STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES C. MARSHALL, )

)

Petitioner, )

)

vs. ) CASE NO. 89-1232

) DEPARTMENT OF PROFESSIONAL REGULATION, ) CONSTRUCTION INDUSTRY LICENSING BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case in Miami, Florida on May 25, 1989, before J. Stephen Menton, duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: James Conrad Marshall, Pro Se

3241 South West 104 Court

Miami, Florida 33165

For Respondent: E. Harper Field, Esquire

Deputy General Counsel

Department of Professional Regulation Northwood Centre, Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

STATEMENT OF THE ISSUES

The issue in this proceeding is whether Petitioner's examination for licensure as a residential contractor was incorrectly graded.

PRELIMINARY STATEMENT

By letter dated February 15, 1989, the Petitioner requested a hearing to contest the failing grade he received on the residential contractor examination given in October, 1988. In his letter, the Petitioner questioned the validity of three of the questions on the October, 1988 exam. At the hearing, Petitioner challenged those questions and raised an objection to one additional question.

Petitioner testified on his own behalf and offered two exhibits into evidence which were accepted without objection. Respondent presented the testimony of one witness, George Bruton and produced the exam questions at the hearing for review. Mr. Bruton has eighteen years experience in the construction industry and has served as an examination development director for a contractor hired by the Department of Professional Regulation to administer the exam. He was accepted as an expert on construction practices and on testing procedures.

No transcript of the hearing has been provided by the parties. By agreement of the parties, proposed recommended orders were due twenty days following the conclusion of the hearing. Proposed recommended orders have been timely filed by both parties. After an objection was filed by Petitioner to the Proposed Recommended Order filed by Respondent, Respondent filed a Correction to Proposed Recommended Order on June 29, 1989. This correction has been accepted and Respondent's Proposed Recommended Order is deemed amended in accordance with the correction Rulings on the proposed findings submitted by the parties are included in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon my observation of the witnesses, their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I make the following findings of fact:

1. In order for Petitioner to obtain a license as a residential contractor in Florida, he is required to successfully complete a certification examination. The examination is prepared by the ACSI National Assessment Institute and administered by the Department of Professional Regulation (DPR). The questions on the exam are prepared from specific reference materials disclosed to the applicants, generally accepted industry procedures and standard field knowledge.

   
   

2. Petitioner took the residential contractor's examination administered by DPR in October, 1988.

   
   

3. There were three parts to the examination and an applicant was required to pass all three parts in order to be entitled to licensure.

   
   

4. Petitioner received the following grades on his exam: Part I - 67.5; Part II - 84.0; Part III - 84.0.

   
   

5. While the grades received by the Petitioner on Parts II and III of the exam were passing scores for those sections, Petitioner needed to obtain a grade of at least 69.01 on Part I in order to pass the exam.

   
   

6. Petitioner challenges several of the questions on Part I of the exam contending that they were unclear and ambiguous, and that, in any event, he correctly indicated the "closest" answer included for the multiple choice questions.

   
   

7. There is conflicting evidence as to the value of each of the challenged questions. At the hearing, Respondent's testing expert testified that each of the questions challenged by Petitioner was worth one point and, therefore, Petitioner would have to succeed in challenging two of the questions in order to obtain a passing grade in excess of 69.01. However, Petitioner challenged this evaluation system as being contrary to the information set forth in the testing materials. According to Petitioner, those materials indicated that each question was worth two points. In the Proposed Recommended Order submitted by counsel for Respondent, it is admitted that each correct question has a grade value of two points. Based upon this admission, the undersigned finds that each of the challenged questions is worth two points.

   
   

8. The first question challenged by Petitioner, BA#1, involved the amount of reimbursement that could be expected under a builder's risk insurance policy following an accident on a job site. The question provides the exam taker with a detailed listing of the damage that occurred. The factual predicate for the

   question sets forth the replacement cost for damage to a temporary job site structure, the amount of damage to construction materials not in place and the amount of damage to a truck which was not covered by vehicular insurance.

   According to Respondent, the correct answer to the question required the applicant to add those three items together to determine the amount that would be paid under the insurance policy.

   
   

9. In selecting his answer, Petitioner did not include the damage to the truck.

   
   

10. Petitioner contends that he did not include the damage to the truck in calculating the amount of insurance proceeds that could be expected for two reasons. First, he contends that the owner of the truck was not identified. However, Respondent was able to demonstrate from the approved reference materials that the owner of the truck was not a controlling factor if the truck was located on the project property. Therefore, Petitioner's challenge to the question on this basis has no merit. However, the second reason cited by Petitioner for not including the damage to the truck as part of the expected insurance proceeds has merit.

    
    

11. According to the approved reference materials, to be included under the all risk policy, the truck must be categorized as either construction equipment or part of the contractor's tools. As noted above, the contractor was not clearly identified as the owner of the truck so there is no basis for including the truck as part of the contractor's tools. While the reference materials clearly indicate that "construction equipment" is covered under the all risk policy, Petitioner contends that the truck in this question was not sufficiently described to be included in the classification of "construction equipment". In support of his contention that the truck should not be considered "construction equipment," Petitioner cited several portions of the reference materials which state that "construction equipment" does not have a common meaning, but includes the "equipage used for the physical accomplishment of the work." The reference materials do not specifically state that trucks or other vehicles designed for highway use are included within the definition of construction equipment. Indeed, in the portions of the reference materials dealing with construction equipment, only tractors and similar heavy machinery are specifically mentioned. Petitioner also introduced a copy of a builder's risk insurance form used by a local insurance agent which specifically excludes "conveyances designed for highway use." Thus, the only evidence of industry standards indicates that trucks are specifically excluded from builder's risk policies. In sum, based upon the approved reference materials and industry standards, Petitioner was justified in excluding the damage to the truck in arriving at his answer to question BA#1.

    
    

12. The second question challenged by Petitioner was BA#6. This question required an applicant to compare estimated costs of construction with actual costs reflected on the job cost ledger. The factual predicate for the question provided for a positive cash inflow achieved from resale of excavation material. According to Respondent, the correct answer to the question should have included this "negative cost" in determining the difference between the estimated cost and the actual cost reflected on the job cost ledger. Petitioner contends that the "negative cost" for spoils disposal should not be included on the cost ledger. While Petitioner concedes that the spoils disposal can result in positive cash inflow, he contends that such a positive inflow should not be reflected as a "cost", but instead should only increase the contractor's profit on the job.

13. The reference materials for the exam do not clearly state that "negative costs" are includable within the job cost ledger. This accounting methodology is not set forth in the reference materials and is merely a book- keeping procedure rather than a construction standard established through field knowledge. Since this book-keeping procedure was not adequately explained in the reference materials and does not qualify as an industry standard, the Petitioner was justified in including only "positive costs" in answering question BA#6.

    
    

14. Petitioner also challenges question BA#9. That question states that an insurance company will provide a reduced premium if the insured adopts a safety program. The question also provides the cost associated with the implementation of the safety program. The exam taker is required to choose the answer that reflects the total cost of the insurance program. According to Respondent, the correct answer should include the reduced insurance premium plus the cost associated with implementing the safety program. Petitioner excluded the cost associated with the safety program on the grounds that it was not actually a "cost of insurance." While Petitioner's answer would have been correct if the question asked how much was paid to the insurance company, the question asked for the total net cost incurred by the company for insurance. Thus, the most appropriate response included the cost of the safety program which would necessarily be incurred in order to achieve the lower insurance premium. Petitioner has not sustained his burden of proof with respect to this question.

    
    

15. During the hearing, Petitioner also argued that question FA#11, which dealt with interest rates on a construction loan, tested an applicant on a subject matter which was beyond the scope of knowledge an applicant for a residential contractor's license can be expected to have acquired prior to taking the exam. While the question deals with subject matter that is generally available only to the owner of a project, (i.e., the interest payments due on the construction loan), to obtain the correct answer, the applicant needed only to apply simple math procedures involving the calculation of interest. These math procedures are typical skills a contractor will frequently utilize in business. Therefore, the Petitioner has not sustained his burden of proof in challenging this question.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes (1987).

    
    

17. The Respondent has the authority to administer an examination to determine the qualifications of a person seeking to be licensed as a residential contractor in this state. Section 489.111, Florida Statutes (1987).

    
    

18. Petitioner has the burden of proof in this case and must prove that the Respondent acted erroneously or arbitrarily or capriciously in the administration and grading of the exam. Florida Department of Transportation v.

    J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA, 1981).

    
    

19. The content of the examination and the grading criteria to be used in considering the adequacy of a candidate's response to the requirements of the examination, as well as the criteria for determining passing grades are contained in Rules 21E-16.001 and 21E-16.005, Florida Administrative Code.

20. The evidence produced at the hearing established that the "correct" answer to question BA#1 was not specifically supported by the reference materials. To the contrary, Petitioner's explanation as to why he excluded the damage to the truck in determining the expected insurance proceeds was consistent with industry standards as reflected in the exhibit submitted by Petitioner and was at least an equally valid interpretation of the reference materials. Therefore, Petitioner should be given credit for his answer to this question.

    
    

21. Similarly, the "correct" answer to question BA#6 is not supported in the reference materials or by standard industry practices. As Petitioner explained, he could have very easily added the "negative cost" to the other costs and given the "correct" answer if he had been advised as to the book- keeping procedures that were to be assumed in answering the question. Since the instructions and reference materials did not give the applicant adequate direction as to what he was being tested on, Petitioner should be given credit for his answer to this question.

    
    

22. Petitioner has not sustained his burden of proof with respect to the challenge to the other questions, BA#9 and FA#11, and, therefore, should not be given credit for his answers to these questions.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner's October, 1988 examination for residential contractor's license be regraded in order to give him credit for correctly answering questions BA#1 and BA#6 and that Petitioner be deemed to have passed the exam and be qualified for registration as a residential contractor.

DONE AND ENTERED this 4th day of August, 1989, in Tallahassee, Leon County, Florida.

J. STEPHEN MENTON Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of August, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-1232

Both of the parties have submitted Proposed Recommended Orders. The Petitioner's Proposed Recommended Order contains a number of paragraphs of mixed findings of fact and conclusions of law which have not been numbered throughout. To the extent that the proposed findings of fact can be isolated, they are addressed below.

Petitioner's Proposed Findings of Fact

Proposed Finding of Paragraph Number and Recommended Order Fact Number Where Accepted or Reason for Rejection

1. Accepted in Finding of Fact 8.

2. Accepted in part but subordinate to Finding of Fact 10.

3. Accepted in Finding of Fact 11.

4. Accepted in Finding of Fact 11.

5. Accepted in Finding of Fact 11.

6. Rejected as overbroad. However, see Finding of Fact 11 which deals with this issue.

7. Accepted in Finding of Fact 12.

8. Accepted in Finding of Fact 12.

9. Accepted in Finding of Fact 12.

10. Accepted in Finding of Fact 12.

11. Accepted in Finding of Fact 12.

The remainder of Petitioner's Proposed Findings of Fact and Recommended Order are deemed by the undersigned to constitute merely summarization of the testimony or legal argument.

Respondent's Proposed Findings of Fact

Proposed Finding of Paragraph Number and Recommended Order Fact Number Where Accepted or Reason for Rejection

1. Accepted in Findings of Fact 2, 3-5.

2. Accepted in Findings of Fact 6, 8, 10, 12, 14 and 15. However, Petitioner also challenged question FA#11.

3. Accepted (as amended by the correction filed on June 29) in Finding of Fact 7.

4. The first sentence is adopted in the preliminary statement. The second sentence is rejected as subordinate to the Findings of Fact set forth in this Recommended Order.

5. The first sentence is adopted in the preliminary statement. The second sentence is rejected as merely a summary of the testimony.

6. The first sentence is adopted in Findings of Fact 10 and 11. However, The second sentence is rejected as a result of the Correction to Proposed Recommended Order filed by Respondent on June 29, 1989.

7. As to question BA#6, this proposal is rejected as subordinate to the Findings of Fact contained in this

Recommended Order. As to question BA#9, this proposal is adopted in Finding of Fact 14.

COPIES FURNISHED:

Bruce D. Lamb, General Counsel Department of Professional Regulation 1940 North Monroe Street, Ste 60

Tallahassee, Florida 32399-0729

E. Harper Field

Deputy General Counsel Department of Professional

Regulation

Northwood Centre, Suite 60 1940 North Monroe Street

Tallahassee, Florida 32399-0792

James C. Marshall, Esquire 3241 S.W. 104 Ct.

Miami, Florida 33165

Docket for Case No: 89-001232

Orders for Case No: 89-001232