STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 84-1805

)

MORTON SCHULTZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on August 30, 1984, in Miami, Florida. The parties were afforded leave to submit posthearing memoranda. Petitioner has submitted a proposed Recommended Order which was considered by me in preparation of this Recommended Order. 1/

APPEARANCES

For Petitioner: H. Reynolds Sampson, Esquire

Department of Professional Regulation

130 N. Monroe Street Tallahassee, Florida 32301

For Respondent: No appearance

ISSUE

The issue presented for decision herein is whether or not the Respondent, Morton Schultz, failed to supervise, direct, inspect and control all work on a construction project for which he was the qualifying agent and whether he made misleading and deceptive representations in contracting in violation of Sections 489.129(4)(c), (d) and (j), Florida Statutes.

FINDINGS OF FACT

1. Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, Respondent's written response filed herein and the entire record compiled, I hereby make the following relevant factual findings.

   
   

2. By its Administrative Complaint dated September 17, 1981, Petitioner seeks to take disciplinary action against Respondent as licensee and against his licenses as both a registered general contractor and registered pool contractor.

   
   

3. During times material herein, Respondent was the qualifying agent for National Builders, Inc., and is the holder of license number CG C001944. On

   September 15, 1980, Respondent, as qualifying agent for National Builders, Inc., contracted to build a five-story condominium in Miami Beach, Dade County, Florida, with Joel Amstell d/b/a Amstell, Inc. Pursuant to the contract, Mr.

   James Rosen was to be the on-site supervisor for National Builders. (Petitioner's Exhibit 2) Mr. Rosen is not a registered or licensed contractor.

   
   

4. The contract price for the construction of the condominium herein was

   $328,000 including all labor and materials. Additionally, the job was to be bonded and the premium for issuance of the bond was to be borne by National Builders, Inc. (Petitioner's Exhibit 2, paragraph, 3) Pursuant to the contract, the entire job will be finished six months after the pilings are in place. If the job takes longer, the interest charge paid by the developer to the lender will be deducted from the amount due National Builders, Inc. If the job is finished in less than six months, half the interest the developer saves will be paid to National Builders, Inc. (Petitioner's Exhibit 2, page 2)

   
   

5. The pilings were completed and erected at the end of January, 1981. The project was not completed at the end of July, 1981 as is set forth in the contract.

   
   

6. Mr. Amstell made repeated requests for Respondent to spend some time on this project to supervise or otherwise see that the project was completed as agreed. Despite Mr. Amstell's repeated prodding of Respondent, Respondent refused to spend any time on the project and demanded an increase in the contract price to complete the project.

   
   

7. At that point, Mr. Amstell attempted to get the bonding company to complete the construction for the building and, at that point, found that the project was not bonded as Respondent agreed pursuant to the contract. (Testimony of Amstell, TR. p. 13)

   
   

8. Respondent failed to perform the duties required of a qualifying agent in that he failed to supervise, direct, inspect and control the progress of the work on this project. (TR. pp. 15-18 and 34-38)

   
   

9. To complete construction of the project, owner Amstell expended an additional $108,000. This figure was not caused by any changes or other deviations from the drawings and plans which were submitted to Respondent and which he (Respondent) agreed to perform.

   
   

10. Supervisor Rosen left the project during June of 1981. From the period January through June of 1981, supervisor Rosen saw Respondent on the construction site no more than three times. Supervisor Rosen concluded that Respondent failed to provide him with the guidance and assistance he needed to complete this project as agreed.

    
    

11. At the time that Respondent left the project, the beams and walls were not properly aligned as agreed and owner Amstell had to expend monies to paint the building adjacent to his building due to the fact that concrete had spilled on the property next door and was never cleaned as promised by Respondent.

    
    

    CONCLUSIONS OF LAW

    
    

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

13. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

    
    

14. The authority of the Petitioner is derived from Chapter 489, Florida Statutes.

    
    

15. Respondent, a licensed general contractor, is subject to the disciplinary guides set forth in Chapter 489, Florida Statutes.

    
    

16. Section 10-22(j) of the Metropolitan Dade County Code provides in pertinent part that it is unlawful for any contractor or qualifying agent of such a contractor to fail to supervise, direct, inspect and control work on any construction project or operation on which the qualifying agent is engaged.

    
    

17. Respondent was a qualifying agent involved in the project herein and was responsible for the supervision, direction, management and control of all construction activities on the Amstell job for which he obtained a building permit. Section 489.105(4), Florida Statutes.

    
    

18. Based on Respondent's failure to supervise the construction phases of the subject condominium project, he is in direct violation of Metropolitan Dade County Code and, as such, contravenes the dictates of Subsection 489.129(d), Florida Statutes, as alleged. Based thereon, Respondent thereby violated Subsection 489.129(j), Florida Statutes, as alleged. It is so found.

    
    

19. Competent and substantial evidence was offered herein to establish that the Respondent made misleading, deceptive, untrue and fraudulent representation in the practice of his profession as relates to the Amstell project for which he contracted to perform. Respondent's failure to perform the express contract provisions as well as his subsequent representations and promises to owner Amstell constitute a violation of Subsection 489.129(1),(c), Florida Statutes.

RECOMMENDATION

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

that Respondent's registered general contractor's license number CG C001944 be REVOKED.

RECOMMENDED this 25th day of January, 1985, in Tallahassee, Florida.

JAMES E. BRADWELL

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 January, 1985.

ENDNOTES

1/ A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial or unnecessary. Additionally, Respondent's letter in response to the charges herein has been considered pursuant to the directives in Section 120.59(2), Florida Statutes.

2/ Although properly noticed, Respondent, or a representative on his behalf, did not appear at the hearing herein.

COPIES FURNISHED:

H. Reynolds Sampson, Esquire Department of Professional

Regulation

130 N. Monroe St. Tallahassee, Fl. 32301

Morton Schultz 8851 NW 42 Street

Miami, Fl. 33165

Fred Roche Secretary

Department of Professional Regulation

130 N. Monroe St. Tallahassee, Fl. 32301

Docket for Case No: 84-001805

Orders for Case No: 84-001805