94-004184
Philip Suna vs.
Construction Industry Licensing Board
Status: Closed
Recommended Order on Wednesday, January 4, 1995.
Recommended Order on Wednesday, January 4, 1995.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8PHILLIP SUNA, )
11)
12)
13Petitioner, )
15)
16vs. ) CASE NO. 94-4184
21)
22CONSTRUCTION INDUSTRY LICENSING )
26BOARD, )
28)
29Respondent. )
31_________________________________)
32RECOMMENDED ORDER
34Upon due notice, William R. Cave, Hearing Officer, Division of
44Administrative Hearings (Division) held a formal hearing in this matter on
55September 20, 1994, in Sarasota, Florida.
61APPEARANCES
62For Petitioner: Phillip Suna, Pro se
682301 Gulf of Mexico Drive
73Apartment 93-N
75Longboat Key, Florida 34228
79For Respondent: Clark R. Jennings, Esquire
85Department of Legal Affairs
89The Capitol
91Tallahassee, Florida 32399-1050
94STATEMENT OF THE ISSUES
981. Does the master plumbing licensing examination administered by the New
109York City, New York (New York City), and taken by the Petitioner Phillip Suna in
1241952, fall within the category of a regional or state licensing examination as
137set forth in Section 489.115, Florida Statutes?
1442. If so, was the New York City master plumbing licensing examination
156taken by the Petitioner in 1952, substantially equivalent to the current
167plumbing contractors licensing examination administered by the Construction
175Industry Licensing Board (Board) of the State of Florida?
184PRELIMINARY STATEMENT
186By an application dated April 26, 1994, the Petitioner applied for a
198plumbing contractors license by endorsement as provided for in Section 489.115,
209Florida Statutes. By letter dated June 14, 1994, Milton Rubin, Program
220Administrator, Division of Professions, Construction Industry Licensing Board,
228advised Petitioner that at its meeting on June 9, 1994, the Board had denied his
243application for endorsement as a plumbing contractor. The basis of the denial
255was that Petitioner's master plumbers license had been issued by New York City,
268after Petitioner had passed an examination administered by New York City rather
280than having passed a national, region, state, or United States territorial
291licensing examination as required by Section 489.115(3), Florida Statutes. An
301additional basis for denial was that the New York City licensing examination was
314not substantially equivalent to the licensing examination required by Part I,
325Chapter 489, Florida Statutes.
329By letter dated June 22, 1994, the Petitioner requested a formal hearing
341pursuant to Section 120.57(1), Florida Statutes. By letter dated July 26, 1994,
353Clark Jennings, Assistant Attorney General, the Board's attorney, referred the
363matter to the Division for the appointment of Hearing Officer and the conduct of
377a hearing.
379Petitioner testified on his own behalf but presented no other witness.
390Petitioner's exhibits A, B and G were received as evidence. Petitioner's
401exhibit H, a late filed exhibit, was received as evidence. The Board presented
414the testimony of Robert Wayne Crowell. The Board's exhibit 1 was received as
427evidence. Joint Composite exhibit 1 was received as evidence.
436A transcript of this proceeding was filed with the Division on October, 6,
4491994. The parties elected not to file any proposed findings of fact and
462conclusions of law.
465FINDINGS OF FACT
468Upon consideration of the evidence presented at the hearing, the following
479relevant findings of fact are made:
4851. At all times material to this proceeding, Petitioner possessed a valid
497master plumbers license issued by New York City. There was no evidence that New
511York City had ever issued Petitioner a plumbing contractors license, or that the
524master plumbers license was the same as a plumbing contractors license in New
537York City.
5392. At all times material to this proceeding, the State of New York did not
554administer a plumbing contractors licensing examination or a master plumbers
564licensing examination, having delegated this responsibility to the several
573municipalities within the State of New York, including but not limited to New
586York City. A plumbing contractors license or a master plumbers license issued
598by New York City or other cities within the State of New York are not valid in
615any jurisdiction other than the issuing jurisdiction.
6223. Petitioner has some 40 years experience in the plumbing business within
634New York City.
6374. Florida's Plumbing Contractors Examination prepared and administered by
646National Assessment Institute in accordance with Rule 61G4-16.001(13), Florida
655Administrative Code, consists of two parts: Part I, Business and Financial
666Management; and Part II, General Trade Knowledge.
6735. Part I is comprised of the following major content areas. The number
686in parentheses is the approximate percentage of the examination devoted to that
698content area.
7001. Maintaining Cash Flow (15 percent)
7062. Estimating and Bidding a Job (20 percent)
7143. Negotiation and Interpretation
718Contracts and Agreements ( 5 percent)
7244. Processing Change Orders ( 5 percent)
7315. Purchasing Control ( 5 percent)
7376. Contract Scheduling ( 5 percent)
7437. Controlling Costs of Fixed
748Assets ( 5 percent)
7528. Obtaining Insurance and
756Bonding (10 percent)
7599. Complying with Contracting
763Laws and Rules (15 percent)
76810. Personnel Management ( 5 percent)
77411. Complying with Payroll and
779Sales Tax Laws ( 5 percent)
78512. Interpretation of Financial
789Statements and Reports ( 5 percent)
7955. Under each of the major content areas are listed the tasks and the
809knowledge required to perform them. There are approximately 49 different tasks
820listed under Part I.
8246. Part II of the examination consist of three questions each of which
837tests the applicant's knowledge of design, installation, and maintenance of
847several different systems. Approximately 40 percent of the examination is
857devoted to question one and 40 percent to question two and 20 percent to
871question three. Under Part II the applicant is tested on the design,
883installation and maintenance of 27 different systems.
8907. Petitioner submitted several examinations (some were not complete) that
900he contended were master plumbers licensing examinations given by New York City
912in 1970, 1972, 1974 1976, 1982, 1983, 1985, 1987 and 1991. However, only one or
927two were marked as to the source or origin. The number of questions on the
942examinations ranged from 16 to 70 questions. The only major content area
954listed in Part I of the Florida plumbing contractors examination covered by the
967examinations submitted by the Petitioner was "Estimating and Bidding a Job".
979However, the coverage of "Estimating and Bidding a Job" in the tests submitted
992was cursory at best.
9968. The examinations submitted by the Petitioner covered Part II in
1007somewhat more detail than they did Part I. Question one of Part II was covered
1022fairly extensively whereas Question two was somewhat less extensive than
1032Question one, with Question three's coverage being only slight. The design,
1043installation and maintenance of only three out of nine systems listed in
1055Question two, and only one out of eleven systems listed in Question three were
1069covered in the examinations submitted by the Petitioner. All of the systems
1081listed in Question one were covered to some degree by the examinations submitted
1094by the Petitioner.
10979. Since the Petitioner was unable to submit a copy of the master plumbers
1111examination administered by New York City in 1952, a determination of whether
1123that particular examination is "substantially equivalent" to the Florida
1132Plumbing Contractors licensing examination currently in use cannot be made.
1142However, even assuming that the New York City examinations submitted by the
1154Petitioner were the same as the examination taken by the Petitioner in 1952, the
1168New York master plumbers licensing examination is not "substantially equivalent"
1178to the Florida Plumbing Contractors licensing examination currently in use..
1188CONCLUSIONS OF LAW
119110. The Division of Administrative Hearings has jurisdiction over the
1201parties to, and the subject matter of, this proceeding pursuant to Section
1213120.57(1), Florida Statutes.
121611. The burden of proof is on the party asserting the affirmative of an
1230issue before and administrative tribunal. Florida Department of Transportation
1239v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 2d DCA 1981). To meet this burden
1254the Petitioner must establish facts upon which his allegations are based by a
1267preponderance of the evidence. The Petitioner has failed to meet his burden in
1280this regard.
128212. Pertinent to this case, Section 489.115(1) and (3)(a), Florida
1292Statutes, provides:
1294(1) No person may engage in the business
1302of contracting in this state without first
1309being certified or registered in the proper
1316classification.
1317* * *
1320(3) The board shall certify as qualified
1327for certification by endorsement any applicant
1333who:
1334(a) Meets the requirements for certification
1340as set forth in this section; has passed a
1349national, regional, state, or United States
1355territorial licensing examination that is sub-
1361stantially equivalent to the examination required
1367by this part; and has satisfied the requirements
1375set forth in s. 489.111; or
1381(b) Holds a valid license to practice contracting
1389issued by another state or territory of the United
1398States, if the criteria for issuance of such license
1407were substantially equivalent to Florida's current
1413certification criteria.
141513. Petitioner contends that New York City, although not a state, it is a
1429region because of its size, population, complexity of the plumbing within the
1441city, the large number of public and private schools, the large number of
1454television stations, the large number of colleges and universities, the large
1465number of hospitals and the large number of prisons. On the other hand, the
1479Board contends that had the legislature intended for the Board to use a
1492contracting licensing examination administered by a city, because of its size,
1503then it would have expressly provided for that in the language of the statutes.
1517It is the Board's position that since region falls between national and state
1530that the legislature intended region to encompass an area consisting of
1541something less than national but more than one contiguous state.
155114. The interpretation of Section 489.115(3)(a), Florida Statutes, urged
1560by the Petitioner would result in the Board having to decide whether a city,
1574based on its size, etc., would be considered a region. The Petitioner's
1586interpretation would lead to an unreasonable result and that interpretation
1596should be avoided. See Department of Professional Regulation, Board of Medical
1607Examiners v Durrani, 455 So.2d 515, 518, (Fla. 1st DCA 1984).
161815. Where an agency construes a statute in its charge in a permissible
1631way, that interpretation must be sustained though another may be possible or
1643even, in view of some, preferable. State of Department of Health and
1655Rehabilitative Services v. Framat Realty, Inc., 407 So.2d 238, 241 (Fla. 1st DCA
16681981); Pan American World Airways, Inc. v. Florida Public Service Commission and
1680Florida Power and Light Co., 427 So.2d 716, 719 (Fla. 1983. The Petitioner has
1694failed to show that the Board's interpretation of the statute is clearly
1706erroneous or unauthorized. New York City is not a region for the purposes of
1720Section 489.115(3), Florida Statutes.
172416. The second condition of Section 489.115(3))a), Florida Statutes, that
1734Petitioner must meet in order to for the Board to approve his application for
1748licensure by endorsement, is to show that the New York City licensing
1760examination taken by the Petitioner is "substantially equivalent" to the Florida
1771licensing examination currently in use. The Petitioner has failed to meet this
1783burden.
1784RECOMMENDATION
1785Having considered the foregoing Findings of Fact and Conclusions of Law, it
1797is recommended that the Construction Industry Licensing Board enter a Final
1808Order denying the Respondent's application for certification as a plumbing
1818contractor by endorsement.
1821RECOMMENDED this 4th day January, 1995, in Tallahassee, Florida
1830___________________________________
1831WILLIAM R. CAVE
1834Hearing Officer
1836Division of Administrative Hearings
1840The DeSoto Building
18431230 Apalachee Parkway
1846Tallahassee, Florida 32399-1550
1849(904) 488-9675
1851Filed with the Clerk of the
1857Division of Administrative Hearings
18614th day of January, 1995.
1866APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4184
1873The parties did not file any proposed findings of fact and conclusions of
1886law.
1887COPIES FURNISHED:
1889Phillip Suna, Pro se
18932301 Gulf of Mexico Drive
1898Apt. 93-N
1900Longboat Key, Florida 34228
1904Clark Jennings, Esquire
1907Department of Legal Affairs
1911The Capitol
1913Tallahassee, Florida 32399-1050
1916Jack McRay
1918Acting General Counsel
1921Departmemt of Business and
1925Professional Regulation
1927Northwood Centre
19291940 North Monroe Street
1933Tallahassee, Florida 32399-0792
1936Richard Hickok, Executive Director
1940Construction Industry Licensing Board
19447960 Arlington Expressway, Ste. 300
1949Jacksonville, Florida 32211-7467
1952NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
1958All parties have the right to submit written exceptions to this Recommended
1970Order. All agencies allow each party at least 10 days in which to submit
1984written exceptions. Some agencies allow a larger period within which to submit
1996written exceptions. You should contact the agency that will issue the Final
2008Order in this case concerning agency rules on the deadline for filing exceptions
2021to this Recommended Order. Any exceptions to this Recommended Order should be
2033filed with the agency that will issue the Final Order in this case.
- Date
- Proceedings
- Date: 03/16/1995
- Proceedings: Final Order filed.
- Date: 10/06/1994
- Proceedings: Transcript/Hearing filed.
- Date: 09/28/1994
- Proceedings: Petitioner`s Supplemental Exhibit filed.
- Date: 09/20/1994
- Proceedings: CASE STATUS: Hearing Held.
- Date: 08/16/1994
- Proceedings: Notice of Hearing sent out. (hearing set for 9/20/94; at 1:00pm; in Sarasota)
- Date: 08/15/1994
- Proceedings: Ltr. to SLS from Philip Suna re: Reply to Initial Order filed.
- Date: 08/05/1994
- Proceedings: Initial Order issued.
- Date: 07/27/1994
- Proceedings: Agency referral letter; Request for Administrative Hearing, letter form; Agency Denial Letter; Supportive Documents filed.