STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEE A. RICCIARDI, )

)

Petitioner, )

)

vs. ) CASE NO. 87-1166

) 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, K. N. Ayers, held a public hearing in the above- styled case on July 17, 1987, at Clearwater, Florida.

APPEARANCES

For Petitioner: Lee A. Ricciardi, pro se

204 North Florida Avenue Tarpon Springs, Florida 33589

For Respondent: Chester Senf, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

By letter dated February 16, 1987, Lee A. Ricciardi, Petitioner, requested an administrative hearing to challenge the examination given to him and other applicants seeking licensure as residential contractors. As grounds therefor it is alleged many questions have no bearing on the qualifications needed to be successful residential contractors and the examination questions are geared for a younger person to pass or a person with more education "like a college graduate."

At the hearing, Petitioner testified in his own behalf, Respondent called one witness and three exhibits were admitted into evidence.

Proposed findings submitted by Respondent are accepted except those which constitute conclusions such as #5 and merely recite the testimony of a witness such as part of #7.

FINDINGS OF FACT

1. Lee Ricciardi is a 62 year old male who, before retirement, spent most of his working life as an automobile salesman. He worked as a carpenter in construction while in high school and, since leaving the automobile business has

   worked for U.S. Home Corporation in home construction, has built homes in Connecticut and Massachusetts and built his own home in Tarpon Springs.

   
   

2. Petitioner took the recommended course to prepare for the examination and he has taken the examination four times, failing on each occasion. His overall grade on the examination here challenged which was taken in October 1986 was 63.05. A grade of 70.0 is required to pass the examination.

   
   

3. Exhibit 1 shows that on the four examinations given to applicants for licensure as residential contractors between October 1985 and October 1986 the percentage passing range from 34 percent in June 1986 to 58 percent in October 1985.

   
   

4. Those questions excepted to by Petitioner, as shown on Exhibit 3, are the same questions shown in Exhibit 1. Most of the questions which Petitioner objected to involve calculations of the amount of materials, such as concrete, reinforcing bars, fill, etc. needed for the project comprising the examination problem. Petitioner merely contends that the concrete supplier can compute the amount of concrete needed for foundations, driveways, etc., the landscape contractor can advise the contractor the amount of fill, mulch and fertilizer that will be required, and that many of the questions asked on the exam are properly answered by the contractor's accountant.

   
   

5. Unless the residential contractor can determine the amount of material he will need to complete the project he cannot accurately estimate the cost of materials and labor he will have to expend to complete the construction.

   Lacking accurate information in costs, he cannot competently bid on constructing a residence for a prospective customer.

   
   

6. Of the four questions given the first morning of the examination which are challenged by Petitioner, 66 percent, 56 percent, 55 percent and 62 percent of the applicants taking that exam provided the correct answer. Of the five examination questions from the afternoon of the first day of the examination which are challenged by Petitioner, 51 percent, 30 percent, 42 percent, 48 percent and 38 percent of the examinees gave correct answers. Of those questions on the second day of the examination which are challenged by Petitioner, correct answers were provided by 65 percent, 76 percent, 71 percent,

   70 percent, 79 percent, 67 percent, 46 percent, 54 percent, 51 percent and 58 percent of the examinees.

   
   

7. Following an examination the answers are screened to determine the number of applicants providing correct and incorrect answers. The higher the percentage of examinees providing the correct answer the more valid the question is presumed to be. On the October 1986 examination challenged by Petitioner, the answer to only one question was deemed invalid and two answers were accepted as correct for this question.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Here the burden is on Petitioner to establish by a preponderance of the evidence that the challenged questions are invalid or inappropriate for an examination leading to licensure as a residential contractor. Balino vs. DHRS, 348 So.2d 349 (Fla. 1st DCA 1977). Petitioner presented no credible evidence to sustain this burden. The most that can be said for the evidence submitted by Petitioner is that he is an earnest and sincere individual whose lack of formal education in his younger

   years makes it very difficult for him to cope with the mathematics required to pass a residential contractor's examination and be licensed. Absolutely no evidence was submitted to show these questions were not relevant in determining costs, building code requirements or other information a residential contractor must have to successfully contract for and construct a residence.

   
   

9. From the foregoing, it is concluded that Petitioner has failed to prove, by a preponderance of the evidence, that the questions used on the October 1986 examination for licensure as a residential contractor were inappropriate for such examination. It is

RECOMMENDED that the challenge to this examination by Lee A. Ricciardi be dismissed.

ENTERED this 17th day of September, 1987, in Tallahassee, Florida.

K. N. AYERS 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 17th day of September, 1987.

COPIES FURNISHED:

Lee A. Ricciardi

204 North Florida Avenue Tarpon Springs, Florida 33589

Chester G. Senf, Esquire

130 North Monroe

Tallahassee, Florida 32399-0750

Tom Gallagher, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Fred Seely Executive Director

Construction Industry Licensing Board

Post Office Box 2 Jacksonville, Florida 32201

Docket for Case No: 87-001166

Orders for Case No: 87-001166