09-001335 Sprague Owings vs. Building Code Administrators And Inspectors Board Status: Closed Recommended Order on Tuesday, June 2, 2009.

Summary: Petitioner's application for certification as a roofing inspector should be denied because he does not have the required four years of full-time roofing experience.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SPRAGUE OWINGS, )

)

Petitioner, )

)

vs. ) Case No. 09-1335

)

BUILDING CODE ADMINISTRATORS )

AND INSPECTORS BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

A duly-noticed final hearing was held in this case by

Administrative Law Judge T. Kent Wetherell, II, on May 1, 2009,

in Yulee, Florida.

APPEARANCES

For Petitioner: Sprague Owings, pro se

Post Office Box 1270

Yulee, Florida 32041-1270

For Respondent: Timothy E. Dennis, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

The issue is whether Petitioner’s application for

certification as a roofing inspector should be granted.

PRELIMINARY STATEMENT

The Building Code Administrators and Inspectors Board

(Board) informed Petitioner in a Notice of Intent to Deny dated

November 10, 2008, that his application for certification as a

roofing inspector was denied. Petitioner requested a hearing on

that decision through a Petition for Evidentiary Hearing dated

November 12, 2008. The Board referred this matter to the

Division of Administrative Hearings (DOAH) on March 13, 2009, 1 /

to conduct the hearing requested by Petitioner.

The final hearing was scheduled for and held on May 1,

2009. At the hearing, Petitioner testified in his own behalf

and presented the testimony of Robert Sasser, Robert McKinney,

Gary Garver, and Robert McCormick. The Board also presented the

testimony of Mr. McCormick. Petitioner’s Exhibits 1 through 7

and Respondent’s Exhibits 1 and 2 were received into evidence.

The Transcript of the final hearing was filed with DOAH on

May 13, 2009. The parties were given 10 days from that date to

file proposed recommended orders (PROs). The Board filed a PRO

on May 26, 2009. Petitioner did not file a PRO. The Board’s

PRO has been given due consideration.

FINDINGS OF FACT

1. Petitioner has worked in the construction industry

since 1973. He was trained as an electrician, but he has

“worked in about every trade” over the years, including roofing.

2. Petitioner is certified by the Board as a building code

inspector (all trades), plans examiner (all trades), and

building code administrator.

3. Petitioner is not, and never has been, a state or

locally certified roofing contractor or a general contractor.

4. Petitioner has worked as a building code inspector and

plans examiner for Nassau County since May 2003. He previously

worked as a building code inspector for Seminole County and the

City of Oviedo, and as a plans examiner for a private inspection

and engineering company.

5. Inspecting roofs is part of Petitioner’s job as a

building code inspector for Nassau County, but it is not the

only trade that he inspects. Unlike larger jurisdictions where

inspectors specialize in particular trades, Petitioner and the

other building code inspectors in Nassau County are “combination

inspectors” responsible for inspecting all aspects of the

building.

6. Petitioner typically conducts 80 to 100 inspections per

week, but less than 10 percent of those inspections --

approximately six per week -- are roof inspections.

7. Petitioner credibly testified that even though roof

inspections are a relatively small portion of his job, he looks

at roof design and construction on a daily basis when he is on-

site inspecting other aspects of the building and when he is

reviewing building plans as a plans examiner.

8. The current and former building official in Nassau

County credibly testified that Petitioner “regularly” inspects

roofs and that they have had no problems or concerns with his

roof inspections. Their testimony concerning the competency of

Petitioner’s roof inspection work was corroborated by a building

code inspector who works with Petitioner and who has been a

certified roofing contractor since 1983.

9. In September 2008, Petitioner submitted an application

to the Board for certification as a roofing inspector.

10. The Board considered Petitioner’s application at its

regular meeting in October 2008.

11. The Board determined that Petitioner’s application

should be denied because he does not have the “four (4) years of

roofing experience” required by Florida Administrative Code Rule

61G19-6.016(3).

12. The Board construes this and other similar experience

requirements in its rules to require full-time experience.

13. The Board’s interpretation of the rule is based, at

least in part, upon its reasonable and logical expectation that

a person who performs a job on a full-time basis gains more

knowledge and expertise than a person who performs the job only

occasionally.

14. Petitioner does not have four years of full-time

roofing experience, and he does not inspect roofs on a full-time

basis as a building code inspector.

15. Petitioner does not need to be certified as a roofing

inspector to inspect roofs in the course of his work as a

building code inspector.

16. Petitioner wants to be certified as a roofing

inspector “to protect [himself] in the future from changes in

the law” because he is concerned that at some point

certification as a roofing inspector may be required in order to

inspect roofs.

17. There is no basis in the record for Petitioner’s

speculative concern. The Board chairman, Robert McCormick,

credibly testified that he was unaware of anything under

consideration that would require certification as a roofing

inspector in order to inspect roofs.

CONCLUSIONS OF LAW

18. DOAH has jurisdiction over the parties to and subject

matter of this proceeding pursuant to Sections 120.569 and

120.57(1), Florida Statutes. 2 /

19. The Board is the state agency responsible for

certifying building code inspectors. See § 468.606(2), Fla.

Stat.

20. Certification by the Board is required in order to

perform the duties of a building code inspector. See § 468.607,

Fla. Stat. Those duties include “conduct[ing] inspections of

building construction, erection, repair, addition, or alteration

projects that require permitting indicating compliance with

building, plumbing, mechanical, electrical, gas, fire

prevention, energy, accessibility, and other construction codes

as required by state law or municipal or county ordinance.”

§ 468.603(2), Fla. Stat.

21. The Board “shall issue a certificate to any individual

whom the board determines to be qualified, within such class and

level as provided in this part and with such limitations as the

board may place upon it.” § 468.607, Fla. Stat.

22. Section 468.609(2), Florida Statutes, establishes the

criteria for certification as a “building code inspector or

plans examiner.” The statute provides in pertinent part:

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;

2. Demonstrates a combination of

postsecondary education in the field of

construction or a related field and

experience which totals 4 years, with at

least 1 year of such total being experience

in construction, building code inspection,

or plans review;

3. Demonstrates a combination of

technical education in the field of

construction or a related field and

experience which totals 4 years, with at

least 1 year of such total being experience

in construction, building code inspection,

or plans review;

4. Currently holds a standard certificate

as issued by the board and satisfactorily

completes a building code inspector or plans

examiner training program of not less than

200 hours in the certification category

sought. . . .; or

5. Demonstrates a combination of the

completion of an approved training program

in the field of building code inspection or

plan review and a minimum of 2 years'

experience in the field of building code

inspection, plan review, fire code

inspections and fire plans review of new

buildings as a firesafety inspector

certified under s. 633.081(2), or

construction. . . . .

23. According to the Board, these statutory criteria do

not apply to the “voluntary certification categories”

established by rule pursuant to the authority in Section

468.609(10), Florida Statutes. It is not necessary to determine

in this case whether the Board is correct because, as stated

below, the outcome of the case would not change even if the

statutory criteria were applied in addition to, or in lieu of,

the rule criteria. 3 /

24. “Roofing inspector” is one of the voluntary

certification categories established by the Board. See Fla.

Admin. Code R. 61G19-6.016(3).

25. The criteria that an applicant must meet for

certification as a roofing inspector are set forth in Florida

Administrative Code Rule 61G19-6.016(3), which provides:

Roofing Inspector means a person who is

qualified to inspect residential and

commercial roofs. In order to obtain this

voluntary certification the Board will

require either: four (4) years of roofing

experience with passage of the standardized

roofing inspectors’ examination as approved

by the board; state certification as a

roofing contractor or a state certified

general contractor who was certified prior

to 1974.

26. Petitioner has the burden to prove by a preponderance

of the evidence that he meets the requirements for certification

as a roofing inspector. See Dept. of Banking & Finance v.

Osborne Stern & Co. , 670 So. 2d 932, 934 (Fla. 1996) (holding

that an applicant for licensure has the burden to prove his

entitlement to the license); § 120.57(1)(j), Fla. Stat.

27. Petitioner failed to meet his burden of proof.

28. Petitioner is not, and never has been, a state-

certified roofing contractor or a general contractor. See Fla.

of roofing experience,” as that phrase is reasonably interpreted

by the Board to mean four years of full-time roofing experience.

Id.

29. Therefore, even though the evidence establishes that

Petitioner regularly, and competently, performs roof inspections

in the course of his work as a building code inspector, the

evidence fails to establish that Petitioner has the experience

required by the applicable Board rule for certification as a

roofing inspector.

30. The outcome of this case would not change even if it

was determined that the criteria in Section 468.609(2), Florida

Statutes, were applicable. It is undisputed that Petitioner

meets the criteria in paragraphs (a) and (b) of the statute ( see

Transcript, at 84-85), but the evidence fails to establish that

Petitioner meets the criteria in paragraph (c) because he does

not have the requisite level of experience in the “certification

category sought” -- i.e. , roofing.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Board issue a final order denying

Petitioner’s application for certification as a roofing

inspector.

DONE AND ENTERED this 2nd day of June, 2009, in

Tallahassee, Leon County, Florida.

S

T. KENT WETHERELL, II

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 2nd day of June, 2009.

ENDNOTES

1 / There is no explanation in the record for the four-month

delay between the date of the petition and the referral of the

case to DOAH.

2 / All statutory references are to the 2008 version of the

Florida Statutes.

3 / The Board’s interpretation of the statutes and rules that it

is charged with implementing is entitled to deference. See ,

e.g. , Pershing Industries, Inc. v. Dept. of Banking & Finance ,

591 So. 2d 991, 992 (Fla. 1st DCA 1991) (“[A]n agency's

construction of its governing statutes and rules will be upheld

unless clearly erroneous. If an agency's interpretation is one

of several permissible interpretations, it must be upheld

despite the existence of reasonable alternatives.” (citations

omitted)). That said, the undersigned is skeptical of the

Board’s position that the statutory criteria do not apply to the

voluntary certification categories. Section 468.609(10),

Florida Statutes, authorizes the Board to create “categories of

certification in addition to those defined in s. 468.603(6) and

(7),” but it does not authorize the Board to establish separate

criteria for those categories. Moreover, in practice, it

appears that the Board applies at least the statutory “good

moral character” requirement to the voluntary certification

categories. See Respondent’s Exhibit 1, at page 0004, which

reflects that one of the reasons that Petitioner’s case was sent

to the Board for review was his “arrests/discipline.”

COPIES FURNISHED :

Timothy E. Dennis, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

Sprague Owings

Post Office Box 1270

Yulee, Florida 32041-1270

G. W. Harrell, Executive Director

Construction Industry Licensing Board

Department of Business

and Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Ned Luczynski, General Counsel

Department of Business

and Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

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.