The Issue Whether petitioner Department of Professional Regulation, Florida Construction Industry Licensing Board, ("Department") should revoke, suspend, or otherwise discipline respondent David L. Mormann's registered residential contractor's license on charges that he (1) was the subject of disciplinary action by a local board; (2) willfully or deliberately disregarded and violated local building codes or laws; (3) failed to comply in a material respect with the provisions of Chapter 489, Florida Statutes; and (4) acted in the capacity of a contractor under a name other than on his license. Whether the Department should revoke, suspend, or otherwise discipline respondent John S. Brengle's registered general contractor's license on charges that he (1) knowingly combined or conspired with an unregistered or uncertified person by allowing such person to use his registration with the intent to evade the provisions of Chapter 489, Florida Statutes; (2) acted under a name other than on his registration, with the intent to evade the provisions of Chapter 489, Florida Statutes; (3) failed to comply in a material respect with the provisions of Chapter 489, Florida Statutes; and (4) aided or abetted an unregistered or uncertified person to evade the provisions of Chapter 489, Florida Statutes.
Findings Of Fact Revocation of Respondent Mormann's Local License At all times material hereto, respondent Mormann was licensed as a registered residential contractor, having been issued license no. RRA031419 and RR0031419 by the State of Florida. At all times pertinent to the charges, neither respondent Mormann nor respondent Brengle qualified a business known as "Dave Mormann and Associates" with the Florida Construction Industry Licensing Board. (P-1) At all times material hereto, respondent Brengle was licensed as a registered general contractor, having been issued license no. RG0002370 by the State of Florida. (P-2) On October 17, 1979, Nelson A. Perez Electric Co. obtained a final judgment for $1,841.96 (including court costs) against Erection and Maintenance Co., Inc., in the County Court of Hillsborough County, Florida. Respondent Mormann was the qualifying agent for Erection and Maintenance Co., Inc. The judgment arose out of respondent Mormann's construction activities and his failure to pay for labor and materials. (Testimony of Perez, P-1, P-7) On October 22, 1979, Nelson A. Perez Electric Co. obtained a second judgment for $1,742 (including court costs) against respondent Mormann in the County Court of Hillsborough County, Florida. This judgment also arose out of respondent's construction activities and his failure to pay for labor and materials. (Testimony of Perez, P-8) These two judgments were not (and have never been) satisfied by respondent. On October 7, 1981, respondent Mormann and his attorney met with Mr. Perez and agreed on a payment schedule for satisfying the judgments. On that date, respondent Mormann paid Mr. Perez $500 and, under the terms of the payment plan, was required to pay him $374.10 monthly, until the judgments were satisfied. Respondent Mormann made one payment on November 7, 1981, and then stopped making payments. (Testimony of Perez) Under the provisions of Section 45-78, City of Tampa Code, default by a contractor in payment for labor or materials resulting in a judgment being obtained or filed against the contractor, with the judgment remaining unsatisfied for a period of 60 days or more, is a basis for revocation or suspension of a contractor's local license, or certificate of competency. (P- 10, P-11) On October 7, 1980, Reggie Fernandez, the Acting Chief Building Inspector for the City of Tampa Department of Housing, Inspection and Community Services, Inspectional Services Division, issued a Citation, by certified mail, charging respondent Mormann with violating Section 45-78(i), City of Tampa Code, for his default in payment for labor and materials which resulted in a judgment remaining unsatisfied for 60 days or more. The Citation further advised that the Discipline Committee for the City of Tampa Unified Construction Trades Board was being notified of the charge, that respondent Mormann had ten days to file an answer with the Discipline Committee of the Construction Trades Board showing cause why his license should not be suspended or revoked, and that, upon failing to timely answer the complaint, the charges could be deemed admitted and his license would be automatically suspended, pending any hearing that the Discipline Committee, in its discretion, might order. Respondent Mormann received the Citation on October 10, 1980. (P-11) Respondent, however, failed to file an answer or any other response to the Citation. (Testimony of Anderson, P-12) On October 21, 1980, the Discipline Committee considered the charges filed against respondent Mormann, who did not appear, and voted to recommend that the Unified Construction Trades Board revoke his local contractor's license for failure to show cause why his license should not be revoked for violation of Section 45-78, City of Tampa Code. (P-12) At its November 5, 1980, meeting, the City of Tampa Unified Construction Trades Board adopted the Discipline Committee's recommendation and revoked respondent Mormann's local license. (P-13) Respondent did not receive advance written notice of the meetings held by the Discipline Committee or the Construction Trades Board relating to the charges against him. (Testimony of Mormann, Anderson) On October 21, 1981, almost a year later, respondent Mormann wrote Mr. Fernandez, the official who issued the Citation, acknowledging that his license had been suspended because of the two Nelson Perez Electric Company judgments. He attached a copy of the payout agreement which he had negotiated with Mr. Perez and explained that, because of health problems during the year, he had been unable to do anything about this matter and asked what procedures to follow to regain his local license. (P-14) At its January 12, 1982, meeting, the Unified Construction Trades Board reviewed the payment agreement attached to respondent Mormann's letter but refused to reinstate his local license until the judgments were fully satisfied. (P-15) Construction of D. J.'s Oyster Bar II On August 3, 1981, respondents Mormann and Brengle executed a document titled "Joint Venture Agreement" for the purpose of contracting to remodel the Jack-in-the-Box restaurant and converting it to D. J.'s Oyster Bar II, at 2920 East Busch Boulevard, Tampa, Florida. Under this agreement, the joint venture was named "Dave Mormann and Associates." Dave Mormann was to provide financing, construction equipment, and tradesmen for carpentry, masonry, and labor; respondent Brengle was to provide expertise and job management, trucks and equipment, insulation and sound-proofing, and subcontract management. Respondent Mormann was to carry out fiscal responsibilities and, where designated, act as job-site superintendent while respondent Brengle was to oversee construction and "inspect at each required building inspection." (Testimony of Mormann, Brengle; R-1) A month later, on September 2, 1981, respondent Mormann, under the name of Dave Mormann and Associates, contracted with Don Hulling and D. J.'s Oyster Bar II, Inc., as owners, to remodel the Jack-in-the-Box restaurant and convert it to D. J.'s Oyster Bar II, a commercial structure. The contract price was $45,700. (Testimony of Hulling; P-3) Respondent Mormann, who negotiated the construction contract, lead owner Hulling to believe that he (respondent Mormann), and another person would be the contractors responsible for the project. He assured the owner, however, that he (respondent Mormann), would be the on-site job foreman. (Testimony of Hulling) Respondent Mormann was licensed by the Florida Construction Industry Licensing Board only as a registered residential contractor. He could thus engage only in residential contracting and could do so only in the local jurisdiction whose licensing requirements he had met. 489.117(2), Fla.Stat. (1979). At the time that respondent Mormann executed and performed the contract to convert the Jack-in-the-Box restaurant to D. J.'s Oyster Bar II, his local contractor's license or certificate of competency, had been revoked. On or about October 15, 1981, respondent Brengle, a registered general contractor holding a valid local license, applied for and obtained building permit no. B-59458 authorizing conversion of the Jack-in-the-Box restaurant to D. J.'s Oyster Bar II. The permit identified Brengle and Sons, Inc., a company qualified by respondent Brengle with the Florida Construction Industry Licensing Board, as the contractor of record. (P-17) Owner Hulling, who seldom visited the construction site during the day, observed respondent Brengle working on the site once while the insulation was being installed, and once or twice before and after the insulation was installed. However, respondent Mormann is the person whom he dealt with concerning the construction project. He paid respondent Mormann $62,940.64 for work performed pursuant to the construction agreement. Itemized invoices were submitted to the owner under the name of "Dave Mormann, General Contractor." Owner Hulling also paid respondent Mormann $3,559.32 for additional work performed at D.J.'s Oyster Bar II after the completion of the project. Neither owner Hulling, nor the financing institution, paid respondent Brengle directly for any work that he performed on the property. (Testimony of Hulling; P-4, P- 5) Respondent Brengle furnished and installed the insulation at D. J.'s Oyster Bar II. (Testimony of Brengle) It was respondent Mormann who paid respondent Brengle for his services. He paid respondent Brengle a total of $950--$250 on November 20, 1981, $200 on December 10, 1981, and $500 on February 8, 1982. (Testimony of Brengle) Respondent Mormann selected and hired Terry Goins Plumbing Company, the plumbing subcontractor for the construction project. He led Terry Goins, the plumbing company owner, to believe that he (respondent Mormann) was the contractor in charge of the project. Respondent Mormann provided project specifications to Goins, supervised his work, and paid him for his services. 2/ Mr. Goins was at the construction site 22 to 25 working days--one-third of the period the project was under construction. He never saw respondent Brengle on the project site. (P-20) Respondent Brengle testified that he was on-site two or three times a week and that he, rather than respondent Mormann, actually supervised the construction project. This testimony is inconsistent with respondent Mormann's initial assurances to owner Hulling (to the effect that he, respondent Mormann, would be responsible for supervising the project); is contrary to the testimony of Mr. Goins; and--considering respondent Brengle's interest in the outcome of this case--is rejected as unworthy of belief. In fact, it was respondent Mormann who directed and supervised the construction project, and it was he who was responsible for its completion. He negotiated the construction contract, selected and hired at least one subcontractor, supervised the work in progress, reported to the owner on the project's status, executed all contractor's affidavits (which incorrectly identified him as a general contractor), applied for and accepted construction draws, and paid subcontractors for labor and materials furnished. (Testimony of Goins, Hulling; P-5a-c) The remodeling and conversion of the Jack-in-the-Box restaurant, begun in late October, 1981, was completed, to the owner's satisfaction, by January 17, 1983. (Testimony of Hulling) Subsequent to the completion of the project, respondent Mormann filed for bankruptcy under the federal bankruptcy laws.
Recommendation Based on the foregoing, it is RECOMMENDED: That respondents' registered contractor's licenses be suspended for a period of two years for multiple violations of Chapter 489,Florida Statutes. DONE and ENTERED this 3rd day of October, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 1983.
The Issue The issue is whether the National Association of Environmentally Responsible Mold Contractors' Initial Mold Assessor and Initial Mold Remediator licensing examinations meet requirements of section 455.217, Florida Statutes, and Florida Administrative Code Rule 61-11.015, such that they should be certified by the State of Florida for use in licensing mold assessors and mold remediators in Florida.
Findings Of Fact The Parties Petitioner is the applicant for certification of the National Association of Environmentally Responsible Mold Contractors' (?NAERMC?) Initial Mold Assessor Exam and Initial Mold Remediator Exam (?NAERMC Exams?) as national exams for use in licensing mold assessors and mold remediators in Florida. Petitioner has extensive academic training and professional experience in mold assessment and mold remediation. He is a Florida-licensed mold assessor and mold remediator, and is certified or accredited by numerous professional mold-related services organizations.3 He has been a full-time professional mold assessor and mold remediator since 2004-2005, having performed over 1,000 mold and construction defect investigations and over 500 mold remediation projects. He has authored numerous texts on mold-related subjects and mold remediation. Petitioner has no formal training or experience in the development of professional licensing examinations. Petitioner's only training in exam development consisted of one ten-hour course offered as part of a U.S. Green Building Council certification program. He also informally reviewed exam development materials provided by Respondent's Examination Development Specialist. Respondent is the state agency statutorily charged with regulating mold-related services and administering the mold- related services licensing program in Florida under chapter 468, part XVI, Florida Statutes. Florida's Mold-Related Services Regulatory Program Mold-related services consist of mold assessment4 and mold remediation,5 which are performed by state-licensed mold assessors and mold remediators. There are two means by which persons may become licensed to provide mold-related services in Florida: initial licensure by examination, and licensure by endorsement. A person desiring to be initially licensed by examination to provide mold-related services in Florida must, among other things, pass a professional licensing examination. By statute, Respondent is required to provide, contract, or approve services for the development, preparation, administration, scoring, score reporting, and evaluation of professional licensing examinations, including mold-related services licensing examinations. Respondent may approve, for use in professional licensing, any national examination that it has certified as meeting the requirements of national examinations and generally accepted testing standards. § 455.217(1), Fla. Stat. Respondent's Evaluation of the NAERMC Exams The NAERMC Exams are examinations that Petitioner offers in connection with courses approved by the State of Texas for training mold assessors and mold remediators, modified to address Florida-specific issues. Petitioner applied to Respondent for certification of the NAERMC Exams for use in licensing mold assessors and mold remediators in Florida. He did this by submitting two completed Exam Evaluation Questionnaires (?EEQ?) to Respondent. The EEQ is an instrument Respondent has developed to determine whether an examination proposed for use in professional licensing meets the requirements of section 455.217(1)(d), Florida Statutes——that is, whether it is a ?national examination? as defined in rule 61-11.015, and whether it has been developed using generally accepted testing standards. Petitioner submitted the first version of his EEQ on or about November 8, 2010. Respondent determined, from a review of the EEQ, that the NAERMC Exams did not meet the statutory standards for examinations that may be approved for use in professional licensing in Florida. Respondent sent Petitioner a written analysis and comments regarding the NAERMC Exams' deficiencies. After receiving Respondent's analysis and comments, Petitioner requested and obtained a copy of the completed EEQ that ACAC submitted for its examinations. The ACAC examinations have been approved for use in mold-related services licensing in Florida.6 Petitioner revised his EEQ responses and submitted an amended EEQ for the NAERMC Exams on or about December 8, 2010. Several, although not all, of the revised responses are substantially similar or identical to ACAC's responses. Respondent's analysis of Petitioner's amended EEQ noted the similarity between many of Petitioner's and ACAC's responses. Respondent asserts that Petitioner copied ACAC's responses rather than providing truthful responses that accurately describe the NAERMC Exams. Petitioner denies he copied the ACAC responses and claims that his revised responses reflect updates to the NAERMC Exams he made after having studied the ACAC EEQ responses in order to determine Respondent's exam certification requirements. Respondent determined that the NAERMC Exams do not meet the statutory requirements in section 455.217, and on March 8, 2011, issued a Notice of Intent to Deny, proposing to deny certification of the NAERMC Exams for use in professional licensure of mold assessors and mold remediators in Florida. Statutory Standard for Certification of Professional Licensing Examinations Pursuant to section 455.217(1)(d), Respondent may only approve, for use in professional licensing, national examinations it has certified meet the requirements of generally accepted testing standards and national examinations. Steven Allen, an Examination Development Specialist with Respondent's Bureau of Education and Testing, testified on behalf of Respondent regarding generally accepted testing standards and national examinations. Mr. Allen has a Master's Degree in evaluation and measurement. His employment duties include evaluating exams submitted to Respondent by independent examination providers for certification for use in professional licensing, to determine whether they are national examinations and have been developed using generally accepted testing standards. These duties require Mr. Allen to be fully versed in generally accepted testing standards and the national examination rule, and the application of these standards in certifying professional licensing exams. Mr. Allen was involved in reviewing the EEQs submitted for the NAERMC Exams. Generally Accepted Testing Standards Professional licensing examinations, including examinations for mold-related services licensure, must meet generally accepted testing standards. These standards are well- known, published standards for educational testing and evaluation in the United States that are set by three national organizations.7 All testing organizations engaged in developing high-stakes licensing exams must follow these standards. Exams must be prepared according to these standards to ensure that they are valid and reliable. Exam validity involves determining whether the exam covers a representative sample of the content and skills intended to be measured. Exam reliability means that the exam provides consistent results when measuring a test taker's knowledge, skills, and abilities. The starting point in developing an exam pursuant to generally accepted testing standards is the performance of a job/task analysis. A job/task analysis entails an analysis and compilation of the knowledge, skills, and abilities to be tested on a particular exam. If a job/task analysis is not accurately performed, the validity of the exam——that is, whether the exam actually measures what it purports to measure——cannot be verified. Therefore, performing a job/task analysis is essential to preparing a valid examination. The first step in a job task analysis consists of the assembly, by the testing organization, of a panel of experts in the particular subject matter that the exam is being developed to test. These subject matter experts must constitute a representative sample of practitioners for the particular profession for which the exam is being developed. Once the subject matter expert panel is assembled, panel members complete an occupational survey instrument to identify the knowledge, skills, and abilities for the particular competency level for which the exam is being developed. For example, for an entry level skills licensing exam, the subject matter expert panelists would complete an occupational survey to identify the knowledge, skills, and abilities that an applicant of minimum competency for licensure must demonstrate in order to be licensed. The end product of the job/task analysis is a collaboratively developed content outline identifying the areas to be tested on the examination, with respective weight assigned to each. Subject matter experts often have differing opinions regarding content that should be tested on an exam. Therefore, obtaining a consensus among subject matter expert panelists regarding the content to be tested is essential to developing a valid exam that tests the content intended to be tested. An individual subject matter expert, working on his or her own, is unable to engage in the collaborative process integral to developing a valid exam. After the job/task analysis is complete, the exam items (questions) are prepared by subject matter experts according to the content outline. Before preparing the items, the subject matter experts are trained to draft items that accurately, reliably, and fairly test the content. After the items have been prepared, they are reviewed by an item review committee. These iterative review processes, conducted by subject matter and psychometrics expert panelists, are essential to developing exams that are valid and reliable. Petitioner did not present evidence showing that he developed the NAERMC Exams using a job/task analysis, as that term is understood in the field of psychometric measurement. Petitioner did not demonstrate that he conducted an occupational survey of subject matter experts. Instead, he compiled content lists that he used in developing mold-related services courses8 and writing books on mold-related topics. These compilations were not developed for licensing examinations,9 and the evidence does not establish that they were developed using the collaborative processes entailed in a psychometrically sound job/task analysis. Petitioner's EEQ response also appears to misrepresent key information regarding the NAERMC Exams. Specifically, Petitioner's response to Item No. 24 of the December 8, 2010, EEQ, addressing job/task analysis performance, states: ?. . . a review committee is formed from among industry experts and stakeholders across the United States.? However, at hearing, Petitioner conceded that he is the only expert involved in developing the NAERMC Exams and is the sole member of the ?review committee.? Petitioner's EEQ responses regarding job/task analysis performance conflict with his testimony and, thus, are not credible. For these reasons, it is determined that Petitioner did not present credible, persuasive evidence demonstrating that he performed a job/task analysis in developing the NAERMC Exams. Accordingly, he did not show that the NAERMC Exams are valid. Petitioner also failed to demonstrate that the NAERMC Exams are reliable, as that term is used in psychometric measurement. Exam reliability is demonstrated by providing statistical analyses addressing the long-term performance of individual exam items and of the exam as a whole. In his November 8, 2010, EEQ response, Petitioner stated that he performed an item analysis to identify poorly performing items, but did not keep copies of the analysis. However, in his December 8, 2010, EEQ response, Petitioner provided a statistical analysis for an item and an explanation that substantially mimicked ACAC's response for that item. As a matter of practice in the professional examination industry, exam developers keep and readily provide item reliability analysis information upon request from exam certification entities. The fact that Petitioner initially represented that he did not keep such information, but then soon after provided a response that mimicked ACAC's, undermines the EEQ's credibility and calls into question its accuracy with respect to the NAERMC Exams' reliability. Petitioner's testimony and other evidence in the record also call into question the credibility and accuracy of other responses in the December 8, 2011, EEQ. Specifically, the EEQ asked how many subject matter experts review each exam item for accuracy and relevancy to the practice. Petitioner responded that five experts would review each item; however, at hearing, he was unable to identify any of those experts. Moreover, his EEQ responses directly conflict with a discovery response10 in which he stated that he was the sole subject matter expert for development of the NAERMC Exams. Based on inconsistencies in Petitioner's testimony, EEQ responses, and discovery responses; his failure to perform a psychometrically sound job/task analysis; his lack of significant training in exam development; and his lack of understanding of generally accepted testing standards and their role in preparing valid, reliable exams, it is determined that Petitioner did not provide credible, persuasive evidence showing that the NAERMC Exams meet generally accepted testing standards, as required by section 455.217(1)(d). National Examination To implement the ?national examination? requirement in section 455.217, Respondent has adopted rule 61-11.015, Florida Administrative Code, entitled "Definition of a National Examination." This rule establishes the criteria an exam must meet to be a "national examination" that Respondent may use to test professional licensure applicants. All rule criteria must be met for an exam to be a "national examination." National or Multi-state Professional Organization To be a ?national examination,? the examination must be developed by or for a national or multi-state professional organization. Fla. Admin. Code R. 61-11.015(2)(emphasis added). To be a national or multi-state organization, the organization must be generally recognized by practitioners across the nation in the form of representatives from state licensing boards, or must have membership representing a substantial number of the nation's or states' practitioners who have been licensed through the national examination. Fla. Admin. Code R. 61-11.015(3). Petitioner created Certified Mold & Allergen Free, Corp. (?CMAFC?) to, among other things, provide online training courses in mold-related services. The courses are offered through Petitioner's CMAFC, NAERMC, and Green Buildings.org websites, and the U.S. Green Building Council (?USGBC?) website. The State of Texas approved two CMAFC courses for training persons seeking licensure as mold assessors and mold remediators in Texas. CMAFC training courses have been taken by persons located in states other than Florida. Petitioner also created NAERMC, an ?association? that provides free internet-based mold-related services training courses11 and ?certification examinations? that test the topics covered in the online courses. Successful completion of the ?certification exams? allows one to become certified by NAERMC. ?Certification? by NAERMC entitles one to a certificate of accomplishment and a logo symbol that can be placed on business cards. Petitioner is NAERMC's only officer. NAERMC does not have bylaws and does not prepare an annual report. Petitioner testified that anyone who passes the certification exams becomes a NAERMC member, but he did not provide any specific information regarding NAERMC's membership. NAERMC does not conduct membership meetings or provide mailings to its membership. There is no evidence establishing that the NAERMC Exams were developed by a national or multi-state professional organization, as that term is defined in rule 61-11.015(3). Petitioner did not present any evidence showing that NAERMC's membership includes or consists of practitioners across the nation in the form of representatives from state mold-related services licensing boards. Nor did Petitioner present any evidence that NAERMC's membership includes or consists of a substantial number of the nation's or state's mold-related practitioners who have been licensed through the NAERMC Exams. Petitioner also did not present evidence establishing that the NAERMC Exams were developed for a national or multi- state professional organization, as provided in rule 61- 11.015(3). The evidence shows only that Petitioner, through his websites, offers mold-related services training courses to persons in multiple states, and that successful completion of the courses and exams offered at the end of the courses entitles one to NAERMC certification and membership. Petitioner testified that the USGBC is a nationwide organization having 40,000 members, and presented evidence showing that some of his CMAFC-copyrighted courses are offered through the USGBC website. However, he did not present any evidence showing that USGBC is generally recognized by practitioners across the nation in the form of representatives from state mold-related services licensing boards, or that USGBC's membership represents a substantial number of the nation's or state's mold-related practitioners who have been licensed through NAERMC's Exams. Moreover, NAERMC's certification examinations are not licensing examinations. Petitioner conceded this point at hearing. For these reasons, Petitioner failed to establish that the NAERMC Exams were developed by or for a national or multi- state organization, as required by rules 61-11.015(2) and 61- 11.015(3). Establishment of Entry Level Standards of Practice To be approved by Respondent as a ?national examination,? the exam's purpose must be to establish entry level standards of practice that are common to all practitioners in the licensing area. Fla. Admin. Code R. 61-11.015(2)(a). Petitioner did not show that the NAERMC Exams meet this criterion. As previously discussed, performing a psychometrically sound job/task analysis is essential to developing an exam that tests for the content intended to be tested——here, the knowledge, skills, and abilities that an entry level professional mold assessor or mold remediator should possess. Petitioner, acting as a ?committee of one,? compiled content lists based on his knowledge of mold-related topics that he used to develop training courses and write books. At hearing, Petitioner referred to these content compilations as a ?job/task analysis,? but they are not. A ?job/task analysis? is a term of art used in psychometric measure to describe a specific, collaborative process for developing exam content. The evidence does not establish that Petitioner performed a job/task analysis. Petitioner asserts that the NAERMC Exams test entry level skills because he is a mold-related services subject matter expert, so knows what content entry level mold-related services professionals should know. Petitioner misapprehends the importance of generally accepted testing standards in developing exams that accurately test the knowledge, skills, and abilities intended to be tested. Petitioner has no training or experience in licensure examination development, and his testimony that the NAERMC Exams test entry level skills was not persuasive. For these reasons, Petitioner did not demonstrate that the NAERMC Exams' purpose is to establish entry levels of practice common to all mold-related services practitioners, as required by rule 61-11.015(2)(a). Definition of Practice by a National Occupational Survey Rule 61-11.015(2)(b) requires that the practice of the profession at the national level be established through an occupational survey with a representative sample of all practitioners and professional practices. Petitioner did not meet this requirement. Petitioner did not provide evidence establishing that he utilized a survey instrument.12 As previously discussed, Petitioner compiled mold- related content lists that he used to develop training courses and write books. However, these lists do not constitute an occupational survey. Petitioner testified that he was involved with an international organization in preparing standards for mold assessment and in an online community of mold experts. However, he did not present any evidence to show that these entities comprise a representative sample of all mold-related services practitioners, as required by the rule. In sum, Petitioner did not provide credible, persuasive evidence demonstrating that he developed the NAERMC Exams using an occupational survey to define the mold-related services practice at the national level, as required by rule 61- 11.015(2)(b). Assessment of Scope or Practice and Entry Skills Rule 61-11.015(2)(c) provides that the licensure examination must assess the scope of practice and the entry skills defined by the national occupational survey. As previously discussed, Petitioner did not perform an occupational survey in developing the NAERMC Exams——a necessary endeavor to ensure that an exam accurately assesses the content it is intended to assess. Because no occupational survey was performed for the NAERMC Exams, it is not possible to verify that they assess scope of practice and entry level skills, as required by the rule. Accordingly, the NAERMC Exams do not meet this criterion. Oversight and Scoring of the National Examination Rule 61-11.015(4) requires the organization to be the responsible body for overseeing the development and scoring of the national examination. Petitioner is the sole officer of NAERMC. He testified and provided information in the EEQs stating that he alone develops the NAERMC Exams, and that he and his wife hand- score the exams. Respondent did not present evidence showing that these oversight measures are deficient under the rule. Accordingly, Petitioner showed that NAERMC is responsible for overseeing development and scoring of the NAERMC Exams. However, because Petitioner has not established that the NAERMC Exams are ?national examinations,? this criterion is not met. Examination Development and Scoring Security Rule 61-11.015(5) requires the organization to provide security guidelines for the development and grading of the national examination and to oversee the enforcement of these guidelines. Petitioner testified that the NAERMC Exams are encrypted and electronically stored on Petitioner's computer and a computer located in Nevada. Petitioner is the only person who develops the NAERMC Exams and has access to them. These measures do not conform to standard security measures employed by exam developers in the professional examination industry. Typically, examination papers are inventoried when they are removed from the vault for administration, re-inventoried at the exam site before they are administered, closely monitored during the examination process, then re-inventoried by tracking forms once the exam is completed. Measured against the industry standard, the NAERMC Exams' security measures are deficient. For these reasons, Petitioner did not present credible, persuasive evidence demonstrating that rule 61- 11.015(5) is met. Having considered the competent evidence in the record, the undersigned determines, as a matter of ultimate fact, that Petitioner failed to establish, by a preponderance of the evidence, that the NAERMC Exams meet the requirements of section 455.217 and rule 61-11.015.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order denying Petitioner's application for certification of the National Association of Environmentally Responsible Mold Contractors' Initial Mold Assessor Exam and Initial Mold Remediator Exam for use in the professional licensing of mold assessors and mold remediators in Florida. DONE AND ENTERED this 24th day of October, 2011, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 24th day of October, 2011.
The Issue The issues in the case are as follows: Whether Florida Administrative Code Rule 61G4-12.017 is an invalid exercise of delegated legislative authority; and Whether the committee procedure used by the Construction Industry Licensing Board to review applications for licensure is invalid as an unadopted rule.
Findings Of Fact The Petitioner is an applicant for licensure as a general contractor by the Respondent. By operation of Subsection 489.107(4), Florida Statutes (2006),1 the Construction Industry Licensing Board (CILB) is divided into two Divisions. Division I has jurisdiction over the regulation of general contractors, building contractors, and residential contractors. Division II has jurisdiction over the regulation of all other contractors. Subsection 489.107(5), Florida Statutes, provides as follows: Five members of Division I constitute a quorum, and five members of Division II constitute a quorum. The combined divisions shall meet together at such times as the board deems necessary, but neither division, nor any committee thereof, shall take action on any matter under the jurisdiction of the other division. However, if either division is unable to obtain a quorum for the purpose of conducting disciplinary proceedings, it may request members of the other division, who are otherwise qualified to serve on the division unable to obtain a quorum, to join in its deliberations. Such additional members shall vote and count toward a quorum only during those disciplinary proceedings. (emphasis supplied) After the Petitioner's application was deemed complete, the application was referred to an "application committee" appointed by the CILB chairperson and assigned the responsibility of reviewing pending applications. There is no specific reference in either statute or rule codifying the application committee process. The application committee generally meets one day prior to the regularly scheduled meeting of the full CILB. Application materials are provided to members of the application committee. An applicant receives a letter signed by an employee of the CILB providing notice of the application review committee meeting at which the pending application will be considered. The notice includes the following statement: Statute or rule does not require attendance; however, it is in your best interest to attend so those questions that may arise during the committee's review can be answered. Failure to attend may result in denial of your application as a result of unanswered questions. Applications are commonly referred to the Board for review when an applicant or the business has a criminal history, liens or judgments on their credit report, bankruptcies, complaints or unlicensed activity cases against them. If you are unsure why your application has been referred to the board please contact me at the number listed below. (emphasis in letter) The letter clearly indicates that not all applications are reviewed by the full CILB, and accordingly, it is reasonable to presume that there are applications being approved without review by the full CILB. The Petitioner's application was reviewed by an application committee on two occasions. The parties stipulated that the application committee that considered the Petitioner's application was not composed of either five Division I or five Division II Board members. At the committee meeting of July 13, 2006, the Petitioner was granted a continuance apparently to obtain additional information for CILB consideration. The Order of Continuance issued by the CILB and dated August 7, 2006, stated that the Petitioner "agreed to waive the statutory 90 day requirement and appear before the Board in August, 2006." On August 10, 2006, the application committee made a recommendation to the full CILB that the Petitioner's application be denied. On August 11, 2006, the CILB unanimously voted to approve the committee recommendation. The parties stipulated that the full CILB (composed of at least five Division I and five Division II Board members) voted on August 11, 2006. The extent to which the application was reviewed by the full CILB prior to the vote is unclear, as is whether all application materials were provided to the full CILB prior to consideration of the Petitioner's application. Although the Petitioner has sought to obtain a transcript of the meeting, it has not been made available by the CILB. By Notice of Intent to Deny, dated August 30, 2006, the Petitioner set forth the grounds for the denial as follows: Applicant failed to provide proof of restitution associated with a prior order, which constitutes a basis for denial under Section 489.129(7) F.S. The prior order being referenced in the August 30 letter is a Final Order of the Hillsborough County Building Board of Adjustment dated June 21, 1997, wherein the Petitioner was directed to make restitution to a former client.
Findings Of Fact During times material hereto, Respondent, Bobby D. Patton, was a certified general contractor, qualifying Bellavia Construction, Inc. (sometimes referred to as Bellavia) and has been issued license number CGC011543. (Petitioner's Exhibit 1). During times material hereto, John Bellavia (Bellavia) was not licensed by the State of Florida, Department of Professional Regulation, Construction Industry Licensing Board, as a contractor. (Petitioner's Exhibit 1). During times material hereto, Allstate Interiors, Inc., was not qualified with the State of Florida, Department of Professional Regulation, Construction Industry Licensing Board. (Petitioner's Exhibit 1). On October 12, 1982, Bellavia Construction contracted with Mrs. Mei Lin Eisen to construct a fast food restaurant within the confines of Aventura Mall for a cost of $37,000.00. Bellavia executed the contract on behalf of Bellavia Construction as it's president. (Petitioner's Exhibit 2). On October 15, 1982, Mrs. Eisen gave to Bellavia Construction a down payment of $7,400.00. (Petitioner's Exhibit 3). Bellavia Construction was to complete the construction within four weeks after the issuance of the building permit. (Petitioner's Exhibit 1). Mrs. Eisen emphasized to Bellavia that the construction phase of the restaurant had to be completed within the stated period in order that her business could be operating at the time of the Mall's grand opening. Mrs. Eisen also advised Bellavia that if she did not have her business operational at the time of the grand opening, she would be assessed a daily penalty by the Mall's owner for every day she was not in business beyond the grand opening. (TR 21, 35). On October 15, 1982, a building permit was issued to Respondent for the construction improvement work by Bellavia Construction on the Eisen job. (Petitioner's Exhibit 4; TR43). For the three week period following the issuance of the building permit (October 15, 1982), there was virtually no progress on the job with the exception of the drilling of three holes for plumbing and the placement of metal studs; which holes were incorrectly drilled and had to be relocated because they did not comport with the schematic drawings as depicted in the plans. During the three week period following the issuance of the permit, Bellavia was observed performing construction at another business in the mall. During that time, Mrs. Eisen inquired of Bellavia as to the lack of progress on her job and was told that there was no money to be made on the project. At the conclusion of the three week period subsequent to October 15, 1982, Bellavia quit Mrs. Eisen's project and did not return the deposit monies. Mrs. Eisen therefore had to obtain the services of another contractor to complete the job. As a result of this delay, her business was not open at the time of the mall's grand opening. (TR 22, 36). Mrs. Eisen was assessed a civil penalty of $16,800.00, payable over a seven year period at $200.00 a month. (TR 23) Neither during the negotiation of the contract nor during the performance of the contract did Mrs. Eisen or her architect have any knowledge of Respondent. Their entire contractual dealings were with Bellavia. (TR 23, 24, 38 and 39). Bellavia was also the president of Allstate Interiors, Inc., which attained corporate status on May 2, 1983. On May 4, 1983, a building permit for construction work by Bellavia Construction for Aventura Travel was issued to Respondent. (Petitioner's Exhibit 6). On May 11, 1983, a building permit for construction work by Bellavia Construction for Dentaland was issued to Respondent. (Petitioner's Exhibit 5). During February, 1983, Respondent moved from his address of record with the Department of Professional Regulation, Construction Industry Licensing Board, which was 8698 S.W. 50th Street, Cooper City, Florida. In July, 1983, the Department became aware of Respondent's move from the above location during the investigation of the instant case. (TR 50, 53/54, 56/58). Respondent, during the license renewal process period for 1985/1987, notified the Department of his address change to 1005 N.E. 143rd Street, North Miami, Florida, which became his address of record. (Petitioner's Exhibit 1). As stated in the background, Respondent did not appear at the hearing except through counsel.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Respondent, Bobby D. Patton, license number CGC 011543, be suspended for a period of one (1 year. Further, it is RECOMMENDED that an administrative fine of $500.00 be imposed upon Respondent. DONE and ORDERED this 13th day of October, 1986, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1986. COPIES FURNISHED: Erroll Powell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Steven M. Rosen, Esquire 5601 Building 5601 Biscayne Blvd. Miami, Florida 33137
