ORDER
The Department of Natural Resources shall, as soon as practicable, arrange to administer an oral test to James Garrett Hughes to determine his competency as a water well driller under IC 25-39 and 310 IAC 16. A prerequisite to testing is that Hughes must resubmit the test fee to the Department. Following administration of the test and compilation of test results, the Department shall issue an order to grant or deny a license to Hughes as a water well driller. If the Department denies the license, the denial shall state the reasons for denial and how Hughes may seek administrative review under IC 4-21.5 and 312 IAC 3-1.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. On August 13, 1997, James Garrett Hughes ("Hughes"), through counsel, submitted a timely, legible, complete "Application for Water Well Drilling Exam," together with a letter requesting a seat for the examination and giving notice under 310 IAC 16-2-4(c) that he would require an "oral" examination.
2. Concurrent with the submission of the "Application for Water Well Drilling Exam," Hughes submitted a legible, complete "Application for Water Well Drilling License" together with the three (3) required reference statements.
3. Hughes is over the age of 18 years.
4. The "test fee" was not accepted by the department of natural resources (the "Department") with the submission of the application because the fee is to be tendered at the time of taking the examination.
5. All "procedural" steps necessary to take the August 18, 1998 Water Well Drilling Exam were properly performed by Hughes, and the Department has raised no issue regarding "procedural" compliance.
6. On August 15, 1997, the Department faxed to counsel for Hughes a letter on behalf of the Director of the Department which states in pertinent part: "As a result of Mr. Hughes' past actions, the Department has determined that he will not be issued an Indiana Water Well Drilling License, and may not take the upcoming driller's exam."
7. The Department listed the following reasons for its action:
(A) On November 9, 1993, Hughes attempted to obtain a license by arranging for another
individual to complete the examination for him, and Hughes was precluded from obtaining a
license at that time.
(B) Hughes has been cited by the Department for violations of the Water Well Drillers Law and
Well Construction rules [IC 25-39 and 310 IAC 16] on several occasions during the past four
years.
8. During a prehearing conference held on October 8, 1997, the parties agreed that only the
facts needed for briefing the legal issue would be required, and the facts would be submitted by
stipulation. The legal issue is whether Hughes is entitled to take the Water Well Drilling Exam
and whether the Department is required to administer the Water Well Drilling Exam to Hughes,
when the Department contends Hughes does not qualify for a Water Well Drilling License.
Hughes stipulates the Department could have presented the following:
(A) As a result of the November 9, 1993 attempt by Hughes to have another individual take
the examination for him, criminal charges were filed in Marion County under Cause No. 49G01-9401-CF-2237.
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(B) On November 7, 1994, Hughes was convicted based on a plea of guilty to Conspiracy to
Commit Forgery as a Class C Felony under Cause No. 49G01-9401-CF-2237 and served an
executed sentence for the crime.
(C) Subsequent to his release from incarceration, Hughes operated a well drilling and repair
business under the name "D & J Well Drilling." Since early 1997, he has operated under the
name "Agman Well Drilling."
(D) Since 1993, the Department has been responsible for criminal charges being filed against
Hughes, including the following:
(1) In Clay County, a two-count information alleging that on June 28, 1996, Hughes violated IC
25-39-5-1, "Acting as a water well driller without a license," as a Class B Misdemeanor, and that
Hughes violated IC 25-39-4-5, "Failure to Grout," a Class B Infraction. Hughes has entered Not
Guilty Pleases to these charges, and the case is now pending.
(2) In Hancock County, a five-count information charging Hughes with four separate incidents
of "Acting as a Water Well Driller Without a License," as Class B Misdemeanors, and a count of
"Theft" as a Class D Felony. Hughes has entered Not Guilty Pleas to these charges and the case
is now pending.
9. The Department has not presented or disclosed to Hughes any other violation upon which the Department has relied as a basis for not allowing Hughes to take the August 18, 1997 well driller's examination.
10. The statutory article which governs the licensing of water well drillers is IC 25-39.
11. More particularly, the issuance of a new license as a water well driller is controlled primarily by IC 25-39-3-2(a), IC 25-39-3-3, and IC 25-39-4-7(b). These statutory provisions are set forth immediately below.
As provided in IC 25-39-3-2(a):
(a) An application for a license must be made on a form prescribed by the commission in rules
adopted under IC 4-22-2. The purpose of the form is to identify the applicant and obtain
information to determine if the applicant is qualified to be licensed.
As provided in IC 25-39-3-3:
(a) To qualify for an original license an individual must:
(1) be at least eighteen (18) years of age;
(2) furnish evidence from three (3) references, two (2) of whom are water well drillers or
licensed plumbing contractors familiar with the applicant's work experience and professional
competency; and
(3) have successfully completed a competency examination prepared and administered by the
[D]epartment.
(b) The competency examination shall be administered at least two (2) times every calendar year.
(c) The fee to take the competency examination shall be set by the director under IC 25-1-8. This
fee is nonrefundable and must be paid each time an applicant applies to take the examination.
As provided in IC 25-39-4-7(b):
(b) Under IC 4-21.5-3-5, the director may refuse to grant, renew, or restore a license to a person
who has done any of the following:
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(1) Acted as a well driller without a license in violation of this article.
(2) Secured a license through error or fraud.
(3) Failed to comply with any of the requirements of sections 1 [IC 25-39-4-1], 2 [IC 25-39-4-2],
4 [IC 25-39-4-4], 5 [IC 25-39-4-5], and 6 [IC 25-39-4-6] of this chapter.
12. The most notable regulatory provision is 310 IAC 16-12-3(a) which provides:
(a) The division may refuse to grant, renew, or restore a license to a person who has done any of
the following:
(1) Acted as a well driller without a license in violation of IC 25-39.
(2) Secured a license through error or fraud.
(3) Failed to comply with the requirements set forth in any of the following:
(A) IC 25-39-4-1, IC 25-39-4-3, IC 25-39-4-4, IC 25-39-4-5, or IC 25-39-4-6.
(B) 310 IAC 16-2 through 310 IAC 16-10.
13. The immediate consequence of the Department's action described in Finding 6 is not, however, to grant or deny a license to Hughes but rather to deny him the opportunity to take the competency examination. Although there are numerous factors which may properly be considered by the Department in determining whether to grant a license to act as a water well drilling contractor, neither the statutes nor the rules set a prerequisite for taking the competency examination other than tender of the examination fee.
14. Since Hughes has tendered the examination fee, the Department has no factual basis for denying him the opportunity for taking the competency examination.
15. This result is also supported by administrative and judicial efficiency. If Hughes takes the examination and demonstrates professional competency as a water well driller, the Department may issue an order which completely addresses all matters pertaining to the grant or denial of a license. An opportunity is then accorded to Hughes, if he is aggrieved by that order, to take administrative review under IC 4-21.5 of all potential contests pertaining to the license. If Hughes takes the examination and fails to demonstrate competency, potential legal contests may be mooted with respect to other reasons which allegedly support license denial.
16. On the other hand, if Hughes is required to exhaust review opportunities with
respect to testing before he can seek review of other contests pertaining to his licensing as a
water well driller, the result may well be piecemeal adjudications to the greater expense of the
parties and with resulting inefficiencies to the commission and the courts.