STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICK BONDURANT, )

)

Petitioner, )

)

vs. ) CASE NO. 91-5215RP

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, a final hearing was conducted in this case on October 15, 1991, at Tallahassee, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings.

Appearances for the parties were as follows:

APPEARANCES

For Petitioner: Dale L. Gross, Esquire

Post Office Box 40041

St. Petersburg, Florida 33743

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

The basic issue in this case is whether the Respondent's proposed Rule 21E-

1. is an invalid exercise of delegated legislative authority.

   
   

   PRELIMINARY STATEMENT

   
   

   At the formal hearing the Petitioner presented the testimony of three witnesses and offered numerous exhibits. Most of the Petitioner's exhibits were received in evidence, but a few were rejected. The Respondent presented the testimony of one witness and offered three exhibits. All of the Respondent's exhibits were received in evidence. At the conclusion of the hearing, the parties were allowed until November 5, 1991, within which to file their proposed final orders.

   
   

   On October 21, 1991, a transcript of the proceedings at the final hearing was filed with the Hearing Officer. On October 31, 1991, the Petitioner filed a motion seeking to abate this proceeding and also seeking an extension of time within which to file the parties' proposed final orders. By order issued that

   same day, the motion was denied. Thereafter, both parties filed timely proposed final orders containing proposed findings of fact and conclusions of law.

   Specific rulings on all proposed findings of fact are contained in the Appendix to this Final Order.

   
   

   FINDINGS OF FACT

   
   

   1. On August 9, 1991, the Construction Industry Licensing Board published notice in Volume 17, No. 32, of the Florida Administrative Weekly of its intent to adopt a new proposed rule. The full text of the proposed rule reads as follows:

      
      

      21E-15.020 Registration of Specialty Categories. Locally licensed contractors whose classifications are not of a nature to permit certification, shall be required to register with the Board.

      
      

   2. The Board's notice of rulemaking in the August 9, 1991, issue of the Florida Administrative Weekly also contained the following additional relevant information about the proposed rule:

      
      

      PURPOSE, EFFECT AND SUMMARY: The purpose of the rule is to replace language that has been repealed in Rule 21E-15.018. This rule would require local contractors who are not certified under provisions of Chapter 489 to register with the Board. The statute already requires that contractors in the state will be certified or registered. The rule makes this requirement clear.

      RULEMAKING AUTHORITY: 489.108, 489.105(12), F.S. LAW

      IMPLEMENTED: 489.105(12), 489-117(5), F.S. SUMMARY OF THE ESTIMATE OF ECONOMIC IMPACT OF THE

      RULE: The implementation of this proposed rule amendment will have minimal impact upon the Board or the Department other than the costs involved in promulgation. There should be no adverse economic impact or benefit to current licensees or potential applicants. It is not anticipated that this proposed rule amendment will economically impact entities falling within the definition of "small business".

      
      

   3. On September 15, 1991, a copy of the notice filed with the Secretary of State and published in Volume 17, No. 32, of the Florida Administrative Weekly, along with a statement of facts and circumstances justifying the proposed rule, a copy of the statement of the economic impact of the proposed rule, and a comparative statement of federal standards, were filed with the Joint Administrative Procedures Committee.

      
      

   4. A public hearing was held pursuant to the provisions of Section 120.54(3), Florida Statutes, on September 16, 1991. No new information was received at that hearing and the Respondent board proceeded with the rule as proposed.

      
      

   5. The Petitioner, Rick Bondurant, is a painting contractor. He has been self-employed as a painting contractor for the past six years, and worked in the same trade for approximately five years before becoming self-employed. He does not presently have any employees in his painting contractor business. In the

      past he has had one employee. His gross annual revenue from his business in recent years has varied between $20,000.00 and $30,000.00 per year.

      
      

   6. The Petitioner works primarily in Pinellas County, Florida. In Pinellas County, painting contractors are regulated by a local board known as the Pinellas County Construction Licensing Board. Painting contractors doing business in Pinellas County are required to have a competency card issued by the local construction licensing board. The Petitioner presently holds a countywide certificate of competency, number C-5229, which certifies him to be a painting contractor.

      
      

   7. To obtain his local competency card, the Petitioner had to pay an application fee of $110.00. Renewal of the local competency card costs $70.00 each year.

      
      

   8. The Pinellas County Construction Licensing Board is an active board that appears to be doing a good job of regulating the painting contractor trade in that county. The local board administers discipline when appropriate, including the imposition of administrative fines and the suspension and revocation of local competency cards.

      
      

   9. The Petitioner is not now, nor has he ever been, registered or certified by the State of Florida as a painting contractor. The Petitioner does not wish to be registered or certified by the State of Florida as a painting contractor. If the Petitioner is required to register with the State of Florida as a painting contractor, he will be required to pay application and renewal fees that he is not currently required to pay, and he will also incur certain additional expenses that he does not presently incur. If the Petitioner is required to register with the State of Florida as a painting contractor, he will be subject to state investigatory and disciplinary authority, to which he has not previously been subjected.

      
      

      CONCLUSIONS OF LAW

      
      

   10. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. See Section 120.54, Florida Statutes.

       
       

   11. Section 120.54(4), Florida Statutes (1991), reads as follows, in pertinent part:

       
       

       (4)(a) Any substantially affected person may seek an administrative determination of the invalidity of

       any proposed rule on the ground that the proposed rule is an invalid exercise of delegated legislative authority.

       1. The request seeking a determination under this subsection shall be in writing and must be filed with the division 21 days after the date of publication of the notice. It must state with particularity the provisions of the rule or economic impact statement alleged to be invalid with sufficient explanation of the facts or grounds for the alleged invalidity and facts sufficient to show that the person challenging the proposed rule would be substantially affected by it.

       2. Immediately upon receipt of the petition, the division shall forward copies of the petition to the agency whose rule is challenged, the Department of State, and the committee. Within 10 days after receiving the petition, the division director, if he determines that the petition complies with the above requirements, shall assign a hearing officer who shall conduct a hearing within 30 days thereafter, unless the petition is withdrawn. Within 30 days after conclusion of the hearing, the hearing officer shall render his decision and state the reasons therefor in writing.

          The division shall forthwith transmit copies of the hearing officer's decision to the Department of State and to the committee. The hearing officer may declare the proposed rule wholly or partly invalid. The proposed rule or provision of a proposed rule declared invalid shall be withdrawn from the committee by the adopting agency and shall not be adopted. No rule shall be filed for adoption until 28 days after the notice required by subsection (1) or until the hearing officer has rendered his decision, as the case may be. However, the agency may proceed with all other steps in the rulemaking process, including the holding of a factfinding hearing pursuant to subsection (3). In the event part of a proposed rule is declared invalid, the adopting agency may, in its sole discretion, withdraw the proposed rule in its entirety. The agency whose proposed rule has been declared invalid in whole or part shall give notice of the decision in the first available issue of the Florida Administrative Weekly.

          
          

   12. Section 120.52(8), Florida Statutes (1991), contains the following definition:

       
       

       1. "Invalid exercise of delegated legislative authority" means action which goes beyond the powers, functions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply:

          1. The agency has materially failed to follow the applicable rulemaking procedures set forth in s. 120.54;

          2. The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(7);

          3. The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(7);

          4. The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency; or

          5. The rule is arbitrary or capricious.

       
       

   13. There are several provisions of Chapter 489, Florida Statutes, which must be considered. The first of these is the Board's rulemaking authority, which appears at Section 489.108, Florida Statutes, and reads as follows: "The

       board is authorized to make such rules not inconsistent with law which are necessary to carry out the duties and authority conferred upon it by this chapter."

       
       

   14. Attention is next directed to several definitions of terms used in Chapter 489, Florida Statutes. The definitions appear at Section 489.105, Florida Statutes, and read as follows, in pertinent part:

       
       

       As used in this part:

       (1) "Board" means the Construction Industry Licensing Board.

       * * *

       (3) "Contractor" means the person who is qualified for and responsible for the entire project contracted for and means, except as exempted in this part, the person who, for compensation, undertakes to, submits a bid to, or does himself or others construct, repair, alter, remodel, add to, subtract from, or improve any building or structure, including related improvements to real estate, for others or for resale to others.

       Contractors are subdivided into two divisions, Division 1, consisting of those contractors defined in paragraphs (a)-(c), and Division II, consisting of those contractors defined in paragraphs (d)-(n): [The definitions of statutory contractors in paragraphs (a) through (n) have been omitted as unnecessary to disposition of this case.]

       * * *

       1. "Contracting" means, except as exempted in this part, engaging in business as a contractor and includes, but is not limited to, performance of any of the acts as set forth in subsection (3) which define types of contractors. The attempted sale of contracting services and the negotiation or bid for a contract on these services also constitutes contracting. If the services offered require licensure or agent qualification, the offering, negotiation for a bid, or attempted sale of these services requires the corresponding licensure. However, the term "contracting" shall not extend to business organizations which retain or engage the services of a qualified contractor certified or registered pursuant to the requirements of this chapter; nor shall such business organizations, themselves, be subject to agent qualification as a contracting business in accordance with the provisions of s. 489.119 and rules of the board.

       2. "Certificate" means a certificate of competency issued by the department as provided in this part.

       3. "Certified contractor" means any contractor who possesses a certificate of competency issued by the department and who shall be allowed to contract in any jurisdiction in the state without being required to fulfill the competency requirements of that jurisdiction.

       4. "Registration" means registration with the department as provided in this part.

       5. "Registered contractor" means any contractor who has registered with the department pursuant to fulfilling the competency requirements in the jurisdiction for which the registration is issued. Registered contractors may contract only in such jurisdictions.

       6. "Certification" means the act of obtaining or holding a certificate of competency from the department as provided in this part.

       7. "Specialty contractor" means a contractor whose scope of work and responsibility is limited to a particular phase of construction or whose scope of work is limited to a subset of the activities described in the categories established in paragraphs (a)-(n) of subsection (3). Categories of specialty contractor shall be established by the board by rule.

       8. "Local construction regulation board" means a board, composed of not fewer than three residents of a county or municipality, which the governing body of that county or municipality may create and appoint to maintain the proper standard of construction of that county or municipality.

       
       

   15. Section 489.109, Florida Statutes, authorizes the Board to establish various fees. With respect to an applicant for registration, the Board can establish an initial application fee not to exceed $50.00 and an initial registration fee and renewal fee not to exceed $200.00

       
       

   16. Section 489.113, Florida Statutes, includes the following relevant provisions regarding qualifications for practice:

       
       

       1. Any person who desires to engage in contracting on a statewide basis shall, as a prerequisite thereto, establish his competency and qualifications to be certified pursuant to this part. To establish his competency, a person shall pass the appropriate examination administered by the department. Any person who desires to engage in contracting on other than a statewide basis shall, as a prerequisite thereto, be registered pursuant to this part, unless exempted by this part.

       2. No person who is not certified or registered shall engage in the business of contracting in this state.

       * * *

       (6) The board shall, by rule, designate those types of specialty contractors which may be certified under this part.

       
       

   17. Section 489.117, Florida Statutes, contains the following provisions regarding registration:

       
       

       1. Any person engaged in the business of contracting in the state shall be registered in the proper classification, unless he is certified. Any person entering the business of contracting shall be registered prior to engaging in contracting, unless he is certified. To be initially registered, the

          applicant shall submit the required fee and file evidence, in a form provided by the department, of holding a current local occupational license issued by any municipality, county, or development district for the type of work for which registration is desired and evidence of successful compliance with the local examination and licensing requirements, if any, in the area for which registration is desired. No examination shall be required for registration.

       2. Registration allows the registrant to engage in contracting only in the counties, municipalities, or development districts where he has complied with all local licensing requirements and only for the type of work covered by the registration.

       3. Upon findings of fact supporting the need therefor, the board may grant a limited nonrenewable registration to a contractor not domiciled in the state, for one project. During the period of such registration the board may require compliance with this and any other statute of the state.

       4. The application for a temporary registration shall constitute appointment of the Department of State as an agent of the applicant for service of process in any action or proceeding against the applicant arising out of any transaction or operation connected with or incidental to the practice of contracting for which the temporary license was issued.

       5. A special registration shall be granted to a specialty contractor as defined in subsection 489.105(12), provided local licensing is required for that specialty. (emphasis added)

       
       

   18. In June of 1989, the Board adopted Rule 21E-15.018, Florida Administrative Code, titled "Registration of Specialty Categories." That rule was repealed in July of 1991. While in effect, Rule 21E-15.018 provided the following:

       
       

       Locally licensed contractors whose classifications are not of a nature to permit certification, shall not require registration with the Board unless the contracting categories are listed below:

       1. Aluminum

       2. Asbestos Abatement

       3. Carpentry

       4. Drywall

       5. Grading/Paving

       6. Marine

       7. Masonry

       8. Response Action

       9. Solar

       10. Specialty Structure

       11. Steel Erection

       
       

   19. The petition in this case is far from a model of clarity, but it does appear to squarely raise the issue that the challenged propose rule "enlarges, modifies, or contravenes the specific provisions of law implemented." 1/ In this regard, the Petitioner argues that the registration required by the rule is

       not required by the statutes. The Board argues, as stated in its published notice of rulemaking: "The statute already requires that contractors in the state will be certified or registered. The rule makes this requirement clear." In support of its position, the Board reads all of the statutory provisions above in pari materia and concludes, as stated at pages 7 and 8 of its proposed final order:

       
       

       Reading the above sections in pari materia two common themes becomes clear. The first, that one must be either registered or certified to engage in contracting in the State of Florida, contracting being defined in Section 489.105, F.S., unless an exemption applies as established in Section 489.103, F.S. Second, that the Respondent Board is mandated by the Legislature to provide registration to specialty contractors who must possess local licensure. This analysis is supported by an Attorney General's Opinion issued on

       October 9, 1991. . . . All of this, of course, supports the original position of Respondent Board that it is Chapter 489, F.S. which requires the Board to register all locally licensed contractors whether the scope of work defined exists in Section 489.105(3),

       F.S. or not.

       
       

   20. The Board's position quoted above is predicated on a misinterpretation of both the applicable statutory provisions and the October 9, 1991, Attorney General Opinion. 2/ Prior to embarking upon a review of the applicable statutory provisions, it is helpful to focus attention once again on the language and meaning of the proposed rule. The language of the proposed rule is as follows:

       
       

       21E-15.020 Registration of Specialty Categories. Locally licensed contractors whose classifications are not of a nature to permit certification, shall be required to register with the Board.

       
       

       The clear effect of the proposed rule is to require registration with the Board by all members of the class described in the rule. The class affected by the rule is described in the title as "Specialty Categories" and in the text as "locally licensed contractors whose classifications are not of a nature to permit certification." Thus, the class affected by the rule is comprised of all who come within the meaning of the term "specialty contractor," as defined by Section 489.105(12), Florida Statutes, except those specialty contractors who have been designated by the Board, by rule, pursuant to Section 489.113, Florida Statutes, as "those types of specialty contractors which may be certified under this part." For the reasons set forth below, the applicable statutes permit, but do not require, registration of all who comprise the class affected by the subject proposed rule.

       
       

   21. Prior to an analysis of the specific statutory provisions that bear on this matter, it is helpful to consider a few of the old reliable rules of statutory construction. Of particular applicability to the issues in this case is the rule of statutory construction to the effect that a legislative direction as to the manner or mode in which a thing must be done is an implied prohibition against its being done in any other way. The rule was described in Alsop v. Pierce, 19 So.2d 799, 805-6 (Fla. 1944), where the court stated: "When the Legislature has prescribed the mode, that mode must be observed. When the

       controlling law directs how a thing shall be done that is, in effect, a prohibition against its being done in any other way." To similar effect, and specifically with regard to the exercise of "administrative" powers, in Kirk v. Publix Super Markets, 185 So.2d 161, 164 (Fla. 1966), the court said: "It is elemental that when the Legislature provides that an administrative power shall be exercised in a certain way such prescription precludes the doing of it in another way."

       
       

   22. Especially relevant to the disposition of this case is the rule of statutory construction to the effect that when the Legislature has defined the meaning of a word used in a statute, the legislative definition must be given effect whenever the defined word is used in the statute, unless a contrary intent clearly appears. See Richard Bertram & Co. v. Green, 132 So.2d 24, 26 (Fla. 3d DCA 1961); Vocelle v. Knight Brothers Paper Co., 118 So.2d 664, 667 (Fla. 1st DCA 1960); Ervin v. Capital Weekly Post, 97 So.2d 464, 469 (Fla. 1957); First Nat. Bank of Miami v. Florida Industrial Commission, 16 So.2d 636 (Fla. 1944). In the course of emphasizing the effect of legislative definitions, the court in Vocelle, supra, made the following remarks which are also relevant to the disposition of this case:

       
       

       When the words of a statute are plain and unambiguous, the courts must give them their plain meaning. When a statute contains a definition of a word or phrase that meaning must be ascribed to the word or phrase whenever repeated in the same statute unless a contrary intent clearly appears. Every statute must be construed as a whole and the legislative intent determined, if it be possible, from what is said in the statute. If the language of a statute is clear and not entirely unreasonable or illogical in its operation, the court has no power to go outside the statute in search of excuses to give a different meaning to words used in the statute. A statute should be so construed as to give a meaning to every word and phrase in it and, if possible, so as to avoid the necessity of going outside the statute for aids to constriction. (emphasis in original)

       
       

   23. The central idea in the last sentence of the above-quoted language has often been repeated by Florida courts. For example, in Fleischman v. Dept. of Professional Regulation, 441 So.2d 1121, 1123 (Fla. 3d DCA 1983), the court stated: "Every Statute must be read as a whole with meaning ascribed to every portion and due regard given to the semantic and contextual interrelationship between its parts." Similarly, in Terrinoni v. Westward Ho!, 418 So.2d 1143, 1146 (Fla. 1st DCA 1982), the court said: "Statutory language is not to be assumed superfluous; a statute must be construed so as to give meaning to all words and phrases contained within that statute." To similar effect, see Johnson v. Feder, 485 So.2d 409, 411 (Fla. 1986); Cilento v. State, 377 So.2d 663, 666 (Fla. 1979); State v. Rodriguez, 365 So.2d 157, 159 (Fla. 1978); and Topeka Inn Management v. Pate, 414 So.2d 1184 (Fla. 1st DCA 1982). In Topeka, supra, the court explained:

       
       

       It is a cardinal rule of statutory construction that the entire statute under consideration, and not just isolated phrases and words, must be considered in determining legislative intent, and effect must be

       given to every part of the provision under construction and every part of the statute as a whole.

       
       

   24. And, as noted in State v. Putnam Co. Develop. Auth., 249 So.2d 6 (Fla. 1971), at page 10:

       
       

       We cannot charge the Legislature with enacting contradictory provisions in the same Act. It is our duty to read the several provisions of the Act as consistent with one another rather than in conflict, if there is any reasonable basis for consistency.

       
       

   25. Yet another rule of statutory construction which is applicable to the issues in this case is the ancient rule known as expressio unius est exclusio alterius. See Ideal Farms Drainage Dist. v. Certain Lands, 19 So.2d 234 (Fla. 1944); Thayer v. State, 355 So.2d 815, 817 (Fla. 1976); Rebich v. Burdine's and Liberty Mutual Insurance Co., 417 So.2d 284, 285 (Fla. 1st DCA 1982); and James

       v. Dept. of Corrections, 424 So.2d 826, 827 (Fla. 1st DCA 1983). In James, supra, the rule is described as follows:

       
       

       Expressio unius est exclusio alterius is a general principle of statutory construction which states that the mention of one thing implies the exclusion of another. Thus, where a statute enumerates the things on which it is to operate, it is ordinarily construed as excluding from its operation all those not expressly mentioned.

       
       

   26. The crux of the Board's position is a contention that the applicable statutory scheme requires that every person who engages in "contracting" in the State of Florida must be either certified or registered. The Board bases this contention primarily on the language of Sections 489.113 and 489.117, Florida Statutes. The Board's argument is "literally" correct, because the statutes say exactly what the Board argues. But what the Board's argument overlooks is that, for purposes of all of the statutory provisions of Chapter 489, Florida Statutes, the Legislature has given special meanings to several key words, including the words "contractor," "contracting," and "specialty contractor," all of which are defined in Section 489.105, Florida Statutes. It is clear from those definitions that a "contractor" and a "specialty contractor" are two very different things. It is also clear from those definitions that the term "contracting, as used in Chapter 489, Florida Statutes, encompasses only the activities of "contractors" (as defined in the statute) and does not encompass the activities of "specialty contractors" (as defined in the statute). This is clear from the initial sentence of the statutory definition of "contracting" at Section 489.105(6), Florida Statutes, which reads: "'Contracting' means

       . . . engaging in business as a contractor and includes, but is not limited to, performance of any of the acts set forth in subsection (3) which define types of contractors." (emphasis added) In this regard it is important to note that the statutory definition of the term "contracting" at Section 489.105(6) contains no reference to engaging in business as a "specialty contractor," and that the definitions of the "types of contractors" in paragraphs (a) through (n) of Section 489.105(3), Florida Statutes, makes no relevant mention of "specialty contractors." 3/

       
       

   27. Because of the statutorily defined meaning of the term "contracting," the general provisions of Sections 489.113 and 489.117, Florida Statutes, which mandate certification or registration with the Board prior to engaging in "the

       business of contracting" do not apply to "specialty contractors." Therefore, any statutory authority for the Board to require registration of "specialty contractors" must be sought elsewhere in the statutes. The relevant statutory provisions include the last sentence of Section 489.105(12), Florida Statutes, which reads: "Categories of specialty contractor shall be established by the board by rule." The quoted legislative language clearly envisions the classification of "specialty contractors" into various categories. Yet the effect of the proposed rule is to treat all "specialty contractors" as being encompassed within a single category; i.e., those who must be registered. As noted in the judicial decisions cited and quoted above, a legislative direction as to the manner in which something must be done is an implied prohibition against it being done in some other way. Therefore, to the extent that the proposed rule at issue in this case purports to treat all "specialty contractors" as a single category, rather than to establish specific categories as required by the last sentence of Section 489.105(12), Florida Statutes, the proposed rule modifies or contravenes a statutory provision. Such modification or contavention is an "invalid exercise of delegated legislative authority" within the meaning of Section 120.52(8), Florida Statutes (1991).

       
       

   28. The only other provision of Chapter 489, Florida Statutes, that deals specifically with the registration of "specialty contractors" is Section 459.117(5), Florida Statutes, which reads as follows:

       
       

       (5) A special registration shall be granted to a specialty contractor as defined in subsection 489.105(12), provided local licensing is required for that specialty.

       
       

       The first item of note in the statutory language quoted immediately above is the use of the term "special registration." The term "special registration" is not defined in Chapter 489, Florida Statutes. Because the word "special" is a somewhat broad word, the term "special registration" may be subject to several different interpretations. But regardless of how it might be interpreted, it cannot be doubted that "special registration" is something other than ordinary or regular registration; otherwise, there would be nothing "special" about it.

       And if any meaning is to be given to the word "special" as used in Section 489.117(5), Florida Statutes, it must be concluded that, by the use of the word "special," the Legislature intended to exempt "specialty contractors" from the general registration and certification requirements found elsewhere in the statutes. This intent to exempt is emphasized by the remainder of the language in Section 489.117(5), Florida Statutes, which has the effect of commanding the Board to "grant" special registration to a specialty contractor, subject to a single proviso. Section 489.117(5) does not require a specialty contractor to seek a special registration; it only requires the Board to grant such a registration, if sought, by "specialty contractors" who are required to be locally licensed.

       
       

   29. The final point to be noted regarding Section 489.117(5), Florida Statutes, is that the provision for granting "special registration" is limited to, in the words of the statute, "a specialty contractor as defined in subsection 489.105(12)." A provision of that statutory definition which cannot be ignored is the previously discussed sentence, which reads: "Categories of specialty contractor shall be established by the board by rule." Until those categories are established by rule, the definition remains incomplete. And until the definition is complete, it cannot be determined to which "specialty contractors" the Board must grant the special registration provided for by Section 489.117(5).

   30. From the discussion in the last three paragraphs, it is clear that there is no provision in Chapter 489, Florida Statutes, that empowers the Board to require "specialty contractors" to register with the Board. To the contrary, the applicable statutory scheme requires the Board to "grant" some form of "special registration." Such being the case, the proposed rule at issue here enlarges, modifies, or contravenes the applicable statutes. Such enlargement, modification, or contravention is an "invalid exercise of delegated legislative authority" within the meaning of Section 120.52(8), Florida Statutes.

       
       

   31. The petition in this case also challenges the sufficiency of the economic impact statement. In view of the disposition of the issues already discussed, no useful purpose would be served by a lengthy discussion of the economic impact statement. The Respondent board is of the view that the proposed rule has no economic impact because, in the board's view, the proposed rule does not require anything that is not already required by the statute. For reasons explained earlier in this Final Order, the board's view is incorrect. Inasmuch as the proposed rule requires more than is required by the statute, the economic impact statement should have contained the information required by Section 120.54(2)(b)1 through 5, Florida Statutes (1991). By failing to include in the economic impact statement all of the information required by statute, the Respondent board has materially failed to follow the applicable rulemaking procedures set forth in Section 120.54, Florida Statutes (1991). Such failure is an "invalid exercise of delegated legislative authority" within the meaning of Section 120.52(8), Florida Statutes (1991).

       
       

   32. As a final matter, the petition in this case also challenges the proposed rule on the ground that the Respondent failed to comply with the requirements of Section 120.54(2)(a)1 through 5, Florida Statutes (1991), regarding impact of the proposed rule on small business. As previously mentioned, the Respondent board is of the view that the subject proposed rule has no impact of its own, because the board interprets the statutes as already requiring what is set forth in the proposed rule. For reasons explained earlier in this Final Order, the board's view is incorrect. Therefore, the failure of the board to comply with the requirements of Section 120.54(2)(a) 1 through 5, Florida Statutes (1991), is a material failure to follow the applicable rulemaking procedures set forth in Section 120.54, Florida Statutes (1991), which failure is an "invalid exercise of delegated legislative authority" within the meaning of Section 120.52(8), Florida Statutes (1991).

On the basis of all of the foregoing Findings of Fact and Conclusions of Law, it is ORDERED:

That the Respondent's proposed Rule 21E-15.020 is an invalid exercise of delegated legislative authority.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 28th day of January 1992.

MICHAEL M. PARRISH

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 28th day of January 1992.

ENDNOTES

1/ In this regard, see the third sentence of section 4 of the Petition and the first sentence of section 5 of the Petition. Although inartfully worded, the issue is raised.

2/ Attorney General Opinion 91-77, issued on October 9, 1991, correctly describes the provisions of Section 489.117(5), Florida Statutes, as

". . . requiring that registration must be granted to a specialty contractor, provided local licensing is required for that specialty; indicating that there are categories of specialty contractors which may be required to be licensed locally, but not necessarily certified statewide." (emphasis added) But, as discussed hereinafter, the statutory provision that requires the Board to register certain specialty contractors does not require those specially contractors to be registered.

3/ In all of the definitions of all of the types of statutory "contractors" at Section 489.105(3)(a) through (n), Florida Statutes, the only use of the term "specialty contractor" occurs in the context of the definition of "plumbing contractor." In that specific context, the usage of the term does more to confuse than to clarify.

APPENDIX TO FINAL ORDER

The following are my specific rulings on all proposed findings of fact submitted by all parties.

Findings proposed by Petitioner:

Paragraph 1: First two sentences accepted in substance. The remainder is rejected as constituting argument or conclusions of law, rather than proposed findings of fact.

Paragraph 2: Rejected as constituting a combination of argument and conclusions of law, rather than proposed findings of fact.

Paragraph 3: Rejected as subordinate and unnecessary details and also rejected as, for the most part, not established by persuasive evidence.

Paragraphs 4, 5, and 6: Rejected as constituting a combination of argument and conclusions of law, rather than proposed findings of fact.

Paragraph 7: The first two sentences are rejected as not supported by competent substantial evidence. The entire paragraph is rejected as constituting argument, rather than proposed findings of fact.

Paragraphs 8, 9, and 10: Rejected as constituting argument or legal conclusions, rather than proposed findings of fact.

Paragraph 11: Rejected as subordinate and unnecessary details and argument.

Paragraph 12 and the two unnumbered paragraphs following same: Rejected as subordinate and unnecessary details and as argument.

Paragraph 13: Rejected as irrelevant to the issues in this case.

Paragraph 14: Accepted that the Petitioner would have additional expenses if required to register; the remainder is rejected as subordinate and unnecessary details.

Paragraph 15: Rejected as subordinate and unnecessary details.

Paragraphs 16 and 17: Rejected as not fully supported by persuasive competent substantial evidence.

Paragraph 18: First sentence accepted in substance. Second sentence rejected as constituting argument, rather than proposed findings of fact.

Paragraph 19: Rejected as subordinate and unnecessary details.

Paragraphs 20 and 21: Rejected as constituting a legal conclusion, rather than a proposed finding of fact.

Findings proposed by Respondent:

Paragraphs 1 and 2: Accepted.

Paragraph 3: Rejected as subordinate and unnecessary details. Paragraph 4: Rejected as not supported by persuasive evidence. Paragraph 5: Accepted in substance.

Copies furnished:

Dale L. Gross, Esquire Post Office Box 40041

St. Petersburg, Florida 33743

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

Carroll Webb, Executive Director Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32399-1300

Liz Cloud, Chief

Bureau of Administrative Code Room 1802, The Capitol Tallahassee, Florida 32399-0250

Jack McRay General Counsel

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Daniel O'Brien, Executive Director Construction Industry Licensing Board Post Office Box 2

Jacksonville, Florida 32201

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68. FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 91-005215RP

Orders for Case No: 91-005215RP