15-005003 Tony L. Phillips vs. Department Of Business And Professional Regulation, Construction Industry Licensing Board Status: Closed Recommended Order on Thursday, March 10, 2016.

Summary: Petitioner failed to prove by a preponderance of the evidence either that his application for certified building contractor's license should be approved or that the Board relied on unadopted rules in denying his application.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TONY L. PHILLIPS,

Petitioner,

vs. Case No. 15 - 5003

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION,

CONSTRUCTION INDUSTRY LICENSING

BOARD,

Respondent.

_______________________________/

RECOMMENDED ORDER

A final hearing was held in this case via video

teleconference between sites in Orlando and Tallahassee,

Florida, on December 16, 2015, before Suzanne Van Wyk, a duly -

assigned Administrative Law Judge of the Division of

Administr ative Hearings.

APPEARANCES

For Petitioner: Rosemary Hanna Hayes, Esquire

Hayes Law, P.L.

830 Lucerne Terrace

Orlando, Florida 32801

For Respondent: Robert A ntonie Milne, Esquire

Douglas D ell Do lan, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

STATEMENT OF THE ISSUE S

Whether PetitionerÓs application for a certified building

contractorÓs license should be granted, and whether Respondent

relied upon an unadopted rule in formulating its intended

decision to deny PetitionerÓs application, in violation of

section 120.57(1)(e), Florida Statutes (2015) . 1/

PRELIMINARY STATEMENT

On July 22, 2015, Respondent issued a Notice of Intent to

Deny PetitionerÓs application for license as a certified

building contractor.

Petitioner timely requested a hearing involving disputed

issues of material fact to contest the Notice of Intent to Deny.

The case was re ferred to the Division of Administrative Hearings

on or about September 9, 2015, and the final hearing was

scheduled for, and commenced on, December 16, 2015.

At the final hearing, Petitioner testified on his own

behalf, and PetitionerÓs Exhibits 1 throu gh 4 (including 4 - 1, 4 -

2, and 4 - 3), 6, 7 (including 7 - 1, 7 - 2, 7 - 3, 7 - 4, 7 - 5, 7 - 6, and

7F), 8, 11, and 12 were admitted into evidence. Respondent

offered the testimony of Paul Del Vecchio, who was accepted as

an expert in construction contracting and exper ience.

RespondentÓs Exhibits 1 through 3, 5 through 16, 18, and 19 were

admitted into evidence.

A two - volume Transcript of the proceedings was filed on

January 21, 2016. On February 2, 2016, the undersigned granted

an extension until February 12, 2016, for the parties to file

their proposed recommended orders. The parties timely filed

their respective Proposed Recommended Orders, which have been

taken into consideration in preparing this Recommended Order.

FINDING S OF FACT

1. Respondent, Construction I ndustry Licensing Board

(Respondent or Board), is cha rged with administering

c hapter 489, Part I, Florida Statutes, relating to construction

contracting, and issuing licenses to certified building

contractors.

2. Petitioner, Tony L. Phillips, applied to t he Board for

a certified building contractor Ós license, pursuant to

section 489.111, on March 3, 2015. Petitioner passed the

required written examination and his application was scheduled

for hearing before the Board on May 14, 2015.

3. Building contract ors are licensed to construct

commercial buildings , and single - dwelling or multiple - dwelling

residential buildings , not exceeding three stories in height.

See § 489.105(3)(b), Fla. Stat.

4. Section 489.111(2)(c)2. provides eligibility for

licensure as a construction contractor. An applicant is

eligible for licensure by examination if he or she

has a total of at least four years of active

experience as a worker who has learned the

trade by serving an apprenticeship as a

skilled worker who is able to comma nd the

rate of a mechanic in the particular trade

or as a foreman who is in charge of a group

of workers and usually is responsible to a

superintendent or a contractor or his or her

equivalent, provided, however, that at least

1 year of active experience s hall be as a

foreman. (emphasis added ).

5 . Florida Administrative Code Rule 61G4 - 15.001(2)(a),

provides the qualifications for certified building contractors,

in pertinent part, as follows:

In the case of applicants for certification

in the general or b uilding contractor

categories, the phrases Òactive experienceÓ

and Òproven experienceÓ as used in Section

489.111(2)(c)1., 2., or 3., F.S., shall be

defined to mean construction experience in

four or more of the following areas:

1. Foundation/Slabs in ex cess of twenty

thousand (20,000) square feet.

2. Masonry walls.

3. Steel erection.

4. Elevated slabs.

5. Precast concrete structures.

6. Column erection.

7. Formwork for structural reinforced

concrete. (emphasis added ).

6 . In his application, Peti tioner listed his experience as

a foreman with Jacobs Engineering Group, Inc. (Jacobs), to meet

the statutory and rule requirements for active experience in the

trade.

7 . At all times relevant hereto, Jacobs was a construction

engineering inspection consu ltant for the Florida Department of

Transportation (FDOT). Jacobs performed the inspection of

various design - build roadway projects undertaken by construction

contractors on behalf of FDOT.

8 . PetitionerÓs application included three specific

projects t o demonstrate PetitionerÓs relevant experience:

Wekiva Parkway, John Young Parkway Extension, and Baseline Road.

9 . The Wekiva Parkway project consisted of a four - lane

highway, three category one bridges, a toll gantry , and

equipment enclosure. The gene ral contractor charged with

construction of this project was the De Moya Group. Jacobs

performed the construction engineering inspection role for FDOT.

JacobsÓ role was quality control and inspection.

10 . Petitioner indicated in his application that he was

the foreman Ðcharged with overseeing the construction of the

work on the bridges, roads and related structures.Ñ

11. Jacobs employed Petitioner as a foreman of JacobsÓ

employees, who conducted inspections of construction work

performed by the De Moy a Group.

12. PetitionerÓs duties on the Wekiva project were to

perform inspections. Petitioner did not perform construction

duties, but rather inspected the construction performed to

ensure compliance with the applicable FDOT and contractual

requiremen ts. While PetitionerÓs inspection duties were vital

to ensure the soundness of the facilities under construction, he

did not perform construction work.

13. The John Young Parkway project consisted of a flyover

over State Road 441 , including a large steel girder w ith

integral pier box flyover bridge, sound walls, signalization,

sidewalks, asphalt, and reinforced earth walls. The general

contractor charged with construction of this project was

Southland Construction. Jacobs performed the construction

engi neering inspection role for FDOT.

14. Petitioner was project foreman for Jacobs on the

John Young Parkway project. As such, Petitioner was responsible

to ensure that the work was performed in accordance with the

contract documents. Petitioner did not pe rform any construction

work or supervise the constructio n workers employed by

Southland Construction.

15. As senior roadway inspector on John Young Parkway,

Petitioner had the authority to question the work of the

construction crew, and redirect work if i t was not being

performed per the contract documents or FDOT specifications. If

necessary, Petitioner, through the chain of command at Jacobs,

could stop work on the project in order to conform work to

specifications. However, Petitioner did not perform any

construction work on the project.

16. The Baseline Road project consisted of small bridges,

small animal crossings, noise walls, drainage structures and

gravity walls, signalization, curb gutters, and sidewalks. The

general contractor charged with co nstruction of this project was

C.W. Roberts Contracting. Jacobs performed the construction

engineering inspection role for FDOT.

17. On the Baseline Road project, Petitioner supervised

the inspection of all animal crossing structures, as well as the

relo cation and installation of utilities, and the movement of

traffic through the construction site.

18. Petitioner admitted that all of the technical

qualifications listed in his appl ication were earned as a

JacobsÓ employee performing the task of constructi on engineering

inspection on these three projects.

19. All of the experience Petitioner listed in his

application was in the execution of projects performed on behalf

of FDOT.

20. None of the job descriptions which Petitioner listed

in his work experien ce as road inspector, bridge inspector,

utility coordination facilitat or , environmental monitoring

personnel, and administrat or of maintenance of traffic contracts

is considered ÐconstructionÑ by the Board.

21. In fact, contracting work on roads, bridges, streets,

and highways is exempt from regulation as construction

contracting. See § 489.103(1), Fla. Stat. Thus, even the work

performed by the FDOT contractors on those three projects was

not ÐconstructionÑ subject to regulation by the Board.

22. The s ingle building or enclosed structure of any kind

that Petitioner had any involvement with over the four years of

work experience offered in his application was a one - story

concrete enclosure to house toll - reading equipment. Petitioner

did not supply any f urther information on this structure.

23. It is clear from the record that Petitioner did not

perform any of the construction work himself nor was he a

foreman on any of the construction crews. All of the work that

he performed concerned the inspection of work performed by

construction contractors.

24. Petitioner admitted that he has never built, or

supervised the construction of, a single, two, or three - story,

habitable, commercial, or residential building.

Unadopted Rules

25. Petitioner alleges that Respondent relied upon non -

rule policy in formulating its decision to deny PetitionerÓs

application, in violation of section 120.57(1)(e).

26. Section 120.57(1)(e)1. prohibits agencies from basing

agency action that determines the substantial interests o f a

party on an unadopted rule.

27. The denial of PetitionerÓs application for a building

contractorÓs license affects PetitionerÓs substantial interests.

28. A ÐruleÑ is Ðan agency statement of general

applicability that implements, interprets, or presc ribes law or

policy . Ñ § 120.52(16), Fla. Stat.

29. Agencies are required to adopt each agency statement

defined as a rule by rulemaking procedures set forth in

section 120.54. See § 120.54(1)(a), Fla. Stat.

30. Petitioner alleges Respondent maintains t hree

statements which consti tute rules, pursuant to

section 120.52(16), but which have not been adopted as rules,

pursuant to section 120.54, and relied on those statements in

formulating its decision to deny PetitionerÓs application, in

violation of secti on 120.57(1)(e).

31. First, Petitioner maintains the Board denied his

application because, on the jobs he submitted to demonstrate his

relative experience, he could not Ðhire or fireÑ contractors and

did not control the Ðmeans and methodsÑ of construction .

Because these terms are not used in the controlling statute or

rule, Petitioner argues that the Board relied upon statements of

general applicability which have not been adopted as rules. 2/

32. During the hearing on PetitionerÓs application, two of

the seven Board members, Mr. Boyette and Mr. Cathey, questioned

Petitioner about whether he had control over the Ðmeans and

methodsÑ of construction on the projects he listed in his

application. Both B oard members concluded that, on the projects

Petitioner l isted as experience relevant to the building

contractorÓs license, he did not control the Ðmeans and methodsÑ

of construction.

33. ÐMeans and methodsÑ of construction is a term of art

in the construction industry referring to the plans for

executing the w ork on a particular project. The term

encompasses scheduling differ ent aspects of a project and

directing the work of a construction crew and, sometimes,

subcontractors.

34. A construction foreman has the ability to direct a

construction crew and subcon tractors. Thus, having control of

the Ðmeans and methodsÑ of construction is integral to the job

of a construction foreman.

35. At the hearing on PetitionerÓs application, one of the

members, Mr. Boyette, questioned whether Petitioner had

authority to hi re and fire C.W. Roberts, the prime contractor on

the Baseline Road project.

36. A construction foreman may have the authority to hire

and fire members of a construction crew, depending on the size

of the job.

37. The record reflects that PetitionerÓs ap plication was

denied because he did not meet the requirements for Ðactive

experienceÑ in construction, as defined in the rule, not because

he was not empowered to hire and fire members of the

construction crew.

38. Second, Petitioner contends that the Boa rd refused to

accept an affidavit certifying his construction experience,

which is contrary to the rule requirements, thus applied an

unadopted rule in reaching its decision to deny his application.

39. Rule 61G4 - 15.001(1)(a) provides that Ð[a]ctive

exper ience in the category in which the applicant seeks to

qualify shall be verified by affidavits prepared or signed

by . . . an architect or engineer . . . who is licensed in good

standing . . . listing chronologically the active experience in

the trade, inc luding the name and address of employers and dates

of employment (which may be corroborated by investigation by the

Board).

40. Petitioner did not submit an affidavit with his

application. Respondent does not contend PetitionerÓs

application was denied for failure to include the affidavit with

his application.

41. At hearing, Petitioner introduced an affidavit from

Anthony Caruso, PetitionerÓs supervisor at Jacobs.

42. In the affidavit, Mr. Caruso certified that Petitioner

Ðhas more than four years pro ven experience as a foremanÑ in the

following areas of construction work: [f]oundation/slabs in

excess of twenty thousand (20,000) square feet, [s]teel

erection, [e]levated slabs, [p]recast concrete structures,

[c]olumn erection, and [f]ormwork for struct ural reinforced

concrete (six of the seven criteria listed in rule 61G4 - 15.001).

43. At hearing, RespondentÓs expert, Paul Del Vecchio, a

certified general contractor and former 12 - year member of the

Board, testified that the Board does not rely on affida vits to

verify an applicantÓs active experience. Mr. Del Vecchio

related that the Board had been advised it had no statutory

authority to require an affidavit and had discontinued accepting

affidavits pursuant to the rule.

CONCLUSIONS OF LAW

44 . The Divi sion of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant to sections 120.569 and 120.57(1) .

45 . Petitioner, as the license applicant, bears the duty

to go forward and the burden of proof by a preponderan ce of the

evidence in this initial licensing case. DepÓt of Transp. v.

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

of HRS , 348 So. 2d 349 (Fla. 1st DCA 1977).

46. The Florida L egislature deems it necessary in the

interest of the publ ic health, safety, and welfare to regulate

the construction industry. See § 489.101, Fla. Stat.

47. The Board is created to carry out the provisions of

c hapter 489, Part 1, relating to regulation of the construction

professions. See § 489.107(1), Fla. Stat.

Experience Requirement

48 . Rule 61G4 - 15.001 is clear on its face that

PetitionerÓs application must be denied if it does not evince

four years of active construction experience, at least one of

which as a foreman.

49 . PetitionerÓs employment with J acobs, a construction

engineering inspection consultant for FDOT, does not constitute

Ðconstruction experienceÑ pursuant to the rule. While

PetitionerÓs role as foreman of the inspection team was integral

to completion of the projects listed on Petitioner Ós

application, he was not engaged in the construction of any of

the elements thereof. He was neither engaged in construction as

a tradesperson or apprentice, nor actively supervising others in

the construction industry.

50 . The rule requires the applica nt to have active

experience Ðin the category in which the applicant seeks to

qualify.Ñ Petitioner has no experience in construction of

commercial and single - dwelling or multi - dwelling residential

buildings, the type of construction which defines Ðbuildin g

contractor.Ñ See Fla. Admin. Code R. 61G4 - 15.001(1)(a).

51 . Petitioner failed to demonstrate by a preponderance of

the evidence that his application for a building contractorÓs

license should be granted.

Reliance on Unadopted Rules

52 . PetitionerÓs con tention that the Respondent unlawfully

relied upon unadopted rules in formulating its decision to deny

his application is without merit. See § 120.57(1)(e), Fla.

Stat.

53 . Petitioner applied for a building contractorÓs license

as a foreman with four yea rs of active construction experience,

pursuant to section 489.111(2)(c)2. Control of the Ðmeans and

methodsÑ of construction is commonly understood in the

construction industry as the role of the construction foreman.

54 . As stated by the First District Court of Appeal in

State Board of Admin istration v. Huberty , 46 So. 3d 1144, 1147

(Fla. 1st DCA 2010):

As we said in St. Francis Hospital, Inc. v.

Department of Health and Rehabilitative

Services , 553 So. 2d 1351, 1354 (Fla. 1st

DCA 1989):

It is well est ablished that an

agency interpretation of a statute

which simply reiterates the

legislatureÓs statutory mandate

and does not place upon the

statute an interpretation that is

not readily apparent from its

literal reading, nor in and of

itself purport to cre ate certain

rights, or require compliance, or

to otherwise have the direct and

consistent effect of the law, is

not an unpromulgated rule, and

actions based upon such an

interpretation are permissible

without requiring an agency to go

through rulemaking.

See North Star Assoc., Inc. v. DepÓt of Fin. Servs. , Case

No. 11 - 2433RU (Fla. DOAH July 1, 2011)(agencyÓs statement that

registrations as a claimantÓs representative are licenses is

apparent from a literal reading of the statute); My Friend Home

Care, Inc. v. Ag. for Health Care Admin. , Case No. 10 - 2657RU

(Fla. DOAH July 6, 2010)(agencyÓs denial of licenseeÓs renewal

application based upon actions occurring within two years of the

renewal application date was readily apparent from the plain

language of the statute and, thus, not an unadopted rule); cf.

Leonard v. DepÓt of Mgmt. Servs. , Case No. 11 - 1529 (Fla. DOAH

Sept. 8, 2011; Fla. DMS Nov. 10, 2011)(agencyÓs definition of

the phrase ÐactiveÑ employment as synonymous with perfect

attendance is an interpreta tion not readily apparent from a

literal reading of the statute); Vazquez v. DepÓt of Health ,

Case No. 08 - 0490RU (Fla. DOAH Apr . 9, 2008); affÓd , 11 So. 3d

994 (Fla. 1st DCA 2009)(agency statement that statute imposes a

Ðrebuttable presumptionÑ and establi shes what will be considered

a Ðprima facie caseÑ was not a simple reiteration of the

statutory mandate and was, in fact, Ðcontrary to any reasonable

interpretation of the statute.Ñ).

55 . Petitioner proved that the agency maintains a

statement that an app licant for a building contractorÓs license

must have control over the Ðmeans and methodsÑ of construction

to meet the experience requirement under section 489.111(2)(c)2.

However, that statement does not, in and of itself, create

rights, require complianc e, or otherwise have the direct and

consistent effect of law. The term is apparent to members of

the industry from a literal reading of the statute.

56 . Petitioner did not prove that the Board maintains a

statement that an applicant must have the authori ty to hire and

fire construction contractors to qualify for a building

contractorÓs license. The statement by one member of the Board

that Petitioner did not Ðhave the ability to hire and fireÑ does

not constitute an agency statement of general applicatio n.

See Rollins v. Constr. Indus . Lic. Bd. , Case No. 09 - 2968 (Fla.

DOAH Nov. 24, 2009)(Ð[A] simple question posed by a single Board

member is meaningless.Ñ).

57 . As to PetitionerÓs final contention, that, contrary to

its rule, the Board refused to accept the affidavit from

PetitionerÓs supervisor, Petitioner likewise failed to

demonstrate the BoardÓs reliance on an unadopted rule.

Petitioner did not submit the affidavit with his application for

consideration by the Board. Petitioner submitted the affidav it

as an exhibit at the final hearing.

58 . PetitionerÓs application was not denied on the basis

that he failed to include an affidavit certifying his active

experience, as stated in the rule. Thus, PetitionerÓs argument

that Respondent relied upon an u nadopted rule in denying his

application is without merit. 3/

RECOMMENDATION

Based on the foregoing Findings of Fac t and Conclusions of

Law, it is

RECOMMENDED that the Department of Business and

Professional Regulation, Construction Industry Licensing Boar d,

enter a f inal o rder denying PetitionerÓs application.

DONE AND ENTERED this 10th day of March , 2016 , in

Tallahassee, Leon County, Florida.

S

SUZANNE VAN WYK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 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 March , 2016 .

ENDNOTE S

1/ Unle ss otherwise specified herein, all references to the

Florida Statutes are to the 2015 version.

2/ Petition at 3.

3/ Petitioner apparently sought to introduce the affidavit to

bolster his position that his experience with Jacobs qualified

as Ðactive exp erienceÑ pursuant to the rule. The affidavit,

accepted over a hearsay objection, did not bolster PetitionerÓs

own testimony. Neither PetitionerÓs testimony nor the affidavit

was persuasive in light of the facts of this case.

COPIES FURNISHED:

Douglas Dell Dolan, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

(eServed)

Rosemary Hanna Hayes, Esquire

Hayes Law, P.L.

830 Lucerne Terrace

Orlando, Florida 32801

(eServed)

Robert Antonie Milne, Esquire

Of fice of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

(eServed)

Daniel Biggins, Executive Director

Construction Industry Licensing Board

Department of Business and Professional

Re gulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399

(eServed)

W illiam N. Spicola, General Counsel

Department of Business and Professional

Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399

(eServed)

NOTICE OF RIGHT TO SUBMIT EXC EPTIONS

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 Or der in this case.