08-001494 Michael Oberstein vs. Electrical Contractors` Licensing Board Status: Closed Recommended Order on Tuesday, March 31, 2009.

Summary: Petitioner did not prove that the criteria for a master electrician`s license for New York City was substantially similar to criteria for an electricial contractor license in Florida in 1990. The application for license by endorsement should be denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL OBERSTEIN, )

)

Petitioner, )

)

vs. ) Case No. 08-1494

)

ELECTRICAL CONTRACTORS' )

LICENSING BOARD, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

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

on January 5, 2009, by video teleconference, with the parties

appearing in Fort Lauderdale, Florida, before Patricia M. Hart,

a duly-designated Administrative Law Judge of the Division of

Administrative Hearings, who presided in Tallahassee, Florida.

APPEARANCES

For Petitioner: Michael Oberstein, pro se

8960 Northwest 13th Street

Plantation, Florida 33322

For Respondent: Michael T. Flury, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

Whether the Petitioner's application for licensure by

endorsement as a Florida certified electrical contractor should

be granted or denied for the reasons set forth in the Notice of

Intent to Deny dated February 28, 2008.

PRELIMINARY STATEMENT

In a Notice of Intent to Deny dated February 28, 2008, the

Electrical Contractors' Licensing Board ("Board") notified

Michael Oberstein that his application for licensure by

endorsement was denied because he had failed to demonstrate that

the examination he took to obtain his New York City Master

Electrician License were substantially similar to or more

stringent than the examination given in Florida at the time he

took the examination in New York City; that he had failed to

demonstrate that his New York City license is issued based on

criteria that were substantially similar to the criteria for

certification in Florida at the time he obtained his New York

City license; and that he had failed to demonstrate that he

passed a national, regional, state, or United States territorial

licensing examination that is substantially equivalent to the

examination required by Chapter 489, Part II, Florida Statutes

(2008). 1 Mr. Oberstein timely requested a formal administrative

hearing, and the Board transmitted the matter to the Division of

Administrative Hearings for the assignment of an administrative

law judge. After several continuances, the final hearing was

held pursuant to notice on January 5, 2009. At the hearing,

Mr. Oberstein specifically limited the basis on which he seeks

licensure by endorsement in Florida to Section 489.511(6)(b),

Florida Statutes.

Mr. Oberstein testified in his own behalf and presented the

testimony of Julia Gould; Petitioner's Exhibits 1 through 19

were offered and received into evidence. The Board presented

the testimony of Clarence Tibbs; Respondent's Exhibits A and B

were offered and received into evidence. On January 13, 2009,

Mr. Oberstein filed a Motion for Inclusion of Additional

Petitioner's Exhibits 20, 21, 22, and 23, requesting that these

additional exhibits be received into evidence because they would

assist the trier of fact in understanding that the criteria for

licensure in New York City in 1990 were substantially similar to

the criteria for licensure in Florida in 1990. The Board filed

a response in opposition to the motion. The record of this

proceeding was closed at the conclusion of the hearing on

January 5, 2009. Mr. Oberstein did not request at that time

that the record be held open for the submission of additional

exhibits. Because the hearing is concluded and the record

closed, the Board did not have the opportunity to review these

additional documents and question Mr. Oberstein on their

significance. As a result, although it does not appear that the

Board will be actually prejudiced by the admission of these

exhibits, the potential for prejudice exists. Mr. Oberstein's

motion is, therefore, denied.

The one-volume transcript of the proceeding was filed on

February 2, 2009, and the parties timely filed proposed findings

of fact and conclusions of law, which have been considered in

the preparation of this Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of this proceeding, the

following findings of fact are made:

1. The Board is the entity that is responsible for

certifying applicants to the Department of Business and

Professional Regulation (Department") for licensure as

electrical contractors, including applicants for licensure as

electrical contractors. § 489.511(6), Fla. Stat.

2. Mr. Oberstein was licensed in October 1990 by the City

of New York City, New York, as a Master Electrician, and he was

in business as a master electrician in New York City until the

present. New York State has no statewide electrician's license.

3. On August 21, 2007, Mr. Oberstein applied to the

Department for Florida licensure by endorsement as an electrical

contractor.

4. The electrical contractor examination in New York City

in 1990 consisted of three parts. The first part was a four-

hour examination containing 50 multiple-choice questions and

five essay questions in which the applicants were required to

draw conduits and conductors for light, heat, and power in

buildings, with applicable calculations in compliance with

electrical code requirements. The examination candidates were

not allowed to use calculators or any books during the

examination. The second part of the examination was a four-hour

practical examination in which candidates were required to

conduct actual wiring of control devises, testing and wiring of

magnetic starters, testing and meggering of panels and circuits,

wiring diagrams for instrument transformers, wiring and testing

high and low voltage connections and motors, and blueprint

readings, among other things. The examination included some

questions in the written portion of the examination on business

operations and basic business law, but there was no separate

section on this subject, and the percentage of questions on

business practices was low. The minimum passing score for the

examination was 70 percent.

5. Although specific information about the electrical

contractors examination administered in Florida in 1990 are not

available, 2 the examination administered in or about 1990

consisted of 150 multiple choice questions administered over a

period of eight hours. The examination included a three-hour

component containing 50 multiple-choice questions on business

practices. Examination candidates were allowed to refer during

the examination to a number of books, including the National

Electric Code, and were allowed to use calculators.

6. The evidence submitted by Mr. Oberstein is sufficient

to establish that the master electrician's licensure examination

administered in New York City in 1990 was substantially similar

to or more stringent than the electrical contractor's license

administered in Florida in or about 1990.

CONCLUSIONS OF LAW

7. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes.

8. Mr. Oberstein has applied for licensure as an

electrical contractor, and he, therefore, has the burden of

proving by a preponderance of the evidence that he meets all the

requirements for issuance of the license. See Department of

Banking & Fin. v. Osborne Stern , 670 So. 2d 932, 934 (Fla.

1996)("[W]hile the burden of producing evidence may shift

between the parties in an application dispute proceeding, the

burden of persuasion remains upon the applicant to prove her

entitlement to the license."); § 120.57(1)(j), Fla. Stat.

("Findings of fact shall be based upon a preponderance of the

evidence, except in penal or licensure disciplinary proceedings

or except as otherwise provided by statute . . . .").

9. The preponderance of the evidence standard requires

proof by "the greater weight of the evidence," Black's Law

Dictionary 1201 (7th ed. 1999), or evidence that "more likely

than not" tends to prove a certain proposition. See Gross v.

Lyons , 763 So. 2d 276, 289, n.1 (Fla. 2000)(relying on American

Tobacco Co. v. State , 697 So. 2d 1249, 1254 (Fla. 4th DCA 1997),

quoting Bourjaily v. United States , 483 U.S. 171, 175 (1987)).

10. Section 489.511, Florida Statutes, provides in

pertinent part:

5) The board shall certify as qualified for

certification by endorsement any individual

applying for certification who:

* * *

(b) Holds a valid license to practice

electrical or alarm system contracting

issued by another state or territory of the

United States, if the criteria for issuance

of such license was substantially equivalent

to the certification criteria that existed

in this state at the time the certificate

was issued.

11. Florida Administrative Code Rule 61G6-5.009 sets forth

the criteria for licensure by endorsement and provides in

pertinent part:

(1) The Department upon certification by

the Board shall issue a license by

endorsement to an electrical contractor who

submits a completed application to the

Department accompanied by the application

fee, and complies with the terms of this

rule.

(2) If the applicant seeking licensure by

endorsement engages in contracting as a sole

proprietorship, then the applicant must

demonstrate that:

(a) The applicant currently possesses a

statewide license as an electrical

contractor under the laws of another state,

and was required in order to be so licensed

to meet standards of credit, financial

responsibility, business reputation, and

necessary experience or the educational

equivalent thereof substantially similar to

or more stringent than those required for

licensure by Florida law and these rules;

and

(b) The out-of-state license was issued

upon the satisfactory completion of an

examination substantially similar to or more

stringent than the examination given by the

Department.

(c) If applicant is applying pursuant to

Section 489.511(6)(b), F.S., he or she must

demonstrate that the criteria for issuance

of the license was substantially equivalent

to the certification criteria that existed

in this state at the time the certification

was issued.

(3) If the applicant seeking licensure by

endorsement engages in contracting as a

partnership, corporation, business trust, or

other legal entity, then the applicant must

demonstrate that:

(a) The applicant currently possesses a

statewide license as an electrical

contractor under the laws of another state,

and was required in order to be so licensed

to meet standards of credit, financial

responsibility, and business reputation

substantially similar to or more stringent

than those required by Florida law and these

rules; and

(b) The out-of-state license was issued

upon the satisfactory completion of an

examination by the applicant's qualifying

agent which examination is substantially

similar to or more stringent than the

examination given by the Department; and

(c) The qualifying agent of the applicant

was required under the laws of the other

state to possess; and

(d) If applicant is applying pursuant to

Section 489.511(6)(b), F.S., he or she must

demonstrate that the criteria for issuance

of the license was substantially equivalent

to the certification criteria that existed

in this state at the time the certification

was issued.

(4) An applicant seeking endorsement under

subsection (2) or (3) must also demonstrate

that applicant has an active license and has

met all requirements for electrical or alarm

contracting in the state, and that there are

no outstanding or unresolved complaints

filed against the applicant in the other

state.

(5) The Department and the Board are

authorized to investigate for the purpose of

corroborating any of the information

submitted pursuant to this rule.

12. The Board refused to certify Mr. Oberstein for

licensure as an electrical contractor in Florida on the grounds

that he did not establish that the New York City Master

Electrician license issued to him in 1990 was issued by another

state or territory or was based on substantially similar

criteria as the Florida electrical contractor's license in 1990.

Pursuant to Florida Administrative Code Rule 61G6-5.009, the

Board considers "substantially equivalent" criteria to include

"standards of credit, financial responsibility, and business

reputation substantially similar to or more stringent than those

required by Florida law and these rules."

13. First, New York City is neither a state nor a

territory of the United States. However, in the absence of a

statewide electrician licensing program in New York State, and

given the obvious sophistication of the licensure process for

New York City, the fact that New York City is neither a state

nor a territory should not prevent Mr. Oberstein from qualifying

for a Florida electrical contractor's license if he meet the

other criteria in Section 489.511(6)(b), Florida Statutes, and

Florida Administrative Code Rule 61G6-5.009.

14. Mr. Oberstein proved by a preponderance of the

evidence that the examination he passed in New York City was

substantially similar to or more stringent than that

administered in Florida in or about 1990. He did not, however,

present evidence regarding the standards of credit, financial

responsibility, and business reputation that were required for

licensure in New York City. Accordingly, Mr. Oberstein has

failed to carry his burden of proving by a preponderance of the

evidence that he meets the criteria for licensure by endorsement

in Section 489.511(6)(b), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Electrical Contractor's

Licensing Board deny the application of Michael Oberstein for

licensure by endorsement as an electrical contractor.

DONE AND ENTERED this 31st day of March, 2009, in

Tallahassee, Leon County, Florida.

___________________________________

PATRICIA M. HART

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 31st day of March, 2009.

ENDNOTES

1 / All references herein to the Florida Statutes are to the 2008

edition unless otherwise indicated.

2 / The Board suggests that Mr. Oberstein has failed in his

burden of proof because he could not produce details of the

Florida 1990 electrical contractor examination. This position

is untenable because the details of the examination could be

available only to the Board, and there is apparently no way

Mr. Oberstein could have access to this information.

COPIES FURNISHED:

Michael T. Flury, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Michael Oberstein

8960 Northwest 13th Street

Plantation, Florida 33322

Michael Oberstein

65-59 Parsons Boulevard

Flushing, New York 11365

Anthony B. Spivey, Executive Director

Electrical Contractors Licensing Board

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Ned Luczynski, 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.