STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONALD A. MOYANT, )

)

Petitioner, )

)

vs. ) Case No. 85-3504

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Bearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above-styled case on January 29, 1986, at Tampa, Florida.

APPEARANCES

For Petitioner: Donald A. Moyant, pro se

401 Cranberry Lane Brandon, Florida 33511

For Respondent: H. Reynolds Sampson, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

By letter dated September 16, 1986, Donald A. Moyant, Petitioner, contests the solution to problem No. 2 on the June 1985 Builder's Exam graded by the Construction Industry Licensing a Board (CILB), Respondent. By Suggestion of Mootness dated January 22, 1986, Respondent moved to dismiss the petition. As grounds therefor Respondent alleges that even if Petitioner were given full credit for question No. 2 he still would not pass the examination, therefore these proceedings are moot. That motion was supported only by an unsigned affidavit. At the hearing the motion was renewed and this was supported by an affidavit of Jack McMahon (Exhibit 1), the administrative assistant in charge of examinations for the CILB, averring that Respondent's overall grade on the exam was 58.60, that 70 is required for the examinee to pass, and that if Respondent were given full credit for

question No. 2 his overall grade would be 60.35. Ruling on that motion was reserved. Thereafter, Petitioner testified in his own behalf, Respondent called one witness, and four exhibits were admitted into evidence. Exhibit 4 is a late-filed deposition of Claude Bagwell, P.E., a consultant to ACSI, the agency which prepared the examination problem here contested.

After hearing the witnesses and considering all of the evidence presented, it is concluded that the motion to dismiss these proceedings for mootness should be granted and it is so recommended in this order. All proposed findings submitted by Respondent are accepted. Those not included below were deemed immaterial or unnecessary to the results reached.

FINDINGS OF FACT

1. Donald A. Moyant, Petitioner, operates a contractors' exam school in Brandon, Florida, at which he preps builders to take the CILB exam for licensure as contractors.

   
   

2. Petitioner took the exam given in June 1985 and received a score of 58.60. A score of 70.00 is required to pass this examination.

   
   

3. The only answer that Petitioner questions is the answer he supplied to question No. 2, which related to the number of reinforcing bars required in a concrete slab of given dimensions and spacings of the bars.

   
   

4. In Petitioner's solution to the problem he dropped the fractional bar that resulted from dividing the length of the slab by the spacing between bars. The correct solution requires the addition of a bar for this fractional spare.

   
   

5. Petitioner's purpose in pursuing this proceeding is to obtain information to use in his Contractors Exam School, Inc. Since he would not have passed the examination even if his solution to question No. 2 had been marked correct, Petitioner is without standing to bring this action because he is doing so on behalf of the school he runs and not to allow him to receive a passing grade.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to, and subject matter of, these proceedings. These proceedings were brought by Petitioner solely for the benefit of his school and, if the school does not have standing, neither does Petitioner. To have standing Petitioner is required to show an injury which is both real and immediate. Montgomery

   v. Department of Health and Rehabilitative Services, 468 So. 2d 1014 (Fla. 1st DCA 1985). Since Petitioner would not receive a passing grade even if given full credit for his erroneous answer to question No. 2, this petition is moot. Mootness has been defined as "the doctrine of standing set in a, time frame: the requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness)." Monoghan, Constitutional Adjudication: The Who and Where, 82 Yale LJ 1363, 1384 (1973). Mootness occurs in two basic situations. When the issues are no longer live or when the parties lack a legally cognizable interest in the outcome. Powell v. McCormack, 395 U.S. 486, 496, 89 S. Ct. 1944,

   1951, 23 L.Ed 2d 491, 502 (1969).

   
   

7. Since Petitioner can be granted no effective relief, these proceedings are moot.

   
   

8. Petitioner has the burden to prove, by a preponderance of the evidence, that the solution to question No. 2 proffered by Respondent is incorrect. Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). This, Petitioner has failed to do.

From the foregoing it is concluded that Petitioner was without standing to pursue this proceeding because the issue was moot; and, even if Petitioner did have standing he failed to show that the answer to question No. 2 that he gave on the June 1985 contractor's exam was correct. It is

RECOMMENDED that this petition be dismissed.

DONE AND ENTERED this 28th day of February, 1986, at Tallahassee, Florida.

K. N. AYERS, 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 28th day of February, 1986.

COPIES FURNISHED:

James Linnan, Executive Director Construction Industry Licensing Board Department of Professional

Regulation

Post Office Box 2 Jacksonville, Florida 32202

H. Reynolds Sampson, Esquire Deputy General Counsel Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Donald A. Moyant

401 Cranberry Lane Brandon, Florida 33511

Fred M. Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore A. Carpino, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 85-003504

Orders for Case No: 85-003504