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 posed for decision herein is whether or not disciplinary action should be taken against Respondent, or his license to practice contracting based on the Complaint allegations filed herein which allege that he has diverted funds from a construction project in violation of Chapter 489.129(1)(h), and has violated Chapter 489.129(1)(i), Florida Statutes (1979), based on a suspension of his Certificate of Competency by the Collier County (Florida) Contractors' Licensing Board.
Findings Of Fact Based upon my observations of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found. By its Administrative Complaint filed herein on or about April, 1981, the Petitioner, Department of Professional Regulation, herein sometimes referred to as the Department or Petitioner, seeks to take disciplinary action against the Respondent as licensee and against his license as a registered General Contractor based on conduct which will be set forth hereinafter in detail. Respondent is a Registered General Contractor who has been issued License No. RG0014840. According to Petitioner's records, Respondent's last known address is Route 2, Box 1017, Bonita Springs, Florida. However, evidence in the pleadings file revealed that the Respondent's present mailing address is Route 2, Box 231, Hannibal, New York. Respondent was first licensed as a Registered General Contractor in November of 1973 as an individual. His license is now delinquent as he did not renew it on the date of its expiration, June 30, 1979. 2/ During March of 1980, Respondent requested Claudia Blanche Klug of Dolphin Air Conditioning and Supplies (Dolphin) to rough-in air conditioning duct work in a home which Respondent had contracted to construct for Mr. Ray J. Hill or Naples, Florida. The rough-in services were provided by Dolphin which services were paid for by a check dated May 1, 1980, in the amount of $901.20. The check was returned for insufficient funds. (Petitioner's Exhibit No. 4.) Ray J. Hill, as stated, is a resident of Naples who entered a contract with Respondent for the construction of a residential home. To pay for the construction of the residence, Mr. Hill established a draw schedule to pay Respondent as construction progressed from proceeds from a construction loan obtained from Naples Federal Savings and Loan Association. According to Hill, Dolphin was to be paid by Respondent from monies obtained (by Respondent) from the construction loan. Respondent made the last construction draw from Naples Federal on or about April 15, 1980, whereas Dolphin completed its rough-in- work during March of 1980. Mr. Hill filed a complaint with the Collier County Contractors' Licensing Board which resulted in a suspension of Respondent's Collier County Certificate of Competency based on a violation (by Respondent) of five (5) local ordinances. (See Petitioner's Exhibit No. 2.) Petitioner has reviewed the action taken by Collier County respecting its suspension of Respondent's Certificate of Competency. Respondent did not appear nor was a representative on his behalf present at the hearing herein to either offer evidence or rebut the allegations contained in the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Petitioner suspend Respondent's license to practice as a Registered General Contractor (License No. RG0014840) for a period of two (2) years. RECOMMENDED this 5th day of March, 1982, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 1982.
The Issue The issue addressed in this proceeding is whether Respondent's license should be disciplined pursuant to Chapter 489, Florida Statues. At the hearing, Petitioner presented five witnesses and offered five exhibits into evidence. Respondent did not appear at the hearing held on March 26, 1990. However, after the March 26 hearing, Respondent informed the hearing officer that he did not receive adequate notice of the hearing. Based on Respondent's representations the hearing was re-opened to allow Respondent to present evidence on his behalf. The re-opened hearing was held on June 15, 1990. All parties were present. Respondent testified in his own behalf. Respondent did not offer any exhibits into evidence. Petitioner filed a Proposed Recommended Order on June 15, 1990. Respondent did not file a Proposed Recommended Order. The Petitioner's proposed findings of fact have been considered and utilized in the preparation of this Recommended Order except where such proposals were not supported by the weight of the evidence or were immaterial, cumulative or subordinate. Specific rulings on the Petitioner's proposed findings of fact are contained in the appendix to this Recommended Order.
Findings Of Fact Sometime around July, 1987, Respondent inquired of Leon County, Florida, officials on the requirements for obtaining a heating and air- conditioning contractor's license. At that time, Respondent was advised that he would have to take an exam for the license and was given the necessary application forms. Respondent never took the examination. However, on September 28, 1987, a new employee in the County's Office responsible for issuing such licenses erroneously issued Respondent a heating and air-conditioning contractor's license. The employee's error was caught around May, 1988. Respondent was notified of the error and the invalidity of his license by letter dated May 3, 1988. Respondent, on two separate occasions, was also verbally notified of the invalidity of his license by two other employees of the County's Building Department. After the County had erroneously issued the Respondent his license and after he was notified that the license had been issued in error and was invalid, Respondent, by application dated September 1, 1988, applied for state-wide registration based on his County licensure. The erroneous letter of licensure from the county was attached to the application. Respondent claimed that he attached the county's letter of licensure to his application on the advice of an unknown employee of the Board in its Jacksonville office. However, Respondent did not present any evidence corroborating his hearsay testimony regarding his telephone conversation on this matter. Without such corroboration such evidence is unreliable and cannot formulate the basis of a factual finding that such a conversation took place and or the content of that conversation. The reason Respondent attempted to obtain his state licensure was that by the time he was notified of the county's error he had incurred about $30,000 worth of debt to his business suppliers. Additionally, Respondent's business had financed his wife's business and supported their four children. Respondent did not believe he was in a position to simply go out of business. Respondent's priorities were simply different than those of the State. He did not perceive that his actions were wrong since he had been doing air conditioning and heating work for the past 15 years and was otherwise qualified to engage in the contracting business. State registration may be obtained from the Board once a local government issues a license to an individual. On September 22, 1988, based on Respondent's representation that he held a valid County heating and air-conditioning contractor's license, the Board issued Respondent a state license, License #RA0057606. After issuance of the license, the Board was notified by the City that Respondent did not have a valid license. Based on that information, the Board, through its investigator, contacted the Respondent on several occasions in order to rectify the situation. During several of these contacts, Respondent admitted that he knew his County and State licenses were invalid. The best evidence of Respondent's knowledge was that he signed a cease and desist order stating that he would no longer conduct a heating and air-conditioning contracting business until such time as he was lawfully licensed. Respondent continued to engage in the heating and air-conditioning business. Respondent, also, plead to criminal changes of perjury and conducting a business without a license as a result of the above facts. On November 2, 1988, the board issued an emergency suspension of Respondent's license based upon the foregoing facts. The evidence was clear that Respondent was given several opportunities to obtain both his County and State licenses. However, for unknown reasons, Respondent failed to follow up on any of these opportunities even though he had indicated to the respective officials that he would take such a course of action. On these facts, there is no question that Respondent's license should be revoked since it was issued based on an invalid County license. Further, there is no question that Respondent knew his County license was invalid and misrepresented that material fact to Petitioner. The County license is a mandatory precondition to the issuance of the state license. Given Respondent's willful misrepresentation in conjunction with the business position he was placed in due to the County's error, Respondent should be assessed a fine of $1,000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Board should enter a Final Order revoking Respondent's heating and air-conditioning license and imposing an administrative fine in the amount of $1,000. DONE and ENTERED this 27th day of June, 1990, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 27th day of June, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-0494 The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, and 9 of Petitioner's Proposed Findings of Fact are adopted in substance, in so far as material. Copies furnished: George W. Harrell, Esquire Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 James Nolan 829 West Tharpe Street Tallahassee, Florida 32303 Kenneth E. Easley, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Fred Seely Executive Director Post Office Box 2 Jacksonville, Florida 32202
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
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.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings. Petitioner is the State agency charged with regulating the practice of contracting. During times material hereto, Respondent was licensed by the Construction Industry Licensing Board as a certified air conditioning contractor having been issued licensed number CA C022410. Respondent has been so licensed since May 1982. During December, 1982, Petitioner submitted a change of status application requesting that his license be changed to qualify for All County Air Conditioning (All County) in Fort Lauderdale, Florida. That change of status application was approved by Petitioner and Respondent has remained the qualifier for All County continuously and his license has been renewed as such and is active for the period 1987-1989 (Petitioner's Composite Exhibit 4). On September 4, 1985, Respondent through the entity All County, entered into a contract with Ernest D'Esposito to "furnish and install 1 new Whirlpool 2 Ton condensing unit, with new slab, hook-up to existing pipes and electric". The agreed upon price to complete the work was $950.00 with a five year guarantee on the compressor and a one year guarantee on parts and labor. (Petitioner's Exhibit 1). Respondent commenced the work as agreed and completed the work as scheduled. Respondent did not obtain a permit for said work from the local building department nor was a permit posted on the job site when Respondent commenced work on the project. While the work was in progress, Respondent did not obtain any inspections for the work from the local building department. A record search of the Pembroke Pines Building and Zoning Department revealed that Respondent did not obtain a permit to install the air conditioning unit at D'Esposito's residence. (Testimony of Marie Bogart, records custodian, Building and Zoning Department, City of Pembroke Pines). Rene Pena, chief mechanical inspector for the City of Pembroke Pines, is the person who checks the installation of all air conditioning work in the City of Pembroke Pines. Mr. Pena did not perform any inspections on D'Esposito's job nor was he requested to perform any inspections by Respondent. Respondent testified at the hearing and admits that no permit was obtained for D'Esposito's job. However, Respondent offered his opinion that the code did not require a permit and that his failure to obtain one was not a violation of the South Florida Building Code. Finally, Respondent offered that to the extent that there was a technical violation of the law, it was not a willful violation and that imposition of a fine would not be appropriate in this instance as his firm "tries to stay within the confines of the South Florida Building Code". Respondent acknowledged that he is the person responsible for ensuring that permits are obtained when required for completion of projects.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: Petitioner, Construction Industry Licensing Board, enter a Final Order imposing an administrative fine against Respondent in the amount of five hundred dollars ($500.00), the payment of which shall be made to Petitioner within a time frame deemed appropriate by Petitioner. Respondent's license as a certified air conditioning contractor be placed on probation for a period of thirty (30) days. RECOMMENDED this 28th day of January, 1988, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 1988. COPIES FURNISHED: G. Vincent Soto, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Michael B. Falls 4611 Southwest 30th Way Fort Lauderdale, Florida 33312 Fred Seely, Executive Director Department of Professional Regulation, Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neill, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact The following findings of fact are based upon the evidence presented, Respondent's admissions and matters deemed admitted due to Respondent's failure to timely respond to Petitioner's Second Request for Admissions: At all times material hereto, Respondent was licensed by the Construction Industry Licensing Board as a registered air conditioning contractor with license number RA-0035721. He was the qualifying agent for Wallace's Air Conditioning and Heating. Respondent's address of record is 4710 Cypress Ridge Place, Tampa, Florida 33624, and it was to this address that notice of the hearing was sent. At no time prior to the hearing did Respondent contact counsel for Petitioner or the undersigned regarding any problem he had with the date scheduled for this hearing. Respondent did not appear, and was not represented at the hearing which commenced at 9:00 a.m. on May 11, 1988. However, at 1:56 p.m. on the day of hearing, a letter from Respondent addressed to Petitioner's counsel was filed at the Division of Administrative Hearings in Tallahassee, Florida. This letter was postmarked on May 9, 1988 and requests rescheduling of the hearing due to his being out of town on "urgent business." By Order entered on May 13, 1988, Respondent's untimely and insufficient motion for continuance was denied for failure to comply with Rule 22I-6.017, Florida Administrative Code, and this case has proceeded to the issuance of this Recommended Order in accordance with the procedures established at hearing. On or about March 18, 1986, Respondent, as qualifying agent for Wallace's Air Conditioning and Heating, entered into a contract with General Engineering and Machine Company for the installation of heating, ventilation and cooling services (HVAC) at the Sebring Square Plaza shopping mall in Sebring, Florida. The work to be performed included the installation of heating, ventilation, air conditioning and temperature control systems for stores in the mall, which included Zayre's Department Store and thirty "strip stores." The contract price for this work was $275,460. Respondent thereafter began work on the mall under this contract. However, he has never held any certificate of competency, occupational license, or registration in the City of Sebring, as required by local ordinance sections 5-18 and 5-19. On or about May, 1986 Respondent entered into a subcontract agreement with Long's Air Conditioning and Heating for sheetmetal duct work, venting of exhaust fans and installation of flex duct and grilles at the Sebring Square Plaza. The original amount of Respondent's contract with Long's Air Conditioning was $69,200, but this was increased by agreement to $72,200. On or about June 19, 1986, work on the thirty "strip stores" was deleted from this subcontract agreement, and the contract price was then reduced by $3,760, making a final contract price of $68,440. Respondent received draw requests totaling $68,440 from Long's Air Conditioning for work performed under this subcontract. Although all contracted work was performed by Long's Air Conditioning, Respondent has only made payments totaling $66,500, leaving an unpaid amount of $1,940. In connection with his work on the Sebring Square Plaza, Respondent purchased equipment and supplies from Florida Air Conditioners, Inc., in the total amount of $122,019.80, but made no payments on this account. On October 6, 1986, Respondent's account with Florida Air Conditioners was paid in full by Highway 27 Associates, the owners of the Sebring Square Plaza, who in turn charged this amount to the general contractor, General Engineering and Machine Company, by reducing the amount they paid to said general contractor on the Sebring Square Plaza. Charles R. Baldwin was the general administrator on this shopping mall job for the general contractor, General Engineering and Machine Company. In accordance with his subcontract agreement with Respondent, if Respondent did not pay his materialmen, the general contractor was responsible, and, in fact, in this case the general contractor was charged for payments made by the mall owner on Respondent's account at Florida Air Conditioners. Respondent failed to regularly attend weekly job site status meetings with Baldwin. When schedules were established, Respondent voiced no objection, but he then frequently failed to complete work in accordance with those schedules. Respondent made little effort to complete his work on time, or to make up for delays. He failed to supervise the work he was performing at the Sebring Square Plaza. On or about June 24, 1986 Respondent walked off the job without completing the work which he had contracted to perform, and this caused further delay in the mall's completion since Baldwin had to find another contractor to complete Respondent's job. Baldwin paid Respondent $174,467.70 on June 18, 1986 in connection with this job after Respondent signed an affidavit certifying that he had paid all his materialmen and subcontractors. The record establishes that said affidavit was false. With the amount Baldwin was charged for Respondent's unpaid account with Florida Air Conditioners, and the amount paid on June 18, 1986, General Engineering and Machine Company paid or was charged approximately $296,000 for work performed by Respondent, although their contract with Respondent was only $275,460. According to Bernard Verse, who was accepted as an expert in commercial construction, Respondent's failure to pay for supplies and equipment, and his failure to complete his contract with General Engineering and Machine Company constitute misconduct in contracting. In addition, Respondent failed to properly supervise the work he was performing, and for which he contracted, on this job.
Recommendation Based upon the foregoing, it is recommended that the Construction Industry Licensing Board enter a Final Order suspending Respondent's license number RA- 0035721 for one (1) year and imposing an administrative fine of $5,000; provided that after the expiration of thirty (30) days from the issuance of the Final Order if Respondent pays said administrative fine in full, his license shall be immediately reinstated. DONE AND ENTERED this 23rd day of May, 1988, in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5050 Rulings on Petitioner's Proposed Findings of Fact: 1 Adopted in Finding of Fact 1. 2-3 Adopted in Finding of Fact 3. 4 Adopted in Finding of Fact 4. 5 Adopted in Finding of Fact 9 6 Adopted in Finding of Fact 5. 7 Adopted in Finding of Fact 7. 8 Adopted in Findings of Fact 7, 8. 9-10 Adopted in Finding of Fact 6. Adopted in Finding of Fact 10. Adopted in Finding of Fact 6. Rejected as irrelevant and not based on competent substantial evidence. Adopted in Finding of Fact 7. Rejected as irrelevant. COPIES FURNISHED: David L. Swanson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Frank W. Wallace 4710 Cypress Ridge Place Tampa, Florida 33624 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
