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.
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 issue to be resolved in this proceeding concern whether the Petitioner Gary L. Neal, is qualified by virtue of experience, training and education, in accordance with the provisions of Section 633.521, Florida Statutes, to sit for the Fire Protection Systems Contractor V examination for licensing.
Findings Of Fact The Petitioner Gary L. Neal seeks to take a written examination for purposes of ultimate licensure as a "Fire Protections Systems Contractor V." The Contractor V license enables a license holder to install underground water mains that are connected to a fire protection system, such as a sprinkler system. The Petitioner presently holds a Certified Plumber's License in the State of Florida and has been so licensed since March 11, 1981. He also holds a Master Plumber's License for the State of Georgia. Prior to the creation of a separate license for installation of underground water mains connected to Fire Protection Systems, the Contractor V license for which the Petitioner seeks to be examined, installation of these water mains was performed by certified plumbing contractors, including the Petitioner, and by underground utility contractors. Underground water mains installed for potable water and fire protection systems were once one and the same, before Fire Code changes mandated that these be separate lines. Even after the creation of the Contractor V license, local code enforcers took the position that plumbers and underground utility contractors could perform this work, so long as they did so under the supervision and control of Fire Protection Contractors, which practice continued until 1996. The Petitioner established that, as a Certified Plumbing Contractor since 1981, he has installed underground water mains for many years, including water mains connected to fire protection systems, as well as those connected to potable water systems. His testimony was corroborated by the sworn deposition testimony of persons who have supervised his work. See Exhibits 43, 44 and 45, in evidence. The trenching, excavation and pipe assembly skills required for installing underground water mains are the same whether the water main is used for Fire Protection Systems or used for potable water. The only substantive difference is the materials used and the testing procedures. For water mains connected to Fire Protection Systems, materials and testing are controlled by the National Fire Protection Association Code (NFPA), as adopted by the State of Florida. Knowledge of that fire code is tested on the Contractor V examination, which the Petitioner seeks to take. All other aspects of installing underground water mains, whether for use by Fire Protection Systems or for potable water, are governed by the National Plumbing Code, which applies to the work of Certified Plumbing Contractors such as the Petitioner, Certified underground utility contractors and Fire Protection Contractor V contractors. Both Florida and Georgia allow persons holding plumbers licenses to install underground utilities, work that may also be performed by underground utility and excavation contractors in Florida. Both Florida and Georgia require plumbing contractors to take continuing education courses in subjects that include the installation of underground utilities and excavation. In Florida these courses include NFPA Code material. The Petitioner demonstrated, through un-rebutted evidence that he has satisfied the continuing education requirements (annually) of both Florida and Georgia through taking formal classroom education courses in subjects that have included course work in trenching, excavation and installation of underground water mains. These classes have included course work in the National Fire Protection Association Code governing the installation of components of fire protection systems. Prior to obtaining his Certified Plumber's License in 1981, the Petitioner was employed by various underground utility and excavation contractors, including Junger Utilities, as well as certified plumbing contractors who performed underground utility and excavation contracting. The Petitioner's experience included excavation for and installation of underground water mains. The Petitioner's experience with these companies was established by his un-refuted sworn testimony since these companies are no longer in existence and could not have a representative to testify or supply letter documentation. The Petitioner has established a total experience of more than 28 years in the installation of underground water mains and other underground utilities, including the installation of water mains connected to fire protection systems. This was established through the un-rebutted testimony of the Petitioner and corroborated by the deposition testimony of witnesses Thomas M. Brown, Dale R. Cowie and Jimmy Patrick Riley. This experience was gained both as an employee of companies performing underground utilities work and through directly contracting for such work by virtue of holding a license that authorized him to contract for underground utilities work. (Certified Plumber's License). The Petitioner is employed by Professional Plumbing of NWF, Inc., as President, Chief Executive Officer, as well as qualifying agent. Professional Plumbing of NWF, Inc., the Petitioner's own corporation, is a company that, because of the Petitioner's certified plumbers license, is authorized to perform and does perform trenching, excavation and installation of underground water mains as part of its underground utilities work. The Petitioner has been employed in that position since 1987. The Petitioner's 28 years of experience in performing layout, design, excavation and underground pipe assembly has included, without limitation, the same work for which he seeks to sit for an examination; i.e., the installation of the underground components of Fire Protection Systems. The fact that the Petitioner has successfully performed not only closely related work involving installation of underground water mains, but has successfully performed and completed the very same work for which he seeks to be licensed (by virtue of his Certified Plumber's License) is relevant to the issue of whether he has demonstrated sufficient education and experience to qualify him to sit for the Contractor V examination. During the Petitioner's 28 years in his profession he has worked as a laborer, a foreman, a project superintendent and a qualifying agent for a company (Professional Plumbing of NWF, Inc.) that installs underground water mains. His experience has included layout, design, financial administration and project management for underground utilities work. The Petitioner, by virtue of being a State Certified Plumber, has gained experience in "laying-out, fabricating, installing, inspecting, altering, repairing, or servicing fire protection systems" for purposes of qualifying for the "highest level" or scope of fire protection systems license, the Contractor I license. Although such experience is not a prerequisite to qualify for the lowest level or scope of fire protection license, the Contractor V license which the Petitioner seeks; the fact that the Department recognizes by Rule 4A-46.010, Florida Administrative Code, that the Petitioner, as a plumber, gains such experience is relevant to whether the Petitioner is qualified to sit for the Contractor V examination. The Department has conceded that a Contract I License is a "higher license" or higher or broader scope of license than that of a Contractor V, the license which the Petitioner seeks. The Department also concedes that a Contractor I, without holding a separate Contractor V license, may nonetheless perform every aspect of the work that may be performed by a Contractor V. Thus a Contractor V's license is a "lesser included" license to that of a Contractor I or a Contractor II. Similarly, it has been established that an underground utility and excavation contractor's license is a "lesser included" license to that of a Certified Plumbing Contractor, as a Certified Plumbing Contractor can perform all aspects of underground utilities and excavations that may also be performed by the holder of that "lesser" license. The minutes of the Construction Industry Licensing Board in evidence, together with the associated letter in evidence, establishes that that Agency, which is charged with the jurisdiction of regulating licensure and practice of both Certified Plumbing Contractors and underground utility and excavation contractors, interprets the latter license as being a lesser included license to that of Certified Plumbing Contractor and that a Certified Plumbing Contractor can perform all aspects of underground utility and excavation contracting. See Petitioner's Exhibits 3, 4, 36, 37, 38 and 42, in evidence. The Department's witness at hearing conceded that the Petitioner's more than 20 years of experience as a Certified Plumbing Contractor was the "equivalent of" the experience that would be gained from "working for" an underground utility contractor for four years. Given that concession, and in determining whether the Petitioner qualifies by the combination of education and experience method contained in the statute relating to qualification for the Contractor V examination, it must be determined whether the "education" he has attained is equal to that he would have gained in the "employment of" a Certified Underground Utilities Contractor." In this regard, given his acknowledged 28 years of experience, the Department acknowledged that the amount of education that the Petitioner would need to demonstrate would be minimal. The Respondent has also acknowledged that the "education" that the Petitioner must show to sit for the Contractor V examination would be the type of education the Petitioner would have gained by working for an underground utility contractor for four years. It was established that the type of education that could be expected from working for an underground utility contractor for four years would not be college education or necessarily formal classroom education but rather acquiring that body of knowledge required to install underground utilities including water mains through education on the job and through continuing education courses. Even if it were assumed that the Petitioner's Certified Plumbing Contractor's license is not at least "equal to" that of an underground utility and excavation contractor's license, which therefore would automatically qualify the Petitioner to sit for the examination, the Petitioner amply demonstrated at hearing that he had obtained the same body of knowledge, i.e., "education," at a minimum, that he would have obtained by virtue of being employed for four years by a company holding the "lesser included" license, i.e., the underground utility and excavation contractor's license. The Petitioner established that he acquired the "equivalent to" education through on-the-job training during more than 28 years in the business of installing and supervising the installation of underground utilities, as well as through attending more than 100 hours of formal classroom education in subjects that taught the skills required for the bidding, estimating, layout, design and performance of underground utilities work. The Petitioner established this education through his sworn testimony, as well as documentary evidence. He introduced into evidence, supplemented by his sworn testimony, all of the documentation of these courses within his possession and control. These continuing education courses are not graded, therefore, there could be no "transcripts." Although not specifically required by the governing statute, Chapter 633, the Petitioner demonstrated that his formal classroom education includes some 53 hours of instruction in the National Fire Protection Association Code governing fire protection contractors. He demonstrated that he has obtained formal classroom instruction in courses teaching the skills required for the performance of underground utilities work. In fact it was established that Certified Plumbing Contractors such as the Petitioner and Certified Underground Utility and Excavation Contractors, such as Lee Brown, who testified for the Petitioner, often take the same continuing education courses, in the same subject, due to the overlap in their scope of work. These courses are typically taught by industry professionals who know their subjects, rather than by local colleges. In fact, the Petitioner has more than 100 hours of classroom education on subjects including course material in the NFPA Codes, as well as technical issues relating to the installation of underground utilities.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Respondent Agency allowing the Petitioner to sit for the Contractor V examination. It is further, RECOMMENDED that if the Petitioner seeks to pursue a claim for attorney's fees and costs on the basis that the Respondent Agency's position was not substantially justified, that a proper petition within the time constraints of Section 57.111, Florida Statutes, must be filed, which has not been accomplished, since no final order has yet been entered in this matter. Thus the purported claim for attorney's fees and costs cannot be addressed at this time. DONE AND ENTERED this 20th day of December, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with Clerk of the Division of Administrative Hearings this 20th day of December, 2002. COPIES FURNISHED: Edward M. Fleming, Esquire McDonald, Fleming, Moorhead, Ferguson Green & Smith, LLP 4300 Bayou Boulevard Suite 13 Pensacola, Florida 32503-2671 Elenita Gomez, Esquire Department of Insurance Division of Legal Services 200 East Gaines Street 612 Larson Building Tallahassee, Florida 32399-0333 Honorable Tom Gallagher State Treasurer/Insurance Commissioner Department of Insurance The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307
The Issue The issue in the case is whether the application filed by Thomas Edwards Dalton (Petitioner) to take the examination for certification as a plumbing plans examiner should be approved.
Findings Of Fact The Petitioner is seeking to become a state-certified plumbing plans examiner. The Respondent is the state agency charged with responsibility for certification of plumbing plans inspectors. On December 12, 2013, the Petitioner submitted to the Respondent his application to take the examination for the certification sought. As required by rule, the Petitioner also submitted an “Affidavit of Work Experience” setting forth a statement of work experience presumably relevant to his application. The affidavit form requires that it be “completed by an architect, engineer, contractor or building code administrator, who has personal knowledge of the application’s experience” for the relevant period. The Petitioner wrote the narrative of his experience contained within the affidavit dated December 8, 2013. The affidavit was signed by a person identified as Anthony Applebeck, a building code administrator in Altamonte Springs, Florida. Generally, an “Application Review Committee” (ARC) comprised of three building code enforcement specialists reviews applications and affidavits submitted to the Respondent. In this case, two members of the ARC independently reviewed the Petitioner’s submission and determined that additional information related to the Petitioner’s work experience was required. In an email dated December 17, 2013, the Respondent advised the Petitioner that additional information was required. The letter stated as follows: The Affidavit of Work Experience that was submitted with your application is missing detailed hands-on plumbing experience. Please complete the enclosed Affidavit of Work Experience and submit it to the department. The person completing the work affidavit should be specific when explaining your duties and actual hands-on experience. The ARC’s determination that the Petitioner’s Affidavit of Work Experience was insufficient was correct. The affidavit lacked a detailed explanation of the Petitioner’s work experience, specifically as to “hands-on” plumbing involvement. The Petitioner failed to submit the supplemental work experience affidavit requested by the Respondent. In an email dated December 18, 2013, the Petitioner requested that the ARC reconsider his original submitted affidavit. On February 18, 2014, the Respondent issued a Notice of Intent to Deny the Petitioner’s application based on the failure to submit sufficient information to establish that the Petitioner has the experience required for the certification sought. By letter dated February 28, 2014, the Petitioner challenged the proposed denial of his application and requested an administrative hearing. The evidence presented at the hearing by the Petitioner was insufficient to establish that the Petitioner meets the requirements to take the examination for certification as a plumbing plans examiner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner's application to take the examination for certification as a plumbing plans examiner be denied. DONE AND ENTERED this 16th day of December, 2014, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 16th day of December, 2014. COPIES FURNISHED: Thomas Edward Dalton 906 Delta Court Altamonte Springs, Florida 32714 (eServed) Robert Antonie Milne, Esquire Office of The Attorney General Plaza Level 01, The Capitol Tallahassee, Florida 32399-1050 (eServed) J. Layne Smith, General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 (eServed) Robin Barineau, Executive Director Division of Professions Building Code Administrators and Inspectors Board Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 (eServed)
The Issue The issue is whether Petitioner's applications for licensure should be granted or denied.
Findings Of Fact Petitioner filed applications with the Department of Business and Professional Regulation (DBPR) for certifications as a plumbing inspector and electrical inspector. The Board of Building Code Administrators and Inspectors (Board), which is part of DBPR, is the state agency charged with certification of plumbing and electrical inspectors, pursuant to Chapter 468, Florida Statutes. Petitioner previously received provisional certification to perform plumbing and electrical inspections as a result of the Board’s failure to take timely action on Petitioner’s applications for provisional licenses. He is currently employed with the City of Deland as a commercial and residential inspector and has been employed there since September 17, 2007. Accompanying his applications was a statement of “experience history”, provided on a Board form. The experience history listed four places of employment covering four periods of time: 1976 to 1986: Job Foreman for Ron Abel Contracting; 2001 to 2005: Standard Inspector for the City of Winter Springs; 2005 to 2007: Standard Inspector for GFA International; and 2007 to present: Standard Inspector for the City of Deland. Accompanying his applications were three affidavits relating to the 1976-1986 employment with Ron Abel Contracting; two affidavits relating to his 2001-2005 employment with the City of Winter Springs; one affidavit relating to his 2005-2007 employment with GFA International; and one affidavit regarding Petitioner’s employment with the City of Deland from 2007 to present. The first affidavit relating to the 1976 to 1986 period of time was from Daniel Kittinger, a licensed general contractor, who attests that when working in his father’s construction business, Petitioner “assisted in the home building process, acted as foreman to oversee [sic] the subcontracting was done in a timely manner and that specifications met code requirements for residential buildings.” The second affidavit for the 1976 to 1986 period was from Carleen Abel, Vice President of Ronald E. Abel Contracting, and states the following: Mr. Jay Abel is the son of the owner and worked as a field foreman from 1976-1986. During his tenure with Abel Contracting, Jay provided supervision of the field operation on overseeing trade contractors. His principle responsibilities included hands on supervision of framing, electrical, plumbing and HVAC sub-contractors for both residential and commercial work. He primarily was to assure that the jobs were properly constructed, completed on time and confirmed that the appropriate codes were satisfied. The third affidavit relating to 1976-1986 did not include the license number of the affiant. Therefore, it was not considered, and is not considered herein, as it does not comply with the statutory requirement that a licensed architect, engineer, contractor, or building code examiner affirm an applicant’s experience by affidavit. Regarding Petitioner’s employment with the City of Winter Springs, an affidavit was submitted by a person whose first name is David (last name begins with an “A” but is not legible) which states that Petitioner was employed as a residential inspector under the direction of Dennis Franklin and under supervision of a senior inspector. This affidavit referenced an attached affidavit of Dennis Franklin which states as follows: I have personal knowledge that Jay Abel worked as a residential inspector in Winter Springs during the time of his licensure as per Chapter 468 F.S. One affidavit was submitted relating to Petitioner’s work experience from 2005 to 2007. The affidavit of Jeffrey D. DeBoer states as follows: During Jay’s tenure at CFA International he performed inspections of 1 + 2 family dwellings and was in training to perform plan review of both mechanical, electrical and plumbing disciplines. This training was done under the supervision of other certified plans examiners for each discipline. The affidavit of Joseph R. Crum was submitted regarding Petitioner’s current employment with the City of Deland. It states in pertinent part as follows: Jay Abel is employed with the City of Deland as an inspector. He is required to perform inspections on commercial buildings and structures for Building, Electrical, Mechanical, Plumbing and gas installations. He is also required to perform inspections on Residential buildings and structures for all of the trades including, Building, Electrical, Mechanical, Plumbing and gas installations. Jay currently holds a standard one and two family dwelling inspector license #BN4928. He also holds provisional licenses as follows: Building #PBI 1573, Commercial Electrical: #PCE 651, Mechanical: #PMI 549 and Plumbing: #PPI 582. Having these licenses means he has met the qualifications for each and should be issued the appropriate license as he passes the individual exams.[1/] In addition to the affidavits submitted by Petitioner, Petitioner’s current supervisor testified at hearing. Matthew J. Adair is the chief building official with the City of Deland. He supervises all of the building division which includes code enforcement and building inspections personnel. He is familiar with the work performed by Petitioner in his current employment with the City of Deland. At hearing, Mr. Adair described Petitioner’s work: Jay is our commercial and residential inspector at this time. He does primarily commercial work for us. I’ve personally overseen the inspections that he conducts on a daily basis. . . [t]o include installation of electrical and plumbing systems in new commercial buildings, main distribution panels, underground electric, overhead, receptacles, feeders. And on the plumbing side the same thing, water, sewer lines, undergrounds, sewer connections even back-load preventers. . . . He’s very competent. He knows the codes, but on top of just knowing the codes he knows how systems are supposed to be installed in the field. He is a competent inspector.. . . He is one of my most valued employees.[2/] Petitioner also submitted an “Educational History” which represents that he holds an associate of arts degree in business. Further, the “Examination History” portion of the form represents that he passed the Florida Principles and Practice Examination. The Board has created an application review committee (committee), consisting of three members of the Board, to review all applications and make a recommendation to the Board as to whether each application should be approved or denied. Dennis Franklin is a member of the Board and the review committee. According to Mr. Franklin, the committee reviews the applications, and makes a determination as to whether an application should be approved or denied. The determination is made by majority vote of the committee. The decision of the committee is then presented to the Board which ratifies the committee’s decision at a Board meeting. The Board generally does not otherwise independently review the applications, but simply ratifies the decision of the committee. The committee met at some point prior to the Board’s April 10, 2009, meeting. The committee reviewed Petitioner’s applications and determined that his applications should be denied. The decision of the committee was ratified by the full Board on April 10, 2009. Robert McCormick is Chairman of the Board and is a member of the committee. According to Mr. McCormick, the Board interprets the statutory requirement of five years’ combined experience to mean that an applicant must demonstrate an equivalent of five years’ full-time experience. Mr. McCormick applied what he described as a “rule-of-thumb,” in which he divided five years into an average of full-time work hours of 2,000 work hours per year and 10,000 work hours for a five-year period of employment. Mr. McCormick determined that Petitioner’s application did not establish that he had worked five years full-time in either the electrical or plumbing trade and, therefore, determined that his applications should be denied. Gary Hiatt is the chief building official of Flagler County and is responsible for the day-to-day management of plumbing and electrical inspectors in that county. He reviewed Petitioner’s applications and is of the opinion that Petitioner “has demonstrated through his background in contracting and licensure as well as his educational background to meet the requirements to be able to sit for that examination.”
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered granting Petitioner's applications for standard certification as a plumbing and electrical inspector. DONE AND ENTERED this 3rd day of December, 2009, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 2009.
