14-005089 Gary Rosen vs. Department Of Business And Professional Regulation Status: Closed Recommended Order on Tuesday, February 10, 2015.

Summary: Petitioner satisfies the requirements for recognition as a national association and should be allowed to apply for certification of its testing instruments as acceptable for use in the state's mold-related services licensing program.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GARY ROSEN,

Petitioner,

vs. Case No. 14 - 5089

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION,

Respondent.

_______________________________/

RECOMMENDED ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference on

December 17, 2014 , at sites in Tallahassee and Lauderdale Lakes,

Florida.

APPEARANCES

For Petitioner: Gary Rosen, pro se

2881 West Lake Vista Circle

Davie, Florida 33328

For Respondent: Thomas Hugh Campbell, Esquire

Brittany B. Griffith, Esquire

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399 - 2202

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner 's application

for certification of its proprietary testing instruments , which

are designed to measure minimum competency in mold assessment

and remediation, as "national examinations" acceptable for use

in the state's mold - related services licensing progr am should be

denied for failure to provide a sufficient factual basis for

Respondent to make a finding as to whether Petitioner satisfies

the requirements for recognition as a national or multi - state

professional association .

PRELIMINARY STATEMENT

By a le tter dated September 24, 2014 , Respondent Department

of Business and Professional Regulation notified Petitioner Gary

Rosen that it intended to deny his organization's application

for certification of the National Association of Environmentally

Responsible Mold Contractors' testing instruments as "national

examinations" acceptable for use in the state's mold - related

services licensing program. As grounds for this intended

action, the Department stated that the information provided in

the Examination Evalua tion Questionnaire, Part A, which

Dr. Rosen had filled out and submitted, failed in the

Department's eyes to support a "finding that [the applicant] is

a national or multi - state professional organization."

Dr. Rosen timely requested a formal administrative hearing .

On October 27, 2014 , the Department referred the matter to the

Division of Administrative Hearings, where the case was assigned

to an a dministrative l aw j udge.

The final hearing took place as scheduled on December 17 ,

20 14 , with both parties present. Dr. Rosen testified on his

organization's behalf and offered no exhibits . The Department

presente d the testimony of its employee Alex Bosque, who works

in the Department's Bureau of Education and Testing. In

addition, Respon dent's Exhibits 1 through 4 were received in

evidence without objection.

The final hearing transcript was filed on January 22, 20 15 .

Each party timely submitted a Proposed Recommended Order on or

before February 2, 2015 , in accordance with the schedule

es tablished at the conclusion of the hearing. 1 /

Unless otherwise indicated, citations to the Florida

Statutes refer to the 20 14 Florida Statutes, and all references

to rules are to the versions in effect as of the date hereof.

FINDINGS OF FACT

1. Petitioner Gary Rosen ("Rosen") is the president of a

Florida corporation named Certified Mold Free Corp. ("CMF") ,

which in turn controls a wholly owned, unincorporated subsidiary

or division known as the National Association of Environmentally

Responsible Mold Cont ractors ("NAERMC"). CMF h as developed two

examinations for NAERMC ÏÏ the Florida Mold Assessor Licensing

Exam and the Florida Mold Remediator Licensing Exam ÏÏ which,

Rosen asserts, reliably measure a person's ability to practice,

respectively, as a mold assessor and mold remediator. Rosen

wants Respondent Department of Bu siness and Professional

Regulation (the "Department" or "DBPR") to certify each of these

instruments as a "national examination" so that a passing score

on either test would satisfy a requirement for licensure under

Florida's mold - related services licensin g program, which

operates under chapter 468, part XVI, Florida Statutes.

2. To be eligible for certification as a national

examination, a test must have been developed by or for a

"national or multi - state professional association" ÏÏ

"organization" for sh ort. See Fla. Admin. Code R. 61 - 11.015(1).

An organization that wants DBPR to certify its test as a

national examination must submit, seriatim, the separate parts

of a two - stage application, namely Form DBPR - BET 001, titled

"Examination Evaluation Questi onnaire, Part A," and Form DBPR -

BET 002, titled "Examination Evaluation Questionnaire, Part B." 2 /

On April 29, 2014, Rosen submitted Part A of the application to

the Department, on behalf of NAERMC.

3. By letter dated June 2, 2014, the Department notified

Rosen that NAERMC's application was incomplete, and it requested

additional information pursuant to section 120.60(1), Florida

Statutes. Among other things, the Department asked NAERMC to

give a better answer to Question No. 13 by "provid[ing] a list

of individual members in the association, by State, who have

been licensed or certifi ed through a NAERMC examination." 3 /

4. Rosen promptly submitted a revised version of NAERMC's

application, which contained the following response to Question

No. 13:

13 Include a list of the number of

individual members in the association,

by State, who have been licensed or

certified through this examination.

California 87 (One of the State of

California Technical Training Schools has

been using our mo ld training and

certification program for many years.)

Florida 78 (Based on 2014 Mold CE training)

Georgia 1

Maryland 1

Massachusetts 1

Michigan 3

New Hampshire 1

New Jersey 5

New York 6

North Carolina 2

Ohio 2

Pennsylvania 6

South Carolina 1

Texas 2

Virgi nia 2

There is no dispute about the truthfulness of NAERMC's response,

and no question concerning its completeness has been raised. It

is determined, as a matter of ultimate fact, that NAERMC fully

answered Question No. 13, supplying the Department with all of

the information about NAERMC's membership that the Department

had requested via Form DBPR - BET 001.

5. By letter dated September 24, 2014, the Department

informed Rosen that it intended to deny NAERMC's application

based on the following:

As a thr eshold issue, prior to evaluating

your examination to determine if it meets

the standards for licensure examinations,

the Department is required to assess whether

your organization meets the criteria of a

national or multi - state professional

association, b oard, or society. As mandated

by Rule 61 - 11.015(1), of the Florida

Administrative Code, "[t]he organization

must be generally recognized by

practitioners across the nation in the form

of representatives from the State Boards or

shall have membership repre senting a

substantial number of the nation's or

states' practitioners who have been licensed

through the national examination."

The Department is unable to find from the

facts submitted in your revised application

a basis for determining that the National

Association of Environmentally Responsible

Mold Contractors (NAERMC) meets the above

requirements to be certified as a national

or multi - state professional organizati on.

The insufficient factual basis for a findi ng

that NAERMC is a national or multi - state

professional organization is a dispositive

issue that precludes the Department from

approving your application.

(Emphasis added.)

6. At hearing, Rosen asserted that NAERMC has "membership

representing a substa ntial number of the nation's or states'

practitioners who have been licensed [or certified] through

[NAERMC's] national examination," which if true would be

sufficient to satisfy the "membership requirement " of rule 61 -

11. 0 15(1)(a). At the same time, he d isclaimed reliance upon the

alternative means of meeting this rule's standards , which

entails a demonstration ÏÏ namely, of the organization's

widespread recognition "in the form of representatives from the

State Boards" ÏÏ that NAERMC evidently is unable to make.

Accordingly, no further findings regarding , or conclusions

about, the "recognition standard" are necessary.

7. The only question on the application by which DBPR

asked NAERMC for information relevant to a determination of

whether NAERMC meets the m embership requirement is Question

No. 13 , which, as found above, NAERMC answered fully and

honestly. Apart from this single question, DBPR never requested

any additional information from NAERMC bearing directly on the

membership requirement.

8. Question No. 13 , it should now be noted, subtly loosens

the membership requirement as stated in rule 61 - 11. 0 15(1)(a) by

requesting the applicant to identify the number of its members

who have been "licensed or certified " through the organization's

examination rath er than just those who have been " licensed "

through the examination . DBPR uses the term "certified" in this

context to refer to practitioners who have received a

certificate from the applicant through passage of the

organization's examination. 4 / This is significant because the

only state besides Florida that presently issues licenses to

providers of mold - related services is Texas. For ease of

reference, the undersigned will use the term "certified

practitioner " as shorthand for an individual who has been

licensed or certified through an applicant - organization 's

examination.

9. In response to Question No. 13, NAERMC told the

Department that it has 198 members who are certified

practitioners , and that these members are distributed among 14

states. The Department did not find, based on this information,

that NAERMC is not a national or multi - state professional

association; rather, it determined that NAERMC's answer to

Question No. 13 afforded an "insufficient factual basis for a

finding that NAERMC" meets the membership requirement. The

Department is technically correct in this regard, but the fault

is plainly not NAERMC's; the problem is that Question No. 13,

which NAERMC completely answered, fails to request all of the

information necessary to det ermine whether any organization (not

just NAERMC) meets the membership requirement. Simply put, a

complete answer to Question No. 13 will never afford a

sufficient factual basis for a finding that the applicant's

membership comprises , or fails to comprise , a substantial number

of the nation's or states' certified practitioners (unless the

applicant happens to answer "0") .

10. The membership requirement compels an evaluation of

the relationship between several sets. The first, " set A, "

is the applicant's entire membership; that is, all of the

applicant's members are elements of A. The second, " set B, " is

composed of all certified practitioners. The intersection of

sets A and B ÏÏ i.e., the set of all objects that are elements of

both A and B ÏÏ c an be called " set C . " Set C, in other words,

comprises all individual members of the organization who are

certified practitioners.

11. Whether set C contains a "substantial number" of the

elements of set B cannot be determined without knowing how many

e lements set B has ; it is impossible to quantify a ratio with

just one number . Here, Question No. 13 asks only for the number

of objects in set C, which is the numerator in the relevant

fraction. It does not request the denominator, i.e., the number

of ob jects in set B , which is necessary for a decision regarding

how much of B is represented in C . Question No. 13 is,

therefore , facially defective.

12. Turning to the specific facts of this case, no one

could determine, bas ed up on the information that DB PR requested

in the application, whether the 198 members of NAERMC who are

certified practitioners represent a substantial number of all of

the nation's or states' certified practitioners.

13. At hearing , Rosen testified credibly that everyone who

tak es and passes one of NAERMC's examinations is automatically a

member of NAERMC. In reviewing NAER M C's application, the

evidence shows, DBPR decided that there is no "ongoing

relationship" between NAERMC and its members and therefore that

the organization , in effect, has no bona fide members. The

Department, however, never asked NAERMC whether it has an

"ongoing relationship " with its members; rule 61 - 11.015(1)(a)

does not explicitly require an "ongoing relationship" between an

organization and its member s ; and the Department did not, in its

letter of September 24, 2014, state this alleged deficiency with

particularity as a basis for the intended denial of NAERMC's

request for certification. In addition, DBPR failed to produce

any persuasive evidence in s upport of its assertion that

NAERMC's members do not enjoy an "ongoing relationship" with

NAERMC. Rosen's persuasive testimony is credited, and it is

found that NAERMC's membership includes all individuals who are

certified practitioners.

14. With this a dditional information, which the Department

had not requested anytime during the application process , a

finding can be made that NAERMC's membership does, in fact,

comprise a substantial number of the country's certified

practitioners; indeed, NAERMC's mem bership represents all of the

states' practitioners who have been licensed or certified

through NAERMC's examinations. Put differently , recalling the

discussion above, sets C and B contain the same elements; the

ratio is 1:1. By any measure, a subset con taining 100 percent

of a group represents a "substantial number" of that group.

15. It is determined as a matter of ultimate fact that

NAERMC satisfies the membership requirement of rule 61 -

11.015(1)(a), contrary to the grounds for denial that DBPR set

fo rth in the letter dated September 24, 2014.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

s ections 120.569 and 120.57(1), Florida Statutes.

1 7. As the applicant for certification of its national

examinations , 5 / NAERMC has the ultimate burden of persuasion and

must pro ve , by a preponderance of the evidence, that N A ERMC and

its examinations meet all applicable statutory and rule

requirements. § 120.57(1)(j), Fla. Stat.; see Fla. Dep't of

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

18 . The licensi ng agency has burdens of its own .

Section 120.60(3) provides as follows:

(3) Each applicant shall be given written

notice, personally or by mail, that the

agency intends to grant or deny, or has

granted or denied, the application for

license. The notice must state with

particularity the grounds or basis for the

issuance or denial of the license , except

when issuance is a ministerial act. Unless

waived, a copy of the notice shall be

delivered or mailed to each partyÓs attorney

of record and to each person who has made a

written request for notice of agenc y action.

Each notice must inform the recipient of the

basis for the agency decision . . . .

(Emphasis added.) Thus, it is "the Department's burden to

provide specific reasons for the denial and to produce

competent, substantial evidence to support those reasons." N.W.

v. Dep't of Child. & Fam. Servs. , 981 So. 2d 599, 601 (Fla. 3d

DCA 2008).

19 . Section 120.60(1) further provides that "[a]n agency

may 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" 30 days after receiving

its application "of any apparent errors or om issions and

request[ed]" additional information as permitted by law.

20 . Section 455.217(1)(a) , Florida Statutes, requires DBPR

to ensure that professional licensure examinations ad equately

and reliably measure potential licensee s ' abilit ies to practice

the various professions that the Department regulates.

So - called "national examinations" may be approved for this

purpose. § 455.217(1)(d) , Fla. Stat . B efore a n ational

examination can be used as a tool for ascertaining fitness for

licensure, however, DBPR must certif y that the test satisfies

the require ments of national examinations and generally accepted

testing standards. Id.

21 . The Department has adopted Florida Administrative Code

Rule 61 - 11.015, titled "Definition of a National Examination,"

w hich establishes the criteria an examination must meet to be

considered a "national examination." The rule provides in

pertinent part as follows:

(1) A national examination is an

examination developed by or for a national

or multi - state professional ass ociation,

board, council, or society (hereinafter

referred to as organization) and

administered for the purpose of assessing

entry level standards of practice necessary

to protect the health, safety, and welfare

of the public from incompetent practice and

meets the following standards:

(a) The organization must be generally

recognized by practitioners across the

nation in the form of representatives from

the State Boards or shall have membership

representing a substantial number of the

nation's or states' practitioners who have

been licensed through the national

examination .

(Emphasis added.)

22. In this case, the Department gave NAERMC notice of its

intent to deny certification based upon NAERMC's purported

failure to provide a sufficient "factual basis for a finding

that NAERMC is a national or multi - state professional

association" meeting the requirements of rule 61 - 11.015(1)(a).

NAERMC, however, had provided all of the information that the

Department had requested . As explained above, the insufficiency

of the information NAERMC had provided was due, not to any error

or omission on NAERMC's part, but to the Department's faulty

application, whose Question No. 13 fails to request necessary

facts, i.e., the n umber of certified practitioners (including

those who are not NAERMC members) in each of the states where

any are located. DBPR never asked NAERMC to provide this

information, and thus the agency is prohibited under

section 120.60(1)(a) from denying NAERM C's application for

failure to supply such information.

23. As it happened, NAERMC came forward with the necessary

facts at hearing, establishing that, more likely than not, a

substantial number of the nation's or states ' practitioners who

have been lice nsed or certified through NAERMC's examinations

are members of NAERMC. Thus, NAERMC proved that it meets the

requirements of rule 61 - 11.015(1)(a), contrary to the particular

reasons for denial set forth in the Department's notice of

intended action dated September 24, 2014.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Business and

Professional Regulation enter a f inal o rder approving NAERMC's

Examination Evaluation Questionnaire, P art A, and directing that

NAERMC be sent Part B of the application .

DONE AND ENTERED this 10th day of February , 20 15 , in

Tallahassee, Leon County, Florida.

S

___________________________________

JOHN G. VAN LANINGHAM

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 d ay of February , 20 15 .

ENDNOTES

1 / Shortly after the final hearing, Dr. Rosen filed documents

that had not been offered or admitted as evidence, together with

a letter containing assertions or arguments based at least in

part on such materials. The Dep artment moved to strike this

submission from the file and urged the undersigned to give no

consideration to any sources of information outside of the

evidentiary record. The undersigned declines to strike

Dr. Rosen's submission from the file. Following s ection

120.57(1)(j), Florida Statutes, however, the undersigned has not

considered or relied upon anything but the evidence of record in

making the findings of fact in this case, all of which are amply

supported by competent, substantial evidence.

2 / DBP R has adopted the forms as rules, by incorporative

reference in rule 61 - 11.015(3).

3 / Understood in context, DBPR's request sought a list of the

states in which NAERMC claims to have members, together with the

number of such members per enumerated state, as opposed to the

members' names , which would not be relevant to the merits of

NAERMC's application.

4 / In its Proposed Recommended Order, the Department argues that

because no one has obtained a state license through passage of

NAERMC's examinations (w hich is an undisputed fact), NAERMC

cannot satisfy the membership requirement. The undersigned

rejects this argument as contrary to the plain language of

Question No. 13, which the Department has adopted as a rule, see

Fla. Admin. Code R. 61 - 11.015(3), an d the Department's

application of rule 61 - 11.015(1)(a) in practice. Mr. Bosque's

testimony on behalf of DBPR, taken as a whole ÏÏ and despite some

equivocation ÏÏ supports the finding in the text about DBPR's

understanding and application of the term "certifi ed," which is

not synonymous with "licensed" for this purpose.

5 / The certification Petitioner seeks in this proceeding is a

license under section 120.52(10), Florida Statutes.

COPIES FURNISHED :

Gary Rosen

2881 West Lake Vista Circle

Davie, Florida 33328

Thomas Hugh Campbell, Esquire

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399 - 2202

(eServed)

Brittany B. Griffith, Esquire

Department of Business and

Professiona l Regulation

Northwood Centre

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399 - 2202

(eServed)

William N. Spicola, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399

(eServed)

G.W. Harrell, Director

Division of Professions

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399

(eServed)

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.