94-004184 Philip Suna vs. Construction Industry Licensing Board
 Status: Closed
Recommended Order on Wednesday, January 4, 1995.

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Summary: Applicant failed to present sufficient evidence to show that out of state exam was substantially equivalent to Florida's exam or that New York city was region






13Petitioner, )


16vs. ) CASE NO. 94-4184



26BOARD, )


29Respondent. )



34Upon due notice, William R. Cave, Hearing Officer, Division of

44Administrative Hearings (Division) held a formal hearing in this matter on

55September 20, 1994, in Sarasota, Florida.


62For Petitioner: Phillip Suna, Pro se

682301 Gulf of Mexico Drive

73Apartment 93-N

75Longboat Key, Florida 34228

79For Respondent: Clark R. Jennings, Esquire

85Department of Legal Affairs

89The Capitol

91Tallahassee, Florida 32399-1050


981. Does the master plumbing licensing examination administered by the New

109York City, New York (New York City), and taken by the Petitioner Phillip Suna in

1241952, fall within the category of a regional or state licensing examination as

137set forth in Section 489.115, Florida Statutes?

1442. If so, was the New York City master plumbing licensing examination

156taken by the Petitioner in 1952, substantially equivalent to the current

167plumbing contractors licensing examination administered by the Construction

175Industry Licensing Board (Board) of the State of Florida?


186By an application dated April 26, 1994, the Petitioner applied for a

198plumbing contractors license by endorsement as provided for in Section 489.115,

209Florida Statutes. By letter dated June 14, 1994, Milton Rubin, Program

220Administrator, Division of Professions, Construction Industry Licensing Board,

228advised Petitioner that at its meeting on June 9, 1994, the Board had denied his

243application for endorsement as a plumbing contractor. The basis of the denial

255was that Petitioner's master plumbers license had been issued by New York City,

268after Petitioner had passed an examination administered by New York City rather

280than having passed a national, region, state, or United States territorial

291licensing examination as required by Section 489.115(3), Florida Statutes. An

301additional basis for denial was that the New York City licensing examination was

314not substantially equivalent to the licensing examination required by Part I,

325Chapter 489, Florida Statutes.

329By letter dated June 22, 1994, the Petitioner requested a formal hearing

341pursuant to Section 120.57(1), Florida Statutes. By letter dated July 26, 1994,

353Clark Jennings, Assistant Attorney General, the Board's attorney, referred the

363matter to the Division for the appointment of Hearing Officer and the conduct of

377a hearing.

379Petitioner testified on his own behalf but presented no other witness.

390Petitioner's exhibits A, B and G were received as evidence. Petitioner's

401exhibit H, a late filed exhibit, was received as evidence. The Board presented

414the testimony of Robert Wayne Crowell. The Board's exhibit 1 was received as

427evidence. Joint Composite exhibit 1 was received as evidence.

436A transcript of this proceeding was filed with the Division on October, 6,

4491994. The parties elected not to file any proposed findings of fact and

462conclusions of law.


468Upon consideration of the evidence presented at the hearing, the following

479relevant findings of fact are made:

4851. At all times material to this proceeding, Petitioner possessed a valid

497master plumbers license issued by New York City. There was no evidence that New

511York City had ever issued Petitioner a plumbing contractors license, or that the

524master plumbers license was the same as a plumbing contractors license in New

537York City.

5392. At all times material to this proceeding, the State of New York did not

554administer a plumbing contractors licensing examination or a master plumbers

564licensing examination, having delegated this responsibility to the several

573municipalities within the State of New York, including but not limited to New

586York City. A plumbing contractors license or a master plumbers license issued

598by New York City or other cities within the State of New York are not valid in

615any jurisdiction other than the issuing jurisdiction.

6223. Petitioner has some 40 years experience in the plumbing business within

634New York City.

6374. Florida's Plumbing Contractors Examination prepared and administered by

646National Assessment Institute in accordance with Rule 61G4-16.001(13), Florida

655Administrative Code, consists of two parts: Part I, Business and Financial

666Management; and Part II, General Trade Knowledge.

6735. Part I is comprised of the following major content areas. The number

686in parentheses is the approximate percentage of the examination devoted to that

698content area.

7001. Maintaining Cash Flow (15 percent)

7062. Estimating and Bidding a Job (20 percent)

7143. Negotiation and Interpretation

718Contracts and Agreements ( 5 percent)

7244. Processing Change Orders ( 5 percent)

7315. Purchasing Control ( 5 percent)

7376. Contract Scheduling ( 5 percent)

7437. Controlling Costs of Fixed

748Assets ( 5 percent)

7528. Obtaining Insurance and

756Bonding (10 percent)

7599. Complying with Contracting

763Laws and Rules (15 percent)

76810. Personnel Management ( 5 percent)

77411. Complying with Payroll and

779Sales Tax Laws ( 5 percent)

78512. Interpretation of Financial

789Statements and Reports ( 5 percent)

7955. Under each of the major content areas are listed the tasks and the

809knowledge required to perform them. There are approximately 49 different tasks

820listed under Part I.

8246. Part II of the examination consist of three questions each of which

837tests the applicant's knowledge of design, installation, and maintenance of

847several different systems. Approximately 40 percent of the examination is

857devoted to question one and 40 percent to question two and 20 percent to

871question three. Under Part II the applicant is tested on the design,

883installation and maintenance of 27 different systems.

8907. Petitioner submitted several examinations (some were not complete) that

900he contended were master plumbers licensing examinations given by New York City

912in 1970, 1972, 1974 1976, 1982, 1983, 1985, 1987 and 1991. However, only one or

927two were marked as to the source or origin. The number of questions on the

942examinations ranged from 16 to 70 questions. The only major content area

954listed in Part I of the Florida plumbing contractors examination covered by the

967examinations submitted by the Petitioner was "Estimating and Bidding a Job".

979However, the coverage of "Estimating and Bidding a Job" in the tests submitted

992was cursory at best.

9968. The examinations submitted by the Petitioner covered Part II in

1007somewhat more detail than they did Part I. Question one of Part II was covered

1022fairly extensively whereas Question two was somewhat less extensive than

1032Question one, with Question three's coverage being only slight. The design,

1043installation and maintenance of only three out of nine systems listed in

1055Question two, and only one out of eleven systems listed in Question three were

1069covered in the examinations submitted by the Petitioner. All of the systems

1081listed in Question one were covered to some degree by the examinations submitted

1094by the Petitioner.

10979. Since the Petitioner was unable to submit a copy of the master plumbers

1111examination administered by New York City in 1952, a determination of whether

1123that particular examination is "substantially equivalent" to the Florida

1132Plumbing Contractors licensing examination currently in use cannot be made.

1142However, even assuming that the New York City examinations submitted by the

1154Petitioner were the same as the examination taken by the Petitioner in 1952, the

1168New York master plumbers licensing examination is not "substantially equivalent"

1178to the Florida Plumbing Contractors licensing examination currently in use..


119110. The Division of Administrative Hearings has jurisdiction over the

1201parties to, and the subject matter of, this proceeding pursuant to Section

1213120.57(1), Florida Statutes.

121611. The burden of proof is on the party asserting the affirmative of an

1230issue before and administrative tribunal. Florida Department of Transportation

1239v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 2d DCA 1981). To meet this burden

1254the Petitioner must establish facts upon which his allegations are based by a

1267preponderance of the evidence. The Petitioner has failed to meet his burden in

1280this regard.

128212. Pertinent to this case, Section 489.115(1) and (3)(a), Florida

1292Statutes, provides:

1294(1) No person may engage in the business

1302of contracting in this state without first

1309being certified or registered in the proper


1317* * *

1320(3) The board shall certify as qualified

1327for certification by endorsement any applicant


1334(a) Meets the requirements for certification

1340as set forth in this section; has passed a

1349national, regional, state, or United States

1355territorial licensing examination that is sub-

1361stantially equivalent to the examination required

1367by this part; and has satisfied the requirements

1375set forth in s. 489.111; or

1381(b) Holds a valid license to practice contracting

1389issued by another state or territory of the United

1398States, if the criteria for issuance of such license

1407were substantially equivalent to Florida's current

1413certification criteria.

141513. Petitioner contends that New York City, although not a state, it is a

1429region because of its size, population, complexity of the plumbing within the

1441city, the large number of public and private schools, the large number of

1454television stations, the large number of colleges and universities, the large

1465number of hospitals and the large number of prisons. On the other hand, the

1479Board contends that had the legislature intended for the Board to use a

1492contracting licensing examination administered by a city, because of its size,

1503then it would have expressly provided for that in the language of the statutes.

1517It is the Board's position that since region falls between national and state

1530that the legislature intended region to encompass an area consisting of

1541something less than national but more than one contiguous state.

155114. The interpretation of Section 489.115(3)(a), Florida Statutes, urged

1560by the Petitioner would result in the Board having to decide whether a city,

1574based on its size, etc., would be considered a region. The Petitioner's

1586interpretation would lead to an unreasonable result and that interpretation

1596should be avoided. See Department of Professional Regulation, Board of Medical

1607Examiners v Durrani, 455 So.2d 515, 518, (Fla. 1st DCA 1984).

161815. Where an agency construes a statute in its charge in a permissible

1631way, that interpretation must be sustained though another may be possible or

1643even, in view of some, preferable. State of Department of Health and

1655Rehabilitative Services v. Framat Realty, Inc., 407 So.2d 238, 241 (Fla. 1st DCA

16681981); Pan American World Airways, Inc. v. Florida Public Service Commission and

1680Florida Power and Light Co., 427 So.2d 716, 719 (Fla. 1983. The Petitioner has

1694failed to show that the Board's interpretation of the statute is clearly

1706erroneous or unauthorized. New York City is not a region for the purposes of

1720Section 489.115(3), Florida Statutes.

172416. The second condition of Section 489.115(3))a), Florida Statutes, that

1734Petitioner must meet in order to for the Board to approve his application for

1748licensure by endorsement, is to show that the New York City licensing

1760examination taken by the Petitioner is "substantially equivalent" to the Florida

1771licensing examination currently in use. The Petitioner has failed to meet this



1785Having considered the foregoing Findings of Fact and Conclusions of Law, it

1797is recommended that the Construction Industry Licensing Board enter a Final

1808Order denying the Respondent's application for certification as a plumbing

1818contractor by endorsement.

1821RECOMMENDED this 4th day January, 1995, in Tallahassee, Florida



1834Hearing Officer

1836Division of Administrative Hearings

1840The DeSoto Building

18431230 Apalachee Parkway

1846Tallahassee, Florida 32399-1550

1849(904) 488-9675

1851Filed with the Clerk of the

1857Division of Administrative Hearings

18614th day of January, 1995.


1873The parties did not file any proposed findings of fact and conclusions of



1889Phillip Suna, Pro se

18932301 Gulf of Mexico Drive

1898Apt. 93-N

1900Longboat Key, Florida 34228

1904Clark Jennings, Esquire

1907Department of Legal Affairs

1911The Capitol

1913Tallahassee, Florida 32399-1050

1916Jack McRay

1918Acting General Counsel

1921Departmemt of Business and

1925Professional Regulation

1927Northwood Centre

19291940 North Monroe Street

1933Tallahassee, Florida 32399-0792

1936Richard Hickok, Executive Director

1940Construction Industry Licensing Board

19447960 Arlington Expressway, Ste. 300

1949Jacksonville, Florida 32211-7467


1958All parties have the right to submit written exceptions to this Recommended

1970Order. All agencies allow each party at least 10 days in which to submit

1984written exceptions. Some agencies allow a larger period within which to submit

1996written exceptions. You should contact the agency that will issue the Final

2008Order in this case concerning agency rules on the deadline for filing exceptions

2021to this Recommended Order. Any exceptions to this Recommended Order should be

2033filed with the agency that will issue the Final Order in this case.

Select the PDF icon to view the document.
Date: 03/16/1995
Proceedings: Final Order filed.
Date: 03/07/1995
Proceedings: Agency Final Order
Date: 03/07/1995
Proceedings: Recommended Order
Date: 01/04/1995
Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held 9-20-94.
Date: 10/06/1994
Proceedings: Transcript/Hearing filed.
Date: 09/28/1994
Proceedings: Petitioner`s Supplemental Exhibit filed.
Date: 09/20/1994
Proceedings: CASE STATUS: Hearing Held.
Date: 08/16/1994
Proceedings: Notice of Hearing sent out. (hearing set for 9/20/94; at 1:00pm; in Sarasota)
Date: 08/15/1994
Proceedings: Ltr. to SLS from Philip Suna re: Reply to Initial Order filed.
Date: 08/05/1994
Proceedings: Initial Order issued.
Date: 07/27/1994
Proceedings: Agency referral letter; Request for Administrative Hearing, letter form; Agency Denial Letter; Supportive Documents filed.

Case Information

Date Filed:
Date Assignment:
Last Docket Entry:
Sarasota, Florida

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Related Florida Statute(s) (3):

Related Florida Rule(s) (1):