Victor O. Muratti-Stuart v. Department of Business And Professional Regulation, Construction Industry Licensing Board

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

VICTOR O. MURATTI-STUART,
Appellant,

v.

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION,
CONSTRUCTION INDUSTRY LICENSING BOARD,
Appellee.

No. 4D14-3270

[August 26, 2015]

Appeal from State of Florida, Department of Business and Professional
Regulation, Construction Industry Licensing Board, L.T. Case No. 2014-
05758.

Eduardo Aybar Landrau of Aybar Landrau & Nizio, P.L., Miami, for
appellant.

Pamela Jo Bondi, Attorney General, and Marlene K. Stern, Assistant
Attorney General, Tallahassee, for appellee.

LEVINE, J.

Appellant appeals an order of Florida’s Construction Industry Licensing
Board denying his application for a certified marine specialty contractor’s
license based on insufficient experience. In this case, we find competent
substantial evidence supports the denial and, as such, we affirm.

Appellant, a civil engineer, filed an application for a certified marine
specialty contractor’s license. The Construction Industry Licensing Board
denied his application for failure to demonstrate the required experience
pursuant to section 489.111, Florida Statutes, and Florida Administrative
Code Rule 61G4-15.001. Appellant filed a petition for review, challenging
the Board’s findings and submitting two affidavits which he had not
included in his original application. One affidavit was from appellant’s
supervisor at a previous job outside of Florida. The other affidavit, from
appellant’s supervisor at his current job of two years, stated that appellant
was “exposed to substantial field work including marine construction
related activities . . . .”
 At the outset of an informal hearing, one Board member commented
that an applicant must control the “means and methods of production.”
Also during the hearing, the Board asked appellant whether his work
experience included performance of the scope of work required for a
marine contractor license, or whether he was simply a quality engineer
and observer. Appellant stated that he supervised workers, helped the
project manager with the bid, made submissions to the U.S. Army Corps
of Engineers, and did daily reports and schedules. After the informal
hearing, the Board upheld the denial, finding that appellant “failed to
establish the required experience in the licensure classification at the
hearing or through the submission of additional information.”

On appeal, appellant limits his claim to the assertion that the Board
erroneously interpreted the work experience requirement in the law and
therefore exceeded its authority by “imposing additional criteria” to the
work experience requirement. Appellant bases his argument on
statements made by Board members during the informal hearing.
Appellant further asserts that there was not competent substantial
evidence to sustain the Board’s findings.

An agency’s interpretation of a statute is entitled to great deference
unless the agency’s interpretation conflicts with the plain and ordinary
meaning of the statute. Fla. Hosp. v. Agency for Health Care Admin., 823
So. 2d 844, 848 (Fla. 1st DCA 2002). An agency’s denial of a license
application will be affirmed if competent substantial evidence supports the
decision. Comprehensive Med. Access, Inc. v. Office of Ins. Reg., 983 So.
2d 45, 46 (Fla. 1st DCA 2008); § 120.68(7)(b), Fla. Stat. (2014).
“Competent substantial evidence is such evidence that is ‘sufficiently
relevant and material that a reasonable mind would accept it as adequate
to support the conclusion reached.’” Comprehensive Med. Access, 983 So.
2d at 46 (citation omitted).

Although an agency is generally entitled to deference, that deference is
not unlimited. “[A] court need not defer to an agency’s construction or
application of a statute if special agency expertise is not required, or if the
agency’s interpretation conflicts with the plain and ordinary meaning of
the statute.” Fla. Hosp., 823 So. 2d at 848. Thus, if the agency is “not
operating in an area of special expertise” this court “need not defer to its
special knowledge.” Greseth v. Dep’t of Health & Rehab. Servs., 573 So. 2d
1004, 1007 (Fla. 4th DCA 1991).

It is a basic truism of the law and reinforced by the United States
Supreme Court that “[i]t is undoubtedly the right of every citizen of the

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United States to follow any lawful calling, business, or profession he may
choose . . . .” Lowe v. Sec. & Exch. Comm’n, 472 U.S. 181, 228 (1985)
(citation omitted). “Occupational freedom, the right to earn a living as one
chooses, is a nontrivial constitutional right entitled to nontrivial judicial
protection.” Patel v. Texas Dep’t of Licensing & Regulation, 58 Tex. Sup.
Ct. J. 1298 (Tex. June 26, 2015) (Willett, J., concurring). However, “there
is no arbitrary deprivation of such right where its exercise is not permitted
because of a failure to comply with conditions imposed . . . for the
protection of society.” Lowe, 472 U.S. at 228 (citation omitted). Further,
an agency may administer “[r]egulations on entry into a profession, as a
general matter” as long as the regulations “have a rational connection with
the applicant’s fitness or capacity to practice.” Id.

The United States Supreme Court has also recognized that “the liberty
component of the Fourteenth Amendment’s Due Process Clause includes
some generalized due process right to choose one’s field of private
employment, but a right which is nevertheless subject to reasonable
government regulation.” Conn v. Gabbert, 526 U.S. 286, 291-92 (1999).
However, “[t]he great deference due state economic regulation does not
demand judicial blindness to the history of a challenged rule or the context
of its adoption nor does it require courts to accept nonsensical
explanations for naked transfers of wealth.” St. Joseph Abbey v. Castille,
700 F.3d 154, 165 (5th Cir. 2012).

Appellant sought licensure as a marine contractor. A marine contractor
is defined as

a specialty contractor qualified and certified by the board to
perform any work involving the construction, repair,
alteration, extension and excavation for fixed docks, floating
docks, boathouses, mooring devices, mooring fields, seawalls,
bulkheads, piers, wharfs, boatlifts, boat ramps, revetments,
cofferdams, wave attenuators, dune crossovers and other
marine structures and activities, including pile driving,
framing, concrete, masonry, dredge and fill, and wood shingle,
wood shakes, or asphalt or fiberglass shingle roofing on a new
structure of his or her own construction.

Fla. R. Admin Code R. 61G4-15.033(2).

Section 489.111(2)(c)1. requires that the applicant have “1 year of
proven experience in the category in which the person seeks to qualify.”
Rule 61G4-15.001(1)(a) requires the applicant to submit affidavits of
“[a]ctive experience in the category in which the applicant seeks to qualify.”

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The rule further states that such affidavits must be prepared or signed by
the following:

a state certified Florida contractor, or an architect or engineer,
in the applicant’s category, who is licensed in good standing
or a licensed building official, who is active in the applicant’s
category, employed by a political subdivision of any state,
territory or possession of the United States who is responsible
for inspections of construction improvements . . . .

Id.

In the instant case, it cannot be said that the Board erred in
interpreting the law regarding the requisite one year of experience required
for a marine contracting license. The statements and questions asked by
the Board during the informal hearing do not support appellant’s claim
that the Board imposed “additional criteria” to the work experience
requirement. Further, competent substantial evidence supports the
Board’s finding that appellant did not have the requisite experience.
Initially, appellant concedes that his former supervisor’s affidavit did not
meet the requirements of rule 61G4-15.001. Additionally, although
appellant’s current supervisor submitted an affidavit stating that
appellant was “exposed to substantial field work including marine
construction related activities,” it was within the Board’s discretion to find
such evidence insufficient to establish the requisite experience. The Board
could have found that mere exposure to “marine construction related
activities” was insufficient. Moreover, it was unclear specifically what type
of marine construction related activities appellant was exposed to, or over
what period of time.

In sum, based on the record before the Board, it cannot be said that
the Board erred in finding that appellant did not have the requisite
experience for a marine contractor license as required pursuant to section
489.111 and rule 61G4-15.001.

Affirmed.

STEVENSON and FORST, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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