STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM DAVIDSON SCHAEFER,

Petitioner,

vs.

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, ELECTRICAL CONTRACTORS LICENSING BOARD,

Respondent.

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) Case No. 01-1309

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RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on October 18, 2001, in Largo, Florida, before

Carolyn S. Holifield, Administrative Law Judge, the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Robert C. Decker, Esquire

Decker Beeler, P.A.

25 Second Street, North, Suite 320-D St. Petersburg, Florida 33701

For Respondent: Barbara R. Edwards

Assistant General Counsel Department of Legal Affairs The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUES

Whether Petitioner is entitled to licensure as a certified electrical contractor pursuant to the provisions of Section 489.514, Florida Statutes.

PRELIMINARY STATEMENT

On or about May 8, 2000, Petitioner, William Davidson Schaefer, a locally-licensed electrical contractor doing business in Pinellas County, Florida, applied to Respondent, Department of Business and Professional Regulation, the Electrical Contractors Licensing Board, for licensure as a certified electrical contractor. By letter dated May 26, 2000, the Board denied Schaefer’s application. According to the letter, the denial was because Schaefer provided no information to the Board that would allow it to determine if the examination he had passed was substantially similar to the state examination.

Petitioner challenged the denial and timely requested a formal hearing. On April 4, 2001, the matter was referred to the Division of Administrative Hearings for assignment of an administrative law judge to conduct the hearing and prepare a recommended order. By notice issued on April 23, 2001, the final hearing was set for June 4, 2001. Prior to the hearing date, the parties requested and were granted a continuance of the final hearing. In a notice issued June 19, 2001, the final

hearing was set for October 18, 2001. The hearing was conducted as noticed.

At the final hearing, Petitioner testified on his own behalf, but called no other witnesses. Petitioner had three exhibits received into evidence. Petitioner's Exhibits 4 and 5 were proffered. Respondent offered and had two exhibits received into evidence but called no witnesses. At the conclusion of the hearing, the time for filing proposed recommended orders was set for ten days from the date the Transcript was filed.

A Transcript of the proceeding was filed on November 15, 2001. After the Transcript was filed and upon request of Petitioner, the time for Petitioner's filing his proposed recommended order was extended to December 26, 2001. In response to Petitioner's request for extension of time, Respondent requested and was granted permission to file an addendum to its proposed recommended order, which was filed on November 26, 2001, the date established at the hearing for such filing. Petitioner timely filed its proposed recommended order under the extended timeframe. Respondent timely filed its proposed recommended order and addendum to its proposed recommended order.

FINDINGS OF FACT

1. At all times material hereto, Petitioner, William Davidson Schaefer (Petitioner), was a licensed electrical contractor, having been issued License No. ER-0008163. This license, issued to Petitioner after he fulfilled the competency requirements of the Pinellas County Construction Licensing Board, allows him to practice electrical contracting in Pinellas County, Florida.

2. To meet the competency requirements of the Pinellas County Construction Licensing Board necessary to obtain an electrical contracting license, Petitioner had to successfully complete a written examination. In 1981, when Petitioner received his license, the test required by the Pinellas County Construction Licensing Board was administered by Construction Exams, Inc., the sole test provider for Pinellas County.

3. Petitioner took the Electrical Contractor's Examination administered by Construction Exams, Inc. on June 26, 1981, and earned a passing score of 86.5%.

4. Petitioner has practiced electrical contracting in Pinellas County since 1981 and has been sole owner of Lester Electric, Inc., an electrical contracting company, since 1983.

5. Petitioner's license is active and in good standing.

   
   

   Moreover, during the time that Petitioner has practiced electrical contracting, he has not been the subject of any

   complaints filed with, or discipline imposed by, the Pinellas County Construction Licensing Board.

6. On or about May 8, 2000, Petitioner applied to the Electrical Contractors' Board (Board) for certification as an electrical contractor pursuant to the "grandfathering" provisions of Section 489.514, Florida Statutes.

7. On or about May 26, 2000, the Board denied Petitioner's application for certification as an electrical contractor because he did not provide information upon which the Board could determine that the examination administered by Construction Exams, Inc. is substantially similar to the state examination.

8. The exam administered by Construction Exams, Inc. contained a technical section and a general business section. However, Petitioner does not recall if the examination included a section or questions on safety.

9. On the Examination Verification Form submitted to the Board as part of Petitioner's application, the Pinellas County Construction Licensing Board verified that the examination taken by Petitioner in 1981 included a technical section and a general business section. However, in response to a question on the form asking if the examination had included "fire alarm questions," the Pinellas County Construction Licensing Board marked the response, "Not sure."

10. The company, Construction Exams, Inc., that administered the examination that Petitioner took in 1981 is no longer in business. Petitioner sought to obtain a copy of the examination from the Pinellas County Construction Licensing Board, but learned that the local board did not have a copy of the examination. Except for the time he was taking the examination, Petitioner never had nor has he been able to obtain a copy of the examination from any source.

11. Although Petitioner does not recall if the examination that he took in 1981 included questions on safety and/or fire alarms, he was able to obtain information about some of the areas covered on the examination. Based on the document Petitioner was able to obtain, it appears that the examination he took included questions relative to the mechanics' lien law, workers' compensation law, first aid, OSHA regulations, federal tax law and the national electrical code.

12. The state's Certified Electrical Contractor Exam includes a technical section, a general business section, and a safety section. The examination consists of 150 multiple choice questions, is an open-book test, and includes both a morning session and an afternoon session.

13. Given that Petitioner took the examination more than

    
    

    20 years ago, it is understandable that he can not recall all the questions and/or sections that were covered on the

    examination, and that he was unable to obtain a copy of the examination from any source. However, without a copy of the examination or other documents which sufficiently detail the contents of the examination Petitioner took in 1981, it is impossible to determine if that examination is substantially similar to the state examination.

14. Petitioner failed to provide the Board with any information upon which it could make a determination that the examination he took is substantially similar to the state examination required for certification as an electrical

    contractor.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding pursuant to Section 120.569 and 120.57, Florida Statutes.

16. Section 489.514, Florida Statutes, authorizes the Electrical Contractors' Licensing Board to issue certificates to an applying registered electrical contractor who submits an application, the appropriate fee, and proof of compliance with the provisions of that section.

17. Registration and certification are distinct forms of licensure under Part II of Chapter 489, Florida Statutes. A registered electrical contractor is a contractor who has

    registered with the Department of Business and Professional Regulation and has fulfilled the competency requirements in the jurisdiction for which the registration is issued. With this registration, an electrical contractor may contract only in the jurisdiction in which his registration is issued. See Subsection 489.505(16), Florida Statutes. On the other hand, a certified electrical contractor is one who holds a certificate of competency and, by virtue of the issuance of such certificate, is authorized to engage in contracting throughout the state. See Subsections 489.505(4) and (8), Florida Statutes.

18. Petitioner is a registered electrical contractor who seeks to qualify for a certificate as an electrical contractor under the "grandfathering" provisions of Section 489.514, Florida Statutes.

19. As the applicant for licensure, or the party asserting the affirmative of the issue, Petitioner has the burden of proof. See Department of Banking and Finance, Division of

    Securities and Investor Protection v. Osborne Stern and Co. 670 So. 2d 932, 934 (Fla. 1st DCA 1996) and Florida Department of Transportation v. J.W.C. Co., 396 So. 2d 778 (Fla. 1st DCA 1981).

20. The "grandfathering" provision under which Petitioner seeks certification is Section 489.514, Florida Statutes, which

    provides:

    
    

    489.514 Certification for registered contractors; grandfathering provisions.–

    1. The board shall, upon receipt of a completed application, appropriate fee, and proof of compliance with the provisions of this section, issue:

       1. To an applying registered electrical contractor, a certificate as an electrical contractor, as defined in s. 489.505(12); or

       2. To an applying registered alarm system contractor, a certificate in the matching alarm system contractor category, as defined in s. 489.505(2)(a) or (b); or

       3. To an applying registered electrical speciality contractor, a certificate in the matching electrical speciality contractor category, as defined in s. 489.505(19).

    2. Any contractor registered under this part who makes application under this section to the board shall meet each of the following requirements for certification:

       1. Currently holds a valid registered local license in the category of electrical contractor, alarm system contractor, or electrical speciality contractor.

       2. Has, for that category, passed a written, proctored examination that the board finds to be substantially similar to the examination required to be licensed as a certified contractor under this part. For purposes of this subsection, a written, proctored examination such as that produced by the National Assessment Institute, Block and Associates, NAI/Block, Experior Assessments, Professional Testing, Inc., or Assessment Systems, Inc., shall be considered to be substantially similar to the examination required to be licensed as a certified contractor. The board may not impose or make any requirements regarding

          the nature or content of these cited examinations.

       3. Has at least 5 years of experience as a contractor in that contracting category, or as an inspector or building administrator with oversight over that category, at the time of application. For contractors, only time periods in which the contractor license is active and the contractor is not on probation shall count toward the 5 years required under this subsection.

       4. Has not had his or her contractor's license revoked at any time, had his or her contractor's license suspended in the last 5 years, or been assessed a fine in excess of

          $500 in the last 5 years.

       5. Is in compliance with the insurance and financial responsibility requirements in s. 489.515(1)(b).

    3. An applicant must make application by November 1, 2004, to be licensed pursuant to this section.

    
    

    (Emphasis supplied.)

    
    

21. Subsection 489.514(2)(b), Florida Statutes, makes it clear that to become certified under the "grandfathering" provisions, an applicant must have passed a written, proctored examination that the Board finds to be substantially similar to the examination required to be licensed as a certified contractor under Part II of Chapter 489, Florida Statutes.

22. Subsection 489.507(3), Florida Statutes, grants to the Board rulemaking authority to implement the provisions of Part II of Chapter 489, Florida Statutes. With regard to the examinations required as a condition of licensure, Subsection 455.217(1)(b), Florida Statutes, requires that the Board,

    "by rule specify the general areas of competency to be covered by the examination, the relative weight to be assigned in grading each area, the score necessary to achieve a passing grade "

23. Pursuant to its rulemaking authority, the Board has promulgated Rule 61G6-6.001, Florida Administrative Code (Rule), which provides in relevant part:

    61G6-6.001 Certification Examination Requirements.

    1. The areas of competency to be covered by the certification examination shall be as follows: Technical knowledge; General Business knowledge; and safety knowledge.

    2. The examination shall be open book. The applicant is responsible for bringing and may use during the examination the applicable code books, reference materials and calculators as approved by the Board. Security measures as set forth by the Department shall be followed during the examination.

    3. The content areas of each examination and the approximate weight assigned to each section are as follows:

       1. Unlimited Electrical Contractor. Technical section 64%; General Business Section 33%; and Safety Section 3%.

       2. Residential Electrical Contractor. Technical Section 59%; General Business Section 33%; and Safety Section 8%.

          
          

          * * *

          
          

    4. An applicant shall be required to achieve a score of a general average of not less than seventy-five percent (75%) in order to pass the examination and be certified for licensure. When a cut off score contains a fraction of a percentage point of one-half (.5) or higher that score

       will be raised to the next highest whole number. When a cut off score contains a fraction of a percentage point of less than one-half (.5) that score will be lowered to the next lowest whole number. There shall not be a practical or clinical examination.

       
       

       (Emphasis supplied.)

       
       

24. Rule 61G6-6.001, Florida Administrative Code, makes clear that the areas of competency to be covered by the certification examination are technical knowledge, general business knowledge, and safety knowledge. The rule also specifies the content areas of each exam and the weight assigned to each area.

25. It is undisputed that at the time Petitioner applied for certification, he did not provide any documents or evidence to the Board upon which a determination could be made that the examination he took in 1981 is substantially similar to the examination required to be licensed as an electrical contractor. Furthermore, on the date of hearing, no such documents or evidence was presented by Petitioner.

RECOMMENDATION

Base on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Board enter a final order denying Petitioner's application for licensure as a certified electrical contractor.

DONE AND ENTERED this 31st day of January, 2002, in Tallahassee, Leon County, Florida.

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2002.

COPIES FURNISHED:

Robert C. Decker, Esquire Decker Beeler, P.A.

25 Second Street, North, Suite 320 St. Petersburg, Florida 33701

Barbara R. Edwards Assistant General Counsel Department of Legal Affairs The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Hardy L. Roberts, III, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2202

Anthony B. Spivey, Executive Director Electrical Contractors Licensing Board Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

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 should be filed with the agency that will issue the final order in this case.

Docket for Case No: 01-001309

Orders for Case No: 01-001309