Findings Of Fact W. C. Montgomery, trading as Montgomery's, Respondent, holds restaurant license control No. 20-00228B (Exhibit 4) On Friday, 25 July 1900, while Montgomery was attending a Gideon convention in Detroit, Michigan, the restaurant was inspected and numerous discrepancies found (Exhibit 1) . Mrs. Montgomery was present at the time and advised the inspector that her husband was out of town and would return the following Tuesday. A follow-up inspection was conducted on Monday morning 28 July by the same inspector from the Clay County Health Department. This inspection report (Exhibit 2) formed the basis for the Notice to Show Cause date 31 July 1980 issued by the Director, Division of Hotels and Restaurants in Tallahassee. Respondent was earlier issued a Notice to Show Cause regarding similar deficiencies in this restaurant. In December 1979 Montgomery entered into a contract to sell this business to another. Following the January 1980 inspection or the February 11, 1980 inspection (Exhibit 7) , charges similar to the present charges were preferred against Montgomery's. On the Call Back/Re- inspection Report dated 2/26/80 (Exhibit 7) a notation appears: "Discontinue proceedings of Notice to Show Cause. Change of ownership." Thereafter, the contract to sell was not consummated because the purchaser couldn't get financing. On March 7, 1980 the restaurant was again inspected and, to his apparent surprise, the inspector found Montgomery still the owner. A long list of discrepancies appeared on the inspection report (Exhibit 7) and the Health Department closed down the restaurant. Following a Call Back/Re-inspection Report (Exhibit 7) dated 3/14/80 a notation appears on the report: "Reinstate license this date." On Inspection Reports dated 3/31/80, 4/25/80 and 6/20/80 (Exhibit 7) only minor deficiencies were noted. During this period the automatic dishwasher was inoperable and had net been replaced and Respondent had only a three compartment sink in which to wash dishes. No separate sink in which to wash pots and pans was provided. The final Inspection Report admitted into evidence is dated 8/12/80 (Exhibit 3) . On this Inspection Report the dishwashing discrepancy again appears, as does the greasy hood ventilation filters. Also included is a requirement to provide rounded corners at baseboards in walk-in Freezer to facilitate cleaning, all of which appeared on the January 25 and 28 inspections which furnish the grounds upon which disciplinary action is here proposed. One of the discrepancies noted is failure of the commercial refrigerator to have a drain hole through the bottom shelf through which condensation can drain. Respondent's evidence was that this commercial refrigerator was not designed with such a drain hole, gratings were installed on this bottom shelf and no food container ever sat in water although water did sometimes settle on the bottom of this refrigerator. With respect to the deficiency involving vermin, Respondent's evidence that he has engaged the services of a pest control company on a continuing contract basis since opening was not disputed. Respondent has now installed a two-compartment sink in addition to the three-compartment silk and has ordered a dishwasher. Once this dishwasher (or the two-compartment sink) is installed, this longtime discrepancy will be corrected. Respondent owns and operates two other restaurants near Jacksonville which apparently are satisfactory from a sanitation standpoint. Accordingly, it clearly appears that Respondent is cognizant of various various requirements and that failure to comply with these rules can result in disciplinary action against the restaurant's license. Restaurants in Clay County, or at least those coming under the jurisdiction of the inspector here involved, are inspected monthly rather than quarterly as required by statute. Respondent's witness testified that the hood ventilation filters were washed in warm, soapy water twice weekly, yet on most of the inspection reports these filters were reported to be full of grease. Respondent's witness also testified that all defects noted had now been corrected, including the rounded corners in the walk-in freezer floors.
Findings Of Fact Stephen G. Blume, the Respondent, is a state certified Class A contractor under Chapter 489, Florida Statutes. He holds license number CA C009753, and he is the qualifying agent for BCH Mechanical, Inc. (BCH), a Florida corporation, in which Blume is the principle stockholder. BCH is a mechanical contractor and concentrates its efforts in commercial construction work, particularly in shopping center construction. BCH subcontracts from owners or general contractors for the installation of heating, ventilating, and air conditioning for individual establishments within shopping malls. Prior to February 18, 1983, the Respondent contracted with a general contractor for the Respondent to provide heating, ventilation, and air conditioning equipment to approximately 15 stores in the Aventura Mall in Dade County, Florida. The work was of a nature for which the Respondent and BCH were qualified to perform under Chapter 489, Florida Statutes. On February 18, 1983, the Respondent and his company contracted with Richard E. Hahn, doing business as Temp-Rite Air Conditioning and Refrigeration, Inc., to install air conditioning systems in spaces 128, 163, 645, and 677 at the Aventura Mall. See attachment to Respondent's Exhibit 1, and paragraph 3 of the administrative complaint. On February 23, 1983, the Respondent obtained building and mechanical permits to perform heating, ventilation, and air conditioning work on spaces 163, 645, 677, and 128 at the Aventura Mall. See Petitioner's Exhibit 1. The Respondent did not attempt to list the permits in the name of Hahn at the time of application or subsequently. Richard Hahn did not have a certificate of competency to do air conditioning construction work, and was not qualified in Dade County to obtain a permit to do that work himself. He also was not licensed by the Construction Industry Licensing Board to perform this work. The Respondent selected Hahn by the following process. When he got to the mall, he contacted Robert Shaw Controls, the company that was doing work on the concourse air conditioning systems at the mall. Employees of Robert Shaw told the Respondent of three pipe fitting companies that were then doing work at the mall. All three gave the Respondent bids, and Respondent selected Hahn's company as low bidder. There is no evidence that Blume was a friend of Hahn prior to this contract. Respondent's company specializes in installation of air conditioning systems in shops in commercial malls. Respondent's company employs 30 to 40 people. Most of this is handled by his own employees, without subcontracts. Thus, for most of his work, there is no need for a licensed subcontractor. At the Aventura Mall project, the Respondent determined that he needed to hire a subcontractor affiliated with the pipefitters union for the work on first floor shops. The Respondent did not have a bargaining agreement with the pipefitters union, and thus could not call the Dade County pipefitters' hiring hall to hire a pipefitter as a temporary employee. Instead, Respondent had to subcontract the work to a pipe fitter union member. Respondent determined that he needed pipefitter union affiliation because that union was quite strong in Dade County, and use of nonunion members might have caused labor unrest at the mall work site. It was not to the economic advantage of the Respondent to subcontract the work to Hahn. It would have been more profitable to the Respondent to have followed his usual business practice of doing the air conditioning pipe fitting work using his own nonunion pipefitter employees. The Respondent asked Hahn if he was a licensed contractor for his work, whether he was a union pipe fitter, and whether he carried worker's compensation coverage. The Respondent was told by Hahn that he had a license, that he was a journeyman union pipe fitter, and that he did carry worker's compensation coverage. Following his past practice, the Respondent asked Hahn only for proof of his worker's compensation coverage. The Respondent did nothing to attempt to verify the truth of Hahn's assertion that he was a licensed contractor. The Respondent could have verified the existence of Hahn's license by either asking Hahn to show him his license card or by telephoning the license record officer in Dade County and asking that agency to verify Hahn's license. The Respondent did not do either of these things both of which were relatively easy to do. The Respondent had memorized his own contract license number. William Lessaris was employed by the Respondent and BCH Mechanical, Inc., to provide daily supervision of the project. Lessaris was at the job site daily. Other BCH employees were also on the job site. John D. Arition is Mechanical and Building Inspector and Plans Processor for far the Building and Zoning Department of Dade County, Florida. Arition was called by Lessaris to come to the job site to perform the air conditioning inspection. Arition did not tell BCH Mechanical, Inc., when he would arrive. When Arition arrived on the job site, Hahn was there. Arition asked Hahn for his license to do the work. Hahn told Arition that he did not have a license. Arition ordered Hahn to cease work. Hanh picked up his tools and left the job site. Arition then talked with Lessaris and told him about the problem with Hahn. The work was completed satisfactorily, without defects. Subsequently, Hahn was administratively charged with violating various provisions of Dade County construction law, was found to have committed six violations, was fined a total of $2,700 and had his personal certificate of competency suspended for one year. Blume was asked to appear at the hearing, but could not due to prior scheduled work. There is no evidence that Blume was given adequate notice of the date of the hearing, and it appears that he was given only short notice of the precise date. Blume was not subpoened to appear, and was not at fault in failing to appear. Blume voluntarily supplied Dade County with all documentary evidence requested.
Recommendation In consideration of the foregoing, it is recommended that the Petitioner enter a final order finding no violations as alleged, and dismissing the administrative complaint. DONE and ORDERED this 29th day of March, 1985, in Tallahassee, Florida. WILLIAM C. SHERRILL, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 1985. COPIES FURNISHED: Mr. Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 H. Reynolds Sampson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 William Sizemore, Esquire Suite 838, Plaza On The Mall 201 East Kennedy Boulevard Tampa, Florida 33602 Salvatore Carprino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue This matter concerns the issue of whether the Respondent's license as a heating and air conditioning contractor should be suspended, revoked or other disciplinary action taken as a result of allegedly contracting outside the scope of his license, willfully or deliberately violating a local building code by failing to pull a permit, and failing to affix his license number to a contract and making an untrue representation in the practice of contracting. Counsel for both Petitioner and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that such findings of fact are not adopted in this Recommend Order, they have been rejected as being irrelevant to the issue in this cause, or as not having been supported by the evidence.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of violating Rule 7C-1.04 as set forth in the Notice to Show Cause and that a $200 fine be imposed. DONE and ENTERED this 11th day of March, 1983, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 11th day of March, 1983. COPIES FURNISHED: James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Billy M. Arzie Arzie Apartments 710 North 2nd Avenue Jacksonville Beach, Florida 32250 Sherman S. Winn, Director Division of Hotels and Restaurants 725 South Bronough Street Tallahassee, Florida 32301 Gary Rutledge, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact Based on the evidence received at the final hearing, the following findings of fact are made. At all times material to this case, the Respondent, Steven Ary, was a licensed air conditioning contractor in the State of Florida, holding license number CA CO36888. On October 20, 1987, a company named Jenni Temp Refrigeration Company, Inc., entered into a contract with Lauderhill Mall, Lauderhill, Florida, to install three 3 1/2 ton air conditioning units for the sum of $7,875. Jenni Temp was to provide the three separate permits required by the City of Lauderhill, Florida, for the installation. Joseph Roturra, the owner of Jenni Temp Refrigeration Company, Inc., and Respondent had, prior to October 20, 1987, entered into negotiations whereby Respondent would become employed by Jenni Temp as its qualifying agent so that Jenni Temp could engage in air conditioning contracting. Those negotiations ended before any formal efforts were made to have Jenni Temp licensed with Respondent as the qualifying agent. In late 1987, before his negotiations with Jenni Temp broke down, Respondent signed three blank application forms for electrical and air conditioning permits. Respondent then gave the three signed application forms to Joseph Roturra. Respondent knew that neither Joseph Roturra nor his company was licensed for air conditioning work. Joseph Roturra completed the signed blank application forms he received from Respondent and made application with the City of Lauderhill, Florida, for the three permits required for the job at Lauderhill Mall. The name of the applicant on the applications as completed by Joseph Roturra was All Star Service, Inc. Respondent served as the qualifying agent for All Star Service, Inc. The City of Lauderhill did not issue the permits for which Roturra applied using the forms signed by Respondent because permits had been previously issued to another company for the same job. Jenni Temp completed the Lauderhill Mall job without the permits required by local law and without further assistance from Respondent. Respondent did not supervise the job at Lauderhill Mall. There was no final inspection of the work as required by local law.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding Respondent guilty of having violated Sections 489.129(1)(e) and (m), Florida Statutes and which imposes an administrative fine on Respondent in the amount of $500 for the violation of Section 489.129(1)(e), Florida Statutes. It is further recommended that there not be a separate fine for the violation of Section 489.129(1) (m), Florida Statutes, because the conduct that establishes that violation is the same conduct which constitutes the violation for which the administrative fine is recommended. DONE and ENTERED this 22nd day of May, 1989, in Tallahassee, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 1989. APPENDIX The findings of fact contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, l0, 13, 14, 15, 19 and 20 of Petitioner's proposed findings of fact are adopted in substance, insofar as material. The findings of fact contained in paragraphs 11, 12, 16, 17 and 18 of Petitioner's proposed findings of fact are immaterial. COPIES FURNISHED: Kenneth E Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0729 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0729 Steven Ary 1217 N. E 4th Street Pompano Beach, Florida 33306
Findings Of Fact Respondent Charlie S. Hiers is registered as a Class B air conditioning contractor and qualifier for Hiers Air Conditioning and Refrigeration, Orlando, Florida. As of July 1, 1979, his license became delinquent. (Petitioner's Exhibit 1) In December, 1981, Myrtle D. Harris, who resided at 7505 Ranchero Street, Orlando, engaged the services of Respondent to repair the air conditioning unit at her home. He had performed satisfactory air conditioning work for her on two prior occasions in 1979 and 1980. She had originally contacted him through an ad in the telephone directory under the name "Temp Control Service." On each occasion she had given him a check payable to Temp Control Services which was later endorsed in that name by Respondent. (Testimony of Harris, Petitioner's Exhibits 2-3) Respondent advised Mrs. Harris on December 2, 1981, that the compressor of her air conditioning unit needed to be replaced with a new compressor. She thereupon gave him a check in the amount of $546.00 and he provided her with a bill marked paid in that amount. Her chock, dated December 2, 1981, was made payable to Charlie Hiers, and his bill of the same date merely had his handwritten name at the top. Mrs. Harris later added the words "Temp Control" in the payee portion of the check after it had been endorsed by Respondent and returned after payment. (Testimony of Harris, Petitioner's Exhibits 4-5) Respondent proceeded to remove the old compressor and later came by Mrs. Harris' house and told her that he had had to order a replacement part. However, he never came back to her home or performed the work for which he had been paid. Mrs. Harris attempted to reach Respondent by leaving her telephone number at his answering service but received no reply. Later, sometime in January, Respondent telephoned her and stated that he had the compressor on his truck and would install it on a specified date. However, he never fulfilled his promise. Mrs. Harris attempted to reach him on subsequent occasions by telephone, but was unable to contact him. On February 1, 1982, Mrs. Harris had her nephew write a letter to Respondent requesting that he either perform the work or return the payment of $546.00. Several months later, after not having heard from the Respondent, Mrs. Harris purchased a new air-conditioner. Respondent has taken no action to perform his agreement or to return the amount which he was paid. (Testimony of Harris)
