04-004357 Anthony G. Roberts vs. St. Johns River Water Management District Status: Closed Recommended Order on Tuesday, January 25, 2005.

Summary: Petitioner`s application to sit on a water well contractor examiniation denied because of his failure to show two years` experience in the business.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANTHONY G. ROBERTS, )

)

Petitioner, )

)

vs. ) Case No. 04 - 4357

)

ST. JOHNS RIVER WATER )

MANAGEMENT DISTRICT, )

)

Respondent. )

_______________________________ )

RECOMMENDED ORDER

Pursuant to notice, this matter was h eard before the

Division of Administrative Hearings by its assigned

Administrative Law Judge, Donald R. Alexander, on January 12,

2005, in Macclenny, Florida.

APPEARANCES

For Petitioner: Anthony G. Roberts, pro se

Post Office Box 638

Glen St. Mary, Florida 32040 - 0638

For Respondent: Patrick W. Krechowski, Esquire

St. Johns River Water Management District

Post Office Box 1429

Palatka, Florida 32178 - 1429

ISSUE

T he issue is whether Petitioner's application to sit for

the water well contractor examination should be approved.

BACKGROUND

This matter began on August 23, 2004, when Respondent, St.

Johns River Water Management District (District), issued its

Notice o f Staff Intent to Recommend Denial of Petitioner's

application to sit for the water well contractor examination.

The basis for the denial was that Petitioner had failed to

provide satisfactory proof of two years' experience in the water

well construction business, as required by Florida

Administrative Code Rule 62 - 531.300(1)(b) and (6). After his

first request for a hearing was denied without prejudice to

refiling an amended request, on November 18, 2004, Petitioner

filed his Corrected Request for Adminis trative Hearing

Concerning Application No. 7300 (Water Well Contractor).

The matter was forwarded by the District to the Division of

Administrative Hearings on December 8, 2004, with a request that

an administrative law judge conduct a hearing.

By Not ice of Hearing dated December 22, 2004, the matter

was scheduled for hearing on January 12, 2005, in Macclenny,

Florida.

At the hearing, Petitioner testified on his own behalf.

Respondent presented the testimony of Catherine A. Walker,

assistant direct or of the division of water use regulation, and

Julian C. Varnes, Jr., a water resource representative III in

the Jacksonville district office. Also, it offered District

Exhibits 1 - 4, which were accepted in evidence. Finally, the

undersigned granted the District's Motion for Official

Recognition of Florida Administrative Code Chapters 40C - 3 and

62 - 531.

There is no transcript of the hearing. Proposed Findings

of Fact and Conclusions of Law were filed by Respondent on

January 21, 2005, and they have been c onsidered in the

preparation of this Recommended Order.

FINDINGS OF FACT

Based on the evidence presented by the parties, the

following findings of fact are made:

1. On January 9, 2004, Petitioner, who resides in Baker

County, Florida, filed his applicatio n with the District

requesting that he be allowed to sit for the water well

contractor examination. The requirements for qualification to

take the examination are set forth in Florida Administrative

Code Rule 62 - 531.300.

2. Relevant to this controversy is the requirement that an

applicant present "satisfactory proof of two years experience in

the water well construction business." This requirement is

normally met by the applicant providing a list of at least ten

water well jobs he has completed during a consecutive 24 - month

period (together with their locations, major use, and

approximate depth and diameter), the name and address of the

owner of the well, and the approximate date the activity took

place. See Fla. Admin. Code R. 62 - 531.300(6)(a). If th e work

has been completed in Florida, the applicant is also required to

submit copies of completion reports for each of the ten wells.

Id. Completion reports are filed by the contractor with the

District within thirty days after the work is completed. S ee

Fla. Admin. Code R. 40C - 3.411. Finally, the applicant must

submit letters from three persons attesting to the length of

time the applicant has been working in the water well

construction business as a major activity. See Fla. Admin. Code

R. 62 - 531.600 (6)(a).

3. Alternatively, an applicant may present "satisfactory

proof of equivalent experience," which may be accepted by the

District "on a individual basis." See Fla. Admin. Code R. 62 -

531.300(6)(b). While this option has rarely, if ever, been used

by any applicant, at hearing the District suggested that this

provision would allow an applicant to submit other credible

documentary evidence, such as affidavits, attesting to the

applicant's equivalent experience.

4. Mr. Julian C. Varnes, Jr., a Distri ct water resource

representative III, is in charge of reviewing water well

contractor applications in four northeast Florida counties,

including Baker County. Mr. Varnes reviewed Petitioner's

application and concluded that he had failed to submit proof of

two years' experience in the water well contracting business or

satisfactory proof of equivalent experience, as required by the

rule.

5. In this case, Petitioner submitted ten completion

reports with his application, but none of the reports indicated

t hat he had been involved on those projects, and Petitioner

acknowledged at hearing that he could not recall if he was even

present on the job site. This is probably because the reports

related to jobs performed between November 10, 1982, and

July 31, 1985, by his father, a licensed water well contractor,

when Petitioner was less than fifteen years old. In addition,

the reports submitted by Petitioner covered work performed over

a 32 - month period, rather than over a 24 - month period, as

required by the rule, and some of the reports did not have the

complete address of the location of the well.

6. By letter dated February 4, 2004, the District advised

Petitioner that his application was deficient because he had

failed to submit the information required i n Florida

Administrative Code Rule 62 - 531.300(1)(b) and (6) relative to

experience. The letter advised Petitioner that he must submit

an "acceptable list of ten wells together with their completion

reports, for wells that [he had] constructed, repaired, o r

abandoned, with completion dates distributed over a consecutive

24 - month time period."

7. Further telephonic discussions between Petitioner and

District personnel concerning the request for additional

information occurred on March 25 and 29, 2004, bu t they did not

resolve the District's concerns.

8. On June 15, 2004, the District staff again notified

Petitioner in writing that he must submit the requested

information within 30 days or his application would be denied.

When no response was received from Petitioner, on July 27, 2004,

the staff issued a Technical Staff Report recommending that the

application be denied because of Petitioner's failure to comply

with the requirements of Florida Administrative Code Rule 62 -

531.300(1)(b) and (6).

9. On August 23, 2004, a Notice of Staff Intent to

Recommend Denial of Water Well Contractor Application No. 7300

and Notice of Rights was issued by the District. Petitioner's

request for a hearing was then filed. After his first request

for a hearing was dis missed, on November 18, 2004, Petitioner

filed an amended request for a hearing. In that request, he

alleged that the District was "not capable of locating

completion reports filed by [Petitioner] and/or his father";

that the experience of he and his fath er was well known to two

District staffers; that he had purchased a well drilling company

from another individual and operated under the seller's license

for over a year; that he is entitled to licensure because he has

satisfactory equivalent experience; a nd that his father has paid

all outstanding fines previously imposed by the District. As

relief, Petitioner has requested that he be allowed to take the

contractor's examination.

10. At hearing, Petitioner explained that his father was

in the water well contracting business for twenty years, and

that beginning in 1983, when he was thirteen years old, he had

helped his father on "hundreds of jobs" until his father's

retirement in 1994. However, Petitioner cannot recall the names

and addresses of customers who were serviced by his father's

business, which is necessary in order for the District to

retrieve completion reports presumably filed by his father.

Because of the large number of completion reports filed by

contractors throughout its multi - county jur isdiction, in order

to retrieve one, the District must have the following

information: the year the job was completed, the county in

which the job was performed, and the address (township and

range) of the well's owner. Petitioner is unable to provide

th is information. 1

11. In addition, Petitioner stated that he had purchased a

water well contractor's business (from Tim Johnson) shortly

after his father retired in 1994 and that he operated the

business under Mr. Johnson's license for a little more than a

year. Although Petitioner produced no documentation concerning

jobs he may have performed under Mr. Johnson's license, even if

he had, that work would still constitute less than 24

consecutive months of experience, as required by the rule.

12. Peti tioner further asserted that Mr. Varnes, who

oversees the water well contractors in Baker County, personally

"knows" that he is an experienced well driller (having gained

such experience through working for his father for many years)

and that he possesses the skills necessary to take the

examination. However, Mr. Varnes did not agree with this

assertion.

13. Finally, Petitioner asked that he be allowed to take

the examination, which would be the best indicator of whether he

possesses the necessary knowl edge to be a contractor. He also

pointed out that each completed project must be inspected by a

District employee, and that such inspections would verify and

ensure that his work is satisfactory. However, the rules

require that before the examination can be taken, certain

requirements must be met. Petitioner has not satisfied those

requirements.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction over this matter pursuant to Sections 120.569 and

120.57, Florida Statutes (200 4).

15. The burden of proof is on the party asserting the

affirmative of an issue before an administrative tribunal.

Balino v. Department of Health & Rehabilitative Servs. , 348 So.

2d 349, 350 (Fla. 1st DCA 1977). Therefore, Petitioner has the

burden of proving entitlement to sit for the examination.

16. The issue here is whether Petitioner's application to

sit for the water well contractor examination should be

approved. The requirements to do so are set forth in Florida

Administrative Code Rule 6 2 - 531.300. Pertinent to this

controversy are the requirements in subsections (1) and (6)

which read as follows:

(1) The Water Management Districts shall

accept applications for licensing as a water

well contractor from any person who is at

least 18 years of age, has knowledge of

those rules adopted by the Department and

the District which deal with the regulation

of water wells, has had not less than two

years experience in constructing, repairing,

or abandoning wells, and beginning July 31,

2004, has tak en and completed a minimum of

12 approved coursework hours. In addition,

each application shall:

* * *

(b) Contain proof of experience as provided

in subsection (6) below.

* * *

(6) Satisfactory proof of two years

experience in the w ater well construction

business shall be demonstrated by providing:

(a) A list of at least ten water wells,

together with their locations, major use,

and approximate depth and diameter, that the

applicant has constructed, repaired, or

abandoned. This l ist shall provide the name

and address of the owner or owners of each

well, and the approximate date the

construction of each well was completed.

For water wells drilled in Florida, a copy

of the completion report for each water well

shall accompany the l ist. Completion dates

of the ten wells shall be distributed over a

consecutive 24 - month period. In addition,

the applicant shall provide letters from

three persons attesting to the length of

time the applicant has been working in the

water well construct ion business as a major

activity.

(b) In lieu of the methods described above,

satisfactory proof of equivalent experience

may be presented to the District and may be

accepted on an individual basis.

17. The evidence shows that Petitioner has failed to

comply with the requirements of Florida Administrative Code Rule

62 - 531.300(1)(b) and (6)(a), which requires that the applicant

submit a list of ten water wells that the applicant has

constructed, repaired, or abandoned over a 24 - month period,

together wit h copies of the related completion reports.

18. The evidence also shows that Petitioner has failed to

submit any documentary (or other) proof of equivalent

experience, as required by Florida Administrative Code Rule 62 -

531.300(1)(b) and (6)(b).

19. T herefore, the application should be denied, without

prejudice to Petitioner reapplying at a later date should he

choose to do so.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the St. Johns River Wa ter Management

District enter a final order denying Petitioner's application to

sit for the water well contractor examination.

DONE AND ENTERED this 25th day of January, 2005, in

Tallahassee, Leon County, Florida.

S

DONALD R. ALEXANDER

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 He arings

this 25th day of January, 2005.

ENDNOTE

1/ The completion reports attached to Petitioner's application

were taken from the files of the Suwannee River Water Management

District, which is apparently able to retrieve reports by name

of the contrac tor and without the additional level of detail

required by the St. Johns River Water Management District.

COPIES FURNISHED:

Anthony G. Roberts

Post Office Box 638

Glen St. Mary, Florida 32040 - 0638

Patrick W. Krechowski, Esquire

St. Johns River Water Ma nagement District

Post Office Box 1429

Palatka, Florida 32178 - 1429

Kirby Green, Executive Director

St. Johns River Water Management District

Post Office Box 1429

Palatka, Florida 32178 - 1429

NOTICE OF RIGHT TO FILE EXCEPTIONS

All parties have the righ t to submit written exceptions within

15 days of the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will render a final order in this matter.