Upon due notice, a disputed-fact hearing was held in this case via video teleconference between sites in Daytona Beach, and Tallahassee, Florida, on April 3, 2009, before Ella Jane P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: Darren J. Elkind, Esquire
Paul & Elkind, P.A.
Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050
Whether Petitioner may be granted provisional certification as a plumbing inspector and provisional certification as a mechanical inspector.
On October 30, 2008, Respondent, Building Code Administrators and Inspectors Board, issued a Notice of Intent to Deny Petitioner’s applications for provisional certification as a plumbing inspector and provisional certification as a mechanical inspector.
Petitioner timely requested a disputed-fact hearing to contest the Notice of Intent to Deny. The case was referred to the Division of Administrative Hearings on or about January 28, 2009. The file of the Division reflects all pleadings and orders preceding the final hearing but not all agreed continuances at the last minute due to problems with the video- conferencing location or apparatus.
At hearing, the parties stipulated into evidence Petitioner’s licensure file as Exhibit R-1. Petitioner presented no oral testimony. Respondent presented the oral testimony of Robert McCormick. Official Recognition was taken of Chapter 468, Florida Statutes (2008), and Florida Administrative Code Rules 61G19-1 through 61G19-12, (2008).
A Transcript was filed on April 17, 2009. On April 27, 2009, Petitioner filed, and on April 28, 2009, Respondent filed, their respective Proposed Recommended Orders. The filings were either timely or without objection from the other party. Each proposal has been appropriately considered in preparation of this Recommended Order.
Respondent Florida Building Code Administrators and Inspectors Board (Board) is the executive branch agency, within the Department of Business and Professional Regulation, charged, among other duties, with administering Part XII, Chapter 468, Florida Statutes, and issuing standard and provisional certification of plumbing inspectors and mechanical inspectors.
The Board denied Petitioner’s applications for provisional licensing as a plumbing inspector, and as a mechanical inspector, because his application(s) “does not demonstrate, affirmed by affidavit signed by an architect, engineer, contractor, or building code administrator, that you have the required experience for the certification sought.”
At all times material, Robert McCormick was Respondent Board’s Chairman.
The Board considers applications for, and licenses applicants as, building inspectors, plans examiners, and building code administrators. Such personnel usually work with
municipal, county, or state entities, although in some places private contractors provide such services. Licensees review proposed construction plans of both residential and commercial projects as well as monitor the progress of construction to assure that all building code standards are met.
Each construction trade has a specific and complex code of regulations. Inspectors in each category must assure compliance with that respective trade’s regulations. Most of the work of an inspector is performed in the field at a job site.
Plumbing and mechanical inspectors must be versed in both residential and commercial construction codes. The mechanical trade is, at minimum, concerned with heating, air- conditioning, and ventilation systems. The plumbing trade is, at minimum, concerned with water systems, drains, pipes, and gas. At hearing, Petitioner submitted no information whatsoever about his experience in these areas, and relied exclusively upon his application affidavits.
Petitioner is employed by a public entity, the City of Deland. The Board has issued him a provisional license as a building inspector. As a building inspector, Petitioner reviews structural and non-structural aspects of construction for one- and two-family dwellings, as well as means of egress and accessibility, but he does not address specific systems or
codes, such as plumbing and mechanical, within the structure to assure compliance with the Florida Building Code.
Petitioner has already taken and passed both the Florida-required test for standard plumbing inspector certification and for standard mechanical inspector certification. Mr. McCormick, testifying on behalf of the Board, acknowledged Petitioner’s successful test results, but considered Petitioner’s passing the examination to be the last statutory requirement time-wise (or just one of the statutory prongs) for obtaining the standard license. For provisional licenses, the Board still requires five years’ experience as specified by statute for each specialized field (plumbing and mechanical) to be attested-to by adequate affidavits. (TR-69)
By virtue of having a provisional building inspector certification issued by the same Board involved with the present applications, Petitioner has already demonstrated, via affidavit, five years’ experience in general building construction.
As part of his application(s) for the plumbing and mechanical inspector provisional licenses, Petitioner submitted two affidavits of his current employer and six affidavits from others with knowledge of his work experience. Some of these affidavits also had been used by Petitioner in applying for his building inspector license.
The affidavits were signed by engineers, building code administrators, and/or licensed contractors, and account for Petitioner’s work experience from 1988 to the present, most of which experience occurred in Ohio. The affidavits purport to describe, in general terms, Petitioner’s experience, job duties, and overall knowledge of the plumbing and mechanical trades during that time frame.
The Board has created an Application Review Committee, consisting of Board members, to review all applications and make a recommendation to the Board as to whether each application should be approved or denied. Mr. McCormick was on the Application Review Committee which reviewed Petitioner’s application on October 14, 2008, and recommended against Petitioner’s provisional licensure in the plumbing and mechanical trades.
There is no persuasive evidence that the Application Review Committee made any direct inquiries of Petitioner’s affiants to supplement their affidavits or that it was required to do so.
There is no evidence that Petitioner was notified of the Application Review Committee’s meeting or that the law requires that Petitioner be notified of it. However, Petitioner was notified, according to law, of the Board’s meeting on October 17, 2008, when a vote was taken and his pending
mechanical and plumbing applications were denied, effective with the Board’s October 30, 2008, Intent to Deny.
There is no evidence that Petitioner was present or offered any additional information at the Board’s meeting to support his application(s).
According to Mr. McCormick, Petitioner’s affidavits did not describe Petitioner’s work experience in sufficient detail for the two respective categories of inspector.
Overall, Mr. McCormick felt all of Petitioner’s affidavits for plumbing and mechanical provisional certification were not specific in the two categories chosen. The Application Review Committee and the Board were looking for affidavits that showed discrete and significant expertise in each trade category, not just experience as a general contractor overseeing other experts in those trades and systems.
Petitioner previously had been a general contractor and a licensed Ohio Real Estate Corporate Salesperson. Petitioner’s status as a general contractor in Ohio was insufficient, according to Mr. McCormick, because nothing in the affidavits correlated the licensure of general contractors in Ohio with licensure of general contractors in Florida for purposes of trade category licensing and because Petitioner had already received credit for his prior general contracting
experience via his Florida provisional building inspector license. (See Finding of Fact 9.)
Mr. McCormick specifically addressed some of these affidavits at hearing. He indicated that the affidavit of Matt Adair, a building official in Deland, Florida, was vague as to five years of the necessary mechanical or plumbing experience, but that it had been accepted by the Application Review Committee as the public employer’s intent to utilize Petitioner for commercial plumbing and mechanical inspections if Petitioner were provisionally licensed in those categories. An affidavit by Jim Ziegler, an Ohio building official, spanned 20 years, and addressed Petitioner’s success in commercial plumbing, masonry, and HVAC (an air-conditioning/mechanical trade), only because of Petitioner’s “hands on” workmanship and supervisory skills as a general contractor in Ohio. The affidavit of Frank Pirc covered 1996-2006, and only described Petitioner as a supervising general contractor with good knowledge of commercial and residential cooling systems. The affidavit of John Bogert, a general contractor, was very specific for plumbing for 1995- 2006, but in Mr. McCormick’s view, Mr. Bogert’s affidavit was unacceptable because it conflicted with an employment history submitted by Petitioner in the same application file. (See affidavits for correct name spellings, rather than the Transcript, which uses phonetic spellings.)
Mr. McCormick further stated that no affiant actually identified the period of full-time employment that Petitioner worked in each trade category.
Mr. McCormick acknowledged that Petitioner had demonstrated 20 years’ experience in general building, which encompasses some plumbing and some work in the mechanical trade, spread out over that 20-year time frame. However, he testified that the Committee and Board were looking for evidence, via affidavit, that the applicant had a minimum of five years solely dedicated to each trade or five years of full-time work experience in plumbing and five years of full-time work experience in a mechanical trade, not just five years’ total experience based on the applicant’s time in both trades added together. Moreover, in his opinion on behalf of the Board, 20 years as a building contractor had already been acknowledged with the granting of Petitioner’s provisional building inspector’s license.
To illustrate his foregoing analysis, Mr. McCormick divided five years into average full-time work hours of 2,000 work hours per year and 10,000 work hours for a five-year long period of employment, but he did not specify that the Committee or Board was adding up full-time work hours to otherwise modify the five years per category requirement of the statute or to alter any Administrative Code rules.
Mr. McCormick summed-up problems the Committee and the Board had with Petitioner’s affidavits, saying they showed that Petitioner “did a lot of things over 20 years . . . [but] It is
not incumbent on the Board to figure out which part of those 20 years to assign to which trade.” (TR-65)
Mr. McCormick acknowledged that, added together, the affidavits submitted by Petitioner covered 20 years of employment, but he further testified that the Committee and Board were looking for affidavits which showed an applicant’s specific duties by trade category, covering specific times/dates, which specific times/dates amounted to five years for each category of building trade.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Sections 120.569 and 120.57 (1), Florida Statutes (2008).
Petitioner, as the license applicant, bears the duty to go forward and the burden of proof by a preponderance of the evidence in this initial licensing case. Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative
Services, 348 So. 2d 349 (Fla. 1st DCA 1977).
Petitioner asserts that the “10,000 hours,” which was described by Board Chairman Robert McCormick “as being the equivalent of five years’ work experience, amounts to an un- promulgated rule and therefore, is without any validity in the law,” (see Petitioner’s Proposed Recommended Order), and that the Board’s decision to deny herein is reversible upon authority of Gar-Con Development, Inc. v. Department of Environmental Regulation, 468 So. 2d 413 (Fla. 1st DCA 1985). This analysis is not persuasive. Rather, it is concluded that the witness’ explanation which encompassed his example of “10,000 hours” was not intended to usurp or modify the five-years-per-category requirement clearly set out in Section 468.609(2)(c)1., Florida Statutes (2008), and Rule 61G19-6.012(3), and that Gar-Con, does not apply.
Florida Administrative Code Rule 61G19-6.012 reads, in pertinent part:
The Board shall issue a provisional certificate to any newly employed or newly promoted building code administrator, plans examiner, or building code inspector subject to the provisions of Section 468.609, F.S., and the provisions of this rule.
Provisional certificates are not renewable, and are valid for the following terms:
Three years for inspectors.
Three years for plans examiners.
Three years for building code administrators or building officials.
Provisional inspector or plans examiner certificates shall only be issued to applicants who demonstrate at the time of their application that they possess all of the standards and eligibility requirements for standard certifications as set forth in Section 468.609(2), F.S. Provisional building code administrator certificates shall only be issued to applicants who demonstrate at the time of their application that they possess all of the standards and eligibility requirements for standard certification as set forth in Section 468.609(3), F.S.
Provisional certificates shall only be issued to persons employed by an agency of government. (Emphasis supplied)
Section 468.609 (2008), Florida Statutes, reads in pertinent part:
Except as provided in this part, any person who desires to be certified shall apply to the board, in writing upon forms approved and furnished by the board, to take the certification examination.
A person may take the examination for certification as a building code inspector or plans examiner pursuant to this part if the person:
Is at least 18 years of age.
Is of good moral character.
Meets eligibility requirements according to one of the following criteria:
1. Demonstrates 5 years’ combined experience in the field of construction or a related
field, building code inspection, or plans review
corresponding to the certification category sought; (Emphasis supplied)
* * *
No person may engage in the duties of a building code administrator, plans examiner, or building code inspector pursuant to this part after October 1, 1993, unless such person possesses one of the following types of certificates, currently valid, issued by the board attesting to the person’s qualifications to hold such position:
A standard certificate.
A limited certificate.
A provisional certificate.
(5)(a) 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 building code administration, plans examination, or building code 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 International Code Council.
(b) 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 building code inspector within such class and level as is specified by the board.
* * *
(6)(a) A building code administrator, plans examiner, or building code inspector holding office on July 1, 1993, shall not be required to possess a standard certificate as a condition of tenure or continued employment, but shall be required to obtain a limited certificate as described in this subsection.
* * *
(7)(a) The board may provide for the issuance of provisional certificates valid for such period, not less than 3 years nor more than 5 years, as specified by board rule, to any newly employed or promoted building code inspector or plans examiner, who meets the eligibility requirements described in subsection (2) and any newly employed or promoted building code administrator who meets the eligibility requirements described in subsection (3). (Emphasis supplied)
* * *
The Board interprets the foregoing to mean that although a person has passed the ICC building inspector examination for standard licensure and the Florida laws and rules examination, as has Petitioner, that does not excuse compliance with the statutorily required five years of actual experience. The following rules reflect that interpretation.
Florida Administrative Code Rule 61G19-6.0035, Application for Provisional and/or Standard Certification, provides, in pertinent part:
Each individual who wishes to obtain a provisional and/or standard certificate in any certificate category shall submit the following to the Board:
A completed application form for the category in which certification is sought. The form that shall be used for this purpose shall be provided by the Department and available on the Department’s website.
An affidavit describing in detail each separate period of work experience listed in the application form, signed by a licensed architect, engineer, contractor, or building code administrator who has knowledge of the applicant’s duties and responsibilities during the period indicated. The form that shall be used for this purpose shall be provided by the Department and available on the Department’s website. Each affidavit must include the name and address of the applicant’s employer during the work experience period, the dates of employment, and a description of the applicant’s duties and responsibilities during the employment including any supervisory responsibilities, in sufficient detail to enable the Board to determine whether or not the applicant has the experience required for certification.
Each applicant for certification as an inspector or plans examiner shall demonstrate that he or she has at least one
(1) year of hands-on experience in the category of certification sought, with the exception of 1 and 2 family dwelling inspector. For a 1 and 2 family dwelling inspector certification, refer to the specific requirements in Rule 61G19-6.017, F.A.C.
* * *
(f) For purposes of this section, any unlicensed activity shall not be recognized for the purposes of providing required experience. (Emphasis supplied)
The statute requires “five years’ combined experience in the field of construction or a related field . . . corresponding to the category sought.” The rules require detailed affidavits covering “each separate period of work
experience listed in the application form . . . in sufficient detail to enable the Board to determine whether or not the applicant has the experience required for certification.” Together, it is clear that what the Board is empowered by the Legislature to seek, and is seeking, via affidavit, is a complete work history, accounting for all the applicant’s separate periods of work experience in different locations and with different employers upon which the applicant relies to establish that he or she has a minimum of five years for whichever (and for every) type of provisional license the applicant is applying.1/
It is both apparent and logical that five years of experience in plumbing would not be sufficient to qualify provisionally for an electrical certificate or vice-versa. Mr. McCormick’s explanation of his committee’s thinking that five years’ experience in each category is necessary does not
diverge from the statute and does not establish the existence of an un-promulgated rule.
“If an agency’s interpretation is one of several permissible interpretations, it must be upheld, despite the existence of reasonable alternatives.” Pershing Industries, Inc. v. Department of Banking and Finance, 591 So. 2d 991 (Fla. 1st DCA 1991). On the same point, see Suddath Van Lines v. Dept. of Environmental Protection, 668 So. 2d 209 (Fla. 1st DCA
1996), and P. W. Ventures, Inc. v. Nichols, 533 So. 2d 281 (Fla. 1988), the latter of which held, “The courts will not depart from such a[n agency’s] construction unless it is clearly unauthorized or erroneous.” This is true even if the agency’s interpretation is “somehow problematic.” Morris v. Division of Retirement, 696 So. 2d 380 (Fla. 1st DCA 1997).
As to the Committee’s/Board’s analysis of the specific affidavits themselves, discretionary authority is necessary for agencies to adequately pursue their licensing mandates. As stated in Astral Liquors v. Department of Business Regulation, 463 So. 2d 1130 (Fla. 1985):
. . . Discretionary authority is necessary for agencies involved in the issuance of licenses and the determination of fitness of applicants for license. See Permenter v.
Younan, 159 Fla. 226, 31 So. 2d 387 (1947);
Solimena v. State, Department of Business Regulation, 402 So. 2d 1240 (Fla. 3d DCA 1981), review denied, 412 So. 2d 470 (Fla. 1982); Brewer v. Insurance Commissioner & Treasurer, 392 So. 2d 593 (Fla. 1st DCA 1981). This discretionary authority is particularly necessary where an agency regulates “occupations which are practiced by privilege rather than by right and which are potentially injurious to the public welfare.” Solimena, 402 So. 2d at 1246. As we explained in North Broward Hospital District v. Mizell, 148 So. 2d 1 (Fla.
1962), in certain areas “it is impracticable to lay down a definite comprehensive rule.
Id. at 4, n. 11 (quoting 1 Am. Jur. 2d Administrative Law ss 116 (1962). . . .
RECOMMENDED that the Board of Building Code Administrators and Inspectors enter a Final Order denying Petitioner’s applications.
DONE AND ENTERED this 12th day of June, 2009, in Tallahassee, Leon County, Florida.
ELLA JANE P. DAVIS
Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 2009.
1/ Neither the witness at hearing nor either of the Proposed Recommended Orders addressed what effect, if any, Rule 61G19- 6.0035 (1)(c) and (f) might have on the Committee/Board’s approach to applying the statute requiring five years’ experience for licensure.
Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050
Darren J. Elkind, Esquire Paul & Elkind, P.A.
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.
