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.
The Issue Whether Respondent's license as a certified general contractor should be suspended or revoked or the licensee otherwise disciplined for alleged violations of Chapter 489, Florida Statutes as set out in the January 18, 1984 Administrative Complaint. Petitioner presented the oral testimony of Louis P. Gilner, Peter Max Christianson, Jr., Catherine M. Edwards, John Owen Thompson, Jack W. Rainford, and Annie Gilner and had admitted in evidence Petitioner's exhibits 1, 3, 4, 5, 6, 7, 7A, 7B, 8, 9, 10, 11, 12 and 13. Exhibit 2 is clearly hearsay and inadmissible but has be considered as a stipulation of counsel and is discussed under the Conclusions of Law as a jurisdictional argument of counsel. Neither Respondent nor Chester A. Trow, Esquire appeared for formal hearing. Petitioner filed transcript of the proceedings November 14, 1985 and proposed findings of Fact and Conclusions of Law on November 18, 1985, and waived time for entry of this recommended Order. These proposals have been considered in this recommended Order and are ruled upon in the Appendix hereto.
Findings Of Fact Respondent, Patton N. Roberts, is a certified general contractor, license number CG C015023 and qualifying agent for Roberts Construction and Development, Inc. Although Respondent failed to renew his license in June, 1985, and his license is now on inactive status, it can be renewed at any time before June 1988 by payment of late renewal fee. In June 1982, Respondent entered into a contract for $68,242.00 with Louis Gilner to construct home in Putnam County, Florida. The charges against Respondent arise out of the use of the funds associated with construction of this home pursuant to contract. On June 30, 1982, Respondent obtained Putnam County building permit #6107 for the construction. Respondent commenced construction and completed the home to the dry-in stage by approximately early August 1982. Mr. Gilner paid Respondent a $50.00 deposit and two "draw" payments of $20,472.00 each, making total payments to Respondent of $40,995.00. These "draws" against the total amount of $62,242.00 which was contracted-for were paid on July 20, 1982 and August 5, 1982, respectively. Approximately July 15, 1982, Respondent ordered trusses for the Gilner residence from Landmark Truss, Inc. The trusses were delivered on July 23, 1982. Respondent failed to pay for the trusses, although he had received the draw payment for the trusses. Landmark Trusses, Inc. filed a lien on the Gilner residence for $2,490.00. On July 9, 1982, Respondent ordered 16 loads of fill dirt for the Gilner residence from Chesser & Strickland Sand Co., Inc. The Respondent's failure to pay $950.00 for the dirt and the labor in spreading it resulted in a lien being filed against the Gilner property for that amount. Mr. Jack Rainford testified that Respondent subcontracted the heating and air conditioning work to A-1 Air and A-1 plumbing for $5,806.00 ($3,550 plumbing and $2,556 air conditioning); that Respondent paid A-1 Air and A-1 Plumbing the first draw on the plumbing in the amount of $1,128.00 on August 17, 1982; that the Gilners had, on January 3, 1983, paid A-1 Air and A-1 Plumbing $1,128.00 on the air and $1,183.34 on the plumbing, and that Respondent has failed to pay $1,183.34 on the plumbing and $1,128.00 on the air conditioning. No matter how these figures are worked, they do not fairly support Mr. Rainford's conclusion that Respondent only owes A-1 $1,183.34 plus $1,12800. It is more mathematically logical that the original total owed was $6,106.00; the Respondent paid $1,128.00 on August 17, 1982 reducing the remaining amount to $5,806.00; thereafter Mr. and Mrs. Gilner, on January 3, 1983, paid A-1 $1,128.00 for the air conditioning work and $1,183.34 for the plumbing package and that Respondent actually owes the Gilners $2,311.34 for their having to pay twice, and owes A-1 $3,464.66; which is the balance of A-1's bill after all payments the Respondent and the Gilners have been deducted. However, the undersigned will accept Mr. Rainford's unrefuted testimony that Respondent owes A-1 only $1,128.00 plus $1,183.34 for a total of only $2,311.34. On or about September 6, 1982, Gilner terminated Respondent for lack of progress toward completion. At that date of termination the Respondent and his crew had been absent from the premises for five to six weeks. At the time of the Respondent's termination, the project was, by Mr. Gilner's estimation, only 40 percent completed. Although the predicate for Mr. Gilner's knowledge in this regard is less than might normally be characterized as "expert" testimony, it is still credible and based on Mr. Gilner's testimony concerning his usual employment as an installer of traffic controls involving other construction projects, and in conjunction with the testimony of Mrs. Gilner, his estimation that the extent of the household construction total led only 40 percent is accepted for purposes of this finding of fact. At this stage, based on the draws paid. 60 percent of the construction should have been completed by Respondent. The Gilners both testified that they completed the home after Respondent's termination at a total cost of $82,000, or $14,000 over the contract price. There is no evidence to support the actual amount paid or what it was paid for, nor is there any evidence to establish what relationship there may have been between Respondent's behavior and the increased cost. Although Mrs. Gilner testified that there was some misinstallation of the trusswork and that rain had damaged the roof prior to Respondent's final termination, this information, without more, will not support the $14,000 figure. Approximately August 25, 1982, in a conversation with Catherine Edwards, an employee of Landmark Truss, Respondent had explained that the reason he had not paid the Landmark Truss bill was because he had elected to use the draws he had received from the Gilners to buy some lots upon which to build ""spec" (speculation) Respondent stated to Ms. Edwards that he originally intended to get the lots "subordinated" but due to the early death of an elderly man up north, he had had to use the (5) Gilner draws to buy his lots and was awaiting profit from the speculation homes to pay landmark Trusses bill. Because this conversation occurred after Landmark Trusses had served its Notice of Claim on Mrs. Gilner, the undersigned construes this conversation to be an admission against interest by Respondent and draws the inference there from that failure of Respondent to pay the other necessary owed costs from the draws received from the Gilners resulted from the same misapplication of draw funds as Respondent described to Ms. Edwards.
Recommendation That the Construction Industry Licensing Board enter a final order providing that Respondent's certified general contractor's license shall be suspended for a five year period with the provision that the suspension shall be lifted after one year upon the Respondent providing proof to the Construction Industry Licensing Board that he has made restitution of $2,311.34 to the Gilners, $2,490.00 to Landmark Trusses, Inc., $950.00 to Chesser & Strickland Sand Co., and $2,311.34 to A-1 Air and A-1 Plumbing. DONE and ORDERED this 20th day of December 1985 in Tallahassee Florida. ELLA JANE P. DAVIS 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 20th day of December, 1985. APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-2857 Petitioner's Proposed Findings of Fact: Accepted. Accepted Accepted. Accepted. Accepted. Accepted. Accepted Accepted. Accepted. Accepted. Accepted but expanded to conform to the evidence as a whole. Accepted but expanded to conform to the evidence as a whole. Rejected as not supported by the competent substantial evidence in the record as a whole. Accepted but rephrased to reflect the competent substantal evidence in the record as a whole. COPIES FURNISHED: Mr. James Linnan Executive Director Construction Industry Licensing Board P. O. Box 2 Jacksonville, Florida 32202 Mr. Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Salvatore A. Carpino General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Charles F. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Chester A. Trow, Esquire P. O. Box 1450 Ocala, Florida 32678 Patton N. Roberts 2442 Jackson Street Hollywood, Florida 33202
The Issue The issues are (1) whether engaging in air conditioning contracting regulated by the Florida Electrical Contractors Licensing Board pursuant to Section 489.500 et seq. Part II, Florida Statutes, constitutes exceeding the scope of one's license as an electrical contractor, (2) whether performing air conditioning contracting in the name of "Dixon's Heating and Air Conditioning" constitutes operating in a name other than the name his electrical contracting license is issued in, contrary to Subsection 489.533(1)(l), and (3) whether Respondent willfully violated the building codes by venting the heater improperly, failing to get a permit and get work inspected.
Findings Of Fact Notice of hearing was given to Respondent at Route 2, Box 595, Yulee, Florida 32097. Arnold Dixon is and has been at all times material to this case a registered electrical contractor, license number ER0004417. (Pet. Ex. 1 & 2) He has maintained his address of record as Route 2, Box 595, Yulee, Florida 32097. (T-Pg. 6) He has held such license since 1976. (Pet. Ex. 1 & 2) Arnold Dixon does not hold a license, a state registration or certification to engage in contracting as a heating or air conditioning contractor. (Pet. Ex. 4 & 6) Arnold Dixon does hold a Nassau County Occupational License as an electrical contractor and as a heating and air conditioning contractor. No check of local records was conducted to see if he had a local license as an air conditioning contractor. (T-Pg. 22) On or about June 1985, the Respondent's company, Dixon's Heating and Air Conditioning, contracted to install an air conditioning and heating unit at the home of John Williams for a contract price of $1985. (Pet. Ex. 5 and T-Pgs. 10 & 11) The work on this contract was done by David Everett, who negotiated the contract. The Respondent's company, Dixon's Heating and Air Conditioning, did not obtain a permit to perform the work at the Williams' residence. Inspections on the Williams' job were not called for by Dixon's Heating and Air Conditioning. Permits and inspections were required by the applicable building code. (T-Pgs. 25 & 26) Entering into a contract to perform air conditioning and heating work and performing such work is air conditioning contracting, which is regulated under Part I, Chapter 489, Florida Statutes. After installation by Dixon's Hearing and Air Conditioning, the Williams' heating system generated carbon monoxide when operating because there was insufficient fresh air being provided to the unit. Because the air intake was in a closet which restricted the air supply to the hot air handling system, the air handling unit sucked fumes from the exhaust side of the unit back through the unit's combustion chamber and circulated it through the house. The longer the unit ran, the more debris was trapped in the louvered door of the closet and the more combustion gases were pulled through the combustion chamber and distributed through the house by the air handling unit. (T-Pg. 34) According to the manufacturer's representative, the hot air return is required to be ducted into the unit. In this case, the return air was pulled from inside a closet which had louvered doors. No duct was used and this installation was not in accordance with the manufacturer's instructions. Although the unit as installed was unsafe and had the potential to kill, no evidence was received that failure to install the unit in accordance with the manufacturer's instructions was a violation of local building code. (T-Pgs. 34- 38) Dixon's Heating and Air Conditioning did not hold itself out to be and was not engaged in electrical contracting in fulfilling the Williams' contract. Dixon's Heating and Air Conditioning did hold itself out to be an air conditioning contractor and the work performed in fulfilling the Williams' contract was air conditioning contracting.
The Issue The issues to be resolved in this proceeding concern whether the Respondent should be subjected to disciplinary sanctions based upon alleged violations of Sections 489.127(1) and 489.531(1), Florida Statutes, by engaging in the business or capacity of a general contractor, and as an electrical or alarm system contractor, without being certified or registered.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with regulating and enforcing the statutes and rules pertaining to the licensure and practice of contracting, including construction contracting and electrical contracting. The Petitioner is also charged with regulating and enforcing statutes concerning the unauthorized practice of such contracting, including practicing without proper certification or registration. At all times material hereto the Respondent, Kevin Davidson, d/b/a Wise and Davidson Construction and Davidson Contracting and Construction (Davidson or Kevin Davidson) was not licensed, certified or registered to engage in construction contracting or any electrical or alarm system contracting in the State of Florida. On or about December 21, 2004, the Respondent, doing business as Davidson Contracting and Construction, contracted with Mr. Hanson, a witness for the Petitioner, to install and erect a 50-foot by 60-foot by 17 and one-half foot airplane hanger on a concrete foundation. He also contracted to install a 200 amp electrical panel box on Mr. Hanson's property in conjunction with construction of the building. The property was located in Morriston, Florida. The contracted price for the work described was $47,597.30. Mr. Hanson paid the Respondent the total of $20,514.30 as part of the contract price. The Respondent never finished the project, but only laid the concrete foundation. At the insistence of the Respondent, Mr. Hanson rented a backhoe which the Respondent agreed to operate in constructing a driveway. The work was never finished, and Mr. Hanson had to obtain other help in constructing the driveway. The Respondent also damaged the rented backhoe while he was operating it. These factors caused Mr. Hanson an additional economic loss of $4,830.38. On or about December 13, 2004, the Respondent, doing business as Wise and Davidson Construction, contracted with Ms. Crowell, a Petitioner witness, to install and erect a 50- foot by 60-foot by 17 and one-half foot steel building on a concrete foundation, also in Morriston, Florida. The Respondent also contracted to install a 200 amp electrical panel box in conjunction of construction of that building. The total amount of the contract price was $47,047.30. Ms. Crowell paid the Respondent at least $35,251.35 in partial payment for the contract. After laying the foundation, however, the Respondent abandoned this project as well. The Respondent's abandonment of the project cost Ms. Crowell $29,943.00 in additional economic damage in order to obtain completion of the project by another contractor. The Department incurred certain investigative costs in prosecuting these two cases. It was thus proven by the Petitioner that the Department expended $510.06 for the prosecution of DOAH Case No. 06-2308. The Petitioner also established that it spent the sum of $944.13 in costs for Case No. 06-2307. This represents total investigative costs expended by the Agency of $1,454.19, for which the Petitioner seeks recovery. The Petitioner is not contending that any attorney's fees are due.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that the Department of Business and Professional Regulation enter a final order determining that the Respondent has violated Sections 489.127(1)(f) and 489.531(1), Florida Statutes (2004), as alleged in the earlier-filed Administrative Compliant in Case No. 06-2308, and impose an administrative fine in the amount of $5,000.00 for the violation of Section 489.127(1)(f), Florida Statutes (2004), and an administrative penalty of $5,000.00 with regard to the electrical contracting violation, as provided for by Section 455.228, Florida Statutes (2004). It is further recommended that the final order determine that the Respondent is guilty of violating Sections 489.127(1)(f) and 489.531(1), Florida Statutes (2004), as alleged in the later-filed Administrative Complaint in Case No. 06-2307 and that an administrative fine in the amount of $10,000.00 for the violation of Section 489.127(1)(f), Florida Statutes (2004), and that an administrative penalty of $5,000.00 be imposed for the electrical contraction violation, as provided for by Section 455.228, Florida Statutes (2004). It is further recommended that costs be assessed against the Respondent for investigation and prosecution of both cases, not including costs associated with attorney's time and efforts, in the total amount of $1,454.19, payable to the Petitioner Agency. DONE AND ENTERED this 15th day of November, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 15th day of November, 2006. COPIES FURNISHED: Brian A. Higgins, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Kevin Davidson Post Office Box 131 LoveJoy, Georgia 30250 Nancy S. Terrel Hearing Officer Office of the General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
