RONALD L. SMITH and MODERN )
vs. ) CASE NO. 79-859
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Sharyn L. Smith, held a public hearing in this case on February 27, 1980, in Fort Myers, Florida. The parties were represented by counsel:
For Petitioner: Harry A. Blair, Esquire
For Respondent: Chris D. Rolle, Esquire
Assistant Attorney General Department of Legal Affairs Administrative Law Section The Capitol
The issue to be decided is whether Ronald L. Smith (hereafter "Petitioner") is qualified to sit for the Florida Electrical Contractor's Licensing Board (hereafter "Board") examination, or is entitled to some other appropriate relief.
Proposed Recommended Orders have been submitted by the parties and have been considered by the Hearing Officer. Those proposed findings not included in this Recommended Order were not considered relevant to the issues, were not supported by competent and substantial evidence, or were considered immaterial to the results reached.
The Petitioner is General Manager and President of Modern Air Conditioning, Inc., (hereafter "Modern Air" or "Corporation"), and R. L. Anderson, Inc., Mechanical Contractors. He has held these positions with Modern Air since April 1965. The Petitioner has held journeyman's cards in air
conditioning, as well as union structural iron worker's, competency and electrical journeyman szzz cards. The Petitioner has been a member of several municipal and county licensing boards and is presently serving a third term on the Florida Construction Industry Licensing Board.
Modern Air is or has been licensed as an electrical contractor in Lee, Charlotte, Glades, Collier, Hendry, and Sarasota counties and the cities of Sanibel, Naples, and Punta Gorda. Modern Air employs six full-time and three part-time journeymen electricians. Among the representative electrical contracting jobs which the Corporation has performed over the past three years are wiring schools, homes, condominiums, and small commercial businesses. In addition to air conditioning and rewiring, the Corporation employs individuals to perform plumbing and insulating work.
Modern Air is a solvent corporation with assets in excess of one and a half million dollars. Its net income for 1978 was $118,967.00. Corporate retained earnings for March 31, 1977 through 1978 were $463,936.00. The Corporation is bonded with the American Insurance Company for one million dollars per single occurrence with a three million dollar maximum limit. Modern Air and Petitioner have high credit ratings and enjoy excellent reputations in the community.
On December 18, 1978, Petitioner submitted an application to the Florida Electrical Contractor's Licensing Board to sit for the state electrical contractors examination in his capacity as qualifying agent for Modern Air. By letter dated March 15, 1979, the Board, upon the advice of its application committee and through its executive director, denied Petitioner's application. The denial was due to Petitioner's failure to demonstrate "unlimited" experience in the field of electrical contracting.
At the hearing Petitioner explained the experience portion of his application and particularly the method which he used to demonstrate the value of each particular job listed. For example, as to one job, Collier County Public Schools, the value listed on the application was $33,000 yet the actual value of the total job to Modern Air was in excess of a quarter of a million dollars. The $33,000 was solely electrical with the rest being subcontracted while Modern Air remained prime contractor. The job information furnished which included auditoriums, cafeterias, gymnasiums, industrial arts labs, and homes was noted on the application as being indicative or representative of the corporate activity over the preceding three years.
During the hearing, the Board's expert witness stated that if he had served on the application committee he would have returned the application and requested additional information in order to determine qualifications rather than simply deny the application.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of this cause.
In 1979, the Legislature revised Chapter 468, Part VII, Florida Statutes, as part of its periodic "Sunset Review" of the all professions and occupations regulated by the state. The Florida Electrical Contractors' Licensing Board and its implementing statutes were among those Boards and statutes reviewed by the 1979 Legislature. See, "A Review of Chapter 468, Part VII, Florida Statutes, Electrical Contractors", Senate Government Operations
Committee, October, 1978. The statute under which Petitioner applied, Section 468.181(5), Florida Statutes, defined a "licensed electrical contractor" as
... one whose services are unlimited in the electrical trade field and who has the ex- perience, knowledge and skill to install, repair, alter, add to or design, when not prohibited by law, electrical wiring fixtures, appliances, apparatus, raceways, conduit or any part thereof, which generates, transmits transforms or utilizes electrical energy in any form for light, heat, power or communi- cation, including the electrical installa- tions and systems within plants and sub- stations, all in such manner as to comply
with all plans, specifications, codes, laws, and regulations applicable. Such contractor shall have a qualifying agent. The scope
of such work shall apply to private and public property, and shall include any exca- vation and paving work incidental thereto, and shall include the work of all specialty electrical contractors... (e.s)
In amending Section 468.181(5), Florida Statutes the Legislature eliminated the phrase "... one whose services are unlimited in the electrical trade field..." and in its place substituted "... a person who conducts business in the electrical trade field...". See Section 489.505(8), Florida Statutes. Obviously, the amended statute establishes a more precise standard for determining experience than the prior provision. At the time Petitioner applied to sit for the exam, Section 468.181(5), Florida Statutes was in effect. During the course of this proceeding, this section was amended and replaced by Section 489.505(8), Florida Statutes. Under these circumstances the law at the time of the hearing, rather than the time of the application should be applied. Miami- Dade Community College, District Board of Trustees v. Florida Public Employees Relations Commission, 341 So.2d 1054 (1st D.C.A. 1977).
Under the standards set forth in the amended statute, Section 489.505(8), Florida Statutes, the Petitioner should be permitted to sit for the exam. He clearly is and has been conducting business in the electrical trade field and has the experience, knowledge and skill to install, repair, alter, add to or design electrical wiring, fixtures, etc., as specified in Section 489.505(8), Florida Statutes.
Additionally, as qualifying agent, Petitioner must demonstrate compliance with Section 489.521, Florida Statutes, which reads in pertinent part as follows:
... The application shall also show that the proposed qualifying agent is legally qualified to act for the business organi- zation in matters connected with its con- tracting business and concerning regula-
tions by the board and that he has authority to supervise work undertaken by the business organization. The person must possess the required skill, knowledge and experience
as evidenced by three (3) years prior ex- perience in the trade or education equiva- lent thereto... (e.s)
Rule 2166-2.01(1)(d), Florida Administrative Code requires all applicants to show that the qualifying agent has three (3) years proven experience in the trade as an electrical contractor or in a responsible management position with an electrical contractor.
The Petitioner has demonstrated that he has three (3) years proven experience in the electrical contract business and has held a responsible management position with an electrical contractor since 1965, thus meeting the criteria set forth by statute and rule.
The conclusion that the Petitioner meets the existing regulatory requirements is consistent with the legislative intent set forth at section 455.201(3), Florida Statutes, which prohibits state licensing boards from creating unreasonably restrictive standards that deter qualified persons from entering various professions. Such boards are also prohibited from taking any action which tends to create or maintain an economic condition that unreasonably restricts competition, except as specifically provided by law.
The purpose of Part II, Chapter 489, Florida Statutes is to provide an avenue for state certification thereby avoiding the multiplicity of local competency requirements which vary from area to area. See, "A Review of Chapter 468, Part VII, Florida Statutes," supra, at 56. The purpose is not to restrict access to the trade to large electrical contractors who, due to their size, continually perform each type of job an electrical contractor is required to have knowledge of pursuant to law. The law simply requires that minimum competence be demonstrated through proven management and experience and successful completion of a state competency examination. It is, therefore
That the application of Modern Air Conditioning, Inc., with Ronald L. Smith as qualifying agent, be approved for Smith to sit for the examination for licensure as a Florida Electrical Contractor.
DONE and ORDERED this 8th day of July, 1980, in Tallahassee, Florida.
SHARYN L. SMITH
Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
Harry A. Blair, Esquire 2149 McGregor Boulevard Post Office Box 1467
Chris D. Rolle, Esquire Assistant Attorney General Department of Legal Affairs Administrative Law Section The Capitol
