STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 90-2527

)

STEPHEN C. ACHIN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer from the Division of Administrative Hearings, on October 30, 1990, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Charles N. Tetunic, Esquire

Becker, Poliakoff & Streitfeld, P.A. Post Office Box 9057

Fort Lauderdale, Florida 33310-9057

For Respondent: Joseph Stephen Sharrow, Esquire

Post Office Box 8995

Fort Lauderdale, Florida 33310 STATEMENT OF THE ISSUE

The issue presented is whether Respondent is guilty of the allegations contained within the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against Respondent alleging violations of the contracting laws, and Respondent timely requested a formal hearing regarding the allegations contained in that Administrative Complaint. This matter was thereafter transferred to the Division of Administrative Hearings for the conduct of that formal proceeding.

Petitioner presented the testimony of Donald Warren, James Newell, Alfred Entrekin, and Martha Entrekin. The Respondent testified on his own behalf.

Additionally, Petitioner's Exhibits numbered 1-7 were admitted in evidence. Although both parties requested and were granted leave to file post-hearing proposed findings of fact, neither panty did so.

FINDINGS OF FACT

1. At all times material hereto, Respondent has been a certified building contractor in the State of Florida, having been issued License No. CB CO24584.

   
   

2. At all times material hereto, Respondent was the qualifying agent for Southern Construction Technologies, Inc.

   
   

3. In March, 1988, Alfred and Martha Entrekin entered into a contract with Southern Construction Technologies, Inc., whereby they agreed to pay the sum of

   $178,000 for construction of a custom-built home. Since the Entrekins were unable to qualify for the financing needed for construction, Southern Construction obtained a construction loan on their behalf.

   
   

4. Despite delays, construction commenced in May of 1988 and continued through October, when, the closing on the residence took place, subsequent to the issuance of a certificate of occupancy by the Town of Davie.

   
   

5. Just prior to the closing, a "punchlist" was prepared by Respondent and the Entrekins. That punchlist, which became part of the closing, contains 24 numbered items. (Due to misnumbering, the punchlist says 25.) Thirteen 0of those items on the copy of the punchlist offered in evidence by the Petitioner have been crossed off that list. Of the remaining 11 items, the evidence at final hearing reveals that some were corrected and some items were not the subject of any evidence offered by either party at the final hearing. Although additional items appear to have been added to the punchlist by the Entrekins sometime after the closing, those items will not be considered in this cause since no evidence was offered to indicate that those items were agreed to by the Respondent at the time of closing and no evidence was presented as to when those items were added to the original punchlist by the Entrekins.

   
   

6. At the time of closing, the sum of $1,500 was placed in escrow to ensure completion of the punchlist by Respondent.

   
   

7. Respondent performed some of the punchlist work on the day of the closing and continued working on the punchlist items for the next three weeks.

   
   

8. On January 11, 1989, the Entrekins' attorney sent a demand letter seeking the release of the funds placed in escrow at the closing. Attached to that demand letter was a list of 16 items allegedly remaining on the punchlist. Some of the items on the new "punchlist" submitted by the Entrekins did not appear on the punchlist agreed to by the parties at the closing. Others did appear on the closing punchlist but had been struck through and initialed by Mrs. Entrekin, assumedly as having been completed, on the copy of the closing punchlist offered by Petitioner as an exhibit in this cause.

   
   

9. In response to the demand letter, Respondent authorized the release of the $1,500 in escrow to the Entrekins. Respondent admits that at the time that the money was released to the Entrekins, there were still some repairs needed to the rake tiles on the roof and he had not seeded the backyard. Respondent testified that four rake tiles on the eaves were missing, some were misaligned, and some had not been "mudded" in with mortar, but no broken tiles remained on the roof. He also testified that he had not seeded the backyard because the Entrekins had not yet placed fill in the backyard, an item which Mr. Entrekin admits was his responsibility as provided in the contract between the Entrekins and Southern Construction Technologies, Inc.

10. The only evidence submitted in corroboration of the complaints of the Entrekins consists of several invoices. In March, 1989, the Entrekins obtained an estimate for roof repairs from Warren Roofing, Inc., in the amount of $1,200. That invoice indicates the need to replace 80 broken tiles on the roof, the need to remove and replace approximately 130 rake tiles to be secured with mortar tinted to match (although Donald Warren testified that the tile used is nail-on tile which does not require mortar), and the need to "repair defects" in two rear valley areas. Warren Roofing was never hired to effectuate the repairs for which it had submitted its $1,200 estimate. The extensive work set forth in the estimate in March of 1989 is inconsistent with the roofing inspection which would have taken place prior to the certificate of occupancy issued prior to the closing in October of 1988. The only roofing repair effectuated to the Entrekin house by anyone other than Respondent was work performed by Warren Roofing in July of 1989 repairing a leak around the skylight.

    
    

11. Petitioner also offered in evidence two invoices from pool services dated March of 1989. One invoice in the amount of $275 represents the cost of acid washing the pool, and the other invoice is for $230 to "filter pool water." Due to electrical problems, the water in the pool was not filtered for two days during the period of construction of the Entrekin house. No evidence was offered to show that the absence of filtering a pool for two days would require it to be acid washed, and no evidence was offered in support of the services performed or the need for the services represented by the second invoice.

    
    

12. Another invoice represents the cost of 20 loads of muck for the backyard at a cost of $600, and $150 to rent a bulldozer. Since the muck for the backyard was the responsibility of the Entrekins, the bulldozer charge accompanying the 20 loads of muck is, in all probability, also the responsibility of the Entrekins.

    
    

13. The last invoice submitted in evidence also bears the date of March of 1989 and represents 50 pounds of grass seed, in the amount of $110.50, a cost item which Respondent admits was his responsibility at the time that the escrowed monies were released to the Entrekins.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes (1990).

    
    

15. The Administrative Complaint filed against Respondent contains three counts alleging violations of statutes regulating the practice of contracting. At the commencement of the final hearing in this cause, Petitioner voluntarily dismissed Count II of the Administrative Complaint.

    
    

16. Count I alleges that Respondent failed to correct punchlist items and certain construction deficiencies, resulting in leaks, thereby violating Section 489.129(1)(k), Florida Statutes, by abandonment without notice or just cause. Petitioner has failed to prove that Respondent abandoned the Entrekin construction project. The house was constructed, a certificate of occupancy was issued, and a closing between Respondent's corporation and the Entrekins took place. At the closing, a punchlist of those items to be yet completed was agreed to by the Respondent and the Entrekins. That punchlist consisted of 24 items. Thirteen of those items were struck through and initialed by Mrs. Entrekin on the copy of the closing punchlist admitted in evidence in this cause. One additional item was admittedly completed by Respondent although it

    was not crossed off the list. Respondent's testimony regarding completion of some of the remaining items is more credible than that of the Entrekins. Three months after the closing took place, Respondent authorized the release of $1,500 which had been escrowed at the closing to cover the expense of the punchlist items.

    
    

17. Whether the Entrekins are fully satisfied with their home does not form a proper basis for a disciplinary action alleging abandonment. Respondent did not abandon a construction project. No authority has been cited by Petitioner for the proposition that a project has been abandoned because of the existence of a punchlist at closing, especially where, as here, escrowed monies were released by Respondent to cover the expense of completing any uncompleted items.

    
    

18. Petitioner presented the testimony of Respondent's former partner in Southern Construction Technologies, Inc., who testified as to some of the punchlist items he had observed had not been completed. However, that witness testified that his visit to the Entrekin home to observe the complaints made to him by the Entrekins occurred in the latter part of August, two months before the closing on the property. Accordingly, that witness's testimony offered no corroboration of the testimony of the Entrekins.

    
    

19. Count III alleges that Respondent violated Section 489.129(1)(m), Florida Statutes, by committing gross negligence, incompetence, and misconduct in the practice of contracting. Petitioner has failed to prove by competent, substantial evidence that Respondent is guilty as alleged. Petitioner has failed to plead or argue any factual basis upon which Respondnet can be found guilty of negligence, let alone gross negligence. Similarly, Petitioner has failed to prove that Respondent is incompetent to practice as a building contractor. Lastly, Petitioner has failed to plead or argue any factual basis for the allegation that Respondent is guilty of misconduct in the practice of contracting. The overall evidence indicates that the house which Respondent built for the Entrekins was completed according to code requirements as evidenced by the issuance of a certificate of occupancy, although not to the total and continuing satisfaction of both Mr. and Mrs. Entrekin.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent not guilty of

the allegations contained in the Administrative Complaint filed against him and dismissing the Administrative Complaint.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 25th day of January, 1991.

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of January, 1991.

COPIES FURNISHED:

Charles N. Tetunic, Esquire

Becker, Poliakoff & Streitfeld, P.A. Post Office Box 9057

Fort Lauderdale, Florida 33310-9057

Joseph Stephen Sharrow, Esquire Post Office Box 8995

Fort Lauderdale, Florida 33310

Daniel O'Brien Executive Director

Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2

Jacksonville, Florida 32202

Kenneth E. Easley General Counsel

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to 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: 90-002527

Orders for Case No: 90-002527