STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARGARET K. ROBERTS, )

)

Petitioner, )

)

vs. ) Case No. 85-2240

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, FLORIDA )

CONSTRUCTION INDUSTRY )

LICENSING BOARD )

)

Respondent. )

)

RECOMMENDED ORDER

On January 23, 1986 a Stipulation of Facts was filed by the parties with the Division of Administrative Hearings. This Stipulation reflects that both parties waive their right to present witnesses and that both parties wanted to present their issues upon proposed orders. The parties filed their proposed orders on or about February 17, 1985. Because of the Stipulation, the proposed findings of fact were identical and are adopted almost verbatim as the findings.

This case arose when the Petitioner applied to take the examination as a general contractor and was denied by the Respondent because she did not meet the experience requirements. Petitioner requested a formal proceeding under Section 120.57, Florida Statutes. The Petitioner and Respondent both agree on the operative facts. The only issue is a legal issue concerning the application of Section 489.111(4)(c), Florida Statutes.

APPEARANCES

For Petitioner: Maxwell G. Battle, Esquire/

8204-A West Waters Avenue Suite 350

Tampa, Florida 33615

For Respondent: Arden Siegendorf, Esquire

Assistant Attorney General Department of Legal Affairs The Capitol

Tallahassee, Florida 32301

ISSUE

Based upon the stipulated facts, only one issue, a legal one, must be resolved. The issue is whether Section 489.111(4)(c), Florida Statutes, is properly applied by the Board which interprets this section to require a minimum of four years of experience as a certified contractor.

Having considered the statute and the Board's position in applying the interpretation above, it is concluded that the Board's interpretation is erroneous.

FINDINGS OF FACT

1. The Petitioner, Margaret K. Roberts, was licensed as a Certified Building Contractor October 19, 1984.

   
   

2. Petitioner filed an application to take the State Certified General Contractor's Examination on or about December 19, 1984.

   
   

3. At the time Petitioner applied to take the Certified General Contractor's Examination, she held Certified Building Contractor's License No. CB C031970 and she had four years of proven experience in the Certified Building Contractor's field, although she had only been certified as a building contractor since October 19, 1984. One may obtain experience in an area of contracting without being certified.

   
   

4. Petitioner is not qualified by virtue of holding a baccalaureate degree or experience as a residential contractor.

   
   

5. Petitioner was not certified as a building contractor for four years prior to applying for the general contractor's examination.

   
   

6. Petitioner's only basis of claimed eligibility to take the General Contractor's Examination is Section 489.111(4)(c), Florida Statutes.

   
   

7. The Respondent denied the Petitioner's application to take the certification examination because of insufficient time as a certified building contractor in accordance with Florida Statutes 489.111(4)(c).

   
   

8. Other than the issue of requisite experience as a certified contractor, Petitioner meets all other statutes and Board Rules regarding eligibility for the Certified General Contractor's Examination.

   CONCLUSIONS OF LAW

   
   

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

   
   

10. The Florida Construction Industry Licensing Board licenses and regulates contractors in Florida pursuant to Chapter 489, Florida Statutes. This includes determinations of who is qualified to take the Board's examination for licensure as a general contractor based upon statutory criteria stated in Section 489.111(4)(c), Florida Statutes.

    
    

11. Section 489.111(4)(c), Florida Statutes, provides as follows:

    
    

    "c. An active certified building contractor is eligible to take the general contractor's examination if he possesses a minimum of 4 years of proven experience in the classification in which he is certified."

    
    

12. Petitioner's position is that she has over four years experience as a building contractor, she is an active certified building contractor, and is therefore qualified to take the general contractor's examination.

    
    

13. Respondent does not controvert the Petitioner's experience as a building contractor but interprets Section 489.111(4)(c), Florida Statutes to require the four years of experience to be obtained after certification.

    
    

14. The narrow issue of law presented in this case is whether Section 489.111(4)(c), Florida Statutes, requires four years experience after she was certified and in the classification in which she was certified.

    
    

15. The Respondent seeks to buttress its argument and raise its decision to agency policy making by introducing the minutes and transcript of its Board meeting of February 8, 1985 in which the Board purportedly interpreted the statute and established a policy.

    
    

16. Having considered the transcript of the Board's, meeting covering the motion and the vote on it, one cannot tell what the thrust of the motion was, or whether the vote passed or failed. See pg. 61, line 22. Furthermore, discussion on the record reveals the Board was already being attacked on its interpretation of the statutes and this entire action was self-

    serving and designed to support actions which it had already taken prior to adoption of the motion. See pg. 57, line 23, and p.58, line 24. It would appear the proper action would have been to adopt a rule to clarify its position. This portion of the record is not found to be probative of the "correctness" of the Board's denial, based upon policy considerations.

    
    

17. The proper test is whether the Board's interpretation is consistent with the general rules of statutory construction. The Board interprets the language "in a classification in which he is certified," to mean experience after he was certified and in the classification in which he is certified. The Board's interpretation adds an element (emphasized above) which is not contained in the statutory language.

    
    

18. The language of the statute only requires four years experience in the classification in which an applicant is certified. Because an applicant can obtain experience under a county license in a classification without being certified by the state (See Section 489.17, Florida Statutes), the language clearly was intended to permit un-certified experience prior to certification to be considered in minimum experience. The clue is the term "proven experience." One who is certified would not logically be asked to prove his experience. The Board has the record of certification dates, and certification requires active daily participation in the business. "Proven experience" is only relevant to experience in non-certified status under local licensure in registered states. This is a logical, unstrained construction which adds nothing to the statute and gives meaning to each word of it.

    
    

19. The Respondent's interpretation adds a requirement not found in the statute which unduly strains the application of the statute to require four years of certified experience before an applicant can take the examination for licensure. While restraining the number of building contractors which may apply, there is no reasonable benefit to the public in requiring proven, certified experience.

RECOMMENDATION

Based upon the stipulated facts and the conclusions of law, it is recommended that Section 489.111(4)(c), Florida Statutes, be interpreted to include qualifying service in a non-certified capacity and that Petitioner's application to take the building contractor's examination be approved.

DONE AND ORDERED this 11th day of March, 1986 in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1986

COPIES FURNISHED:

James Linnan Executive Director

Construction Industry Licensing Board

P.O. Box 2

Jacksonville, Florida 32202

Fred Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore A. Carpino, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Maxwell G. Battle, Esquire

8204-A West Waters Avenue Suite 350 Tampa, Florida 33615

Arden Siegendorf, Esquire Assistant Attorney General Department of Legal Affairs The Capitol

Tallahassee, Florida 32301

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD

MARGARET K. ROBERTS,

License No. CB-C031970

Petitioner, DOAH CASE NO. 85-2240 DEPARTMENT OF PROFESSIONAL

REGULATION

Respondent.

/

FINAL ORDER

THIS MATTER came before the Construction Industry Licensing Board pursuant to Section 120.57(1)(b)(9), Florida Statutes, on April 10, 1986, in Tallahassee, Florida for consideration of the Recommended Order (a copy of which is attached hereto and incorporated herein by reference) issued by the hearing officer in the above styled case. The Petitioner was represented by Crit Smith, Esquire. The Respondent was represented by Douglas A. Shropshire, Esquire.

Upon consideration of the hearing officer's Recommended Order, and the arguments of the parties and after a review of the complete record in this matter, the Board makes the following findings:

FINDINGS OF FACT

1. The hearing officer's findings of fact are hereby approved and adopted.

   
   

2. There is competent, substantial evidence to support the hearing officer's findings of fact.

CONCLUSIONS OF LAW

1. The Board has jurisdiction of this matter pursuant to the provisions of Section 120.57(1), and Chapter 489, Florida Statutes.

   
   

2. The hearing officer's conclusions of law, are hereby rejected, and the exceptions filed by the Respondent in this matter are adopted in lieu thereof and are fully incorporated herein by reference. More specifically it is this Board' a conclusion that Section 489.111(4)(c) requires one to obtain four

   (4) years of experience while certified as a building contractor in order to be eligible to take the general contractors' examination. (See Board Minutes)

   
   

3. There is competent substantial evidence to support the Board' a findings and conclusions.

WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED:

That Petitioner is hereby ineligible to take the State Certified General Contractor Examination until she demonstrates a minimum of four years of proven experience after certification as a building contractor. Pursuant to Section 120.59, Florida Statutes, the Parties are hereby notified that they may appeal this Order by filing one copy of a Notice of Appeal with the Clerk of the Department of Professional Regulation, 130 N. Monroe Street, Tallahassee, Florida 32301, and by filing the filing fee and one copy of the Notice of Appeal with the District Court of Appeal within thirty (30) days of the effective date of this Order.

This Order shall become effective upon filing with the Clerk of the Department of Professional Regulation.

DONE AND ORDERED this 25th day of 1986

John Fix, Chairman

Construction Industry Licensing Board

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been provided by certified mail to

Maxwell G. Battle, Esquire &: W. Crit Smith, Esquire

204-A W. Waters Ave., 17350 Cason, Henderson, Morrison,

Tampa, Fla. Prevatt & Baker

(for Margaret K. Roberts) 320 First Florida Bank Building

Tallahassee, Fla. 32302-1695

and by hand delivery/united States mail to the Board Clerk, Department of Professional Regulation and its Counsel, 130 North Monroe Street, Tallahassee, Florida 32301, on or before 5:00 p.m., this 30th day of May, 1986.

James B. Powell

FILED

Department of Professional Regulation Florida Construction Industry Licensing Board

BOARD CLERK

CLERK Burt Germay DATE 5/30/86

Docket for Case No: 85-002240

Orders for Case No: 85-002240