STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

A duly-noticed final hearing was held in this case by Administrative Law Judge T. Kent Wetherell, II, on May 1, 2009, in Yulee, Florida.

APPEARANCES

For Petitioner: Sprague Owings, pro se

Post Office Box 1270 Yulee, Florida 32041-1270

For Respondent: Timothy E. Dennis, Esquire

Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

The issue is whether Petitioner’s application for certification as a roofing inspector should be granted.

PRELIMINARY STATEMENT

The Building Code Administrators and Inspectors Board (Board) informed Petitioner in a Notice of Intent to Deny dated

November 10, 2008, that his application for certification as a roofing inspector was denied. Petitioner requested a hearing on that decision through a Petition for Evidentiary Hearing dated November 12, 2008. The Board referred this matter to the Division of Administrative Hearings (DOAH) on March 13, 2009,1/ to conduct the hearing requested by Petitioner.

The final hearing was scheduled for and held on May 1, 2009. At the hearing, Petitioner testified in his own behalf and presented the testimony of Robert Sasser, Robert McKinney, Gary Garver, and Robert McCormick. The Board also presented the testimony of Mr. McCormick. Petitioner’s Exhibits 1 through 7 and Respondent’s Exhibits 1 and 2 were received into evidence.

The Transcript of the final hearing was filed with DOAH on May 13, 2009. The parties were given 10 days from that date to file proposed recommended orders (PROs). The Board filed a PRO on May 26, 2009. Petitioner did not file a PRO. The Board’s PRO has been given due consideration.

FINDINGS OF FACT

1. Petitioner has worked in the construction industry since 1973. He was trained as an electrician, but he has “worked in about every trade” over the years, including roofing.

2. Petitioner is certified by the Board as a building code inspector (all trades), plans examiner (all trades), and building code administrator.

3. Petitioner is not, and never has been, a state or locally certified roofing contractor or a general contractor.

4. Petitioner has worked as a building code inspector and plans examiner for Nassau County since May 2003. He previously worked as a building code inspector for Seminole County and the City of Oviedo, and as a plans examiner for a private inspection and engineering company.

5. Inspecting roofs is part of Petitioner’s job as a building code inspector for Nassau County, but it is not the only trade that he inspects. Unlike larger jurisdictions where inspectors specialize in particular trades, Petitioner and the other building code inspectors in Nassau County are “combination inspectors” responsible for inspecting all aspects of the building.

6. Petitioner typically conducts 80 to 100 inspections per week, but less than 10 percent of those inspections -- approximately six per week -- are roof inspections.

7. Petitioner credibly testified that even though roof inspections are a relatively small portion of his job, he looks at roof design and construction on a daily basis when he is on- site inspecting other aspects of the building and when he is reviewing building plans as a plans examiner.

8. The current and former building official in Nassau County credibly testified that Petitioner “regularly” inspects

   roofs and that they have had no problems or concerns with his roof inspections. Their testimony concerning the competency of Petitioner’s roof inspection work was corroborated by a building code inspector who works with Petitioner and who has been a certified roofing contractor since 1983.

9. In September 2008, Petitioner submitted an application to the Board for certification as a roofing inspector.

10. The Board considered Petitioner’s application at its regular meeting in October 2008.

11. The Board determined that Petitioner’s application should be denied because he does not have the “four (4) years of roofing experience” required by Florida Administrative Code Rule 61G19-6.016(3).

12. The Board construes this and other similar experience requirements in its rules to require full-time experience.

13. The Board’s interpretation of the rule is based, at least in part, upon its reasonable and logical expectation that a person who performs a job on a full-time basis gains more knowledge and expertise than a person who performs the job only occasionally.

14. Petitioner does not have four years of full-time roofing experience, and he does not inspect roofs on a full-time basis as a building code inspector.

15. Petitioner does not need to be certified as a roofing inspector to inspect roofs in the course of his work as a building code inspector.

16. Petitioner wants to be certified as a roofing inspector “to protect [himself] in the future from changes in the law” because he is concerned that at some point certification as a roofing inspector may be required in order to inspect roofs.

17. There is no basis in the record for Petitioner’s speculative concern. The Board chairman, Robert McCormick, credibly testified that he was unaware of anything under consideration that would require certification as a roofing inspector in order to inspect roofs.

    CONCLUSIONS OF LAW

    
    

18. DOAH has jurisdiction over the parties to and subject matter of this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes.2/

19. The Board is the state agency responsible for certifying building code inspectors. See § 468.606(2), Fla. Stat.

20. Certification by the Board is required in order to perform the duties of a building code inspector. See § 468.607, Fla. Stat. Those duties include “conduct[ing] inspections of building construction, erection, repair, addition, or alteration

    projects that require permitting indicating compliance with building, plumbing, mechanical, electrical, gas, fire prevention, energy, accessibility, and other construction codes as required by state law or municipal or county ordinance.”

    § 468.603(2), Fla. Stat.

    
    

21. The Board “shall issue a certificate to any individual whom the board determines to be qualified, within such class and level as provided in this part and with such limitations as the board may place upon it.” § 468.607, Fla. Stat.

22. Section 468.609(2), Florida Statutes, establishes the criteria for certification as a “building code inspector or plans examiner.” The statute provides in pertinent part:

    
    

    A person may take the examination for certification as a building code inspector or plans examiner pursuant to this part if the person:

    
    

    1. Is at least 18 years of age.

       
       

    2. Is of good moral character.

       
       

    3. Meets eligibility requirements according to one of the following criteria:

    
    

    1. Demonstrates 5 years' combined experience in the field of construction or a related field, building code inspection, or plans review corresponding to the certification category sought;

       
       

    2. Demonstrates a combination of postsecondary education in the field of construction or a related field and experience which totals 4 years, with at

       least 1 year of such total being experience in construction, building code inspection, or plans review;

       
       

    3. Demonstrates a combination of technical education in the field of construction or a related field and experience which totals 4 years, with at least 1 year of such total being experience in construction, building code inspection, or plans review;

       
       

    4. Currently holds a standard certificate as issued by the board and satisfactorily completes a building code inspector or plans examiner training program of not less than

       200 hours in the certification category sought. . . .; or

       
       

    5. Demonstrates a combination of the completion of an approved training program in the field of building code inspection or plan review and a minimum of 2 years' experience in the field of building code inspection, plan review, fire code inspections and fire plans review of new buildings as a firesafety inspector certified under s. 633.081(2), or construction. . . . .

    
    

23. According to the Board, these statutory criteria do not apply to the “voluntary certification categories” established by rule pursuant to the authority in Section 468.609(10), Florida Statutes. It is not necessary to determine in this case whether the Board is correct because, as stated below, the outcome of the case would not change even if the statutory criteria were applied in addition to, or in lieu of, the rule criteria.3/

24. “Roofing inspector” is one of the voluntary certification categories established by the Board. See Fla. Admin. Code R. 61G19-6.016(3).

25. The criteria that an applicant must meet for certification as a roofing inspector are set forth in Florida Administrative Code Rule 61G19-6.016(3), which provides:

    Roofing Inspector means a person who is qualified to inspect residential and commercial roofs. In order to obtain this voluntary certification the Board will require either: four (4) years of roofing experience with passage of the standardized roofing inspectors’ examination as approved by the board; state certification as a roofing contractor or a state certified general contractor who was certified prior to 1974.

    
    

26. Petitioner has the burden to prove by a preponderance of the evidence that he meets the requirements for certification as a roofing inspector. See Dept. of Banking & Finance v. Osborne Stern & Co., 670 So. 2d 932, 934 (Fla. 1996) (holding that an applicant for licensure has the burden to prove his entitlement to the license); § 120.57(1)(j), Fla. Stat.

27. Petitioner failed to meet his burden of proof.

    
    

28. Petitioner is not, and never has been, a state- certified roofing contractor or a general contractor. See Fla. Admin. Code R. 61G19-6.016(3). Nor does he have “four (4) years of roofing experience,” as that phrase is reasonably interpreted

    by the Board to mean four years of full-time roofing experience. Id.

29. Therefore, even though the evidence establishes that Petitioner regularly, and competently, performs roof inspections in the course of his work as a building code inspector, the evidence fails to establish that Petitioner has the experience required by the applicable Board rule for certification as a roofing inspector.

30. The outcome of this case would not change even if it was determined that the criteria in Section 468.609(2), Florida Statutes, were applicable. It is undisputed that Petitioner meets the criteria in paragraphs (a) and (b) of the statute (see

Transcript, at 84-85), but the evidence fails to establish that Petitioner meets the criteria in paragraph (c) because he does not have the requisite level of experience in the “certification category sought” -- i.e., roofing.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Board issue a final order denying Petitioner’s application for certification as a roofing inspector.

DONE AND ENTERED this 2nd day of June, 2009, in Tallahassee, Leon County, Florida.

S

T. KENT WETHERELL, II Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 2009.

ENDNOTES

1/ There is no explanation in the record for the four-month delay between the date of the petition and the referral of the case to DOAH.

2/ All statutory references are to the 2008 version of the Florida Statutes.

3/ The Board’s interpretation of the statutes and rules that it is charged with implementing is entitled to deference. See, e.g., Pershing Industries, Inc. v. Dept. of Banking & Finance, 591 So. 2d 991, 992 (Fla. 1st DCA 1991) (“[A]n agency's construction of its governing statutes and rules will be upheld unless clearly erroneous. If an agency's interpretation is one of several permissible interpretations, it must be upheld despite the existence of reasonable alternatives.” (citations omitted)). That said, the undersigned is skeptical of the Board’s position that the statutory criteria do not apply to the voluntary certification categories. Section 468.609(10), Florida Statutes, authorizes the Board to create “categories of certification in addition to those defined in s. 468.603(6) and (7),” but it does not authorize the Board to establish separate criteria for those categories. Moreover, in practice, it

appears that the Board applies at least the statutory “good moral character” requirement to the voluntary certification categories. See Respondent’s Exhibit 1, at page 0004, which reflects that one of the reasons that Petitioner’s case was sent to the Board for review was his “arrests/discipline.”

COPIES FURNISHED:

Timothy E. Dennis, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399

Sprague Owings

Post Office Box 1270 Yulee, Florida 32041-1270

G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business

and Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Ned Luczynski, General Counsel 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: 09-001335

Orders for Case No: 09-001335