06-001509 Jan Varga vs. Board Of Building Code Administrators And Inspectors Status: Closed Recommended Order on Thursday, December 7, 2006.

Summary: Petitioner`s limited plans examiner`s license expired, and she is meeting the qualifications for certification as a mechanical plans examiner, except for unknowingly practicing plans examinations without a license. Recommend that the petition be granted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAN VARGA, ) )

)

Petitioner, )

) Case No. 06-1509

vs. )

)

BOARD OF BUILDING CODE )

ADMINISTRATORS AND INSPECTORS, )

)

Respondent. )

RECOMMENDED ORDER

A formal administrative hearing was conducted before

Daniel M. Kilbride, Administrative Law Judge of the Division of

Administrative Hearings (DOAH) on June 20, 2006, in Melbourne,

Florida.

APPEARANCES

For Petitioner: Jan Varga, pro se

400 Jonquil Lane

Melbourne, Florida 32901

For Respondent: Jeffrey D. Jones, Esquire

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

Whether Petitioner's application for licensure in the

category of mechanical plans examiner should be approved.

PRELIMINARY STATEMENT

On June 10, 2005, the Building Code Administrators and

Inspectors Board ("the Board") denied Petitioner's application

to obtain certification as a mechanical plans examiner. The

denial was based on Petitioner's alleged performance of

unlicensed activity in violation of the provisions of

Chapter 468, Florida Statutes (2004). 1 The Board concluded that

Petitioner had not met her burden of establishing her

entitlement to a license. Petitioner requested a formal

administrative hearing to contest the denial of her application.

Petitioner also sought to have her limited plans examiner

license reinstated. However, that issue is not properly before

this tribunal. The case was referred to DOAH to conduct an

evidentiary hearing.

At the hearing, Petitioner offered the testimony of

Koert Van Wormer, deputy building official for the City of

Melbourne, Florida, and testified in her own behalf. Nine

exhibits were admitted into evidence. Respondent called no

witnesses and submitted no documents. Official recognition was

taken of Chapters 455 and 468, Part XII, Florida Statutes, and

Florida Administrative Code Rule 61G19-5.

The Transcript of the hearing was filed with DOAH on

July 7, 2006. Petitioner submitted her Proposed Recommended

Order on July 10, 2006. Respondent filed its Proposed

Recommended Order also on July 10, 2006. Both have been

carefully considered in the preparation of this Recommended

Order.

FINDINGS OF FACT

Based upon the testimony and evidence received at the

formal hearing, the following findings of fact are made:

1. Petitioner has been employed as a plans examiner for

the City of Melbourne (City) since 1988. Petitioner has been a

certified building plans examiner since 1994. She also holds

certification as a standard and limited building inspector.

2. Sometime in October 2003, Petitioner was informed that

her limited plans examiner license, No. LP 369, had been

permitted to expire on November 30, 1997, for failure to pay her

renewal fee. The building official in her department at the

City advised her that the renewal for the license had not been

paid since 1996. It has been the practice of her department to

automatically renew each of her licenses with the appropriate

board, each year, as it came due, as a service to its employees.

Why this one license, among several, was not renewed is unknown.

3. After notification of the expiration of her limited

plans examiner license, Petitioner immediately discontinued the

review of electrical, mechanical, and plumbing plans and

contacted the Department of Business and Professional Regulation

(DBPR), reported the oversight, and requested directions on how

to reinstate the limited plans examiner license, No. LP 369.

4. No response was forthcoming; however, on October 27,

2003, DBPR issued an unsigned Notice and Order directed to

Petitioner to cease and desist practicing as a limited plans

examiner. Petitioner immediately complied and sought

reinstatement. No formal disciplinary action was taken;

however, reinstatement was denied on the grounds that her

license had become null and void on November 30, 1997, pursuant

to the self-executing language contained in Section 455.271,

Florida Statutes.

5. On January 3, 2005, Petitioner submitted an application

to DBPR as a mechanical plans examiner. By Notice of Intent to

Deny, dated July 18, 2005, DBPR notified Petitioner that it

intended to deny Petitioner's application for licensure as a

mechanical plans examiner. Citing Sections 468.607, 468.609,

and 468.621, Florida Statutes, Respondent alleged that

Petitioner did not have five years of combined experience in the

field of construction, or a related field, or plans review

corresponding to building plan review; that Petitioner did not

provide an affidavit for each separate period of work experience

from an architect, engineer, contractor, or building code

administrator who has knowledge of Petitioner's duties and

responsibilities; that Petitioner was employed by a local

government authority without being properly licensed; and that

she performed unlicensed activities in violation of the

provisions of Chapter 468, Florida Statutes.

6. Petitioner has shown that she satisfied the following

requirements for licensure as a mechanical plans examiner. The

evidence shows that:

a. Petitioner is more than 18 years of age and is of good

moral character;

b. Petitioner has more than five years of combined

experience in the field of construction and plans review; and

c. Petitioner's application provided an affidavit for each

separate period of work experience from a building code

administrator who has knowledge of Petitioner's duties and

responsibilities.

7. Petitioner has more than adequate time in plans review,

she did submit an affidavit of work experience signed by her

building code administrator, and the administrator has a

thorough knowledge of her duties. Building Official Alan Beyer,

BU 383, certified to her years of plans review.

8. Petitioner has been reviewing plans for the City since

1988. In 1994, based on her prior experience, Petitioner

received a license as a limited plans examiner. Said license

was allowed to expire through non-renewal and became void on

November 30, 1997. Petitioner continued to perform her job

until she was notified in October 2003 that her license had

expired. Petitioner immediately discontinued the review of

electrical, mechanical, and plumbing plans. Nevertheless,

Petitioner performed activities during the period of 1997

through 2003, for which she was not licensed. However, the

evidence is clear that Petitioner did not knowingly do so.

9. Respondent has been previously licensed by Petitioner

as a limited building inspector, a standard building inspector,

and a standard building plans examiner. Each of these licenses

has been maintained and is current, including the standard

building plans examiner license, No. PX 838. Petitioner has no

history of discipline in any of these areas, since 1993, the

year the state first began to regulate this occupation.

10. Petitioner has kept current the continuing educational

requirements for each category for which she holds a license,

including that of limited plans examiner.

11. The subcategory of plumbing plans examiner was

recently added to the standard building plans examiner license

already held by Respondent. This subcategory required the same

work experience (five-year combined experience) and affidavits

signed by a building code administrator. The Board approved

this addition to Petitioner's license.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding pursuant to Chapters 455 and 468, Section 120.569,

and Subsections 120.57(1) and 120.60(5), Florida Statutes

(2006).

13. From 1994 until November 30, 1997, Petitioner was

licensed as a limited plans examiner, License No. LP 369,

pursuant to Subsection 468.609(6), Florida Statutes. It is

Respondent's position that because the license was allowed to

expire, through non-payment of the renewal fee, Petitioner's

limited plans examiner license became null and void, under the

provisions of Section 455.271, Florida Statutes. Petitioner now

seeks to have that license reinstated. However, that

determination was not challenged and is not properly before this

tribunal. Petitioner filed an application to be certified as a

mechanical plans examiner, and that application was denied, by

Notice of Intent to Deny dated July 20, 2005. The propriety of

that notice is the only issue properly before this tribunal.

14. Petitioner bears the ultimate burden of proving

entitlement to a license. Antel v. Department of Professional

Regulations, Florida Real Estate Commission , 522 So. 2d 1056

(Fla. 5th DCA 1988); Florida Department of Transportation v.

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

15. Section 468.607, Florida Statutes, provides that no

person may be employed by a state agency or local governmental

authority to perform the duties of a building code

administrator, plans examiner, or building code inspector

without being properly licensed. See also § 468.609(4), Fla.

Stat.

16. Subsection 468.609(2), Florida Statutes, governs

standards for certification as a building code inspector or

plans examiner and states that a person shall be entitled to

take the examination for certification as a plans examiner if

the person:

(a) Is at least 18 years of age.

(b) Is of good moral character.

(c) Meets eligibility requirements

according to one of the following criteria:

1. Demonstrates 5 years combined

experience in the field of construction or a

related field, building code inspection, or

plans review corresponding to the

certification category sought. . . .

17. Petitioner is more than 18 years of age and is of good

moral character and meets the requirement for certification as

an inspector or plans examiner with five years of combined

experience in the field of construction or a related field,

building code inspection, or plans review corresponding to the

certification category sought, as set forth in Section 468.609,

Florida Statutes.

18. Respondent previously licensed Petitioner in a

category with substantially the same requirements as those at

issue in this proceeding.

19. However, Section 468.621, Florida Statutes, provides

that the Board may deny an application for licensure for

violating or failing to comply with any provision of Part XII of

Chapter 468, Florida Statutes.

20. Petitioner has shown by a preponderance of the

evidence that she satisfies each of the criteria for licensure,

under Subsection 468.609(2), Florida Statutes, except that she

violated or failed to comply with the provision in Part XII of

Chapter 468, Florida Statutes (between 1997 and 2003), which

required her to keep her limited plans examiner's license

current. The evidence shows that Petitioner continued to act as

a plans examiner during the expiration period (1997 to 2003).

21. Petitioner had a duty to ensure that her license as a

limited plans examiner remained current. However, the evidence

is clear that she did not let it expire knowingly. This fact

should not preclude Respondent from permitting Petitioner to

seek certification as a mechanical plans examiner. See

generally Mogavero v. State of Florida , 744 So. 2d 1048 (Fla.

4th DCA 1999).

22. Although Respondent has the authority take

disciplinary action against Petitioner for failure to comply

with a provision of Part XII of Chapter 468, Florida Statutes,

it has the discretion not to act under appropriate

circumstances. See § 468.621(1), Fla. Stat. In view of the

hyper-technical violation committed by Petitioner, Respondent

should exercise its discretion and allow Petitioner's

application to move forward.

23. When she learned that her limited plans examiner's

license had expired, Petitioner self-reported the violation.

Petitioner ceased plan review in the electrical, mechanical, and

plumbing categories (until the recent license as plumbing plans

examiner was added as a subcategory of the standard building

plans examiner license) and has maintained the continuing

educational requirements since 1994, as required by Respondent,

to qualify for license renewal. There is no evidence that

Petitioner committed any act of misconduct in her entire

professional career.

24. The evidence indicates that the limited plans examiner

license, No. LP 369, was not renewed due to an honest oversight

by City staff since all of her other licenses were renewed. No

harm has occurred to the public as a result of this oversight.

Petitioner has been proactive in seeking to rectify this

oversight in her licensing history.

25. Although Florida Administrative Code Rule 61G19-5.005

does not apply in this case, it provides guidance. The Rule

reads as follows:

When considering a licensee's application

for reinstatement or recertification, the

Board shall consider the following criteria

in evaluating the applicant's eligibility

for such action: (1) the nature and

severity of the offense for which the

certificate was suspended; (2) evidence of

any acts committed subsequent to the act for

which the certificate was revoked; (3) the

time elapsed since the act for which the

license was revoked; (4) the extent to which

the applicant has complied with any

sanctions or penalties lawfully imposed upon

him; (5) evidence of rehabilitation

submitted by the applicant; (6) any legal or

administrative action pending against the

applicant; and (7) corrective action taken

to rectify violation.

26. Petitioner's offense was a technical violation;

Petitioner acted promptly to rectify the violation; and

Petitioner has demonstrated extensive qualifications as a plans

examiner, without any disciplinary action taken against any of

her licenses. Therefore, Petitioner should be permitted to

complete the requirements for the mechanical plans examiner

license.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Respondent enter a final order granting

Petitioner's request to complete the requirements for future

standard licensing as a mechanical plans examiner.

DONE AND ENTERED this 7th day of December, 2006, in

Tallahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

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 7th day of December, 2006.

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida

Statutes shall be to the 2004 version.

COPIES FURNISHED :

Jeffrey D. Jones, Esquire

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Jan Varga

400 Jonquil Lane

Melbourne, Florida 32901

Robyn Barineau, Executive Director

Building Code Administrators

and Inspectors

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Josefina Tamayo, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

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.