The Issue Whether petitioner should take disciplinary action against respondent for the reason alleged in the administrative complaint?
Findings Of Fact Respondent acknowledges the accuracy of the allegations in the first seven paragraphs of the administrative complaint, including the allegation that he holds a certified residential contractor's license, No. CR C027268. He has been licensed in Florida continuously since October of 1983. Petitioner's Exhibit No. 1. On August 14, 1986, respondent Stratton, doing business as Stratton Construction Company, executed a written contract with Aaron Lee and Valerie Patrice Cobb to renovate their home at 5017 Pearl Street in Jacksonville, Florida. He had actually begun work nine days earlier. The contract contemplated installation of a pier under an unsupported sill end, replacement of 17 windows and two doors, hanging a screen door and a storm door, shortening and capping the chimney, adding a roof over the front stoop, reshingling the entire roof, painting the outside of the house, and putting hose bibbs in the front and the rear of the house. In addition, the contract called for extensive work inside the house, replacement of sheetrock, installation of insulation, congoleum, carpeting, paneling, cabinets, new kitchen and bedroom appliances, a new central heating system, and numerous other improvements and repairs. The contract price totalled $18,600, including $2,071 for a utility room. ("Remove back porch and drop flooring to allow enough height to construct 8 foot by 8 foot utility room ... inside walls unfinished ...") Petitioner's Exhibit No. 1. Exclusive of plumbing, electrical, heating, and the utility room, the value of the repairs and renovations exceeded $200.00. As "Stratton Const." respondent contracted with Williams Plumbing Co., Inc. (Williams) on September 8, 1986, to re-pipe, install a working machine drain and furnish a water closet. Respondent's Exhibit No. 3. Respondent or Williams on his behalf obtained a plumbing permit from the City of Jacksonville, No. 25997, at or about the time Williams began work, but Williams "left town" (T.43) before the project was inspected by the City. On October 2, 1986, respondent contracted with Wayne Conn Plumbing (Conn) to do additional plumbing work. In order to obtain a plumbing permit for the additional work, respondent cancelled the first permit. (T.34) The same day he signed the contract with Conn, respondent obtained a second plumbing permit, No. 28215. Respondent's Exhibit No. 1. Conn finished the plumbing work, and it passed inspection by the City. Earlier, on September 5, 1986, respondent or a subcontractor obtained a City permit authorizing electrical work at 5017 Pearl Street. On October 8, 1986, respondent or a subcontractor obtained a mechanical permit for the house's new heating system. In due course, the work authorized by these permits passed City inspections. Petitioner's Exhibit No. 7. Before he began work on the Cobb's house, Mr. Stratton had only built new homes in Florida. He was unaware of any requirement to obtain a permit to effect repairs to the interior of a house other than those he did in fact obtain. He was aware, however, of the need to secure a building permit for construction of the utility room, involving, as it did, alterations to the foundation. Nevertheless, he only applied for this permit on June 11, 1987, long after the work had been completed, and after he had become embroiled in a dispute with the Cobbs. Jacksonville's Building Code, Part 4, makes it unlawful to begin work to contract, enlarge, alter, repair, move, remove or demolish a building or structure, or a part thereof ... without having first filed an application with and obtained a permit therefor from the Building official, except that, for general maintenance or repairs, not involving replacement of components specifically requiring permits, which do not change the occupancy or affect the electrical, plumbing or mechanical systems, the value of which does not exceed two hundred dollars ... no permit shall be required ... Petitioner's Exhibit No. 4, p. 5. In beginning work without a permit to remove the back porch or to replace it with a utility room or to effect general repairs the value of which exceeded two hundred dollars, respondent violated applicable provisions of a local building code. The evidence suggested that the requirement that contractors obtain permits to effect general repairs with a value in excess of two hundred dollars is more honored in the breach than in the observance. In fact, respondent testified that somebody told him no permit is needed "if you don't change the size of the building," (T.46) i.e., alter the foundation. The Building Code also calls for mandatory inspections of foundations and framing as they are completed, but a building inspector testified that inspection of pre-formed concrete piers like those on which the utility room stands would have been foregone. Because the addition stood on (new) piers and because its interior walls remained unfinished, it was possible for the City to inspect both the foundation and the framing, even after the work was finished. John Carlton Sturdevant, a field inspector for Jacksonville's Building and Zoning Department, saw nothing wrong with the framing, nor was there evidence of any problem with the foundation.
Findings Of Fact The parties stipulated at conclusion of hearing to the matters set forth in the following findings of fact. Stipulated Facts The Respondent was the subject of a previous administrative complaint filed by the Petitioner. The previous administrative complaint issued by Petitioner was number 76024. The Respondent did not seek a formal administrative hearing to contest the charges of the previous administrative complaint which consisted of the same fact allegations and statutory violation as set forth in the charges in the instant complaint. The Respondent and the Petitioner reached an accommodation in regard to the charges set forth in the previous administrative complaint. Petitioner entered a final order in that previous case pursuant to stipulation and settlement which imposed sanctions upon the Respondent. Such final order was signed on November 19, 1987, by J. R. Crockett, Chairman of the Construction Industry Licensing Board and was filed with the Board Clerk on November 24, 1987. The administrative complaint in Division of Administrative Hearings case number 87-5604 and Petitioner's case number 82716, the instant case, is included in the settlement of Petitioner's case number 76024. As a result of the previous administrative adjudication of the same cause of action as set forth in the present proceeding, further factual findings in this case are not warranted.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that, in view of the parties's stipulation at hearing, a final order be entered 1) finding this administrative complaint, as set forth in Division of Administrative Hearings case number 87-5604 and Petitioner's case number 82716, should have been included in the previous disposition of Petitioner's case number 76024 and 2) dismissing further proceedings in this cause. DONE AND RECOMMENDED this 7th day of March, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of March, 1988. COPIES FURNISHED: Lee Sims, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Michael B. Holden, Esquire Litigation Building, Suite 204 633 South Andrews Avenue Ft. Lauderdale, Florida 33301 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely, Executive Director Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201
The Issue Whether Petitioner's challenge to the failing grades he received on the Business and Financial Management and General Trade Knowledge portions of the April 1996 plumbing contractor certification examination should be sustained.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following Findings of Fact are made: Petitioner sat for the certification examination for plumbing contractors administered in April of 1996 (Certification Examination). The Certification Examination consisted of two parts. One part contained questions relating to business and financial management. The other part contained questions testing the applicants' general knowledge of the plumbing trade. Prior to the Certification Examination, applicants were given a list of reference materials (Reference Materials) and advised that questions on the test would be taken from these sources, which included AIA Document A201, the Builder's Guide to Accounting, the Contractor's Manual, the National Standard Plumbing Code Illustrated, NFPA 99- Health Care Facilities, and NFPA 54- National Fuel Gas Code. The applicants were further advised that they would be permitted to bring these Reference Materials to the testing site and to use them in attempting to answer examination questions. Question 8--Business and Financial Management, Session One Question 8 of Session One of the Business and Financial Management portion of the Certification Examination was a multiple choice question that was clear and unambiguous and covered subject matter with which the applicants should have been familiar. It required the applicants to determine which one of the choices given did not represent, according to AIA Document A201, a basis upon which an architect could withhold certification of payment. Section 9.5 of AIA Document A201 addresses the subject of "decisions to withhold certification" and provides as follows: DECISIONS TO WITHHOLD CERTIFICATION The Architect may decide not to certify payment and may withhold a Certificate for Payment in whole or in part, to the extent reasonably necessary to protect the Owner, if in the Architect's opinion the representations to the Owner required by Subparagraph 9.4.2 cannot be made. If the Architect is unable to certify payment in the amount of the Application, the Architect will notify the Contractor and Owner as provided in Subparagraph 9.4.1. If the Contractor and Architect cannot agree on a revised amount, the Architect will promptly issue a Certificate for Payment for the amount for which the Architect is able to make such representations to the Owner. The Architect may also decide not to certify payment or, because of subsequently discovered evidence or subsequent observations, may nullify the whole or a part of a Certificate for Payment previously issued, to such extent as may be necessary in the Architect's opinion to protect the Owner from loss because of: defective Work not remedied; third party claims filed or reasonable evidence indicating probable filing of such claims; failure of the Contractor to make payments properly to Subcontractors or for labor, materials or equipment; reasonable evidence that the Work cannot be completed for the unpaid balance of the Contract Sum; damage to the Owner or another contractor; reasonable evidence that the Work will not be completed within the Contract Time, and that the unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated delay; or persistent failure to carry out the Work in accordance with the Contract Documents. It is clear from a reading of Section 9.5 of AIA Document A201 that the only correct answer to Question 8 of Session One of the Business and Financial Management portion of the Certification Examination is choice "(C)." The response selected by Petitioner, choice "(B)," is clearly incorrect. Petitioner therefore appropriately received no credit for this question. Question 11--Business and Financial Management, Session One Question 11 of Session One of the Business and Financial Management portion of the Certification Examination was a multiple choice question that was clear and unambiguous and covered subject matter with which the applicants should have been familiar. It required the applicants to select the choice which represented the most likely explanation for a decrease in gross profits in relation to sales. Page 149 of the Builder's Guide to Accounting reads, in pertinent part, as follows: A second useful test shows your cash position over a period of time. Take your gross profits as a percentage of sales volume for a given period. Then compute this percentage for a number of periods to get a trend. This indicates the amount of real control you have over your costs. When gross profit decreases in relation to sales, either you are not controlling your costs or your prices do not allow enough markup over your costs. Other factors that affect the level of gross profit can be unexpected inventory losses, increases in idle time, and material theft. It is clear, particularly upon a reading of the foregoing excerpt from the Builder's Guide to Accounting, that the only correct answer to Question 11 of Session One of the Business and Financial Management portion of the Certification Examination is choice "(C)." The response selected by Petitioner, choice "(B)," is clearly incorrect. Petitioner therefore appropriately received no credit for this question. Question 33--Business and Financial Management, Session One Question 33 of Session One of the Business and Financial Management portion of the Certification Examination was a multiple choice question that was clear and unambiguous and covered subject matter with which the applicants should have been familiar. It required the applicants to select the choice which accurately described the characteristics of a joint venture. Page 1-15 of the Contractor's Manual gives the following description of a "joint venture": A joint venture is a special combination of two or more persons jointly seeking a profit in some specific venture, without an actual partnership or corporate designation. The rights of persons who intend to do business as joint venture are governed substantially by the same rules that govern partnerships. An oral agreement between the parties may be sufficient to form a joint venture. However, to preclude misunderstandings it is strongly recommended that the agreement be in writing. The primary difference between a partnership and a joint venture is that a partnership is usually created for the transaction of business of a particular type, while the joint venture is usually limited to a single transaction. The advantages and disadvantages of a joint venture are substantially the same as those listed above for partnerships. It is clear, particularly upon a reading of the foregoing excerpt from the Contractor's Manual, that the only correct answer to Question 33 of Session One of the Business and Financial Management portion of the Certification Examination is choice "(C)." The response selected by Petitioner, choice "(B)," is clearly incorrect. Petitioner therefore appropriately received no credit for this question. Question 36--Business and Financial Management, Session Two Question 36 of Session Two of the Business and Financial Management portion of the Certification Examination was a multiple choice question that was clear and unambiguous and covered subject matter with which the applicants should have been familiar. It required applicants to determine which of the choices given indicated the point in time when revenue, costs, and expenses are first recognized under the percentage of completion method of accounting. Page 19 of the Builder's Guide to Accounting contains the following statement regarding the percentage of completion method of accounting: The advantage of the percentage of completion method is that income and its related costs, expenses, and profits are recognized and reported as the job progresses. It is clear, particularly upon a reading of the foregoing excerpt from page 19 of the Builder's Guide to Accounting, that the only correct answer to Question 36 of Session Two of the Business and Financial Management portion of the Certification Examination is choice "(C)." The response selected by Petitioner, choice "(D)," is clearly incorrect. Petitioner therefore appropriately received no credit for this question. Question 37--Business and Financial Management, Session Two Question 37 of Session Two of the Business and Financial Management portion of the Certification Examination was a multiple choice question that was clear and unambiguous and covered subject matter with which the applicants should have been familiar. It asked how a contractor can be sure that general ledger entries have been correctly made. Page 202 of the Builder's Guide to Accounting states the following regarding general ledger entries: After you post your ledger at the close of the period, the first step to take in drawing up financial statements is to put together a trial balance. See Figure 21-1. This worksheet proves that the ledger is in balance. In all cases, debits should equal credits. So the total of all debits on one side of the trial balance must equal the total of all credits on the other side. Otherwise, none of the financial statements will balance. . . . The general ledger is in balance when all entries into it have been made correctly. The way to prove this is to add up the totals of all accounts. Modern-day general ledgers are maintained by the double entry system. This means that every entry is made twice- one debit and one credit. Debits are positive numbers and credits are negative. Because every entry includes a positive (debit) and a negative (credit), a correctly posted general ledger will add up to a net of zero. It is clear, particularly upon a reading of that portion of page 202 of the Builder's Guide to Accounting set forth above, that the only correct answer to Question 37 of Session Two of the Business and Financial Management portion of the Certification Examination is choice "(B)." The response selected by Petitioner, choice "(D)," is clearly incorrect. Petitioner therefore appropriately received no credit for this question. Question 40--General Trade Knowledge, Division II, Session Three Question 40 of Session Three of the General Trade Knowledge (Division II) portion of the Certification Examination was a multiple choice question that was clear and unambiguous and covered subject matter with which the applicants should have been familiar. It required the applicants to examine a drawing illustrating fixtures in a public lavatory and to compare the drawing to the requirements set forth in the National Standard Plumbing Code Illustrated, Section 7.16.2 of which addresses the "size of floor drains" and provides as follows: Floor drains shall be of a size to serve the intended purpose. Minimum size trap shall be 2 inches. The only correct answer to this question is choice "(A)." Inasmuch as Section 7.16.2 of the National Standard Plumbing Code Illustrated provides that the"[m]inimum size trap shall be 2 inches," the response selected by Petitioner, choice "(B)," is clearly incorrect. Petitioner therefore appropriately received no credit for this question. Question 3--General Trade Knowledge, Division II, Session Four Question 3 of Session Four of the General Trade Knowledge (Division II) portion of the Certification Examination was a multiple choice question that was clear and unambiguous and covered subject matter with which the applicants should have been familiar. It required the applicants to determine which of the devices listed, according to NFPA 99- Health Care Facilities, was required to be located on a medical gas line immediately outside of each vital life-support or critical care area. Section 4-4.1.3.2 of NFPA 99- Health Care Facilities provides as follows: A shutoff valve shall be located immediately outside each vital life-support or critical care area in each medical gas line, and located so as to be readily accessible in an emergency. Valves shall be protected and marked in accordance with 4-6.4.1.2. All gas-delivery columns, hose reels, ceiling tracks, control panels, or other special installations shall be located downstream of this valve. It is clear from a reading of the pertinent portions of NFPA 99- Health Care Facilities that the only correct answer to Question 3 of Session Four of the General Trade Knowledge (Division II) portion of the Certification Examination is choice "(C)." The response selected by Petitioner, choice "(B)," is incorrect. Petitioner therefore appropriately received no credit for this question. Question 25--General Trade Knowledge, Division II, Session Four Question 25 of Session Four of the General Trade Knowledge (Division II) portion of the Certification Examination was a multiple choice question that was clear and unambiguous and covered subject matter with which the applicants should have been familiar. It required the applicants to identify which of the piping materials listed would be suitable for use in a fuel gas system according to NFPA- 54 National Fuel Gas Code. Section 2.6 of NFPA 54- National Fuel Gas Code describes the "acceptable piping materials and joining methods" for a fuel gas system. It provides, in pertinent part, as follows: 2.6.2 Metallic Pipe. Cast-iron pipe shall not be used. Steel and wrought-iron pipe shall be at least of standard weight (Schedule 40) and shall comply with one of the following standards: Standard for Welded and Seamless Wrought- Steel Pipe, ANSI/ASME B36.10. Standard Specification for Pipe, Steel, Black and Hot-Dipped, Zinc-Coated Welded and Seamless, ASTM A53; or Standard Specification for Seamless Carbon Steel Pipe for High-Temperature Service, ASTM A106. Nodular (ductile) iron pipe shall comply with one of the following standards: Standard for Ductile-Iron Pipe, Centrifugally Cast, in Metal Molds or Sand- Lined Molds, for Gas, ANSI A21.52; or Specification for Ductile Iron Pressure Pipe, ASTM A377. Such pipe shall be not less than 3-inch size, shall not be welded, and shall be used only underground outside building foundation boundaries, or above ground, provided that joints are properly restrained against movement and separation. It is clear from a reading of the pertinent portions of NFPA 54- National Fuel Gas Code that the only correct answer to Question 25 of Session Four of the General Trade Knowledge (Division II) portion of the Certification Examination is choice "(A)." The response selected by Petitioner, choice "(D)," is clearly incorrect. Petitioner therefore appropriately received no credit for this question. Isometric Drawings In Session Three of the General Trade Knowledge (Division II) portion of the Certification Examination the applicants were given "five (5) problems relating to the interpretation of various plumbing codes as they pertain to piping and equipment systems illustrations as are commonly used on construction drawings and in the plumbing industry." For each problem the applicants were given a floor plan or "plan view," as well as a "blank isometric sheet" on which they were required to "develop an isometric drawing from each of the floor plans in the space provided . . . compl[ying] with applicable codes and the directions given in the problem." The following "plumbing isometric drawing criteria" were listed in the examination booklet: Listed below are the criteria used to evaluate all isometric drawings. Remember to display all symbols and the directions of flow. You must meet all the criteria specified, for each drawing to obtain credit. 1.0 Proper Orientation of Fixtures and Piping in Reference to the Floor Plan All fixtures and piping must be properly oriented as outlined by the floor plan. 2.0 Display of Symbols on Isometric Drawings All symbols must be displayed in the correct manner. 3.0 Indication of Direction of Flow as per the National Standard Plumbing Code Illustrated 1993 and the 1995 supplement The direction of flow must be indicated even if the direction is implied. . . 4.0 Elevations of Connections All connections must be displayed at the proper elevations. 5.0 Use of 30-60-90 Degree Angles All angles must be displayed at the proper orientation. 6.0 Code Compliance as per Standard Plumbing Code, 1994 with 1995 revisions, (SBCCI) The drawing must be in compliance with this code and pass inspection. 7.0 Representation of Floor Plan Elevations in Piping The piping must display the correct elevation in reference to the floor plan. The examination booklet also contained the following instruction: "Use only those symbols, abbreviations and drawing conventions as are contained in the approved references and this booklet." Petitioner's drawings in response to Problems 1, 3, 4, and 5 (Petitioner's Drawings 1, 3, 4, and 5) did not "meet all the criteria specified." Therefore, in accordance with the grading policy set forth in the examination booklet,2 Petitioner did not obtain any credit for these drawings. In Petitioner's Drawing 1, vents and fittings were not properly displayed, and the water closet line was not displayed at the correct elevation. Petitioner's Drawing 3 was not in compliance with applicable code requirements governing elevation. In addition, vents and direction of flow were not properly indicated in the drawing. Petitioner's Drawing 4 failed to display a vent stack going through the roof that was shown on the "plan view." In addition, the wash fountains were mislabeled and an inappropriate fitting was indicated on the drawing. In Petitioner's Drawing 5, vents, fittings, and direction of flow were not properly displayed.3
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered rejecting Petitioner's challenge to the failing grades he received on the Business and Financial Management and General Trade Knowledge portions of the April 1996 plumbing contractor certification examination. DONE AND ENTERED this 21st day of July, 1997, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 21st day of July, 1997.
Findings Of Fact James Paleveda, one of the Petitioners, took the examination for a plumbing contractor's license on February 10 and 11, 1983, and failed the examination. He was the only witness to testify on behalf of the Petitioners. Some of the other Petitioners took a different examination on different dates than the examination complained of in these proceedings, but no evidence was presented identifying those Petitioners and no evidence was presented relative to those exams. Petitioners presented no evidence that any or all of them gave incorrect answers to the questions complained of, and, but for those incorrect answers, they would have passed the examination. The sum and substance of the testimony presented by the Petitioner Paleveda was that, in his opinion, most of the questions in Exhibit 1, the examination Paleveda took, were not appropriate to determine if the applicant is qualified to be a plumbing contractor. Paleveda has never been a plumbing contractor and has little experience in the contracting field. He is also nearly 57 years old and, although fit, conceded the long examination for a man his age and background was much more tiring than it would be for a younger man fresh out of school. Questions 1 through 27 of Exhibit 1 deal with social security taxes withheld and paid by employers for their employees; federal income taxes withheld; Florida mechanics lien law; workers' compensation law; unemployment compensation law; Florida Construction Industry Licensing law; accounting and cost-keeping procedures; and general contract provisions. Petitioners contend that although some knowledge of these subjects is desirable, a contractor can always hire accountants and lawyers to handle these problems. Respondent, on the other hand, presented the testimony of plumbing contractors who have been in the business for many years who testified that knowledge of the cost of social security, workers' compensation and unemployment insurance, contract provisions, and all costs associated with the performance of plumbing contracts are essential if a plumbing contractor is to remain solvent. This latter testimony is deemed more credible and is factually accepted. Questions 28 through 93 generally involve questions form the Plumbers Handbook and Mathematics for Plumbers and Pipe Fitters. Petitioner's primary objections to these questions are that in some cases the answers from the Plumbers Handbook is different from the local codes. Respondent presented evidence that there are some differences throughout the state in the plumbing codes and this is the principal reason for utilizing a standard that can be applicable to all candidates. The candidates are told that the correct answers to those questions are those given in the Plumbers Handbook and the examinees are allowed to have this book in the examination room. Questions 94 through 100 are taken from the Solar Water and Pool Heating Manual and Petitioners contend these questions are too hard. Petitioners further contend that any plumber should check with the manufacturer for specific instructions before installing a solar water heating system. All plumbing contractors are authorized to install a solar water hearing system and each should be required to demonstrate a rudimentary knowledge of such a system before being so licensed. Accordingly, Petitioner's objections to these questions are without merit. The first 27 questions to which the Petitioners object are very similar to the questions given to all building contractors for a statewide license. Those questions cover areas that a contractor must know to remain financially solvent. Most contractors initially starting a business do not have sufficient capital to hire attorneys and accountants to advise each time a question arises regarding these fields. A contractor can hardly afford to hire an attorney to file a $200 mechanics lien.
Recommendation It is RECOMMENDED that the COMPLAINT and other contentions of Petitioners regarding the unfairness of the February 11 and 12, 1983 examination for plumbing contractors be dismissed. DONE AND ENTERED this 20th day of July 1984 at Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of July 1984. COPIES FURNISHED: Michael Steinberg, Esquire 2055 Dale Mabry Tampa, Florida 33609 Drucilla E. Bell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 W. Douglas Moody, Esquire 199 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Upon consideration of the evidence presented at the hearing, the following relevant findings of fact are made: At all times material to this proceeding, Petitioner possessed a valid master plumbers license issued by New York City. There was no evidence that New York City had ever issued Petitioner a plumbing contractors license, or that the master plumbers license was the same as a plumbing contractors license in New York City. At all times material to this proceeding, the State of New York did not administer a plumbing contractors licensing examination or a master plumbers licensing examination, having delegated this responsibility to the several municipalities within the State of New York, including but not limited to New York City. A plumbing contractors license or a master plumbers license issued by New York City or other cities within the State of New York are not valid in any jurisdiction other than the issuing jurisdiction. Petitioner has some 40 years experience in the plumbing business within New York City. Florida's Plumbing Contractors Examination prepared and administered by National Assessment Institute in accordance with Rule 61G4-16.001(13), Florida Administrative Code, consists of two parts: Part I, Business and Financial Management; and Part II, General Trade Knowledge. Part I is comprised of the following major content areas. The number in parentheses is the approximate percentage of the examination devoted to that content area. Maintaining Cash Flow (15 percent) Estimating and Bidding a Job (20 percent) Negotiation and Interpretation Contracts and Agreements ( 5 percent) Processing Change Orders ( 5 percent) Purchasing Control ( 5 percent) Contract Scheduling ( 5 percent) Controlling Costs of Fixed Assets ( 5 percent) Obtaining Insurance and Bonding (10 percent) Complying with Contracting Laws and Rules (15 percent) Personnel Management ( 5 percent) Complying with Payroll and Sales Tax Laws ( 5 percent) Interpretation of Financial Statements and Reports ( 5 percent) Under each of the major content areas are listed the tasks and the knowledge required to perform them. There are approximately 49 different tasks listed under Part I. Part II of the examination consist of three questions each of which tests the applicant's knowledge of design, installation, and maintenance of several different systems. Approximately 40 percent of the examination is devoted to question one and 40 percent to question two and 20 percent to question three. Under Part II the applicant is tested on the design, installation and maintenance of 27 different systems. Petitioner submitted several examinations (some were not complete) that he contended were master plumbers licensing examinations given by New York City in 1970, 1972, 1974 1976, 1982, 1983, 1985, 1987 and 1991. However, only one or two were marked as to the source or origin. The number of questions on the examinations ranged from 16 to 70 questions. The only major content area listed in Part I of the Florida plumbing contractors examination covered by the examinations submitted by the Petitioner was "Estimating and Bidding a Job". However, the coverage of "Estimating and Bidding a Job" in the tests submitted was cursory at best. The examinations submitted by the Petitioner covered Part II in somewhat more detail than they did Part I. Question one of Part II was covered fairly extensively whereas Question two was somewhat less extensive than Question one, with Question three's coverage being only slight. The design, installation and maintenance of only three out of nine systems listed in Question two, and only one out of eleven systems listed in Question three were covered in the examinations submitted by the Petitioner. All of the systems listed in Question one were covered to some degree by the examinations submitted by the Petitioner. Since the Petitioner was unable to submit a copy of the master plumbers examination administered by New York City in 1952, a determination of whether that particular examination is "substantially equivalent" to the Florida Plumbing Contractors licensing examination currently in use cannot be made. However, even assuming that the New York City examinations submitted by the Petitioner were the same as the examination taken by the Petitioner in 1952, the New York master plumbers licensing examination is not "substantially equivalent" to the Florida Plumbing Contractors licensing examination currently in use..
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Construction Industry Licensing Board enter a Final Order denying the Respondent's application for certification as a plumbing contractor by endorsement. RECOMMENDED this 4th day January, 1995, in Tallahassee, Florida WILLIAM R. CAVE 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 4th day of January, 1995. law. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4184 The parties did not file any proposed findings of fact and conclusions of COPIES FURNISHED: Phillip Suna, Pro se 2301 Gulf of Mexico Drive Apt. 93-N Longboat Key, Florida 34228 Clark Jennings, Esquire Department of Legal Affairs The Capitol Tallahassee, Florida 32399-1050 Jack McRay Acting General Counsel Departmemt of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Richard Hickok, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Ste. 300 Jacksonville, Florida 32211-7467
The Issue Whether the Respondent violated the statutes by committing the acts alleged in the Administrative Complaint?
Findings Of Fact Respondent is a registered residential contractor having been issued license number RR 0030688. Respondent's last known address is c/o Griffin Remodeling & Repairs, 7443 Laura Street, Jacksonville, Florida 32208. On July 9, 1982, Respondent, as qualifier for Griffin Remodeling & Repairs, entered into a contract with Freddie L. Jarrell to repair his home at 2121 Forbes Street, Jacksonville, Florida for $1,000.00. On August 4, 1982, Respondent entered into a second contract with Jarrell to do additional work of the same nature on the home. These contracts included painting and retiling a bathroom in the home. In August 1982, Respondent, or his workmen removed plumbing fixtures in Jarrell's bathroom without obtaining a plumbing permit. Failure to pull a plumbing permit in a timely manner for this type of project is a violation of the Building Code of the City of Jacksonville. The tile was reworked but the plumbing was not reinstalled. There was a controversy between Respondent and Jarrell over who was responsible for plumbing. Respondent arranged for the plumbing to be reinstalled; however, he did not pay for it. The plumber reinstalled the fixtures and thereafter pulled a permit after paying a late fee. On August 6, 1982, Respondent sought payment for both of the above- referenced contracts. Jarrell refused until Respondent promised to do all work remaining under the contract. The Respondent gave Jarrell a note signed by his secretary which stated Respondent would fix the water closet (toilet), paint the attic screen, reinstall light switches, and remove tile from the front yard. The Respondent did not reinstall the switches and reset the water closet. Respondent was repeatedly contacted and notified by Jarrell that there were items still left undone. Respondent did not return to the project to do those things that he had promised to do. Respondent was at no time licensed to do plumbing work; however, frequently contractors will pull out fixtures and pay the penalty for not pulling the permit which costs less than having the plumber come out on the job twice.
Recommendation Having found the Respondent guilty of violating Section 489.129(1)(c), (d) and (j), it is recommended that his license be suspended for one year and he be given credit for the year during which he was incarcerated and did not practice. DONE and ORDERED this 16th day of April, 1985, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 16th day of April, 1985. COPIES FURNISHED: Douglas Beason, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Troy Griffin 7443 North Laura Street Jacksonville, Florida 32208 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Department of Professional Regulation Construction Industry Licensing Board P.O. Box 2 Jacksonville, Florida 32202
The Issue Whether Respondent's registered plumbing contractor's license should be revoked, suspended or otherwise disciplined under the facts and circumstances of this case.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, Respondent, Stanley Monds, held a registered plumbing contractor's license number RF 0037461 which had been placed on a delinquent status for non-renewal effective July 1, 1985 and was invalid during the 1987-89 licensing period. On June 19, 1987, Monds, doing business as Clay Well and Pump Service, contracted with Charles W. Plath to install a culvert for the sum of $341.25. The culvert was installed by Monds and Plath paid Monds in accordance with the contract. On July 10, 1987, Monds, doing business as Clay Well and Pump Service, contracted with Plath to: (a) install a 2- inch well and a 1-Horsepower Meyers pump; (b) supply fill for septic tank pad and a culvert; (c) install septic tank and culvert; (d) install a 200 amp electrical service for mobile home and pump and; (e) tie-in the water line and electricity to the mobile home and pump. The net contract price was $6,574.00 of which Plath paid $4,295.00 in advance, leaving a balance of $2,279.00. Plath's mobile home site is located in Whitehouse, Duval County, Florida. There was no written or verbal agreement between Plath and Monds concerning a completion date. However, Plath had told Monds that he needed to be in the mobile home by August, 1987. Plath understood that Monds had other jobs that he was currently working on but would get to Plath as soon as possible. Monds advised Plath that the necessary permits for the job would have to be applied for (pulled) by Plath. Plath did not object to this, and on June 19, 1987 applied for a mobile home move-on permit with the Duval County Building Department. The mobile home move-on permit was issued to Plath on July 6, 1987. An applicant for a mobile home move-on permit must show that a septic tank permit has been issued before a mobile home move-on permit will be issued. The septic tank permit is issued through the local health department. The Duval County Building Department requires the person who is issued the mobile home move-on permit to assume the responsibility for acquiring the necessary inspections, even though the work is being performed by someone other than the person to whom the permit was issued. It was Plath's responsibility to see that the necessary inspections were made, including the septic tank inspection. The well and pump were installed sometime around the last of July or the first of August, 1987. Monds subcontracted the drilling of the well. Although part of the work under the contract had been completed, such as the well and pump installation and part of the septic tank, Plath encountered difficulty in making contact with, and getting a response from, Monds concerning the progress of the job and a completion date. Therefore, in October, 1987 Plath decided to contract the work to someone else. On October 8, 1987, Plath contracted with Wilkins & Sons Electric (Wilkins) to install: (a) the 200 Amp mobile home service pole and connect to mobile home; (b) the 220 Volt, 20 Amp circuit and connect to pump and; (c) the 175 Watt mercury vapor light fixture. The total price of the contract was $850.00. However, $85.00 for a mercury vapor light fixture was not part of the original contract with Monds. Wilkins applied for and was issued the required electrical permit for the Plath job on October 6, 1987. The final electrical inspection was made on October 9, 1987. 13 On October 13, 1987, Plath contracted with AA Septic Tank Service, Inc. to finish the partially completed septic tank which Monds had failed to complete for $300.00. Although the septic tank permit was issued before the mobile home move-on permit was issued, there is no evidence that anyone made a septic tank inspection. Although Monds was hampered by the rain during the period of time Monds worked on the Plath site, there was insufficient evidence to show that Monds was prevented by the rain from completing the work under the contract before Plath decided to contract with someone else because of the delay or that Monds advised Plath of the reason for the delay. Plath did not prevent, or prohibit, Monds for completing the work under the contract. Monds failed to pay Tim Prep, Inc. for 15 loads of fill ordered and used by Monds on the Plath job. As a result of Monds failure to pay for the fill, Tim Prep, Inc. filed a Notice Of Intention To Claim A Lien in the amount $1,181.25 against Plath's property. Monds had not paid Tim Prep, Inc. for the fill at the time of the hearing. The work on the on the Plath job was completed in late October or early November, 1987. Monds was still working on the Plath job as late as September 1, 1987 when Tim Prep, Inc. delivered fill to the Plath site for Monds. Although Plath never paid Monds the $2,279.00 balance, Plath was required to pay other contractors $1,075.00 ($850.00 minus $85.00 plus $310.00) and will be required to pay $1,181.25 to Tim Prep, Inc. to remove the lien from his property which comes to a total of $2,256.25, leaving a balance of $22.75. This does not take into consideration any compensation for the delay suffered by Plath. Although probable cause was found against Monds by the Florida Construction Industry Licensing Board (Board) on January 7, 1988 and a letter of guidance issued in apparently another matter, there was no evidence concerning the violations or the charges involved.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and Rule 21E- 17, Florida Administrative Code, it is, therefore, RECOMMENDED that the Board enter a Final Order finding Respondent, Stanley Monds guilty of violating Section 489.115(3)(a), Section 489.119(3), and Section 489.129(1)(j) and (m), Florida Statutes, and for such violation impose an administrative fine of $750.00. It is further RECOMMENDED that the charges alleged in the Administrative Complaint of violating Section 489.129(1)(d) and (k), Florida Statutes be DISMISSED. DONE AND ENTERED this 18th day of July, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 18th day of July, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-0464 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the Proposed Findings of Fact submitted by the Petitioner in this case. Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner: Each of the following Proposed Findings of Fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the Proposed Finding of Fact: 1 & 2(1); 3(2- 5); 4 & 5(3); 6(6); 7(9); 8(10); 9(9); 10(11); 11(13); 12(18); 13(17); 14(6 & 12); 15(6 & 8); 16(12); 17(16); 18(2 & 3); 19(1). Specific Rulings on Proposed Findings of Fact Submitted by the Respondent: 1. Respondent did not submit and posthearing proposed findings of fact. COPIES FURNISHED: Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 Kenneth Easley, Esquire General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 Elizabeth R. Alsobrook, Esquire Department of Professional Regulation Northwood Centre 1940 N. Monroe St. Tallahassee, Florida 32399-0750 Stanley Monds 326 West Macclenny Avenue Macclenny, Florida 32063 =================================================================
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint issued against him and, if so, what disciplinary action should be taken.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is a Spanish-speaking native of Cuba with little or no understanding of the English language. He has resided in Miami-Dade County since coming to this country 18 or 19 years ago. In or around 2006, Respondent decided he wanted to start an air conditioning contracting business in Miami-Dade County, and he went to the downtown Miami location of the Miami- Dade County Code Compliance Office (Compliance Office) to inquire about the licensing requirements with which he would have to comply to legally operate such a business in the county. The Compliance Office is responsible for licensing construction contractors (in various trades) operating in Miami- Dade County. The contractors whom the Compliance Office licenses include mechanical contractors doing air conditioning work. Individuals who desire to go into the air conditioning contracting business in Miami-Dade County must complete and submit to the Compliance Office an eight-page "initial application," accompanied by "letters of experience" and a $315.00 application fee. The application is reviewed by the Miami-Dade County Construction Trades Qualifying Board (CTQB). If the CTQB determines that the applicant is qualified to take the licensure examination, the applicant is allowed to sit for the examination. Passing the examination is a prerequisite to licensure. If a passing score is attained, the applicant is notified by the Compliance Office and given the opportunity to submit a "business application" and supporting material (including proof of liability insurance and workers' compensation coverage), accompanied by another $315.00 application fee. If the CTQB approves the "business application," the "applicant is issued a contractor's license number" and given a "competency card" (reflecting such licensure) by the Compliance Office. The applicant then must register with the Department before being able to engage in any contracting work in the county. When Respondent went to the Compliance Office's location in downtown Miami, he was approached by a man carrying a clipboard who spoke Spanish. Respondent was led to believe by the man that he worked for the county (although the man did not present any identification verifying his employment status). The man offered to help Respondent apply for a license, an offer Respondent accepted. After obtaining information from Respondent, the man filled out an application form (which was in English) for Respondent and "kept" the completed form. He then collected from Respondent $350.00. The man told Respondent that Respondent would be receiving his license "by mail." Respondent did nothing further (including taking the licensure examination) to obtain a Compliance Office-issued license for his air conditioning contracting business. Given what he was told by the man (whom he trusted) at the Compliance Office's downtown Miami location, Respondent did not think anything else was required of him, and he acted accordingly. Approximately a month after his visit to the Compliance Office, Respondent received what, on its face, appeared to be a Compliance Office-issued "competency card" indicating that his business, G & G Air Conditioning, Inc., had been issued an "A/C UNLTD" license, License No. 05M000987, with an expiration date of September 30, 2007, and that he was the "qualifying agent" for the business. Although Respondent did not realize it at the time, the "competency card" was a "fraudulent document." The Compliance Office had never in fact issued any license to Respondent or his air conditioning contracting business. Indeed, the Compliance Office had not even received a licensure application, or, for that matter, anything else, from Respondent (including the $350.00 he had paid for what he thought was an application fee). Reasonably, but erroneously, believing that the "competency card" was authentic, Respondent, with the assistance of a friend able to read and write English, completed and submitted the paperwork necessary to register with the Department so that he would be able to engage in the business of air conditioning contracting in Miami-Dade County. Respondent had picked up the application packet (the contents of which were in English) when he had visited the Compliance Office's downtown Miami location. Respondent's friend translated the contents of the application materials for Respondent. For each item requiring a response, Respondent told his friend what entry to make. The final page of the application materials contained the following "Attest Statement," which Respondent signed (after it was translated for him by his friend): I have read the questions in this application and have answered them completely and truthfully to the best of my knowledge. I have successfully completed the education, if any, required for the level of licensure, registration, or certification sought. I have the amount of experience required, if any, for the level of licensure, registration, or certification sought.[1] I pledge to comply with the applicable standards of practice upon licensure, registration, or certification. I understand the types of misconduct for which disciplinary proceedings may be initiated. Among the representations Respondent made in his completed application was that he possessed a valid "local competency card" issued by the Compliance Office. He believed, in good faith, but again, incorrectly, that the "competency card" he had received in the mail was such a card. In accordance with the instructions in the application materials, Respondent attached a copy of this card to his application. The Department received Respondent's completed application for registration on April 20, 2006. On May 23, 2006, the Department issued the registration for which Respondent had applied. Had the Department known that the "competency card" Respondent had attached to his application and had falsely, but not fraudulently, claimed to be valid was in fact a counterfeit that did not accurately represent the local licensure status of Respondent and his business, the Department would have denied Respondent's application for registration. Following a police investigation, two Compliance Office employees, along with a former Compliance Office employee, were arrested for selling "fraudulent licenses." The police alerted the Compliance Office of the results of its investigation in or around July 2006 (after the Department had already granted Respondent's application for registration). The Compliance Office thereupon conducted an audit, which revealed that Respondent was among those who had received a "fraudulent competency card" from the arrestees. Respondent was so notified by letter (sent by the Compliance Office). Prior to his receipt of the letter, Respondent had no idea that the "competency card" he had received in the mail was not what it purported to be. Had he known it was a "fraudulent document" he would have never applied for registration with the Department. The total investigative and prosecutorial costs incurred by the Department in connection with the instant case (excluding costs associated with any attorney's time) was $32.66.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board issue a Final Order revoking Respondent's registration and requiring him to pay the Department $32.66 (representing the Department's investigative and prosecutorial costs, excluding costs associated with attorney time) for the violation of Section 489.129(1)(a), Florida Statutes, Section 455.227(1)(h), Florida Statutes, and Section 489.129(1)(m), Florida Statutes, described above that the Department alleged in its Administrative Complaint and subsequently proved by clear and convincing evidence at the final hearing. DONE AND ENTERED this 22nd day of October, 2007, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 22nd day of October, 2007.
