STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, CONSTRUCTION ) INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 87-4793

)

MARTIN W. BURNSTEIN, )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in this matter was held on January 12, 1988, in Orlando, Florida before Mary Clark, Hearing Officer of the Division of Administrative Hearings.

The parties were represented as follows:

For Petitioner: Lee Sims, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Martin W. Burnstein

(representing himself)

660 Sabal Lake Drive, #206

Longwood, Florida 32779 BACKGROUND AND PROCEDURAL MATTERS

This proceeding commenced when Respondent (Burnstein) requested a formal hearing in response to DPR's amended administrative complaint filed on September 21, 1987.

An earlier administrative complaint in essentially the same form, was the subject of Division of Administrative Hearings case #87-0599. The file in that case was closed on April 30, 1987, when Petitioner filed its notice of voluntary dismissal. The complaint was dismissed because counsel for DPR, W. Douglas Beason, could not reach Burnstein to determine whether he would agree to a continuance of the hearing scheduled for April 28, 1987. (Affidavit by W. Douglas Beason, Esquire, filed 1/26/88.)

At the commencement of the hearing in the instant proceeding, Burnstein moved to dismiss the amended complaint based on "double jeopardy" as a result of the agency's dismissal of the complaint in DOAH #87-0599. The motion was taken under advisement and is denied for the reasons provided in the conclusions of law, below.

In support of the allegations of the administrative complaint, DPR presented three witnesses and twelve exhibits. All exhibits were received into evidence without objection, with the exception of exhibit #3, photographs of damage, which were received over an objection as to authenticity.

Mr. Burnstein testified in his own behalf with no additional witnesses nor exhibits. After hearing, DPR submitted proposed findings of fact which are substantially adopted in this recommended order.

ISSUES

The amended administrative complaint alleges violations of Sections 489.129(1)(c) and 489.129(1)(m), F.S., by Respondent's gross negligence, incompetence and misconduct in constructing a room addition, and for his failure to notify the board of a change in his business address.

The primary issue for determination is whether those violations were committed, and, if so, what disciplinary action should be taken.

A secondary issue, raised by Respondent's ore tenus motion to dismiss, is whether a second administrative complaint is barred by the voluntary dismissal of an earlier complaint alleging the same violations.

FINDINGS OF FACT

1. Martin W. Burnstein was at all times relevant, a licensed residential contractor in the State of Florida. His license was last renewed in June 1985 and is currently inactive.

   
   

2. In 1984, Martin Burnstein owned Bilt-Rite Construction Company, located in Orlando, Florida.

   
   

3. On November 3, 1984, the company contracted with Karen Holtyn to construct an addition to her home at 622 Alton Road, Winter Springs, Florida. The job was to include all work, including installing a built-up flat roof with a five-year "unconditional guarantee." All other work and materials were "guaranteed one year." (Petitioner's exhibit #1). The contracted price was

   $9,550.00, less $25.00 per day liquidated damages for failure to finish by a December 10, 1984 deadline.

   
   

   The contract was signed by Karen Holtyn and Robert Burnstein, Martin Burnstein's brother.

   
   

4. The building permit application was made by Robert Burnstein, with a note from Martin Burnstein, dated 11/5/84, on Bilt-Rite Construction Co. letterhead:

   
   

   Please allow this letter for Robert Burnstein to obtain the necessary building permit located at

   622 Alton Rd., Winter Springs, Fla.

   
   

   Sincerely,

   Martin W. Burnstein (Petitioner's exhibit #5)

   The Building Permit was issued on November 6, 1984, in the name of Martin

   W. Burnstein - Bilt-Rite, State license #RR0029286.

   
   

5. The job was completed slightly behind schedule, and Robert Burnstein noted on the contract on 12/19/84, that the $9550.00 full price was adjusted to

   $9,340.00 for "late charges and damages." He also gave Karen Holtyn a notarized, typewritten statement authorizing her to withhold $500.00 "... for repair of ceiling which has not been properly done..."; guaranteeing that flashing was placed on the chimney to prevent leaks; and guaranteeing to rebuild the patio slab and pay for any damages in the event of flooding caused by the slab. (Petitioner's Exhibit 10)

   
   

6. After the first rain and each rain thereafter, flooding did occur, through the ceiling fan in the addition. Water poured through the ceiling and Ms. Holtyn used large containers to catch the water. Still, the interior was severely damaged.

   
   

7. Ms. Holtyn attempted to reach Bilt-Rite, but was unsuccessful. She contacted Robert Rader, the City of Winter Springs Building Inspector on January 15, 1985. He visited the site and confirmed the damage and the fact that a drainpipe had been installed through the roof. The building department then began attempting to contact Bilt-Rite, without success.

   
   

8. The subcontractor who installed the roof came back and put more tar on, to no avail. In June 1985, Ms. Holtyn had the entire addition roof replaced by another company, for $575.00.

   
   

9. Throughout her problems with leaking, Ms. Holtyn was unable to reach anyone with Bilt-Rite Construction. Their phone was disconnected and certified mail could not be delivered. No forwarding address was left.

   
   

10. At the hearing, Martin Burnstein testified to the following:

    
    

    1. He was the owner of Bilt-Rite and was fully aware of the Holtyn contract.

    2. This was the last job by the company before it went out of business in

       November 1984.

    3. He had a lot of problems at the time and left the job up to his brother, who was

       not a licensed contractor. He (Martin) never inspected the work and he authorized his brother to enter in the contract after he was assured that good subcontractors had been selected.

    4. He did not inform DPR or the Board of an address change, but told his brother to

       handle this.

    5. He admitted the job was botched, and apologized to Ms. Holtyn, but blamed the subcontractors and insisted that neither Bilt-Right, nor he, could do anything as they were "out of business."

    6. He admitted that because his name was on the building permit he would, under other circumstances, be responsible.

       CONCLUSIONS OF LAW

       
       

11. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this proceeding, pursuant to Section 120.57(1),

    F.S. and Section 455.225(4), F.5.

    
    

12. Respondent has cited no authority for his claim that the amended administrative complaint constitutes "double jeopardy." While "penal in nature," administrative proceedings are not criminal actions in which a principle such as double jeopardy would attach. 1/ Respondent failed to allege any prejudice, unfairness or undue costs incurred through his subjection to a second administrative complaint. For those reasons his motion to dismiss is denied.

    
    

13. Rule 21E-15.007, F.A.C. requires that registered contractors notify the department within 30 days of any change in name or address or affiliation with a business organization. Respondent admittedly violated that rule and thereby violated subsections 455.227(1)(b) and 489.129(1)(c), F.S., as alleged in the amended administrative complaint.

    
    

14. The agency affirmatively proved and Respondent also admitted the essential elements of Section 489.129(1)(m), F.S., which provides for disciplinary action:

... Upon proof that the licensee is guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.

As contractor, Martin Burnstein was responsible for overseeing the entire Holtyn job and insuring that the subcontractors properly performed. See Section 489.105(3) F.S. His failure to fulfill that responsibility was at least negligent and more likely deceitful, in view of his admission that he was effectively out of the picture by the time the Holtyn contract was signed.

Burnstein's cavalier denial of responsibility based on Bilt-Rite's "going out of business" only serves to make the violation more egregious. It evinces an utter misconception of the responsibility of a professional license holder to the public he serves.

RECOMMENDATION

Based on the foregoing, it is recommended that the Board enter a final order revoking the registration of Martin Burnstein.

DONE and RECOMMENDED this 25th day of February, 1988, in Tallahassee, Florida.

MARY CLARK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 1988.

ENDNOTE

1/ Even in a criminal case, the general rule is that jeopardy does not attach until a jury has been impaneled, or (in a non-jury trial) until the court begins to hear the evidence. 14 AM JUR 2d Criminal Law Section 294(1979).

COPIES FURNISHED:

Lee Sims, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Martin W. Burnstein

660 Sabal Lake Drive, #206

Longwood, Florida 32779

Fred Seely, Executive Director Construction Industry Licensing

Board

Department of Professional Regulation Post Office Box 2

Jacksonville, Florida 32201

William O'Neil, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 87-004793

Orders for Case No: 87-004793