vs. ) Case No. 00-5141PL
DANNY L. REEVES, )
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge, Charles A. Stampelos, held a final hearing in the above-styled case on March 5 and 30, 2001, in Apalachicola, Florida.
Whether disciplinary action should be taken against Respondent's license to practice contracting, license number
CG C033931, based on the violations of Section 489.129(1), Florida Statutes, as charged in the Administrative Complaint filed against Respondent in this proceeding.
On October 11, 2000, Petitioner, Department of Business and Professional Regulation (Department), filed an Administrative Complaint alleging that Respondent, Danny L. Reeves (Reeves) violated several laws regulating his professional activities as a certified general contractor in the State of Florida. The six- count Administrative Complaint charged Reeves with having violated Section 489.129(1)(j), Florida Statutes (Supp. 1998), by abandoning a construction project for more than 90 days; having violated Section 489.129(1)(i), Florida Statutes (Supp. 1998), by not subcontracting electrical and plumbing work in violation of Section 489.113(3), Florida Statutes (Supp. 1998); having violated Section 489.129(1)(o), Florida Statutes (Supp. 1998), by failing to obtain local building department permits and inspections; having violated Section 489.129(1)(g)2., Florida Statutes (Supp. 1998), by committing financial mismanagement in the practice of contracting because the percentage Reeves completed on the project was less than the percentage Beach paid of the total contract price; having violated Section 489.129(1)(m), Florida Statutes (Supp. 1998), by committing misconduct in the practice of contracting; and with having
violated Section 489.129(1)(i), Florida Statutes (Supp. 1998), by failing to refer to the Construction Industry Recovery Fund in writing as required by Section 489.1425(1), Florida Statutes (1997).
By executing the Election of Rights form, Reeves disputed the allegations contained in the Administrative Complaint and elected an administrative hearing before the Division of Administrative Hearings (Division). Reeves also attached a letter to the Election of Rights form and objected to the proceeding based on double jeopardy because he had been told that probable cause had not been found by the local building and zoning board and by the Department.
The case was transferred to the Division for the assignment of an Administrative Law Judge to conduct a final hearing pursuant to Section 120.57, Florida Statutes (2000).
Prior to the final hearing, Reeves filed a Motion requesting a continuance because he had not received the Department's exhibits pursuant to the Pre-Hearing Instructions. The Motion was denied by Administrative Law Judge Charles C. Adams on
March 2, 2001, because it was untimely.
The final hearing convened on March 5, 2001, and Reeves orally requested a continuance because he did not timely receive the Department's exhibits and, as a result, did not have an adequate opportunity to prepare for the hearing. Reeves also
objected to the proceeding because he had been placed in double jeopardy as noted above and that he was unaware probable cause had been found. After hearing argument, Reeves' November 13, 2000, letter, attached to the Election of Rights form was treated as a motion to dismiss and ruling was deferred pending the filing of a response by the Department, which was filed on May 21, 2001. Reeves' motion is denied. See Finding of Fact 46. A continuance was granted for good cause shown and the final hearing re- scheduled for March 30, 2001.
During the final hearing, the Department offered the testimony of five (5) witnesses, two (2) by earlier deposition, Brian Will (Will) (expert) and Greg Mathis (Mathis) (plumber), and at the final hearing, Harriet E. Beach (Beach) (the complainant/trailer owner), John L. Summerhill (electrician), and Robert J. Pietras (construction worker). The Department introduced fourteen (14) exhibits, which were admitted into evidence.
Reeves offered the testimony of six (6) witnesses, Tilton H. "Speedy" Edwards (Edwards) (Plumber/Electrician), Shirley Walker (Walker) (character witness), Les Smith (Department Investigator), Robin Arthur Brinkley (former building inspector for the City of Apalachicola), and Jerald Thomas Wilson (Department Investigator). Reeves offered seven (7) exhibits, including the late-filed deposition transcript of James E.
Pendleton, Jr. (Pendleton) (worker), which were admitted into evidence.
During the final hearing, official recognition was taken of Chapters 120, 455, and 489, Florida Statutes, and Rules 61G1 through 61G4, Florida Administrative Code.
Three (3) volumes of Transcript of the final hearing were filed with the Division on May 11, 2001, and the parties filed Proposed Recommended Orders, which have been considered in the preparation of this Recommended Order.
Based on the evidence and testimony of the witnesses presented and the entire record in this proceeding, the following facts are found:
Reeves is a Florida State certified general contractor, having been issued license number CG C033931 by the Florida Construction Industry Licensing Board (CILB). Licensure status is "Active Issued."
Reeves is registered or certified with the CILB as an individual.
The Scope of the Project
Sometime prior to October 1998, Beach retired, came to Florida, and needed a place to live, so she decided to ultimately reside in a trailer. Beach has health problems, which require special living accommodations and changes to the trailer she
purchased, including ramps and a bathroom to facilitate the needs of a handicapped person.
Beach was unfamiliar with trailer life and wanted to ensure that her trailer was "fastened securely to the ground." Based on suggestions made by three (3) different contractors, Beach decided to design a "roof over coming out eight feet on either side of the existing trailer and tying it to the ground securely so that the trailer was then encased in the roofing over." Beach developed the plans for the project, which were approved by the local planning and zoning department.
After discussing the matter with Reeves, Beach also decided to have porches on both sides of the trailer, "taking advantage of the overhang that the roofing-over afforded." Beach and Reeves discussed other details, such as the need for a walk- in closet off of the bedroom, a whirlpool tub, replacement of the upper kitchen cupboards, improvement of the duct work in the kitchen and living areas, screening of the front porch and windows on the back porch (a sun room), enlargement of the bathroom and made "handicap-accessible," and replacement of the doors and ramps.
The Written Proposal and "Extras"
On or about November 2, 1998, Reeves entered into a written contractual agreement, i.e., the "Proposal" dated October 26, 1998, with Beach, to construct addition(s) and other
items to her trailer-home located at 2170 Maryland Street, Lanark Village, Florida.
The written Proposal states in material part:
We will supply all labor and materials to complete the following at your residence:
Build a new freestanding roof over existing trailer and extend roofline to cover front and back porches.
Build a new front porch with approximately an 8' x 24' screen section and ramp on opposite end.
Rebuild back porch to 8' x 24' and install windows.
Enlarge bathroom and make a walk-in closet.
Inspect and improve existing duct work for better air flow.
Enclose gable ends of new roof and tie in to existing trailer.
Install new upper cabinets in kitchen (allowance $500.00).
WE WILL PERFORM THIS WORK FOR THE SUM OF
$20,900.00)
(TWENTY THOUSAND NINE HUNDRED DOLLARS).
Beach agreed to make payments "as work progresses." The original contract price for the additions to the trailer was $20,900.00.
The Proposal contained no language of access to the Construction Industry Licensing Fund. At the time of executing the Proposal, Reeves told Beach that a subcontractor was not necessary for the electrical and plumbing work.
Reeves and Beach also discussed several "extras" which were added to the Proposal. Beach and Reeves made a verbal agreement for additions or extras to the original Proposal that included siding ($2,700.00), a fireplace, and an extension of one of the ramps, in exchange for not replacing the cabinets. These changes increased the total contract price to $24,200.00, which was paid by Beach. See Finding of Fact 33.
Also in November 1998, and before she signed the Proposal, Beach prepared a list, in her handwriting, of plumbing and kitchen items she saw at Home Depot, which she needed for the job and she gave the list to Reeves. According to Beach, Reeves "followed through and got everything [on the list] except for the shower door."
Reeves applied with the Franklin County Building and Zoning Department for permits to perform the work on the Beach trailer and the permits were issued.
The Franklin County Building Code requires inspections, but does not state when they are to be performed. It is not unusual to perform more than one inspection at a time, especially where, like Franklin County, there is only one inspector for the entire County. Reeves did not ask for an inspection of the work done on the trailer.
Work begins on the trailer and problems arise
After the Proposal was signed and the verbal additional items agreed to, on November 4, 1998, Reeves commenced work on the project. At this time, Beach was living in a motor home.
The roof line built by Reeves covered the back and front porches. Reeves built a new front porch with an approximately an eight foot by twenty-four foot screen porch and a ramp on the opposite end as required by the Proposal.
He also added three other ramps, which are not mentioned in the Proposal. By letter dated April 15, 1999, Beach responded to an invoice submitted to her by Reeves. The record does not contain a copy of the invoice, which seems to have been dated March 31, 1999. However, Beach's letter indicates that Reeves submitted a bill for an additional $4,240.00 (which did not include $2,700.00 for siding), above the original Proposal price of $20,900.00. Beach says that only $975.00 are valid charges for "verbally agreed upon additions to the contract." (Beach says that she paid Reeves $600.00 for the extras which was included in her check of December 16, 1998, for $5,000.00.) Reeves' invoice was the first bill for any extras discussed by Beach and Reeves. According to Beach, they discussed the necessity of having additional ramps, and Reeves did not say there would be an additional charge, and it was discussed "as if it was part of the ongoing project."
According to Beach, work progressed through November and slowed during Thanksgiving week. Into December, Beach says that Reeves came to the work site "less and less" and the workmen did not have either the necessary materials or equipment and also came "less and less." She tried to contact Reeves.
According to Pendleton, who worked for Reeves on the Beach project, for the first three weeks to a month after commencing the project, Reeves was on-site every day. According to Pendleton, the job took longer than expected because of the many changes requested by Beach. For example, after the trailer was "roofed," Beach "wanted her outside ceiling closed into her trailer." They added "a furnace on the back porch," "put marble sills in her window of her trailer," and "furred out her whole wall to put paneling on the trailer." The original plans called for one ramp, but three were added.
As work progressed, Beach expressed objections to Reeves regarding the workmanship on the screened-in porch and floorboards and the need to eliminate bugs from entry. They also discussed the build-up of heat in the roof because the roof was "trapping hot air in." Reeves treated the roof area, an extra, which Beach acknowledges.
Beach reported other problems to Reeves, including but not limited to, a leak in the shower and an unsealed drain in the shower, which caused a flood in the bathroom, and "a two-foot
hole cut in the floor around the plumbing that was left open to the outside." This was on the punch list she gave to Reeves.
She pled with Reeves to finish the job, but he said that "[t]his w[ould] be the last day [he would] be coming" and that "he had other things he had to do."
According to Beach, "things deteriorated," and she saw very little of Reeves into January and did not see much of him at all by the end of January. Beach was frightened and did not know what to do but "struggled along with [Reeves'] workmen," i.e.,
Richard Norman (Norman) and Pendleton, the main workmen, who did the plumbing for the shower.
When Reeves was no longer on-site daily or all day, Norman and Pendleton were on-site. Another worker, Bob Lanceford quit because of the changes requested by Beach and her "flip- flopping."
At some point in time after the trailer roof-over was completed and other work performed, including work on the back porch, Reeves and Beach discussed the punch lists written by both and that he had given the list to his workmen. Beach recalls the conversation and that Reeves said it was going to be his last day there. Beach recalls Norman staying to finish the skirting and Jody Fechera putting the siding on the inside of the sun porch, but that "the guys really didn't work on [the punch list] that
much." Beach felt that she had to supervise Pendleton regarding hooking up the shower during this two-week period.
Pendleton says that he and the others were working off of the list Reeves gave him during the last couple of weeks he was on the Beach job. Pendleton could not get the work done on the list because Beach "stood over [them] telling [them] to do other things and [they] never could get to that list." The list included adding hurricane clips and exterior work. None of these tasks were completed. Pendleton recalls Reeves telling him that he and "Rich" would have to leave the Beach site in a couple of days and to make Beach happy because they could not return until Edwards returned. Pendleton understood that they were to return to the Beach site and finish the job after Edwards finished the plumbing and electrical work.
There is a dispute whether, during a two-week period after the punch lists were written, Beach was supervising Reeves' workmen including Pendleton.
In or around the end of February 1999, Reeves advised Beach of problems he was having with the bathtub and needed Edwards "to do it." Reeves also needed Edwards, licensed to do plumbing and electrical work, to move the electrical panel box, which was accomplished. According to Beach, this was the first time Reeves advised Beach that he could not do plumbing or electrical work. Beach says that Reeves told her on the day they
signed the Proposal that he would not have to subcontract for any of the plumbing and electrical work. Reeves admitted to doing plumbing and electrical work on this and other projects, although both of these types of work require specific licenses. Reeves recommended to Beach that Edwards perform these tasks. According to Pendleton, Edwards was "to come over and do all of the plumbing and wiring."
It took Edwards quite a while to get to the Beach project. Edwards "pulled the permit for the electrical unit." He "made the old panel hot." He installed the breaker box and connected it to Beach's trailer. Edwards fixed the shower head and the drain plug, which was a major leak. He also fixed the plumbing. Edwards fixed some other problems he noticed, but he did not know whether these problems pre-dated Reeves' tenure on the project.
In October 1998 and prior to Reeves' commencing work on the Proposal, Beach had a man drilling a well on her property.
In February or March of 1999, Beach "got the idea of moving the tank back . . .." Edwards came to the Beach trailer on March 10, 1999, and installed the electrical panel and moved the tank at the same time. It took Edwards a few weeks to accomplish these tasks from the time Reeves and Beach discussed these items.
Beach paid Edwards to move the electrical panel to the end of the house and move the water tank and installing it under
the carport and some electrical and plumbing repairs. Beach paid Edwards $1,580.00, of which $700.00 of the bill, according to Beach, was for correcting plumbing and electrical errors made by Reeves or his workmen.
In early March 1999, Ron Jackson (Jackson) advised Beach that Reeves had "run up a $9,435[.00] bill" at Ace Hardware in her name which remained unpaid and that a lien would be filed on her house. At this time, Beach filed a complaint with the local building department and hired an attorney to assist her with the lien. Apparently the lien was not timely filed and not successfully pursued. Beach also filed a complaint with the Department. Beach was unaware of any amount still owed on her job to others, which Reeves performed and did not pay.
By letter dated March 30, 1999, Reeves apologized to Beach for not paying Jackson timely and told Beach he intended to pay Jackson, whether Beach paid him or not.
On March 17, and April 21, 1999, a hearing was held before the Franklin County Construction Industry Licensing Board. This Board issued a verbal warning to Reeves "for operating outside his scope of work in the field of electrical and plumbing." Reeves advised the Board that he would not "do any electrical or plumbing until he is licensed to do the work or he will hire license[d] people."
On April 7, 1999, Beach, having been living in a motor home during this time, decided to live in the trailer and discovered the flooding problems in the bathroom; everything in the kitchen leaked; and the commode was unsteady and leaked. Reeves returned to "stabilize it," but apparently Beach had to pay Edwards to repair the leaks in the bathroom.
At some time after March, Reeves ceased performing on the project altogether. The project was not complete.
Beach pays Reeves
By check, Beach paid Reeves $4,000.00 on November 11, 1998, to get started; $10,000.00 on November 12, 1998; $2,500.00 on November 20, 1998; $5,000.00 (which included an estimated cost of $600.00 for extras according to Beach) on December 16, 1998; and $2,700.00 (for siding which was an agreed-upon extra) on January 28, 1999, for a total of $24,200.00. Beach had to estimate how much the extra work performed would cost based on the verbal price given by Reeves. The January check was the price for constructing a new one-sided exterior portion, along with the insulation, of the trailer.
Beach paid out-of-pocket expenses on repairs and estimates for work which arguably should have been done pursuant to the Proposal and agreed-upon extras. These total approximately $2,560.29. See (Pet. Exh. 5- $990.29; Pet. Exh. 7-
$120.00; Pet. Exh. 8- $750.00; and, Pet. Exh. 13- $700.00).
Beach also paid for other estimates and repairs as noted herein which were not proven to be directly connected to work performed or not performed by Reeves. See, e.g., Findings of Fact 37-38.
Problems identified with the condition of the trailer
During the final hearing, Beach identified several photographs, she took over a period of time-April through June, 1999-of her trailer from the inside and outside and identified various problems with the workmanship performed or not performed by Reeves. According to Beach, the photographs show the trailer "after Mr. Reeves finished the project, or Mr. Reeves worked on the house." These problems included an outside electrical switch installed with wires exposed; exposed receptacle outlet; unfinished bathroom trim, which was minor according to Beach; fan cover left hanging on the kitchen ceiling; exposed hole around light fixture in the closet, which Norman could not repair; a fan hanging down in the bathroom, with hole cut too large; water running out from the shower because of an improper drain installation; unsealed shower drain; shower door leak-not caulked; no cutoff valve on the toilet; unsteady commode; no insulation and unprotected plumbing coming up through a hole where the bath tub is located; marble skirt to whirlpool tub destroyed by Edwards' men who had to cut through the marble in order to access the tub; panel to tub which is open and allows air and bugs to enter; tub motor not plugged into a ground fault
receptacle; drywall in the bedroom closet, which was new construction, which had to be torn out to repair; wet carpeting which had to be removed; leak in the shower caused by brass plug in plastic line; support posts under the roof not nailed and without hurricane clips (photographs taken in August 1999 after Summerhill and some of the neighbors told her there were no nails on that side of the house holding the roof down); and exposed rafters which allowed squirrels to run down the chimney.
Beach asked Greg Mathis, a licensed (City of Tallahassee) plumber, to determine the extent of repairs which were required on her trailer. On or about November 18, 1999, Mathis examined the plumbing in the Beach trailer and gave Beach an estimate for the repairs and charged $135.00 for the estimate, which included his travel time to the Beach trailer in Carrabelle. Mathis charged Beach $670.00 for the repairs including $445.00 for labor and $225.00 for materials. The repairs included applying putty and installing a Delta repair kit on a new faucet in the kitchen; repair of a "fairly new drain" which was leaking in the lavatory; resetting of the toilet which was wobbling and application of caulk; replacement of the whirlpool stopper; repairing the "whole tub waste"; and connection of a drain to a bar sink, which had hot and cold water to it. Mathis also gave Beach an estimate of $185.29 to repair
the shower drain and valve. Mathis was unaware who did the plumbing he saw.
Brian Will has a State certified building license.
Beach asked him to inspect her trailer and give her an estimate of the costs for repair. Will performed a site visit to Beach's trailer on November 22, 1999, and charged Beach $175.00, after a
$175.00 Christmas discount, for the inspection and written report dated December 16, 1999. After inspecting the trailer, Will identified problems with the trailer, including a recommendation that Beach secure an engineering report on the foundation, roof framing and uplift connections; installation of a "properly ducted and vented (range termination kit) range hood" in the kitchen; insulate ceiling; improvement to the fireplace clearance; increase vent attic space; and other items. The fireplace issue and "wind loading connection" could be life safety issues. The estimated cost was $9,375.00, although Will stated he is "seldom the low bid guy."
Will did not review the Proposal nor the plans and specifications. Will did not know what Reeves and his workmen did or did not do on the Beach trailer. He made no assumptions as to who did any of the work on the trailer. Beach told him that someone added some additional hurricane clips and installed a gable vent or fan. She did not comment to him whether Reeves finished the job. Will identified portions of the trailer that
did not appear to him to be finished and that did not meet the building code.
Robert J. Pietras, while not a licensed contractor, is a self-employed laborer and has experience in construction, "everything from footers on up to trim carpentry." In or around September 1999, Beach asked him to inspect the trailer and determine what was necessary to make the trailer stronger for hurricane resistance. He found eleven (11) hurricane clips missing and a support post holding up a carrying beam that was not nailed. Some hurricane clips had been placed and set right on the rafters, but the job was incomplete. There were no uplift straps on any of the exterior beams. However, he felt he needed to remove the paneling on the back porch to add the clips from the inside. Pietras could not say whether there were hurricane clips on the outside soffitt. He made the changes.
Pietras was also told, by John Summerhill, there was insufficient ventilation in the attic or roof-over, so he added a commercial louver and also framed up to add a fan to draw excess heat. Pietras agreed that if the new enclosed roof-over, constructed by Reeves, had not been enclosed, there would not have been any ventilation problem. He was paid $30.00 for adding the hurricane clips and the tie-down straps. He was not paid approximately $90.00 for work done. Any additional work he recommended was put on hold.
Summerhill has air conditioning and electrical licenses and has been in business in Franklin County since 1991. Beach asked him to inspect her trailer and identify electrical problems in or around September 1999. Summerhill did not see the Beach/Reeves Proposal and was unaware of the scope of Reeves' work, including what Reeves did or did not do regarding any electrical problems perceived by Summerhill. However, Beach told him that Reeves did all of the electrical and plumbing.
He noticed the absence of hurricane clips on the outside and that a four-by-four post on the south corner did not have nails in the top. He charged Beach $150.00 to install an exhaust in the attic for ventilation which Beach paid. Summerhill also noticed other problems with, for example, waterproof covers needed for the receptacle and switch on the porch, need for ground fault receptacles, and other items. He quoted $600.00 for labor and materials to make these repairs and replace needed items.
Summary of work left undone and repairs needed
The Department proved by clear and convincing evidence that Beach and Reeves agreed to the terms of the Proposal and several extras; that Beach paid Reeves $24,200.00, which exceeded the amount originally quoted in the Proposal, i.e., $20,900.00, and included payment for extras, including $2,700.00 for siding and $600.00/$5,000.00 for other extras; that the workmanship
performed by Reeves, and others on his behalf, was incomplete and in some cases poorly done which required repairs by others; that Beach paid for repairs; that Reeves left the project with work outstanding; that Reeves, and or his workmen, performed electrical and plumbing services while not being licensed; and that Reeves did not refer to the Construction Industry Recovery Fund in the written Proposal.
The Department also proved by clear and convincing evidence that the Beach trailer is in need of substantial repairs and further inspections. See, e.g., Findings of Fact 37-38. However, and in particular, Will, who performed a major inspection of the trailer, did not review the Proposal or the plans and specifications and did not know what Reeves and his workmen did nor did not do on the Beach trailer. Therefore, the Department did not prove by clear and convincing evidence that Reeves was responsible for the repairs suggested by Will.
Mitigation
Reeves has built several State Housing Initiative Partnership (SHIP) homes for the SHIP program in Franklin County to the satisfaction of the County's SHIP administrator,
Ms. Shirley Walker. Ms. Walker was not aware of any complaints with Reeves' work over the past four (4) years.
Probable Cause is found by the CILB
On September 27, 2000, a two-member panel of the CILB found probable cause against Reeves. There was no finding of "no probable cause" by the CILB regarding the Reeves and Beach matter which is the subject of this proceeding.
Reeves' prior disciplinary history
Reeves has a prior disciplinary history with the CILB and the Department regarding his license. On October 8, 1992, in Case No. 91-11103, the CILB imposed an administrative fine of
$1,700.00. On October 24, 1996, the CILB, in Case No. 95-07490, imposed an administrative fine of $2,000.00, restitution of
$28,501.39 based on an unsatisfied civil judgment, $119.53 in costs, and two (2) years of probation. Both cases were resolved without a final evidentiary hearing.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding, pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2000).
The Department is the state agency charged with regulating the practice of contracting pursuant to Section 20.165 and Chapters 455 and 489, Florida Statutes (2000).
Pursuant to Section 489.129, Florida Statutes (2000), the CILB is empowered to revoke, suspend, or otherwise discipline
the license of a contractor who is found guilty of any of the grounds enumerated in Section 489.129(1), Florida Statutes (2000).
The Department has the burden of proving by clear and convincing evidence the allegations against Reeves. Section 120.57(1)(h), Florida Statutes; Ferris v. Turlington, 510 So. 2d
292 (Fla. 1987); Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996). The court, in Evans Packing Co. v. Department of Agriculture and Consumer Services,
550 So. 2d 112, 116, n. 5 (Fla. 1st DCA 1989), provides the following guidance regarding the clear and convincing evidence standard:
That standard has been described as follows: [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief of [sic] conviction, without hesitancy, as to the truth of the allegations sought to be established. Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).
The Administrative Complaint alleges that Reeves violated Section 489.129(1)(g)2., and (1)(i)(by violating Sections 489.113(3) and 489.1425(1), Florida Statutes (Supp.
1998)), and (1)(j), (1)(m), and (1)(o), Florida Statutes (Supp. 1998), which provide, in pertinent part, as follows:
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, registration, or certificate of authority, require financial restitution to a consumer for financial harm directly related to a violation of a provision of this part, impose an administrative fine not to exceed $5,000 per violation, require continuing education, or assess costs associated with investigation and prosecution, if the contractor . . . is found guilty of any of the following acts:
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(g) Committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Financial mismanagement or misconduct occurs when:
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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;
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Failing in any material respect to comply with the provisions of this part or violating a rule or lawful order of the board.
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Abandoning a construction project in which a 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 the work with just cause for 90 consecutive days.
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(m) Committing incompetency or misconduct in the practice of contracting.
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(o) Proceeding on any job without obtaining applicable local building permits and inspections.
The Department has proven by clear and convincing evidence that Reeves violated Section 489.129(1)(g)2., Florida Statutes (Supp. 1998), by committing mismanagement in the practice of contracting that caused financial harm to Beach. Reeves received payment from Beach for the full contract price, including the extras, while leaving additional work and repairs to be done. Reeves has not refunded any money to Beach. Nevertheless, there is an unresolved dispute in this case as to whether Beach owes Reeves any money even if deductions are made for money owed Beach for repairs made or which may be made in the future to the trailer. See Finding of Fact 14.
The Department has proven by clear and convincing evidence that Reeves violated Section 489.129(1)(j), Florida Statutes (Supp. 1998), by abandoning the construction project in which Reeves was engaged and under contract as a contractor. Reeves ceased work on the project sometime in March or April 1999, and no work was done thereafter by Reeves, except for the repairs that Beach contracted for herself. Reeves failed to provide any specific reason for termination, and had no proper
cause to discontinue work on the project, although there is credible evidence which suggests that Beach, to some degree, may have impeded the work of Pendleton and other workmen.
The Department has not proven by clear and convincing evidence that Reeves violated Section 489.129(1)(m), Florida Statutes (Supp. 1998), by committing misconduct and incompetency in contracting. Some of the work performed by Reeves was less than ideal and in need of re-doing by himself and others for which Beach should be compensated. But, the evidence is not clear and convincing that he is guilty of misconduct and incompetency in contracting.
The Department has proven by clear and convincing evidence that Reeves violated Section 489.129(1)(i), Florida Statutes (Supp. 1998), by failing in a material respect to comply with two (2) provisions of this part. Reeves failed to provide in the contract (the Proposal) a written statement explaining Beach's rights under the Construction Industry Recovery Fund where the value of the contract was over $2,500 as required by Section 489.1425(1), Florida Statutes (1997).
Reeves also admitted: "I have been doing plumbing and electrical work on my houses since coming here seven years ago." Reeves or his workmen originally attempted plumbing and electrical work on this project before trying to get help on the plumbing and electrical work. Reeves violated Section
489.113(3), Florida Statutes (Supp. 1998), by failing to timely subcontract such work to licensed workers in those two disciplines.
The Department has proven by clear and convincing evidence that Reeves violated Section 489.129(1)(o), Florida Statutes (Supp. 1998), by proceeding on the job without obtaining applicable local building department inspections. Reeves did not call for an inspection of the work by local officials. The Department did not prove that Reeves did not obtain the necessary permits for the project.
Reeves is subject to disciplinary action by the Construction Industry Licensing Board pursuant to Section 489.129(1)(g)2., (1)(i), (1)(j), and (1)(o), Florida Statutes (Supp. 1998), as alleged in the Administrative Complaint.
Section 455.2273(5), Florida Statutes (2000), states, the administrative law judge, in recommending penalties in any recommended order, must follow the penalty guidelines established by the CILB or Department and must state in writing the mitigating or aggravating circumstances upon which the recommended penalty is based.
Rule 61G4-17.001, Florida Administrative Code, provides, in pertinent part, the following guidelines that are pertinent to this proceeding:
The following guidelines shall be used in disciplinary cases, absent aggravating or mitigating circumstances and subject to the other provisions of this Chapter.
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(8) 489.129[(1)(g)2.]: Mismanagement or misconduct causing financial harm to the customer. First violation $750 to $1,500 fine and/or probation; repeat violation,
$1,500 to $5,000 fine and suspension or revocation.
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(10)(j) 489.1425: Failure to notify residential property owner of recovery fund. First violation, $100 to $500 fine; repeat violation, $1000 fine.
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(10)(b) 489.117, 489.113: Contracting beyond scope of practice allowed by license, no safety hazard, First violation $500 fine, repeat violation, $500 to $2,500 fine and suspension or revocation.
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(11) 489.129(1)[(j)]: Abandonment. First violation, $500 to $2,000 fine; repeat violation, revocation and $5,000 fine.
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(16) 489.129(1)[(o)]: Proceeding on any job without obtaining applicable local building department permits and/or inspections. . . .
(b) Failure to obtain inspections. Repeat violation, $500 to $2,500 fine and suspension or revocation.
Rule 61G4-17.002, Florida Administrative Code, provides for "aggravating and mitigating circumstances" and states:
Circumstances which may be considered for the purpose 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 be 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 upon the licensee's livelihood.
Any efforts at rehabilitation.
Any other mitigating or aggravating circumstances.
The Department has demonstrated by clear and convincing evidence the aggravating factors established in Rule 61G4-17.002 (1), (3), (5), (6), (8), and (9), Florida Administrative Code. Reeves was hired to construct an addition and other extras for Beach at an agreed-upon price of approximately $24,200.00. After roughly six (6) months, the project was not completed and Beach
had spent in excess of $26,000.00 on the project, but still incomplete. It is difficult on this record to determine the precise percentage of work completed by Reeves. However, it appears that the project was ninety (90) percent complete in or around March/April of 1999 which is calculated by dividing the amount due Beach, $2,590.29, Finding of Fact 34, by the appropriate contract price, $24,200.00, Findings of Fact 8
and 33. Compare with Administrative Complaint, paragraph 20, page 4. Reeves never refunded any of Beach’s money and the action or inaction of Reeves has caused Beach financial damage in addition to the inconvenience and hardship associated with having to live in the trailer which created some adverse sanitary and health conditions. Based on this record, Beach has suffered a quantifiable financial loss arising out of her contractual relationship with Reeves.
Reeves has been disciplined on two (2) prior occasions.
In mitigation, Reeves has performed acceptable contracting work for the SHIP program for at least the past four (4) years and no problems with workmanship have been reported according to Ms. Walker.
Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be rendered as follows:
DONE AND ENTERED this 13th day of June, 2001, in Tallahassee, Leon County, Florida.
CHARLES A. STAMPELOS
Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 2001.
Danny L. Reeves
Kathleen O'Dowd, Executive Director Construction Industry Licensing Board Department of Business and
Hardy L. Roberts, III, General Counsel Department of Business and
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.
