98-003468 Kenneth J. Maxwell vs. Electrical Contractors Licensing Board Status: Closed Recommended Order on Monday, January 4, 1999.

Summary: Applicant lacked experience criteria to sit for alarm contractor examination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KENNETH J. MAXWELL, )

)

Petitioner, )

)

vs. ) Case No. 98-3468

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

ELECTRICAL CONTRACTORS' )

LICENSING BOARD, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on October 16, 1998, by video between Tallahassee, Florida, and

Miami, Florida, before Claude B. Arrington, a duly designated

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Oscar Syger, Esquire

Law Offices of Oscar Syger

Biscayne Building, Suite 810

19 West Flagler Street

Miami, Florida 33130

For Respondent: Ann Cocheu, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

Whether Petitioner meets the criteria to sit for the Alarm

Contractor I licensure examination.

PRELIMINARY STATEMENT

Petitioner's application to sit for the Alarm Contractor I

licensure examination contained information pertaining to his

experience. On June 16, 1998, Respondent denied his application

to sit for the examination. The denial letter asserted that

Petitioner failed to meet the criteria set forth in Rule 61G6-

5.003(1), Florida Administrative Code. Petitioner timely

challenged the denial, the matter was referred to the Division of

Administrative Hearings, and this proceeding followed.

At the formal hearing, Petitioner testified on his own

behalf, but presented no other testimony. The only exhibit

submitted by the Petitioner was a copy of a schematic drawing of

one of the jobs on which he worked. Respondent presented the

testimony of Herbert Morris, a member of the Construction

Licensing Board, who was accepted as an expert in the field of

alarm contracting.

A transcript of the proceedings has been filed. The

Petitioner and Respondent filed proposed recommended orders,

which have been duly considered by the undersigned in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. The Electrical Contractor's Licensing Board is the

agency of the State of Florida responsible for licensing alarm

system contractors.

2. Section 489.505, Florida Statutes, contains the

following definitions pertaining to this proceeding:

As used in this part:

(1) "Alarm system" means any electrical

device or combination of electrical devices

used to detect a situation which causes an

alarm in the event of a burglary, fire,

robbery, medical emergency, or equipment

failure.

(2) "Alarm system contractor" means a

person whose business includes the execution

of contracts requiring the ability,

experience, science, knowledge, and skill to

lay out, fabricate, install, maintain, alter,

repair, monitor, inspect, replace, or service

alarm systems for compensation, including,

but not limited to, all types of alarm

systems for all purposes.

(a) "Alarm system contractor I" means an

alarm system contractor whose business

includes all types of alarm systems for all

purposes. . . .

3. Petitioner applied to sit for the alarm system

contractor I examination pursuant to the provisions of

Section 489.511(2)(a)3.c., Florida Statutes, which provides that

a person can sit for the licensure examination if that person:

c. Has, within the 12 years immediately

preceding the filing of the application, at

least 6 years of comprehensive training,

technical education, or broad experience

associated with an electrical or alarm system

installation or servicing endeavor; or

4. Rule 61G6-5.003(1)(c)2., Florida Administrative Code,

provides, in pertinent part, as follows:

(1) Any person desiring to take the

certification examination must establish that

he or she meets eligibility requirements

according to one of the following criteria:

* * *

(c) Has, within 12 years immediately

preceding the filing of the application, at

least 6 years of comprehensive training,

technical education, or broad experience

associated with an electrical or an alarm

system installation or servicing endeavor.

The experience required must include:

* * *

2. For an alarm contractor I, at least 40%

of work that is in fire alarm systems.

5. By letter dated June 16, 1998, Respondent denied

Petitioner's application on the ground that the application

failed to demonstrate compliance with Rule 61G6-5.003(1)(c)2.,

Florida Administrative Code.

6. At all times pertinent to this proceeding, Petitioner

worked full-time for Florida Power and Light in the capacity of a

connect and disconnect man. Petitioner described this position

as installing electric meters or disconnecting electric meters

when there has been an initiation, change, or termination of

service.

7. Petitioner's employment with Florida Power and Light

does not require him to work directly with any type of alarm

system.

8. The application form provided by Respondent required

Petitioner to submit a representative list of his experience. He

was to provide a detailed description of the work performed, the

job location and address, the general contractor's name, and the

name and telephone number of the contractor who pulled the

permit.

9. Petitioner provided information pertaining to five jobs

in his application and at the formal hearing. Petitioner claimed

to have worked on the burglar and fire alarm system during the

construction of the First Baptist Church of Brownsville, 4600

Northwest 23rd Avenue, Miami, Florida, between March 29, 1997,

and February 9, 1998. Petitioner claimed that he designed the

fire alarm system and drew the plans for that system on the

blueprint that was used for the construction of the building.

Petitioner also claimed to have participated in the installation

of the fire and burglar alarm systems. Petitioner testified that

the alarm system had 99 devices and was a Fire Light 5210 U.D.

system. Petitioner testified that he kept a computer generated

time ticket for each job. These computer records were not

offered into evidence. Petitioner testified that he spent

approximately 2300 hours on the job involving the church. 1/

10. The second job identified by Petitioner was a joint

project with West Kendall Electric for the installation of a

NAPCO 2600 model fire alarm system in a residence between March

and October 1993. Petitioner estimated that he spent

approximately twenty hours on this job.

11. The third job identified by Petitioner was the

installation of a residential fire alarm system, security system,

burglar alarm system, intercom system, television antenna system,

and telephone system at a residence located at 199905 Southwest

135th Avenue, Miami, Florida. The dates of the job were between

December 19, 1990, and July 15, 1991. The fire and burglar alarm

system was a NAPCO 2600 model. Petitioner did not estimate the

amount of time he expended on that job.

12. The fourth job identified by Petitioner was the

installation of a NAPCO 3000 model system at 14911 Southwest

144th Terrace, Miami, Florida. Petitioner described this system

as an industrial fire and burglar alarm panel with automation and

approximately 35 sensors. The dates of the job were between

January 6, 1995, and October 20, 1996. Petitioner testified that

he expended approximately 90 hours on this project, with forty to

forty-five percent of the job being devoted to the fire alarm

system.

13. The fifth job identified by Petitioner was the

installation of a NAPCO 2600 model fire and burglar alarm system

at 14460 Southwest 152nd Court, Miami, Florida. This was another

joint project with West Kendall Electric. Petitioner estimated

that he expended 80 hours on that job with forty to forty-five

percent of the job being devoted to the fire alarm system. This

job lasted between December 14, 1993, and March 27, 1994.

14. Petitioner testified that he spent 2,358 hours on the

five jobs he identified. He also stated that he had devoted

1,414 of those hours to burglar alarm systems, "according to the

ratio." 2/

15. Petitioner testified that he had been a member of the

National Fire Protection Association since 1994. There are no

standards for admission to that association, other than the

payment of a membership fee.

16. Petitioner has attended various fire alarm seminars

over the years sponsored either by system manufactures or

associations, such as the National Fire Protection Association.

He attended a seminar consisting of 16 hours sponsored by the

National Fire Protection Association in May of 1994. He attended

an alarm installers seminar sponsored by a manufacturer in

February 1990 consisting of 24 hours over a three-day period. He

attended another seminar sponsored by a manufacturer for eight

hours on October 29, 1992. Petitioner attended a fire alarm

training seminar on May 19, 1998.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

jurisdiction of the parties to and the subject of this

proceeding. Section 120.57(1), Florida Statutes.

18. Petitioner has the burden of proving by a preponderance

of the evidence that he meets the criteria to sit for the

licensure examination. Florida Department of Transportation v.

J.W.C. Co., Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981).

19. Rule 61G6-5.001, Florida Administrative Code, contains

the following definitions pertinent to this proceeding:

(8) "Comprehensive" means skill, knowledge

and experience covering all areas of

contracting.

* * *

(10) "Education" means formal instruction

provided by an accredited public or private

school, community college or university which

includes formal classroom time and testing

and results in the conference [sic] of a

recognized degree. For the purposes of this

definition 500 man hours equals one year of

instruction.

(11) "Experience" means informal exposure

to the trade wherein knowledge and skill is

obtained via direct observation or

participation.

* * *

(14) "Broad Experience" means that he or

she has experience in the electrical or alarm

contracting industry which may include

management, supervision and hands on

experience in the installation of electrical

or alarm components as applicable.

(15) "Comprehensive training" means

obtaining technical, management, and

supervision knowledge and experience through

the use of instruction and practice in all

phases of the electrical or alarm contracting

trade.

20. Petitioner testified that he expended 2,300 hours of

his time on the commercial project involving the church between

March 29, 1996, and February 9, 1997. When one considers that

Petitioner was working full-time for Florida Power and Light

during this time, his uncorroborated testimony that he spent

2,300 hours on this project is not credible.

21. Petitioner testified that he spent 20 hours on the

second job, 90 hours on the fourth job, and 80 hours on the fifth

job. No estimate was given for the third job, which lasted

between December 19, 1990, and July 15, 1991.

22. Petitioner testified that he spent a total of 2,358

hours on the five projects he identified. When one adds the

hours he claimed to have spent on these jobs, the total is 2,490

hours (excluding all hours for the third job). The conflict in

these sums serves to underscore the equivocal nature of

Petitioner's testimony.

23. Even if one accepts the estimates offered by Petitioner

as to the amounts of time expended on these jobs, it is concluded

that the one commercial job and the four residential jobs, done

with no supervision from a licensed alarm contractor, are

insufficient to establish that he meets the criteria to sit

for the certification examination pursuant to Section

489.511(2)(a)3.c., Florida Statutes.

24. In reaching the foregoing conclusion, the undersigned

has considered Petitioner's testimony as to the seminars he

attended and the association to which he belongs. The seminars

added to Petitioner's experience, and have been considered to be

positive factors for Petitioner. The association to which he

belongs has no membership criteria, other than the payment of a

fee. Membership in that association was not shown to add to

Petitioner's experience.

25. Petitioner has failed to establish that he has at least

6 years of "comprehensive training," "technical education," or

"broad experience" associated with an electrical or alarm system

installation or servicing endeavor as those terms are used in the

statute and defined by rule.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Respondent enter a Final Order that

denies Petitioner's application to sit for the certification

examination.

DONE AND ENTERED this 4th day of January, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of January, 1999.

ENDNOTES

1/ The transcript at page 24 reflects the following questions by

Petitioner's attorney and the answers by Petitioner:

Q. Mr. Maxwell, did you participate in the

installation of the fire alarm system?

A. Yes. I was a participant.

Q. And tell us what you did?

A. Well, at the time of the preconstruction

there was an original electrician out on the

job and they did all the foundational work,

foot work, with this system, which included

the typing, the raceways, et cetera, et

cetera. They also originally ran a

conventional wiring, which is not a standard

requirement within this field.

Q. What did you do?

A. The electrician brought me in to redesign

this system to bring it up to code and to

coordinate with the Fire Marshall's office so

that we can get the system properly

operational for life safety purposes.

2/ This testimony is reflected at page 33, lines 12 through 13

of the Transcript. The ratio to which Petitioner referred

pertains to fire alarm systems, not burglar alarm systems.

COPIES FURNISHED:

Oscar Syger, Esquire

Law Offices of Oscar Syger

Biscayne Building, Suite 810

19 West Flagler Street

Miami, Florida 33130

Ann Cocheu, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Ms. Ila Jones, Executive Director

Electrical Contractors' Licensing Board

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

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 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.