The Issue The issues in this case are whether Respondent violated Sections 455.228, 489.127(1)(a) and (f), 489.129(1), (h), (m) and , and 489.531(1)(a), Florida Statutes (1995), 1/ and, if so, what, if any, penalty should be imposed in accordance with Florida Administrative Rule 61G4-17.001. 2/
Findings Of Fact Petitioner is the state agency responsible for regulating contractors in the state. Respondent is not licensed as a general contractor and is not the qualifying agent for Freeman Associates ("Freeman"). In April 1995, Respondent entered into a contract with Charles and Lenore Brunty to renovate the Brunty residence located at 1301 Kanab Avenue North West, Palm Bay, Florida. The contract price for the renovation was $48,494.86. Respondent provided the Bruntys with a written estimate of cost. The written estimate bears the headings, "Freeman Associates," "General Contracting," and "Property Improvements." It describes the type of work to be performed and separate costs for "Roofing," "Exterior Paint," "Exterior Windows/Screens," "Interior Woodwork," "Interior Cabinets," "Plumbing," "Electrical," "Air Conditioning/Hearing," "Interior Paint," "Flooring," and "Addition-Kitchen, Breakfast, Bath." Respondent represented to the Bruntys that he would oversee or supervise all of the renovations to their residence and would provide all permits. The contract states: Any and all work requiring permits shall be obtained by me and/or subcontractors prior to starting of any work on this project. Petitioner's Exhibit 2. Respondent obtained bids from subcontractors, oversaw their work, and charged the Bruntys for the work performed by the subcontractors. Respondent agreed to begin work on June 12, 1995. However, he performed no work before July 21, 1995. The work performed by Respondent did not comply with industry standards. Respondent removed the roof without providing adequate protection for the interior of the home. The weather damaged the ceilings and the Mexican tile. The ceilings had to be replaced by the Bruntys. The Mexican tile has not been replaced because of cost. On September 9, 1995, the Bruntys cancelled the contract. On September 19, 1995, Respondent presented a bill to the Bruntys for $16,826.38. The Bruntys telephoned the suppliers and discovered that Respondent had not paid the suppliers. The tile supplier's invoice was altered. The price had been exaggerated by $2,120, or more than 100 percent. The Bruntys refused to release any funds to Respondent until Respondent provided a full accounting. On October 6, 1995, Respondent filed a mechanic's lien against the Brunty property for $16,826.38. Thereafter, Respondent filed a second lien for $34,835.33. Respondent certified in the liens that he had paid for materials and performed all work. However, the two liens overstate the work performed and the cost of materials. Respondent in fact failed to pay all liens. The combined total of the two liens exceeds the contract price by $3,166.85. Respondent did not complete the renovations to the Brunty property and is not entitled to full payment of the contract price. The liens caused the lender to withhold construction funds for the renovations until the matter was resolved in civil court. In the interim, the Bruntys paid materials, subcontractors, and legal fees out of their own funds. In May 1995, Respondent acted as a general contractor in a second transaction. Respondent contracted with Mr. Curt Iffinger, a licensed air conditioning contractor, to install an air conditioning system at the home of Mr. Albert Bresch located at 4149 Sherwood Boulevard, Melbourne, Florida. Respondent represented to Mr. Iffinger that Respondent was a general contractor. Mr. Bresch paid Respondent for the installation. Mr. Iffinger performed the required installation. Respondent refused to pay Mr. Iffinger. Mr. Iffinger filed a mechanic's lien against the Bresch property. Respondent failed to cause the lien to be removed within 75 days and executed an affidavit stating that all liens were paid in full.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Sections 455.228, 489.127(1)(a) and (f), 489.129(1), (h), (m) and (o), and 489.531(1)(a) and imposing an administrative fine of $8,500. DONE AND ENTERED this 18th day of November, 1997, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1997.
Findings Of Fact The Respondent, Mary Anne Shiell, is a licensed real estate salesman holding license No. 0044116. The Petitioner, the Department of Professional Regulation, Board of Real Estate, is an agency of the State of Florida, having jurisdiction over licensing and the regulation of licensure status of real estate salesmen. This dispute arose out of a business transaction involving the showing by the Respondent and others of a piece of residential real property to the complaining witnesses, William G. and Geraldine Fellows (son and mother). On March 6, 1979, the Respondent, Juanda Marsh and Skip Mark were employed as real estate salesmen by Mannix, Inc. On that day Juanda Marsh, while attempting to find residential property listings, became aware of a home owned by Paul E. Phipps and his wife which was for sale. After talking to the owners of the house, Mr. and Mrs. Phipps, Ms. Marsh went back to the Mannix realty office where she spoke to the Respondent and advised the Respondent of the Phippses' home being for sale. Ms. Marsh then met the complaining witnesses, the Fellowses, and took them to meet Mr. Phipps at the home in question. This was late in the afternoon of March 6, 1979, and the electricity had been turned off in the home. Mr. Phipps was then in the process of wallpapering and painting the dwelling, which he used as rental property. After leaving the home that evening, the complainants decided to offer the Phippses $37,000 for the property. The complainants and Ms. Marsh prepared the contract, which was executed that evening by the complainants. The sellers executed the contract the following day, and the transaction was closed March 15, 1979. The complainants did not take possession of the premises until sometime in April of 1979. On March 6, 1979, when the complainants first viewed the premises, the Respondent, Marsh, Mark, as well as Phipps, the seller, were present. The complainant addressed the group of people generally, asking what kind of condition the roof was in. All concerned looked toward Mr. Phipps; he nodded his head, assenting that the roof was in good condition. There was a general agreement that the house appeared to be in good condition. Neither the Respondent nor Ms. Marsh nor Skip Mark had any additional knowledge regarding the condition of the house other than that which they saw that day in the presence of the complainants. All were seeing it for the first time. The Respondent did not give any assurance to the complainants that the roof was in good condition; she relied, as did all present, on the assurance given by Mr. Phipps at the time. Immediately prior to the drafting of the contract on that evening, the complainants were advised by the Respondent that if an "as is" clause were placed in the contract it might induce the seller to accept the lower offer which the complainants had in mind, and the complainants agreed. Accordingly, Ms. Marsh inserted in the contract the "as is" clause on the face of the contract, meaning that the purchasers, the Fellowses, would buy the property in the condition it was in at the time for the price they were offering and which, ultimately, the owner accepted. Prior to the closing of the transaction, the Fellowses called the Respondent by telephone to ascertain that all checks had been made pursuant to the Buyer Protection Plan and the Respondent advised that she thought everything was in good working condition, but she would attempt to inspect the premises to ascertain for sure if all equipment and appliances were working. The Respondent attempted to make an inspection of the premises a day or two before closing and there was no electricity or water turned on so that the various appliances could not be tested. She informed the complainants of this, but they said they could not afford to have the utilities turned on. The Respondent then called Mr. Phipps and explained the situation to him. She asked if he was in a position to tell the complainants what condition everything was in and he told her that so far as he knew the only thing in the house that might not function properly was the dishwasher. Mr. Phipps told the Respondent that the air conditioner functioned properly and indeed the vents were in the walls or ceiling and appeared to be in order. The Respondent looked in the oven door of the range in the kitchen and the oven element appeared to be in good condition, although it was impossible to test it because the utilities were not on. The Respondent removed the kitchen range elements and visually inspected them. Again, no electricity was available to test them after this fact had been disclosed to the complainants. Upon taking possession of the property in April, 1979, the complainants discovered certain defects consisting of: a leaky roof; duct work missing from the air conditioning system; the oven was inoperable; the range had several inoperative elements; the plumbing in the toilets leaked; the hot water heater was inoperable; and the disposal was not connected. Witness Ralph Porch inspected the air conditioning system and found that no duct work existed in the hall ceiling to connect the air conditioning system to the mechanical unit. He did not try to turn on the air conditioner. He did recall seeing the air supply grills and stated that the only way one could find out that there were no ducts in place was to climb up in the attic and look; that it was not a defect observable from the normal living areas of the house. The Respondent, in addition to inspecting the kitchen appliances, inspected but saw no evidence of a mineral deposit or other symptoms of leaks around the toilets. Mr. Phipps had represented that the hot water heater was not very old and so the Respondent had no reason to believe that the hot water heater was inoperable. She looked beneath the sink to examine the garbage disposal and did not notice any pipes or electrical wiring absent. The complainants maintained that the Respondent represented to them that the electricity had been turned on for one day and that all the appliances had been checked out and were in working order. The Hearing Officer finds this testimony not credible inasmuch as the Respondent testified that she had never made such a representation, but rather had visually inspected them to the best of her ability with no electricity available to actually test the functioning of the appliances, which testimony was corroborated by the testimony of Bernice Shackleford from the Orlando Utilities Commission, who established that the electricity was turned off March 5, 1979, the day before the property was first shown to the Fellowses and to the Respondent. Ms. Shackleford also testified that the utilities were inactive continuously until April 20, 1979, long after the closing and long after the alleged inspection of the appliances took place. The undersigned thus finds that the Respondent never represented to the Fellowses that the electricity had been turned on for a day, nor that she had thus tested the appliances and found them all in working order. The Respondent did not make any statement to the effect that the roof did or did not leak. A reasonable inspection of the residence would not disclose that the air conditioning vents or air supply grills were not connected by ducts to the mechanical portion of the air conditioning system. Subsequent to their taking possession of the house and initially complaining to the Respondent and Mannix, Inc., concerning the defects in the dwelling, the complainants filed a civil action regarding their complaints. The complainants sued the Phippses, who were the sellers; Juanda Marsh; Mannix, Inc.; the Respondent; and Electronic Realty Associates, Inc. Although the complainants denied settlement of the case, in their testimony in the instant proceeding, the civil litigation was in fact dismissed by their attorney (see Notice of Voluntary Dismissal; Respondent's Exhibit A). In that civil action, only Juanda Marsh and Skip Mark were alleged to have made false representations to the complainants. In summary, the Respondent was not shown to have had any knowledge regarding the condition of the premises which she failed to reveal to the complainants and sometime after the controversy arose, the Respondent offered, on behalf of Mannix, Inc., to purchase the property back from the complainants for what they had paid for it, but this offer was rejected.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of counsel, it is, therefore, RECOMMENDED that the Administrative Complaint filed herein against Mary Anne Shiell be dismissed. DONE AND ENTERED this 29th day of July, 1982, at Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 FILED with the Clerk of the Division of Administrative Hearings this 29th day of July, 1982. COPIES FURNISHED: Joseph Doherty, Esquire 3220 Chelsea Street Orlando, Florida 32803 Charles N. Prather, Esquire 17 South Lake Avenue, Suite 103 Orlando, Florida 32801 Frederick H. Wilsen, Esquire Department of Professional Regulation 400 West Robinson Street Orlando, Florida 32801 C. B. Stafford, Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue in this case is whether disciplinary action should be taken against the license of John Arena (Respondent) based upon violations of Sections 489.105(4), 489.119 and 489.129(1)(e) and (m), Florida Statutes, as alleged in the Administrative Complaint filed against Respondent in this case.
Findings Of Fact At all times material hereto, Respondent has been licensed as a certified residential contractor in Florida, having been issued license number CR-C021139. The Department is the state agency charged with the responsibility to prosecute Administrative Complaints pursuant to Chapters 120, 455 and 489, Florida Statutes, and rules adopted thereunder. During March, 1988, the Respondent's license was issued in an active status qualifying Classic Industries, Inc., and this licensure status was effective until September 1989, when the Respondent's license was placed in inactive status. On or about September 23, 1988, Dorothy G. Fields entered into a contract for residential repairs and construction with Classic Industries, Inc., for her residence located at 4361 Southwest 23rd Street, Ft. Lauderdale, Florida. At the time of this contract, the Respondent was the qualifying agent for Classic Industries, Inc. However, the Respondent never personally spoke with Dorothy Fields, or anyone acting on her behalf, concerning this contract. Fields' contract with Classic Industries clearly reflects her understanding that the work to be completed included window repair, the installation of an air conditioner, and insulation, for which she was to pay $6800. However, Respondent understood that the only work to be performed for Fields was window repair, and accordingly, he pulled a permit on September 27, 1988 only for the repair of her windows, and not for the air conditioner or insulation work. There is no evidence in the record which would support the Respondent's understanding, and it is, therefore, found that Respondent was in error when he failed to pull permits for the additional work which was to be performed on Fields' residence. Respondent visited the site of this job and determined that the window repairs had been completed according to code specifications. He did not observe any work being done on the air conditioner or the installation of insulation. Nevertheless, this work was, in fact, performed, and Fields made full payment to Classic Industries in the amount of $6800. The air conditioning work on Dorothy Fields' residence was subcontracted by Classic Industries to Carlos Jimenez, d/b/a, All American Services. At all times material hereto, Carlos Jimenez, d/b/a, All American Services, was not licensed and qualified by the Construction Industry Licensing Board in Florida. No permits were obtained for the air conditioning and insulation work, and a Notice of Violation was issued by the local building inspector on October 11, 1988. Subsequent thereto, permits were obtained on November 15, 1988, after this work had been performed. On October 4, 1990, a Final Order was filed by the Construction Industry Licensing Board involving the Respondent in Case Number 109713 (DOAH Case Number 90-1416). As a result of violations of Section 489.129(1)(d),(j) and (m), Florida Statutes, which were found in that case, the Respondent was fined $2250, and his license was also suspended for as period of thirty days, subject to this period of suspension being stayed if he paid the administrative fine within thirty days. There is no evidence in the record to indicate whether Respondent did, in fact, pay this fine within thirty days.
Recommendation Based upon the foregoing, it is recommended that the Construction Industry Licensing Board enter a Final Order placing Respondent's license on probation for a period of two years, and imposing an administrative fine in the amount of $2,000. DONE AND ENTERED this 21st day of November, 1990 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1990. APPENDIX Rulings on the Department's Proposed Findings of Fact: 1-2. Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 6. Adopted, substantially, in Findings of Fact 3 and 4. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Copies furnished: Robert Harris, Esquire 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 John Arena 5961 S.W. 13th Street Plantation, FL 33317 Kenneth E. Easley, Esquire General Counsel 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Daniel O'Brien Executive Director Construction Industry Licensing Board P. O. Box 2 Jacksonville, FL 32202
Findings Of Fact Stephen G. Blume, the Respondent, is a state certified Class A contractor under Chapter 489, Florida Statutes. He holds license number CA C009753, and he is the qualifying agent for BCH Mechanical, Inc. (BCH), a Florida corporation, in which Blume is the principle stockholder. BCH is a mechanical contractor and concentrates its efforts in commercial construction work, particularly in shopping center construction. BCH subcontracts from owners or general contractors for the installation of heating, ventilating, and air conditioning for individual establishments within shopping malls. Prior to February 18, 1983, the Respondent contracted with a general contractor for the Respondent to provide heating, ventilation, and air conditioning equipment to approximately 15 stores in the Aventura Mall in Dade County, Florida. The work was of a nature for which the Respondent and BCH were qualified to perform under Chapter 489, Florida Statutes. On February 18, 1983, the Respondent and his company contracted with Richard E. Hahn, doing business as Temp-Rite Air Conditioning and Refrigeration, Inc., to install air conditioning systems in spaces 128, 163, 645, and 677 at the Aventura Mall. See attachment to Respondent's Exhibit 1, and paragraph 3 of the administrative complaint. On February 23, 1983, the Respondent obtained building and mechanical permits to perform heating, ventilation, and air conditioning work on spaces 163, 645, 677, and 128 at the Aventura Mall. See Petitioner's Exhibit 1. The Respondent did not attempt to list the permits in the name of Hahn at the time of application or subsequently. Richard Hahn did not have a certificate of competency to do air conditioning construction work, and was not qualified in Dade County to obtain a permit to do that work himself. He also was not licensed by the Construction Industry Licensing Board to perform this work. The Respondent selected Hahn by the following process. When he got to the mall, he contacted Robert Shaw Controls, the company that was doing work on the concourse air conditioning systems at the mall. Employees of Robert Shaw told the Respondent of three pipe fitting companies that were then doing work at the mall. All three gave the Respondent bids, and Respondent selected Hahn's company as low bidder. There is no evidence that Blume was a friend of Hahn prior to this contract. Respondent's company specializes in installation of air conditioning systems in shops in commercial malls. Respondent's company employs 30 to 40 people. Most of this is handled by his own employees, without subcontracts. Thus, for most of his work, there is no need for a licensed subcontractor. At the Aventura Mall project, the Respondent determined that he needed to hire a subcontractor affiliated with the pipefitters union for the work on first floor shops. The Respondent did not have a bargaining agreement with the pipefitters union, and thus could not call the Dade County pipefitters' hiring hall to hire a pipefitter as a temporary employee. Instead, Respondent had to subcontract the work to a pipe fitter union member. Respondent determined that he needed pipefitter union affiliation because that union was quite strong in Dade County, and use of nonunion members might have caused labor unrest at the mall work site. It was not to the economic advantage of the Respondent to subcontract the work to Hahn. It would have been more profitable to the Respondent to have followed his usual business practice of doing the air conditioning pipe fitting work using his own nonunion pipefitter employees. The Respondent asked Hahn if he was a licensed contractor for his work, whether he was a union pipe fitter, and whether he carried worker's compensation coverage. The Respondent was told by Hahn that he had a license, that he was a journeyman union pipe fitter, and that he did carry worker's compensation coverage. Following his past practice, the Respondent asked Hahn only for proof of his worker's compensation coverage. The Respondent did nothing to attempt to verify the truth of Hahn's assertion that he was a licensed contractor. The Respondent could have verified the existence of Hahn's license by either asking Hahn to show him his license card or by telephoning the license record officer in Dade County and asking that agency to verify Hahn's license. The Respondent did not do either of these things both of which were relatively easy to do. The Respondent had memorized his own contract license number. William Lessaris was employed by the Respondent and BCH Mechanical, Inc., to provide daily supervision of the project. Lessaris was at the job site daily. Other BCH employees were also on the job site. John D. Arition is Mechanical and Building Inspector and Plans Processor for far the Building and Zoning Department of Dade County, Florida. Arition was called by Lessaris to come to the job site to perform the air conditioning inspection. Arition did not tell BCH Mechanical, Inc., when he would arrive. When Arition arrived on the job site, Hahn was there. Arition asked Hahn for his license to do the work. Hahn told Arition that he did not have a license. Arition ordered Hahn to cease work. Hanh picked up his tools and left the job site. Arition then talked with Lessaris and told him about the problem with Hahn. The work was completed satisfactorily, without defects. Subsequently, Hahn was administratively charged with violating various provisions of Dade County construction law, was found to have committed six violations, was fined a total of $2,700 and had his personal certificate of competency suspended for one year. Blume was asked to appear at the hearing, but could not due to prior scheduled work. There is no evidence that Blume was given adequate notice of the date of the hearing, and it appears that he was given only short notice of the precise date. Blume was not subpoened to appear, and was not at fault in failing to appear. Blume voluntarily supplied Dade County with all documentary evidence requested.
Recommendation In consideration of the foregoing, it is recommended that the Petitioner enter a final order finding no violations as alleged, and dismissing the administrative complaint. DONE and ORDERED this 29th day of March, 1985, in Tallahassee, Florida. WILLIAM C. SHERRILL, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 1985. COPIES FURNISHED: Mr. Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 H. Reynolds Sampson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 William Sizemore, Esquire Suite 838, Plaza On The Mall 201 East Kennedy Boulevard Tampa, Florida 33602 Salvatore Carprino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact At all material times, Respondent has been a registered plumbing contractor, holding license number RF 0049725. He was first licensed in October, 1985, and has practiced plumbing contracting continuously since that time. Respondent has not previously been disciplined. In early 1989, Respondent entered into a subcontract with A-1 Properties to provide various plumbing labor and materials in connection with a residential construction job on which A-1 Properties served as general contractor. The total price of the subcontract was $5100. In general, Respondent performed his work in a timely and competent manner. A minor problem arose involving gas lines that Respondent installed in the kitchen. When a representative of the gas company inspected them during construction, he objected to certain fittings. After giving Respondent a few days to change the fittings, the owner authorized the gas company to make the changes when Respondent failed to do so. The record does not disclose what, if anything, the gas company charged the owner for the work. However, the work was not extensive, and the owner withheld from Respondent only $165 to cover the anticipated invoice from the gas company. In the course of performing the plumbing work, Respondent purchased, at a cost of $2117.77, materials from Shamrock Plumbing. The dates of the invoices reflecting these purchases and the amounts of the invoices are: August 2, 1989- - $1066.57; August 12, 1989--$37.77; August 25, 1989--$814.86; and August 25, 1989--$198.57. Respondent never paid Shamrock Plumbing for these materials. The owner and A-1 Properties timely paid Respondent for all of his work. As a result of change orders, the price for the job increased by $1355.45 to a total of $6455.45. In August, as Respondent's work drew to a close, the owner and A-1 Properties paid Respondent $2337 as follows: August 25, 1989-- $700; August 29, 1989--$500; and August 30, 1989--$1137. These payments total $2337. In making the final payment to Respondent, the representative of A-1 Properties was aware that Shamrock Plumbing had sent to a Notice to Owner for the plumbing materials that Respondent had purchased. Except possibly for the $165, item, Respondent and the general contractor were in agreement, when the final payments were made in August, that Respondent had been paid substantially in full and that he would pay Shamrock Plumbing. When Respondent failed to pay Shamrock Plumbing, it recorded a Claim of Lien on September 28, 1989, against the real property and initiated an action to foreclose the lien. The owner was required to retain the services of an attorney to defend the foreclosure action, pay Shamrock: Plumbing's legal costs, and obtain a release of lien. In so doing, the owner expended a total of $3984.19, as follows: his attorney--$456; Shamrock Plumbing's attorney--$1410.42; Shamrock Plumbing's invoice--$2117.77. The owner paid his attorney by checks dated January 16 and July 31, 1990. The check to pay Shamrock Plumbing and its attorney was dated February 26, 1990. On March 12, 1990, Shamrock Plumbing executed a Release of Lien, which was recorded on April 10, 1990. Respondent has not since reimbursed the owner for his expenditure of $3984.19 because Respondent lacks the money. He applied the August, 1989, payments received for the present job to satisfy obligations arising out of other jobs. Respondent testified that his money problems began when he was not paid for work he performed on other jobs, but they were unrelated to the job involved in this case.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Construction Industry Licensing Board enter a final order finding Respondent guilty of violating Section 489.129(1)(h), assessing Respondent for the costs of the investigation and prosecution up to a maximum of $1000; placing Respondent on probation for two years; requiring Respondent to pay the owner $3984.19, plus interest at the legal rate, in restitution; and, if at the end of the two-year probation Respondent has failed to pay the owner in full, imposing an administrative fine of $1500 and suspending Respondent's license for one year. ENTERED this 20 day of May, 1991, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20 day of May, 1991. APPENDIX Treatment Accorded Proposed Findings of Petitioner 1-8 (first sentence): adopted or adopted in substance. 8 (remainder) : rejected as irrelevant. 9-12 (first sentence): adopted or adopted in substance. 12 (second sentence): adopted that Respondent accepted the final payments. Rejected as unnecessary that Respondent did-not protest the $165 retainage. 13: rejected as unnecessary. 14: first clause rejected as unnecessary. Second clause adopted. 15: rejected as unnecessary. 16-17 and 22: rejected as subordinate. 18-20: adopted or adopted in substance. 21: rejected as unnecessary. 23-24: adopted or adopted in substance. Treatment Accorded Proposed Findings of Respondent first page: adopted or adopted in substance. second page, first incomplete paragraph: rejected as irrelevant, unnecessary, and not finding of fact. second page, first complete paragraph: rejected as unnecessary and irrelevant. second page, second complete paragraph: rejected as unnecessary. COPIES FURNISHED: Jack McCray, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Daniel O'Brien, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32202 Attorney William S. Cummins Department of Professional Regulation 1940 North Monroe St., Suite 60 Tallahassee, FL 32399 James E. Todd, pro se 1621 Truman Rd. Orlando, FL 32807
Findings Of Fact By his answers to Petitioner's Request for Admissions, Respondent indicates, and it is so found, that he is currently licensed by the Florida Construction Industry Licensing Board under license CA C010372 as a certified air conditioning contractor; that his license was in effect at all times material to the allegations involved in this hearing; and that his license was in effect as of the date of the hearing. The Construction Industry Licensing Board, (Board), is the state agency responsible for licensing construction trades professionals in this state. Sometime prior to August 18, 1987, Respondent's firm contracted with Ralph Worthington to replace the air conditioning system at Mr. Worthington's home in Pinellas County, Florida. The contract price was $3,075.00. The work was completed. On August 19, 1987, Dale J. Parker, a mechanical inspector for the City of St. Petersburg, which utilizes the Standard Mechanical Code as a guideline for construction in the city, inspected the unit in question installed by Respondent's concern, Residential Air Conditioning. A permit to complete the work had been issued on June 25, 1987 for the work. No explanation was given for why the inspection was not done until approximately two months after the permit was issued, but that delay is not relevant to the issues here. During his inspection, Mr. Parker found that the provisions of Sections 303.2 and 303.3 of the Standard Mechanical Code had not been followed by the Respondent's firm in that no light was available in front of the unit, no electrical disconnect was furnished for the unit, and there was no clear access to the unit. Access is required to be through an unencumbered space no less than 22 by 36 inches. When he went up into the attic to examine the unit, he found the area to be tight and dark. At the time, he was unable to see any defects other than those he listed, but his general opinion of the installation was that it was "not a good job" and was somewhat "sloppy". As a result of the defects he saw, he rejected the work and "red tagged" it. Issuance of a red tag requires correction of the defect and reinspection of the work. Evidence indicates that the required light had not been there prior to Respondent's installation and the access to the unit, which required stepping over an air duct, was the same as it had been before the installation of the new unit. The Code requirement to correct these defects existed when the house was built. It is clear the initial installation, not done by Respondent, was also deficient. Respondent admits that when he installed the new unit, he assumed the responsibility for correcting the existing deficiencies and bringing the installation up to Code requirements. However, Mr. Worthington, the homeowner, would not allow Respondent's personnel back into his residence to correct the problems. This does not excuse the improper installation but would have resulted in a waiver of the reinspection fee. On October 1, 1987, William Rinehart, owner of Johnson's Air Conditioning, who had been contacted by Mr. Worthington, sent his technician, Mr. Aleshire out to the property to make the repairs. Mr. Aleshire discovered a lot of water in the insulation in the attic in the area around the air conditioning unit. He also noticed that duct work had come loose from the unit, that the unit was tilted, and that both the primary and secondary drain pipes were clogged with sand at the outside outlet. When he moved the insulation, he found the attic floor had rotted as a result of water condensation which had spilled out of the drain pans surrounding the unit onto the floor. As a result, the attic floor fell through into the room below. Mr. Aleshire found that the air handling unit was improperly tilted. So was the primary drain pan which was improperly tilted away from the drain. Since the drain was clogged, when the condensation collected in the pan, instead of draining out, it ran over the opposite side of the pan into the secondary pan from which it could not drain because that plug was clogged as well. As a result, the condensation water ran over out onto the attic floor. Aleshire also noticed that some of the wiring had to be replaced because of a lack of sealing and failure to use Romex connectors, both of which are required by the Code. In his opinion, however, except for the electrical problems and the tilted air handling unit and drain pans, the installation was up to Code. Had it not been for the clogged drains, the unit would probably have worked satisfactorily for a long period without problems. There is no evidence to connect the clogged outside drains with the Respondent. He is, however, responsible for the other defects noted. Both Aleshire and Rinehart consider the tilted installation of the air handling unit improper. Mr. Rinehart would have used adjustable bolts to affix the unit and a carpenter's level to insure the drainage was proper. The failure to level the unit is negligence and the failure to utilize proper sealant and Romex connectors constituted misconduct since both are required by the Code. Respondent does not deny either of these defects. He contends his firm did what it agreed to do. When Mr. Worthington complained, he initially responded and attempted to correct the problems but was unable to do so to Mr. Worthington's satisfaction. The problems were not corrected by Respondent. Nonetheless, Respondent contends his firm tried to do a proper job and feels Worthington overreacted, frequently complaining when a workman was only a few minutes late for a scheduled appointment. Respondent was not personally aware of the details of the installation in question, did not do any of the work himself; nor did he inspect the job when it was completed. When this work was being done, Respondent, who is in partnership with Mr. Neidrich was in Tampa opening another office for the firm. He first found out about it after a complaint was filed and, in an effort to work out their differences, attempted to contact Worthington up until the time the Department of Professional Regulation got into the picture. Respondent, who qualified the company under his license, is an engineer and his primary function with the company is to design complicated systems. He visits jobs of "difficult installation" but acts merely as a consultant on the company's routine business. He performs quality checks from time to time on routine as well as major jobs to insure the work is being done properly. Though he testified he does this on a weekly basis, he admitted his last inspection was four weeks before the hearing. The correction of the defects identified herein was subsequently accomplished by another contractor hired by Mr. Worthington at additional cost. He also paid $422.80 to replace floor covering damaged as a result of the tilted air conditioning unit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Neal A. O'Connor be reprimanded and pay an administrative fine of $500.00. RECOMMENDED this 25th day of May, 1989 at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 1989. COPIES FURNISHED: Elizabeth A. Alsobrook, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Neal A, O'Connor 1925 Hastings Drive Clearwater, Florida 34623 Kenneth A. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, vs CASE NO.: 89308 DOAH CASE NO.: 89-0186 NEAL A. O'CONNOR, LICENSE NO.: CA C010372, Respondent. /
The Issue The issue is whether Respondent should deny Petitioner the right to take the state air conditioning contractor examination for lack of good moral character.
Findings Of Fact The National Assessment Institute ("NAI") provides examinations to the State Construction Industry Licensing Board, including the examination given for certification as a state air conditioning contractor. Petitioner has unsuccessfully taken the state air conditioning contractor examination approximately four times in the past. Petitioner has reviewed previous examinations and is familiar with procedures imposed pursuant to Section 455.229(2), Florida Statutes. No part of the examination may be copied, including any part of the questions or answers. Loose-leaf student manuals purchased from NAI may be taken into a review and retained by the student after the review is completed. Scratch paper provided by NAI officials during a review must be turned in at the conclusion of the review. On April 23, 1993, Petitioner reviewed a recent state air conditioning contractor examination. Petitioner reviewed the examination at a branch office of the NAI. Prior to April 23, 1993, Petitioner purchased a student manual. Petitioner placed one piece of carbon paper over one piece of blank paper and inserted the carbon set between two pages of the student manual. Petitioner taped closed the two pages of the student manual and tabbed the taped pages of the student manual ("altered pages"). Petitioner inserted three more carbon sets inside the student manual in identical fashion, producing a total of four altered pages. During the examination review on April 23, 1993, Petitioner placed a blank sheet of scratch paper on top of the first altered page of the student manual. Petitioner wrote the answers to the first part of the examination on the scratch paper. The answers were copied on the carbon set underneath the scratch paper. In a similar manner, Petitioner copied answers to each of the remaining three parts of the examination on the carbon sets inside each of the remaining altered pages in the student manual. Petitioner used a numeric code of "1-4" to represent answers "a-d" on each part of the examination. Petitioner used arithmetic symbols and other lines to disguise his effort by making it appear he was writing down mathematical formulas. However, the sequence of numbers "1-4" correspond to the correct answers "a-d" for each part of the examination reviewed. Petitioner copied 200 examination answers. During his testimony at the formal hearing, Petitioner explained: I did do something wrong. Transcript at 47. What I was trying to do was take down all the different letters. . . . I wanted to see if there was some kind of sequence where there were more A's, B's, more C's or more D's used. Transcript at 49. I was desperate. My whole life is air conditioning and refrigeration. * * * I've been trying to pass that test for at least the last two years, maybe more. . . . I believe it's been at least four times, maybe more. Transcript at 47. NAI representatives monitoring the examination review telephoned local police, and Petitioner was arrested pursuant to Section 455.2175, Florida Statutes. The materials used by Petitioner to copy examination answers were confiscated by police. Criminal charges were dismissed without conviction. Each examination question costs the state approximately $200. The 200 questions corresponding to the 200 answers copied by Petitioner will no longer be used by the state. Petitioner testified that he has dyslexia and attention deficit disorder. However, Petitioner has never requested additional time for an examination, never notified Respondent of Petitioner's disability, and never requested Respondent to provide special examination facilities or procedures.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order denying Petitioner's request to take the state air conditioning contractor examination for the reasons stated herein. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of October, 1994. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1766 Petitioner's Proposed Findings of Fact Accepted in substance Rejected as conclusion of law 3.-8. Accepted in substance 9.-12. Rejected as irrelevant and immaterial 13. Accepted in substance 14.-15. Rejected as irrelevant and immaterial 16. Rejected as not supported by credible and persuasive evidence 17.-18. Rejected as irrelevant and immaterial Rejected as not supported by credible and persuasive evidence Rejected as irrelevant and immaterial and as recited testimony Rejected as not supported by credible and persuasive evidence Respondent's Proposed Findings of Fact 1.-8. Accepted in substance Rejected as irrelevant and immaterial Rejected as not supported by credible and persuasive evidence 11.-13. Accepted in substance COPIES FURNISHED: Richard Hickok Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Jack McRay Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 James W. Kline, Esquire P.O. Drawer 30 180 South Knowles Avenue Winter Park, Florida 32790-0030 Clark R. Jennings, Esquire Assistant Attorney General Deptartment of Legal Affairs Administrative Law Section Suite PL-01, The Capitol Building Tallahassee, FL 32399-1050
The Issue This matter concerns the issue of whether the Respondent's license as a heating and air conditioning contractor should be suspended, revoked or other disciplinary action taken as a result of allegedly contracting outside the scope of his license, willfully or deliberately violating a local building code by failing to pull a permit, and failing to affix his license number to a contract and making an untrue representation in the practice of contracting. Counsel for both Petitioner and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that such findings of fact are not adopted in this Recommend Order, they have been rejected as being irrelevant to the issue in this cause, or as not having been supported by the evidence.
