94-004184 Philip Suna vs. Construction Industry Licensing Board Status: Closed Recommended Order on Wednesday, January 4, 1995.

Summary: Applicant failed to present sufficient evidence to show that out of state exam was substantially equivalent to Florida's exam or that New York city was region

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PHILLIP SUNA, )

)

)

Petitioner, )

)

vs. ) CASE NO. 94-4184

)

CONSTRUCTION INDUSTRY LICENSING )

BOARD, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Upon due notice, William R. Cave, Hearing Officer, Division of

Administrative Hearings (Division) held a formal hearing in this matter on

September 20, 1994, in Sarasota, Florida.

APPEARANCES

For Petitioner: Phillip Suna, Pro se

2301 Gulf of Mexico Drive

Apartment 93-N

Longboat Key, Florida 34228

For Respondent: Clark R. Jennings, Esquire

Department of Legal Affairs

The Capitol

Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUES

1. Does the master plumbing licensing examination administered by the New

York City, New York (New York City), and taken by the Petitioner Phillip Suna in

1952, fall within the category of a regional or state licensing examination as

set forth in Section 489.115, Florida Statutes?

2. If so, was the New York City master plumbing licensing examination

taken by the Petitioner in 1952, substantially equivalent to the current

plumbing contractors licensing examination administered by the Construction

Industry Licensing Board (Board) of the State of Florida?

PRELIMINARY STATEMENT

By an application dated April 26, 1994, the Petitioner applied for a

plumbing contractors license by endorsement as provided for in Section 489.115,

Florida Statutes. By letter dated June 14, 1994, Milton Rubin, Program

Administrator, Division of Professions, Construction Industry Licensing Board,

advised Petitioner that at its meeting on June 9, 1994, the Board had denied his

application for endorsement as a plumbing contractor. The basis of the denial

was that Petitioner's master plumbers license had been issued by New York City,

after Petitioner had passed an examination administered by New York City rather

than having passed a national, region, state, or United States territorial

licensing examination as required by Section 489.115(3), Florida Statutes. An

additional basis for denial was that the New York City licensing examination was

not substantially equivalent to the licensing examination required by Part I,

Chapter 489, Florida Statutes.

By letter dated June 22, 1994, the Petitioner requested a formal hearing

pursuant to Section 120.57(1), Florida Statutes. By letter dated July 26, 1994,

Clark Jennings, Assistant Attorney General, the Board's attorney, referred the

matter to the Division for the appointment of Hearing Officer and the conduct of

a hearing.

Petitioner testified on his own behalf but presented no other witness.

Petitioner's exhibits A, B and G were received as evidence. Petitioner's

exhibit H, a late filed exhibit, was received as evidence. The Board presented

the testimony of Robert Wayne Crowell. The Board's exhibit 1 was received as

evidence. Joint Composite exhibit 1 was received as evidence.

A transcript of this proceeding was filed with the Division on October, 6,

1994. The parties elected not to file any proposed findings of fact and

conclusions of law.

FINDINGS OF FACT

Upon consideration of the evidence presented at the hearing, the following

relevant findings of fact are made:

1. At all times material to this proceeding, Petitioner possessed a valid

master plumbers license issued by New York City. There was no evidence that New

York City had ever issued Petitioner a plumbing contractors license, or that the

master plumbers license was the same as a plumbing contractors license in New

York City.

2. At all times material to this proceeding, the State of New York did not

administer a plumbing contractors licensing examination or a master plumbers

licensing examination, having delegated this responsibility to the several

municipalities within the State of New York, including but not limited to New

York City. A plumbing contractors license or a master plumbers license issued

by New York City or other cities within the State of New York are not valid in

any jurisdiction other than the issuing jurisdiction.

3. Petitioner has some 40 years experience in the plumbing business within

New York City.

4. Florida's Plumbing Contractors Examination prepared and administered by

National Assessment Institute in accordance with Rule 61G4-16.001(13), Florida

Administrative Code, consists of two parts: Part I, Business and Financial

Management; and Part II, General Trade Knowledge.

5. Part I is comprised of the following major content areas. The number

in parentheses is the approximate percentage of the examination devoted to that

content area.

1. Maintaining Cash Flow (15 percent)

2. Estimating and Bidding a Job (20 percent)

3. Negotiation and Interpretation

Contracts and Agreements ( 5 percent)

4. Processing Change Orders ( 5 percent)

5. Purchasing Control ( 5 percent)

6. Contract Scheduling ( 5 percent)

7. Controlling Costs of Fixed

Assets ( 5 percent)

8. Obtaining Insurance and

Bonding (10 percent)

9. Complying with Contracting

Laws and Rules (15 percent)

10. Personnel Management ( 5 percent)

11. Complying with Payroll and

Sales Tax Laws ( 5 percent)

12. Interpretation of Financial

Statements and Reports ( 5 percent)

5. Under each of the major content areas are listed the tasks and the

knowledge required to perform them. There are approximately 49 different tasks

listed under Part I.

6. Part II of the examination consist of three questions each of which

tests the applicant's knowledge of design, installation, and maintenance of

several different systems. Approximately 40 percent of the examination is

devoted to question one and 40 percent to question two and 20 percent to

question three. Under Part II the applicant is tested on the design,

installation and maintenance of 27 different systems.

7. Petitioner submitted several examinations (some were not complete) that

he contended were master plumbers licensing examinations given by New York City

in 1970, 1972, 1974 1976, 1982, 1983, 1985, 1987 and 1991. However, only one or

two were marked as to the source or origin. The number of questions on the

examinations ranged from 16 to 70 questions. The only major content area

listed in Part I of the Florida plumbing contractors examination covered by the

examinations submitted by the Petitioner was "Estimating and Bidding a Job".

However, the coverage of "Estimating and Bidding a Job" in the tests submitted

was cursory at best.

8. The examinations submitted by the Petitioner covered Part II in

somewhat more detail than they did Part I. Question one of Part II was covered

fairly extensively whereas Question two was somewhat less extensive than

Question one, with Question three's coverage being only slight. The design,

installation and maintenance of only three out of nine systems listed in

Question two, and only one out of eleven systems listed in Question three were

covered in the examinations submitted by the Petitioner. All of the systems

listed in Question one were covered to some degree by the examinations submitted

by the Petitioner.

9. Since the Petitioner was unable to submit a copy of the master plumbers

examination administered by New York City in 1952, a determination of whether

that particular examination is "substantially equivalent" to the Florida

Plumbing Contractors licensing examination currently in use cannot be made.

However, even assuming that the New York City examinations submitted by the

Petitioner were the same as the examination taken by the Petitioner in 1952, the

New York master plumbers licensing examination is not "substantially equivalent"

to the Florida Plumbing Contractors licensing examination currently in use..

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has jurisdiction over the

parties to, and the subject matter of, this proceeding pursuant to Section

120.57(1), Florida Statutes.

11. The burden of proof is on the party asserting the affirmative of an

issue before and administrative tribunal. Florida Department of Transportation

v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 2d DCA 1981). To meet this burden

the Petitioner must establish facts upon which his allegations are based by a

preponderance of the evidence. The Petitioner has failed to meet his burden in

this regard.

12. Pertinent to this case, Section 489.115(1) and (3)(a), Florida

Statutes, provides:

(1) No person may engage in the business

of contracting in this state without first

being certified or registered in the proper

classification.

* * *

(3) The board shall certify as qualified

for certification by endorsement any applicant

who:

(a) Meets the requirements for certification

as set forth in this section; has passed a

national, regional, state, or United States

territorial licensing examination that is sub-

stantially equivalent to the examination required

by this part; and has satisfied the requirements

set forth in s. 489.111; or

(b) Holds a valid license to practice contracting

issued by another state or territory of the United

States, if the criteria for issuance of such license

were substantially equivalent to Florida's current

certification criteria.

13. Petitioner contends that New York City, although not a state, it is a

region because of its size, population, complexity of the plumbing within the

city, the large number of public and private schools, the large number of

television stations, the large number of colleges and universities, the large

number of hospitals and the large number of prisons. On the other hand, the

Board contends that had the legislature intended for the Board to use a

contracting licensing examination administered by a city, because of its size,

then it would have expressly provided for that in the language of the statutes.

It is the Board's position that since region falls between national and state

that the legislature intended region to encompass an area consisting of

something less than national but more than one contiguous state.

14. The interpretation of Section 489.115(3)(a), Florida Statutes, urged

by the Petitioner would result in the Board having to decide whether a city,

based on its size, etc., would be considered a region. The Petitioner's

interpretation would lead to an unreasonable result and that interpretation

should be avoided. See Department of Professional Regulation, Board of Medical

Examiners v Durrani, 455 So.2d 515, 518, (Fla. 1st DCA 1984).

15. Where an agency construes a statute in its charge in a permissible

way, that interpretation must be sustained though another may be possible or

even, in view of some, preferable. State of Department of Health and

Rehabilitative Services v. Framat Realty, Inc., 407 So.2d 238, 241 (Fla. 1st DCA

1981); Pan American World Airways, Inc. v. Florida Public Service Commission and

Florida Power and Light Co., 427 So.2d 716, 719 (Fla. 1983. The Petitioner has

failed to show that the Board's interpretation of the statute is clearly

erroneous or unauthorized. New York City is not a region for the purposes of

Section 489.115(3), Florida Statutes.

16. The second condition of Section 489.115(3))a), Florida Statutes, that

Petitioner must meet in order to for the Board to approve his application for

licensure by endorsement, is to show that the New York City licensing

examination taken by the Petitioner is "substantially equivalent" to the Florida

licensing examination currently in use. The Petitioner has failed to meet this

burden.

RECOMMENDATION

Having considered the foregoing Findings of Fact and Conclusions of Law, it

is recommended that the Construction Industry Licensing Board enter a Final

Order denying the Respondent's application for certification as a plumbing

contractor by endorsement.

RECOMMENDED this 4th day January, 1995, in Tallahassee, Florida

___________________________________

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

4th day of January, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4184

The parties did not file any proposed findings of fact and conclusions of

law.

COPIES FURNISHED:

Phillip Suna, Pro se

2301 Gulf of Mexico Drive

Apt. 93-N

Longboat Key, Florida 34228

Clark Jennings, Esquire

Department of Legal Affairs

The Capitol

Tallahassee, Florida 32399-1050

Jack McRay

Acting General Counsel

Departmemt of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Richard Hickok, Executive Director

Construction Industry Licensing Board

7960 Arlington Expressway, Ste. 300

Jacksonville, Florida 32211-7467

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the Final

Order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be

filed with the agency that will issue the Final Order in this case.