09-003176 Jay Douglas Abel vs. Florida Building Code Administrators And Inspectors Board Status: Closed Recommended Order on Thursday, December 3, 2009.

Summary: The preponderance of the evidence established that Petitioner met the statutory work experience requirement for certification.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAY DOUGLAS ABEL, )

)

Petitioner, )

)

vs. ) Case No. 09-3176

)

BUILDING CODE ADMINISTRATORS )

AND INSPECTORS BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this

case on September 29, 2009, by video teleconference at sites in

Daytona Beach and Tallahassee, Florida, before Barbara J.

Staros, Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Darren J. Elkind, Esquire

505 Deltona Boulevard, Suite 105

Deltona, Florida 32725

For Respondent: Timothy E. Dennis, Esquire

Department of Legal Affairs

The Capitol, Plaza Level 08

Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

The issue is whether Petitioner's applications for licensure should be granted or denied.

PRELIMINARY STATEMENT

On May 11, 2009, Respondent, Board of Building Code

Administrators and Inspectors, issued a Notice of Intent to Deny

Petitioner's applications for certification as a plumbing

inspector and as an electrical inspector. The reason for the

denials as stated in the Notices of Intent, is that Petitioner's

applications "[do] not demonstrate, affirmed by affidavit signed

by an architect, engineer, contractor, or building code

examiner, that you have the required experience for the

certifications sought."

Petitioner timely requested an Administrative Hearing to

contest the Notices of Intent to Deny. The case was transmitted

to the Division of Administrative Hearings on or about June 15,

2009. A Notice of Hearing was issued on June 30, 2009, setting

the hearing for September 10, 2009. Petitioner filed an

unopposed Motion for Continuance which was granted. The hearing

was rescheduled for September 29, 2009, and took place as

scheduled.

At hearing, Petitioner testified on his own behalf and

presented the testimony of Gary Hiatt and Matt Adair. A portion

of the deposition testimony of Dennis Franklin was offered and

admitted into evidence as Petitioner’s Exhibit 1. Respondent

presented the testimony of Robert McCormick. Joint Exhibits

numbered 1 through 5 were admitted into evidence.

A one-volume Transcript was filed on October 20, 2009.

The parties timely filed Proposed Recommended Orders, which

were considered in the preparation of this Recommended Order.

All references to the Florida Statutes are to 2009 unless

otherwise indicated.

FINDINGS OF FACT

1. Petitioner filed applications with the Department of

Business and Professional Regulation (DBPR) for certifications

as a plumbing inspector and electrical inspector.

2. The Board of Building Code Administrators and

Inspectors (Board), which is part of DBPR, is the state agency

charged with certification of plumbing and electrical

inspectors, pursuant to Chapter 468, Florida Statutes.

3. Petitioner previously received provisional

certification to perform plumbing and electrical inspections as

a result of the Board’s failure to take timely action on

Petitioner’s applications for provisional licenses. He is

currently employed with the City of Deland as a commercial and

residential inspector and has been employed there since

September 17, 2007.

4. Accompanying his applications was a statement of

“experience history”, provided on a Board form. The experience

history listed four places of employment covering four periods

of time: 1976 to 1986: Job Foreman for Ron Abel Contracting;

2001 to 2005: Standard Inspector for the City of Winter Springs;

2005 to 2007: Standard Inspector for GFA International; and 2007

to present: Standard Inspector for the City of Deland.

5. Accompanying his applications were three affidavits

relating to the 1976-1986 employment with Ron Abel Contracting;

two affidavits relating to his 2001-2005 employment with the

City of Winter Springs; one affidavit relating to his 2005-2007

employment with GFA International; and one affidavit regarding

Petitioner’s employment with the City of Deland from 2007 to

present.

6. The first affidavit relating to the 1976 to 1986 period

of time was from Daniel Kittinger, a licensed general

contractor, who attests that when working in his father’s

construction business, Petitioner “assisted in the home building

process, acted as foreman to oversee [sic] the subcontracting

was done in a timely manner and that specifications met code

requirements for residential buildings.”

7. The second affidavit for the 1976 to 1986 period was

from Carleen Abel, Vice President of Ronald E. Abel Contracting,

and states the following:

Mr. Jay Abel is the son of the owner and

worked as a field foreman from 1976-1986.

During his tenure with Abel Contracting, Jay

provided supervision of the field operation

on overseeing trade contractors. His

principle responsibilities included hands on

supervision of framing, electrical, plumbing

and HVAC sub-contractors for both

residential and commercial work. He

primarily was to assure that the jobs were

properly constructed, completed on time and

confirmed that the appropriate codes were

satisfied.

8. The third affidavit relating to 1976-1986 did not

include the license number of the affiant. Therefore, it was

not considered, and is not considered herein, as it does not

comply with the statutory requirement that a licensed architect,

engineer, contractor, or building code examiner affirm an

applicant’s experience by affidavit.

9. Regarding Petitioner’s employment with the City of

Winter Springs, an affidavit was submitted by a person whose

first name is David (last name begins with an “A” but is not

legible) which states that Petitioner was employed as a

residential inspector under the direction of Dennis Franklin and

under supervision of a senior inspector. This affidavit

referenced an attached affidavit of Dennis Franklin which states

as follows:

I have personal knowledge that Jay Abel

worked as a residential inspector in Winter

Springs during the time of his licensure as

per Chapter 468 F.S.

10. One affidavit was submitted relating to Petitioner’s

work experience from 2005 to 2007. The affidavit of Jeffrey D.

DeBoer states as follows:

During Jay’s tenure at CFA International he

performed inspections of 1 2 family

dwellings and was in training to perform

plan review of both mechanical, electrical

and plumbing disciplines. This training was

done under the supervision of other

certified plans examiners for each

discipline.

11. The affidavit of Joseph R. Crum was submitted

regarding Petitioner’s current employment with the City of

Deland. It states in pertinent part as follows:

Jay Abel is employed with the City of Deland

as an inspector. He is required to perform

inspections on commercial buildings and

structures for Building, Electrical,

Mechanical, Plumbing and gas installations.

He is also required to perform inspections

on Residential buildings and structures for

all of the trades including, Building,

Electrical, Mechanical, Plumbing and gas

installations.

Jay currently holds a standard one and two

family dwelling inspector license #BN4928.

He also holds provisional licenses as

follows: Building #PBI 1573, Commercial

Electrical: #PCE 651, Mechanical: #PMI 549

and Plumbing: #PPI 582. Having these

licenses means he has met the qualifications

for each and should be issued the

appropriate license as he passes the

individual exams. [1/]

12. In addition to the affidavits submitted by Petitioner,

Petitioner’s current supervisor testified at hearing.

Matthew J. Adair is the chief building official with the City

of Deland. He supervises all of the building division which

includes code enforcement and building inspections personnel.

He is familiar with the work performed by Petitioner in his

current employment with the City of Deland. At hearing, Mr.

Adair described Petitioner’s work:

Jay is our commercial and residential

inspector at this time. He does primarily

commercial work for us. . . . I’ve

personally overseen the inspections that he

conducts on a daily basis. . . [t]o include

installation of electrical and plumbing

systems in new commercial buildings, main

distribution panels, underground electric,

overhead, receptacles, feeders.

And on the plumbing side the same thing,

water, sewer lines, undergrounds, sewer

connections even back-load preventers. . . .

He’s very competent. He knows the codes,

but on top of just knowing the codes he

knows how systems are supposed to be

installed in the field.

He is a competent inspector.. . . He is one

of my most valued employees. [2/]

13. Petitioner also submitted an “Educational History”

which represents that he holds an associate of arts degree in

business. Further, the “Examination History” portion of the

form represents that he passed the Florida Principles and

Practice Examination.

14. The Board has created an application review committee

(committee), consisting of three members of the Board, to review

all applications and make a recommendation to the Board as to

whether each application should be approved or denied.

15. Dennis Franklin is a member of the Board and the

review committee. According to Mr. Franklin, the committee

reviews the applications, and makes a determination as to

whether an application should be approved or denied. The

determination is made by majority vote of the committee. The

decision of the committee is then presented to the Board which

ratifies the committee’s decision at a Board meeting. The Board

generally does not otherwise independently review the

applications, but simply ratifies the decision of the committee.

16. The committee met at some point prior to the Board’s

April 10, 2009, meeting. The committee reviewed Petitioner’s

applications and determined that his applications should be

denied.

17. The decision of the committee was ratified by the full

Board on April 10, 2009.

18. Robert McCormick is Chairman of the Board and is a

member of the committee. According to Mr. McCormick, the Board

interprets the statutory requirement of five years’ combined

experience to mean that an applicant must demonstrate an

equivalent of five years’ full-time experience. Mr. McCormick

applied what he described as a “rule-of-thumb,” in which he

divided five years into an average of full-time work hours of

2,000 work hours per year and 10,000 work hours for a five-year

period of employment.

19. Mr. McCormick determined that Petitioner’s application

did not establish that he had worked five years full-time in

either the electrical or plumbing trade and, therefore,

determined that his applications should be denied.

20. Gary Hiatt is the chief building official of Flagler

County and is responsible for the day-to-day management of

plumbing and electrical inspectors in that county. He reviewed

Petitioner’s applications and is of the opinion that Petitioner

“has demonstrated through his background in contracting and

licensure as well as his educational background to meet the

requirements to be able to sit for that examination.”

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding in accordance with Sections 120.569 and 120.57(1),

Florida Statutes. This proceeding is de novo . § 120.57(1)(k),

Fla. Stat. By its nature, a de novo proceeding is one intended

to formulate agency action, not one to review action taken

earlier or preliminarily. Beverly Enterprises-Florida, Inc. v.

Department of Health & Rehabilitative Services , 432 So. 2d 1359,

1363-64 (Fla. 1st DCA 1983).

22. In licensing cases, the burden is on the applicant to

demonstrate entitlement to the requested license by a

preponderance of the evidence. 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).

23. The Notices of Intent to Deny state as the reason for

denial that Petitioner's applications for certification "[do]

not demonstrate, affirmed by affidavit signed by an architect,

engineer, contractor, or building code administrator, that you

have the required experience for the certification[s] sought."

24. Section 468.609, Florida Statutes, reads in pertinent

part as follows:

468.609 Administration of this part;

standards for certification; additional

categories of certification.--

(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 ;

* * *

(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.

(emphasis supplied)

25. The Notices of Intent to Deny reference Florida

Administrative Code Rule 61G19-6.0035, which reads in pertinent

part as follows:

61G19-6.0035 Application for Provisional

and/or Standard Certification.

(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 . . .

(emphasis supplied)

26. Petitioner asserts that Respondent’s procedure for

reviewing all licensing/certification applications by an

application committee constitutes an unpromulgated rule citing

as authority Department of Business and Professional Regulation,

Construction Industry Licensing Board v. Harden , 10 So. 3d 647

(Fla. 1st DCA 2009).

27. Harden was an appeal of a Final Order from the

Division of Administrative Hearings finding that the committee

procedure used by the Construction Industry Licensing Board,

which appears to be identical to the procedure used by the Board

in the instant case, constituted an unpromulgated rule. Harden

v. Department of Business and Professional Regulation,

Construction Industry Licensing Board (DOAH Case. No. 06-3912RU,

Final Order, December 15, 2006). The court affirmed the Final

Order finding that the committee procedure by which licenses are

reviewed constituted an unadopted rule and was, therefore,

invalid.

28. Respondent acknowledges Harden , asserts that it has

initiated rulemaking regarding the committee procedure, and

further asserts that Harden should not apply to the instant case

because the Board acted on Petitioner’s applications just days

after the Harden opinion was issued and prior to the expiration

of the time for filing a motion for rehearing, citing as

authority Vale v. McDonough , 958 So. 2d 966 (Fla. 1st DCA 2007).

Vale is distinguishable from this case. In Vale , the court

dealt with whether to retroactively apply a finding of

invalidity of an existing rule, relied upon by the agency and

the public, concerning refunding copying costs incurred by a

prisoner. 3/ This argument is unpersuasive. In the instant case,

the Board applied a process that was never authorized by rule or

statute. The Board was well aware of the Harden opinion when

the Notices of Intent to Deny were sent to Petitioner on May 11,

2009.

29. Petitioner argues, and it is concluded, that the

Board’s “rule-of-thumb” requiring five years of full-time

experience in each of the fields in which certification is

sought, is inconsistent with Florida Administrative Code Rule

61G19-6.0035. Moreover, the language in Section

468.609(2)(c)1., Florida Statutes, is written in the

disjunctive. That is, the statute requires “five 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) The

five-year, full-time experience requirement employed by the

application committee and the Board is not in statute or rule,

and insufficient proof was presented establishing it to be a

valid basis for interpreting the express requirements in statute

or rule.

30. Regardless of any non-rule policy relied upon by the

application committee or the Board, the preponderance of the

evidence presented, viewed in its totality, established that

Petitioner has demonstrated that he has met the experience

required by Section 468.609(2)(c)1., Florida Statutes.

RECOMMENDATION

Upon consideration of the facts found and the conclusions

of law reached, it is

RECOMMENDED:

That a final order be entered granting Petitioner's

applications for standard certification as a plumbing and

electrical inspector.

DONE AND ENTERED this 3rd day of December, 2009, in

Tallahassee, Leon County, Florida.

S

___________________________________

BARBARA J. STAROS

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 3rd day of December, 2009.

ENDNOTES

1/ This final sentence is not accurate as Petitioner received

his provisional licenses by default. Notwithstanding, the

affidavit is considered in the context of his work experience.

2/ Although not considered by the Board or its application

review committee, it is appropriate to consider Mr. Adair’s

testimony regarding Petitioner’s experience in this de novo

proceeding.

3/ Vale cites Department of Business Regulation, Division of

Alcoholic Beverages & Tobacco v. Martin County Liquors, Inc. ,

574 So. 2d 170 (Fla. 1st DCA 1991), holding that, because an

application form and policy were not promulgated as rules, they

became void as of the date the court’s decision became final.

Martin County is also distinguishable from the instant case.

The agency’s form DBR 700L and Policy Section 302 in Martin

County were written agency statements not properly promulgated

as rules. In the instant case, the Board's application review

committee procedure is not in any written statute, rule, or

policy thereby affording the public no opportunity to notice, or

to rely upon, such policy.

COPIES FURNISHED :

Darren J. Elkind, Esquire

505 Deltona Boulevard, Suite 105

Deltona, Florida 32725

Timothy E. Dennis, Esquire

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Reginald Dixon, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

Robyn Barineau, Executive Director

Building Code Administrators

and Inspectors Board

Department of Business and

Professional Regulation

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 Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the final order in this case.