STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, Construction )

Industry Licensing Board, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2860

)

MORRIS MARDER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Sharyn L. Smith, held a formal hearing in this case on April 15, 1983, in Miami, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Harold M. Braxton, Esquire

45 Southwest 36th Court Miami, Florida 33135

For Respondent: Richard J. Burton, Esquire

3510 Biscayne Boulevard

Miami, Florida 33137

The issue for determination at the final hearing was whether the license of the Respondent Morris Marder should be disciplined based on alleged violations of Sections 489.129(1)(i), 489.129(1)(d), 489.129(1)(g), 489.129(1)(j) and

489.119(2) and (3), Florida Statutes (1979).

At the final hearing Erwin Ravich, the complainant, Joseph L. Cole, a plumbing contractor, and Jorge Gamez, a building contractor, testified for the Petitioner Department. Petitioner's Exhibits 1-16 were offered and admitted into evidence. The Respondent Morris Marder testified on his own behalf and Respondent's Exhibits 1-4 were offered and admitted into evidence.

Proposed Recommended Orders containing findings of fact have been submitted by the parties and considered in the preparation of this Recommended Order.

When the parties' findings of fact were consistent with the weight of the credible evidence introduced at final hearing, they were adopted and are reflected in this Recommended Order. To the extent that the findings were not consistent with the weight of the credible evidence, they have been either rejected, or when possible, modified to conform to the evidence. Additionally, proposed findings which were sub- ordinate, cumulative, immaterial or unnecessary have not been adopted.

FINDINGS OF FACT

1. At all material times, the Respondent Morris Marder was a registered building contractor, having been issued license number RB 0004509.

   
   

2. On March 4, 1980, the Respondent Marder contracted with Erwin and Joan Ravich to convert the garage of the Ravich home into a family room.

   
   

3. The March 4, 1980 contract between the Raviches and Marder, who was also doing business as "Home Remodeler Morris Marder", 1/ was signed by the Raviches and accepted by M. Marder. An undated addendum to the contract, which was prepared by the Raviches' attorney, was signed by the Raviches and Dan Rossman, a salesman and contract estimator for the Respondent Marder. However, no evidence was presented that the Respondent Marder had knowledge of or signed the addendum, which required completion of the project by an unspecified date. The execution of the addendum delayed beginning construction on the project until May of 1980.

   
   

4. The Respondent Marder subcontracted the performance of work on the Ravich job to Ken Nieset, who with his brother, Steve, a licensed general contractor, was doing business as Brothers Two Construction. During the course of the project, Nieset received three of the four payments made under the contract directly from the Raviches. Although Nieset worked for the Respondent previously, he was neither Marder's foreman nor employee. When additional subcontractors were required, they were hired for the Ravich job by Nieset.

   
   

5. The Raviches paid a total of $9,190 under the contract. The first payment of $1,190 was made directly to Home Remodeler on May 3, 1980, the approximate date that work on the project actually began. A partial release of lien was furnished by Morris Marder to Erwin Ravich on May 6, 1980 based on the first payment. The second payment was made by Erwin Ravich on June 20, 1980 for

   $2,500. This check was made payable to Ken Nieset per authorization of lien furnished on June 20, 1980, in connection with the second payment. 2/ On June 27, 1980 and July 11, 1980, checks were issued to Ken Nieset by the Raviches for

   $3,500 and $2,000, respectively. The Raviches' received a release of lien for

   $2,000 from Nieset, but did not obtain a release of lien for the $3,500 payment. The release of lien for the $2,000 payment executed by Nieset did not involve Home Remodeler or the Respondent Marder. After receiving payments totaling

   $5,500 directly from the Raviches, Nieset abandoned the project.

   
   

6. During the course of the Ravich job, the Respondent Marder employed Jorge Gamez, a draftsman/supervisor, who he believed was supervising the Ravich job. However, Gamez' involvement with the job was limited to drawing the plans and did not include supervising construction, since he was not a licensed general contractor.

   
   

7. King Cole Plumbing, a state licensed contractor, subcontracted with Nieset to install the plumbing and septic tank at the job site. When King Cole left the job, the rough plumbing was installed and all that remained on the job was interior finishing. The septic tank with an appropriate cover was in place and all work performed by King Cole had passed inspection. The septic tank cover originally agreed to by the parties was required to be changed to a heavier type when the Raviches altered their plans and decided to continue using their driveway. This change resulted in a $512 charge from Sun Gold Industries, who supplied the new cover.

8. Additionally, the original contract was modified to add higher grade plumbing fixtures, lighting fixtures, and tile.

   
   

9. In August, 1980, the Respondent Marder entered Saint Frances Hospital for treatment of phlebitis. At the same time, Rossman, Marder's employee, left for vacation in California for seven to eight weeks. As a consequence, the Ravich job was delayed and an unauthorized payment of $2,500 to Nieset was made without securing the approval of the Respondent Marder or Rossman. The Respondent Marder calculated that approximately $2,000 was due as the balance of the job and an added $1,500 was due for extras to the contract. Faced with a substantial loss, the Respondent Marder contacted the Raviches and their attorney in August, 1980, and offered to finish the job and pay for the specified extras in return for Ravich placing $4,500 in escrow with his attorney. Ravich's attorney declined the Respondent's offer and ordered him off the job site. Subsequently, Dade County cancelled the Respondent's building permits, which effectively prohibited him from completing the work at the site.

   
   

10. Subsequently, a lien was filed against the Ravich job by King Cole Plumbing for nonpayment of monies due from Ken Nieset. The lien was determined to have been filed in violation of Florida's Mechanics Lien Law and was voluntarily removed.

    
    

11. The work performed by the Respondent and his subcontractors prior to being ordered off the job was satisfactory and passed periodic inspection by the Dade County Building Department.

    
    

12. The charges in this administrative proceeding formed the basis of action taken against the Respondent by the Dade County Division of Construction Trades Qualifying Board on September 11, 1981, which resulted in revocation of the Respondent's certificate as a subgeneral building contractor in Dade County.

    
    

13. The Respondent Marder has been in the construction business since 1954 and licensed as a general contractor in Florida since 1968. Other than the instant case, the Respondent has never been forced off a job. He has been in business in South Florida for many years and has been involved in thousands of construction jobs.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Florida Statutes.

    
    

15. Section 489.129(1), Florida Statutes (1979), empowers the Petitioner Construction Industry Licensing Board to revoke or suspend a contractor's license, impose an administrative fine not to exceed $1,000, place a contractor on probation, issue a reprimand or censure a contractor, if he is found guilty of, inter alia, the following acts:

    
    

    (d) Willful or deliberate disregard

    and violation of the applicable building codes or laws of the state or of any municipalities or counties thereof.

    * * *

    (g) Acting in the capacity of a contractor under any certificate or registration issued hereunder except in the name of

    the certificate holder or registrant as set forth on the issued certificate

    or registration, or in accordance with the personnel of the certificate holder or registrant as set forth in the application for the certificate or registration, or as later changed as provided in this act.

    * * *

    1. Disciplinary action by any municipality or county, which action shall be reviewed by the state board before the state board takes any dis- ciplinary action of its own.

    2. Failure in any material respect to comply with the provisions of this act.

    
    

16. Count I of the Administrative Complaint charges the Respondent with violating Section 489.129(1)(g), Florida Statutes (1979) by contracting under a name other than that which appears on his license.

    
    

17. The Petitioner has failed to carry its burden of proof on this charge. While it was not disputed that the Respondent Marder used the phrase Home Remodeler in his business, he also used his name and contractor's license number in connection with this term. Contracts were signed and permits were pulled by the Respondent in his name and not Home Remodeler. Based on the determination that the Respondent was contracting in his own name and that he held a current and valid certificate while contracting, violations of Sections 489.129(1)(g) and (j) and 489.119(2) and (3), Florida Statutes (1979), have not been established.

    
    

18. In Count II of the Administrative Complaint the Respondent is charged with violating Sections 489.129(1)(d) and (i), Florida Statutes (1979), by virtue of the disciplinary action taken against the Respondent by Dade County, which resulted in the revocation of his county license. However, the fact that a local licensing board takes disciplinary action against a state licensed contractor does not automatically result in similar action being taken by the Board. Section 489.129(1)(i), Florida Statutes (1979), recognizes this by requiring that the local proceedings be reviewed before the state board takes any disciplinary action of its own. It is, therefore, required that in an administrative disciplinary proceeding involving possible action against a state certificate holder, the underlying disciplinary charges and resultant action by local officials be considered and reviewed in the context of the evidence introduced at final hearing. In the instant case, Dade County's Construction Trades Qualifying Board found that the Respondent had violated the following provisions of the Code of Metropolitan Dade County:

    
    

    1. Section 10-22(g), in that he failed to fulfill contractual obligations in con- nection with the contract or construction project, including payment for material furnished, or work or services performed.

    2. Section 10-22(b), in that he abandoned without a legal excuse a construction project or operation.

    3. Section 10-6(e), in that he failed to supervise, direct and control all work of the contractor, including but not

       limited to, the direct responsibility for controlling and overseeing the

       contractor's employees and field operations.

       
       

19. While the Respondent Marder did not complete the Ravich job, he did satisfactorily complete the work for which he was paid according to the draws specified in the contract. The lien which was placed against the project by King Cole Plumbing was not the result of the Respondent's failure to fulfill his contractual obligation, but rather a failure of Nieset to pay King Cole, his subcontractor with whom he was in privity. This was recognized by King Cole in its suit against Nieset for monies due on the Ravich project. (See Petitioner's Exhibit 11.) In the civil proceeding, the Respondent was neither named as a co- defendant with Nieset nor mentioned in the complaint.

    
    

20. The local board's second finding, that the Respondent abandoned the project without legal excuse is likewise, not supported by the record established at final hearing. It is undisputed that the Respondent was ordered off the project and was unable to complete the job. Construction did not actually commence until May of 1980, due to changes in the contract requested by the Raviches. The addendum introduced at final hearing did not specify when the project was required to be completed, nor was it signed by the Respondent. The checks issued by the Raviches demonstrate that work was completed and that draws were made in accordance with the contract up until July 11, 1980. On August 14, 1980, the contract between the parties was terminated by Ravich's attorney due to the Respondent's failure to complete the work within the time allowed in the rider to the contract and unsatisfactory work performed. (See Petitioner's Exhibit 9.) At that time, only the final draw remained on the contract and the project was completed except for interior finishing. The Respondent made efforts to meet with the Raviches concerning the problem which arose when he discovered that Nieset had been paid monies directly, and did not intend to complete the job. When he was ordered off the project by Ravich's attorney, and his permit was rescinded by the county, the Respondent was unable to complete the project. Under these circumstances, the Respondent Marder cannot be found to have abandoned a project he was legally prohibited from finishing.

    
    

21. Finally, the Respondent was found by the county to have violated Section 10-6(e), Dade County Code, by failing to supervise, direct and control the work under the contract. The Petitioner Department demonstrated by clear and convincing evidence that the Respondent Marder failed to adequately supervise the Ravich job by delegating supervisory authority to an employee who was not a licensed general contractor and by failing to insure that a subcontractor's work was being adequately supervised by the qualifier for the subcontractor. Inadequate evidence was presented at final hearing to show that the Respondent's failure to adequately supervise was done will fully or deliberately in violation of Section 489.129(1)(d), Florida Statutes (1979).

    
    

22. After reviewing the charges and disciplinary action imposed by the local licensing board, and considering the record established regarding these identical charges in the formal administrative hearing, Petitioner has shown by clear and convincing evidence that the Respondent Marder violated Section 10- 6(e) of the Dade County Code, by failing to supervise, direct and control the work done on the Ravich job. The Petitioner failed to demonstrate by clear and convincing evidence that the Respondent violated Section 10-22(g) or (b) of the Code.

    
    

23. Based on the finding that disciplinary action was taken against the Respondent by Dade County, the Petitioner has demonstrated a violation of

    Section 489.129(1)(i), Florida Statutes (1979). However, the record established at final hearing fails to support the penalty imposed by the county, since only one of the three local charges alleged in the Administrative Complaint was demonstrated by the Petitioner.

    
    

24. In determining an appropriate penalty, consideration has been given to the Respondent's lack of prior disciplinary proceedings and his long years of experience in the construction business in South Florida. Additionally, the local charges which formed the basis for the complaint were, with one exception, not proven. Accordingly, revocation or a lengthy suspension of Respondent's license is not warranted.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

That the Petitioner Construction Industry Licensing Board enter a Final Order suspending the Respondent's license for a period of six (6) months.

DONE and ENTERED this 27th day of September, 1983, in Tallahassee, Florida.

SHARYN L. SMITH

Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301 904/488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1983.

ENDNOTES

1/ The Respondent's name and contractor's license number appear on the contract, Petitioner's Exhibit 1(a), under the name Home Remodeler. The addendum to the contract, Petitioner's Exhibit 1(c), lists the Respondent only as a contractor and makes no reference to Home Remodeler.

2/ The June 20, 1980 partial release of lien, Petitioner's Exhibit 5, states that "this will serve as your authority to pay this amount [$2,500.00] directly to Ken Nieset on our behalf."

COPIES FURNISHED:

Harold M. Braxton, Esquire

45 Southwest 36th Court Miami, Florida 33135

Richard J. Burton, Esquire 3510 Biscayne Boulevard

Miami, Florida 33137

Frederick Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

James Linnan, Executive Director Construction Industry Licensing

Board

Post Office Box 2 Jacksonville, Florida 32202

Docket for Case No: 82-002860

Orders for Case No: 82-002860