Judges: ROBERT E. MEALE
Agency: Department of Business and Professional Regulation
Latest Update: May 20, 1988
Summary: Sheet metal contractor not guilty of contracting outside the scope of his county permit in absence of proof of county regulations
88-0573.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, )
)
Petitioner, )
)
vs. ) CASE NO. 88-0573
)
BENITO TORTORA, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, final hearing in the above-styled action was held on April 7, 1988, in Orlando, Florida, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.
The parties were represented as follows:
For Petitioner: David Bryant, Esquire
Bryant, Reeves & Deer
220 West Madison Street, Suite 530 Tampa, Florida 33602
For Respondent: Benito Tortora, pro se
2516 Gresham Drive
Orlando, Florida 32807 BACKGROUND
On March 30, 1988, Petitioner filed an Administrative Complaint against Respondent with respect to a contract entered into in August, 1986, by Respondent and Margaret H. Haden for the construction of a screen room. The Administrative Complaint alleged that Respondent, through himself or his unlicensed employees, contracted to do and/or did the screen room construction work outside the scope of his license, in violation of Section 489.117(2). The Administrative Complaint also alleged that Respondent failed to perform the work in a timely manner, thereby constituting gross negligence, incompetence, misconduct, fraud, or deceit in the practice of contracting, in violation of Section 489.129(1)(m).
Respondent filed an undated Election of Rights disputing the factual allegations and requesting a formal hearing.
At the hearing, Petitioner called three witnesses and offered into evidence five exhibits. Respondent called one witness, himself, and offered into evidence two exhibits. All exhibits were admitted into evidence, except for Petitioner's Exhibit Numbers 2 and 5.
The transcript was filed on April 27, 1988. Petitioner filed a proposed recommended order. Treatment accorded the proposed findings is detailed in the Appendix.
FINDINGS OF FACT
Respondent is and at all material times has been a registered sheet metal contractor in the State of Florida. In fact, Respondent qualified in aluminum fabrication and erection. He holds license number RS 0025757.
From 1984 through September, 1986, Respondent owned and operated Robinsons Aluminum Products, Inc. The company, which was located in Tampa, sold and erected aluminum screen enclosures. Respondent was the qualifying agent for the company.
On August 19, 1986, Margaret Haden entered into a contract with Robinsons Aluminum Products, Inc., signed by Respondent as representative, for the construction of a screen room and slab, roof, and door for the room. The total contract price was $1575. Mrs. Haden paid a $550 deposit by check dated August 21, 1986, and the remainder was due on completion.
Shortly after entering into the contract, Respondent prepared drawings and sketches for the job. He then submitted these drawings and sketches to the homeowners' association, whose approval was required before Respondent could obtain a building permit or begin the work.
The homeowners' association did not immediately respond to the request for approval. After seven to ten days, Mrs. Haden called Respondent to find out why work had not begun. Respondent called the homeowners' association and learned that they were changing offices and everything was in disarray.
Two to three weeks after the date of the contract, Respondent received verbal approval from the homeowners' association, but was unable to get written approval. At about this time, Mrs. Haden fired him, hired a new contractor, and demanded her $550 back. Respondent refused to return the deposit.
CONCLUSIONS OF LAW
The Division of Administrative Hearings had jurisdiction over the parties and the subject matter. Section 120.57(1), Florida Statutes.
Petitioner has jurisdiction over the disciplining of licenses of registered sheet metal contractors. Section 489.129, Florida Statutes.
Discipline against a license may be imposed if the licensee fails in any material respect to comply with the provisions of Part I, Chapter 489. Section 489.129(1)(j), Florida Statutes. A registrant may engage in contracting only in the jurisdictions in which he has complied with all local licensing requirements and only for the type of work covered by the registration. Section 489.117(2), Florida Statutes.
Discipline against a license may be imposed if a licensee is guilty of gross negligence, incompetency, or misconduct in the practice of contracting. Section 489.129(1)(m), Florida Statutes.
Petitioner must prove the allegations of the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).
Petitioner's Exhibit Number 2 is the transcript of the depositions of Margaret and Jackson Haden. Petitioner gave Respondent notice of the depositions the evening before the morning of the depositions, which were scheduled in Tampa on the day prior to the final hearing. Respondent, who resides in Orlando, was unable to attend the depositions on such short notice. Because Respondent was not given reasonable notice of the depositions, they may not be used against Respondent at the hearing, pursuant to Rule 1.330(a), Florida Rules of Civil Procedure. Respondent had no time to serve written notice of his objections upon Petitioner because the deposition was set only one day before the hearing. Thus, Petitioner may not rely upon Rule 1.330(d)(1) to argue the admissibility of the depositions. Further, the depositions do not supplement or explain any other admissible evidence. Thus, they are not admissible as affidavits.
There is no evidence of, or even reference to, the Hillsborough County ordinances upon which Petitioner apparently relied in alleging that Respondent contracted outside the scope of his license. Barring evidence of local law to the contrary, state law permits a "specialty structure contractor," whose services are limited to the aluminum metal, vinyl, and fiberglass screening material construction trade, to "subcontract with a licensed qualified contractor in the field concerned, all other work incidental to that which is defined herein but which is the work of a trade other than that of a specialty structure contractor." Rule 21E-15.015(2)(d), Florida Administrative Code.
Barring contrary local law, state law also permits specialty structure contractors to construct "screened porches, screened enclosures, . . ." and "masonry concrete work . . . limited to foundations [and] slabs . . . incidental to the aluminum and allied materials construction work." Rule 21E- 15.015 (2)(a), (b), and (c), Florida Administrative Code.
Petitioner has not proved by clear and convincing evidence that Respondent's entering into the subject contract was outside the scope of his license. To the contrary, it appears that the contemplated work was within the scope of his license.
There is no evidence that Respondent performed the work that he agreed to do in an untimely manner. He promptly made the necessary drawings and submitted them to the homeowners' association for approval. While Respondent waited for approval, Mrs. Haden obtained the services of another contractor.
RECOMMENDATION
In view of the foregoing, it is hereby
RECOMMENDED that a Final Order be entered dismissing the Administrative Complaint.
ENTERED this 20th day of May, 1988, in Tallahassee, Florida.
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 20th day of May, 1988.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0573
Treatment Accorded Petitioner's Proposed Findings 1-4. Adopted in substance.
Rejected as unnecessary.
Rejected as unsupported by the evidence. 7-9. Rejected as legal argument.
COPIES FURNISHED:
David E. Bryant, Esquire Bryant, Reeves & Deer
220 East Madison Street Suite 530
Tampa, Florida 33602
Benito Tortora 2516 Gresham Drive
Orlando, Florida 32807
Fred Seely Executive Director
Construction Industry Licensing Post Office Box 2 Jacksonville, Florida 32201
William O'Neil General Counsel
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 3299-0750
Docket for Case No: 88-000573
Orders for Case No: 88-000573
| Issue Date |
Document |
Summary |
|
May 20, 1988 |
Recommended Order
|
Sheet metal contractor not guilty of contracting outside the scope of his county permit in absence of proof of county regulations
|
