STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN L. HORN, )

)

Petitioner, )

)

vs. ) CASE NO. 80-2147

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

PURSUANT TO NOTICE, the Division of Administrative Hearings, by its duly designated Hearing Officer, WILLIAM B. THOMAS, held a hearing in this case on January 29, 1981, in Jacksonville, Florida.

APPEARANCES

For Petitioner: John L. Horn, in pro per

114 Willow Branch Avenue Jacksonville, Florida 32205

For Respondent: Charles F. Tunnicliff, Esquire

Assistant General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

The Petitioner requested an administrative hearing to determine whether his application for a license as a Class B Air Conditioning Contractor was properly denied by the Construction Industry Licensing Board. At the outset, the Board conceded that Mr. Horn is qualified to be licensed in all respects except that he had not passed the required examination. Mr. Horn stipulated that the only issues presented were whether Question 6 of the morning portion of the February 22, 1980, Class B Air Conditioning Contractor's Examination was a valid question, and whether his answer to this question was correct.

Mr. Horn presented four witnesses including himself, a mechanical contractor, an air conditioning contractor, and a mechanical engineer. The Board presented the director of the firm responsible for preparation of the examination questions, two examination specialists from the Department of Professional Regulation, and a consulting mechanical and air conditioning engineer. Two exhibits were received in evidence, including the deposition of the individual who actually prepared Question 6 of the examination which is the subject of this proceeding.

The transcript was filed on February 24, 1981. The parties requested 20 days thereafter within which to submit proposed finding of fact and conclusions

of law, and waived the filing of a Recommended Order until 30 days after these pleadings were submitted. This time expires on April 15, 1981. Each of the proposed findings submitted by the Respondent is adopted. Those filed by the Petitioner consist mainly of argument, and are rejected.

FINDINGS OF FACT

1. The Petitioner, John L. Horn, applied for and took the February 22, 1980, examination for a Class B air conditioning contractor's license, having been qualified, and meeting all preliminary requirements to sit for this examination. Mr. Horn answered Question 6 of the exam by selecting multiple choice Answer E.

   
   

2. Question 6 of the February 22, 1981, examination was as follows:

   
   

   The contractor for the classroom and office building shown on Drawing AC-3 is required to accurately measure the air flow from each of the air handling units. Which of the following methods should be used?

   
   

   1. A magnehelic gauge with the high pressure port connected to the supply duct and the low pressure port connected to the return duct.

      
      

   2. An inclined draft gauge with a pitot tube traverse at several points in the supply duct to determine the mean velocity.

      
      

   3. An inclined draft gauge with a pitot tube traverse in the centerline of the supply duct to determine the actual velocity.

      
      

   4. A rotating vane anemometer located in the supply duct air stream.

      
      

   5. A velometer located at each sidewall outlet.

      
      

      All answers except Answer B were graded as incorrect, including the answer submitted by Mr. Horn.

      
      

3. The February, 1980, Class B air conditioning contractor's examination was developed by American Community Testing Services, located in Jacksonville, pursuant to a contract with the Department of Professional Regulation. Question

   6 was prepared by Mr. Larry Simmons for the testing service. This question seeks multiple Choice Answer B as the correct answer.

   
   

4. Each examination question is written by an expert in the field, and is then checked by another expert for accuracy. The questions are then reviewed by a consultant to the testing service who is a professor of mechanical engineering. These internal review procedures are utilized to minimize the existence of errors.

   
   

5. Prior to the time an examination question is used, it is subjected to Departmental review to assure that any grammatical errors are corrected. Subsequent to the examination, Question 6 and the various answers given by

   examinees were analyzed. Based upon testing criteria, Answers C and D in Question 6 were judged to possibly be correct, in addition to Answer B. Based on this same testing criteria, however, Answers A and E were not possibly correct. A discrimination index disclosed that Question 6 was a difficult question. Nevertheless, every examinee is qualified by experience to sit for the examination, which is designed for competition among peers.

   
   

6. The post-examination review procedures used by the Department are for the purpose of assuring that there is not another correct answer. This review is performed by the writer of the question and an expert in the field being reviewed. The preferred method for measuring air flow is to use a pitot tube traverse, as suggested by Answer B. Other methods are available alternatives, but are not given as choices in the answers to Question 6. Answer A is incorrect because it measures static pressure and not air flow. Answer D is not correct because of the large hole that would have to be cut in the duct in order to insert the instrument, and after sealing the duct no reading could be taken. Answer E is also incorrect because it would allow air to flow into the room. Answer C could be correct in a small duct, but not in the duct shown on the drawing accompanying Question 6. The question seeks the best answer among the five choices; Answer B is the only acceptable choice and the correct answer.

   
   

7. Twelve of the 14 persons who scored in the upper 27 percent on the examination answered Question 6 correctly, by choosing Answer B. Only 7 of the

   19 persons who scored in the lower 27 percent on the examination answered this question correctly. This difference produced a discrimination index of .47 percent, which is within professional testing standards as an accurate measure of the validity of the question. This evidence was not controverted. Thus, based upon generally accepted testing criteria, the discrimination index shows Question 6 to be a valid question, and Answer B to be the correct answer.

   
   

8. Mr. Horn's contentions are not supported by the weight of the evidence presented. The burden of proof is upon an applicant for a license to demonstrate that he meets all standards for eligibility. Mr. Horn did not present sufficient evidence to meet this burden of proof, and the Board established by substantial, competent evidence the validity of Question 6 and the correctness of Answer B.

   
   

   CONCLUSIONS OF LAW

   
   

9. Chapter 489 (Part I), Florida Statutes, governs the regulation of the construction and home improvement industries in Florida. To administer this Act, the legislature established the Construction Industry Licensing Board as part of the Department of Professional Regulation. (Section 489.107, Florida Statutes.)

   
   

10. Pursuant to Section 489.111(1), Florida Statutes, any person who desires to be certified must apply to the Department to take the certification examination. Section 489.113(1) Florida Statutes, requires as a prerequisite to engaging in the contracting business on a statewide basis, that competency be established by means of an examination administered by the Department.

    
    

11. The Department offered an examination to demonstrate competency in the field of air conditioning contracting in February of 1980. Mr. Horn sat for this examination, and meets all other requirements for certification. However, Mr. Horn did not pass the February, 1980, examination. Thus, he is not eligible to be certified as a Class B Air Conditioning Contractor.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of John L. Horn for a license as a state

certified Class B Air Conditioning Contractor be denied.

THIS RECOMMENDED ORDER entered on this 15th day of April, 1981.

WILLIAM B. THOMAS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of April, 1981.

COPIES FURNISHED:

John L. Horn

114 Willow Branch Avenue Jacksonville, Florida 32205

Charles F. Tunnicliff, Esquire Assistant General Counsel Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Patricia R. Gleason, Esquire Assistant Attorney General The Capitol

Tallahassee, Florida 32301

Docket for Case No: 80-002147

Orders for Case No: 80-002147