Findings Of Fact Based on the stipulations and admissions of the parties, the exhibits received in evidence, and the testimony of the witnesses at the hearing in this case, I make the following findings of fact. Findings based on stipulations and admissions of the parties The Petitioners, John Eugene Harden and Dova Cauthen, qualified for and were administered the January 1982 Electrical Contractors' Licensing Examination. After their examinations were graded and regraded, Petitioners were notified that they had not received a "Passing" score of 75 or more. The Petitioners, John Eugene Harden and Dova Cauthen, qualified for and were administered the July 1982 Electrical Contractors' Licensing Examination. After their examinations were graded and regraded, Petitioners were notified that they had not received a "Passing" score of 75 or more. Both Petitioners reside in Dade County, Florida. The Respondent Department of Professional Regulation (hereafter DPR or the "Department") is an agency of the State of Florida. The Respondent Electrical Contractors' Licensing Board (hereafter referred to as the "Board") is an agency of the State of Florida statutorily responsible, along with DPR, for licensing certified electrical contractors. The Office of the Executive Director of the Board is located at 130 North Monroe Street, Tallahassee, Florida. The business address of Petitioner Harden is Harden Electric, 311 N.E. 8th Street, Homestead, Florida 33030. The business address of Petitioner Cauthen is 959 N.E. 79th Street, Miami, Florida 33138. 8. On March 20, 1981, Rules 21GG-6.01 (2), 21GG-6.01 (3), 21GG-6.01 (4), of the Rules of the Electrical Contractors' Licensing Board, were amended. Rule 21GG-6.01 (2) altered the format of the licensing examination so that the formerly entirely open book examination became a part open book, part closed book examination. Rule 21GG-6.01 (4) raised the passing grade on the licensing examination from 70 to 75. Rule 21GG-6.01 (3) altered the technical format. On December 3, 1981, Susan Tully, counsel to the Electrical Contractors' Licensing Board, caused a change to be made in Rule 21GG-6.01 (1) (c) of the Rules of the Electrical Contractors' Licensing Board. This change was made without formal notice or informal notice to the public and without a vote of the Electrical Contractors' Licensing Board, although the change was discussed at a Board meeting. None of the procedures set forth in Section 120.54 of the Florida Statutes were followed in amending this Rule. Liz Cloud was the Bureau Chief of the Division of Elections, Bureau of Administrative Code, Department of State. The address of the Bureau is Room 1802, The Capitol Building, Tallahassee, Florida. The change in Rule 21GG-6.01 (1)(c) eliminated parts 72 A, B, C and D and indicated that the entire Fire Safety Code (and not just the aforementioned parts) would be a subject of the Electrical Contractors' Licensing Examinations. In fact, the reason for the alleged "technical change" was that the Board intended and tested examinees in the January and July 1982 Licensing Examinations on materials in parts of the Fire Safety Code in addition to those contained in 72 A, B, C and D of the Fire Safety Code. Petitioner Harden specifically requested to review his January and July 1982 Electrical Contractors' Licensing Examinations. On March 25, 1982, Petitioner Harden went to Tallahassee, Florida to review his January 1982 Licensing Examination papers, but although he requested an "examination review" he was never provided with his own examination booklet or a copy thereof. During this alleged "examination review" Mr. Harden wrote written objections to the January 1982 examination on the forms provided to him based on the master copy of the examination provided to him. On August 31, 1982, Petitioner Harden went to Tallahassee, Florida to review his July 1982 Licensing Examination papers, but although he requested an "examination review" he was never provided with his own examination booklet or a copy thereof. During this alleged "examination review" Mr. Harden wrote written objections to the July 1982 examination on the forms provided to him based on the master copy of the examination provided to him. Petitioner Cauthen specifically requested an "examination review" with respect to her January and July 1982 Licensing Examination papers. On March 17, 1982, Petitioner Cauthen went to Tallahassee, Florida to review her January 1982 Licensing Exami-nation papers, but although she requested an "examination review" she was never provided with her own examination booklet or a copy thereof. During this alleged "examination review" Ms. Cauthen wrote written objections to the January 1982 examination on the forms provided to her based on the master copy of the examination provided to her. On August, 19, 1982 Petitioner Cauthen went to Tallahassee, Florida to review her July 1982 Licensing Examination papers, but although she requested an "examination review" she was never provided with her own examination booklet or a copy thereof. During this alleged "examination review" Ms. Cauthen wrote written objections to the July 1982 examination on the forms provided to her based on the master copy of the examination provided to her. Petitioners Harden and Cauthen sought Board review of their January and July 1982 Electrical Contractors' Licensing Examinations. Petitioners were advised in July 1983 that no copies of their actual booklets exist; Petitioners were advised in October 1983 that their actual booklets were shredded. At the November 8, 1982, meeting of the Board, Ms. Ida Cameron representing DPR, presented to the Board a package of information (assembled in package form) for the Board to consider during the examination review. With regard to Question Number 71 on the afternoon portion of the July 1982 Licensing Examination, two of the four possible responses, "A" and "C" were credited. Candidates like Petitioner Cauthen who answered "B" received no credit for the question. Petitioners Harden and Cauthen have requested Chapter 120.57 hearings with respect to their January and July 1982 licensing examinations and the review, grading and agency action with respect to same. Although request for production was specifically made for said packages of information with respect to the January 1982 and July 1982 licensing examinations in February, 1983, no packages have been produced to date. DPR destroyed the Petitioners' examination booklets before the end of the two year period immediately following each of the 1982 examinations. That Section 455.217 of the Florida Statutes requires the Board "by rule" to designate areas of competency to be covered by each licensing examination. That Section 455.217 states that the Board shall "by rule specify the general areas of competency to be covered by each examination, the relative weight to be assigned in grading each area tested, and the score necessary to achieve a passing grade." That the amendment of Rule 21GG-6.01 (2) required candidates to commit to memory portions of the electrical code, accounting, law, worker's compensation rules, federal employer's tax guide, A1A General Conditions, business practices; legal and insurance requirements. In the July 1982 Electrical Contractors' Licensing Examination candidates were given one hour more time in which to take the examination than was given during the January 1982 examination. Rule 21GG-6.01 (4) was amended in conjunction with Rules 21GG-6.01 (1)(a), (2) and (3) at a board hearing in March, 1981. Rule 21GG-6.01 (4) raised the passing score on the January 1982 Electrical Contractors' Examination and the July 1982 Electrical Contractors' Examination from 70 to 75. The amendment to Rule 21GG-6.01 (4) required that electrical contractors pass the certification examination with a score of 75 percent, whereas all other construction industry licensing board contractors licensed by the Department of Professional Regulation (13 other categories) were merely required to achieve a 70 percent pass score. That Section 455.217 of the Florida Statutes provides that "The board shall make rules providing for reexamination of any applicants who have failed the examination." That DPR did not and has never provided Petitioners, their attorneys or agents with their own examination booklets for the January and July 1982 Electrical Contractors' Licensing Examinations. DPR has provided Petitioners only with copies of "master" examinations for their review. That Section 455.217 of the Florida Statutes provides that the Board shall make available an examination review procedure for applicants. That the Respondents produced Notice of Destruction of Examination Booklets and Other Examination Materials dated April 14, 1982, which allegedly evidences destruction of Petitioners' examination booklets for the January 7, 1982, Examination on April 14, 1982. That the Respondents produced Notice of Destruction of Examination Booklets and Other Examination Materials dated October 15, 1982, which allegedly evidences destruction of Petitioners' examination booklets for the July 13, 1982, Examination on October 15, 1982. The findings in paragraphs 1 through 33, immediately above, are based directly on the stipulations of the parties, most of which stipulations were memorialized at the beginning of the hearing. The findings in the following paragraphs are based primarily on testimony and exhibits, but some of them are also based in whole or in part on stipulations. In the findings which follow there are certain to be at least some repetitious findings in the course of putting matters into context and making additional findings which are related to some of the stipulated findings. I have tried to avoid all unnecessary repetition, but a certain amount is necessary for clarity and a certain amount is unavoidable due to the sheer size of the task at hand. Findings on background matters and on matters relating to more than one rule Both of the Petitioners in this rule challenge proceeding are individuals who have applied to the Electrical Contractors' Licensing Board for licensure as certified electrical contractors. Both of them have been approved to sit for the licensure examination. Petitioner Harden took the Board's licensure examination on each of the following occasions: July 1981, January 1982, July 1982, and January 1983. The Board has not given him a passing grade on any of those' four examinations. Petitioner Cauthen took the Board's licensure examination on two occasions: January 1982 and July 1982. The Board has not given her a passing grade on either of those two examinations. The grade notifications received by these Petitioners show, inter alia, that Petitioner Cauthen received a grade of 73 on the July 1982 examination. Both of these Petitioners have presently pending formal proceedings under Section 120.57(1), Florida Statutes, in which they are challenging various matters related to the preparation of, administration of, scoring of, and inherent validity of the Board's January 1982 and July 1982 licensure examinations. The Electrical Contractors' Licensing Board certification examination is different from a master electrician examination. However, the two examinations are in many ways similar because of the overlap in the nature of the subject matter to be tested on both examinations. The passing score or cut score on the local master electrician examination administered by Dade County is 70 percent. Most of the questions on that examination are about the National Electric Code. Part of the Dade County master electrician exam is closed book. Prior to 1972, persons wishing to engage in electrical contracting in the state of Florida were required to be licensed by the local governments in the areas in which they sought to operate. Since 1972, persons wishing to engage in electrical contracting in the state of Florida must be licensed by a unit of local government or by the Electrical Contractors' Licensing Board. Persons who are licensed by the Electrical Contractors' Licensing Board are known as certified electrical contractors. A certified electrical contractor can engage in electrical contracting anywhere in the state of Florida without local licensure. Persons who are licensed by one or more local governments (typically a municipality or a county) are known as registered electrical contractors. Registered electrical con-tractors are licensed to engage in electrical contracting only in the geographic areas encompassed by the boundaries of the local government entities that issued their local licenses. There is, however, a certain amount of reciprocity from one local government to another. Certification as a state certified electrical contractor does not authorize the electrical contractor to work as an electrician, although a certified electrical contractor can pull permits. A person does not have to be a licensed electrician in order to become a state certified electrical contractor, although many electrical contractors are also licensed as journeyman or master electricians. Candidates for the electrical contractor licensure examination have a great $ variety in the nature and scope of their background and experience. This variety in background and experience is among the reasons which cause testing for minimum competence as an electrical contractor not to be an exact science. As between certification and registration, certification by the Electrical Contractors' Licensing Board is not a major factor in the ability to compete for business. A person who has a statewide certification can save some money by avoiding the expense of obtaining local competency cards, but as a general rule a registered electrical contractor can work just about anywhere in the state due to reciprocity. Especially, a person who has passed a Block master electrician examination or a Block local electrical contractor's examination can work just about anywhere in the state because most counties in Florida accept the Block examination. Registered electrical contractors regularly compete for business with certified electrical contractors. For example, Petitioner Cauthen's company is presently licensed in Monroe, Dade, and Broward counties, where it does a considerable amount of business. Petitioner Cauthen's company bids on lots of contracts and submits bids in competition with both registered and certified electrical contractors. Thus, the company is already in competition with certified electrical contractors. Similarly Board Member Isaacs, whose certified company does 90 percent of its work in Duval County, has regular competition from registered electrical contractors. Board Member Isaacs competes with approximately 250 electrical contractors. Of that 250, approximately 175 are registered and the others are certified. A much bigger factor in competition than the registration versus certification issue is the cost of doing business in more than one area or the cost of doing business at a location that is distant from one's primary base of operations. Only about fifty electrical contracting firms regularly compete for business over the entire state of Florida. Accordingly, a restriction on the number of persons licensed by the Board as certified electrical contractors would have minimal, if any, limitation on the competition faced by those members of the Board who are certified electrical contractors. The Electrical Contractors' Licensing Board admin-istered its own certification licensure examination from 1972 through 1980. During that period of time the Board administered the examination a total of twenty-two times. During those twenty-two sessions of Board administered examinations, a total of 824 candidates sat for the examination, of which 392 were successful. Although the percentage of candidates who were successful on a particular Board administered examination ranged from a low of 20.7 percent to a high of 78.8 percent, the average passing rate of all candidates on all twenty- two of the Board administered examinations was 47.57 percent. (By way of comparison, it is interesting to note that the percentage of candidates who are successful on the Block master electrician examination is between 30 percent and 35 percent of those who take the examination.) Further, on fifteen of the twenty-two occasions on which the Board administered the examination, the percentage of candidates who were successful was 50 percent or less. In 1979, the regulation of professions and occupations was reorganized. The Department of Professional Regulation (the Department) was created as an umbrella agency over numerous boards, including the Electrical Contractors' Licensing Board and the Construction Industry Licensing Board. The responsibility for examining applicants, which in the case of the Electrical Contractors' Licensing Board had been handled by the Board members themselves, was taken over by the Office of Examination Services (O.E.S.). Toward the end of 1980 and the beginning of 1981, O.E.S. did not like what the Board was doing and the Board did not like what O.E.S. was doing. There was a general lack of trust between the two entities, there was poor communication between the two entities, and the relationship between them at that time might best be described as estranged. Although both entities made efforts at cooperation with the other, such efforts were not always effective or well received. As a result of the poor communication between the two entities, certain personal concerns over Board actions by individuals within the O.E.S. were never communicated to the Board (and therefore could not be answered. 4/ The first examination administered by the O.E.S. was in January 1981. Of the fifty candidates who took the January 1981 examination, forty-six were successful. This was a passing rate of 92 percent. In view of the Board's experience when it was administering its own examination, the Board was understandably surprised and concerned when the percentage of candidates passing the first O.E.S. administered examination was almost twice the average passing percentage on the Board administered examinations. The Board had no evidence that the overall qualifications or capabilities of the applicants examined by O.E.S. at the January 1981 examination were any higher than the capabilities of those examined previously. To the contrary, a review of their qualifications based on the information in their applications indicated that their qualifications were substantially the same as those of previous candidates tested by the Board. Also, the admission standards for the January 1981 examination were the same as those for prior examinations. The Board concerns about the O.E.S. administered January 1981 examination included the following matters, among others, memorialized at a Board meeting discussing the examinations: The candidates had been allowed to take any reference material desired into the exami- nation. Previously the Board had allowed only reference books listed as part of the application form. There was a very high pass rate in compar- ison to all past examinations. There appeared to be too few calculation questions. The questions had been placed on the paper in sequence with the reference book materials. There was a possibility that notes were taken into the examination which would have given advantage to the candidates. The Board's Examination Committee had been under the assumption that the entire examination would be presented for review of the questions. Instead the only questions presented were ones questionable under Department criteria for measuring competency. It was explained, from past experience, that persons conducting the seminars for exams had obtained the entire exam content from persons taking the examination in the past. It had been done with a camera which was taken into the examination. The Board, when administer- ing the examination, had been very strict on what was used in performing the examination. In the last exam the security was very poor. The Board felt there were so few calculation questions on the O.E.S. administered examination in January of 1981 that the examination was not a proper or sufficient examination. This was due at least in part to the fact that O.E.S. had difficulty covering all areas of the examination with the desired number of questions because the O.E.S. bank of questions was very limited at that time. Previous Board examinations were open book with certain reference material allowed. When the Office of Examination Services took over the administration of the January 1981 exams, it sent to the candidates a form letter adapted from the Construction Industry Licensing Board. This form letter instructed the candidates that they would be able to bring into the examination any notes and other materials desired. This was contrary to the past practice of the Board and contrary to the Board's wishes. The Board was very frustrated and concerned about the circumstances which led up to the January 1981 examination because the O.E.S. had refused to allow the Board to have any input into the examination and the Board thought the O.E.S. had come up with an apprentice level examination. In the Board's opinion, the January 1981 examination prepared by O.E.S. clearly tested at a level less than that of minimum competency. And, although O.E.S. did not agree with the Board that the January examination was invalid, O.E.S. did agree that the examination was a lot easier than they had thought it would be. The Electrical Contractors' Licensing Board did not conduct any formal studies or formal analysis prior to making the 1981 amendments to Rule 21GG-6.01 changing the format of the examination and the cut score. However, the Board's Rules Committee did a great deal of work on the matter and the matter was discussed extensively at Board meetings. In this regard it is important to keep in mind that the Board members (with the exception of the two lay members) were all experienced practicing electrical contractors who were familiar with the requirements of day-to-day electrical contracting. The Board's decision to change part of the examination to closed book was due to a concern that people with no electrical knowledge could become licensed if the examination was all open book and had a low percentage of technical questions. The Board felt that more than half of the examination should be technical questions. The closed book National Electrical Code questions were for the purpose of testing what a person with experience in the field of electrical contracting should know about everyday matters. The primary, if not the sole, motivation for the Board's 1981 amendments to Rule 21GG-6.01 was the Board's concern about the quality of the O.E.S. administered examination and the Board's feeling that, due to its estranged relationship with O.E.S., the only vehicle through which it could effectively influence the quality of future examinations was through rule- making. Those amendments were not motivated by any desire on the part of the Board to restrict competition in the field of electrical contracting. During the past few years the job requirements of an electrical contractor have remained substantially the same. Block and Associates (hereinafter "Block") is a company based in Gainesville, Florida, that writes licensure examinations for contractors in various trades. Block writes such examinations for cities, counties, and states. Block has prepared electrical contracting licensure examinations for the states of Florida, Georgia, and Oklahoma, as well as for St. Johns County, Florida. Block prepares licensure examinations for just about anything that involves electricity, including such things as electrical contracting, electrical journeyman, electrical-master, low voltage, elevator, burglar alarm and fire alarm Block prepares master electrician examinations for over one hundred governmental entities. The Block electrical master exams and the Block electrical contractor exams use some of the same questions. Subsequent to the 1982 examinations which form the gravamen of these Petitioners' related proceedings under Section 120.57, Florida Statutes, the ECLB has contracted with Block and Associates to prepare the Board's certification licensure examination. The Board has never said anything to Block about wanting to achieve any particular passing rate or wanting to have any particular percentage of the candidates taking the examination achieve a passing score. The Board has never interfered with Block's autonomy in the preparation of the electrical contractor exam. All of Block's electrical contractor examinations include business questions. It is important to test for business skills because an electrical contractor who gets into business trouble may start cutting corners and cutting corners is a hazard to the public. Some of Block's electrical contractor examinations also have specific sections on safety. Block always does a post-administration statistical analysis of the examinations questions it uses. The reason for this is to find out if anything is wrong with the questions; in other words, to determine whether the questions are valid. The computer program used by Block to check the validity of its tests was prepared for Block by a professor in the College of Education at the University of Florida. Block uses a computer to conduct a validity analysis of each test it administers. Findings regarding Rule 21GG- 6.01(1)(c) of the Electrical Contractors' Licensing Board Rule 21GG-6.01(1)(c) of the Electrical Contractors' Licensing Board reads as follows (with the portion challenged by the Petitioners underscored): The areas of competency to be covered by the certification examination shall be as follows: (a) *** (c) Safety, which shall include but not be limited to, OSHA regulations, life safety codes, and the Fire Safety Code (NFPA). Prior to the December 1981 amendment which is challenged here, Rule 2100-6.01(1)(c) read as follows: The areas of competency to be covered by the certification examination shall be as follows: (a) *** (c) Safety, which shall include but not be limited to, OSHA regulations, life safety codes, and the fire safety code (NFPA 72A, B, C and D). The Board's purpose in amending the rule to delete the reference to "72A, B, C and D" was to make it clear to candidates for examination that the Board' intended to include in the safety portion of its examinations questions from portions of Volume Seven of the NFPA other than Chapters 72 A, B, C, and D of that volume. Volume Seven of the NFPA contains quite a bit of material in addition to the material included in Chapters 72 A, B, C, and D of that volume. In view of the modifying phrase "shall include but not be limited to," the amendment to delete the reference to Chapters 72 A, B, C and D was not a necessary prerequisite to the use of examination questions based on other portions of Volume Seven of the NFPA. The Board could ask the same examination questions before and after the amendment. Several weeks before each examination, the Department of Professional Regulation sent all candidates for examination, including these Petitioners, a notice to appear for the examination. The notice to appear included a list of reference books on which the examination was to be based. That list of reference books contained a specific reference to Volume Seven of the NFPA. All sixteen volumes which comprise the entire NFPA were not listed as reference books. Neither of these Petitioners demonstrated that he or she was genuinely confused or misdirected by the amendment to Rule 21GG-6.01(1)(c). Neither Petitioner contended he or she had studied all sixteen volumes of the NFPA. Instead, both Petitioners studied from the books on the reference list. Neither Petitioner has an application for the examination pending; neither claims an intention to take the examination again. Findings regarding Rule 21GG- 6.01(1), (2), (3), and (4) of the Electrical Contractors' Licensing Board At the time of the examinations which are the subject of these Petitioners' related cases under Section 120.57, Florida Statutes, Rule 21GG- 6.01(1), (2), (3), and (4) of the Electrical Contractors' Licensing Board read as follows, in pertinent part: The areas of competency to be covered by the certification examination shall be as follows: Technical, which shall include, but not be limited to, electrical calculations, estimating, designs, and electrical schematics; and which shall be divided into two (2) separate areas, one containing electrical calculations, the other containing Code-related questions not requiring calculations. General business, which shall include but not be limited to, problems relating to accounting, law, insurance, workers' compen- sation and social security; The format of the examination shall be as follows: The portions of the examination con- taining the electrical calculations and $ safety questions shall be open book. The applicant is responsible for bringing and may.. use during these portions the applicable code books, reference materials as approved by the Board, and noiseless mechanical or non- mechanical instruments he wishes to use. The portions of the examination con- taining the noncalculation technical questions and all business questions shall be closed-book. The applicant will not be permitted to use the reference materials listed in 2(a) or any other reference materials. Security measures as set forth by the Department shall be followed during both portions of the examination. The relative grading weight to be assigned to each area of competency shall be approximately as follows: Technical - 60 percent Electrical Calculations-40 percent of Test Code-related questions-20 percent of Test General business - 30 percent Safety - 10 percent An applicant shall be required to achieve a score of a general average of not less than seventy-five percent (75 percent) in order to pass the examination and be certified for licensure. There shall not be a practical or clinical examination. The language quoted above is the language of the relevant portions of the rule as it read after the March 1981 amendments to the rule. The principal amendments in March of 1981 may be summarized as follows: (1) changes which divided technical questions on the examination into two separate areas, (2) changes which made part of the examination open book and part closed book [it was previously all open book, and (3) a change in the minimum passing score from 70 percent to 75 percent. These Petitioners challenge the validity of all three of the principal amendments. As originally proposed, the March 1981 amendments to subsection (2)(a) of Rule 21GG-6.01 would have permitted a candidate to bring "any notes" to the open book portion of the examination. During the adoption process the words "and any notes" were deleted from the amendment by the Board. The words "and any notes" did not appear in Rule 21GG-6.01 prior to the 1981 amendments. Nor was it the practice of the Board prior to 1981 to permit candidates for examination to take any notes into the examination when it was administered by the Board. Findings regarding examination content and relative grading weights In November of 1983 the Electrical Contractors' Licensing Board again amended Rule 21GG-6.01(3) to change the relative grading weights of the areas of competency to be tested. After November of 1983 the relative grading weights of the areas of competency were as follows: Technical increased from 60 percent to 65 percent; electrical calculations increased from 40 percent to 45 percent; code related questions remained 20 percent of the examination; general business was decreased from 30 percent to 25 percent of the examination; and safety remained 10 percent of the examination. 5/ The licensing examination given by the Board has historically contained materials testing knowledge of electrical work and also materials testing the business qualifications of the applicants. Since the inception of the Board's licensing exam, the electrical work portions have contained electrical calculations. Throughout the time the Board has been administering licensure examinations for certification, the percentages of the examination devoted to particular subject areas have been based upon the Board's belief as to the appropriate levels of knowledge needed by a certified electrical contractor. The weighting of the examination was equitable when it was weighted 60 percent technical, 30 percent business, and 10 percent safety, and it is still equitable now that it is weighted 65 percent technical, 25 percent business, and 10 percent safety. The Board changed to the current percentages at the suggestion of Block and Associates. The Board's examination has had similar ratios for a long time, at least as far back as 1971. The proportions of the examination devoted to each particular subject matter did not change due to the March 1981 amendments. With the exception of the January 1981 examination put together by O.E.S., electrical calculations had historically been 40 percent of the test. Since the Board felt this percentage should be maintained, and since it was necessary to divide those calculations from the other portion of the technical section (since one would be tested in the closed book portion and the other in the open book portion), the division of the technical part of the exam was set out in the rule. On an electrical contractor licensure examination it is appropriate to include in the area of "technical" questions, questions dealing with the following subjects: electrical calculations, parts of estimating, and designs and electrical schematics. In the "business" portion of an electrical contractor examination, it is appropriate to include questions dealing with the following: accounting, worker compensation, and social security. Findings regarding closed book versus open book examinations Local licensing examinations had, in 1981, included a closed book portion. Local licensing examinations and state licensing examinations given in other states still include such a closed book portion. The basic Block examination has always included a closed book portion. Closed book examinations are not all that unusual in occupational and professional licensure testing. The CPA an Nursing examinations are closed book. Also, virtually all of the electrical examinations administered by Block and Associates include a closed book portion. The advantage of a closed book examination technique is that it is easier to identify the candidates who have had practical experience in the subject matter being tested. A closed book examination is a better test for field experience and for general knowledge of the subject matter being tested. Certain questions known as "anchor" questions was given both in the open book examination before the format change and in the closed book section after the format changed. The relative performance by candidates on the same questions in the two formats shows the format change not to have prejudiced the candidates. Further, an examination analysis of the results of the closed book portions of the ECLB examinations reveals that, based on candidate performance, the closed book portion of the examinations was easier than the open book portion. This also shows that the format change did not prejudice the candidates. Findings regarding "cut scores" From 1972 until the rule changes in 1981, the minimum passing score, or "cut score," set by the Board for the certification licensure examination was 70 percent. Cut scores of both 70 percent and 75 percent are very common cut scores for licensure examinations in the fields of electrical contracting, journeyman electrician, and master electrician, as well as licensure examinations in other occupations and professions. Many local licensure examinations have a 75 percent cut score. Standing alone, the cut score to be applied to a future examination is somewhat lacking in specific significance. A cut score must be considered in relation to the content of the examination to which it is to be applied. All of the testing experts who testified at the hearing agreed that setting an examination cub score is an inherently arbitrary decision. In the final analysis it is a judgment call that cannot be made with scientific exactitude and is unavoidably arbitrary to a certain extent. As explained by one of the Petitioners' testing experts, even though statistical methodology is available for the determination of cut scores, to a large extent the cut score is a random decision, the validity of which can be assessed only in relationship to the specific testing instrument to which it is applied. For example, during the course of Block's preparation of its first licensure examination in 1958 for the City of Ormond Beach, when it came time to decide what cut score to use, the five experts who were preparing the examination talked it over and decided that 75 percent was the equivalent' of a good. "C" when compared to academic grades, and they decided to use 75 percent as their cut score. It is not possible to be much more scientific or precise than that in setting cut scores, especially when one has a group of candidates of varied experience and background taking the examination. A skilled test preparer can construct an examination of equal validity within a range of cut scores from 65 percent to 80 percent if the test preparer knows at the time of constructing the examination what the cut score will be. With any cut score in that range, a skilled test preparer can raise or lower the percentage of candidates who will actually pass the examination by careful selection of the questions to be used on the examination. By using easy questions, the person preparing the examination can insure that more people will pass a test with a high cut score. Similarly, by using hard questions, the person preparing the examination can insure that fewer people will pass an examination with a low cut score. On some standardized licensure examinations the cut score is determined after the examination results are examined. In other words, the examination results are "curved" based on the performance of the group of candidates who take a particular session of the examination and the actual cut score is determined in relationship to the raw scores achieved by each particular group of candidates. This flexible method of setting cut scores seems to work well on standardized examinations which are administered to large numbers of candidates, but it is questionable whether it would work very well with small groups of candidates. The Board's examinations have historically been administered to small groups of candidates. Findings regarding the effects of changes on testing instruments. In order for a licensure examination to accomplish the purpose for which it is administered, it should, of course, be valid and reliable. Several of the Petitioners' expert witnesses described what might be characterized as the best way to make changes to an examination or as the ideal way to make changes to an examination. Nevertheless, the manner in which the Electrical Contractors' Licensing Board went about making the changes to the examination which were incorporated in the March 1981 rule changes was a reasonable and logical response to the circumstances faced by the Board. It was perhaps not the best way to have resolved matters, but it was a reasonable response. The Board's action in this regard was not arbitrary or capricious. Even the Petitioners' most persuasive expert in the field of testing conceded that if the content experts (in this case the Board members) felt that given a specific content domain and given a specific item bank the testing instrument measured less than minimum competency, a logical response would be to raise the cut score. Another logical reaction to that situation would be to change a portion of the examination from open book to closed book. Both actions would be reasonable and logical responses to that type of problem. Where there has been a modification in the format of a testing instrument, an accepted methodology for analysis of the effects of format modification is the use of repetitive questions from prior testing instruments. These repetitive questions are known as "anchor" questions. If a statistically significant deviation in performance on the anchor questions is demonstrated, the format modification requires further analysis through other statistical tools. However, if an analysis of the anchor questions shows inconclusive or mixed results on the anchor questions (such as equal or improved candidate performance on those questions), it may then be concluded that the format change is not significant to candidate performance and may be an appropriate format change relative to the profession or occupation being examined. Content validity is the most practical' measure of the validity of a licensure examination. The content validity of an examination depends on the extent to which the questions on an examination may be accepted as representative of performance within a specifically defined content domain of which the examination instrument is a sample. Content validation would be the best way to determine the validity of the examinations which were administered in 1982 pursuant to the March 1981 rule amendments. One method of establishing content validity is to have a group of experts identify the domains of knowledge that are applicable to the profession or occupation being tested. The establishment of content validity relies heavily on the opinions and judgments of people who are experts in the relevant profession or occupation. Expert judgment plays a integral part in developing the definition of the content domain to be tested. To the extent that the content domain of Boar examinations was established by the March 1981 amendments to Rule 21GG-6.01(3), the content domain was established on the basis of the expert judgment of persons who were experts in the field of electrical contracting, namely, the members of the Electrical Contractors' Licensing Board. The relative grading weights established in the 1981 amendments to Rule 21GG-6.01(3) have at least a possible correlation to electrical contractor competence. In fact, the persuasive expert testimony establishes that those relative grading weights did bear a reasonable relationship to electrical contractor competence. The current slightly different relative grading weights also bear a reasonable relationship to electrical contractor competence even though there has been no recent change in the nature of the responsibilities of electrical contractors. In this regard it must be remembered that testing is not an exact science and no test for minimum competency can ever be expected to be an exact model of actual work experience. The best that can be expected is a reasonable model. There are various accepted methodologies for the creation of standardized examinations, adherence to which tends to enhance the likelihood that the examination instrument finally produced will be valid and reliable. However, adherence to those accepted procedures is not a necessary prerequisite to creation of a valid and reliable examination. This is particularly true when one is going to be testing small groups of people with varied backgrounds instead of the massive groups of people with similar backgrounds for whom standardized tests are more typically designed. In the final analysis the only practical and reliable measure of the validity of an examination is by statistical analysis of the examination after it has been administered. Given the nature of the circumstances faced by the Board at the time of the March 1981 amendments to the examination format and cut score, given the nature of the pool of candidates to be examined, given the nature of the changes contemplated by the Board, and given the very nature of the process of testing for minimum competency--which involves perhaps as much art as it does science-- there is no study or data which would have been particularly useful to the Board in helping to determine exactly what the effect of their changes would be. Such effects can only be determined or measured with any degree of accuracy after the administration of an examination that incorporated the changes. Following the administration of such an examination, it is possible to perform a statistical analysis of all questions used on the examination and to eliminate or give credit for any questions which are shown by statistical analysis to be invalid or unreliable. This is precisely the process that is used by Block in the validation of their examinations and is an accepted testing procedure. It would have served no useful purpose to have conducted a trial run of an examination using licensed certified electrical contractors as a test group for the new examination format. First, it would be virtually impossible to try to put together an accurate cross-section of certified electrical contractors to use as a test group. Second, one would expect them all to pass the examination, so when they did so nothing of value would have been learned. Finally, the administration of such a trial run would risk the possibility of compromising examination question security. One aspect of accepted methodology for the preparation of standardized examinations is the definition of the content domain of the examination, i.e., a determination of what knowledge is essential to demonstrate that the candidates for licensure are minimally competent. This aspect of examination preparation is often accomplished by performing a formal job analysis, which is, in essence, a study of all of the usual tasks performed by a person engaged in the occupation or profession to be tested, including an evaluation of the relative importance of each of those tasks to minimum competence. The content domain can also be defined on the basis of the judgment of a group of experts in the occupation or profession to be tested. With the exception of the lay members who were added in recent years, all of the members of the Electrical Contractors' Licensing Board are, and have been, persons certified to engage in electrical contracting in the state of Florida and actively engaged in the electrical contracting business. Therefore, at all relevant times all of the professional members of the Board had extensive personal knowledge of what was involved in the practice of electrical contracting, which personal knowledge was as useful in defining content domain as would have been a formal job analysis. (In this regard it is important to note that even with the addition of lay members to the Board in recent years, the experienced professional members have continued to constitute a substantial majority of the Board.) Findings regarding Rule 21GG-6.0 of the Electrical Contractors' Licensing Board Rule 21GG-6.03 of the Electrical Contractors' Licensing Board reads as follows: An examinee is entitled to review his examination questions, answers, papers, grades and grading key used in the certification examination; however, no applicant may copy any materials provided for his review. Such review shall be conducted during regular business hours, in the presence of a representative of the Board at the Board's official headquarters. If, following the review of his exami- nation, an examinee believes that an error was made in the grading of his examination, or in the evaluation of his answers, he may request the Board to review his examination. Requests for Board review must be in writing, state with specificity the reason why review is requested, and be received within thirty (30) days after the examinee received notice that he failed the examination. (3) Upon receipt of a request for Board review, the examination shall be reviewed by the Board at the next regularly scheduled Board meeting. If it is found that an error was made, the grade received by the examinee may be adjusted to reflect the correction. The examinee shall be notified of the final decision. The Petitioners' only challenge to Rule 21GG-6.03 is predicated upon their concern that it may be misapplied to them by the Board. Findings regarding Rule 21-11.11(3) of the Department of Professional Regulation as it existed prior to the October 1982 amendments Prior to the October 1982 amendments, Rule 21-11.11(3) of the Department of Professional Regulation read as follows: (3) Examination grade reviews shall be conducted at a site designated by the Department. The candidate and his/her attorney or other qualified representative shall be allowed to attend the examination grade review. A candidate may attend only one review per examination administration. The above quoted version of the rule was in effect at the time of the Petitioners' reviews of their January and July 1982 examinations. Findings regarding Rule 21-11.11(3) of the Department of Professional Regulation, as amended in October of 198 Rule 21-11.11(3) of the Department of Professional Regulation, as amended in October of 1982, reads as follows, in pertinent part: A candidate taking a Department exam- nation may request and receive an appointment for review until such times as the exam- ination records are destroyed in accordance with Chapters 455, 119 and 267, Florida Statutes. However, unless otherwise provided by a rule of the appropriate Board within the Department, candidates may review their exam- ination for the purpose of filing objections to the examination for the Board's consideration under the following conditions and time frame: Within thirty (30) days of the date of the grade notification letter the candidate shall notify the Department of his/her desir to review the examination for the purpose of filing objections for consideration. Such review shall have been completed within the next thirty (30) days after the first thirty (30) days defined in (a) above. At the examination review, the candi- date shall be permitted to record on forms provided by the Department any and all objections to the examination the candidate desires the appropriate Board to review. Such forms shall remain in the custody of the Office of Examination Services for presen- tation to the appropriate Board at the next available Board meeting as an official agenda item. The candidate shall not copy" questions from the test booklet. The candidate may write on a separate paper in the presence of the Office of Examination Services employee, any objection or question he/she has to the written examination. The candidate shall leave the written objections and questions with the Office of Examination Services employee when he/she leaves the review room but she/she shall be permitted to leave with a form listing the question numbers he/she finds to be controversial. In the instance of a written exami- nation, all objections will be presented to the appropriate Board for consideration. Upon completion of the Board's review of written examination items the Department shall notify the reviewing candidate of the Board's decision. If the Board does not concur with the candidate's objections then the candidate will be notified in writing of this and the thirty (30) day appeal time per- iod shall begin to run from the date of this notice. Findings regarding Rule 21- 11.11(13) of the Department of Professional Regulation (later renumbered as Rule 21-11.11(3)(1)j Rule 21-11.11(13) of the Department of Professional Regulation, which was later renumbered as Rule 21-11.11(3)(1), reads as follows: If the consultant finds that the original grade was not rendered in accordance with the grading criteria, then he/she twill regrade that portion, or the entire examination, whichever is appropriate, pursuant to appli- cable statutes and rules. If it is not possible to regrade the examination, the candidate will be allowed to retake the examination at no charge. It is clear from the text of Rule 21-11.11(3)(j) that the language of Rule 21-11.11(3)(1) quoted immediately above is intended to apply only to practical examinations. It does not purport to apply to written examinations. These Petitioners took only written examinations, they have not taken any practical examinations. Findings regarding Rule 21-11.14 of the Department of Professional Regulation Rule 21-11.14 of the Department of Professional Regulation reads as follows, in pertinent part: Unless otherwise provided by a rule of the appropriate board within the Department, Security and Monitoring procedures shall be as follows: (10) Disposition of Test Booklets. Secured processing of Answer Sheets Test booklets for the state devel- oped examinations shall be disposed of and filed in accordance with the following procedure: 1. Ten copies of the examination book- lets shall be retained for ninety (90) days. This procedure shall insure that there are adequate copies of the booklets available for the board to review in their review of preliminary analysis of the examination and review sessions if review responsibilities are retained by the board. After the above defined ninety (90) day period the retention schedule shall change from ten copies to four copies. In the event any irregularity occurs during the examination with any state developed booklet, it shall be the examination supervisor's responsibility to prepare a detailed report of such irregularity and to retain the booklet in question in the secured files for a period of ninety (90) days. Destruction of examination booklets and related materials described in B.2.b., above: When in accordance with procedure, it is appropriate to destroy test booklets, it shall be the Archives's responsibility to schedule such destruction. In all instances there shall be evidenced in writing by the examination supervisor and a witness on a form which shall evidence the date of destruction and the official in charge of such destruction and a witness. When examination booklets are being prepared by the Department of Professional Regulation prior to an examination, the booklets are carefully inspected to make sure that all of the booklets are identical. Following that inspection the booklets are sealed and stored in a secure place in order to insure, among other things, that no changes are made to any of the examination booklets before they are handed out to the candidates. After an examination is given, the Department of Professional Regulation retrieves all of the examination booklets, including all booklets that were used by all of the candidates, and retains them in a secure place until the excess booklets can be destroyed. The examination supervisor selects the booklets which are to be retained from among the booklets that were not handed out to the candidates at the examination. In the normal course of events all of the examination booklets that were actually handled by the candidates at the examination are destroyed within a very few months of the date of the examination. With the exception of the examination booklet of one other candidate (which exception is not relevant to the disposition of this rule challenge proceeding), all of the examination booklets which were handed out to candidates during the examinations taken by these two Petitioners were destroyed approximately 90 days after each of the examinations. When such destruction took place, the Department retained copies of the examination booklets which had not been used by any candidate, which copies were identical to the copies that had been handed out to the candidates during the examination. As part of the examination instructions, all candidates for examination are advised not toe write anything in their examination booklets because all of the booklets used by the candidates will be shredded. They are specifically told to do all of their computations on sheets of work paper that are provided to them at the examination. All candidates are specifically told that the only things they turn in that will be saved are their answer sheets and their sheets of work paper. Findings regarding "unwritten" and "unpublished" rules of the Electrical Contractors' Licensing Board. The findings of fact immediately below relate to the eight "unwritten" and "unpublished" alleged rules of the Electrical Contractors' Licensing Board which are described in subparagraphs (F), (O), (P), (V), (X), (Y), (Z), and (FF) at pages 1 through 5 of the Petition. (The descriptions of these alleged rules are quoted at pages 2 through 6 of this Final Order.) One of these "unpublished" rules is alleged to be a rule to the effect that the Board requires more than minimum competency in order for a candidate to receive state certification and licensure as an electrical contractor. The other seven "unwritten" or "unpublished" rules of the Electrical Contractors' Licensing Board alleged in the Petition are all related in one way or another to the Board's alleged free form actions in the course of its review of the two examinations which have been challenged by these Petitioners in related proceedings under Section 120.57(1), Florida Statutes. None of the evidence regarding these matters proved the existence of an agency statement of general applicability purporting in and of itself to have the direct and consistent effect of law. For reasons which are explained in the Conclusions of Law portion of this Final Order, the evidence is insufficient to establish that the Electrical Contractors' Licensing Board has any "unwritten" or unpublished5? rules such as those described in subparagraphs (F), (O), (P), (V), (X), (Y), (Z), and (FF) of the Petition. 6/ Findings regarding "unwritten" and "unpublished" rules of the Department of Professional Regulation The findings of fact immediately below relate to the six "unwritten" and "unpublished" alleged rules of the Department of Professional Regulation which are described in subparagraphs (G), (J), (1), (L), (Q), and (R) at pages 1 through 5 of the Petition. The descriptions of these alleged rules are quoted at pages 2 through 6 of this Final Order.) These six "unwritten" or "unpublished" alleged rules of the Department of Professional Regulation are all related in one way or another to actions of functionaries of the Department in the course of performing the Department's role in the administration and review of the two examinations which have been challenged by these Petitioners in related proceedings under Section 120.57(1), Florida Statutes. None of the evidence regarding these matters proved the existence of an agency statement of general applicability purporting in and of itself to have the direct and consistent effect of law. For reasons which are explained in the Conclusions of Law portion of this Final Order, the evidence is insufficient to establish that the Department of Professional Regulation has any "unwritten" or "unpublished" rules such as those described in subparagraphs (G),(J), (I), (L), (Q), and (R).7 Findings regarding "unwritten" and "unpublished" rules of both the E1Electrical -Contractors' Licensing Board and the Department of Professional Regulation The findings of fact immediately below relate to the ten "unwritten" and "unpublished" alleged rules of both the Electrical Contractors' Licensing Board and the Department of Professional Regulation which are described in subparagraphs (M), (N), (S), (T), (U), (AA), (BB), (CC), (DD), and (EE) at pages 1 through 5 of the Petition. (The descriptions of these alleged rules are quoted at pages 2 through 6 of this Final Order.) These ten "unwritten" or "unpublished" alleged rules of both the Electrical Contractors' Licensing Board and the Department of Professional Regulation are all related in one way or another to actions allegedly taken by the Board and the Department in the performance of their respective functions related to the administration and review of the two examinations which have been challenged by these Petitioners in related proceedings under Section 120.57(1), Florida Statutes. None of the evidence regarding these matters proved the existence of an agency statement of general applicability purporting in and of itself to have the direct and consistent effect of law. For reasons which are explained in the Conclusions of Law portion of this Final Order, the evidence is insufficient to establish that both the Electrical Contractors' Licensing Board and the Department of Professional Regulation have any "unwritten" or "unpublished" rules such as those described in subparagraphs (M), (N), (S), (T), (U), (AA), (BB), (CC), (DD), and (EE) of the Petition.8
Findings Of Fact At all times material hereto, Respondent has been licensed as a certified electrical contractor in the State of Florida, having been issued License No. EC0000971. At all times material hereto, Respondent has been the sole qualifying agent for AAA Quality Electric, Inc. (hereinafter "AAA"), a California corporation with its principal office located in Riverside, California. At all times material hereto, Respondent has been a permanent resident of the State of California. By Order of Emergency Suspension of Licensure entered on September 12, 1990, by the Secretary of the Department of Professional Regulation, Respondent's license as a certified electrical contractor in Florida was summarily suspended. At the time, Respondent held either master's licenses or contractor's licenses in 21 states and held hundreds of city licenses. Between January, 1989 and June, 1990, AAA operated in 11 states. During that time period, AAA had as many as 65 people working in the office in California, with as many as 85 electricians in the field. During that time period, AAA had as many as 14 electricians working in the State of Florida. AAA only hired electricians who possessed either a journeyman's or a master's license in the jurisdiction where they worked since that level of licensure enables that electrician to work without direct, on-the-job supervision. AAA advertised when a position was open and administered to job applicants an examination which AAA considers equivalent to a journeyman's examination. To be hired, one needed to pass the examination. AAA would also require that a new employee provide AAA with his or her license number or a copy of his or her current licensure. AAA also employed area supervisors and regional supervisors. Respondent was available to any of the journeymen or masters working for him either by telephone or by sky pager at all times. If anyone doing an installation had a problem, that person could contact Respondent to discuss the problem with him. Respondent's permit-pulling policy was to pull a permit whenever one was required. He had on file, in the various jurisdictions, letters allowing one of his employees to pull permits under his State of Florida license number. For example, in Pompano Beach, which is located in Broward County, Respondent had on file a letter allowing Bill Mopis to pull permits under Respondent's license even though Mopis held a master's license in Broward County and could pull permits under his own license number. By the time that Petitioner suspended Respondent's license to practice electrical contracting in the State of Florida, Respondent had changed his permitting policies so that a permit was pulled for any type of work performed in the State of Florida. AAA advertised in newspapers and in telephone directory yellow pages. When a request for service was made, one of the journeymen or master electricians employed by AAA would be dispatched to the work location. AAA in California was aware of which employee had been dispatched to perform which job. On the day following the job, AAA would call the customer to make sure that the customer was satisfied by the work that had been performed. In March, 1989, Anna and Rudolf Reider contacted AAA pursuant to an ad in the telephone directory yellow pages and requested that an electrician come to their residence to install a ceiling fan. The residence was located in Pompano Beach, Broward County, Florida. Terry Stewart, who holds a master's license from Broward County, responded to their call. When he arrived, Mrs. Reider explained to him that she also wanted a wall outlet which was located behind her bed in a different room to be moved a few feet to the side in order to make it accessible. Stewart took down a light fixture from the ceiling and replaced it with a ceiling fan. He also moved the wall outlet located in the master bedroom by running conduit along the wall and mounting a metal outlet box on the wall in the outlet's new location. Stewart charged the Reiders $391.30, which represented the rate of $46.50 per 1/2 hour plus materials. He also applied a senior citizen discount of 10% to the labor portion of the bill. The hourly rate charged by Stewart was that rate which was quoted over the telephone by AAA to Mrs. Reider when she placed the service call and is in accordance with the labor rate reflected on the work order. The Reiders were satisfied with the ceiling fan installation and with the price charged by Stewart. Although Mrs. Reider had shown Stewart an electrical installation located on her porch, which installation is a pipe with wires inside, and told him that was what she expected, and although she admits that she knew that the new wall outlet would not look the same as the other outlets in the room because there had to be an exposed pipe on the wall, she and her husband were dissatisfied with the appearance of the wall outlet extension in their bedroom. Mrs. Reider subsequently contacted AAA, and Stewart returned her phone call. He advised her that he was willing to come back to her residence and change the appearance of the installation by using a smaller pipe, but he would need to charge her $46.50 for the return service call. Mrs. Reider was unwilling to pad any additional monies for Stewart to return and has never had that work accomplished. Both the ceiling fan and the extended wall outlet work properly. Stewart did not obtain a permit before performing the electrical work. There was no licensure barrier to Stewart obtaining a permit and the inspections that attend the obtaining of a permit since at the time Respondent was licensed by Petitioner, AAA had an occupational license to perform work in Broward County, and no occupational license was required for the City of Pompano Beach since AAA did not maintain an office within that municipality. When Stewart completed the job, he gave the Reiders a 5-year extended warranty, and both Mr. and Mrs. Reider signed the work order authorizing the work and payment therefor, and acknowledging satisfactory completion of the work. The Chief Electrical Inspector for the City of Pompano Beach believes that an electrician, to work without supervision, must be either a journeyman or a master electrician, which Terry Stewart was. The City of Pompano Beach has taken no action against AAA for failure to pull a permit for the Reider job. Although the Chief Electrical Inspector believes that a permit is required for any electrical work performed within the City of Pompano Beach, as provided in the City's permitting ordinances at Section 301.1(e), Section 301(b) (2) sets forth exceptions to the permitting requirements and provides that: No permit shall be required, in this or any of the following Sections, for general maintenance or repairs which do not change the Occupancy and the value of which does not exceed Eight Hundred Dollars ($800.00) in labor and material. ... At the time that AAA performed the work at the Reider residence, the ad which appeared in the yellow pages portion of the telephone directory did not contain Respondent's license number. The City of Pompano Beach has adopted the South Florida Building Code which adopts the National Electrical Code. The National Electrical Code provides that the bonding jumper is to be a green wire or the wire is to be left bare. In the receptacle installed by Stewart, a white wire was used for the bonding jumper. That violation of the National Electrical Code is easily remedied by stripping the white wire bare or by substituting a green wire. Such work is covered under the warranty given by AAA to the Reiders. Although the 1990 National Electrical Code prohibits the use of outlet boxes as the sole support for a ceiling fan and provides an exception from that requirement, the evidence is unclear as to the requirements of the National Electrical Code in force at the time the work was performed. Within the electrical trade, taking down an existing light fixture and replacing it with a ceiling fan and moving a wall outlet are considered to come within the definition of repair and maintenance work. Accordingly, the work performed by AAA at the Reider residence was excluded from permitting requirements both by definition and by cost. Mary Scalza is the owner of Rub-A-Dub Laundromat in West Palm Beach. Early Saturday morning, on June 2, 1989, she experienced a breaker box "blowout", which incapacitated 14 of her washing machines. She located AAA's ad in the yellow pages of the telephone directory and called. AAA quoted her the price for emergency, weekend repairs, and she agreed. Terry Stewart responded to the call. When he arrived at Rub-A-Dub, he saw that the breaker box was located between two rows of washing machines on the floor and next to the overflow drain. He advised Scalza that the location of the box was a code violation, and the box had to be relocated. He told her the approximate cost of doing so but told her that she would have to call AAA to verify with the Company what the cost would be. She told him that the cost of relocating the box was too expensive and implored him to effectuate some repair so that her machines would be operable as soon as possible. Stewart explained to her the dangerous nature of the location of the box but agreed to effectuate a temporary repair. Stewart was unable to replace the entire breaker box; rather, he replaced all inside parts, using the old box. Although Scalza denies that Stewart told her he was simply effectuating a temporary repair until Monday morning when he could obtain the proper parts from a parts supply company, the work order signed by Scalza conforms with AAA's policies regarding temporary repairs. Specifically, the work order provides that no guarantee was given for the work. It is clear that Stewart did return to Rub-A-Dub Monday morning, and Scalza refused to let him touch the breaker box. When Stewart finished his temporary repair on Saturday afternoon, he submitted to Scalza a statement in the amount of $892.10. She gave him a check for $600.00 and paid him the balance in cash. When Scalza's husband came to the laundromat, he became very angry about the amount of the bill. On Monday morning, Scalza contacted the electrical inspector for the City of West Palm Beach, who came to the laundromat, looked at the work that had been accomplished, and "red tagged" the job due to the location of the breaker box. Scalza did not advise him that it was simply an emergency temporary repair. Scalza stopped payment on her check and contacted AAA, advising them not to return to complete the job. When an emergency repair is effectuated in West Palm Beach, it is Permissible for the permit to be pulled on the next business day. Since AAA was fired from the job on the next business day, AAA did not apply for a permit. Instead, AAA sent Stewart back to Rub-A-Dub to refund to Scalza the cash portion of her payment to AAA and to remove the parts Stewart had used for which Scalza would not pay. Scalza gave Stewart the parts which AAA had supplied which had already been removed by the other electrical company hired by her to do the work. That subsequent company did pull a permit for the work at Rub-A-Dub and did relocate the breaker box, which apparently Scalza authorized that company to do. The electrical inspector for the City of West Palm Beach agrees that the responsibility for pulling the permit on the Rub-A-Dub job was that of the subsequent company that effectuated the repairs and not the responsibility of AAA which had been fired from the job before it could pull a permit on Monday, the next business day following the emergency repairs effectuated over the weekend. Petitioner's witnesses agree that if the work done by AAA was a temporary repair for a few days, then the work that was accomplished by Stewart was, in fact, a safe, temporary repair. Further, it is a "judgment call" as to whether an electrician is required to bring electrical service up to code requirements, regardless of the nature of the work an electrician has been called upon to do. Further, anything involving water is always a "judgment call." Even Petitioner's expert would consider effectuating repairs to the breaker box in the location it was in when Stewart came to Rub-A-Dub if the box was completely enclosed and weatherproofed. No evidence was offered as to whether the box was completely enclosed and weatherproofed. Alton F. LaBrecque is an employee of AAA. He holds a journeyman's license from Pinellas County. Pinellas County and Hillsborough County have a reciprocal agreement regarding licensing, i.e., as long as a person holds a journeyman's license from one of those counties, he is not required to obtain a journeyman's license to work in the other county which is on the other side of the bridge. It is the practice in both Pinellas and Hillsborough Counties that if a journeyman who is licensed in one of those counties shows his card to an inspector from the other county, that is all that is required by the inspector of the other county to insure himself that the journeyman is properly licensed. The City of Tampa, which is in Hillsborough County, allows Hillsborough County to regulate licensing. If a person is licensed to work in Hillsborough County, then he is also licensed to work within the City of Tampa. At all times material hereto, AAA had an occupational license to work within the limits of the City of Tampa. On September 26, 1989, Heidi Bekiempis contacted AAA to request that someone come to her residence in Tampa to replace a dimmer switch. Alton LaBrecque responded to that call. When he arrived at the Bekiempis residence, Mrs. Bekiempis also advised him that certain lights within the house were flickering. LaBrecque replaced the dimmer switch which had been completely burned. It is LaBrecque's practice to involve the customer in the work that he is doing as much as possible so that they understand what is being done and why. When he checked the breaker box, he noticed that there were loose connections within the breaker box. He had Mrs. Bekiempis "running around the house" turning lights on and off while he tightened wires and checked the breakers. LaBrecque tested each breaker in the box with a digital meter and then with an infrared tester. Using the two different pieces of equipment, he tested both the line side and the load side of the breakers while they were carrying a full load. He discovered that three single-pole 20-amp breakers and one double- pole 60-amp breaker were consuming electricity as it passed across the breakers. Manufacturer specifications allow a breaker to consume up to .029 volts. The four breakers in question were each consuming one volt which is equal to 120 watts. He understood that the implication of the fact that those breakers were "hot" and consuming electricity meant that they would not trip properly and there was a danger of wires burning or even a fire starting. He also understood that a bad breaker had been the cause of the dimmer switch burning. Although his work order completed at the time indicated that a breaker was only giving off 87-93 volts and he testified at the final hearing that each of the breakers was consuming one volt, even the one volt consumption testified to at the final hearing was sufficient to show that a dangerous condition existed and the breakers needed replacing. Even though Mrs. Bekiempis denies authorizing the replacement of the circuit breakers, she does admit that LaBrecque told her about the danger of a fire, and she signed the work order after completion of the job acknowledging the satisfactory completion of the work. That work order clearly reflects the replacement of the breakers, the results of LaBrecque's testing, the reason why the breakers were replaced, and an itemized listing of the costs for the replacement breakers. It is found that Mrs. Bekiempis authorized replacing the breakers. Mrs. Bekiempis paid AAA $384.00 for the work performed. The replacement dimmer switch works properly, and the Bekiempis' lights stopped flickering after LaBrecque replaced the bad breakers. Mrs. Bekiempis unsuccessfully tried to stop payment on her charge card for all of the work performed by AAA. Between September 26, 1989, and February 15, 1990, the replaced breakers and the replacement breakers were primarily in the possession of Mr. and Mrs. Bekiempis. During that time, Mr. Bekiempis gave breakers to two different electricians for testing. On February 15, 1990, he gave breakers to an investigator for the Department of Professional Regulation. On February 20, 1990, the investigator gave breakers to Joe Bolesina, the Chief Electrical Inspector for Pinellas County. At some subsequent time, Bolesina marked four breakers and gave them to a clerk in his office to send to General Electric for testing. When Bolesina subsequently received breakers from General Electric, he returned them to Petitioner's investigator who retained custody of them until his deposition was taken in this case on October No explanation was offered as to how the breakers which were marked as an exhibit to the deposition of Petitioner's investigator on October 10 got to the deposition of Joe Bolesina taken on October 11 at which time the breakers were marked as an exhibit to his deposition. No explanation was offered as to who had custody of the breakers between October 11 and the time they were produced at the final hearing commencing on October 17, 1990. It is probable that the breakers that were marked at some unidentified time by Joe Bolesina are the same breakers which were admitted in evidence at the final hearing in this cause since the tags placed on the breakers by Bolesina remain on the breakers. However, there is no basis for assuming that the breakers which were replaced by LaBrecque five months before Bolesina received them and marked them were the same breakers that were replaced by LaBrecque. During the afternoon of Saturday, March 17, 1990, a tornado blew down a huge oak tree located in the front yard of the residence of Clarence Cruey in the City of Tampa. As it fell, the tree tore the entire electrical service off the front of the Cruey residence, including the meter, the riser, and the wires. The customer had no power at all. Cruey looked in the yellow pages to find an electrical contractor who would come to his residence immediately to effectuate the repair work even though it was still storming. AAA responded to his call, quoted to him its rates for 1-hour emergency service, and dispatched Alton LaBrecque and another AAA employee to perform the services. The two men worked there in the dark and in the rain for four hours, replacing Cruey's electrical service. Few of the parts were capable of being reused since they had been damaged by the tree or because they did not meet code requirements. For example, a Delta surge arrester had been used previously, and that type of equipment was, at the time, illegal in Tampa. AAA completely replaced the riser, hub, meter can, meter socket, wiring, and many other parts. At the conclusion of their work, AAA presented an itemized bill to Cruey in the amount of $2,556.17, and Cruey signed the acknowledgment that all work had been performed satisfactorily. He paid for the work by credit card but subsequently stopped payment, and AAA has been paid no monies for their labor or material regarding the Cruey job. Since the work at the Cruey residence was performed on an emergency basis on a Saturday, on the following Monday LaBrecque went to pull the permit for the work. Employees at the City of Tampa would not accept his permit application saying that he was not authorized to pull a permit for AAA and that a copy of AAA's workmen's compensation insurance was not on record with the City. Although authorization letters had been previously submitted, and although a copy of the insurance certificate had been filed with the City in January when AAA's City of Tampa occupational license was renewed, LaBrecque had AAA send additional copies of those documents to the City. When he again attempted to apply for the permit, the City advised him that they still did not have copies of those documents. LaBrecque contacted AAA and another set of documents was provided to the City. When LaBrecque returned, he was told that the documents still had not been received. When LaBrecque hand- carried another set of those documents to the City and "stuffed it in their faces," they accepted his permit application, ten days after he first applied. The permit itself was not issued for several months, and by the time of the final hearing in this cause the City had still refused to make the required inspection although Respondent had called for the inspection a number of times, including once on the record during a hearing conducted by the Unified Construction Trades Board of the City of Tampa. Although refusing to make an official inspection, the Chief Electrical Inspector for the City of Tampa inspected the work at the Cruey residence on an "unofficial" basis. Based upon that unofficial inspection, he concluded that AAA had replaced parts that did not need replacement and that AAA had not done all of the work for which it had charged Cruey. On July 3, 1990, the Unified Construction Trades Board of the City of Tampa revoked Respondent's permitting privileges for 1 year for the work done at the Cruey residence. On August 7, 1990, the Unified Construction Trades Board of the City of Tampa suspended Respondent's permitting privileges to run concurrently with the revocation entered on July 3, 1990. On September 11, 1990, based on the fact that the City of Tampa had taken disciplinary action against Respondent, the Electrical Board of Adjustment, Appeals and Examiners of Hillsborough County suspended Respondent for a period of 5 years. These two disciplinary actions are not involved in the Administrative Complaint filed against Respondent in this cause, and proof of them was offered by Petitioner for the sole purpose of aggravation of any penalty to be assessed against Respondent. Photographs admitted in evidence at the final hearing in this cause clearly refute the testimony given by the Chief Electrical Inspector for the City of Tampa which resulted in the July 3, 1990, revocation of Respondent's permitting privileges. The photographs reveal the work done by AAA and also depict the damaged parts which were replaced by AAA since those damaged parts were still lying in Cruey's yard at the time the photographs were taken. Respondent was prohibited by the Unified Construction Trades Board from offering the photographs and other evidence in defense of the charges then pending against him.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent not guilty of the allegations contained in the Administrative Complaint and dismissing the Administrative Complaint filed against Respondent in this cause. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 20th day of November, 1990. LINDA M. RIGOT 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 20th day of November, 1990. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-6172 Petitioner's proposed finding of fact numbered 1 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law. Petitioner's proposed findings of fact numbered 2-5, 7, 10, 16, 17, 20, 23, and 25-27 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 6, 9, 11-15, 18, 19, 22, and 28 have been rejected as not being supported by the weight of the credible evidence in this cause. Petitioner's proposed finding of fact numbered 8 has been rejected as being contrary to the weight of the evidence in this cause. Petitioner's proposed findings of fact numbered 21, 24, and 29 have been rejected as being unnecessary for determination of the issues herein. Respondent's proposed findings of fact numbered 1, 4, 4.1, 5-7.5, 7.9, 7.10, 7.13-7.16, 8, 8.1, 8.3-8.6, 8.8, 8.9, 9.0, 9.2-9.7, 9.10, 9.12-9.14, 9.16- 9.20, 10, 10.1, 10.3, 10.4, 10.6-10.19, 10.21-10.23, 12-12.8, 13.9, and 13.10 have been rejected as not constituting findings of fact but rather as constituting conclusions of laws, recitation of the testimony, or argument of counsel. Respondent's proposed findings of fact numbered 2, 3, 7.6-7.8, 7.11, 7.12, 8.2, 8.10-8.12, 9.1, 9.8, 9.11, 9.15, 10.20, 11-11.2, 13.2, 13.4-13.8, and 13.11 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 8.7 has been rejected as not being supported by the weight of the credible evidence in this cause. Respondent's proposed findings of fact numbered 10.2, 10.5, 13, 13.1, and 13.3 have been rejected as being unnecessary for determination of the issues herein. COPIES FURNISHED: Daniel O'Brien Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Robert G. Harris, Esquire Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 David M. Gaspari, Esquire Adams, Coogler, Watson & Merkel Suite 1600, NCNB Tower 1555 Palm Beach Lakes Boulevard West Palm Beach, Florida 33402-2069 Neil F. Garfield, Esquire World Executive Building, Suite 333 3500 North State Road Seven Fort Lauderdale, Florida 33319 Scott Anderson, Esquire 2033 Main Street, Suite 402 Sarasota, Florida 33427 Kenneth E. Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
The Issue The issue for determination is whether Petitioner is eligible for licensure by the Board of Professional Engineers.
Findings Of Fact In October 1996, Henry A. Vidal (Petitioner) took the Principles and Practice part of the Electrical Engineer Examination (Examination). A minimum score of 70 is required to pass the Examination. The Department of Business and Professional Regulation, Board of Professional Engineers (Respondent) notified Petitioner that he had not successfully completed the Examination, having received a score of 67. The Examination is a national examination and is graded by national examiners. Petitioner challenges questions numbered 131 and 133 on the Examination. A scoring plan is used for grading each question. For question numbered 131, the highest score achievable is 10. According to the scoring plan, correctly solving any one part of the problem in the challenged question earns a score of 2; correctly solving any two parts, earns a score of 4; correctly solving any three parts, earns a score of 6; correctly solving any four parts, earns a score of 8; and correctly determining five specific items, even though the solution need not be perfect, earns a score of 10. Petitioner received a score of 4 on question numbered 131. Regarding question numbered 131, under the scoring plan, Petitioner is not entitled to any additional points. Even though Petitioner may have indicated his knowledge of the problem in the challenged question, he failed to solve the problem correctly, e.g., omitting a component and miscalculating. Petitioner solved two parts correctly, earning a score of 4. For question numbered 133, the highest score achievable is 10. According to the scoring plan, there are ten parts to the problem in the challenged question and correctly solving one or two parts, earns a score of 2; correctly solving three or four parts, earns a score of 4; correctly solving five or six parts, earns a score of 6; correctly solving seven or eight parts, earns a score of 8; and correctly solving nine or ten parts, earns a score of 10. Petitioner received a score of 8 on question numbered 133. Regarding question numbered 133, under the scoring plan, Petitioner is not entitled to any additional points. Even though Petitioner may have indicated his knowledge of the problem in the challenged question, he failed to solve the problem correctly, e.g., using the incorrect quantity. Petitioner solved eight parts correctly, earning a score of 8. The examiners for the Examination re-graded Petitioner's answers to questions numbered 131 and 133. Petitioner was denied additional credit for the challenged questions by the examiners. Petitioner's answers were not arbitrarily or capriciously graded. The grading process was not devoid of logic and reason. The scoring plan was properly used. Questions numbered 131 and 133 are not beyond the scope of knowledge that is required of a candidate for licensure as an electrical engineer and are capable of being answered by such a candidate for licensure. Considering the proof, the opinions of Respondent's expert were more persuasive. The evidence presented was insufficient to warrant additional credit to Petitioner on questions numbered 131 and 133.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Board of Professional Engineers enter a final order dismissing the examination challenge of Henry A. Vidal and denying him licensure. DONE AND ENTERED this 27th day of March, 1998, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1998. COPIES FURNISHED: Henry A. Vidal, pro se 5832 Alton Road Miami Beach, Florida 33140 R. Beth Atchison Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angel Gonzalez, Executive Director Department of Business and Professional Regulation Board of Professional Engineers 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact The Petitioner submitted an application for the certified electrical contractor's examination to the Respondent in January, 1983. The Respondent is an agency of the State of Florida charged with enforcing the standards of licensure for electrical contractors, pursuant to Chapter 489, Florida Statutes, and Chapter 21GG, Florida Administrative Code, and with administering and enforcing the licensure and practice standards of electrical contractors in the State of Florida. The application filed by the Petitioner indicated that he had been employed as a Journeyman electrician with Mozart Electric, Inc., of Chicago, Illinois, since October, 1978. The application on its face showed no further experience in the electrical contracting trade possessed by the Petitioner, except as a Journeyman electrician for that company. The Petitioner was born in Berlin, Germany, in 1934. In 1950, when he was 16 years old, he became an apprentice electrician, working and learning the trade with a view toward becoming a Journeyman and ultimately a Master electrician. He was licensed in Berlin as a Journeyman electrician on September 12, 1953. He worked in that capacity in Germany until 1955, when he immigrated to the United States. In 1955, he settled in Chicago and was licensed as a Journeyman electrician and joined the Electrical Worker's Union Local 134 in Chicago in that classification. From 1957 to 1958, the Petitioner served as a "Master electrician" in the United States Army. The Petitioner has chosen to maintain his union membership so he was thus precluded from being employed in a job classification with the title of "contractor". Since the mid-1950's, however, the Petitioner has been in charge of and in a supervisory position on electrical contracting jobs. For instance, with Mozart Electric, his present employer since 1978, the Petitioner has typically supervised a crew of eight men in performing the electrical contracting portion of large commercial construction jobs. In that capacity, the Petitioner works in an unsupervised fashion and "lays out" the job, estimates the scope and cost of the work, solely supervises the men on the job, makes shop drawings, and solely inspects the finished job. The Petitioner, although he does not do the bidding himself, often does the estimating upon which bids are predicated. In addition, the Petitioner's activities and duties with Mozart Electric, Inc. include making corrections to blueprints, conferring with architects to work out necessary changes, promulgating time schedules, hiring and laying off electricians, and coordinating the electrical construction work with other trades on a given job. In this, or a similar capacity, he has worked with four electrical contracting companies since coming to the United States. Thus, he spent 17 years with Klorek Electric as a Journeyman, then foreman, then superintendent. The Petitioner spent two years with Gibson Electric Company as a foreman; four years with Midland Electric Company as a superintendent; and five years with his present employer, Mozart Electric, Inc. in performance of the above sort of duties. It has therefore been established that the Petitioner has worked for a substantial portion of the last 28 years in a capacity other than as merely a Journeyman electrical worker an a job site, but rather has typically worked in a supervisory capacity for most of those 28 years. Indeed, for most jobs performed during that time, the Petitioner was superintendent of the job and was solely responsible directly to the president of his company for the quantity and quality of work performed by his men, whom he supervised unassisted by anyone else.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence in the record and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED: That the application of Hans Rossignol to be permitted to take the examination for certified electrical contractors should be GRANTED. DONE and ENTERED this 24th day of October, 1983, in Tallahassee, Florida. P. MICHAEL RUFF 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 24th day of October, 1983. COPIES FURNISHED: Mr. Hans Rossignol c/o Mozart Electric, Inc. 2427 North Claybourne Avenue Chicago, Illinois 60614 Susan Tully, Esquire Department of Legal Affairs Suite 1601, The Capitol Tallahassee, Florida 32301 Allen R. Smith, Jr., Executive Director Florida Electrical Construction Licensing Board Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact By an application dated March 27, 1979, and received by the Board on March 30, 1979, Petitioner, James L. Dentico, applied to the Florida Electrical Contractors' Licensing Board for a license as a certified electrical contractor. The Board has a committee on applications which reviewed Mr. Dentico's application. The committee determined that his application did not evidence sufficient experience in the trade. That determination prompted a letter written May 8, 1979, from Mr. Allen R. Smith, Jr., the Board's Executive Director, to Mr. Dentico. The letter states, in pertinent part, that: Your application failed to evidence to the Board that you had six (6) years' comprehensive experience training as required by 468.185(2). If you can evidence six (6) years as reflected in 468.185(2) in the trade as an electrical engineer, this evidence will be brought before the board. By letter dated May 15, 1979, Mr. Dentico responded through counsel. He contended that his application did evidence sufficient experience since, in his opinion, he had more than the minimum one and one half years of experience in the trade as required by Section 468.185(2), Florida Statutes. Mr. Dentico's attorney reiterated his request originally made on March 27, 1979, with the application that all future communications relating to the application be made directly to him, Philip J. Gouze, Esquire. Mr. Dentico's application was then returned to the Board for further consideration. That review was made at the Board's June 7, 1979, meeting in Tampa. As the result of communications between Mr. Smith's office and Mr. Gouze, Mr. Dentico was under the impression that he could take the electrical contractors' examination scheduled for June 8, 1979, in Tampa. To obtain his admission ticket for the written examination, Mr. Dentico appeared at the Board's June 7, 1979, meeting. Upon entering the room, he was questioned by Board members about his contracting experience in North Carolina and Florida. At the time Petitioner appeared, the Board had before it a seconded motion to accept his application. After the initial questioning, Mr. Borrell stated: Mr. Borrell: O.K., a motion has been made and it has been seconded that we accept this application. Mr. Lenhart: I think we need a little more evidence and based on this discussion, I will have to withdraw my motion. Mr. Isaac (the Chairman): I withdraw my second. Mr. Borrell: Motion made to withdraw it. Mr. Lenhart: And I base it on failure to evidence sufficient experience as an unlimited managing electrical contractor. Mr. Sommerkamp: I second. Mr. Borrell: Is there any discussion on this motion? Mr. Borrell: Let's go back to square one. Mr. Lenhart: Based on what he has said, I think the application is misleading and I would recommend that he reapply. Mr. Isaac: I second. (Vote was unanimous.) Mr. Dentico persisted in urging his qualifications on the Board. He was further questioned about his experience. After the additional questioning, Mr. Morgan said: Mr. Morgan: What is the motion? Mr. Borrell: Reject. The Chairman called for a vote and it was unanimous. Mr. Borrell: The Board does not see fit at this time and if you submit more data, we will be glad to review; but based on the findings we have here the information our decision has to stay and you will be notified of the right to appeal. Mr. Dentico's counsel was not present at the Board meeting and the record does not reflect that he was notified of the Board's action until the denial letter of August 13, 1979. On that date, Mr. Smith wrote to Mr. Dentico to state: The Florida Electrical Contractors' Licensing Board has reviewed your application for examination to be licensed as an electrical contractor, authorized to provide unlimited services, throughout the State. The Board has found that you [sic] application lacks sufficient evidence to qualify you to sit for the examination for the following reason: Your application failed to evidence to the Board at its June 7, 1979, meeting the necessary experience in the field as an electrical contractor authorized to provide unlimited services. Please refer to Sections 468.180 and 468.185, Florida Statutes, and Rule 21GG-2.01(1). The Florida Administrative Procedures Act entitles you to request a hearing on this matter should you choose to do so. Attached you will find an "Election of Rights" form which fully explains the procedures you may follow in requesting a hearing. The Board has not controverted any of the information in Petitioner's application. Mr. Dentico has a Bachelor of Science in electrical engineering from the Indiana Institute of Technology. He has a Masters degree in electrical engineering from the Georgia Institute of Technology. Between 1969 and 1973, he was an advanced design engineer at Grumman Aerospace Corporation. His responsibilities included research design and development of aircraft and satellite control systems, designing electrical hookup equipment for laboratory experiments and preparing cost estimates and technical writing for bids on government contracts. At Grumman, his time was divided equally into three functions: research, development and engineering. As part of his development responsibility, he was in charge of the construction of apparatus display and testing tables which were a mock-up of the hydraulic and electrical environment in which a prototype component would later operate. Mr. Dentico supervised the electricians who constructed the wiring, ran the conduits, etc., for those apparatuses. Subsequently, Mr. Dentico operated his own business, N. K. Investments of North Carolina, from January, 1975, to February, 1977. He designed and cost estimated an electrical power distribution system for a 320 boat slip marina and for the service building of that marina in New Bern, North Carolina. He also prepared an electrical cost estimate for a four-story office building there. Mr. Dentico also had some experience in doing the general electrical work on a two-story, nine-unit apartment complex building in Miami Shores, during 1977. Under the supervision of Gurney Electric Corporation, the project electrical contractor, he put in conduit, pulled wires and installed appliances. The functions of an electrical contractor are to order the necessary equipment for a given project, to supervise the contractor's employees in constructing the job according to the plans and specifications, to coordinate the work of the contractor's employees with the needs of the general contractor and in accordance with the directions of the project electrical engineer. There are times when a project does not have an electrical engineer and in that case, the design work is expected to be performed by the electrical contractor. Careful consideration has been given to each of the proposed findings of fact submitted by the parties. To the extent that they are not contained in this Order they are rejected as being either not supported by competent evidence or as irrelevant and immaterial to the issues for determination here.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the application of James L. Dentico for certification as an electrical contractor be granted subject only to successful completion of an objective written examination about Mr. Dentico's fitness for a certificate as required by Section 468.184(2), Florida Statutes (1977). That $50.00 of Petitioner's application fee be returned to him if Section 21GG-2.09, Florida Administrative Code, is still in effect. DONE and ENTERED this 30th day of January, 1980, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue Whether the Respondent is entitled to an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency charged with regulating the practice of professions pursuant to Section 20.165, Florida Statutes, and Chapters 455 and 489, Florida Statutes. The ECLB is charged with regulating the practice of electrical contracting pursuant to Section 489.507, Florida Statutes. Pursuant to Rule 61G6-4.006, Florida Administrative Code, the ECLB has established a Probable Cause Panel to determine whether probable cause exists to believe that a violation of governing statutes has occurred. Mr. Borota is, and was at all times material to this matter, licensed as a Registered Electrical Specialty Contractor, having been issued license numbers ET 0000218 and ES 0000213. Mr. Borota is, and was at all times material to this matter, the licensed qualifier for his wholly owned Florida corporation, Communication Installation and Service Co., Inc. Subsection 489.517(3)(a), Florida Statutes, requires a licensee to provide proof of completing at least 14 classroom hours of continuing education courses during each biennium following issuance of the license. Rule 61G6-9.003(2), Florida Administrative Code, defines "course" as "any course, seminar or other program of instruction which has been approved by the board for the purpose of complying with the continuing education requirements for electrical and alarm contractors." Rule 61G6-9.004(1), Florida Administrative Code, requires that licensees provide proof of completion of at least 14 classroom hours of continuing education courses "approved by the board." Rule 61G6-9.005(1)(a), Florida Administrative Code, requires course sponsors to register with the ECLB prior to submitting their courses to the board for approval. Rule 61G6- 9.005, Florida Administrative Code, provides that accredited universities and colleges which offer courses in the contracting areas specified in Part II of Chapter 489, Florida Statutes, are deemed admitted as course sponsors. Rule 61G6-9.006(1), Florida Administrative Code, allows a registered course sponsor to submit to the ECLB an application for approval of a continuing education course, and provides that relevant courses offered by accredited universities and colleges are deemed approved. The ECLB regularly publishes a list of approved continuing education courses. Rule 61G6-9.002, Florida Administrative Code, sets forth criteria for continuing education. The following sets forth the relevant portions of the rule as it read during the period relevant to this case: The following programs of continuing education may be used to satisfy the continuing education requirement provided that the licensee complies with the terms set forth herein: Courses for credit which are business, technical or safety courses relevant to the electrical contracting industry and which require a passing grade taken at an accredited college, university, or community college. The licensee must furnish an official transcript and a notarized statement affirming classroom hours attended and the receipt of a passing grade. Noncredited courses conducted by an accredited institution of higher learning, official governmental agency, the military, or recognized national or state trade or civil organization provided the following conditions are met: the course must be business, technical or safety course relevant to the electrical contracting industry. the course must follow a written text, which must be submitted to the Board for approval on request. the instructor of the course must be a professional educator, certified electrical contractor or a similar authority in the field. The licensee must submit a notarized statement affirming the following: Number of classroom hours attended Sponsor of the course Location of the course Date of the course Name of the instructor and his credentials Benefit received from the course George Ayrish, program administrator for the ECLB, testified that Rule 61G6-9.002, Florida Administrative Code, allows a licensee to obtain credit for courses that are not on the approved list, provided the substantive criteria for continuing education courses are met and the notarized statement is filed. The ECLB conducts random audits of its licensees every two years. On January 27, 1997, the ECLB sent Mr. Borota a written notice that his license was undergoing such an audit for the period September 1, 1994, through August 31, 1996. The notice requested that Mr. Borota provide, among other items not relevant to this proceeding, certification that he had completed the required continuing education hours. Mr. Borota responded with certificates of attendance at three separate technical electrical contracting courses presented by equipment vendors: a "3M Hot Melt Fiber Optics Connectors" course offered by 3M Telecom Systems Division on June 25, 1995; a "Category 5" cabling installation course offered by The Siemon Company on December 5, 1995; and an "Installation Certification Program" offered by Ortronics Open System Architecture Networking Products on June 19, 1995. None of these courses were included in the ECLB’s list of approved continuing education courses. By letter dated March 18, 1997, the ECLB informed Mr. Borota that the courses submitted as evidence of continuing education must be "Board approved" and "completed within the audit period." Mr. Borota responded with a certificate indicating that he had completed "product application training" and was thus a certified installer for Superior Modular Products, Inc. The certificate was dated July 31, 1995. This course was not included in the ECLB’s list of approved continuing education courses. On August 18, 1997, Mr. Ayrish filed a Uniform Complaint Form alleging that Mr. Borota did not provide proof of continuing education as required by Rule 61G6-9.004(1), Florida Administrative Code. The complaint was forwarded to Kathy MacNeill, a senior consumer complaint analyst for the Department of Business and Professional Regulation. By letter dated October 9, 1997, Ms. MacNeill advised Mr. Borota that a complaint had been filed against him. She enclosed a copy of Mr. Ayrish’s complaint. The letter requested that Mr. Borota submit a written response within 20 days. By letter dated October 13, 1997, Mr. Borota responded to Ms. MacNeill’s request. He wrote, in relevant part, that: Regarding the continuing education for ET 0000218 I did send the certificates of classes that I had taken during the audit time in question. All of the classes that I had taken covered communications cabling which is what our company does. Most of the classes that are held by the contractors schools that are recommended for low voltage systems licensing cover information on security systems cabling and we do not do that kind of work. Please advise if I need to send any additional information or what I will need to do to close this case. No further direct communication occurred between Mr. Borota and Ms. MacNeill. Mr. Borota testified that he attempted to phone the Department a few times after the exchange of letters, but that he never spoke to anyone. Ms. MacNeill prepared a written Investigative Report, dated November 6, 1997, stating an alleged violation of failure to provide proof of continuing education and forwarding the matter to the Department’s legal counsel "for whatever action is deemed appropriate." The Complaint and the audit file were placed on the docket for consideration by the Probable Cause Panel of the ECLB at a telephonic conference on March 20, 1998. On the same date, a Memorandum Of Finding was signed by the chairperson of the Probable Cause Panel, indicating probable cause was found. The Department issued an Administrative Complaint on March 23, 1998, alleging that Mr. Borota failed to submit proof in response to the audit of having complied with the continuing education requirements of Subsection 489.517(3), Florida Statutes, and the rules promulgated thereunder. Mr. Borota was served with the Administrative Complaint on March 30, 1998. On April 21, 1998, Mr. Borota timely filed his written Election Of Rights disputing the material facts set forth in the Complaint and demanding an evidentiary hearing pursuant to Subsection 120.57(1), Florida Statutes. On the same date, Mr. Borota also submitted an affidavit, substantially complying with Rule 61G6-9.002(2), Florida Administrative Code, attesting that he had attended 30 additional hours of continuing education courses during the audit period. These courses were professional seminars provided at the annual winter meeting of Building Industry Consulting Service International, Inc. (“BICSI”), a non-profit telecommunications technical association. The materials for the BICSI conferences show that the University of South Florida was a co-sponsor of the event. The BICSI seminars were not on the ECLB’s list of approved continuing education courses. On August 6, 1998, counsel for the Department filed a Motion For Final Order, arguing that there were no disputed issues of material fact in the case because none of the courses submitted by Mr. Borota were on the ECLB’s approved list of continuing education courses. The ECLB denied the Department’s motion and agreed to refer the Administrative Complaint to the Division of Administrative Hearings ("DOAH") for the conduct of a formal administrative hearing. The case was never forwarded to DOAH. The record does not disclose why the case remained at the ECLB for nearly two years following the ECLB’s denial of the Motion for Final Order. The Administrative Complaint was again considered by the Probable Cause Panel of the ECLB on May 23, 2000. On the same date, a Memorandum Of Finding was signed by the chairperson of the Probable Cause Panel that determined no probable cause was found and that the Administrative Complaint should be dismissed. Both meetings of the Probable Cause Panel were tape recorded. The tapes were of such poor quality that a certified transcript of the meetings could not be prepared by either an independent court reporter or the Department. Redacted tape copies and an uncertified transcript of the meetings were admitted into evidence by agreement of the parties. The transcript is sufficient to show that the March 20, 1998, Probable Cause Panel treated Mr. Borota’s case in a pro forma fashion, without discussion of the particulars of the investigation, prior to making a finding of probable cause to proceed against Mr. Borota. At the hearing in the instant case, the Department admitted that Mr. Borota was the prevailing party in the disciplinary proceeding because the Administrative Complaint was dismissed upon a finding of "no probable cause" at the May 23, 2000, Probable Cause Panel meeting. Mr. Borota testified that he was the sole owner and qualifying licensee of the corporation through which he practiced as a licensed electrical contractor, that his net worth was less than $2 million, and that he and the corporation employed fewer than 25 workers. The Department offered no evidence to dispute Mr. Borota’s testimony on these points.
Findings Of Fact On February 4, 2008, the Department filed a two-count Administrative Complaint against Boetzel, alleging that Boetzel violated sections 481.323(1) and 489.531(1), Florida Statutes (2006), in that Boetzel engaged in the unlicensed practice of landscape architecture and electrical contracting. The following pertinent facts were alleged in the Administrative Complaint: At no time material hereto were Respondents the holders of valid licenses to engage in the practice of landscape architecture pursuant to Chapter 481, Part II, Florida Statutes. At no material time hereto were Respondents the holders of valid licenses to engage in the practice of electrical contracting pursuant to Chapter 489, Part II, Florida Statutes. At all times material hereto, Respondent TODD P. BOETZEL was the Registered Agent and Officer/Director/President of Respondent BOETZEL LANDSCAPING, INC. Respondents' last known address is 2534 22nd Avenue North, St. Petersburg, Florida 33713. On or about June 5, 2007 Respondents submitted an invoice to Southern Cross Construction for site preparation, including grading, placement of plantings, and installation of an irrigation system at a construction site in Reddington [sic] Beach, Florida. The aforementioned invoice also included electrical contracting work. On or about June 19, 2007 Respondent Todd P. Boetzel signed a sworn Claim of Lien indicating that he provided "Landscaping, Sod, and Irrigation" for the aforementioned project. Respondent was paid a deposit of $8,000.00 by check number 1274 on May 25, 2007. Boetzel requested an administrative hearing, and the case was referred to DOAH. A final hearing was held, and the Administrative Law Judge entered a Recommended Order, recommending that a final order be entered finding that Boetzel did not engage in the unlicensed practice of landscape architecture and electrical contracting. On October 28, 2008, the Department filed a Final Order, which adopted the Findings of Fact and Conclusions of Law in the Recommended Order and found that Boetzel was not guilty of engaging in the unlicensed practice of landscape architecture and electrical contracting. On November 17, 2008, Boetzel filed a Verified Petition and Affidavit for Attorney's Fees and Costs under Florida Statutes § 57.111 (2006). The petition included an Affidavit for Attorney's Fees executed by the attorney for Boetzel, stating that 102.2 hours of attorney time had been rendered in the case and that the usual rate was $300.00 per hour. The total amount claimed for attorney's fees is $30,660.00. The petition also included a Bill of Costs executed by Todd P. Boetzel, which included costs for services of process and transcripts. The total amount claimed for costs is $1,327.30. On December 8, 2008, the Department filed Respondent's Answer to Initial Order. The answer stated: The Department does not dispute the reasonableness of the fees and costs submitted by Petitioner. The Department does not dispute that Petitioner [sic] were a prevailing party in the underlying proceeding. The Department does not dispute that Petitioner [sic] are a small business party. The Department does not dispute that it was non-nominal party at the underlying proceeding. The Department knows of no circumstances or facts that would make an award of attorney's fees to Petitioner unjust in the present case. * * * The Department alleges that its actions in prosecuting this matter were substantially justified, thereby negating Petitioners' entitlement to attorneys' fees. The only disputed issue in the instant case is whether the Department was substantially justified in issuing the Administrative Complaint. In February 2008, Laura P. Gaffney (Ms. Gaffney) was the chief attorney in the unlicensed activity section of the Department. Her primary responsibility was to review incoming cases and determine whether the cases should be closed out, whether additional investigation was needed, or whether charges should be filed in the form of an administrative complaint. Ms. Gaffney had been delegated the authority by the Secretary of the Department to make probable cause findings on cases dealing with unlicensed activity.2/ In making her determination of whether there was probable cause to file an administrative complaint, Ms. Gaffney considered the investigative report dated December 29, 2007, and a supplemental report dated January 19, 2008. The investigative file included a complaint filed by Steve Petrozak (Mr. Petrozak), a licensed general contractor and manager of Southern Cross Construction, alleging that Boetzel had engaged in the unlicensed practice of landscape architecture. The complaint described the work performed by Boetzel as "landscaping, lawn irrigation, sod." The complaint filed by Mr. Petrozak included an invoice from Boetzel for the work performed. The invoice was for the planting of various plants, site preparation, irrigation, installation of pine bark, and lighting. The site preparation was described in the invoice as follows: "Sodcut areas to be planted, remove unwanted vegetation and haul away, prepare areas for planting, stump grind. Grade entire property and create swale down left side." The lighting work was described in the invoice as follows: "Install Low Voltage Halogen Lights, uplight 3 foxtail palms, 1 adonidia palm and 2 lights on mailbox, with one automatic transformer. Additional transformer." The investigative file also included a letter dated November 7, 2007, from Gregory Elliott, an attorney representing Boetzel. Mr. Elliott stated that Boetzel was not in the business of landscape architecture, but was in the business of selling and installing landscape materials for residential or commercial use. Mr. Elliott described Boetzel as a laborer or materialman working under the general contractor. Ms. Gaffney felt that the "single most important part of this investigative report" was the sworn claim of lien filed by Boetzel, which stated that Boetzel had furnished "labor, services and material consisting of Landscaping, Sod, and Irrigation" at the property situated at 511 161st Avenue, Redington Beach, Florida. Ms. Gaffney assumed that because the work performed by Boetzel included grading the property and creating a swale that Boetzel had set the grades for the grading and had designed the swale. The investigative report does not contain sufficient information to make that determination. Such information could easily have been obtained from Mr. Petrozak, but the investigator did not get the information nor did Ms. Gaffney request the information. Ms. Gaffney assumed that because transformers were being provided and that halogen lights were being installed that Boetzel hardwired the installation of the lights and transformers. She assumed that because lights were being placed near a mailbox that the work would entail more than plugging in the lights. The information contained in the investigation file is insufficient to supports such assumptions. The investigator could have obtained the necessary information from Mr. Petrozak, but did not do so nor did Ms. Gaffney request the information.
The Issue The issue is whether Respondents committed the acts alleged in the Administrative Complaint, and if so, what discipline should be imposed.
Findings Of Fact Richard and Clara Marron have an in-ground, fiberglass pool at their home in Zephyrhills. The pool is approximately 25 years old. In December 2005, the Marrons' pool service company told them that the pool had a leak. The pool service company referred the Marrons to Coral Isle Pools and Spas (Coral Isle) in Zephyrhills. Coral Isle was owned and operated by Richard Delafield--the father of Respondent Scott Delafield--until his death on January 31, 2006. Richard Delafield was a registered building contractor, registered pool/spa contractor, registered plumbing contactor, and the qualifying agent for Coral Isle. On or about March 29, 2006, the Marrons went into Coral Isle's store and talked to Scott Delafield about fixing the leak in their pool.2 Mr. Delafield determined that the pool was leaking around the underwater light fixture and that the light needed to be replaced. He agreed to perform the necessary repairs for $858.55. The invoice prepared by Mr. Delafield described the work to be performed as follows: "dig under deck redue [sic] electrical conduit" and "labor to install light and do diagnostic on transformer." On May 6, 2006, the Marrons made an initial payment of $250.00 to Coral Isle. On May 15, 2006, Mr. Delafield performed the work on the Marrons' pool. Mr. Delafield did not obtain a permit from Pasco County before commencing the work on the Marrons' pool.3 The work was done in four stages. First, a trench was dug under the pool deck to provide access to the back of the light fixture. Second, the existing light was removed and replaced with a new light. Third, the wire for the new light was routed through PVC conduit pipe Mr. Delafield laid in the trench. Fourth, Mr. Delafield connected the wire to the "junction box"4 adjacent to the pool deck. The trench under the pool deck was dug by Carl Lind or Mark Pickett, not Mr. Delafield. Mr. Lind and Mr. Pickett were subcontractors of Coral Isle. Mr. Delafield removed the existing light by removing the screws on the front of the light fixture. He then installed the new light and ran the wire for the light through new PVC conduit pipe to the junction box. On May 17, 2006, the Marrons paid the balance of the invoice, $608.55. Mr. Delafield did not perform any work on the higher voltage electrical wires between the junction box and the breaker box at the house. Mr. Delafield did not drain the pool to replace the light. He was able to access the light fixture from the front because the water level in the pool was below the fixture as a result of the leak in the pool. At some point after Mr. Delafield completed his work on the pool light, Mr. Lind and/or Mr. Pickett drained the Marrons' pool in order to "patch" the fiberglass bottom of the pool.5 The light installed by Mr. Delafield works, and the pool no longer leaks. Indeed, the Marrons acknowledged in their testimony at the final hearing that the work done by Mr. Delafield fixed the leak and that the pool now "holds water." Mr. Delafield and Coral Isle were not licensed, registered, or certified to perform electrical contracting work at the time Mr. Delafield performed the work on the Marrons' pool light. In April 2006, the Department issued temporary emergency certifications to Mr. Delafield as a registered building contractor, registered pool/spa contractor, and registered plumbing contractor. The certifications authorized Mr. Delafield to complete Coral Isle's "projects in progress" at the time of Richard Delafield's death. The certifications did not authorize Mr. Delafield to enter into new contracts, nor did they authorize him to perform electrical contracting work. The Marrons' project was not in progress at the time of Richard Delafield's death. The agreement to perform the work was not entered into until several months after his death. In June 2006, the Marrons filed an unlicensed activity complaint against Mr. Delafield and Coral Isle. The Department incurred costs of $206.69 in its investigation of the complaint, not including costs associated with an attorney's time. In February 2007, the Marrons made a claim for $150,000 against Richard Delafield's estate in which they alleged that their pool and deck were "rendered useless" due to the negligence of Coral Isle. They also filed a civil suit against Mr. Delafield and others for damage to their pool. The Marrons did not pursue the claim against the estate, but the civil action is still pending. Coral Isle is no longer in business. Mr. Delafield testified that he planned to pursue licensure so that he could keep the business operating after his father's death, but that he never did so. Mr. Delafield was unemployed at the time of the final hearing.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department issue a final order that: Finds Mr. Delafield guilty of unlicensed electrical contracting in violation of Sections 455.228 and 489.531, Florida Statutes; Imposes an administrative fine of $1,000 on Mr. Delafield; and Requires Mr. Delafield to pay the Department's investigative costs of $206.69. DONE AND ENTERED this 25th day of February, 2008, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 2008.
