STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GARY L. WALDRON, )

)

Petitioner, )

)

vs. ) CASE NO. 87-2245

) DEPARTMENT OF INSURANCE ) AND TREASURER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on July 27, 1987 in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: William R. Leonard, Esquire

Post Office Box 11025

Fort Lauderdale, Florida 33339

For Respondent: Lisa S. Santucci, Esquire

413-B Larson Building Tallahassee, Florida 32399-0300

BACKGROUND

This matter began on May 5, 1987 when respondent, Department of Insurance and Treasurer, issued proposed agency action in the form of a letter advising petitioner, Gary L. Waldron, that his application to take the examination for a certificate of competency as a fire protection system contractor II had been denied on the ground petitioner lacked sufficient experience and education background to qualify for licensure. According to the letter, this constituted a ground for denial under Subsection 633.521(3), Florida Statutes (1985).

Thereafter, by letter dated May 12, 1987 petitioner requested a formal hearing to contest the proposed agency action. The matter was referred to the Division of Administrative Hearings by respondent on May 22, 1987 with a request that a hearing officer be assigned to conduct a hearing.

By notice of hearing dated June 22, 1987, a final hearing was scheduled on July 27, 1987 in Fort Lauderdale, Florida. At final hearing, petitioner testified on his own behalf and presented the testimony of Huey Mangas, chief of fire and security at Port Everglades, and James Grabenhorst, a Department inspector. He also offered petitioner's composite exhibit 1 which was received in evidence. Respondent presented the testimony of Ruth L. Gokel, chief of the bureau of explosives and fire equipment. It also offered respondent's exhibit 1 which was received in evidence.

The transcript of hearing was filed on September 21, 1987. 1/ Proposed findings of fact and conclusions of law were submitted by respondent and petitioner on September 28 and October 8, 1987, respectively. A ruling on each finding has been made in the Appendix attached to this Recommended Order.

At issue is whether petitioner's application to take the examination for certificate of competency as a fire protection system contractor II should be approved.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. On April 17, 1987, petitioner, Gary L. Waldron, filed an application for a certificate of competency with respondent, Department of Insurance and Treasurer (Department). If granted, Waldron would be authorized to take an examination for a certificate of competency as a fire protection system contractor II. After reviewing the application the Department issued a letter on May 5, 1987 advising Waldron that his application had been denied on the ground he lacked the necessary "four years proven experience in the employment of a contractor, or educational equivalent thereto, or a combination thereof." The letter of denial prompted this proceeding.

   
   

2. The Department has regulatory jurisdiction over contractors who install fire protection systems. Before engaging in such activities, a person must obtain a certificate of competency from the Department. For regulatory purposes, and depending on the nature of the work, there are four classes of contractors, those being Contractors I, II, III and IV. In this case, Waldron desires certification as a Contractor II. This would authorize him to "lay out, fabricate, install, inspect, alter, repair and service" certain types of fire protection systems, except those that are preengineered. To be eligible for licensure, Waldron must possess "four years proven experience in the employment of a contractor or educational equivalent thereto or a combination thereof." By rule, the agency has provided that such experience may be gained only with a contractor certified as a Contractor I, II, III or IV. This is consistent with its interpretation of the statute as explicated by the chief of the bureau of explosives and fire equipment.

   
   

3. Waldron owns a contracting firm, Waldron's, Incorporated, in Fort Lauderdale, and is licensed as a mechanical contractor. Over the last ten years or so, he has installed a number of non-preengineered fire protection systems for various major oil companies at Port Everglades (in Broward County). The Port is one of the largest petroleum storage areas in the Southeast. It is undisputed that the systems installed by Waldron are the types that would ordinarily be installed by a Contractor II. Such systems met the fire safety standards at Port Everglades, which equalled or exceeded relevant state standards adopted by the Department. This was confirmed by the chief of fire and security at Port Everglades and corroborated by petitioner's composite exhibit 1, which documents a variety of jobs completed by Waldron in recent years.

   
   

4. In early 1987 Waldron learned that a certificate of competency was required to do the work he had previously been performing. This resulted in Waldron filing his application. Although the application and other evidence of record establish that Waldron has had many years of experience in installing the type of system typically installed by a Contractor II, none was obtained "in the

   employment of a (licensed) contractor." Further, he does not possess the alternative educational equivalent prescribed by Department rules. Therefore, he is not eligible at this time to take examination for licensure as a Contractor II.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (Supp. 1986).

   
   

6. As the applicant for licensure, Waldron bears the burden of proving entitlement to licensure. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981). To satisfy this burden, Waldron must show that he meets all relevant statutory criteria. Those read as follows:

   
   

   633.521 Certificate application and issuance; examination and investigation of applicant. -

   (1) To obtain a certificate, an applicant shall submit to the State Fire Marshal an application in writing, on a form provided by the State Fire Marshal containing the infor- mation prescribed, which shall be accompanied by the fee fixed herein, containing a statement that the applicant desires the issuance of a certificate and stating the class of certificate requested.

   * * *

   *(3) 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.* Within 30 days from the date of the examination, the State Fire Marshal shall inform the applicant in writing whether he has qualified or not and, if the applicant has qualified, that he is ready to issue a certificate of compe- tency, subject to compliance with the requirements of subsection (4). (Emphasis added between *)

   
   

   To implement the foregoing statute, the agency has adopted Chapter 4A-46, Florida Administrative Code (1987). As is pertinent hereto, the terms "experience in the employment of a contractor" and "educational equivalent" are defined in Rule 4A- 46.010(3), Florida Administrative Code (1987), as follows:

   
   

   (3)(a) "Experience in the employment of a contractor", as required by Section 633.521(3), Florida Statutes, must be gained from full-time employment by a contractor, such employment relating to technical areas. For purposes of this rule chapter, "technical areas" means those activities engaged in by a contractor and participated in by the

   applicant which provide experience in laying out, fabricating, installing, inspecting, altering, repairing, or servicing fire protection systems. The applicant's experi- ence must be verified by the contractor employing the applicant. The required verification shall be in the form of a letter from the employer, on company stationery, describing the applicant's duties, the kinds of jobs he worked on; his dates of employment; and any other information reasonably calculated to provide the division with an informed understanding of the applicant's work experience. It is the applicant's responsibility to furnish the required verification. The experience will be evaluated to determine an applicant's qualifications for the class of certificate requested; or,

   1. The division will accept a current NICET Level III or IV certification as a Fire Protection Engineering Technician in the sub- field of Automatic Sprinkler System Layout, issued by the National Institute for Certification in Engineering Technologies in Alexandria, Virginia; or,

   2. The applicant can provide evidence of a bachelor degree from a four (4) year college or university with a major in mechan- ical engineering, or civil engineering, fire science engineering technology or fire protection engineering technology. The applicant must furnish official transcripts to substantiate all degrees. The curriculum and all engineering, fire science, and fire protection courses must be clearly identified on the transcripts; or,

   3. The applicant can provide evidence of an associate degree (2 years) with a major in fire science engineering technology or fire protection engineering technology in combina- tion with 2 years proven experience in the employment of a contractor. For purposes of combining education and work experience, the number of hours worked in part-time employment will be counted as the appropriate percentage of full-time employment.

      
      

      Also pertinent is Rule 4A-46.005(1), Florida Administrative Code (1987), which defines the word "contractor" as follows:

      
      

      4A-46.005 Definitions. For purposes of this part, the following terms shall have the following meanings:

      1. "Contractor" shall mean a "Contractor I, II, III, or IV "as defined in Section 633.021(5)(a)-(d), Florida Statutes.

7. In support of his position, petitioner contends that the licensing statute [s. 633.521] does not specifically require that the four years' proven experience be obtained in the employ of a certified contractor. As such, he argues that one may obtain the necessary experience through self-employment as long as the work is that normally performed by a Contractor II. However, this construction of the statute is not in accord with the agency's interpretation, as expressed in its rules and the evidence of record. It is well-settled that an agency determination with regard to a statute's interpretation and applicability will receive great deference in the absence of clear error or conflict with legislative intent. See, for example, Little Munyon Island v. Department of Environmental Regulation, 492 So.2d 735, 737 (Fla. 1st DCA 1986). Here the agency's interpretation of the word "contractor" as being a person certified as a Contractor I, II, III or IV is not one that is clearly erroneous or, as shown by this record, to be in conflict with legislative intent. This being so, it is concluded that Waldron does not possess the necessary work experience or educational equivalent to be eligible for licensure by examination. Moreover, he has cited no authority which authorizes the agency to waive these statutory requirements. Therefore, Waldron's application must be denied. His only remedy is to obtain the necessary qualifications, or to have the licensing requirements changed.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner's application to take the examination for

licensure as a Contractor II be DENIED.

DONE AND ORDERED this 13th day of October, 1987, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

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 13th day of October, 1987.

ENDNOTE

1/ A delay in the preparation of the transcript of hearing has contributed to a corresponding delay in concluding this proceeding.

1. Rejected as being a conclusion of law.

2. Rejected as being a conclusion of law.

3. Covered in finding of fact 1.

4. Rejected as being a conclusion of law.

5. Rejected as being irrelevant.

6. Rejected as being irrelevant.

7. Rejected as being irrelevant.

Respondent:

1. Covered in finding of fact 3.

2. Covered in finding of fact 1.

3. Covered in finding of fact 1.

4. Covered in finding of fact 4.

COPIES FURNISHED:

William R. Leonard, Esquire

1. O. Box 11025

   Fort Lauderdale, Florida 33339

   
   

   Lisa S. Santucci, Esquire 413-B Larson Building

   Tallahassee, Florida 32399-0300

   
   

   Honorable Bill Gunter The Capitol, Plaza Level

   Tallahassee, Florida 32399-0300

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

   AGENCY FINAL ORDER

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

   
   

   STATE OF FLORIDA DEPARTMENT OF INSURANCE

   
   

   IN THE MATTER OF:

   
   

   GARY L. WALDRON

   
   

   Denial of Application for DOAH Case No. 87-2245 Contractor II

   
   

   Certificate of Competency

   /

   
   

   FINAL ORDER

   
   

   THIS CAUSE came before the undersigned insurance Commissioner of the State of Florida for consideration and final agency action. On May 5, 1987, the Department of Insurance and Treasurer issued a letter denying the Petitioner, Gary L. Waldron's application to take the examination for a Certificate of Competency as a Contractor II. It alleged that the Petitioner lacked sufficient experience and education to qualify for licensure. On May 12, 1987, Petitioner filed a request for a formal hearing pursuant to Section 120.57(1), Florida Statutes, and the hearing was held on July 27, 1987, before Donald R. Alexander, Hearing Officer for the Division Administrative Hearings. After consideration of the evidence and argument presented at the hearing and after further consideration of Proposed Recommended Orders submitted by the parties, the Hearing Officer on October 13, 1987, issued a Recommended Order (attached hereto as Exhibit "A") to the Insurance Commissioner in which it was recommended that the application submitted by the Petitioner, Gary L. Waldron, be denied.

   Neither party filed Exceptions to the Recommended Order.

   
   

   Upon consideration of the foregoing and the record and being otherwise fully advised in the premises, it is

   
   

   ORDERED

   
   

   1. The Hearing Officer's Findings of Fact are adopted in full as this agency's Findings of Fact.

      
      

   2. The Hearing Officer's Conclusions of Law are adopted in full as this agency's Conclusions of Law.

      
      

   3. The Hearing Officer's Recommendation that the application of the Petitioner, Gary L. Waldron, be denied is approved and accepted as being appropriate to the disposition of this case.

Accordingly, the application of Gary L. Waldron to take the examination for a certificate of Competency as a Contractor II is DENIED.

Any party to these proceedings adversely affected by this Order is entitled to seek review of this Order pursuant to Section 120.68, Florida Statutes, and Rule 9.110, Fla.R.App.P. Review proceedings must be instituted by filing a petition or notice of appeal with the general Counsel, acting as the agency clerk, at 413-B Larson Building, Tallahassee, Florida 32399-0300 and a copy of the same with the appropriate district court of appeal within thirty (30) days of rendition of this Order.

DONE and ORDERED this 3rd day of December, 1987.

BILL GUNTER

Insurance Commissioner and Treasurer

ANN WAINWRIGHT

Assistant Insurance Commissioner and Treasurer

Copies furnished to:

WILLIAM R. LEONARD, Esquire

Post Office Box 11025

Ft. Lauderdale, Florida 33339

LISA SANTUCCI, Esquire Office of Legal Services Department of Insurance 413-B Larson Building

Tallahassee, Florida 32399-0300

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

Docket for Case No: 87-002245

Orders for Case No: 87-002245