Findings Of Fact The Petitioner is be Department of Professional Regulation. The Respondent is John Anthony Fantasia, at all times pertinent to these proceedings holder of certified air conditioning contractor license number CA-C024378 and qualifying agent for Fantasia Air Conditioning Refrigeration Appliance Service. Nat Weintraub contracted with Respondent on or about June 25, 1986. Under terms of the contract, Weintraub gave Respondent a $2,500 down payment to have a central air conditioning system installed in the Weintraub home. Weintraub paid Respondent an additional $1,250 when the central air conditioning unit was delivered on or about July 1, 1986. A third and final payment of $1,250 due upon completion of the work set forth in the contract has not been made by Weintraub dub to difficulties he has encountered with the Respondent concerning the quality of work on the project. While he timely commenced work shortly after delivery of the central air unit and receipt of two monetary payments from Weintraub, Respondent damaged a screen covering an opening in an overhanging eave to the Weintraub's flat roofed house. This occurred when he inserted equipment into the opening of the eave in order to place additional insulation between the roof and the ceiling of the home. Weintraub later paid someone else $52 to repair the damage. Respondent made an opening in the roof through which he placed a ventilation pipe. The opening was too large and emitted daylight around the pipe into the closet where the air conditioning unit was installed. As a result, rainwater accumulated in the closet. Weintraub later paid repair costs of $185 to another contractor to seal the opening around the pipe and replace the closet door. While repair of the opening was not a part of the written contract, the Respondent had orally promised to make this correction. A noise problem associated with overly small grillwork on the main air outlet to the air conditioning unit was fixed by another contractor at a cost of $236 to Weintraub. Dry wall covering a soffit containing duct work in the Weintraub living room was not properly finished off. Weintraub has received estimates leading him to believe correction of this deficiency will cost him approximately $510 in repairs. During installation of the air conditioning unit, closure of an existing line supplying natural gas to a heat furnace was required. Respondent "pinched off" the line in an improper manner. Further, Respondent's license does not authorize him to engage in work on heating equipment gas lines. As a result of the manner in which Respondent installed the air conditioning unit, it is extremely inconvenient if not impossible to change the unit's air filters. The job at the Weintraub home was approximately eighty percent completed when the Respondent exhausted his supply of insulation. He left the job site at that time. Later he called Weintraub demanding additional funds. Weintraub refused to pay anything additional until, in accordance with the contract terms, the job was completed. Al Childress is an enforcement officer with the Metro-Dade County Building and Zoning Department. He went to the Weintraub home on December 3, 1986. He noted the air conditioning unit had been installed without a proper permit and issued a citation by certified mail to the Respondent. The Respondent subsequently paid a $50 civil penalty for the citation. William Huckstep was a mechanical inspector for the Metro-Dade County Building and Zoning Department when he was called to the Weintraub home on or about February 3, 1987. He observed the gas line which had been altered by the Respondent. Huckstep subsequently issued a Notice of Violation by certified mail to Respondent for performing such a task without a certificate of competency as required by the Dade County Building Code. On or about April 22, 1987, Huckstep issued a second notice of violation to Respondent for failure to have called for rough and final inspections of the air conditioner installation as required by the Dade County Building Code. To date, these inspections have not been performed by local authorities or requested by the Respondent. Considerably more than 90 days have elapsed since the fall of 1986 when Respondent left the Weintraub project, prior to its completion, without notification, and without just cause to depart. The improper installation of air conditioning equipment, insulation and duct work exhibited gross negligence by the Respondent in the performance of these tasks.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered in this cause assessing the Respondent a fine of $1,500 and placing him on probation for a period of two years upon terms and conditions to be determined by the Construction Industry Licensing Board. DONE AND RECOMMENDED this 17th day of March, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 17th day of March, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5602 The following constitutes my specific ruling on the proposed findings of fact submitted by the Petitioner. Those proposed findings consisted of 18 paragraphs. Only the first five paragraphs were numbered. Numbers 6 through 18 were applied to the remaining paragraphs by the Hearing Officer. Included in finding number 2. Included in finding number 3. Included in finding number 12. Included in finding number 13. Rejected as unnecessary. Included in part in findings numbered 3 and 4. Included in findings numbered 13 and 14. Included in findings numbered 6 and 9. Included in finding number 11. Included as to the soffit in finding number 8. The remainder is rejected. Included in finding number 11. Included in finding number 12. Included in findings numbered 11 and 15. Rejected as unnecessary. Included in findings numbered 5, 6, 7, and 8. Included in finding number 13, with the exception of Petitioner's dates which are reflective of the deadline given Respondent on the citations. Included in finding number 13. Included in finding number 14, with exception of hearsay relating to testimony of Bob Wolf which is rejected. COPIES FURNISHED: Lee Sims, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 John Anthony Fantasia 149-10 Northeast Eighth Avenue North Miami, Florida 33161 William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely Executive Director Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 =================================================================
Findings Of Fact At all times material hereto, the Respondent, Thomas W. Hunter, was a certified Class B Air Conditioning contractor, having been issued license number CA C014646, by the State of Florida. At all times material hereto, Derrell Baugh (D. Baugh) was an electrical contractor having been issued a license by the State of Florida. D. Baugh has not had an air conditioning license for Lake County, but has held a City of Eustis air conditioning license for some 15 years. Gregory Duane Baugh (G. Baugh) is the son of D. Baugh. G. Baugh has not been licensed by the State of Florida. The Respondent has been doing business as Hunter Air. The Respondent has never qualified Baugh's Electric, and D. Baugh has never qualified Hunter Air. In approximately 1976, D. Baugh and his son G. Baugh, and the Respondent were partners in the business of Baugh's Electric. There was no written partnership agreement, only a handshake partnership. The Respondent did the air conditioning and refrigeration work, and D. Baugh and G. Baugh did the electrical work. All three of them shared in the profits. If a job involved electrical and air conditioning work, the partner who had already contracted for the job would encourage the main contractor to use the other partner. When the Respondent and D. Baugh were working on the same job, if one partner was behind in his work, the employees of one would assist the one who was behind to complete his work. Further, when working on the same job, and when authorized by the Respondent, D. Baugh would sometimes pull air conditioning permits for the Respondent. This partnership arrangement ended in 1980 or 1982. After the dissolution of the partnership, the Respondent continued to have access to the checking accounts, and charge accounts with wholesalers, of Baugh's Electric. The Respondent can write checks on the account and charge items with wholesalers. Even after the partnership dissolved, Baugh's electric continued to use the business cards of the partnership, which included the Respondent's name. The business part of Baugh's Electric, bookwork and the writing of proposals, is handled by G. Baugh. The field work and troubleshooting is handled by D. Baugh. On June 30, 1985, G. Baugh prepared an electrical and air conditioning proposal for Gary Wyckoff (Wyckoff) on a spec house being constructed by Wyckoff. The proposal was on proposal paper for the business of Baugh's electric and showed the electrical contractor as G. Baugh, the air conditioning contractor as the Respondent, and a breakdown of the cost for each type of work. The total cost for the work, per the proposal, was $4,170. Baugh's Electric had performed other work for Wyckoff, but had not always submitted a written proposal. G. Baugh believed that the Lake County Building Department saw no problem with either the proposals of Baugh's Electric, or with the Respondent being on the proposal sheet of Baugh's Electric, as long as it was specified who was going to do what. G. Baugh has written at least six proposals in this manner. The proposal for the Wyckoff job was written as it was because the Respondent had no proposal paper of his own and it was convenient. Before the Wyckoff job, D. Baugh had a discussion with the Lake County Construction License Investigator, Mary Pasak (Pasak), concerning himself and the Respondent working together. D. Baugh was informed that there was nothing wrong with them working together as long as the Respondent did the air conditioning work and obtained the air conditioning permits, and D. Baugh did the electrical work and obtained the electrical permits. The Respondent testified that he saw nothing wrong with putting multiple proposals from different contractors with different types of licenses on one proposal sheet because he had been employed with companies which engaged in this practice. He testified that he saw nothing wrong with putting his proposal for air conditioning on the same proposal sheet with Baugh's Electric which was to do the electrical work, because everyone who was working on a project, including the Wyckoff job, was made aware of who was doing what. D. Baugh pulled the electrical permit for the Wyckoff job. As part of the air conditioning work, duct work had to be done. To complete the duct work G. Baugh contacted a duct man, James Edwards (Edwards), whom Baugh's Electric had used on several other jobs in the City of Eustis area, because the Respondent was unable to start the job. Edwards knew that he was performing the work under the Respondent's license because he had been informed years ago, during the partnership, that among the partners the Respondent had the air conditioning license. However, Edwards informed the Lake County Building Inspector that he was employed by D. Baugh on the Wyckoff job. Edwards had neither seen nor had any contact with the Respondent. On all the jobs that Edwards had done duct work on for Baugh's Electric, either D. Baugh or G. Baugh had made the contact with him, given him the okay to do the duct work, or paid him. Edwards completed the duct work, and was paid by Baugh's Electric. The Respondent reimbursed Baugh's Electric. No permit to perform the air conditioning work, including the duct work, had been pulled before Edwards started and completed the duct work. Edwards believed that D. Baugh had taken care of the mechanical permit for the air conditioning work. Wyckoff also believed that the mechanical permit had been pulled. Wyckoff knew that the Respondent had the license to perform the air conditioning work, although he had only seen the Respondent twice. Their contact was usually by telephone. The Respondent pulled the mechanical permit for the Wyckoff job after Edwards had completed the duct work. Because the Respondent pulled the permit after the work had begun, he had to pay the Lake County Building Department a double fee for this permit. The Respondent pulled the mechanical permit as a favor to Baugh's Electric. The Respondent did not know that the duct work for the air conditioning job had begun. He knew he was to perform some air conditioning work for Wyckoff on a house, but he did not know which house it was, or where it was located. The Respondent completed the air conditioning work, and on August 21, 1985, submitted to Wyckoff an invoice in the amount of $2,200 for the work. Even though the invoice was on the letterhead of the Respondent's company, Hunter Air, the invoice was filled out by G. Baugh. Wyckoff paid the Respondent for the air conditioning work.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Thomas W. Hunter, be found guilty as charged, and that he be assessed an administrative fine in the amount of $1,000. THIS RECOMMENDED ORDER entered on this 24th day of September, 1986 in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 24th day of September, 1986. COPIES FURNISHED: Errol H. Powell, Esquire 130 North Monroe Street Tallahassee, Florida 32301 Thomas W. Hunter 502 Citrus Avenue Eustis, Florida 32726 Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings S. Benton, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Fred Seely Executive Director Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201
The Issue The issue presented for decision herein is whether or not Respondent violated local law by engaging in the installation of a range hood without timely obtaining a permit; improperly supervised the project and exceeded the scope of work that he is licensed, in violation of subsections 489.129(1)(d)(m), and (j) 489.115; 489.117(2) and 489.119 and 489.105(4), Florida Statutes.
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, Department of Professional Regulation, Construction Industry Licensing Board, was, at all times material hereto, the state agency charged with regulating the construction industry in Florida. Respondent was, at all times material hereto, a certified air conditioning contractor, License Number CA-C018243, in Fort Lauderdale, Florida, and was the qualifying agent for Kitchen Ventilation Specialists (KVS or Respondent). Roberto Villanueva is the owner and president of R.V. Air Conditioning Incorporated (RV). RV had a permit to perform air conditioning work at the Cardoza Hotel in Miami Beach, Florida. During May, 1987, KVS obtained a contract to install a six foot stainless steel hood in the kitchen of the Cardoza. The job was scheduled for June 4, 1987. Respondent dispatched too employees to the Cardoza at 6:30 a.m. on June 4, 1987 to hang the hood per "Falios plans." Villanueva observed KVS' employees installing the rang- hood at the Cardoza and notified chief inspector Ed Stein that he had the permit for the air conditioning work at the Cardoza Hotel, that the employees of KVS were not working under his permit, and that they were installing the hood without a permit. Ed Stein approached the KVS employees and determined that they did not have a permit and did not hold a certificate of competency to make the installation. He issued a stop-work order and a notice of violation to KVS once he determined that they were employees of that entity. Stein asked the employees to gather their tools and leave the job site. The employees left the site at that time. He returned the following day and noticed that the hood had been completely installed in contravention of the stop-work order. R.V. Air Conditioning ran the ductwork and connected the ventilation system to the hood installed by EVS. While Respondent denied that his employees completed the installation of the hood in contravention of the work-order, such testimony is not credible in view of the fact that R.V.'s employees had no incentive to complete the installation for the hood when it was Villanueva who called the building department to advise that work was being done on the job-site which they had obtained a permit for and that KVS employees failed to obtain a permit. It is common knowledge, within the construction industry, that attaching the hood in the manner in which KVS employees did so was, in effect, installing a hood and not just "hanging" a hood. Respondent, on the other hand, contended that setting this hood on the Cardoza job-site was not installing a hood because he did not run the ductwork to the hood. However, on cross-examination, Respondent conceded that there was no difference between hanging or installing the hood. Respondent's contention that he was under the impression that he was working under the permit obtained by the general contractor, R.V. Air Conditioning, is unpersuasive and is not credited herein. This is especially so in view of the fact that when the stop-work order was issued to his employees, he phoned Ed Stein and explained that his employees were only delivering and setting the hood and that a permit was not required. Stein thereupon replied that he had to either obtain a permit or get a writing from the general contractor, R.V. Air Conditioning, explaining that he was working under that contract. Respondent failed to obtain such a writing and did not obtain a permit until July 7, 1987, at which time he completed an application for a permit to "hang" the hood. Respondent paid an administrative fine and a fee amounting to twice the usual amount for the permit. (Petitioner's Exhibit 1).
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Respondent's certified air conditioning contractor's license be placed on probation for a period of twelve (12) months. Petitioner imposed an administrative fine against Respondent in the amount of one thousand dollars ($1,000.00) payable to Petitioner within 30 days of the filing of its Final Order. DONE and ORDERED this 31st day of October, 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 31st day of October, 1988.
Findings Of Fact At all times pertinent to the issues herein discussed, Respondent Wallace W. Stewart was licensed as a registered air conditioning contractor by the Florida Construction Industry Licensing Board under License No. RA 0022169. Since at least October 1979, Respondent has been qualifying agent for the contracting firm "Stewart's Solar Energy, Inc.," with the Florida Construction Industry Licensing Board. In September 1979, Fred Johnson was acting as real estate agent for his son, Don F. Johnson of Ponte Vedra, Florida, a licensed general contractor who at the time had several residences for sale in the area. During that period, Mr. Fred Johnson engaged in a discussion with the Respondent concerning the possibility of installing a solar cooling, heating and hot water system in the house that Mr. Johnson proposed to have his son, Don, build for him in St. Johns County, Florida. Pursuant to these discussions, on September 10, 1979, Respondent prepared a proposal for Mr. and Mrs. Fred Johnson for the installation of a complete cooling and heating system and solar collectors for the purpose of domestic hot water in the said residence. Before this proposal was accepted, Mr. Fred Johnson's son, Don, discussed the terms of the proposal with the Respondent. Specifically discussed was that portion of the proposal wherein Respondent proposed to include the following: Necessary piping for circulating chilled and hot water system, perimeter heat, storage tanks for hot and cold water, necessary heat exchangers, refrigeration equipment, circulating pumps, duct system, thermostats, heat exchanger (fireplace), also piping and controls for the hot water heater. Before allowing his father to sign this proposal and accept it, Don Johnson asked Respondent exactly what he proposed to provide regarding the fireplace and was told that Mr. Stewart would provide a firebox interior, which consisted of a steel box shaped like a fireplace, to protect the heat exchanger that was to go with it. At that time, Mr. Stewart took Don Johnson into his workshop and showed him an outfit which he indicated would be similar to, if not identical to, that which he intended to install in the senior Johnson's home. It was understood that Respondent would supply the firebox and heat exchanger, but the builder was to do the masonry work and the chimney. Thereafter, based upon that understanding, Don Johnson recommended to his father that he accept the proposal, which was accomplished on or about the September 10, 1979, date; and both Fred Johnson and his wife, Christine, did so, agreeing to pay, for the complete system, the sum of $5,483 in accordance with a schedule set forth in the proposal sheet. Construction was begun and progressed to the time it was appropriate to install the firebox. At that point, Respondent told Don Johnson, the builder, he was unable to provide the firebox at that time. Since the state of construction was such that a delay in providing the firebox would hold up the continuance of construction, Respondent asked Don Johnson if he, Don, could provide the standard firebox into which Respondent would put his heat exchanger and thereafter give a credit against the purchase price. In response to this suggestion, Don Johnson told Respondent the cost would be between $400 and $500, to which sum Respondent agreed. As a result, Don Johnson put in the firebox that he procured, and Respondent thereafter put in the heat exchanger unit. Construction on the house continued until such time as, in April 1980, the house was considered sufficiently complete for Mr. and Mrs. Fred Johnson to move in. In the interim, however, in order to get the duct work done for the air conditioning and heating system he installed, Respondent, who was not licensed to perform heating and air conditioning installation in St. Johns County, Florida, arranged with Mr. Everett Masters, owner of Masters Heating and Air Service of St. Augustine, Florida, to do the duct work for the Johnson home. A building mechanical permit is not required to do duct work, and Mr. Masters did the duct work without a permit, even though he was not satisfied that the installation called for in the drawings was sufficient to accomplish the purpose of heating and cooling for a house that size. According to Mr. Masters, he did the work according to the specifications given to him, but protested to a representative of Mr. Stewart, Respondent, that the ducts were too small. In response, he was told to put the ducts in as called for in the specifications, which he did, but was never paid for the work he provided. St. Johns County Ordinance No. 76-20, an ordinance regulating contractors and the business of contracting within that county, at Section 4 thereof requires that air conditioning contractors be certified in order to conduct that business within the county. The contract involved here for the construction of Mr. Johnson's house would have required the contractor, Respondent, to have a local license to complete the air conditioning work. Respondent does not have a license in St. Johns County and never has had one. As a matter of fact, before the work was done, Mr. Don Germain, an assistant building official for St. Johns County, told Respondent in 4Z. Germain's office that he, Respondent, would need a county license at the time Respondent had come to the office prior to installing the air conditioning unit in the Johnson house. At this point, Mr. Germain discussed the project, including the rough drawing Respondent had with him, and advised Respondent at that time what permits and what licensing provisions must be fulfilled. At that time, solar heating and hot water systems did not require the license. However, the other work called for in this contract, such as the installation of the air conditioning system, would require a type of license which Respondent did not have. Germain and the Respondent had an extensive discussion on this. As it appeared to Mr. Germain, Respondent could not seem to understand why a license would be needed. A mechanical permit was issued on April 23, 1950, to Masters Heating and Air for a part of the system. A part did not include the entire installation permit. This permit applied for by Mr. Masters was acquired at the request of Don Johnson, the contractor, who pleaded with him to do so because, according to Mr. Johnson, the only way he could get final approval of the construction in order to get the elec- tricity turned on in the house was if this permit was applied for and issued. The permit in question was issued for something other than the duct work accomplished by Mr. Masters. Mr. Masters did not install the air conditioning equipment, only the ducting. The permit, if legitimate, would allow final approval of the installation of the entire air conditioning system. The information contained on the permit was provided to Mr. Masters by Respondent. According to Mr. Germain, Respondent never did get final approval of the building inspector on the total installation. The equipment was not initially accepted by the building department, since it was not a unitary unit-- in which all segments are designed to work together as a unit. However, even though the unit was rejected by the building authorities, they let the work continue based on a letter from the engineer who approved the purchase of the system, which indicated the engineer would be responsible for the working of the unit. In addition, the building officials allowed the work on Mr. Johnson's home to continue even after the discussions regarding the lack of a proper licensee because Respondent assured Mr. Germain of the building office that Mr. Masters, who was in fact a registered and licensed air conditioning contractor in St. Johns County, was going to do the work. Though the unit was basically installed in April 1980, it was not working property even up to July 3, 1980 It did not cool properly. At that point, Respondent contends he was still owed some money by Mr. Johnson. In November 1980, when it became obvious that the initially installed compressor was insufficient in size to cool a house the size of Mr. Johnson's, Respondent replaced the compressor, installing one a half ton larger than that initially installed. At that point, Don Johnson paid Respondent the sum of $800, which, according to Mr. Johnson, was the entire sum owed on the complete installation after deduction of the credit of $483 for the firebox which Mr. Johnson fabricated in lieu of that initially proposed by Respondent and which Respondent could not provide. After Respondent was paid the $800, he stopped responding to calls to service the cooling system and the heating system, even though neither worked properly at that time. Respondent admits that at some point in time he refused to continue servicing Mr. Johnson's unit and did not honor the warranty. He contends, however, that he stopped servicing because Mr. Johnson still owed him $453. The weight of the evidence indicates otherwise. Mr. Johnson ultimately hired another craftsman to repair his system, and the system was repaired without any further assistance by Respondent.
Recommendation That Respondent pay a fine of $1,000, and that Respondent's license be placed on probation for a period of two years.
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.
Findings Of Fact Randall Labadie owns the corporation, Labadie's, Inc., d/b/a Atlantic Coast Steamatic, a business engaged in interior cleaning and air duct cleaning, with a principal office located at 1599 SW 30th Avenue, Suite 11, Boynton Beach, Florida 33426. Randall Labadie has owned the business in Florida for ten years and has been personally involved in air duct cleaning for approximately 20 years. He holds a State of Florida building contractor's license, but not a sheet metal, air conditioning or mechanical contractor's license. Approximately fifty percent of the company's business is air duct cleaning, with thousands of jobs having been completed over its years of operation. Respondent, the Florida Construction Industry Licensing Board (CILB) is responsible for regulating various professions in the construction industry pursuant to Chapter 489, F.S. On August 8, 1984, CILB Administrative Assistant, Milton Rubin, issued this written opinion in response to an inquiry from the executive director of the Pinellas County Construction Licensing Board: In response to your inquiry for an opinion on the following questions, the answer is in the affirmative: Does a person or firm performing "cleaning" services for air conditioning systems have to be licensed? Yes. If, in the process of "cleaning", a person or firm cuts access openings in existing duct work, does that person or firm require competency licensure? Yes. Does "servicing" in 489.105(h) include cleaning? Yes. (Exhibit #2) * * * The Board did not adopt a rule reflecting its official position on the matter because it felt that the interpretation would have been an unnecessary restatement of the language of Chapter 489, F.S. (Stipulation of the parties filed 11/20/92) On March 13, 1992, the CILB took this official action as reflected in its General Session Minutes: There was a presentation by Mr. Dean Ellis and Jim Hasbrook of Pinellas County regarding a request from two industries. The two industry associations include The Florida Air Conditioning Contractors Association and the Refrigeration and Air Conditioning Contractors Association. The issue concerns duct cleaning and air conditioning system cleaning. This Board had previously taken a position in August of 1984 that this work must be performed by a licensed contractor in one of three categories: air conditioning, mechanical, or sheet metal. At that time the opinion was rendered by Mr. Rubin but included a disclaimer stating that it did not reflect the official position of the Board. These associations now request a formal position from the Board stating that the licensed contractor must perform this work as stated in Mr. Rubin's letter of 1984. Mr. Lopez-Cantera made motion to ratify that position as a policy of the Board. Second by Mr. Manrique. Motion carried. (Exhibit #1) After the Board action was taken, various industry organizations sent notices of the Board's position to their members. The Florida Air Conditioning Contractor's Association "...urge[d] all parties concerned to act on the FCILB decision... [and to] ...report any unlicensed activity through the proper channels." (Exhibit #4) Steamatic, Inc., is engaged in the business of franchising cleaning operations, and has a home office in Fort Worth, Texas. Around 1975, it expanded from fire and water restoration cleaning into other cleaning services, more specifically, air duct cleaning or air conditioning system cleaning. Steamatic, Inc., has approximately 144 franchises in the United States, including 14 in the State of Florida. Prior to March 13, 1992, no Florida franchise was cited for engaging in cleaning activity without a license under Chapter 489, F.S. Since March 1992, at least two franchises, in Jacksonville and in Bradenton, have received notices from Department of Professional Regulation (DPR) investigators that complaints have been filed alleging unlicensed practice of air conditioning contracting. The CILB policy formally adopted in March 1992, has not been adopted as a rule pursuant to Section 120.54, F.S. The CILB has not adopted rules setting acceptable standards for air duct cleaning, and at the March 13, 1992, Board meeting, Board member, Cosmo Tornese stated that there are no accepted standards regarding air duct cleaning. As of March 13, 1992, the National Air Duct Cleaners Association (NADCA) had not adopted standards. The duct cleaning activity conducted by Petitioner and other Steamatic franchisees is nonstructural work only. These companies do not "repair", "maintain", or "adjust" air conditioning systems. They generally obtain access to the ducts through existing openings or the registers, and they vacuum what is accessible. With a low-pressure atomizing gun they apply a germicide treatment and a sealer. In about ten percent of the cases they might cut an opening in the duct in the fogging process and they close it with duct tape. They do not cut sheet metal or disconnect the duct work from the air handler. They do not clean the coils on condensing units or fan blades in the air handler. They only cut fiber duct board, never flex duct. They do not disengage electrical connections. They do residential work only. In contrast, and for more money (base price of $595.00, as opposed to $250-300.00 charged by Steamatic), Dean Ellis' company, Climate Control Services, offers what he prefers to call "air duct sanitizing". (transcript p. 74) Dean Ellis has a Florida class A unlimited air conditioning license. He cleans the air handler coil, evaporator coil, drain pan and interior of cabinets. The components are removed and are chemically cleaned and sprayed. His workers take out the electric heat strips and fan motor. They inspect the ducts and replace duct work that is severely contaminated. They use an air source removal machine that is connected through a large hole cut in the box that fits above the air handler and suctions the entire duct system. They check and adjust freon levels and fan speeds. About five percent of Dean Ellis' business is related to the cleaning of air ducts. He considers his company is in a competitor's relationship with Steamatic. The association of which he is a board member, Florida Air Conditioning Contractors Association, brought its concerns to the CILB and wanted to know if the Board would enforce what the association already considered the law to be. Petitioner, Labadie's, Inc., d/b/a Atlantic Coast Steamatic, is substantially affected by the CILB's response to its regulated industry representatives. (See prehearing stipulation, filed 11/20/92)
The Issue Whether Respondent is guilty of failing to discharge his supervisory duties as a qualifying agent, in violation of Section 489.11 and 489.105(4), Florida Statutes. Whether Respondent is guilty of making misleading, deceitful or untrue representations, in violation of Sections 489.129(1)(c) and 455.227(1)(a), Florida Statutes. Whether Respondent is guilty of gross negligence, incompetence, misconduct, fraud or deceit in the practice of contracting, in violation of Section 489.129(1)(m), Florida Statutes. Whether Respondent is guilty of exceeding the scope of his state registered mechanical contractor's license, in violation of Section 489.117(2), Florida Statutes.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts were found: Respondent, Arwood Hollins, in 1986 held a mechanical contractor's license (RM0016479) with the State of Florida. Respondent owned a 50% interest in All Florida Air Conditioning, Refrigeration, Heating and Ventilation, Inc. (hereinafter referred to as "All Florida"), a Florida corporation. The Respondent has resided in Lake Jem, Lake County, Florida for approximately 15 years. The main offices of All Florida are located in Lake Jem, Lake County, Florida, with a branch office in Orlando, Orange County, Florida. In 1986 the Respondent was the sole qualifying agent for All Florida. Pursuant to the Respondent's mechanical contractor's license with the State of Florida, he is required to comply with all local license requirements. Respondent has never held nor applied for a license in Seminole County to practice mechanical contracting. The Respondent holds a certificate of competency in Lake and Orange Counties, and inactive certificates for Dade and Sumter Counties, but does not hold a certificate in Seminole County. In 1986 All Florida advertised in the Donnelly Directory for United Telephone (Exhibit 2) in the Central Florida area. Said ad depicts All Florida as being a repair specialist. Complainant, Janis Chamberlin, resides at 105 Rockingham Court, Longwood, Seminole County, Florida. All work performed by All Florida on the Complainant's air conditioning system was performed at the Rockingham Court address in Seminole County, Florida. Respondent testified that although he has lived in Central Florida for 15 years, he is unfamiliar with Seminole County and practices only in Lake and Orange Counties. Seminole County has enacted an ordinance (Number 83-15) which requires that before any person can be issued a license to practice mechanical contracting in Seminole County, they must meet certain requirements. Between January 28, 1986 and August 3, 1986, Robert Hollins, the son of Respondent and an employee of All Florida, traveled to the Complainant's house at 105 Rockingham Court, Longwood, Seminole County, Florida on at least six (6) occasions to perform inspections and/or repairs on the Complainant's air conditioning and heating equipment. Five (5) of the visits, between March 17, 1986 and August 3, 1986, involved problems with the cooling of the air conditioning system. Complainant, Janis Chamberlin, contacted All Florida after she found the company in a Yellow Page and in the Donnelly Directory phone book in late January, 1986 regarding problems with her heating system. Robert Hollins travel led to Mrs. Chamberlin's house at 105 Rockingham Court in Longwood, Seminole County, Florida and made repairs to a circuit breaker. Mrs. Chamberlin again contacted All Florida on or about March 17, 1986 due to a problem with her air conditioning unit. Mrs. Chamberlin spoke with Robert Hollins and gave him directions to her house. Mr. Hollins did not ask if she resided in Seminole County. Robert Hollins advised Mrs. Chamberlin that there was an extensive freon leak in her air conditioning unit and that her ECU unit on the air conditioner would need to be disconnected to insure that all the leaks would be stopped. Thereafter, Robert Hollins assured Mrs. Chamberlin that all of the leaks had been taken care of. She was charged $245.45 for the visit for labor and materials, which she paid. Approximately two months later, on or about May 19, 1986, Janis Chamberlin heard noises from the air conditioning unit. Robert Hollis was called and he traveled to Mrs. Chamberlin's house and charged her a total of $28.00 for the visit and the air conditioning unit stopped making noises. Approximately two months later, the same air conditioning unit was failing to cool properly and Mrs. Chamberlin again called All Florida. Robert Hollis traveled to the Chamberlin residence and advised that the condenser fan motor had quit working and needed to be replaced. Mrs. Chamberlin authorized the work and thereafter Robert Hollins assured her that he had replaced the condenser fan motor with a new one. Mrs. Chamberlin was charged a total of $248.50 for the new fan motor, other materials and labor. On August 3, 1986, Mrs. Chamberlin noticed a loud screeching noise coming from the air conditioning unit. She called Robert Hollins who arrived at Mrs. Chamberlin's house on the same day. He left the Chamberlin residence before telling Mrs. Chamberlin what was wrong with the unit. Mrs. Chamberlin noticed that the noise she had heard earlier had stopped temporarily. By approximately 9:00 p.m. on the same day, the noise returned and she noticed that there was a decrease in the cooling of the unit. By the following morning, the air conditioning unit was not working. Mrs. Janis Chamberlin contacted All Florida on August 4, 1989. Mrs. Chamberlin advised Robert Hollins that if he would not work on the unit that day, she would have to get someone else to do the job and to call her by 5:00 pm. that day to let her know. Robert Hollins did not call or come to her home by 5:00 p.m. Mrs. Chamberlin called Four Seasons Air Conditioning and Heating, Inc. to repair her air conditioning unit. William Pierce, an employee of Four Seasons Air Conditioning and Heating, Inc. in 1986, serviced the air conditioning unit at the Chamberlin residence on August 5, 1986. Mr. Pierce inspected the unit and found that the crank shaft was wrung off inside the compressor. There was a refrigerant leak and oil was visible all over the front of the condenser coil. Also, the fan motor was running backwards. Mr. Pierce's inspection of the condenser fan motor indicated rust around the shaft and fan hub. According to Mr. Pierce, if a fan motor is put on backwards, or rotates in the wrong direction, this would cause the head and back pressure to go up and could eventually internally overload the compressor. It did not do so in this instance, since the crankshaft was wrung off and the compressor froze up. Janis Chamberlin took pictures of the air conditioning unit (Composite Exhibit 10). These photographs were taken after William Pierce had pulled apart the air conditioning unit in preparation for installation of a new unit. The fan motor appears to show rust. The entire air conditioning unit in question was replaced by Four Seasons. Janis Chamberlin requested in writing that All Florida refund her the money paid to All Florida for repairs made to the air conditioning unit in the total amount of $516.95. The letter was dated August 12, 1986 and requested the refund by August 18, 1986. All Florida did not refund the monies. The Respondent never traveled to Mrs. Chamberlin's house to inspect the air conditioner in question or discuss with Mrs. Chamberlin the problems with the air conditioning unit. Robert H. Adams was accepted as an expert witness in the area of service of residential units in air conditioning and the responsibilities of a qualifying agent. Robert H. Adams is a certified residential contractor and he held a City of Jacksonville Master Heating and Air Conditioning license since approximately 1968. A qualifying agent is responsible for the conduct and supervision of the business, the supervision of it and the actions of its employees. The test for a freon leak in a residential unit is relatively simple. This includes looking for oil around any of the fittings, tubes and condensers. It normally takes only one service call to repair leaks. However, it is not unusual for a service technician to make more than one service call in order to locate all of the leaks. If a leak cannot be repaired, the serviceman should tell the client that it is not repairable. Unless a fan motor was exposed to chemicals or salt water, there would be no reason in a three week time span as to why it would rust. If an employee of a qualifying agent told a customer he was installing a new motor which turned out to be untrue, this would be the equivalent of deceit and fraud. Answering complaints from a customer is a distinct responsibility of a qualifying agent. If the fan motor installed in an air conditioning unit similar to the one installed at the Chamberlin residence has an improper rotation, this would affect the air conditioning unit. This would include causing an increase in pressures, inadequate cooling and could damage the compressor. During the period between March and July, 1986 and following three service calls, it is incompetence to fail to find freon and oil leaks. The Respondent received a minimum of three phone calls from his son, Robert Hollins, on July 15, 1986 concerning repairs needed to Mrs. Chamberlin's air conditioning unit. The Respondent spoke with his son, Robert Hollins, on May 19, 1986 concerning the service call at the Chamberlin residence. Robert Hollins in 1986 did not have a license to practice mechanical engineering in Seminole County, Florida and did not hold any license with the State of Florida other than a driver's license. In 1986, Robert Hollins resided in Leesburg, Florida, but was the sole employee at All Florida's branch office in Orlando, Florida. Although Robert Hollins would drive through Seminole County to and from work each day, he stated he was not familiar with Seminole County. Respondent testified that he had instructed his son to use a map in order to avoid performing any work in Seminole County, Florida. Robert Hollins did not examine a map to verify if the Chamberlin residence was in Seminole County, nor did he ask Mrs. Chamberlin which county she resided in. Every time Robert Hollins went to the Chamberlin residence for a service call, he checked in with the Respondent. On July 15, 1986, Hollins inspected the air conditioning unit at the Chamberlin residence and advised Mrs. Chamberlin she needed a new fan motor. Robert Hollins first obtains approval from Respondent before any purchase of equipment or machinery is made. On July 15, 1986, he obtained permission to purchase a new fan motor for the Chamberlin air conditioning unit. That same day Robert Hollins installed a new fan motor at the Chamberlin residence. The fan motor Hollis installed on July 15, 1986 had a 90 day warranty. All Florida warrants its work under the manufacturer's warranty. Subsequently, Chamberlin advised Hollins that the air conditioning unit was not working. He replied that if she had any problems with the unit he would rather not come out and work on it.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Respondent be found guilty of failure to discharge supervisory duties as a qualifying agent, violating Sections 489.119 and 489.105(4), Florida Statutes and that Respondent be reprimanded. Respondent be found not guilty of making misleading, deceitful, or untrue representations. Respondent be found guilty of incompetence, in violation of Section 489.129(1)(m), Florida Statutes, which caused monetary harm to the licensee's customer and that an administrative fine be imposed in the amount of $500. Respondent be found guilty of contracting in a county without a local license, in violation of Section 489.117, Florida Statutes, and that Respondent be reprimanded. DONE and RECOMMENDED this 21st day of September, 1989, at Tallahassee, Florida. DANIEL M. KILBRIDE 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 21st day of September, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-1611 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the Petitioner. The following Findings of Fact are Accepted: Paragraphs 1,2,3,4(in part) ,5,6,7,8,9,10,11,12,13,14,15(in part), 16,17, (in part),18,19,20,21,24,25,26,(in part),27,28,29,30(in part),31,32,33,34,35,36,37,38,39(in substance),40 The following Findings of Fact are Rejected: Paragraphs 22 and 23 - uncorroborated hearsay Pargraph 15(in part) - not relevant Paragraph 17(in part) - witness cannot give expert opinion testimony, since he was not qualified to testify as an expert COPIES FURNISHED: Fred Sealy Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 John E. Jordan, Esquire Wool folk, Estes and Keough, P.A. 131 Park Lake Street Post Office Drawer 3751 Orlando, Florida 32802 Richard A. Howard, Esquire Brownlee and Jacobs, P.A. Post Office Box 1448 Tavares, Florida 32778
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
