STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
GARY L. NEAL,
Petitioner,
vs.
DEPARTMENT OF INSURANCE, DIVISION OF STATE FIRE MARSHALL,
Respondent.
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) Case No. 01-3881
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RECOMMENDED ORDER
Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly-designated Administrative Law Judge of the Division of Administrative Hearings in Pensacola, Florida, on August 20-21, 2002. The appearances were as follows:
APPEARANCES
For Petitioner: Edward M. Fleming, Esquire
McDonald, Fleming, Moorhead, Ferguson Green & Smith, LLP
4300 Bayou Boulevard, Suite 13
Pensacola, Florida 32503-2671
For Respondent: Elenita Gomez, Esquire
Department of Insurance Division of Legal Services
200 East Gaines Street 612 Larson Building
Tallahassee, Florida 32399-0333
STATEMENT OF THE ISSUE
The issue to be resolved in this proceeding concern whether the Petitioner Gary L. Neal, is qualified by virtue of experience, training and education, in accordance with the provisions of Section 633.521, Florida Statutes, to sit for the Fire Protection Systems Contractor V examination for licensing.
PRELIMINARY STATEMENT
This case arose upon the Department of Insurance, Division of State Fire Marshal's (Agency; Department) denial of the Petitioner's application to sit for the "Contractor V" licensing examination. The Petitioner was advised by letter of August 28, 2001, of that denial. He sought a formal proceeding to contest that denial and the Amended Denial Letter dated October 17, 2001.
The Petitioner submitted an amended application on March 8, 2002, to include additional documentary evidence supporting his application. The Motion for Leave to Amend the Application was granted by the undersigned.
The cause came on for hearing as noticed and the hearing was conducted on the above-referenced dates.
The Petitioner testified on his own behalf at hearing and presented the testimony of Lee Brown, a licensed construction professional and, by deposition, the testimony of witnesses
Thomas M. Brown, Dale R. Cowie and Jimmy Patrick Riley. Additionally, the Petitioner presented Exhibits 1 through 5,
7 through 24, 31, 34 through 42 and 46, which were admitted into evidence.
The Respondent presented the testimony of Terry Hawkins, as representative of the Department. It also offered the deposition testimony of L. Wray Nolting. The Respondent's Exhibits 1 through 6 and 8 through 10, were admitted into evidence. Upon the conclusion of the proceeding a transcript thereof was ordered and the parties availed themselves of the right to submit proposed recommended orders. Those Proposed Recommended Orders were timely filed and have been considered in the rendition of this Recommended Order.
FINDINGS OF FACT
The Petitioner Gary L. Neal seeks to take a written examination for purposes of ultimate licensure as a "Fire Protections Systems Contractor V." The Contractor V license enables a license holder to install underground water mains that are connected to a fire protection system, such as a sprinkler system.
The Petitioner presently holds a Certified Plumber's License in the State of Florida and has been so licensed since March 11, 1981. He also holds a Master Plumber's License for the State of Georgia. Prior to the creation of a separate
license for installation of underground water mains connected to Fire Protection Systems, the Contractor V license for which the Petitioner seeks to be examined, installation of these water mains was performed by certified plumbing contractors, including the Petitioner, and by underground utility contractors.
Underground water mains installed for potable water and fire protection systems were once one and the same, before Fire Code changes mandated that these be separate lines. Even after the creation of the Contractor V license, local code enforcers took the position that plumbers and underground utility contractors could perform this work, so long as they did so under the supervision and control of Fire Protection Contractors, which practice continued until 1996. The Petitioner established that, as a Certified Plumbing Contractor since 1981, he has installed underground water mains for many years, including water mains connected to fire protection systems, as well as those connected to potable water systems. His testimony was corroborated by the sworn deposition testimony of persons who have supervised his work. See Exhibits 43, 44 and 45, in evidence.
The trenching, excavation and pipe assembly skills required for installing underground water mains are the same whether the water main is used for Fire Protection Systems or used for potable water. The only substantive difference is the materials used and the testing procedures. For water mains
connected to Fire Protection Systems, materials and testing are controlled by the National Fire Protection Association Code (NFPA), as adopted by the State of Florida. Knowledge of that fire code is tested on the Contractor V examination, which the Petitioner seeks to take. All other aspects of installing underground water mains, whether for use by Fire Protection Systems or for potable water, are governed by the National Plumbing Code, which applies to the work of Certified Plumbing Contractors such as the Petitioner, Certified underground utility contractors and Fire Protection Contractor V contractors.
Both Florida and Georgia allow persons holding plumbers licenses to install underground utilities, work that may also be performed by underground utility and excavation contractors in Florida. Both Florida and Georgia require plumbing contractors to take continuing education courses in subjects that include the installation of underground utilities and excavation. In Florida these courses include NFPA Code material.
The Petitioner demonstrated, through un-rebutted evidence that he has satisfied the continuing education requirements (annually) of both Florida and Georgia through taking formal classroom education courses in subjects that have included course work in trenching, excavation and installation of underground water mains. These classes have included course
work in the National Fire Protection Association Code governing the installation of components of fire protection systems.
Prior to obtaining his Certified Plumber's License in 1981, the Petitioner was employed by various underground utility and excavation contractors, including Junger Utilities, as well as certified plumbing contractors who performed underground utility and excavation contracting. The Petitioner's experience included excavation for and installation of underground water mains. The Petitioner's experience with these companies was established by his un-refuted sworn testimony since these companies are no longer in existence and could not have a representative to testify or supply letter documentation.
The Petitioner has established a total experience of more than 28 years in the installation of underground water mains and other underground utilities, including the installation of water mains connected to fire protection systems. This was established through the un-rebutted testimony of the Petitioner and corroborated by the deposition testimony of witnesses Thomas M. Brown, Dale R. Cowie and Jimmy Patrick Riley. This experience was gained both as an employee of companies performing underground utilities work and through directly contracting for such work by virtue of holding a license that authorized him to contract for underground utilities work. (Certified Plumber's License).
The Petitioner is employed by Professional Plumbing of NWF, Inc., as President, Chief Executive Officer, as well as qualifying agent. Professional Plumbing of NWF, Inc., the Petitioner's own corporation, is a company that, because of the Petitioner's certified plumbers license, is authorized to perform and does perform trenching, excavation and installation of underground water mains as part of its underground utilities work. The Petitioner has been employed in that position since 1987.
The Petitioner's 28 years of experience in performing layout, design, excavation and underground pipe assembly has included, without limitation, the same work for which he seeks to sit for an examination; i.e., the installation of the underground components of Fire Protection Systems. The fact that the Petitioner has successfully performed not only closely related work involving installation of underground water mains, but has successfully performed and completed the very same work for which he seeks to be licensed (by virtue of his Certified Plumber's License) is relevant to the issue of whether he has demonstrated sufficient education and experience to qualify him to sit for the Contractor V examination.
During the Petitioner's 28 years in his profession he has worked as a laborer, a foreman, a project superintendent and a qualifying agent for a company (Professional Plumbing of NWF,
Inc.) that installs underground water mains. His experience has included layout, design, financial administration and project management for underground utilities work. The Petitioner, by virtue of being a State Certified Plumber, has gained experience in "laying-out, fabricating, installing, inspecting, altering, repairing, or servicing fire protection systems" for purposes of qualifying for the "highest level" or scope of fire protection systems license, the Contractor I license. Although such experience is not a prerequisite to qualify for the lowest level or scope of fire protection license, the Contractor V license which the Petitioner seeks; the fact that the Department recognizes by Rule 4A-46.010, Florida Administrative Code, that the Petitioner, as a plumber, gains such experience is relevant to whether the Petitioner is qualified to sit for the Contractor V examination.
The Department has conceded that a Contract I License is a "higher license" or higher or broader scope of license than that of a Contractor V, the license which the Petitioner seeks. The Department also concedes that a Contractor I, without holding a separate Contractor V license, may nonetheless perform every aspect of the work that may be performed by a Contractor V. Thus a Contractor V's license is a "lesser included" license to that of a Contractor I or a Contractor II.
Similarly, it has been established that an underground utility and excavation contractor's license is a "lesser included" license to that of a Certified Plumbing Contractor, as a Certified Plumbing Contractor can perform all aspects of underground utilities and excavations that may also be performed by the holder of that "lesser" license. The minutes of the Construction Industry Licensing Board in evidence, together with the associated letter in evidence, establishes that that Agency, which is charged with the jurisdiction of regulating licensure and practice of both Certified Plumbing Contractors and underground utility and excavation contractors, interprets the latter license as being a lesser included license to that of Certified Plumbing Contractor and that a Certified Plumbing Contractor can perform all aspects of underground utility and excavation contracting. See Petitioner's Exhibits 3, 4, 36, 37,
38 and 42, in evidence.
The Department's witness at hearing conceded that the Petitioner's more than 20 years of experience as a Certified Plumbing Contractor was the "equivalent of" the experience that would be gained from "working for" an underground utility contractor for four years.
Given that concession, and in determining whether the Petitioner qualifies by the combination of education and experience method contained in the statute relating to
qualification for the Contractor V examination, it must be determined whether the "education" he has attained is equal to that he would have gained in the "employment of" a Certified Underground Utilities Contractor." In this regard, given his acknowledged 28 years of experience, the Department acknowledged that the amount of education that the Petitioner would need to demonstrate would be minimal.
The Respondent has also acknowledged that the "education" that the Petitioner must show to sit for the Contractor V examination would be the type of education the Petitioner would have gained by working for an underground utility contractor for four years. It was established that the type of education that could be expected from working for an underground utility contractor for four years would not be college education or necessarily formal classroom education but rather acquiring that body of knowledge required to install underground utilities including water mains through education on the job and through continuing education courses.
Even if it were assumed that the Petitioner's Certified Plumbing Contractor's license is not at least "equal to" that of an underground utility and excavation contractor's license, which therefore would automatically qualify the Petitioner to sit for the examination, the Petitioner amply demonstrated at hearing that he had obtained the same body of
knowledge, i.e., "education," at a minimum, that he would have obtained by virtue of being employed for four years by a company holding the "lesser included" license, i.e., the underground utility and excavation contractor's license.
The Petitioner established that he acquired the "equivalent to" education through on-the-job training during more than 28 years in the business of installing and supervising the installation of underground utilities, as well as through attending more than 100 hours of formal classroom education in subjects that taught the skills required for the bidding, estimating, layout, design and performance of underground utilities work.
The Petitioner established this education through his sworn testimony, as well as documentary evidence. He introduced into evidence, supplemented by his sworn testimony, all of the documentation of these courses within his possession and control. These continuing education courses are not graded, therefore, there could be no "transcripts."
Although not specifically required by the governing statute, Chapter 633, the Petitioner demonstrated that his formal classroom education includes some 53 hours of instruction in the National Fire Protection Association Code governing fire protection contractors. He demonstrated that he has obtained formal classroom instruction in courses teaching the skills
required for the performance of underground utilities work. In fact it was established that Certified Plumbing Contractors such as the Petitioner and Certified Underground Utility and Excavation Contractors, such as Lee Brown, who testified for the Petitioner, often take the same continuing education courses, in the same subject, due to the overlap in their scope of work.
These courses are typically taught by industry professionals who know their subjects, rather than by local colleges. In fact, the Petitioner has more than 100 hours of classroom education on subjects including course material in the NFPA Codes, as well as technical issues relating to the installation of underground utilities.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Sections 120.569 and 120.57(1), Florida Statutes.
The Respondent is an Agency of the State of Florida authorized to administer licensure examinations for fire protection system contractors in accordance with the mandates of Chapter 633, Florida Statutes.
A Certified Plumbing Contractor's license under Chapter 489, Florida Statutes, includes the scope of work that may also be performed by an Underground Utility and Excavation Contractor regulated under Chapter 489. Stated in another
fashion, an underground utility contractor's license is a "lesser included" license to that of the Certified Plumbing Contractor. The underground utility contractor may perform a subset of the work (i.e., underground plumbing) that a Certified Plumbing Contractor may perform. This was established through un-rebutted evidence in the form of certified minutes, from the Construction Industry Licensing Board, the State Agency that governs both these licenses.
Under its authorizing statute, Section 489.07, the Construction Industry Licensing Board has jurisdiction over the licensing and regulation of both the Certified Plumbing License and the Underground Utility and Excavation Contracting License. See also Sections 489.105(1), 489.108, 489.109, 489.113, 489.115, and 489.129, Florida Statutes.
Pursuant to Chapter 489, Florida Statutes, the holder of a Certified Plumbing Contractor's license, such as the Petitioner, can lawfully perform all portions and aspects of work performed by a licensed Underground Utility and Excavation Contractor, just as a Contractor I may perform all the work of a Contractor V under Chapter 633, Florida Statutes. Under Section 489.1053(m), Florida Statutes, the scope of work of a Certified Plumbing Contractor includes "the work of the specialty plumbing contractor."
An Underground Utility and Excavation Contractor is a specialty plumbing contractor, as its work is limited to the underground portions of the design and installation of plumbing systems. As with other specialty licenses , the Underground Utility and Excavation Contractor License defines its scope as "limited to," whereas the definition of the greater scope license, the Certified Plumbing Contractor's License or Certified Plumber's License, is defined as "consisting of." See and compare Section 489.1053(m),(n), Florida Statutes; and compare Section 633.021(5)(a-e), Florida Statutes. In both cases, the higher level or scope license is described first, using the phrase "his business consists of" or "his business includes . . . . The lesser license uses the phrase "whose business is limited to," (Chapter 633) or "whose services are limited to . . . " (Chapter 489).
It is also true that the Underground Utility and Excavation Contractor License, which allows the holder to perform part of the work performed by the Certified Plumbing Contractor, was created well after the Certified Plumbing License. 1988 Fla. Sess. Law Serv. 88-156 (July 1, 1988).
Prior to the creation of a separate specialty plumbing license known as the "underground utility contractor" license in 1988, 1988 Fla. Sess. Law Serv. 88-156 (July 1, 1988), a Certified Plumber was the only license holder who could perform
underground utilities work. Thus for seven years between 1981 and 1988, the Petitioner and others who held a Certified Plumber's License were the only contractors in Florida who could contract for those underground portions of the plumber's scope of work that underground utility contractors are now allowed to also perform.
Under Section 489.113(10), Florida Statutes, the Florida Legislature expressly stated "[t]he addition of a new type of contractor or the expansion of the scope of practice of any existing type of contractor under this part shall not limit the scope of practice of any existing type of contractor under this part unless the Legislature expressly provides such a limitation." No such limitation is provided for the scope of work that might be performed by a Certified Plumbing Contractor, and the plumbing contractor's scope work clearly includes the installation of underground water mains.
As a Certified Plumbing Contractor, the Petitioner can lawfully perform certain aspects of the work of the installation of fire protection systems. Section 489.1053(m), Florida Statutes, and Section 633.557(2), Florida Statutes. The holder of a Certified Underground Utility and Excavation Contractor License cannot, by contrast, lawfully perform any portion of the work of a licensed Contractor V, fire protection contractor.
Section 633.521(3), Florida Statutes, provides pertinently as follows:
As a prerequisite to taking the examination for certification as a Contractor V, the applicant shall be at least 18 years old, be of good moral character, and have been licensed as a certified underground utility and excavation contractor pursuant to chapter 489, have verification by an individual who is licensed as a certified utility contractor pursuant to chapter 489, that the applicant has 4 years' proven experience in the employ of a certified underground utility and excavation contractor, or have a combination of education and experience equivalent to 4 years' proven experience in the employ of a certified underground utility and excavation contractor. . . .
Rule 4A-46.010, Florida Administrative Code provides pertinently as follows:
(3)(a) 1. "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. For purposes of this rule chapter, four (4) years proven experience as a certified plumbing contractor licensed pursuant to the provisions of Chapter 489, Florida Statutes, may be offered towards the experience requirements for a Contractor I or II, and shall be equivalent to two (2) years proven experience in the employment of a contractor. A certified plumbing contractor
shall offer no more than four (4) years as a certified plumbing contractor toward the four (4) years experience requirement in Section 633.521, Florida Statutes. The applicant's experience 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. An applicant offering self-employment experience shall provide verification in the form of letters from customers, and others familiar with his work. 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;
Rule 4A-46.010(3)(c), Florida Administrative Code, provides:
As a prerequisite to challenging the examination as a Contractor V, the applicant shall provide evidence of:
licensing as a certified underground utility contractor pursuant to the provisions of Chapter 489, Florida Statutes,
. . .
employment by an individual licensed as a certified underground utility contractor pursuant to the provisions of Chapter
489, Florida Statutes, that the applicant has four (4) years experience in the employment of a certified underground utility contractor . . . or
a combination of education and experience equivalent to four (4) years proven experience in the employment of a certified underground utility contractor.
For purposes of combining education and experience, education in the areas described in paragraph (a)3., above, including at least three credit hours from a four-year college or university, or junior or community college in courses which teach the material in the National Fire Protection Association standards on which the applicant will be tested; or other equivalent course work; and experience in the areas described in sub-paragraph (a)1., or sub-paragraphs (c)1. or 2., above, shall be provided.
For all classes of contractor applications the Division will accept other experience and education combinations which are equivalent to those described above. (Emphasis supplied).
(4) The applicant shall not be approved to challenge a competency examination unless the applicant has substantiated employment experience or a combination of employment and education. The applicant is encouraged to submit documentation of all relevant experience and education since each instance of a combination prerequisite must necessarily be decided individually. . . .
(Emphasis supplied).
The un-refuted testimony and evidence adduced by the Petitioner shows that the numerous continuing education hours the Petitioner has completed, including 53 hours in NFPA subjects, satisfy the education portion of the combination of education and experience referenced in the above-quoted statute and rules. While the Petitioner does not have relevant college courses, the Petitioner does have extensive, pertinent work experience such that his education subjects, coupled with that experience, constitute " . . . other equivalent course work; and
experience . . . " for purposes of qualifying under the above- referenced rule. Moreover, the Respondent's witness acknowledged that in the Petitioner's situation, with his
28 plus years of experience in plumbing and underground utility contracting work, that his education requirement would be minimal.
Additionally, paragraph (d) of the rule, quoted above, shows that the Respondent Agency will accept other equivalent education and experience combinations which are equivalent to those described in the above-referenced rule. The un-refuted evidence adduced by the Petitioner, which is accepted, shows that, with the Petitioner's extensive, germane experience, that his education is certainly equivalent to that referenced in the above rule. Thus, he has satisfied the education and experience requirement as a method for qualifying to sit for the Contractor V examination. Adequate verification and documentation of education has been provided, in light of the Petitioner's sworn testimony and that of his witnesses, as well as the continuing education documents submitted into evidence. In this de novo context, the documentation and verification standards of the above statute and rule have been satisfied.
In a like vein, the Petitioner's testimony and evidence from himself and his witnesses has, in a de novo sense established more than 28 years of experience in work amounting
to plumbing and underground utility installation and repair work. The Petitioner has worked as a Certified Plumbing Contractor since 1981, both for employers and as a self-employed Certified Plumbing Contractor. He became self-employed full- time as a Certified Plumbing Contractor in 1987, as an employee of his own corporation (President and CEO). He has thus more than adequately met the experience requirement of Section 633.521, Florida Statutes, and the above rule, since he has much more than the four years experience as a Certified Plumbing Contractor which he can apply to that statute's experience requirement, as its experience requirement is defined in and allowed by the above rule.
Finally, the Agency charged with regulating the entry into licensure, licensure and practice of both Certified Plumbing Contractors and Underground Utility and Excavation Contractors has determined that the scope of work of the former includes all of that of the latter, and more. Thus, the Certified Plumbing Contractor is the superior or higher level license in terms of the scope of work one holding it can do - - more than all that which the underground utility and excavation contractor is allowed to do. This determination is entitled to great deference and weight, as the Construction Industry Licensing Board is interpreting its own organic statute, Chapter 489, Florida Statutes, by which it regulates these professions
and licenses. See Fortune Ins. Co. v. Dept. of Ins., 664 So. 2d
312 (Fla. 1st DCA 1995). These above cited provisions of Chapter 489, which thus provide that Underground Utility and Excavation Contractor is a "lesser included license" of the Certified Plumbing Contractor licensure, must be read in pari materia with Section 633.521, Florida Statutes.
It thus becomes clear that the Petitioner's experience as a Certified Plumbing Contractor, both employed and self- employed, is more than adequate to comply with the Underground Utility Contractor experience-related, second and third qualification methods of Section 633.521, Florida Statutes (and the above rule). It is equally clear that, because the Underground Utility and Excavation Contractor License and scope is a lesser-included portion of the license and scope of work of the Certified Plumbing Contractor, that one licensed as a Certified Plumbing Contractor (like the Petitioner) meets the standard that an applicant licensed as an Underground Utility and Excavation Contractor can sit for the examination on that basis alone. See Section 633.521(3), Florida Statutes. Accordingly, the Petitioner qualifies by all three referenced methods to sit for the Contractor V examination at issue.
Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and
demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore,
RECOMMENDED that a final order be entered by the Respondent Agency allowing the Petitioner to sit for the Contractor V examination. It is further,
RECOMMENDED that if the Petitioner seeks to pursue a claim for attorney's fees and costs on the basis that the Respondent Agency's position was not substantially justified, that a proper petition within the time constraints of Section 57.111, Florida Statutes, must be filed, which has not been accomplished, since no final order has yet been entered in this matter. Thus the purported claim for attorney's fees and costs cannot be addressed at this time.
DONE AND ENTERED this 20th day of December, 2002, in Tallahassee, Leon County, Florida.
P. MICHAEL RUFF 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 Clerk of the
Division of Administrative Hearings this 20th day of December, 2002.
COPIES FURNISHED:
Edward M. Fleming, Esquire
McDonald, Fleming, Moorhead, Ferguson Green & Smith, LLP
4300 Bayou Boulevard
Suite 13
Pensacola, Florida 32503-2671
Elenita Gomez, Esquire Department of Insurance
Division of Legal Services
200 East Gaines Street 612 Larson Building
Tallahassee, Florida 32399-0333
Honorable Tom Gallagher
State Treasurer/Insurance Commissioner Department of Insurance
The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300
Mark Casteel, General Counsel Department of Insurance
The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307
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.
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 03, 2003 | Agency Final Order | |
| Dec. 20, 2002 | Recommended Order | Petitioner established he met experience and education requirements to sit for Contractor V exam. Certified Plumber License is equivalent to underground utility contractor for purposes of statute and rule examination requirements. |
