STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FREDERICK D. HAGEN, )

d/b/a ROTO-ROOTER, )

)

Petitioner, )

)

vs. ) CASE NO. 85-2911

) DEPARTMENT OF INSURANCE ) AND TREASURER, OFFICE OF ) STATE FIRE MARSHAL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice an administrative hearing was held before Stephen F. Dean, a Hearing Officer with the Division of Administrative Hearings on November 12, 1985 in Tallahassee, Florida.

APPEARANCES

For Petitioner: W. Kirk Brown, Esquire

313 Williams Street Tallahassee, Florida 32303

For Respondent: Lisa S. Santucci, Esquire

Department of Insurance and Treasurer

413-B Larson Building Tallahassee, Florida 32301

ISSUES

The basic facts are not really disputed. Petitioner has many years experience as a plumber. The law is controverted. The agency says the required experience as a contractor must be with a fire sprinkler contractor. The Petitioner argues the statute does not define "contractor," and its common meaning would include plumbing contractor. Evidence was received that the agency has long held "contractor" to be limited to fire

sprinkler installation contractors, and that this is based upon the special expertise required in design and installation of these systems. The argument of the Respondent that "contractor/ contracting" as it is used in the statute generally applies to fire sprinkler contractors is more persuasive based upon the evidence.

The parties have submitted posthearing Proposed Findings of Fact. A ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Mr. Frederick Hagen applied with the Department of Insurance, Office of the State Fire Marshal, to take the written examination for a license to engage in the business of designing and installing fire protection systems as a Contractor II, type 7, class 12, as defined by Section 633.021(5)(b), Florida Statutes.

   
   

2. On July 8, 1985, his original application was hand- delivered back to him for failure to submit the appropriate application fee and the appropriate application form. Mr. Hagen's application was denied by the Department of Insurance, Office of the State Fire Marshal because he did not submit evidence of four years proven experience as required by Section 633.521(3), Florida Statutes.

   
   

3. On August 8, 1985, Mr. Hagen requested a formal hearing on the denial of his application. At the hearing on November 12, 1985, Mr. Hagen submitted an original application and the appropriate fee to the Department of Insurance, Office of the State Fire Marshal.

   
   

4. Petitioner's application was denied in accordance with long-standing agency policy because he did not submit evidence to show that he had the requisite experience as a fire sprinkler installation contractor or the educational background, or a combination thereof to be allowed to sit for the examination. (Transcript pages 16,17; Petitioner's Exhibit 1)

   
   

5. At all times material herein, Frederick D. Hagen held a license from the Construction Industry Licensing Board and has been a plumbing contractor for over 12 years. (Transcript pages 25, 26) As a licensed plumbing contractor, he has been involved in the supervision of and actual installation of fire line stand pipes and fire sprinklers to the extent authorized by law.

   
   

6. Petitioner submitted no evidence at the hearing of his education and experience in the design of sprinkler installations. Petitioner indicated that he considered the design of these systems as similar to design of a plumbing system, given the building codes and plans.

   
   

7. Design of sprinkler installations is integral to the work performed by a Contractor II, type 7, class 12. Design of sprinkler installations is based upon codes plus experience received in working in the profession. Employees of these specialized contractors receive special educational training in design of systems. Experience of a plumbing contractor in reading codes and applying them in installing plumbing systems would be inadequate experience to qualify one to design a sprinkler system.

   
   

   CONCLUSIONS OF LAW

   
   

8. Department of Insurance and Treasurer, Office of the State Fire Marshal, licenses fire sprinkler system contractors pursuant to Chapter 633, Florida Statutes.

   
   

9. This Recommended Order is entered pursuant to Section 120.57, Florida Statutes.

   
   

10. Section 633.521(3), Florida Statutes states in pertinent part:

    
    

    "As a prerequisite to taking the examination the applicant shall possess 4 years' proven experience in the employment of a contractor or educational equivalent thereto or a combination thereof." (Emphasis supplied)

    
    

11. Petitioner argues that the language emphasized above means any contractor because contracting is not defined by the statute. Read in context the statute requires experience as an employee of a fire sprinkler contractor.

    
    

12. "When a statute contains a definition of a word or phrase, that meaning must be described to the word or phrase whenever repeated in the same statute unless a contrary intent clearly appears." Richard Betram & Co., v. Green 132 So. 2d 24 (Fla. 3d DCA 1961). The definitions of the various types of contractors which appear in Section 633.021, Florida Statutes

    are intended to apply throughout the entire portion of that statute which regulates sprinkler contractors.

    
    

13. The agency has not adopted any rules defining suitable experience.1 The agency may define and justify these parameters on a case by case basis. See McDonald v. Department of Banking and Finance, 346 So. 2d 569 (1st DCA 1977). The evidence shows that special expertise is required to design a system beyond a plumbing contractor's ability to do a "take off" of materials and supplies from the building plans. This supports the agency's interpretation of the statute, notwithstanding the applicant's plumbing experience. Petitioner lacks this necessary experience for licensure pursuant to Section 633.521(3), Florida Statutes.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is:

RECOMMENDED that Mr. Hagen's application for examination to engage in the business of fire protection systems as a Contractor II, type 7, class 12, be DENIED.

DONE AND ORDERED this 10th day of December 1985, in Tallahassee, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, FL 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of December 1985.

ENDNOTE

1/ The agency expert also testified that an employee of a fire sprinkler contractor who did not participate in the training programs provided and an applicant who was a plumbing contractor

would be equally unqualified. The employee of the fire sprinkling system contractor would apparently meet the basic statutory definition, however, based upon prior practices, both applicants would be denied. Because the newly increased fee unfairly penalizes applicants who do not meet the qualifications and cannot reasonably assess their qualifications from the agency's standards prior to submitting their applications, the agency should define "proven experience as a contractor" by rule.

APPENDIX

The proposed findings of fact of the parties were read and considered with the following results:

COPIES FURNISHED:

The Honorable William Gunter State Treasurer and Insurance Commissioner

The Capitol - Plaza Level Tallahassee, FL 32301

Don Dowdell, Esquire General Counsel

The Capitol - Plaza Level Tallahassee, FL 32301

W. Kirk Brown, Esquire

313 Williams Street Tallahassee, FL 32303

Lisa S. Santucci, Esquire Department of Insurance and

Treasurer

413-B Larson Building Tallahassee, FL 32301

Docket for Case No: 85-002911

Orders for Case No: 85-002911