Findings Of Fact At all times relevant hereto, Respondent was licensed by Petitioner as a certified air conditioning contractor having been issued license No. C-2805 (Exhibit 1). From 1984 to June 29, 1992, Respondent was the qualifying contractor of record for Jay's Air Conditioning & Refrigeration (Exhibits 1 and 2). On December 11, 1991, Respondent and Vincent Tipaldo executed a contract for the sale and purchase of certain goodwill and inventory of Jay's Air Conditioning & Refrigeration, of Pinellas County, Florida from the Respondent to Tipaldo. (Exhibit 4). Paragraph 5 of the above agreement stated that Respondent agreed to allow Vincent Tipaldo to use Respondent's contractor license until the buyer, Vincent Tipaldo, obtained his own. Vincent Tipaldo transferred $18,000.00 to Respondent as consideration for the contract with the remaining $10,000.00 to be paid to Respondent in installments of $318 per month for three years. Respondent authorized Vincent Tipaldo and other uncertified and unregistered persons to pull and obtain permits under his license for Jay's Air Conditioning & Refrigeration from December 11, 1991 to May 5, 1992 (Exhibit 5). Shortly after the sale of the business Respondent was injured in a vehicle accident and was unable to work. Tipaldo stopped the monthly payments to Respondent and Respondent ceased supervising the projects. The situation deteriorated and civil litigation is ongoing. On May 5, 1992 and thereafter, Respondent no longer authorized anyone to pull permits or act under his license for Jay's Air Conditioning & Refrigeration using license No. C-2805 (Exhibit 5). On June 29, 1992, Respondent submitted to Petitioner a change of status no longer acting as the qualifying contractor of record for Jay's Air Conditioning & Refrigeration (Exhibit 2). Respondent did not supervise and had no active participation in the operation, management or control of the business from shortly after December 11, 1992 to June 29, 1992. Tipaldo was not licensed and has never been licensed as an air conditioning contractor by the PCCLB (Exhibit 3). After Respondent no longer authorized Tipaldi or anyone else to pull permits for Jay's Air Conditioning & Refrigeration in May 1992, Joe B. Hutson became the qualifying contractor of record for Jay's Air Conditioning & Refrigeration (Exhibits 6, 7 and 9).
Recommendation It is, therefore RECOMMENDED: That the license of Jay W. Beckner as a certified air conditioning contractor be suspended for a period of six months under such conditions as the Board deems appropriate. DONE and ENTERED this 6th day of January, 1993, at Tallahassee, Florida. K. N. AYERS 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 6th day of January, 1993. COPIES FURNISHED: David S. Sadowsky, Esquire 315 Court Street Clearwater, Florida 34616 Jay W. Beckner P.O. Box 20573 Bradenton, Florida 34203 William J. Owens, Executive Director Pinellas County Construction Licensing Board 11701 Belcher Road - Suite 102 Largo, Florida 34643 5116
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings. Petitioner is the State agency charged with regulating the practice of contracting. During times material hereto, Respondent was licensed by the Construction Industry Licensing Board as a certified air conditioning contractor having been issued licensed number CA C022410. Respondent has been so licensed since May 1982. During December, 1982, Petitioner submitted a change of status application requesting that his license be changed to qualify for All County Air Conditioning (All County) in Fort Lauderdale, Florida. That change of status application was approved by Petitioner and Respondent has remained the qualifier for All County continuously and his license has been renewed as such and is active for the period 1987-1989 (Petitioner's Composite Exhibit 4). On September 4, 1985, Respondent through the entity All County, entered into a contract with Ernest D'Esposito to "furnish and install 1 new Whirlpool 2 Ton condensing unit, with new slab, hook-up to existing pipes and electric". The agreed upon price to complete the work was $950.00 with a five year guarantee on the compressor and a one year guarantee on parts and labor. (Petitioner's Exhibit 1). Respondent commenced the work as agreed and completed the work as scheduled. Respondent did not obtain a permit for said work from the local building department nor was a permit posted on the job site when Respondent commenced work on the project. While the work was in progress, Respondent did not obtain any inspections for the work from the local building department. A record search of the Pembroke Pines Building and Zoning Department revealed that Respondent did not obtain a permit to install the air conditioning unit at D'Esposito's residence. (Testimony of Marie Bogart, records custodian, Building and Zoning Department, City of Pembroke Pines). Rene Pena, chief mechanical inspector for the City of Pembroke Pines, is the person who checks the installation of all air conditioning work in the City of Pembroke Pines. Mr. Pena did not perform any inspections on D'Esposito's job nor was he requested to perform any inspections by Respondent. Respondent testified at the hearing and admits that no permit was obtained for D'Esposito's job. However, Respondent offered his opinion that the code did not require a permit and that his failure to obtain one was not a violation of the South Florida Building Code. Finally, Respondent offered that to the extent that there was a technical violation of the law, it was not a willful violation and that imposition of a fine would not be appropriate in this instance as his firm "tries to stay within the confines of the South Florida Building Code". Respondent acknowledged that he is the person responsible for ensuring that permits are obtained when required for completion of projects.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: Petitioner, Construction Industry Licensing Board, enter a Final Order imposing an administrative fine against Respondent in the amount of five hundred dollars ($500.00), the payment of which shall be made to Petitioner within a time frame deemed appropriate by Petitioner. Respondent's license as a certified air conditioning contractor be placed on probation for a period of thirty (30) days. RECOMMENDED this 28th day of January, 1988, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 1988. COPIES FURNISHED: G. Vincent Soto, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Michael B. Falls 4611 Southwest 30th Way Fort Lauderdale, Florida 33312 Fred Seely, Executive Director Department of Professional Regulation, Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neill, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact The following facts (a) through (r) are found based upon a stipulation by and between counsel for Petitioner and counsel for Respondent as to the truth of these facts: Respondent is a registered general con- tractor having been issued License No. RG0019039. Respondent's last known address is c/o Page Construction Company, 402 Davenport Drive, Valparaiso, Florida 32580. At all times material herein, Respondent was the qualifying agent for Page Con- struction Company. In August, 1980, Lillian Mark contacted the Respondent for advice as to how to get the central air conditioning system at her residence into operation. On August 15, 1980, Respondent inspected the old air conditioning unit and recommended that Lillian Mark have a new air conditioning system installed in the residence. On August 20, 1980, Respondent, who was doing business as Page Services, orally contracted to install a new Mammoth water- to-air heat pump at Lillian Mark's residence, located at 408 West Cedar Street, Niceville, Florida. Lillian Mark paid to Respondent a $1,600 down payment on the system, by check payable to Page Services. Respondent immediately started work on the installation and completed the work on August 23, 1980. On August 23, 1980, Lillian Mark gave Respondent a check in the amount of $435 payable to Page Services. A portion of the $435 was to pay for repairs to the duct system. The only license held by Respondent was a general contractor's license. At the time Respondent performed the work for Lillian, he was doing business as Page Services. The Mammoth heat pump installed by Respon- dent failed to heat the residence during cold weather. Further, the system required a large quantity of water to operate, which resulted in excessive water utility bills. Respondent agreed to remove the Mammoth water-to-air unit and replace it with a Ruud Air Conditioning System. However, the Respondent failed to install the new system properly, and water leaked from the unit causing property damage to Lillian Mark's residence. Further, the new Ruud unit failed to operate as installed. In May, 1980, Agnes Webb contacted Respon- dent for advice as to what work was required to make the air conditioning system in her residence operable. Respondent inspected the old air conditioning unit, and recommended that Agnes Webb have a new air conditioning system installed in the residence. On or about May 21, 1980, Respondent orally contracted with Agnes Webb to install a Ruud heat pump at her residence located at 1008 Bayshore Drive, Niceville, Florida. Respondent installed the unit and Agnes Webb paid Respondent $1,700 for the work. When Respondent performed the work for Agnes Webb, he had only his general contractor's license. Respondent has made full restitution to Lillian Mark for all costs incurred by her as a result of work performed by Mr. Page. Respondent has made full restitution to Agnes Webb for all costs incurred by her as a result of work performed by Mr. Page. Respondent failed to obtain a permit for the installation of the air conditioning system at the Mark residence. Respondent failed to obtain a permit for the installation of the air conditioning system at the Webb residence. Niceville City Ordinance 309 (1973) required that a permit be obtained for the installations at the Mark and Webb residences. The Respondent installed an air handler unit inside and the heat pump unit outside at the Mark residence. He hired another person to do the electrical work. Following the Mark installation, the air conditioning function worked fine but the unit would not heat. The unit used an excessive amount of water. Respondent, at Ms. Mark's request, replaced the heat pump unit with a totally electric Ruud unit. The second unit worked fine but leaked large amounts of water and soaked the carpet. The Respondent then paid two men to install a third unit in the Mark's home. The installation of the third unit required additional work because of the following problems: (1) the refrigeration lines were spliced and of two different sizes, (2) the electrical lines were spliced and had to be replaced, and (3) the control circuits had to be completely redone. The cost of these repairs was $349. The Respondent replaced the thermostat and entire air conditioning unit, and did some duct work at the Webb residence. The thermostat was not the proper type of thermostat for the unit installed and the outside duct work was not properly covered to protect it from weather. At the time of the Mark and Webb installations, the Niceville City Ordinance No. 304 (-1974) required registration of general contractors, electrical contractors, plumbing contractors, and mechanical contractors. The Respondent was not registered with the City of Niceville. In addition to his state general contractor's license, the Respondent holds an Okaloosa County occupational license as a general contractor and an occupational license with the City of Valparaiso, Florida, as an electrical contractor. At no time did Respondent qualify Page Services to engage in the business of contracting in the State of Florida. Respondent was the contractor who was responsible for the entire installation at the Mark and Webb residences. He was aware certain licenses and permits were required by the City of Niceville. There was no evidence that Respondent checked with any City of Niceville official to determine if a permit was required for installation of air conditioning systems. Respondent had performed work on other jobs for other contractors where permits had been obtained for this type work. The Respondent was also aware that if he put in a new air conditioning system, including duct work, he would need a permit. He also understood that if he ran a new circuit, he needed a permit. Respondent understood that the work performed for Agnes Webb and Lillian Mark was replacement of a system, not repair of a system. Respondent did not check with any official of the City of Niceville to determine if he needed a particular license to perform air conditioning work in the City of Niceville. He was not personally aware that such a license was required. Since the filing of this action, Respondent has registered to take the examination in Okaloosa County for a license to do air conditioning repair work.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent be found guilty of those specific violations as set forth above and that he be required to pay an administrative fine of $500. It is further recommended that Respondent's license as a registered general contractor be suspended for a period of 6 months. DONE and ENTERED this 21st day of June, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 1983. COPIES FURNISHED: John O. Williams, Esquire 547 North Monroe Street Tallahassee, Florida 32031 Harold F. Peek, Jr., Esquire Post Office Box 147 Valparaiso, Florida 32580 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. James Linnan Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
Findings Of Fact Respondent, George A. Wallace, was, at all times material hereto, licensed as a Class "A" air conditioning contractor by the State of Florida, having been issued license number CA CO13239. Respondent was, at all times material hereto, the qualifier for EMC Corp. On May 14, 1981, EMC Corp. entered into a written agreement with Sophie Griffin to replace the heating and air conditioning unit at Ms. Griffin's home in Fort Lauderdale, Florida. The unit was installed in May, 1981, and Ms. Griffin promptly paid the full contract price of $2,200.00. Section 301(a), South Florida Building Code, provides: It shall be unlawful . . . to install or alter any equipment for which provision is made or the installation of which is regulated by this Code without first having filed application and obtained a permit therefore from the Building Official. A permit shall be deemed issued when signed by the Building Official and impressed with the seal of the governmental agency issuing said permit. Section 301.1(1), South Florida Building Code, provides: Permits, to be issued by the Building Official, shall be required for the following operations: * * * The installation, alteration, or repair of any air conditioning or refrigeration apparatus. . . . The South Florida Building Code has been adopted by Broward County. EMC Corp. installed the new heating and air conditioning unit at Ms. Griffin's home without first having obtained a building permit from the City of Fort Lauderdale, Florida. On March 20, 1984, EMC Corp. obtained the required permit, and paid a penalty of $25.00 for having failed to secure the permit before undertaking the work. On March 26, 1984 an inspector with the City of Fort Lauderdale inspected the installation of the unit and found, contrary to the provisions of Sections 2306 and 4801.10, South Florida Building Code, that the unit had not been anchored. EMC Corp. promptly anchored the unit. Section 4505.1. South Florida Building Code, provides: PERMITS REQUIRED: It shall be unlawful to do or commence to do any electrical work on a new installation of permanent or temporary wiring, any electrical apparatus or equipment or make extensions and/or changes to existing wiring systems . . . without having first filed application and obtained an electrical permit therefore from the Electrical Inspector. APPLICATIONS: Applications for permit will be accepted from only qualified persons or firms. . . . Neither Respondent nor EMC Corp. was a qualified electrician, nor were they licensed by the state of Florida as electrical contractors. EMC, without an electrical permit, connected the wiring of the new unit with the existing electrical service. Respondent contends, and the City of Fort Lauderdale agrees, that it is an accepted practice for an air conditioning contractor to disconnect the leads from an existing air conditioning unit and reconnect them to the new unit, without the necessity of an electrical permit, if there is no difference between the units. In this case the evidence establishes that, although the replacement and existing units were 3-ton units, the amperage demands of the replacement unit were greater than the existing unit, and that the existing wiring was inadequate. However, no hazardous condition was created by EMC Corp. reconnecting the leads from the existing unit to the replacement unit. Apart from the foregoing discrepancies, EMC Corp.'s installation of Ms. Griffin's new unit met all standards established by the South Florida Building Code. Further, EMC Corp. has faithfully fulfilled all warranty and service work it contracted to perform.
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.
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
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 the incorporation by reference into Chapter 9B-13, Florida Administrative Code, of Sections 410.1.ABC.2, 410.1.ABC.3.1 through 410.1.ABC.3.4, 410.1.ABC.3.5, 503.8, 610.1.ABC.2, 610.1.ABC.3.0, 610.1.ABC.3.1, and 610.1.ABC.3.5 and Tables 4-10, 5-10 and 6-9, constitute an invalid exercise of delegated legislative authority?
Findings Of Fact The Parties. Petitioner Air Conditioning and Refrigeration Institute (hereinafter referred to as "ARI"), is an association of heating and air-conditioning equipment manufacturers. ARI's members include approximately 90 percent of the producers of heating and air-conditioning manufacturers in the United States. Petitioner, Gas Appliance Manufacturers Association (hereinafter referred to as "GAMA"), is also an association. GAMA's "Furnace Division" is composed of manufacturers of greater than 95 percent of the gas and oil furnaces sold in the United States. Most of the members of the Furnace Division also manufacture central air-conditioning equipment. Petitioner Florida Home Builders Association, Inc. (hereinafter referred to as "FHBA"), is an association composed of contractors, subcontractors, and material suppliers engaged in the construction industry in the State of Florida. The Respondent, the Department of Community Affairs (hereinafter referred to as the "Department"), is charged with the responsibility for, among other things, adopting a "statewide uniform standard for energy efficiency in the thermal design and operation of all buildings statewide . . . ." Section 553.901, Florida Statutes (1991). Standing of the Petitioners. A substantial number of ARI's members and GAMA's members (members of the Furnace Division) are affected by the rules at issue in this proceeding. A substantial number of FHBA's members are affected by the rules at issue in this proceeding to the extent that those rules impose requirements concerning the installation of air-conditioning and heating equipment. FHBA failed to prove that the rules at issue which govern insulation requirements for air handling units impact its members. The subjects of the rules at issue are within ARI's and GAMA's general scope of interest and activity. The subject of the rules at issue governing the installation of air handling units is within FHBA's general scope of interest and activity. The evidence failed to prove, however, that insulation requirements for air handling units are within FHBA's general scope of interest and activity. The relief sought by ARI and GAMA concerning the rules is appropriate for ARI and GAMA to receive. The relief sought by FHBA concerning the rules governing the installation of air handling units is appropriate for FHBA to receive. The Rules At Issue. At issue in this proceeding is Chapter 9B-13, Florida Administrative Code, which was "adopted to implement the Florida Thermal Efficiency Code, Part VII, Chapter 553, Florida Statutes." Rule 9B-13.001, Florida Administrative Code. Chapter 9B-13, Florida Administrative Code, was promulgated to ensure efficient use of energy in residential and commercial buildings in Florida. Pursuant to Rule 9B-13.004(1), Florida Administrative Code, the design and fabrication of new and renovated buildings in Florida are required to be in compliance with the 1993 Florida Energy Efficiency Code for Building Construction (hereinafter referred to as the "Code"). The Petitioners have challenged Chapter 9B-13, Florida Administrative Code, only to the extent that it adopts the following provisions of the Code: Section 410.1.ABC.2; Section 410.1.ABC.3.1 through 410.1.ABC.3.4; Section 410.1.ABC.3.5; Section 503.8; Section 610.1.ABC.2; Section 610.1.ABC.3.0; Section 610.1.ABC.3.1; Section 610.1.ABC.3.5; Table 4-10; Table 5-10; and Table 6-9. (These specific provisions are sometimes collectively hereinafter referred to as the "Challenged Rules"). Chapter 4 of the Code, which includes Sections 410.1 and 410.2, provides requirements concerning "Commercial Building Compliance Methods." Sections 410.1 and 410.2, and Table 4-10 of the Code govern "Air Distribution Systems" for commercial buildings. Chapter 5 of the Code, which includes Section 503.8, provides requirements concerning "Building Design by Component Performance." Section 503.8 and Table 5-10 of the Code govern "Building Mechanical Systems" - "Air Distribution System Insulation." Chapter 6 of the Code, which includes Sections 610.1 and 610.2 of the Code, provides requirements concerning "Residential Building Compliance Methods." Sections 610.1 and 610.2, and Table 6-9 of the Code govern "Air Distributions Systems" for residential buildings. In general, the Petitioners have challenged the Challenged Rules to the extent that they require minimum insulation of central heating and air- conditioning air handling equipment for commercial and residential construction. In particular, Section 610.1.ABC.2 of the Code provides: All air distribution system components which move or contain conditioned air, including blower enclosures, mechanical equipment plenum chambers, refrigerant coil enclosures, air filter enclosures, air ducts and plenums located in or on buildings shall be thermally insulated in accordance with the criteria of sections 610.1.ABC.2.1 through 610.1.ABC.2.3. Similar language is contained in Section 410.1.ABC.2 of the Code for commercial buildings. The specific insulation requirements objected to by the Petitioners are contained in Sections 410.1.ABC.3.1 through 410.1.ABC.3.4 and Table 4-10 of the Code for commercial buildings and in Sections 503.8 and 610.1.ABC.2.1 through 610.1.ABC.2.3 and Tables 5-10 and 6-9 of the Code for residential buildings. The Petitioners have also attacked the Challenged Rules to the extent that they prohibit the installation of air handling equipment in attics unless the equipment is placed in an insulated mechanical closet. Sections 410.1.ABC.3.5 and 610.1.ABC.3.5 of the Code. Background. Air distribution systems are intended to conduct heated or cooled air to the conditioned space of a structure. Air distribution systems consist of a number of components. The insulation requirements for the insulation of air distribution systems varies depending on the location of the component and whether the structure is commercial or residential. An air handling unit is one component of the air distribution system. Air handling units are devices used to provide heated or cooled air to conditioned space of a structure through ductwork. Air handling units are designed to move air. They may also clean and condition the air. Air handling units are separate from ducts, contain functioning mechanical parts and are integrated into the overall design of the air- conditioning/heating system. Air handling units are internally insulated. The insulation is typically installed at the time of manufacture of the air-conditioner, heat pump or furnace. The amount of insulation is considered in designing the unit. Air distribution systems can be configured in a number of ways. Air handling units may be, and have been, located in a variety of places: the garage, a crawl space, a closet or an attic. The location of an air handling unit may impact the size of a building and the design of the air distribution system. The Insulation Requirements of the Challenged Rules. Generally, air handling units are currently manufactured with insulation rated "R-2.1". This "R-value" refers to the thermal resistance to heat transmission through the insulation. R-2.1 insulation is approximately one-half inch thick. Pursuant to the Challenged Rules, the following minimum insulation requirements apply to air distribution system components installed for residential structures in Florida: Located in conditioned space: No Requirement Located in a crawl space or a garage: R-4.2 Located outside the structure: R-6 Insulation requirements for residential structures are contained in Table 6-9 of the Code. Pursuant to the Challenged Rules, the following minimum insulation requirements apply to air distribution system components installed for commercial structures: Located in conditioned space: No Requirement Located under insulated roofing decks: R-4.2 or R-6 depending on the roof insulation Located in an attic: R6, after 1/1/95 Located outside: R8 Insulation requirements for commercial structures are contained in Table 4-10 (applicable as of January 1, 1994) and Table 5-10 (current requirements). Rationale for the Insulation Requirements of the Challenged Rules; Are the Requirements Arbitrary and Capricious? The Department's reason for imposing the insulation requirements of the Challenged Rules is to improve the energy efficiency of air distribution systems in residential and commercial structures in the State of Florida. There is a correlation between the temperature of air inside and outside an air distribution system and the energy required to heat or cool air. For example, the hotter the air is outside an air distribution system which is cooling air, the more energy is required to cool the air. Since the air handling unit of an air distribution system is the component which heats or cools air, the differences in the temperatures inside and outside are usually greatest at the air handling unit. Therefore, the rate of loss of energy caused by the differences in air temperatures inside and outside an air distribution system is greatest at the air handling unit. Nelson Hellmuth, an expert witness called by the Petitioners, prepared a report which concluded there would be an increase in energy efficiency as a result of some of the increased insulation requirements of the Challenged Rules. Tests performed by Lennox Industries and InterCity Products and testified about on behalf of the Petitioners also confirmed that there would be an increase in energy efficiency as a result of some of the increased insulation requirements of the Challenged Rules. The Petitioners failed to prove that the increased insulation requirements of the Challenged Rules will not improve the energy efficiency of air distribution systems. The Petitioners' own witnesses substantiated that there would be an improvement in energy efficiency as a result of some of the increases in insulation requirements for air handling units. The Petitioners, therefore, failed to prove that the Department has acted in an arbitrary or capricious manner in providing for the insulation of air handlers specified in the Challenged Rules. Insulation Requirements of the Challenged Rules; Are the Requirements Cost Effective? The Challenged Rules require certain increases in the insulation of air handling units for both residential and commercial structures. The Petitioners have alleged that those requirements are not cost effective. One reasonable method for determining whether the required increases in insulation for air handling units is cost-effective, is to determine the additional cost of the increased insulation a consumer will have to pay, and divide that cost by the expected yearly cost savings to the consumer that can be expected to be experienced as a result of the increased insulation. This calculation will result in an estimate of the number of years necessary for a consumer to recoup his or her additional costs. If the number of years necessary to recoup the additional costs are less than the estimated useful life of the equipment, the required insulation is cost-effective. The Petitioners presented an analysis of the expected energy savings which might be expected from increasing the insulation in air handling units. The analysis was performed by Mr. Hellmuth. Mr. Hellmuth's analysis was limited to the expected savings that might be realized as a result of increasing the insulation of an air handling unit in a residential structure. Mr. Hellmuth did not present evidence concerning the expected savings from the increased insulation requirements of the Challenged Rules in commercial structures. Nor did he opine that the savings he expected to be realized from commercial structures would be the same as those he concluded would be experienced from increased insulation for an air handling unit in a residential structure. The Challenged Rules require an increase in the insulation of air handling units from R-2.1 to R-4.2 for residential and commercial structures. The Challenged Rules also require an increase in the insulation of air handling units from R-4.2 to R-6 as of January 1, 1995, for air handling units located outside of conditioned space for residential structures and R-6 and R-8 under certain circumstances for commercial structures. The Petitioners presented evidence concerning the energy efficiency of increasing the insulation of an air handling unit for a residential structure from R-4.2 to R-6. That evidence, however, was limited to air handling units located in attics. No evidence concerning air handling units in conditioned space was presented by the Petitioners. The evidence in this case also failed to prove that the Challenged Rules require R-6 insulation for air handling units in attics of residential structures. Table 6-9 of the Code sets out the requirements for the insulation of "air distribution system components" in residential structures. Table 6-9 provides that R-6 insulation is required if the component is located "on roof", the "exterior of building" or in "attics." A footnote of Table 6-9 of the Code provides that air handling units located "where R-6 insulation is required shall be insulated to those levels after January 1, 1995." The Petitioners presented no evidence concerning the energy effectiveness of air handling units located "on roof" or the "exterior of building". Therefore, the Petitioners failed to prove that the insulation requirements for air handling units located on a roof or the exterior of a residential building are not cost-effective. Based upon the provisions of Table 6-9 of the Code, it might appear that R-6 insulation is required for air handling units in attics of residential structures after January 1, 1995. Reading Table 6-9 of the Code in conjunction with Section 610.1.ABC.3.5 of the Code, however, leads to the conclusion that air handling units may not be located in an attic unless they are placed in a mechanical closet. Based upon the fact that the Code does not allow air handling units in attics without a mechanical closet, the Department has argued that Table 6-9 of the Code does not require insulation of R-6 for air handling units in residential structures. Whether the Department is correct need not be decided. Even if Table 6-9 of the Code may be read to require R-6 insulation for air handling units located in mechanical closets, no evidence was presented by the Petitioners concerning the energy efficiency of air handling units located in mechanical closets in attics. The Petitioners, therefore, failed to prove that air handling units properly located in attics of residential structures will not be cost effective. The only insulation requirement for air handling units contained in the Challenged Rules which the Petitioners presented evidence concerning the expected additional costs and the expected energy efficiency is the requirement that air handling units for residential structures be insulated at a value of R- 4.2. There are some manufactures of air handling units that are currently producing air handling units with R-4.2 insulation. The additional cost for R- 4.2 insulation over the cost of R-2.1 insulation incurred by one of those manufacturers, InterCity Products Corporation USA, was approximately $20.00 to $30.00 for one unit, and $30.00 to $40.00 for another unit. There are also manufacturers of air handling units that are not currently producing units with R-4.2 insulation. One of these manufacturers, Lennox Industries, has estimated the additional cost of increasing the insulation of air handling units from R-2.1 to R-4.2. Lennox Industries has estimated that it will cost an additional $25.00 to install R-4.2 insulation in a three-ton air handling unit. The actual increased cost incurred by at least one installer of air distribution systems associated with an increase in insulation from R-2.1 to R- 4.2 for an air handling unit ranged from zero to $20.00. The additional costs associated with increasing insulation from R-2.1 to R-4.2 is attributable to materials, labor and other miscellaneous costs. Redesign of the unit to accommodate the increased insulation and retooling to be able to produce such a unit should not be necessary. Additional costs associated with increasing the insulation of an air handling unit will be passed on to consumers of air handling units. Manufacturers' costs are generally marked up by a factor of 3 by the time a unit is sold to the ultimate consumer. Based upon the foregoing, the additional costs which may be incurred to increase the insulation of an air handling unit for a residential structure from R-2.1 to R-4.2 is from zero to $40.00. Mr. Hellmuth analyzed the expected energy savings which might be realized from increasing the insulation of a three-and-one-half ton air handling unit from R-2.1 to R-4.2. Mr. Hellmuth based his analysis on units operated for one year in Tallahassee, Orlando and Miami, Florida. The units were operated in an average-sized house. Mr. Hellmuth concluded that the operation of an air handling unit with R-4.2 insulation would result in a savings of $5.50 per year over the operation of an air handling unit with R-2.1. The savings Mr. Hellmuth concluded would be realized are the equivalent of one 23.9 watt light bulb being burned the same amount of time the unit would be operated. The savings are based upon an average cost of $.0847 per kilowatt hour. Based upon Mr. Hellmuth's analysis, there would be a total savings per air handling unit operated in Tallahassee, Florida, with R-4.2 insulation of 69 kilowatt hours (from 148.2 kilowatt hours to operate a unit with R-2.1 insulation to 79.2 kilowatt hours to operate a unit with R-4.2 insulation). This represents a savings of 47 percent. For Orlando, the savings were 56.8 kilowatts and for Miami, the savings were 56.7 kilowatts. Mr. Hellmuth was provided information concerning the costs that will be incurred as a result of the increase from R-2.1 to R-4.2 insulation by Richard J. Denny of ARI. Mr. Hellmuth assumed that those costs were accurate and used those costs in his analysis. Mr. Hellmuth assumed that additional costs of $39.10 would be incurred to increase the insulation of a three-and-one- half ton unit to R-4.2. Based upon the evidence presented by representatives of manufacturers that testified in this proceeding, this assumption is high. A reasonable estimate of the useful life of an air handling unit is fifteen years. Mr. Hellmuth concluded that an air handling unit installed in a residential garage in Tallahassee with R-4.2 insulation would result in savings of $4.65 per year. Based upon a 15-year useful life and costs of $39.10 for the additional insulation, Mr. Hellmuth concluded that the costs associated with insulation of R-4.2 would be recouped in 8.41 years ($39.10 divided by $4.65). Based upon Mr. Hellmuth's analysis, increasing the insulation of an air handling unit for residential use from R-2.1 to R-4.2 is cost effective. Based upon Mr. Hellmuth's conclusion, and the other evidence presented in this case, the Petitioners have failed to prove that the requirements of the Challenged Rules that air handling units installed in residential structures have increased insulation are not cost effective. Even the Petitioners have recognized in their proposed final order that "it may be cost-effective to increase the insulation of air-handling units from R-2.1 to R-4.2." Mr. Hellmuth also analyzed the savings which may be realized as a result of increasing the insulation of a residential air handling unit from R- 4.2 to R-6.3. The units analyzed, however, were located in an attic, which is prohibited by the Code, or were located in a garage, where R-6 insulation is not required by the Challenged Rules. See findings of fact 45-51. Therefore, Mr. Hellmuth's analysis of air handling units insulated with R-6.3 is not relevant to this proceeding. The Requirements of the Challenged Rules Concerning The Location of Air Handling Units. The Challenged Rules provide the following with regard to the installation of air handling units for commercial structures: All air handling units shall be mechanically attached to other air distribution system components. Air handling units located outside the conditioned space shall be sealed to 100 percent closure using approved closure systems conforming to the approved closure and mechanical application requirements of section 410.1.ABC.3.1. Section 410.1.ABC.3.5. of the Code. The Challenged Rules provide the following with regard to the installation of air handling units for residential structures: All air handling units shall be mechanically attached to other air distribution system components. Air handling units located outside the conditioned space shall be sealed to 100 percent closure using approved closure systems conforming to the approved closure and mechanical application requirements of section 610.1.ABC.3.1. Air handling units shall not be installed in attics. EXCEPTION: Air handling units placed in mechanical closets which are located in attic spaces. Such mechanical closets shall be constructed and sealed according to section 610.1.ABC.3.7 and shall be insulated with minimum R-19 insulation on all surfaces separating it from attic and outdoor spaces. Section 610.1.ABC.3.5. of the Code. Attic installation of air handling units in commercial and residential structures is prohibited pursuant to the Challenged Rules unless placed in a sealed mechanical closet with a minimum R-19 insulation. The Code does not prohibit the installation of other components of the air distribution system in an attic. The effect of the Challenged Rules governing the location of air handling units is to require that consumers make a choice between several alternative generally acceptable locations for air handling units. No one or specific location is forced on consumers. Nor are consumers required to choose to place an air handling unit in an attic in a mechanical closet. An "attic" is defined in the Code as "an enclosed unconditioned space located immediately below an uninsulated roof and immediately above the ceiling of a building. . . ." Page 2-2, Respondent's exhibit 4. "Conditioned space" is defined as "that volume of a structure which is either mechanically heated, cooled, or both heated and cooled." Page 2-4, Respondent's exhibit 4. The terms generally refer to the portion of a structure that is insulated. Attics are usually not part of the conditioned space of a building. Rationale for the Requirements Concerning The Location of Air Handling Units; Are the Requirements Arbitrary and Capricious? The Department's reason for limiting the installation of air handling units in attic space is to improve the energy efficiency of air distribution systems in residential and commercial structures in the State of Florida. The rational of the Department for limiting the installation of air handling units in attics is based upon the same theory relied upon for the Department's increased installation requirements. See findings of fact 36-40. Attics in Florida are generally very hot during the summer. Since the air handling units is the component which heats or cools the air, the differences in the temperatures inside and outside are usually greatest at the air handling units. Therefore, the rate of loss of energy caused by the differences in air temperatures inside and outside an air distribution system is greatest at the air handling units. This difference is greatest in the attic. Therefore, air handling units in attics consume more energy to operate than air handling units placed in other locations of a structure. Energy consumption is also increased because of loss of effectiveness due to leakage of air being returned from the conditioned space to the air handling unit. James Cummings, an expert witness called by the Department, performed an investigation with the Florida Solar Energy Center in Polk County, Florida. One hundred and sixty homes were tested to determine the effect of leakage in air distribution systems on energy consumption. Air handling units in the test homes were located in various locations, including thirty homes with air handling units located in the attic. Ultimately, data from only seven of the homes with attic locations was included in the study report, however. A report of the results of Mr. Cummings' investigation, Respondent's exhibit 10, was prepared. One of the findings in the report confirms that leakage is the primary source of energy loss. It was also concluded that energy consumption in homes with air handling units located in the attic was substantially higher than homes with air handling units installed in other locations. Before leakage repairs, air handling units located in attics consumed 27.7 percent more energy than units located in garages, interior closets or exterior installations. After leakage repairs, they consumed 30.2 percent more energy. The study conducted by Mr. Cummings was not conclusive. There were a limited number of houses with air handling units in the attic included and those houses were older. Mr. Cummings' study and testimony, however, supports the Department's rationale for prohibiting the installation of air handling units in attics. Mr. Cummings' conclusion that locating air handling units in attics is not as energy efficient as locating air handling units installed in other locations was reasonable and his study constituted a sufficiently reliable basis therefore. There is, therefore, a rational basis for the Challenged Rules prohibition. The Petitioners failed to prove that the requirements of the Challenged Rules concerning the installation of air handling units in attics will not improve the energy efficiency of air distribution systems. The Petitioners, therefore, failed to prove that the Department has acted in an arbitrary or capricious manner in prohibiting the installation of air handling units in attics. Again, even Mr. Hellmuth concluded that there would be an increase in energy efficiency as a result of the requirements of the Challenged Rules concerning attic installation of air handling units. Installation Requirements of the Challenged Rules for Air Handling Units; Are the Requirements Cost Effective? The Petitioners have argued that prohibiting the installation of air handling units in attics without the use of a mechanical closet is not cost effective. One significant difficulty with the Petitioners position on this issue is that the Challenged Rules are not merely a prohibition. The Challenged Rules require consumers to make a choice between several alternative locations for air handling units. Therefore, in order to prove that the Challenged Rules are not cost effective, the Petitioners must prove that all alternatives available to a consumer are more costly than locating an air handling unit in an attic. Simply proving that it may not be cost effective to place an air handling unit in a garage compared to the attic for a consumer or several consumers is not sufficient to prove lack of cost effectiveness. The same methods of determining whether the required increases in insulation for air handling units is cost-effective may be used to determine if prohibiting the installation of air handling units in attics is cost effective: determine the additional cost of locating the air handling unit elsewhere that a consumer will have to pay and divide that cost by the yearly energy and other cost savings to the consumer that can be expected to be experienced as a result of the relocation. This calculation will result in an estimate of the number of years necessary for the consumer to recoup his or her additional costs. If the number of years necessary to recoup the additional cost are less than the estimated useful life of the equipment, the prohibition against locating the unit in an attic is cost-effective. The calculation must be performed for each alternative location for the air handling units. In order to conclude that the Challenged Rules are not cost effective, the Petitioners were required to prove that no alternative location would be cost effective. As an alternative to placing an air handling unit in an attic, the unit may be placed in several other locations: the garage, a closet or other space within the conditioned space of the structure, a basement, a crawl space or a mechanical closet in the attic. In order to determine the cost effectiveness of prohibiting the location of an air handling unit in an attic, the cost associated with each possible location must be provided and considered. Very little evidence concerning the cost of locating an air handling unit in a crawl space or a basement was presented by the Petitioners. The evidence concerning the costs associated with placing an air handling unit in an attic, a closet, a basement or the garage was also less than conclusive. The difficulty with the evidence is that there are numerous variables which impact the cost of locating the air handling unit in the various locations. Because of these variables, the evidence presented in this case by the Petitioners failed to prove that the prohibition against installing air handling units in attics will not be cost effective in all instances, the majority of alternative placements or even a substantial number of instances. The evidence concerning the costs associated with the location of an air handling unit in an attic without a mechanical closet proved the following: Installation in attics will cost on average from $200.00 to $600.00 more than installation in other acceptable spaces. There may, however, be expenses associated with installation of the air handling unit unique to other acceptable locations. The additional installation costs are caused, in part, by the fact that horizontally positioned units are usually used in attics and they generally cost more than vertically positioned units used in other locations. Other costs associated with attic locations include the cost of a secondary drainage pan and drainage tube which must be used in the installation of air handling units. The cost to service and maintain an air handling unit in an attic can be considerably higher than the cost to service and maintain an air handling unit located elsewhere. Because of high temperatures in attics, servicing an air handling unit is more difficult in terms of scheduling, delays, wear and tear on the persons who perform the service and based on safety considerations. Replacing air handling units located in attics can cause special problems. In some cases it is not possible to remove the old unit without dismantling the unit. Damage as a result of problems from air handling units located in attics can be greater than the damage that may occur when air handling units are located elsewhere. Based upon the weight of the evidence, the Petitioners failed to prove the average or total cost associated with the installation of an air handling unit in an attic without a mechanical closet. The evidence concerning the costs associated with the location of an air handling unit in a garage proved the following: Air handling units in garages may or may not require additional or larger ducts depending on whether the garage will facilitate locating the air handling unit centrally. Air handling units in garages may or may not also be subject to special requirements imposed by local governments which can increase the cost associated with garage installation of an air handling unit. The Petitioners, however, only presented evidence concerning one local jurisdiction, Broward County. Due to the variables involved, the evidence failed to prove the average or total costs which may be associated with placing an air handling unit in a garage. The evidence concerning the costs associated with the location of an air handling unit in conditioned space proved the following: Air handling units may be installed in a variety of spaces in the conditioned space of a structure, including a closet, under a stairwell or in other space which would not otherwise be used as living space. Approximately 6 square feet of space is required to place a vertical air handling unit in such spaces. Under some unquantified circumstances, up to twelve feet may be required. The cost per square foot of a structure generally will run from $50.00 to $60.00 per square foot. In some unquantified circumstances the cost may be greater or less. If space must be constructed within conditioned space to house an air handling unit, it will cost approximately $300.00 to construct the space. Depending on the space needed, however, and the cost per square foot for construction, the cost may be much greater. IF space does not have to be constructed because of the availability of space for the air handling unit that would otherwise not be used for living space, the cost would be zero. If additional space must be constructed, there would likely also be interest payable on any debt associated with the cost of that space. There are numerous variables, including income tax impacts, associated with determining those additional costs. It is easier to install an air handling unit in a closet than to install it in an attic. It generally only takes one person to install the unit in a closet because units have become increasing more compact. Apparently, this potential savings was taken into account in determining the extra costs associated with installing an air handling unit in the attic. Due to the variables involved, the evidence failed to prove the average or total costs which may be associated with placing an air handling unit in a closet or other conditioned space. Based upon the foregoing, the Petitioners have failed to prove the amount of additional costs which might be expected to be incurred as a result of the prohibition against attic installation of air handling units. The Petitioners, therefore, have failed to prove that the prohibition is not cost effective. Turning to the evidence concerning the savings that may be expected as a result of removing air handling units from the attic, the evidence was also inconclusive. The Petitioners and the Department presented expert testimony concerning the savings which might result from relocating air handling units from attics. Due to the constraints of time and costs, none of the experts analyzed the issue as completely as they would have liked. There were, therefore, flaws in each experts' analysis. Based upon a weighted consideration of all the experts' testimony, the Petitioners have failed to meet their burden of proving that there are not adequate savings which can reasonably be expected from not placing air handling units in attics. The evidence failed to prove that while there may be instances where a consumer's choice between locating the air handling unit in the attic, and one of the alternative locations may not be cost effective, the consumer will be prohibited from choosing another alternative location for placement of the air handling unit which will be cost effective. Mr. Hellmuth presented the results of his analysis of the attic installation of air handling units which he performed on behalf of the Petitioners. Mr. Hellmuth presented evidence concerning the savings which he believed would be realized if an air handling unit were moved from an attic to a garage. Mr. Hellmuth did not, however, present evidence concerning the savings which might be realized if the air handling unit were moved to other alternative locations, such as crawl space or a closet. Therefore, even if the Petitioners had proved that, based solely on a consideration of the energy savings, it is not cost effective to place an air handling unit in a garage, the Petitioners did not prove it is not cost effective, based solely on a consideration of the energy savings, to place the unit elsewhere. Mr. Hellmuth concluded that, if an air handling unit with R-2.1 insulation is moved from the attic to the garage, there would be a savings of 37.5 kilowatt hours. Using an average utility rate of $0.08472 per kilowatt hour, Mr. Hellmuth concluded that there would be a total savings per year of only $3.18. There are several problems with Mr. Hellmuth's analysis and conclusions concerning the expected savings of $3.18 per year: Mr. Hellmuth only considered the impact on the air handling unit of moving it from the attic to the garage. Mr. Hellmuth did not take into account the impact on other integrated portions of the air distribution system which would necessarily also be impacted as a result of moving the air handling unit from the attic. Mr. Hellmuth did not consider the impact on other components because he was not asked to do so. In particular, Mr. Hellmuth did not consider the effect of "leakage" on the operation of an air distribution system, which even Mr. Hellmuth agreed is a very important factor to consider. Leakage is simply the loss of conditioned air. It is especially pronounced on the side of the air handling unit where air is returned to the unit from the conditioned space. By moving an air handling unit from the attic, there will be a savings in energy associated with reduced leakage. Mr. Hellmuth failed to consider or quantify this savings. Mr. Hellmuth also based his conclusions concerning expected energy savings from moving the air handling unit from the attic to the garage on energy cost of $0.08472 per kilowatt hour. By using this cost, Mr. Hellmuth failed to consider the impact of fluctuations in demand for energy in Florida might have and the impact of those fluctuations on rates. At least one utility in Florida does not charge its customers a uniform rate. Instead, a higher rate is charged during peak demand times. The Department presented the expert testimony of Mr. Cummings and Mark Modera. Their testimony raised questions concerning the conclusions reached by Mr. Hellmuth and presented sufficient evidence to refute the suggestion of the Petitioners that moving an air handling unit from an attic is not cost effective. They also presented testimony to suggest that moving air handling units from attics will in fact be cost effective. That is not the issue, however. Based upon the foregoing findings of fact, it was not necessary that the Department prove that the move will in fact be cost effective. The Petitioners were required to prove that prohibiting the placement of air handling units in an attic and requiring that alternative locations for the air handling units be chosen is NOT cost effective and they failed to do so. Economic Impact Statement. The Petitioners failed to present evidence proving that the Department's economic impact statement impaired the fairness of the Department's rulemaking proceedings.
Findings Of Fact Stephen G. Blume, the Respondent, is a state certified Class A contractor under Chapter 489, Florida Statutes. He holds license number CA C009753, and he is the qualifying agent for BCH Mechanical, Inc. (BCH), a Florida corporation, in which Blume is the principle stockholder. BCH is a mechanical contractor and concentrates its efforts in commercial construction work, particularly in shopping center construction. BCH subcontracts from owners or general contractors for the installation of heating, ventilating, and air conditioning for individual establishments within shopping malls. Prior to February 18, 1983, the Respondent contracted with a general contractor for the Respondent to provide heating, ventilation, and air conditioning equipment to approximately 15 stores in the Aventura Mall in Dade County, Florida. The work was of a nature for which the Respondent and BCH were qualified to perform under Chapter 489, Florida Statutes. On February 18, 1983, the Respondent and his company contracted with Richard E. Hahn, doing business as Temp-Rite Air Conditioning and Refrigeration, Inc., to install air conditioning systems in spaces 128, 163, 645, and 677 at the Aventura Mall. See attachment to Respondent's Exhibit 1, and paragraph 3 of the administrative complaint. On February 23, 1983, the Respondent obtained building and mechanical permits to perform heating, ventilation, and air conditioning work on spaces 163, 645, 677, and 128 at the Aventura Mall. See Petitioner's Exhibit 1. The Respondent did not attempt to list the permits in the name of Hahn at the time of application or subsequently. Richard Hahn did not have a certificate of competency to do air conditioning construction work, and was not qualified in Dade County to obtain a permit to do that work himself. He also was not licensed by the Construction Industry Licensing Board to perform this work. The Respondent selected Hahn by the following process. When he got to the mall, he contacted Robert Shaw Controls, the company that was doing work on the concourse air conditioning systems at the mall. Employees of Robert Shaw told the Respondent of three pipe fitting companies that were then doing work at the mall. All three gave the Respondent bids, and Respondent selected Hahn's company as low bidder. There is no evidence that Blume was a friend of Hahn prior to this contract. Respondent's company specializes in installation of air conditioning systems in shops in commercial malls. Respondent's company employs 30 to 40 people. Most of this is handled by his own employees, without subcontracts. Thus, for most of his work, there is no need for a licensed subcontractor. At the Aventura Mall project, the Respondent determined that he needed to hire a subcontractor affiliated with the pipefitters union for the work on first floor shops. The Respondent did not have a bargaining agreement with the pipefitters union, and thus could not call the Dade County pipefitters' hiring hall to hire a pipefitter as a temporary employee. Instead, Respondent had to subcontract the work to a pipe fitter union member. Respondent determined that he needed pipefitter union affiliation because that union was quite strong in Dade County, and use of nonunion members might have caused labor unrest at the mall work site. It was not to the economic advantage of the Respondent to subcontract the work to Hahn. It would have been more profitable to the Respondent to have followed his usual business practice of doing the air conditioning pipe fitting work using his own nonunion pipefitter employees. The Respondent asked Hahn if he was a licensed contractor for his work, whether he was a union pipe fitter, and whether he carried worker's compensation coverage. The Respondent was told by Hahn that he had a license, that he was a journeyman union pipe fitter, and that he did carry worker's compensation coverage. Following his past practice, the Respondent asked Hahn only for proof of his worker's compensation coverage. The Respondent did nothing to attempt to verify the truth of Hahn's assertion that he was a licensed contractor. The Respondent could have verified the existence of Hahn's license by either asking Hahn to show him his license card or by telephoning the license record officer in Dade County and asking that agency to verify Hahn's license. The Respondent did not do either of these things both of which were relatively easy to do. The Respondent had memorized his own contract license number. William Lessaris was employed by the Respondent and BCH Mechanical, Inc., to provide daily supervision of the project. Lessaris was at the job site daily. Other BCH employees were also on the job site. John D. Arition is Mechanical and Building Inspector and Plans Processor for far the Building and Zoning Department of Dade County, Florida. Arition was called by Lessaris to come to the job site to perform the air conditioning inspection. Arition did not tell BCH Mechanical, Inc., when he would arrive. When Arition arrived on the job site, Hahn was there. Arition asked Hahn for his license to do the work. Hahn told Arition that he did not have a license. Arition ordered Hahn to cease work. Hanh picked up his tools and left the job site. Arition then talked with Lessaris and told him about the problem with Hahn. The work was completed satisfactorily, without defects. Subsequently, Hahn was administratively charged with violating various provisions of Dade County construction law, was found to have committed six violations, was fined a total of $2,700 and had his personal certificate of competency suspended for one year. Blume was asked to appear at the hearing, but could not due to prior scheduled work. There is no evidence that Blume was given adequate notice of the date of the hearing, and it appears that he was given only short notice of the precise date. Blume was not subpoened to appear, and was not at fault in failing to appear. Blume voluntarily supplied Dade County with all documentary evidence requested.
Recommendation In consideration of the foregoing, it is recommended that the Petitioner enter a final order finding no violations as alleged, and dismissing the administrative complaint. DONE and ORDERED this 29th day of March, 1985, in Tallahassee, Florida. WILLIAM C. SHERRILL, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 1985. COPIES FURNISHED: Mr. Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 H. Reynolds Sampson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 William Sizemore, Esquire Suite 838, Plaza On The Mall 201 East Kennedy Boulevard Tampa, Florida 33602 Salvatore Carprino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether, as alleged by Petitioners in their Petition for Relief, Respondents have committed, and are continuing to commit, a discriminatory housing practice in violation of the provisions of Florida's Fair Housing Act by denying Petitioners approval "to install a 22,500 BTU air conditioner unit in the wall of their [Fairmont House] apartment." If so, what affirmative relief should Petitioners be provided.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made:1 Petitioner Larry Tresize and his 91 year-old wife, Edith Tresize, who suffers from osteoporosis and a heart condition and is unable to perform normal activities of daily living without assistance, have resided in Apartment 50 of Fairmont House, a residential cooperative located in North Miami, Florida, since 1982. In January of 1991, the Tresizes sold their interest in the apartment to Werner Bischoff, but continued to occupy the apartment inasmuch as they had "reserved[d] unto themselves a life estate in and to the aforementioned real property with the sole right of possession during the life of the grantor EDITH TRESIZE only, with the proviso that [they] w[ould] pay all maintenance, taxes and assessments and utilities for the subject apartment." Fairmont House, Inc. (Corporation) is a non-profit corporation responsible for the operation of the Fairmont House cooperative. The purpose of the Corporation is stated in Article II.A. of its Articles of Incorporation as follows: The general nature of the object of the Corporation is to provide for and promote the general welfare, comfort, safety, and mutual friendliness between its members, to provide the facilities necessary to promote such purposes and to maintain, manage and keep in good repair the roof, outer walls of the building, all common ways, and areas within and without the building, common rooms, parking areas, grounds (meaning all grass sod, shrubbery, and general landscaping), sea walls, swimming pool and pool area, fences, common electrical equipment and fixtures situated within the common areas of the building and on the grounds for the use and enjoyment of the members of the corporation. . . . In accordance with the provisions of Article III.A. of the Corporation's Articles of Incorporation, "[a]ny person, or persons, individual or corporate, are qualified to become a member of this corporation upon securing by purchase, devise, gift, or assignment, any leasehold interest in the [Fairmont House apartments]," provided they are deemed "acceptable" for membership by the Corporation's membership committee. Pursuant to Article VI.A. of the Corporation's Articles of Incorporation, the "affairs of the [C]orporation [are] managed by a nine (9) member board of governors." The Corporation has adopted Rules and Regulations governing member conduct and activities. Item 5.c. of the Corporation's Rules and Regulations provides that "[m]embers or non-members shall make no alterations to said exterior premises without the consent of the Board of Governors." The apartments in Fairmont House do not have central air conditioning. They are cooled by room air conditioners. There are both window and "through-the-wall" units. The "through-the-wall" units protrude through openings that were a part of the original design of the building. Subsequent to the building's construction, no additional openings for "through-the- wall" units have been made. When the Tresizes moved into their Fairmont House apartment, there was a "through-the-wall" air conditioning unit in one of the apartment's two bedrooms. The Tresizes subsequently removed the unit and closed the opening in the wall through which the unit had protruded. The Tresizes now have three window air conditioning units in their apartment (including one in the bedroom which previously had a "through-the-wall" unit). In or about April of 1996, the Tresizes contacted their local Sears store to inquire about replacing the window air conditioning unit in the living room of their apartment. Sears sent a "contractor" to the Tresizes' apartment to discuss the matter further with the Tresizes. The Sears "contractor" told the Tresizes that, to comfortably cool their living room, they would need a 22,500 BTU air conditioner. He further advised them that such an air conditioner was too large to install in the living room window and that it would have to be installed, instead, through the wall. The Tresizes authorized the "contractor" to install such a "through-the-wall" unit in their living room. After a building permit from the City of North Miami was obtained, the "contractor" returned to Fairmont House to perform the work necessary to install the unit (Project). The "contractor" was with Larry Tresize on the walkway outside the Tresizes' apartment about to drill a hole in the exterior wall outside the Tresizes' living room, when he was approached by three members of the Corporation's Board of Governors, who directed that he not proceed with the Project unless and until the necessary approval was formally obtained from the Corporation's Board of Governors. The "contractor" gathered his tools and left without performing any more work on the Project. By letter dated April 24, 1996, the Tresizes requested the Corporation's Board of Governors to "grant [them] permission to install a larger air condition[er] in the wall of [their] apartment." The Board of Governors responded by informing the Tresizes that it would not consider their request absent proof that Werner Bischoff approved of the Project. The Tresizes thereafter asked Mr. Bischoff if he would consent to the installation of a "through-the-wall" air conditioning unit in the living room of the Tresizes' apartment. Mr. Bischoff refused to give such consent. The Project never received the approval of the Board of Governors. One member of the Board of Governors, Sherwin Kresshauer, personally attempted to assist the Tresizes in finding an adequate replacement for the window air conditioning unit in the their living room. Mr. Kresshauer measured the space in the window occupied by the air conditioning unit that needed to be replaced (it measured 19 inches by 27 inches) and made arrangements for an air conditioning specialist to visit the Tresizes' apartment and to evaluate the apartment's air conditioning needs and how those needs could be met. Mr. Kresshauer was present when the air conditioning specialist visited the Tresizes' apartment. The air conditioning specialist told the Tresizes that either an 18,000 or 24,000 BTU Goodman air conditioning unit could be installed in the window of their living room (in the 19- inch by 27-inch space occupied by their present unit). When the air conditioning specialist told the Tresizes how much it would cost them, the Tresizes said that they did not want to pay that much.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Tresizes' discriminatory housing practice complaint and their Petition for Relief. DONE AND ENTERED this 30th day of January, 1998, in Tallahassee, Leon County, Florida. STUART M. LERNER 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) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 1998.
