STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL J. MILLILLO, JR., )

)

Petitioner, )

)

vs. ) CASE NO. 89-4312

)

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on October 24, 1989, in St. Petersburg, Florida.

APPEARANCES

For Petitioner: Frederick F. Rudzik, Esquire

One Fourth Street, North, Suite 800 St. Petersburg, Florida 33701

For Respondent: E. Harper Field, Esquire

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUES

Whether petitioner should have received a passing grade on the February 1989 certified building contractor's examination.

PRELIMINARY STATEMENT

On an undisclosed date, petitioner, Michael J. Millillo, Jr., received advice from respondent, Department of Professional Regulation, Construction Industry Licensing Board, that he had received a failing grade (63) on Part II of the February 1989 certified building contractor examination. After an informal grade review session was conducted, petitioner requested a formal hearing under Subsection 120.57(1), Florida Statutes (1987) to contest the agency's decision. Specifically, petitioner contended that one question was worded ambiguously while the reference material to a second question contained two possible answers. The matter was referred by respondent to the Division of Administrative Hearings on August 9, 1989, with a request that a hearing officer be assigned to conduct a hearing. By notice of hearing dated August 30, 1989, a final hearing was scheduled on October 24, 1989, in St. Petersburg, Florida.

At the outset of the hearing, respondent announced that it had reconsidered petitioner's response on question 20 and had given petitioner an additional four points on his grade. However, this meant petitioner still received a failing grade of 67.

At final hearing, petitioner testified on his own behalf. Respondent presented the testimony of George Bruton, a Board consultant. Finally, joint exhibit 1 was received in evidence. That exhibit is a copy of question 8 and the suggested correct answer.

There is no transcript of hearing. Proposed findings of fact and conclusions of law were due by November 3, 1989 and were timely filed by respondent. A ruling on each proposed finding is made in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. In February 1989, petitioner, Michael J. Millillo, Jr., was a candidate on the certified building contractor examination. The test is prepared and administered by respondent, Department of Professional Regulation, Construction Industry Licensing Board (Department or Board).

   
   

2. Petitioner later received written advice from the Department that he had made a grade of 63 on Part II of the examination. According to agency rules, a score of at least 69.1 is required for passing. Petitioner then filed an appeal of his examination results contending that question 8 was ambiguous and that question 20 contained more than one correct answer. That prompted this proceeding. As a result of a stipulation by counsel at hearing, petitioner was given credit for his answer to question 20 and his grade was raised to 67. Accordingly, the appeal is now limited to question 8.

   
   

3. The examination was prepared by the National Assessment Institute and requires an examinee to use "entry level" knowledge in formulating his responses. Question 8 was a mathematics question having a value of four points on a candidate's overall score. It is undisputed that if Millillo had received four additional points he would have passed the examination.

   
   

4. Question 8 was a multiple choice question containing four possible answers. Although the question cannot be repeated verbatim here because of confidentiality constraints, it required a candidate to make nine separate mathematical calculations in order to arrive at the correct solution. Petitioner's challenge is limited to the first calculation, and more specifically, to the wording in the question. He contends that the wording was so ambiguous that a candidate could easily arrive at a different answer than suggested by the Board. In general terms, the subpart in dispute provided a candidate with an annual payroll cost for a general superintendent who was the supervisor on a project taking one hundred fifty days to complete. The candidate was required to calculate the superintendent's cost assuming he spent 15% of his time on the project. The solution was derived by multiplying a .15 factor X 150/360 X the annual payroll cost.

   
   

5. Petitioner testified on his own behalf and suggested that the question assumed the superintendent devoted 15% of his total time for the entire year to the project, and that the appropriate cost would be obtained by multiplying that

   percentage factor times the individual's annual payroll cost. The resulting number was approximately twice as great as the Board's correct solution.

   
   

6. Respondent's consultant, George Bruton, is a licensed contractor and assisted in the preparation of the examination questions. He considered the question to be clear and unambiguous and required a student to recognize that the superintendent spent 15% of his total time on the project for five months, which was the life of the project. This interpretation is logical and reasonable, consistent with the wording in the question, and is found to be correct. The witness added that because 78% of all candidates on the examination obtained the correct answer, it reinforces his contention that the question was not ambiguous.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1987).

   
   

8. As the party seeking to establish his entitlement to a passing grade, petitioner bears the burden of proving such entitlement by the preponderance of the evidence.

   
   

9. Rule 21E-16.003(5), Florida Administrative Code (1987) provides in part that an unsuccessful examinee may "petition for a hearing ... and clearly identify the question(s) that the examinee believes is ambiguous or the test solution(s) that the examinee believes is incorrect." Within that context, the narrow issue presented here is whether question 8 is so ambiguous or improperly worded as to justify another solution to the question.

   
   

10. There are no appellate cases directly on point which deal with the issue raised by petitioner. However, the principle stated in Alvarez v. Department of Professional Regulation, 458 So.2d 808, 811 (Fla. 1st DCA 1984) comes closest to the factual situation presented herein and holds that where an examinee can show an agency's instructions were "substantially insufficient and misleading", a successful appeal would lie. After applying this standard to the evidence of record, it cannot be said that the question was so substantially insufficient or misleading as to warrant its invalidation or to authorize another answer. Put another way, the more persuasive evidence supports a conclusion that the Board's interpretation is the most reasonable and logical. This being so, petitioner's request to receive a passing grade on the certified building contractor's examination should be denied.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying petitioner's request to

receive a passing grade on the February 1989 certified building contractor's

examination.

DONE and ORDERED this 6th day of November, 1989, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

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 6th day of November, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-4312

Respondent:

1. Substantially adopted in finding of fact 1.

2-4. Substantially adopted in finding of fact 2.

5. Substantially adopted in finding of fact 5.

6-7. Substantially adopted in finding of fact 6.

COPIES FURNISHED:

Frederick F. Rudzik, Esquire One Fourth Street, North Suite 800

St. Petersburg, Florida 33701

E. Harper Field, Esquire 1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Fred Seely Executive Director

Construction Industry Licensing Board Post Office Box 2

Jacksonville, Florida 32202

Kenneth E. Easley, Esquire

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Docket for Case No: 89-004312

Orders for Case No: 89-004312