10-009317PL Department Of Business And Professional Regulation, Construction Industry Licensing Board vs. Brian Vincent Burns Status: Closed Recommended Order on Tuesday, March 29, 2011.

Summary: Respondent violated Chapter 489 by abandoning a construction project when he failed to complete the work under contract and he did not include a written statement explaining the consumer's rights under the Florida Homeowners' Construction Recovery Fund.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

CONSTRUCTION INDUSTRY LICENSING )

BOARD , )

)

Petitioner, )

) Case No. 10 - 9317 PL

vs. )

)

BRIAN VINCENT BURNS , )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on

January 12, 2011 , at video teleconferencing sites in Lauderdale

Lakes and Tallahassee, Florida, before Administrative Law Judge

June C. McK inney of the Division of Administrative Hearings,

pursuant to the authority set forth in s ections 120.569 and

120.57(1), Florida Statutes.

APPEARANCES

For Petitioner: Paul Nathan Rendleman, Esquire

Assistant General Counsel

Department of Bus iness and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399

For Respondent: Brian Vincent Burns , pro se

3032 East Commercial Boulevard

Fort Lauderdale, Florida 33308

STATEMENT OF THE ISSUES

In this disciplinary proceeding, the issues are:

( 1 ) W hether Respondent committed the violations alleged in the

Administrative Complaint issued by the Petitioner; and

(2 ) W hether disciplinary penalties should be imposed on

Respondent if Pet itioner proves one or more of the violations

charged in its Administrative Complaint.

PRELIMINARY STATEMENT

On January 17, 2008 , the Department of Business and

Professional Regulation, Construction Industry Licensing Board

("Petitioner") , issued a two - cou nt Administrative Complaint

against Brian Vincent Burns (" Respondent ") , wherein it was

alleged that Respondent had violated various provisions of

c hapter 489 , Florida Statutes. Respondent timely requested a

formal hearing to contest these allegations, and the matter was

referred to the Division of Administrative Hearings on

September 27, 2010.

The presiding administrative law judge set the final

hearing for December 10, 2010 . The case was continued several

times and re - scheduled for January 12, 2011. Bo th parties

appeared at the appointed place and time.

At hearing, Petitioner presented the testimony of one

witness : Donnell Bryant. Petitioner also offered E xhibits

numbered 1 and 4 through 7 that were admitted into evidence .

Respondent testified on his own behalf . Respondent offered six

e xhibits , one which was received in evidence as a late - filed

exhibit .

The proceeding was recorded and transcribed. Only the

Petitioner filed a timely Proposed Recommended Order . On

March 21, 2011, Respondent filed a Motion requesting the

undersigned to consider his late - filed proposed recommended

order asserting that the lateness was due to the death of his

daughter. Petitioner does not oppose the undersigned

considering the late - filed Proposed Recommended Order, w hich has

been considered with Petitioner's Proposed Recommended Order in

the preparation of this Recommended Order.

FINDINGS OF FACT

1. Respondent , Brian Vincent Burns (" Burns ") , at all times

material to this matter, was a certified general contractor

s ubject to the regulatory jurisdiction of the Petitioner.

2. Burns was first licensed on October 26, 1981.

Petitioner issued Burns license number CGO 020464. Burns '

license expires on August 31, 2012.

3 . Action Restoration Inc. ("Action") , is and was , at all

times material in this matter , the company where Burns is

qualified.

4. On October 24, 2007, Brian Burns - Action Restoration

entered a Contractor Agreement ("C ontract ") with owner, Donnell

Bryant, to construct a bathroom addition at Bryant's resi dence

located at 3314 NW 23rd Court, Lauderdale Lakes, Florida 33311.

5 . Burns admitted at the hearing that t he C ontract failed

to include any written disclosure statement explaining

consu mer's rights under the Florida H omeowner's Construction

Recovery F und.

6. T he C ontract provided a draw schedule detailing the

amount of the payment and at which points during the project

payments were to be made to Action. The total contract price

was $36,000.

7. Per Bryant's Contract, Bryant paid the first draw of

$6 000.00 down at contract signing and Action started the job .

During the job, Burns followed the critical path method . The

method consisted of e ach step of the job being completed before

the next could take place because each built up on the other.

8. Acti on applied for a permit to build the bathroom

addition on the house under Burn s ' contractor's license and

became the contractor of record for the project.

9. Action began the job in November 2007 . It included

excavat ing , obtain ing the soil test, form ing up the plywood to

form the concrete, putting the rebar in, and pour ing .

10. On November 26, 2007, Bryant paid Action $7,250 as

draw two when the footing was completed.

11. The next step of the project was the block. Burns

hired three workers to pour the concrete block. On or about

December 20, 2007, Action put the truss anchors in the wet

concrete.

12. On or about December 21, 2007, Action completed the

tie beams and was paid $8000.00 for draw three of the contract.

13. At some point , Burns and Bryan t agreed to change the

trusses to make them more energy efficient and structurally

sound for windstorms. The design change delayed the job being

finished by the deadline.

14. During December 2007, there was a period when Burns

did not return Bryant's pho ne calls.

15. Bryant was very anxious for the bathroom addition

project to be completed and became angry at Burns when he

couldn't reach him. Bryant thought Burns had abandoned his job

when he didn't see Burns from around the Christmas holiday until

afte r the new year.

16. After the new year, i n January 2008, Bryant met with

Burns and a third party, Walsh. At the meeting, Bryant

determined that Walsh was the foreman for Action who oversaw the

work. Walsh never worked for Burns or Action and has never b een

paid by either. Burns had only met Walsh in 2007 and worked on

one previous project with him. Burns knew Walsh to be a mason.

17. From the meeting, Bryant understood t hat the initial

contract work had been transferred to Walsh to complete the

bathro om addition project Action had contracted for originally .

As a result, Bryant stopped paying Burns and agreed to pay Walsh

the remaining sum of $14,000.00 on the contract .

18. After the meeting, Burns continued to work on the

Bryant contract off site. He worked to get the new trusses

design approved so that the work could move forward at the

residential site. A round January 17, 2008, Burns took the new

trusses design to the truss shop professional engineers to do

the drawings. After approval, Burns took the design to the

architect, which was approved on February 1, 2008. Then, Burns

process ed the drawing though the City of Lauderdale , which

approved them o n February 18, 2008.

19. After approval by the City of Lauderdale, Burns called

Bryant several tim es , and Bryant never returned his call or

responded. Burns never returned to the Bryant residence to work

on the job because he thought a new contractor had been hired to

complete the job in Action's place. Action had only completed

50% of the job on the contract at the time . P lumbing, electric,

duct work , and stucco were left to be done for the bathroom

addition to be complete d .

20. During the period when Burns was getting the new

trusses design approved, Bryant paid Walsh $4000.00, with check

number 5 761 as a draw , on February 15, 2008. T he Contract was

amended and stated, "$Total owe $14,000 - $4000.00 2/15/08>New

Balance $10,000 " W a lsh 's signature was by the total with "pd

5761 2/15" 1

21. Burns admitted at hearing that Action was still the

contractor of record because the permit remained open for the

project in his name . Burns said, "I made an error in judgment

in not going to see to it that it was closed out."

22. Walsh continued to work on Bryant's bathroom addition

and g o t paid monies until June 2008 . As Walsh complet ed

portions of the job , Bryant paid him the following: $800 on

April 18, 2008, for the wall and tile; $3,500 on June 3, 2008,

for the construction of the bathroom; and $325 on June 9, 2008 ,

for the stucco for the bathroom. Walsh al so was paid for other

construction work beside the bathroom addition for Bryant.

23. Bryant never heard fr o m Walsh again after paying him

$325.00 with the June 9, 2008, check. He contacted him numerous

times to no avail. The job was not completed.

24. On December 30, 2008, Bryant signed a contract with

Complete Property Repair to complete the bathroom addition

Action had started. The contract amount was for $36,800. The

contract included redoing some of the previous work completed by

Action and some upgrades including a two - person Jacuzzi and

travertine rock instead of tile.

The Charges :

25. In C ount I, Petitioner charges Respondent with

abandoning a construction project in which the contractor is

engaged or under contract as a contractor in violatio n of

s ection 4 89 . 129 (1)( j ), Florida Statutes .

26. In Count II, Petitioner charges Respondent with

failing to include a written statement explaining the consumer's

right's under the Florida Homeowner s' C onstruction Recovery Fund

in the contract with Donnel l Bryant in violation of Section

4 89 . 1425 (1)(d)1.

CONCLUSIONS OF LAW

27. T he Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto pursuant to s ections 120.569 and 120.57(1),

Florida Statu tes.

28. Section 489.129(1)(j) , under which Respondent ha s been

charged in Count I , sets forth the acts for which the Petitioner

may impose discipline. This statute 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,

registration, or certificate of authority,

require financial restitution to a consumer

for financial har m directly related to a

violation of a provision of this part,

impose an administrative fine not to exceed

$10,000 per violation, require continuing

education, or assess costs associated with

investigation and prosecution, if the

contractor, financially re sponsible officer,

or business organization for which the

contractor is a primary qualifying agent, a

financially responsible officer, or a

secondary qualifying agent responsible under

s. 489.1195 is found guilty of any of the

following acts:

* * *

(j) Abandoning a construction project in

which the contractor is engaged or under

contract as a contractor. A project may be

pr esumed 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.

29. Sectio n 489.1425 , under which Respondent has been

charged in Count II, sets forth the acts for which the

Petitioner may impose discipline. This statute provides, in

pertinent part:

1) Any agreement or contract for

repair, restoration, improvement, or

construct ion to residential real property

must contain a written statement explaining

the consumer's rights under the recovery

fund, except where the value of all labor

and materials does not exceed $2,500 . . . .

30. A proceeding , such as this one, to suspend, re voke, or

impose other discipline upon a professional license is penal in

nature. State ex rel. Vining v. Fla . Real Estate Comm ' n , 281

So. 2d 487, 491 (Fla. 1973). Being penal in nature, s ection

475.25 "must be construed strictly, in favor of the one agai nst

whom the penal ty would be imposed." Munch v. Dep ' t of Prof ' l

Reg . , Div. of Real Estate , 592 So. 2d 1136, 1143 (Fla. 1st DCA

1992).

31. Here, Petitioner seeks to discipline Respondent's

license and/or to impose an administrative fine. Accordingly,

Pe titioner has the burden of proving the allegations charged in

the Administrative Complaint against the Respondent by clear and

convincing evidence. Dep ' t of Banking and Fin . Div . of Sec . and

Investor Prot . v. Osborne Stern and Co., 670 So. 2d 932, 9 33 - 34

(Fla. 1996) (citing Ferris v. Turlington , 510 So. 2d 292, 294 - 95

(Fla. 1987)); Nair v. Dep ' t of Bus . & Prof ' l Reg . , 654 So. 2d

205, 207 (Fla. 1st DCA 1995).

32. Regarding the standard of proof, in Slomowitz v.

Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 19 83), the Court of

Appeal, Fourth District, canvassed the cases to develop a

"workable definition of clear and convincing evidence" and found

that of necessity such a definition would need to contain "both

qualitative and quantitative standards." The court held that:

clear 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 testimony

must be precise and explicit and the

witnesses must be lacking confusio n as to

the facts in issue. The evidence must be of

such weight that it produces in the mind of

the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established. Id.

33. A licensee is charge d with knowing the practice act

that governs his/her license. Wallen v. Fla . Dep ' t of Prof ' l

Reg . , Div . of Real Estate, 568 So. 2d 975 (Fla. 3d DCA 1990).

34. In this case, Petitioner met its burden of

establishing that Respondent abandoned the Bryant construction

project in violation of section 489.129(1)(j). The record

demonstrates that the last work done on the project was in June

2008 2 and that the new company was hired in December 2008 , well

over 90 consecutive days. Even though Burns thought tha t a new

contractor had taken over the project, Action was the

contractor of record responsible for completing the job. Burns

should have not just relied on the word of a third person that

Bryant had retained a new company for the bathroom addition

proje ct . Additionally, Burns was aware that it was his

responsibility to transfer the permit out of Action's name if he

was no longer responsible for the project.

35. As to C ount II , t here is no dispute (for Burns

admitted at final hearing) that a violation of section 489.1425

exists in that Burns failed to include a written statement

explaining the consumer's rights under the Florida Homeowners'

construction Recovery Fund in the contract with Donnell Bryant.

Disciplinary Guidelines

36. Pursuant to Florid a Administrative Code Rule 61 G4 -

17 . 001 as amended November 2, 2006 , Petitioner established

disciplinary guidelines with a range of penalties that will be

imposed on licensees guilty of violating c hapter 489 .

Petitioner also established circumstances that can be considered

mitigating or aggravating when determining the appropriate

discipline in rule 61G4 - 17.002.

37. Petitioner concedes in its Proposed Recommended Order

that Respondent has not been previously disciplined for

violations under chapter 489 or 455 .

38. T here are numerous mitigating circumstances under rule

61G4 - 17.002 that are applicable in this matter including: no

customers were damaged, this was the only complaint ever filed

against the contractor in over 29 years, there were no jobsite

cod e violations, and no indications of gross negligence,

incompetence, misconduct, or danger to the public.

39. This case is a matter of Burns exercis ing poor

judgment in listening to a third party regarding the project

status after Bryant did not return hi s calls and Burns not

following up and r emov ing Action as the contractor of record

when he thought Action was replaced . However, Burns ' actions

were not an intentional abandonment. Even though the record is

not clear as to Walsh's total role in everythin g that occurred

relating to the project, the record does show that Bryant

thought Walsh was both responsible for completing the job and

paid him $ 8625.00 to do so, which supports Burns ' position that

he believed Action was no longer on the job.

40. T he guidelines mandate that the range of punishment

for a violation of section 489.129(1)(j), as a " First

violation, $2500 to $7,500 fine and/or probation or suspension .

. . " The guidelines further set forth the usual range of

punishment for a violation of s ection 489.1425 , as a " First

violation, $250 to $500 fine." Based on Burns ' almost three -

decade clean licens ure record and the other mitigating

circumstances listed in paragraph 38 above , the undersigned is

imposing the minimum penalties for Respondent's violations of

sections 489.129(1)(j) and 489.1425.

41. Petitioner contends that Burns should pay restitution

to Bryant in the amount of $32,675.00. However, in this matter

Petitioner has failed to prove an amount of restitution .

Petitioner only provide d hearsay evidence to show a monetary

amount owed. 3 Therefore, the record is void of enough evidence

to make a determination of restitution.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Commiss ion enter a final order

that: (a) finds R espondent guilty as charged in C ount I of the

Administrative Complaint , imposing as a fine of $2,500 , and

placing Burns' license on probation for a period of one year ;

(b) finds Responde nt guilty as charged in C oun t II of the

Administrative Complaint , impos ing a fine of $250.00 ; and (c)

not impos ing any restitution since it was not proven in this

matter at hearing .

DONE AND ENTERED this 29 th day of March, 2011 , in

Tallahassee, Leon County, Florida.

S

JUNE C. McKINNEY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Cl erk of the

Division of Administrative Hearings

this 2 9 th day of March , 20 11 .

ENDNOTE S

1 See E xhibit 4, Article 4. Such a notation with the testimony

establishes that Bryant was working with Walsh.

2 Even though Bur ns ' personal work stopped for Bryant in

February 2008, Action was still the contractor of record until

Complete Property Repairs took over. Bryant considered Walsh's

work under Action's contract. Hence, Walsh disappeared

approximately June 9, 2008, which would be when the 90 days

started.

3 The undersigned would only have been able to determine

restitution with additional non - hearsay testimony about Complete

Property Repairs' contract and the specifics about what was done

under the new contract. The r ecord shows that Action completed

at least half of the work, Walsh did additional work for which

he was paid, and Complete Property Repairs finished the project

by redoing some of Action's work and even providing upgrades in

some areas , without any monies being delineated .

COPIES FURNISHED :

Brian V. Burns

3032 East Commerical Boulevard

Fort Lauderdale, Florida 33308

Paul Nathan Rendleman, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Flori da 32303

Reginald Dixon, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

G. W. Harrell, Executive Director

D ivision of Professions

Construction Industry Lice nsing Board

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

t o this Recommended Order should be filed with the agency that

will issue the Final Order in this case.