The Issue The issue presented is whether Respondent is guilty of the allegations in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact Respondent is a registered mechanical contractor, having been issued license number RM 14016953 by the Florida Construction Industry Licensing Board. He is licensed to do business as PRT Cool Service, Inc., license number QB 45554. The Miami-Dade County Building Code Compliance Office (hereinafter "Compliance Office") is responsible for licensing construction contractors who work within Miami-Dade County, Florida. To engage in a particular type of construction trade within Miami-Dade County, an individual is required to apply for and be issued a competency card from the Compliance Office. That Office has employees who can assist applicants with questions concerning the application and application process, including persons who speak Spanish. The Compliance Office licenses approximately 40 to 50 types of construction trades. These trades fall into two categories: "tested" or "non-tested." For trades within the tested category, an applicant must take and pass a written examination in order to be licensed. The refrigeration and air conditioning mechanical contractor trade falls within the tested category, and an applicant for licensure in that trade in Miami-Dade County must take an examination as part of the application process. The Code of Miami-Dade County does not permit substituting experience for that examination. To obtain a competency card in the refrigeration and air conditioning trade in Miami-Dade County, an applicant must first submit a completed application, a $315 application fee, personal identification, letters of experience, and a W-2 form to the Compliance Office. Upon receipt of those documents, the Compliance Office creates a physical file for the applicant, and the application is reviewed for deficiencies. If none are found, the applicant will be approved to take the examination. The Compliance Office then places the applicant's name on a roster as being exam-eligible, which roster is then sent to a private exam school to administer the examination. The Compliance Office also sends the applicant a letter advising that the applicant can take the exam and providing the applicant with contact information for the private school. The applicant is required to contact the private exam school to schedule and then sit for the exam. If the applicant passes the exam, the private exam school notifies both the applicant and the Compliance Office by letter. Upon being notified that an applicant has passed the exam, the Compliance Office then contacts the applicant to determine if the applicant chooses to work in an individual capacity or as a business. If as a business, the applicant is required to fill out a business application, provide the necessary forms to identify the business, and pay a $250 fee. The Compliance Office then reviews the business application and supporting documents and obtains a credit report directly from a reporting company. If the business application is approved, the Compliance Office notifies the applicant by letter and instructs the applicant to provide proof of liability insurance and worker's compensation coverage. Upon receipt of that proof, the Compliance Office issues to the applicant a competency card. In approximately August 2004, Respondent contacted the Compliance Office by telephone and requested an application for a refrigeration and air conditioning competency card and a State of Florida application for a registered mechanical contractor license. In that conversation he made specific inquiry regarding the examination he knew he was required to take to obtain the competency card. Respondent made no further contact with the Compliance Office concerning the application or the application process for the refrigeration and air conditioning competency card. Rather, Respondent went to a private business which advertised in Spanish that it could obtain licenses and insurance and gave an individual named Daniel the application forms he received from the Compliance Office for both the County's competency card and the State's registration thereafter. Daniel requested Respondent to bring him various financial documents and asked Respondent about his work experience. He did not translate the questions on the application forms for Respondent or go over the information in those forms. Daniel completed the applications. He did not go through the questions and answers with Respondent, but simply gave Respondent the documents to sign. Respondent did not inquire as to the contents of the applications or the information provided. He merely signed the applications and gave Daniel $2,000 in cash, the form of payment required by Daniel. When Daniel informed Respondent his competency card was ready, Respondent picked it up from Daniel. Respondent never submitted his application for the refrigeration and air conditioning competency card to the Compliance Office. Respondent never took the required examination for the refrigeration and air conditioning competency card. The Compliance Office has no record of Respondent applying for a competency card. The competency card Respondent received from Daniel was not issued by the Compliance Office. Respondent's refrigeration and air conditioning competency card is fraudulent. Following receipt of the competency card from Daniel, Respondent never contacted the Compliance Office to verify that he had satisfied all the requirements for the issuance of the card or that the card was valid. Rather, he submitted to Petitioner Department of Business and Professional Regulation his application for registration of that competency card in December 2005. A registration issued by the Department to an individual formally registers the competency card issued to that individual by a local government licensing board. An individual must be issued a registration by the Department before engaging in contracting services in the jurisdiction where that individual received a competency card. A registration will not be issued by the Department without a valid competency card from a local government licensing board. The competency card informs the Department that the individual has demonstrated the appropriate competence to engage in a particular construction trade as deemed by the local government licensing board through examination, experience, or a combination of those two requirements. A copy of an individual's competency card from a local government licensing board must be included with an application for registration. The Department has personnel who can assist applicants with questions concerning the application and registration process, including personnel who can assist persons who speak Spanish. Along with his application for registration, Respondent submitted a copy of his fraudulent refrigeration and air conditioning competency card. Included within the application for registration is a statement by the applicant attesting that the applicant has successfully completed the requisite education and experience. Because of the number of local government licensing boards in Florida and the varying requirements each imposes on the issuance of a competency card, the applicant has the burden of verifying his or her successful completion of all the requirements for the particular construction trade with the particular local government licensing board. The attest statement must be acknowledged, read, signed, and notarized. Respondent signed the attest statement, and his signature was notarized. At the time the Department received and processed Respondent's application, the Department had no knowledge that Respondent's refrigeration and air conditioning competency card was fraudulent and not issued by the Compliance Office. The Department, therefore, approved Respondent's application, and Respondent was issued a registration. Had the Department known Respondent's competency card was fraudulent, the Department would not have approved his registration. The total investigative costs, excluding costs associated with any attorney's time, incurred by the Department in this case are $32.66.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered revoking Respondent's registration, imposing an administrative fine of $5,000, and requiring Respondent to pay the Department's costs in the amount of $32.66 by a date certain. DONE AND ENTERED this 6th day of September, 2007, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 6th day of September, 2007. COPIES FURNISHED: P. Brian Coats, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2022 Yehuda D. Bruck, Esquire Law Offices of Schwartz & Associates 200 Southeast 1st Street Miami, Florida 33131 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
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.
Recommendation Based on the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the license of Frederick B. Mee d/b/a B & M Air Conditioning and Refrigeration Service, Inc., be suspended until satisfactory proof of his personal finances is received by the Florida Construction Industry Licensing Board. DONE and ORDERED this 5th day of July, 1977, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: David Linn, Esquire Post Office Box 1386 Tallahassee, Florida 32302 Mr. Frederick B. Mee 1123 El Dorado Parkway Cape Coral, Florida 33904 Mr. J. K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211
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.
Findings Of Fact The following findings of fact are based upon the evidence presented, Respondent's admissions and matters deemed admitted due to Respondent's failure to timely respond to Petitioner's Second Request for Admissions: At all times material hereto, Respondent was licensed by the Construction Industry Licensing Board as a registered air conditioning contractor with license number RA-0035721. He was the qualifying agent for Wallace's Air Conditioning and Heating. Respondent's address of record is 4710 Cypress Ridge Place, Tampa, Florida 33624, and it was to this address that notice of the hearing was sent. At no time prior to the hearing did Respondent contact counsel for Petitioner or the undersigned regarding any problem he had with the date scheduled for this hearing. Respondent did not appear, and was not represented at the hearing which commenced at 9:00 a.m. on May 11, 1988. However, at 1:56 p.m. on the day of hearing, a letter from Respondent addressed to Petitioner's counsel was filed at the Division of Administrative Hearings in Tallahassee, Florida. This letter was postmarked on May 9, 1988 and requests rescheduling of the hearing due to his being out of town on "urgent business." By Order entered on May 13, 1988, Respondent's untimely and insufficient motion for continuance was denied for failure to comply with Rule 22I-6.017, Florida Administrative Code, and this case has proceeded to the issuance of this Recommended Order in accordance with the procedures established at hearing. On or about March 18, 1986, Respondent, as qualifying agent for Wallace's Air Conditioning and Heating, entered into a contract with General Engineering and Machine Company for the installation of heating, ventilation and cooling services (HVAC) at the Sebring Square Plaza shopping mall in Sebring, Florida. The work to be performed included the installation of heating, ventilation, air conditioning and temperature control systems for stores in the mall, which included Zayre's Department Store and thirty "strip stores." The contract price for this work was $275,460. Respondent thereafter began work on the mall under this contract. However, he has never held any certificate of competency, occupational license, or registration in the City of Sebring, as required by local ordinance sections 5-18 and 5-19. On or about May, 1986 Respondent entered into a subcontract agreement with Long's Air Conditioning and Heating for sheetmetal duct work, venting of exhaust fans and installation of flex duct and grilles at the Sebring Square Plaza. The original amount of Respondent's contract with Long's Air Conditioning was $69,200, but this was increased by agreement to $72,200. On or about June 19, 1986, work on the thirty "strip stores" was deleted from this subcontract agreement, and the contract price was then reduced by $3,760, making a final contract price of $68,440. Respondent received draw requests totaling $68,440 from Long's Air Conditioning for work performed under this subcontract. Although all contracted work was performed by Long's Air Conditioning, Respondent has only made payments totaling $66,500, leaving an unpaid amount of $1,940. In connection with his work on the Sebring Square Plaza, Respondent purchased equipment and supplies from Florida Air Conditioners, Inc., in the total amount of $122,019.80, but made no payments on this account. On October 6, 1986, Respondent's account with Florida Air Conditioners was paid in full by Highway 27 Associates, the owners of the Sebring Square Plaza, who in turn charged this amount to the general contractor, General Engineering and Machine Company, by reducing the amount they paid to said general contractor on the Sebring Square Plaza. Charles R. Baldwin was the general administrator on this shopping mall job for the general contractor, General Engineering and Machine Company. In accordance with his subcontract agreement with Respondent, if Respondent did not pay his materialmen, the general contractor was responsible, and, in fact, in this case the general contractor was charged for payments made by the mall owner on Respondent's account at Florida Air Conditioners. Respondent failed to regularly attend weekly job site status meetings with Baldwin. When schedules were established, Respondent voiced no objection, but he then frequently failed to complete work in accordance with those schedules. Respondent made little effort to complete his work on time, or to make up for delays. He failed to supervise the work he was performing at the Sebring Square Plaza. On or about June 24, 1986 Respondent walked off the job without completing the work which he had contracted to perform, and this caused further delay in the mall's completion since Baldwin had to find another contractor to complete Respondent's job. Baldwin paid Respondent $174,467.70 on June 18, 1986 in connection with this job after Respondent signed an affidavit certifying that he had paid all his materialmen and subcontractors. The record establishes that said affidavit was false. With the amount Baldwin was charged for Respondent's unpaid account with Florida Air Conditioners, and the amount paid on June 18, 1986, General Engineering and Machine Company paid or was charged approximately $296,000 for work performed by Respondent, although their contract with Respondent was only $275,460. According to Bernard Verse, who was accepted as an expert in commercial construction, Respondent's failure to pay for supplies and equipment, and his failure to complete his contract with General Engineering and Machine Company constitute misconduct in contracting. In addition, Respondent failed to properly supervise the work he was performing, and for which he contracted, on this job.
Recommendation Based upon the foregoing, it is recommended that the Construction Industry Licensing Board enter a Final Order suspending Respondent's license number RA- 0035721 for one (1) year and imposing an administrative fine of $5,000; provided that after the expiration of thirty (30) days from the issuance of the Final Order if Respondent pays said administrative fine in full, his license shall be immediately reinstated. DONE AND ENTERED this 23rd day of May, 1988, in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5050 Rulings on Petitioner's Proposed Findings of Fact: 1 Adopted in Finding of Fact 1. 2-3 Adopted in Finding of Fact 3. 4 Adopted in Finding of Fact 4. 5 Adopted in Finding of Fact 9 6 Adopted in Finding of Fact 5. 7 Adopted in Finding of Fact 7. 8 Adopted in Findings of Fact 7, 8. 9-10 Adopted in Finding of Fact 6. Adopted in Finding of Fact 10. Adopted in Finding of Fact 6. Rejected as irrelevant and not based on competent substantial evidence. Adopted in Finding of Fact 7. Rejected as irrelevant. COPIES FURNISHED: David L. Swanson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Frank W. Wallace 4710 Cypress Ridge Place Tampa, Florida 33624 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
