STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD EATON, )

)

Petitioner, )

)

vs. ) CASE NO. 89-1233

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case in Fort Pierce, Florida on May 23, 1989, before J. Stephen Menton, duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Curtis A. Littman, Esquire

Littman, Littman, Williams & Strike

P.O. Box 1197

Stuart, Florida 34995

For Respondent: D. 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 building contractor was incorrectly graded.

PRELIMINARY STATEMENT

By letter dated February 4, 1989, the Petitioner requested a hearing to contest the failing grade he received on the building contractor examination given in October, 1988. In his February 14, 1989 letter, the Petitioner only questioned the validity of two of the questions on the October, 1988 exam (questions 19 and 33). Prior to the February 14 letter, Petitioner had raised an objection to seven of the questions on the Construction Administration portion of the exam. (The questions challenged in the initial objection were questions 18, 19, 24, 25, 33, 34, and 35.)

At the hearing, Petitioner presented evidence in support of his challenge to question 19 and withdrew his objection to question 33. Petitioner testified on his own behalf and offered one exhibit into evidence which was accepted without objection. Respondent presented the testimony of one witness, Stanton Alexander and produced the questions (19 and 33) at the hearing for review. Mr. Alexander is a state certified General Contractor and has a number of years experience in the construction industry. He has also assisted in the development of the exam by the Department of Professional Regulation. He was accepted as an expert on construction practices and on testing procedures.

Because of the security precautions necessary to protect the confidentiality of the exam, only questions 19 and 33 were available for review at the hearing. During the hearing, counsel for Petitioner argued that all of the questions challenged in the initial objection should have been made available at the formal hearing and the unavailability of those questions unfairly restricted Petitioner from challenging those other questions during the hearing. For the reasons set forth in the Order entered in this cause on June 2, 1989, the hearing proceeded on the questions produced at the hearing. The record was left open in order to allow the parties to submit evidence at a later date regarding the questions that were not available at the hearing. The parties were instructed to coordinate the production and review of the additional questions and coordinate the timing and method for submission of additional evidence regarding those questions.

Contrary to the instructions set forth in the June 2, 1989 Order, the undersigned was not advised as to the efforts to review the remaining questions and the need to take further evidence on those questions. On October 2, 1989, Petitioner filed Petitioner's Memorandum of Law and Request for Ex-Parte Review and Ruling. That Memorandum sets forth Petitioner's challenge to question 24 on the exam and also requests the undersigned to rule on the issues raised at the hearing and in the Memorandum without any further evidentiary hearings. On October 16, 1989, Respondent filed its Proposed Recommended Order. Included with that Proposed Recommended Order was a copy of question 24 together with the

505 and supportive material. In view of the foregoing, Petitioner is deemed to have waived his right to challenge any questions other than questions 19 and 24. He is also deemed to have waived his right to submit any further evidence in support of his challenges.

No transcript of the hearing has been provided by the parties. As set forth above, the parties have submitted memoranda/proposed recommended orders Rulings on the proposed findings of fact 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 building contractor in Florida, he is required to successfully complete a certification examination. The examination is prepared by the ACSI National Assessment Institute arid 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 building contractor's examination administered by DPR in October, 1988.

   
   

3. There were four parts to the examination. No evidence was submitted as to the scores an applicant was required to achieve and/or the number of sections an applicant was required to pass in order to be entitled to licensure.

   
   

4. Petitioner did not receive a score on the exam sufficient to entitle him to licensure. However, no evidence was presented as to the grades Petitioner received on the various parts of his exam.

   
   

5. Petitioner initially challenged seven of the questions on the Construction Administration part 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. However, for the reasons set forth in the Preliminary Statement above, only two of those questions (CA #19 and CA #24) are at issue in this proceeding.

   
   

6. No evidence was of feared as to the value of each of the challenged questions and/or the number of questions Petitioner would have to succeed in challenging in order to obtain a passing grade.

   
   

7. The first question challenged by Petitioner, CA# 19 required the exam taker to determine the latest time that a subcontractor could effectively serve a Notice To Owner under the Mechanic's Lien Law. The reference materials provide that the Notice To Owner must be served on the owner within 45 days from the time the lienor first performs labor or delivers material to the site. The reference materials also specifically provide that receipt of the notice on the 46th day is timely where the 45th day is a Sunday. A calendar was provided with the exam materials. The 45th day in question CA #19 fell on a Sunday (September 11). Therefore, the latest day that the Notice To Owner could be served was September 12. Both September 11 and 12 were listed as answers on the exam. Petitioner selected the answer corresponding to September 11. The correct answer was September 12. Petitioner's challenge to question 19 is without merit.

   
   

8. Question CA #24 relates to AIA Document A201 and asks the examine taker to draw an analogy between a sub-contractor's responsibilities and obligations to the contractor as being the same as one of four listed choices. According to the Respondent, the correct answer 5 (C) which states that the sub-contractor has the same responsibilities and obligations to the contractor as the contractor has to the architect and owner. Petitioner chose answer (A) which indicates the contractor has the same responsibilities and obligations to the contractor as the architect has to the owner.

   
   

   In support of its position, the Respondent cites paragraph 5.3.1 of AIA Document A201 which states that "by appropriate agreement, ... the Contractor shall require each Sub-contractor, to the extent of the work to be performed by the Sub-contractor, to be bound to the Contractor by terms of the Contract Documents, and to assume towards the contractor all the obligations and responsibilities which the contractor by these documents assumes towards the Owner and Architect."

   
   

   Petitioner interpreted the question as asking the exam taker to draw an analogy between the relationship created by the sub-contract with the other relationships listed in the various answers. Viewed in this context, Petitioner reasoned that, while a contractual relationship existed between the sub-

   contractor and the contractor, AIA Document A201 specifically does not create a contractual relationship between the contractor and the architect. Therefore, he eliminated answer C and instead chose answer A because there clearly is a contractual relationship between the architect and the owner.

   
   

   Because the question was structured in the form of an analogy, it is misleading and ambiguous and Petitioner's interpretation was reasonable. Unfortunately, while the question was drafted to test the exam taker's familiarity with paragraph 5.3.1, it could also be read to be asking an exam taker to distinguish between the various relationships created through the contract documents. Significantly, the question does not specifically track the language of paragraph 5.3.1 which indicates that the sub-contractor must "assume" all the obligations and responsibilities which the contractor "assumes" towards the Owner and Architect. Therefore, the question is misleading and Petitioner's answer was reasonable under the circumstances.

   
   

   CONCLUSIONS OF LAW

   
   

9. 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).

   
   

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

    
    

11. 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). Respondent argues that the Petitioner must demonstrate that Respondent's actions in grading the exam were either arbitrary or capricious and/or that the Respondent abused its discretion in this case. In support of its position, Respondent cites State ex rel Glase v. J. N. Pepper, 155 So.2d 383 (Fla. 1st DCA, 1963) and State ex rel Topp v. Board of Electrical Examiners, 101 So.2d 583 (Fla. 4th DCA, 1958.) However, both of those cases involved mandamus proceedings in circuit court. While those decisions demonstrate a reluctance on the part of the courts to substitute their judgement for that of the duly authorized board, they do not establish the burden of proof in this administrative proceeding. This administrative proceeding was instituted under the rules and policies adopted by the licensing board which will enter the Final Order in this case. Those rules establish the administrative procedure for challenging the grading of an exam. The rules do not require a Petitioner to prove that the grader abused its discretion. Therefore, while the burden of proof is on the Petitioner to prove his case by a preponderance of the evidence, he need not demonstrate that the grading of his exam was arbitrary or capricious in order to prevail in his challenge.

    
    

12. 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.

    
    

13. The evidence produced at the hearing established that the "correct" answer to question CA #19 was answer (C). This was the answer deemed by the Respondent to be correct, and, therefore, Petitioner's challenge to question CA #19 is without merit.

14. With respect to question CA #24, the evidence established that the question was ambiguous and was reasonably subject to the interpretation given it by Petitioner. Under the circumstances, Petitioner's answer to question CA #24 should be deemed correct.

    
    

15. In sum, Petitioner has not sustained his burden of proof with respect to the challenge to question, CA#19. Therefore, Petitioner should not be given credit for his answer to this question. However, Petitioner has sustained his burden of proof with respect to the challenge to question CA #24 and, therefore, should be given credit for his answer to that question.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner's request that his October, 1988 examination for building contractor's license be regraded be GRANTED and that Petitioner be deemed to have correctly answered question CA #24.

DONE AND ENTERED this 9th day of January, 1990, in Tallahassee, Leon County, Florida.

J. STEPHEN MENTON Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1990.

APPENDIX

Both 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.

The Petitioner's Proposed Findings of Fact

The first two and a half pages of Petitioner's Memorandum simply sets forth question CA #24, the "correct" answer as determined by Respondent and Petitioner's answer. These facts are incorporated in Findings of Fact 8. The Remainder of Petitioner's Memorandum is deemed by the undersigned to constitute legal argument.

The Respondent's Proposed Finding of Fact

Proposed Finding Paragraph Number in the Finding of Fact

of Fact Number in the Recommended Order Where Accepted or Reason for Rejection

1. Adopted in substance in Findings of Fact 4.

2. Incorporated in the Preliminary Statement. Also adopted in substance in Findings of Fact 5.

3. Incorporated in the Preliminary Statement. Also adopted in substance in Findings of Fact 5.

4. Incorporated in the Preliminary Statement. Also adopted in substance in Findings of Fact 5.

5. Incorporated in the Preliminary Statement. Also adopted in substance in Findings of Fact 5.

6. Incorporated in the Preliminary Statement. Also adopted in substance in Findings of Fact 5.

7. The first sentence is incorporated in the Preliminary Statement. The second sentence is subordinate to Findings of Fact 7 and 8.

8. Incorporated in the Preliminary Statement.

9. Subordinate to Findings of Fact 7.

10. Subordinate to Findings of Fact 8.

COPIES FURNISHED:

Kenneth D. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street, Ste 60

Tallahassee, FL 32399-0792

E. Harper Field

Deputy General Counsel Department of Professional

Regulation

Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792

Curtis A. Littman, Esquire

Littman, Littman, Williams & Strike

P. O. Box 1197 Stuart, Florida 34995

Fred Seely, Executive Director Department of Professional Regulation Post Office Box 2

Jacksonville, Florida 32202

Richard Eaton

2601 S. D. Miami Street Stuart, Florida 34997

Docket for Case No: 89-001233

Orders for Case No: 89-001233