STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES ILARDI, )

)

Petitioner, )

)

vs. ) CASE NO. 89-3784

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, DIVISION OF )

REAL ESTATE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for hearing before P. Michael Ruff, duly-designated Hearing Officer, on January 16, 1990, in Jacksonville, Florida. The appearances were as follows:

APPEARANCES

For Petitioner: James Ilardi, pro se

Post Office Box 8095 Jacksonville, Florida 32239

For Respondent: D. Harper Field, Esquire

Deputy General Counsel

Department of Professional Regulation 1940 North Nonroe Street, Ste. 60

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUES

The issue to be resolved in this proceeding concerns whether or not the Petitioner's request to be accorded a passing grade on the certified general contractor's examination and resultant licensure should be granted.

PRELIMINARY STATEMENT

The Petitioner was an unsuccessful candidate for the general contractor's construction examination of June, 1989. He challenged the grade accorded for his answers to questions numbered 2, 11, 12, 17, 19 and 33. During the course of the hearing, the Petitioner abandoned his challenges to question numbers 2, 17, 19 and 33. He challenges the grade accorded him for his answers to questions 11 and 12 on the examination. If he received credit for correct answers to questions 11 and 12, he would have sufficient points to obtain a passing score on the examination.

The Petitioner challenges questions 11 and 12, and the grade he received for his responses to those two questions, on the basis that the reference material and the questions contained erroneous information such that the

question is rendered misleading and ambiguous. He asserts, in effect, that had the reference material been correctly employed in both developing the questions and in grading the answers, and had generally accepted principles of construction contracting been correctly applied in framing the questions and in grading the answers, he would have received a passing score as to questions 11 and 12. He also challenges the Respondent's grading of those two questions on the basis that the examination administered by the Respondent is not standardized throughout the State, and is biased as to age, because the test location where he took the examination in Tallahassee was characterized by such poor acoustical qualities and lighting in the examination room that a person of his age was placed at a disadvantage, in terms of eyesight and hearing, in understanding the instructions, and being able to apply them in reading and answering the questions at issue.

This cause came on for hearing as noticed. The Petitioner presented his own testimony and conducted cross-examination of the Respondent's witness. The Respondent presented the testimony of David M. Olson, who is associated with the testing service company which developed the examination in question and who is also a certified general contractor licensed in Florida. The Petitioner presented Exhibits 1 and 2,which were admitted into evidence; and Respondent's Exhibit 1 was admitted into evidence.

The parties elected to have the proceeding transcribed and to file proposed findings of fact and conclusions of law. Those proposed findings of fact are treated in this Recommended Order and specifically ruled upon again in the Appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. The Petitioner, James Ilardi, was an unsuccessful candidate for the June, 1989 General Contractor's Construction Examination in the State of Florida. He is an experienced contractor and is licensed in the State of South Carolina. He is the past President of the Charleston Contractor's Association in South Carolina. He has experience with most types of building construction, including office buildings, military facilities, hospitals, factories and other large projects. He served as Chief Executive Officer for a design and construction firm for a period of ten years.

   
   

2. The Respondent is an agency of the State of Florida charged with administering the certified general contractor's examination and with regulating the licensure and practice of construction contractors in the State of Florida.

   
   

3. The Petitioner sat for the certified general contractor's examination in June, 1989. He has challenged the scoring of his answers to questions 2, 11, 12, 17, 19 and 33 on that examination. During the course of the hearing, he abandoned his challenges to questions 2, 17, 19 and 33. If he were accorded correct answers to either of the remaining challenged questions, numbers 11 or 12, he would have a sufficient score to obtain a passing grade of 70 on that examination.

   
   

4. Both questions 11 and 12 used a "critical path network diagram" for use in working out the correct answer to the questions. The Petitioner criticized the diagram as being obscure, difficult to read and containing error. He maintained that it was not supported by the representations found in the reference materials recommended by the Respondent, in its "Instructions to Candidates", as being the material to use to arrive at answers to the questions. The Petitioner contends that the size of the diagram, "the multiple fonts, the

   difference in the intensity of the print, and the use of symbols all contribute to the obscurity and illegibility of the diagram, itself". In particular, he complains that the symbol listing includes a symbol which he did not find on the diagram. That is, the symbol for "structural steel" and "steel bar joists, which is two straight vertical parallel lines. He also complains that general practice in the construction industry, in his experience, and as indicated in the reference work "Construction Contracting", pages 325-326, one of the references listed for candidates to use in answering these questions, recommends against the use of symbols in lieu of abbreviated notations for description of activities on such a diagram. The main complaint he had concerning the use of symbols, however, was the fact that use of symbols, and having to constantly defer to the symbol legend on the exam materials, was time-consuming and was not generally accepted industry practice or procedure. He contends that the diagram contains error or is obscure and does not conform to the Respondent's recommended reference materials nor to industry standards and. is deficient in format, design and reproductive quality. Thus, he maintains that questions 11 and 12 do not adequately test the knowledge or skills necessary for licensure as a general contractor.

   
   

5. The Petitioner acknowledged that the questions at issue had been reviewed twice by the Respondent's examination content specialist and that an "item analysis and review process" by the Respondent's expert resulted in the Respondent maintaining its position that the two questions and supporting materials were valid in fairly testing the knowledge of general contractor licensure candidates.

   
   

6. In summary, the Petitioner contends that as to question 11, the symbol for steel bar joists, the two parallel vertical lines, does not appear on the diagram; therefore, he was unable to determine whether his answer was correct or not. As to question number 12, he maintains, in essence, that the use of symbols instead of brief abbreviated descriptions of the activities involved, accompanying the arrows in the diagram which indicate the critical path for the activity in question (paint work), render answering the question confusing and time consuming in having to constantly refer to the symbol legend and look for the symbols. He states that, in his 20 years of construction industry experience, he has not had to use symbols in working with a critical path diagram. The Petitioner did not demonstrate, however, that the use of symbols was incorrect procedure as delineated in the reference materials supplied to the candidates and which they were instructed to use in answering the questions on the examination.

   
   

7. The Respondent produced the testimony of Mr. Olson, a Florida certified general contractor, who is also employed with the National Assessment Institute which developed this examination. Mr. Olson, however, did not, himself, have a hand in developing the examination. Mr. Olson did, however, review the Petitioner's challenges to the questions at issue and his responses, reviewed questions 11 and 12, as well as the Respondent's asserted correct answers to those questions and the methodology used in reaching those answers. Mr. Olson established that this was an "open-book" examination and the candidates were informed of and supplied all necessary reference materials to answer these two questions. The only optional consideration was that candidates could have used a calculator to speed up their calculations and were informed that it was permissible to use a calculator.

   
   

8. Question 11 required candidates to calculate the total time necessary to install structural steel and steel bar joists in interpreting the activity network represented by the diagram in question. They were asked to calculate

   whether the installation was ahead of schedule or behind schedule and by how much. Mr. Olson established that the correct response was "C", which is two days behind schedule. Mr. Olson demonstrated that it was quite possible for a candidate to make this calculation and track this in formation on the diagram provided the candidates, through reading the path with the symbols, which alphabetically represent the activity, and which are numerical in representing the time in days. He established that this is very typical of the construction industry, related to the preparation, reading and interpreting of blueprints. A tremendous amount of symbols and legends are typically used in preparing and interpreting blueprints. Mr. Olson established that the pertinent number, 85 days, could be calculated for installation of structural steel and steel bar joists, based upon the information supplied to the candidates. By using the diagram and the information supplied with the question, the candidate can calculate that the actual number of days that were taken for the job was 87 days and therefore, that the project, at that point, was two days behind schedule.

   Mr. Olson performed this calculation by using the actual diagram the Petitioner used and reference information the Petitioner was given to use in answering the actual examination question at issue. He also established that the two parallel lines representing steel bar joists and structural steel on the diagram, and in the symbol legend supplied with the diagram, were indicated on the diagram supplied to Mr. Ilardi at the examination. Mr. Olson also established that the reference quoted for question number 11 was walkers Building Estimator's Reference Book, which, indeed, listed the type of activity network depicted in the diagram used by candidates for question number 11 and 12.

   
   

9. Mr. Olson also established that question number 12 requires a candidate to work through an activity network diagram to find the amount of days necessary from the beginning of a project to the time the painting activity begins. He established that the answer could be obtained without the use of any other reference materials other than the information depicted on the diagram, itself, associated with the question. He established that the only correct answer from that information on the diagram could be "D" or 153 days. The Petitioner did not establish that his answer to question number 12, nor to question number 11 for that matter, was a correct answer and did not establish that there was any misleading quality or ambiguity in the wording of the questions and the associated information which would mislead a candidate into calculating the wrong answers or that there was erroneous information depicted in the reference materials or the diagram which would result in the candidate being misled into giving a wrong answer to questions 11 and 12..

   
   

10. Mr. Ilardi challenged the examination as to the testing environment, as that relates to the ambient light level in the examination room and to the acoustic qualities of the room. He also asserted that the test was not standardized throughout the State and was biased due to age, because of the perceived hearing and vision difficulties which he believed were caused by the acoustics in the examination room and the light available. Other than stating his opinions in this regard, he produced no testimony or evidence concerning these alleged qualities of the testing environment. It was demonstrated by she Respondent that, indeed, the test is standardized throughout the State and is the one given to all candidates in Florida, regardless of the test location.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding, pursuant to Section 120.57(1), Florida Statutes (1989). Rule 21E-16.001, Florida Administrative Code, provides as follows:

    
    

    Written Certification Examination Requirements. The general areas of competency to be covered by the written certification examinations, and the relative weight to be assigned in grading each area tested shall be as follows:

    1. Certification Examination for General Contractors;

       1. Areas of competency. The certification examination shall consist of two (2) tests. Test 1 shall consist of questions relating to business and financial management. Test 2 shall consist of questions relating to contract administration and questions relating to project management.

       2. Passing Score. The scare

          necessary to achieve a passing grade on the certification exam shall be no less than a percentage of sixty nine and one one hundredth (69.01%) out of one hundred percent (100%) on each of the three

          tests. Rule 21E-16.003, Florida Administrative Code, provides as follows:

          
          

          Examination Review Procedures.

          
          

          (1) Applicants who fail the examination are entitled, and encouraged by the Board, to review their examination questions, answers, scratch papers, grades and grading key used in their certification examination subject to the conditions set forth in this rule.

          1. Prior to the commencement of examination reviews, unsuccessful examinees shall be instructed and shall sign a statement stating that they understand that no notes or recordings may be taken from the examination review room, that they shall be monitored during the review, and that they have the right to challenge any question which the examinee believes may be ambiguous or any solution which the examinee believes may be incorrect and to request a hearing if the challenge is denied. The challenge to any questions must be in writing and received within ten days of the review.

          2. If the challenge is denied, the examinee may file a petition for a hearing which must be in writing, be received by the Board Office within thirty days of the letter of denial, and clearly identify the question(s) that the examinee believes is ambiguous or the test solution(s) that the examinee believes is incorrect.

          
          

12. There is no dispute that the examinee, the Petitioner herein, timely requested a hearing to challenge the questions at issue as to his examination.

    
    

13. The burden to establish that the questions at issue were ambiguous in terms of their specific wording, or the manner in which the reference materials were to be applied, Is upon the Petitioner to demonstrate by a preponderance of the evidence. See, State Ex rel. Glasser v. J.M. Pepper, 155 So.2d 383 (Fla. 1st DCA 1963); State Ex rel. I.H. Topp v. Board of Electrical Contractors, 101 So.2d 583 (Fla. 4th DCA 1958); and Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

    
    

14. The Petitioner in this proceeding, for the reasons set forth in the above Findings of Fact, failed to adduce proof by a preponderance of the evidence that questions 11 or 12 were so substantially misleading, insufficient or ambiguous as to their specific wording or the manner in which resolving the solutions required use of the reference materials which the candidate was allowed to use, so as to warrant invalidation of the questions, or the allowance as a correct answer the alternative responses supplied by the Petitioner. The evidence adduced through Mr. Olson established, unequivocally, that, based upon the reference materials provided and the use of the diagram incorporated in the questions, the answers were readily obtainable by a candidate proceeding with care and diligence in performing the calculations involved. Mr. Olson's testimony establishes that the answers ruled by the board to be correct answers were, indeed, correct. The Petitioner failed to establish that his answers were correct nor that the answers arrived at by the board, in its grading of the examination, and depicted by Mr. Olson in his testimony, were incorrect. The Petitioner failed to establish that if the board persisted in its position that its answers to those two questions were correct and that the Petitioner's answers were incorrect, an arbitrary, capricious result would be reached nor that the Respondent would be abusing its discretion. The board's interpretation of the meaning of the questions and the information it supplied to be used by candidates to answer the questions, and the means of supplying it, was reasonable. Thus, it has not been established that the grade accorded the Petitioner on this examination was incorrect.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is therefore

RECOMMENDED that a Final Order be entered denying Petitioner's request to receive a passing grade on the certified general contractor's licensure examination.

DONE and ENTERED this 4th day of May, 1990, in Tallahassee, Leon County, Florida.

P. MICHAEL RUFF 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 May, 1990.

APPENDIX TO RECOMMENDED ORDER CASE NO. 89-3784

Petitioner's Proposed Findings of Fact

1. Rejected. The Petitioner was not qualified as an expert witness. Other than that, this finding is accepted.

2. Rejected, as not in accord with the preponderant weight of the evidence.

3. Rejected, as not supported by the preponderant weight of the evidence. 4.A.-4.C. Accepted.

4.D. Rejected, as not in accordance with the preponderant weight of the evidence.

1. Accepted, but not itself materially dispositive.

2. Rejected, as not in accordance with the preponderant weight of the evidence.

   1. Rejected, as not in accordance with the preponderant weight of the evidence.

   2. Rejected, as not in accordance with the preponderant weight of the evidence and as subordinate to the Hearing Officer's Findings of Fact on this subject matter.

   3. Rejected, as not constituting a finding of fact, but rather a quotation from the transcript of the proceedings.

   4. Rejected, as not in accordance with the preponderant weight of the evidence and as subordinate to the Hearing Officer's Findings of Fact on this subject matter.

   5. Rejected, as immaterial and not probative of the issues of whether the questions were ambiguous or misleading or whether the Petitioner's answers were correct.

   6. Rejected, as not in accordance with the preponderant weight of the evidence.

3. Rejected, as not in accordance with the preponderant weight of the evidence.

4. Rejected, as not in accordance with the preponderant weight of the evidence, and as not materially dispositive.

4.1. Rejected, as not materially dispositive.

1. Rejected, as immaterial.

2. Rejected, as immaterial.

3. Accepted, but not a matter of factual dispute and immaterial.

Respondent's Findings of Fact 1-10. Accepted.

COPIES FURNISHED:

Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board

P.O. Box 2 Jacksonville, FL 32202

Kenneth D. Easley, Esq. General Counsel

Department of Professional Regulation 1940 N. Monroe Street, Ste. 60

Tallahassee, FL 32399-0792

E. Harper Field, Esq. Deputy General Counsel

Department of Professional Regulation 1940 N. Monroe Street, Ste. 60

Tallahassee, FL 32399-0792

Mr. James Ilardi

P.O. Box 8095 Jacksonville, FL 32239

Docket for Case No: 89-003784

Orders for Case No: 89-003784