Judges: DONALD D. CONN
Agency: Department of Business and Professional Regulation
Latest Update: Feb. 21, 1986
Summary: Petition was denied. Petitioner failed to show exam question was vague, unclear, or that he answered question correctly.
85-2532.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JERRY C. KIMBRELL, )
)
Petitioner, )
)
vs. ) Case No. 85-2532
)
DEPARTMENT OF PROFESSIONAL )
REGULATION, CONSTRUCTION )
INDUSTRY LICENSING BOARD, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a final hearing was held in this case on February 13, 1986 in Jacksonville, Florida before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented as follows:
APPEARANCES
For Petitioner: Jerry C. Kimbrell, pro se
9926 Beach Boulevard, Suite 83
Jacksonville, Florida 32216
For Respondent: H. Reynolds Sampson
Deputy General Counsel
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Jerry C. Kimbrell, Petitioner, has requested a hearing on the failing grade he received on the February, 1985 certified general contractor's examination, and specifically contests the validity of Question 16 on that exam. At the hearing, Petitioner called Zohar Herbmsan, Ph.D., Donald D. Farshing, Ph.D., and Thomas J. Surprise, a licensed general contractor in Florida, and Petitioner also introduced one exhibit, which was a copy of exam Question 16 with an attached construction activity network pertaining to Question 16. Respondent called Petitioner and Jack McMahon, Administrative Assistant in charge of examinations, and also introduced four exhibits. No transcript of the hearing has been ordered by the parties, and the parties waived their right
to submit proposed findings of fact, conclusions of law and memoranda prior to the issuance of this Recommended Order.
FINDINGS OF FACT
Petitioner took the certified general contractor's exam administered by Respondent on February 14 and 15, 1985.
There were three portions to this exam designated as Day 1-AM, Day 1-PM, and Day 2. No minimum grade on any portion of the exam was required as long as the applicant received an overall weighted grade of 70.
The exam portions designated as Day 1-AM and Day 1-PM are weighted 35% each, and the Day 2 portion is weighted 30%.
Petitioner received the following grades on his exam: Day 1-AM a weighted grade of 26.25 (unweighted grade of 75); Day 1-PM a weighted grade of 15.75 (unweighted grade of 45); Day 2 a weighted grade of 26.70 (unweighted grade of 89). His overall weighted grade was 68.70 and this was a failing grade.
According to Respondent, Petitioner incorrectly answered Question 16 on the Day 1-AM portion of the exam, and Jack McMahon, Administrative Assistant for Respondent, testified that had Petitioner correctly answered this question his overall weighted grade would have risen to 70.45, a passing grade.
Question 16 is a multiple choice question which requires the applicant to calculate the number of days "required to construct a building from the first day of contract award through final project completion." The question states a given recommendation that "the final inspection be made while the clean up is being done" in order to reduce overall project time. Further, a diagram is attached to the question which is labeled Construction Activity Network, and this diagram details thirty- nine activities with time durations for each.
In answering Question 16, the applicant is expected to use, and demonstrate a knowledge of, a methodology known: as "critical path method of scheduling (CPM)." CPM is a method whereby all of the activities that are required to complete a project are put in sequential order, accounting for those activities that are dependent on others, as well as those that can be done simultaneously. By using a diagrammatic presentation of arrows, the shortest period of time that a project can be accomplished is portrayed based on items that are critical to accomplishing the project.
Petitioner contends that Question 16 is unclear and ambiguous, and that in any event he correctly indicated the "closest" answer, which is what this multiple choice question asked for. This contention is supported by Dr. Zohar Herbmsan,
Associate Professor in civil engineering at the University of Florida, Dr. Donald D. Farshing, Associate Professor in engineering and technology at the University of North Florida, and Thomas J. Surprise, licensed general contractor, all of whom had reviewed the question and are familiar with CPM. Using CPM, Petitioner calculated the project time called for in Question 16 as between 152 and 157 days, and so chose answer (a) which indicated 161 days since this was the closest answer to what he believed was the correct answer. Drs. Herbmsan and Farshing and Mr. Surprise testified that they also would have given answer (a) in response to this question.
Petitioner's contention is rebutted, however, by the fact that 555 of 792 applicants taking this exam (70%) gave answer (b) in response to this question and only 128 (16%) gave answer (a). Respondent required applicants to give answer (b) which indicated 162 days in order to receive credit on this question. Only 45% of those taking this exam received a passing overall weighted grade. Thus, substantially more of the applicants correctly answered Question 16 than passed the entire exam. According to statistical analysis performed by Respondent on the results of this exam, Question 16 received a "discrimination index" of .418. Questions are reviewed for possible problems when this index falls below .37, and therefore a problem with the wording, clarity or possible answers given in this question was not statistically indicated.
According to Donald D. Kaye, staff director for the Construction Industry Licensing Board's testing firm, whose testimony was received by transcript of a deposition attended by Petitioner, Question 16 was prepared using authoritative sources and references concerning construction activities. He confirmed that answer (b), 162 days, is the correct answer to Question 16. This fact is supported by letters to Petitioner from two contractors whose opinion on Question 16 had been solicited by Petitioner. Both contractors indicated that Petitioner's answer to this question was incorrect.
Based upon the evidence in the record, it is specifically found that Petitioner did not answer Question 16 on the February, 1985 exam correctly, and therefore should not be given credit for his answer to this question.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), F.S. The Respondent has the authority to administer an examination to determine the qualifications of a
person seeking to be licensed as a general contractor in this state. Section 489.111, F.S.
Petitioner has the burden of proof in this case. He must show that Respondent acted erroneously, arbitrarily or capriciously in the administration and grading of the exam, specifically Question 16. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).
The evidence produced at hearing does not establish that Question 16 was vague or unclear, or that Petitioner correctly answered this question. To the contrary, the evidence substantiates Respondent's position that Petitioner incorrectly answered Question 16 and therefore should not be given credit for his answer to this question. Since Petitioner has not met his burden of proof, his application for licensure should be denied based upon the failing grade he received on the February, 1985 exam.
RECOMMENDATION
Based upon the foregoing, it is recommended that Respondent issue a Final Order denying Petitioner's application for licensure and confirming the failing grade received by Petitioner on the February, 1985 exam.
DONE AND ENTERED this 21st day of February, 1986 in Tallahassee, Florida.
DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 1986
COPIES FURNISHED:
Jerry C. Rimbreil
9926 Beach Blvd., Suite 83
Jacksonville, Florida 32216
H. Reynolds Sampson
Deputy General Counsel Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
James Linnan, Executive Director Construction Industry Licensing Board
P.O. Box 2
Jacksonville, Florida 32202
Fred Roche, Secretary Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
Salvatore A. Carpino, General Counsel Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
Docket for Case No: 85-002532
Orders for Case No: 85-002532
| Issue Date |
Document |
Summary |
|
Feb. 21, 1986 |
Recommended Order
|
Petition was denied. Petitioner failed to show exam question was vague, unclear, or that he answered question correctly.
|
