STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BERT S. MCLAUGHLIN, )

)

Petitioner, )

)

vs. ) CASE NO. 89-2614

) DEPARTMENT OF PROFESSIONAL REGULATION, ) FLORIDA ELECTRICAL CONTRACTORS' ) LICENSING BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William R. Cave, held a formal hearing in the above- styled case on July 19, 1989, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Steven Meisel, Esquire

5425 St. Augustine Road Jacksonville, Florida 3220

For Respondent: Clark R. Jennings, Esquire

Assistant Attorney General Department of Legal Affairs Suite 1603 - The Capitol Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUES

1. Whether the Petitioner, Bert S. McLaughlin, qualifies for licensure as an unlimited electrical contractor in the state of Florida by endorsement pursuant to Section 489.511, Florida Statutes.

   
   

2. Whether the Resolution adopted by the Florida Electrical Contractrors' Board (Board) on July 19, 1985 and readopted in substance on March 30, 1987 and May 15, 1987 estops the Board from denying the Petitioner an unlimited electrical contractor's license by endorsement pursuant to Section 489.511, Florida Statutes.

PRELIMINARY STATEMENT

The Petitioner, Bert S. McLaughlin, made application to the Florida Electrical Contractors' Board (Board) on December 8, 1988 for licensure as a unlimited electrical contractor in the state of Florida by endorsement pursuant to Section 489.511, Florida Statutes, after passing the North Carolina examination for unlimited electrical contractors' license on September 23, 1988 and being issued an unlimited classification electrical contractors' license by

the state of North Carolina on November 28, 1988 to engage in electrical contracting in the state of North Carolina.

The Board considered Petitioner's application at its February 1, 1989, meeting and by letter dated February 28, 1989, advised Petitioner of its decision to deny his application. At its meeting on March 15, 1989, the Board again reviewed its denial of Petitioner's application, and by letter dated March 22, 1989, advised Petitioner of its decision to uphold its decision to deny his application issued on February 28, 1989.

Based on the Board's denial, Petitioner filed a Petition For Formal Hearing, and this proceeding ensued.

In support of his position, the Petitioner testified on his own behalf and presented the testimony of Ernest Isaac, Jr. Petitioner's exhibits 1 through 9 were received into evidence. Respondent presented the testimony of Robert E. Neely and James C. Lenhart. Respondent did not present any documentary evidence. A transcript was filed with the Division of Administrative Hearings on July 28, 1989. However, at the conclusion of the hearing the parties requested, and were granted, additional time to file their respective posthearing Proposed Findings of Fact and Conclusions of Laws pursuant to Rule 22I-6.031, Florida Administrative Code, and waived the provision of Rule 28- 5.402, Florida Administrative Code, requiring the submission of a Recommended Order within thirty days from the receipt of the transcript. A ruling on each proposed finding of fact has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. On July 19, 1985, the Florida Electrical Contractors' Licensing Board (Board) adopted a Resolution which provides in pertinent part as follows:

   
   

   WHEREAS, the Florida Electrical Contractors Licensing Board has diligently compared its licensing standards with those of the unlimited electrical contractors licensed by the North Carolina State Board of Examiners of Electrical Contractors, and,

   
   

   WHEREAS, the Florida Electrical Contractors Licensing Board has thoroughly reviewed the examinations that North Carolina candidates for unlimited licensure must pass and found them substantially similar to or equivalent to, the Florida licensure examination, now,

   
   

   THEREFORE BE IT RESOLVED, that the Florida Electrical Contractors Licensing Board will, upon receipt of a properly completed application from a properly licensed unlimited North Carolina electrical contractor who has obtained licensure by the North Carolina written exam, license by endorsement in accordance with Section 489.511(9), Florida Statutes

   NOTICE OF CANCELLATION, this Resolution may be rescinded upon 90 days notice to North Carolina, if it is determined by the Florida Electrical Contractors Licensing Board, that the licensing standards for unlimited electrical contractors in North Carolina are no longer comparable with the licensing standards of certified electrical contractors licensed pursuant to Chapter 489, Florida Statutes

   
   

2. The above Resolution was readopted in substance by the Board on March 30, 1987 and Nay 15, 1987.

   
   

3. The Board made a specific finding on May 15, 1987, when it readopted the Resolution, that the North Carolina examination for unlimited electrical contractors were "substantially similar to or equivalent to, the Florida licensure examination." The Board relied on that finding, without any further finding as to equivalency of the examinations, to grant licensure by endorsement from unlimited electrical contractors licensed in North Carolina who had successfully passed the North Carolina written unlimited electrical contractors examination up until August 31, 1988.

   
   

4. In October, 1988, the issue of the equivalency of the Florida examinations and the North Carolina examinations was raised by the Board. In December, 1988, the Board was provided current and previous examination blueprints of the North Carolina examinations by Block and Associates, who prepared the North Carolina examinations. Upon review of the examination blueprints of the North Carolina examinations, the Board determined that the North Carolina examinations were not "substantially equivalent to" the Florida examinations. This finding was based mainly on the fact that North Carolina's examinations did not contain any portion on business which the Board considered essential.

   
   

5. From the documents reviewed by the Board, the Board was unable to make a determination as to whether the business portion of the examination was included in the North Carolina examinations at the time of its finding of equivalency on May 15, 1987. However, the Board did determine apparently based on those documents, no later than its February 1, 1989, meeting, that at the time Petitioner took the North Carolina examination on September 23, 1988 it did not contain a business portion, and thereby was not "substantially equivalent to" the Florida examination.

   
   

6. Petitioner took and passed the examination in North Carolina for unlimited electrical contractors on September 23, 1988.

   
   

7. On November 28, 1988, Petitioner was granted a unlimited classification licence to practice electrical contracting in the state of North Carolina.

   
   

8. Petitioner submitted an application to the Board on December 8, 1988, for licensure as an unlimited electrical contractor in the state of Florida by endorsement based on having passed the North Carolina examination, being licensed in the state of North Carolina as an unlimited electrical contractor and practicing electrical contracting in the state of North Carolina.

   
   

9. On December 22, 1988, the state of North Carolina was notified by Paul

   H. Morgan, Jr., Chairman, Florida Electrical Contractors' Licensing Board that

   the 90 day cancellation provision of the Resolution was in effect and the "endorsement agreement" would be cancelled effective March 22, 1989. The Board did not officially authorize the letter by Mr. Morgan. The Board's official position was that the "endorsement agreement" was of no effect.

   
   

10. Petitioner obtained a City of Winston-Salem, North Carolina, City Privilege License, as an electrical contractor with one helper on January 5, 1989.

    
    

11. At its February 1, 1989, meeting the Board reviewed Petitioner's application for licensure by endorsemert, and by letter dated February 28, 1989, advised Petitioner of its denial based on the criteria for issuance of his North Carolina license not being equivalent to the criteria set forth for licensure in the state of Florida at the time Petitioner received his North Carolina license.

    
    

12. At its March 15, 1989, meeting the Board again reviewed Petitioner's application, and by letter dated March 15, 1989, advised Petitioner of its decision to uphold its denial of his application of February 1, 1989 as set out in its letter of February 28, 1989.

    
    

13. Although not specifically addressed in the letters dated February 28, 1989 and March 15, 1989, the criteria which caused the Board concerned was the lack of North Carolina's examination being "substantially equivalent to" the Florida examination, whether the Petitioner had been engaged in electrical contracting in North Carolina immediately preceding his application for licensure by endorsement in Florida and whether North Carolina required Petitioner to show certain financial responsibility standards prior to issuance of Petitioner's electrical contractor's license in North Carolina.

    
    

14. In its letter of February 28, 1989 the Board advised Petitioner that although it had denied his application for licensure by endorsement, it had approved his application as one for licensure by examination. The Petitioner has presently elected not to take the Florida unlimited electrical contractors' examination or the examination for licensure as an alarm system contractor.

    
    

15. Prior to taking and passing the North Carolina electrical contractor's examination, Petitioner had been engaged in all types of electrical contracting work, including fire alarm installation, in several counties in the state of Florida, and was licensed in several Florida counties as a county master electrical contractor but not as a state certified unlimited electrical contractor. Under the present law in Florida, county master electrical contractors, who are not state certified electrical contractors or licensed to practice alarm system contracting by the state of Florida, cannot practice alarm system contracting in the state of Florida.

    
    

16. It was Petitioner's intent at the time of taking the North Carolina examination to open an electrical contractor's business with his brother in North Carolina. Petitioner's primary reason for taking the North Carolina examination was to further this business relationship with his brother in North Carolina.. However, secondary to obtaining the North Carolina license, was licensure by endorsement in Florida.

    
    

17. While Petitioner was aware of Florida's "endorsement agreement" with North Carolina at the time he took the North Carolina examination, there was no evidence to show that the Petitioner relied on this "endorsement agreement" to his detriment.

18. Subsequent to obtaining his North Carolina license, Petitioner's brother died, and the North Carolina business was put on the "back burner" so to speak.

    
    

19. Two electrical permits for electrical work was "pulled" by Petitioner in the City of Winston-Salem, North Carolina on March 6, 1989 and with the work being inspected and approved on March 8, 1989. A third electrical permit was "pulled" by Petitioner for electrical work in the City of Winston-Salem, North Carolina on March 6, 1989 but there was no evidence to show that this work was completed by Petitioner.

    
    

20. There was no evidence to show that the North Carolina electrical contractors' examination was "substantially equivalent to" the Florida electrical contractors' examination. In fact, the Petitioner stipulated at the beginning of the hearing that he was relying entirely on Florida's "endorsement agreement" with North Carolina.

    
    

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes.

    
    

22. As the party asserting an affirmative issue before an administrative tribunal, the burden of proof is on Petitioner to prove the truth of the allegations. Florida Department of Transp. v. J. W. C. Company, Inc., 396 So.2d 778 (1 DCA Fla. 1981). Petitioner has failed to sustain this burden.

    
    

23. First, Petitioner contends that Respondent is estopped from denying his application for licensure by endorsement because of his reliance on the Resolution adopted by the Board on July 19, 1985 and readopted in substance on March 30, 1987 and May 15, 1987 when he took the North Carolina electrical contractors' examination on September 23, 1988. However, assuming arguendo that Petitioner has shown that he relied on a representation as to a material fact by the Board, Petitioner has failed to show that such reliance resulted in a change in position that was detrimental to Petitioner. State Department of Revenue v. Anderson, 403 So.2d 397, 400 (Fla. 1981).

    
    

24. Secondly, Petitioner has failed to show that regardless of the Resolution the North Carolina examination taken by Petitioner on September 23, 1988, was "substantially equivalent to" the Florida examination being used at that time or that he was engaged in the practice of electrical contracting in the state of North Carolina immediately preceding his application for licensure by endorsement on December 8, 1988 or that he met certain financial responsibility standards, all of which are required by Section 489.511(7)(a)(b), Florida Statutes (1988 Supp.) and Rule 21GG-5.009(1)(2)and (4), Florida Administrative Code.

RECOMMENDATION

Based upon the foregoing Findings of Fact the Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore

RECOMMENDED that the Board enter a final order denying Petitioner's application for licensure as a unlimited electrical contractor by endorsement.

DONE AND ENTERED this 20th day of September, 1989, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 1989.

APPENDIX TO RECOMMENDED ORDER IN CASE NUMBER 89-2614

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case.

Specific Rulings on Proposed Findings of Fact Submitted by Petitioner

1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the Petitioner's proposed finding of fact: 1(1); 2(2); 3(1); 5(3); 7-8(15); 9(6); 10(7,19); 11(16); 12(18); and 15(9).

2. Proposed findings of fact 4 and 13 are unnecessary to the conclusion reached in the Recommended Order.

3. Proposed findings of fact 14 is rejected as not being supported by substantial competent evidence in the record. See Findings of Fact 11 and 13. Letter referred to the equivalency of criteria.

4. Proposed findings of fact 16 and 18 are rejected as not being supported by substantial competent evidence in the record. See Findings of Fact 4 and 6.

5. Proposed finding of fact 6 is more correctly considered as a Conclusion of Law.

6. Although proposed finding of fact 17 is a restatement of Neely's testimony it is rejected as not being supported by substantial competent evidence in the record. See Proposed Finding of Fact 9.

Specific Rulings on Proposed Findings of Fact Submitted by Respondent

1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the Respondent's proposed finding of fact: 1(1); 2(2); 4(4); 5(6,16); 6(8); 7(10); 8(19); 9(11); 10(12) and 11(12).

2. Proposed finding of fact 3 is more correctly described as a Conclusion of Law.

COPIES FURNISHED:

Steven Meisel, Esquire 5425 St. Augustine Road

Jacksonville, Florida 32207

Clark R. Jennings, Esquire Assistant Attorney General Department of Legal Affairs Suite 1603 - The Capitol Tallahassee, Florida 32399-1050

Ms. Pat Ard Executive Director

Florida Board of Electrical Contractors 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Docket for Case No: 89-002614

Orders for Case No: 89-002614