti, an electrical building official for the City of North Miami Beach, performed an inspection at the Wilensky residence. In his inspection, Biscotti confirmed that the wiring leading to the air conditioning/heating unit was hooked up "ahead of the main." The wiring in Wilensky's home was corrected by AVI/AMEX Electric Company on January 16, 1986. The City of North Miami Beach has adopted the South Florida Building Code (SFBC). The SFBC required that a mechanical permit be obtained for the installation of the air conditioning/heating unit. The SFBC did not require an electrical permit in this instance because there was no showing that the installation of the unit required new permanent wiring or an alteration or change to the existing electrical system. The evidence did not establish that electrical upgrading (an increase in capacity for voltage and amperage) was required to accommodate the new air conditioning/heating unit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the Amended Administrative Complaint filed herein be dismissed. DONE and ORDERED this 27th day of July, 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON 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 27th day of July, 1987. APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 2 Adopted in substance in Finding of Fact 2. Adopted in substance in Finding of Fact 3. Adopted in substance in Finding of Fact 5. Rejected as not supported by the weight of credible testimony. Adopted in Finding of Fact 5. Partially adopted in Finding of Fact 5. Adopted in Finding of Fact 5. Adopted in substance in Finding of Fact 5. Rejected as not established by the weight of the evidence. Adopted in substance in Finding of Fact 7. Partially adopted in Finding of Fact 5. Mr. Wilensky's testimony that he saw Respondent connect the switch to the fuse box is unpersuasive, particularly in view of the fact that he did not observe all of the work performed by Respondent, his admitted lack of knowledge of air conditioning and electrical matters and his intense negative feelings regarding Respondent resulting from this entire incident. Adopted in substance in Finding of Fact 5. Rejected as subordinate and/or unnecessary. Adopted in substance in Finding of Fact 8. Rejected as unnecessary. Adopted in substance in Finding of Fact 8. Rejected as subordinate and/or unnecessary. Adopted in substance in Finding of Fact 8. Rejected as not supported by credible evidence. Rejected as not supported by credible evidence. Rejected as subordinate and/or unnecessary. Adopted in substance in Finding of Fact 14. Adopted in Finding of Fact 13. Adopted in Finding of Fact 13. Adopted in Finding of Fact 13. Rejected as not supported by credible evidence. Biscotti's testimony that the wiring was "recent" was based on the history of the work related to him by Mr. Wilensky. Although Biscotti testified that it looked as if "recent work" had been done, the admitted that his opinion was primarily based on Wilensky's statement to him that Respondent had installed new wiring. Rejected as not established by the weight of the evidence. Rejected as not established by the weight of the evidence. Adopted in Finding of Fact 1. Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 4. Rejected as not established by the weight of the evidence. Rejected as not contrary to the weight of the evidence. Addressed in Conclusion of Law section. Addressed in Conclusions of Law section. Adopted in Finding of Fact 6. Adopted in Finding of Fact 6. Adopted in Finding of Fact 6. Rejected as a recitation of testimony/evidence. Rejected as a recitation of testimony/evidence. Rejected as a recitation of testimony/evidence. Rejected as a recitation of testimony/evidence. Rejected as a recitation of testimony/evidence. Rejected as subordinate and/or unnecessary. Addressed in Procedural Background section. Addressed in Procedural Background section. Addressed in Procedural Background section. Rejected as subordinate. Rejected as subordinate. Rejected as subordinate. Rejected as subordinate. Rulings on Proposed Findings of Fact Submitted by the Respondent (The Respondent's Proposed Recommended Order is written in the form of Conclusions of Law only and includes no specific findings of fact upon which a ruling can be made.) COPIES FURNISHED: Gus Vincent Soto, Esq Joe Sole, Esq. Department of Professional Department of Professional Regulation Regulation 130 North Monroe Street 130 North Monroe Street Tallahassee, FL 32301 Tallahassee, FL 32399-0750 Edward Bringham, Esq. Fred Seely 25 West Flagler Street Executive Director City National Bank Bldg. Department of Professional Suite 933 Regulation Miami, FL 33130 P.O. Box 2 Jacksonville, FL 32201 Van Poole Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750
Findings Of Fact The Petitioner, John L. Horn, applied for and took the February 22, 1980, examination for a Class B air conditioning contractor's license, having been qualified, and meeting all preliminary requirements to sit for this examination. Mr. Horn answered Question 6 of the exam by selecting multiple choice Answer E. Question 6 of the February 22, 1981, examination was as follows: The contractor for the classroom and office building shown on Drawing AC-3 is required to accurately measure the air flow from each of the air handling units. Which of the following methods should be used? A magnehelic gauge with the high pressure port connected to the supply duct and the low pressure port connected to the return duct. An inclined draft gauge with a pitot tube traverse at several points in the supply duct to determine the mean velocity. An inclined draft gauge with a pitot tube traverse in the centerline of the supply duct to determine the actual velocity. A rotating vane anemometer located in the supply duct air stream. A velometer located at each sidewall outlet. All answers except Answer B were graded as incorrect, including the answer submitted by Mr. Horn. The February, 1980, Class B air conditioning contractor's examination was developed by American Community Testing Services, located in Jacksonville, pursuant to a contract with the Department of Professional Regulation. Question 6 was prepared by Mr. Larry Simmons for the testing service. This question seeks multiple Choice Answer B as the correct answer. Each examination question is written by an expert in the field, and is then checked by another expert for accuracy. The questions are then reviewed by a consultant to the testing service who is a professor of mechanical engineering. These internal review procedures are utilized to minimize the existence of errors. Prior to the time an examination question is used, it is subjected to Departmental review to assure that any grammatical errors are corrected. Subsequent to the examination, Question 6 and the various answers given by examinees were analyzed. Based upon testing criteria, Answers C and D in Question 6 were judged to possibly be correct, in addition to Answer B. Based on this same testing criteria, however, Answers A and E were not possibly correct. A discrimination index disclosed that Question 6 was a difficult question. Nevertheless, every examinee is qualified by experience to sit for the examination, which is designed for competition among peers. The post-examination review procedures used by the Department are for the purpose of assuring that there is not another correct answer. This review is performed by the writer of the question and an expert in the field being reviewed. The preferred method for measuring air flow is to use a pitot tube traverse, as suggested by Answer B. Other methods are available alternatives, but are not given as choices in the answers to Question 6. Answer A is incorrect because it measures static pressure and not air flow. Answer D is not correct because of the large hole that would have to be cut in the duct in order to insert the instrument, and after sealing the duct no reading could be taken. Answer E is also incorrect because it would allow air to flow into the room. Answer C could be correct in a small duct, but not in the duct shown on the drawing accompanying Question 6. The question seeks the best answer among the five choices; Answer B is the only acceptable choice and the correct answer. Twelve of the 14 persons who scored in the upper 27 percent on the examination answered Question 6 correctly, by choosing Answer B. Only 7 of the 19 persons who scored in the lower 27 percent on the examination answered this question correctly. This difference produced a discrimination index of .47 percent, which is within professional testing standards as an accurate measure of the validity of the question. This evidence was not controverted. Thus, based upon generally accepted testing criteria, the discrimination index shows Question 6 to be a valid question, and Answer B to be the correct answer. Mr. Horn's contentions are not supported by the weight of the evidence presented. The burden of proof is upon an applicant for a license to demonstrate that he meets all standards for eligibility. Mr. Horn did not present sufficient evidence to meet this burden of proof, and the Board established by substantial, competent evidence the validity of Question 6 and the correctness of Answer B.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of John L. Horn for a license as a state certified Class B Air Conditioning Contractor be denied. THIS RECOMMENDED ORDER entered on this 15th day of April, 1981. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of April, 1981. COPIES FURNISHED: John L. Horn 114 Willow Branch Avenue Jacksonville, Florida 32205 Charles F. Tunnicliff, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Patricia R. Gleason, Esquire Assistant Attorney General The Capitol Tallahassee, Florida 32301
The Issue The issue in this case is whether disciplinary action should be taken against the license of John Arena (Respondent) based upon violations of Sections 489.105(4), 489.119 and 489.129(1)(e) and (m), Florida Statutes, as alleged in the Administrative Complaint filed against Respondent in this case.
Findings Of Fact At all times material hereto, Respondent has been licensed as a certified residential contractor in Florida, having been issued license number CR-C021139. The Department is the state agency charged with the responsibility to prosecute Administrative Complaints pursuant to Chapters 120, 455 and 489, Florida Statutes, and rules adopted thereunder. During March, 1988, the Respondent's license was issued in an active status qualifying Classic Industries, Inc., and this licensure status was effective until September 1989, when the Respondent's license was placed in inactive status. On or about September 23, 1988, Dorothy G. Fields entered into a contract for residential repairs and construction with Classic Industries, Inc., for her residence located at 4361 Southwest 23rd Street, Ft. Lauderdale, Florida. At the time of this contract, the Respondent was the qualifying agent for Classic Industries, Inc. However, the Respondent never personally spoke with Dorothy Fields, or anyone acting on her behalf, concerning this contract. Fields' contract with Classic Industries clearly reflects her understanding that the work to be completed included window repair, the installation of an air conditioner, and insulation, for which she was to pay $6800. However, Respondent understood that the only work to be performed for Fields was window repair, and accordingly, he pulled a permit on September 27, 1988 only for the repair of her windows, and not for the air conditioner or insulation work. There is no evidence in the record which would support the Respondent's understanding, and it is, therefore, found that Respondent was in error when he failed to pull permits for the additional work which was to be performed on Fields' residence. Respondent visited the site of this job and determined that the window repairs had been completed according to code specifications. He did not observe any work being done on the air conditioner or the installation of insulation. Nevertheless, this work was, in fact, performed, and Fields made full payment to Classic Industries in the amount of $6800. The air conditioning work on Dorothy Fields' residence was subcontracted by Classic Industries to Carlos Jimenez, d/b/a, All American Services. At all times material hereto, Carlos Jimenez, d/b/a, All American Services, was not licensed and qualified by the Construction Industry Licensing Board in Florida. No permits were obtained for the air conditioning and insulation work, and a Notice of Violation was issued by the local building inspector on October 11, 1988. Subsequent thereto, permits were obtained on November 15, 1988, after this work had been performed. On October 4, 1990, a Final Order was filed by the Construction Industry Licensing Board involving the Respondent in Case Number 109713 (DOAH Case Number 90-1416). As a result of violations of Section 489.129(1)(d),(j) and (m), Florida Statutes, which were found in that case, the Respondent was fined $2250, and his license was also suspended for as period of thirty days, subject to this period of suspension being stayed if he paid the administrative fine within thirty days. There is no evidence in the record to indicate whether Respondent did, in fact, pay this fine within thirty days.
Recommendation Based upon the foregoing, it is recommended that the Construction Industry Licensing Board enter a Final Order placing Respondent's license on probation for a period of two years, and imposing an administrative fine in the amount of $2,000. DONE AND ENTERED this 21st day of November, 1990 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1990. APPENDIX Rulings on the Department's Proposed Findings of Fact: 1-2. Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 6. Adopted, substantially, in Findings of Fact 3 and 4. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Copies furnished: Robert Harris, Esquire 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 John Arena 5961 S.W. 13th Street Plantation, FL 33317 Kenneth E. Easley, Esquire General Counsel 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Daniel O'Brien Executive Director Construction Industry Licensing Board P. O. Box 2 Jacksonville, FL 32202
Findings Of Fact At all times material hereto, the Respondent, Thomas W. Hunter, was a certified Class B Air Conditioning contractor, having been issued license number CA C014646, by the State of Florida. At all times material hereto, Derrell Baugh (D. Baugh) was an electrical contractor having been issued a license by the State of Florida. D. Baugh has not had an air conditioning license for Lake County, but has held a City of Eustis air conditioning license for some 15 years. Gregory Duane Baugh (G. Baugh) is the son of D. Baugh. G. Baugh has not been licensed by the State of Florida. The Respondent has been doing business as Hunter Air. The Respondent has never qualified Baugh's Electric, and D. Baugh has never qualified Hunter Air. In approximately 1976, D. Baugh and his son G. Baugh, and the Respondent were partners in the business of Baugh's Electric. There was no written partnership agreement, only a handshake partnership. The Respondent did the air conditioning and refrigeration work, and D. Baugh and G. Baugh did the electrical work. All three of them shared in the profits. If a job involved electrical and air conditioning work, the partner who had already contracted for the job would encourage the main contractor to use the other partner. When the Respondent and D. Baugh were working on the same job, if one partner was behind in his work, the employees of one would assist the one who was behind to complete his work. Further, when working on the same job, and when authorized by the Respondent, D. Baugh would sometimes pull air conditioning permits for the Respondent. This partnership arrangement ended in 1980 or 1982. After the dissolution of the partnership, the Respondent continued to have access to the checking accounts, and charge accounts with wholesalers, of Baugh's Electric. The Respondent can write checks on the account and charge items with wholesalers. Even after the partnership dissolved, Baugh's electric continued to use the business cards of the partnership, which included the Respondent's name. The business part of Baugh's Electric, bookwork and the writing of proposals, is handled by G. Baugh. The field work and troubleshooting is handled by D. Baugh. On June 30, 1985, G. Baugh prepared an electrical and air conditioning proposal for Gary Wyckoff (Wyckoff) on a spec house being constructed by Wyckoff. The proposal was on proposal paper for the business of Baugh's electric and showed the electrical contractor as G. Baugh, the air conditioning contractor as the Respondent, and a breakdown of the cost for each type of work. The total cost for the work, per the proposal, was $4,170. Baugh's Electric had performed other work for Wyckoff, but had not always submitted a written proposal. G. Baugh believed that the Lake County Building Department saw no problem with either the proposals of Baugh's Electric, or with the Respondent being on the proposal sheet of Baugh's Electric, as long as it was specified who was going to do what. G. Baugh has written at least six proposals in this manner. The proposal for the Wyckoff job was written as it was because the Respondent had no proposal paper of his own and it was convenient. Before the Wyckoff job, D. Baugh had a discussion with the Lake County Construction License Investigator, Mary Pasak (Pasak), concerning himself and the Respondent working together. D. Baugh was informed that there was nothing wrong with them working together as long as the Respondent did the air conditioning work and obtained the air conditioning permits, and D. Baugh did the electrical work and obtained the electrical permits. The Respondent testified that he saw nothing wrong with putting multiple proposals from different contractors with different types of licenses on one proposal sheet because he had been employed with companies which engaged in this practice. He testified that he saw nothing wrong with putting his proposal for air conditioning on the same proposal sheet with Baugh's Electric which was to do the electrical work, because everyone who was working on a project, including the Wyckoff job, was made aware of who was doing what. D. Baugh pulled the electrical permit for the Wyckoff job. As part of the air conditioning work, duct work had to be done. To complete the duct work G. Baugh contacted a duct man, James Edwards (Edwards), whom Baugh's Electric had used on several other jobs in the City of Eustis area, because the Respondent was unable to start the job. Edwards knew that he was performing the work under the Respondent's license because he had been informed years ago, during the partnership, that among the partners the Respondent had the air conditioning license. However, Edwards informed the Lake County Building Inspector that he was employed by D. Baugh on the Wyckoff job. Edwards had neither seen nor had any contact with the Respondent. On all the jobs that Edwards had done duct work on for Baugh's Electric, either D. Baugh or G. Baugh had made the contact with him, given him the okay to do the duct work, or paid him. Edwards completed the duct work, and was paid by Baugh's Electric. The Respondent reimbursed Baugh's Electric. No permit to perform the air conditioning work, including the duct work, had been pulled before Edwards started and completed the duct work. Edwards believed that D. Baugh had taken care of the mechanical permit for the air conditioning work. Wyckoff also believed that the mechanical permit had been pulled. Wyckoff knew that the Respondent had the license to perform the air conditioning work, although he had only seen the Respondent twice. Their contact was usually by telephone. The Respondent pulled the mechanical permit for the Wyckoff job after Edwards had completed the duct work. Because the Respondent pulled the permit after the work had begun, he had to pay the Lake County Building Department a double fee for this permit. The Respondent pulled the mechanical permit as a favor to Baugh's Electric. The Respondent did not know that the duct work for the air conditioning job had begun. He knew he was to perform some air conditioning work for Wyckoff on a house, but he did not know which house it was, or where it was located. The Respondent completed the air conditioning work, and on August 21, 1985, submitted to Wyckoff an invoice in the amount of $2,200 for the work. Even though the invoice was on the letterhead of the Respondent's company, Hunter Air, the invoice was filled out by G. Baugh. Wyckoff paid the Respondent for the air conditioning work.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Thomas W. Hunter, be found guilty as charged, and that he be assessed an administrative fine in the amount of $1,000. THIS RECOMMENDED ORDER entered on this 24th day of September, 1986 in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 24th day of September, 1986. COPIES FURNISHED: Errol H. Powell, Esquire 130 North Monroe Street Tallahassee, Florida 32301 Thomas W. Hunter 502 Citrus Avenue Eustis, Florida 32726 Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings S. Benton, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Fred Seely Executive Director Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint issued against him and, if so, what disciplinary action should be taken.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is a Spanish-speaking native of Cuba with little or no understanding of the English language. He has resided in Miami-Dade County since coming to this country 18 or 19 years ago. In or around 2006, Respondent decided he wanted to start an air conditioning contracting business in Miami-Dade County, and he went to the downtown Miami location of the Miami- Dade County Code Compliance Office (Compliance Office) to inquire about the licensing requirements with which he would have to comply to legally operate such a business in the county. The Compliance Office is responsible for licensing construction contractors (in various trades) operating in Miami- Dade County. The contractors whom the Compliance Office licenses include mechanical contractors doing air conditioning work. Individuals who desire to go into the air conditioning contracting business in Miami-Dade County must complete and submit to the Compliance Office an eight-page "initial application," accompanied by "letters of experience" and a $315.00 application fee. The application is reviewed by the Miami-Dade County Construction Trades Qualifying Board (CTQB). If the CTQB determines that the applicant is qualified to take the licensure examination, the applicant is allowed to sit for the examination. Passing the examination is a prerequisite to licensure. If a passing score is attained, the applicant is notified by the Compliance Office and given the opportunity to submit a "business application" and supporting material (including proof of liability insurance and workers' compensation coverage), accompanied by another $315.00 application fee. If the CTQB approves the "business application," the "applicant is issued a contractor's license number" and given a "competency card" (reflecting such licensure) by the Compliance Office. The applicant then must register with the Department before being able to engage in any contracting work in the county. When Respondent went to the Compliance Office's location in downtown Miami, he was approached by a man carrying a clipboard who spoke Spanish. Respondent was led to believe by the man that he worked for the county (although the man did not present any identification verifying his employment status). The man offered to help Respondent apply for a license, an offer Respondent accepted. After obtaining information from Respondent, the man filled out an application form (which was in English) for Respondent and "kept" the completed form. He then collected from Respondent $350.00. The man told Respondent that Respondent would be receiving his license "by mail." Respondent did nothing further (including taking the licensure examination) to obtain a Compliance Office-issued license for his air conditioning contracting business. Given what he was told by the man (whom he trusted) at the Compliance Office's downtown Miami location, Respondent did not think anything else was required of him, and he acted accordingly. Approximately a month after his visit to the Compliance Office, Respondent received what, on its face, appeared to be a Compliance Office-issued "competency card" indicating that his business, G & G Air Conditioning, Inc., had been issued an "A/C UNLTD" license, License No. 05M000987, with an expiration date of September 30, 2007, and that he was the "qualifying agent" for the business. Although Respondent did not realize it at the time, the "competency card" was a "fraudulent document." The Compliance Office had never in fact issued any license to Respondent or his air conditioning contracting business. Indeed, the Compliance Office had not even received a licensure application, or, for that matter, anything else, from Respondent (including the $350.00 he had paid for what he thought was an application fee). Reasonably, but erroneously, believing that the "competency card" was authentic, Respondent, with the assistance of a friend able to read and write English, completed and submitted the paperwork necessary to register with the Department so that he would be able to engage in the business of air conditioning contracting in Miami-Dade County. Respondent had picked up the application packet (the contents of which were in English) when he had visited the Compliance Office's downtown Miami location. Respondent's friend translated the contents of the application materials for Respondent. For each item requiring a response, Respondent told his friend what entry to make. The final page of the application materials contained the following "Attest Statement," which Respondent signed (after it was translated for him by his friend): I have read the questions in this application and have answered them completely and truthfully to the best of my knowledge. I have successfully completed the education, if any, required for the level of licensure, registration, or certification sought. I have the amount of experience required, if any, for the level of licensure, registration, or certification sought.[1] I pledge to comply with the applicable standards of practice upon licensure, registration, or certification. I understand the types of misconduct for which disciplinary proceedings may be initiated. Among the representations Respondent made in his completed application was that he possessed a valid "local competency card" issued by the Compliance Office. He believed, in good faith, but again, incorrectly, that the "competency card" he had received in the mail was such a card. In accordance with the instructions in the application materials, Respondent attached a copy of this card to his application. The Department received Respondent's completed application for registration on April 20, 2006. On May 23, 2006, the Department issued the registration for which Respondent had applied. Had the Department known that the "competency card" Respondent had attached to his application and had falsely, but not fraudulently, claimed to be valid was in fact a counterfeit that did not accurately represent the local licensure status of Respondent and his business, the Department would have denied Respondent's application for registration. Following a police investigation, two Compliance Office employees, along with a former Compliance Office employee, were arrested for selling "fraudulent licenses." The police alerted the Compliance Office of the results of its investigation in or around July 2006 (after the Department had already granted Respondent's application for registration). The Compliance Office thereupon conducted an audit, which revealed that Respondent was among those who had received a "fraudulent competency card" from the arrestees. Respondent was so notified by letter (sent by the Compliance Office). Prior to his receipt of the letter, Respondent had no idea that the "competency card" he had received in the mail was not what it purported to be. Had he known it was a "fraudulent document" he would have never applied for registration with the Department. The total investigative and prosecutorial costs incurred by the Department in connection with the instant case (excluding costs associated with any attorney's time) was $32.66.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board issue a Final Order revoking Respondent's registration and requiring him to pay the Department $32.66 (representing the Department's investigative and prosecutorial costs, excluding costs associated with attorney time) for the violation of Section 489.129(1)(a), Florida Statutes, Section 455.227(1)(h), Florida Statutes, and Section 489.129(1)(m), Florida Statutes, described above that the Department alleged in its Administrative Complaint and subsequently proved by clear and convincing evidence at the final hearing. DONE AND ENTERED this 22nd day of October, 2007, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 2007.
The Issue Whether Respondent, a certified air conditioning contractor, committed the offenses alleged in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact At all times material to this proceeding, Respondent has been a certified air conditioning contractor, having been issued license number 1133613 on December 27, 1985. Petitioner's licensure file reflects that Respondent's license is held as follows: "Michael J. Morrow d/b/a ATM A/C & Refrigeration, Inc." (ATM). Respondent has never applied for a certificate of authority for ATM pursuant to the provisions of Section 489.119, Florida Statutes. On December 12, 1998, Carmen Schneider contracted with Sun Coast to install an air conditioning and heating unit at her residence located in Miramar, Florida. At no time has Sun Coast been a licensed air conditioning contractor. Respondent had no agreement to do any work for Ms. Schneider, and he had no agreement to subcontract the work for Sun Coast. The City of Miramar issued permit 98121104 for the Schneider job. According to its computer records, Respondent, d/b/a ATM pulled the permit for the Schneider job. The greater weight of the credible evidence established that neither Respondent nor his corporation pulled the permit for the Schneider job1 as alleged in Count II of the Administrative Complaint. Petitioner failed to establish that Respondent enabled Sun Coast to engage in uncertified or unregistered contracting in violation of Section 489.129(1)(d), Florida Statutes, as alleged in Count III. Petitioner presented an affidavit establishing that its costs of investigation of Respondent (absent attorney time) totaled $705.03. That affidavit does not state the cost of investigation for each count. On February 2, 1998, Petitioner entered a Final Order in Case Number 98-12100 that disciplined Respondent's license because he assisted an unlicensed person or entity engage in the uncertified and unregistered practice of contracting and because he proceeded on a job without a permit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the Findings of Fact and Conclusions of Law contained in the Recommended Order. It is further recommended that for the violation found for Count I, Respondent be assessed an administrative fine in the amount of $500.00 and that his license be suspended until such times he pays the administrative fine and complies with the requirements of Section 489.119, Florida Statutes. It is further recommended that Counts II and III of the Administrative Complaint be dismissed. DONE AND ENTERED this 17th day of June, 2002, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 17th day of June, 2002.
