STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT JAMES KONING, )

)

Petitioner, )

)

vs. ) CASE NO. 90-2154

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Respondent, )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Don W. Davis, held a formal hearing in the above- styled case on August 16, 1990, in Tampa, Florida.

APPEARANCES

For Petitioner: Mark A. Spence, Esq.

6233 Grand Boulevard

New Port Richey, FL 34652

For Respondent: Clark R. Jennings, Esq.

Assistant Attorney General Department Of Legal Affairs Suite 1603, The Capitol Tallahassee, FL 32399

STATEMENT OF THE ISSUES

The primary issue for determination is whether Petitioner should be permitted to take the examination provided by Respondent to individuals seeking licensure as a certified residential contractor.

PRELIMINARY STATEMENT

By letter dated September 8, 1989, Respondent's representative denied Petitioner's application to take the examination required for licensure as a residential contractor. Subsequently, Petitioner requested a formal administrative hearing concerning the application denial. Thereafter the matter was transferred to the Division Of Administrative Hearings for conduct of formal proceedings pursuant to Section 120.57(1), Florida Statutes, and assigned to Hearing Officer J. Lawrence Johnston, who noticed the final hearing for June 6, 1990. Upon motion of Petitioner, the matter was continued to August 16, 1990.

The case was transferred to the undersigned on August 14, 1990, for purpose of conducting the final hearing.

At the final hearing, Petitioner presented the testimony of one witness and four evidentiary exhibits. Testimony of one witness was presented on behalf of Respondent. The parties jointly presented one composite evidentiary exhibit.

A transcript of the final hearing was filed with the Division Of Administrative Hearings on August 27, 1990. Proposed findings of fact were submitted by Respondent and are addressed in the appendix to this recommended order. No proposed findings of fact were timely submitted by Petitioner and none had been received at the time of the preparation of this recommended order.

FINDINGS OF FACT

1. By certified mail letter dated September 8, 1989, Respondent's representative denied Petitioner's application to sitfor the residential contractor licensure examination.

   
   

2. At all times pertinent to these proceedings, Petitioner has been licensed by Respondent as a certified underground utility contractor; a certified building contractor; a certified general contractor; a certified roofing contractor; and a certified plumbing contractor. At the present time, Petitioner's licenses as an underground utility contractor and a general contractor are inactive.

   
   

3. Petitioner derives 60 percent of his income from consulting services and service as an arbitrator in negotiation and settlement of contracting industry disputes. Petitioner maintains that his credibility as a consultant and expert witness will be bolstered as a result of completing the specific examination for licensure as a residential contractor. Further, he maintains that possibilities of his selection as a arbitrator will also be enhanced as the result of such examination and licensure.

   
   

4. Petitioner is also an instructor for an examination preparation organization designed to prepare individuals to pass various state and local contractor examinations, including the examination required for licensure as a certified residential contractor.

   
   

5. Respondent's denial of Petitioner's application was predicated upon Petitioner's existing licensure status as a building contractor, as defined in Section 489.105(3)(b), Florida Statutes. As stated by Respondent's representative in the September 8, 1989 letter, Petitioner's statutory scope of work asa licensed building contractor "includes and surpasses that of a residential contractor as defined by Section 489.105(3)(c), Florida Statutes" and therefore submittal of an application for a residential contractor license did not serve the purpose of determining Petitioner's qualification for that license.

   
   

6. An applicant who successfully completes the examination offered by Respondent for licensure as a general contractor has essentially demonstrated competency in the areas covered by Respondent's examinations for builder and residential contractor licensure. Such an applicant may be considered to have completed the examinations for competency to hold those licenses.

7. At the final hearing, the parties stipulated that Respondent has reconsidered its denial, in part, and will issue a residential contractor license to Petitioner. While Petitioner will not be permitted to take the examination for residential contractor licensure, his previous test score from the general contractor examination will be used, by Respondent, to document Petitioner's competency as a residential contractor and to comply with statutory requirements 1/ for licensure that competency be ascertained by the applicant's completion of the appropriate examination.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section120.57(1), Florida Statutes.

   
   

9. Petitioner bears the burden of establishing its entitlement to the relief sought in this proceeding. Florida Department of Transportation v. J. W.

   C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981).

   
   

10. The relief sought by Petitioner in this proceeding is admission to an examination for licensure as a residential contractor, following Respondent's initial denial of Petitioner's application. However, the parties' subsequent stipulation that Petitioner will be issued a residential contractor license, coupled with proof presented at the final hearing that successful completion of the examination for competency as a general contractor also serves to determine competency as a residential contractor, eliminates any disputed material fact concerning the substantial interest of Petitioner in obtaining admission to the examination for prospective residential contractors.

    
    

11. Petitioner' argument places great weight on his right to take the examination for licensure, regardless of whether he is issued a license. Petitioner's argument is unpersuasive. Pertinent language of Section 489.113(1) requires an applicant for licensure to establish professional competency by passing "the appropriate examination administered by the Department." Further, as specified by Section 489.111(2), Florida Statutes, the purpose of the examination is to determine competency to engage in contracting. As determined by Respondent, the issue of Petitioner's professional competency has been resolved byPetitioner's successful completion of the general contractor examination. With that determination, the issue of admission to an examination to make such a determination is moot. An appropriate summation may be found in Harden and Cauthen v. DPR, Electrical Contractors' Licensing Board, 8 FALR 1319 (Final Order issued March 4, 1986), at 1365, where the Hearing Officer succinctly stated that "no one has a substantial interest in litigating moot points."

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that upon issuance of a residential contractor's license to Petitioner, a final order be entered dismissing, as moot, any further proceedings in this cause.

DONE AND ENTERED this 12th day of September, 1990, in Tallahassee, Leon County, Florida.

DON W.DAVIS

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Fl 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of September, 1990.

ENDNOTES

1/ ~489.113(1) and ~489.111(2), Florida Statutes.

APPENDIX

The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Petitioner's Proposed Findings.

None submitted.

Respondent's Proposed Findings.

1.-3. Adopted in substance.

4. Rejected, unnecessary. 5.-9. Adopted in substance.

1. Rejected, unnecessary.

2. Adopted with regarding to establishing that successful completion of the general contractor's examination suffices to establish competency for residential contractor licensure; remainder rejected as unnecessary.

3. Rejected as unnecessary.

Copies furnished:

Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2

Jacksonville, FL 32201

Kenneth E. Easley, Esq.

Department of Professional Regulation The Northwood Centre, Suite 60

1940 N. Monroe St. Tallahassee, FL 32399

Mark A. Spence, Esq.

1 East Main Street

New Port Richey, FL 34652

Clark R. Jennings, Esq. Assistant Attorney General Department of Legal Affairs Suite 1603

The Capitol Tallahassee, FL 32399

Docket for Case No: 90-002154

Orders for Case No: 90-002154