Russell; William Dumbaugh; Michael R. Hugins; Barbara Johnson, and Andrea Moore. Additionally, Petitioner's Exhibits numbered 1-11, 13, 14, and 16-22 were admitted in evidence. Respondent
offered no witnesses and no exhibits. Although Respondent failed to appear for the evidentiary hearing, his attorney was present and fully participated in this proceeding.
Although both parties were granted leave to file proposed recommended orders, only Petitioner did so. That document has been considered in the entry of this Recommended Order.
At all times material hereto, Respondent was licensed as a certified general contractor in the State of Florida, having been issued license number CG C000942.
At all times material hereto, Respondent was the
licensed qualifying agent for Twenty First Century Construction Management, Inc.
On September 5, 1992, Willie Janes, doing business as Janes Roofing Contractor, entered into a contract with Debourah Benjamin to replace the roof at her residence located in Margate, Florida. The contract price was $6,748, but Janes later agreed to do the work for $6,248, which was all Benjamin's insurance company would pay.
On November 26, 1992, Benjamin gave Janes a check in the amount of $2,200 as a down payment on the work. The check was payable to Willie Janes.
At the time Janes entered into his contract with Benjamin, his local roofing license had expired, and he was not licensed as a roofing contractor by the State of Florida.
Respondent applied for the roofing permit for the Benjamin job. The City of Margate Building Department issued permit number 11525-R by and through Respondent's licensure on December 3, 1992.
Janes commenced work on the Benjamin project on November 26, 1992. On December 8, 1992, the City of Margate Building Department performed a tin tag inspection of the work done by Janes. The work failed the inspection that day but passed two days later.
On January 11, 1993, Benjamin issued a second check, in the amount of $2,300, payable to Willie Janes, for the purchase
of roof tile.
Janes did not order and did not pay for the roof tile until approximately June 25, 1993. The tile was delivered to Benjamin's residence a few days later and placed on the roof for installation but Janes did not return to the project site. The amount of tile delivered to Benjamin's residence was not sufficient to cover the entire roof.
On approximately June 25, 1993, Benjamin noticed for the first time that the name of the company on the permit posted at her residence was Twenty First Century Construction. Neither the Respondent nor Twenty First Century Construction Management, Inc., had any involvement in Benjamin's project other than obtaining the building permit.
Benjamin contacted the building department which issued the permit and was referred to Petitioner. An employee of Petitioner advised her that the qualifier for Twenty First Century Construction was Respondent. Benjamin had never heard of Respondent at the time.
Benjamin contacted Respondent by telephone several times about completing the work commenced by Janes. Respondent repeatedly promised to finish the roof but never did.
Benjamin next contacted the Margate Police Department to report the activities of Respondent and Janes. On
September 3, 1993, Officer Liberatori of the Margate Police Department spoke to Respondent by telephone, and Respondent
promised to complete the work within 30 days. However, Respondent did nothing to complete the work.
The last inspection performed on the Benjamin project under permit number 11525-R was the dry-in inspection performed on February 8, 1993. Permit number 11525-R expired on July 8, 1993.
In December 1993 Benjamin had the project completed by another contractor.
On November 16, 1992, Delos and Barbara Johnson entered into a written contract with Respondent to remodel a porch enclosure at the Johnson residence in Coral Springs, Florida, for a contract price of $10,250.
The Johnsons made three payments to Respondent: $1,000 on September 28, 1992; $5,000 on November 17, 1992; and $3,000 on December 2, 1992.
On October 12, 1992, Respondent applied for a building permit from the City of Coral Springs for the Johnson remodeling. The City of Coral Springs issued permit number 920004472 by and through Respondent's licensure on November 30, 1992. When the City of Coral Springs issues a building permit, it provides with the permit a list of the required inspections.
Respondent proceeded with the construction until December 2, 1992, when he received the third payment. Thereafter, Respondent ceased all construction activities on the Johnson project.
Shortly thereafter, the Johnsons learned from the Coral Springs Building Department that their remodeling project had failed to pass the required inspections. When they confronted Respondent regarding his failure to obtain the required inspections, he represented to them that he had made a videotape of all the work he performed, that he himself was a building inspector and could inspect his work, and that he could get a special inspector to inspect the project from the videotape.
At no time material hereto was Respondent a certified building inspector.
Videotaping a construction project in lieu of obtaining required inspections is not permitted under the South Florida Building Code nor is it permitted by the City of Coral Springs Building Department.
Of the required nine inspections for the project, Respondent only obtained three inspections. Of those three, he only passed two.
Respondent's failure to obtain the required inspections constitutes a violation of the South Florida Building Code, the minimum standard required for any type of building construction in South Florida. A contractor's failure to adhere to that minimum standard causes harm to the public from deteriorating construction.
The Johnsons and the City of Coral Springs Building Department gave Respondent an opportunity to obtain and pass the
required inspections and complete the construction project. When Respondent declined to do so, the attorney hired by the Johnsons discharged Respondent.
The Johnsons had paid approximately 90 percent of the money they had saved for the porch enclosure to Respondent, and they could not afford to continue with the construction project using the services of another contractor until November 1994.
Rick Hugins of Hugins Construction Corp., the remedial contractor, needed to pass the required inspections that Respondent had neglected in order to be permitted by the City of Coral Springs Building Department to complete the project. Work that needed to be inspected was concealed by subsequently- installed construction materials which had to be removed in order that the required inspections could be performed. Numerous code violations were discovered in the concealed work. The work performed by Respondent was below industry standards.
The Johnsons paid Hugins Construction Corp. $10,000 to correct the code violations, to pass the required inspections Respondent had missed, and to complete the project. Hugins completed the project by January 23, 1995.
Respondent has been previously disciplined by Petitioner on charges of assisting unlicensed activity and of failing to notify Petitioner of his current mailing address and telephone number. That discipline included the payment of an administrative fine and an assessment of costs associated with
that investigation and prosecution.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Sections 120.569 and 120.57(1), Florida Statutes.
The Administrative Complaint filed in DOAH Case No. 97- 1365 contains three counts regarding the Benjamin project. Count I alleges that Respondent has violated Section 489.129(1)(e), Florida Statutes (1992 Supp.), by performing an act which assists a person to engage in the practice of contracting without certification or registration if the licensee has reasonable grounds to know that the person is not certified or registered. In his answers to requests for admissions Respondent admitted that Janes was not licensed at the time that Respondent applied for the permit for the Benjamin project. The evidence is uncontroverted that Janes contracted with Benjamin, received checks payable to Janes, and was the only person involved in performance of the contract. There was no reason for Respondent to obtain the building permit for a job in which he had no involvement but for Janes' lack of licensure and, therefore, inability to do so. Petitioner has met its burden as to Count I.
Count II alleges that Respondent violated Section 489.129(1)(f), Florida Statutes (1992 Supp.), by knowingly combining and conspiring with an uncertified or unregistered person by allowing his certificate to be used by that person with
intent to evade the provisions of Chapter 489. In its proposed recommended order, Petitioner admits it has failed to prove the allegations of Count II.
Count III alleges that Respondent violated Section 489.129(1)(k), Florida Statutes (1992 Supp.), by abandoning a construction project in which he was engaged, which project is deemed abandoned after 90 days of no work without just cause. Since Respondent obtained the building permit for the Benjamin project, he was responsible for its performance. More than 90 days passed with no work performed by Respondent and with no just cause for Respondent's refusal to perform. Petitioner has met its burden as to Count III.
The Administrative Complaint filed in DOAH Case No. 97- 1368 contains two counts regarding the Johnson project. Count I alleges that Respondent violated Section 489.129(1)(p), Florida Statutes (1992 Supp.), by proceeding on the job without obtaining applicable local building department inspections. Petitioner has met its burden as to this allegation. Respondent only obtained and passed two of the required nine inspections.
Count II alleges that Respondent violated Section 489.129(1)(n), Florida Statutes (1992 Supp.), by committing incompetency or misconduct in the practice of contracting by building a structure that required a substantial amount of dismantling in order to pass required inspections. Petitioner has met its burden as to this Count. Respondent's work was
substandard and included many building code violations, at least some of which had been concealed. The cost of dismantling Respondent's work in order to correct the code violations, pass inspection, and complete the project was as much as the contract amount paid to Respondent, thereby doubling the cost to the owner.
The disciplinary penalty guidelines found in Rule 61G4- 17.001, Florida Administrative Code, are substantially the same as they were at the time that Respondent committed his violations of Section 489.129(1), Florida Statutes (1992 Supp.). Similarly, Rule 61G4-17.002, Florida Administrative Code, which contains factors to be considered in aggravation or mitigation of any penalty, is the same as it existed when Respondent committed his misdeeds.
A number of factors in aggravation of the penalty guidelines are present in this cause. The Johnsons suffered severe monetary damages in that it cost them $19,000 to remodel their porch, rather than the contract price of $10,250. The job- site violations of the South Florida Building Code exhibiting incompetency on the Johnson project were numerous, and Respondent's refusal to obtain required inspections constitutes severe misconduct. The substandard construction on the Johnson project constituted a danger to the public as did assisting an unlicensed person in the practice of contracting on the Benjamin project. Further, Respondent refused to complete both the
Benjamin and the Johnson projects, evidencing a lack of rehabilitation on his part and his unwillingness to live up to his contractual obligations. Lastly, Respondent has been disciplined previously for assisting the unlicensed practice of contracting. On the other hand, no evidence was offered in mitigation of any penalty.
Section 489.129(1), Florida Statutes, permits Petitioner to assess the costs of investigation and prosecution against a licensee. It is appropriate that such costs be assessed against Respondent. It is also appropriate that Respondent's certification be revoked due to his blatant disregard for the contracting laws of this state and the local building codes. It is further appropriate that Respondent pay restitution to the Johnsons for the monetary damage caused by him.
