Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence submitted and the entire record complied herein, I hereby make the following Findings of Fact: Respondent, John Anthony Fantasia, is, and has been at all times material hereto, a certified air conditioning contractor in the State of Florida, having been issued license number CA C024378. Mr. Joseph Wilensky resides in a single family home at 1020 N.E. 160th Terrace in North Miami Beach, Florida. On December 23, 1983 there was a fire at Wilensky's home. The fire was primarily located in the basement near the oil heating unit, some type of electric heating device which utilized a heat strip and part of the central air conditioning unit. The air conditioning and heating systems all sustained damage in the fire. A few days after the fire, an insurance adjuster went to Wilensky's home and recommended a general contractor by the name of H. E. Nason. Nason inspected the damage at the Wilensky home and later sent Respondent over to inspect the damage for an estimate. Nason had previously used Respondent as a sub- contractor on other projects. The Respondent submitted a bid of $2,600 to Nason to install an air conditioning system with a heat strip in the Wilensky home. Thereafter, Nason entered into a contract with Wilensky to make the repairs and sub-contracted the entire job to Respondent. In January 1984, approximately one week after the contract was signed, Respondent, with the assistance of a single helper, removed the old air conditioning and heating units and installed a new central air conditioning/heating unit. Mr. Wilensky was at home while the work was performed. Wilensky observed the Respondent perform some of the work but did not watch Respondent the whole time. Wilensky was talking with his wife either in the dining room or in the kitchen when Respondent informed him that he had just finished with the switch and that the unit was "all set." Prior to installing the new unit, no work permits were pulled nor inspections called for by either Respondent or Mr. Nason. The Respondent believed that Nason, as general contractor, was obligated to pull all necessary work permits. The Respondent connected the new air conditioning/ heating unit to an electrical box which served as an on/off disconnect switch. The on/off disconnect switch was wired to the power source "ahead of the main." "Ahead of the main" is a term used in the electrical industry meaning that an apparatus is wired directly to a power source, by-passing the fuse box or main circuit breaker entirely. In this manner, the apparatus cannot be turned off from the fuse box. Such wiring violates the National Electrical Code, presents a serious hazard of fire and reflects gross negligence and incompetence. The evidence did not establish that the Respondent wired the on/off disconnect switch to the power source when he installed the new unit. There was at least an equal amount of credible evidence that the disconnect switch had been utilized with the previous unit and was in place prior to Respondent's installation work. Shortly after the unit was installed, Wilensky became dissatisfied because he believed that the unit was not heating or cooling properly and that his electricity bills were too high. Respondent returned to Mr. Wilensky's home on several occasions to do additional work on the unit, such as changing thermostats, in an attempt to satisfy Mr. Wilensky. Wilensky was not satisfied with the additional work performed by Respondent and their previously good relationship deteriorated rapidly. Wilensky called Florida Power & Light Company to complain about the high electric bills and an inspector went out to his home. The inspector informed Wilensky that the wiring leading to the air conditioning/heating unit was not done properly. On March 4, 1985, at the request of Mr. Wilensky, Benny Biscotti, an electrical building official for the City of North Miami Beach, performed an inspection at the Wilensky residence. In his inspection, Biscotti confirmed that the wiring leading to the air conditioning/heating unit was hooked up "ahead of the main." The wiring in Wilensky's home was corrected by AVI/AMEX Electric Company on January 16, 1986. The City of North Miami Beach has adopted the South Florida Building Code (SFBC). The SFBC required that a mechanical permit be obtained for the installation of the air conditioning/heating unit. The SFBC did not require an electrical permit in this instance because there was no showing that the installation of the unit required new permanent wiring or an alteration or change to the existing electrical system. The evidence did not establish that electrical upgrading (an increase in capacity for voltage and amperage) was required to accommodate the new air conditioning/heating unit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the Amended Administrative Complaint filed herein be dismissed. DONE and ORDERED this 27th day of July, 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON 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 27th day of July, 1987. APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 2 Adopted in substance in Finding of Fact 2. Adopted in substance in Finding of Fact 3. Adopted in substance in Finding of Fact 5. Rejected as not supported by the weight of credible testimony. Adopted in Finding of Fact 5. Partially adopted in Finding of Fact 5. Adopted in Finding of Fact 5. Adopted in substance in Finding of Fact 5. Rejected as not established by the weight of the evidence. Adopted in substance in Finding of Fact 7. Partially adopted in Finding of Fact 5. Mr. Wilensky's testimony that he saw Respondent connect the switch to the fuse box is unpersuasive, particularly in view of the fact that he did not observe all of the work performed by Respondent, his admitted lack of knowledge of air conditioning and electrical matters and his intense negative feelings regarding Respondent resulting from this entire incident. Adopted in substance in Finding of Fact 5. Rejected as subordinate and/or unnecessary. Adopted in substance in Finding of Fact 8. Rejected as unnecessary. Adopted in substance in Finding of Fact 8. Rejected as subordinate and/or unnecessary. Adopted in substance in Finding of Fact 8. Rejected as not supported by credible evidence. Rejected as not supported by credible evidence. Rejected as subordinate and/or unnecessary. Adopted in substance in Finding of Fact 14. Adopted in Finding of Fact 13. Adopted in Finding of Fact 13. Adopted in Finding of Fact 13. Rejected as not supported by credible evidence. Biscotti's testimony that the wiring was "recent" was based on the history of the work related to him by Mr. Wilensky. Although Biscotti testified that it looked as if "recent work" had been done, the admitted that his opinion was primarily based on Wilensky's statement to him that Respondent had installed new wiring. Rejected as not established by the weight of the evidence. Rejected as not established by the weight of the evidence. Adopted in Finding of Fact 1. Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 4. Rejected as not established by the weight of the evidence. Rejected as not contrary to the weight of the evidence. Addressed in Conclusion of Law section. Addressed in Conclusions of Law section. Adopted in Finding of Fact 6. Adopted in Finding of Fact 6. Adopted in Finding of Fact 6. Rejected as a recitation of testimony/evidence. Rejected as a recitation of testimony/evidence. Rejected as a recitation of testimony/evidence. Rejected as a recitation of testimony/evidence. Rejected as a recitation of testimony/evidence. Rejected as subordinate and/or unnecessary. Addressed in Procedural Background section. Addressed in Procedural Background section. Addressed in Procedural Background section. Rejected as subordinate. Rejected as subordinate. Rejected as subordinate. Rejected as subordinate. Rulings on Proposed Findings of Fact Submitted by the Respondent (The Respondent's Proposed Recommended Order is written in the form of Conclusions of Law only and includes no specific findings of fact upon which a ruling can be made.) COPIES FURNISHED: Gus Vincent Soto, Esq Joe Sole, Esq. Department of Professional Department of Professional Regulation Regulation 130 North Monroe Street 130 North Monroe Street Tallahassee, FL 32301 Tallahassee, FL 32399-0750 Edward Bringham, Esq. Fred Seely 25 West Flagler Street Executive Director City National Bank Bldg. Department of Professional Suite 933 Regulation Miami, FL 33130 P.O. Box 2 Jacksonville, FL 32201 Van Poole Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750
Findings Of Fact Arnold J. Pergament, an employee of Petitioner for almost 20 years, has been inspecting rooming houses licensed by Petitioner in Belle Glade for almost all of that time. For many years, he has inspected Rader's Rooming House at 657 Southwest Avenue E in Belle Glade, which consists of two buildings owned by Respondent, to whom Petitioner has issued license No. 60-00737H, covering the premises. A two-storied stucco-on-wood building contains six to eight separately rented rooms and a frame building with a single story is divided into about a dozen units. Their exterior walls are weather-beaten and deteriorated; there is evidence of wood rot. On August 13, 1980, Mr. Pergament, in conducting a routine inspection, found only two fire extinguishers, not the three he testified were required for Respondent's premises. There was no fire extinguisher on the ground floor of the stucco-on-wood building. There were no light bulbs in at least some of the public bathrooms; in all, there were four bathrooms, one per building for each sex. The bathrooms needed cleaning and some had torn or missing screens. Trash and garbage had accumulated under the buildings and on the grounds. A stair railing consisted of a pipe supported by dangerously infrequent uprights. All these items and more Mr. Pergament noted on a public lodging inspection record. Petitioner's Exhibit No. 1. After marking it to indicate that it was a warning, he personally delivered a carbon copy of the inspection record to Respondent at his office. On the form, Respondent was advised that minor violations in the operation of his establishment were to be corrected by October 13, 1980. Petitioner's Exhibit No. 1. Mr. Pergament returned to Rader's Rooming House on October 15, 1980 to find trash and garbage, including broken glass, on the grounds and under the buildings, an unaltered stair railing, and no fire extinguisher on the ground floor of the stucco building. In the bathroom, light bulbs were missing, windows were broken, screens were torn and missing; and no hot water was available in the sinks or showers. He noted these matters in a contemporaneous reinspection report, Petitioner's Exhibit No. 2, a copy of which was mailed to Respondent. On November 25, 1980, Mr. Pergament returned and reinspected. A hall was being painted but the matters specified in Petitioner's Exhibit No. 2 were substantially unchanged. On the morning of the final hearing, Mr. Pergament and James R. Gallagher inspected Rader's Rooming House and found a new stair railing that Mr. Pergament testified was satisfactory. A third fire extinguisher had been installed. Although it lacked an "approved" tag, it had a tag with a date on it. There was hot water. Fluorescent light bulbs in the bathroom were missing and bathroom windows were broken. The ground were littered with trash of apparently recent origin. Johnny Marchane Lewis is one of four men who regularly work for respondent, who owns other rental property in addition to Rader's Rooming House. Mr. Lewis replaced some windows and screens last summer at Rader's Rooming House, again two months later, and again in March of 1981. The week before the final hearing, he discovered a missing screen, which he replaced, but no other problems with screens or broken windows. On the Saturday before the final hearing, Tommy Lee Williams, another of Respondent's employees, cleared the grounds at Rader's Rooming House, but he testified that garbage might still remain under the buildings. Five months previously, Respondent's men had cleared under the buildings. Somebody rakes "the yard" every other day. Mr. Williams fixed the hot water heater twice, once by replacing the heating element and once by replacing a switch. Although he does not live there, Mr. Williams visits Rader's Rooming House more than once a week. Mr. Pergament testified that he had never had a problem with Respondent's trying to make repairs to any of his properties, and Respondent testified that he tried to make all repairs promptly and would have been more prompt about seeing to the stair railing, except that he misunderstood which railing was meant in Petitioner's Exhibit No. 1. As Respondent conceded, there was no reasonable basis for his misunderstanding, but he did take steps to remedy the situation when he understood the problem.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That Petitioner impose a fine against Respondent in the amount of $100.00. DONE and ENTERED this 12th day of May, 1981, in Tallahassee, Florida. COPIES FURNISHED: Mary Jo M. Gallay, Esquire 725 South Bronough Street Tallahassee, FL 32301 Milton Rader Rader's Rooming House 657 Southwest Avenue E Belle Glade, FL 33430 Norman J. Hayes 538 State Office Building 1350 Northwest 12th Avenue Miami, FL 33136 Lewis Reif Robert Hayes Gore Building Room 104 201 West Broward Boulevard Fort Lauderdale, FL 33301 ROBERT T. BENTON, II, 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 12th day of May, 1981.
Findings Of Fact Respondent Charlie S. Hiers is registered as a Class B air conditioning contractor and qualifier for Hiers Air Conditioning and Refrigeration, Orlando, Florida. As of July 1, 1979, his license became delinquent. (Petitioner's Exhibit 1) In December, 1981, Myrtle D. Harris, who resided at 7505 Ranchero Street, Orlando, engaged the services of Respondent to repair the air conditioning unit at her home. He had performed satisfactory air conditioning work for her on two prior occasions in 1979 and 1980. She had originally contacted him through an ad in the telephone directory under the name "Temp Control Service." On each occasion she had given him a check payable to Temp Control Services which was later endorsed in that name by Respondent. (Testimony of Harris, Petitioner's Exhibits 2-3) Respondent advised Mrs. Harris on December 2, 1981, that the compressor of her air conditioning unit needed to be replaced with a new compressor. She thereupon gave him a check in the amount of $546.00 and he provided her with a bill marked paid in that amount. Her chock, dated December 2, 1981, was made payable to Charlie Hiers, and his bill of the same date merely had his handwritten name at the top. Mrs. Harris later added the words "Temp Control" in the payee portion of the check after it had been endorsed by Respondent and returned after payment. (Testimony of Harris, Petitioner's Exhibits 4-5) Respondent proceeded to remove the old compressor and later came by Mrs. Harris' house and told her that he had had to order a replacement part. However, he never came back to her home or performed the work for which he had been paid. Mrs. Harris attempted to reach Respondent by leaving her telephone number at his answering service but received no reply. Later, sometime in January, Respondent telephoned her and stated that he had the compressor on his truck and would install it on a specified date. However, he never fulfilled his promise. Mrs. Harris attempted to reach him on subsequent occasions by telephone, but was unable to contact him. On February 1, 1982, Mrs. Harris had her nephew write a letter to Respondent requesting that he either perform the work or return the payment of $546.00. Several months later, after not having heard from the Respondent, Mrs. Harris purchased a new air-conditioner. Respondent has taken no action to perform his agreement or to return the amount which he was paid. (Testimony of Harris)
Findings Of Fact At all times pertinent to the issues herein, the Respondent, Denver Sammons, was licensed by the State of Florida as a registered air conditioning contractor, Class B, and Respondent qualified Denny's Air Conditioning Service under his license. At the January 8, 1985 meeting of the Broward County Central Examining Board of Mechanical Technicians, (Board), the Board heard a complaint by Port Distributors, a local air conditioning supplier, to the effect that Mr. Sammons had submitted two checks to that company in August, 1982, both of which were returned for insufficient funds and that neither had been redeemed. The Board decided to notify the Respondent of the complaint against him and give him an opportunity to respond at the next regularly scheduled meeting of the Board which was held on March 12,1985. At that Board meeting, at which Respondent was present, Mr. Julius M. Farinhouse, Jr., representative of Port Distributors, outlined its complaint against the Respondent detailing the circumstances surrounding the issuance of the bad checks and the need by the recipient to secure a judgment against the Respondent for the amount represented by the checks. There was evidence presented to the Board that these checks issued to Port Distributors were not the only checks written by Respondent that were not properly and promptly honored. Respondent testified before the Board regarding the circumstances surrounding the issuance of the checks and contested the seriousness of the offense alleging that when notified of the bad checks, he had reimbursed Port Distributors for the majority of the sum covered by the two dishonored checks, but this repayment was applied toward current accounts rather than in satisfaction of the bad checks, contra to the intention of the Respondent. Having considered both the testimony presented by the complainants and the Respondent, the Board, that same date, March 12, 1985, nevertheless entered a Final Order finding that the passing of bad checks to Port Distributors by the Respondent constituted an act involving dishonesty, fraud, deceit, or lack of integrity in the operation of Respondent's contracting business; that he failed to make any effort to pay the outstanding bill owed to Port Distributors; and that this misconduct constituted a failure to comply with the standards of Section 9-7, Broward County Code. As a result, the Board ordered the Respondent's Broward County Certificate of Competency revoked that date. The Order of the Board made provision for Respondent to apply for reinstatement of his Certificate of Competency but no such application has ever been made. For several years prior to the issuing of the Certificate of Competency by Broward County, Respondent had, under the old procedure, held a Certificate of Competency issued by the City of Hollywood, Florida and had, each year, renewed that Certificate upon the payment of a $30.00 fee. The Certificate issued by the city was renewed effective January 1, 1985 and reflected on its face, that it was good until December 31, 1985. However, when the Broward County Board of Mechanical Technicians began to issue its county-wide Certificate of Competency, all prior city-issued certificates were declared to be null and void. As a result, though Respondent continued to hold his Hollywood certificate, it was ineffective and he should not have been allowed to renew it by the city, since he was, at that time, covered by a county Certificate of Competency. By action of the Board on March 12, 1985, Respondent's Board (County- wide) Certificate of Competency, which was the only valid certificate he held at the time, was revoked. Because of this revocation, Respondent was, thereafter, allowed to work as a journeyman for another Master Technician but could not contract in his own name or for his own business nor could he pull building permits from any county or city building office. Notwithstanding this, on or about August 12, 1985, Respondent entered into a contract acting as Denny's Air Conditioning, with Isabel Parra. This contract was to remove her old heating and cooling system in her residence at 2207 North 46th Avenue in Hollywood and to install a new unit to consist of a three ton gas furnace with air conditioning coil and condenser. Pursuant to the contract, Respondent did, in fact, remove the old unit and install a new one. However, he did not pull a building permit with the county or city building office and on August 26, 1985, officials of the City of Hollywood issued a Notice of Violation to Mrs. Parra reflecting that Denny's Air Conditioning installed a central air conditioning unit without permit and without possessing a valid contractor's license. Mrs. Parra further contended that when she turned on the unit, the noise it made was extremely loud and not to her satisfaction. Evidence introduced by both Petitioner and Respondent, however, indicates that the Respondent installed the new unit exactly as the old unit had been installed. Mrs. Parra testified that she had not heard the old unit in its heating mode and therefore had no idea whether it made as much noise as the new unit did. In any event, she withheld some of the funds that were due Respondent until such time as he agreed to have someone come out and correct the problem. It has been several months since the parties agreed to this and Respondent still has not corrected the problem. He contends that the contractor with whom he arranged to correct Ms. Parra's problem has been unable to get with her since she works during the days and is home only in the evenings. In any event, though not charged as a violation, it would appear that Respondent has failed to follow through on his work and on his commitment to complete an acceptable installation for Mrs. Parra. Petitioner also alleges that on or about June 25, 1985, the Broward County Consumer Protection Board issued a cease and desist order to Respondent for representing that he was qualified to perform contracting work in Broward County without possessing local competency. No evidence was introduced, however, to satisfy or establish this allegation. Because of the dispute between Mrs. Parra and the Respondent, and her dissatisfaction with the quality of his installation, she filed a complaint with the Board and on December 10, 1985, the Board again met and heard her testimony and that of Mr. Sammons. As a result, on December 20, 1985, the Board found that Respondent's contract with Mrs. Parra was based on a representation to her that he was a contractor when in fact the prior action of the Board had denied him this status. The Board further found that he failed to pull a permit for the installation of the unit in Ms. Parra's home and thereafter failed to comply with the warranty given to her under the contract executed by him on August 12, 1985, nor did he provide her with the rebate promised. Based on these Findings of Fact, the Board concluded that the Respondent willfully, deliberately, or negligently disregarded or violated the provisions of the South Florida Building Code; that he contracted to act as a qualifying agent for his business when he was not certified to do so; that he contracted and did work which was not within the description of the class (journeyman) for which he had been certified by the Board; and that he abandoned without legal excuse a construction project in which he was engaged and under contract to complete. As a result, the Board ordered that his journeyman's Certificate of Competency be revoked effective that day. Once the journeyman's certificate was taken away, Respondent was not authorized to act as an air conditioning installer or contractor under any circumstances. Notwithstanding this, on February 20, 1986, Respondent again, acting as Denny's Air Conditioning, entered into a contract with Dr. Eisenstein to install a new two-ton split system in the doctor's home in Hollywood for a total price of $2,530.00. Since Dr. Eisenstein had previously dealt with Respondent on several occasions and found him to be reliable, the doctor responded to Respondent's request for an advance by giving him a $2,000.00 deposit. The contract was not actually finalized until late in March, 1986 and work was to begin in early April. However, on April 1, 1986, Respondent called Dr. Eisenstein and advised him that his truck, in which was stored the equipment for installation into the doctor's home and the money bag which contained the balance of the doctor's downpayment had been illegally repossessed by Respondent's bank the night before. As a result, Mr. Sammons indicated he would not be able to begin the project but assured the doctor that someone else would do so starting at the end of the week. In fact, no work was ever started by the Respondent or anyone else on his behalf. After several days, when Dr. Eisenstein attempted to call Respondent, he found that Respondent's phone had been disconnected and when on April 5, 1986, the date promised by Respondent, no one came to begin work on the project, the doctor began undertook an investigation which led to the ultimate contact of the doctor by the Respondent. To reach Respondent, Dr. Eisenstein had checked with Respondent's business landlord and when Respondent finally called the doctor back, he was irate that the doctor had done so. During that conversation Dr. Eisenstein advised Respondent that he should either repay the money advanced or do the work. In fact, neither was done. During the month of April, 1986, Dr. Eisenstein sent Respondent two letters by certified mail requesting that he either refund the advance payment or do the work promised under the contract. One letter was returned undelivered. The other was apparently delivered. When neither letter resulted in any satisfaction, the doctor, in early June, 1986, sent a letter of complaint to DPR outlining the situation. Respondent tells an incredible tale regarding the facts and circumstances which led up to the dispute with Dr. Eisenstein. Admitting that he was somewhat in debt to his bank, he claims that certain payments that he made to the bank with part of the money advanced by the doctor was used improperly by the bank and applied toward other obligations rather than the debt on his truck. He claims the repossession of the truck was illegal and improper because, by the payment mentioned above, if properly applied, the truck would have been paid off. This story is almost a duplicate of that regarding the excuse for the bad checks to Port Distributors. Respondent further contends that that bank thereafter engaged in a conspiracy against him to bring about his financial ruin; that the bank hired several individuals to assault him and his wife outside their church; that he has received several threats of bodily harm from the bank; and that all of this has resulted in his filing suit against the bank in local court. This story was told by the Respondent under oath. However, Respondent failed to provide any names or documentation to support this with the exception of the name of the bank allegedly involved. When asked where copies of the documentation were that would support his allegations, he responded with, "Oh, they're at home in a file." In short, it would appear that Respondent's story is a gossamer of fantasy which, while possibly believed at this point by Respondent, has very little basis in fact. Respondent also contends, for example, that Dr. Eisenstein requested that he not pull a permit for the work to be done at his house because he did not want city officials for one reason or another to know that the work was being done. This information was not brought out through Dr. Eisenstein, but rather through the testimony of the Respondent. None of these stories were backed up by any document or supporting evidence. Consequently, it is found that while Respondent may well believe what he is saying, his are in fact, incredible. Respondent was disciplined on two separate occasions by the Broward County Central Examining Board of Mechanical Technicians and Respondent has not shown that these actions were procedurally violative of due process. Consequently, they are found to have occurred and to be valid. Respondent was not permitted to attack the circumstances leading up to the action by the board and the Hearing Officer declined to relitigate the factual propriety of the Board's two actions. Once having lost his Master Technician's license, Respondent was no longer authorized to pull building permits in Broward County and notwithstanding that, nonetheless did commence work for Mrs. Parra on a job which, under the ordinances of the county, required a permit be pulled. He also failed to live up to the terms of a warranty inherent in his contract with her. The evidence also established that subsequent to the withdrawal of his Journeyman's certificate, he nonetheless entered into a contract for the installation of a system in Dr. Eisenstein's house and accepted a substantial advance payment which he neither returned nor earned when he failed to begin any work on the project. In the opinion of the Petitioner's expert, Respondent's conduct in this instance was totally unprofessional and unethical. In fact, as a professional, if the circumstances occurred as alleged by Respondent, he should have made immediate arrangements to in some way make restitution of the funds to his client or have the work done by someone else. The evidence here shows that Respondent made no effort to make some accommodation to the client. He entered no promissory note (Respondent claims that as a gentleman, he has no need of notes as his word is sufficient); he made no attempt to let the client know what had happened; and in short, it appears that Respondent was out to make a quick buck (the expert's phrase) without attempting to in any way satisfy his client.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Respondent's license as a registered air conditioning contractor be revoked. RECOMMENDED this 5th day of August, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of August, 1987. COPIES FURNISHED: G. Vincent Soto, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Mr. Denver Sammons Post Office Box 7437 4614 Madison Street Hollywood, Florida 33021 Mr. Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Van B. Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether the Respondent acted fraudulently, arbitrarily, illegally or dishonestly in proposing to award a contract for State Project No. 99003-3501 to the Intervenor.
Findings Of Fact The Parties. The Respondent, the Department of Transportation (hereinafter referred to as the "Department"), is an agency of the State of Florida. The Department sought bidders for a construction project by invitation to bid. The Petitioner, North Florida Construction, Inc. (hereinafter referred to as "North Florida"), submitted a bid on the Department's construction project. The Intervenor, Pro-Steel Buildings, Inc. (hereinafter referred to as "Pro-Steel"), also submitted a bid on the Department's construction project. The Subject Invitation to Bid. The Department issued an Invitation to Bid for State Project Number 99003-3501 (hereinafter referred to as the "ITB"). The ITB solicited bids on a construction contract for the relocation of the Department's maintenance yard facility in Tallahassee, Florida. The ITB required that each prime contractor either subcontract at least 25 percent of the total contract price to a Certified Minority Business Enterprises (hereinafter referred to as a "CMBE"), or show a good-faith effort to meet the 25 percent goal. Pages 78-81, Joint Exhibit 1. Included in the Instructions to Bidders, at Section B-14, are instructions concerning "Listing of Subcontractors." Page 15, Joint Exhibit 1. Section B-14 of the ITB provides: In order that the Owner may be assured that only qualified and competent subcontractors will be employed on the project, each Bidder shall submit in triplicate with his proposal a list of the subcontractors who will perform the work for each Division of the Specifications utilizing the "List of Subcontractors" form enclosed as Exhibit 5. The Bidder shall have determined to his own complete satisfaction that a listed subcontractor has been successfully engaged in this particular type of business for a reasonable length of time, has successfully completed installations comparable to that which is required by this Agreement and is qualified both technically and financially to perform that pertinent phase of this work for which he is listed. . . . Any bidder who lists a subcontractor not certified and/or registered by the State to perform the work of his trade if, such certification or registration is required for the trade by Florida Laws, will be rejected as non-responsive. No change shall be made in the list of subcontractors, before or after the award of a contract, unless agreed to in writing by the Owner. [Emphasis added]. Exhibit 5, List of Subcontractors, provides, in part, the following: THE UNDERSIGNED, HEREINAFTER CALLED "BIDDER", LISTS BELOW THE NAME OF EACH SUBCONTRACTOR WHO WILL PERFORM THE PHASES OF THE WORK INDICATED. FAILURE OF THE BIDDER TO SUPPLY SUFFICIENT INFORMATION TO ALLOW VERIFICATION OF THE CORPORATE, AND DISCIPLINE LICENSE STATUS OF THE SUBCONTRACTOR MAY DEEM THE BID AS BEING NON-RESPONSIVE. Page 55, Joint Exhibit 1. Exhibit 5 was required to be completed and submitted with all bids pursuant to Section B-14 of the ITB. From the technical specifications for Heating, Ventilation and Air Conditioning work (hereinafter referred to as "HVAC"), for the project at issue, it could be inferred that two 30-ton air conditioning units were required. The Bids Submitted by Pro-Steel and North Florida. Bids on the ITB were submitted and opened on March 24, 1994. North Florida submitted a bid in response to the ITB: On the envelope containing the sealed bid of North Florida, North Florida requested that $14,000.00 be deducted from its proposed contract price. North Florida submitted a bid of $2,997,007.00. North Florida was the apparent second low bidder. North Florida listed Gallon & Sons as the subcontractor responsible for HVAC work. North Florida also listed Gallon & Sons as a CMBE. Gallon & Sons was listed on Exhibit 5, the Minority Business Enterprise Utilization Summary, submitted with North Florida's bid. North Florida proposed to install two 30-ton air conditioning units. Pro-Steel also submitted a bid in response to the ITB. Pro-Steel submitted a bid of $2,993,000.00. Pro-Steel was the apparent low bidder. Pro-Steel listed "Watts Mechanical" as the subcontractor responsible for the HVAC work required by the ITB. Pro-Steel also listed Watts as one of two CMBE subcontractors. "Watts Mechanical" was listed on Exhibit 5, the Minority Business Enterprise Utilization Summary, submitted with Pro-Steel's bid. Pro-Steel's bid submittal proposed the installation of two 30-ton air conditioning units. The Department's Decision. It is the policy of the Department to waive minor irregularities in bid submittals. Irregularities with North Florida's bid were correctly determined to be minor by the Department and were waived. The bid tabulation sheet and the bids indicated that Pro-Steel submitted the lowest, responsive bid. The Department proposed to award the contract under the ITB to Pro-Steel. Without Watts as a CMBE, Pro-Steel would not meet the 25 percent CMBE participation goal of the ITB. The Department's project manager for the ITB determined that Watts was a CMBE in evaluating the bid submittals. Qualification of CMBE's to Perform Work Proposed. Gallon & Sons was at all times relevant to this proceeding, registered as a CMBE in hearing and air conditioning. Eddie Gallon, Sr., was at all times relevant to this proceeding, the registered qualified agent for Gallon & Sons. Mr. Gallon holds a Class A license in heating and air conditioning. The stock of Watts Mechanical, Inc. (hereinafter referred to as "Watts"), is owned 100 percent by Jacqueline Watts. Ms. Watts is also the President of Watts. Ms. Watts held and still holds a Class B HVAC license from the Department of Business and Professional Regulation. Ms. Watts was registered with the Department of Business and Professional Regulation as the qualifying agent for Watts. Watts was registered with the Department of Management Services as a CMBE under the category of heating and air conditioning contractors. On January 1, 1994, Watts acquired the assets of Energy Systems of Tallahassee (hereinafter referred to as "Energy Systems"). Energy Systems was then owned by Thomas Trapane. As of January 1, 1994, it was intended that Watts be renamed "Watts Mechanical and Energy Systems, Inc." Mr. Trapane held and still holds a Class A HVAC license from the Department of Business and Professional Regulation. Mr. Trapane was registered with the Department of Business and Professional Regulation as the qualifying agent for Energy Systems. As of January 1, 1994, Mr. Trapane became an employee of Watts. As of March 24, 1994, when bids were submitted on the ITB: Watts had not filed an amendment to its Articles of Incorporation reflecting the change in name to Watts Mechanical and Energy Systems, Inc. (hereinafter referred to as "Watts Mechanical and Energy"). The amendment was not filed until April 26, 1994. Mr. Trapane had not registered with the Department of Business and Professional Regulation as the qualifying agent for Watts or Watts Mechanical and Energy. It was not until May 2, 1994, that the Department of Business and Professional Regulation issued a letter indicating that Mr. Trapane was a secondary qualifying agent for Watts Mechanical and Energy. Watts had not notified the Department of Management Services of its name change with regard to its CMBE certification. Based upon the foregoing, at the date of the submittal of bids and the proposed award of contract pursuant to the ITB, Watts did not hold the license required in order for it to complete the work Pro-Steel had represented to the Department Watts would perform. Substitution of Subcontractors. It is the policy of the Department to allow contractors to substitute subcontractors for good cause if proper documentation is submitted. The evidence, however, failed to prove the Department's policy concerning substitution of subcontractors applies in this matter. The evidence also failed to prove that the Department's policy concerning substitution of contractors allows the Department to accept as meeting part of the CMBE requirement of the ITB a CMBE that was not qualified to perform the required work as of the date of bid award. Alternative Proposals. The ITB allows substitutions for specified systems or products contained in the ITB. Page 28, Joint Exhibit 1. Substitutions, however, must be requested of the Architect-Engineer and written approval from the Architect-Engineer must be obtained. Substitutions must be submitted within 45 days after award of the contract. No substitutions were submitted by Pro-Steel or Watts at the time of bid submittal. As of the date of the final hearing of this case, Watts had decided to suggest that the configuration of the HVAC of the project be changed in a manner that would not require a Class A license for the work to be performed. The evidence failed to prove that the Department was aware of this proposal at the time of its initial decision.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a Final Order declaring the bid submitted by Pro-Steel Builders, Inc., to be non-responsive. DONE AND ENTERED this 13th day of June, 1994, in Tallahassee, Florida. LARRY J. SARTIN 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 13th day of June, 1994 APPENDIX Case Number 94-2353BID The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. North Florida's Proposed Findings of Fact Accepted in 2 and hereby accepted. Accepted in 1. Accepted in 3 and hereby accepted. Accepted in 4 and 10. Accepted in 10-11 and 13. Accepted in 6-8. Accepted in 14. Accepted in 15. Accepted in 7. Accepted in 25 and 32. Conclusion of law. Accepted in 9. Conclusion of law. See 27 and 32. Accepted in 32. Accepted in 15. Accepted in 20. Accepted in 7-8. See 33. The Department's Proposed Findings of Fact Accepted in 4. Accepted in 2-3 and 11-12. Accepted in 6. Accepted in 10-11. Accepted in 11 and 13. Accepted in 11 and 15. See 26, 28 and 32. Watts Mechanical, Inc. was a CMBE at the time of bid submittal. Watts Mechanical & Energy Systems, Inc., did not exist at the time of bid submittal. Accepted in 22. Accepted in 9. 9 Accepted in 24. 10-11 Accepted in 25. Accepted in 31. Accepted in 29. Accepted in 32. Accepted in 23. Hereby accepted. Accepted in 20. Accepted in 21. Accepted in 36. But see 37-38. Not relevant. See 7. Accepted in 8. 23 See 36-38. Not relevant. Accepted in 17. Pro-Steel's Proposed Findings of Fact Accepted in 4. Accepted in 7-8 Accepted in 8. Not supported by the weight of the evidence. Accepted in 34. See 35. Accepted in 17. 7 Accepted in 2-3, 10-11 and 18-19. Accepted in 14. Accepted in 9 and 36. See 25-26. But see 32. Accepted in 27, 29 and 31. The last sentence is not relevant. Accepted in 32. Not supported by the weight of the evidence. 14 See 34-35. 15 See 36-39 COPIES FURNISHED: Ben G. Watts, Secretary Attn: Eleanor F. Turner, M.S. 58 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0450 Thornton J. Williams General Counsel 562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0450 Thomas H. Duffy Assistant General Counsel Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, FL 32399-0458 Tommy Strickland North Florida Construction, Inc. Post Office Box 129 Clarksville, Florida 32430 Stephen J. Kubik, Esquire 155 Office Plaza Drive Tallahassee, Florida 32301
The Issue The issues are whether the existing and proposed provisions of Florida Administrative Code Rule 61G4-15.005, as identified in the next paragraph, are invalid exercises of delegated legislative authority.
Findings Of Fact Petitioner Gold Coast School of Construction, Inc. (Gold Coast), engages in the business of offering courses to individuals who seek to become certified or registered contractors in Florida. Gold Coast offers prelicensing courses for prospective general contractors, building contractors, residential contractors, Class A air conditioning contractors, Class B air conditioning contractors, Class C air conditioning contractors, and roofing contractors. Enrollment in these classes ranges from 200-600 students annually. For the trades in which Gold Coast offers prelicensing courses, Gold Coast is substantially affected by the proposed rule, which would substantially raise the net-worth requirements imposed on prospective contractors, reduce the number of persons who could qualify for certification, and reduce the number of persons who would enroll in Gold Coast's prelicensing courses. Petitioner Douglas L. Gamester (Gamester) has passed the Construction Industry Licensing Board (Respondent) examination for certification as a general contractor. After he filed his rule challenge, Respondent granted him a general contractor's certificate and approved his qualification of a business entity. Gamester is not substantially affected by the rule or proposed changes to the rule. Although Gamester may, in the future, attempt to obtain other contracting certificates in other trades, any finding of such plans at present would be based entirely on speculation. Florida Administrative Code Rule 61G4-15.005 provides: 61G4-15.005 Requirements for Certification and Registration. In order that the Board may carry out its statutory duty to investigate the financial responsibility, credit, and business reputation of a new applicant for certification or registration or a change of status of a certification or registration, an applicant shall be required to forward the following to the Department for a review by the Board: A credit report from any nationally recognized credit agency as defined in subsections 61G4-12.011(13) and (14), F.A.C. A financial statement, not older than 12 months, which shall contain information indicating the current assets, current liabilities, total assets, total liabilities, and total net worth, and which shall report all material financial changes occurring between the date of the financial statement and the date of the application. As a prerequisite to issuance of a certificate, an applicant shall, in addition to the submissions required in subsections and (2) above, submit competent, substantial evidence to the Florida Construction Industry Licensing Board demonstrating the following: Net worth as listed below for the following categories of contractors: General Contractor, $20,000; Building Contractor, $20,000; Residential Contractor, $20,000; Sheet Metal Contractor, $10,000; Roofing Contractor, $10,000; Class A Air Conditioning Contractor, $10,000; Class B Air Conditioning Contractor, $10,000; Class C Air Conditioning Contractor, $10,000; Mechanical Contractor, $10,000; Commercial Pool/Spa Contractor, $10,000; Residential Pool/Spa Contractor, $10,000; Swimming Pool/Spa Servicing Contractor, $2,500; Plumbing Contractor, $10,000; Underground Utility and Excavation Contractor, $10,000; Solar Contractor, $10,000; Residential Solar Water Heating Specialty Contractor, $2,500; Specialty Structure Contractor, $10,000; Pollutant Storage System Specialty Contractor, $10,000; Gypsum Drywall Specialty Contractor, $2,500; Gas Line Specialty Contractor, $10,000; or Glass and Glazing Specialty Contractor, $10,000. Possession of either a letter of credit or a compliance bond established to reimburse the appropriate parties for diversion of funds, abandonment, and all other statutory violations, said instruments to be issued in the same license classification to dollar ratio listed in paragraph (a), above. The aforementioned instruments are not to be construed as performance bonds. Net worth shall be defined to require a showing for all contractor licensure categories that the applicant has a minimum of 50 percent (%) of the amount in cash. Cash shall be defined to include a line of credit. On February 6, 2004, Respondent published in the Florida Administrative Weekly, Volume 30, Number 6, proposed changes to Florida Administrative Code 61G4-15.005(3)(a), so that the new net-worth requirements would be as follows (new language is underlined and old language is stricken): Net worth as listed below for the following categories of contractors: General Contractor, $80,000 20,000; 20,000; 10,000; 10,000; Building Contractor, $40,000 Residential Contractor, $20,000; Sheet Metal Contractor, $20,000 Roofing Contractor, $20,000 Class A Air Conditioning Contractor, $20,000 10,000; Class B Air Conditioning Contractor, $20,000 10,000; Class C Air Conditioning Contractor, $20,000 10,000; Mechanical Contractor, $20,000 10,000; Commercial Pool/Spa Contractor, $20,000 10,000; Residential Pool/Spa Contractor, $20,000 10,000; Swimming Pool/Spa Servicing Contractor, $10,000 2,500; Plumbing Contractor, $20,000 10,000; Underground Utility and Excavation Contractor, $20,000 10,000; Solar Contractor, $20,000 10,000; Residential Solar Water Heating Specialty Contractor, $5,000 2,500; Specialty Structure Contractor, $20,000; 10,000; Pollutant Storage System Specialty Contractor, $20,000; 10,000; Gypsum Drywall Specialty Contractor, $5,000; 2,500; Gas Line Specialty Contractor, $20,000 10,000; or [sic]. Section 489.105(3), Florida Statutes, divides contractors into Division I and Division II. Division I contractors are general, building, and residential contractors. Division II contractors are all other contractors. Section 489.105(3), Florida Statutes, defines Division I contractors as follows: "General contractor" means a contractor whose services are unlimited as to the type of work which he or she may do, who may contract for any activity requiring licensure under this part, and who may perform any work requiring licensure under this part, except as otherwise expressly provided in s. 489.113. "Building contractor" means a contractor whose services are limited to construction of commercial buildings and single-dwelling or multiple-dwelling residential buildings, which commercial or residential buildings do not exceed three stories in height, and accessory use structures in connection therewith or a contractor whose services are limited to remodeling, repair, or improvement of any size building if the services do not affect the structural members of the building. "Residential contractor" means a contractor whose services are limited to construction, remodeling, repair, or improvement of one-family, two-family, or three-family residences not exceeding two habitable stories above no more than one uninhabitable story and accessory use structures in connection therewith. In contrast to building and residential contractors, a general contractor is unlimited in the scope of work that he or she may under take, subject to Section 489.113(3), Florida Statutes, which requires a contractor to subcontract out electrical, mechanical, plumbing, roofing, sheet metal, swimming pool, and air conditioning work, unless the contractor is certified or registered in the particular trade. Building contractors may undertake work on residential or commercial structures not more than three stories high, and residential contractors may undertake work on limited residential structures not more than two stories high. Although Petitioners identify various small jobs that require a general contractor's certificate or registration, such as the construction of small communications towers, balcony repairs in parking garages, and door repairs in high-rise apartments, the record generally supports the finding that the scope of jobs undertaken by general contractors is more extensive than the scope of jobs undertaken by building contractors, and the scope of jobs undertaken by building contractors is more extensive than the scope of jobs undertaken by residential contractors. This case involves one of the requirements imposed on persons seeking to become certified as contractors in specific trades. Certification is distinct from registration. Section 489.105(7) and (8), Florida Statutes, defines "certificate" as a certificate of competency issued by Respondent and a "certified contractor" as a contractor who may practice anywhere in the state. Section 489.105(9) and (10), Florida Statutes, defines "registration" as registration with Respondent and a "registered contractor" as a contractor who may practice only in the local jurisdiction for which the registration is issued. Section 489.115(1), Florida Statutes, prohibits any person from engaging in the practice of contracting without first obtaining a certificate or registration in the appropriate trade. Section 489.115(5)(b) and (6), Florida Statutes, provides: (b) In addition to the affidavit of insurance, as a prerequisite to the initial issuance of a certificate, the applicant shall furnish a credit report from a nationally recognized credit agency that reflects the financial responsibility of the applicant and evidence of financial responsibility, credit, and business reputation of either himself or herself or the business organization he or she desires to qualify. The board shall adopt rules defining financial responsibility based upon the applicant's credit history, ability to be bonded, and any history of bankruptcy or assignment of receivers. Such rules shall specify the financial responsibility grounds on which the board may refuse to qualify an applicant for certification. * * * (6) An initial applicant shall, along with the application, and a certificateholder or registrant shall, upon requesting a change of status, submit to the board a credit report from a nationally recognized credit agency that reflects the financial responsibility of the applicant or certificateholder or registrant. The credit report required for the initial applicant shall be considered the minimum evidence necessary to satisfy the board that he or she is financially responsible to be certified, has the necessary credit and business reputation to engage in contracting in the state, and has the minimum financial stability necessary to avoid the problem of financial mismanagement or misconduct. The board shall, by rule, adopt guidelines for determination of financial stability Although testimony at the hearing suggested that "history of bankruptcy" meant an inability to generate sufficient cash flow to pay debts owed, it is more likely that a "history of bankruptcy" is a record of filing for bankruptcy. Like the appointment of a receiver, the filing of a petition for bankruptcy is an action that is easily detected, as opposed to the inability to pay debts as they matured or the existence of liabilities in excess of assets--either of which, for most natural persons, is difficult to determine, especially historically. The "credit report" mentioned in Section 489.115(5)(b), Florida Statutes, and the "credit report" mentioned in Section 489.115(6), Florida Statutes, is the same credit report. Florida Administrative Code Rule 61G4-12.011(11) and (12) defines the credit report as follows: A “credit report from a nationally recognized credit agency that reflects the financial responsibility of the applicant, certificateholder or registrant”, shall for the purposes of Section 489.115(6), F.S., mean a credit report that provides full, accurate, current, and complete information on the following items in a manner which allows the Board to determine the credit worthiness of the applicant: Payment history; Credit rating; Public filings in county, state and federal courts; Bankruptcies, business history, suits, liens, and judgments, all on a nationwide basis; Location of business, number of years in business; Social security numbers, if available, of all corporate officers, owners and partners, and all federal employer identification numbers, if available, held by the applicant or any business entity that he currently qualifies or is applying to qualify; and UCC filings. A “nationally recognized credit agency” shall mean a credit agency that: Obtains credit information both within and outside the State of Florida; Validates, updates, and maintains the accuracy of credit information obtained; and Obtains credit reports from at least two (2) credit bureaus. The statutory requirement of a credit report focuses upon an individual's creditworthiness, based on his or her use or abuse of credit and payment history. The closest that these statutes come to specifying net worth as a criterion of certification are the requirements of "financial. . . responsib[ility]" and "the minimum financial stability necessary to avoid the problem of financial mismanagement or misconduct," which is the cause of about 70 percent of all disciplinary proceedings against contractors. However, these statutory references guide Respondent in the authorized use of the credit report, which does not warrant the imposition of a net-worth requirement. First, the credit report lacks net-worth information. Second, the credit report presents a subject's financial history--most of which is of no use in establishing the subject's present net worth. In contrast to these provisions in Section 489.115(5)(b) and (6), Florida Statutes, Section 489.1195(1)(d), Florida Statutes, expressly authorizes Respondent to adopt rules imposing "net worth" and "cash” requirements on individuals seeking to qualify as financially responsible officers (FROs) for construction businesses. The Legislature clearly evidenced its ability to require net worth as a condition to certification as an FRO, which are not involved in this case, and obviously elected not to impose as onerous a requirement upon contractors themselves. Respondent determined the new net-worth requirements in the proposed rule by two means. Respondent had not changed the net-worth requirements for Division II contractors for 20 years, so Respondent estimated that the effects of inflation justified the increases set forth in the proposed rule. Respondent had raised the net-worth requirements for Division I contractors from $10,000 to $20,000 in 1998. Respondent derived the new net-worth requirements for general and building contractors based on estimates of weekly salaries for these respective contractors, not inflation. The present record contains no evidence of the rate of inflation during any relevant period of time, nor any evidence of average weekly salaries paid by Division I contractors. Nor does it appear that Respondent considered such data when determining the new net-worth requirements in the proposed rule.
The Issue The issue for determination in this proceeding is whether Respondent committed the acts alleged in the Administrative Complaint and, if so, what disciplinary action, if any, should be imposed.
Findings Of Fact Petitioner is the state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida. Respondent is now and has been at all times material to this proceeding a licensed real estate salesman in the state, holding license number 0488568. The license was issued %Tequesta Properties, Inc., 169 Tequesta Drive, Tequesta, Florida 33458 ("Tequesta"). On June 29, 1989, Respondent negotiated a contract for the sale and purchase of a single family residence located at 65 Willow Road, Tequesta, Florida (the "contract"). The residence was listed for sale with Tequesta. The sellers were Frank and Hilda Sceusa, and the buyers were Dale and Cathy Favre. The buyers first saw the listed property at an open house. Respondent was present at the open house because the listing agent was busy with another transaction. The contract provided: Inspection, Repair And Maintenance: Seller warrants that as of 10 days prior to closing, the ceiling, roof . . . and exterior and interior walls do not have any VISIBLE EVIDENCE of leaks or water damage and that the septic tank, pool, all major appliances, heating, cooling, electrical, plumbing systems, and machinery, are in WORKING CONDITION. Buyer may, at Buyer's expense, have inspections made of those items by an appropriately Florida licensed person dealing in the construction, repair, or maintenance of those items and shall report in writing to Seller such items that do not meet the above standards as to defects together with the cost of repairing them prior to Buyer's occupancy or not less than 10 days prior to closing whichever occurs first. Unless Buyers report such defects within that time, Buyer shall be deemed to have waived Seller's responsibilities as to defects not reported. . . . Buyer shall be permitted access for inspection of property to determine compliance with this Standard. Respondent failed to give the buyers a reasonable opportunity to inspect the house or to have it inspected by a professional inspector. Buyers requested a pre-closing inspection approximately three or four times. Each time the buyers made their request through Respondent. The buyers asked Respondent to arrange for their access into the property for the purpose of conducting an inspection. Respondent ultimately accompanied the buyers through the premises the night before the closing. Respondent misrepresented the condition of plumbing in the house. During the walk-through the night before the closing, the buyers asked Respondent about a rag covering the goose neck under the kitchen sink. Respondent advised the buyers that the rag was left there after cleaning and that nothing was wrong with the plumbing. Respondent misrepresented the provisions of a warranty that was transferred to the buyers with the sale of the house. The house was sold to the buyers with a home owners warranty ("HOW") purchased by the listing broker. Respondent told the buyers they did not have to worry about the appliances in the house, including the air conditioning, because the entire property was covered by the warranty. Respondent specifically represented that the air conditioning system was in good working order. Respondent never read the HOW contract and did not explain to the buyers exclusions for preexisting conditions, prorations for other conditions, and the requirement that the buyers pay a $100 deductible for each covered defect. Respondent failed to familiarize himself with the house and failed to inquire of the sellers as to any problems that existed in the house. The kitchen sink backed up within a month after the date of closing because it was clogged with sand. The pipe was rusted completely through and there was a three inch gash in the pipe. The rag that had covered the pipe during the walk through concealed the defects in the pipe that otherwise would have been readily visible. The air conditioning system failed after closing. The repairs to the air conditioning system were not covered by the HOW contract. Representatives of HOW determined that the problems with the air conditioning system were preexisting and not covered under the terms of the contract. The air conditioning unit was replaced by the buyers who were reimbursed by the listing broker. The buyers experienced problems with a number of the components in the house. In addition to the previously mentioned air conditioning and plumbing problems, there were electrical problems and all of the appliances had to be replaced. Respondent misrepresented the amount of known repairs. The buyers knew prior to closing that the pool needed to be re-marcited. Respondent represented that the cost of such a repair would be approximately $1,000. The actual cost was approximately $3,000. Some of the problems experienced by the buyers were patent defects and some were latent defects. All of the problems, however, could have been discovered and corrected prior to closing if an inspection had been conducted by a Florida licensed person experienced in the construction, repair, and maintenance of such matters. Respondent failed to carry out his responsibilities as a real estate professional. It is customary practice in the community for the selling agent to arrange for pre-closing inspections done by professional licensed inspectors. The listing agent for the residence asked Respondent the day before the closing if Respondent had scheduled the pre-closing inspection. Respondent admitted that he had forgotten to schedule the inspection. When Respondent scheduled a walk through for the buyers the night before closing, there was insufficient time for the buyers to schedule an inspection by a professional inspector. The buyers relied upon the representations of Respondent with respect to the HOW contract and the condition of the house.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that Petitioner should enter a Final Order finding Respondent guilty of misrepresentation and culpable negligence in violation of Section 475.25(1)(b), Florida Statutes, suspending Respondent's license for 90 days, imposing an administrative fine of $600, and placing Respondent on probation for one year. The Final Order should further provide that during the period of probation Respondent should complete 60 hours of post-licensure education. DONE and ENTERED this 22nd day of January, 1992, in Tallahassee, Leon County, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of January 1992.
Findings Of Fact The Petitioner is be Department of Professional Regulation. The Respondent is John Anthony Fantasia, at all times pertinent to these proceedings holder of certified air conditioning contractor license number CA-C024378 and qualifying agent for Fantasia Air Conditioning Refrigeration Appliance Service. Nat Weintraub contracted with Respondent on or about June 25, 1986. Under terms of the contract, Weintraub gave Respondent a $2,500 down payment to have a central air conditioning system installed in the Weintraub home. Weintraub paid Respondent an additional $1,250 when the central air conditioning unit was delivered on or about July 1, 1986. A third and final payment of $1,250 due upon completion of the work set forth in the contract has not been made by Weintraub dub to difficulties he has encountered with the Respondent concerning the quality of work on the project. While he timely commenced work shortly after delivery of the central air unit and receipt of two monetary payments from Weintraub, Respondent damaged a screen covering an opening in an overhanging eave to the Weintraub's flat roofed house. This occurred when he inserted equipment into the opening of the eave in order to place additional insulation between the roof and the ceiling of the home. Weintraub later paid someone else $52 to repair the damage. Respondent made an opening in the roof through which he placed a ventilation pipe. The opening was too large and emitted daylight around the pipe into the closet where the air conditioning unit was installed. As a result, rainwater accumulated in the closet. Weintraub later paid repair costs of $185 to another contractor to seal the opening around the pipe and replace the closet door. While repair of the opening was not a part of the written contract, the Respondent had orally promised to make this correction. A noise problem associated with overly small grillwork on the main air outlet to the air conditioning unit was fixed by another contractor at a cost of $236 to Weintraub. Dry wall covering a soffit containing duct work in the Weintraub living room was not properly finished off. Weintraub has received estimates leading him to believe correction of this deficiency will cost him approximately $510 in repairs. During installation of the air conditioning unit, closure of an existing line supplying natural gas to a heat furnace was required. Respondent "pinched off" the line in an improper manner. Further, Respondent's license does not authorize him to engage in work on heating equipment gas lines. As a result of the manner in which Respondent installed the air conditioning unit, it is extremely inconvenient if not impossible to change the unit's air filters. The job at the Weintraub home was approximately eighty percent completed when the Respondent exhausted his supply of insulation. He left the job site at that time. Later he called Weintraub demanding additional funds. Weintraub refused to pay anything additional until, in accordance with the contract terms, the job was completed. Al Childress is an enforcement officer with the Metro-Dade County Building and Zoning Department. He went to the Weintraub home on December 3, 1986. He noted the air conditioning unit had been installed without a proper permit and issued a citation by certified mail to the Respondent. The Respondent subsequently paid a $50 civil penalty for the citation. William Huckstep was a mechanical inspector for the Metro-Dade County Building and Zoning Department when he was called to the Weintraub home on or about February 3, 1987. He observed the gas line which had been altered by the Respondent. Huckstep subsequently issued a Notice of Violation by certified mail to Respondent for performing such a task without a certificate of competency as required by the Dade County Building Code. On or about April 22, 1987, Huckstep issued a second notice of violation to Respondent for failure to have called for rough and final inspections of the air conditioner installation as required by the Dade County Building Code. To date, these inspections have not been performed by local authorities or requested by the Respondent. Considerably more than 90 days have elapsed since the fall of 1986 when Respondent left the Weintraub project, prior to its completion, without notification, and without just cause to depart. The improper installation of air conditioning equipment, insulation and duct work exhibited gross negligence by the Respondent in the performance of these tasks.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered in this cause assessing the Respondent a fine of $1,500 and placing him on probation for a period of two years upon terms and conditions to be determined by the Construction Industry Licensing Board. DONE AND RECOMMENDED this 17th day of March, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5602 The following constitutes my specific ruling on the proposed findings of fact submitted by the Petitioner. Those proposed findings consisted of 18 paragraphs. Only the first five paragraphs were numbered. Numbers 6 through 18 were applied to the remaining paragraphs by the Hearing Officer. Included in finding number 2. Included in finding number 3. Included in finding number 12. Included in finding number 13. Rejected as unnecessary. Included in part in findings numbered 3 and 4. Included in findings numbered 13 and 14. Included in findings numbered 6 and 9. Included in finding number 11. Included as to the soffit in finding number 8. The remainder is rejected. Included in finding number 11. Included in finding number 12. Included in findings numbered 11 and 15. Rejected as unnecessary. Included in findings numbered 5, 6, 7, and 8. Included in finding number 13, with the exception of Petitioner's dates which are reflective of the deadline given Respondent on the citations. Included in finding number 13. Included in finding number 14, with exception of hearsay relating to testimony of Bob Wolf which is rejected. COPIES FURNISHED: Lee Sims, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 John Anthony Fantasia 149-10 Northeast Eighth Avenue North Miami, Florida 33161 William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely Executive Director Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 =================================================================
Findings Of Fact Based on the evidence received at the final hearing, the following findings of fact are made. At all times material to this case, the Respondent, Steven Ary, was a licensed air conditioning contractor in the State of Florida, holding license number CA CO36888. On October 20, 1987, a company named Jenni Temp Refrigeration Company, Inc., entered into a contract with Lauderhill Mall, Lauderhill, Florida, to install three 3 1/2 ton air conditioning units for the sum of $7,875. Jenni Temp was to provide the three separate permits required by the City of Lauderhill, Florida, for the installation. Joseph Roturra, the owner of Jenni Temp Refrigeration Company, Inc., and Respondent had, prior to October 20, 1987, entered into negotiations whereby Respondent would become employed by Jenni Temp as its qualifying agent so that Jenni Temp could engage in air conditioning contracting. Those negotiations ended before any formal efforts were made to have Jenni Temp licensed with Respondent as the qualifying agent. In late 1987, before his negotiations with Jenni Temp broke down, Respondent signed three blank application forms for electrical and air conditioning permits. Respondent then gave the three signed application forms to Joseph Roturra. Respondent knew that neither Joseph Roturra nor his company was licensed for air conditioning work. Joseph Roturra completed the signed blank application forms he received from Respondent and made application with the City of Lauderhill, Florida, for the three permits required for the job at Lauderhill Mall. The name of the applicant on the applications as completed by Joseph Roturra was All Star Service, Inc. Respondent served as the qualifying agent for All Star Service, Inc. The City of Lauderhill did not issue the permits for which Roturra applied using the forms signed by Respondent because permits had been previously issued to another company for the same job. Jenni Temp completed the Lauderhill Mall job without the permits required by local law and without further assistance from Respondent. Respondent did not supervise the job at Lauderhill Mall. There was no final inspection of the work as required by local law.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding Respondent guilty of having violated Sections 489.129(1)(e) and (m), Florida Statutes and which imposes an administrative fine on Respondent in the amount of $500 for the violation of Section 489.129(1)(e), Florida Statutes. It is further recommended that there not be a separate fine for the violation of Section 489.129(1) (m), Florida Statutes, because the conduct that establishes that violation is the same conduct which constitutes the violation for which the administrative fine is recommended. DONE and ENTERED this 22nd day of May, 1989, in Tallahassee, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 1989. APPENDIX The findings of fact contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, l0, 13, 14, 15, 19 and 20 of Petitioner's proposed findings of fact are adopted in substance, insofar as material. The findings of fact contained in paragraphs 11, 12, 16, 17 and 18 of Petitioner's proposed findings of fact are immaterial. COPIES FURNISHED: Kenneth E Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0729 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0729 Steven Ary 1217 N. E 4th Street Pompano Beach, Florida 33306
