STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANTHONY DAVID SAPUPPO,

vs.

Petitioner,

Case No. 14-1863

STATE OF FLORIDA BUILDING CODE ADMINISTRATORS AND INSPECTORS BOARD,

Respondent.

/

RECOMMENDED ORDER

Pursuant to notice a final hearing was held in this case via video teleconference between sites in Sarasota and Tallahassee, Florida, on June 19, 2014, before Lynne Quimby-Pennock, an Administrative Law Judge of the Division of Administrative

Hearings (Division).

APPEARANCES

For Petitioner: Anthony David Sapuppo, pro se

700 Fox Street

Longboat Key, Florida 34228

For Respondent: Robert Antonie Milne, Esquire

Office of the Attorney General Plaza Level 01, The Capitol Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

The issue is whether Petitioner’s application for certification as a plumbing inspector should be granted.1/

PRELIMINARY STATEMENT

On February 19, 2014, Respondent, Building Code Administrators and Inspectors Board (Board), issued a Notice of Intent to Deny (NOI) Petitioner’s application for certification as a plumbing inspector.

Petitioner timely requested an evidentiary hearing pursuant to section 120.57(1), Florida Statutes (2013),2/ to dispute the material facts in the Board’s NOI. The case was referred to the Division on April 22, 2014.

At hearing, Joint Exhibits 1 through 8 were admitted into evidence.3/ Petitioner testified on his own behalf and called Wayne Thorne as his witness. Respondent presented the testimony of Robert McCormick. Respondent offered two additional exhibits, Exhibits 9 and 10, which were both admitted.4/ Section 468.609, Florida Statutes, and Florida Administrative Code Rule 61G19- 6.0035 were officially recognized.

At hearing, Petitioner asked to file proposed recommended orders (PROs) 20 days after the filing of the transcript.

Respondent did not oppose the request. The Transcript was filed on July 29, 2014. A post-hearing Order was issued confirming that the parties’ PROs were due on or before August 18. Both parties timely filed their PROs, and each has been duly considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Respondent is the executive branch agency within the Department of Business and Professional Regulation (DBPR) charged, among other duties, with administering part XII, chapter 468, Florida Statutes, and issuing standard and provisional certification of plumbing inspectors.

2. On March 8, 2013, Petitioner submitted an application to the Board for initial certification by examination as a plumbing inspector. The application included sections for Petitioner’s personal information, method of qualification for certification, employment history, education, background information, affidavits of work experience, and an affirmation by written declaration executed by Petitioner.5/

3. The Board has an application review committee (ARC) composed of code enforcement professionals. One of the requirements that the ARC had to determine was whether Petitioner had clearly demonstrated five years of experience related to plumbing in order to be approved for the examination. Such experience could have been broken down into having done plumbing, inspected plumbing, or performed plumbing plan reviews.

4. Petitioner submitted several affidavits to establish the requisite five years of experience necessary to qualify for the plumbing inspector certification examination.

   
   

5. The instructions in “Section VIII-Work Experience” provided: 6/

   This section must be completed by an architect, engineer, contractor or building code administrator, who has personal knowledge of the applicant’s experience for the period of time listed below.

   
   

   Instructions:

   Provide employment verification for the years of experience required for qualification for certification.

   Attach additional copies of this page as necessary.

   Note: Local Government Employees- To qualify for the fee reduction local government employees must provide Work Experience showing current employment with a local government agency that is signed by the building code administrator.

   
   

   * * *

   
   

   Describe in detail the applicant’s duties, including hands-on, supervisory or management responsibilities. Please be specific when explaining the applicant’s duties and hands- on experience.

   
   

6. Mr. Thorne, the current Longboat Key building official, has supervised Petitioner for approximately two years, the length of his employment with Longboat Key. Petitioner submitted an affidavit by Mr. Thorne to demonstrate Petitioner’s work experience. Mr. Thorne’s affidavit did not provide the specific duties and hands-on experience to reflect the required plumbing experience. Mr. Thorne did not provide any additional supportive information during his testimony.

   
   

7. J. Kent Kimes, the president of Kimes Engineering/Southwest Florida Building Inspections, and Harry R. Fowler, the former Longboat Key building official, both provided affidavits purporting to support Petitioner’s application. Neither affidavit described in specific terms Petitioner’s experience, job duties or overall knowledge of the plumbing trade. The affidavits did not provide the necessary information to support Petitioner’s application, nor did they accurately reflect the time of their respective supervision of Petitioner.

8. Petitioner is employed by a public entity, the City of Longboat Key. The Board has issued him several licenses including: “a standard plans examiner’s license with the endorsements of electric and mechanical and plans examiner;” and “a Florida standard inspector’s license . . . with the endorsements for building, commercial electric; 1 and 2 family dwelling inspector; mechanical inspector, which would be commercial; and residential electrical inspector.” However, the experience required for these licenses could not be used to appropriately demonstrate how much experience Petitioner had in the plumbing trade.

9. At all times material, Robert McCormick was the Board’s Chairman, and a member of the ARC. Mr. McCormick is a master electrician, a certified building official, a certified building code administrator, a plans examiner, a plans inspector and a

   
   

   member of the Council of the American Building Officials. He was tendered as and accepted as an expert.

10. Each construction trade has a specific and complex code of regulations. Inspectors in each category must ensure compliance with that trade’s regulations. Plumbing inspectors must be versed in both residential and commercial construction codes. The plumbing trade is, at minimum, concerned with water systems, drains, pipes, and gas.

11. Both the ARC and the Board were looking for affidavits that showed specific expertise in the plumbing trade category, not just experience in a general sense.

12. The Board denied Petitioner’s application for certification as a plumbing inspector because his application:

    [d]oes 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.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this case, pursuant to sections 120.569 and 120.57(1) Florida Statutes.

14. The Board is the state agency responsible for certifying building code inspectors. See § 468.606(2), Fla. Stat.

    
    

15. Section 468.609 provides the framework for the administration, and standards for certification as a building code administrator or inspector and other categories for certification. Section 468.609(2) provides in pertinent part:

    A person may take the examination for certification as a building code inspector or plans examiner pursuant to this part if the person:

    
    

    1. Is at least 18 years of age.

       
       

    2. Is of good moral character.

       
       

    3. 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; . . . .

    
    

16. The criteria that an applicant must meet for certification as a plumbing inspector are set forth in rule 61G19-6.0035, which provides in pertinent part:

    1. Each individual who wishes to obtain a provisional and/or standard certificate in any certificate category shall submit the following to the Board:

       
       

       1. 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.

          
          

       2. An affidavit describing in detail each separate period of work experience listed in the application form, signed by a licensed architect, engineer, contractor, fire

          
          

          marshal, 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.

          
          

       3. 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 1 and 2 family dwelling inspector certification, refer to the specific requirements in Rule 61G19-6.017, F.A.C.

          
          

17. The statute requires “five years’ combined experience in the field of construction or a related field . . . corresponding to the category sought.” The rule requires 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.”

18. It is clear that what the Board is seeking, via affidavit, is a complete work history. This work history has to account 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 of experience for whichever (and for every) type of license the applicant is applying.

19. Petitioner, as the license applicant, has the burden to prove by a preponderance of the evidence that he meets the requirements for certification in this licensing case. See Dep’t of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla.

    1996) (holding that an applicant for licensure has the burden to prove his entitlement to the license); § 120.57(1)(j), Fla. Stat.

20. Petitioner failed to meet his burden of proof.

Although the evidence establishes that Petitioner regularly, and competently, performs plumbing inspections in the course of his work as a Longboat Key building official, the evidence fails to establish that Petitioner has the five years of experience required by the applicable Board rule for certification as a plumbing inspector.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Building Code Administrators and Inspectors Board issue a final order denying Petitioner’s application for certification as a plumbing inspector.

DONE AND ENTERED this 27th day of August, 2014, in Tallahassee, Leon County, Florida.

S

LYNNE A. QUIMBY-PENNOCK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 2014.

ENDNOTES

1/ By granting the application, the applicant would be allowed to take the plumbing inspector examination, and if he passed the examination and met all the other requirements he could be issued a license.

2/ Unless otherwise indicated, all Florida Statutes references are to the year 2013.

3/ Upon review of the exhibits, Exhibit 2, page 10, contained information that should have been redacted. Exhibit 4, pages 30, and 32 through 35 contained copies of licenses that expired on November 30, 2013; pages 36 through 41 contained copies of licenses that were “Null and Void”; and page 42 contained a document that reflected “Lic Type 5015” was “Deny Credential.” Neither party objected to the entry of any of these exhibits.

4/ Exhibit 10 was the late-filed transcript of the deposition of Mr. Sapuppo, which was taken on June 17 and filed on June 24, 2014.

5/ Petitioner executed the application on December 28, 2012. No explanation as to the delay in submitting the application was offered.

6/ It appears that Petitioner utilized application forms from two different years when he applied for certification. The instructions found in Section IX- Affidavit of Work Experience in the form with an “Eff. Date: 07/10/2012,” are the same as those contained in this section with an “Eff. Date: July 2013.”

COPIES FURNISHED:

Robert Antonie Milne, Esquire Office of the Attorney General Plaza Level 01, The Capitol Tallahassee, Florida 32399-1050

Anthony David Sapuppo 700 Fox Street

Longboat Key, Florida 34228

J. Layne Smith, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2201

Robyn Barineau, Executive Director Division of Professions

Building Code Administrators and Inspection Board

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2201

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: 14-001863

Orders for Case No: 14-001863