STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LABADIE'S INC., d/b/a )

ATLANTIC COAST STEAMATIC, )

)

Petitioner, )

)

vs. ) CASE NO. 92-3132RU

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, CONSTRUCTION INDUSTRY ) LICENSING BOARD, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on November 20, 1992, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Timothy J. McDermott, Esquire

TRIPP, SCOTT, CONKLIN & SMITH

Post Office 14245

Fort Lauderdale, Florida 33302

For Respondent: Clark R. Jennings, Esquire

Department of Legal Affairs Office of the Attorney General The Capitol

Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUES

The issue for determination is whether the agency statement described in Florida Construction Industry Licensing Board (FCILB) General Session Minutes, dated March 13, 1992, regarding licensing of air duct cleaners is a rule and is required to be adopted pursuant to Section 120.54, F.S.

PRELIMINARY STATEMENT

On May 21, 1992, Petitioner filed its Petition for an Administrative Determination of Invalidity of Rule pursuant to Section 120.56, F.S.

The case was assigned and was set for hearing within thirty (30) days as required by Section 120.56(2), F.S.

The hearing was continued several times, for good cause, upon request of the parties and after written waiver of the expedited hearing requirement.

At hearing the parties filed their prehearing stipulation with stipulated facts which are adopted here. The parties also stipulated to eight exhibits, marked and received in evidence as "Joint Exhibits #1-8".

Petitioner called as witnesses: Milton Rubin, Randall Labadie and Terrill Phillips; Respondent's witnesses were Dean Ellis and Daniel O'Brien.

After the hearing, the transcript was filed on January 6, 1993, and the parties submitted memoranda of law on January 15 and 19, 1993.

FINDINGS OF FACT

1. Randall Labadie owns the corporation, Labadie's, Inc., d/b/a Atlantic Coast Steamatic, a business engaged in interior cleaning and air duct cleaning, with a principal office located at 1599 SW 30th Avenue, Suite 11, Boynton Beach, Florida 33426.

   
   

2. Randall Labadie has owned the business in Florida for ten years and has been personally involved in air duct cleaning for approximately 20 years. He holds a State of Florida building contractor's license, but not a sheet metal, air conditioning or mechanical contractor's license.

   
   

   Approximately fifty percent of the company's business is air duct cleaning, with thousands of jobs having been completed over its years of operation.

   
   

3. Respondent, the Florida Construction Industry Licensing Board (CILB) is responsible for regulating various professions in the construction industry pursuant to Chapter 489, F.S.

   
   

4. On August 8, 1984, CILB Administrative Assistant, Milton Rubin, issued this written opinion in response to an inquiry from the executive director of the Pinellas County Construction Licensing Board:

   
   

   In response to your inquiry for an opinion on the following questions, the answer is in the affirmative:

   1. Does a person or firm performing "cleaning" services for air conditioning systems have to be licensed? Yes.

   2. If, in the process of "cleaning", a person or firm cuts access openings in existing duct work, does that person or firm require competency licensure? Yes.

   3. Does "servicing" in 489.105(h) include cleaning? Yes.

      (Exhibit #2)

      * * *

      
      

5. The Board did not adopt a rule reflecting its official position on the matter because it felt that the interpretation would have been an unnecessary restatement of the language of Chapter 489, F.S. (Stipulation of the parties filed 11/20/92)

6. On March 13, 1992, the CILB took this official action as reflected in its General Session Minutes:

   
   

   There was a presentation by Mr. Dean Ellis and Jim Hasbrook of Pinellas County regarding a request from two industries. The two industry associations include The Florida Air Conditioning Contractors Association and the Refrigeration and Air Conditioning Contractors Association. The issue concerns duct cleaning and air conditioning system cleaning. This Board had previously taken a position in August of 1984 that this work must be performed by a licensed contractor in one of three categories: air conditioning, mechanical, or sheet metal. At that time the opinion was rendered by Mr. Rubin but included a disclaimer stating that it did not reflect the official position of the Board. These associations now request a formal position from the Board stating that the licensed contractor must perform this work as stated

   in Mr. Rubin's letter of 1984. Mr.

   Lopez-Cantera made motion to ratify that position as a policy of the Board. Second by Mr. Manrique. Motion carried.

   (Exhibit #1)

   
   

   After the Board action was taken, various industry organizations sent notices of the Board's position to their members. The Florida Air Conditioning Contractor's Association "...urge[d] all parties concerned to act on the FCILB decision... [and to] ...report any unlicensed activity through the proper channels." (Exhibit #4)

   
   

7. Steamatic, Inc., is engaged in the business of franchising cleaning operations, and has a home office in Fort Worth, Texas. Around 1975, it expanded from fire and water restoration cleaning into other cleaning services, more specifically, air duct cleaning or air conditioning system cleaning.

   
   

8. Steamatic, Inc., has approximately 144 franchises in the United States, including 14 in the State of Florida. Prior to March 13, 1992, no Florida franchise was cited for engaging in cleaning activity without a license under Chapter 489, F.S. Since March 1992, at least two franchises, in Jacksonville and in Bradenton, have received notices from Department of Professional Regulation (DPR) investigators that complaints have been filed alleging unlicensed practice of air conditioning contracting.

   
   

9. The CILB policy formally adopted in March 1992, has not been adopted as a rule pursuant to Section 120.54, F.S.

   
   

   The CILB has not adopted rules setting acceptable standards for air duct cleaning, and at the March 13, 1992, Board meeting, Board member, Cosmo Tornese stated that there are no accepted standards regarding air duct cleaning. As of March 13, 1992, the National Air Duct Cleaners Association (NADCA) had not adopted standards.

10. The duct cleaning activity conducted by Petitioner and other Steamatic franchisees is nonstructural work only. These companies do not "repair", "maintain", or "adjust" air conditioning systems. They generally obtain access to the ducts through existing openings or the registers, and they vacuum what is accessible. With a low-pressure atomizing gun they apply a germicide treatment and a sealer.

    
    

    In about ten percent of the cases they might cut an opening in the duct in the fogging process and they close it with duct tape. They do not cut sheet metal or disconnect the duct work from the air handler. They do not clean the coils on condensing units or fan blades in the air handler. They only cut fiber duct board, never flex duct. They do not disengage electrical connections.

    They do residential work only.

    
    

11. In contrast, and for more money (base price of $595.00, as opposed to

    $250-300.00 charged by Steamatic), Dean Ellis' company, Climate Control Services, offers what he prefers to call "air duct sanitizing". (transcript p. 74)

    
    

    Dean Ellis has a Florida class A unlimited air conditioning license. He cleans the air handler coil, evaporator coil, drain pan and interior of cabinets. The components are removed and are chemically cleaned and sprayed. His workers take out the electric heat strips and fan motor. They inspect the ducts and replace duct work that is severely contaminated. They use an air source removal machine that is connected through a large hole cut in the box that fits above the air handler and suctions the entire duct system. They check and adjust freon levels and fan speeds.

    
    

12. About five percent of Dean Ellis' business is related to the cleaning of air ducts. He considers his company is in a competitor's relationship with Steamatic. The association of which he is a board member, Florida Air Conditioning Contractors Association, brought its concerns to the CILB and wanted to know if the Board would enforce what the association already considered the law to be.

    
    

13. Petitioner, Labadie's, Inc., d/b/a Atlantic Coast Steamatic, is substantially affected by the CILB's response to its regulated industry representatives. (See prehearing stipulation, filed 11/20/92)

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction in this case pursuant to Sections 120.56 and 120.57(1), F.S.

    
    

15. Although the notice of hearing prepared by the Hearing Officer cited Section 120.535, F.S., as authority, the petition, the parties' prehearing statement and the evidence produced at hearing indicate that the parties intended to proceed under Section 120.56, F.S., and not the newly-enacted Section 120.535, F.S. 1/

    
    

16. Section 120.56(1), F.S., provides:

    
    

    Any person substantially affected by a rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority.

17. The parties have stipulated that Petitioner is substantially affected by the Board's March 13, 1992 pronouncement. Further, Petitioner provided ample evidence of that standing as a business engaged in the activity which the Board seeks to bring within its regulatory authority.

    
    

18. The central issue, then, is whether the subject pronouncement is a rule, described in Section 120.52(16), F.S., as "...each agency statement of general applicability that implements, interprets, or prescribes law or policy..."

    
    

19. On March 13, 1992, the Construction Industry Licensing Board officially adopted a policy that air conditioning duct and system cleaning must be performed by an air conditioning, mechanical or sheet metal contractor.

    
    

20. This formal action is plainly within the above definition of a rule.

    
    

    Any agency statement is a rule if it purports in and of itself to create certain rights and adversely affect others, or serves by its own effect to create rights or to require compliance, or otherwise to have the direct and consistent effect of law.

    Balsam v. Department of Health and Rehabilitative Services, 452 So. 2d 976, 977-8 (Fla. 1st DCA 1984)

    
    

21. The evidence shows that the policy adopted by the Board is being applied to require compliance with the licensing requirements of Chapter 489, F.S.

    
    

22. It is an interpretation by the Board and not, as argued by Respondent, a mere restatement of requirements in the language of Chapter 489, F.S.

    
    

23. "Contractor" is defined in Section 489.105(3), F.S., as:

    
    

    ...the person who, for compensation, undertakes to, submits a bid to, or does himself or by others construct, repair, alter, remodel, add to, subtract from, or improve any building or structure, including related improvements to real estate, for others or for resale to others.

    * * *

    
    

24. Nowhere in that definition, nor in the definitions of air conditioning, mechanical or sheet metal contracting that follow in subsections 489.105(3)(d), (f), (g), (h) and (i), F.S., is found the term, "cleaning". If duct cleaning falls within the definition of contracting, so also might house cleaning, where screens, shutters or other appurtenances are removed and then replaced after the washing process.

    
    

25. It is precisely those extensions of the plain language of the statute which should be exposed and justified in a Section 120.54 rulemaking proceeding.

26. The Board has eschewed that process in adopting its policy, and that policy, found here to be a rule, is an "invalid exercise of delegated legislative authority", as provided in Section 120.52(8)(a), F.S.

ORDER

Based on the foregoing, it is hereby,

ORDERED the petition for determination of the invalidity of a rule is GRANTED. The Board's March 13, 1992, policy is an invalid rule.

DONE AND ORDERED this 12th day of February, 1993, in Tallahassee, Leon County, Florida.

MARY CLARK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 1993.

ENDNOTE

1/ For a thorough discussion of the nonexclusivity of Section 120.535, F.S. as a remedy to invalidate an unpromulgated rule, see Stephen T. Maher, Administrative Procedure Act Amendments: the 1991 and 1992 Amendments to the Florida Administrative Procedures Act, 20 FLA. ST. U. L. REV. 367 (1992) pp 390- 405.

COPIES FURNISHED:

Timothy J. McDermott, Esquire Post Office Box 14245

Fort Lauderdale, Florida 33302

Clark R. Jennings, Esquire Department of Legal Affairs Office of the Attorney General The Capitol

Tallahassee, Florida 32399-1050

Daniel O'Brien, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2

Jacksonville, Florida 32202

Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

NOTICE OF JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rule of Appellate Procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the Agency Clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the appellate district where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

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DISTRICT COURT OPINION

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

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

FLORIDA CONSTRUCTION INDUSTRY NOT FINAL UNTIL TIME EXPIRES TO LICENSING BOARD, FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

Appellant,

v. CASE NO. 93-732

DOAH CASE NO. 92-3132RU

LABADIE'S INC. d/b/a ATLANTIC COAST STEAMATIC,

Appellee.

/ Opinion filed March 9, 1994.

An appeal from the Division of Administrative Hearings. Mary Clark, Hearing Officer.

Robert A. Butterworth, Attorney General, and Clark R. Jennings, Assistant Attorney General, Tallahassee, for Appellant.

Michele K. Feinzig, of Tripp, Scott, Conklin & Smith, Ft. Lauderdale, for Appellee.

PER CURIAM.

AFFIRMED.

BARFIELD, WOLF and BENTON, JJ., CONCUR.

MANDATE

From

DISTRICT COURT OF APPEAL OF FLORIDA FIRST DISTRICT

To the Honorable, Mary Clark, Hearing Officer

Division of Administrative Hearings WHEREAS, in that certain cause filed in this Court styled:

LABADIE'S, INC., d/b/a

ATLANTIC COAST STEAMATIC Case No. 93-732

Your Case No. 92-3132RU

vs.

DEPARTMENT OF PROFESSIONAL REGULATION, CONSTRUCTION INDUSTRY LICENSING BOARD

The attached opinion was rendered on March 9, 1994

YOU ARE HEREBY COMMANDED that further proceedings be had in accordance with said opinion, the rules of this Court and the laws of the State of Florida.

WITNESS the Honorable E. Earle Zehmer

Chief Judge of the District Court of Appeal of Florida, First District and the Seal of said court at Tallahassee, the Capitol, on this 25th day of March, 1994.

Clerk, District Court of Appeal of Florida, First District

Docket for Case No: 92-003132RU

Orders for Case No: 92-003132RU