STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDWARD K. FEWOX, JR., )

)

Petitioner, )

)

vs. ) CASE NO. 89-4098

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

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on November 8, 1989 in Jacksonville, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Edward K. Fewox, Jr. pro se

3924 Wormwood Circle

Jacksonville, Florida 32210

For Respondent: G. W. Harrell, Esquire

Department of Professional Regulation

Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

STATEMENT OF THE ISSUE

May Petitioner be granted credit for Questions 11, 12, and 18 on his February 1989 Certified General Contractor Examination so as to be considered to have successfully passed the examination?

PRELIMINARY STATEMENT

Petitioner presented the oral testimony of Thomas B. Prince and testified on his own behalf. Respondent presented the oral testimony of George Bruton, who was stipulated and accepted as an expert in the requirements of certified general contracting.

The parties' Joint Composite Exhibit A was admitted in evidence. Upon authority of Section 455.230 F.S., the undersigned ordered orally that Joint Exhibit A would become a sealed exhibit attached to the transcription of this proceeding.

All timely filed proposed findings of fact have been ruled on, pursuant to Section 120.59(2) F.S. in the Appendix to the Recommended Order.

FINDINGS OF FACT

1. Petitioner sat for the certified general contractors' examination on February 18, 1989.

   
   

2. Petitioner has passed two parts of the examination, but scored 65 on the part of the examination containing the three challenged questions which serve as the basis for the appeal. The Petitioner requires a score of 69.01 to pass the third part of the examination.

   
   

3. Petitioner timely and properly challenged the grading of three examination questions for which he received no credit, to wit: Questions 11, 12, and 18 in Test Booklet GC 421-0749.

   
   

4. Petitioner alleged that his answers to Questions 11 and 12, which had been marked incorrect, were equally correct with those selected as correct by Respondent. He also contended that the network drawn in the critical path method which formed the reference point for each of these questions was so illegible, due to labelling of the network diagram, that no ore, including Petitioner, could have been expected to successfully complete it in the timeframe allotted. Additionally, he contended that his answer of "B" to Question 18, amounting to $6642 should be counted correct, the same as Answer A which amounted to $6400 because Petitioner's answer amounted to only a few dollars more than the answer Respondent designated as correct.

   
   

5. With regard to the illegibility issue, Petitioner did not object to legibility at any time during the course of the examination itself, nor did he fill out a comment form at the time of turning in his examination or claim to have a defective test booklet at those times. He did, however, later challenge legibility as to the specified questions, and he has been permitted to present evidence of lack of legibility on that basis. Apparently, Petitioner's concern was based on a misunderstanding that certain letter-number configurations in Questions 11 and 12 could be used more than once, when, in fact, each could be used only one time. He did not understand that letters appear always above a line while numbers always appear below a line and that based on the legend, some of his interpretations of component parts of the diagram could not have logically occurred. Petitioner also thought some numbers and/or letters could be repeated and so became confused. As a result, he worked some problems presented by the diagram incorrectly. These interpretations, as opposed to lack of a legible diagram, appear to have accounted for his mistakes. Also, George Bruton, who was qualified as an expert on the requirements of certified general contractors in Florida, was able to correctly answer Questions 11 and 12 without utilizing those symbols the Petitioner stated were illegible. Therefore, it must be concluded that the quality of the diagram did not prevent the Petitioner from correctly answering the questions.

   
   

6. Question 18, a multiple choice question, required the Petitioner to estimate the cost of construction for a perimeter fence built with certain materials. The Petitioner utilized materials not included in the question and his perimeter did not accomplish the goal set by the problem. Among other problems, the Petitioner used six corner posts instead of four corner posts. Therefore, he answered the question incorrectly. Under this set of

   circumstances, Petitioner's dollar amount answer in excess of the correct answer also is clearly incorrect and not subject to "rounding off" simply because it is "close."

   
   

7. Questions 11, 12, and 18 are each worth 4 points. Petitioner failed to demonstrate his entitlement to have his score of 65 raised above 65 by 4 (69), 8 (73), or 12 (77) points respectively.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1) F.S., Rule 21-11.012 F.A.C.

   
   

9. Section 489.113(1) F.S. provides, in pertinent part, as follows:

   
   

   Any person who desires to engage in contracting on a statewide basis shall, as a prerequisite thereto, establish his competency and qualifications to be certified pursuant to this part. To establish his competency, a person shall pass the appropriate examination administered by the department...

   
   

10. Petitioner has the burden of establishing by a preponderance of the evidence that Respondent's decision to allow no credit for either of the three challenged questions constitutes arbitrary and capricious action. State ex rel. Glasser v. J.M. Pepper, et al., 155 So.2d 383 (Fla. 1st DCA 1963). Petitioner has failed to meet that burden.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that:

The Department of Professional Regulation enter a final order continuing to keep sealed the exhibits herein, finding that Petitioner abandoned his challenges to all questions except Questions 11, 12, and 18 of Test GC 421-0749, denying Petitioner's challenge to the foregoing questions, and denying a raise in the test score therefor.

DONE and ENTERED this 22nd day of January, 1990, at Tallahassee, Florida.

ELLA JANE P. DAVIS, 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 15th day of May, 1990.

APPENDIX TO RECOMMENDED ORDER CASE NO. 89-4098

The following constitute specific rulings pursuant to Section 120.59(2)

F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF:

1 and 2 are rejected as not supported by the record.

3 is accepted but immaterial to the facts ash found and issue raised herein.

Respondent's PFOF:

1 is subordinate and a conclusion of law 2, 3, 4, 5, 6, 7, and 8 are accepted.

COPIES FURNISHED:

G. W. Harrell, Esquire Department of Professional

Regulation Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

Edward K. Fewox, Jr.

3924 Wormwood Circle

Jacksonville, Florida 32210

Fred Seely Executive Director

Construction Industry Licensing Board Post Office Box 2

Jacksonville, Florida 32202

Kenneth D. Easley General Counsel

Department of Professional Regulation

Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

Docket for Case No: 89-004098

Orders for Case No: 89-004098