The Issue The issue is whether Respondent engaged in an unlawful employment practice when it failed to hire Petitioner as a shift supervisor at the Conserv I wastewater treatment facility.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Parties Petitioner is a white male. At the time of the events giving rise to this proceeding, Petitioner was 52 years old. Petitioner holds a Class “A” wastewater treatment plant operator license from the State of Florida. Petitioner has worked for the City as a wastewater treatment plant operator since 1991. All of Petitioner’s experience with the City has been at the City's Iron Bridge facility. Respondent is a municipality of the State of Florida. Respondent operates at least three wastewater treatment facilities -– known as Conserv I, Conserv II (not directly implicated in this case), and Iron Bridge -– through its Wastewater Process and Operations Bureau (Wastewater Bureau). Each facility is slightly different. The Conserv I facility has a capacity of 7.5 million gallons per day (mgd) and is designed to service approximately 75,000 people. The facility uses a unique, technologically complex process to treat wastewater. The treated wastewater from the Conserv I facility is used for irrigation, and is referred to as “reuse” or reclaimed water. The Iron Bridge Facility is larger than the Conserv I facility. It has a capacity of 40 mgd and is designed to service approximately 400,000 people. The facility uses a more traditional process to treat the wastewater. The treated wastewater from the Iron Bridge Facility is discharged into wetlands and rivers; it is not used as reclaimed water. Hiring Process for the Conserv I Shift Supervisor In early 2001, a shift supervisor position came open at the Iron Bridge facility. Petitioner applied for that position, but he was not interviewed. The Iron Bridge shift supervisor position was filled by Don Proscia, a 64 year old white male. Mr. Proscia was a shift supervisor at the Conserv I facility, and his hiring at the Iron Bridge facility was considered to be a “lateral transfer” by the City. Apparently, the City does not interview other candidates where an existing employee requests a lateral transfer, which explains why Petitioner was not interviewed for the Iron Bridge shift supervisor position. As a result of Mr. Proscia’s lateral transfer, a shift supervisor position came open at the Conserv I facility. The minimum qualifications for the Conserv I shift supervisor position, as reflected on the job posting (Joint Exhibit 12), were graduation from high school, two years of experience in the operation of a wastewater treatment facility, and a valid Florida driver's license. The position also required a current Class "B" wastewater treatment operator license, and required a Class "A" license to be obtained within two years of employment. Experience in advance wastewater treatment and prior supervisory experience were preferred. Petitioner applied for the Conserv I shift supervisor position. Terry White and Klaus Blixer also applied for that position. Mr. White is an African-American male, and he was 29 years old at the time. He has worked for the City as a wastewater treatment plant operator since 1994. All of Mr. White’s experience with the City has been at the Conserv I facility. At the time of his application, Mr. White held a Class “B” wastewater treatment plant operator license. Subsequently, he obtained a Class "A" license. Mr. Blixer is a white male. The record does not reflect his age. Mr. Blixer has worked for the City as a wastewater treatment plant operator since approximately 1995. All of his experience with the City has been at the Iron Bridge facility. At the time of his application, Mr. Blixer held a Class “A” wastewater treatment plant operator license. The three applicants for the Conserv I shift supervisor position were interviewed by a committee composed of Ernie Cox, Charlie McComas, and Paul Deuel, all of whom are members of management with the Wastewater Bureau. Mr. Cox is an African-American male; Mr. McComas and Mr. Deuel are both white males. All of the committee members are 40 years of age or older. The committee interviewed each applicant and asked them the same set of interview questions. The interviews were all conducted on the same day. After all of the interviews were complete, the committee discussed their general impressions of each applicant. The committee did not make the hiring decision on that day. However, each of the committee members testified at the hearing that they ranked Mr. White the top candidate at that point, and two of the three committee members testified that they considered Mr. Blixer (not Petitioner) to be the second-best candidate. In an effort to obtain additional input on the applicants, Mr. Cox contacted Charles Thompson, the plant manager at the Iron Bridge facility where Petitioner and Mr. Blixer worked. Mr. Cox is the plant manager at the Conserv I facility where Mr. White worked, so he was generally familiar with him and his qualifications; however, he also obtained feedback on Mr. White from Mr. McComas, who was a chief operator at Conserv I and was more familiar with Mr. White's attendance and on-the-job performance. Mr. Thompson did not strongly recommend either Petitioner or Mr. Blixer. He characterized Petitioner as an "average" employee who did what was asked of him but nothing more. Mr. Cox relayed this information to the other members of the committee. Based upon the interviews and the additional information acquired by Mr. Cox, the committee unanimously agreed to recommend that Mr. White be hired for the Conserv I shift supervisor position. Mr. Cox forwarded the committee’s recommendation to David Sloan, the chief of the Wastewater Bureau. Mr. Sloan accepted the committee’s recommendation and forwarded it to Tom Lothrop, the director of the Environmental Services Department, for final approval. Mr. Lothrop gave final approval to the recommendation, and Mr. White formally assumed the shift supervisor position in June 2001. There is no credible evidence that either race or age were considered at any point during the interview process or that the committee was given a mandate by anyone in the City's management to hire a particular person or a person of a particular race or age for the Conserv I shift supervisor position. Indeed, at the hearing, each member of the interview committee adamantly (and credibly) denied consideration of race or age in connection with their recommendation to hire Mr. White. The committee members based their recommendation to hire Mr. White on his qualifications, work ethic, and experience at the Conserv I facility. As discussed below, Mr. White was more qualified for the Conserv I shift supervisor position than was Petitioner. The only direct evidence of discrimination cited by Petitioner in support of his claim allegedly occurred during the course of the internal grievance process initiated by Petitioner after he was not hired for the shift supervisor position. That process and the alleged evidence of discrimination are discussed below. City’s Internal Grievance Process After Petitioner learned that he had not been hired for the shift supervisor position, he filed a grievance with the City. The grievance was denied at each step in the process as described below. The City’s grievance process includes four steps. Step One is a hearing before Petitioner's plant manager, i.e., Charles Thompson. Step Two is a hearing before the chief of the Wastewater Bureau, i.e., David Sloan. Step Three is a hearing before the director of the Environmental Services Department, i.e., Tom Lothrop. Step Four is a hearing before a three-member grievance committee composed of two persons selected by the City and one person selected by Petitioner. The first three steps are relatively informal and are not recorded. They are meetings and/or discussions to address the concerns of the person who filed the grievance. Step Four is a more formal hearing, and it is tape recorded. Petitioner waived his Step One hearing, and the record does not include any credible evidence regarding Petitioner's Step Three hearing. Indeed, the focus of Petitioner's discrimination claim is on events which allegedly occurred at the Step Two and Step Four hearings. Petitioner's Step Two hearing was conducted on September 14, 2001. There is no credible evidence that Mr. Sloan (or anyone else) made a statement at that hearing regarding a need or requirement to hire a minority for the Conserv I shift supervisor position. Petitioner's Step Four hearing was conducted on November 10, 2001. That portion of the tape recording of the Step Four hearing introduced by the parties in this proceeding does not include any direct evidence of discrimination. Mr. Sloan did state that given two equal candidates, he would favor the minority in an effort to increase the diversity in the Wastewater Bureau. However, he further stated (consistent with his testimony at the hearing) that race did not factor into the decision to select Mr. White for the Conserv I shift supervisor position because Mr. White and Petitioner were not equal candidates. One of the exhibits discussed by Mr. Sloan at the Step Four hearing compared the percentage of black and white managerial employees in the Wastewater Bureau as a result of Mr. White's promotion with the percentage which would have existed if Petitioner had received the shift supervisor position. That exhibit, which was received in this proceeding as Joint Exhibit 7, was prepared by Mr. Sloan solely for use at the Step Four hearing to rebut Petitioner's discrimination claim and to show that the City does not discriminate based upon race or age. The exhibit was not used in connection with the decision to select Mr. White for the Conserv I shift supervisor position. Indeed, there is no credible evidence that the document existed prior to the Step Four hearing. In any event, Joint Exhibit 7 shows that there is not a pattern of discrimination in the Wastewater Bureau against persons in Petitioner's class (i.e., white males over age 45). The exhibit shows that more than 67 percent of the managers and supervisors in the Wastewater Bureau are white, and 35 percent of the managers and supervisors were promoted to those positions after the age of 46. The other exhibit discussed by Mr. Sloan at the Step Four hearing compared the qualifications of Mr. White and Petitioner. That exhibit, which was received in this proceeding as Joint Exhibit 6, presents an incomplete view of Petitioner's education and training because Mr. Sloan obtained the information on Petitioner (and Mr. White) from the personnel files maintained at the Wastewater Bureau, not the files maintained in the City's Personnel Office. The omissions in Joint Exhibit 6 are immaterial in this proceeding, however, because the record includes the Personnel Office files for Petitioner (Joint Exhibit 1) and Mr. White (Joint Exhibit 2), and those exhibits rather than Joint Exhibit 6 were relied upon in evaluating the relative qualifications of Petitioner and Mr. White. Relative Qualifications of Petitioner and Mr. White Both Petitioner and Mr. White met the minimum qualifications for the Conserv I shift supervisor position as reflected on the job posting. Neither Petitioner nor Mr. White has a college degree, but both have taken college courses. Mr. White has taken courses towards a business administration degree at Valencia Community College. Petitioner completed a correspondence course from Michigan State University on supervisory management in the water and wastewater field.2 Both Petitioner and Mr. White have attended numerous seminars and continuing education courses on wastewater. Petitioner has held a Class "A" wastewater treatment plant operator license since at least 1995. Mr. White held only a Class "B" license at the time of his application; however, he obtained his Class "A" license in April 2002, which is well within the time specified in the job posting for the shift supervisor position. Mr. White has a reclaimed water field inspector certification, which is important for Conserv I because the facility produces reclaimed water. Petitioner does not have this certification. Both Petitioner and Mr. White had worked "out of class" as shift supervisors at their respective plants. Both performed well in those positions. Petitioner had slightly more experience than Mr. White as a wastewater treatment plant operator with the City, i.e., 10 years compared to seven years. However, all of Mr. White's experience was at the Conserv I facility, whereas all of Petitioner's experience was at the Iron Bridge facility. The location of the experience was one of the most significant factors in the hiring decision. Mr. White's experience at the Conserv I facility meant that he would not have a significant learning curve in the shift supervisor position. By contrast, it would take Petitioner at least three to six months to adapt to the operational differences at the Conserv I facility. The other significant factors in the hiring decision were Mr. White's work ethic, his demonstrated communication and leadership skills, and his familiarity with the City's policies and procedures. Mr. White demonstrated his communication and leadership skills as a union representative and as a member of the City's pension advisory board. Mr. White's familiarity with the City's policies and procedures was important because he would be responsible for interpreting and applying those policies and procedures to the employees that he supervised. Mr. White was characterized by his supervisors as an exemplary employee who was highly motivated and takes pride in performing his job well. He willingly took on additional tasks, and he worked well without direction. By contrast, Petitioner was characterized by his supervisors as an "average" employee who did what was asked of him but nothing more.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief. DONE AND ENTERED this 13th day of December, 2002, in Tallahassee, Leon County, Florida. T. KENT WETHERELL, II 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 13th day of December, 2002.
The Issue The issue posed for decision herein is whether or not the Respondent, Melvin Stewart, t/a Depar Motel, has engaged in acts and/or conduct, as more particularly set forth in the Notice to Show Cause filed herein, which warrants the Petitioner's proposed sanctions of suspending or revoking the Respondent's license to operate a motel or the assessment of a civil penalty.
Findings Of Fact Based upon my observation of the witness and his demeanor while testifying, the arguments of counsel and the entire record compiled herein, the following relevant facts are found. Melvin Stewart, trading as the Depar Motel, is licensed by the Petitioner and holds license control No. 23-13405H. The Depar Motel is situated at 301 Northwest 62nd Street, Miami, Florida, and is of concrete block and stucco construction. The motel has approximately sixty-three (63) rooms plus a bar and lounge. Rogers Brown is an inspector employed by the Petitioner since approximately 1976. During his tenure, there has been a brief hiatus in his employment during which time he was on leave with the Department of Health and Rehabilitative Services, State of Florida. During the course of his employment, Inspector Brown made a routine inspection of the Depar Hotel on February 7, 1979, and noted that the Depar Motel was not being properly maintained, for reasons set forth hereinafter for which the Respondent, Melvin Stewart, was cited as violating Chapter 509, Florida Statutes, and Rule Chapters 7C-1 and 7C- 3, Florida Administrative Code. Without reciting herein the numerous alleged violations set forth in the Notice to Show Cause /1 or reciting in toto inspector Brown's testimony, the following is a brief summary of the conditions he found at the Depar Motel during his inspection on February 7, 1979. Inspector Brown found that the fire extinguishers at the Depar Motel were located at travel distances of more than seventy-five (75) feet apart. He found inadequate electrical wiring in several rooms, in that electrical wires were burned and exposed, air conditioning wires were exposed in several apartments, electrical shaving receptacles were exposed, electrical wall sockets did not have adequate cover plates and several rooms had no sockets in the bedrooms and bathrooms. (Apartments 33, 51, 10 and 19.) Inspector Brown found several apartment doors with improper locking devices; were poorly sealed; had loose door frames and broken jalousies in the doors and windows. (Apartments 13, 7, 15, 17, 27, 30, 32, 33, 34, 39, 40, 52 and 55.) He also found several rooms which had holes in the bathrooms and living room walls. (Apartments 7, 8, 16, 17, 18, 19, 24, 33, 39, 49, 52, 55, 57 and 59.) Inspector Brown also found several apartments which had inoperable jalousie windows and doors. (Apartments 4, 5, 11, 15, 24, 32, 33, 34, 37, 38, 39, 52, 57 and 60.) Inspector Brown found several rooms with clogged plumbing drains and he observed standing water in several plumbing fixtures, (Apartments 7 and 4.) He also found leaking faucets and hot water handles missing in several apartments. (Apartments 4, 16, 40, 52, 55 and 59.) Inspector Brown also found that several apartments lacked screen windows and that the screen windows in several apartments were torn. (Apartments 1, 4, 8, 10, 12, 15, 28, 29, 32, 34, 40, 51 and 60,) He also observed rodent droppings and roaches in several apartments. (TR. 70-73.) Inspector Brown found weeds, trash and debris outside the building. He noted that several apartments had soiled mattresses and in others the mattresses had no covers. (Apartments 4, 6, 30, 32 and 33.) Finally, Inspector Brown testified that the Respondent did not have on file with the Division a form No. 208, which is required of all licensees. 2/ Chapter 7C-3.02, Florida Administrative Code. The Respondent did not offer any witnesses to refute the charges set forth herein in the Notice to Show Cause or to counter the credited testimony of Inspector Rogers Brown.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: Upon issuance of the Division of Hotels and Restaurants' Final Order herein, the Respondent's license be suspended for a period of one (1) year with the suspension held in abeyance for a period of thirty (30) days, during which time the Respondent be allowed an opportunity to correct the deficiencies cited in the Notice to Show Cause filed herein. In the event that Respondent fails to correct the deficiencies as set forth in the referenced notice during the allowable period, Petitioner shall be authorized to immediately suspend Respondent's license for a period of one (1) year without the necessity for further hearing. Section 509.261(3)(a), Florida Statutes. RECOMMENDED this 7th day of April, 1980, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675
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.
The Issue The issue to be resolved in this proceeding concern whether the Petitioner Gary L. Neal, is qualified by virtue of experience, training and education, in accordance with the provisions of Section 633.521, Florida Statutes, to sit for the Fire Protection Systems Contractor V examination for licensing.
Findings Of Fact The Petitioner Gary L. Neal seeks to take a written examination for purposes of ultimate licensure as a "Fire Protections Systems Contractor V." The Contractor V license enables a license holder to install underground water mains that are connected to a fire protection system, such as a sprinkler system. The Petitioner presently holds a Certified Plumber's License in the State of Florida and has been so licensed since March 11, 1981. He also holds a Master Plumber's License for the State of Georgia. Prior to the creation of a separate license for installation of underground water mains connected to Fire Protection Systems, the Contractor V license for which the Petitioner seeks to be examined, installation of these water mains was performed by certified plumbing contractors, including the Petitioner, and by underground utility contractors. Underground water mains installed for potable water and fire protection systems were once one and the same, before Fire Code changes mandated that these be separate lines. Even after the creation of the Contractor V license, local code enforcers took the position that plumbers and underground utility contractors could perform this work, so long as they did so under the supervision and control of Fire Protection Contractors, which practice continued until 1996. The Petitioner established that, as a Certified Plumbing Contractor since 1981, he has installed underground water mains for many years, including water mains connected to fire protection systems, as well as those connected to potable water systems. His testimony was corroborated by the sworn deposition testimony of persons who have supervised his work. See Exhibits 43, 44 and 45, in evidence. The trenching, excavation and pipe assembly skills required for installing underground water mains are the same whether the water main is used for Fire Protection Systems or used for potable water. The only substantive difference is the materials used and the testing procedures. For water mains connected to Fire Protection Systems, materials and testing are controlled by the National Fire Protection Association Code (NFPA), as adopted by the State of Florida. Knowledge of that fire code is tested on the Contractor V examination, which the Petitioner seeks to take. All other aspects of installing underground water mains, whether for use by Fire Protection Systems or for potable water, are governed by the National Plumbing Code, which applies to the work of Certified Plumbing Contractors such as the Petitioner, Certified underground utility contractors and Fire Protection Contractor V contractors. Both Florida and Georgia allow persons holding plumbers licenses to install underground utilities, work that may also be performed by underground utility and excavation contractors in Florida. Both Florida and Georgia require plumbing contractors to take continuing education courses in subjects that include the installation of underground utilities and excavation. In Florida these courses include NFPA Code material. The Petitioner demonstrated, through un-rebutted evidence that he has satisfied the continuing education requirements (annually) of both Florida and Georgia through taking formal classroom education courses in subjects that have included course work in trenching, excavation and installation of underground water mains. These classes have included course work in the National Fire Protection Association Code governing the installation of components of fire protection systems. Prior to obtaining his Certified Plumber's License in 1981, the Petitioner was employed by various underground utility and excavation contractors, including Junger Utilities, as well as certified plumbing contractors who performed underground utility and excavation contracting. The Petitioner's experience included excavation for and installation of underground water mains. The Petitioner's experience with these companies was established by his un-refuted sworn testimony since these companies are no longer in existence and could not have a representative to testify or supply letter documentation. The Petitioner has established a total experience of more than 28 years in the installation of underground water mains and other underground utilities, including the installation of water mains connected to fire protection systems. This was established through the un-rebutted testimony of the Petitioner and corroborated by the deposition testimony of witnesses Thomas M. Brown, Dale R. Cowie and Jimmy Patrick Riley. This experience was gained both as an employee of companies performing underground utilities work and through directly contracting for such work by virtue of holding a license that authorized him to contract for underground utilities work. (Certified Plumber's License). The Petitioner is employed by Professional Plumbing of NWF, Inc., as President, Chief Executive Officer, as well as qualifying agent. Professional Plumbing of NWF, Inc., the Petitioner's own corporation, is a company that, because of the Petitioner's certified plumbers license, is authorized to perform and does perform trenching, excavation and installation of underground water mains as part of its underground utilities work. The Petitioner has been employed in that position since 1987. The Petitioner's 28 years of experience in performing layout, design, excavation and underground pipe assembly has included, without limitation, the same work for which he seeks to sit for an examination; i.e., the installation of the underground components of Fire Protection Systems. The fact that the Petitioner has successfully performed not only closely related work involving installation of underground water mains, but has successfully performed and completed the very same work for which he seeks to be licensed (by virtue of his Certified Plumber's License) is relevant to the issue of whether he has demonstrated sufficient education and experience to qualify him to sit for the Contractor V examination. During the Petitioner's 28 years in his profession he has worked as a laborer, a foreman, a project superintendent and a qualifying agent for a company (Professional Plumbing of NWF, Inc.) that installs underground water mains. His experience has included layout, design, financial administration and project management for underground utilities work. The Petitioner, by virtue of being a State Certified Plumber, has gained experience in "laying-out, fabricating, installing, inspecting, altering, repairing, or servicing fire protection systems" for purposes of qualifying for the "highest level" or scope of fire protection systems license, the Contractor I license. Although such experience is not a prerequisite to qualify for the lowest level or scope of fire protection license, the Contractor V license which the Petitioner seeks; the fact that the Department recognizes by Rule 4A-46.010, Florida Administrative Code, that the Petitioner, as a plumber, gains such experience is relevant to whether the Petitioner is qualified to sit for the Contractor V examination. The Department has conceded that a Contract I License is a "higher license" or higher or broader scope of license than that of a Contractor V, the license which the Petitioner seeks. The Department also concedes that a Contractor I, without holding a separate Contractor V license, may nonetheless perform every aspect of the work that may be performed by a Contractor V. Thus a Contractor V's license is a "lesser included" license to that of a Contractor I or a Contractor II. Similarly, it has been established that an underground utility and excavation contractor's license is a "lesser included" license to that of a Certified Plumbing Contractor, as a Certified Plumbing Contractor can perform all aspects of underground utilities and excavations that may also be performed by the holder of that "lesser" license. The minutes of the Construction Industry Licensing Board in evidence, together with the associated letter in evidence, establishes that that Agency, which is charged with the jurisdiction of regulating licensure and practice of both Certified Plumbing Contractors and underground utility and excavation contractors, interprets the latter license as being a lesser included license to that of Certified Plumbing Contractor and that a Certified Plumbing Contractor can perform all aspects of underground utility and excavation contracting. See Petitioner's Exhibits 3, 4, 36, 37, 38 and 42, in evidence. The Department's witness at hearing conceded that the Petitioner's more than 20 years of experience as a Certified Plumbing Contractor was the "equivalent of" the experience that would be gained from "working for" an underground utility contractor for four years. Given that concession, and in determining whether the Petitioner qualifies by the combination of education and experience method contained in the statute relating to qualification for the Contractor V examination, it must be determined whether the "education" he has attained is equal to that he would have gained in the "employment of" a Certified Underground Utilities Contractor." In this regard, given his acknowledged 28 years of experience, the Department acknowledged that the amount of education that the Petitioner would need to demonstrate would be minimal. The Respondent has also acknowledged that the "education" that the Petitioner must show to sit for the Contractor V examination would be the type of education the Petitioner would have gained by working for an underground utility contractor for four years. It was established that the type of education that could be expected from working for an underground utility contractor for four years would not be college education or necessarily formal classroom education but rather acquiring that body of knowledge required to install underground utilities including water mains through education on the job and through continuing education courses. Even if it were assumed that the Petitioner's Certified Plumbing Contractor's license is not at least "equal to" that of an underground utility and excavation contractor's license, which therefore would automatically qualify the Petitioner to sit for the examination, the Petitioner amply demonstrated at hearing that he had obtained the same body of knowledge, i.e., "education," at a minimum, that he would have obtained by virtue of being employed for four years by a company holding the "lesser included" license, i.e., the underground utility and excavation contractor's license. The Petitioner established that he acquired the "equivalent to" education through on-the-job training during more than 28 years in the business of installing and supervising the installation of underground utilities, as well as through attending more than 100 hours of formal classroom education in subjects that taught the skills required for the bidding, estimating, layout, design and performance of underground utilities work. The Petitioner established this education through his sworn testimony, as well as documentary evidence. He introduced into evidence, supplemented by his sworn testimony, all of the documentation of these courses within his possession and control. These continuing education courses are not graded, therefore, there could be no "transcripts." Although not specifically required by the governing statute, Chapter 633, the Petitioner demonstrated that his formal classroom education includes some 53 hours of instruction in the National Fire Protection Association Code governing fire protection contractors. He demonstrated that he has obtained formal classroom instruction in courses teaching the skills required for the performance of underground utilities work. In fact it was established that Certified Plumbing Contractors such as the Petitioner and Certified Underground Utility and Excavation Contractors, such as Lee Brown, who testified for the Petitioner, often take the same continuing education courses, in the same subject, due to the overlap in their scope of work. These courses are typically taught by industry professionals who know their subjects, rather than by local colleges. In fact, the Petitioner has more than 100 hours of classroom education on subjects including course material in the NFPA Codes, as well as technical issues relating to the installation of underground utilities.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Respondent Agency allowing the Petitioner to sit for the Contractor V examination. It is further, RECOMMENDED that if the Petitioner seeks to pursue a claim for attorney's fees and costs on the basis that the Respondent Agency's position was not substantially justified, that a proper petition within the time constraints of Section 57.111, Florida Statutes, must be filed, which has not been accomplished, since no final order has yet been entered in this matter. Thus the purported claim for attorney's fees and costs cannot be addressed at this time. DONE AND ENTERED this 20th day of December, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 20th day of December, 2002. COPIES FURNISHED: Edward M. Fleming, Esquire McDonald, Fleming, Moorhead, Ferguson Green & Smith, LLP 4300 Bayou Boulevard Suite 13 Pensacola, Florida 32503-2671 Elenita Gomez, Esquire Department of Insurance Division of Legal Services 200 East Gaines Street 612 Larson Building Tallahassee, Florida 32399-0333 Honorable Tom Gallagher State Treasurer/Insurance Commissioner Department of Insurance The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307
The Issue Whether or not Respondent's denial of Petitioner's application for certification as a licensed plumber was proper.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record 1/ compiled herein, the following relevant facts are found. During mid-April of 1981, Petitioner, David L. Mooney, filed an application to be certified to sit for the next Certified Contractors' Examination with the Respondent, Construction Industry Licensing Board. Since approximately 1969, Petitioner had been a resident of Newton, New Jersey, where he was licensed as a Master Plumber. While residing in New Jersey, Petitioner was in a private plumbing business which was fairly successful, however, due to the weather conditions in the New Jersey area, the plumbing business is primarily a seasonal business. As a result of the seasonal nature of the plumbing business in New Jersey, Petitioner's business also had cash-flow problems. Petitioner also experienced personal financial problems in connection with his adoption of a son while in New Jersey. Petitioner was forced to expend a substantial amount of money in legal fees and had to leave the State of New Jersey in order to gain the release of the adopted son. Briefly, and more specifically, evidence reveals that the adopted son had several brushes with the law, including an involvement in an armed robbery and arson of a country club. (Testimony of Petitioner.) Petitioner's application was examined by members of the Respondent, Construction Industry Licensing Board (Board), and the Board decided that it could not certify Petitioner to sit for licensure as a certified contractor due to a lack of financial responsibility. An examination of Petitioner's application for licensure to sit for the Certified Contractors' examination reveals that at the time in which he filed his application, his cash on hand amounted to $500.00 with virtually no assets and he had incurred liabilities in excess of $118,000.00. Petitioner's application reveals that there were outstanding judgments against him, tax liens, and several past due and delinquent accounts and/or bills.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Respondent deny Petitioner's application for certification as a plumbing contractor in the State of Florida. RECOMMENDED this 25th day of February, 1982, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 1982
Findings Of Fact At all material times, Respondent has been a registered plumbing contractor, holding license number RF 0049725. He was first licensed in October, 1985, and has practiced plumbing contracting continuously since that time. Respondent has not previously been disciplined. In early 1989, Respondent entered into a subcontract with A-1 Properties to provide various plumbing labor and materials in connection with a residential construction job on which A-1 Properties served as general contractor. The total price of the subcontract was $5100. In general, Respondent performed his work in a timely and competent manner. A minor problem arose involving gas lines that Respondent installed in the kitchen. When a representative of the gas company inspected them during construction, he objected to certain fittings. After giving Respondent a few days to change the fittings, the owner authorized the gas company to make the changes when Respondent failed to do so. The record does not disclose what, if anything, the gas company charged the owner for the work. However, the work was not extensive, and the owner withheld from Respondent only $165 to cover the anticipated invoice from the gas company. In the course of performing the plumbing work, Respondent purchased, at a cost of $2117.77, materials from Shamrock Plumbing. The dates of the invoices reflecting these purchases and the amounts of the invoices are: August 2, 1989- - $1066.57; August 12, 1989--$37.77; August 25, 1989--$814.86; and August 25, 1989--$198.57. Respondent never paid Shamrock Plumbing for these materials. The owner and A-1 Properties timely paid Respondent for all of his work. As a result of change orders, the price for the job increased by $1355.45 to a total of $6455.45. In August, as Respondent's work drew to a close, the owner and A-1 Properties paid Respondent $2337 as follows: August 25, 1989-- $700; August 29, 1989--$500; and August 30, 1989--$1137. These payments total $2337. In making the final payment to Respondent, the representative of A-1 Properties was aware that Shamrock Plumbing had sent to a Notice to Owner for the plumbing materials that Respondent had purchased. Except possibly for the $165, item, Respondent and the general contractor were in agreement, when the final payments were made in August, that Respondent had been paid substantially in full and that he would pay Shamrock Plumbing. When Respondent failed to pay Shamrock Plumbing, it recorded a Claim of Lien on September 28, 1989, against the real property and initiated an action to foreclose the lien. The owner was required to retain the services of an attorney to defend the foreclosure action, pay Shamrock: Plumbing's legal costs, and obtain a release of lien. In so doing, the owner expended a total of $3984.19, as follows: his attorney--$456; Shamrock Plumbing's attorney--$1410.42; Shamrock Plumbing's invoice--$2117.77. The owner paid his attorney by checks dated January 16 and July 31, 1990. The check to pay Shamrock Plumbing and its attorney was dated February 26, 1990. On March 12, 1990, Shamrock Plumbing executed a Release of Lien, which was recorded on April 10, 1990. Respondent has not since reimbursed the owner for his expenditure of $3984.19 because Respondent lacks the money. He applied the August, 1989, payments received for the present job to satisfy obligations arising out of other jobs. Respondent testified that his money problems began when he was not paid for work he performed on other jobs, but they were unrelated to the job involved in this case.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Construction Industry Licensing Board enter a final order finding Respondent guilty of violating Section 489.129(1)(h), assessing Respondent for the costs of the investigation and prosecution up to a maximum of $1000; placing Respondent on probation for two years; requiring Respondent to pay the owner $3984.19, plus interest at the legal rate, in restitution; and, if at the end of the two-year probation Respondent has failed to pay the owner in full, imposing an administrative fine of $1500 and suspending Respondent's license for one year. ENTERED this 20 day of May, 1991, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20 day of May, 1991. APPENDIX Treatment Accorded Proposed Findings of Petitioner 1-8 (first sentence): adopted or adopted in substance. 8 (remainder) : rejected as irrelevant. 9-12 (first sentence): adopted or adopted in substance. 12 (second sentence): adopted that Respondent accepted the final payments. Rejected as unnecessary that Respondent did-not protest the $165 retainage. 13: rejected as unnecessary. 14: first clause rejected as unnecessary. Second clause adopted. 15: rejected as unnecessary. 16-17 and 22: rejected as subordinate. 18-20: adopted or adopted in substance. 21: rejected as unnecessary. 23-24: adopted or adopted in substance. Treatment Accorded Proposed Findings of Respondent first page: adopted or adopted in substance. second page, first incomplete paragraph: rejected as irrelevant, unnecessary, and not finding of fact. second page, first complete paragraph: rejected as unnecessary and irrelevant. second page, second complete paragraph: rejected as unnecessary. COPIES FURNISHED: Jack McCray, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Daniel O'Brien, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32202 Attorney William S. Cummins Department of Professional Regulation 1940 North Monroe St., Suite 60 Tallahassee, FL 32399 James E. Todd, pro se 1621 Truman Rd. Orlando, FL 32807
The Issue The central issue in this case is whether Petitioner should obtain credit for the answers he gave to questions 1, 3, 4, 12, 13, 14, 17 and 19 of the June, 1990 certified plumbing contractor examination.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received, the following findings of fact are made: The Petitioner is an unsuccessful applicant for licensure to become a certified plumbing contractor. Petitioner took the examination administered in June, 1990, and timely filed written challenges to questions numbered 1, 3, 4, 12, 13, 14, 17 and 19. The examination was developed by the National Assessment Institute, a division of ASCI, for the Department of Professional Regulation, Construction Industry Licensing Board (Department). Petitioner's challenges were disallowed by the Department and the instant review was initiated by Petitioner. The challenged questions can be divided into two categories: questions 1, 3, and 4 of the exam required the applicant to review a plan view of a plumbing configuration and to draw an isometric view of the plumbing design. The second group of questions: 12, 13, 14, 17 and 19 required the applicant to answer multiple choice options based upon the Standard Plumbing Code and the illustrations related to each question. With regard to questions 1, 3, and 4 the skill tested was the applicant's ability to look at the plan view, a single dimension floor plan, and to draw the isometric view, a three dimensional plan of the piping system with elevations relative to the fixtures being depicted. As to each of these questions the applicant was to assume the following: GIVEN: Floor plan for a sanitary waste and vent system serving a typical commercial building. Assume the drawing and piping arrangement are in accordance with the Standard Plumbing Code. Draw an isometric piping diagram in the space provided on the right. Maintain the same fixture arrangement and piping configuration. Do not show pipe sizes. With regard to question 1, the Petitioner challenged the question because the isometric drawing for the floor drain would have to be lower than the other fixtures. Since the plan view only depicted one pipe, which connected the water closets and the urinals, Petitioner determined that the floor drain could not be drawn at the appropriate elevation. To correctly draw the isometric for this question Petitioner would have had to assume the question deviated from a normal construction drafting method and "hid" a pipe below the pipe serving the other fixtures. Instead of indicating the second pipe for the floor drain, Petitioner omitted it altogether since he believed only one pipe was there. Petitioner altered the piping configuration with regard to the shower for question 1 in that he tied the vent stack to the one vent through the roof instead of showing the shower with its own vent. Consequently, Petitioner's isometric drawing for question 1 was incorrect. With regard to question 3, Petitioner challenged this question since he felt his isometric drawing correctly depicted the plumbing configuration. Question 3 showed a plan view of four bathrooms utilizing a "T" shaped pipe to which the fixtures would drain. Petitioner's isometric drawing did not show traps for the lavatories to be installed. Instead, Petitioner indicated "LAVS" next to the piping configuration. Traps are required for all lavatories and should have been depicted on the isometric drawing. The Petitioner's drawing for question 3 was therefore incorrect. Petitioner's challenge to question 4 was based upon his assertion that the plan view did not depict a kitchen sink vent and that, therefore, his isometric of that plan would only need to draw the piping as shown. Additionally, Petitioner noted that the sink was not described in the schedule of fixtures listed in the legend for the examination. Petitioner's challenge to question 4 is valid because the configuration shown in the plan view would be improper and contrary to code. Consequently Petitioner's isometric, while not to code standard, conforms to the plan requested. The Department's assertion that the wall clean out should be viewed also as a vent is contrary to the way vents are depicted throughout the test and was not credible. The Petitioner's challenge to question 12 claimed that while his answer was incorrect the Department's answer was also incorrect. The most correct selection from the options offered was "D". Petitioner has substantiated this claim based upon the horizontal branch having a sufficient diameter to accommodate the four "sink" fixtures. Consequently, this question should be deleted from scoring. This question could have reasonably been calculated based upon two interpretations of the code. Accordingly, the only correct answer was "D". Question 13 related to a horizontal fixture branch for a public bathroom setting. In the diagram two back-to-back bathrooms with three water closets (tank type) and two lavatories were depicted. As drawn the Department claimed the illustration complies with the code. The Petitioner determined that the loop vent for the configuration was too small. The essence of Petitioner's claim is based upon an assertion that the developed length of the piping for fixture clearances must be considered to compute the vent size on the vertical rise. Based upon the code requirements the 2 inch vent depicted in zone "H" cannot meet standards. Consequently, the system does not comply with the code. Petitioner should receive credit for this question. Question 14 related to zone "I" which depicted a bathroom configuration. According to the Department, the system, as illustrated, complied with the code. Petitioner's response to the question found the vertical vent through the roof to be too small. The issue for this question relates to whether the floor drain should be assigned 5 drainage fixture units or 1 drainage fixture unit. The number of the fixture units dictates the pipe size. In this instance the 1 1/2 inch vent pipe is incorrect. Consequently, the Department's answer for this question was incorrect. The Petitioner's answer was more correct but was also erroneous since the size pipe through the roof was large enough. Zone "L" depicted a horizontal combination for a waste and vent system located within an area which did not allow the fixtures to be individually vented. Question 17 required the applicant to review the configuration and to determine whether the drawing was correct or incorrect. If incorrect, the options required the applicant to specify the reason the system failed to meet code. For this question the Department and the Petitioner both concluded that the system was incorrect. The reasons differed, however, as to why the depicted design failed. In this instance the system could be permitted if the upstream system were washed. The Petitioner's answer was as correct as that of the Department; consequently, Petitioner should receive credit for his answer. Petitioner's challenge to question 19 claimed that the Department's answer required the applicant to look at a separate zone ("M") to reach the answer. The review of the second zone was contrary to the general instructions according to Petitioner. Petitioner's assertion in this regard was incorrect since the zones were interrelated and reasonably had to be reviewed together. Based upon that assessment the Department's answer was the most correct.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a final order be entered granting Petitioner's challenge to the examination as to questions 4, 12, 13, 14, and 17; giving Petitioner credit for his answers to questions 4, 13, and 17, and deleting questions 12 and 14. Further, that the examination questions and answers provided at hearing be sealed and not open to public inspection. DONE AND ENTERED this 13th day of May, 1991, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 13th day of May, 1991. APPENDIX TO RECOMMENDED ORDER Rulings on the Proposed Findings of Fact submitted by the Petitioner: Petitioner did not submit proposed facts in a form to allow specific rulings as to acceptance or rejection of a stated fact. The unnumbered paragraphs consuming 10 pages contained argument, comment, and supposition in addition to factual matters related to the challenge. The paragraphs (referred to in order of their presentation) which can be accepted are as follows: 2, 4, 14, 15, 17, 18, 21 and 22. All other paragraphs contain either comment or are too nonspecific to accept in the form presented. Consequently they are rejected as argument, recitation or citation to testimony, or irrelevant. Rulings on the Proposed Findings of Fact submitted by the Respondent: Respondent also failed to present proposed findings of fact in a form to allow rulings on a convenient basis. Rulings are addressed by numbered paragraphs as to those accepted: The first sentence of paragraph 1 is accepted. The last three sentences of paragraph 1 are accepted. With regard to paragraph 2, the first sentence and the last two sentences of the paragraph are accepted. The first sentence of paragraph 3 is accepted. The first three sentences of paragraph 4 are accepted. The first three sentences of paragraph 5 are accepted. The last sentence of paragraph 7 is accepted. The first three sentences and the last sentence of paragraph 8 are accepted. The remaining portions of the proposed facts are rejected as recitation of testimony, comment, or argument. COPIES FURNISHED: Anthony S. Rachuba, Jr. TR Mechanical, Inc. 1665 Foulkrod Street Philadelphia, PA 19124 Vytas J. Urba, Staff Atty. Dept. of Professional Regulation 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792 Daniel O'Brien, Exec. Director DPR-Construction Industry Licensing Board P.O. Box 2 Jacksonville, FL 32202 Jack McRay, General Counsel Dept. of Professional Regulation 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792
