vs. ) CASE NO. 75-1231
Respondent. )
Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, James E. Bradwell, held a final hearing in this cause on January 22, 1977. 1/
For Petitioners: James A. Baccus, Esquire
At the outset of the hearing, counsel for the parties advised that the original Petitioners', Armando Perez and Miguel Oyarzun had both passed subsequent examinations and that the issues herein have become moot in so far as those two examinees were concerned. They entered stipulations to dismiss them from this cause. The remaining two petitioners' Anthony Kafouros and Dennis Milch have not passed subsequent examinations.
The Petition seeks review of the actions and decisions of the Respondent denying Petitioners a general contractor's license due to their failure to receive a passing grade on the general contractor's license examination administered May 23, 1975. Petitioners allege that Respondent exceeded its authority and discretion granted by legislation by: (a) failing to administer "objective" and unambiguous questions as required by Chapter 468.106(2)(a) Florida Statutes; (b) by failing to use a passing grade of 70 percent as commanded in Chapter 468.106(2)(b), Florida Statutes; (c) by failing to allow the Petitioners to see their exam paper and grades as commanded by Chapter 468.110, F.S. (d) by failing to allow the Petitioners to review their tests pursuant to Chapters 119.07(2)(c), Florida Statutes; and (e) by administering an illegal examination by allowing insufficient time to answer the questions asked in violation of the intent of Chapter 468.106(1)(2) Florida Statutes.
By Order dated October 23, 1975, the undersigned entered an order addressed to the allegation contained in Petitioner's request to see their papers and
grades and to review their tests pursuant to Chapter 119. As to each, Petitioners' requests were granted in the above referenced order.
Based upon my observation of the witnesses and their demeanor while testifying, I make the following:
On May 23, 1975, the Petitioners herein took the general contractors licensing exam in Miami, Florida. Petitioners failed to achieve a passing score on said examination and thereafter several reviews of the examination questions and answers resulted.
The exam in question was administered to approximately 659 examinees. The test was made up of 100 questions and the examinees were allotted 4 hours to complete the exam. The examinees were instructed in the examination booklet to answer as many questions as possible within the time limit and to always select the best possible answer out of the listed choices. The examinees were furnished a list of reference materials by Respondent and they were advised that the exam questions would come from some 18 odd reference books supplied on the reference lists.
Petitioner Dennis Milch took the general contractor's examination administered on May 23, 1975. 2/ In preparation of the exam he took a prep course given by Cole Construction and began his preparation approximately two months prior to the exam. He received a score of 67.5 on the exam. He earned a degree from the University of South Florida and took advance construction courses at FIU where he earned a degree in marketing. His work experience consisted of serving as an apprentice carpenter for Burke Construction Company in Miami for approximately two months and as a contractor to build residential homes in Houston Texas. Milch voiced his opinion that the exam questions failed to satisfy the statutory requirements of being "objective" within the meaning of Chapter 468, Florida Statutes.
Joseph Cole, the founder of Cole Construction College in 1949, testified that he had approximately 30 years experience in teaching construction, architectural and engineering courses. He had conducted various seminars for students and received a B.S. Degree from the University of Miami. He received a B.S. Degree in biochemistry and civil engineering from the University of Pittsburgh and conducted seminars at the University of Florida in Math, Physics and Engineering. He also conducted seminars at the Markowitz Engineering School. He was licensed in 1947 in Coral Gables, Miami Beach, and in Miami where he has built approximately 2,000 single-family homes, high-rise buildings and apartments. He aired his opinion that Milch missed approximately
36 questions of which approximately 24 were what he regarded as "impossible" questions. He expressed his awareness that during the morning sessions two questions were voided and credits were given to all examinees having a point value of 1 point each. Two questions were also voided from the afternoon session.
Thomas H. Hebert, an associate of the testing agency which compiled the exam for the Board, i.e., Bryon, Harlow, Schaefer, Reed and Associates, explained the procedure for compiling the tests for the Board (Respondent). He stated that data is taken from Board references and an exam format is established. Examinees are tested on plan reading and estimating using standard plans for takeoff and specification requirements. The test is first administered to contractors and others who had previously passed the exam. This
is done to test time limits, etc., and grading procedures. By so doing, he testified that it is possible to correct deficiencies in the exam. After the examination is compiled and is administered to the agency employees and other contractors who have passed the exam, an item analysis is compiled and computerized. There are five possible answers for each question. The exam is divided into three segments, i.e., the upper 27 percent, the mid 46 percent, and the lower 27 percent. After the tests results are in, the weighting on various questions are checked to see if large numbers of examinees "jump" one question and further to see if questions are ambiguous. If found to be or that there are two correct answers for a given question, credit is given for both answers.
Thereafter, a discrimination index is compiled based on the lower and upper 27 percent. These papers are scrutinized and if there is a discrepancy in excess of .1 to .8 percent, the question is examined and a solution is derived at based on results gathered from the scrutiny. He testified further that if an exam paper is mutilated or is otherwise difficult to machine score, it is hand graded. All exam papers in which the score ranged from 0 to 30 are hand graded as are those where the score ranges between 60 to 70. Of those questions where there is no correct answer, the question is deleted and a new base is established. For example, if a question is deemed faulty, each question has a weight of 1.1 one hundredths of a point. If they have three correct answers, points are given for all three answers. It was further brought out during his testimony that it was not necessary for a contractor to pass the certification examination in order to practice contracting in Florida. Evidence reveals that there are two kinds of licenses issued by the Board, i.e., registration and certification.
The registration process only requires compliance with local requirements and the filing of a form with the Board, which may be the passing of a local competency exam or simply obtaining a local occupational license.
The Certification method is optional and if the contractor passes the certification examination, it is unnecessary for him to take any local examinations.
After going over various questions missed by Petitioner Dennis Milch, Petitioners argue that the scope of the Board Certification Examination included questions affecting the business of contracting as well as the technical aspects of for example how to nail two boards together to make a safe structure.
Florida Statutes Chapter 468.106(2)(a) provides for an examination covering knowledge of basic principles of contracting and construction. Chapter
468.101 declares the purpose of Chapter 468 and states in pertinent part that "any person desiring to obtain a certificate to engage in the business shall be required to establish his competency and qualifications." Hence, the legislature has covered the business of contracting as well as the theory of construction. This serves the purpose of Chapter 468 by making it safer for owners to contract with the contractors and to have assurances that no liens will be placed on their property by subcontractors, that the owners are safe from suit from work that was done on the job, that the payments made on the construction will not be diverted and that the contractor understands his obligations. This requires general knowledge of the mechanics lien law, basic contract law and workers compensation law, all of which were tested by the subject examination.
Respecting Petitioners' argument that they were denied certain constitutional guarantees when they were instructed by Respondent to select the best possible answer but that after the test was administered and Respondent
determined that many questions had no best choice, the Board failed to delete such questions from the exam, it was noted that after the Respondent discovered that several test questions were deemed acceptable but that the answers offered did not meet the tests of selecting the best possible answer, adjustments were made. In other words, there was no single best possible answer for approximately four questions. Rather than deleting the entire question, Respondent permitted those examinees who selected either the answer originally preferred by the Board or one of the later adopted alternate answers to achieve full credit for such questions and answers. The statute (Chapter 468, F.S.) mandates that the examination be an "objective" written examination. The criteria of objectivity is not met where the examining body is granted the discretion to accept alternate answers to a given question. A "best" answer is something different from an acceptable answer. To give the Board discretion to accept alternate answers would authorize a substitution of standards which is' not permitted by Chapter 468, F.S. Once subjectivity comes into play, Respondent becomes vested with almost unbridled discretion in deciding who shall become a certified general contractor. This was prohibited by the legislature by requiring objectivity in setting a uniform minimum test grade. As relates to Petitioner Milch, it was noted that a subsequent review of his exam resulted in his being awarded a half credit for his answer to question number 39 and the Board determined that after review answers B and A were both correct. The net result of this was that his overall score was 68. A review of the court cases revealed that Florida courts have not been involved in the minute details of how examination grades or points are awarded. See the cases of State ex rel. Topp
v. Board of Electrical Examiners, 101 So.2d 583 (Fla. App. 1st 1968), and State ex real. Lane v. Dade County 258 So.2d (347 Fla. App. 3rd, 1972). These cases generally show that unless there is a clear abuse of discretion, courts shall not substitute their judgment for the agencies as to how examinations are graded.
Petitioners also submit that once regrading had commenced, the Board should have deleted all questions with wrong answers or more than one equally acceptable answer, distributed the weight of the deleted questions in proportionate fashion of the remaining questions and considered passing to be 70 percent of the total points available, rather than 70 cumulative points. During the hearing, Petitioners failed to show how they were injured by the difference in the award of the points for questions deleted. A wrong without damage does not constitute a good cause of action. Based on the evidence presented it appears that the Petitioners are treated the same as all other examinees. Since the Petitioners have failed to establish that if the assignment of points were different, they would have passed the examination, this argument is moot.
Petitioners also alleges that they were denied certain constitutional protections by Respondent's failure to adopt and promulgate uniform rules and regulations concerning preparation, administration and review of licensing examinations.
Florida Statutes, Chapter 468, requires Respondent to conduct its affairs pursuant to Florida Statutes Chapter 120. The Administrative Procedure Acts set out specific procedures to be followed by State agencies in adopting, promulgating and enforcing rules. Statutory authority governing the granting of a license should be strictly followed. In this case, there is no evidence of the existence of any unlawful rule or regulation adopted by Respondent to govern any of the variety of issues concerning the licensing of general contractors.
Petitioners also submit that the Board should be required to promulgate and enforce rules concerning examinations and appeals or results
thereof and cite the reasons for the actions it takes prior to its review of the examination. The Board is not required to adopt rules and regulations in every area in which it is authorized to act by statute. Where the statute is clear, there is no requirement or reason by the Board to adopt rules. Here, the Board provided the applicants with a chance to examine the questions, their papers, grades and to complain if they wished about the questions either individually or at board meetings with the possibility that the fairness of the questions could be resolved quickly and informally and if necessary, as in this case, without the full ponoply of an administrative hearing. By so doing, the Board was clearly following its statutory duty to provide the applicants with a chance to see their examination papers and grades. (F.S. Chapter 466.110).
Based on the above, it is concluded that Respondent compiled the May 23, 1975 examination based on objective standards. When the Board determined that certain questions were defective either because there was more than one answer or for other reasons, the Board reviewed said questions and credited those examinees who failed to properly answer the question. By so doing, Petitioners were treated the same as all examinees who took the exam. Based on the record evidence, it further appears that all the questions meet the statutory tests of being objective and the Board's determination that a cumulative score of 70 percent is necessary to successfully obtain a certification, was not shown by any competent or substantial evidence to be an abuse of discretion.
It is therefore recommended that the agency's action be sustained and that the petition filed herein be dismissed.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to this proceeding.
The parties were duly noticed pursuant to the notice provisions of Chapter 120, F.S.
The Petitioners failed to demonstrate prejudical error based on the agency's actions or that it otherwise abused its discretion in denying Petitioners their general contractors licenses due to their failure to receive a passing grade on the general contractors licensing examination administered on May 23, 1975.
Based on the foregoing findings of fact and conclusions of law, it is therefore recommended that the agency's actions be affirmed and the petition filed herein be DISMISSED.
DONE and ENTERED this 17th day of January, 1977, in Tallahassee, Florida.
JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
1/ Subsequent to the final hearing in this cause, the parties filed Motions To Stay further actions in this proceeding pending outcome of the June, 1976 exam. When the results of that exam were released and it became known that Petitioners' Anthony Kafouros and Dennis Milch did not pass the exam, Petitioners' counsel filed a Motion for Respondent to produce a "legible" transcript. On August 10, 1976, Respondent's attorney advised that the transcript in this case was transcribed and would be made available to Petitioners when they tendered the necessary transcript fees. Thereafter the parties were allowed until October 18, 1976, to submit any proposed findings of fact or conclusions with me for my consideration in the preparation of this recommended order.
2/ Petitioner Kafourous did not appear at the hearing to testify or to otherwise present evidence in support of his petition.
