STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, ) CONSTRUCTION INDUSTRY LICENSING ) BOARD, )

)

Petitioner, )

)

vs. ) Case No. 98-1529

)

EARL GENE BURKS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on January 29, 1999, by video teleconference with the parties appearing at Fort Lauderdale, Florida, before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Seymour Stern, Esquire

Department of Business and Professional Regulation

401 Northwest Second Avenue, Suite N-607 Miami, Florida 33128

and

Diane Snell Perera, Esquire Department of Business and

Professional Regulation

401 Northwest Second Avenue, Suite N-607 Miami, Florida 33128

For Respondent: Earl Gene Burks, pro se

15550 Southwest 152nd Avenue Miami, Florida 33187

STATEMENT OF THE ISSUE

Whether the Respondent, Earl Gene Burks, committed the violations alleged in the Amended Administrative Complaint and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

This case began on February 18, 1998, when the Department of Business and Professional Regulation (Department) filed an Administrative Complaint against the Respondent. This complaint alleged Respondent had abandoned a construction project and identified the customer as Alberto T. Fernandez. Respondent denied the allegations and timely requested an administrative hearing to contest the matter. The case was forwarded to the Division of Administrative Hearings for formal proceedings on March 30, 1998.

Thereafter, Petitioner sought and was granted leave to amend the Administrative Complaint. Such amended complaint, filed on October 13, 1998, alleged that the Respondent had committed four violations of Chapter 489, Florida Statutes. All of the allegations stemmed from the work to be performed for

Alberto Fernandez. Petitioner claimed Respondent had abandoned the project in violation of Section 489.129(1)(k), Florida Statutes; had committed mismanagement or misconduct in the practice of contracting, causing financial harm to a customer in violation of Section 489.129(1)(h)(2), Florida Statutes; had failed to satisfy within a reasonable time the terms of a civil

judgment related to the licensee's profession in violation of Section 489.129(1)(r), Florida Statutes; and had committed incompetency or misconduct in the practice of contracting in violation of Section 489.129(1)(n), Florida Statutes.

At the hearing, Petitioner presented testimony from Alberto Fernandez and Sheila Davis. Petitioner's Exhibits numbered 1, 8, 11, 12, 13, 15, 16, 17, 18, 19, and 20 were

admitted into evidence. Respondent testified in his own behalf.

The Transcript of the proceeding was filed with the Division of Administrative Hearings on February 24, 1999. The parties were granted ten days from such date to file a proposed recommended order. The Petitioner has done so, and its proposed order has been considered in the preparation of this order.

FINDINGS OF FACT

1. The Petitioner is the state agency charged with the responsibility of regulating construction industry licensees. Such authority includes, but is not limited to, the discipline of certified general contractors.

2. At all times material to the allegations of this matter, Respondent was a certified general contractor in the State of Florida, license number CG C047384.

3. According to the Department's records, and at all times material to the allegations of this matter, Respondent was the qualifying agent for ANAC Services, Inc.

4. On or about September 16, 1996, Respondent prepared and

   executed a proposal for work to be performed by ANAC Services, Inc., for a residential property owned by Alberto Fernandez. The proposal described the project and specified a payment plan for the owner.

5. Although not written on the proposal, Respondent represented to Mr. Fernandez that the work would take two or three weeks (Mr. Fernandez hoped the work would be completed by his son's birthday, October 31). Additional time was needed to complete plans and obtain the proper permit. Based upon Respondent's representations, Mr. Fernandez presumed work would begin in October 1996.

6. Based upon the representations, the terms of the proposal, and in full accordance with the payment plan,

   Mr. Fernandez paid Respondent an initial deposit in the amount of

   
   

   $2500.

   
   

7. Respondent did not timely begin work on the Fernandez project. After complaints from Mr. Fernandez, Respondent finally went to the home in early November 1996 and represented he was prepared to begin the project. The work was never performed.

8. Instead, Respondent decided he would not perform the work as he did not believe he and Mr. Fernandez would be able to get along. Mr. Fernandez sought to hold Respondent to the contract terms. Respondent never went back to perform the work.

9. Eventually Mr. Fernandez sued the Respondent for the return of the $2500. In his defense Respondent claimed he had

   incurred expenses for plans and for the building permit.

   
   

10. When the matter finally went to trial Mr. Fernandez received a final judgment for damages in the amount of $1,054 plus interest. This final judgment was entered on November 18, 1997.

11. Respondent did not satisfy or otherwise discharge the Fernandez final judgment against him prior to the final hearing in this cause.

12. When Respondent appeared for the final hearing he was granted leave to attempt settlement but was able to remit only a portion of the debt owed to Mr. Fernandez.

13. In August 1998 Respondent's license to practice was suspended. Respondent had failed or otherwise refused to comply with the terms of a lawful order of the Construction Industry Licensing Board.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

15. Petitioner bears the burden of proof in this cause to establish by clear and convincing evidence the violations alleged against Respondent. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

16. Section 489.129, Florida Statutes, authorizes Petitioner to revoke, suspend, or otherwise discipline the license of a contractor found guilty of the violations listed therein.

17. Section 489.129(1)(k), Florida Statutes, authorizes discipline against a licensee who abandons a construction project. Abandonment is presumed when the contractor fails to

    perform work for 90 days without just cause or notification to the owner. In this case, with the exceptions of having plans drawn and pulling the permit, Respondent never performed the work specified in the proposal. The owner gave Respondent adequate time to perform and numerous notices that he expected the work to be performed. Respondent has presented no credible explanation for his failure to perform the work as agreed with the owner. No just cause exists for the failure to perform.

18. Section 489.129(1)(h)(2), Florida Statutes, authorizes discipline against a licensee for committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Such harm is defined as when the contractor abandons the job and retains funds in excess of the percentage of the work performed. In this case, Respondent retained the entire deposit and did not refund any portion of the funds until the day of hearing. Respondent presented no credible explanation for his failure to refund the unearned funds.

19. Section 489.129(1)(n), Florida Statutes, authorizes discipline against a licensee for committing incompetency or misconduct in the practice of contracting. Here Petitioner has established Respondent's misconduct in the practice of contracting by the failure to perform the work as agreed, by the abandonment of the job, and by the failure to refund the deposit.

20. Section 489.129(1)(r), Florida Statutes, authorizes discipline against a licensee for failing to satisfy within a

    reasonable time, the terms of a civil judgment related to the practice of contracting. In this case, as of the date of the hearing, Respondent had failed to satisfy Mr. Fernandez' judgment. Despite numerous efforts on the owner's part, Respondent willfully ignored this claimant's right to the refund of his deposit. Respondent has offered no credible explanation for this indifference to the owner's right to a refund.

21. In this case the Petitioner has established by clear and convincing evidence that Respondent violated the four provisions of Section 489.129(1), Florida Statutes, as outlined above.

22. Rule 61G4-17.001, Florida Administrative Code, sets forth the normal penalty ranges to be employed in disciplinary cases. Absent aggravating or mitigating circumstances, the guidelines set forth in the rule are to be applied. In this case Respondent has continued to practice contracting despite the recent suspension of his license. The evidence supporting this assertion (considered only as an aggravating circumstance) was offered during rebuttal only after Respondent had misrepresented his efforts in this regard. Accordingly, Respondent's past disciplinary history and his continuing efforts to perform contracting services despite the suspension have been considered aggravating circumstances in this cause.

23. Finally, it is concluded Petitioner is entitled to recover its costs in connection with the prosecution of this

case. Such costs should be awarded with the entry of the final order.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board enter a Final Order revoking Respondent's license.

DONE AND ENTERED this 29th day of March, 1999, in Tallahassee, Leon County, Florida.

J. D. PARRISH Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 1999.

COPIES FURNISHED:

Rodney Hurst, Executive Director Construction Industry Licensing Board Department of Business and

Professional Regulation

7960 Arlington Expressway, Suite 300

Jacksonville, Florida 32211-7467

Lynda L. Goodgame, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Diane Snell Perera, Esquire Department of Business and

Professional Regulation

401 Northwest Second Avenue Suite N-607

Miami, Florida 33128

Seymour Stern, Esquire Department of Business and

Professional Regulation

401 Northwest Second Avenue Suite N-607

Miami, Florida 33128

Earl Gene Burks

15550 Southwest 152nd Avenue Miami, Florida 33187

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.

Docket for Case No: 98-001529

Orders for Case No: 98-001529