STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DANNY D. RHODA, )

)

Petitioner, )

)

vs. ) CASE NO. 96-3580

)

DEPARTMENT OF INSURANCE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, Mary Clark, held a formal hearing in the above-styled case on November 7, 1996.

The hearing was conducted by videoconference, with Petitioner participating from Orlando, Florida, and the Administrative Law Judge, counsel for Respondent and Respondent’s witness participating from Tallahassee, Florida.

APPEARANCES

For Petitioner: Danny D. Rhoda

Post Office Box 232

Fruitland Park, Florida 34731 (appeared pro se)

For Respondent: Lisa S. Santucci, Esquire

Division of Legal Services 612 Larson Building

Tallahassee, Florida 32399-0333

STATEMENT OF THE ISSUES

Petitioner, Danny Rhoda, has applied for eligibility to take the competency examination for licensing as a fire protection system Contractor IV. The issue in this proceeding is whether Mr. Rhoda’s application should be approved.

PRELIMINARY STATEMENT

Mr. Rhoda’s application to take the competency examination was denied in a letter dated June 21, 1996. After he requested a formal hearing, the case was referred to the Division of Administrative Hearings, where it proceeded as described above.

At the hearing, Mr. Rhoda testified in his own behalf and presented a packet of materials which he had provided to the Department of Insurance (agency) in response to interrogatories. The packet was received in evidence as Petitioner’s composite exhibit no. 1.

The agency presented the testimony of Terry Barrow, safety program manager for the agency’s Bureau of Fire Protection. The agency also presented its exhibit no. 1, the application file of Danny Rhoda, which exhibit was received in evidence.

At the close of the proceeding the case was placed in abeyance to permit the agency to review the packet which Mr. Rhoda had provided in response to pre-hearing discovery, to determine whether, as he argued, those materials evidenced his eligibility.

As required, on November 21, 1996 the agency filed its notice of case status stating that after review, the agency still contends that Mr. Rhoda does not meet the requisite experience requirements. The Administrative Law Judge then issued an order creating a deadline for submittal of proposed recommended orders or written closing argument.

The transcript of the hearing was not filed, but both parties submitted post-hearing documents. These have been considered in the preparation of this recommendation. To clarify the record, these documents have been considered as evidence in this proceeding: Petitioner’s composite exhibit no. 1 (subject to Respondent’s objection, now sustained, as to the relevancy of the letter from Senator Karen Johnson and the newspaper clippings); Petitioner’s supplementary exhibit (packet provided to agency counsel, Lisa Santucci, by Mr. Rhoda on November 8, 1996; Respondent’s exhibit no. 1 (the license application file) and Respondent’s supplemental exhibit (Terry Barrow’s November 18, 1996, memo regarding review of Mr. Rhoda’s exhibits).

Also considered, of course, was the sworn testimony of Mr.

Rhoda and Ms. Barrow at the formal hearing.

FINDING OF FACT

1. Danny D. Rhoda (Rhoda) is the applicant for a certificate of competency as a fire protection system Contractor IV in the State of Florida.

2. Respondent (agency) includes the Office of the State Fire Marshall and is responsible for promulgating rules and certifying the competency of individuals who are engaged in the business of designing, installing and repairing fire protection systems.

3. Rhoda has worked with fire protection systems in the State of Indiana since 1972. His experience includes designing (drawing the plans) and installing both commercial and residential systems. He worked for his own companies, off and on, and also worked for approximately two years for McDaniel Fire Systems, a company which operates both in Indiana and in Florida. After hip surgery which restricts his physical movement Rhoda now plans to work in Florida concentrating on residential sprinkler systems.

4. Charles Conley is vice-president and chief engineer of McDaniel Fire Systems in Valparaiso, Indiana. He provided a letter of reference in support of Rhoda’s Florida certification. Mr. Conley holds a National Institute for Certification in Engineering Technologies (NICET) level III certification as an “engineer technician”. Mr. Conley’s letter corroborates Rhoda’s testimony that Rhoda has been under Mr. Conley’s “consultation” for the past three years. The details of this relationship are missing, and it is not established that the “consultation” was actually employment, as required, or that Mr. Conley met certification requirements.

5. With the exception of Mr. Conley’s NICET certification as an engineering technician, there is no evidence in the record of any state’s certification of either Rhoda or Mr. Conley. Nor is there evidence of Rhoda’s education, although he has earnestly been trying to find and take some relevant university or community college courses in Florida.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to section 120.57(1), Florida Statutes.

7. As applicant, Petitioner Rhoda must prove entitlement to the certificate he seeks and must show that he meets all of the relevant criteria. Florida Dept. of Transportation v. JWC Co., 396 So.2d 718 (Fla. 1st DCA 1981).

8. Sections 633.539 and 633.541, Florida Statutes require that individuals or organizations in Florida acting in the capacity of a fire protection contractor must be certified under section 633.521, Florida Statutes.

9. Section 633.521, Florida Statutes provides, in pertinent part:

   633.521 Certification application and issuance; examination and investigation of applicant.

   (1) To obtain a certificate, an applicant shall submit to the State Fire Marshal an application in writing, on a form provided by the State Fire Marshal containing the information prescribed, which shall be accompanied by the fee fixed herein, containing a statement that the applicant

   desires the issuance of a certificate and stating the class of certificate requested.

   . . .

   (3)...as a prerequisite to taking the examination for certification as a Contractor IV, the applicant shall be at least 18 years old, be

   of good moral character, and have a least

   2 years’ proven experience in the employment of a fire protection system Contractor I,

   Contractor II, Contractor III, or Contractor IV or combination of equivalent education and experience in the employment of a fire protection system contractor.

   . . .

10. Section 633.021(5), Florida Statutes defines the various levels of fire protection system contractors, including this definition of “Contractor IV”:

    
    

    (d) “Contractor IV” means a contractor whose business is limited to the execution

    of contracts requiring the ability to lay out, fabricate, install, inspect, alter, repair, and service automatic fire sprinkler systems for detached one-family dwellings, detached two-family dwellings, and mobile homes, excluding single-family homes in cluster units, such as apartments, condominiums, and assisted living facilities or any building that is connected to other dwellings.

11. The rules adopted in Chapter 4A-46, Florida Administrative Code apply to individuals seeking certification pursuant to section 633.521, Florida Statutes. As observed by Petitioner Rhoda, the terms, “challenging the examination”, are confusing, but from the context it is apparent that rule 4A- 46.010(3), Florida Administrative Code addresses requirements for sitting for, or taking, the various levels of contracting examinations. Rule 4A-46.010(3)(b), Florida Administrative Code addresses these requirements for the Contractor IV examination:

    4A-46.010 Submission of the Application (3)(b) As a prerequisite to challenging the examination as a Contractor IV, the applicant shall provide evidence of two (2) years proven experience in the employment of a Contractor I, II, or IV, or a combination of equivalent education and experience, which combination need not include experience in the employment of a contractor. For purposes of combining education and experience, education in the areas described in paragraph (a)3., above, including at least 3 credit hours from a 4-year college or university or

    junior or community college in courses which teach the material in the National Fire Protection Association standards on which the applicant will be tested; or other equivalent coursework; and experience in the areas described in paragraph (a)1., above, shall be provided. In addition, the division will accept a current NICET Level III or IV Certification as a Fire Protection Engineering Technician in the subfield of Automatic Sprinkler System Layout, issued by the National Institute for Certification in Engineering Technologies in Alexandria, Virginia.

12. Petitioner Rhoda is understandably frustrated that in spite of his attempts to evidence his experience in Indiana, and in spite of the letter from Charles Conley, he is still unable to take the Florida competency examination. He does not appear to rely on educational background as he produced no documentation of any degrees that are addressed in rule 4A- 46.010(3), Florida Administrative Code. Nor did he present evidence of his own, current NICET Level III or IV Certification as a Fire Protection Engineering Technician in the subfield of Automatic Sprinkler System Layout.

13. The experience requirements are explained in rule 4A- 46.010(3)(a)1., Florida Administrative Code, in pertinent part:

    1. “Experience in the employment of a contractor”, as required by Section 633.521(3), Florida Statutes, must be gained from full-time employment by a contractor, such employment relating to technical areas. For purposes of this rule chapter, “technical areas” means those activities engaged in by a contractor and participated in by the applicant which provide experience in laying out, fabricating, installing, inspecting,

       altering, repairing, or servicing fire protection systems.

       . . .

       The applicant’s experience must be verified by the contractor employing the applicant. The required verification shall be in the form of a letter from the employer, on company stationery, describing the applicant’s duties, the kinds of jobs he worked on; his dates of employment; and any other information reasonably calculated to provide the division with an informed understanding of the applicant’s work experience. An applicant offering self- employment experience shall provide verification in the form of letters from customers, and others familiar with his work. It is the applicant’s responsibility to furnish the required verification. The experiences will be evaluated to determine an applicant’s qualifications for the class of certificate requested;...

       (emphasis added)

       
       

14. Rhoda’s application with supporting evidence is deficient in demonstrating the qualifying experience specified in the statute and rules. His problem is similar to that of the applicant, Gary Waldron, in Matter of Waldron, 540 So.2d 247 (Fla. 4th DCA 1989). In that case the court approved the agency’s interpretation of the statute and rules to require not just experience, but specific experience in the employment of a certified or licensed contractor. As the court observed, the rules provide for several alternatives for an individual to qualify: experience, education, a combination of experience and education, or certification from a national accrediting agency. If Petitioner Rhoda meets any of those alternative requirements, he has unfortunately failed to prove it.

RECOMMENDATION

Based on the foregoing, it is hereby,

RECOMMENDED that the Department of Insurance enter its Final Order denying Danny D. Rhoda’s application for eligibility to take the Contractor IV licensing examination.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 7th day of January, 1997.

MARY CLARK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 1997.

COPIES FURNISHED:

Danny D. Rhoda

Post Office Box 232

Fruitland Park, Florida 34731

Lisa S. Santucci, Esquire Division of Legal Services 612 Larson Building

Tallahassee, Florida 32399-0333

Daniel Y. Sumner, Esquire General Counsel

Department of Insurance & Treasurer The Capitol, LL-26

Tallahassee, Florida 32399-0300

Bill Nelson

State Treasurer and Insurance Commissioner

The Capitol, Plaza Level Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order must be filed with the agency that will issue the final order in this case.

Docket for Case No: 96-003580

Orders for Case No: 96-003580