The Issue The issue is whether Petitioner’s application for certification as a plumbing inspector should be granted.1/
Findings Of Fact Respondent is the executive branch agency within the Department of Business and Professional Regulation (DBPR) charged, among other duties, with administering part XII, chapter 468, Florida Statutes, and issuing standard and provisional certification of plumbing inspectors. On March 8, 2013, Petitioner submitted an application to the Board for initial certification by examination as a plumbing inspector. The application included sections for Petitioner’s personal information, method of qualification for certification, employment history, education, background information, affidavits of work experience, and an affirmation by written declaration executed by Petitioner.5/ The Board has an application review committee (ARC) composed of code enforcement professionals. One of the requirements that the ARC had to determine was whether Petitioner had clearly demonstrated five years of experience related to plumbing in order to be approved for the examination. Such experience could have been broken down into having done plumbing, inspected plumbing, or performed plumbing plan reviews. Petitioner submitted several affidavits to establish the requisite five years of experience necessary to qualify for the plumbing inspector certification examination. The instructions in “Section VIII-Work Experience” provided: 6/ This section must be completed by an architect, engineer, contractor or building code administrator, who has personal knowledge of the applicant’s experience for the period of time listed below. Instructions: Provide employment verification for the years of experience required for qualification for certification. Attach additional copies of this page as necessary. Note: Local Government Employees- To qualify for the fee reduction local government employees must provide Work Experience showing current employment with a local government agency that is signed by the building code administrator. * * * Describe in detail the applicant’s duties, including hands-on, supervisory or management responsibilities. Please be specific when explaining the applicant’s duties and hands- on experience. Mr. Thorne, the current Longboat Key building official, has supervised Petitioner for approximately two years, the length of his employment with Longboat Key. Petitioner submitted an affidavit by Mr. Thorne to demonstrate Petitioner’s work experience. Mr. Thorne’s affidavit did not provide the specific duties and hands-on experience to reflect the required plumbing experience. Mr. Thorne did not provide any additional supportive information during his testimony. J. Kent Kimes, the president of Kimes Engineering/Southwest Florida Building Inspections, and Harry R. Fowler, the former Longboat Key building official, both provided affidavits purporting to support Petitioner’s application. Neither affidavit described in specific terms Petitioner’s experience, job duties or overall knowledge of the plumbing trade. The affidavits did not provide the necessary information to support Petitioner’s application, nor did they accurately reflect the time of their respective supervision of Petitioner. Petitioner is employed by a public entity, the City of Longboat Key. The Board has issued him several licenses including: “a standard plans examiner’s license with the endorsements of electric and mechanical and plans examiner;” and “a Florida standard inspector’s license . . . with the endorsements for building, commercial electric; 1 and 2 family dwelling inspector; mechanical inspector, which would be commercial; and residential electrical inspector.” However, the experience required for these licenses could not be used to appropriately demonstrate how much experience Petitioner had in the plumbing trade. At all times material, Robert McCormick was the Board’s Chairman, and a member of the ARC. Mr. McCormick is a master electrician, a certified building official, a certified building code administrator, a plans examiner, a plans inspector and a member of the Council of the American Building Officials. He was tendered as and accepted as an expert. Each construction trade has a specific and complex code of regulations. Inspectors in each category must ensure compliance with that trade’s regulations. Plumbing inspectors must be versed in both residential and commercial construction codes. The plumbing trade is, at minimum, concerned with water systems, drains, pipes, and gas. Both the ARC and the Board were looking for affidavits that showed specific expertise in the plumbing trade category, not just experience in a general sense. The Board denied Petitioner’s application for certification as a plumbing inspector because his application: [d]oes not demonstrate, affirmed by affidavit signed by an architect, engineer, contractor, or building code administrator that you have the required experience for the certification sought.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Building Code Administrators and Inspectors Board issue a final order denying Petitioner’s application for certification as a plumbing inspector. DONE AND ENTERED this 27th day of August, 2014, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 2014.
The Issue The basic facts are not really disputed. Petitioner has many years experience as a plumber. The law is controverted. The agency says the required experience as a contractor must be with a fire sprinkler contractor. The Petitioner argues the statute does not define "contractor," and its common meaning would include plumbing contractor. Evidence was received that the agency has long held "contractor" to be limited to fire sprinkler installation contractors, and that this is based upon the special expertise required in design and installation of these systems. The argument of the Respondent that "contractor/ contracting" as it is used in the statute generally applies to fire sprinkler contractors is more persuasive based upon the evidence. The parties have submitted posthearing Proposed Findings of Fact. A ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.
Findings Of Fact Mr. Frederick Hagen applied with the Department of Insurance, Office of the State Fire Marshal, to take the written examination for a license to engage in the business of designing and installing fire protection systems as a Contractor II, type 7, class 12, as defined by Section 633.021(5)(b), Florida Statutes. On July 8, 1985, his original application was hand- delivered back to him for failure to submit the appropriate application fee and the appropriate application form. Mr. Hagen's application was denied by the Department of Insurance, Office of the State Fire Marshal because he did not submit evidence of four years proven experience as required by Section 633.521(3), Florida Statutes. On August 8, 1985, Mr. Hagen requested a formal hearing on the denial of his application. At the hearing on November 12, 1985, Mr. Hagen submitted an original application and the appropriate fee to the Department of Insurance, Office of the State Fire Marshal. Petitioner's application was denied in accordance with long-standing agency policy because he did not submit evidence to show that he had the requisite experience as a fire sprinkler installation contractor or the educational background, or a combination thereof to be allowed to sit for the examination. (Transcript pages 16,17; Petitioner's Exhibit 1) At all times material herein, Frederick D. Hagen held a license from the Construction Industry Licensing Board and has been a plumbing contractor for over 12 years. (Transcript pages 25, 26) As a licensed plumbing contractor, he has been involved in the supervision of and actual installation of fire line stand pipes and fire sprinklers to the extent authorized by law. Petitioner submitted no evidence at the hearing of his education and experience in the design of sprinkler installations. Petitioner indicated that he considered the design of these systems as similar to design of a plumbing system, given the building codes and plans. Design of sprinkler installations is integral to the work performed by a Contractor II, type 7, class 12. Design of sprinkler installations is based upon codes plus experience received in working in the profession. Employees of these specialized contractors receive special educational training in design of systems. Experience of a plumbing contractor in reading codes and applying them in installing plumbing systems would be inadequate experience to qualify one to design a sprinkler system.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is: RECOMMENDED that Mr. Hagen's application for examination to engage in the business of fire protection systems as a Contractor II, type 7, class 12, be DENIED. DONE AND ORDERED this 10th day of December 1985, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of December 1985.
The Issue The issue is whether the Petitioner, Nelson Castillo, is entitled to be certified for a commercial pool/spa contractor’s license.
Findings Of Fact The Petitioner is an applicant for certification as a commercial pool/spa contractor. The Petitioner currently holds certification as a pool/spa servicing contractor. The Petitioner has held this certification for approximately eight years. The Petitioner, in his capacity as a certified pool/spa servicing contractor, was the subject of three administrative cases referred to the Division of Administrative Hearings. The cases were designated DOAH Case Nos. 04-2380PL, 04-2381PL, and 04-2382PL. As to all three cases, on September 20, 2004, the Petitioner executed a Stipulation (the Stipulation) that provided, in pertinent part: 3. Respondent [this Petitioner] neither admits nor denies the allegations of fact contained in the Administrative Complaints attached hereto as Exhibit “A.” * * * FINE AND COSTS: Respondent shall pay a fine in the amount of Ten Thousand and 00/100 dollars ($10,000.00) and costs in the amount of One Thousand Three Hundred Ten and 51/100 dollars ($1,310.51), for a total of Eleven Thousand Three Hundred Ten and 51/100 dollars ($11,310.51), to the Board. RESTITUTION: The Respondent shall pay restitution to Jose and Bernardina Rodriguez in the amount of Five Thousand One Hundred Seventy Five dollars ($5,175.00) and to Orestes and Lourdes Martinez in the amount of Six Thousand Five Hundred dollars ($6,500.00), in installments, as set forth below. * * * 6. EARLY TERMINATION OF PROBATION AFTER TWO (2) YEARS: After two (2) years of satisfactory probation appearances, if the Respondent pays in full all of the fine and costs described in paragraph 2 above and pays in full all of the restitution described in paragraph 3 above and furnishes satisfactory written evidence thereof to the Executive Director of the Board, then the Respondent’s probation shall terminate. * * * 12. Upon the Board’s adoption of this Stipulation, Respondent understands and agrees that this Stipulation constitutes disciplinary action within the meaning of Section 455.227(1)(f), and 489.129, Florida Statutes. [Emphasis and Italic in original.] The Stipulation was approved by the Respondent at its public meeting on November 11, 2004. Since that time, the Respondent has not taken any other administrative action against the Petitioner. Also considered at the November 2004 meeting, however, was the Petitioner’s application to become a certified commercial pool/spa contractor. The denial of the Petitioner’s application for that certification was the genesis of the instant case. The Petitioner freely, and with advice of counsel, executed and accepted the terms of the Stipulation. At the time the Stipulation was executed, the Petitioner understood the terms of the agreement. The Petitioner’s certification as a pool/spa servicing contractor is valid. The Respondent has taken no additional adverse action against the servicing certification. The Petitioner has not paid all the sums required by the stipulation. It is barely two years since the Final Order Approving Settlement Stipulation was entered. The Petitioner’s certification as a pool/spa servicing contractor was disciplined as a result of the entry of the Final Order Approving the Settlement Stipulation. The scope of work that the Petitioner may perform pursuant to his certification as a pool/spa servicing contractor differs from the scope of work authorized by the certification sought in the instant matter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board enter a Final Order that denies the Petitioner’s application for certification as a commercial pool/spa contractor. DONE AND ENTERED this 20th day of February, 2007, in Tallahassee, Leon County, Florida. S J. D. Parrish 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 20th day of February, 2007. COPIES FURNISHED: Claudel Pressa, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Warren Diener, Esquire Bared & Associates, P.A. The Atrium 1500 San Remo Avenue, Suite 248 Coral Gables, Florida 33146 G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues are whether the violations cited by the Division of Hotels and Restaurants during its inspection and re- inspection of Respondent's hotel existed, and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following facts were established by clear and convincing evidence: Parties Petitioner is the state agency responsible for regulating hotels pursuant to Part I of Chapter 509, Florida Statutes (the Act). Respondent operates the Traveler's Inn hotel on West Irlo Bronson Highway (U.S. Route 192) in Kissimmee, Florida. The Hotel The hotel is near the intersection of U.S. Route 192 and State Road 535. The hotel has approximately 125 guest rooms and is three stories in height. The record does not reflect the year that the hotel was constructed. Only the first floor and half of the second floor of the hotel are currently in use. Respondent "closed" the third floor of the hotel as a result of the hotel's low occupancy rate (less than 30 percent), which is due in large part to the post-September 11 decline in the tourism industry. The record does not reflect whether the third floor rooms are in condition to be used if there was additional demand for rooms at the hotel, nor does it reflect whether those rooms were "closed" at the time of the Division's initial inspection in August 2001, or the re-inspection in October 2001. Hotel Inspection Process Followed by the Division The Division is required to routinely inspect hotels that are subject to the Act. If violations are identified, the hotel operator is given a period of time within which to correct the violation. The correction period varies based upon the severity of the violation. The period is typically shorter for "critical" violations (those which are life-threatening or present a safety hazard) than it is for "non-critical" violations (those which do not immediately affect life safety issues and which can be fixed or corrected on a routine basis). The Division's inspectors have the authority to extend the correction period as circumstances warrant. After the expiration of the correction period, the Division re-inspects the facility to determine whether the violation has been corrected. If the violation has not been corrected and the time for doing so is not extended by the inspector, the Division initiates the administrative process to impose sanctions on the hotel's license. Violations Documented at Respondent's Hotel Based Upon the Division's Inspection and Re-inspection The Division conducted a routine investigation of Respondent's hotel on August 31, 2001. The inspection was conducted by Michael Campbell. Mr. Campbell's inspection report documented a number of violations at Respondent's hotel, including (1) the certification for the hotel's boiler had expired; (2) the hotel's fire sprinkler system had not been inspected within the prior 12 months; (3) an advertising brochure contained a false statement regarding the travel time from the hotel to Walt Disney World and Sea World; and (4) the hotel's dock and approach walkway were not safe. Based upon his report, Mr. Campbell issued a written warning to Respondent. The warning gave Respondent until October 1, 2001, to correct the cited violations. Mr. Campbell performed a re-inspection of Respondent's hotel on October 3, 2001. Based upon that re-inspection, Mr. Campbell issued another report which documented that the four violations listed above had not been corrected. The other violations cited by Mr. Campbell in his initial inspection report had been corrected prior to the re-inspection. The inspection report forms designate the sprinkler system violation and the advertising brochure violation to be "critical violations" and "of critical concern." The boiler violation is designated as a "non-critical violation." Despite the forms' characterizations of the sprinkler system and advertising brochure violations as requiring immediate correction, Mr. Campbell gave Respondent a full month to correct the violations. This suggests that Mr. Campbell did not consider the violations to pose a threat to public health, safety, or welfare, and the evidence fails to establish that any of the violations posed such a threat (although, as discussed below, the evidence does clearly and conclusively establish the violations). Mr. Campbell's October 2001 report informed Respondent that the Division would be initiating the administrative process in order to assess sanctions against Respondent's license. The Division's Administrative Complaint and this proceeding followed. Only the first three violations remain at issue; the violation based upon the dock and approach walkway is no longer at issue. The circumstances related to each of the violations still at issue are described below. Boiler Respondent has a Lochinvar boiler which supplies hot water to the hotel. The boiler is rated at 570,000 BTU per hour (BTU/hr), which represents the maximum heat input. The boiler only operates at the maximum level. Thus, whether or not the boiler is heating water to serve all 125 guest rooms or only a portion of those rooms, it is operating at 570,000 BTU/hr. The boiler was first inspected by the State Fire Marshall in May 1999. The inspection was performed by John Norman. Mr. Norman placed an identification tag on the boiler with a May 1999 date. However, he did not recommend that a certificate be issued for the boiler at that time because of an insufficient safety valve on the boiler. Respondent fixed the safety valve and Mr. Norman re- inspected the boiler in September 1999. Based upon that re- inspection, Mr. Norman recommended that a certificate be issued. The 1999 certificate was not introduced at the hearing. However, Mr. Norman testified that upon issuance, the certificate would have been valid for two years from the date that the certificate was issued, or until September 2001. Neither the certificate, nor any of Mr. Norman's inspection reports were posted in the room where the boiler was located at the time of Mr. Campbell's inspections in August 2001 and October 2001. Mr. Norman inspected the boiler again in May 2002 and a boiler certificate was issued by the State Fire Marshall on June 11, 2002. The certificate is valid until May 9, 2004. Mr. Norman characterized the boiler as being in good condition, both in September 1999, and presently. He further testified that the state of the boiler at those times indicate that it would have been in good condition during the intervening period as well, which would include the times of Mr. Campbell's inspection and re-inspection. 2. Sprinkler System The fire sprinkler system in Respondent's hotel only covers the laundry room, the maintenance room, and the boiler room. The guest rooms are not covered by the sprinkler system. The tag on the sprinkler system indicated that it was last inspected on August 3, 2000. Because the system is required to be inspected annually, the inspection expired on August 3, 2001. Accordingly, at the time Mr. Campbell conducted his initial inspection, the fire sprinkler system's inspection had expired. The system was not inspected prior to Mr. Campbell's re-inspection, and, as of the date of the hearing, it still has not been inspected. The cost to inspect the sprinkler system is between $800.00 and $1,000.00. Respondent's owner failed to have the sprinkler system inspected because he could not afford the cost of the inspection as a result of the reduction in business at the hotel post- September 11, and because of his independent interpretation of Section 509.215, Florida Statutes, which prescribes fire safety requirements for hotels. Respondent's owner relied upon the 1993 version of Section 509.215, Florida Statutes, because that was the most current version of the statute in the hotel's "library." The current version of the statute is materially the same as the 1993 version. 3. Advertising Brochure At the time of Mr. Campbell's initial inspection, Respondent had a brochure advertising its hotel which included the following statement on the front cover: "Five minutes from Walt Disney World Resort and Sea World." The brochures were available at or near the hotel's front desk. The record does not reflect whether the brochures were distributed by Respondent in any other manner, e.g., mailing to prospective guests, placed in kiosks or advertising racks around the area. Mr. Campbell obtained a brochure from the hotel's front desk during his August 2001 inspection. That brochure was not introduced at the hearing. The brochures were printed in 1996 and, at that time, the statement on the brochure may have been accurate.1 However, as a result of the growth and additional traffic congestion in the area, Respondent's hotel is no longer five minutes from Disney or Sea World. It is now approximately 18 minutes from Sea World and a similar distance time-wise from Disney. In an effort to correct the brochure in response to the August 2001 inspection report, Respondent's owner directed his staff to strike through the words "Five minutes from" on each of the brochures with a black marker. The brochure introduced by Respondent at the hearing was marked-out in that manner. Division supervisor Jo Beekman confirmed at the hearing that marking-out those words on the brochure would be sufficient to address the cited violation. Apparently, however, all of the brochures were not marked-out because Mr. Campbell obtained an unmodified brochure during his October 2001 re-inspection. That brochure was not introduced at the hearing, but Respondent's owner acknowledged that his staff may have "missed a few" brochures when they marked through the others.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Hotels and Restaurants issue a Final Order which: finds that Respondent violated: Rule 61C-1.004(12), Florida Administrative Code, because it failed to have the boiler certificate posted in the boiler room; and Section 509.215(5), Florida Statutes, and the applicable NFPA standards incorporated into the State Fire Marshall's rules because Respondent failed to have the fire sprinkler system at its hotel inspected annually; and Rule 61C-3.002(3)(a), Florida Administrative Code, because its advertising brochure contained a false statement; and imposes an administrative fine in the total amount of $750.00, as calculated above; requires Respondent to have the fire sprinkler system inspected within 15 days of the date of the Final Order, and to provide proof thereof to the Division of Hotels and Restaurants; and requires Respondent's owner and/or general manager to attend an educational program sponsored by the Hospitality Education Program within 60 days of the date of the Final Order, and to provide proof thereof to the Division of Hotels and Restaurants. DONE AND ENTERED this 22nd day of January, 2003, 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 22nd day of January, 2003.
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 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 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
