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
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.
The Issue Whether Respondent, a certified air conditioning contractor, committed the offenses alleged in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact At all times material to this proceeding, Respondent has been a certified air conditioning contractor, having been issued license number 1133613 on December 27, 1985. Petitioner's licensure file reflects that Respondent's license is held as follows: "Michael J. Morrow d/b/a ATM A/C & Refrigeration, Inc." (ATM). Respondent has never applied for a certificate of authority for ATM pursuant to the provisions of Section 489.119, Florida Statutes. On December 12, 1998, Carmen Schneider contracted with Sun Coast to install an air conditioning and heating unit at her residence located in Miramar, Florida. At no time has Sun Coast been a licensed air conditioning contractor. Respondent had no agreement to do any work for Ms. Schneider, and he had no agreement to subcontract the work for Sun Coast. The City of Miramar issued permit 98121104 for the Schneider job. According to its computer records, Respondent, d/b/a ATM pulled the permit for the Schneider job. The greater weight of the credible evidence established that neither Respondent nor his corporation pulled the permit for the Schneider job1 as alleged in Count II of the Administrative Complaint. Petitioner failed to establish that Respondent enabled Sun Coast to engage in uncertified or unregistered contracting in violation of Section 489.129(1)(d), Florida Statutes, as alleged in Count III. Petitioner presented an affidavit establishing that its costs of investigation of Respondent (absent attorney time) totaled $705.03. That affidavit does not state the cost of investigation for each count. On February 2, 1998, Petitioner entered a Final Order in Case Number 98-12100 that disciplined Respondent's license because he assisted an unlicensed person or entity engage in the uncertified and unregistered practice of contracting and because he proceeded on a job without a permit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the Findings of Fact and Conclusions of Law contained in the Recommended Order. It is further recommended that for the violation found for Count I, Respondent be assessed an administrative fine in the amount of $500.00 and that his license be suspended until such times he pays the administrative fine and complies with the requirements of Section 489.119, Florida Statutes. It is further recommended that Counts II and III of the Administrative Complaint be dismissed. DONE AND ENTERED this 17th day of June, 2002, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 17th day of June, 2002.
Findings Of Fact The Respondent, Mary Anne Shiell, is a licensed real estate salesman holding license No. 0044116. The Petitioner, the Department of Professional Regulation, Board of Real Estate, is an agency of the State of Florida, having jurisdiction over licensing and the regulation of licensure status of real estate salesmen. This dispute arose out of a business transaction involving the showing by the Respondent and others of a piece of residential real property to the complaining witnesses, William G. and Geraldine Fellows (son and mother). On March 6, 1979, the Respondent, Juanda Marsh and Skip Mark were employed as real estate salesmen by Mannix, Inc. On that day Juanda Marsh, while attempting to find residential property listings, became aware of a home owned by Paul E. Phipps and his wife which was for sale. After talking to the owners of the house, Mr. and Mrs. Phipps, Ms. Marsh went back to the Mannix realty office where she spoke to the Respondent and advised the Respondent of the Phippses' home being for sale. Ms. Marsh then met the complaining witnesses, the Fellowses, and took them to meet Mr. Phipps at the home in question. This was late in the afternoon of March 6, 1979, and the electricity had been turned off in the home. Mr. Phipps was then in the process of wallpapering and painting the dwelling, which he used as rental property. After leaving the home that evening, the complainants decided to offer the Phippses $37,000 for the property. The complainants and Ms. Marsh prepared the contract, which was executed that evening by the complainants. The sellers executed the contract the following day, and the transaction was closed March 15, 1979. The complainants did not take possession of the premises until sometime in April of 1979. On March 6, 1979, when the complainants first viewed the premises, the Respondent, Marsh, Mark, as well as Phipps, the seller, were present. The complainant addressed the group of people generally, asking what kind of condition the roof was in. All concerned looked toward Mr. Phipps; he nodded his head, assenting that the roof was in good condition. There was a general agreement that the house appeared to be in good condition. Neither the Respondent nor Ms. Marsh nor Skip Mark had any additional knowledge regarding the condition of the house other than that which they saw that day in the presence of the complainants. All were seeing it for the first time. The Respondent did not give any assurance to the complainants that the roof was in good condition; she relied, as did all present, on the assurance given by Mr. Phipps at the time. Immediately prior to the drafting of the contract on that evening, the complainants were advised by the Respondent that if an "as is" clause were placed in the contract it might induce the seller to accept the lower offer which the complainants had in mind, and the complainants agreed. Accordingly, Ms. Marsh inserted in the contract the "as is" clause on the face of the contract, meaning that the purchasers, the Fellowses, would buy the property in the condition it was in at the time for the price they were offering and which, ultimately, the owner accepted. Prior to the closing of the transaction, the Fellowses called the Respondent by telephone to ascertain that all checks had been made pursuant to the Buyer Protection Plan and the Respondent advised that she thought everything was in good working condition, but she would attempt to inspect the premises to ascertain for sure if all equipment and appliances were working. The Respondent attempted to make an inspection of the premises a day or two before closing and there was no electricity or water turned on so that the various appliances could not be tested. She informed the complainants of this, but they said they could not afford to have the utilities turned on. The Respondent then called Mr. Phipps and explained the situation to him. She asked if he was in a position to tell the complainants what condition everything was in and he told her that so far as he knew the only thing in the house that might not function properly was the dishwasher. Mr. Phipps told the Respondent that the air conditioner functioned properly and indeed the vents were in the walls or ceiling and appeared to be in order. The Respondent looked in the oven door of the range in the kitchen and the oven element appeared to be in good condition, although it was impossible to test it because the utilities were not on. The Respondent removed the kitchen range elements and visually inspected them. Again, no electricity was available to test them after this fact had been disclosed to the complainants. Upon taking possession of the property in April, 1979, the complainants discovered certain defects consisting of: a leaky roof; duct work missing from the air conditioning system; the oven was inoperable; the range had several inoperative elements; the plumbing in the toilets leaked; the hot water heater was inoperable; and the disposal was not connected. Witness Ralph Porch inspected the air conditioning system and found that no duct work existed in the hall ceiling to connect the air conditioning system to the mechanical unit. He did not try to turn on the air conditioner. He did recall seeing the air supply grills and stated that the only way one could find out that there were no ducts in place was to climb up in the attic and look; that it was not a defect observable from the normal living areas of the house. The Respondent, in addition to inspecting the kitchen appliances, inspected but saw no evidence of a mineral deposit or other symptoms of leaks around the toilets. Mr. Phipps had represented that the hot water heater was not very old and so the Respondent had no reason to believe that the hot water heater was inoperable. She looked beneath the sink to examine the garbage disposal and did not notice any pipes or electrical wiring absent. The complainants maintained that the Respondent represented to them that the electricity had been turned on for one day and that all the appliances had been checked out and were in working order. The Hearing Officer finds this testimony not credible inasmuch as the Respondent testified that she had never made such a representation, but rather had visually inspected them to the best of her ability with no electricity available to actually test the functioning of the appliances, which testimony was corroborated by the testimony of Bernice Shackleford from the Orlando Utilities Commission, who established that the electricity was turned off March 5, 1979, the day before the property was first shown to the Fellowses and to the Respondent. Ms. Shackleford also testified that the utilities were inactive continuously until April 20, 1979, long after the closing and long after the alleged inspection of the appliances took place. The undersigned thus finds that the Respondent never represented to the Fellowses that the electricity had been turned on for a day, nor that she had thus tested the appliances and found them all in working order. The Respondent did not make any statement to the effect that the roof did or did not leak. A reasonable inspection of the residence would not disclose that the air conditioning vents or air supply grills were not connected by ducts to the mechanical portion of the air conditioning system. Subsequent to their taking possession of the house and initially complaining to the Respondent and Mannix, Inc., concerning the defects in the dwelling, the complainants filed a civil action regarding their complaints. The complainants sued the Phippses, who were the sellers; Juanda Marsh; Mannix, Inc.; the Respondent; and Electronic Realty Associates, Inc. Although the complainants denied settlement of the case, in their testimony in the instant proceeding, the civil litigation was in fact dismissed by their attorney (see Notice of Voluntary Dismissal; Respondent's Exhibit A). In that civil action, only Juanda Marsh and Skip Mark were alleged to have made false representations to the complainants. In summary, the Respondent was not shown to have had any knowledge regarding the condition of the premises which she failed to reveal to the complainants and sometime after the controversy arose, the Respondent offered, on behalf of Mannix, Inc., to purchase the property back from the complainants for what they had paid for it, but this offer was rejected.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of counsel, it is, therefore, RECOMMENDED that the Administrative Complaint filed herein against Mary Anne Shiell be dismissed. DONE AND ENTERED this 29th day of July, 1982, at Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 FILED with the Clerk of the Division of Administrative Hearings this 29th day of July, 1982. COPIES FURNISHED: Joseph Doherty, Esquire 3220 Chelsea Street Orlando, Florida 32803 Charles N. Prather, Esquire 17 South Lake Avenue, Suite 103 Orlando, Florida 32801 Frederick H. Wilsen, Esquire Department of Professional Regulation 400 West Robinson Street Orlando, Florida 32801 C. B. Stafford, Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
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
The Issue The issue in this proceeding is whether Respondent's motel license should be disciplined.
Findings Of Fact Respondent holds a motel license, number 2200031. The motel is located at 4140 West Highway 90, Lake City, Florida. On June 9, 2003, and on June 16, 2003, a division inspector inspected the Respondent's motel premises and specifically inspected room 207. The inspector noted five alleged deficiencies on June 9, 2003. On June 16, 2003, the inspector noted that three of the five alleged deficiencies remained uncorrected, while two of the alleged deficiencies were corrected during the June 16, 2003, re-inspection. The three uncorrected alleged deficiencies consisted of exposed insulation around the air conditioning unit in room 207, food buildup present in the microwave in room 207, and heavy lint buildup present in the lint filter of the motel's commercial clothes dryer. The two alleged deficiencies corrected during the re-inspection were the use of an electrical extension cord and an unsecured electrical outlet cover. Room number 207 was available for rent and was rented to the public by the Respondent on May 31, 2003, and again on June 19, 2003. During the interim time and at the time of these inspections, the room was not rented because it was undergoing repairs. During this time, the room was being used primarily as a handyman workroom for ongoing repairs. Part of the repairs being done to room 207 was to replace the permanent air conditioning unit in that room. Because the air conditioning unit did not work, Respondent had temporarily installed a window air conditioning unit. The window air conditioning unit did not fit the window it was in, therefore, Respondent had placed insulation around the unit. The insulation was exposed. The insulation was not a furnishing supplied with the room but was a temporary part of the building’s window/wall system intended as a prelude to replacing the air conditioning unit. Since the insulation was not a furnishing, its exposure did not violate Rule 61C-3.001(5) that addresses the cleanliness of room furnishings such as drapes. An extension cord was being used to power the window air conditioning unit in room 207. Even though Respondent unhooked the extension cord during the re-inspection, the use of the extension cord to power the air conditioning unit was a fire hazard and violates Chapter 509. Additionally, one of the electrical outlet cover plates was attached, but was loose. However, it did function as a barrier. There was no evidence regarding the space requirements for an electrical outlet or how the outlet cover impacts that space other than as a barrier. The evidence did not show that a loose outlet cover violates NFPA 70,110.32 that deals with the space requirements around electrical equipment. Finally, the microwave in room 207 had old food buildup on its walls. The microwave is a furnishing and is required to be kept clean. Such food buildup does not meet the cleanliness requirements of Rule 61C-3.001(5). Outside of room 207, the inspector personally observed the lint buildup in the dryer. Petitioner does require that the dryer’s lint trap be cleaned once a day. However, either the trap had not been cleaned or the dryer had received heavier use on the days of the inspection. The lint is a flammable material and the dryer trap must be kept free of such flammables. The accumulation of the lint was a fire hazard and is a violation of Rule 61C-1.004(7).
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That the Department enter a final order finding Respondent guilty for violating Chapter 509, Florida Statutes, and imposing an administrative fine in the amount of $1,500.00. DONE AND ENTERED this 31st day of March, 2004, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 31st day of March, 2004. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Kana Baleswaran, pro se Piney Woods Lodge 4140 West Highway 90 Lake City, Florida 32055 Geoff Luebkemann, Director Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Nancy Campiglia, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact At all times pertinent to the issues herein discussed, Respondent Wallace W. Stewart was licensed as a registered air conditioning contractor by the Florida Construction Industry Licensing Board under License No. RA 0022169. Since at least October 1979, Respondent has been qualifying agent for the contracting firm "Stewart's Solar Energy, Inc.," with the Florida Construction Industry Licensing Board. In September 1979, Fred Johnson was acting as real estate agent for his son, Don F. Johnson of Ponte Vedra, Florida, a licensed general contractor who at the time had several residences for sale in the area. During that period, Mr. Fred Johnson engaged in a discussion with the Respondent concerning the possibility of installing a solar cooling, heating and hot water system in the house that Mr. Johnson proposed to have his son, Don, build for him in St. Johns County, Florida. Pursuant to these discussions, on September 10, 1979, Respondent prepared a proposal for Mr. and Mrs. Fred Johnson for the installation of a complete cooling and heating system and solar collectors for the purpose of domestic hot water in the said residence. Before this proposal was accepted, Mr. Fred Johnson's son, Don, discussed the terms of the proposal with the Respondent. Specifically discussed was that portion of the proposal wherein Respondent proposed to include the following: Necessary piping for circulating chilled and hot water system, perimeter heat, storage tanks for hot and cold water, necessary heat exchangers, refrigeration equipment, circulating pumps, duct system, thermostats, heat exchanger (fireplace), also piping and controls for the hot water heater. Before allowing his father to sign this proposal and accept it, Don Johnson asked Respondent exactly what he proposed to provide regarding the fireplace and was told that Mr. Stewart would provide a firebox interior, which consisted of a steel box shaped like a fireplace, to protect the heat exchanger that was to go with it. At that time, Mr. Stewart took Don Johnson into his workshop and showed him an outfit which he indicated would be similar to, if not identical to, that which he intended to install in the senior Johnson's home. It was understood that Respondent would supply the firebox and heat exchanger, but the builder was to do the masonry work and the chimney. Thereafter, based upon that understanding, Don Johnson recommended to his father that he accept the proposal, which was accomplished on or about the September 10, 1979, date; and both Fred Johnson and his wife, Christine, did so, agreeing to pay, for the complete system, the sum of $5,483 in accordance with a schedule set forth in the proposal sheet. Construction was begun and progressed to the time it was appropriate to install the firebox. At that point, Respondent told Don Johnson, the builder, he was unable to provide the firebox at that time. Since the state of construction was such that a delay in providing the firebox would hold up the continuance of construction, Respondent asked Don Johnson if he, Don, could provide the standard firebox into which Respondent would put his heat exchanger and thereafter give a credit against the purchase price. In response to this suggestion, Don Johnson told Respondent the cost would be between $400 and $500, to which sum Respondent agreed. As a result, Don Johnson put in the firebox that he procured, and Respondent thereafter put in the heat exchanger unit. Construction on the house continued until such time as, in April 1980, the house was considered sufficiently complete for Mr. and Mrs. Fred Johnson to move in. In the interim, however, in order to get the duct work done for the air conditioning and heating system he installed, Respondent, who was not licensed to perform heating and air conditioning installation in St. Johns County, Florida, arranged with Mr. Everett Masters, owner of Masters Heating and Air Service of St. Augustine, Florida, to do the duct work for the Johnson home. A building mechanical permit is not required to do duct work, and Mr. Masters did the duct work without a permit, even though he was not satisfied that the installation called for in the drawings was sufficient to accomplish the purpose of heating and cooling for a house that size. According to Mr. Masters, he did the work according to the specifications given to him, but protested to a representative of Mr. Stewart, Respondent, that the ducts were too small. In response, he was told to put the ducts in as called for in the specifications, which he did, but was never paid for the work he provided. St. Johns County Ordinance No. 76-20, an ordinance regulating contractors and the business of contracting within that county, at Section 4 thereof requires that air conditioning contractors be certified in order to conduct that business within the county. The contract involved here for the construction of Mr. Johnson's house would have required the contractor, Respondent, to have a local license to complete the air conditioning work. Respondent does not have a license in St. Johns County and never has had one. As a matter of fact, before the work was done, Mr. Don Germain, an assistant building official for St. Johns County, told Respondent in 4Z. Germain's office that he, Respondent, would need a county license at the time Respondent had come to the office prior to installing the air conditioning unit in the Johnson house. At this point, Mr. Germain discussed the project, including the rough drawing Respondent had with him, and advised Respondent at that time what permits and what licensing provisions must be fulfilled. At that time, solar heating and hot water systems did not require the license. However, the other work called for in this contract, such as the installation of the air conditioning system, would require a type of license which Respondent did not have. Germain and the Respondent had an extensive discussion on this. As it appeared to Mr. Germain, Respondent could not seem to understand why a license would be needed. A mechanical permit was issued on April 23, 1950, to Masters Heating and Air for a part of the system. A part did not include the entire installation permit. This permit applied for by Mr. Masters was acquired at the request of Don Johnson, the contractor, who pleaded with him to do so because, according to Mr. Johnson, the only way he could get final approval of the construction in order to get the elec- tricity turned on in the house was if this permit was applied for and issued. The permit in question was issued for something other than the duct work accomplished by Mr. Masters. Mr. Masters did not install the air conditioning equipment, only the ducting. The permit, if legitimate, would allow final approval of the installation of the entire air conditioning system. The information contained on the permit was provided to Mr. Masters by Respondent. According to Mr. Germain, Respondent never did get final approval of the building inspector on the total installation. The equipment was not initially accepted by the building department, since it was not a unitary unit-- in which all segments are designed to work together as a unit. However, even though the unit was rejected by the building authorities, they let the work continue based on a letter from the engineer who approved the purchase of the system, which indicated the engineer would be responsible for the working of the unit. In addition, the building officials allowed the work on Mr. Johnson's home to continue even after the discussions regarding the lack of a proper licensee because Respondent assured Mr. Germain of the building office that Mr. Masters, who was in fact a registered and licensed air conditioning contractor in St. Johns County, was going to do the work. Though the unit was basically installed in April 1980, it was not working property even up to July 3, 1980 It did not cool properly. At that point, Respondent contends he was still owed some money by Mr. Johnson. In November 1980, when it became obvious that the initially installed compressor was insufficient in size to cool a house the size of Mr. Johnson's, Respondent replaced the compressor, installing one a half ton larger than that initially installed. At that point, Don Johnson paid Respondent the sum of $800, which, according to Mr. Johnson, was the entire sum owed on the complete installation after deduction of the credit of $483 for the firebox which Mr. Johnson fabricated in lieu of that initially proposed by Respondent and which Respondent could not provide. After Respondent was paid the $800, he stopped responding to calls to service the cooling system and the heating system, even though neither worked properly at that time. Respondent admits that at some point in time he refused to continue servicing Mr. Johnson's unit and did not honor the warranty. He contends, however, that he stopped servicing because Mr. Johnson still owed him $453. The weight of the evidence indicates otherwise. Mr. Johnson ultimately hired another craftsman to repair his system, and the system was repaired without any further assistance by Respondent.
Recommendation That Respondent pay a fine of $1,000, and that Respondent's license be placed on probation for a period of two years.
