Findings Of Fact Based on the evidence received at the final hearing, the following findings of fact are made. At all times material to this case, the Respondent, Steven Ary, was a licensed air conditioning contractor in the State of Florida, holding license number CA CO36888. On October 20, 1987, a company named Jenni Temp Refrigeration Company, Inc., entered into a contract with Lauderhill Mall, Lauderhill, Florida, to install three 3 1/2 ton air conditioning units for the sum of $7,875. Jenni Temp was to provide the three separate permits required by the City of Lauderhill, Florida, for the installation. Joseph Roturra, the owner of Jenni Temp Refrigeration Company, Inc., and Respondent had, prior to October 20, 1987, entered into negotiations whereby Respondent would become employed by Jenni Temp as its qualifying agent so that Jenni Temp could engage in air conditioning contracting. Those negotiations ended before any formal efforts were made to have Jenni Temp licensed with Respondent as the qualifying agent. In late 1987, before his negotiations with Jenni Temp broke down, Respondent signed three blank application forms for electrical and air conditioning permits. Respondent then gave the three signed application forms to Joseph Roturra. Respondent knew that neither Joseph Roturra nor his company was licensed for air conditioning work. Joseph Roturra completed the signed blank application forms he received from Respondent and made application with the City of Lauderhill, Florida, for the three permits required for the job at Lauderhill Mall. The name of the applicant on the applications as completed by Joseph Roturra was All Star Service, Inc. Respondent served as the qualifying agent for All Star Service, Inc. The City of Lauderhill did not issue the permits for which Roturra applied using the forms signed by Respondent because permits had been previously issued to another company for the same job. Jenni Temp completed the Lauderhill Mall job without the permits required by local law and without further assistance from Respondent. Respondent did not supervise the job at Lauderhill Mall. There was no final inspection of the work as required by local law.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding Respondent guilty of having violated Sections 489.129(1)(e) and (m), Florida Statutes and which imposes an administrative fine on Respondent in the amount of $500 for the violation of Section 489.129(1)(e), Florida Statutes. It is further recommended that there not be a separate fine for the violation of Section 489.129(1) (m), Florida Statutes, because the conduct that establishes that violation is the same conduct which constitutes the violation for which the administrative fine is recommended. DONE and ENTERED this 22nd day of May, 1989, in Tallahassee, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 1989. APPENDIX The findings of fact contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, l0, 13, 14, 15, 19 and 20 of Petitioner's proposed findings of fact are adopted in substance, insofar as material. The findings of fact contained in paragraphs 11, 12, 16, 17 and 18 of Petitioner's proposed findings of fact are immaterial. COPIES FURNISHED: Kenneth E Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0729 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0729 Steven Ary 1217 N. E 4th Street Pompano Beach, Florida 33306
Findings Of Fact At all times relevant hereto, respondent, Sam Pollack, held certified air-conditioning contractor license number CA-C008663 issued by petitioner, Department of Professional Regulation, Construction Industry Licensing Board (Board). He has been licensed by the Board for approximately sixteen years. Respondent used his license with and was qualifying agent for a firm known as Dr. Cool's Clinic, Inc. located at 10662 Southwest 186th Lane, Miami, Florida. Around April 1, 1986 Steven and Beverlee Swerdlen moved into a 1,400 square foot prefabricated modular home at 19800 Southwest 180th Avenue, Miami, Florida. The home is located in a large modular home subdivision known as Redland. Although a modular home resembles a mobile home in certain respects, it is considered to be a fixed, permanent residential dwelling under local building codes. The home had previously been a model unit in the subdivision and had never been lived in since being built at least three years earlier. On April 3, 1986 respondent entered into a contract with Steven Swerdlen to install a Rheem four-ton air conditioning unit at Swerdlen's home. The contract called for a total price of $2152.50. The Swerdlens paid for the job in full the same day by credit card. Because Swerdlen's home had the ductwork and twenty outlets already in place, Pollack was to adapt the unit to the existing ductwork. Respondent's firm was selected over other firms because Mrs. Swerdlen was impressed with Pollack's advertisement which represented that Pollack provided "air conditioning designed and serviced for people with allergies and other respiratory problems." This was important to her since she suffers a heart condition and requires air-conditioning during warm weather. She also accepted respondent's oral representations that he had the experience and expertise to satisfy her needs. The ductwork in the home was accessible through a small crawlspace located under the floor. There were also two vents under the floor to prevent a buildup of moisture. The flooring in the home was made of particle board and was sealed with a vapor barrier which was designed to protect it from moisture damage. When the Swerdlens purchased their home, the vapor barrier was already cracked in several places and, coupled with the fact that the area had only two vents, the floor was susceptible to moisture damage. Before a central air-conditioning unit is installed, a prudent and competent air-conditioning contractor should take measurements of the home, perform heat loss calculations and inspect the existing ductwork to insure that the proper size unit is being installed. The evidence is sharply conflicting as to what steps, if any, were undertaken by respondent when he visited the Swerdlen home on April 3 to discuss the job. It is found, however, that Pollack made a visual inspection of the home but did not take formal measurements or make heat loss calculations. He inspected the ductwork to the extent he looked under the house through the crawlspace opening. He noted a potential problem with the vapor barrier and a supply duct hookup location that was blocked by a pier (support). He mentioned to Mrs. Swerdlen that she needed additional ventilation windows underneath the home and that she had a potential moisture problem with the vapor barrier. However, he did not suggest that she wait and have those matters corrected before he installed the unit. The unit was installed on April 7, 1986, or four days after the contract was signed. Besides respondent and a helper, Mrs. Swerdlen was the only person present. No electricians were called in to assist on the job. According to Pollack, the only electrical work that he performed was the installation of the thermostat unit in the closet under the fuse box and the internal electrical connections to the unit. As to this latter work, Pollack stated he did not believe an electrical license was needed to connect the terminal wires to the air-conditioning unit. He did not obtain a building permit from the county nor did he request an inspection of his work. Both were required by county regulations. Because the supply duct hookup was blocked by a pier, Pollack was forced to place a three or four foot high supply duct in a bedroom closet. Without advising the Swerdlens as to the extent or nature of modifications needed to bypass the pier, Pollack cut a large, unsightly hole in the closet floor. It was also necessary to penetrate the vapor barrier when the hole was cut. The cut was never resealed. The new duct took up much of the closet space and was vulnerable to puncture damage. A photograph of the supply duct is found in petitioner's exhibit 14. After the work was completed, Pollack did not advise the Swerdlens that the vapor barrier had been broken or that it needed to be resealed to avoid moisture damage to their floor. The power source to the air-conditioning unit was a 10-gauge wire. Since the unit required a larger gauge, it was necessary that an 8-gauge wire be installed. Pollack and his helper left for one and one-half hours at lunch during the day of installation, and Pollack claims the wire was changed by someone during the time he was gone. The Swerdlens contended they knew nothing about electrical wiring and could not perform the task themselves. Their testimony is accepted as being more credible and it is found that Pollack, even though he was not licensed as an electrician, changed the electrical power source wiring. In addition, Pollack did all other electrical work required for the installation of the unit. In doing so, he made no provision for overload, left exposed wiring in the closet by the thermostat and failed to provide a service disconnection switch for the unit inside the home. Until these deficiencies were corrected several months later, the Swerdlens could smell a burning odor in their home. According to industry standards and local building code requirements, the unit should have been placed on a concrete slab. However, Pollack used two sets of concrete runners obtained from the unit manufacturer. He justified this on the ground that many other homes in the same subdivision did not have slabs under their units. Even so, this did not justify a deviation from code requirements. Because a slab was not used, the unit sank into the ground after the first rainfall. Pollack eventually installed a cement slab in November, 1986 after being ordered to do so by local building officials. The Swerdlens' floors began to buckle and ripple within a short time after the unit was installed. It began in the bathroom directly above the area where Pollack had penetrated the vapor barrier to install the supply duct and was exacerbated by the closure of one of the two vents under the floor when Pollack installed the unit. The damaged floor is memorialized in photographs received in evidence as petitioner's exhibit 14. Mrs. Swerdlen contacted respondent after the above problems began to occur. Other than adjusting the thermostat to get better cooling, Pollack did nothing since he did not think he was responsible for the other problems. He offered to make the other changes for additional compensation and if the Swerdlens would agree to release him from all liability. After declining Pollack's offer, Mrs. Swerdlen had other persons or companies make the needed repairs. Most of the costs were paid by her insurance company. She also contacted the Metropolitan Dade County Building and Zoning Department (Department) and the Board. The Department learned that no permit had been obtained by Pollack even though one was required and that no inspections had been made during and after the work. Pollack obtained an after-the-fact permit on November 24, 1986, after paying a double fee and a $100 violation fee for failing to timely obtain the permit. After being contacted by Mrs. Swerdlen, a Department mechanical inspector made an inspection of the Swerdlens' home on November 24, 1986. He found several violations of the local building code including (a) a failure to obtain a permit and have required inspections made, and (b) improper electrical work. A summons was issued against Pollack for these violations. The disposition of the summons is not of record. The inspector also noted that the vapor barrier around the closet supply duct had not been resealed, that the flooring was warped above the cut and that the unit was not on a concrete slab. Although the inspector suggested that Pollack correct these deficiencies, only the latter deficiency was corrected. The work never passed final inspection. The Board employed a Jacksonville residential contractor as its expert in this case. Although the expert did not personally inspect the property, he reviewed photographs of the site, respondent's deposition and the investigative file and spoke with the Swerdlens by telephone. According to the Board's expert, Pollack was guilty of gross negligence by performing work that exceeded the scope of his license, performing potentially hazardous electrical wiring, installing a non-efficient system in the Swerdlens' home, failing to follow accepted industry rules concerning static friction, velocities, noise levels and filtration, failing to properly inspect the home prior to installation, improperly installing the unit, damaging the vapor barrier, installing a large supply duct in the closet without obtaining the Swerdlens' approval and failing to use a cement slab to support a heavy unit. He further opined that respondent was deceitful by selling the system in the manner that he did, particularly since it was sold and installed within a four day period with no thought given to or preparation taken as to the problems that might be encountered. The expert agreed that the work was made more difficult by the position of the pier but stated that Pollack should have explained this problem to the Swerdlens and obtained their approval prior to cutting through their closet floor. Pollack has worked in the air-conditioning business for around 26 or 27 years, of which two were spent as a building inspector for Dade County in the late 1960s. He contended he warned Mrs. Swerdlen about the penetrated vapor barrier, the blocked air duct and the lack of a sufficient number of vents. Pollack also stated he advised Mrs. Swerdlen it was her responsibility to get an electrician to do all electrical work. However, these contentions are rejected as not being credible. Moreover, if there were special problems with the Swerdlens' home, it was respondent's responsibility to design and install a system that was compatible with those special needs. Pollack asserted that the Swerdlens' home was actually a mobile home, and he was under the impression that permits were not required for work on this type of home. However, this contention is irrelevant since Dade County has required permits for air conditioning work on both fixed and mobile homes for at least the last ten years.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsections 489.129(1)(d), (j), and (m), Florida Statutes (1985), that he pay a $3,000 civil fine within thirty days from date of a Final Order in this cause, and that his license be suspended for thirty days, or until the fine is paid if after the expiration of said thirty day period. DONE AND ORDERED this 3rd day of June, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 1988.
The Issue The issues are whether the existing and proposed provisions of Florida Administrative Code Rule 61G4-15.005, as identified in the next paragraph, are invalid exercises of delegated legislative authority.
Findings Of Fact Petitioner Gold Coast School of Construction, Inc. (Gold Coast), engages in the business of offering courses to individuals who seek to become certified or registered contractors in Florida. Gold Coast offers prelicensing courses for prospective general contractors, building contractors, residential contractors, Class A air conditioning contractors, Class B air conditioning contractors, Class C air conditioning contractors, and roofing contractors. Enrollment in these classes ranges from 200-600 students annually. For the trades in which Gold Coast offers prelicensing courses, Gold Coast is substantially affected by the proposed rule, which would substantially raise the net-worth requirements imposed on prospective contractors, reduce the number of persons who could qualify for certification, and reduce the number of persons who would enroll in Gold Coast's prelicensing courses. Petitioner Douglas L. Gamester (Gamester) has passed the Construction Industry Licensing Board (Respondent) examination for certification as a general contractor. After he filed his rule challenge, Respondent granted him a general contractor's certificate and approved his qualification of a business entity. Gamester is not substantially affected by the rule or proposed changes to the rule. Although Gamester may, in the future, attempt to obtain other contracting certificates in other trades, any finding of such plans at present would be based entirely on speculation. Florida Administrative Code Rule 61G4-15.005 provides: 61G4-15.005 Requirements for Certification and Registration. In order that the Board may carry out its statutory duty to investigate the financial responsibility, credit, and business reputation of a new applicant for certification or registration or a change of status of a certification or registration, an applicant shall be required to forward the following to the Department for a review by the Board: A credit report from any nationally recognized credit agency as defined in subsections 61G4-12.011(13) and (14), F.A.C. A financial statement, not older than 12 months, which shall contain information indicating the current assets, current liabilities, total assets, total liabilities, and total net worth, and which shall report all material financial changes occurring between the date of the financial statement and the date of the application. As a prerequisite to issuance of a certificate, an applicant shall, in addition to the submissions required in subsections and (2) above, submit competent, substantial evidence to the Florida Construction Industry Licensing Board demonstrating the following: Net worth as listed below for the following categories of contractors: General Contractor, $20,000; Building Contractor, $20,000; Residential Contractor, $20,000; Sheet Metal Contractor, $10,000; Roofing Contractor, $10,000; Class A Air Conditioning Contractor, $10,000; Class B Air Conditioning Contractor, $10,000; Class C Air Conditioning Contractor, $10,000; Mechanical Contractor, $10,000; Commercial Pool/Spa Contractor, $10,000; Residential Pool/Spa Contractor, $10,000; Swimming Pool/Spa Servicing Contractor, $2,500; Plumbing Contractor, $10,000; Underground Utility and Excavation Contractor, $10,000; Solar Contractor, $10,000; Residential Solar Water Heating Specialty Contractor, $2,500; Specialty Structure Contractor, $10,000; Pollutant Storage System Specialty Contractor, $10,000; Gypsum Drywall Specialty Contractor, $2,500; Gas Line Specialty Contractor, $10,000; or Glass and Glazing Specialty Contractor, $10,000. Possession of either a letter of credit or a compliance bond established to reimburse the appropriate parties for diversion of funds, abandonment, and all other statutory violations, said instruments to be issued in the same license classification to dollar ratio listed in paragraph (a), above. The aforementioned instruments are not to be construed as performance bonds. Net worth shall be defined to require a showing for all contractor licensure categories that the applicant has a minimum of 50 percent (%) of the amount in cash. Cash shall be defined to include a line of credit. On February 6, 2004, Respondent published in the Florida Administrative Weekly, Volume 30, Number 6, proposed changes to Florida Administrative Code 61G4-15.005(3)(a), so that the new net-worth requirements would be as follows (new language is underlined and old language is stricken): Net worth as listed below for the following categories of contractors: General Contractor, $80,000 20,000; 20,000; 10,000; 10,000; Building Contractor, $40,000 Residential Contractor, $20,000; Sheet Metal Contractor, $20,000 Roofing Contractor, $20,000 Class A Air Conditioning Contractor, $20,000 10,000; Class B Air Conditioning Contractor, $20,000 10,000; Class C Air Conditioning Contractor, $20,000 10,000; Mechanical Contractor, $20,000 10,000; Commercial Pool/Spa Contractor, $20,000 10,000; Residential Pool/Spa Contractor, $20,000 10,000; Swimming Pool/Spa Servicing Contractor, $10,000 2,500; Plumbing Contractor, $20,000 10,000; Underground Utility and Excavation Contractor, $20,000 10,000; Solar Contractor, $20,000 10,000; Residential Solar Water Heating Specialty Contractor, $5,000 2,500; Specialty Structure Contractor, $20,000; 10,000; Pollutant Storage System Specialty Contractor, $20,000; 10,000; Gypsum Drywall Specialty Contractor, $5,000; 2,500; Gas Line Specialty Contractor, $20,000 10,000; or [sic]. Section 489.105(3), Florida Statutes, divides contractors into Division I and Division II. Division I contractors are general, building, and residential contractors. Division II contractors are all other contractors. Section 489.105(3), Florida Statutes, defines Division I contractors as follows: "General contractor" means a contractor whose services are unlimited as to the type of work which he or she may do, who may contract for any activity requiring licensure under this part, and who may perform any work requiring licensure under this part, except as otherwise expressly provided in s. 489.113. "Building contractor" means a contractor whose services are limited to construction of commercial buildings and single-dwelling or multiple-dwelling residential buildings, which commercial or residential buildings do not exceed three stories in height, and accessory use structures in connection therewith or a contractor whose services are limited to remodeling, repair, or improvement of any size building if the services do not affect the structural members of the building. "Residential contractor" means a contractor whose services are limited to construction, remodeling, repair, or improvement of one-family, two-family, or three-family residences not exceeding two habitable stories above no more than one uninhabitable story and accessory use structures in connection therewith. In contrast to building and residential contractors, a general contractor is unlimited in the scope of work that he or she may under take, subject to Section 489.113(3), Florida Statutes, which requires a contractor to subcontract out electrical, mechanical, plumbing, roofing, sheet metal, swimming pool, and air conditioning work, unless the contractor is certified or registered in the particular trade. Building contractors may undertake work on residential or commercial structures not more than three stories high, and residential contractors may undertake work on limited residential structures not more than two stories high. Although Petitioners identify various small jobs that require a general contractor's certificate or registration, such as the construction of small communications towers, balcony repairs in parking garages, and door repairs in high-rise apartments, the record generally supports the finding that the scope of jobs undertaken by general contractors is more extensive than the scope of jobs undertaken by building contractors, and the scope of jobs undertaken by building contractors is more extensive than the scope of jobs undertaken by residential contractors. This case involves one of the requirements imposed on persons seeking to become certified as contractors in specific trades. Certification is distinct from registration. Section 489.105(7) and (8), Florida Statutes, defines "certificate" as a certificate of competency issued by Respondent and a "certified contractor" as a contractor who may practice anywhere in the state. Section 489.105(9) and (10), Florida Statutes, defines "registration" as registration with Respondent and a "registered contractor" as a contractor who may practice only in the local jurisdiction for which the registration is issued. Section 489.115(1), Florida Statutes, prohibits any person from engaging in the practice of contracting without first obtaining a certificate or registration in the appropriate trade. Section 489.115(5)(b) and (6), Florida Statutes, provides: (b) In addition to the affidavit of insurance, as a prerequisite to the initial issuance of a certificate, the applicant shall furnish a credit report from a nationally recognized credit agency that reflects the financial responsibility of the applicant and evidence of financial responsibility, credit, and business reputation of either himself or herself or the business organization he or she desires to qualify. The board shall adopt rules defining financial responsibility based upon the applicant's credit history, ability to be bonded, and any history of bankruptcy or assignment of receivers. Such rules shall specify the financial responsibility grounds on which the board may refuse to qualify an applicant for certification. * * * (6) An initial applicant shall, along with the application, and a certificateholder or registrant shall, upon requesting a change of status, submit to the board a credit report from a nationally recognized credit agency that reflects the financial responsibility of the applicant or certificateholder or registrant. The credit report required for the initial applicant shall be considered the minimum evidence necessary to satisfy the board that he or she is financially responsible to be certified, has the necessary credit and business reputation to engage in contracting in the state, and has the minimum financial stability necessary to avoid the problem of financial mismanagement or misconduct. The board shall, by rule, adopt guidelines for determination of financial stability Although testimony at the hearing suggested that "history of bankruptcy" meant an inability to generate sufficient cash flow to pay debts owed, it is more likely that a "history of bankruptcy" is a record of filing for bankruptcy. Like the appointment of a receiver, the filing of a petition for bankruptcy is an action that is easily detected, as opposed to the inability to pay debts as they matured or the existence of liabilities in excess of assets--either of which, for most natural persons, is difficult to determine, especially historically. The "credit report" mentioned in Section 489.115(5)(b), Florida Statutes, and the "credit report" mentioned in Section 489.115(6), Florida Statutes, is the same credit report. Florida Administrative Code Rule 61G4-12.011(11) and (12) defines the credit report as follows: A “credit report from a nationally recognized credit agency that reflects the financial responsibility of the applicant, certificateholder or registrant”, shall for the purposes of Section 489.115(6), F.S., mean a credit report that provides full, accurate, current, and complete information on the following items in a manner which allows the Board to determine the credit worthiness of the applicant: Payment history; Credit rating; Public filings in county, state and federal courts; Bankruptcies, business history, suits, liens, and judgments, all on a nationwide basis; Location of business, number of years in business; Social security numbers, if available, of all corporate officers, owners and partners, and all federal employer identification numbers, if available, held by the applicant or any business entity that he currently qualifies or is applying to qualify; and UCC filings. A “nationally recognized credit agency” shall mean a credit agency that: Obtains credit information both within and outside the State of Florida; Validates, updates, and maintains the accuracy of credit information obtained; and Obtains credit reports from at least two (2) credit bureaus. The statutory requirement of a credit report focuses upon an individual's creditworthiness, based on his or her use or abuse of credit and payment history. The closest that these statutes come to specifying net worth as a criterion of certification are the requirements of "financial. . . responsib[ility]" and "the minimum financial stability necessary to avoid the problem of financial mismanagement or misconduct," which is the cause of about 70 percent of all disciplinary proceedings against contractors. However, these statutory references guide Respondent in the authorized use of the credit report, which does not warrant the imposition of a net-worth requirement. First, the credit report lacks net-worth information. Second, the credit report presents a subject's financial history--most of which is of no use in establishing the subject's present net worth. In contrast to these provisions in Section 489.115(5)(b) and (6), Florida Statutes, Section 489.1195(1)(d), Florida Statutes, expressly authorizes Respondent to adopt rules imposing "net worth" and "cash” requirements on individuals seeking to qualify as financially responsible officers (FROs) for construction businesses. The Legislature clearly evidenced its ability to require net worth as a condition to certification as an FRO, which are not involved in this case, and obviously elected not to impose as onerous a requirement upon contractors themselves. Respondent determined the new net-worth requirements in the proposed rule by two means. Respondent had not changed the net-worth requirements for Division II contractors for 20 years, so Respondent estimated that the effects of inflation justified the increases set forth in the proposed rule. Respondent had raised the net-worth requirements for Division I contractors from $10,000 to $20,000 in 1998. Respondent derived the new net-worth requirements for general and building contractors based on estimates of weekly salaries for these respective contractors, not inflation. The present record contains no evidence of the rate of inflation during any relevant period of time, nor any evidence of average weekly salaries paid by Division I contractors. Nor does it appear that Respondent considered such data when determining the new net-worth requirements in the proposed rule.
The Issue The issue is whether Respondent violated Subsection 489.129(1)(q), Florida Statutes (2008),1 by allegedly failing to satisfy within a reasonable time the terms of a civil judgment relating to the practice of the licensee's profession.
Findings Of Fact Petitioner is the agency charged with regulating building contractors in Pinellas County, Florida. Respondent is a building contractor, pursuant to license number C-6811 (RB0042337).2 Respondent is the primary qualifying agent for Timberlore Construction, Inc. (Timberlore). The business address of Timberlore is 2142 B Palm Harbor Boulevard, Palm Harbor, Florida 34683. On February 14, 2002, Timberlore contracted with Cox Air Conditioning and Heating, Inc. (Cox), for the installation of an air-conditioning system at a construction site at 19636 Gulf Boulevard, Indian Shores, Florida 33785. A dispute arose between Timberlore, as the general contractor, and Cox, as the subcontractor. As a result of the dispute, Timberlore sued Cox for breach of contract and negligence and for attorney’s fees and costs. After a non-jury trial, the court entered two final judgments. The first final judgment, entered on December 4, 2008, was a determination of liability. The court found that Cox was not liable for the failure of the air-conditioning unit that Cox had installed. Rather, the court found that excessive humidity caused the failure of the air-conditioning unit and damage to the premises and that the condition was aggravated by Timberlore. The court found that Cox was the prevailing party entitled to attorney’s fees and costs from Timberlore. The second final judgment against Timberlore determined the amount of attorney’s fees and costs. The court ordered Timberlore to pay attorney’s fees of $80,775.00 and costs of $30,423.79 plus annual interest of eight percent. Timberlore repaired the damaged air-conditioning system at the construction site. There is no harm to the consumer. Respondent disputes whether attorney’s fees and costs awarded by a court in a dispute between a contractor and a subcontractor relate to the practice of the licensee's profession within the meaning of Subsection 489.129(1)(q). The only evidence relevant to this issue was the testimony of Petitioner's witness.3 The fact-finder finds the testimony of Petitioner's witness after cross-examination to be credible and persuasive and agrees that the judgment for attorney’s fees and costs, under the facts and circumstances in this case, relates to the practice of the licensee's profession. Respondent has failed to satisfy a civil judgment obtained against the business organization qualified by the licensee within a reasonable time in violation of Subsection 489.129(1)(q).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Pinellas County Construction Licensing Board enter a final order finding Paul W. Bourdon guilty of violating Subsection 489.129(1)(q) and suspending Paul W. Bourdon's license until the judgment is satisfied. DONE AND ENTERED this 27th day of April, 2010, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 27th day of April, 2010.
The Issue The issue for consideration in this case is whether Respondent's license as a real estate salesperson in Florida should be disciplined because of the matters set forth in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, Petitioner, Division of Real Estate, was the agency in Florida responsible for the regulation of the real estate profession and the licensing of real estate professionals within this state. Respondent was licensed as a real estate sales person and employed as such in association with Today Real Estate, Inc., a real estate corporation trading as Re/Max Today, located at 2451-1 McMullen Booth Road in Clearwater, Florida. On July 16, 1997, James E. Brown and his wife submitted an offer to purchase a house located at 9813 Palmer Drive in New Port Richey. The offer was submitted by the Browns through their real estate agent, Nancy Riley, to the sellers who were represented by Respondent. As a part of the sales package, a home inspection report was completed on July 21, 1997, which indicated that the "air conditioning does not appear to be cooling enough." Thereafter, Respondent contacted Alvarez/Taylor, a plumbing and air conditioning company, to examine the unit and a representative of that company, William Taylor, went to the property on July 25, 1997, to inspect the unit. When he arrived, he found no one there and the house locked. He contacted his dispatcher who advised him to wait, and within a few minutes, Ms. Riley showed up. She let him in the house to do the inspection. The unit was low on freon, but the big problem with the unit that Taylor found was that it was old -- about 13 years old -- and at that age, he contends, units usually lose freon. He made an oral report to Ms. Riley who authorized him in writing to do whatever work was necessary on the unit to get it working properly. He installed the freon but that did not completely correct the problem. He advised Ms. Riley that he felt the unit should be replaced because of its age. She did not seem concerned about it, but she did not authorize the repairman to replace it. When he had done what he could do, short of replacing the unit, she again signed the work order, indicating the work had been done, and he gave her the pink copy of the form. This form showed his recommendation that the unit be replaced. According to Respondent, Ms. Riley called her after the air conditioner repairman had been at the house. She said the unit was working but was an older unit and somewhere down the line would have to be replaced. Respondent also claims that Ms. Riley told her she, Ms. Riley, had called Mrs. Brown and read her the report, and the Browns "were OK with it." Respondent did not see the repairman's report until July 28, 1997. At that time, she verified the repair charge of $140.00, and when she saw the recommendation for replacement on the form, she was upset by it. Respondent claims she had not been told by Ms. Riley that there was a recommendation for replacement, and she wanted to investigate the matter. She called Ms. Riley and left a message that she wanted to talk about it, and, on the recommendation of her own air conditioning repair firm, also called Alvarez/Taylor to ask for details on the recommendation for replacement. The repairman was not available, and she was unable to speak with anyone who was aware of the problem. All she was told was that the unit was old, would need constant repair, and should be replaced. When she asked to speak with the owner, he refused to speak with her. After several unsuccessful attempts to get information from Alvarez/Taylor, still on July 28, 1997, Respondent called Ms. Riley again and was told, she claims, that the situation was not so bad and the replacement recommendation was not immediate; that the Browns knew of the situation and were OK with it; and that the Browns hoped to get another year use out of the existing unit. Respondent claims she told Ms. Riley at that time she intended to remove the recommendation for replacement from the inspection report if she didn't hear back from Alvarez/Taylor, and that Ms. Riley agreed. Ms. Riley disputes this. Thereafter, she removed the recommendation for replacement from the inspection report, and on July 30, 1997, at the closing, Respondent gave the buyers an altered copy of the report of the air conditioning repairman. On this copy, the notation in the place reserved for recommendations that the unit was 13 years old and should be replaced was not present. The closing went forward and was consummated, and the Browns were given a copy of the altered inspection report. Almost a month later, on August 26, 1997, after the closing, Alvarez/Taylor furnished the Browns with a copy of the inspection report dated July 25, 1997 which reflected, in the space reserved for recommendations, that the unit should be replaced. The unit failed, and on September 3, 1997, Alvarez/Taylor replaced the unit due to its age and condition. The replacement cost the Browns $2,315.00. When the Browns started to look into the matter, and enlisted the aid of their agent, Ms. Riley, they also contacted Respondent who told them that she had altered the inspection report because she believed she had the authority to do that as a realtor. Respondent claims she was not trying to hide anything by altering the inspection report, nor was she trying to limit the Browns "or their representatives" access to the unit. She further contends she did not intend for anyone to reply on the altered inspection report. She says she believed everyone who needed to know, Ms. Riley and the Browns, were aware of the actual recommendation for replacement, and she was merely trying to correct the situation since she could not get what she considered to be appropriate information from Alvarez/Taylor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Real Estate Commission enter a final order finding Respondent, Margaret L. Page, guilty of concealment and breach of trust, imposing a suspension of her license as a real estate salesperson for six months under such terms and conditions as the Commission deems appropriate, and imposing an administrative fine of $500.00. DONE AND ENTERED this 29th day of September, 1999, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 1999. COPIES FURNISHED: Ghunise Coaxum, Esquire Division of Real Estate Department of Business and Professional Development 400 West Robinson Street Suite N-308 Orlando, Florida 32801 David C. Levenreich, Esquire 406 South Prospect Avenue Clearwater, Florida 33756 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Herbert S. Fecker, Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
Findings Of Fact Petitioner Scott Eric Baker ("Petitioner"), took the Certified Air Conditioning Class A Contractor examination in June 1991. The examination consists of two parts, Part One on business and financial management, and Part Two on actual air conditioning system mechanics. The Petitioner informally challenged the scoring of certain questions and received additional points but his total score of 68% was below the minimum passing score of 69.01%. Part One, Question 6 of the June 1991 directs the applicant to estimate the cost of refrigeration piping and related hardware shown in a related schematic. The schematic illustrates proposed refrigerant piping between a 15 ton air-cooled condensing unit and an air handler unit. Pipe joint connections are identified by standard symbols. The question states as follows: Refer to the Refrigeration System shown in Figure 1. Estimate the cost of the Refrigeration Piping. Add 6% Florida State Sales Tax to the total cost. The multiple choice list of possible answers to the question are: Less than $500.00. (B) Between $500.00 and $600.00 (C) Between $600.01 and $700.00 (D) More than $700.00 The pipe joint segments identified by the symbols on the schematic are 90-degree elbow joints. Elbow joints can connect pipe segments which have different elevations. Elbow joints can also be connected to construct a "swing joint" which provides for pipe alignment. Swing joints do not change the elevation between the pipe segments connected at the joint. According to the schematic, the first pipe segments, (two feet two inch pipes), run from the air-cooled condensing unit to a joint. The schematic does not identify the elevation of the air-cooled condensing unit or of the first pipe segments. The second pipe segments lie at an elevation of 104 feet 4 inches and connect via a pipe joint to the third pipe segments, which lie at an elevation of 104 feet 0 inches. The third segments connect via a pipe joint to the fourth pipe segments which are at an elevation of 103 feet 8 inches. The fourth segments connect to the pipe segments leading from the air handling unit (AHU 1). The correct answer to Question 6 is (B). The total cost for piping and hardware shown on the schematic is approximately $557. There are 83.3333 lineal feet of 1 and 3/8 inch diameter pipe at $3.96 per lineal foot, totaling about $330.00. There are 75.7527 lineal feet of 7/8 inch diameter pipe at $2.35 per lineal foot, totaling about $178.02. There are fourteen 90-degree elbows, (seven 1 and 3/8 inch elbows at 1.71 each and seven 7/8 inch elbows at .79 each) totaling 17.50. The total of materials is 525.52. Inclusion of the 6% tax results in an estimated cost of $557.05. Because there was no elevation shown for the first pipe segment between the condenser unit and the pipe joint, the Petitioner assumed that the pipe joint symbol indicated an elevation change and that the condenser unit could be located substantially above or below the identified 104 feet 0 inches elevation of the second segment. Accordingly, his answer to Question 6 was "(D) More than $700.00." The Petitioner's answer is based, not on the information provided in the schematic, but on unreasonable assumptions as to the condenser unit location, and is incorrect.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Professional Regulation, Construction Industry Licensing Board, enter a Final Order dismissing Scott Eric Baker's challenge to the grading of his responses to the June 1991 examination for licensure as a Certified Air Conditioning Class A Contractor. DONE and RECOMMENDED this 29th day of April, 1992, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1992. APPENDIX TO RECOMMENDED ORDER The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 4. Rejected, unnecessary. 10-14. Rejected, recitation of testimony. Respondent The Respondent did not file a proposed recommended order. Copies furnished to: Daniel O'Brien, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32202 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Scott Eric Baker 13438 Caribbean Boulevard Fort Myers, Florida 33095 Vytas J. Urba, Esq. Assistant General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
Findings Of Fact At all times material hereto, the Respondent, Thomas W. Hunter, was a certified Class B Air Conditioning contractor, having been issued license number CA C014646, by the State of Florida. At all times material hereto, Derrell Baugh (D. Baugh) was an electrical contractor having been issued a license by the State of Florida. D. Baugh has not had an air conditioning license for Lake County, but has held a City of Eustis air conditioning license for some 15 years. Gregory Duane Baugh (G. Baugh) is the son of D. Baugh. G. Baugh has not been licensed by the State of Florida. The Respondent has been doing business as Hunter Air. The Respondent has never qualified Baugh's Electric, and D. Baugh has never qualified Hunter Air. In approximately 1976, D. Baugh and his son G. Baugh, and the Respondent were partners in the business of Baugh's Electric. There was no written partnership agreement, only a handshake partnership. The Respondent did the air conditioning and refrigeration work, and D. Baugh and G. Baugh did the electrical work. All three of them shared in the profits. If a job involved electrical and air conditioning work, the partner who had already contracted for the job would encourage the main contractor to use the other partner. When the Respondent and D. Baugh were working on the same job, if one partner was behind in his work, the employees of one would assist the one who was behind to complete his work. Further, when working on the same job, and when authorized by the Respondent, D. Baugh would sometimes pull air conditioning permits for the Respondent. This partnership arrangement ended in 1980 or 1982. After the dissolution of the partnership, the Respondent continued to have access to the checking accounts, and charge accounts with wholesalers, of Baugh's Electric. The Respondent can write checks on the account and charge items with wholesalers. Even after the partnership dissolved, Baugh's electric continued to use the business cards of the partnership, which included the Respondent's name. The business part of Baugh's Electric, bookwork and the writing of proposals, is handled by G. Baugh. The field work and troubleshooting is handled by D. Baugh. On June 30, 1985, G. Baugh prepared an electrical and air conditioning proposal for Gary Wyckoff (Wyckoff) on a spec house being constructed by Wyckoff. The proposal was on proposal paper for the business of Baugh's electric and showed the electrical contractor as G. Baugh, the air conditioning contractor as the Respondent, and a breakdown of the cost for each type of work. The total cost for the work, per the proposal, was $4,170. Baugh's Electric had performed other work for Wyckoff, but had not always submitted a written proposal. G. Baugh believed that the Lake County Building Department saw no problem with either the proposals of Baugh's Electric, or with the Respondent being on the proposal sheet of Baugh's Electric, as long as it was specified who was going to do what. G. Baugh has written at least six proposals in this manner. The proposal for the Wyckoff job was written as it was because the Respondent had no proposal paper of his own and it was convenient. Before the Wyckoff job, D. Baugh had a discussion with the Lake County Construction License Investigator, Mary Pasak (Pasak), concerning himself and the Respondent working together. D. Baugh was informed that there was nothing wrong with them working together as long as the Respondent did the air conditioning work and obtained the air conditioning permits, and D. Baugh did the electrical work and obtained the electrical permits. The Respondent testified that he saw nothing wrong with putting multiple proposals from different contractors with different types of licenses on one proposal sheet because he had been employed with companies which engaged in this practice. He testified that he saw nothing wrong with putting his proposal for air conditioning on the same proposal sheet with Baugh's Electric which was to do the electrical work, because everyone who was working on a project, including the Wyckoff job, was made aware of who was doing what. D. Baugh pulled the electrical permit for the Wyckoff job. As part of the air conditioning work, duct work had to be done. To complete the duct work G. Baugh contacted a duct man, James Edwards (Edwards), whom Baugh's Electric had used on several other jobs in the City of Eustis area, because the Respondent was unable to start the job. Edwards knew that he was performing the work under the Respondent's license because he had been informed years ago, during the partnership, that among the partners the Respondent had the air conditioning license. However, Edwards informed the Lake County Building Inspector that he was employed by D. Baugh on the Wyckoff job. Edwards had neither seen nor had any contact with the Respondent. On all the jobs that Edwards had done duct work on for Baugh's Electric, either D. Baugh or G. Baugh had made the contact with him, given him the okay to do the duct work, or paid him. Edwards completed the duct work, and was paid by Baugh's Electric. The Respondent reimbursed Baugh's Electric. No permit to perform the air conditioning work, including the duct work, had been pulled before Edwards started and completed the duct work. Edwards believed that D. Baugh had taken care of the mechanical permit for the air conditioning work. Wyckoff also believed that the mechanical permit had been pulled. Wyckoff knew that the Respondent had the license to perform the air conditioning work, although he had only seen the Respondent twice. Their contact was usually by telephone. The Respondent pulled the mechanical permit for the Wyckoff job after Edwards had completed the duct work. Because the Respondent pulled the permit after the work had begun, he had to pay the Lake County Building Department a double fee for this permit. The Respondent pulled the mechanical permit as a favor to Baugh's Electric. The Respondent did not know that the duct work for the air conditioning job had begun. He knew he was to perform some air conditioning work for Wyckoff on a house, but he did not know which house it was, or where it was located. The Respondent completed the air conditioning work, and on August 21, 1985, submitted to Wyckoff an invoice in the amount of $2,200 for the work. Even though the invoice was on the letterhead of the Respondent's company, Hunter Air, the invoice was filled out by G. Baugh. Wyckoff paid the Respondent for the air conditioning work.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Thomas W. Hunter, be found guilty as charged, and that he be assessed an administrative fine in the amount of $1,000. THIS RECOMMENDED ORDER entered on this 24th day of September, 1986 in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 24th day of September, 1986. COPIES FURNISHED: Errol H. Powell, Esquire 130 North Monroe Street Tallahassee, Florida 32301 Thomas W. Hunter 502 Citrus Avenue Eustis, Florida 32726 Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings S. Benton, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Fred Seely Executive Director Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201
Findings Of Fact Stephen G. Blume, the Respondent, is a state certified Class A contractor under Chapter 489, Florida Statutes. He holds license number CA C009753, and he is the qualifying agent for BCH Mechanical, Inc. (BCH), a Florida corporation, in which Blume is the principle stockholder. BCH is a mechanical contractor and concentrates its efforts in commercial construction work, particularly in shopping center construction. BCH subcontracts from owners or general contractors for the installation of heating, ventilating, and air conditioning for individual establishments within shopping malls. Prior to February 18, 1983, the Respondent contracted with a general contractor for the Respondent to provide heating, ventilation, and air conditioning equipment to approximately 15 stores in the Aventura Mall in Dade County, Florida. The work was of a nature for which the Respondent and BCH were qualified to perform under Chapter 489, Florida Statutes. On February 18, 1983, the Respondent and his company contracted with Richard E. Hahn, doing business as Temp-Rite Air Conditioning and Refrigeration, Inc., to install air conditioning systems in spaces 128, 163, 645, and 677 at the Aventura Mall. See attachment to Respondent's Exhibit 1, and paragraph 3 of the administrative complaint. On February 23, 1983, the Respondent obtained building and mechanical permits to perform heating, ventilation, and air conditioning work on spaces 163, 645, 677, and 128 at the Aventura Mall. See Petitioner's Exhibit 1. The Respondent did not attempt to list the permits in the name of Hahn at the time of application or subsequently. Richard Hahn did not have a certificate of competency to do air conditioning construction work, and was not qualified in Dade County to obtain a permit to do that work himself. He also was not licensed by the Construction Industry Licensing Board to perform this work. The Respondent selected Hahn by the following process. When he got to the mall, he contacted Robert Shaw Controls, the company that was doing work on the concourse air conditioning systems at the mall. Employees of Robert Shaw told the Respondent of three pipe fitting companies that were then doing work at the mall. All three gave the Respondent bids, and Respondent selected Hahn's company as low bidder. There is no evidence that Blume was a friend of Hahn prior to this contract. Respondent's company specializes in installation of air conditioning systems in shops in commercial malls. Respondent's company employs 30 to 40 people. Most of this is handled by his own employees, without subcontracts. Thus, for most of his work, there is no need for a licensed subcontractor. At the Aventura Mall project, the Respondent determined that he needed to hire a subcontractor affiliated with the pipefitters union for the work on first floor shops. The Respondent did not have a bargaining agreement with the pipefitters union, and thus could not call the Dade County pipefitters' hiring hall to hire a pipefitter as a temporary employee. Instead, Respondent had to subcontract the work to a pipe fitter union member. Respondent determined that he needed pipefitter union affiliation because that union was quite strong in Dade County, and use of nonunion members might have caused labor unrest at the mall work site. It was not to the economic advantage of the Respondent to subcontract the work to Hahn. It would have been more profitable to the Respondent to have followed his usual business practice of doing the air conditioning pipe fitting work using his own nonunion pipefitter employees. The Respondent asked Hahn if he was a licensed contractor for his work, whether he was a union pipe fitter, and whether he carried worker's compensation coverage. The Respondent was told by Hahn that he had a license, that he was a journeyman union pipe fitter, and that he did carry worker's compensation coverage. Following his past practice, the Respondent asked Hahn only for proof of his worker's compensation coverage. The Respondent did nothing to attempt to verify the truth of Hahn's assertion that he was a licensed contractor. The Respondent could have verified the existence of Hahn's license by either asking Hahn to show him his license card or by telephoning the license record officer in Dade County and asking that agency to verify Hahn's license. The Respondent did not do either of these things both of which were relatively easy to do. The Respondent had memorized his own contract license number. William Lessaris was employed by the Respondent and BCH Mechanical, Inc., to provide daily supervision of the project. Lessaris was at the job site daily. Other BCH employees were also on the job site. John D. Arition is Mechanical and Building Inspector and Plans Processor for far the Building and Zoning Department of Dade County, Florida. Arition was called by Lessaris to come to the job site to perform the air conditioning inspection. Arition did not tell BCH Mechanical, Inc., when he would arrive. When Arition arrived on the job site, Hahn was there. Arition asked Hahn for his license to do the work. Hahn told Arition that he did not have a license. Arition ordered Hahn to cease work. Hanh picked up his tools and left the job site. Arition then talked with Lessaris and told him about the problem with Hahn. The work was completed satisfactorily, without defects. Subsequently, Hahn was administratively charged with violating various provisions of Dade County construction law, was found to have committed six violations, was fined a total of $2,700 and had his personal certificate of competency suspended for one year. Blume was asked to appear at the hearing, but could not due to prior scheduled work. There is no evidence that Blume was given adequate notice of the date of the hearing, and it appears that he was given only short notice of the precise date. Blume was not subpoened to appear, and was not at fault in failing to appear. Blume voluntarily supplied Dade County with all documentary evidence requested.
Recommendation In consideration of the foregoing, it is recommended that the Petitioner enter a final order finding no violations as alleged, and dismissing the administrative complaint. DONE and ORDERED this 29th day of March, 1985, in Tallahassee, Florida. WILLIAM C. SHERRILL, JR. 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 29th day of March, 1985. COPIES FURNISHED: Mr. Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 H. Reynolds Sampson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 William Sizemore, Esquire Suite 838, Plaza On The Mall 201 East Kennedy Boulevard Tampa, Florida 33602 Salvatore Carprino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issues are (1) whether engaging in air conditioning contracting regulated by the Florida Electrical Contractors Licensing Board pursuant to Section 489.500 et seq. Part II, Florida Statutes, constitutes exceeding the scope of one's license as an electrical contractor, (2) whether performing air conditioning contracting in the name of "Dixon's Heating and Air Conditioning" constitutes operating in a name other than the name his electrical contracting license is issued in, contrary to Subsection 489.533(1)(l), and (3) whether Respondent willfully violated the building codes by venting the heater improperly, failing to get a permit and get work inspected.
Findings Of Fact Notice of hearing was given to Respondent at Route 2, Box 595, Yulee, Florida 32097. Arnold Dixon is and has been at all times material to this case a registered electrical contractor, license number ER0004417. (Pet. Ex. 1 & 2) He has maintained his address of record as Route 2, Box 595, Yulee, Florida 32097. (T-Pg. 6) He has held such license since 1976. (Pet. Ex. 1 & 2) Arnold Dixon does not hold a license, a state registration or certification to engage in contracting as a heating or air conditioning contractor. (Pet. Ex. 4 & 6) Arnold Dixon does hold a Nassau County Occupational License as an electrical contractor and as a heating and air conditioning contractor. No check of local records was conducted to see if he had a local license as an air conditioning contractor. (T-Pg. 22) On or about June 1985, the Respondent's company, Dixon's Heating and Air Conditioning, contracted to install an air conditioning and heating unit at the home of John Williams for a contract price of $1985. (Pet. Ex. 5 and T-Pgs. 10 & 11) The work on this contract was done by David Everett, who negotiated the contract. The Respondent's company, Dixon's Heating and Air Conditioning, did not obtain a permit to perform the work at the Williams' residence. Inspections on the Williams' job were not called for by Dixon's Heating and Air Conditioning. Permits and inspections were required by the applicable building code. (T-Pgs. 25 & 26) Entering into a contract to perform air conditioning and heating work and performing such work is air conditioning contracting, which is regulated under Part I, Chapter 489, Florida Statutes. After installation by Dixon's Hearing and Air Conditioning, the Williams' heating system generated carbon monoxide when operating because there was insufficient fresh air being provided to the unit. Because the air intake was in a closet which restricted the air supply to the hot air handling system, the air handling unit sucked fumes from the exhaust side of the unit back through the unit's combustion chamber and circulated it through the house. The longer the unit ran, the more debris was trapped in the louvered door of the closet and the more combustion gases were pulled through the combustion chamber and distributed through the house by the air handling unit. (T-Pg. 34) According to the manufacturer's representative, the hot air return is required to be ducted into the unit. In this case, the return air was pulled from inside a closet which had louvered doors. No duct was used and this installation was not in accordance with the manufacturer's instructions. Although the unit as installed was unsafe and had the potential to kill, no evidence was received that failure to install the unit in accordance with the manufacturer's instructions was a violation of local building code. (T-Pgs. 34- 38) Dixon's Heating and Air Conditioning did not hold itself out to be and was not engaged in electrical contracting in fulfilling the Williams' contract. Dixon's Heating and Air Conditioning did hold itself out to be an air conditioning contractor and the work performed in fulfilling the Williams' contract was air conditioning contracting.
