99-002640 Department Of Business And Professional Regulation, Construction Industry Licensing Board vs. James Edward Foster Status: Closed Recommended Order on Monday, May 1, 2000.

Summary: Respondent`s misrepresentation to the witnesses made him guilty of contracting beyond the scope, misconduct, abandonment, fraud or deceit in contracting, misconduct or incompetency, gross negligence, and failure to get permits.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

CONSTRUCTION INDUSTRY )

LICENSING BOARD, )

)

Petitioner, )

)

vs. ) Case No. 99-2640

)

JAMES EDWARD FOSTER, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Upon due notice, this cause came on for a disputed-fact

hearing on February 28, 2000, in Jacksonville, Florida, before

Ella Jane P. Davis, a duly-assigned Administrative Law Judge of

the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Laurie B. Woodham, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

For Respondent: No Appearance

STATEMENT OF THE ISSUE

Respondent was charged in a November 19, 1998,

Administrative Complaint, filed December 7, 1998, with ten counts

of professional violations.

The statutory violations alleged are:

Count I: Section 489.129(1)(a), Florida Statutes (1995),

obtaining a certificate or registration as a Certified Roofing

Contractor by fraud or misrepresentation;

Count II: Section 489.129(1)(h)2, Florida Statutes (1995),

by committing mismanagement or misconduct in the practice of

contracting that caused financial harm to a customer;

Count III: Section 489.129(1)(k), Florida Statutes (1995),

by abandoning a construction project in which the contractor is

engaged or under contract as a contractor;

Count IV: Section 489.129(1)(m), Florida Statutes (1995),

by committing fraud or deceit in the practice of contracting;

Count V: Section 489.129(1)(n), Florida Statutes (1995), by

committing incompetency or misconduct in the practice of

contracting;

Count VI: Section 489.129(1)(p), Florida Statutes (1995),

by proceeding on a job without obtaining the applicable local

building department plumbing permits and inspection;

Count VII: Section 489.129(1)(p), Florida Statutes (1995),

by proceeding on a job without obtaining the applicable local

building department electrical permits and inspection;

Count VIII: Section 489.129(1)(p), Florida Statutes (1995),

by proceeding on a job without obtaining the applicable local

building department framing, insulation, and/or final

inspections;

Count IX: Section 489.129(1)(o), Florida Statutes (1995),

by committing gross negligence, repeated negligence, or

negligence resulting in a significant danger to life or

property; and

Count X: Section 389.129(1)(c), Florida Statutes (1995), by

violating any provision of Chapter 455, to wit, Section

455.227(1)(o), practicing beyond the scope permitted by law and

performing professional responsibilities the licensee knows, or

has reason to know, he is not competent to perform.

PRELIMINARY STATEMENT

The Administrative Complaint was fil ed December 7, 1998.

Respondent disputed its allegations and petitioned for a formal

hearing involving disputed issues of material fact. The case was

referred to the Division of Administrative Hearings on or about

June 18, 1999.

Respondent repeatedly fa iled to respond to discovery. By an

Order entered November 22, 1999, Respondent's failure to timely

admit or deny Petitioner's Requests for Admission was deemed to

conclusively establish the material facts alleged in paragraphs

2, 3, 9, 10, 11, 12, 13, 17, 19, 25a-p, 27, 28, 47, 50, 51, 52,

54, 62, 74, 76, 78 up to the first semi-colon and after the

second semi-colon, and 83, of the Administrative Complaint.

Although Petitioner had other options, Petitioner elected to

proceed to hearing on all remaining allegations. 1

At the time and place noticed for hearing, Respondent failed

to appear.

Petitioner presented the oral testimony of Reuben and

Samelia Adams (the homeowners), Tim McCaulley (Agency

investigator), Roy Brand (expert in building construction)

Raymond Smith (City of Jacksonville Building Inspector), and

Douglas Arnold (builder who completed work on the Adamses' home).

Petitioner had 17 exhibits admitted in evidence. 2 The statutory

sections charged in the Administrative Complaint and Rules

64G4-12.002 through 64G4-23.001, Florida Administrative Code,

were officially recognized.

A Transcript was filed on March 17, 2000. On March 28,

2000, Petitioner filed its Proposed Recommended Order, which has

been considered. Respondent has filed no proposal.

FINDINGS OF FACT

1. At all times material to the allegations of the

Administrative Complaint, Respondent was a Certified Residential

Contractor, having been issued license number CR C057235, by the

Florida Construction Industry Licensing Board. At the time of

hearing, Respondent's license had been suspended.

2. Since January 27, 1998, Respondent also has been a

Certified Roofing Contractor, having been issued license number

CC C057649, by the Florida Construction Industry Licensing Board.

3. At no time material was Respondent licensed, registered,

or certified to perform electrical work.

4. At no time material was Respondent licensed, registered,

or certified to perform plumbing work.

5. On or about February 27, 1997, Respondent entered into a

$39,050.40, contract with Reuben M. Adams to restore and repair

the Adamses' home at 7037 Mark Street in Jacksonville, Florida,

which had been destroyed by fire on February 1, 1997.

6. The work contracted-for included complete restoration of

the living room, kitchen, two hallways, two bathrooms, four

bedrooms, a laundry room, and a dining room; restoration of heat

and air conditioning; and a virtually new roof. Among the

electrical and plumbing restoration involved, Respondent

specifically agreed to install a ceiling fan and a light kit in

the living room; install a sink and faucet for the sink and a

ceiling light fixture and vented range hood in the kitchen;

install a ceiling light fixture in a hallway; remove floor

mounted with tank commode and reinstall a floor mounted with

tank commode; replace commode sink, remove and reinstall sink,

install new faucet for the sink, install shower head and faucet

set for bathtub, install bathroom exhaust fan and light kit for

ceiling fan in the bathroom; install ceiling fan and light kit

in bedrooms; replace faucet for sink and provide a shower head,

faucet set and install a ceiling light fixture in the second

bathroom; install a ceiling fan and light kit in the third and

fourth bedrooms and dining room and hallway; install 960 square

foot electrical and provide temporary utilities for dimensions

of 40 feet by 24 feet by eight feet. These types of activities

require electrical and plumbing licensure.

7. On or about April 15, 1997, Respondent received and

endorsed the first draw check of $22,245.23 from the Adamses.

8. In May 1997, Respondent's site supervisor, Aaron

Mitchell, requested that Mr. Adams give him $1500.00, cash to

buy materials because Respondent was out of town and Mitchell

could not perform the work without the materials. Mr. Adams

paid this amount in cash to Mr. Mitchell but was never

reimbursed by either Mr. Mitchell or Respondent.

9. In early June 1997, the Adamses became concerned

because little work had been completed on the restoration of

their home. The house had been cleaned out and gutted and the

slab for the room addition had been poured.

10. Mr. Adams contacted Respondent several times about the

lack of work being performed on the home.

11. Between mid-June and early July 1997, Respon dent

completed the framing and installed the roof.

12. On or about July 24, 1997, the Adamses released the

second draw of $11,122.62 to Respondent, and Respondent

deposited the money into his bank account.

13. In approximately August 1997, Respondent r an

electrical wire in the roof, installed electrical outlets in

the walls, and completed the electrical work, including

installing electrical outlets in the walls. Mr. Adams

personally observed Respondent and his workers performing

electrical wiring.

14. The electrical work performed by Respondent required

licensure as an electrical contractor, that a permit be

obtained prior to the electrical work being performed, and that

inspections of the electrical work be made before the walls

were sealed up over the electrical work.

15. Respondent failed to obtain a permit or to have an

electrical inspection performed. Respondent completed the

electrical work and covered up the electrical work with the

walls without an inspection being performed.

16. Responden t performed plumbing work on the Adamses'

home, although he held no plumbing license. Respondent failed

to pull a permit for the plumbing work and failed to call for

the required inspections. Ultimately, he covered up the

plumbing work with the walls without an inspection having been

performed. The City of Jacksonville "red-tagged" the home for

this reason. The effect of "red-tagging" was to prevent

occupancy until compliance with the building code was assured.

Such assurance required inspection, which in turn, ultimately

required that at least the interior walls be taken down.

17. Respondent also never obtained a framing, insulation

or final inspection on the project.

18. In October 1997, the Adamses filed complaints against

the Respondent with the State Attorney's Office and the

Department of Business and Professional Regulation (Case No.

97-18544).

19. On or about October 31, 1997, Respondent signed a

Letter of Intent with Mr. and Mrs. Adams agreeing to have their

home ready for occupancy no later than December 1, 1997, and

promising that Respondent would be responsible for all permits

and inspections necessary for the project to be considered

complete. At that time, Respondent apologized for all of the

delays, the decline in their relationship, and the stress he

had caused. Respondent and Mrs. Adams prayed together, and

Respondent promised that from that day forward, the Adamses

would see progress on their home every day until it was

finished.

20. Respondent did not abide by the requirement s set forth

in the Letter of Intent. Specifically, he never obtained the

required permits and inspections. Mr. Adams confronted

Respondent about the permits and the inspections, and the

Respondent indicated that he had the permits at his office. He

assured Mr. Adams that he was taking care of the electrical

permit.

21. In December 1997, Respondent requested that Mr. and

Mrs. Adams drop their complaint with Petitioner Department of

Business and Professional Regulation because he had applied for

his roofing license and the complaint was holding up that

roofing license being granted. Respondent told the Adamses

that if they would drop their complaint, he could obtain his

roofing license, which would allow him to generate money to

complete their project.

22. Around mid-January 1998, Respondent requested that the

Adamses release the final construction draw and drop their

complaints with Petitioner and the State Attorney. Respondent

stated that if they paid him the final draw of $5,682.55, he

would work every day on their project and have it ready for

them to move in no later than February 4, 1998.

23. The Adamses paid Respondent the remaining construction

draw of $5,682.55, and withdrew their complaint with

Petitioner. Respondent accepted the final draw on or about

January 27, 1998.

24. Respondent obtained his roofing license after the

Adamses withdrew their complaint with Petitioner.

25. After receiving the final construction draw,

Respondent did minimal work on the project in January.

26. On or a bout February 23, 1998, the Adamses reinstated

their complaint with Petitioner against Respondent, resulting

in the instant case.

27. Respondent has not returned to work on the Adamses'

project since March 1998.

28. As of March 1998, Respondent had bee n paid the full

contract price, but the home remained uninhabitable. The

workmanship was substandard and the project was less than 100

percent complete.

29. As a result of Respondent's unlicensed electrical and

plumbing work on the Adamses' home and his covering-up his work

with the walls, the Adamses were unable to obtain an inspection

without the walls being taken down. This in turn, required

that the walls be rebuilt.

30. In addition to the money paid to Respondent for work

improperly done or not done at all, the Adamses had to pay

another builder $14,900.00, to remove the walls, re-install the

electrical wiring and plumbing which had been completed or

partially completed by the Respondent, and complete the

renovation.

31. Testimony of Roy Brand, Raymond Smith, and Douglas

Arnold supports a finding that Respondent committed repeated

negligence and created a dangerous condition when he performed

electrical and plumbing work which he was not licensed to do

and which he did not have the knowledge to perform.

Particularly upon the testimony of Mr. Brand, it is clear that

three types of very serious electrical installation errors or

omissions had been performed once or more than once by

Respondent. At least one of these would have been sufficient,

under certain circumstances, to burn down the entire house. By

installing electrical universal polyethylene boxes and using

them as junction boxes, a purpose for which they were not

designed, Respondent created what Mr. Brand described as "short

of a 'Molotov Cocktail' that would burn your house down just

about as quick." Likewise, one serious error occurred in the

type of glue Respondent used on plumbing pipe throughout the

home.

32. Mr. Brand gave credible expert evidence that the

construction undertaken by Respondent was undertaken for a

reasonable amount of $39,050.40, and that a reasonable time to

construct the entire contract would have been two and one half

to three months after permitting.

33. In addition to the money Mr. and Mrs. Adams paid to

Respondent and the substitute contractor, Douglas Arnold, they

incurred additional expenses and spent additional time out of

their home as a result of Respondent's shoddy workmanship and

unlicensed electrical and plumbing work.

34. The Adamses also had to take out a second mortgage of

$18,800.00 at 16.3 percent interest for 15 years in order to

finance the repairs necessitated by Respondent's substandard

and incompetent work, so that they could move back into their

home.

35. Mr. and Mrs. Adams and their c hild had to live

somewhere during construction. Their insurance company paid

them $750.00, for each of three months. However, they were

unable to move back into their home from August 1997 until

November 1998, as a direct result of Respondent's incompetence

and misconduct. 3 During this fifteen-month period, the Adamses

paid $300.00 rent per month to Mrs. Adams' mother, plus an

additional $100.00 per month for water and utilities, and

storage fees of $119.00 per month to a storage facility for

keeping their items which had not been destroyed by the fire

36. The Adamses also incurred an additional expense of

$1,500.00, for an air conditioning unit which Respondent was to

have purchased under their contract with him.

CONCLUSIONS OF LAW

37. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant to Section 120.57, Florida Statutes.

38. Petitioner has the burden of proving by clear and

convincing evidence the specific allegations of the

Administrative Complaint. See Ferris v. Turlington , 510 So. 2d

292 (Fla. 1987); Evans Packing Co. v. Department of Agriculture

and Consumer Services , 550 So. 2d 112 (Fla. 1st DCA 1989);

Kinney v. Department of State , 501 So. 2d 129, (Fla. 5th DCA

1987); Sternberg v. Department of Professional Regulation,

Board of Medical Examiners , 465 So. 2d 1324,

(Fla. 1st DCA 1985); Hunter v. Department of Professional

Regulation , 458 So. 2d 842, (Fla. 2d DCA 1984).

39. Section 489.129(1), Florida Statutes, (1995),

provides, in pertinent part,

(1) The board may take any of the following

actions against any certificateholder or

registrant: place on probation or reprimand

the licensee, revoke, suspend, or deny the

issuance or renewal of the certificate or

registration, require financial restitution

to a consumer, impose an administrative fine

not to exceed $5,000 per violation, require

continuing education, or assess costs

associated with the investigation and

prosecution, if the contractor, financially

responsible officer, or business organization

for which the contractor is primary

qualifying agent or is a secondary qualifying

agent responsible under s. 489.1195, is found 4

guilty of any of the following acts :

(a) Obtaining a certificate, registration,

or certificate of authority by fraud or

misrepresentation.

* * *

(c) Violating any provision of Chapter 455.

* * *

(h) Committing mismanagement or misconduct

in the practice of contracting that causes

financial harm to a customer. Financial

mismanagement or misconduct occurs when:

2. The contractor has abandoned a customer's

job and the percentage of completion is less

than the percentage of the total contract

price paid to the contractor as of the time

of abandonment, unless the contractor is

entitled to retain such funds under the terms

of the contract or refunds the excess funds

within 30 days after the date the job is

abandoned . . . .

* * *

(k) Abandoning a construction project in

which the contractor is engaged or under

contract as a contractor. A project may be

presumed abandoned after 90 days if the

contractor terminates the project without

just cause or without proper notification to

the owner, including the reason for

termination, or fails to perform work without

just cause for 90 consecutive days.

* * *

(m) Committing fraud or deceit in the

practice of contracting.

(n) Committing incompetency or misconduct in

the practice of contracting.

(o) Committing gross negligence, repeated

negligence, or negligence resulting in a

significant danger to life or property.

(p) Proceeding on any job without obtaining

applicable local building department permits

and inspections.

40. Petitioner proved that Respondent contracted to

renovate and repair the Adamses' fire-damaged home, and despite

numerous complaints and contacts by Mr. and Mrs. Adams,

Respondent failed to complete any substantive work on their

home as of October 1997, more than eight months after the

contract was signed. Only when the Adamses filed their

complaint with Petitioner did Respondent attempt to appease

them. Then he took advantage of their desperation and

religious good will, made promises to them to persuade them to

drop their complaint, and assured them that once he obtained

his roofing license, he would have the money he needed to

complete their home. Based on Respondent's representations,

Mr. and Mrs. Adams dropped their complaint with Petitioner, and

Petitioner issued his roofing contractor's license shortly

thereafter. However, Petitioner has not met its burden of

proving, pursuant to Count I of the Administrative Complaint,

that Respondent violated Section 489.129(1)(a), Florida

Statutes (1995). Respondent did not obtain his roofing license

by fraud or misrepresentation upon the Board but by fraud and

misrepresentation to the complaining witnesses. This type of

conduct, although completely reprehensible, is not the type of

conduct proscribed under Section 489.129(1)(a), Florida

Statutes (1995).

41. On the other hand, Petitioner has met its burden of

proving, pursuant to Count II of the Administrative Complaint,

that Respondent violated Section 489.129(1)(h)(2), Florida

Statutes (1995), by committing financial misconduct in the

practice of contracting which resulted in financial harm to a

customer, by abandonment of the job when the percentage of

completion was less than the percentage of the total contract

price paid to him. Respondent received 100 percent of the

$39,050.40, contract price. What he accomplished was far less

than 100 percent and most of that had to be torn out and

replaced due to his incompetence.

42. Upon the same facts, Petitioner has met its burden of

proving Count III of the Administrative Complaint, that

Respondent violated Section 489.129(1)(k), Florida Statutes

(1995), that Respondent abandoned a construction project in

which the contractor was engaged or under contract. More than

the statutory 90 days passed without any effective return to

work by Respondent, and he left the project without just cause

or proper notification to the owner.

43. Petition er also has met its burden of proof pursuant

to Count IV of the Administrative Complaint, that Respondent

violated Section 489.129(1)(m), Florida Statutes (1995), by

committing fraud or deceit in the practice of contracting. In

addition to the discussion above in Conclusion of Law No. 40,

regarding Respondent's fraudulently inducing Mr. and Mrs. Adams

to drop their complaint to Petitioner, it was clearly and

convincingly proven that Respondent continued to receive

construction draws from Mr. and Mrs. Adams without performing

any work, or performing only minimal work. Respondent also

promised to complete their home if they would release the final

draw and drop their complaints with the State Attorney's

Office. He made numerous promises to get what he wanted, but

followed through on none of them. Further, Respondent falsely

represented to Mr. and Mrs. Adams that he had the proper

permits in his possession and that everything was taken care

of. Respondent repeatedly lied to and defrauded Mr. and Mrs.

Adams.

44. Petitioner also has met its burden of proof pursuant

to Count V of the Administrative Complaint, that Respondent

violated Section 489.129(1)(n), Florida Statutes, by committing

incompetency or misconduct in the practice of contracting. The

work performed by Respondent, specifically the plumbing and

electrical work, was substandard and created dangerous

conditions contrary to the local building code. Respondent

clearly was not competent to perform the electrical and

plumbing work he did. Furthermore, Respondent knew that he was

not competent to perform electrical and plumbing work, since he

had no licenses in those fields, and he committed further fraud

when he covered up such shoddy work with walls and floors so

that it could not be inspected.

45. Petitioner has met its burden of proof pursuant to

Counts VI, VII, and VIII, of the Administrative Complaint, that

the Respondent violated Section 489.129(1)(p), Florida Statutes

(1995), by proceeding on a job without obtaining applicable

local building department plumbing permits and inspections,

without obtaining local building department electrical permits

and inspections, and without obtaining local building

department framing, insulation, and/or final inspections.

Because Respondent was not licensed to perform plumbing,

electrical, or framing work, he was unable to pull these

permits without hiring an appropriately licensed subcontractor,

which he failed to do. Respondent failed to obtain a permit or

have the required electrical inspections performed. Instead,

he completed the electrical work and covered it up with the

walls, all without the benefit of required building department

inspections. No inspections had been performed when Respondent

left the job in March 1998. Although divided into three counts

in the Administrative Complaint, I conclude that Respondent's

failure to pull any permits and to call for any inspections on

a single job constitutes only one offense under Section

489.129(1)(p), Florida Statutes (1995).

46. Upon all the for egoing Conclusions of Law, but most

notably upon the discussion in Conclusion of Law No. 44, it is

further concluded that Petitioner has met its burden of proof

pursuant to Count IX of the Administrative Complaint, that

Respondent violated Section 489.129(1)(o), Florida Statutes

(1995), by committing gross negligence and negligence resulting

in significant danger to life or property. Respondent created

a seriously dangerous electrical condition.

47. Petitioner has also met its burden of proof pursuant

to Count X of the Administrative Complaint, that Respondent

violated Section 489.129(1)(c), Florida Statutes (1995), by

violating a provision of Chapter 455, specifically Section

455.227(1)(o), Florida Statutes (1995), which provided that it

shall constitute grounds for discipline for a licensee to

practice or offer to practice beyond the scope permitted by law

or to accept and perform professional responsibilities the

licensee knows, or has reason to know, the licensee is not

competent to perform. Respondent violated Section

455.227(1)(o), Florida Statutes, by practicing contracting

outside the scope of his license. Under Section 489.105(3)(c),

Florida Statutes (1995), "'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." Respondent knew he did

not meet the statutory definitions or necessary criteria for

other licenses. The definitions of a plumbing contractor and

an electrical contractor are set forth in Sections

489.105(3)(m) and 489.505(12), Florida Statutes (1995),

respectively. At no time material hereto, had Respondent met

the necessary criteria for these licenses. Section 489.113(3),

Florida Statutes (1995), provides that a contractor shall

subcontract all electrical, mechanical, plumbing, roofing,

sheet metal, swimming pool, and air conditioning work, unless

such contractor holds a state certificate or registration in

the respective trade category." Respondent clearly performed

the work himself and did not subcontract out the electrical and

plumbing work as required. He thus acted outside the scope of

his licensure.

48. Accordingly, it is concluded that Respondent is guilty

of one violation each of the following statutory sections:

489.129(1)(h)(2); (1)(k); (1)(m); (1)(n); (1)(p); (1)(o); and

(1)(c), Florida Statutes (1995).

49. Rule 61G4 -17.001, Florida Administrative Code,

provides, in pertinent part,

61G3-17.001 Normal Penalty Ranges.

The following guidelines should be used in

disciplinary cases, absent aggravating or

mitigating circumstances and subject to the

other provisions of this Chapter:

(1) 489.129(1)(a): Obtaining license

through fraud or misrepresentation.

Revocation and/or $5000 fine.

* * *

(3) 489.129(1)(c): Violating any part of

Chapter 455. Penalty within ranges

prescribed by Section 455.227, unless

otherwise prescribed herein. (10)(d)

489.117, 489.113: Contracting beyond scope

of license, safety hazard is created. First

violation, $1000 to $2500 fine; repeat

violation, $2500 to $5000 fine and/or

probation, suspension, or revocation.

* * *

(8) 489.129(1)(h): Mismanagement or

misconduct causing financial harm to the

customer. First violation, $750 to $1500

fine and/or probation; repeat violation,

$1500 to $5000 fine and/or probation,

suspension or revocation.

* * *

(11) 489.129(1)(k): Abandonment. First

violation, $500 to $2000 fine; repeat

violation, revocation and $5000.

* * *

(13) 489.129(1)(m): Committing fraud or

deceit in the practice of contracting.

(a) Causing no monetary or other harm to

licensee's customer, and no physical harm to

any person. First violation, $500 to $1000

fine; repeat violation, $1000 to $1500 fine

and/or probation, suspension, or revocation.

(b) Causing monetary or other harm to

licensee's customer or physical harm to any

person. First violation, $500 to $2000 fine

and/or probation, suspension or revocation;

repeat violation, $2000 to $5000 fine and/or

probation, suspension, or revocation;

(14) Misconduct or incompetency in the

practice as set forth in Section 489.129(n),

Florida Statutes, shall be defined as:

(b) Violation of any provision of Chapter

61G4, Florida Administrative Code.

(c) Failure to abide by the terms of a

medication agreement.

(d) The following guidelines shall apply to

cases involving misconduct or incompetency in

the practice of contracting, absent

aggravating or mitigating circumstances:

2. Violation of any provision of Chapter

61G4, Florida Administrative Code. First

violation, $500 to $1000 fine; repeat

violations, $1000 to $5000 fine and/or

probation, suspension or revocation.

3. Any other form of misconduct or

incompetency. First violation, $250 to $1000

fine and/or probation; repeat violations

$1000 to $5000 fine and/or probation,

suspension or revocation.

(15) 489.129(1)(o): Being found guilty of

gross negligence, repeated negligence, or

negligence resulting in a significant danger

to life or property. First violation, $500

to $1500 fine and/or probation, suspension or

revocation; repeat violation, $1500 to $5000

fine and/or probation, suspension, or

revocation.

(16) 489.129(1)(p): Proceeding on any job

without obtaining applicable local building

department permits and/or inspections.

(b) Failure to call for inspections. First

violation, $100 fine; repeat violation, $500

to $2500 fine and probation, suspension, or

revocation.

(c) Job finished without permit having been

pulled, or no permit until caught after job,

or late permit during the job resulting in

missed inspection or inspections. First

violation, $500 to $1500 fine; repeat

violation $1000 to $2500 fine and/or

probation, suspension or revocation.

50. Rule 61G4-17.002, Florida Administrative Code,

provides that,

61G4-17.002 Aggravating and Mitigating

Circumstances.

Circumstances which may be considered for the

purposes of mitigation or aggravation of

penalty shall include, but are not limited to

the following:

(1) Monetary or other damage to the

licensee's customer, in any way associated

with the violation, which damage the licensee

has not relieved, as of the time the penalty

is to be assessed. (This provision shall not

be given effect to the extent it would

contravene federal bankruptcy law.)

(2) Actual job-site violations of building

codes, or conditions exhibiting gross

negligence, incompetence, or misconduct by

the licensee, which have not been corrected

as of the time the penalty is being assessed.

(3) The severity of the offense.

(4) The danger to the public.

(5) The number of repetitions of offenses.

(6) The number of complaints filed against

the licensee.

(7) The length of time the licensee has

practiced.

(8) The actual damage, physical or

otherwise, the licensee's customer.

(9) The deterrent effect of the penalty

imposed.

(10) The effect of the penalty upon the

licensee's livelihood.

(11) Any efforts at rehabilitation.

(12) Any other mitigating or aggravating

circumstances.

51. Petitioner correctly asserts that aggravating

circumstances present in this case are: (1), (2), (3), (4),

and (8). The Adamses have sustained significant monetary

damage as a direct result of the Respondent's violations, and

Respondent has not relieved any of this damage. Actual job-

site violations of building codes occurred while the Respondent

worked on the project. He failed to obtain the appropriate

permits and inspections. His work was so substandard that the

walls had to be torn out and the work begun over again by

another contractor who pulled the appropriate permits and

obtained the required inspections. Respondent made no effort

to correct these violations, which were dangerous and severe.

Respondent knowingly acted outside the scope of his residential

contractor's license when he performed plumbing and electrical

work.

52. With regard to aggravating circumstance(s), there are

two prior Final Orders of the Construction Industry Licensing

Board which have been considered only after determining whether

or not violations occurred. In these Final Orders, the Board

fined Respondent and suspended Respondent's licenses for having

violated a variety of statutes; among them, Sections

489.129(1)(h)2, (k), (m), (n), (o), and (p). In one instance,

Respondent received money from a homeowner, performed

electrical work without a license, failed to obtain the proper

permits and inspections, and abandoned the job. With regard to

aggravating circumstances (6) and (7), Respondent has had

formal chargers filed against him on at least five occasions,

including this proceeding, and he has had serious discipline

imposed in the three-and-a-half years he has been contracting.

53. Petitioner's licenses should be revoked.

54. Maximum fines should be imposed for the violations

proven which are also repeated violations. ( See Conclusions of

Law Nos. 48, 49, and 51). For Section 489.129(1)(c), Florida

Statutes, an appropriate fine is another $2500.

55. Petitioner seeks an order requiring that Respondent

pay restitution to Mr. and Mrs. Adams. Applying the

mathematics described in Findings of Fact Nos. 8, 30, and 34-

36, that amount should be $49,835.00 ($39,050.40 paid to

Respondent; $6,000.00 paid to Mrs. Adams' mother; $1,785.00

paid for rental shed; $1,500.00 cash paid to Respondent's

Agency Mitchell and $1,500.00 cash paid to Respondent's agent

Mitchell; $1,500.00 paid for air conditioning unit).

56. Section 489.129(1), Florida Statutes, and Rule

61G4-17.001(19), Florida Administrative Code, authorize

Petitioner to assess costs of investigation and prosecution of

violations on or after October 1, 1989, in addition to the

penalties provided above. Section 61G4-12.018, Florida

Administrative Code, requires Respondent to submit to the

Construction Industry Licensing Board a listing of all costs

related to investigation and prosecution of the Administrative

Complaint at the time it is presented to the Board for final

agency action. This is a matter for the Board.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law,

it is

RECOMMENDED that the Construction Industry Licensing Board

enter a final order that:

(1) Finds Respondent guilty of one violation of each of the

following: Sections 489.129(1)(h)(2); (1)(k); (1)(m); (1)(n);

(1)(p); (1)(o); and (1)(c), Florida Statutes (1995);

(2) Revokes Respondent's General Contractor's and Roofing

Contractor's licenses;

(3) Imposes a total fine for all violations, in the amount

of $30,000.00; and

(4) Requires Respondent to pay restitution to Mr. and Mrs.

Adams in the amount of $49,835.00.

DONE AND ENTERED this 1st day of May, 2000, in Tallahassee,

Leon County, Florida.

___________________________________

ELLA JANE P. DA VIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of May, 2000.

ENDNOTES

1 / Because Petitioner went forward to present evidence on all

issues, including "proving-up" some of the facts admitted through

the Requests for Admission, this Recommended Order does not

"track" the Requests for Admission word-for-word in its Findings

of Fact. Rather, it incorporates them with facts proven at

hearing in clear and readable prose.

2 / Final Orders of the Construction Industry Licensing Board

disciplining Respondent have been considered only for purposes of

aggravation/mitigation of penalty after the issues of commission

of violation were determined.

3 / The Adamses signed with Respondent in late February 1997.

The substituted contractor worked on the project between July

1998 and November 1998 (4 months). Considering the foregoing,

together with Mr. Brand's testimony that three months to complete

the project after permitting is a reasonable construction period,

it is reasonable to assume that Respondent should have completed

construction that was "up to Code" by August 1998.

4 / In the absence of contrary legal argument, the undersigned

reads this statute to permit revocation etc., fine, and

restitution for each violation.

COPIES FURNISHED:

James Edward Foster

3259 Rosselle Street

Jacksonville, Florida 32205

Laurie Beth Woodham, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Rodney Hurst, Executive Director

Department of Business and

Professional Regulation

7960 Arlington Expressway, Suite 300

Jacksonville, Florida 32211-7467

Barbara D. Auger, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.