Findings Of Fact At all times pertinent to the issues herein discussed, Respondent Wallace W. Stewart was licensed as a registered air conditioning contractor by the Florida Construction Industry Licensing Board under License No. RA 0022169. Since at least October 1979, Respondent has been qualifying agent for the contracting firm "Stewart's Solar Energy, Inc.," with the Florida Construction Industry Licensing Board. In September 1979, Fred Johnson was acting as real estate agent for his son, Don F. Johnson of Ponte Vedra, Florida, a licensed general contractor who at the time had several residences for sale in the area. During that period, Mr. Fred Johnson engaged in a discussion with the Respondent concerning the possibility of installing a solar cooling, heating and hot water system in the house that Mr. Johnson proposed to have his son, Don, build for him in St. Johns County, Florida. Pursuant to these discussions, on September 10, 1979, Respondent prepared a proposal for Mr. and Mrs. Fred Johnson for the installation of a complete cooling and heating system and solar collectors for the purpose of domestic hot water in the said residence. Before this proposal was accepted, Mr. Fred Johnson's son, Don, discussed the terms of the proposal with the Respondent. Specifically discussed was that portion of the proposal wherein Respondent proposed to include the following: Necessary piping for circulating chilled and hot water system, perimeter heat, storage tanks for hot and cold water, necessary heat exchangers, refrigeration equipment, circulating pumps, duct system, thermostats, heat exchanger (fireplace), also piping and controls for the hot water heater. Before allowing his father to sign this proposal and accept it, Don Johnson asked Respondent exactly what he proposed to provide regarding the fireplace and was told that Mr. Stewart would provide a firebox interior, which consisted of a steel box shaped like a fireplace, to protect the heat exchanger that was to go with it. At that time, Mr. Stewart took Don Johnson into his workshop and showed him an outfit which he indicated would be similar to, if not identical to, that which he intended to install in the senior Johnson's home. It was understood that Respondent would supply the firebox and heat exchanger, but the builder was to do the masonry work and the chimney. Thereafter, based upon that understanding, Don Johnson recommended to his father that he accept the proposal, which was accomplished on or about the September 10, 1979, date; and both Fred Johnson and his wife, Christine, did so, agreeing to pay, for the complete system, the sum of $5,483 in accordance with a schedule set forth in the proposal sheet. Construction was begun and progressed to the time it was appropriate to install the firebox. At that point, Respondent told Don Johnson, the builder, he was unable to provide the firebox at that time. Since the state of construction was such that a delay in providing the firebox would hold up the continuance of construction, Respondent asked Don Johnson if he, Don, could provide the standard firebox into which Respondent would put his heat exchanger and thereafter give a credit against the purchase price. In response to this suggestion, Don Johnson told Respondent the cost would be between $400 and $500, to which sum Respondent agreed. As a result, Don Johnson put in the firebox that he procured, and Respondent thereafter put in the heat exchanger unit. Construction on the house continued until such time as, in April 1980, the house was considered sufficiently complete for Mr. and Mrs. Fred Johnson to move in. In the interim, however, in order to get the duct work done for the air conditioning and heating system he installed, Respondent, who was not licensed to perform heating and air conditioning installation in St. Johns County, Florida, arranged with Mr. Everett Masters, owner of Masters Heating and Air Service of St. Augustine, Florida, to do the duct work for the Johnson home. A building mechanical permit is not required to do duct work, and Mr. Masters did the duct work without a permit, even though he was not satisfied that the installation called for in the drawings was sufficient to accomplish the purpose of heating and cooling for a house that size. According to Mr. Masters, he did the work according to the specifications given to him, but protested to a representative of Mr. Stewart, Respondent, that the ducts were too small. In response, he was told to put the ducts in as called for in the specifications, which he did, but was never paid for the work he provided. St. Johns County Ordinance No. 76-20, an ordinance regulating contractors and the business of contracting within that county, at Section 4 thereof requires that air conditioning contractors be certified in order to conduct that business within the county. The contract involved here for the construction of Mr. Johnson's house would have required the contractor, Respondent, to have a local license to complete the air conditioning work. Respondent does not have a license in St. Johns County and never has had one. As a matter of fact, before the work was done, Mr. Don Germain, an assistant building official for St. Johns County, told Respondent in 4Z. Germain's office that he, Respondent, would need a county license at the time Respondent had come to the office prior to installing the air conditioning unit in the Johnson house. At this point, Mr. Germain discussed the project, including the rough drawing Respondent had with him, and advised Respondent at that time what permits and what licensing provisions must be fulfilled. At that time, solar heating and hot water systems did not require the license. However, the other work called for in this contract, such as the installation of the air conditioning system, would require a type of license which Respondent did not have. Germain and the Respondent had an extensive discussion on this. As it appeared to Mr. Germain, Respondent could not seem to understand why a license would be needed. A mechanical permit was issued on April 23, 1950, to Masters Heating and Air for a part of the system. A part did not include the entire installation permit. This permit applied for by Mr. Masters was acquired at the request of Don Johnson, the contractor, who pleaded with him to do so because, according to Mr. Johnson, the only way he could get final approval of the construction in order to get the elec- tricity turned on in the house was if this permit was applied for and issued. The permit in question was issued for something other than the duct work accomplished by Mr. Masters. Mr. Masters did not install the air conditioning equipment, only the ducting. The permit, if legitimate, would allow final approval of the installation of the entire air conditioning system. The information contained on the permit was provided to Mr. Masters by Respondent. According to Mr. Germain, Respondent never did get final approval of the building inspector on the total installation. The equipment was not initially accepted by the building department, since it was not a unitary unit-- in which all segments are designed to work together as a unit. However, even though the unit was rejected by the building authorities, they let the work continue based on a letter from the engineer who approved the purchase of the system, which indicated the engineer would be responsible for the working of the unit. In addition, the building officials allowed the work on Mr. Johnson's home to continue even after the discussions regarding the lack of a proper licensee because Respondent assured Mr. Germain of the building office that Mr. Masters, who was in fact a registered and licensed air conditioning contractor in St. Johns County, was going to do the work. Though the unit was basically installed in April 1980, it was not working property even up to July 3, 1980 It did not cool properly. At that point, Respondent contends he was still owed some money by Mr. Johnson. In November 1980, when it became obvious that the initially installed compressor was insufficient in size to cool a house the size of Mr. Johnson's, Respondent replaced the compressor, installing one a half ton larger than that initially installed. At that point, Don Johnson paid Respondent the sum of $800, which, according to Mr. Johnson, was the entire sum owed on the complete installation after deduction of the credit of $483 for the firebox which Mr. Johnson fabricated in lieu of that initially proposed by Respondent and which Respondent could not provide. After Respondent was paid the $800, he stopped responding to calls to service the cooling system and the heating system, even though neither worked properly at that time. Respondent admits that at some point in time he refused to continue servicing Mr. Johnson's unit and did not honor the warranty. He contends, however, that he stopped servicing because Mr. Johnson still owed him $453. The weight of the evidence indicates otherwise. Mr. Johnson ultimately hired another craftsman to repair his system, and the system was repaired without any further assistance by Respondent.
Recommendation That Respondent pay a fine of $1,000, and that Respondent's license be placed on probation for a period of two years.
The Issue 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 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. /
The Issue This matter concerns the issue of whether the Respondent's license as a heating and air conditioning contractor should be suspended, revoked or other disciplinary action taken as a result of allegedly contracting outside the scope of his license, willfully or deliberately violating a local building code by failing to pull a permit, and failing to affix his license number to a contract and making an untrue representation in the practice of contracting. Counsel for both Petitioner and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that such findings of fact are not adopted in this Recommend Order, they have been rejected as being irrelevant to the issue in this cause, or as not having been supported by the evidence.
Findings Of Fact At all times pertinent to the issues herein, the Respondent, Denver Sammons, was licensed by the State of Florida as a registered air conditioning contractor, Class B, and Respondent qualified Denny's Air Conditioning Service under his license. At the January 8, 1985 meeting of the Broward County Central Examining Board of Mechanical Technicians, (Board), the Board heard a complaint by Port Distributors, a local air conditioning supplier, to the effect that Mr. Sammons had submitted two checks to that company in August, 1982, both of which were returned for insufficient funds and that neither had been redeemed. The Board decided to notify the Respondent of the complaint against him and give him an opportunity to respond at the next regularly scheduled meeting of the Board which was held on March 12,1985. At that Board meeting, at which Respondent was present, Mr. Julius M. Farinhouse, Jr., representative of Port Distributors, outlined its complaint against the Respondent detailing the circumstances surrounding the issuance of the bad checks and the need by the recipient to secure a judgment against the Respondent for the amount represented by the checks. There was evidence presented to the Board that these checks issued to Port Distributors were not the only checks written by Respondent that were not properly and promptly honored. Respondent testified before the Board regarding the circumstances surrounding the issuance of the checks and contested the seriousness of the offense alleging that when notified of the bad checks, he had reimbursed Port Distributors for the majority of the sum covered by the two dishonored checks, but this repayment was applied toward current accounts rather than in satisfaction of the bad checks, contra to the intention of the Respondent. Having considered both the testimony presented by the complainants and the Respondent, the Board, that same date, March 12, 1985, nevertheless entered a Final Order finding that the passing of bad checks to Port Distributors by the Respondent constituted an act involving dishonesty, fraud, deceit, or lack of integrity in the operation of Respondent's contracting business; that he failed to make any effort to pay the outstanding bill owed to Port Distributors; and that this misconduct constituted a failure to comply with the standards of Section 9-7, Broward County Code. As a result, the Board ordered the Respondent's Broward County Certificate of Competency revoked that date. The Order of the Board made provision for Respondent to apply for reinstatement of his Certificate of Competency but no such application has ever been made. For several years prior to the issuing of the Certificate of Competency by Broward County, Respondent had, under the old procedure, held a Certificate of Competency issued by the City of Hollywood, Florida and had, each year, renewed that Certificate upon the payment of a $30.00 fee. The Certificate issued by the city was renewed effective January 1, 1985 and reflected on its face, that it was good until December 31, 1985. However, when the Broward County Board of Mechanical Technicians began to issue its county-wide Certificate of Competency, all prior city-issued certificates were declared to be null and void. As a result, though Respondent continued to hold his Hollywood certificate, it was ineffective and he should not have been allowed to renew it by the city, since he was, at that time, covered by a county Certificate of Competency. By action of the Board on March 12, 1985, Respondent's Board (County- wide) Certificate of Competency, which was the only valid certificate he held at the time, was revoked. Because of this revocation, Respondent was, thereafter, allowed to work as a journeyman for another Master Technician but could not contract in his own name or for his own business nor could he pull building permits from any county or city building office. Notwithstanding this, on or about August 12, 1985, Respondent entered into a contract acting as Denny's Air Conditioning, with Isabel Parra. This contract was to remove her old heating and cooling system in her residence at 2207 North 46th Avenue in Hollywood and to install a new unit to consist of a three ton gas furnace with air conditioning coil and condenser. Pursuant to the contract, Respondent did, in fact, remove the old unit and install a new one. However, he did not pull a building permit with the county or city building office and on August 26, 1985, officials of the City of Hollywood issued a Notice of Violation to Mrs. Parra reflecting that Denny's Air Conditioning installed a central air conditioning unit without permit and without possessing a valid contractor's license. Mrs. Parra further contended that when she turned on the unit, the noise it made was extremely loud and not to her satisfaction. Evidence introduced by both Petitioner and Respondent, however, indicates that the Respondent installed the new unit exactly as the old unit had been installed. Mrs. Parra testified that she had not heard the old unit in its heating mode and therefore had no idea whether it made as much noise as the new unit did. In any event, she withheld some of the funds that were due Respondent until such time as he agreed to have someone come out and correct the problem. It has been several months since the parties agreed to this and Respondent still has not corrected the problem. He contends that the contractor with whom he arranged to correct Ms. Parra's problem has been unable to get with her since she works during the days and is home only in the evenings. In any event, though not charged as a violation, it would appear that Respondent has failed to follow through on his work and on his commitment to complete an acceptable installation for Mrs. Parra. Petitioner also alleges that on or about June 25, 1985, the Broward County Consumer Protection Board issued a cease and desist order to Respondent for representing that he was qualified to perform contracting work in Broward County without possessing local competency. No evidence was introduced, however, to satisfy or establish this allegation. Because of the dispute between Mrs. Parra and the Respondent, and her dissatisfaction with the quality of his installation, she filed a complaint with the Board and on December 10, 1985, the Board again met and heard her testimony and that of Mr. Sammons. As a result, on December 20, 1985, the Board found that Respondent's contract with Mrs. Parra was based on a representation to her that he was a contractor when in fact the prior action of the Board had denied him this status. The Board further found that he failed to pull a permit for the installation of the unit in Ms. Parra's home and thereafter failed to comply with the warranty given to her under the contract executed by him on August 12, 1985, nor did he provide her with the rebate promised. Based on these Findings of Fact, the Board concluded that the Respondent willfully, deliberately, or negligently disregarded or violated the provisions of the South Florida Building Code; that he contracted to act as a qualifying agent for his business when he was not certified to do so; that he contracted and did work which was not within the description of the class (journeyman) for which he had been certified by the Board; and that he abandoned without legal excuse a construction project in which he was engaged and under contract to complete. As a result, the Board ordered that his journeyman's Certificate of Competency be revoked effective that day. Once the journeyman's certificate was taken away, Respondent was not authorized to act as an air conditioning installer or contractor under any circumstances. Notwithstanding this, on February 20, 1986, Respondent again, acting as Denny's Air Conditioning, entered into a contract with Dr. Eisenstein to install a new two-ton split system in the doctor's home in Hollywood for a total price of $2,530.00. Since Dr. Eisenstein had previously dealt with Respondent on several occasions and found him to be reliable, the doctor responded to Respondent's request for an advance by giving him a $2,000.00 deposit. The contract was not actually finalized until late in March, 1986 and work was to begin in early April. However, on April 1, 1986, Respondent called Dr. Eisenstein and advised him that his truck, in which was stored the equipment for installation into the doctor's home and the money bag which contained the balance of the doctor's downpayment had been illegally repossessed by Respondent's bank the night before. As a result, Mr. Sammons indicated he would not be able to begin the project but assured the doctor that someone else would do so starting at the end of the week. In fact, no work was ever started by the Respondent or anyone else on his behalf. After several days, when Dr. Eisenstein attempted to call Respondent, he found that Respondent's phone had been disconnected and when on April 5, 1986, the date promised by Respondent, no one came to begin work on the project, the doctor began undertook an investigation which led to the ultimate contact of the doctor by the Respondent. To reach Respondent, Dr. Eisenstein had checked with Respondent's business landlord and when Respondent finally called the doctor back, he was irate that the doctor had done so. During that conversation Dr. Eisenstein advised Respondent that he should either repay the money advanced or do the work. In fact, neither was done. During the month of April, 1986, Dr. Eisenstein sent Respondent two letters by certified mail requesting that he either refund the advance payment or do the work promised under the contract. One letter was returned undelivered. The other was apparently delivered. When neither letter resulted in any satisfaction, the doctor, in early June, 1986, sent a letter of complaint to DPR outlining the situation. Respondent tells an incredible tale regarding the facts and circumstances which led up to the dispute with Dr. Eisenstein. Admitting that he was somewhat in debt to his bank, he claims that certain payments that he made to the bank with part of the money advanced by the doctor was used improperly by the bank and applied toward other obligations rather than the debt on his truck. He claims the repossession of the truck was illegal and improper because, by the payment mentioned above, if properly applied, the truck would have been paid off. This story is almost a duplicate of that regarding the excuse for the bad checks to Port Distributors. Respondent further contends that that bank thereafter engaged in a conspiracy against him to bring about his financial ruin; that the bank hired several individuals to assault him and his wife outside their church; that he has received several threats of bodily harm from the bank; and that all of this has resulted in his filing suit against the bank in local court. This story was told by the Respondent under oath. However, Respondent failed to provide any names or documentation to support this with the exception of the name of the bank allegedly involved. When asked where copies of the documentation were that would support his allegations, he responded with, "Oh, they're at home in a file." In short, it would appear that Respondent's story is a gossamer of fantasy which, while possibly believed at this point by Respondent, has very little basis in fact. Respondent also contends, for example, that Dr. Eisenstein requested that he not pull a permit for the work to be done at his house because he did not want city officials for one reason or another to know that the work was being done. This information was not brought out through Dr. Eisenstein, but rather through the testimony of the Respondent. None of these stories were backed up by any document or supporting evidence. Consequently, it is found that while Respondent may well believe what he is saying, his are in fact, incredible. Respondent was disciplined on two separate occasions by the Broward County Central Examining Board of Mechanical Technicians and Respondent has not shown that these actions were procedurally violative of due process. Consequently, they are found to have occurred and to be valid. Respondent was not permitted to attack the circumstances leading up to the action by the board and the Hearing Officer declined to relitigate the factual propriety of the Board's two actions. Once having lost his Master Technician's license, Respondent was no longer authorized to pull building permits in Broward County and notwithstanding that, nonetheless did commence work for Mrs. Parra on a job which, under the ordinances of the county, required a permit be pulled. He also failed to live up to the terms of a warranty inherent in his contract with her. The evidence also established that subsequent to the withdrawal of his Journeyman's certificate, he nonetheless entered into a contract for the installation of a system in Dr. Eisenstein's house and accepted a substantial advance payment which he neither returned nor earned when he failed to begin any work on the project. In the opinion of the Petitioner's expert, Respondent's conduct in this instance was totally unprofessional and unethical. In fact, as a professional, if the circumstances occurred as alleged by Respondent, he should have made immediate arrangements to in some way make restitution of the funds to his client or have the work done by someone else. The evidence here shows that Respondent made no effort to make some accommodation to the client. He entered no promissory note (Respondent claims that as a gentleman, he has no need of notes as his word is sufficient); he made no attempt to let the client know what had happened; and in short, it appears that Respondent was out to make a quick buck (the expert's phrase) without attempting to in any way satisfy his client.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Respondent's license as a registered air conditioning contractor be revoked. RECOMMENDED this 5th day of August, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 5th day of August, 1987. COPIES FURNISHED: G. Vincent Soto, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Mr. Denver Sammons Post Office Box 7437 4614 Madison Street Hollywood, Florida 33021 Mr. Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Van B. Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
