Judges: SHARYN L. SMITH
Agency: Department of Business and Professional Regulation
Latest Update: Jul. 06, 1981
Summary: No evidence establishes the violations in the complaint. Dismiss.
80-0382.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA CONSTRUCTION INDUSTRY ) LICENSING BOARD, )
)
Petitioner, )
)
vs. ) CASE NO. 80-382
)
JOSEPH DAVIDOW, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Sharyn L. Smith, held a formal administrative hearing on September 26, 1980 in Coral Gables, Florida. The parties were represented by counsel:
APPEARANCES
For Petitioner: Barry S. Sinoff, Esquire
2400 Independent Square One Independent Drive
Jacksonville, Florida 32202
For Respondent: Arthur W. Karlick, Esquire
1454 Northwest 17th Avenue Miami, Florida 33125
The issue involved in this case is whether the Respondent's general contractor's license should be revoked, restitution ordered and a fine imposed due to his alleged actions in abandoning a construction project when it was approximately 80 percent complete, diverting funds or property from such project, and willfully violating applicable building codes or laws of the state or municipalities, cities or counties during such project.
FINDINGS OF FACT
At all times material to this proceeding, the Respondent, Joseph Davidow, was licensed as a general contractor with the Florida Construction Industry Licensing Board.
On August 3, 1978, the Respondent entered into an agreement with Rubin Zimmerman, Vice-president of Gilbert's Fish Camp, Inc., located in Monroe County, to construct an addition and make alterations to an existing motel.
The contract specified the work to be done, for which the Respondent was to receive $190,000 with a completion date within 90 days of the contract.
The Respondent was recommended to Mr. Zimmerman, the complainant in this case, by Mr. Zimmerman's architect on the project, Seymore Drexler, AIA.
The Respondent originally bid the project at $210,000 of which $19,000 was allocated for electrical work to be performed by a qualified sub-contractor.
The complainant believed that the original bid for electrical work was too high and suggested that the Respondent contact Mr. Charles Katzman of Kay Electric, a long-time friend of the complainant.
Mr. Katzman was able to obtain his permits on the project despite being unlicensed in Monroe County, a fact which was not known by either the Respondent or the complainant at the time.
Mr. Katzman bid $13,500 on the project which was $5,500 under the lowest bid received by the Respondent and was, therefore, awarded the project.
During the course of the construction, numerous problems arose which affected the progress on the site.
The complainant and his business partner, Harry Gilbert, made numerous requests for changes in the original plans and specifications.
The "extras" requested by the complainant and/or his business partner were generally done orally on the site and at times through direct negotiations between the complainant and the Respondent's sub-contractors or workmen.
The changes in the specifications included modifications to the flooring, patio, laundry and storage room, grade beams, pilings, walkways, stairs, patio wall, diningroom walls, linen closet, bathroom windows and walls, outside planter, doors and support system for electrical cooling.
A dispute arose between the Respondent and the complainant and Mr. Gilbert over the cost and the extent of the change orders. Additionally, the Respondent was concerned because the extras requested by the complainant diverted his sub-contractors and/or workmen from the basic project to areas not contemplated by the contract.
Certain of the electrical work performed by Mr. Katzman was negotiated separately from the original contract. Romex an illegal electrical wire was used on the project, but this was not known by the Respondent nor was Romex used in any of the electrical work specified in the original plans.
Due to the continuing dispute over the cost of the extras and the diversion of workers for additional "extras," the Respondent sent the Monroe County Building and Zoning Department on April 12, 1979, a notice of withdrawal as general contractor on the subject project.
Since that time liens have been filed against the project by suppliers of materials and/or labor which have been satisfied by the corporation. Civil litigation involving Kay Electric also has been instituted.
The building inspection reports maintained by Monroe County concerning this project are incomplete.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over this proceeding.
The complaint filed in this proceeding alleged violations of Sections 468.112(2)(a), 468.112(2)(e) and 468.112(2)(h), Florida Statutes.
Section 468.112(2)(a), Florida Statutes, 1977, provides that the willful or deliberate disregard and violation of the applicable building codes or laws of the state or any municipalities, city or county thereof is grounds for disciplinary action. No competent and substantial testimony was introduced which supports this charge. The Petitioner did attempt to introduce a check issued by the Respondent's corporation to the complainant's corporation and returned marked "not sufficient funds" to prove a violation of state law. An objection to the introduction of this document was sustained, the check having no direct causal relationship to the subject matter of this dispute. Additionally, testimony that Romex, an illegal wire under county building and zoning ordinances, was used was not connected to the Respondent in such a manner to show that he had actual knowledge of the use of such wire on the project by the electrical sub-contractor.
The Petitioner's second charge, that Respondent violated Section 468.112(2)(e), Florida Statutes, 1977, which prohibits diverting of funds or property on one project to an extent that the contractor will be unable to finish the project was also not proven by competent and substantial testimony. No testimony or documents are contained in the record which demonstrate that any funds were diverted from the project.
Finally, the Respondent is charged with violating Section 468.112(2)(h), Florida Statutes, 1977, which prohibits abandonment of a construction project in which the contractor is engaged or under contract as a contractor unless within 90 days following termination the contractor terminates said project without notification to the prospective owner and without just cause. The position of the Respondent on this charge is that no "abandonment" occurred, since the project was essentially complete and the dispute between the complainant and the Respondent made it obvious that the Respondent was withdrawing from the project, and that good cause existed for such withdrawal. This position is supported by the notarized document sent to Monroe County Building Officials by the Respondent on April 12, 1979, informing them of his withdrawal as general contractor [Petitioner's Exhibit 6(e)]. Additionally, no testimony was presented which shows that the Respondent failed to give 90 days' notice or that the complainants were unaware of the actions of Respondent in withdrawing from the project. Therefore, no competent and substantial evidence exists to support a violation of Section 468.112(2)(h), Florida Statutes, 1977.
RECOMMENDATION
Upon consideration of the foregoing, it is RECOMMENDED:
That the Department dismiss the complaint filed against the Respondent, Joseph Davidow.
DONE and ORDERED this 26th day of November, 1980, in Tallahassee, Leon County, Florida.
SHARYN L. SMITH
Hearing Officer
Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 26th day of November, 1980.
COPIES FURNISHED:
Barry S. Sinoff, Esquire 2400 Independent Square One Independent Drive
Jacksonville, Florida 32202
Arthur W. Karlick, Esquire 1454 NW 17th Avenue Miami, Florida 33125
Nancy Kelley Wittenberg, Secretary Department of Professional Regulation 2009 Apalachee Parkway
Tallahassee, Florida 32301
================================================================= AGENCY FINAL ORDER
================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD
DEPARTMENT OF PROFESSIONAL REGULATION,
Petitioner,
vs. Case No. 80-382
JOSEPH DAVIDOW, CG C007463
Respondent.
/
FINAL ORDER
This matter came before the Construction Industry Licensing Board on May 8, 1981, in Tallahassee, Florida. A hearing held pursuant to Section 120.57(1), Florida Statutes resulted in a Recommended Order which was considered by the Board.
Following a review of the complete record, the Board hereby adopts the Findings of Fact of the Hearing Officer and they are incorporated herein by reference. The Board also adopts Paragraphs 1, 2, 4, and 5 of the Conclusions of Law of the Hearing Officer and the same are incorporated herein by reference.
However, following a review of the complete record, the Board rejects Paragraph 3 of the Conclusions of Law of the Hearing Officer. The Board concludes that the Respondent is guilty of violating Section 489.112(2)(a), Florida Statutes (1977) [now 489.129(1)(d), Florida Statutes (1979)] in that he violated Monroe County Ordinance 16-1975, Section 8(g). Further, the Board concludes that there is a direct casual relationship between the worthless check dated March 16, 1979, in the sum of $744.34, issued by the Respondent to the company for which he was contracting the job, and the subject matter of this dispute. The Board therefore concludes that the issuance of this check by the Respondent constitutes a violation of Section 468.112(2)(a), Florida Statutes.
In addition, the Respondent violated Section 468.112(2)(a), Florida Statutes, in that illegal Romex wire was used on the project.
The Board also notes that the delay in rendering final action in this cause was due to the lengthy period of time required to obtain a transcript.
Additionally, action in this case was delayed for the benefit of and at the request of the Respondent.
Following a review of the complete record and based on the Findings of Fact and the Modified Conclusions of Law, the Recommendation of the Hearing Officer is rejected.
THEREFORE
IT IS ORDERED and ADJUDGED that the certified general contractor's license of the Respondent JOSEPH DAVIDOW CG C007463 be and is hereby suspended for a period of five (5) years; provided, however, that said suspension may be lifted after a period of one (1) year if the Respondent submits satisfactory proof to the Board that he has made restitution in the amount of $10,000 to Key Largo Associates doing business as Gilbert's Fish Camp, Inc. It is further Ordered that Respondent pay an administrative fine in the amount of $500.
DONE AND ORDERED this 11th day of June, 1981.
FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD
John Henry Jones
Joseph Davidow
Command Construction, Ind. 1454 N. W. 17th Avenue Miami, Florida 33125
cc: Joseph Davidow
Arthur W. Karlick, Esquire Barry Sinoff, Esquire Charles Tunnicliff, Esquire Sharyn L. Smith
Docket for Case No: 80-000382
Orders for Case No: 80-000382
