STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JIM PALEVEDA, HOMER CRAYTON, ) SIDNEY SLAVET, DOUG WASHBURN, ) WILLIAM J. RUSS, CHARLES COLLINS, ) JOSE PALACIOS, RONALD COMISSO, ) RALPH F. PADIERE, VINCENT ) VILLAFANE, and THOMAS C. HALE, )

)

Petitioner, )

)

vs. ) CASE NO. 84-0983

)

FRED ROCHE, Secretary of the ) Department of Professional )

Regulation, and STANTON M. ) ALEXANDER, HENRY G. BACHARA, JOSE )

P. BARED, SELMA S. BARGANIER, ) SAMUEL M. BLOOM, WALTER C. BLOUNT, )

J. R. CROCKET, G. E. DANIEL, ) ROBERT F. DOVE, JOHN FIX, HUELAN )

W. HILL, JOHN L. HOOKER, RAYMOND )

1. IRWIN, JOHN HENRY JONES, I. J. ) KARPAY, TERANCE W. MCLAUGHLIN, ) GLENN H. MCNABB, JOE M. RICHARDS, ) LOUIS P. SAMUELS, RONALD L. SMITH, ) DONALD W. STOS, Members of the ) Construction Industry Licensing ) Board, )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on June 21, 1984, in Tampa, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: Michael Steinberg, Esquire

   2055 Dale Mabry

   Tampa, Florida 33609

   
   

   For Respondent: Drucilla E. Bell, Esquire

   Department of Professional Regulation

   130 North Monroe Street Tallahassee, Florida 32301

   
   

   W. Douglas Moody, Esquire

   199 North Monroe Street Tallahassee, Florida 32301

   By letter dated December 5, 1983, Petitioners, by and through their attorney, requested an administrative hearing to contest the validity of some questions on the examination for a plumber's license given on February 11 and 12, 1983. A Complaint had been filed in the Circuit Court in and for Leon County, but was dismissed by Order dated February 23, 1984, upon the condition that the Plaintiffs' request for administrative hearing be submitted to the Division of Administrative Hearings with ten days. The undated Complaint was forwarded to with Petitioners' December 5, 1983, letter to the Division of Administrative Hearings by Respondent's letter of March 14, 1984, as a request for formal proceedings in accordance with Section 120.57(1), Florida Statutes.

   
   

   By letter dated April 10, 1984, Petitioners, by and through their attorney, further define their position to be: "(1) the exam is unduly difficult and (2) the exam violates Section 489.113 of the Florida Statutes in that it does not establish competency and qualifications to be certified pursuant to the Florida Statutes, but rather prevents the Plaintiffs from pursuing their vocation."

   
   

   At the hearing Petitioners called one witness, Respondent called three witnesses, and two exhibits were admitted into evidence.

   
   

   Proposed findings submitted by the parties, insofar as they are included herein, are adopted; otherwise they are rejected as not supported by the evidence, immaterial, or unnecessary to the results reached.

   
   

   At the conclusion of Petitioners' case, Respondent moved for a directed verdict of dismissal of the Complaint on grounds Petitioners failed to show any injury based upon the objections raised to specific questions. Ruling on that motion was reserved at the hearing partly because the Hearing Officer is without authority to enter the final order such ruling would constitute.

   
   

   FINDINGS OF FACT

   
   

   1. James Paleveda, one of the Petitioners, took the examination for a plumbing contractor's license on February 10 and 11, 1983, and failed the examination. He was the only witness to testify on behalf of the Petitioners. Some of the other Petitioners took a different examination on different dates than the examination complained of in these proceedings, but no evidence was presented identifying those Petitioners and no evidence was presented relative to those exams.

      
      

   2. Petitioners presented no evidence that any or all of them gave incorrect answers to the questions complained of, and, but for those incorrect answers, they would have passed the examination.

      
      

   3. The sum and substance of the testimony presented by the Petitioner Paleveda was that, in his opinion, most of the questions in Exhibit 1, the examination Paleveda took, were not appropriate to determine if the applicant is qualified to be a plumbing contractor. Paleveda has never been a plumbing contractor and has little experience in the contracting field. He is also nearly 57 years old and, although fit, conceded the long examination for a man his age and background was much more tiring than it would be for a younger man fresh out of school.

      
      

   4. Questions 1 through 27 of Exhibit 1 deal with social security taxes withheld and paid by employers for their employees; federal income taxes withheld; Florida mechanics lien law; workers' compensation law; unemployment

      compensation law; Florida Construction Industry Licensing law; accounting and cost-keeping procedures; and general contract provisions. Petitioners contend that although some knowledge of these subjects is desirable, a contractor can always hire accountants and lawyers to handle these problems. Respondent, on the other hand, presented the testimony of plumbing contractors who have been in the business for many years who testified that knowledge of the cost of social security, workers' compensation and unemployment insurance, contract provisions, and all costs associated with the performance of plumbing contracts are essential if a plumbing contractor is to remain solvent. This latter testimony is deemed more credible and is factually accepted.

      
      

   5. Questions 28 through 93 generally involve questions form the Plumbers Handbook and Mathematics for Plumbers and Pipe Fitters. Petitioner's primary objections to these questions are that in some cases the answers from the Plumbers Handbook is different from the local codes. Respondent presented evidence that there are some differences throughout the state in the plumbing codes and this is the principal reason for utilizing a standard that can be applicable to all candidates. The candidates are told that the correct answers to those questions are those given in the Plumbers Handbook and the examinees are allowed to have this book in the examination room.

      
      

   6. Questions 94 through 100 are taken from the Solar Water and Pool Heating Manual and Petitioners contend these questions are too hard. Petitioners further contend that any plumber should check with the manufacturer for specific instructions before installing a solar water heating system. All plumbing contractors are authorized to install a solar water hearing system and each should be required to demonstrate a rudimentary knowledge of such a system before being so licensed. Accordingly, Petitioner's objections to these questions are without merit.

      
      

   7. The first 27 questions to which the Petitioners object are very similar to the questions given to all building contractors for a statewide license. Those questions cover areas that a contractor must know to remain financially solvent. Most contractors initially starting a business do not have sufficient capital to hire attorneys and accountants to advise each time a question arises regarding these fields. A contractor can hardly afford to hire an attorney to file a $200 mechanics lien.

      
      

      CONCLUSIONS OF LAW

      
      

   8. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

      
      

   9. Here, the burden of proof, as in court proceedings, is on the Petitioners to prove, by a preponderance of the evidence, that the examination questions were unduly difficult and in violation of Section 489.113, Florida Statutes. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349, (Fla. 1st DCA 1977). This, Petitioner has failed to do.

      
      

   10. Section 489.101, Florida Statutes, establishes the purpose for regulating the contracting business by stating:

       
       

       The Legislature recognizes that the construction and home improvement industries are significant industries. Such industries may pose significant harm to the public when incompetent or dishonest contractors provide

       unsafe, unstable or short-lived products or services. Therefore, it is necessary in the interest of public health, safety, and

       welfare to regulate the construction industry.

       
       

   11. Petitioners' position that the purpose for regulating contractors is solely to protect the public from dishonest contractors, unsafe working conditions, and to see that the contractor is technically qualified, but not to protect the public from insolvent contractors, is without merit.

       
       

   12. Short-lived products or services as contained in the above statute could well be construed to mean short-lived contracting businesses. Contractors who enter into construction contracts on which they subsequently default because their lack of business knowledge caused them to fail financially certainly pose a danger to the public welfare. Accordingly, I find the business-related questions on the plumbing contractor's examination to be the type questions designed to establish a competency the Legislature intended applicants for building contractors to demonstrate before receiving their licenses.

13. Section 489.105:

"Plumbing contractor" is a contractor whose contracting business consists of the execution of contracts requiring the experience, financial means, knowledge, and skill to install, maintain, repair, alter, extend, or, when not prohibited by law, design plumbing.

1. Again, the knowledge and experience needed to execute contracts and carry them out is the prime function of a plumbing contractor. That knowledge is tested by those business questions included in Questions 1 through 27 inclusive.

   
   

2. Without belaboring the issue, it is sufficient to say that the interpretation placed on these statutory provisions by the Construction Industry Licensing Board is that the statute requires an applicant for licensure as a building contractor to demonstrate a knowledge of those various business expenses such as social security, workers' compensation, unemployment compensation, etc. The construction of a statute by the agency charged with the administration of that statute is entitled to great weight. Department of Insurance v. Southeast Volusia Hospital District, 438 So.2d 8151 (Fla. 1983). Furthermore, the plain language of the statute leads to the conclusion that the Legislature intended an applicant for statewide licensure as a building contractor to demonstrate the minimum business acumen necessary to successfully engage in the contracting business.

   
   

3. From the foregoing it is concluded that Petitioners presented no evidence that they gave incorrect answers to the questions objected to, and, that as a result, they failed the examination. It is further concluded that Petitioners failed to show, by a preponderance of the evidence, that the questions given on the February 11 and 12, 1983 examination for plumbing contractors were unduly difficult or failed to fairly test the qualifications of the applicant for licensure.

RECOMMENDATION

It is RECOMMENDED that the COMPLAINT and other contentions of Petitioners regarding the unfairness of the February 11 and 12, 1983 examination for plumbing contractors be dismissed.

DONE AND ENTERED this 20th day of July 1984 at Tallahassee, Florida.

K. N. AYERS 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 July 1984.

COPIES FURNISHED:

Michael Steinberg, Esquire 2055 Dale Mabry

Tampa, Florida 33609

Drucilla E. Bell, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

W. Douglas Moody, Esquire

199 North Monroe Street Tallahassee, Florida 32301

James Linnan, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2

Jacksonville, Florida 32202

Fred M. Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 84-000983

Orders for Case No: 84-000983