02-001322 Kevin Harrington vs. Department Of Business And Professional Regulation, Electrical Contractors Licensing Board Status: Closed Recommended Order on Friday, January 10, 2003.

Summary: Respondent Electrical Contractors Licensing Board denied Petitioner`s application to take certification examination. Denial approved.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KEVIN HARRINGTON, )

)

Petitioner, )

)

vs. ) Case No. 02 - 1322

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

ELECTRICAL CONTRACTORS )

LICENSING BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its duly - designated Administrative Law Judge,

Jeff B. Clark, held a formal administrative hearing in this case

on October 24, 2002, in Orl ando, Florida.

APPEARANCES

For Petitioner: Rosemary Hanna Hayes, Esquire

Hayes & Associates

3117 Edgewater Drive

Orlando, Florida 32804

For Respondent: Barbara Rockhill Edwards, Esquire

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

STATEMENT OF THE ISSUE

Whether Respondent, Department of Business and Professional

Regulation, Elect rical Contractors Licensing Board, appropriately

denied Petitioner's, Kevin Harrington, application to take the

examination for licensure as an electrical contractor.

PRELIMINARY STATEMENT

By letter dated January 30, 2002, Respondent advised

Petitioner tha t it had denied his application to take the

licensing examination on the following grounds:

(1) Applicant has failed to provide proof

of three years of management experience in

the electrical trade as required pursuant to

Section 489.511(2)(a)(3)(a), F.S.

(2) Applicant has failed to show 40% of

the work experience in 3 phase electrical

work, as required pursuant to Rule 61G6 -

5.001(1), F.A.C.

(3) The W2's submitted pursuant to Rule

61G6 - 5.003(3)(b) is [sic] from a general

contractor, Coastal Con struction Group. No

evidence that this business has an electrical

license was provided.

(4) The applicant, as the project manager

for a general contractor, is not qualified to

supervise electrical work performed by an

electrical contractor.

By Petiti on for Formal Hearing dated February 28, 2002,

which included an Election of Rights, Petitioner elected to have

a formal hearing pursuant to Subsection 120.57(1), Florida

Statutes. On April 3, 2002, Respondent referred this matter to

the Division of Admin istrative Hearings requesting a hearing. On

April 4, 2002, an Initial Order was forwarded to the parties.

On April 23, 2002, the case was scheduled for final hearing

on June 13, 2002, in Orlando, Florida. On June 6, 2002,

Petitioner's motion for continua nce was granted.

On August 5, 2002, the case was rescheduled for final

hearing on October 24, 2002. At the final hearing, Petitioner

testified on his own behalf and offered nine exhibits, seven of

which were admitted into evidence and marked Petitioner's

Exhibits 1 - 7; one exhibit was withdrawn by Petitioner. The final

exhibit which was a letter dated October 16, 2002, from

Michael Dodson, Esquire, with attachments was not admitted into

evidence but was proffered by Petitioner and marked Petitioner's

Exhi bit A for proffer.

Respondent presented five witnesses: Clarence Tibbs,

Anthony Spivey, Robert Crabill, George Ayrish, and Kevin

Harrington. Mr. Tibbs was qualified as an expert witness in the

field of electrical engineering. Respondent presented three

exhibits, which were admitted into evidence and marked

Respondent's Exhibits 1 - 3.

At the final hearing, the undersigned Administrative Law

Judge requested that Respondent present certain documentary

evidence which related to the status of Electrical Contra ctors

Licensing Board member, Dawn Johnson, and transcripts of portions

of the audio tape recording of the January 16 and 17, 2002,

meeting of the Electrical Contractors Licensing Board, which

purported to relate to the Electrical Contractors Licensing

Boa rd's consideration of Petitioner's application to take the

licensing examination. These items, as well as the Affidavit of

Dawn Johnson, were submitted after the final hearing and were

considered by the undersigned. In addition, Petitioner's

objection fi led November 15, 2002, and Respondent's response

filed the same day were considered. These additional documents

are made a part of the record.

On October 28, 2002, Petitioner filed a Motion for Summary

Recommended Order. On October 30, 2002, the undersig ned entered

an Order deferring ruling on Petitioner's motion. Petitioner's

motion is denied in accordance with this Recommended Order.

The three - volume Transcript of the proceedings was filed

with the Division of Administrative Hearings on November 18,

20 02. By agreement, confirmed by the undersigned, the parties

had until December 16, 2002, to submit proposed recommended

orders. Both parties timely filed Proposed Recommended Orders.

FINDINGS OF FACT

Based on the oral and documentary evidence presented a t the

final hearing, the following findings of fact are made:

1. Respondent is the state agency vested with the authority

to test applicants seeking certification as electrical

contractors.

2. Petitioner is seeking certification (licensure) as an

electri cal contractor. On December 12, 2001, Respondent received

Petitioner's application to take the Electrical Contractors

Unlimited examination.

3. On December 24, 2001, Respondent mailed Petitioner a

letter requesting additional information. The letter req uested

that the additional information be received by Respondent no

later than January 4, 2002. This date was later extended to

January 8, 2002.

4. On January 4 and January 7, 2002, Petitioner, through

his attorney, forwarded the requested additional inf ormation to

Respondent. Petitioner's application was complete on January 10,

2002.

5. Respondent, Electrical Contractors Licensing

Board("Board"), met on January 16 and 17, 2002.

6. The Board delegates initial consideration of

applications to take certi fication examinations to an

Applications Committee consisting of members of the Board who

make recommendations to the full Board on each application. Each

application is examined by at least two Applications Committee

members; if both recommend "denial of the application," or, if

one recommends "approval of the application" and one recommends

"denial of the application," the application is reviewed by a

third Applications Committee member.

7. Each member of the Applications Committee is provided a

workshe et as a part of the application package which lists

reasons for denial drawn from Subsection 489.511(2)(a)(3),

Florida Statutes.

8. After each application is considered by members of the

Applications Committee, the application with the Applications

Commit tee's recommendations, reasons for denial (if applicable),

and other comments are given to a staff employee who prepares an

approved/denial list which is presented to the full Board for

consideration.

9. The foregoing procedure was followed in the instant

case. On January 16, 2002, Board members, Roger Lange and Kim

DeBerry, who were members of the Applications Committee,

considered Petitioner's application; both recommended denial of

the application. Because there were two recommendations of

denial, the application was considered by a third Applications

Committee member, Dawn Johnson; she, too, recommended denial.

10. Petitioner's application and the recommendations,

reasons for denial, and comments of the Applications Committee

were then given to a sta ff employee who prepared a summary list

of all applicants with the recommendations for approval or denial

by the Applications Committee with reasons given for denial for

submission to the full Board.

11. The full Electrical Contractors Licensing Board

c onsidered Petitioner's application on January 17, 2002, and

unanimously denied the application.

12. Petitioner was advised of the denial by letter dated

February 8, 2002.

13. Petitioner's Applicant's Affidavit dated November 16,

2001, indicates that he was seeking a license under

Subsection 489 .511(2)(a)(3)(a), Florida Statutes. The

Applicant's Affidavit specifically states:

489.511(2)(a)(3)(a), F.S. Has, within the

six (6) years immediately preceding the

filing of the application, at least three (3)

years proven "management experience" in the

trade or education equivalent thereto, or a

combination thereof, but not more than one -

half of such experience may be educational.

(Please submit at least three (3) years of W -

2 Forms)

14. The occupationa l skills and responsibilities of an

electrical contractor are unique and require experience and

understanding which are typically acquired by extensive, direct

"on - the - job" training in the electrical contracting trade.

15. Petitioner is an experienced Gen eral Contractor's

project manager. His credentials as a General Contractor's

project manager are impressive and the projects he has supervised

are extensive. Petitioner has little or no direct supervisory

experience in the electrical contracting trade.

1 6. Petitioner's construction management experience is as a

General Contractor project manager, not an Electrical Contractor

project manager or similar position, and, as a consequence, he

does not meet the "'management experience' in the trade"

statutory r equirement.

17. Petitioner has an enviable academic record: an

Associate of Science Degree With Honors from Miami - Dade Community

College (1990), a Bachelor of Science in Building Construction

from University of Florida (1993), 21 hours of graduate studie s

at Florida International University leading towards a Master of

Building Construction degree.

18. Petitioner's academic credentials have little direct

application to the electrical contracting trade and, as a

consequence, do not meet the "educational eq uivalent" to

management experience statutory requirement.

CONCLUSIONS OF LAW

19. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter. Subsection

120.57(1), Florida Statutes.

20. Subsection 120.52(9), Florida Statu tes, reads, as

follows:

"License" means a franchise, permit,

certification, registration, charter, or

similar form of authorization required by

law, but it does not include a license

required primarily for revenue purposes when

issuance of the license is merely a

ministerial act.

21. Subsection 489.511(1), Florida Statutes, vests

Respondent with the statutory authority to conduct certification

(licensure) examinations for persons seeking certification as an

electrical contractor. Subsection 489.511(2 ), Florida Statutes,

establishes criteria which entitle persons seeking certification

as an electrical contractor to take the certification

examination.

22. Petitioner must establish that he meets licensure

application criteria by a preponderance of the e vidence.

Subsection 120.57(1)(j), Florida Statutes; Florida Department of

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

Balino v. Department of Health and Rehabilitative Services ,

348 So. 2d 349 (Fla. 1st DCA 1977); Barbec v. Departmen t of

Professional Regulation, Board of Architecture and Interior

Design , 14 FALR 5312 (DOAH 1992).

23 . Petitioner as a licensure applicant carries the

ultimate burden of persuasion of entitlement to take the

certification examination. Osborne Stern and C o., Inc. v.

Department of Banking and Finance, Division of Securities and

Investor Protection , 647 So. 2d 245, 250 (Fla. 1st DCA 1994);

Pershing Industries, Inc. v. Department of Banking and Finance ,

591 So. 2d 991 (Fla. 1st DCA 1991); Y oung v. Department of

Community Affairs , 567 So. 2d 2, 3 (Fla. 3d DCA 1990); Florida

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

(Fla. 1st DCA 1981).

24 . Discretionary authority is necessary for agencies

involved in the issuance of licenses and the deter mination of

fitness of applicants for licenses. Astral Liquors, Inc. v.

Department of Business Regulation , 463 So. 2d 1130 (Fla. 1985);

Permenter v. Younan , 31 So. 2d 387 (Fla. 1947); Solimena v.

State, Department of Business Regulation , 402 So. 2d 1240 ( Fla.

3d DCA 1981); Brewer v. Insurance Commissioner and Treasurer ,

392 So. 2d 593 (Fla. 1st DCA 1981).

25. In seeking a Subsection 120.57(1), Florida Statutes,

hearing, Petitioner has disputed material facts and is afforded

a de novo proceeding; Responden t's denial of Petitioner's

application to take the licensure examination carries no

presumption of correctness. Subsection 120.57(1)(k), Florida

Statutes; Moore v. State, Department of Health and

Rehabilitative Services , 596 So. 2d 759 (Fla. 1st DCA 1992) . As

a result, Petitioner has an opportunity to present evidence to

demonstrate his entitlement to take the certification

examination and any perceived shortcomings of the deliberative

process of Respondent are cured.

26. The Florida Legislature may pres cribe standards that

all applicants must meet before qualifying for licensure

examinations. State ex rel. Kaplan v. Dee , 77 So. 2d 768 (Fla.

1955); Clark v. Department of Professional Regulation, Board of

Professional Geologists , 584 So. 2d 59 (Fla. 1st D CA 1991).

27. Requiring that a licensure applicant establish a

period of practical experience as a condition of licensure or

before admission to licensure examination is not uncommon. For

example, Subsection 471.013(1)(a)1, Florida Statutes(engineers);

S ubsection 458.311(1)(f)1c, Florida Statutes (medical doctors).

28. In denying Petitioner's application to take the

licensure examination, Respondent alleged that: Applicant has

failed to provide proof of three years of management experience

in the electr ical trade as required pursuant to Subsection

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

29. Subsection 489.511(2)(a)(3)(a), Florida Statutes,

reads, as follows:

(2)(a) A person shall be entitled to take

the certification examination for the purpose

of de termining whether he or she is qualified

to engage in contracting throughout the state

as a contractor if the person:

* * *

3. Meets eligibility requirements

according to one of the following criteria:

a. Has, within the 6 years immediately

p receding the filing of the application, at

least 3 years' proven management experience

in the trade or education equivalent thereto,

or a combination thereof, but not more than

one - half of such experience may be

educational equivalent.

30. Petitioner fail ed to provide persuasive evidence that

Petitioner's management experience as a General Contractor's

project manager met the statutorily required management criteria

because he failed to demonstrate that the management experience

was in the electrical contr acting trade. The evidence

demonstrated that Petitioner's management experience on

construction projects, as it related to electrical contracting,

was indirect and typically involved interaction with the

Electrical Contractor's project manager as opposed to being

directly involved with individuals in the field doing the work.

Similarly, Petitioner's academic record, while admirable, has

little application to electrical contracting.

31. In denying Petitioner's application to take the

licensure examination, Respondent also alleged that:

Applicant has failed to show 40 percent of the work experience in

3 - phase electrical work, as required pursuant to Rule 61G6 -

5.001(1), Florida Administrative Code.

32. Rule 61G6 - 5.003, Florida Administrative Code, reads, i n

pertinent part, as follows:

* * *

2. The experience required must include:

a. For an electrical contractor, at least 40%

of work that is 3 - phase service.

33. Petitioner's assertion that his General Contractor

project manager's management ex perience, already determined to be

non - qualifying, included 40 percent work experience in three -

phase electrical service, is not persuasive.

34. In denying Petitioner's application to take the

licensure examination, Respondent further alleged that: The

W - 2's submitted pursuant to Rule 61G6 - 5.003(3)(b) are from a

general contractor, Coastal Construction Group. No evidence that

this business has an electrical license was provided.

35. Rule 61G6 - 5.003(3)(b), Florida Administrative Code,

reads, in pertinen t part, as follows:

(3) All applicants attempting to

demonstrate qualification by experience

pursuant to Section 489.511(2)(a)3.a., b.,

c., must forward the following to the Board:

* * *

(b) Statements prepared and signed in the

presence o f a notary by some person or

persons other than the applicant for

examination listing chronologically the

active experience of the applicant for

examination in the trade, including the name

and address of employers, and dates of

employment along with copie s of W - 2 forms.

36. The reference to W - 2 forms evidencing employment by a

General Contractor and no W - 2 forms evidencing employment by an

Electrical Contractor reinforces the determination that

Petitioner lacked management experience in the electrical

co ntracting trade and failed to meet the statutory criteria. As

noted, merely having some degree of supervisory authority over

the various trades at a construction site does not satisfy the

statutory criteria of "management experience in the trade."

37. Su bsection 489.113(3), Florida Statutes, reads as

follows:

(3) A contractor shall subcontract all

electrical, mechanical, plumbing, roofing,

sheet metal, swimming pool, and air -

conditioning work, unless such contractor

holds a state certificate or registr ation in

the respective trade category, . . . ."

One reason Florida law requires a General Contractor to

subcontract electrical work is because it is unique and requires

special skill, knowledge, and experience. The same logic compels

the conclusion that a lack of management experience in the

electrical contracting trade would disqualify an applicant

seeking certification as an electrical contractor.

38. Subsection 120.60(1), Florida Statutes, reads, as

follows:

(1) Upon receipt of an application for a

license, an agency shall examine the

application and, within 30 days after such

receipt, notify the applicant of any apparent

errors or omissions and request any

additional information the agency is

permitted by law to require. An agency shall

not deny a license for failure to correct an

error or omission or to supply additional

information unless the agency timely notified

the applicant within this 30 - day period. An

application shall be considered complete upon

receipt of all requested information and

correction of any error or omission for which

the applicant was timely notified or when the

time for such notification has expired.

Every application for a license shall be

approved or denied within 90 days after

receipt of a completed application unless a

shorter period of time for agency action is

provided by law. The 90 - day time period

shall be tolled by the initiation of a

proceeding under ss. 120.569 and 120.57. An

application for a license must be approved or

denied within the 90 - day or shorter tim e

period, within 15 days after the conclusion

of a public hearing held on the application,

or within 45 days after a recommended order

is submitted to the agency and the parties,

whichever is later. The agency must approve

any application for a license or for an

examination required for licensure if the

agency has not approved or denied the

application within the time periods

prescribed by this subsection.

Respondent met the statutory requirements of Subsection

120.60(1), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered denying

Petitioner's application to take the Certified Electrical

Contractor's Licensure Examination.

DONE AND ENTERED this 10th day of January, 2003, in

Tallahassee, Leon County, Florida.

___________________________________

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of January, 2003.

COPIES FURNISHED :

Barbara Rockhill Edwards, Esquire

Department of Legal Affairs

The Capitol , Plaza Level 01

Tallahassee, Florida 32399 - 1050

Rosemary Hanna Hayes, Esquire

Hayes & Associates

3117 Edgewater Drive

Orlando, Florida 32804

Hardy L. Roberts, III, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1 940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Anthony B. Spivey, Executive Director

Electrical Contractors Licensing Board

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 3239 9 - 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 Fina l Order in this case.