STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
EUSEBIO VERRIER, )
)
Petitioner, )
)
vs. ) CASE No. 95-5207
)
DEPARTMENT OF BUSINESS AND )
PROFESSIONAL REGULATION, ) CONSTRUCTION INDUSTRY LICENSING ) BOARD, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on January 24, 1996, by video teleconference.
APPEARANCES
For Petitioner: Eusebio Verrier, pro se
14629 Southwest 104th Street Miami, Florida 33186
For Department William M. Woodyard
of Business Assistant General Counsel and Department of Business and Professional Professional Regulation Regulation: 1940 North Monroe Street
Tallahassee, Florida 32399-0750
For Construction Stuart F. Wilson-Patton Industry Assistant Attorney General Licensing Board: Department of Legal Affairs
The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050
STATEMENT OF THE ISSUE
At issue in this proceeding is whether petitioner's application to sit for the traditional thatched structure certification examination should be approved.
PRELIMINARY STATEMENT
On or about July 18, 1995, petitioner, Eusebio Verrier, filed an application with the Department of Business and Professional Regulation, Construction Industry Licensing Board (hereinafter referred to collectively as the Agency) for authorization to sit for the traditional thatched structure certification examination, and paid therewith the sum of $350.00 as an initial
application and examination fee. Subsequently, by letter of July 26, 1995, the Agency proposed to reject petitioner's application based on his failure to tender a total application and examination fee of $3,142.00 the Agency had established for the examination.
Following the Agency's letter of rejection, there ensued an exchange of correspondence between petitioner and the Agency, wherein the Agency sought to explain how, based on administrative costs in administering the examination and the developmental costs of the examination, the fee had been derived, and petitioner, who objected to the administrative and developmental costs as not being reasonable, as well as the imposition of developmental costs as being improper.
Ultimately, by letter of September 25, 1995, the Agency advised the petitioner that it had denied his application for failure to remit the balance of the examination fee, and advised petitioner of his right to a hearing pursuant to Section 120.57, Florida Statutes, if he chose to challenge the decision. Petitioner timely requested such a hearing, and on October 25, 1995, the Agency forwarded the matter to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct the formal hearing petitioner had requested. 1/
At hearing, petitioner testified on his own behalf, and petitioner's exhibits 1A, 1B, 1E - 1I, 1K - 1P, and 1-R were received into evidence. 2/ The Construction Industry Licensing Board called the petitioner and David Paulson as witnesses, and its exhibits 1 - 13 were received into evidence. The Department of Business and Professional Regulation called Stuart F. Wilson-Patton as a witness, but offered no further exhibits.
The transcript of hearing was filed February 13, 1996, and the parties were accorded, at their request, thirty days from that date to file their proposed recommended orders. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days of the date the transcript is filed. Rule 60Q-2.031, Florida Administrative Code. The parties proposed findings of fact, contained within their proposed recommended orders, are addressed in the appendix to this recommended order.
FINDINGS OF FACT
The Construction Industry Licensing Board and the examination at issue.
Pursuant to Section 489.107(1), Florida Statutes, there was "created within the [Department of Business and Professional Regulation] the Construction Industry Licensing Board" (Board) to carry out the provisions of Part I, Chapter 489, Florida Statutes, related to the regulation of the construction industry including, pertinent to this case, the certification of contractors.
In addition to certain mandatory statewide construction contracting licensure requirements, the Board is authorized, pursuant to Section 489.113(6), to designate those types of specialty contractors which may be certified under Part I, Chapter 489, Florida Statutes. That subsection provides:
The board shall, by rule, designate those types of specialty contractors which may be certified under this part. The limit of the
scope of work and responsibility of a speciality
contractor shall be established by the board by rule. However, a certified specialty contractor category established by board rule exists as a voluntary statewide licensing category and does not create a mandatory licensing requirement.
Any mandatory statewide construction contracting licensure requirement may only be established through specific statutory provision. 3/
Pursuant to subsection 489.113(6), the Board has adopted Rule 61G4- 15.025, Florida Administrative Code, providing for the certification of traditional thatched structure contractors. Among the requirements for certification, is the successful construction of a traditional thatched hut. The completed structure is evaluated on three general areas with relative weights as follows:
Foundation (25 [percent])
Structure (50 [percent])
Thatching (25 [percent])
While the rule requires the successful construction of a traditional thatched structure and prescribes the relative grading criteria, it is silent as to the location and manner in which the examination will be conducted.
Regarding such matters, the proof demonstrated that the Agency conducts the evaluation at any site selected by the candidate within the State of Florida, requires that the candidate provide the materials to construct the structure, and requires that the candidate provide blueprint specifications to the Agency before construction. As for the actual practical examination itself, while one might expect, by definition, an actual observation of the construction as it proceeds through its various stages, it is more in the nature of an evaluation and is conducted as follows:
Once the thatched hut is completed, then we send three evaluators plus a psychometrician to evaluate the foundation[,] structure and the thatching of the structure. Once the evaluation is completed, then the scores given by the three examiners are graded back at the Department of Business and Professional Regulation Office. [Transcript, page 89.]
The Department of Business and Professional Regulation and its relationship to the Board's certification process
Any person who desires to be certified by the Board is required to file an application with the Department of Business and Professional Regulation (Department) to take the certification examination. Sections 455.213(1) and 489.111(1), Florida Statutes.
The "preparation and administration" of the examination is the responsibility of the Department's Division of Technology, Licensure, and Testing. Section 455.217(1), Florida Statutes.
Following certification by the Board that the applicant has met the applicable requirements imposed by law or rule, the Department issues the appropriate license. Section 455.213(2), Florida Statutes.
The application at issue
On or about July 18, 1995, petitioner, Eusebio Verrier, filed an application with the Agency for authorization to sit for the traditional thatched structure certification examination.
The application was a printed form, which carried the following legend: APPLICATION FOR TRADITIONAL THATCHED STRUCTURE
CERTIFICATION EXAMINATION
FEE $3,142.00
THE ABOVE FEE(S) ARE NON-TRANSFERRABLE AND NON- REFUNDABLE[.] MAKE MONEY ORDER, CASHIER'S CHECK OR PERSONAL CHECK PAYABLE TO: DEPARTMENT OF BUSINESS [AND] PROFESSIONAL REGULATION
Petitioner, questioning the amount of the fee, made a number of phone calls to the Agency without satisfactory explanation. Finally, still questioning the reasonableness and propriety of the fee, petitioner, following a conversation with the Board's counsel, tendered the sum of $350.00 with his application, pending resolution of the examination fee issue.
By letter of July 26, 1995, the Agency advised petitioner that his application had been rejected because:
REASON(S) FOR REJECTION:
The required fee for the Traditional Thatched Structure Certification Examination is $3,142.00. Submit an additional $2,792.00 in order to process your application.
Petitioner continued to protest the reasonableness and propriety of the fee and at his request was accorded the opportunity to address the Examination Committee on September 14, 1995. The Examination Committee resolved not to alter the examination fee and, by letter of September 25, 1995, petitioner was advised by the Agency that it had denied his application "due to [his] failure to respond to requests for appropriate fees required to approve you to sit for the examination." This challenge to the Agency's action duly followed.
The reasonableness and propriety of the examination fee sought by the Agency
The Board's authority to establish fees is founded on Section 489.109(1), Florida Statutes, which provides as follows:
The board, by rule, shall establish reasonable fees to be paid for applications, examination, certification and renewal, registration and renewal, and recordmaking and recordkeeping. The fees shall be established as follows:
With respect to an applicant for a certificate, the initial application and examination fee may not exceed $350, and
the initial certification fee and the renewal fee may not exceed $200. [However, any
applicant who seeks certification under this part by taking a practical examination must pay as an examination fee the actual
cost incurred by the department in conducting the examination]. [Emphasis added.]
By Rule 61G4-12.009, Florida Administrative Code, the Board has established the following application and examination fees:
61G4-12.009 Fees. The following fees are prescribed by the Board:
Application for Certification by Examination; Refund.
The application and examination fee for the certification examination shall be three hundred and fifty dollars ($350) and shall be nonrefundable.
An applicant shall be entitled to volun- tarily withdraw from the examination and receive a refund of his examination fee if he submits a timely written request to the Board office. For purposes of this rule, a written request shall be deemed to be timely if received in the Board
office prior to the date funds have been expended to print examination materials.
The fee for the practical examination for certification as a Pollutant Storage System Specialty Contractor shall be seven hundred fifty dollars ($750) 4/
Notably, the Board has not established, by rule, the fee for the practical examination for traditional thatched structure certification; rather, the Board relies on policy to substantiate and impose the $3,142.00 application and examination fee it requires.
The basis or justification for the $3,142.00 application and examination fee is set forth in the Agency's letter of September 12, 1995, to petitioner, as follows:
In your letter of August 2, 1995 to Ms. Edgar you questioned the examination fee of $3,142. In an effort to alleviate your concerns I am describing below the elements of cost which required our attention in arriving at the cost per-candidate for this particular practical examination. Four hundred and twenty five
(425) psychometric hours were expended by the Bureau of Testing in researching and developing the performance tasks and grading criteria for this discipline. At the time these efforts were put forward by Bureau staff, our hourly rate was
$23.54. (The hourly rate is now $25.) When the
425 hours are multiplied by $23.54 we arrive at a sub-total of $10,004.50. We projected that we could possibly have a total of five candidates taking this examination in a one year period; therefore, we divided the $10,004.50 by five
candidates and arrived at a sub-total cost per candidate of $2,001. The administration cost
per candidate is established at $972 per candidate. The amount is broken down as follows:
Examiners' salary and travel $ 250 Staff's travel: meals/per diem $ 92 lodging (2 days) 250
air fare 285
ground travel 95
722
$ 972
Plus: Psychometric hours - per
candidate 2,001
Plus: Application Fee 169
Total Cost Per Candidate $3,142 [Petitioner's exhibit 1P]
Notably, the administrative costs ($972.00) as discussed more fully infra, are not actual costs, but are based on an estimate derived before administration of the first such examination.
The foregoing costs, upon which the fee is based, are delineated by the Agency as the cost of administration of the exam ($972.00), the prorated cost of exam development ($2,001.00), and an application fee ($169.00). 5/ [Petitioner's exhibits 1M and 1P, Board exhibits 2 - 5, and Board recommended order, findings of fact, at paragraph 16.]
The administrative cost of $972.00 is admittedly an estimate and not an actual cost figure. 6/ Indeed, as conceded by the Agency and demonstrated by the proof, actual administration costs depend upon the time required to administer the particular practical examination, 7/ the examination site selected by the candidate, the travel costs for a psychometrician from Tallahassee to attend the examination, and the travel and salary cost for three consultants/examiners to attend the examination. [Board's proposed recommended order, page 13, paragraph 28.] Moreover, again as conceded by the Agency, even were an actual cost derived for one examination, it would not necessarily be representative of actual cost for a future examination because of the foregoing variables, as well as subsequent fluctuations in the cost of airfare, meals or per diem, hotel bills and rental car charges. [Board's proposed recommended order, page 13, paragraph 28.]
Notwithstanding the foregoing, the Agency rigidly defends its adherence to a charge of $972.00 as the administrative cost for all practical examinations. The premise for that decision is apparently as follows:
[Due to the variables inherent in calculating actual cost] it is not possible for the Bureau [of Testing] to calculate an exact figure for the cost of administering the exam in advance. Based upon the information the Bureau has, it has calculated the estimated cost of adminis- tering the exam to be $972.00. Since the
Department is required to collect the examination fee in advance, this is the most reasonable manner in which the Department can calculate the estimated examination administration costs. [Board's
proposed recommended order, page 13, paragraph 28.]
The justification of the Agency for the fixed $972.00 fee is flawed and unpersuasive. First, the $972.00 estimate derived by the Bureau is not the "estimated cost of administering the exam," as suggested by the Agency, but is simply an estimate for conducting the first practical examination. The costs for the first practical examination were peculiar to it, and were not shown to bear any reasonable relationship to administration of the examination in general. More fundamentally, the fee to be paid by each applicant is limited to "the actual cost incurred by the department in conducting the examination," which the fixed fee of $972.00 is not. Section 489.109(1)(a), Florida Statutes. Finally, while it may not be possible for the Agency to calculate the actual cost of administering the examination before an application is filed, that is more a product of how the Agency has elected to site and administer the examination than it is a mathematical impossibility. More importantly, it is possible, as was done with the first examination, to calculate a proximate application specific cost, after the site of the examination has been selected and the time to administer the exam has been derived, assuming the Agency must collect the fee in advance, with subsequent adjustment for actual cost incurred. 8/ It is not, however, reasonable, as the Agency proposes, to charge each candidate the same fee, which bears no reasonable relationship to "the actual cost incurred by the department in conducting the examination" for that candidate.
Turning now to the cost of examination development, it is accepted, based on the proof, that the total examination development cost of $10,004.50 was reasonable. What is at issue is the reasonableness of the Agency's decision to allocate those costs over 5 candidates, as opposed to some other number, and, more fundamentally, the reasonableness of the Agency's assessment of any developmental costs against the candidates.
First, with regard to the Agency's decision to allocate the developmental costs between 5 candidates it must be concluded that the competent proof fails to demonstrate that such choice was reasonable. In this regard, it is noted that the decision to allocate the cost between 5 candidates was apparently made by Milt Rubin of the Board's office and Mary Alice Palmer of the Bureau of Testing; however, neither of these people testified at hearing and the basis for the derivation of their choice was not explained. What was offered was a memorandum from Mary Alice Palmer to Milt Rubin, dated March 7, 1994, that provided:
Milt, this will confirm our telephone conversation last week concerning the appropriate fee to be charged to our first Thatched Structure candidate, Mr. Val Deer. The following is the agreement you and I reached, as I remember it. If you see a problem, please call me:
The Bureau of Testing has expended 425 hours in developing the Thatched Structure Examination.
The Bureau's hourly rate is $17.02, plus $6.52 per hour for overhead (rent, equipment, etc.) for a total of $23.54. Therefore, 425 hours x $23.54 =
$10,004.50. We agreed we should have [at least] four more candidates in need of this examination sometime in the future. Therefore, if we divide
$10,004.50 by 5 candidates Mr. Deer's fee will be
$2,001, PLUS the Bureau's actual cost for adminis- tering the examination which amounts to $972.
Activities covered in the $972 include examiners fees, examiners travel, Bureau staff travel and other miscellaneous charges associated with the administration of the examination. Added to this
$2,973 is the Board's application fee of $354, LESS $185 (paid to the testing service for all other candidates) for a grand total of $3,142.
. . . [Board exhibit 3.] [Emphasis added.]
David Paulson of the Bureau of Testing, who did testify at hearing, had no actual knowledge as to how the number five was derived but, based on discussions with others, learned that Mr. Rubin thought "there would be at least three, but
. . . [Ms. Palmer] made that adjustment to five assuming that we would have at least five candidates in the near future." [Transcript, page 90.] Such observation is obviously not competent proof, and given the voluntary nature of the examination, there being no other rational explanation of record, it is most likely that the estimate of five was at best a guess, since "at the time the estimate was arrived, [the Agency] had no indication or other aspects with regard to the projected candidate population." [Transcript, page 92.] There being no competent proof to demonstrate the manner in which the number five was derived, utilization of that figure has not been shown to be a reasonable basis on which to allocate development costs among candidates. 9/
Finally, addressing the question of the propriety of assessing any exam development costs against the candidates, it is first observed that the Agency asserts that:
Both the [Department] and the [Board] interpret Section 489.109(1)(a), F.S., to require them to pass along the cost of exam development to candi- dates who take the certification specialty examin-
ation for traditional thatched structure contractor. These state agencies take the position that the cost of examination development is inherent in the cost of conducting the exam, because the exam cannot be conducted until it is developed. (T. 16, 156). [Board proposed recommended order, page 7,
paragraph 10.]
Whether section 489.109(1)(a) requires interpretation and, if so, whether the Agency's interpretation is reasonable is addressed in the conclusions of law which follow; however, it is worthy of note at this point to acknowledge Dr. Paulson's testimony that "the way we compute the per-candidate cost for this examination is similar to the way we compute the per-candidate cost in providing an examination in a foreign language." [Transcript, page 111.] Notably, those costs are allocated pursuant to Section 455.217(5), Florida Statutes, which provides:
(5) Each board, or the department when there is no board, may provide licensure examinations in an applicant's native language. Applicants for examination or reexamination pursuant to this subsection shall bear the full cost for the department's development, preparation, administration, grading, and evaluation of any examination in a language other than English.
Clearly, subsection 455.217(5) specifically authorizes a charge for development costs, whereas subsection 489.109(1)(a), upon which the charges in this case are based, does not.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Sections 120.57(1) and 120.60(1), Florida Statutes.
Here, petitioner is seeking approval of his application to take the traditional thatched structure certification examination. As the applicant, petitioner "carries the 'ultimate burden of persuasion' of entitlement." Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778, 787 (Fla. 1st DCA 1981). Petitioner need address, however, only those entitlement issues raised in the Agency's notice of proposed denial. See, Section 120.60(2), Florida Statutes, ("Each agency, upon . . . denying a license, shall state with particularity the grounds or basis for the . . . denial of the license. . . ."), and c.f., Woodholly Associates v. Department of Natural Resources, 451 So.2d 1002 (Fla. 1st DCA 1984).
The only entitlement issue raised by the Agency's notice of proposed denial was petitioner's "failure to respond to requests for appropriate fees required to approve you to sit for the examination." [Board exhibit 13.] Consequently, at issue is whether the application and examination fee established by the Agency, without benefit of rulemaking, is "appropriate" as the Agency suggests or, stated differently, whether the fees are reasonable and their imposition is proper.
Pertinent to the resolution of the issues raised in this case are the provisions of Section 489.109(1), Florida Statutes, which create and circumscribe the Agency's authority to establish fees for applications and examinations. That section provides:
489.109 Fees.--
The board, by rule, shall establish reasonable fees to be paid for applications, examination, certification and renewal, registration and renewal, and recordmaking and recordkeeping. The fees shall be estab- lished as follows:
With respect to an applicant for a certificate, the initial application and examination fee may not exceed $350, and the initial certification fee and the renewal fee may not exceed $200. However, [any applicant who seeks certification under this part by taking a practical examination must pay as an examination fee the actual cost incurred by the department in conducting the examination]. [Emphasis added.]
As a touchstone for the Agency's authority to assess, as part of the examination fee, the Department's cost of exam development, the Board and Department contend that they:
. . . interpret Section 489.109(1)(a), F.S., to require them to pass along the cost of development to candidates who take the certi- fication specialty examination for traditional thatched structure contractor. These state agencies take the position that the cost of examination development is inherent in the cost of conducting the exam, because the exam cannot be conducted until it is developed. [Board proposed recommended order, page 7, paragraph 10]
At first blush, the position of the Agency has a certain appeal; however, upon reflection, its perspective is misplaced and its rational unsound. The question is not whether the Agency can conduct an examination without the possession or development of the exam, but what activities the legislature authorized the Agency to tax as fees. Here, in clear language, the Legislature has limited or circumscribed those costs to "the actual costs incurred by the department in conducting the examination," and not other costs, such as exam development.
Generally, an administrative construction of a statute by an agency responsible for its administration is entitled to great deference and should not be overturned unless clearly erroneous. Department of Environmental Regulation
v. Goldring, 477 So.2d 532 (Fla. 1985), All Seasons Resorts, Inc. v. Division of Land Sales, Condominiums and Mobile Homes, 455 So.2d 544 (Fla. 1st DCA 1984), and Sans Souci v. Division of Land Sales and Condominiums, 421 So.2d 623 (Fla. 1st DCA 1982). Moreover, the Agency's interpretation does not have to be the only one or the most desirable one; it is enough if it is permissible. Florida Power Corp. v. Department of Environmental Regulation, 431 So.2d 684 (Fla. 1st DCA 1983). However, where the legislative intent as evidenced by a statute is clear and unambiguous, interpretation is unnecessary, and the forum need only give effect to the plain meaning of its terms. Van Pelt v. Hilliard, 75 Fla. 792, 78 So. 693 (1918).
The fundamental rules governing construction applicable to the instant case were aptly set forth in Florida State Racing Commission v. McLaughlin, 102 So.2d 574, 575 (Fla. 1958), as follows:
It is elementary that the function of the Court is to ascertain and give effect to the legislative intent in enacting a statute.
In applying this principle certain rules have been adopted to guide the process of judicial thinking. The first of these is that the Legis- lature is conclusively presumed to have a working knowledge of the English language and when a statute has been drafted in such a manner as to clearly convey a specific meaning the only proper function of the Court is to effectuate this legislative intent.
* * *
When construing a particular part of a statute it is only when the language being construed in and of itself is of doubtful meaning or doubt as to its meaning is engendered by apparent incon- sistency with other parts of the same or closely
related statute that any matter extrinsic the statute may be considered by the Court in arriving at the meaning of the language employed by the Legislature.
Accord, State v. State Racing Commission, 112 So.2d 825 (Fla. 1959); and Van Pelt v. Hillard, 75 Fla. 792, 78 So. 693 (Fla. 1918). To the same effect were the observations of the court in Newberger v. State, 641 So.2d 419, 420 (Fla. 2d DCA 1994), as follows:
The rules of statutory construction require that courts give statutory language its plain and ordinary meaning, unless the words are defined in the statute. Southeastern Fisheries Association, Inc. v. Department of Natural Resources, 453 So.2d 1351 (Fla. 1984). If necessary, the plain, ordinary meaning of a word can be found by looking in a dictionary.
Gardner v. Johnson, 451 So.2d 477 (Fla. 1984).
Here, the Legislature has directed that an applicant, such as petitioner, who seeks certification by taking a practical examination, must pay as an examination fee "the actual cost incurred by the department in conducting the examination." The words chosen by the Legislature are not archaic or obscure, but have a common meaning.
The American Heritage Dictionary of the English Language, New College Edition, describes the meaning of "conduct" and "conducting" as follows: "[t]o direct the course of; manage; control;" and as, "directing or controlling; management; administration." Such terms are, pertinent to this case, all synonymous with administration of the examination.
Clearly, the unambiguous language chosen by the Legislature limits the examination fee that may be charged an applicant to the actual costs of administering (conducting) the examination and excludes, by the words chosen, any charge for examination development. That the two activities are clearly distinquishable is apparent from the common meaning of the words chosen, as well as the Agency's own accounting, which clearly separates the costs of administration and development. Were there still any doubt as to the Legislature's intent or its understanding of the words it chose, one need only turn to a closely related statute, Section 455.217(5), Florida Statutes, where the Legislature again clearly articulated its intent and an appreciation of the dichotomy in definition between administration and development of examinations, as follows:
(5) Each board, or the department when there is no board, may provide licensure
examinations in an applicant's native language. Applicants for examination or reexamination pursuant to this subsection shall bear the full cost for the department's development, prepara- tion, administration, grading, and evaluation
of any examination in a language other than English.
Finally, the Legislature has directed, by the language chosen, that the examination fee be limited to the "actual" cost incurred by the department in conducting the examination. Again, the word chosen by the Legislature has a common meaning.
The American Heritage Dictionary of the English Language, New College Edition, describes the meaning of "actual" as "real; factual." It further describes "real" as "[b]eing or occurring in fact or actuality; having verifiable existence," and lists as synonymous "real, actual, true, authentic, concrete, existent, genuine, tangible, veritable."
Again the Legislature has chosen an unambiguous word, and has limited the fee that may be charged to the department's "actual" cost. The administrative cost sought to be charged petitioner is not and does not purport to be an actual cost to conduct his examination, but is an estimate of the cost to conduct an unrelated examination. Such cost is, therefore, improper.
It cannot be seriously debated that the application and examination fee established by the Agency for traditional thatched structure certification is, by definition, a rule. Section 120.52(16), Florida Statutes. The Agency has, however, chosen not to adopt the fee through the formal rulemaking process. Consequently, the fee is viewed as a defacto rule or incipient policy. Phillips
v. Department of Corrections, 472 So.2d 1307 (Fla. 1st DCA 1985).
Where, as here, the Agency has chosen not to codify its policy through the formal rulemaking process, its policy choice is not accorded a presumption of correctness and it must not only explicate, support and defend its incipient non-rule policy "with competent, substantial evidence on the record," it "must expose and elucidate its reasons for its discretionary action." St. Francis Hospital, Inc. v. Department of Health and Rehabilitative Services, 553 So.2d 1351, 1354 (Fla. 1st DCA 1989); see also, Section 120.57(1)(b)15, Florida Statutes, Health Care and Retirement Corp. v. Department of Health and Rehabilitative Services, 559 So.2d 665 (Fla. 1st DCA 1990); and McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977).
Here, the Agency has failed to demonstrate that the application and examination fee of $3,142.00 it demanded of petitioner to take the traditional thatched structure certification examination was founded on logic and reason. To the contrary, the proof demonstrates that the administration charge the Agency sought to impose was not the "actual cost" for the administration of petitioner's examination and that the prorata cost for examination development it also sought to charge was illusory, and not based on reason or logic. More fundamentally, the cost of examination development was not a charge authorized by the Board's enabling legislation. Consequently, as contended by petitioner, the fee the Agency sought to impress upon him lacked any rational basis in fact and law.
When, as here, a Hearing Officer has conducted a hearing pursuant to the provisions of Chapter 120 with respect to the issuance of a license by the Department, he is required to "submit his recommended order to the appropriate board, which shall thereupon issue a final order." Section 455.213(4), Florida Statutes. "The applicant for [the] license may appeal the final order of the board in accordance with the provisions of Chapter 120." Section 455.213(4), Florida Statutes.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order sustaining petitioner's
objection to the fee, and granting petitioner's application to take the traditional thatched structure certification examination contingent upon payment of the application fee of $169.00 and the "actual cost" incurred by the Department in conducting the examination at a site selected by petitioner, which cost shall not include the cost of examination development. The Department's "actual cost" should be reasonable, and petitioner should be accorded credit for any monies heretofore paid in connection with his application.
DONE AND ENTERED this 4th day of April 1996 in Tallahassee, Leon County, Florida.
WILLIAM J. KENDRICK, 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 4th day of April 1996.
ENDNOTES
1/ At hearing, the Board, through counsel, sought, during the course of opening statements, to limit the proceedings as follows:
Both the Construction Board and the Department agree that section 489.109(1)(a) of the Florida Statutes, the statute that sets the examination fee for practical exams, requires Mr. Verrier to pay the quote, actual cost, incurred by the Department in conducting the examination, period.
Both the respondents agree that the statute requires that the Department pass along to Mr. Verrier and other candidates the cost of examination development. Mr. Verrier disputes the actual cost of the exam development, and he disagrees with the respondents' interpretation of the statute.
In our view, Mr. Verrier has never contested or disputed the cost of the examination administration, and that is not at issue today, nor is the proper interpretation of the statute at issue. The Construction Board has sufficient statutory authority to interpret Chapter 489, and the meaning of the statute is not [a] factual issue. Rather, that is purely a legal issue.
The Agency's jurisdiction--that is, this Agency's jurisdiction--has been invoked for the limited purpose of deciding the narrow factual issue about which there is a dispute of material fact. That is, what are the actual costs of the examination development of the Traditional Thatched Structure Exam.
[Transcript, pages 16 and 17.]
A review of the documents forwarded to the Division of Administrative Hearings [Petitioner's Exhibit 1A - 1R], with the Agency's referral for hearing, reflected that petitioner had, indeed, disputed the reasonableness of administrative and developmental costs, as well as the propriety of assessing
the costs of development of the examination. Consequently, the Department's effort to restrict the scope of inquiry was rejected.
In the Board's proposed recommended order, at page 2, it again asserts:
. . . There is no dispute as to any material fact about, nor was this case transferred to the Division to decide, whether the cost of exam development is properly included in the cost of conducting the practical exam in question pursuant to Section 489.109(1)(a), F.S. Both the CILB and DBPR are agreed that the statute requires the inclusion of exam development costs in the calculation of the exam application fees for the practical exam for certified traditional thatched structure contractor's licensure.
Again, the Agency's effort to restrict the scope of review is rejected.
Notably, the Agency's referral letter contains no such restriction, and it would be improper for the Agency to act other than as a party at this stage of the proceeding. Section 120.57(1)(b)3, Florida Statutes. Moreover, as discussed in the conclusions of law that follow, the Department's and Board's agreement on the interpretation of the statute does not remove from consideration the threshold issue of whether interpretation is necessary and, if necessary, whether the Agency's interpretation is permissible. Finally, the Agency's failure to adopt the fees as a rule requires that it defend its decision by competent substantial evidence. Consequently, the reasonableness of the administrative and developmental costs, as well as the propriety of assessing any developmental costs is appropriately before the Hearing Officer.
2/ Respondent's objections to petitioner's exhibits 1C, 1D, 1J, 1Q, 2, 3, and 4, were sustained, and they were not received into evidence.
3/ While the traditional thatched structure license is voluntary, petitioner, who has been building such structures in Dade, Broward and Monroe Counties for a number of years without the need for licensure, has recently experienced problems in Dade and Monroe Counties. Those counties, absent a contractor's license, are now requiring either a roofing license or a traditional thatched structure license to re-thatch chikkee huts. Consequently, while licensure may be considered voluntary by the State, the existence of such specialty licensure has assumed a different dimension on a local government level.
4/ Rule 61G4-15.016, Florida Administrative Code, relating to Pollutant Storage System Specialty Contractors was repealed July 18, 1994.
5/ Board rule 61G4-12.009(1)(a), supra, establishes an application and examination fee of $350.00, but does not designate what portion of the fee is allocated to an application fee and what part to an examination fee.
Apparently, the Board considers the fee of $350.00 to consist of a $169.00 application fee and a $181.00 examination fee.
6/ The administrative cost of $972.00 was an estimate derived in anticipation of the first practical examination, which was given in Monroe County. The actual cost of that examination was $909.98; however, as noted by the Agency, two consultants did not submit bills for their time. Had they charged for their time, the cost would have been approximately $1,110.00. Notwithstanding, the variable cost of the first examination underscores the fact that $972.00 is not an actual cost and the first applicant was not charged actual cost.
Nevertheless, the Agency has adhered to the fixed figures it initially developed.
Petitioner also challenged the reasonableness of the $972.00 figure for administration, contending those costs may be inflated. In this regard, the first examination, upon which the estimate was based, was conducted in Monroe County. Notwithstanding, the psychometrician flew from Tallahassee to Fort
Lauderdale, and then apparently drove to Monroe County where she spent three days at the site for the exam and returned to Fort Lauderdale. The consultant examiner dedicated only eight hours, including travel time, on one day for the examination. Considering the discrepancy in time between the psychometrician and the consultant, and the psychometrician's selection of itinerary, a suspicion does exist as to the reasonableness of the $972.00 figure itself.
However, suspicion is not fact and it cannot be concluded, based on the proof in this case, that the costs of administering the first exam were not reasonable.
Such conclusion does not, however, detract from the finding that such costs are not reasonably related to the costs for other examinations, depending on the site of the exam and the time necessary to conduct it.
7/ As for the time necessary to conduct the examination/ evaluation of the structure, the proof is far from compelling. As with the agency employees who resolved to apportion the cost of development among five candidates, the psychometrician who actually administered the first examination also did not testify at hearing. The only witness to testify was Dr. Paulson, who had no actual knowledge in this regard. He first observed that one day would be required for the exam, but on review of the psychometrician's travel voucher observed that two days was appropriate. Given the paucity of proof, as well as the manner in which the examination (evaluation) is conducted, it is not possible to comfortably resolve the time actually needed for evaluation of the first examination; however, in view of the conclusion that the estimate for the first examination is not a reasonable guide to the cost of administration of other examinations it is not necessary to resolve that question.
8/ At hearing the Board offered proof, through the testimony of David Paulson, that the Department must collect the examination fee in advance [Transcript, at page 101]. While, no authority was advanced for his conclusion, it would certainly appear fiscally sound to collect the examination fee before the exam is administered. That does not, however, require that the fee be paid with the application, as opposed to a later date when the site of the exam is known, the time necessary to conduct the exam can be calculated, and the other variables are known.
9/ In testifying in support of the five candidate figure, Dr. Paulson opined that in retrospect the five number was generous because they "had only had one candidate so far [and] [e]van though the statute allows the Department to charge the entire cost to one candidate, to be fair to the candidate we decided to split that by five based on the estimation of candidates within the first one- year period." Dr. Paulson's opinion is hardly compelling. First, he had no part in the decision, and could offer no real basis for the number's derivation. Second, as discussed infra, the statute does not authorize a charge for examination development against the candidates. Finally, if one wishes to speculate, the dearth of candidates can be as easily attributed to the magnitude of the fee the Department demanded, as it can be to a lack of interest, as Dr.
Paulson seeks to suggest.
APPENDIX
Petitioner's proposed recommended order has been considered; however, it is more in the nature of argument, as opposed to proposed findings of fact, and need not be specifically addressed.
The Board's proposed findings of fact are addressed as follows:
1 and 2. Addressed in paragraphs 1 and 2.
Addressed in paragraph 6, otherwise unnecessary detail.
Addressed in paragraph 3 and endnote 3.
5 and 6. Addressed in paragraphs 3 and 4.
Accepted. Addressed in endnotes 6 and 9, otherwise unnecessary detail.
Addressed in endnote 6.
Addressed in paragraph 13.
Addressed in paragraph 22.
Addressed in paragraphs 8 through 10.
Addressed in paragraph 11.
13 and 14. Addressed in paragraph 12.
First sentence addressed in endnote 3. Second sentence rejected as not relevant.
Addressed in paragraphs 15 and 16
17 through 20, 22 through 24, and 29. Addressed in paragraph 20, otherwise subordinate or unnecessary detail.
21. Addressed in endnote 6.
Addressed in paragraph 4.
Addressed in paragraphs 21 through 23 and endnote 7 and 9. Last sentence rejected as not credible and contrary to the facts as fond.
Addressed in endnote 6.
First sentence rejected as misleading. While the Bureau of Testing did propose an estimate for the hearing, the estimate upon which the application fee was based was prepared before the first examination. Second sentence addressed in paragraphs 17 and 19. Third sentence addressed in paragraphs 15 and 17. Fourth sentence addressed in paragraph 19, otherwise rejected as contrary to the facts and conclusions reached. Fifth sentence addressed in paragraph 17. Sixth sentence rejected as contrary to the facts found and conclusions reached. See paragraphs 17 and 19. Seventh sentence rejected as contrary to the facts found and conclusions reached. Eighth sentence addressed in endnote 7. Ninth sentence rejected as not relevant since not at issue and the predicate for such assessment not of record; however, see paragraphs 23 and
34 which render questionable, if true, the propriety of the Agency's action.
The Department's proposed recommended order merely adopted the Board's proposed findings of fact 1 through 31, which have heretofore been addressed.
Consequently, it is not necessary to address the Department's proposed findings of fact separately. As for the Department's two proposed conclusions of law, they are rejected as inapplicable to this case. See paragraphs 30 through 37. Indeed, were statutory interpretation appropriate in this case, and resort be had to the rules applicable to such situations, it would be in appropriate, as suggested by the Department, to resort to an enactment not relating to the subject matter at hand, such as legislation concerning the Comptroller's Office, to resolve the Legislature's intent. See e.g., Florida State Racing Commission
McLaughlin, 102 So.2d 574 (Fla. 1958).
COPIES FURNISHED:
Mr. Eusebio Verrier
14629 Southwest 104th Street Miami, Florida 33186
William M. Woodyard Assistant General Counsel Department of Business and
Professional Regulation 1940 North Monroe Street
Tallahassee, Florida 32399-0750
Stuart F. Wilson-Patton, Esquire Office of the Attorney General The Capitol, Suite PL-01 Tallahassee, Florida 32399-1050
Richard Hickok, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300
Jacksonville, Florida 32211-7467
Lynda L. Goodgame, General Counsel Department of Business and
Professional Regulation 1940 North Monroe Street
Tallahassee, Florida 32399-0792
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION
Construction Industry Licensing Board
EUSEBIO VERRIER,
Petitioner,
vs. DOAH CASE NO.: 95-5207
DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, CONSTRUCTION INDUSTRY LICENSING BOARD
Respondents.
/
FINAL ORDER
THIS MATTER came before the Construction Industry Licensing Board (hereinafter referred to as the "Board') pursuant to Section 120.57(1)(b)1O., F.S., on June 14, 1996, in Ft. Lauderdale, Florida, for consideration of the Recommended Order issued by the Hearing Officer in the above styled case (a copy of which is attached hereto and incorporated herein by reference). The Petitioner was present and was represented by Roy E. Granoff, Esquire
Respondent Board was represented by Stuart F. Wilson-Patton, Assistant Attorney General. During the presentation of this case to the Board, the parties reached a settlement agreement, the terms of which are incorporated in this Final Order.
Upon consideration of the Hearing Officer's Recommended Order, the settlement agreement announced by the parties, the arguments of Counsel for the parties and after a review of the complete record in this matter, including the exceptions filed by all parties, the Board makes the following:
FINDINGS OF FACT
The parties announced at the hearing that in exchange for the Petitioner's agreement to support all of the Respondent Board's exceptions to the Recommended Order and the Petitioner's agreement not to take any appeal from the Final Order, that the Petitioner would be allowed to take the Traditional Thatched Structure Contractor's examination within reasonable time for a total cost of $2,000.00 with a credit given for the $350.00 he had already paid. In addition, the Petitioner would be allowed one retake of the examination, if necessary, within ninety (90) days, for the actual cost of exam administration. This agreement was approved by unanimous vote of the Board.
The Board accepts Board Counsel's exceptions to paragraphs 14-23, and
26 of the Recommended Order on grounds that those Findings of Fact were not supported by competent, substantial evidence, and the proceedings upon which
they were based did not comply with the essential requirements of law. The rest of the Findings of Fact in the Recommended Order are approved and adopted.
The Board hereby adopts and incorporates by reference paragraphs 1-7 of the Board Counsel's Exceptions To Recommended Order, a copy of which is attached. The Board also adopts and incorporates by reference paragraphs 7, 17- 23, and 26-31 of the Board Counsel's Proposed Recommended Order (copy attached) as part of its Findings of Fact.
There is competent, substantial evidence to support the Board's Findings of Fact.
CONCLUSIONS OF LAW
The Board has jurisdiction of this matter pursuant to the provisions of Section 120.57(1), and Chapter 489, Florida Statutes.
The Board hereby rejects the following portions of the Recommended Order: (1) the last sentence of paragraph 26; (2) the words "contend that they" in the first sentence of paragraph 28; (3) paragraph 29; (4) the last sentence of paragraph 30, and (5) paragraphs 38-40, for the reasons set forth in paragraphs 8-1 2 of the Board Counsel's Exceptions To Recommended Order, which the Board adopts and incorporates by reference. The Board hereby adopts and incorporates by reference paragraphs 2-8 of the Conclusions of Law from the Board Counsel's Proposed Recommended Order.
The rest of the Hearing Officer's Conclusions of Law, are hereby approved and adopted in toto.
There is competent, substantial evidence to support the Board's Conclusions of Law.
RECOMMENDATION
1. The Hearing Officer's Recommendation is hereby rejected, except that the Petitioner shall be given credit for the $350.00 he has already paid and he shall be allowed to take the Traditional Thatched Structure Contractor's Practical Examination upon payment of an additional $1,650.00. In addition, the Petitioner shall be allowed one retake of the examination, if necessary, within ninety (90) days, for the actual cost of exam administration, provided that the Petitioner does not appeal this Final Order.
THEREFORE, IT IS ORDERED AND ADJUDGED:
That the Findings of Fact and Conclusions of Law shall be as set forth herein.
The Petitioner's application to take the Traditional Thatched Structure Contractor's Practical Examination is approved provided that the Petitioner does not appeal.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been provided by U.S. Mail to: Roy E. Granoff, Esquire, Suite 400, 12515 N. Kendall Drive, Miami, Florida 33186, Stuart F. Wilson-Patton, Assistant
Attorney General, PL-01, The Capitol, Tallahassee, Florida 32399-1050, William
M. Woodyard, Assistant General Counsel, DBPR, 1940 N. Monroe Street, Tallahassee, Florida 32399-0750, Honorable William J. Kendrick, ALJ, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550, Eusebio Verrier, 14629 Southwest 104th Street, Miami, Florida 33186, and by hand delivery/United States Mail to the Board Clerk, Department of Business and Professional Regulation and its Counsel, Northwood Centre, 1940 North Monroe Street, Tallahassee, Florida 32399-0792, on or before 5:00 p.m., this 16th day of October 1996.
ROBERT NAGIN, 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 U.S. Mail to: Roy E. Granoff, Esquire, Suite 400, 12515 N. Kendall Drive, Miami, Florida 33186, Stuart F. Wilson-Patton, Assistant Attorney General, PL-01, The Capitol, Tallahassee, Florida 32399-1050, William
M. Woodyard, Assistant General Counsel, DBPR, 1940 N. Monroe Street, Tallahassee, Florida 32399-0750, Honorable William J. Kendrick, ALJ, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550, Eusebio Verrier, 14629 Southwest 104th Street, Miami, Florida 33186,
and by hand delivery/United States Mail to the Board Clerk, Department of Professional Regulation and its Counsel, Northwood Centre, 1940 North Monroe Street, Tallahassee, Florida 32399-0792, on or before 5:00 p.m., this 15th day of November, 1996.
BRANDON L. MOORE
| Issue Date | Proceedings |
|---|---|
| Nov. 18, 1996 | Final Order filed. |
| Apr. 12, 1996 | Order Correcting Scrivener`s Error sent out. |
| Apr. 11, 1996 | Motion to Correct Technical Error (Respondent) filed. |
| Apr. 04, 1996 | Recommended Order sent out. CASE CLOSED. Hearing held 01/24/96. |
| Apr. 04, 1996 | Order sent out. (Re: Department`s Proposed Recommended Order) |
| Mar. 18, 1996 | Department of Business and Professional Regulation`s Proposed Recommended Order filed. |
| Mar. 14, 1996 | (Respondent) Motion for Extension of Time to File Proposed Recommended Order filed. |
| Mar. 13, 1996 | (Petitioner) Proposed Recommended Order filed. |
| Mar. 12, 1996 | The Construction Industry Licensing Board`s Proposed Recommended Order (for Hearing Officer Signature) filed. |
| Feb. 13, 1996 | (Transcript) filed. |
| Jan. 24, 1996 | CASE STATUS: Hearing Held. |
| Jan. 22, 1996 | Letter to Eusebio Verrier from David Paulson Re: Response to letter dated 9/15/95 w/cover letter filed. |
| Jan. 22, 1996 | Letter to WJK from Stuart Wilson-Patton (RE: enclosing additional material that will be referenced at hearing, tagged) filed. |
| Jan. 16, 1996 | (Respondent) Motion for Teleconference Hearing filed. |
| Nov. 17, 1995 | Notice of Hearing sent out. (hearing set for 1/24/96; 8:30am; Miami) |
| Nov. 13, 1995 | (Stuart Wilson-Patton) Joint Response to Initial Order filed. |
| Nov. 09, 1995 | (Petitioner) Joint Response to Initial Order filed. |
| Oct. 31, 1995 | Initial Order issued. |
| Oct. 26, 1995 | Agency referral letter; Request for Formal Hearing, Letter Form; Dispute Of Facts (2); Application for Refund From The State Of Florida; Agency Action Letter (2); Letter From Mary Alice Palmer filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 16, 1996 | Agency Final Order | |
| Apr. 04, 1996 | Recommended Order | Fee established by agency for examination not authorized by statute. |
