09-002968 Samuel Omega Rollins vs. Construction Industry Licensing Board Status: Closed Recommended Order on Tuesday, November 24, 2009.

Summary: The case discusses experience requirements for licensure and who may verify experience within the categories of contractor; the effect of questions at the FCILB hearing; and licensure by default.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SAMUEL OMEGA ROLLINS, )

)

Petitioner, )

)

vs. ) Case No. 09-2968

)

CONSTRUCTION INDUSTRY LICENSING )

BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, a disputed-fact hearing was held on

September 14, 2009, in Tallahassee, Florida, before Ella Jane P.

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

of Administrative Hearings.

APPEARANCES

For Petitioner: J. Steven Carter, Esquire

Henry, Buchanan, Hudson,

Suber & Carter, P.A.

2508 Barrington Circle

Tallahassee, Florida 32308

For Respondent: Daniel R. Biggins, Esquire

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

Building Contractor or Residential Contractor.

PRELIMINARY STATEMENT

Petitioner’s application for licensure as a certified

building contractor was addressed by a Notice of Intent to Deny

dated March 16, 2009.

Petitioner timely requested a disputed-fact hearing, and on

or about May 29, 2009, the cause was referred to the Division of

Administrative Hearings. The Division’s file reflects all

pleadings, notices, and orders intervening before the disputed-

fact hearing.

At hearing, Petitioner presented the oral testimony of

Chad Banks and testified on his own behalf. He had Exhibits P-

1, 2, 2A, 3, 4, and 5, admitted in evidence. Respondent

presented the oral testimony of Jacqueline Watts and had no

exhibits admitted in evidence.

A Transcript was filed on September 29, 2009.

The parties timely filed their respective Proposed

Recommended Orders on October 19, 2009, each of which has been

considered.

FINDINGS OF FACT

1. Petitioner is a 44-year-old male. He was born and

raised in Tallahassee, Florida. He is a high school graduate.

2. Petitioner passed the examination for licensure as a

certified building contractor. This is a comprehensive

examination that is designed to test knowledge in all aspects of

the construction industry. Passing it is a mandatory

prerequisite before an application can be considered by the

Florida Construction Industry Licensing Board (FCILB). However,

passing the examination does not eliminate or modify the

statutory or rule experience requirements.

3. Petitioner submitted his application for a certified

building contractor license on or about March 24, 2008.

4. By letter of May 2, 2008, the Department of Business

and Professional Regulation requested additional information.

5. Petitioner then provided a revised affidavit from

Chad Banks, a certified building contractor, and a letter from

the Maintenance Construction Chief of the City of Tallahassee’s

Gas Utility Department, each containing more detailed

information about Petitioner’s experience. These items were

received by Respondent on May 23, 2008.

6. It is not clear whether Petitioner requested and was

granted a continuance of his appearance with regard to the

instant license application at an earlier FCILB meeting, but on

January 15, 2009, the full Board considered Petitioner’s

application at a duly-noticed public meeting in Altamonte

Springs, Florida. At that time, Petitioner was present.

7. During his appearance before the full Board on

January 15, 2009, Petitioner was very nervous, but he believes

that one of the Board members offered him, or at least asked him

if he would accept, a residential contractor’s license in place

of a certified building contractor’s license, and that he

answered that he would accept such a license, only to have that

“offer and acceptance” voted down by the full Board. However,

Petitioner does not rule out the possibility that the vote taken

at the meeting was actually with regard to denying the certified

building contractor license for which he had applied.

8. There is no evidence that Petitioner has ever submitted

an application for a residential contractor’s license.

9. By a Notice of Intent to Deny, dated March 16, 2009,

and mailed March 24, 2009, the FCILB formally denied

Petitioner’s application for a certified building contractor

License stating:

The applicant failed to demonstrate the

required experience, pursuant to Section

489.111, Florida Statutes and Rule 61G4-

15.001, Florida Administrative Code.

10. Petitioner seeks licensure as one who has four years

of active experience and who has learned the trade by serving an

apprenticeship as a skilled worker or as a foreman, at least one

year of which experience is as a foreman.

11. Petitioner has never worked as a full-time employee of

a commercial or residential contractor.

12. Petitioner got early experience in construction

working around eight rental properties owned by his father. He

performed light carpentry, deck construction, general handyman

repairs, and some plumbing and roofing when he was approximately

16 to 21 years of age.

13. However, Petitioner essentially relies on a work

history that includes working as a plumber for Jim Bennett

Plumbing from 1987 to 1993; as a foreman for the City of

Tallahassee Gas Department from 1995 to 2005; as a “contractor

trainee” for Chad Banks from 1999 to 2002; as having volunteered

as superintendent for Gulf Coast Painting from 2003 to 2007; and

as a maintenance man for the City of Tallahassee Parks

Department from 2006 to 2007.

14. Petitioner’s dates of employment overlap, because his

volunteer experience was acquired mostly on weekends, holidays,

in hours after he had already completed a full work day for the

City of Tallahassee, or on “time off” from his regular

employments with the City. Petitioner is a hard worker and

wanted to learn the construction trade, but his volunteer

construction jobs were intermittent, and he provided no clear

assessment of the number of hours per week or month that he put

in for any of them.

15. From 1987 to 1993, Petitioner worked for Jim Bennett

Plumbing. He started as a plumber’s helper and progressed to

greater responsibility. In that position, he acquired a wide

range of experience in plumbing for some residential, but mostly

commercial, buildings. During this period, he also did some

light cosmetic carpentry and tile work to restore building parts

damaged by the installation of plumbing apparatus.

16. Much of Petitioner’s construction experience relates

to his association with Chad Banks, who testified that at all

times material, Petitioner had “hands on” experience, working

for him and that Petitioner was a competent worker.

17. Petitioner has never been a “W-2 employee” of Mr.

Banks, but there is no specific statutory or rule requirement

that the experience necessary to qualify for the certified

building contractor or the residential contractor license must

be as a “W-2 employee.” Cf . Conclusions of Law.

18. Mr. Banks was not licensed as a certified building

contractor until 1999.

19. Petitioner did some work for Mr. Banks when Mr. Banks

was working as a sub-contractor on commercial projects

(specifically one or more Super-Lube buildings) prior to

Mr. Banks obtaining his certified building contractor’s license

in 1999. Most of this employment involved pouring concrete

slabs. Petitioner claims experience in “elevated slabs,”

limited to the construction of a single Super-Lube building,

which Petitioner described as laying a slab below ground level

for mechanics to stand on and an at-ground level slab for cars

to drive onto the lift for an oil change. He described no truly

“elevated” slabs or floors above ground level on this project,

and Petitioner’s and Mr. Banks’ testimony was vague as to

Petitioner’s responsibilities on this project and as to the

project’s duration. The general contractor on this project for

whom Mr. Banks “subbed” did not testify.

20. From this, and other employments, Petitioner has

experience pouring foundation slabs, but he has never worked on

a foundation slab in excess of 20,000 square feet.

21. Petitioner also assisted in Mr. Banks’ construction of

some rental sheds, but it is unclear if this was before or after

Mr. Banks was licensed.

22. Petitioner worked for Mr. Banks d/b/a C. B.

Construction, Inc., in a volunteer capacity on exclusively

residential construction from 1999 to 2002, and again from

February 2004 to March 2008. During these periods, Petitioner

and Mr. Banks considered Petitioner a “contractor trainee,” but

Petitioner’s work for Mr. Banks was neither exclusive nor

continuous; both men described it as “volunteer” work; and some

of it seems to have amounted to Petitioner's looking over work

done personally by Mr. Banks and having Mr. Banks explain to

him, via a plan sheet, what Mr. Banks had already done

personally. There is no evidence that during this time frame

Petitioner worked for Mr. Banks as a foreman.

23. Petitioner has the ability to “read” many types of

construction “plans.”

24. Petitioner has experience with slab footers, but he

has not constructed red iron structural steel qualified for

framing a building.

25. Petitioner has experience in decorative masonry walls,

but he has not constructed structural masonry walls of a type

that would support framing members of a building or other

vertical construction.

26. Petitioner also worked for the City of Tallahassee as

a “W-2” employee, mostly as a foreman overseeing a crew of four

workers, from 1995 to 2005. In that capacity, he worked on a

church, but the church itself had been constructed several years

previously, and Petitioner’s crew’s contribution was tying-in

several gas lines during a roadway development project and

keeping all the utilities up and running during the project,

while a private contractor worked on the church.

27. With regard to the foregoing project and many others

for the City Utilities Department, Petitioner directed a crew

that built sidewalks and gutters or that tied these features

into existing roadways and driveways. In that capacity, he

often coordinated activities with residential contractors. Over

his ten years’ employment with the City Utilities, Petitioner

also directed a crew that exclusively created underground vaults

for the housing and shelter of utility apparatus. However, none

of his endeavors for the City Utilities involved vertical

structural construction for floors above ground.

28. Petitioner has also built new gas stations for the

City’s natural gas vehicles, and has erected pre-fab utility

buildings, including much slab work, but the nature and duration

of these endeavors is not sufficiently clear to categorize them

as qualifying him for the certified building contractor license.

29. Most of Petitioner’s experience with the City, as

substantiated by the letter of the City Utilities Maintenance

Construction Chief, Mr. Lavine, has been in the construction of

driveways, roads, gutters, storm drains, sidewalks, culverts,

underground utility structures, plumbing and gas lines. While

it is accepted that Petitioner has worked on such projects, this

type of work more properly falls in the categories of “plumbing

was not demonstrated to have any certification/licensure in a

category appropriate to Petitioner’s application. ( See

Conclusions of Law.)

30. Sometime after 2005, for approximately a year,

Petitioner was employed by the City of Tallahassee Parks and

Recreation Department and in that capacity participated in at

least one construction of a dugout and a concession stand at one

of its playgrounds. He also did repairs on several dugouts and

concession stands, but this latter work would not be classified

as “structural” construction.

31. Petitioner’s experience in precast concrete structures

is limited to his work with gas utility structures, but does not

include work on precast tilt walls, which are the type of walls

that are constructed off-site, delivered to the job site, placed

on the slab foundation, and raised in place as part of an on-

going commercial building project.

32. Petitioner has no experience in column erection.

“Columns” in this context within the construction trade refers

to supports for upper level structural members, which would

entail vertical construction.

33. Petitioner’s experience in concrete formwork does not

include experience in the structurally reinforced concrete

formwork that would be used in vertical buildings, such as all

floors above ground level.

34. FCILB’s Chairman testified that the Board interprets

the type of experience necessary to comply with the statutes and

rules, more particularly Florida Administrative Code Rule 61G4-

15.001(2), to be “structural experience.”

35. There is no affirmative evidence that Petitioner has

ever notified the Clerk of the Agency that he was relying on a

right to a default license.

CONCLUSIONS OF LAW

36. The Division of Administrative Hearings has

jurisdiction of the parties and subject matter of this cause,

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

(2009).

37. In addition to asserting that he is substantively

entitled to a certified building contractor’s license,

Petitioner also contends that he is entitled to a license by

default, because his application was not timely granted or

denied after all information requested had been received by the

Agency/Board on May 23, 2008, and because his application was

not granted or denied within 15 days of the January 15, 2009,

public hearing by the FCILB on his license application.

38. Petitioner further contends that he is entitled to a

residential contractor’s license because of his interchange with

one Board member at the hearing on January 15, 2009. ( See

Finding of Fact 7.)

39. Petitioner bears the duty to go forward and prove

entitlement to the requested license by a preponderance of the

evidence. Department of Banking and Finance v. Osborne Stern

and Company , 670 So. 2d 932 (Fla. 1996); Antel v. Department of

Professional Regulation, Florida Real Estate Commission , 522 So.

2d 1056 (Fla. 5th DCA 1988).

40. Applicable to the issue of default is the following

statute, quoted only in pertinent part:

120.60 Licensing. --

(1) Upon receipt of an application for a

license, an agency shall examine the

application and, within 30 days after such

receipt, notify the applicant of any

apparent errors or omissions and request any

additional information the agency is

permitted by law to require. . . . An

application shall be considered complete

upon receipt of all requested information

and correction of any error or omission for

which the applicant was timely notified or

when the time for such notification has

expired. Every application for a license

shall be approved or denied within 90 days

after receipt of a completed application

unless a shorter period of time for agency

action is provided by law. The 90-day time

period shall be tolled by the initiation of

a proceeding under ss. 120.569 and 120.57.

Any application for a license that is not

approved or denied within the 90-day or

shorter time period, within 15 days after

conclusion of a public hearing held on the

application, or within 45 days after a

recommended order is submitted to the agency

and the parties, whichever action and

timeframe is latest and applicable, is

considered approved unless the recommended

order recommends that the agency deny the

license. . . . Any applicant for licensure

seeking to claim licensure by default under

this subsection shall notify the agency

clerk of the licensing agency, in writing,

of the intent to rely upon the default

license provision of this subsection, and

shall not take any action based upon the

default license until after receipt of such

notice by the agency clerk.

41. Section 120.60(1), Florida Statutes, establishes a

timetable for agency action on a license application. If an

agency has not taken action within the prescribed time periods,

an application for a license or for an examination required for

licensure is considered approved. Johnson v. Dept. of Business

& Professional Regulation , 634 So .2d 666 (Fla. 2d DCA 1994).

If the Agency has not taken action within the prescribed time

periods, and the applicant notifies the Agency Clerk in writing

that s/he claims a default license, then s/he is entitled to the

default license.

42. Within 30 days after the receipt of an application for

a license, the agency must examine the application, notify the

applicant of any apparent errors or omissions, and request any

additional information. In this case, the Agency did not

request further information until the thirty-ninth day (March 24

to May 2, 2008). The burden of responding to the request for

further information is upon the applicant, if he chooses to go

that route, and the duty to notify the Agency Clerk in writing

is upon the applicant if, at that point, he seeks a default

license. In this case, there is no evidence that Petitioner

notified the Agency Clerk concerning a claimed default license,

but rather, there is evidence that Petitioner supplemented his

application with additional material on May 23, 2008.

43. The Agency had 90 days from May 23, 2008, within which

to grant or deny the license. However, to take advantage of the

Agency’s delay at that point (August 23, 2008), Petitioner would

have to have notified the Agency Clerk in writing that he was

exercising his default rights. There is no evidence that he

notified the Agency Clerk at that point.

44. If a public hearing is held on the application, and

if, in this case, that public hearing occurred on January 15,

2009, 1/ the notification of action on the application needed to

be provided by the Board to Petitioner Applicant within 15 days

after the conclusion of the public hearing, even if this is

beyond the statutory 90-day period. Herein, the Board did not

notify Petitioner by the fifteenth day (January 30, 2009). It

did not notify him until March 24, 2009, which was 54 days past

the public hearing date.

45. However, there is no evidence that Petitioner has ever

provided written notification to the Clerk of the Agency that he

was invoking the default provision of Section 120.60, Florida

Statutes. Instead, he requested a disputed-fact hearing.

46. If a proceeding under Sections 120.569 and 120.57,

Florida Statutes (such as the instant one) is initiated, the 90-

day period is “tolled” and the application must then be approved

or denied within 45 days after a recommended order (this

Recommended Order) is submitted to the agency and the parties,

unless the Recommended Order denies the license.

47. Former Section 120.60, was amended in 2003, to remove

language providing that an agency’s lapse of time in making its

decision after completion of the application resulted in the

license,” first appears in the statute at that time. The

amendment effectively removed the requirement that an agency had

to take action to "deem approved" an application that the agency

had not timely acted upon in the first place. Thus, an

applicant exercising his right to a “default license” today no

longer has to await an already laggardly agency eventually

getting around to “deeming” him to have a default license. Now,

once the applicant properly notifies the Agency Clerk that he

has a right to a default license, the applicant (now licensee)

may proceed as if he were licensed, without waiting for the

Agency to do anything more.

48. However, in the instant case, there is no evidence

that Petitioner ever gave written notice to the Agency Clerk

that he was relying on a default license, and his request for a

disputed-fact hearing does not substitute therefor.

Accordingly, Petitioner is not entitled to licensure by default

at this stage of the proceedings.

49. As to the effect of FCILB’s public hearing on

January 15, 2009, it is not clear what the single member said to

Petitioner. He may have been inquiring about whether Petitioner

was entitled to one or more licenses, but a simple question

posed by a single Board member is meaningless. Moreover, this

question, however vague, does not, as Petitioner has suggested,

indicate a bias of the Board against an applicant whose

experience has been gained in the public sector. In fact, the

rule specifically recognizes the value of public sector

experience. See , infra .

50. Without an application for a residential construction

license plus a favorable majority vote of the whole collegial

body to approve that residential license application, Petitioner

is not entitled to a residential license. Certainly, there is

no entitlement to any license simply because a single Board

member asked Petitioner about his interest in a residential

application/license.

51. On the substantive issue, the standards that

Petitioner must meet for licensure are contained in Section

489.111, Florida Statutes (2008), which provides, in pertinent

part, as follows:

489.111 Licensure by examination. --

(1) Any person who desires to be certified

shall apply to the department in writing.

(2) A person shall be eligible for

licensure by examination if the person:

(a) Is 18 years of age;

(b) Is of good moral character; and

(c) Meets eligibility requirements

according to one of the following criteria:

* * *

2. Has a total of at least 4 years of

active experience as a worker who has

learned the trade by serving an

apprenticeship as a skilled worker who is

able to command the rate of a mechanic in

the particular trade or as a foreman who is

in charge of a group of workers and usually

is responsible to a superintendent or a

contractor or his or her equivalent,

provided, however, that at least 1 year of

active experience shall be as a foreman.

(Emphasis supplied.)

52. Also applicable is Florida Administrative Code Rule

61G4-15.001(2), which provides, in pertinent part, as follows:

(1)(a) . . . Active experience in the

category in which the applicant seeks to

qualify shall be verified by affidavits

prepared or signed by a state certified

Florida contractor, or an architect or

engineeer, in the applicant’s category, who

is licensed in good standing or a licensed

building official, who is active in the

applicant’s category, employed by a

political subdivision of any state,

territory or possession of the United States

who is responsible for inspections of

construction improvements, listing

chronologically the active experience in the

trade, including the name and address of

employers and dates of employment (which may

be corroborated by investigation by the

Board). Said affidavit shall be subscribed

to in front of a notary.

(b) Applicants shall follow the guidelines

set forth in this section when seeking to

verify active experience in accordance with

paragraph 61G4-15.001(1)(a), F.A.C.

If the applicant’s category is: The

following licensees can verify the

applicant’s experience:

1. General General contractor

2. Building General and/or Building contractor

3. Residential General, Building and/or Residential

contractor

4. P l u m b i n g General, Building, Residential,

Plumbing and/or Underground Utility

and Excavation contractor

15. Underground Utility and General, Building, Residential,

Excavation Contractor Underground utility and exca vation,

and/or Plumbing contractor

(2)(a) In the case of applicants for

certification in the general or building

contractor categories, the phrases “active

experience” and “proven experience” as used

in Section 489.111(2)(c)1., 2., or 3., F.S.,

shall be defined to mean construction

experience in four or more of the following

areas :

1. Foundation/Slabs in excess of twenty

thousand (20,000) square feet.

2. Masonry walls.

3. Steel erection.

4. Elevated slabs.

5. Precast concrete structures.

6. Column erection.

7. Formwork for structural reinforced

concrete. [2/] (Emphasis supplied.)

53. The rule is clear on its face that without evidence

from the appropriate type(s) of licensed contractor, covering at

least four years, one of which years Petitioner worked as a

foreman, Petitioner’s application must be denied. Petitioner’s

employment with the City Utilities was not the type of

employment that would qualify him for a certified building

contractor license, and while his City supervisor’s

qualifications might support Petitioner in other categories of

licensure, they did not fit the category for which he was

applying.

54. Likewise, Petitioner’s employment history with Mr.

Banks did not qualify.

55. An agency’s interpretation of its own rules is

entitled to great weight. See Woodley v. Department of Health

and Rehabilitative Services , 505 So. 2d 676 (Fla. 1st DCA 1987).

However, here, the rule is clear with or without the evidence of

the Chairman of the Board that structural, as opposed to

decorative, proficiency in the correct categories is necessary

to qualify.

56. Section 489.111(2)(c), Florida Statutes, provides that

experience shall be in the category for which the person seeks

to qualify, and that the experience shall be as a skilled worker

who can command the rate of a mechanic on a particular trade, or

as a foreman who is in charge of a group of workers and is

responsible to a superintendent or a contractor or the

equivalent, with at least one of the four years being the

foreman. It is inherent in the statute that the experience

shall be full-time, which would amount to 40 hours per week for

at least 50 weeks each year, of qualified employment

experience. 3/

57. Petitioner has not demonstrated the required

experience in any of the seven categories.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Construction Industry

Licensing Board enter a Final Order denying Petitioner’s

application for licensure as a Certified Building Contractor.

DONE AND ENTERED this 24th day of November, 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 24th day of November, 2009.

ENDNOTES

1/ Respondent asserts the Board held a “public meeting” and not

one before the Division of Administrative Hearings.

2/ This rule was last amended effective 11-26-08. It remained

the same at all times material to the application and through

the disputed-fact hearing. However, the rule, as noticed in

Vol. 34, No. 10, March 7, 2008, of the Florida Administrative

Weekly, was withdrawn as of November 20, 2009, per publication

of Florida Administrative Weekly, Vol. 35 No. 46.

3/ Respondent suggests that the 2,000 hours provided for “full-

time equivalency” of proven experience of one year named in

Florida Statutes Section 489.111(2)(c)1., with regard to those

seeking licensure through a four years’ baccalaureate program

and one year of experience applies here, as well.

COPIES FURNISHED :

Daniel R. Biggins, Esquire

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

J. Steven Carter, Esquire

Henry, Buchanan, Hudson,

Suber & Carter, P.A.

2508 Barrington Circle

Tallahassee, Florida 32308

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

Reginald Dixon, 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.