STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT A. BERKI, )

)

Petitioner, )

)

vs. ) CASE NO. 89-4335

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held in Kissimmee, Florida, on January 16, 1990, before Robert D. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Robert A. Berki, pro se

2641 Capp Circle

Kissimmee, FL 312743

For Respondent: G. W. Harrell, Senior Attorney

Department of Professional Regulation

Northwood Centre

1940 North Monroe Street, Suite 60

Tallahassee, FL 32399-6792 STATEMENT OF THE ISSUES

The issue in this case is, whether Petitioner is entitled to a passing grade on his examination for certification as a mechanical contractor.

PRELIMINARY STATEMENT

By letter dated June 20, 1989, Respondent informed Petitioner that he had failed the examination for certification as a mechanical contractor. By letter dated July 19, 1989, Petitioner requested a formal administrative hearing.

At the hearing, Petitioner and Respondent each called one witness. The parties jointly offered into evidence three exhibits, which were all admitted.

A transcript was filed on January 25, 1990. Due to a delay in copying, the parties were given until February 12, 1990, to file proposed recommended orders. Respondent did so, and all of its proposed findings are adopted or adopted in substance.

FINDINGS OF FACT

1. Petitioner took the mechanical contractor examination in February, 1989. A passing score was 69.01. Petitioner received a score of 67.5, which was later adjusted to 68 after the review/regrade process was completed.

   
   

2. Petitioner timely challenged seven questions. However, at the hearing, he dropped his challenge to six of these questions.

   
   

3. The sole question that Petitioner challenges is MC 430, question 17. The question, which is worth two points, is:

   
   

   Given: A fibrous glass air duct conveys 15,000 cfm at a velocity pressure of 4.0" WG. The velocity of the air in the duct is:

   1. less than 6000 fpm.

   2. between 6001 fpm and 7000 fpm.

   3. between 7001 fpm and 8000 fpm.

   4. more than 8000 fpm.

      
      

4. Petitioner answered "(C)." The correct answer is "(D").

   
   

5. The examination was an open-book test. Some, but not all, questions provided the candidate with a reference from which he could often find a formula that would help him answer the question. Question 17 did not provide a reference.

   
   

6. However, the formula for deriving the answer to question 17 was contained in one of the reference materials that candidates, including Petitioner, brought with them to the test for use during the test. At the top of page 17-1 of the SMACNA publication entitled, "Energy Recovery Equipment and Systems," a formula appears that will solve the problem. The formula is that velocity in feet per minute equals the square root of the velocity pressure in water gauge multiplied by 4005. In this case, the square root of 4" WG is 2, which multiplied by 4005 is 8010 fpm.

   
   

7. Petitioner did not use the SMACNA publication or the formula contained in the publication. Instead, he used what is called a ductulator to calculate the answer. The ductulator is a device consisting of two cardboard circles attached by a rivet. By sliding the two circles to line up markings indicating two factors, the operator can derive additional information concerning the design specifications' of a duct system.

   
   

8. In this case, Petitioner lined up the air volume with the velocity pressure to derive the velocity. The ductulator is calibrated to show 7000 fpm, 7500 fpm, and 8000 fpm in the relevant range. A finer reading requires extrapolation, which is difficult because a distance of only 1/16" represents

   500 fpm at this point on the ductulator.

9. On Petitioner's ductulator, which is a Trane ductulator bearing a 1976 copyright, the answer was about 7700 fpm. However, another Trane ductulator bearing a 1950 copyright disclosed the answer as slightly over 8000 fpm, although a different 1950 Trane ductulator showed the answer as about 7700 fpm.

   
   

10. Petitioner's reliance on a ductulator was misplaced. The scale of calibration alone should have placed him on notice of the danger of using this rough instrument to answer question 17. When he derived an answer so close to the 8000 fpm break point, he could no longer rely on the ductulator, assuming that it was reasonable to do so in the first place, especially in view of the easy-to-use formula that provided the precise answer.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1), Florida Statutes.

    
    

12. Respondent is responsible for administering the examination for certification as a mechanical contractor. Section 489.113(1), Florida Statutes.

    
    

13. The requirement imposed upon all examinations for licensure is that they "adequately and reliably measure an applicant's ability to practice the profession regulated by" Respondent. Section 455.217(1)(a), Florida Statutes. A question or portion of a test may be rendered invalid if the `question or test instructions are "substantially insufficient and misleading." Alvarez v. Department of Professional Regulation, 458 So. 2d 808, 811 (Fla. 1st DCA 1984).

    
    

14. The grading of question 17 was entirely proper. The question was neither misleading or insufficient and provides, as a single question, an adequate and reliable measure of Petitioner's ability to practice the profession of mechanical contracting.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Department of Professional Regulation enter a Final Order dismissing Petitioner's challenge to the grading of the mechanical contractor's examination that he took in February, 1989.

ENTERED this 26th day of February, 1990 in Tallahassee, Florida.

ROBERT E. MEALE

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 26th day of February, 1990.

COPIES FURNISHED:

Kenneth D. Easley General Counsel

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

Robert A. Berki, pro se 2641 Capp Circle

Kissimmee, FL 32743

G. W. Harrell, Senior Attorney Department of Professional Regulation Northwood Centre

1940 North Monroe Street, Suite 60

Tallahassee, FL 32399-0792

Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2

Jacksonville, FL 32201

Docket for Case No: 89-004335

Orders for Case No: 89-004335