Findings Of Fact James Paleveda, one of the Petitioners, took the examination for a plumbing contractor's license on February 10 and 11, 1983, and failed the examination. He was the only witness to testify on behalf of the Petitioners. Some of the other Petitioners took a different examination on different dates than the examination complained of in these proceedings, but no evidence was presented identifying those Petitioners and no evidence was presented relative to those exams. Petitioners presented no evidence that any or all of them gave incorrect answers to the questions complained of, and, but for those incorrect answers, they would have passed the examination. The sum and substance of the testimony presented by the Petitioner Paleveda was that, in his opinion, most of the questions in Exhibit 1, the examination Paleveda took, were not appropriate to determine if the applicant is qualified to be a plumbing contractor. Paleveda has never been a plumbing contractor and has little experience in the contracting field. He is also nearly 57 years old and, although fit, conceded the long examination for a man his age and background was much more tiring than it would be for a younger man fresh out of school. Questions 1 through 27 of Exhibit 1 deal with social security taxes withheld and paid by employers for their employees; federal income taxes withheld; Florida mechanics lien law; workers' compensation law; unemployment compensation law; Florida Construction Industry Licensing law; accounting and cost-keeping procedures; and general contract provisions. Petitioners contend that although some knowledge of these subjects is desirable, a contractor can always hire accountants and lawyers to handle these problems. Respondent, on the other hand, presented the testimony of plumbing contractors who have been in the business for many years who testified that knowledge of the cost of social security, workers' compensation and unemployment insurance, contract provisions, and all costs associated with the performance of plumbing contracts are essential if a plumbing contractor is to remain solvent. This latter testimony is deemed more credible and is factually accepted. Questions 28 through 93 generally involve questions form the Plumbers Handbook and Mathematics for Plumbers and Pipe Fitters. Petitioner's primary objections to these questions are that in some cases the answers from the Plumbers Handbook is different from the local codes. Respondent presented evidence that there are some differences throughout the state in the plumbing codes and this is the principal reason for utilizing a standard that can be applicable to all candidates. The candidates are told that the correct answers to those questions are those given in the Plumbers Handbook and the examinees are allowed to have this book in the examination room. Questions 94 through 100 are taken from the Solar Water and Pool Heating Manual and Petitioners contend these questions are too hard. Petitioners further contend that any plumber should check with the manufacturer for specific instructions before installing a solar water heating system. All plumbing contractors are authorized to install a solar water hearing system and each should be required to demonstrate a rudimentary knowledge of such a system before being so licensed. Accordingly, Petitioner's objections to these questions are without merit. The first 27 questions to which the Petitioners object are very similar to the questions given to all building contractors for a statewide license. Those questions cover areas that a contractor must know to remain financially solvent. Most contractors initially starting a business do not have sufficient capital to hire attorneys and accountants to advise each time a question arises regarding these fields. A contractor can hardly afford to hire an attorney to file a $200 mechanics lien.
Recommendation It is RECOMMENDED that the COMPLAINT and other contentions of Petitioners regarding the unfairness of the February 11 and 12, 1983 examination for plumbing contractors be dismissed. DONE AND ENTERED this 20th day of July 1984 at Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of July 1984. COPIES FURNISHED: Michael Steinberg, Esquire 2055 Dale Mabry Tampa, Florida 33609 Drucilla E. Bell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 W. Douglas Moody, Esquire 199 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact At all times material to this action, Respondent was and presently is a registered plumbing contractor having been issued License No. RF0038438. On August 18, 1981, the Collier County Contractor's Licensing Board revoked Respondent's competency card to practice plumbing in Collier County. The revocation was based upon Respondent's violation of Sections 4.1.10 and 4.1.17, Collier County Ordinance No. 78-02. Respondent failed to appear at the public hearing held before the Collier County Contractor's Licensing Board on August 18, 1981.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent's license as a registered plumbing contractor be revoked. DONE and ENTERED this 9th day of August, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of August, 1983. COPIES FURNISHED: Xavier J. Fernandez, Esquire Nuckolls, Johnson & Fernandez Post Office Box 729 Fort Myers, Florida 33902 Danny E. Fox Route 1, Box 54 Pleasant Shade, TN 37145 Mr. James Linnan Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The central issue in this case is whether Petitioner should obtain credit for the answers he gave to questions 1, 3, 4, 12, 13, 14, 17 and 19 of the June, 1990 certified plumbing contractor examination.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received, the following findings of fact are made: The Petitioner is an unsuccessful applicant for licensure to become a certified plumbing contractor. Petitioner took the examination administered in June, 1990, and timely filed written challenges to questions numbered 1, 3, 4, 12, 13, 14, 17 and 19. The examination was developed by the National Assessment Institute, a division of ASCI, for the Department of Professional Regulation, Construction Industry Licensing Board (Department). Petitioner's challenges were disallowed by the Department and the instant review was initiated by Petitioner. The challenged questions can be divided into two categories: questions 1, 3, and 4 of the exam required the applicant to review a plan view of a plumbing configuration and to draw an isometric view of the plumbing design. The second group of questions: 12, 13, 14, 17 and 19 required the applicant to answer multiple choice options based upon the Standard Plumbing Code and the illustrations related to each question. With regard to questions 1, 3, and 4 the skill tested was the applicant's ability to look at the plan view, a single dimension floor plan, and to draw the isometric view, a three dimensional plan of the piping system with elevations relative to the fixtures being depicted. As to each of these questions the applicant was to assume the following: GIVEN: Floor plan for a sanitary waste and vent system serving a typical commercial building. Assume the drawing and piping arrangement are in accordance with the Standard Plumbing Code. Draw an isometric piping diagram in the space provided on the right. Maintain the same fixture arrangement and piping configuration. Do not show pipe sizes. With regard to question 1, the Petitioner challenged the question because the isometric drawing for the floor drain would have to be lower than the other fixtures. Since the plan view only depicted one pipe, which connected the water closets and the urinals, Petitioner determined that the floor drain could not be drawn at the appropriate elevation. To correctly draw the isometric for this question Petitioner would have had to assume the question deviated from a normal construction drafting method and "hid" a pipe below the pipe serving the other fixtures. Instead of indicating the second pipe for the floor drain, Petitioner omitted it altogether since he believed only one pipe was there. Petitioner altered the piping configuration with regard to the shower for question 1 in that he tied the vent stack to the one vent through the roof instead of showing the shower with its own vent. Consequently, Petitioner's isometric drawing for question 1 was incorrect. With regard to question 3, Petitioner challenged this question since he felt his isometric drawing correctly depicted the plumbing configuration. Question 3 showed a plan view of four bathrooms utilizing a "T" shaped pipe to which the fixtures would drain. Petitioner's isometric drawing did not show traps for the lavatories to be installed. Instead, Petitioner indicated "LAVS" next to the piping configuration. Traps are required for all lavatories and should have been depicted on the isometric drawing. The Petitioner's drawing for question 3 was therefore incorrect. Petitioner's challenge to question 4 was based upon his assertion that the plan view did not depict a kitchen sink vent and that, therefore, his isometric of that plan would only need to draw the piping as shown. Additionally, Petitioner noted that the sink was not described in the schedule of fixtures listed in the legend for the examination. Petitioner's challenge to question 4 is valid because the configuration shown in the plan view would be improper and contrary to code. Consequently Petitioner's isometric, while not to code standard, conforms to the plan requested. The Department's assertion that the wall clean out should be viewed also as a vent is contrary to the way vents are depicted throughout the test and was not credible. The Petitioner's challenge to question 12 claimed that while his answer was incorrect the Department's answer was also incorrect. The most correct selection from the options offered was "D". Petitioner has substantiated this claim based upon the horizontal branch having a sufficient diameter to accommodate the four "sink" fixtures. Consequently, this question should be deleted from scoring. This question could have reasonably been calculated based upon two interpretations of the code. Accordingly, the only correct answer was "D". Question 13 related to a horizontal fixture branch for a public bathroom setting. In the diagram two back-to-back bathrooms with three water closets (tank type) and two lavatories were depicted. As drawn the Department claimed the illustration complies with the code. The Petitioner determined that the loop vent for the configuration was too small. The essence of Petitioner's claim is based upon an assertion that the developed length of the piping for fixture clearances must be considered to compute the vent size on the vertical rise. Based upon the code requirements the 2 inch vent depicted in zone "H" cannot meet standards. Consequently, the system does not comply with the code. Petitioner should receive credit for this question. Question 14 related to zone "I" which depicted a bathroom configuration. According to the Department, the system, as illustrated, complied with the code. Petitioner's response to the question found the vertical vent through the roof to be too small. The issue for this question relates to whether the floor drain should be assigned 5 drainage fixture units or 1 drainage fixture unit. The number of the fixture units dictates the pipe size. In this instance the 1 1/2 inch vent pipe is incorrect. Consequently, the Department's answer for this question was incorrect. The Petitioner's answer was more correct but was also erroneous since the size pipe through the roof was large enough. Zone "L" depicted a horizontal combination for a waste and vent system located within an area which did not allow the fixtures to be individually vented. Question 17 required the applicant to review the configuration and to determine whether the drawing was correct or incorrect. If incorrect, the options required the applicant to specify the reason the system failed to meet code. For this question the Department and the Petitioner both concluded that the system was incorrect. The reasons differed, however, as to why the depicted design failed. In this instance the system could be permitted if the upstream system were washed. The Petitioner's answer was as correct as that of the Department; consequently, Petitioner should receive credit for his answer. Petitioner's challenge to question 19 claimed that the Department's answer required the applicant to look at a separate zone ("M") to reach the answer. The review of the second zone was contrary to the general instructions according to Petitioner. Petitioner's assertion in this regard was incorrect since the zones were interrelated and reasonably had to be reviewed together. Based upon that assessment the Department's answer was the most correct.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a final order be entered granting Petitioner's challenge to the examination as to questions 4, 12, 13, 14, and 17; giving Petitioner credit for his answers to questions 4, 13, and 17, and deleting questions 12 and 14. Further, that the examination questions and answers provided at hearing be sealed and not open to public inspection. DONE AND ENTERED this 13th day of May, 1991, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of May, 1991. APPENDIX TO RECOMMENDED ORDER Rulings on the Proposed Findings of Fact submitted by the Petitioner: Petitioner did not submit proposed facts in a form to allow specific rulings as to acceptance or rejection of a stated fact. The unnumbered paragraphs consuming 10 pages contained argument, comment, and supposition in addition to factual matters related to the challenge. The paragraphs (referred to in order of their presentation) which can be accepted are as follows: 2, 4, 14, 15, 17, 18, 21 and 22. All other paragraphs contain either comment or are too nonspecific to accept in the form presented. Consequently they are rejected as argument, recitation or citation to testimony, or irrelevant. Rulings on the Proposed Findings of Fact submitted by the Respondent: Respondent also failed to present proposed findings of fact in a form to allow rulings on a convenient basis. Rulings are addressed by numbered paragraphs as to those accepted: The first sentence of paragraph 1 is accepted. The last three sentences of paragraph 1 are accepted. With regard to paragraph 2, the first sentence and the last two sentences of the paragraph are accepted. The first sentence of paragraph 3 is accepted. The first three sentences of paragraph 4 are accepted. The first three sentences of paragraph 5 are accepted. The last sentence of paragraph 7 is accepted. The first three sentences and the last sentence of paragraph 8 are accepted. The remaining portions of the proposed facts are rejected as recitation of testimony, comment, or argument. COPIES FURNISHED: Anthony S. Rachuba, Jr. TR Mechanical, Inc. 1665 Foulkrod Street Philadelphia, PA 19124 Vytas J. Urba, Staff Atty. Dept. of Professional Regulation 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792 Daniel O'Brien, Exec. Director DPR-Construction Industry Licensing Board P.O. Box 2 Jacksonville, FL 32202 Jack McRay, General Counsel Dept. of Professional Regulation 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792
The Issue The basic facts are not really disputed. Petitioner has many years experience as a plumber. The law is controverted. The agency says the required experience as a contractor must be with a fire sprinkler contractor. The Petitioner argues the statute does not define "contractor," and its common meaning would include plumbing contractor. Evidence was received that the agency has long held "contractor" to be limited to fire sprinkler installation contractors, and that this is based upon the special expertise required in design and installation of these systems. The argument of the Respondent that "contractor/ contracting" as it is used in the statute generally applies to fire sprinkler contractors is more persuasive based upon the evidence. The parties have submitted posthearing Proposed Findings of Fact. A ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.
Findings Of Fact Mr. Frederick Hagen applied with the Department of Insurance, Office of the State Fire Marshal, to take the written examination for a license to engage in the business of designing and installing fire protection systems as a Contractor II, type 7, class 12, as defined by Section 633.021(5)(b), Florida Statutes. On July 8, 1985, his original application was hand- delivered back to him for failure to submit the appropriate application fee and the appropriate application form. Mr. Hagen's application was denied by the Department of Insurance, Office of the State Fire Marshal because he did not submit evidence of four years proven experience as required by Section 633.521(3), Florida Statutes. On August 8, 1985, Mr. Hagen requested a formal hearing on the denial of his application. At the hearing on November 12, 1985, Mr. Hagen submitted an original application and the appropriate fee to the Department of Insurance, Office of the State Fire Marshal. Petitioner's application was denied in accordance with long-standing agency policy because he did not submit evidence to show that he had the requisite experience as a fire sprinkler installation contractor or the educational background, or a combination thereof to be allowed to sit for the examination. (Transcript pages 16,17; Petitioner's Exhibit 1) At all times material herein, Frederick D. Hagen held a license from the Construction Industry Licensing Board and has been a plumbing contractor for over 12 years. (Transcript pages 25, 26) As a licensed plumbing contractor, he has been involved in the supervision of and actual installation of fire line stand pipes and fire sprinklers to the extent authorized by law. Petitioner submitted no evidence at the hearing of his education and experience in the design of sprinkler installations. Petitioner indicated that he considered the design of these systems as similar to design of a plumbing system, given the building codes and plans. Design of sprinkler installations is integral to the work performed by a Contractor II, type 7, class 12. Design of sprinkler installations is based upon codes plus experience received in working in the profession. Employees of these specialized contractors receive special educational training in design of systems. Experience of a plumbing contractor in reading codes and applying them in installing plumbing systems would be inadequate experience to qualify one to design a sprinkler system.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is: RECOMMENDED that Mr. Hagen's application for examination to engage in the business of fire protection systems as a Contractor II, type 7, class 12, be DENIED. DONE AND ORDERED this 10th day of December 1985, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of December 1985.
The Issue The issue to be determined is whether Respondent held himself out as a certificate holder in violation of section 468.629(1)(a), Florida Statutes, and if so, what penalty should be imposed?
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of building code administrators and inspectors pursuant to section 20.165 and chapters 455 and 468, Part XII, Florida Statutes. At all times material to the allegations in this case, Respondent was licensed as a standard inspector in Florida, having been issued license number BN 5106. Respondent also held provisional licenses as a plumbing inspector and a mechanical inspector. Both licenses expired on January 24, 2009. Respondent's license as a standard inspector did not permit him to perform plumbing or mechanical inspections. Therefore, after January 24, 2009, he was not authorized to perform them. From February 3, 2003, to October 20, 2009, Respondent was employed by Wakulla County as a building inspector. The Wakulla County Building Division uses inspection cards to track information related to permits and inspections on permitted building projects. While these information cards are not required by state law, the information is a useful tool for the building division and inspectors were expected to complete them. An inspector's initials next to a particular inspection on an inspection card indicate that the inspector identified by initials performed the applicable inspection. If an inspector fails to sign the card when an inspection is completed, the card might be updated by another inspector who, after confirming the inspection had taken place, would initial for the other inspector and then put his or her own initials in parenthesis. For example, if Respondent conducted a framing inspection, he would identify the type of inspection in the "type" column and in the column titled Inspect., would put OKRN. If he failed to sign the inspection card and someone confirmed that he had performed the inspection, the notation would read, OKRN (CI). A permit was issued for a mechanical upgrade at an existing church located at 953 Sopchoppy Highway. On April 23, 2009, Respondent signed the inspection card indicating that he had performed the re-inspection of the project. A permit was issued on March 31, 2009, to install plumbing in an existing commercial building located at 2500 Crawfordville Highway. Respondent signed the inspection card for two separate inspections: the rough slab on April 1, 2009, and the final inspection on July 29, 2009. On April 23, 2009, a permit was issued to install plumbing in existing restrooms at a building located at 1362 Old Woodville Highway. On April 24, 2009, Respondent signed the inspection card indicating that slab plumbing inspection had been performed and the work had passed inspection. On June 22, 2009, a permit was issued to install plumbing for a building at 71 Riverside Drive. On June 23, 2009, Respondent signed the inspection card indicating that the rough plumbing inspection had been performed and the work had passed inspection. Respondent's provisional mechanical and plumbing inspector licenses had already expired at the time that he signed the inspection cards identified above. Respondent did not advise his supervisor, Luther Council, when his provisional plumbing and mechanical inspector licenses expired. Mr. Council testified that he, rather than Respondent, actually performed all four of these inspections and that Respondent simply signed the inspection cards. Respondent's employment with Wakulla County was terminated on October 20, 2009. On November 25, 2009, a complaint was opened by the Department of Business and Professional Regulation, alleging a possible violation of section 468.629(1)(a), Florida Statutes. The complaint was assigned DBPR Case Number 2009-061682. On December 1, 2009, Respondent was notified by letter of the complaint filed against him, and was given an opportunity to file a response to the complaint. A memo was generated on January 29, 2010, regarding the April 14, 2010 probable cause panel meeting. DBPR Case Number 2009-061782 was listed on this memo, under a category described as "Cursory Reviews." No evidence was presented to indicate what directions were given regarding the complaint by the probable cause panel, or whether the April meeting actually took place. Probable cause was found June 9, 2010.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Florida Board of Building Code Administrators and Inspectors dismiss the Administrative Complaint in its entirety. DONE AND ENTERED this 28th day of December, 2010, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 2010. COPIES FURNISHED: Elizabeth F. Duffy, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 Richard Larry Noles 62 Quail Run Crawfordville, Florida 32327 Robyn Barineau, Executive Director Building Code Administrators and Inspectors Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Reginald Dixon, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issue is whether the Petitioner, Nelson Castillo, is entitled to be certified for a commercial pool/spa contractor’s license.
Findings Of Fact The Petitioner is an applicant for certification as a commercial pool/spa contractor. The Petitioner currently holds certification as a pool/spa servicing contractor. The Petitioner has held this certification for approximately eight years. The Petitioner, in his capacity as a certified pool/spa servicing contractor, was the subject of three administrative cases referred to the Division of Administrative Hearings. The cases were designated DOAH Case Nos. 04-2380PL, 04-2381PL, and 04-2382PL. As to all three cases, on September 20, 2004, the Petitioner executed a Stipulation (the Stipulation) that provided, in pertinent part: 3. Respondent [this Petitioner] neither admits nor denies the allegations of fact contained in the Administrative Complaints attached hereto as Exhibit “A.” * * * FINE AND COSTS: Respondent shall pay a fine in the amount of Ten Thousand and 00/100 dollars ($10,000.00) and costs in the amount of One Thousand Three Hundred Ten and 51/100 dollars ($1,310.51), for a total of Eleven Thousand Three Hundred Ten and 51/100 dollars ($11,310.51), to the Board. RESTITUTION: The Respondent shall pay restitution to Jose and Bernardina Rodriguez in the amount of Five Thousand One Hundred Seventy Five dollars ($5,175.00) and to Orestes and Lourdes Martinez in the amount of Six Thousand Five Hundred dollars ($6,500.00), in installments, as set forth below. * * * 6. EARLY TERMINATION OF PROBATION AFTER TWO (2) YEARS: After two (2) years of satisfactory probation appearances, if the Respondent pays in full all of the fine and costs described in paragraph 2 above and pays in full all of the restitution described in paragraph 3 above and furnishes satisfactory written evidence thereof to the Executive Director of the Board, then the Respondent’s probation shall terminate. * * * 12. Upon the Board’s adoption of this Stipulation, Respondent understands and agrees that this Stipulation constitutes disciplinary action within the meaning of Section 455.227(1)(f), and 489.129, Florida Statutes. [Emphasis and Italic in original.] The Stipulation was approved by the Respondent at its public meeting on November 11, 2004. Since that time, the Respondent has not taken any other administrative action against the Petitioner. Also considered at the November 2004 meeting, however, was the Petitioner’s application to become a certified commercial pool/spa contractor. The denial of the Petitioner’s application for that certification was the genesis of the instant case. The Petitioner freely, and with advice of counsel, executed and accepted the terms of the Stipulation. At the time the Stipulation was executed, the Petitioner understood the terms of the agreement. The Petitioner’s certification as a pool/spa servicing contractor is valid. The Respondent has taken no additional adverse action against the servicing certification. The Petitioner has not paid all the sums required by the stipulation. It is barely two years since the Final Order Approving Settlement Stipulation was entered. The Petitioner’s certification as a pool/spa servicing contractor was disciplined as a result of the entry of the Final Order Approving the Settlement Stipulation. The scope of work that the Petitioner may perform pursuant to his certification as a pool/spa servicing contractor differs from the scope of work authorized by the certification sought in the instant matter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board enter a Final Order that denies the Petitioner’s application for certification as a commercial pool/spa contractor. DONE AND ENTERED this 20th day of February, 2007, in Tallahassee, Leon County, Florida. S J. D. Parrish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 2007. COPIES FURNISHED: Claudel Pressa, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Warren Diener, Esquire Bared & Associates, P.A. The Atrium 1500 San Remo Avenue, Suite 248 Coral Gables, Florida 33146 G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Petitioner is entitled to licensure by endorsement, pursuant to Section 489.115, Florida Statutes (2003).
Findings Of Fact On or about April 4, 2003, Petitioner applied for a certified plumbing contractor's license by endorsement. Applicants who seek a licensure by endorsement must have passed an examination that is substantially equivalent to the examination given in Florida or hold a license in another state or territory of the United States where the criteria for issuance of the license is substantially equivalent to Florida's criteria. At all times relevant to this proceeding, Petitioner was licensed or certified as a plumber in Georgia, Alabama, and Tennessee. For the purpose of his application for licensure by endorsement, Petitioner submitted information to the Board regarding the examination he took in Georgia. Petitioner was not precluded from submitting information regarding the examinations he took in Alabama and Tennessee. However, Petitioner submitted the information regarding the examination he took in Georgia because it was the one he had taken most recently. Georgia gives three different plumbing examinations and issues three different plumbing licenses. One examination is for a journeyman's license. Another examination is for a Class I restricted plumbing license. Still, another examination is given for a Class II unrestricted plumbing license. In order to obtain his plumbing license in Georgia, Petitioner successfully completed the Class I Restricted Georgia Examination (Georgia Examination). Florida issues only one certified plumbing contractor's license and that license is the equivalent of Georgia's Class II unrestricted plumbing license. To meet the examination requirement for licensure as a plumber in Florida, an applicant must successfully complete the Certification Examination for Plumbing Contractors (Florida Examination or Certification Examination for Plumbing Contractors). Stephen Allen, a psychometrician employed by the Department of Business and Professional Regulation, evaluated the Georgia Examination to determine if it were substantially equivalent to the Florida Examination. In determining whether the Georgia Examination and the Florida Examination were substantially equivalent, Mr. Allen considered and compared the material covered; the emphasis placed on various topics; the actual content of the examinations; the general characteristics of the examination; the number of questions; the amount of time allowed to complete the examination; the weight given to various areas or categories of the examinations; and the method of measuring knowledge in the various content areas. Based on a comprehensive review and analysis of the Georgia Examination and the Florida Examination, Mr. Allen properly determined that the Georgia Examination was not substantially equivalent to the Florida Examination. The area in which the examinations are significantly different is the isometric area or category. First, the relative weight on the isometric area of the examinations varies greatly. On the Florida Examination, the weight given to the isometric area is 31 percent. On the Georgia Examination, the weight given to the isometric area is, at most, only 6 percent. Second, the knowledge of isometrics is measured differently on the examinations. The Florida Examination requires that the candidate demonstrate knowledge of isometrics by having the candidate draw five different isometric drawings, which show the room's plumbing based on the fixtures to be installed. The five drawings are graded on legibility, orientation, flow, angles, piping, labeling, and vents. The Georgia Examination is a multiple choice examination and measures knowledge of isometrics by the candidate's selecting the correct answer from four possible answers. The Georgia Examination successfully completed by Petitioner to obtain his master plumber's restricted license is not substantially equivalent to the Florida Examination. Petitioner is ineligible for licensure by endorsement because the examination he took in Georgia is not substantially equivalent to the Florida Examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board enter a final order denying Petitioner's application for licensure by endorsement. DONE AND ENTERED this 15th day of December, 2003, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 15th day of December, 2003. COPIES FURNISHED: Barbara Rockhill Edwards, Esquire Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 William Lantrip 927 Lakewood Drive Dunedin, Florida 34698-7218 Timothy Vaccaro, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Nancy Campiglia, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
Recommendation Based on the foregoing finding of fact and conclusions of law, it is RECOMMENDED that Respondent, Harold D. Biggs, be found guilty of violating Subsections 409.129(1)(j), 489.113 (2)and (3), and 489.117(1) and (2), Florida Statutes, and be given a public reprimand and pay a $500 fine; all other charges should be DISMISSED. DONE and ENTERED this 23rd day of November, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER 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 23rd day of November, 1982.
The Issue At issue is whether Respondent committed the offenses set forth in the Amended Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, the Department, is the state agency charged with the duty and responsibility of regulating the practice of contracting pursuant to Chapters 20, 455 and 489. At all times material to the allegations of the Amended Administrative Complaint, Stephen Wesley Williams, d/b/a Superior Design Construction, Co. Inc., was licensed as a Florida State Certified Building Contractor and a Florida State Certified Pool/Spa Contractor, having been issued license numbers CRC 045849 and CPC 56443 respectively. His licensure status for the Residential Contractor license is designated as "Current, Active." His licensure status for the Pool/Spa Contractor license is designated as "Delinquent, Active." On or about December 19, 2001, Respondent, doing business as Superior Design Construction Company, Inc., entered into a contract with Thomas and Denise Shinn (the Shinns) for construction of a residential swimming pool and pool enclosure to be located at 4050 Retford Drive, Jacksonville, Florida. The contract price was $40,000.00. Respondent obtained a building permit for the job in question as "Superior Design Const Co." The contract does not contain a written statement explaining the consumer's rights under the Construction Industries Recovery Fund. The Department's records establish that Respondent's Certificate of Authority for Superior Design and Construction as a Contractor Qualified Business was issued on May 9, 1997, but has been null and void since August 31, 1999. Construction on the project began around January 2002. Work on the project ceased in or around March 2002. The construction was substantially completed when work ceased on the pool. Mr. Shinn described it as "98 percent of it was finished except for the heater." Other than the heater not being installed, Mr. Shinn considered the few other items that were not completed as minor. The contract specified the installation of a heat pump called an Ice Breaker. This type of pump was specified because it can both heat and cool a pool, which is what the Shinns wanted. Mr. Shinn paid Respondent a total of $38,050 for the job. According to Mr. Shinn, he withheld the final payment of $1,950 because the Ice Breaker heat pump was not installed. According to Respondent, he did not put in the heat pump because he had not been paid the remaining $1,950. The portion of the contract entitled Contract Price & Payment Schedule requires a payment of $1,000 at contract execution and four subsequent payments: Payment #1 - 35% due at Excavation; Payment #2 - 30% due at Gunite; Payment #3 - 30% due at Deck; Payment #4 - 5% due at Plaster. The amount listed for payment number 4 is $1,950. Included in the General Terms and Conditions portion of the contract is the following: PAYMENTS & COLLECTIONS. Contractor reserves the right to stop work at any time past due payment occurs. Owner hereby expressly agrees to such work stoppage and any such work stoppage shall not constitute a breach of contract by contractor. If collection is required of any amounts due under the terms of this contract, or any subsequent approved schedule, owner expressly agrees that he shall be responsible for 18% interest and reasonable attorney's fees for trial, appeal and all costs. Mr. Shinn contacted Respondent several times regarding completion of the contract. While Respondent did not answer many of Mr. Shinn's calls, he did come to the Shinn's home at one point to resolve the situation. However, the heat pump issue remained unresolved. Out of frustration, Mr. Shinn contacted an attorney who wrote a demand letter to Respondent. On or about October 31, 2002, the City of Jacksonville, Department of Public Works, Building Inspection Division, sent a letter to Mr. Shinn notifying him that Respondent had not obtained any inspections for 180 days and that state law could consider this project abandoned. The letter suggested that he contact Respondent immediately to attempt to rectify this situation. Mr. Shinn continued to attempt to contact Respondent but was unsuccessful. Respondent did not notify the Shinns in writing that he was canceling the contract. He did not go to the city to cancel the permit. One work item that was not completed when Respondent ceased working on the job was an unfinished electrical socket near the pool. Mr. Shinn hired Thompson Electric to complete this electrical work that was contemplated by the contract. As a result, Mr. Shinn paid $207.50 to Thompson Electric to have this work completed. In January of 2004, Mr. Shinn contracted with Pinch- A-Penny to install a heater in the pool as one had never been installed. He paid Pinch-A-Penny $3,777.09 to install a pool heater. Mr. Shinn chose to install only a pool heater and not the heating and cooling system specifically referenced in the contract (Ice Breaker) because the Ice Breaker would have cost him $5,500 from Pinch-a-Penny. The amount needed to complete the job as contracted totaled was $5,707.50, which includes $207.50 for Thompson Electric and $5,500.00 for the Ice Breaker heat pump, which is what Pinch-a-Penny charges. Subtracting the $1,950 that the Shinns never paid Respondent leaves a balance of $3,757.50 that the Shinns paid or would have to pay to get the completed pool as contemplated by the contract. As of June 2, 2005, the Department's costs of investigation and prosecution, excluding legal costs, totaled $614.77. Respondent's construction company went out of business on a date that is not clear from the record although Respondent described this job as "about the last pool I built." Clearly, he was no longer in the construction business on the date of the hearing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Construction Industry Licensing Board enter a final order imposing a $100.00 fine to be deposited in the Construction Industries Recovery Fund for a violation of Section 489.1425; issue a notice of noncompliance pursuant to Section 489.119(6)(e); impose fines in the amount of $500 for abandonment of a construction job; $500 for misconduct; and $100 for failure to put his license number on the contract; pay $3,757.50 in restitution; and require Respondent to pay $614.77 in costs of investigation and prosecution. DONE AND ENTERED this 11th day of August, 2005, in Tallahassee, Leon County, Florida. S ___________________________________ BARBARA J. STAROS 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 11th day of August, 2005. COPIES FURNISHED: Brian Elzweig, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Stephen Wesley Williams 3146 Brachenbury Lane Jacksonville, Florida 32225 Tim Vaccaro, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Leon Biegalski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
