Judges: CLAUDE B. ARRINGTON
Agency: Department of Business and Professional Regulation
Latest Update: Jul. 13, 1989
Summary: Whether Respondent committed the offenses alleged in the Amended Administrative Complaint, and, if he did, what disciplinary action should be taken.Financial mismanagement and failure to perform by general contractor justified imposition of a fine and suspension of licensure.
89-0783.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, CONSTRUCTION ) INDUSTRY LICENSING BOARD, )
)
Petitioner, )
)
vs. ) CASE NO. 89-783
) RANDALL WARREN LEFEVERS, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in this case on May 23, 1989, at Miami, Florida, before Claude B. Arrington, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances for the parties at the hearing were as follows:
For Petitioner: Jan L. Darlow, Esquire,
Adorno, Zeder, Allen, Yoss, Bloomberg & Goodkind, P.A. Bayview Executive Plaza,
3225 Aviation Avenue, Suite 400,
Miami, Florida 33133 For Respondent: No Appearance
STATEMENT OF THE ISSUES
Whether Respondent committed the offenses alleged in the Amended Administrative Complaint, and, if he did, what disciplinary action should be taken.
PRELIMINARY STATEMENT
At the final hearing, the Petitioner appeared through counsel and offered as evidence in support of the allegations of the Amended Administrative Complaint the testimony of two witnesses and nine documentary exhibits which were accepted into evidence. Respondent did not appear at the final hearing.
A transcript of the proceedings was filed on June 12, 1989. Substantial corrections to the transcript were filed on June 15, 1989. Petitioner timely filed a proposed recommended order which contains proposed findings of fact and proposed conclusions of law. The Respondent has not filed any post-hearing documents. All findings of fact proposed by the Petitioner are addressed in the appendix attached to this recommended order.
FINDINGS OF FACT
Based on the evidence received at the final hearing, the following findings of fact are made.
At all times material to this case the Respondent, Randall Warren Lefevers, was licensed as a certified general contractor in the State of Florida, holding license number CG C019413.
At all times material to this case the Respondent was the qualifying agent for Homes America Builders, Inc. (Homes America).
In early November 1987, Mrs. Maria Caneri contacted Respondent by telephone at his offices with Homes America Builders, Inc. This initial contact was in response to an advertisement published by Homes America. Mrs. Caneri discussed with Respondent that she wanted to remodel her bathrooms.
Ben Riahi, the chief estimator for Homes America, visited Mrs. Caneri in the home she and her husband owned at 1271 Quail Avenue, Miami Springs, Florida, on November 7, 1987. Homes America, through Mr. Riahi, and Mrs. Caneri contracted by written agreement on November 7, 1987, for Homes America to do the remodeling work for Mrs. Caneri at a price of $2,500.00.
The job included plumbing work that could only be done by a plumbing contractor. Neither Respondent nor Homes America is licensed to do plumbing work.
On November 7, 1987, Mrs. Caneri paid to Homes America the sum of
$250.00 by check given to Mr. Riahi and made payable to Homes America.
On November 19, 1987, Mrs. Caneri paid to Homes America the sum of
$1,000.00 by check given to Mr. Riahi. At Mr. Riahi's instructions, this second check was made payable to Randall W. Lefevers.
In response to repeated telephone calls from Mrs. Caneri, Homes America made empty promises to perform the work and gave numerous excuses to Mrs. Caneri as to why the work had not been done. The only progress Homes America made toward performing its contract was the measuring of the rooms to be remodeled and the drafting of blueprints. The rooms were measured on two occasions. The first was by Mr. Riahi on November 7, 1987. The second occasion was in early December 1987 by the cabinet maker who had been subcontracted to do the cabinet work. None of the actual remodeling work was done by Homes America.
On February 16, 1988, Mrs. Caneri demanded her money back from Homes America. On February 23, 1988, Mr. Riahi promised to refund Mrs. Caneri's money the next day Mr. Riahi never called Mrs. Caneri again and never responded to her numerous attempts to contact him.
A final judgment was entered in favor of Mrs. Caneri against Homes America as the result of a civil action she filed against Homes America. As of the time of the final hearing in this matter, the final judgment had not been satisfied. Mrs. Caneri incurred costs and attorney's fees in securing the final judgment.
Petitioner is the state agency charged with the regulation of contractors in the State of Florida.
Petitioner filed an Amended Administrative Complaint against Respondent which alleged, in pertinent part, as follows:
Respondent exceeded the scope
of his license concerning the type of work contracted to be performed, violating Florida Statutes Section 489.129(1)(j), 489.115(1)(b), 489.117(2), and 489.113(3), by
contracting to perform plumbing work.
There was financial
mismanagement and/or misconduct in connection with the work contracted to be performed, attributable either to Respondent directly or to Respondent's failure to properly supervise, in violation of Florida Statutes Sections 489.129(1)(h), (m), as generally exhibited by, but not limited to, failing to keep proper financial records, taking a deposit and never beginning work nor refunding the unearned deposit within any reasonable time.
Respondent denied the violations and timely requested a formal administrative hearing of this matter by the election of rights form he filed.
Three prior letters of guidance have been issued by Petitioner to Respondent.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.
Section 489.129(1), Florida Statutes, authorizes the Department of Professional Regulation, Construction Industry Licensing Board, to take disciplinary action against a general contractor such as Respondent and provides, in pertinent part, as follows:
(1) The board may revoke, suspend, or deny the issuance or renewal of the certificate or registration of a contractor and impose an administrative fine not to exceed $5,000, place a contractor on probation, or reprimand or censure a contractor if the contractor, or if the business entity or any general partner, officer, director, trustee, or member of a
business entity for which the contractor is a qualifying agent, is found guilty of any of the following acts:
* * *
(h) Financial 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 within 30 days after the date the job is abandoned.
* * *
(j) Failure in any material respect to comply with the provisions of this act.
* * *
(m) Upon proof that the licensee is guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.
The Petitioner has the burden of proving by clear and convincing evidence that the Respondent committed the acts alleged in the Administrative Complaint. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).
Petitioner is responsible for the actions of Homes America Builders, Inc. as the qualifying agent for that company.
Petitioner has proved by clear and convincing evidence that Respondent has violated Section 489.129(1)(m), Florida Statutes. Misconduct in violation of this provision was established by the failure to do the work which Homes America contracted to do and by the false promises that were made to the customer.
Petitioner has proved by clear and convincing evidence that Respondent has violated Section 489.129(1)(h), Florida Statutes. Financial mismanagement or misconduct in violation of this provision was established by the failure to refund within a reasonable time the deposit paid by the customer.
Petitioner has not proved by clear and convincing evidence that Respondent exceeded the scope of his license concerning the type of work contracted to be performed by contracting to perform plumbing work. Homes America Builders, Inc. entered the contract as a general contractor. The contract did not prohibit the general contractor from subcontracting the work as may be appropriate. A conclusion that the plumbing work would not have been subcontracted to a plumbing contractor would be based on speculation.
Rule 21E-17.001, Florida Administrative Code, which contains the guidelines to be followed in disciplinary cases such as this, provides, in pertinent part, as follows:
21E-17.001 Normal Penalty Ranges. The following guidelines shall be used in disciplinary cases, absent aggravating or mitigating circumstances and subject to the other provisions of this Chapter.
* * *
(10) 489.129(1)(h): Diversion of funds. First violation, $750 to $1500 fine; repeat violation, revocation.
* * *
(19) 489.129(1)(m): Gross negligence, incompetency, and/or misconduct, fraud or deceit.
Causing no monetary or other harm to licensee's customer, and no physical harm to any person. First violation, $250 to $750 fine; repeat violation, $1000 to $1500 fine and 3 to 9 month suspension.
Causing monetary or other harm to licensee's customer, or physical harm to any person. First violation, $500 to $1500 fine; repeat violation, $1000 to $5000 fine and suspension or revocation.
Rule 21E-17.003(1), Florida Administrative Code, provides as follows:
(1) As used in this rule, a repeat violation is any violation on which disciplinary action is being taken where the same licensee had previously had disciplinary action taken against him or received a letter of guidance in a prior case; and said definition is to apply (i) regardless of the chronological relationship of the acts underlying the various disciplinary actions, and (ii) regardless of whether the violations in the present and prior disciplinary actions are of the same or different subsections of the disciplinary statutes.
Because of the prior letters of guidance issued to Respondent, the violations presented by this case are repeat violations within the meaning of the rules. Because the customer has not been repaid her deposit and because she had to incur costs and attorney's fees to secure her final judgment against Homes America Builders, Inc., the violation of Section 489.129(1)(m), Florida Statutes, is a violation causing monetary harm to the customer.
Rule 21E-17.002, Florida Administrative Code, provides as follows: 21E-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:
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 assessed. (This provision shall not be given effect to the extent it would contravene federal bankruptcy law.)
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.
The severity of the offense.
The danger to the public.
The number of repetitions of offenses.
The number of complaints filed against the licensee.
The length of time the licensee has practiced.
The actual damage, physical or otherwise, to the licensee's customer.
The deterrent effect of the penalty imposed.
The effect of the penalty on the licensee's livelihood.
Any efforts at rehabilitation.
Any other mitigating or aggravating circumstances.
This case presents several aggravating factors and no mitigating factors. The foremost aggravating factor is that as of the time of the final hearing, Respondent had not repaid to the customer the deposit she made in November 1987. In addition, these are serious violations for which Respondent has made no effort at rehabilitation.
The totality of the circumstances dictate that a substantial penalty be imposed against Respondent.
RECOMMENDATION
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered which finds Respondent guilty of
having violated Sections 489.129(1)(h) and (m), Florida Statutes; which suspends Respondent's contractor's license for a period of one year, which imposes a fine against Respondent in the amount of $5,000.00 for such violations, and requires that the fine be paid within ninety days of the entry of a final order in this proceeding.
DONE and ENTERED this 13th day of July, 1989, in Tallahassee, Florida.
CLAUDE B. ARRINGTON
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 1989.
APPENDIX
The proposed findings of fact submitted on behalf of Petitioner are addressed as follows:
Addressed in paragraph 1.
Rejected as being irrelevant.
Addressed in paragraph 5.
Addressed in paragraph 4.
Rejected in part as being unnecessary to the result reached. Addressed in part in paragraph 3.
Addressed in paragraphs 4-5
Addressed in part in paragraph 6. Rejected in part as being subordinate to the conclusion reached in paragraph 2.
Addressed in paragraphs 7-8.
Addressed in paragraph 8.
Addressed in paragraph 9.
Addressed in paragraph 10.
12.-14. Rejected as being unnecessary to the conclusions reached. 15.-17. Rejected as being legal conclusion and not findings of fact.
Addressed in paragraph 14.
COPIES FURNISHED:
Jan L. Darlow, Esquire Adorno, Zeder, Allen, Yoss,
Bloomberg & Goodkind, P. A. Bayview Executive Plaza
3225 Aviation Avenue, Suite 400
Miami, Florida 33133
Randall Warren Lefevers 730 Northwest 147th Street Miami, Florida 33168
Kenneth E. Easley General Counsel
Department of Professional Regulation
1940 North Monroe Street Suite 60
Tallahassee, Florida 32399-0729
Fred Seely, Executive Director Department of Professional
Regulation
Construction Industry Licensing Board Post Office Box 2
Jacksonville, Florida 32201
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD
DEPARTMENT OF PROFESSIONAL REGULATION,
Petitioner,
vs CASE NO.: 97127
DOAH CASE NO.: 89-0783
RANDALL WARREN LEFEVERS, LICENSE NO.: CG C019413,
Respondent.
/
FINAL ORDER
THIS MATTER came before the Construction Industry Licensing Board pursuant to Section 120.57(1)(b)(9), Florida Statutes, on October 12, 1989, in Tampa, Florida, for consideration of the Recommended Order (a copy of which is attached hereto and incorporated herein by reference). The Petitioner was represented by Ray Shope. The Respondent was neither present nor represented by counsel at the Board meeting.
Upon consideration of the hearing officer's Recommended Order, and the arguments of the parties and after a review of the complete record in this matter, including the exceptions filed, the Board makes the following:
FINDINGS OF FACT
The hearing officer's findings of fact are hereby approved and adopted in toto.
There is competent, substantial evidence to support the hearing officer's findings of fact.
CONCLUSIONS OF LAW
The board has jurisdiction of this matter pursuant to the provisions of Section 120.57(1), and Chapter 489, Florida Statutes.
The hearing officer's conclusions of law are hereby approved and adopted in toto.
Respondent is guilty of violating Section 489.129(1)(h), and, (m), Florida Statutes.
The penalty recommended by the Hearing Officer is hereby approved and adopted in part and modified for those reasons cited in the Petitioner's exceptions to the hearing officer's Recommended Order which are hereby approved and fully incorporated herein by reference.
There is competent, substantial evidence to support the Boards findings and conclusions.
WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED:
All of Respondent's licensure to practice contracting shall be suspended for one (1) year and indefinitely thereafter until Respondent pays both a fine of five thousand dollars ($5,000.00) to the Board and also pays restitution of one thousand two hundred fifty dollars ($1,250.00) to Mrs. Maria Caneri of Miami, Florida.
It shall be the sole burden of Respondent to demonstrate full satisfaction of the above requirements by submission of competent an substantial written evidence to the Board's Executive Director.
Pursuant to Section 120.59, Florida Statutes, the Parties are hereby notified that they may appeal this Final Order by filing one copy of a Notice of Appeal with the Clerk of the Department of Professional Regulation, Northwood Centre, 1940 N. Monroe Street, Tallahassee, Florida 32301, and by filing the filing fee and one copy of the Notice of Appeal with the District Court of Appeal within thirty (30) days of the effective date of this Order
This Order shall become effective upon filing with the clerk of the Department of Professional Regulation.
DONE AND ORDERED this 16th day of February, 1990.
MIKE BLANKENSHIP, CHAIRMAN
Construction Industry Licensing Board
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been provided by U.S. Mail to
and by hand delivery/United States Mail to the Board Clerk, Department of Professional Regulation and its Counsel, Northwood Centre, 1940 North Monroe Street, Tallahassee, Florida 32399-0792, on or before 5:00 p.m., this 16th day of February 1990.
F I L E D
Department of Professional Regulation Florida Construction Industry Licensing Board
Board Clerk Clerk Date: February 16, 1990
Docket for Case No: 89-000783
Orders for Case No: 89-000783
| Issue Date |
Document |
Summary |
|
Feb. 16, 1990 |
Agency Final Order
|
|
|
Jul. 13, 1989 |
Recommended Order
|
Financial mismanagement and failure to perform by general contractor justified imposition of a fine and suspension of licensure.
|
