STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KEVIN HARRINGTON,

Petitioner,

vs.

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, ELECTRICAL CONTRACTORS LICENSING BOARD,

Respondent.

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) Case No. 02-1322

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RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge,

Jeff B. Clark, held a formal administrative hearing in this case on October 24, 2002, in Orlando, Florida.

APPEARANCES

For Petitioner: Rosemary Hanna Hayes, Esquire

Hayes & Associates 3117 Edgewater Drive

Orlando, Florida 32804

For Respondent: Barbara Rockhill Edwards, Esquire

Department of Legal Affairs The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUE

Whether Respondent, Department of Business and Professional Regulation, Electrical Contractors Licensing Board, appropriately

denied Petitioner's, Kevin Harrington, application to take the examination for licensure as an electrical contractor.

PRELIMINARY STATEMENT

By letter dated January 30, 2002, Respondent advised Petitioner that it had denied his application to take the licensing examination on the following grounds:

1. Applicant has failed to provide proof of three years of management experience in the electrical trade as required pursuant to Section 489.511(2)(a)(3)(a), F.S.

   
   

2. Applicant has failed to show 40% of the work experience in 3 phase electrical work, as required pursuant to Rule 61G6- 5.001(1), F.A.C.

   
   

3. The W2's submitted pursuant to Rule 61G6-5.003(3)(b) is [sic] from a general contractor, Coastal Construction Group. No evidence that this business has an electrical license was provided.

   
   

4. The applicant, as the project manager for a general contractor, is not qualified to supervise electrical work performed by an electrical contractor.

By Petition for Formal Hearing dated February 28, 2002, which included an Election of Rights, Petitioner elected to have a formal hearing pursuant to Subsection 120.57(1), Florida Statutes. On April 3, 2002, Respondent referred this matter to the Division of Administrative Hearings requesting a hearing. On April 4, 2002, an Initial Order was forwarded to the parties.

On April 23, 2002, the case was scheduled for final hearing on June 13, 2002, in Orlando, Florida. On June 6, 2002, Petitioner's motion for continuance was granted.

On August 5, 2002, the case was rescheduled for final hearing on October 24, 2002. At the final hearing, Petitioner testified on his own behalf and offered nine exhibits, seven of which were admitted into evidence and marked Petitioner's Exhibits 1-7; one exhibit was withdrawn by Petitioner. The final exhibit which was a letter dated October 16, 2002, from

Michael Dodson, Esquire, with attachments was not admitted into evidence but was proffered by Petitioner and marked Petitioner's Exhibit A for proffer.

Respondent presented five witnesses: Clarence Tibbs, Anthony Spivey, Robert Crabill, George Ayrish, and Kevin Harrington. Mr. Tibbs was qualified as an expert witness in the field of electrical engineering. Respondent presented three exhibits, which were admitted into evidence and marked Respondent's Exhibits 1-3.

At the final hearing, the undersigned Administrative Law Judge requested that Respondent present certain documentary evidence which related to the status of Electrical Contractors Licensing Board member, Dawn Johnson, and transcripts of portions of the audio tape recording of the January 16 and 17, 2002, meeting of the Electrical Contractors Licensing Board, which

purported to relate to the Electrical Contractors Licensing Board's consideration of Petitioner's application to take the licensing examination. These items, as well as the Affidavit of Dawn Johnson, were submitted after the final hearing and were considered by the undersigned. In addition, Petitioner's objection filed November 15, 2002, and Respondent's response filed the same day were considered. These additional documents are made a part of the record.

On October 28, 2002, Petitioner filed a Motion for Summary Recommended Order. On October 30, 2002, the undersigned entered an Order deferring ruling on Petitioner's motion. Petitioner's motion is denied in accordance with this Recommended Order.

The three-volume Transcript of the proceedings was filed with the Division of Administrative Hearings on November 18, 2002. By agreement, confirmed by the undersigned, the parties had until December 16, 2002, to submit proposed recommended orders. Both parties timely filed Proposed Recommended Orders.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made:

1. Respondent is the state agency vested with the authority to test applicants seeking certification as electrical contractors.

2. Petitioner is seeking certification (licensure) as an electrical contractor. On December 12, 2001, Respondent received Petitioner's application to take the Electrical Contractors Unlimited examination.

3. On December 24, 2001, Respondent mailed Petitioner a letter requesting additional information. The letter requested that the additional information be received by Respondent no later than January 4, 2002. This date was later extended to January 8, 2002.

4. On January 4 and January 7, 2002, Petitioner, through his attorney, forwarded the requested additional information to Respondent. Petitioner's application was complete on January 10, 2002.

5. Respondent, Electrical Contractors Licensing Board("Board"), met on January 16 and 17, 2002.

6. The Board delegates initial consideration of applications to take certification examinations to an Applications Committee consisting of members of the Board who make recommendations to the full Board on each application. Each application is examined by at least two Applications Committee members; if both recommend "denial of the application," or, if one recommends "approval of the application" and one recommends "denial of the application," the application is reviewed by a third Applications Committee member.

7. Each member of the Applications Committee is provided a worksheet as a part of the application package which lists reasons for denial drawn from Subsection 489.511(2)(a)(3), Florida Statutes.

8. After each application is considered by members of the Applications Committee, the application with the Applications Committee's recommendations, reasons for denial (if applicable), and other comments are given to a staff employee who prepares an approved/denial list which is presented to the full Board for consideration.

9. The foregoing procedure was followed in the instant case. On January 16, 2002, Board members, Roger Lange and Kim DeBerry, who were members of the Applications Committee, considered Petitioner's application; both recommended denial of the application. Because there were two recommendations of denial, the application was considered by a third Applications Committee member, Dawn Johnson; she, too, recommended denial.

10. Petitioner's application and the recommendations, reasons for denial, and comments of the Applications Committee were then given to a staff employee who prepared a summary list of all applicants with the recommendations for approval or denial by the Applications Committee with reasons given for denial for submission to the full Board.

11. The full Electrical Contractors Licensing Board considered Petitioner's application on January 17, 2002, and unanimously denied the application.

12. Petitioner was advised of the denial by letter dated February 8, 2002.

13. Petitioner's Applicant's Affidavit dated November 16, 2001, indicates that he was seeking a license under

    Subsection 489 .511(2)(a)(3)(a), Florida Statutes. The Applicant's Affidavit specifically states:

    489.511(2)(a)(3)(a), F.S. Has, within the six (6) years immediately preceding the filing of the application, at least three (3) years proven "management experience" in the trade or education equivalent thereto, or a combination thereof, but not more than one- half of such experience may be educational. (Please submit at least three (3) years of W-

    2 Forms)

    
    

14. The occupational skills and responsibilities of an electrical contractor are unique and require experience and understanding which are typically acquired by extensive, direct "on-the-job" training in the electrical contracting trade.

15. Petitioner is an experienced General Contractor's project manager. His credentials as a General Contractor's project manager are impressive and the projects he has supervised are extensive. Petitioner has little or no direct supervisory experience in the electrical contracting trade.

16. Petitioner's construction management experience is as a General Contractor project manager, not an Electrical Contractor project manager or similar position, and, as a consequence, he does not meet the "'management experience' in the trade" statutory requirement.

17. Petitioner has an enviable academic record: an Associate of Science Degree With Honors from Miami-Dade Community College (1990), a Bachelor of Science in Building Construction from University of Florida (1993), 21 hours of graduate studies at Florida International University leading towards a Master of Building Construction degree.

18. Petitioner's academic credentials have little direct application to the electrical contracting trade and, as a consequence, do not meet the "educational equivalent" to management experience statutory requirement.

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the parties and subject matter. Subsection 120.57(1), Florida Statutes.

20. Subsection 120.52(9), Florida Statutes, reads, as follows:

    "License" means a franchise, permit, certification, registration, charter, or similar form of authorization required by law, but it does not include a license required primarily for revenue purposes when

    issuance of the license is merely a ministerial act.

    
    

21. Subsection 489.511(1), Florida Statutes, vests Respondent with the statutory authority to conduct certification (licensure) examinations for persons seeking certification as an electrical contractor. Subsection 489.511(2), Florida Statutes, establishes criteria which entitle persons seeking certification as an electrical contractor to take the certification examination.

22. Petitioner must establish that he meets licensure application criteria by a preponderance of the evidence. Subsection 120.57(1)(j), Florida Statutes; Florida Department of Transportation v. J.W.C. Co., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services,

    348 So. 2d 349 (Fla. 1st DCA 1977); Barbec v. Department of

    
    

    Professional Regulation, Board of Architecture and Interior Design, 14 FALR 5312 (DOAH 1992).

23. Petitioner as a licensure applicant carries the ultimate burden of persuasion of entitlement to take the certification examination. Osborne Stern and Co., Inc. v. Department of Banking and Finance, Division of Securities and Investor Protection, 647 So. 2d 245, 250 (Fla. 1st DCA 1994); Pershing Industries, Inc. v. Department of Banking and Finance,

    591 So. 2d 991 (Fla. 1st DCA 1991); Young v. Department of

    Community Affairs, 567 So. 2d 2, 3 (Fla. 3d DCA 1990); Florida Department of Transportation v. J.W.C. Co., 396 So. 2d 778, 787 (Fla. 1st DCA 1981).

24. Discretionary authority is necessary for agencies involved in the issuance of licenses and the determination of fitness of applicants for licenses. Astral Liquors, Inc. v.

    Department of Business Regulation, 463 So. 2d 1130 (Fla. 1985); Permenter v. Younan, 31 So. 2d 387 (Fla. 1947); Solimena v.

    State, Department of Business Regulation, 402 So. 2d 1240 (Fla. 3d DCA 1981); Brewer v. Insurance Commissioner and Treasurer, 392 So. 2d 593 (Fla. 1st DCA 1981).

25. In seeking a Subsection 120.57(1), Florida Statutes, hearing, Petitioner has disputed material facts and is afforded a de novo proceeding; Respondent's denial of Petitioner's application to take the licensure examination carries no presumption of correctness. Subsection 120.57(1)(k), Florida Statutes; Moore v. State, Department of Health and Rehabilitative Services, 596 So. 2d 759 (Fla. 1st DCA 1992). As a result, Petitioner has an opportunity to present evidence to demonstrate his entitlement to take the certification examination and any perceived shortcomings of the deliberative process of Respondent are cured.

26. The Florida Legislature may prescribe standards that all applicants must meet before qualifying for licensure

    examinations. State ex rel. Kaplan v. Dee, 77 So. 2d 768 (Fla. 1955); Clark v. Department of Professional Regulation, Board of

    Professional Geologists, 584 So. 2d 59 (Fla. 1st DCA 1991).

    
    

27. Requiring that a licensure applicant establish a period of practical experience as a condition of licensure or before admission to licensure examination is not uncommon. For example, Subsection 471.013(1)(a)1, Florida Statutes(engineers); Subsection 458.311(1)(f)1c, Florida Statutes (medical doctors).

28. In denying Petitioner's application to take the licensure examination, Respondent alleged that: Applicant has failed to provide proof of three years of management experience in the electrical trade as required pursuant to Subsection 489.511(2)(a)(3)(a), Florida Statutes.

29. Subsection 489.511(2)(a)(3)(a), Florida Statutes, reads, as follows:

    (2)(a) A person shall be entitled to take the certification examination for the purpose of determining whether he or she is qualified to engage in contracting throughout the state as a contractor if the person:

    
    

    * * *

    
    

    3. Meets eligibility requirements according to one of the following criteria:

    1. Has, within the 6 years immediately preceding the filing of the application, at least 3 years' proven management experience in the trade or education equivalent thereto, or a combination thereof, but not more than one-half of such experience may be educational equivalent.

30. Petitioner failed to provide persuasive evidence that Petitioner's management experience as a General Contractor's project manager met the statutorily required management criteria because he failed to demonstrate that the management experience was in the electrical contracting trade. The evidence demonstrated that Petitioner's management experience on construction projects, as it related to electrical contracting, was indirect and typically involved interaction with the Electrical Contractor's project manager as opposed to being directly involved with individuals in the field doing the work. Similarly, Petitioner's academic record, while admirable, has little application to electrical contracting.

31. In denying Petitioner's application to take the licensure examination, Respondent also alleged that:

    Applicant has failed to show 40 percent of the work experience in 3-phase electrical work, as required pursuant to Rule 61G6- 5.001(1), Florida Administrative Code.

32. Rule 61G6-5.003, Florida Administrative Code, reads, in pertinent part, as follows:

    * * *

    
    

    2. The experience required must include:

    1. For an electrical contractor, at least 40% of work that is 3-phase service.

       
       

33. Petitioner's assertion that his General Contractor project manager's management experience, already determined to be

    non-qualifying, included 40 percent work experience in three- phase electrical service, is not persuasive.

34. In denying Petitioner's application to take the licensure examination, Respondent further alleged that: The W-2's submitted pursuant to Rule 61G6-5.003(3)(b) are from a

    general contractor, Coastal Construction Group. No evidence that this business has an electrical license was provided.

35. Rule 61G6-5.003(3)(b), Florida Administrative Code, reads, in pertinent part, as follows:

    (3) All applicants attempting to demonstrate qualification by experience pursuant to Section 489.511(2)(a)3.a., b., c., must forward the following to the Board:

    
    

    * * *

    
    

    (b) Statements prepared and signed in the presence of a notary by some person or persons other than the applicant for examination listing chronologically the active experience of the applicant for examination in the trade, including the name and address of employers, and dates of employment along with copies of W-2 forms.

    
    

36. The reference to W-2 forms evidencing employment by a General Contractor and no W-2 forms evidencing employment by an Electrical Contractor reinforces the determination that Petitioner lacked management experience in the electrical contracting trade and failed to meet the statutory criteria. As noted, merely having some degree of supervisory authority over

    the various trades at a construction site does not satisfy the statutory criteria of "management experience in the trade."

37. Subsection 489.113(3), Florida Statutes, reads as follows:

    (3) A contractor shall subcontract all electrical, mechanical, plumbing, roofing, sheet metal, swimming pool, and air- conditioning work, unless such contractor holds a state certificate or registration in the respective trade category, "

    
    

    One reason Florida law requires a General Contractor to subcontract electrical work is because it is unique and requires special skill, knowledge, and experience. The same logic compels the conclusion that a lack of management experience in the electrical contracting trade would disqualify an applicant seeking certification as an electrical contractor.

38. Subsection 120.60(1), Florida Statutes, reads, as

follows:

1. Upon receipt of an application for a license, an agency shall examine the application and, within 30 days after such receipt, notify the applicant of any apparent errors or omissions and request any additional information the agency is permitted by law to require. An agency shall not deny a license for failure to correct an error or omission or to supply additional information unless the agency timely notified the applicant within this 30-day period. An application shall be considered complete upon receipt of all requested information and correction of any error or omission for which the applicant was timely notified or when the time for such notification has expired.

Every application for a license shall be approved or denied within 90 days after receipt of a completed application unless a shorter period of time for agency action is provided by law. The 90-day time period shall be tolled by the initiation of a proceeding under ss. 120.569 and 120.57. An application for a license must be approved or denied within the 90-day or shorter time period, within 15 days after the conclusion of a public hearing held on the application, or within 45 days after a recommended order is submitted to the agency and the parties, whichever is later. The agency must approve any application for a license or for an examination required for licensure if the agency has not approved or denied the application within the time periods prescribed by this subsection.

Respondent met the statutory requirements of Subsection 120.60(1), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a final order be entered denying Petitioner's application to take the Certified Electrical Contractor's Licensure Examination.

DONE AND ENTERED this 10th day of January, 2003, in Tallahassee, Leon County, Florida.

JEFF B. CLARK

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 10th day of January, 2003.

COPIES FURNISHED:

Barbara Rockhill Edwards, Esquire Department of Legal Affairs

The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

Rosemary Hanna Hayes, Esquire Hayes & Associates

3117 Edgewater Drive

Orlando, Florida 32804

Hardy L. Roberts, III, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2202

Anthony B. Spivey, Executive Director Electrical Contractors Licensing Board Department of Business and

Professional Regulation Northwood Centre

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: 02-001322

Orders for Case No: 02-001322