09-000526 James Salvatore Pappalardo vs. Building Code Administrators And Inspectors Board Status: Closed Recommended Order on Friday, June 12, 2009.

Summary: Respondent Board was within its discretion, statute, and rule in requiring 5 years' experience in each field applied-for.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES SALVATORE PAPPALARDO, )

)

Petitioner, )

)

vs. ) Case No. 09-0526

)

BUILDING CODE ADMINISTRATORS )

AND INSPECTORS BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, a disputed-fact hearing was held in this

case via video teleconference between sites in Daytona Beach,

and Tallahassee, Florida, on April 3, 2009, before Ella Jane P.

Davis, a duly-assigned Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Darren J. Elkind, Esquire

Paul & Elkind, P.A.

505 Deltona Boulevard, Suite 105

Deltona, Florida 32725

For Respondent: Ann Cocheu, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

Whether Petitioner may be granted provisional certification

as a plumbing inspector and provisional certification as a

mechanical inspector.

PRELIMINARY STATEMENT

On October 30, 2008, Respondent, Building Code

Administrators and Inspectors Board, issued a Notice of Intent

to Deny Petitioner’s applications for provisional certification

as a plumbing inspector and provisional certification as a

mechanical inspector.

Petitioner timely requested a disputed-fact hearing to

contest the Notice of Intent to Deny. The case was referred to

the Division of Administrative Hearings on or about January 28,

2009. The file of the Division reflects all pleadings and

orders preceding the final hearing but not all agreed

continuances at the last minute due to problems with the video-

conferencing location or apparatus.

At hearing, the parties stipulated into evidence

Petitioner’s licensure file as Exhibit R-1. Petitioner

presented no oral testimony. Respondent presented the oral

testimony of Robert McCormick. Official Recognition was taken

of Chapter 468, Florida Statutes (2008), and Florida

Administrative Code Rules 61G19-1 through 61G19-12, (2008).

A Transcript was filed on April 17, 2009. On April 27,

2009, Petitioner filed, and on April 28, 2009, Respondent filed,

their respective Proposed Recommended Orders. The filings were

either timely or without objection from the other party. Each

proposal has been appropriately considered in preparation of

this Recommended Order.

FINDINGS OF FACT

1. Respondent Florida Building Code Administrators and

Inspectors Board (Board) is the executive branch agency, within

the Department of Business and Professional Regulation, charged,

among other duties, with administering Part XII, Chapter 468,

Florida Statutes, and issuing standard and provisional

certification of plumbing inspectors and mechanical inspectors.

2. The Board denied Petitioner’s applications for

provisional licensing as a plumbing inspector, and as a

mechanical inspector, because his application(s) “does not

demonstrate, affirmed by affidavit signed by an architect,

engineer, contractor, or building code administrator, that you

have the required experience for the certification sought.”

3. At all times material, Robert McCormick was Respondent

Board’s Chairman.

4. The Board considers applications for, and licenses

applicants as, building inspectors, plans examiners, and

building code administrators. Such personnel usually work with

municipal, county, or state entities, although in some places

private contractors provide such services. Licensees review

proposed construction plans of both residential and commercial

projects as well as monitor the progress of construction to

assure that all building code standards are met.

5. Each construction trade has a specific and complex code

of regulations. Inspectors in each category must assure

compliance with that respective trade’s regulations. Most of

the work of an inspector is performed in the field at a job

site.

6. Plumbing and mechanical inspectors must be versed in

both residential and commercial construction codes. The

mechanical trade is, at minimum, concerned with heating, air-

conditioning, and ventilation systems. The plumbing trade is,

at minimum, concerned with water systems, drains, pipes, and

gas. At hearing, Petitioner submitted no information whatsoever

about his experience in these areas, and relied exclusively upon

his application affidavits.

7. Petitioner is employed by a public entity, the City of

Deland. The Board has issued him a provisional license as a

building inspector. As a building inspector, Petitioner reviews

structural and non-structural aspects of construction for one-

and two-family dwellings, as well as means of egress and

accessibility, but he does not address specific systems or

codes, such as plumbing and mechanical, within the structure to

assure compliance with the Florida Building Code.

8. Petitioner has already taken and passed both the

Florida-required test for standard plumbing inspector

certification and for standard mechanical inspector

certification. Mr. McCormick, testifying on behalf of the

Board, acknowledged Petitioner’s successful test results, but

considered Petitioner’s passing the examination to be the last

statutory requirement time-wise (or just one of the statutory

prongs) for obtaining the standard license. For provisional

licenses, the Board still requires five years’ experience as

specified by statute for each specialized field (plumbing and

mechanical) to be attested-to by adequate affidavits. (TR-69)

9. By virtue of having a provisional building inspector

certification issued by the same Board involved with the present

applications, Petitioner has already demonstrated, via

affidavit, five years’ experience in general building

construction.

10. As part of his application(s) for the plumbing and

mechanical inspector provisional licenses, Petitioner submitted

two affidavits of his current employer and six affidavits from

others with knowledge of his work experience. Some of these

affidavits also had been used by Petitioner in applying for his

building inspector license.

11. The affidavits were signed by engineers, building code

administrators, and/or licensed contractors, and account for

Petitioner’s work experience from 1988 to the present, most of

which experience occurred in Ohio. The affidavits purport to

describe, in general terms, Petitioner’s experience, job duties,

and overall knowledge of the plumbing and mechanical trades

during that time frame.

12. The Board has created an Application Review Committee,

consisting of Board members, to review all applications and make

a recommendation to the Board as to whether each application

should be approved or denied. Mr. McCormick was on the

Application Review Committee which reviewed Petitioner’s

application on October 14, 2008, and recommended against

Petitioner’s provisional licensure in the plumbing and

mechanical trades.

13. There is no persuasive evidence that the Application

Review Committee made any direct inquiries of Petitioner’s

affiants to supplement their affidavits or that it was required

to do so.

14. There is no evidence that Petitioner was notified of

the Application Review Committee’s meeting or that the law

requires that Petitioner be notified of it. However, Petitioner

was notified, according to law, of the Board’s meeting on

October 17, 2008, when a vote was taken and his pending

mechanical and plumbing applications were denied, effective with

the Board’s October 30, 2008, Intent to Deny.

15. There is no evidence that Petitioner was present or

offered any additional information at the Board’s meeting to

support his application(s).

16. According to Mr. McCormick, Petitioner’s affidavits

did not describe Petitioner’s work experience in sufficient

detail for the two respective categories of inspector.

17. Overall, Mr. McCormick felt all of Petitioner’s

affidavits for plumbing and mechanical provisional certification

were not specific in the two categories chosen. The Application

Review Committee and the Board were looking for affidavits that

showed discrete and significant expertise in each trade

category, not just experience as a general contractor overseeing

other experts in those trades and systems.

18. Petitioner previously had been a general contractor

and a licensed Ohio Real Estate Corporate Salesperson.

Petitioner’s status as a general contractor in Ohio was

insufficient, according to Mr. McCormick, because nothing in the

affidavits correlated the licensure of general contractors in

Ohio with licensure of general contractors in Florida for

purposes of trade category licensing and because Petitioner had

already received credit for his prior general contracting

experience via his Florida provisional building inspector

license. ( See Finding of Fact 9.)

19. Mr. McCormick specifically addressed some of these

affidavits at hearing. He indicated that the affidavit of Matt

Adair, a building official in Deland, Florida, was vague as to

five years of the necessary mechanical or plumbing experience,

but that it had been accepted by the Application Review

Committee as the public employer’s intent to utilize Petitioner

for commercial plumbing and mechanical inspections if Petitioner

were provisionally licensed in those categories. An affidavit

by Jim Ziegler, an Ohio building official, spanned 20 years, and

addressed Petitioner’s success in commercial plumbing, masonry,

and HVAC (an air-conditioning/mechanical trade), only because of

general contractor in Ohio. The affidavit of Frank Pirc covered

1996-2006, and only described Petitioner as a supervising

general contractor with good knowledge of commercial and

residential cooling systems. The affidavit of John Bogert, a

general contractor, was very specific for plumbing for 1995-

2006, but in Mr. McCormick’s view, Mr. Bogert’s affidavit was

unacceptable because it conflicted with an employment history

submitted by Petitioner in the same application file. ( See

affidavits for correct name spellings, rather than the

Transcript, which uses phonetic spellings.)

20. Mr. McCormick further stated that no affiant actually

identified the period of full-time employment that Petitioner

worked in each trade category.

21. Mr. McCormick acknowledged that Petitioner had

demonstrated 20 years’ experience in general building, which

encompasses some plumbing and some work in the mechanical trade,

spread out over that 20-year time frame. However, he testified

that the Committee and Board were looking for evidence, via

affidavit, that the applicant had a minimum of five years solely

dedicated to each trade or five years of full-time work

experience in plumbing and five years of full-time work

experience in a mechanical trade, not just five years’ total

experience based on the applicant’s time in both trades added

together. Moreover, in his opinion on behalf of the Board, 20

years as a building contractor had already been acknowledged

with the granting of Petitioner’s provisional building

inspector’s license.

22. To illustrate his foregoing analysis, Mr. McCormick

divided five years into average full-time work hours of 2,000

work hours per year and 10,000 work hours for a five-year long

period of employment, but he did not specify that the Committee

or Board was adding up full-time work hours to otherwise modify

the five years per category requirement of the statute or to

alter any Administrative Code rules.

23. Mr. McCormick summed-up problems the Committee and the

Board had with Petitioner’s affidavits, saying they showed that

Petitioner “did a lot of things over 20 years . . . [but] It is

not incumbent on the Board to figure out which part of those 20

years to assign to which trade.” (TR-65)

24. Mr. McCormick acknowledged that, added together, the

affidavits submitted by Petitioner covered 20 years of

employment, but he further testified that the Committee and

Board were looking for affidavits which showed an applicant’s

specific duties by trade category, covering specific

times/dates, which specific times/dates amounted to five years

for each category of building trade.

CONCLUSIONS OF LAW

25. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant to Sections 120.569 and 120.57 (1), Florida Statutes

(2008).

26. Petitioner, as the license applicant, bears the duty

to go forward and the burden of proof by a preponderance of the

evidence in this initial licensing case. Department of

Transportation v. J.W.C. Company, Inc. , 396 So. 2d 778 (Fla. 1st

DCA 1981); Balino v. Department of Health and Rehabilitative

Services , 348 So. 2d 349 (Fla. 1st DCA 1977).

27. Petitioner asserts that the “10,000 hours,” which was

described by Board Chairman Robert McCormick “as being the

equivalent of five years’ work experience, amounts to an un-

promulgated rule and therefore, is without any validity in the

law,” ( see Petitioner’s Proposed Recommended Order), and that

the Board’s decision to deny herein is reversible upon authority

of Gar-Con Development, Inc. v. Department of Environmental

Regulation , 468 So. 2d 413 (Fla. 1st DCA 1985). This analysis

is not persuasive. Rather, it is concluded that the witness’

explanation which encompassed his example of “10,000 hours” was

not intended to usurp or modify the five-years-per-category

requirement clearly set out in Section 468.609(2)(c)1., Florida

Statutes (2008), and Rule 61G19-6.012(3), and that Gar-Con, does

not apply.

28. Florida Administrative Code Rule 61G19-6.012 reads, in

pertinent part:

(1) The Board shall issue a provisional

certificate to any newly employed or newly

promoted building code administrator, plans

examiner, or building code inspector subject

to the provisions of Section 468.609, F.S.,

and the provisions of this rule.

(2) Provisional certificates are not

renewable, and are valid for the following

terms:

(a) Three years for inspectors.

(b) Three years for plans examiners.

(c) Three years for building code

administrators or building officials.

(3) Provisional inspector or plans examiner

certificates shall only be issued to

applicants who demonstrate at the time of

their application that they possess all of

the standards and eligibility requirements

for standard certifications as set forth in

Section 468.609(2), F.S. Provisional

building code administrator certificates

shall only be issued to applicants who

demonstrate at the time of their application

that they possess all of the standards and

eligibility requirements for standard

certification as set forth in Section

468.609(3), F.S.

(4) Provisional certificates shall only be

issued to persons employed by an agency of

government. (Emphasis supplied)

29. Section 468.609 (2008), Florida Statutes, reads in

pertinent part:

(1) Except as provided in this part, any

person who desires to be certified shall

apply to the board, in writing upon forms

approved and furnished by the board, to take

the certification examination.

(2) A person may take the examination for

certification as a building code inspector

or plans examiner pursuant to this part if

the person:

(a) Is at least 18 years of age.

(b) Is of good moral character.

(c) Meets eligibility requirements

according to one of the following

criteria:

1. Demonstrates 5 years’ combined

experience in the field of

construction or a related

field, building code

inspection, or plans review

corresponding to the certification

category sought; (Emphasis supplied)

* * *

(4) No person may engage in the duties of a

building code administrator, plans examiner,

or building code inspector pursuant to this

part after October 1, 1993, unless such

person possesses one of the following types

of certificates, currently valid, issued by

the board attesting to the person’s

qualifications to hold such position:

(a) A standard certificate.

(b) A limited certificate.

(c) A provisional certificate.

(5)(a) To obtain a standard certificate, an

individual must pass an examination approved

by the board which demonstrates that the

applicant has fundamental knowledge of the

state laws and codes relating to the

construction of buildings for which the

applicant has building code administration,

plans examination, or building code

inspection responsibilities. It is the

intent of the Legislature that the

examination approved for certification

pursuant to this part be substantially

equivalent to the examinations administered

by the International Code Council.

(b) A standard certificate shall be issued

to each applicant who successfully completes

the examination, which certificate

authorizes the individual named thereon to

practice throughout the state as a building

code administrator, plans examiner, or

building code inspector within such class

and level as is specified by the board.

* * *

(6)(a) A building code administrator, plans

examiner, or building code inspector holding

office on July 1, 1993, shall not be

required to possess a standard certificate

as a condition of tenure or continued

employment, but shall be required to obtain

a limited certificate as described in this

subsection.

* * *

(7)(a) The board may provide for the

issuance of provisional certificates valid

for such period, not less than 3 years nor

more than 5 years, as specified by board

rule, to any newly employed or promoted

building code inspector or plans examiner,

who meets the eligibility requirements

described in subsection (2) and any newly

employed or promoted building code

administrator who meets the eligibility

requirements described in subsection (3).

(Emphasis supplied)

* * *

30. The Board interprets the foregoing to mean that

although a person has passed the ICC building inspector

examination for standard licensure and the Florida laws and

rules examination, as has Petitioner, that does not excuse

compliance with the statutorily required five years of actual

experience. The following rules reflect that interpretation.

31. Florida Administrative Code Rule 61G19-6.0035,

Application for Provisional and/or Standard Certification,

provides, in pertinent part:

(1) Each individual who wishes to obtain a

provisional and/or standard certificate in

any certificate category shall submit the

following to the Board:

(a) A completed application form for the

category in which certification is sought.

The form that shall be used for this purpose

shall be provided by the Department and

available on the Department’s website.

(b) An affidavit describing in detail

each separate period of work experience

listed in the application form, signed by a

licensed architect, engineer, contractor, or

building code administrator who has

knowledge of the applicant’s duties and

responsibilities during the period

indicated. The form that shall be used for

this purpose shall be provided by the

Department and available on the Department’s

website. Each affidavit must include the

name and address of the applicant’s employer

during the work experience period, the dates

of employment, and a description of the

applicant’s duties and responsibilities

during the employment including any

supervisory responsibilities, in sufficient

detail to enable the Board to determine

whether or not the applicant has the

experience required for certification.

(c) Each applicant for certification as an

inspector or plans examiner shall

demonstrate that he or she has at least one

(1) year of hands-on experience in the

category of certification sought, with the

exception of 1 and 2 family dwelling

inspector. For a 1 and 2 family dwelling

inspector certification, refer to the

specific requirements in Rule 61G19-6.017,

F.A.C.

* * *

(f) For purposes of this section, any

unlicensed activity shall not be recognized

for the purposes of providing required

experience. (Emphasis supplied)

32. The statute requires “five years’ combined experience

in the field of construction or a related field . . .

corresponding to the category sought.” The rules require

detailed affidavits covering “each separate period of work

experience listed in the application form . . . in sufficient

detail to enable the Board to determine whether or not the

applicant has the experience required for certification.”

Together, it is clear that what the Board is empowered by the

Legislature to seek, and is seeking, via affidavit, is a

complete work history, accounting for all the applicant’s

separate periods of work experience in different locations and

with different employers upon which the applicant relies to

establish that he or she has a minimum of five years for

whichever (and for every) type of provisional license the

applicant is applying. 1/

33. It is both apparent and logical that five years of

experience in plumbing would not be sufficient to qualify

provisionally for an electrical certificate or vice-versa .

Mr. McCormick’s explanation of his committee’s thinking that

five years’ experience in each category is necessary does not

diverge from the statute and does not establish the existence of

an un-promulgated rule.

34. “If an agency’s interpretation is one of several

permissible interpretations, it must be upheld, despite the

existence of reasonable alternatives.” Pershing Industries,

Inc. v. Department of Banking and Finance , 591 So. 2d 991 (Fla.

1st DCA 1991). On the same point, see Suddath Van Lines v.

Dept. of Environmental Protection , 668 So. 2d 209 (Fla. 1st DCA

1996), and P. W. Ventures, Inc. v. Nichols , 533 So. 2d 281 (Fla.

1988), the latter of which held, “The courts will not depart

from such a[n agency’s] construction unless it is clearly

unauthorized or erroneous.” This is true even if the agency’s

interpretation is “somehow problematic.” Morris v. Division of

Retirement , 696 So. 2d 380 (Fla. 1st DCA 1997).

35. As to the Committee’s/Board’s analysis of the specific

affidavits themselves, discretionary authority is necessary for

agencies to adequately pursue their licensing mandates. As

stated in Astral Liquors v. Department of Business Regulation ,

463 So. 2d 1130 (Fla. 1985):

. . . Discretionary authority is necessary

for agencies involved in the issuance of

licenses and the determination of fitness of

applicants for license. See Permenter v.

Younan , 159 Fla. 226, 31 So. 2d 387 (1947);

Solimena v. State, Department of Business

Regulation , 402 So. 2d 1240 (Fla. 3d DCA

1981), review denied , 412 So. 2d 470 (Fla.

1982); Brewer v. Insurance Commissioner &

Treasurer , 392 So. 2d 593 (Fla. 1st DCA

1981). This discretionary authority is

particularly necessary where an agency

regulates “occupations which are practiced

by privilege rather than by right and which

are potentially injurious to the public

welfare.” Solimena , 402 So. 2d at 1246. As

we explained in North Broward Hospital

District v. Mizell , 148 So. 2d 1 (Fla.

1962), in certain areas “it is impracticable

to lay down a definite comprehensive rule.

Id. at 4, n. 11 (quoting 1 Am. Jur. 2d

Administrative Law ss 116 (1962). . . .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Board of Building Code Administrators

and Inspectors enter a Final Order denying Petitioner’s

applications.

DONE AND ENTERED this 12th day of June, 2009, in

Tallahassee, Leon County, Florida.

S

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of June, 2009.

ENDNOTE

1/ Neither the witness at hearing nor either of the Proposed

Recommended Orders addressed what effect, if any, Rule 61G19-

6.0035 (1)(c) and (f) might have on the Committee/Board’s

approach to applying the statute requiring five years’

experience for licensure.

COPIES FURNISHED :

Robin Barineau, Executive Director

Department of Business and Professional

Regulation

Building Code Administrators and

Inspectors Board

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Reginald Dixon, General Counsel

Department of Business and Professional

Regulation

Building Code Administrators and

Inspectors Board

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Ann Cocheu, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Darren J. Elkind, Esquire

Paul & Elkind, P.A.

505 Deltona Boulevard, Suite 105

Deltona, Florida 32725

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.