J. GEISSINGER, )
)
Petitioner, )
)
vs. ) CASE NO. 80-764
) FLORIDA ELECTRICAL CONTRACTORS' ) LICENSING BOARD, )
)
Respondent. )
)
RECOMMENDED ORDER
PURSUANT TO NOTICE the Division of Administrative Hearings by its duly designated Hearing Officer, WILLIAM B. THOMAS, held a public hearing in this matter on August 20, 1980 in Miami, Florida. The parties were represented by:
APPEARANCES
For Petitioner: Jeffrey C. Coon and
Steven M. Robey, Esquires 8585 Sunset Drive, Suite 40
Miami, Florida 33143
For Respondent: Patricia R. Gleason, Esquire
Assistant Attorney General Department of Legal Affairs Administrative Law Section The Capitol
Tallahassee, Florida 32301
On September 24, 1979, petitioner, B. J. Geissinger, qualifying agent for Fred McGilvray, Inc., filed an application for statewide certification as an electrical contractor. By letter dated October 11, 1979, the Executive Director of the Electrical Contractors' Licensing Board (Board), returned petitioner's application to him as it was incomplete. Specifically, the application failed to demonstrate that the qualifying agent possessed three years of experience in the trade, as required by Florida Statutes, and the required credit reports had not been received. By letter of December 11, 1979, the Executive Director advised petitioner that his resubmitted application would be reviewed by the Board, but that the required credit reports had not yet been received. The credit reports were stamped received December 21, 1979. On March 14, 1980, the Board reviewed petitioner's application, and determined that the application should be denied because it did not reflect three years of experience as an electrical contractor, as required by law and Rule 21GG-5.03 of the Board. This decision was codified in the Board's letter of March 20, 1980, and thereafter the matter proceeded to hearing.
The issue is whether or not the petitioner's construction work history can be classified as electrical contracting experience or the equivalent, so as to
qualify him to be examined for certification as an electrical contractor. Both the petitioner and a member of the Board testified in support of their respective positions.
FINDINGS OF FACT
Petitioner has been employed for several years as Projects Manager for Fred McGilvray, Inc., a large general and mechanical contracting firm. He is licensed by the Construction Industry Licensing Board as a certified mechanical contractor and as a certified general contractor, but he has never been licensed as an electrical contractor in Florida or any other State, or in any county or municipality in Florida.
Petitioner submitted to the Board with his application for statewide certification as an electrical contractor, a list of jobs which he supervised in his capacity as Projects Manager for Fred McGilvray, Inc. Petitioner did not obtain any electrical permits for these jobs. All of the electrical work was subcontracted to electrical contractors except for some occasions when the job involved maintenance work that did not require an electrical permit. Under the terms of the electrical subcontracts entered into by petitioner's employer and the electrical subcontractors, the responsibility for the performance of the electrical work vested with the electrical contractor and not petitioner. In addition, the legal responsibility to ensure that the electrical work complied with all applicable local safety codes vested with the electrical contractor. Accordingly, the job functions performed by petitioner are not equivalent to those performed by an electrical contractor.
CONCLUSIONS OF LAW
The Florida Electrical Contractors' Licensing Board is established under Part II of Chapter 489, Florida Statutes, and is authorized to issue certificates of competency to engage in electrical contracting on a statewide basis. The Board is required to investigate the financial responsibility, credit and business reputation of an applicant for certification, and to investigate the education and experience of the applicant's qualifying agent. Section 489.511(3), Florida Statutes. The qualifying agent of an applicant must possess the requisite, skill, knowledge and experience to supervise, direct, manage and control the electrical contracting activities of the business entity for which he is a qualifying agent. Section 489.505(10), Florida Statutes.
Section 489.521(2), Florida Statutes, requires an applicant to possess the "required skill, knowledge, and experience as evidenced by 3 years' proven experience in the trade or the educational equivalent thereto or a combination thereof ...". However, the Board is required to accept evidence of at least six years registration as an engineer in lieu of this requirement, if the engineer possesses a current certificate of competency and was required to pass an examination. See also Rule 21GG-5.03, Florida Administrative Code.
Petitioner presented insufficient evidence to show that his work experience can be characterized as electrical contracting as this term is defined by Section 489.505(8), Florida Statutes, or as the term is commonly understood in the contracting business. The preponderance of petitioner's experience cotsists of work which is no different than that of any other construction superintendent. Since all construction contractors are required by law to subcontract all electrical work (see Section 489.113(2), Florida Statutes), petitioner's construction experience is not equivalent to that of an electrical contractor. Moreover, the electrical subcontractors used by
petitioner were legally as well as contractually obligated to ensure that the electrical work was performed in accordance with plans and specifications and all applicable codes.
Finally, there is no substantial, competent evidence showing that the Board acted capriciously or arbitrarily in determining that petitioner's application failed to demonstrate three years of experience as an electrical contractor. The application was reviewed initially by the Applications' Committee, and subsequently by the entire Board. The jobs petitioner listed as performed for Fred McGilvray, Inc., took place in Dade County, an area which requires that all electrical work be performed by licensed electrical contractors. Without a listing of any electrical licenses on the application, the petitioner did not make a showing that he met the statutory qualifications for certification. Denial, therefore, was not arbitrary or capricious. The petitioner failed to qualify fur statewide certification as an electrical contractor.
