Upon due notice, a disputed-fact hearing was held on September 14, 2009, in Tallahassee, Florida, before Ella Jane P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: J. Steven Carter, Esquire
Henry, Buchanan, Hudson, Suber & Carter, P.A.
For Respondent: Daniel R. Biggins, Esquire
Whether Petitioner is entitled to licensure as a Certified Building Contractor or Residential Contractor.
Petitioner’s application for licensure as a certified building contractor was addressed by a Notice of Intent to Deny dated March 16, 2009.
Petitioner timely requested a disputed-fact hearing, and on or about May 29, 2009, the cause was referred to the Division of Administrative Hearings. The Division’s file reflects all pleadings, notices, and orders intervening before the disputed- fact hearing.
At hearing, Petitioner presented the oral testimony of Chad Banks and testified on his own behalf. He had Exhibits P- 1, 2, 2A, 3, 4, and 5, admitted in evidence. Respondent presented the oral testimony of Jacqueline Watts and had no exhibits admitted in evidence.
A Transcript was filed on September 29, 2009.
The parties timely filed their respective Proposed Recommended Orders on October 19, 2009, each of which has been considered.
Petitioner is a 44-year-old male. He was born and raised in Tallahassee, Florida. He is a high school graduate.
Petitioner passed the examination for licensure as a certified building contractor. This is a comprehensive examination that is designed to test knowledge in all aspects of
the construction industry. Passing it is a mandatory prerequisite before an application can be considered by the Florida Construction Industry Licensing Board (FCILB). However, passing the examination does not eliminate or modify the statutory or rule experience requirements.
Petitioner submitted his application for a certified building contractor license on or about March 24, 2008.
By letter of May 2, 2008, the Department of Business and Professional Regulation requested additional information.
Petitioner then provided a revised affidavit from Chad Banks, a certified building contractor, and a letter from
the Maintenance Construction Chief of the City of Tallahassee’s Gas Utility Department, each containing more detailed information about Petitioner’s experience. These items were received by Respondent on May 23, 2008.
It is not clear whether Petitioner requested and was granted a continuance of his appearance with regard to the instant license application at an earlier FCILB meeting, but on January 15, 2009, the full Board considered Petitioner’s application at a duly-noticed public meeting in Altamonte Springs, Florida. At that time, Petitioner was present.
During his appearance before the full Board on January 15, 2009, Petitioner was very nervous, but he believes
that one of the Board members offered him, or at least asked him
if he would accept, a residential contractor’s license in place of a certified building contractor’s license, and that he answered that he would accept such a license, only to have that “offer and acceptance” voted down by the full Board. However, Petitioner does not rule out the possibility that the vote taken at the meeting was actually with regard to denying the certified building contractor license for which he had applied.
There is no evidence that Petitioner has ever submitted an application for a residential contractor’s license.
By a Notice of Intent to Deny, dated March 16, 2009, and mailed March 24, 2009, the FCILB formally denied Petitioner’s application for a certified building contractor License stating:
The applicant failed to demonstrate the required experience, pursuant to Section 489.111, Florida Statutes and Rule 61G4- 15.001, Florida Administrative Code.
Petitioner seeks licensure as one who has four years of active experience and who has learned the trade by serving an apprenticeship as a skilled worker or as a foreman, at least one year of which experience is as a foreman.
Petitioner has never worked as a full-time employee of a commercial or residential contractor.
Petitioner got early experience in construction working around eight rental properties owned by his father. He
performed light carpentry, deck construction, general handyman repairs, and some plumbing and roofing when he was approximately
16 to 21 years of age.
However, Petitioner essentially relies on a work history that includes working as a plumber for Jim Bennett Plumbing from 1987 to 1993; as a foreman for the City of Tallahassee Gas Department from 1995 to 2005; as a “contractor trainee” for Chad Banks from 1999 to 2002; as having volunteered as superintendent for Gulf Coast Painting from 2003 to 2007; and as a maintenance man for the City of Tallahassee Parks Department from 2006 to 2007.
Petitioner’s dates of employment overlap, because his volunteer experience was acquired mostly on weekends, holidays, in hours after he had already completed a full work day for the City of Tallahassee, or on “time off” from his regular employments with the City. Petitioner is a hard worker and wanted to learn the construction trade, but his volunteer construction jobs were intermittent, and he provided no clear assessment of the number of hours per week or month that he put in for any of them.
From 1987 to 1993, Petitioner worked for Jim Bennett Plumbing. He started as a plumber’s helper and progressed to greater responsibility. In that position, he acquired a wide range of experience in plumbing for some residential, but mostly
commercial, buildings. During this period, he also did some light cosmetic carpentry and tile work to restore building parts damaged by the installation of plumbing apparatus.
Much of Petitioner’s construction experience relates to his association with Chad Banks, who testified that at all times material, Petitioner had “hands on” experience, working for him and that Petitioner was a competent worker.
Petitioner has never been a “W-2 employee” of Mr.
Banks, but there is no specific statutory or rule requirement that the experience necessary to qualify for the certified building contractor or the residential contractor license must be as a “W-2 employee.” Cf. Conclusions of Law.
Mr. Banks was not licensed as a certified building contractor until 1999.
Petitioner did some work for Mr. Banks when Mr. Banks was working as a sub-contractor on commercial projects (specifically one or more Super-Lube buildings) prior to
Mr. Banks obtaining his certified building contractor’s license in 1999. Most of this employment involved pouring concrete slabs. Petitioner claims experience in “elevated slabs,” limited to the construction of a single Super-Lube building, which Petitioner described as laying a slab below ground level for mechanics to stand on and an at-ground level slab for cars to drive onto the lift for an oil change. He described no truly
“elevated” slabs or floors above ground level on this project, and Petitioner’s and Mr. Banks’ testimony was vague as to Petitioner’s responsibilities on this project and as to the project’s duration. The general contractor on this project for whom Mr. Banks “subbed” did not testify.
From this, and other employments, Petitioner has experience pouring foundation slabs, but he has never worked on a foundation slab in excess of 20,000 square feet.
Petitioner also assisted in Mr. Banks’ construction of some rental sheds, but it is unclear if this was before or after Mr. Banks was licensed.
Petitioner worked for Mr. Banks d/b/a C. B. Construction, Inc., in a volunteer capacity on exclusively residential construction from 1999 to 2002, and again from February 2004 to March 2008. During these periods, Petitioner and Mr. Banks considered Petitioner a “contractor trainee,” but Petitioner’s work for Mr. Banks was neither exclusive nor continuous; both men described it as “volunteer” work; and some of it seems to have amounted to Petitioner's looking over work done personally by Mr. Banks and having Mr. Banks explain to him, via a plan sheet, what Mr. Banks had already done personally. There is no evidence that during this time frame Petitioner worked for Mr. Banks as a foreman.
Petitioner has the ability to “read” many types of construction “plans.”
Petitioner has experience with slab footers, but he has not constructed red iron structural steel qualified for framing a building.
Petitioner has experience in decorative masonry walls, but he has not constructed structural masonry walls of a type that would support framing members of a building or other vertical construction.
Petitioner also worked for the City of Tallahassee as a “W-2” employee, mostly as a foreman overseeing a crew of four workers, from 1995 to 2005. In that capacity, he worked on a church, but the church itself had been constructed several years previously, and Petitioner’s crew’s contribution was tying-in several gas lines during a roadway development project and keeping all the utilities up and running during the project, while a private contractor worked on the church.
With regard to the foregoing project and many others for the City Utilities Department, Petitioner directed a crew that built sidewalks and gutters or that tied these features into existing roadways and driveways. In that capacity, he often coordinated activities with residential contractors. Over his ten years’ employment with the City Utilities, Petitioner also directed a crew that exclusively created underground vaults
for the housing and shelter of utility apparatus. However, none of his endeavors for the City Utilities involved vertical structural construction for floors above ground.
Petitioner has also built new gas stations for the City’s natural gas vehicles, and has erected pre-fab utility buildings, including much slab work, but the nature and duration of these endeavors is not sufficiently clear to categorize them as qualifying him for the certified building contractor license.
Most of Petitioner’s experience with the City, as substantiated by the letter of the City Utilities Maintenance Construction Chief, Mr. Lavine, has been in the construction of driveways, roads, gutters, storm drains, sidewalks, culverts, underground utility structures, plumbing and gas lines. While it is accepted that Petitioner has worked on such projects, this type of work more properly falls in the categories of “plumbing contractor” or “underground utility contractor” and Mr. Lavine was not demonstrated to have any certification/licensure in a category appropriate to Petitioner’s application. (See Conclusions of Law.)
Sometime after 2005, for approximately a year, Petitioner was employed by the City of Tallahassee Parks and Recreation Department and in that capacity participated in at least one construction of a dugout and a concession stand at one of its playgrounds. He also did repairs on several dugouts and
concession stands, but this latter work would not be classified as “structural” construction.
Petitioner’s experience in precast concrete structures is limited to his work with gas utility structures, but does not include work on precast tilt walls, which are the type of walls that are constructed off-site, delivered to the job site, placed on the slab foundation, and raised in place as part of an on- going commercial building project.
Petitioner has no experience in column erection. “Columns” in this context within the construction trade refers to supports for upper level structural members, which would entail vertical construction.
Petitioner’s experience in concrete formwork does not include experience in the structurally reinforced concrete formwork that would be used in vertical buildings, such as all floors above ground level.
FCILB’s Chairman testified that the Board interprets the type of experience necessary to comply with the statutes and rules, more particularly Florida Administrative Code Rule 61G4- 15.001(2), to be “structural experience.”
There is no affirmative evidence that Petitioner has ever notified the Clerk of the Agency that he was relying on a right to a default license.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause, pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2009).
In addition to asserting that he is substantively entitled to a certified building contractor’s license, Petitioner also contends that he is entitled to a license by default, because his application was not timely granted or denied after all information requested had been received by the Agency/Board on May 23, 2008, and because his application was not granted or denied within 15 days of the January 15, 2009, public hearing by the FCILB on his license application.
Petitioner further contends that he is entitled to a residential contractor’s license because of his interchange with one Board member at the hearing on January 15, 2009. (See Finding of Fact 7.)
Petitioner bears the duty to go forward and prove entitlement to the requested license by a preponderance of the evidence. Department of Banking and Finance v. Osborne Stern
and Company, 670 So. 2d 932 (Fla. 1996); Antel v. Department of Professional Regulation, Florida Real Estate Commission, 522 So. 2d 1056 (Fla. 5th DCA 1988).
Applicable to the issue of default is the following statute, quoted only in pertinent part:
120.60 Licensing.--
(1) Upon receipt of an application for a license, an agency shall examine the application and, within 30 days after such receipt, notify the applicant of any apparent errors or omissions and request any additional information the agency is permitted by law to require. An
application shall be considered complete upon receipt of all requested information and correction of any error or omission for which the applicant was timely notified or when the time for such notification has expired. Every application for a license shall be approved or denied within 90 days after receipt of a completed application unless a shorter period of time for agency action is provided by law. The 90-day time period shall be tolled by the initiation of a proceeding under ss. 120.569 and 120.57. Any application for a license that is not approved or denied within the 90-day or shorter time period, within 15 days after conclusion of a public hearing held on the application, or within 45 days after a recommended order is submitted to the agency and the parties, whichever action and timeframe is latest and applicable, is considered approved unless the recommended order recommends that the agency deny the license. . . . Any applicant for licensure seeking to claim licensure by default under this subsection shall notify the agency clerk of the licensing agency, in writing, of the intent to rely upon the default license provision of this subsection, and shall not take any action based upon the default license until after receipt of such notice by the agency clerk.
Section 120.60(1), Florida Statutes, establishes a timetable for agency action on a license application. If an agency has not taken action within the prescribed time periods, an application for a license or for an examination required for licensure is considered approved. Johnson v. Dept. of Business & Professional Regulation, 634 So .2d 666 (Fla. 2d DCA 1994). If the Agency has not taken action within the prescribed time periods, and the applicant notifies the Agency Clerk in writing that s/he claims a default license, then s/he is entitled to the default license.
Within 30 days after the receipt of an application for a license, the agency must examine the application, notify the applicant of any apparent errors or omissions, and request any additional information. In this case, the Agency did not request further information until the thirty-ninth day (March 24 to May 2, 2008). The burden of responding to the request for further information is upon the applicant, if he chooses to go that route, and the duty to notify the Agency Clerk in writing is upon the applicant if, at that point, he seeks a default license. In this case, there is no evidence that Petitioner notified the Agency Clerk concerning a claimed default license, but rather, there is evidence that Petitioner supplemented his application with additional material on May 23, 2008.
The Agency had 90 days from May 23, 2008, within which to grant or deny the license. However, to take advantage of the Agency’s delay at that point (August 23, 2008), Petitioner would have to have notified the Agency Clerk in writing that he was exercising his default rights. There is no evidence that he notified the Agency Clerk at that point.
If a public hearing is held on the application, and if, in this case, that public hearing occurred on January 15, 2009,1/ the notification of action on the application needed to be provided by the Board to Petitioner Applicant within 15 days after the conclusion of the public hearing, even if this is beyond the statutory 90-day period. Herein, the Board did not notify Petitioner by the fifteenth day (January 30, 2009). It did not notify him until March 24, 2009, which was 54 days past the public hearing date.
However, there is no evidence that Petitioner has ever provided written notification to the Clerk of the Agency that he was invoking the default provision of Section 120.60, Florida Statutes. Instead, he requested a disputed-fact hearing.
If a proceeding under Sections 120.569 and 120.57, Florida Statutes (such as the instant one) is initiated, the 90- day period is “tolled” and the application must then be approved or denied within 45 days after a recommended order (this
Recommended Order) is submitted to the agency and the parties, unless the Recommended Order denies the license.
Former Section 120.60, was amended in 2003, to remove language providing that an agency’s lapse of time in making its decision after completion of the application resulted in the license application being “deemed” approved. The term, “default license,” first appears in the statute at that time. The amendment effectively removed the requirement that an agency had to take action to "deem approved" an application that the agency had not timely acted upon in the first place. Thus, an applicant exercising his right to a “default license” today no longer has to await an already laggardly agency eventually getting around to “deeming” him to have a default license. Now, once the applicant properly notifies the Agency Clerk that he has a right to a default license, the applicant (now licensee) may proceed as if he were licensed, without waiting for the Agency to do anything more.
However, in the instant case, there is no evidence that Petitioner ever gave written notice to the Agency Clerk that he was relying on a default license, and his request for a disputed-fact hearing does not substitute therefor. Accordingly, Petitioner is not entitled to licensure by default at this stage of the proceedings.
As to the effect of FCILB’s public hearing on
January 15, 2009, it is not clear what the single member said to Petitioner. He may have been inquiring about whether Petitioner was entitled to one or more licenses, but a simple question posed by a single Board member is meaningless. Moreover, this question, however vague, does not, as Petitioner has suggested, indicate a bias of the Board against an applicant whose experience has been gained in the public sector. In fact, the rule specifically recognizes the value of public sector experience. See, infra.
Without an application for a residential construction license plus a favorable majority vote of the whole collegial body to approve that residential license application, Petitioner is not entitled to a residential license. Certainly, there is no entitlement to any license simply because a single Board member asked Petitioner about his interest in a residential application/license.
On the substantive issue, the standards that Petitioner must meet for licensure are contained in Section 489.111, Florida Statutes (2008), which provides, in pertinent part, as follows:
489.111 Licensure by examination.--
Any person who desires to be certified shall apply to the department in writing.
A person shall be eligible for licensure by examination if the person:
Is 18 years of age;
Is of good moral character; and
Meets eligibility requirements according to one of the following criteria:
* * *
2. Has a total of at least 4 years of active experience as a worker who has learned the trade by serving an apprenticeship as a skilled worker who is able to command the rate of a mechanic in the particular trade or as a foreman who is in charge of a group of workers and usually is responsible to a superintendent or a contractor or his or her equivalent, provided, however, that at least 1 year of active experience shall be as a foreman. (Emphasis supplied.)
Also applicable is Florida Administrative Code Rule 61G4-15.001(2), which provides, in pertinent part, as follows:
(1)(a) . . . Active experience in the category in which the applicant seeks to qualify shall be verified by affidavits prepared or signed by a state certified Florida contractor, or an architect or engineeer, in the applicant’s category, who is licensed in good standing or a licensed building official, who is active in the applicant’s category, employed by a political subdivision of any state, territory or possession of the United States who is responsible for inspections of construction improvements, listing chronologically the active experience in the trade, including the name and address of employers and dates of employment (which may be corroborated by investigation by the Board). Said affidavit shall be subscribed to in front of a notary.
(b) Applicants shall follow the guidelines set forth in this section when seeking to verify active experience in accordance with paragraph 61G4-15.001(1)(a), F.A.C.
If the applicant’s category is: The following licensees can verify the applicant’s experience:
1. General | General contractor |
2. Building | General and/or Building contractor |
3. Residential | General, Building and/or Residential contractor |
4. Plumbing | General, Building, Residential, Plumbing and/or Underground Utility and Excavation contractor |
15. Underground Utility and Excavation Contractor | General, Building, Residential, Underground utility and excavation, and/or Plumbing contractor |
(2)(a) In the case of applicants for certification in the general or building contractor categories, the phrases “active experience” and “proven experience” as used in Section 489.111(2)(c)1., 2., or 3., F.S.,
shall be defined to mean construction experience in four or more of the following areas:
Foundation/Slabs in excess of twenty thousand (20,000) square feet.
Masonry walls.
Steel erection.
Elevated slabs.
Precast concrete structures.
Column erection.
Formwork for structural reinforced concrete.[2/] (Emphasis supplied.)
The rule is clear on its face that without evidence from the appropriate type(s) of licensed contractor, covering at least four years, one of which years Petitioner worked as a foreman, Petitioner’s application must be denied. Petitioner’s employment with the City Utilities was not the type of
employment that would qualify him for a certified building contractor license, and while his City supervisor’s qualifications might support Petitioner in other categories of licensure, they did not fit the category for which he was applying.
Likewise, Petitioner’s employment history with Mr.
Banks did not qualify.
An agency’s interpretation of its own rules is entitled to great weight. See Woodley v. Department of Health and Rehabilitative Services, 505 So. 2d 676 (Fla. 1st DCA 1987). However, here, the rule is clear with or without the evidence of the Chairman of the Board that structural, as opposed to decorative, proficiency in the correct categories is necessary to qualify.
Section 489.111(2)(c), Florida Statutes, provides that experience shall be in the category for which the person seeks to qualify, and that the experience shall be as a skilled worker who can command the rate of a mechanic on a particular trade, or as a foreman who is in charge of a group of workers and is responsible to a superintendent or a contractor or the equivalent, with at least one of the four years being the foreman. It is inherent in the statute that the experience shall be full-time, which would amount to 40 hours per week for
at least 50 weeks each year, of qualified employment experience.3/
Petitioner has not demonstrated the required experience in any of the seven categories.
RECOMMENDED that the Florida Construction Industry Licensing Board enter a Final Order denying Petitioner’s application for licensure as a Certified Building Contractor.
DONE AND ENTERED this 24th day of November, 2009, in Tallahassee, Leon County, Florida.
ELLA JANE P. DAVIS
Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 2009.
1/ Respondent asserts the Board held a “public meeting” and not a “public hearing,” and that the only “public hearing" is this one before the Division of Administrative Hearings.
2/ This rule was last amended effective 11-26-08. It remained the same at all times material to the application and through the disputed-fact hearing. However, the rule, as noticed in Vol. 34, No. 10, March 7, 2008, of the Florida Administrative Weekly, was withdrawn as of November 20, 2009, per publication of Florida Administrative Weekly, Vol. 35 No. 46.
3/ Respondent suggests that the 2,000 hours provided for “full- time equivalency” of proven experience of one year named in Florida Statutes Section 489.111(2)(c)1., with regard to those seeking licensure through a four years’ baccalaureate program and one year of experience applies here, as well.
Daniel R. Biggins, Esquire Department of Legal Affairs The Capitol, Plaza Level 01
J. Steven Carter, Esquire Henry, Buchanan, Hudson,
Suber & Carter, P.A. 2508 Barrington Circle
G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and
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.
