STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PETER ZARA, )

)

Petitioner, )

)

vs. ) Case No. 98-0956

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, ) BUILDING CODE ADMINISTRATORS ) AND INSPECTORS BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on February 5, 1999, by video between Miami and Tallahassee, Florida, before Claude B. Arrington, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Richard J. Caldwell, Esquire

2600 Douglas Road, Suite 1108 Coral Gables, Florida 33134

For Respondent: Theodore M. Henderson, Esquire

Leland L. McCharen, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUES

Whether Petitioner is entitled to be certified by endorsement as a standard building inspector.

PRELIMINARY STATEMENT

Petitioner applied for certification as a standard building inspector on two occasions. The first application was to sit for the certification examination administered by Respondent.

Respondent determined that Petitioner met the experience criteria for certification and permitted him to sit for the certification examination. After he failed to pass the certification examination, Petitioner applied for certification by endorsement pursuant to Section 468.613, Florida Statutes, which permits the Respondent to waive its ". . . examination, qualification, education, or training requirements to the extent that such examination, qualification, education, or training requirements are determined by the [Respondent] to be comparable with those established by the [Respondent]." After Respondent denied his application for certification by endorsement, Petitioner requested a formal administrative hearing, the matter was referred to Division of Administrative Hearings, and this proceeding followed.

At the hearing, the parties stipulated into evidence their respective exhibits. Petitioner's Composite Exhibit 1, which consisted of fifteen subparts, was accepted into evidence.

Respondent's Composite Exhibit 1 (consisting of Petitioner's application file for the application for certification by examination) and Respondent's Composite exhibit 2 (consisting of Petitioner's application file for certification by endorsement)

were admitted into evidence. No witness was called by either party.

A transcript of the proceedings has been filed. The Petitioner and Respondent filed Proposed Recommended Orders, which have been duly-considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Respondent is the agency of the State of Florida that certifies standard building inspectors pursuant to the provisions of Part XII of Chapter 468, Florida Statutes (consisting of Sections 468.601 - 468.633).

2. By application dated November 7, 1996, Petitioner applied for certification as a building inspector. This application contemplated that Petitioner would sit for the certification examination.

3. Respondent determined that Petitioner was qualified to sit for the Principles and Practice portion and the Technical portion of the certification examination. Petitioner did not achieve a passing score on the certification examination. Consequently, his application for certification was rejected.

4. By application dated December 22, 1997, Petitioner applied for certification as a building inspector without having to take the licensure examination. This was properly construed by Respondent to be an application for certification by endorsement. Petitioner requested Respondent to waive the

   certification examination pursuant to the provisions of Section 468.613, Florida Statutes, which provide as follows:

   The board shall examine other certification of training programs, as applicable, upon submission to the board for the consideration of an application for certification by endorsement. The board shall waive its examination, qualification, education, or training requirements to the extent that such examination, qualification, education, or training requirements are determined by the board to be comparable with those established by the board.

5. By his application dated December 29, 1997, Petitioner sought certification based upon his qualifications1 and upon what his counsel referred to as "substantially equivalent" exams.

6. The "substantially equivalent" exams to which counsel for Petitioner referred were to the examinations Petitioner passed in order to be licensed as a general contractor and as a roofing contractor. Petitioner's application reflects that he passed licensure examinations during 1983 in Broward County and in Dade County in the general contractor category. Petitioner passed a similar examination in Palm Beach County, Florida, in 1986.

7. Part XII of Chapter 468, Florida Statutes, was created by Chapter 93-166, Laws of Florida. Prior to 1993, there was no state-wide certification of building inspectors.

8. There was no evidence as to the contents of the examinations Petitioner passed in 1983 and 1986, and there was no evidence as to the contents of the certification examination

   administered by Respondent to candidates for certification as building inspectors. Consequently, there is no basis upon which a comparison of these examinations can be made.

   CONCLUSIONS OF LAW

   
   

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

10. Section 468.609(4), Florida Statutes, provides as follows:

    1. To obtain a standard certificate, an individual must pass an examination approved by the board which demonstrates that the applicant has fundamental knowledge of the state laws and codes relating to the construction of buildings for which the applicant has code administration or inspection responsibilities. It is the intent of the Legislature that the examination approved for certification pursuant to this part be substantially equivalent to the examinations administered by the Southern Building Code Congress International, the Building Officials Association of Florida, the South Florida Building Code (Dade and Broward), and the Council of American Building Officials.

       
       

    2. A standard certificate shall be issued to each applicant who successfully completes the examination, which certificate authorizes the individual named thereon to practice throughout the state as a building code administrator, plans examiner, or inspector within such class and level as is specified by the board.

       
       

    3. The board may accept proof that the applicant has passed an examination which is substantially equivalent to the board- approved examination set forth in this section.

11. Section 468.601, Florida Statutes, provides as follows:

    
    

    The Legislature finds that, where building code administration and inspection personnel fail to adequately, competently, and professionally administer state or local building codes, physical and economic injury to the citizens of the state may result and, therefore, deems it necessary in the interest of public health and safety to regulate the practice of building code administration and inspection in this state.

12. As an applicant for certification, Petitioner has the burden of persuasion in this proceeding. See Department of Banking and Finance v. Osbourne Stern and Company, 670 So. 2d 932 (Fla. 1996) and Florida Department of Transportation v. J.W.C. Company, 396 So. 2d 778 (Fla. 1st DCA 1981).

13. In the absence of evidence that the general contractor examinations administered in Broward and Dade Counties in 1983 and the Palm Beach County examination in 1986 were comparable to the building inspector examination developed by Respondent in response to the provisions of Section 468.609(4)(a), Florida Statutes, it cannot be concluded that Petitioner is entitled to certification by endorsement.2 Petitioner's argument that, had Respondent complied with the legislative intent expressed in the last sentence of Section 468.609(4)(a), Florida Statutes, the respective examinations would have been comparable does not substitute for such proof.3

14. Petitioner has failed to meet his burden of proof in this proceeding.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's application for certification by endorsement be denied.

DONE AND ENTERED this 21st day of April, 1999, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 1999.

ENDNOTES

1/ Petitioner's work experience is not at issue in this proceeding. He has the experience and qualifications to sit for the certification examination.

2/ There is no assertion that the certification examination developed by Respondent for building inspectors fails to comply with the legislative intent expressed in the final sentence of Section 468.609(4)(a), Florida Statutes.

3/ Petitioner presented no evidence that Broward and Dade Counties had adopted the South Florida Building Code prior to 1983, and he did not request the undersigned to take official recognition of that fact. For the purposes of resolving this dispute, the undersigned has assumed that the general contractor examinations passed by Petitioner in Dade and Broward Counties were taken after the South Florida Building Code had been adopted in those counties. The fact that Petitioner passed those general contractor licensure examinations in 1983 does not prove that those examinations are comparable to the building inspector

certification examinations that Respondent began to administer in 1993.

COPIES FURNISHED:

Richard J. Caldwell, Esquire 2600 Douglas Road, Suite 1108 Coral Gables, Florida 33134

Theodore M. Henderson, Esquire Lealand L. McCharen, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

Ila Jones, Executive Director Building Code Administrators and

Inspectors Board Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

William Woodyard, 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 within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 98-000956

Orders for Case No: 98-000956