95-005207 Eusebio Verrier vs. Construction Industry Licensing Board Status: Closed Recommended Order on Thursday, April 4, 1996.

Summary: Fee established by agency for examination not authorized by statute.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EUSEBIO VERRIER, )

)

Petitioner, )

)

vs. ) CASE No. 95-5207

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

CONSTRUCTION INDUSTRY LICENSING )

BOARD, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly

designated Hearing Officer, William J. Kendrick, held a formal hearing in the

above-styled case on January 24, 1996, by video teleconference.

APPEARANCES

For Petitioner: Eusebio Verrier, pro se

14629 Southwest 104th Street

Miami, Florida 33186

For Department William M. Woodyard

of Business Assistant General Counsel

and Department of Business and

Professional Professional Regulation

Regulation: 1940 North Monroe Street

Tallahassee, Florida 32399-0750

For Construction Stuart F. Wilson-Patton

Industry Assistant Attorney General

Licensing Board: Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

At issue in this proceeding is whether petitioner's application to sit for

the traditional thatched structure certification examination should be approved.

PRELIMINARY STATEMENT

On or about July 18, 1995, petitioner, Eusebio Verrier, filed an

application with the Department of Business and Professional Regulation,

Construction Industry Licensing Board (hereinafter referred to collectively as

the Agency) for authorization to sit for the traditional thatched structure

certification examination, and paid therewith the sum of $350.00 as an initial

application and examination fee. Subsequently, by letter of July 26, 1995, the

Agency proposed to reject petitioner's application based on his failure to

tender a total application and examination fee of $3,142.00 the Agency had

established for the examination.

Following the Agency's letter of rejection, there ensued an exchange of

correspondence between petitioner and the Agency, wherein the Agency sought to

explain how, based on administrative costs in administering the examination and

the developmental costs of the examination, the fee had been derived, and

petitioner, who objected to the administrative and developmental costs as not

being reasonable, as well as the imposition of developmental costs as being

improper.

Ultimately, by letter of September 25, 1995, the Agency advised the

petitioner that it had denied his application for failure to remit the balance

of the examination fee, and advised petitioner of his right to a hearing

pursuant to Section 120.57, Florida Statutes, if he chose to challenge the

decision. Petitioner timely requested such a hearing, and on October 25, 1995,

the Agency forwarded the matter to the Division of Administrative Hearings for

the assignment of a Hearing Officer to conduct the formal hearing petitioner had

requested. 1/

At hearing, petitioner testified on his own behalf, and petitioner's

exhibits 1A, 1B, 1E - 1I, 1K - 1P, and 1-R were received into evidence. 2/ The

Construction Industry Licensing Board called the petitioner and David Paulson as

witnesses, and its exhibits 1 - 13 were received into evidence. The Department

of Business and Professional Regulation called Stuart F. Wilson-Patton as a

witness, but offered no further exhibits.

The transcript of hearing was filed February 13, 1996, and the parties were

accorded, at their request, thirty days from that date to file their proposed

recommended orders. Consequently, the parties waived the requirement that a

recommended order be rendered within thirty days of the date the transcript is

filed. Rule 60Q-2.031, Florida Administrative Code. The parties proposed

findings of fact, contained within their proposed recommended orders, are

addressed in the appendix to this recommended order.

FINDINGS OF FACT

The Construction Industry Licensing Board and the

examination at issue.

1. Pursuant to Section 489.107(1), Florida Statutes, there was "created

within the [Department of Business and Professional Regulation] the Construction

Industry Licensing Board" (Board) to carry out the provisions of Part I, Chapter

489, Florida Statutes, related to the regulation of the construction industry

including, pertinent to this case, the certification of contractors.

2. In addition to certain mandatory statewide construction contracting

licensure requirements, the Board is authorized, pursuant to Section 489.113(6),

to designate those types of specialty contractors which may be certified under

Part I, Chapter 489, Florida Statutes. That subsection provides:

The board shall, by rule, designate those

types of specialty contractors which may be

certified under this part. The limit of the

scope of work and responsibility of a speciality

contractor shall be established by the board by

rule. However, a certified specialty contractor

category established by board rule exists as a

voluntary statewide licensing category and does

not create a mandatory licensing requirement.

Any mandatory statewide construction contracting

licensure requirement may only be established

through specific statutory provision. 3/

3. Pursuant to subsection 489.113(6), the Board has adopted Rule 61G4-

15.025, Florida Administrative Code, providing for the certification of

traditional thatched structure contractors. Among the requirements for

certification, is the successful construction of a traditional thatched hut.

The completed structure is evaluated on three general areas with relative

weights as follows:

1. Foundation (25 [percent])

2. Structure (50 [percent])

3. Thatching (25 [percent])

4. While the rule requires the successful construction of a traditional

thatched structure and prescribes the relative grading criteria, it is silent as

to the location and manner in which the examination will be conducted.

Regarding such matters, the proof demonstrated that the Agency conducts the

evaluation at any site selected by the candidate within the State of Florida,

requires that the candidate provide the materials to construct the structure,

and requires that the candidate provide blueprint specifications to the Agency

before construction. As for the actual practical examination itself, while one

might expect, by definition, an actual observation of the construction as it

proceeds through its various stages, it is more in the nature of an evaluation

and is conducted as follows:

Once the thatched hut is completed, then we

send three evaluators plus a psychometrician

to evaluate the foundation[,] structure and

the thatching of the structure. Once the

evaluation is completed, then the scores given

by the three examiners are graded back at the

Department of Business and Professional

Regulation Office. [Transcript, page 89.]

The Department of Business and Professional Regulation

and its relationship to the Board's certification process

5. Any person who desires to be certified by the Board is required to file

an application with the Department of Business and Professional Regulation

(Department) to take the certification examination. Sections 455.213(1) and

489.111(1), Florida Statutes.

6. The "preparation and administration" of the examination is the

responsibility of the Department's Division of Technology, Licensure, and

Testing. Section 455.217(1), Florida Statutes.

7. Following certification by the Board that the applicant has met the

applicable requirements imposed by law or rule, the Department issues the

appropriate license. Section 455.213(2), Florida Statutes.

The application at issue

8. On or about July 18, 1995, petitioner, Eusebio Verrier, filed an

application with the Agency for authorization to sit for the traditional

thatched structure certification examination.

9. The application was a printed form, which carried the following legend:

APPLICATION FOR TRADITIONAL THATCHED STRUCTURE

CERTIFICATION EXAMINATION

FEE $3,142.00

THE ABOVE FEE(S) ARE NON-TRANSFERRABLE AND NON-

REFUNDABLE[.] MAKE MONEY ORDER, CASHIER'S CHECK

OR PERSONAL CHECK PAYABLE TO: DEPARTMENT OF

BUSINESS [AND] PROFESSIONAL REGULATION

10. Petitioner, questioning the amount of the fee, made a number of phone

calls to the Agency without satisfactory explanation. Finally, still

questioning the reasonableness and propriety of the fee, petitioner, following a

conversation with the Board's counsel, tendered the sum of $350.00 with his

application, pending resolution of the examination fee issue.

11. By letter of July 26, 1995, the Agency advised petitioner that his

application had been rejected because:

REASON(S) FOR REJECTION:

The required fee for the Traditional Thatched

Structure Certification Examination is $3,142.00.

Submit an additional $2,792.00 in order to process

your application.

12. Petitioner continued to protest the reasonableness and propriety of

the fee and at his request was accorded the opportunity to address the

Examination Committee on September 14, 1995. The Examination Committee resolved

not to alter the examination fee and, by letter of September 25, 1995,

petitioner was advised by the Agency that it had denied his application "due to

[his] failure to respond to requests for appropriate fees required to approve

you to sit for the examination." This challenge to the Agency's action duly

followed.

The reasonableness and propriety of the

examination fee sought by the Agency

13. The Board's authority to establish fees is founded on Section

489.109(1), Florida Statutes, which provides as follows:

(1) The board, by rule, shall establish

reasonable fees to be paid for applications,

examination, certification and renewal,

registration and renewal, and recordmaking and

recordkeeping. The fees shall be established

as follows:

(a) With respect to an applicant for a

certificate, the initial application and

examination fee may not exceed $350, and

the initial certification fee and the renewal

fee may not exceed $200. [However, any

applicant who seeks certification under

this part by taking a practical examination

must pay as an examination fee the actual

cost incurred by the department in conducting

the examination]. [Emphasis added.]

14. By Rule 61G4-12.009, Florida Administrative Code, the Board has

established the following application and examination fees:

61G4-12.009 Fees. The following fees are

prescribed by the Board:

(1) Application for Certification by

Examination; Refund.

(a) The application and examination fee for

the certification examination shall be three

hundred and fifty dollars ($350) and shall be

nonrefundable.

(b) An applicant shall be entitled to volun-

tarily withdraw from the examination and receive

a refund of his examination fee if he submits a

timely written request to the Board office. For

purposes of this rule, a written request shall

be deemed to be timely if received in the Board

office prior to the date funds have been expended

to print examination materials.

(c) The fee for the practical examination for

certification as a Pollutant Storage System

Specialty Contractor shall be seven hundred fifty

dollars ($750) 4/

Notably, the Board has not established, by rule, the fee for the practical

examination for traditional thatched structure certification; rather, the Board

relies on policy to substantiate and impose the $3,142.00 application and

examination fee it requires.

15. The basis or justification for the $3,142.00 application and

examination fee is set forth in the Agency's letter of September 12, 1995, to

petitioner, as follows:

In your letter of August 2, 1995 to Ms. Edgar

you questioned the examination fee of $3,142.

In an effort to alleviate your concerns I am

describing below the elements of cost which

required our attention in arriving at the cost

per-candidate for this particular practical

examination. Four hundred and twenty five

(425) psychometric hours were expended by the

Bureau of Testing in researching and developing

the performance tasks and grading criteria for

this discipline. At the time these efforts were

put forward by Bureau staff, our hourly rate was

$23.54. (The hourly rate is now $25.) When the

425 hours are multiplied by $23.54 we arrive at

a sub-total of $10,004.50. We projected that we

could possibly have a total of five candidates

taking this examination in a one year period;

therefore, we divided the $10,004.50 by five

candidates and arrived at a sub-total cost per

candidate of $2,001. The administration cost

per candidate is established at $972 per candidate.

The amount is broken down as follows:

Examiners' salary and travel $ 250

Staff's travel: meals/per diem $ 92

lodging (2 days) 250

air fare 285

ground travel 95

722

$ 972

Plus: Psychometric hours - per

candidate 2,001

Plus: Application Fee 169

Total Cost Per Candidate $3,142

[Petitioner's exhibit 1P]

Notably, the administrative costs ($972.00) as discussed more fully infra, are

not actual costs, but are based on an estimate derived before administration of

the first such examination.

16. The foregoing costs, upon which the fee is based, are delineated by

the Agency as the cost of administration of the exam ($972.00), the prorated

cost of exam development ($2,001.00), and an application fee ($169.00). 5/

[Petitioner's exhibits 1M and 1P, Board exhibits 2 - 5, and Board recommended

order, findings of fact, at paragraph 16.]

17. The administrative cost of $972.00 is admittedly an estimate and not

an actual cost figure. 6/ Indeed, as conceded by the Agency and demonstrated

by the proof, actual administration costs depend upon the time required to

administer the particular practical examination, 7/ the examination site

selected by the candidate, the travel costs for a psychometrician from

Tallahassee to attend the examination, and the travel and salary cost for three

consultants/examiners to attend the examination. [Board's proposed recommended

order, page 13, paragraph 28.] Moreover, again as conceded by the Agency, even

were an actual cost derived for one examination, it would not necessarily be

representative of actual cost for a future examination because of the foregoing

variables, as well as subsequent fluctuations in the cost of airfare, meals or

per diem, hotel bills and rental car charges. [Board's proposed recommended

order, page 13, paragraph 28.]

18. Notwithstanding the foregoing, the Agency rigidly defends its

adherence to a charge of $972.00 as the administrative cost for all practical

examinations. The premise for that decision is apparently as follows:

[Due to the variables inherent in calculating

actual cost] it is not possible for the Bureau

[of Testing] to calculate an exact figure for

the cost of administering the exam in advance.

Based upon the information the Bureau has, it

has calculated the estimated cost of adminis-

tering the exam to be $972.00. Since the

Department is required to collect the examination

fee in advance, this is the most reasonable manner

in which the Department can calculate the estimated

examination administration costs. . . . [Board's

proposed recommended order, page 13, paragraph 28.]

19. The justification of the Agency for the fixed $972.00 fee is flawed

and unpersuasive. First, the $972.00 estimate derived by the Bureau is not the

"estimated cost of administering the exam," as suggested by the Agency, but is

simply an estimate for conducting the first practical examination. The costs

for the first practical examination were peculiar to it, and were not shown to

bear any reasonable relationship to administration of the examination in

general. More fundamentally, the fee to be paid by each applicant is limited to

"the actual cost incurred by the department in conducting the examination,"

which the fixed fee of $972.00 is not. Section 489.109(1)(a), Florida Statutes.

Finally, while it may not be possible for the Agency to calculate the actual

cost of administering the examination before an application is filed, that is

more a product of how the Agency has elected to site and administer the

examination than it is a mathematical impossibility. More importantly, it is

possible, as was done with the first examination, to calculate a proximate

application specific cost, after the site of the examination has been selected

and the time to administer the exam has been derived, assuming the Agency must

collect the fee in advance, with subsequent adjustment for actual cost incurred.

8/ It is not, however, reasonable, as the Agency proposes, to charge each

candidate the same fee, which bears no reasonable relationship to "the actual

cost incurred by the department in conducting the examination" for that

candidate.

20. Turning now to the cost of examination development, it is accepted,

based on the proof, that the total examination development cost of $10,004.50

was reasonable. What is at issue is the reasonableness of the Agency's decision

to allocate those costs over 5 candidates, as opposed to some other number, and,

more fundamentally, the reasonableness of the Agency's assessment of any

developmental costs against the candidates.

21. First, with regard to the Agency's decision to allocate the

developmental costs between 5 candidates it must be concluded that the competent

proof fails to demonstrate that such choice was reasonable. In this regard, it

is noted that the decision to allocate the cost between 5 candidates was

apparently made by Milt Rubin of the Board's office and Mary Alice Palmer of the

Bureau of Testing; however, neither of these people testified at hearing and the

basis for the derivation of their choice was not explained. What was offered

was a memorandum from Mary Alice Palmer to Milt Rubin, dated March 7, 1994, that

provided:

Milt, this will confirm our telephone conversation

last week concerning the appropriate fee to be

charged to our first Thatched Structure candidate,

Mr. Val Deer. The following is the agreement you

and I reached, as I remember it. If you see a

problem, please call me:

The Bureau of Testing has expended 425 hours in

developing the Thatched Structure Examination.

The Bureau's hourly rate is $17.02, plus $6.52 per

hour for overhead (rent, equipment, etc.) for a

total of $23.54. Therefore, 425 hours x $23.54 =

$10,004.50. We agreed we should have [at least]

four more candidates in need of this examination

sometime in the future. Therefore, if we divide

$10,004.50 by 5 candidates Mr. Deer's fee will be

$2,001, PLUS the Bureau's actual cost for adminis-

tering the examination which amounts to $972.

Activities covered in the $972 include examiners

fees, examiners travel, Bureau staff travel and

other miscellaneous charges associated with the

administration of the examination. Added to this

$2,973 is the Board's application fee of $354,

LESS $185 (paid to the testing service for all

other candidates) for a grand total of $3,142.

. . . [Board exhibit 3.] [Emphasis added.]

David Paulson of the Bureau of Testing, who did testify at hearing, had no

actual knowledge as to how the number five was derived but, based on discussions

with others, learned that Mr. Rubin thought "there would be at least three, but

. . . [Ms. Palmer] made that adjustment to five assuming that we would have at

least five candidates in the near future." [Transcript, page 90.] Such

observation is obviously not competent proof, and given the voluntary nature of

the examination, there being no other rational explanation of record, it is most

likely that the estimate of five was at best a guess, since "at the time the

estimate was arrived, [the Agency] had no indication or other aspects with

regard to the projected candidate population." [Transcript, page 92.] There

being no competent proof to demonstrate the manner in which the number five was

derived, utilization of that figure has not been shown to be a reasonable basis

on which to allocate development costs among candidates. 9/

22. Finally, addressing the question of the propriety of assessing any

exam development costs against the candidates, it is first observed that the

Agency asserts that:

Both the [Department] and the [Board] interpret

Section 489.109(1)(a), F.S., to require them to

pass along the cost of exam development to candi-

dates who take the certification specialty examin-

ation for traditional thatched structure contractor.

These state agencies take the position that the cost

of examination development is inherent in the cost

of conducting the exam, because the exam cannot be

conducted until it is developed. (T. 16, 156).

[Board proposed recommended order, page 7,

paragraph 10.]

23. Whether section 489.109(1)(a) requires interpretation and, if so,

whether the Agency's interpretation is reasonable is addressed in the

conclusions of law which follow; however, it is worthy of note at this point to

acknowledge Dr. Paulson's testimony that "the way we compute the per-candidate

cost for this examination is similar to the way we compute the per-candidate

cost in providing an examination in a foreign language." [Transcript, page

111.] Notably, those costs are allocated pursuant to Section 455.217(5),

Florida Statutes, which provides:

(5) Each board, or the department when there

is no board, may provide licensure examinations

in an applicant's native language. Applicants

for examination or reexamination pursuant to

this subsection shall bear the full cost for

the department's development, preparation,

administration, grading, and evaluation of any

examination in a language other than English.

Clearly, subsection 455.217(5) specifically authorizes a charge for development

costs, whereas subsection 489.109(1)(a), upon which the charges in this case are

based, does not.

CONCLUSIONS OF LAW

24. The Division of Administrative Hearings has jurisdiction over the

parties to, and the subject matter of, these proceedings. Sections 120.57(1)

and 120.60(1), Florida Statutes.

25. Here, petitioner is seeking approval of his application to take the

traditional thatched structure certification examination. As the applicant,

petitioner "carries the 'ultimate burden of persuasion' of entitlement."

Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778, 787

(Fla. 1st DCA 1981). Petitioner need address, however, only those entitlement

issues raised in the Agency's notice of proposed denial. See, Section

120.60(2), Florida Statutes, ("Each agency, upon . . . denying a license, shall

state with particularity the grounds or basis for the . . . denial of the

license. . . ."), and c.f., Woodholly Associates v. Department of Natural

Resources, 451 So.2d 1002 (Fla. 1st DCA 1984).

26. The only entitlement issue raised by the Agency's notice of proposed

denial was petitioner's "failure to respond to requests for appropriate fees

required to approve you to sit for the examination." [Board exhibit 13.]

Consequently, at issue is whether the application and examination fee

established by the Agency, without benefit of rulemaking, is "appropriate" as

the Agency suggests or, stated differently, whether the fees are reasonable and

their imposition is proper.

27. Pertinent to the resolution of the issues raised in this case are the

provisions of Section 489.109(1), Florida Statutes, which create and

circumscribe the Agency's authority to establish fees for applications and

examinations. That section provides:

489.109 Fees.--

(1) The board, by rule, shall establish

reasonable fees to be paid for applications,

examination, certification and renewal,

registration and renewal, and recordmaking

and recordkeeping. The fees shall be estab-

lished as follows:

(a) With respect to an applicant for a

certificate, the initial application and

examination fee may not exceed $350, and the

initial certification fee and the renewal fee

may not exceed $200. However, [any applicant

who seeks certification under this part by

taking a practical examination must pay as an

examination fee the actual cost incurred by

the department in conducting the examination].

[Emphasis added.]

28. As a touchstone for the Agency's authority to assess, as part of the

examination fee, the Department's cost of exam development, the Board and

Department contend that they:

. . . interpret Section 489.109(1)(a), F.S.,

to require them to pass along the cost of

development to candidates who take the certi-

fication specialty examination for traditional

thatched structure contractor. These state

agencies take the position that the cost of

examination development is inherent in the

cost of conducting the exam, because the exam

cannot be conducted until it is developed.

[Board proposed recommended order, page 7,

paragraph 10]

29. At first blush, the position of the Agency has a certain appeal;

however, upon reflection, its perspective is misplaced and its rational unsound.

The question is not whether the Agency can conduct an examination without the

possession or development of the exam, but what activities the legislature

authorized the Agency to tax as fees. Here, in clear language, the Legislature

has limited or circumscribed those costs to "the actual costs incurred by the

department in conducting the examination," and not other costs, such as exam

development.

30. Generally, an administrative construction of a statute by an agency

responsible for its administration is entitled to great deference and should not

be overturned unless clearly erroneous. Department of Environmental Regulation

v. Goldring, 477 So.2d 532 (Fla. 1985), All Seasons Resorts, Inc. v. Division of

Land Sales, Condominiums and Mobile Homes, 455 So.2d 544 (Fla. 1st DCA 1984),

and Sans Souci v. Division of Land Sales and Condominiums, 421 So.2d 623 (Fla.

1st DCA 1982). Moreover, the Agency's interpretation does not have to be the

only one or the most desirable one; it is enough if it is permissible. Florida

Power Corp. v. Department of Environmental Regulation, 431 So.2d 684 (Fla. 1st

DCA 1983). However, where the legislative intent as evidenced by a statute is

clear and unambiguous, interpretation is unnecessary, and the forum need only

give effect to the plain meaning of its terms. Van Pelt v. Hilliard, 75 Fla.

792, 78 So. 693 (1918).

31. The fundamental rules governing construction applicable to the instant

case were aptly set forth in Florida State Racing Commission v. McLaughlin, 102

So.2d 574, 575 (Fla. 1958), as follows:

It is elementary that the function of the Court

is to ascertain and give effect to the legislative

intent in enacting a statute.

In applying this principle certain rules have

been adopted to guide the process of judicial

thinking. The first of these is that the Legis-

lature is conclusively presumed to have a working

knowledge of the English language and when a

statute has been drafted in such a manner as to

clearly convey a specific meaning the only proper

function of the Court is to effectuate this

legislative intent.

* * *

When construing a particular part of a statute

it is only when the language being construed in

and of itself is of doubtful meaning or doubt as

to its meaning is engendered by apparent incon-

sistency with other parts of the same or closely

related statute that any matter extrinsic the

statute may be considered by the Court in arriving

at the meaning of the language employed by the

Legislature.

Accord, State v. State Racing Commission, 112 So.2d 825 (Fla. 1959); and Van

Pelt v. Hillard, 75 Fla. 792, 78 So. 693 (Fla. 1918). To the same effect were

the observations of the court in Newberger v. State, 641 So.2d 419, 420 (Fla. 2d

DCA 1994), as follows:

The rules of statutory construction require

that courts give statutory language its plain

and ordinary meaning, unless the words are

defined in the statute. Southeastern Fisheries

Association, Inc. v. Department of Natural

Resources, 453 So.2d 1351 (Fla. 1984). If

necessary, the plain, ordinary meaning of a

word can be found by looking in a dictionary.

Gardner v. Johnson, 451 So.2d 477 (Fla. 1984).

32. Here, the Legislature has directed that an applicant, such as

petitioner, who seeks certification by taking a practical examination, must pay

as an examination fee "the actual cost incurred by the department in conducting

the examination." The words chosen by the Legislature are not archaic or

obscure, but have a common meaning.

33. The American Heritage Dictionary of the English Language, New College

Edition, describes the meaning of "conduct" and "conducting" as follows: "[t]o

direct the course of; manage; control;" and as, "directing or controlling;

management; administration." Such terms are, pertinent to this case, all

synonymous with administration of the examination.

34. Clearly, the unambiguous language chosen by the Legislature limits the

examination fee that may be charged an applicant to the actual costs of

administering (conducting) the examination and excludes, by the words chosen,

any charge for examination development. That the two activities are clearly

distinquishable is apparent from the common meaning of the words chosen, as well

as the Agency's own accounting, which clearly separates the costs of

administration and development. Were there still any doubt as to the

Legislature's intent or its understanding of the words it chose, one need only

turn to a closely related statute, Section 455.217(5), Florida Statutes, where

the Legislature again clearly articulated its intent and an appreciation of the

dichotomy in definition between administration and development of examinations,

as follows:

(5) Each board, or the department when

there is no board, may provide licensure

examinations in an applicant's native language.

Applicants for examination or reexamination

pursuant to this subsection shall bear the full

cost for the department's development, prepara-

tion, administration, grading, and evaluation

of any examination in a language other than English.

35. Finally, the Legislature has directed, by the language chosen, that

the examination fee be limited to the "actual" cost incurred by the department

in conducting the examination. Again, the word chosen by the Legislature has a

common meaning.

36. The American Heritage Dictionary of the English Language, New College

Edition, describes the meaning of "actual" as "real; factual." It further

describes "real" as "[b]eing or occurring in fact or actuality; having

verifiable existence," and lists as synonymous "real, actual, true, authentic,

concrete, existent, genuine, tangible, veritable."

37. Again the Legislature has chosen an unambiguous word, and has limited

the fee that may be charged to the department's "actual" cost. The

administrative cost sought to be charged petitioner is not and does not purport

to be an actual cost to conduct his examination, but is an estimate of the cost

to conduct an unrelated examination. Such cost is, therefore, improper.

38. It cannot be seriously debated that the application and examination

fee established by the Agency for traditional thatched structure certification

is, by definition, a rule. Section 120.52(16), Florida Statutes. The Agency

has, however, chosen not to adopt the fee through the formal rulemaking process.

Consequently, the fee is viewed as a defacto rule or incipient policy. Phillips

v. Department of Corrections, 472 So.2d 1307 (Fla. 1st DCA 1985).

39. Where, as here, the Agency has chosen not to codify its policy through

the formal rulemaking process, its policy choice is not accorded a presumption

of correctness and it must not only explicate, support and defend its incipient

non-rule policy "with competent, substantial evidence on the record," it "must

expose and elucidate its reasons for its discretionary action." St. Francis

Hospital, Inc. v. Department of Health and Rehabilitative Services, 553 So.2d

1351, 1354 (Fla. 1st DCA 1989); see also, Section 120.57(1)(b)15, Florida

Statutes, Health Care and Retirement Corp. v. Department of Health and

Rehabilitative Services, 559 So.2d 665 (Fla. 1st DCA 1990); and McDonald v.

Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977).

40. Here, the Agency has failed to demonstrate that the application and

examination fee of $3,142.00 it demanded of petitioner to take the traditional

thatched structure certification examination was founded on logic and reason.

To the contrary, the proof demonstrates that the administration charge the

Agency sought to impose was not the "actual cost" for the administration of

petitioner's examination and that the prorata cost for examination development

it also sought to charge was illusory, and not based on reason or logic. More

fundamentally, the cost of examination development was not a charge authorized

by the Board's enabling legislation. Consequently, as contended by petitioner,

the fee the Agency sought to impress upon him lacked any rational basis in fact

and law.

41. When, as here, a Hearing Officer has conducted a hearing pursuant to

the provisions of Chapter 120 with respect to the issuance of a license by the

Department, he is required to "submit his recommended order to the appropriate

board, which shall thereupon issue a final order." Section 455.213(4), Florida

Statutes. "The applicant for [the] license may appeal the final order of the

board in accordance with the provisions of Chapter 120." Section 455.213(4),

Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Board enter a final order sustaining petitioner's

objection to the fee, and granting petitioner's application to take the

traditional thatched structure certification examination contingent upon payment

of the application fee of $169.00 and the "actual cost" incurred by the

Department in conducting the examination at a site selected by petitioner, which

cost shall not include the cost of examination development. The Department's

"actual cost" should be reasonable, and petitioner should be accorded credit for

any monies heretofore paid in connection with his application.

DONE AND ENTERED this 4th day of April 1996 in Tallahassee, Leon County,

Florida.

____________________________________

WILLIAM J. KENDRICK, Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of April 1996.

ENDNOTES

1/ At hearing, the Board, through counsel, sought, during the course of opening

statements, to limit the proceedings as follows:

Both the Construction Board and the Department agree that section

489.109(1)(a) of the Florida Statutes, the statute that sets the examination fee

for practical exams, requires Mr. Verrier to pay the quote, actual cost,

incurred by the Department in conducting the examination, period.

Both the respondents agree that the statute requires that the Department

pass along to Mr. Verrier and other candidates the cost of examination

development. Mr. Verrier disputes the actual cost of the exam development, and

he disagrees with the respondents' interpretation of the statute.

In our view, Mr. Verrier has never contested or disputed the cost of the

examination administration, and that is not at issue today, nor is the proper

interpretation of the statute at issue. The Construction Board has sufficient

statutory authority to interpret Chapter 489, and the meaning of the statute is

not [a] factual issue. Rather, that is purely a legal issue.

The Agency's jurisdiction--that is, this Agency's jurisdiction--has been

invoked for the limited purpose of deciding the narrow factual issue about which

there is a dispute of material fact. That is, what are the actual costs of the

examination development of the Traditional Thatched Structure Exam.

[Transcript, pages 16 and 17.]

A review of the documents forwarded to the Division of Administrative

Hearings [Petitioner's Exhibit 1A - 1R], with the Agency's referral for hearing,

reflected that petitioner had, indeed, disputed the reasonableness of

administrative and developmental costs, as well as the propriety of assessing

the costs of development of the examination. Consequently, the Department's

effort to restrict the scope of inquiry was rejected.

In the Board's proposed recommended order, at page 2, it again asserts:

. . . There is no dispute as to any material fact about, nor was this

case transferred to the Division to decide, whether the cost of exam development

is properly included in the cost of conducting the practical exam in question

pursuant to Section 489.109(1)(a), F.S. Both the CILB and DBPR are agreed that

the statute requires the inclusion of exam development costs in the calculation

of the exam application fees for the practical exam for certified traditional

thatched structure contractor's licensure.

Again, the Agency's effort to restrict the scope of review is rejected.

Notably, the Agency's referral letter contains no such restriction, and it

would be improper for the Agency to act other than as a party at this stage of

the proceeding. Section 120.57(1)(b)3, Florida Statutes. Moreover, as

discussed in the conclusions of law that follow, the Department's and Board's

agreement on the interpretation of the statute does not remove from

consideration the threshold issue of whether interpretation is necessary and, if

necessary, whether the Agency's interpretation is permissible. Finally, the

Agency's failure to adopt the fees as a rule requires that it defend its

decision by competent substantial evidence. Consequently, the reasonableness of

the administrative and developmental costs, as well as the propriety of

assessing any developmental costs is appropriately before the Hearing Officer.

2/ Respondent's objections to petitioner's exhibits 1C, 1D, 1J, 1Q, 2, 3, and

4, were sustained, and they were not received into evidence.

3/ While the traditional thatched structure license is voluntary, petitioner,

who has been building such structures in Dade, Broward and Monroe Counties for a

number of years without the need for licensure, has recently experienced

problems in Dade and Monroe Counties. Those counties, absent a contractor's

license, are now requiring either a roofing license or a traditional thatched

structure license to re-thatch chikkee huts. Consequently, while licensure may

be considered voluntary by the State, the existence of such specialty licensure

has assumed a different dimension on a local government level.

4/ Rule 61G4-15.016, Florida Administrative Code, relating to Pollutant Storage

System Specialty Contractors was repealed July 18, 1994.

5/ Board rule 61G4-12.009(1)(a), supra, establishes an application and

examination fee of $350.00, but does not designate what portion of the fee is

allocated to an application fee and what part to an examination fee.

Apparently, the Board considers the fee of $350.00 to consist of a $169.00

application fee and a $181.00 examination fee.

6/ The administrative cost of $972.00 was an estimate derived in anticipation

of the first practical examination, which was given in Monroe County. The

actual cost of that examination was $909.98; however, as noted by the Agency,

two consultants did not submit bills for their time. Had they charged for their

time, the cost would have been approximately $1,110.00. Notwithstanding, the

variable cost of the first examination underscores the fact that $972.00 is not

an actual cost and the first applicant was not charged actual cost.

Nevertheless, the Agency has adhered to the fixed figures it initially

developed.

Petitioner also challenged the reasonableness of the $972.00 figure for

administration, contending those costs may be inflated. In this regard, the

first examination, upon which the estimate was based, was conducted in Monroe

County. Notwithstanding, the psychometrician flew from Tallahassee to Fort

Lauderdale, and then apparently drove to Monroe County where she spent three

days at the site for the exam and returned to Fort Lauderdale. The consultant

examiner dedicated only eight hours, including travel time, on one day for the

examination. Considering the discrepancy in time between the psychometrician

and the consultant, and the psychometrician's selection of itinerary, a

suspicion does exist as to the reasonableness of the $972.00 figure itself.

However, suspicion is not fact and it cannot be concluded, based on the proof in

this case, that the costs of administering the first exam were not reasonable.

Such conclusion does not, however, detract from the finding that such costs are

not reasonably related to the costs for other examinations, depending on the

site of the exam and the time necessary to conduct it.

7/ As for the time necessary to conduct the examination/ evaluation of the

structure, the proof is far from compelling. As with the agency employees who

resolved to apportion the cost of development among five candidates, the

psychometrician who actually administered the first examination also did not

testify at hearing. The only witness to testify was Dr. Paulson, who had no

actual knowledge in this regard. He first observed that one day would be

required for the exam, but on review of the psychometrician's travel voucher

observed that two days was appropriate. Given the paucity of proof, as well as

the manner in which the examination (evaluation) is conducted, it is not

possible to comfortably resolve the time actually needed for evaluation of the

first examination; however, in view of the conclusion that the estimate for the

first examination is not a reasonable guide to the cost of administration of

other examinations it is not necessary to resolve that question.

8/ At hearing the Board offered proof, through the testimony of David Paulson,

that the Department must collect the examination fee in advance [Transcript, at

page 101]. While, no authority was advanced for his conclusion, it would

certainly appear fiscally sound to collect the examination fee before the exam

is administered. That does not, however, require that the fee be paid with the

application, as opposed to a later date when the site of the exam is known, the

time necessary to conduct the exam can be calculated, and the other variables

are known.

9/ In testifying in support of the five candidate figure, Dr. Paulson opined

that in retrospect the five number was generous because they "had only had one

candidate so far [and] [e]van though the statute allows the Department to charge

the entire cost to one candidate, to be fair to the candidate we decided to

split that by five based on the estimation of candidates within the first one-

year period." Dr. Paulson's opinion is hardly compelling. First, he had no

part in the decision, and could offer no real basis for the number's derivation.

Second, as discussed infra, the statute does not authorize a charge for

examination development against the candidates. Finally, if one wishes to

speculate, the dearth of candidates can be as easily attributed to the magnitude

of the fee the Department demanded, as it can be to a lack of interest, as Dr.

Paulson seeks to suggest.

APPENDIX

Petitioner's proposed recommended order has been considered; however, it is

more in the nature of argument, as opposed to proposed findings of fact, and

need not be specifically addressed.

The Board's proposed findings of fact are addressed as follows:

1 and 2. Addressed in paragraphs 1 and 2.

3. Addressed in paragraph 6, otherwise unnecessary detail.

4. Addressed in paragraph 3 and endnote 3.

5 and 6. Addressed in paragraphs 3 and 4.

7. Accepted. Addressed in endnotes 6 and 9, otherwise unnecessary detail.

8. Addressed in endnote 6.

9. Addressed in paragraph 13.

10. Addressed in paragraph 22.

11. Addressed in paragraphs 8 through 10.

12. Addressed in paragraph 11.

13 and 14. Addressed in paragraph 12.

15. First sentence addressed in endnote 3. Second sentence rejected as

not relevant.

16. Addressed in paragraphs 15 and 16

17 through 20, 22 through 24, and 29. Addressed in paragraph 20, otherwise

subordinate or unnecessary detail.

21. Addressed in endnote 6.

25. Addressed in paragraph 4.

26. Addressed in paragraphs 21 through 23 and endnote 7 and 9. Last

sentence rejected as not credible and contrary to the facts as fond.

27. Addressed in endnote 6.

28. First sentence rejected as misleading. While the Bureau of Testing

did propose an estimate for the hearing, the estimate upon which the application

fee was based was prepared before the first examination. Second sentence

addressed in paragraphs 17 and 19. Third sentence addressed in paragraphs 15

and 17. Fourth sentence addressed in paragraph 19, otherwise rejected as

contrary to the facts and conclusions reached. Fifth sentence addressed in

paragraph 17. Sixth sentence rejected as contrary to the facts found and

conclusions reached. See paragraphs 17 and 19. Seventh sentence rejected as

contrary to the facts found and conclusions reached. Eighth sentence addressed

in endnote 7. Ninth sentence rejected as not relevant since not at issue and

the predicate for such assessment not of record; however, see paragraphs 23 and

34 which render questionable, if true, the propriety of the Agency's action.

The Department's proposed recommended order merely adopted the Board's proposed

findings of fact 1 through 31, which have heretofore been addressed.

Consequently, it is not necessary to address the Department's proposed findings

of fact separately. As for the Department's two proposed conclusions of law,

they are rejected as inapplicable to this case. See paragraphs 30 through 37.

Indeed, were statutory interpretation appropriate in this case, and resort be

had to the rules applicable to such situations, it would be in appropriate, as

suggested by the Department, to resort to an enactment not relating to the

subject matter at hand, such as legislation concerning the Comptroller's Office,

to resolve the Legislature's intent. See e.g., Florida State Racing Commission

v. McLaughlin, 102 So.2d 574 (Fla. 1958).

COPIES FURNISHED:

Mr. Eusebio Verrier

14629 Southwest 104th Street

Miami, Florida 33186

William M. Woodyard

Assistant General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0750

Stuart F. Wilson-Patton, Esquire

Office of the Attorney General

The Capitol, Suite PL-01

Tallahassee, Florida 32399-1050

Richard Hickok, Executive Director

Construction Industry Licensing Board

7960 Arlington Expressway, Suite 300

Jacksonville, Florida 32211-7467

Lynda L. Goodgame, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended

order. All agencies allow each party at least ten days in which to submit

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

written exceptions. You should contact the agency that will issue the final

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

to this recommended order. Any exceptions to this recommended order should be

filed with the agency that will issue the final order in this case.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION

Construction Industry Licensing Board

EUSEBIO VERRIER,

Petitioner,

vs. DOAH CASE NO.: 95-5207

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION,

CONSTRUCTION INDUSTRY

LICENSING BOARD

Respondents.

______________________________/

FINAL ORDER

THIS MATTER came before the Construction Industry Licensing Board

(hereinafter referred to as the "Board') pursuant to Section 120.57(1)(b)1O.,

F.S., on June 14, 1996, in Ft. Lauderdale, Florida, for consideration of the

Recommended Order issued by the Hearing Officer in the above styled case (a copy

of which is attached hereto and incorporated herein by reference). The

Petitioner was present and was represented by Roy E. Granoff, Esquire

Respondent Board was represented by Stuart F. Wilson-Patton, Assistant Attorney

General. During the presentation of this case to the Board, the parties reached

a settlement agreement, the terms of which are incorporated in this Final Order.

Upon consideration of the Hearing Officer's Recommended Order, the

settlement agreement announced by the parties, the arguments of Counsel for the

parties and after a review of the complete record in this matter, including the

exceptions filed by all parties, the Board makes the following:

FINDINGS OF FACT

1. The parties announced at the hearing that in exchange for the

Petitioner's agreement to support all of the Respondent Board's exceptions to

the Recommended Order and the Petitioner's agreement not to take any appeal from

the Final Order, that the Petitioner would be allowed to take the Traditional

Thatched Structure Contractor's examination within reasonable time for a total

cost of $2,000.00 with a credit given for the $350.00 he had already paid. In

addition, the Petitioner would be allowed one retake of the examination, if

necessary, within ninety (90) days, for the actual cost of exam administration.

This agreement was approved by unanimous vote of the Board.

2. The Board accepts Board Counsel's exceptions to paragraphs 14-23, and

26 of the Recommended Order on grounds that those Findings of Fact were not

supported by competent, substantial evidence, and the proceedings upon which

they were based did not comply with the essential requirements of law. The rest

of the Findings of Fact in the Recommended Order are approved and adopted.

3. The Board hereby adopts and incorporates by reference paragraphs 1-7 of

the Board Counsel's Exceptions To Recommended Order, a copy of which is

attached. The Board also adopts and incorporates by reference paragraphs 7, 17-

23, and 26-31 of the Board Counsel's Proposed Recommended Order (copy attached)

as part of its Findings of Fact.

4. There is competent, substantial evidence to support the Board's

Findings of Fact.

CONCLUSIONS OF LAW

1. The Board has jurisdiction of this matter pursuant to the provisions of

Section 120.57(1), and Chapter 489, Florida Statutes.

2. The Board hereby rejects the following portions of the Recommended

Order: (1) the last sentence of paragraph 26; (2) the words "contend that they"

in the first sentence of paragraph 28; (3) paragraph 29; (4) the last sentence

of paragraph 30, and (5) paragraphs 38-40, for the reasons set forth in

paragraphs 8-1 2 of the Board Counsel's Exceptions To Recommended Order, which

the Board adopts and incorporates by reference. The Board hereby adopts and

incorporates by reference paragraphs 2-8 of the Conclusions of Law from the

Board Counsel's Proposed Recommended Order.

3. The rest of the Hearing Officer's Conclusions of Law, are hereby

approved and adopted in toto.

4. There is competent, substantial evidence to support the Board's

Conclusions of Law.

RECOMMENDATION

1. The Hearing Officer's Recommendation is hereby rejected, except that

the Petitioner shall be given credit for the $350.00 he has already paid and he

shall be allowed to take the Traditional Thatched Structure Contractor's

Practical Examination upon payment of an additional $1,650.00. In addition, the

Petitioner shall be allowed one retake of the examination, if necessary, within

ninety (90) days, for the actual cost of exam administration, provided that the

Petitioner does not appeal this Final Order.

THEREFORE, IT IS ORDERED AND ADJUDGED:

1. That the Findings of Fact and Conclusions of Law shall be as set forth

herein.

2. The Petitioner's application to take the Traditional Thatched Structure

Contractor's Practical Examination is approved provided that the Petitioner does

not appeal.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order

has been provided by U.S. Mail to: Roy E. Granoff, Esquire, Suite 400, 12515 N.

Kendall Drive, Miami, Florida 33186, Stuart F. Wilson-Patton, Assistant

Attorney General, PL-01, The Capitol, Tallahassee, Florida 32399-1050, William

M. Woodyard, Assistant General Counsel, DBPR, 1940 N. Monroe Street,

Tallahassee, Florida 32399-0750, Honorable William J. Kendrick, ALJ, 1230

Apalachee Parkway, Tallahassee, Florida 32399-1550, Eusebio Verrier, 14629

Southwest 104th Street, Miami, Florida 33186, and by hand delivery/United

States Mail to the Board Clerk, Department of Business and Professional

Regulation and its Counsel, Northwood Centre, 1940 North Monroe Street,

Tallahassee, Florida 32399-0792, on or before 5:00 p.m., this 16th day of

October 1996.

_____________________________________

ROBERT NAGIN, Chairman

Construction Industry Licensing Board

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order

has been provided by U.S. Mail to: Roy E. Granoff, Esquire, Suite 400, 12515 N.

Kendall Drive, Miami, Florida 33186, Stuart F. Wilson-Patton, Assistant

Attorney General, PL-01, The Capitol, Tallahassee, Florida 32399-1050, William

M. Woodyard, Assistant General Counsel, DBPR, 1940 N. Monroe Street,

Tallahassee, Florida 32399-0750, Honorable William J. Kendrick, ALJ, 1230

Apalachee Parkway, Tallahassee, Florida 32399-1550, Eusebio Verrier, 14629

Southwest 104th Street, Miami, Florida 33186,

and by hand delivery/United States Mail to the Board Clerk, Department of

Professional Regulation and its Counsel, Northwood Centre, 1940 North Monroe

Street, Tallahassee, Florida 32399-0792, on or before 5:00 p.m., this 15th day

of November, 1996.

_____________________________________

BRANDON L. MOORE