01-001573 David B. Armstrong vs. Department Of Business And Professional Regulation, Electrical Contractors Licensing Board Status: Closed Recommended Order on Wednesday, August 22, 2001.

Summary: Applicant who lacked the requisite five years` experience as a registered electrical contractor was not entitled to certification pursuant to the "grandfathering" provision of Section 489.514, Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID B. ARMSTRONG, )

)

Petitioner, )

)

vs. ) Case No. 01-1573

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

ELECTRICAL CONTRACTORS )

LICENSING BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

The parties having been provided proper notice,

Administrative Law Judge John G. Van Laningham of the Division

of Administrative Hearings convened a formal hearing of this

matter by video teleconference on June 18, 2001. Petitioner

appeared pro se in Fort Lauderdale, Florida, and Respondent,

through counsel, was present in Tallahassee, Florida, where the

Administrative Law Judge presided.

APPEARANCES

For Petitioner : David B. Armstrong, pro se

5726 Southwest 103rd Avenue

Fort Lauderdale, Florida 33328

For Respondent : Barbara Rockhill Edwards, Esquire

Assistant Attorney General

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

Whether Petitioner is entitled to licensure as a certified

electrical contractor pursuant to the "grandfathering"

provisions of Section 489.514, Florida Statutes.

PRELIMINARY STATEMENT

On December 11, 2000, Petitioner David B. Armstrong

("Armstrong"), a state-registered and locally-licensed specialty

electrical contractor doing business in Fort Lauderdale,

Florida, applied to Respondent Electrical Contractors Licensing

Board (the "Board"), which is a board under the jurisdiction of

the Department of Business and Professional Regulation (the

"Department"), for licensure as a certified electrical

contractor. On February 6, 2001, the Board denied Armstrong's

application for one reason : he lacked the required five years

of experience as a state-registered contractor.

Armstrong timely requested a formal hearing, and the matter

was referred to the Division of Administrative Hearings on

April 27, 2001. The case was assigned to the undersigned, who

set the final hearing for June 18, 2001.

The final hearing took place as scheduled. Armstrong,

representing himself, testified in his own behalf and called no

other witnesses. The parties introduced one joint composite

exhibit comprised of the Department's file on Armstrong's

application. The Board called one witness : its Program

Administrator, George Ayrish. After the conclusion of the

hearing, Armstrong filed an additional exhibit, with leave,

which was received in evidence without objection as Petitioner's

Exhibit 1.

Neither party ordered a transcript of the final hearing.

By Order of Post-Hearing Instructions entered June 18, 2001, the

parties were directed to file their proposed recommended orders

on or before June 28, 2001. The Board timely submitted one;

Armstrong did not. The Board's papers were considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

The evidence presented at final hearing established the

facts that follow.

1. Armstrong is a specialty electrician who operates a

business named Sound Planning Distributors, Inc. in Fort

Lauderdale, Florida.

2. Armstrong holds a local license (called a Certificate

of Competency) from the Broward County Central Examining Board

of Contractors that authorizes him to engage in specialty

electrical contracting in Broward County.

3. Armstrong's local license was issued on November 14,

1989. To obtain it, Armstrong had been required to pass a

written examination prepared, proctored, and graded by Block and

Associates, a prerequisite which he had accomplished on

October 28, 1989.

4. Armstrong's local license is active and in good

standing; he has not been the subject of any complaints filed

with, or discipline imposed by, the local licensing authority.

5. In 1996, Armstrong learned that he needed to become

state-registered as a specialty contractor pursuant to Section

489.513, Florida Statutes. He applied to the Department, which

in due course issued him a license as a registered specialty

contractor, originally effective December 9, 1996.

6. Armstrong has renewed his state registration from time

to time as required by law. His state registration is currently

active and valid through August 31, 2001.

7. On December 11, 2000, Armstrong applied for

certification as a specialty contractor pursuant to the

"grandfathering" provisions of Section 489.514, Florida

Statutes. (Registration and certification are distinct forms of

licensure under Part II of Chapter 489, Florida Statutes, which

deals with the regulation of electrical and alarm system

contractors.)

8. On February 6, 2001, the Board denied Armstrong's

application for certification solely because he lacked five

years of experience as a registered contractor, which is a

condition of licensure pursuant to Section 489.514(2)(c),

Florida Statutes, and Rule 61G6-5.0035, Florida Administrative

Code. 1

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

Sections 120.569 and 120.57(1), Florida Statutes.

10. As an applicant for licensure, Armstrong bore the

burden at hearing of going forward initially with proof of his

fitness for certification; he also was required to shoulder the

ultimate burden of persuasion. See Department of Banking and

Finance, Division of Securities and Investor Protection v.

Osborne Stern and Co. , 670 So. 2d 932, 934 (Fla. 1st DCA 1996).

11. The statute under which Armstrong presented his

application to the Board provides as follows:

489.514 Certification for registered

contractors; grandfathering provisions .–

(1 ) The board shall, upon receipt of a

completed application, appropriate fee, and

proof of compliance with the provisions of

this section, issue:

(a ) To an applying registered electrical

contractor, a certificate as an electrical

contractor, as defined in s. 489.505(12); or

(b ) To an applying registered alarm

system contractor, a certificate in the

matching alarm system contractor category,

as defined in s. 489.505(2)(a) or (b); or

(c ) To an applying registered electrical

specialty contractor, a certificate in the

matching electrical specialty contractor

category, as defined in s. 489.505(19).

(2 ) Any contractor registered under this

part who makes application under this

section to the board shall meet each of the

following requirements for certification:

(a ) Currently holds a valid registered

local license in the category of electrical

contractor, alarm system contractor, or

electrical specialty contractor.

(b ) Has, for that category, passed a

written, proctored examination that the

board finds to be substantially similar to

the examination required to be licensed as a

certified contractor under this part. For

purposes of this subsection, a written,

proctored examination such as that produced

by the National Assessment Institute, Block

and Associates, NAI/Block, Experior

Assessments, Professional Testing, Inc., or

Assessment Systems, Inc., shall be

considered to be substantially similar to

the examination required to be licensed as a

certified contractor. The board may not

impose or make any requirements regarding

the nature or content of these cited

examinations.

(c ) Has at least 5 years of experience as

a contractor in that contracting category ,

or as an inspector or building administrator

with oversight over that category, at the

time of application. For contractors, only

time periods in which the contractor license

is active and the contractor is not on

probation shall count toward the 5 years

required under this subsection.

(d ) Has not had his or her contractor's

license revoked at any time, had his or her

contractor's license suspended in the last 5

years, or been assessed a fine in excess of

$500 in the last 5 years.

(e ) Is in compliance with the insurance

and financial responsibility requirements in

s. 489.515(1)(b).

(3 ) An applicant must make application by

November 1, 2004, to be licensed pursuant to

this section.

Section 489.514, Florida Statutes (emphasis added).

12. The statute defines the term "contractor" to mean "a

person who is qualified to engage in the business of electrical

or alarm system contracting pursuant to a certificate or

registration issued by the department ." Section 489.505(10),

Florida Statutes (emphasis added).

13. Thus, as a function of the unambiguous definition of

"contractor," it is clear that to have "five years of experience

as a contractor" as required in Section 489.514(2)(c), Florida

Statutes, an applicant must have five qualifying years'

experience as a registered contractor.

14. Further, the Board has promulgated a rule, which was

in effect at the time Armstrong submitted his application, that

provides:

61G6-5.0035 Certification of Registered

Contractors.

Any registered contractor who wishes to

become a certified contractor in the

appropriate category pursuant to the

"grandfathering" provisions of Section

489.514, FS, shall meet all of the following

requirements:

(1 ) Submit a completed "Application for

Certification of a Registered License" on

Form BPR/ECLB- REG.TO.CERT.5/2000, with

instructions attached, which is hereby

incorporated by reference, effective 11-12-

00, a copy of which may be obtained from the

Board office.

(2 ) Submit proof of continuing education

pursuant to Rule 61G6-9.001, F.A.C., for the

latest renewal cycle prior to application.

(3 ) For purposes of implementing

§489.514, Florida Statutes, the registered

contractor must have:

(a ) passed a written, proctored

examination in the appropriate category as

specified in subsection (2) of the statute,

and

(b ) five (5) years experience as a

registered contractor in the category for

which certification is sought. The

registered contractor must have held an

active license in that category for a period

of at least 5 years. The 5 year period is

not required to be consecutive. Any time

periods when the license was placed on

inactive status or when the licensee was on

probationary status shall not count toward

the 5 years required experience; or

(c ) five (5) years of oversight or

inspection responsibility as a building code

administrator or inspector in the category

for which certification is sought. Any time

periods when the license was placed on

inactive status or when the licensee was on

probationary status shall not count toward

the five (5) years' required experience.

Rule 61G6-5.0035, Florida Administrative Code (emphasis added).

15. The Rule makes clear, as does the statute, that, to

become certified under the "grandfathering" provisions, an

applicant must have five years of experience as a registered

contractor.

16. It is undisputed that Armstrong did not have, at the

time he applied for certification, the necessary five years of

experience as a registered contractor. Armstrong will reach

that milestone on December 9, 2001, at which time he may

reapply.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Board enter a final order

denying Armstrong's application for licensure as a certified

electrical contractor.

DONE AND ENTERED this 22nd day of August, 2001, in

Tallahassee, Leon County, Florida.

_____________________________________

JOHN G. VAN LANINGHAM

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 [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of August, 2001.

ENDNOTE

1 / In its Proposed Recommended Order, the Board argues for the

first time that Armstrong wrongfully engaged in the unlicensed

practice of specialty electrical contracting from 1989 until

December 1996 when he became state-licensed as a registered

contractor. The Board actually goes so far as to suggest that

Armstrong committed a first degree criminal misdemeanor. It

must have been alarming for Armstrong——who, after all, had

simply exercised his right to an independent review of an agency

decision with which he disagreed——suddenly and unexpectedly to

find himself branded a criminal by the Board that regulates his

occupation. These accusations are an uncalled-for red herring.

To begin, the Board did not base its denial of Armstrong's

application on misconduct of any sort. The Board gave no notice

to Armstrong that a charge of unlicensed contracting would be

leveled against him in this proceeding, and no evidence of

wrongdoing was presented at hearing. It is axiomatic that due

process demands, at a minimum, that a person accused of grounds

for discipline be afforded notice and an opportunity to be

heard.

In addition, the state issued Armstrong a license to

operate as a registered contractor nearly five years ago, and

has since renewed that license, apparently without ever

attempting to discipline him for having operated in Broward

County for some years before that under a local——but without a

state——license. Presumably, the state knew about Armstrong's

previous experience when it originally licensed him as a

registered contractor, because one would expect such information

to have been the subject of inquiry on the application for

licensure. Assuming, as is likely, that the state knew in

December 1996 that Armstrong previously had been engaged in the

electrical contracting business under a local license only and

nevertheless issued him a registration (and thereafter renewed

it) without objection, the situation would cry out for an

invocation of waiver or estoppel were the state to attempt a

prosecution of Armstrong at this late date. Cf. Fraga v.

Department of Health and Rehabilitative Services , 464 So. 2d 144

(Fla. 3d DCA), pet . rev . denied , 475 So. 2d 694 (1985).

Finally, the Board's below-the-belt accusations are

superfluous. As set forth in the Conclusions of Law, the

Board's original ground for denial was clearly sufficient,

without more. The Board should have stuck with that in its

Proposed Recommended Order.

COPIES FURNISHED :

David B. Armstrong

5726 Southwest 103rd Avenue

Fort Lauderdale, Florida 33328

Barbara Rockhill Edwards, Esquire

Assistant Attorney General

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Anthony B. Spivey, Executive Director

Electrical Contractors Licensing Board

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Hardy L. Roberts, III, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-2202

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this R ecommended O rder. Any exceptions

to this R ecommended O rder should be filed with the agency that

will issue the F inal O rder in this case.