The Issue The issue for consideration in this case is whether Respondent's license as a real estate salesperson in Florida should be disciplined because of the matters set forth in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, Petitioner, Division of Real Estate, was the agency in Florida responsible for the regulation of the real estate profession and the licensing of real estate professionals within this state. Respondent was licensed as a real estate sales person and employed as such in association with Today Real Estate, Inc., a real estate corporation trading as Re/Max Today, located at 2451-1 McMullen Booth Road in Clearwater, Florida. On July 16, 1997, James E. Brown and his wife submitted an offer to purchase a house located at 9813 Palmer Drive in New Port Richey. The offer was submitted by the Browns through their real estate agent, Nancy Riley, to the sellers who were represented by Respondent. As a part of the sales package, a home inspection report was completed on July 21, 1997, which indicated that the "air conditioning does not appear to be cooling enough." Thereafter, Respondent contacted Alvarez/Taylor, a plumbing and air conditioning company, to examine the unit and a representative of that company, William Taylor, went to the property on July 25, 1997, to inspect the unit. When he arrived, he found no one there and the house locked. He contacted his dispatcher who advised him to wait, and within a few minutes, Ms. Riley showed up. She let him in the house to do the inspection. The unit was low on freon, but the big problem with the unit that Taylor found was that it was old -- about 13 years old -- and at that age, he contends, units usually lose freon. He made an oral report to Ms. Riley who authorized him in writing to do whatever work was necessary on the unit to get it working properly. He installed the freon but that did not completely correct the problem. He advised Ms. Riley that he felt the unit should be replaced because of its age. She did not seem concerned about it, but she did not authorize the repairman to replace it. When he had done what he could do, short of replacing the unit, she again signed the work order, indicating the work had been done, and he gave her the pink copy of the form. This form showed his recommendation that the unit be replaced. According to Respondent, Ms. Riley called her after the air conditioner repairman had been at the house. She said the unit was working but was an older unit and somewhere down the line would have to be replaced. Respondent also claims that Ms. Riley told her she, Ms. Riley, had called Mrs. Brown and read her the report, and the Browns "were OK with it." Respondent did not see the repairman's report until July 28, 1997. At that time, she verified the repair charge of $140.00, and when she saw the recommendation for replacement on the form, she was upset by it. Respondent claims she had not been told by Ms. Riley that there was a recommendation for replacement, and she wanted to investigate the matter. She called Ms. Riley and left a message that she wanted to talk about it, and, on the recommendation of her own air conditioning repair firm, also called Alvarez/Taylor to ask for details on the recommendation for replacement. The repairman was not available, and she was unable to speak with anyone who was aware of the problem. All she was told was that the unit was old, would need constant repair, and should be replaced. When she asked to speak with the owner, he refused to speak with her. After several unsuccessful attempts to get information from Alvarez/Taylor, still on July 28, 1997, Respondent called Ms. Riley again and was told, she claims, that the situation was not so bad and the replacement recommendation was not immediate; that the Browns knew of the situation and were OK with it; and that the Browns hoped to get another year use out of the existing unit. Respondent claims she told Ms. Riley at that time she intended to remove the recommendation for replacement from the inspection report if she didn't hear back from Alvarez/Taylor, and that Ms. Riley agreed. Ms. Riley disputes this. Thereafter, she removed the recommendation for replacement from the inspection report, and on July 30, 1997, at the closing, Respondent gave the buyers an altered copy of the report of the air conditioning repairman. On this copy, the notation in the place reserved for recommendations that the unit was 13 years old and should be replaced was not present. The closing went forward and was consummated, and the Browns were given a copy of the altered inspection report. Almost a month later, on August 26, 1997, after the closing, Alvarez/Taylor furnished the Browns with a copy of the inspection report dated July 25, 1997 which reflected, in the space reserved for recommendations, that the unit should be replaced. The unit failed, and on September 3, 1997, Alvarez/Taylor replaced the unit due to its age and condition. The replacement cost the Browns $2,315.00. When the Browns started to look into the matter, and enlisted the aid of their agent, Ms. Riley, they also contacted Respondent who told them that she had altered the inspection report because she believed she had the authority to do that as a realtor. Respondent claims she was not trying to hide anything by altering the inspection report, nor was she trying to limit the Browns "or their representatives" access to the unit. She further contends she did not intend for anyone to reply on the altered inspection report. She says she believed everyone who needed to know, Ms. Riley and the Browns, were aware of the actual recommendation for replacement, and she was merely trying to correct the situation since she could not get what she considered to be appropriate information from Alvarez/Taylor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Real Estate Commission enter a final order finding Respondent, Margaret L. Page, guilty of concealment and breach of trust, imposing a suspension of her license as a real estate salesperson for six months under such terms and conditions as the Commission deems appropriate, and imposing an administrative fine of $500.00. DONE AND ENTERED this 29th day of September, 1999, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 1999. COPIES FURNISHED: Ghunise Coaxum, Esquire Division of Real Estate Department of Business and Professional Development 400 West Robinson Street Suite N-308 Orlando, Florida 32801 David C. Levenreich, Esquire 406 South Prospect Avenue Clearwater, Florida 33756 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Herbert S. Fecker, Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
Findings Of Fact In February, 1990, Respondent Paul Muniz (Muniz), was a duly appointed member of the City of Cape Coral Contractors' Regulatory Board (Board). He was appointed to the Board in 1986. As a member of the Board, Muniz was subject to the provisions of Chapter 112, Part III, Florida Statutes. A scheduled meeting of the Board took place on February 28, 1990, at which time two cases were heard concerning allegedly inappropriate actions by general contractor David Tracey doing business as Tracey Construction, Inc. (Tracey Construction). On February 28, 1990, the Board had authority to hold hearings on alleged violations of the City of Cape Coral's (City) Building Codes, authority to suspend, deny or revoke a contractor's license to operate within the City for violations of the City's Building Codes, and authority to impose fines up to $2,500.00, to issue reprimands, and to order restitution for violations of the City's Building Codes. On February 28, 1990, Muniz and his wife were the sole stockholders, officers, and directors of Delta T Air Conditioning Inc. (Delta T). Muniz owned 75 percent of Delta T's stock. Delta T does heating, ventilating, and heating construction work and services and some refrigeration work. Muniz oversees the work of Delta T, does the estimating and acts as general manager of the company. Muniz usually knows where Delta T's job sites are and who the general contractor is on each job. Tracey Construction is a residential construction company owned by David G. Tracey. Delta T has subcontracted with Tracey Construction to do air conditioning work on a number of occasions prior to February 28, 1990. Delta T had routinely subcontracted with Tracey Construction for several years before February, 1990. Over a number of years prior to February 28, 1990, Delta T had subcontracted with Tracey Construction on more than 200 jobs. Delta T was a subcontractor for Tracey Construction on about 50 jobs from 1989 through 1990. Tracey Construction paid Delta T more than $50,000 for air conditioning subcontractor work in 1989. In 1990, Tracey Construction paid Delta T at least $30,295.60 for air conditioning work. In the course of dealings between Delta T and Tracey Construction, Muniz depended on David Tracey to notify him of potential jobs and invite his company to bid on that job. Delta T competes with other air condition companies for Tracey Construction's business. At the February 28, 1990 Board meeting, two cases came before the Board concerning David Tracey and Tracey Construction: Contractor Board Case Nos. 90-01 and 90-02. Muniz recommended to the Board that they table Case No. 90-01. In Case No. 90-02, Muniz seconded a motion to find David Tracey and Tracey Construction not guilty of the alleged violation of the building code. Muniz voted in both cases to acquit Mr. David Tracey and Tracey Construction of all charges. At the time of the February 28, 1990, Board meeting, Delta T had contracts with Tracey Construction for at least seven jobs. On each of these jobs, either the air conditioning work had been begun but not yet completed, or the work had been completed and final payment had not yet been made by Tracey Construction. Muniz was aware that his company had active contracts with Tracey Construction. Muniz did not file a written conflict of interest form until 28 days after the February 28, 1990 Board meeting. Muniz did not disclose his company's business relationship with Tracey Construction prior to participating in the discussion of and voting on Case Nos. 90-01 and 90-02. Muniz is the same Paul Muniz as is mentioned in Commission on Ethics Opinion No. 91-3.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order and Public Report be entered finding that Paul Muniz violated Sections 112.3143(2)(b), and (3), Florida Statutes; imposing a civil penalty of $750 for each violation (a total of $1500); and issuing a public censure and reprimand. DONE AND ENTERED this 31st day of October, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 31st day of October, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5806EC To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Advocate's Proposed Findings of Fact. Paragraphs 1-19: Accepted. Paragraphs 20-23: Accepted in substance. Paragraph 24: Rejected as unnecessary detail. Paragraph 25: Rejected as irrelevant since the facts established that Muniz did not file a conflict of interest form within the time frames established in Sections 112.3143(2)(b) and (3). Paragraph 26: Rejected as unnecessary. Paragraph 27: The first sentence is rejected as constituting argument. The remainder is rejected as subordinate to the facts actually found. Paragraph 28: Rejected as constituting argument. Paragraph 29: Rejected as subordinate to the facts actually found. Paragraphs 30: The first sentence is accepted in substance. The second sentence is rejected as constituting argument. Paragraph 31: Accepted. Paragraph 32: The last sentence is rejected as subordinate to the facts found. The remainder is accepted in substance. Paragraph 33: Rejected as subordinate to the facts found. Respondent's Proposed Findings of Fact. Paragraphs 1a-1q: Accepted. Paragraphs 2a-2f: Rejected as recitation of testimony. Paragraph 3a: Accepted in substance. Paragraph 3b: Accepted in substance to the extent that there was no evidence presented which established that Delta T and Tracey Construction had entered into a formal continuing contract; however the evidence did establish that Delta T and Tracey Construction had routinely done business together prior to February 28, 1990. Paragraph 3c: Accepted in substance to the extent that there was no evidence presented that Paul Muniz had a contract with Tracey Construction; however the evidence did establish that the company, of which Paul Muniz owned 75 percent, did have a contractual relationship with Tracey Construction. Paragraph 3d: Rejected as immaterial. Paragraph 3e: Rejected to the extent that there would have been no affect on Delta T's business and rejected that there would have been little impact on Delta T's business as immaterial. Paragraphs 3f-3g: Rejected as immaterial since the Board did have the authority to do so. Paragraph 3h: Rejected as immaterial because the Board had the authority to suspend or revoke the license. Paragraph 3i: Rejected as immaterial because the Board had the authority to do so. Paragraph 3j: Rejected as not supported by the greater weight of the evidence. See 3i above. Paragraph 3k: Rejected as constituting argument. Paragraph 3l: Rejected as constituting a conclusion of law. Paragraph 3m-3q: Rejected as not supported by the greater weight of the evidence. COPIES FURNISHED: Stuart F. Wilson-Patton Assistant Attorney General Advocate for the Florida Commission on Ethics Office of the Attorney General The Capitol, PL-01 Tallahassee, Florida 32399-1050 John Charles Coleman, Esquire 2300 McGregor Boulevard Post Office Box 2089 Fort Myers, Florida 33902-2089 Bonnie Williams Executive Director Florida Commission On Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, Esquire General Counsel Ethics Commission 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
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.
Findings Of Fact Upon consideration of the evidence presented, including the demeanor and credibility of the witnesses, the following facts are determined: [NATURE OF OCEANSPRAY'S CITRUS PROCESSING PLANT OPERATIONS] OCEANSPRAY owns and operates a citrus concentrate processing plant in Vero Beach, Florida. The plant processes grapefruit received from local growers into grapefruit concentrate which is stored and later transported elsewhere for further processing, distribution, and sale to the public. During 1978, the plant also produced livestock feed as a by-product of the citrus concentrate process. (Testimony of Childs, Henly.) The business operates on a seasonal basis. Ordinarily, the plant begins processing operations in October or November, when the first grapefruit begin to arrive. As the grapefruit season progresses and fruit becomes more plentiful, additional shifts are added and more employees hired. Finally, as the growing season ends and grapefruit becomes less available, the cycle reverses itself: the number of shifts are reduced, and employees are laid off. The fruit processing season normally ends in June or July. Since fruit processing machinery will not be operated again until the next October or November, machine operators are ordinarily laid-off. The only employees that ordinarily remain employed, on a year-round basis, are mechanics, security guards, janitors, And certain key personnel of the company. (Testimony of Childs, Henly, Calfee.) I. [UNEQUAL PAY AND RECLASSIFICATION OF FEMALES AS GENERAL PAINTERS] Instead of laying-off all machine operators at the close of the fruit processing season in July, 1978, OCEANSPRAY retained several seasonal employees during the summer off-season. These employees, with their seasonal and summer job classifications, and salaries are indicated below: E Males: Job Classification Hourly Salary Job Classification Hourly Salary Willie Billie Alford Production Leadman Norsworthy Assistant 4.35 3.85 Extractor Operator Assistant 4.35 3.05 Extractor Operator Extractor Operator Floyd Brennan Ramp Driver Johnny Norsworthy Extractor 4.45 4.10 Ramp Driver Extractor 4.45 4.10 Operator Don Thompson Limer 3.65 Operator Limer 3.65 Richard Oliver Dryer Operator 4.10 Dryer Operator 4.10 Ann Pyle Taste Evapo- 4.10 rotor Operator General Painter 3.65 2/ Jennie Gilyard Waste Heat 4.10 General Painter 3.65 2/ EMPLOYEE SEASONAL SUMMER Women: Evaporator Operator 4.10 General Painter 3.65 2/ 4.10 General Painter 3.65 2/ 3.25 General Painter 3.65 2/ 4.10 General Pointer 3.65 2/ Elaine Rinker Waste Heat Evaporator Operator Katherine Hughes Waste Heat Evaporator Operator Veronica McCarty Outside Grader Ruby Simpson Waste Heat Evaporator Operator (Testimony of Childs, Hill; P.E. 2, 5, 6, 9.) At OCEANSPRAY, hourly employees are paid salaries in accordance with job classifications established by the company. During the summer of 1978, the six (6) seasonal male employees retained their seasonal job classifications and salaries; the females did not. The six (6) females were placed in a new classification established by the company--General Painter--and paid a salary of $3.65 an hour. 2 For five (5) of the six (6) females, this represented a cut in pay from their seasonal salaries. (Testimony of Childs, Hill; P.E. 2, 5, 6, 9.) Although the six (6) male employees retained their seasonal job classifications and salaries, their work duties during the summer of 1978 did not conform to their job classification. Alford, classified as Production Leadman, worked as a painter; B. Norsworthy, classified as Assistant Extractor Operator, worked as a painter; Brennan, classified as Ramp Driver, worked as a mechanic; J. Norsworthy, classified as an Extractor Operator, worked as a painter; Thompson, classified as a Limer, worked as a Spray Field Attendant; Oliver, classified as Dryer Operator, worked as a mechanic. In contrast, the six (6) female employees were reclassified as General Painters, and painted walls, buildings, and plant equipment. (Testimony of Childs, Hill; P.E. 2, 5, 6, 9.) The three (3) male employees who worked primarily as painters during the summer--Alford, D. Norsworthy, and J. Norsworthy (for only part of the summer) --painted loading bins and elevators outside the buildings using a scaffold 25-30 feet high. The scaffold, consisting of one-inch pipe, required assembly, had no hand-rails, and was not very steady. The six (6) females painted bins, machinery, and walls inside the plant and at ground level. Vern Dost, the Cold Room Operator, frequently performed similar inside painting after completing his primary work as Cold Room Operator. When he performed such painting, he was paid his regular Cold Room Operator salary-- $4.00 an hour. Alford and the Norsworthys also performed inside painting, similar to that performed by the females, when rain interfered with their outside scaffold painting. (Testimony of Childs, Hill, Gilyard, Pyle.) When several female painters, including Ms. Gilyard, complained that their salaries were less than those paid the male painters, the plant manager told them that if they wanted to paint on the scaffold, they would get the same rate as the men, i.e. their seasonal salaries. This offer was refused by Ms. Gilyard; it was not extended to Ms. Pyle. The only difference between the painting performed by the females, and the scaffold painters was the increased danger associated with painting at 25- 30 foot elevations. However, no separate job classification was established for scaffold painting. (Testimony of Childs, Hill, Gilyard, Pyle.) Alford and 13. Norsworthy, the primary scaffold painters, were initially retained for summer employment "to do whatever . . . we (management) wanted them to do" (Tr. 150) The job that was later assigned them, and which ultimately took most of their time, was the painting of the bin posts. (Testimony of Childs.) When Ms. Gilyard and Ms. Pyle initially sought summer employment, OCEANSPRAY did not inform them that they could retain their seasonal salaries if they were willing to paint from scaffolds. (Testimony of Pyle, Gilyard.) OCEANSPRAY's actions in cutting the salaries of five (5) of six (6) female summer workers, and continuing the male employees at their seasonal salaries prompted the company's accountant/bookkeeper to send to the plant manager a memorandum containing the following excerpt: [it] doesn't seem fair that women went to painter and Billy Norsworthy, Richard Oliver and Don Thompson stayed at their season rate. What do they get ad- justed to?" (Tr. 425.) (Testimony of Calfee.) Between July 30, 1978, and September 3, 1978, Ms. Gilyard worked 247 hours for OCEANSPRAY as a General Painter at $3.65 an hour. After receiving a rate adjustment on September 10, 1978, she was paid $3.85 an hour from September 4, 1978, for 287.5 hours, extending through October 21, 1978. If her seasonal salary of $4.10 had been paid during this period, she would have received an additional $183.03. In like fashion, Ms. Pyle worked 135.5 hours at $3.65 an hour as a General Painter at OCEANSPRAY from July 30, 1978, through September 3, 1978. From September 4 through October 21, 1978, she was paid $3.85 an hour for 335.5 hours. If she had been paid during this time at her seasonal salary of $4.10 an hour, she would have received an additional $144.86. (P.E. 4.) II. [UNEQUAL LAYOFF POLICY AND HOURS] From May through July, 1978, as grapefruit became less available, OCEANSPRAY reduced its-three fruit processing shifts to one, and laid off certain seasonal employees. On some days, no fruit would arrive, and fruit processing employees would perform other work, such as maintenance and cleanup. On other days, grapefruit concentrate would be reprocessed for subsequent shipment. Such reprocessing consisted of dumping juice from barrels, then blending and rebarreling it. A forklift is used to pick up the barrels and place them on rollers, where they are conveyed into a tilt mechanism. The barrels are then strapped or chained and, by hydraulic mechanism, are tilted and dumped. One person would normally operate the forklift, while others would perform the other related tasks. This reprocessing of grapefruit concentrate is of medium physical difficulty, and not beyond the physical capabilities of female employees. (Testimony of Childs, Gilyard.) During this three-month slump period, George Dest, the plant manager, decided which employees would be laid off and which would remain. His selections were ordinarily based on seniority. However, he departed from this policy by retaining "key people" to work during reprocessing days. "Key people" were those employees holding two principle jobs in fruit processing-- evaporator operators, extractor operators, lab technicians, and dryer operators for the feedmill. Such "key people" were retained on full employment during fruit reprocessing days. Although Ms. Pyle and Ms. Gilyard were Evaporator Operators and considered "key people", they were not retained for employment on reprocessing days. OCEANSPRAY asserts that the reason for their exclusion is that neither was qualified to operate a forklift. It is true that no female employees during this period of 1978 were qualified to operate a forklift. (Testimony of Childs, Gilyard, Pyle, Hill, Rinker, Hughes, Williams.) Ms. Pyle and Ms. Gilyard were not called in for reprocessing work because of OCEANSPRAY's plant manager's decision to "keep the guys because . . . they would be dumping barrels." (Tr. 137.) While the manager did not mention Ms. Pyle and Ms. Gilyard by name, he told his subordinate: "Let the girls be off and bring guys in." (Tr. 138.)(Testimony of Childs.) 14.. OCEANSPRAY's weekly pay records for the weeks of April 9 through July 16, 1978, indicate that the average weekly number of hours worked by male employees consistently exceeded the average weekly hours worked by females. (Testimony of Calfee; P.E. 5, 12.) Ms. WILLIAMS admits that she was selected not to work on certain days during the shipping period based on her seniority. (Testimony of Williams.] After July 1, 1978, due to their exclusion from fruit reprocessing Ms. Pyle and Ms. Gilyard worked less weekly hours than the average number worked by male employees. If they had worked hours equivalent to the average number worked by male employees, Ms. Pyle would have received an additional $27.68, and Ms. Gilyard, an additional $22.55. (Testimony of Calfee; P.E. 4.) III. [UNEQUAL WAGES] During 1978, out of a workforce of 150 employees (100 males, 50 females), OCEANSPRAY paid three male employees at a rate in excess of the rate corresponding with their official job classifications: Employee Official Job Classification Rate for Job Classification Pay Rate Received Floyd Brennan Ramp Driver $3.75 $4.45 Bill Ware lead Mechanic 4.85 5.40 Willie Alford Extractor Operator 4.10 4.30 No female employees at OCEANSPRAY were paid, in like fashion, amounts in excess of the rates warranted by their job classifications. (Testimony of Calfee, Hill; P.E. 2, 3, 4.) However, in two of the three cases listed above, the employees received pay which was justified by new or additional assigned duties. Brennan discharged the duties of a Fruit Leadman, in addition to those of a Ramp Driver. Indeed, "Rec. leadman" is noted on Brennan's payroll record. In the case of Alford, he was promoted to Production Leadman in June of 1978. His new and different responsibilities were assumed due to the vacancy in the Production department caused by the promotion of Hill to Production Supervisor. (Testimony of Hill; P.E. 2, 4, 9.) In the remaining case, Ware was promoted to Lead Mechanic in July of 1978--with a job classification pay rate of $4.85 an hour. However, he was paid the proposed higher future rate for that classification--$5.40 two months before its effective date. This admitted overpayment was caused by OCEANSPRAY's inadvertent error. (Testimony of Hill.) Numerically equivalent treatment of OCEANSPRAY's male and female employees--with a work force of two males to one female--would allow two males and one female to receive pay in excess of their official job classifications. In this case, OCEANSPRAY's slight disparity in treatment of males and females is not statistically significant and is insufficient to establish a prima facie claim of discrimination, or disparate treatment. Numerically equivalent treatment, for all practical purposes, would be achieved if only one additional female, or one less male employee, had received pay in excess of their official job classifications; such equivalency would preclude a bona fide disparate treatment claim. (Testimony of Hill, Calfee.) IV. [AS TO MOTION FOR CLASS CERTIFICATION] No evidence was presented which establishes that OCEANSPRAY's alleged unlawful employment practices continued beyond the summer of 1978. The Human Rights Act does not apply to employment practices which occurred prior to its effective date-- July 1, 1978. Thus, the time period within which the membership of potential classes must vest is limited. There are two potential classes of female employees which are indicated by the evidence: (1) seasonal female employees who were classified as General Painters for the summer of 1978, and whose pay was reduced, accordingly; (2) "key" seasonal female employees who were laid-off and not employed for fruit Concentrate reprocessing work during July, 1978. The Potential membership of these two classes is not so numerous that joinder of all members would have been impractical. (Testimony of Childs; P.E. 11, I.E. 1, 2, 3.)
Conclusions Respondent is guilty of violating Section 23.167, Florida Statutes (1979), by engaging in discriminatory employment practices (1) and (2) above; and not guilty of (3) Affirmative relief, in the nature of compensatory damages, should be granted Petitioners. Background On August 3, September 25, and October 10, 1978, Petitioners Jennie Cilyard ("Ms. CILYARD") , Anne Pyle ("Ms. Pyle") and Diane Williams ("NS. WILLIAMS"), respectively, filed separate complaints with Intervenor, Norman A. Jackson, Executive Director, Florida Commission on Human Relations " COMMISSION") These complaints accused Respondent Oceanspray Cranberries, Inc., ("OCEANSPRAY") of engaging in several unlawful employment practices which discriminated against them on the basis of sex. In September, 1979, after investigation, the COMMISSION found "reasonable cause" to believe that the complained of unlawful employment practices had occurred. After the parties conciliation efforts were unsuccessful, the COMMISSION issued its Notice of Failure of Conciliation in November, 1979. In December, 1979, the three female Petitioners filed separate petitions for relief with the COMMISSION, alleging sexual discrimination b OCEANSPRAY and relying upon the COMMISSION' s "reasonable cause" determination. These three petitions were consolidated for hearing, and the COMMISSION's motion to intervene as a party was granted. Two weeks before final hearing, Petitioners filed a notion to certify this cause as a class action, consisting of all past, present, and future female employees of OCEANSPRAY. Ruling was reserved pending final hearing, and the parties were required to limit evidence relating to the class action allegations to those matters encompassed by COMMISSION Rule 9D-9. 08(6)(a) through (d), Florida Administrative Code. At final hearing, Petitioners testified in their own behalf, and called Lealan Herbert Childs, farmer OCEANSPRAY plant superintendent, and Marcy Calfee, COMMISSION investigator, as their witnesses. They also offered Petitioners' Exhibits 1/ 1 through 13, each of which was received into evidence. The COMMISSION offered Intervenor's Exhibits 1/ 1 through 3, each of which was also received into evidence. At the conclusion of the Petitioners' case-in-chief, OCEANSPRAY moved to dismiss that part of the petitions incorporating charges contained in paragraphs D, E, and G of the COMMISSION's reasonable cause" determination, on the ground that no evidence had been offered to support such charges. The motion was granted, as to paragraphs D and E, and denied as to paragraph G. Respondent OCEANSPRAY called as its witnesses George Russell Hill, OCEANSPRAY production superintendent, Elaine Rinker, former OCEANSPRAY scale and evaporator operator, and Katherine L. Hughes, OCEANSPRAY evaporator operator. At their request, the parties were granted forty-five (45) days from filing of the transcript to submit past-hearing proposed findings of fact and conclusions of law. Petitioners and Respondent timely filed their post-hearing filings on August 18, 1980. The parties agreed that the time period for submittal of the Recommended Order would commence at that time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations find that OCEANSPRAY engaged in unlawful employment practices and grant Petitioners affirmative relief, as described above. DONE AND ORDERED this 7th day of October, 1980, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
Findings Of Fact Americana Healthcare Center is a licensed nursing facility and subject to inspection, licensure and discipline by the Department of Health and Rehabilitative Services. On March 18-21, 1986, the Department of Health and Rehabilitative Services staff conducted a routine re-licensure examination. This examination report reflects several Class III deficiencies and one deficiency deemed by the inspectors to be a Class II deficiency. A Class II deficiency is one which has "a direct or immediate relationship to the health, safety, or security of nursing home residents." See HRS Exhibit 6. The Class III deficiencies were subsequently remedied and are not at issue in this case. The inspection revealed that hot water temperatures in the patients bath rooms exceeded 115, the maximum temperature permitted by rule. See HRS Exhibit 2. These temperatures were measured as follows: ROOM March 18-21, 1986 TEMPERATURE East Shower Room 138 West Shower Room 135 Room 163 135 Room 166 138 Room 167 138 Room 170 135 Room 180 125 Room 148 124 Room 145 132 Room 135 134 AVERAGE 133 This was deemed a Class II deficiency and the Respondent was advised to correct the problem immediately. The staff was aware of the problem and had been directed by management to use exceptional care in bathing patients and attending patients when around hot water. Respondent had been in the process of fixing the mechanical problem since April 1985. Testimony of Hoffhaus and Respondent Exhibit 4. In May 1985 the Respondent received a proposal to install a mixing valve to correct the problem. The Respondent purchased the valve and paid for its installation. The invoice for the installation and purchase of the valve reflects that the work was performed between May 19, 1985 and May 21, 1985. See Respondent Exhibit 4. The installation of the new mixing valve did not correct the problem because the water temperature would rise overnight to exceed the permitted maximum temperature. The Respondent continued to have the plumbers work to correct the problem. On March 19, 1986, the system was reconstructed at a cost of $1,989.75 which resulted in a significant reduction in water temperature. See Respondent Exhibit 4 and testimony of Hoffhaus. On May 29, 1986 the Petitioner's employees conducted a re-inspection, and recorded the following water temperatures in patient bathing facilities at Respondent's facility (See testimony of John Cannizaro): 110 122 114 122 122 114 114 110 114 110 114 113 114 112.7 Average Temperature Although the average temperature for all of the rooms was within the limits set by the rule, 105-115F, the maximum temperature discovered was 122 degrees which was found in three rooms. On the basis of these findings, the inspectors made a recommendation to take administrative action; however, at the time of hearing no such action had been initiated. After the inspection in May, the Respondent continued its efforts to correct the problem. After continued unsuccessful efforts to correct the problem, a plumber employed by the Respondent determined that the hot water supply of several of the three patient's bathrooms was connected with 122F water to the kitchen hot water supply. This corrected the problem. During the existence of this problem, none of the patients or staff suffered any injury as a result of the existing problem with hot water. Water temperature exceeding 115 degrees Fahrenheit has the potential to harm patients. The degree of potential harm is directly proportional to the excessive temperature and time of exposure. Close observation and care exercised by staff can alleviate or negate the danger even when water accessible to patients exceeds maximum temperature. The Petitioner published a Guidelines for Exceeding Minimum Standards which was distributed to Respondent at a seminar sponsored by Petitioner and which states as follows: if the available evidence indicates that the act or condition was an isolated incident, the deficiency should be considered as a Class III (deficiency), unless there is concrete evidence that the act or condition did result in some harm to a patient. In situations involving Class II fire safety code violations which cannot be corrected within the required time limits, special instructions and actions by staff members are recognized by the Petitioner as reducing the hazard to a lower level of risk.
Recommendation Based upon the foregoing findings of fact, it is recommended that no administrative action be taken against the Respondent and that the records of the Petitioner reflect that the condition relating to the water temperature was a Class III deficiency. DONE and ORDERED this 15th day of January 1987, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 1987. COPIES FURNISHED: Frederick Simpson, Esquire District IV Legal Counsel Department of Health and Rehabilitative Services 5920 Arlington Expressway Jacksonville, Florida 32231 John Lee and Mary E. Hoffhaus, Administrators Americana Healthcare Center 3648 University Boulevard Jacksonville, Florida 32216 William Page, Jr., Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399 Steven W. Huss, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399
Findings Of Fact Respondent is licensed to practice medicine and surgery in Florida under license number 27358. Between February 4 and August 24, 1981, Respondent treated Mr. Joseph Fleuristal for minor back and neck injuries received in an automobile accident. Initially,, Fleuristal had x-rays taken by a radiologist who diagnosed only spina bifida occulta, a condition unrelated to the accident. Respondent's treatment plan for Fleuristal involved a muscle relaxant (Robaxin), pain medicine (Tylenol III), and heat applications. After approximately one month, Respondent discharged Fleuristal from treatment. Fleuristal continued to visit Respondent's office complaining of pain and requesting further heat treatments. Respondent resumed the heat treatments even though he had concluded they were not necessary and had advised Fleuristal of this determination. Ultimately, Respondent administered 100 such treatments before again discharging Fleuristal in August, 1981. Respondent's charges for treating Fleuristal amounted to $3,835. He sent bills to Fleuristal's attorney who submitted them to the company which insured two of the parties to the automobile accident. This company believed the claim represented excessive treatment and filed a complaint with Petitioner. The testimony of Petitioner's expert witness established that heat treatments, after the first month, constituted gross over-utilization of physiotherapy in the treatment of a minor injury. Although there was disagreement as to the wisdom of the initial treatment plan, it was not shown to have been improper. Petitioner's evidence established that Respondent should have referred the patient to an orthopedic specialist when his initial treatment was not successful. Respondent concedes he administered excessive heat treatments but saw no harm in continuing the treatments since they seemed to give Fleuristal some relief. He did not refer Fleuristal to an orthopedic specialist because, in his view, the patient could not afford the cost.
Recommendation In consideration of the foregoing, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Subsection 458.331(1)(t), F.S. It is further RECOMMENDED that Petitioner impose an administrative fine of $1,500 and issue a reprimand, as authorized by Subsection 458.331(2), F.S. DONE and ENTERED this 30th day of June, 1983, in Tallahassee, Florida. R. T. CARPENTER, 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 30th day of June, 1983. COPIES FURNISHED: Charlie L. Adams, Esquire Mr. Fred Roche Department of Professional Secretary Regulation Department of Professional 130 North Monroe Street Regulation Tallahassee, Florida 32301 130 North Monroe Street Tallahassee, Florida 32301 Frances Barrera, Esquire 1501 Northwest 14th Street Ms. Dorothy Faircloth Miami, Florida 33125 Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue presented herein is whether or not Respondent violated the Construction Industry Licensing Law as alleged in the Administrative Complaint filed herein on June 27, 1987, to wit: proceeding to work without obtaining a timely permit, violating local law either deliberately or through improper supervision, gross negligence and/or incompetence in connection with said job or through his failure to supervise, inspect, improper electrical wiring, poor duct design, damage to a customer's ceiling, failure to supply warranty papers and inadequate cooling.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings: Respondent, Frank W. Hudgens, at all times relevant hereto was licensed as a certified air conditioning contractor having been issued license number CA C032442. During times material, Respondent was the sole qualifier for Tampa Bay Cooling, Inc. On June 15, 1987, Respondent, through Tampa Bay Cooling, entered into a contract with Mr. and Mrs. Jack Davis to install a two and one-half ton York heat pump with a horizontal air handler and five kilowatt auxiliary heat strip with the required thermostatic controls and fiberglass and flex ducts, including registers, grills, refrigerant lines and PVC drain lines to the Davis residence for the sum of $3,214.00. (Petitioner's Exhibit 2.). Respondent installed the equipment as contracted. Respondent subcontracted with a licensed electrician for the installation of the required electrical work on the project. Respondent commenced performance of the installation prior to the time that he obtained a permit as required by local ordinance. However, Respondent applied for a permit at about the same time that the work started, in St. Petersburg, Florida, whereas the Davis' reside in the City of Pinellas Park, and it was therefore necessary for him to obtain a permit from Pinellas Park. Respondent in fact obtained a permit from the City of Pinellas Park later in the day that he commenced work at the Davis residence. When the Davis' contracted with Respondent for the installation of the central air conditioning system in their home, a major concern was that they be able to keep their "computer room" sufficiently cooled to avoid damage to the computers. Following the installation of the system by Respondent, Mrs. Davis complained to Respondent on several occasions concerning the fact that the "computer room" was not sufficiently cool. During Respondent's installation of the system at the Davis', a stop- work order was placed on the job based on Respondent's failure to have the required electrical permit and an employee was observed unwinding electrical wire that would be used to make the electrical connections for the system. Respondent was paid $1,607.00 by the Davis' on June 15, 1987, at the commencement of the installation of the system with the balance due upon completion. The Davis' had refused to pay Respondent the remaining balance for the system. Based on the Davis' refusal to tender Respondent the remaining one half, i.e., $1,607.00 for payment of the system, Respondent has refused to provide them the extended warranty papers for the system. Following Respondent's completion of the installation of the system, the Davis' contacted Donald W. Branch, a factory trained technician employed by Gorman Air Conditioning, the supplier of the system at the Davis' residence and complained about the fact that the system was not keeping the computer room as cool as the Davis' desired. Branch, who was tendered and received as an expert in air conditioning, made a survey of the Davis residence and issued a field report regarding the system. Branch found the system installed by Respondent to be producing within the factory specifications and found that the system was operating satisfactorily and in conformance with factory specifications. Branch found that there was a need for a return air grill to be added to the "computer room" area, such that, when the door was closed in that area, there would still be correct air flow. For appearance sake, Branch determined that the outdoor unit needed leveling and that the drainline from the indoor unit to the outdoors needed to be insulated, possibly, if attic temperatures are too extreme which would prevent condensate from the drainline from dripping and wetting the ceiling. While Branch questioned the appearance of Respondent's insulation of the system, he found it to be operating efficiently and in conformance to specifications. Respondent dispatched a plasterer to the Davis' residence to repair a damaged ceiling inadvertently caused by one of its employees. York Air Conditioning, the supplier of the system, replaced the compressor in the heat pump with a new one in an attempt to appease Mrs. Davis, although this was not done based on any finding by either Branch or Respondent that the compressor which was not the original compressor, was not performing according to factory specifications. Respondent, based upon the suggestion of Don Branch, installed an additional return in the computer room in an attempt to alleviate Mrs. Davis' discomfort in the computer room and was sufficient to satisfactorily cool the computer room. A two and one-half ton air conditioning unit is sufficient to cool a home the size of the Davis residence, which is approximately 1,100 square feet in size, provided the system was correctly designed. Respondent, with the exception of having to reroute a return line from one of the other rooms, properly designed the system in the Davis residence, and additional tonnage was not required to adequately cool their home.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a final order imposing an administrative fine against Respondent in the amount of five hundred ($500) payable to Petitioner within thirty (30) days of the entry of its final order. Petitioner enter a final order issuing a written reprimand to Respondent based on his failure to timely obtain a permit prior to commencement of a work project where a permit is required. DONE and ENTERED this 31st day of March, 1989, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 3rd day of April, 1989. COPIES FURNISHED: David Bryant, Esquire 1107 E. Jackson Suite 104 Tampa, Florida 33602 Larry L. Dillahunty, Esquire 780-94th Avenue North Suite 108 St. Petersburg, Florida 33702 Fred Seely, Executive Director Construction Industry Licensing Board 111 East Coastline Drive Jacksonville, Florida 32202 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issues in this case are whether Respondent violated Sections 455.228, 489.127(1)(a) and (f), 489.129(1), (h), (m) and , and 489.531(1)(a), Florida Statutes (1995), 1/ and, if so, what, if any, penalty should be imposed in accordance with Florida Administrative Rule 61G4-17.001. 2/
Findings Of Fact Petitioner is the state agency responsible for regulating contractors in the state. Respondent is not licensed as a general contractor and is not the qualifying agent for Freeman Associates ("Freeman"). In April 1995, Respondent entered into a contract with Charles and Lenore Brunty to renovate the Brunty residence located at 1301 Kanab Avenue North West, Palm Bay, Florida. The contract price for the renovation was $48,494.86. Respondent provided the Bruntys with a written estimate of cost. The written estimate bears the headings, "Freeman Associates," "General Contracting," and "Property Improvements." It describes the type of work to be performed and separate costs for "Roofing," "Exterior Paint," "Exterior Windows/Screens," "Interior Woodwork," "Interior Cabinets," "Plumbing," "Electrical," "Air Conditioning/Hearing," "Interior Paint," "Flooring," and "Addition-Kitchen, Breakfast, Bath." Respondent represented to the Bruntys that he would oversee or supervise all of the renovations to their residence and would provide all permits. The contract states: Any and all work requiring permits shall be obtained by me and/or subcontractors prior to starting of any work on this project. Petitioner's Exhibit 2. Respondent obtained bids from subcontractors, oversaw their work, and charged the Bruntys for the work performed by the subcontractors. Respondent agreed to begin work on June 12, 1995. However, he performed no work before July 21, 1995. The work performed by Respondent did not comply with industry standards. Respondent removed the roof without providing adequate protection for the interior of the home. The weather damaged the ceilings and the Mexican tile. The ceilings had to be replaced by the Bruntys. The Mexican tile has not been replaced because of cost. On September 9, 1995, the Bruntys cancelled the contract. On September 19, 1995, Respondent presented a bill to the Bruntys for $16,826.38. The Bruntys telephoned the suppliers and discovered that Respondent had not paid the suppliers. The tile supplier's invoice was altered. The price had been exaggerated by $2,120, or more than 100 percent. The Bruntys refused to release any funds to Respondent until Respondent provided a full accounting. On October 6, 1995, Respondent filed a mechanic's lien against the Brunty property for $16,826.38. Thereafter, Respondent filed a second lien for $34,835.33. Respondent certified in the liens that he had paid for materials and performed all work. However, the two liens overstate the work performed and the cost of materials. Respondent in fact failed to pay all liens. The combined total of the two liens exceeds the contract price by $3,166.85. Respondent did not complete the renovations to the Brunty property and is not entitled to full payment of the contract price. The liens caused the lender to withhold construction funds for the renovations until the matter was resolved in civil court. In the interim, the Bruntys paid materials, subcontractors, and legal fees out of their own funds. In May 1995, Respondent acted as a general contractor in a second transaction. Respondent contracted with Mr. Curt Iffinger, a licensed air conditioning contractor, to install an air conditioning system at the home of Mr. Albert Bresch located at 4149 Sherwood Boulevard, Melbourne, Florida. Respondent represented to Mr. Iffinger that Respondent was a general contractor. Mr. Bresch paid Respondent for the installation. Mr. Iffinger performed the required installation. Respondent refused to pay Mr. Iffinger. Mr. Iffinger filed a mechanic's lien against the Bresch property. Respondent failed to cause the lien to be removed within 75 days and executed an affidavit stating that all liens were paid in full.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Sections 455.228, 489.127(1)(a) and (f), 489.129(1), (h), (m) and (o), and 489.531(1)(a) and imposing an administrative fine of $8,500. DONE AND ENTERED this 18th day of November, 1997, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1997.
