STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALBERT L. SPAIN, )

)

Petitioner, )

)

vs. ) CASE NO. 78-2236S

)

DIVISION OF LICENSING, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on February 7, 1979, in Orlando, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings.

This case was presented on Spain's request for formal hearing on the denial of his application for a private employment agent/agency license, which had been denied by the Division on the grounds that Spain lacked three years continual experience as an employment clerk or its equivalent immediately preceding filing of his application.

The parties stipulated that Spain was qualified for licensure except for the lack of three years continuous experience immediately preceding his application. Spain presented evidence that he had been employed 15 years as vice president of a major trade association, terminating this employment in December, 1976. This experience was accepted as equivalent experience by the Division. Thereafter, Spain was employed by Life of Georgia from February 28, 1977, until March 31, 1978. Thereafter, Spain was employed as manager of an employment agency, which experience is accepted as equivalent experience by the Division.

The factual issue presented is whether Spain's employment with Life of Georgia constitutes equivalent experience.

APPEARANCES

For Petitioner: Albert L. Spain, pro se

4264C Lake Underhill Drive Orlando, Florida

For Respondent: Gerald Curington

Division of Licensing, The Capitol Tallahassee, Florida 32304

FINDINGS OF FACT

1. Albert Spain is an applicant otherwise qualified for licensure as a private employment agency/agent except for the lack of three years continuous

   experience immediately preceding his application, the question which is at issue in this case.

   
   

2. Spain was employed with a trade association as a vice president for 15 years until December 31, 1976. His experience in this position meets the requirements of equivalent experience as an employment clerk and is accepted as such by the Division.

   
   

3. Spain was employed from February 28, 1977, until March 31, 1978, with Life of Georgia in Orlando, Florida. Thereafter, Spain was employed as manager of an employment agency which experience is accepted by the Division as equivalent experience as an employment clerk.

   
   

4. The head of the Life of Georgia agency and Spain's immediate superior, William Richardson, testified concerning Spain's employment. Richardson needed an agent supervisor for his agency to assist him in recruiting, training and supervising agents for the company's Orlando operation. Richardson met Spain and was impressed with his background, feeling that Spain could fill this position as agent supervisor. However, in order to fill this position, the incumbent must be a licensed insurance salesman and have experience in insurance sales. Richardson offered Spain a position as a salesman with the understanding that if Spain gained experience in sales and was licensed he would have the opportunity to become the agent supervisor if his performance was otherwise satisfactory. Spain accepted the employment, obtained his insurance license and worked as an insurance salesman for approximately one year. Richardson was satisfied with Spain's progress and would have considered Spain for the supervisor's job had Spain not left the agency. Although Spain's duties primarily related to sales, he also recruited salesmen, worked in training other sales people, and did other work as was assigned by Richardson. Certain of these duties involved work which would be the equivalent of that of an employment clerk; however, Spain spent only approximately 50 percent of his time in such duties.

   
   

   CONCLUSIONS OF LAW

   
   

5. Section 449.023(1), Florida Statutes, provides that each applicant must have three years continuous experience as an employment clerk or the equivalent thereof immediately preceding the date of his application.

   
   

6. The facts presented show that Spain's only alleged non-qualifying employment was with Life of Georgia during the period February 28, 1977, to March 31, 1978. The facts further show a portion of Spain's duties were the equivalent of the duties of an employment clerk. Although Richardson did not promise the position of agent supervisor to Spain, promotion to these duties was Spain's primary motivation in accepting the job with Life of Georgia.

   Richardson did contemplate placing Spain in this position from the outset of his employment, and Spain's performance made him a serious candidate for the position of agent supervisor. Therefore, although Spain was in a salesman's position, he was a trainee for the position of agent supervisor, the duties of which would have been the equivalent of an employment clerk. The question, therefore, becomes whether one who is otherwise qualified under Chapter 449 and who accepts a position in which he must acquire additional skills or licensure to function in a specialized area of employment-related duties is barred from application by virtue of work not wholly within equivalent experience done to acquire the additional qualifications or experience.

7. Clearly, had Spain accepted employment solely as an insurance agent, he would not meet the criteria of continuous experience. Spain's motivation in accepting this position and the primary inducement for taking the sales position was to obtain the agent supervisor's position, but Spain had to have his license and sales experience to qualify. This was Richardson's purpose in hiring Spain. During the period Spain was acquiring this experience, approximately 50 percent of his time was engaged in employment clerk-related activities.

   
   

8. The Division has no rule or definition defining equivalent experience. Looking at the statute, the provisions of Section 449.023(1), Florida Statutes, act as a bar to employment. Therefore, that bar should be narrowly construed and the definition of equivalent experience given a broad meaning. Applying the definition of equivalent experience broadly, Spain's experience as a "trainee" would qualify.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer would recommend that the application of Albert Spain for licensure as a private employment agent/agency be granted.

DONE and ORDERED this 20th day of February, 1979, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 1979.

COPIES FURNISHED:

Gerald Curington Division of Licensing The Capitol

Tallahassee, Florida 32304

Albert L. Spain

4264C Lake Underhill Drive Orlando, Florida

Docket for Case No: 78-002236

Orders for Case No: 78-002236