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 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 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 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 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
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint issued against him and, if so, what disciplinary action should be taken.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is a Spanish-speaking native of Cuba with little or no understanding of the English language. He has resided in Miami-Dade County since coming to this country 18 or 19 years ago. In or around 2006, Respondent decided he wanted to start an air conditioning contracting business in Miami-Dade County, and he went to the downtown Miami location of the Miami- Dade County Code Compliance Office (Compliance Office) to inquire about the licensing requirements with which he would have to comply to legally operate such a business in the county. The Compliance Office is responsible for licensing construction contractors (in various trades) operating in Miami- Dade County. The contractors whom the Compliance Office licenses include mechanical contractors doing air conditioning work. Individuals who desire to go into the air conditioning contracting business in Miami-Dade County must complete and submit to the Compliance Office an eight-page "initial application," accompanied by "letters of experience" and a $315.00 application fee. The application is reviewed by the Miami-Dade County Construction Trades Qualifying Board (CTQB). If the CTQB determines that the applicant is qualified to take the licensure examination, the applicant is allowed to sit for the examination. Passing the examination is a prerequisite to licensure. If a passing score is attained, the applicant is notified by the Compliance Office and given the opportunity to submit a "business application" and supporting material (including proof of liability insurance and workers' compensation coverage), accompanied by another $315.00 application fee. If the CTQB approves the "business application," the "applicant is issued a contractor's license number" and given a "competency card" (reflecting such licensure) by the Compliance Office. The applicant then must register with the Department before being able to engage in any contracting work in the county. When Respondent went to the Compliance Office's location in downtown Miami, he was approached by a man carrying a clipboard who spoke Spanish. Respondent was led to believe by the man that he worked for the county (although the man did not present any identification verifying his employment status). The man offered to help Respondent apply for a license, an offer Respondent accepted. After obtaining information from Respondent, the man filled out an application form (which was in English) for Respondent and "kept" the completed form. He then collected from Respondent $350.00. The man told Respondent that Respondent would be receiving his license "by mail." Respondent did nothing further (including taking the licensure examination) to obtain a Compliance Office-issued license for his air conditioning contracting business. Given what he was told by the man (whom he trusted) at the Compliance Office's downtown Miami location, Respondent did not think anything else was required of him, and he acted accordingly. Approximately a month after his visit to the Compliance Office, Respondent received what, on its face, appeared to be a Compliance Office-issued "competency card" indicating that his business, G & G Air Conditioning, Inc., had been issued an "A/C UNLTD" license, License No. 05M000987, with an expiration date of September 30, 2007, and that he was the "qualifying agent" for the business. Although Respondent did not realize it at the time, the "competency card" was a "fraudulent document." The Compliance Office had never in fact issued any license to Respondent or his air conditioning contracting business. Indeed, the Compliance Office had not even received a licensure application, or, for that matter, anything else, from Respondent (including the $350.00 he had paid for what he thought was an application fee). Reasonably, but erroneously, believing that the "competency card" was authentic, Respondent, with the assistance of a friend able to read and write English, completed and submitted the paperwork necessary to register with the Department so that he would be able to engage in the business of air conditioning contracting in Miami-Dade County. Respondent had picked up the application packet (the contents of which were in English) when he had visited the Compliance Office's downtown Miami location. Respondent's friend translated the contents of the application materials for Respondent. For each item requiring a response, Respondent told his friend what entry to make. The final page of the application materials contained the following "Attest Statement," which Respondent signed (after it was translated for him by his friend): I have read the questions in this application and have answered them completely and truthfully to the best of my knowledge. I have successfully completed the education, if any, required for the level of licensure, registration, or certification sought. I have the amount of experience required, if any, for the level of licensure, registration, or certification sought.[1] I pledge to comply with the applicable standards of practice upon licensure, registration, or certification. I understand the types of misconduct for which disciplinary proceedings may be initiated. Among the representations Respondent made in his completed application was that he possessed a valid "local competency card" issued by the Compliance Office. He believed, in good faith, but again, incorrectly, that the "competency card" he had received in the mail was such a card. In accordance with the instructions in the application materials, Respondent attached a copy of this card to his application. The Department received Respondent's completed application for registration on April 20, 2006. On May 23, 2006, the Department issued the registration for which Respondent had applied. Had the Department known that the "competency card" Respondent had attached to his application and had falsely, but not fraudulently, claimed to be valid was in fact a counterfeit that did not accurately represent the local licensure status of Respondent and his business, the Department would have denied Respondent's application for registration. Following a police investigation, two Compliance Office employees, along with a former Compliance Office employee, were arrested for selling "fraudulent licenses." The police alerted the Compliance Office of the results of its investigation in or around July 2006 (after the Department had already granted Respondent's application for registration). The Compliance Office thereupon conducted an audit, which revealed that Respondent was among those who had received a "fraudulent competency card" from the arrestees. Respondent was so notified by letter (sent by the Compliance Office). Prior to his receipt of the letter, Respondent had no idea that the "competency card" he had received in the mail was not what it purported to be. Had he known it was a "fraudulent document" he would have never applied for registration with the Department. The total investigative and prosecutorial costs incurred by the Department in connection with the instant case (excluding costs associated with any attorney's time) was $32.66.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board issue a Final Order revoking Respondent's registration and requiring him to pay the Department $32.66 (representing the Department's investigative and prosecutorial costs, excluding costs associated with attorney time) for the violation of Section 489.129(1)(a), Florida Statutes, Section 455.227(1)(h), Florida Statutes, and Section 489.129(1)(m), Florida Statutes, described above that the Department alleged in its Administrative Complaint and subsequently proved by clear and convincing evidence at the final hearing. DONE AND ENTERED this 22nd day of October, 2007, in Tallahassee, Leon County, Florida. S 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 2007.
