STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIRK DOUGLAS SUMMERLOT, )

)

Petitioner, )

)

vs. ) CASE NO. 89-4934

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on November 16, 1989, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Dirk Douglas Summerlot, pro se

16146 75th Avenue North

Palm Beach Gardens, Florida 33418

For Respondent: Robert G. Harris, Esquire

Qualified Representative

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUES

Whether Petitioner correctly answered four questions on Part I of the certified general contractor's examination for which he received no credit, and, if so, the relief to which Petitioner is entitled.

PRELIMINARY STATEMENT

Petitioner sat for the certified general contractor examination on October 14-15, 1988. After receiving notification that he failed Part I of the examination, Petitioner challenged the Respondent's grading of several questions. Petitioner abandoned all challenges prior to the hearing except for his challenges to the following four questions: Question 5, Question 26 Question 32, and Question 39.

At the final hearing, Petitioner testified on his own behalf and called one other witness. Respondent called one expert witness. The examination questions were accepted into evidence as a composite exhibit and labeled Hearing Officer Exhibit 1. Neither party offered any other documentary evidence.

A transcript of the proceedings has been filed. Specific rulings on the Respondent's proposed findings of fact may be found in the appendix to this recommended order. Petitioner did not submit any proposed findings of fact within the time set for the filing of post-hearing submittals.

Because the examination questions are made confidential by Section 455.230, Florida Statutes, the questions challenged by the Petitioner will be discussed in general terms and Hearing Officer Exhibit 1 will be treated as a confidential exhibit.

FINDINGS OF FACT

1. Respondent is the state agency charged with the duty of regulating general contractors in the State of Florida. An applicant for certification as a general contractor must pass the examination administered by Respondent as a prerequisite to certification. Section 489.113(1), Florida Statutes.

   
   

2. Petitioner sat for the certified general contractor's examination on October 14-15, 1988.

   
   

3. Petitioner did not pass Part I of the examination. Petitioner scored the highest score one can score on Part I without passing that part of the examination. While Petitioner received a grade of 69 on Part I of the examination, a grade in excess of 69 is required to pass. Had Petitioner been awarded any credit for his answers to the challenged questions, he would have passed Part I of the examination.

   
   

4. Petitioner timely challenged the grading of four examination questions contained in Part I of the examination for which he received no credit, to wit: Question 5, Question 26, Question 32, and Question 39. Petitioner's challenges were as to the format of the question or as to the grading of the question. Petitioner abandoned any challenge he may have had to other questions.

   
   

5. Each of the challenged questions is an objective, multiple choice question. The candidate is required to choose the correct response from among four possible answers. Prior to taking the examination, Petitioner was told by Respondent that certain approved reference materials were used in formulating the examination questions and that certain reference materials could be used during the examination.

   
   

6. Question 5 provided certain information from which the candidate was to determine the correct answer to an accounting problem. The question contained sufficient information to correctly answer the problem. The evidence does not support Petitioner's contention that this question is unfairly tricky. The accounting formula which was necessary to determine the correct answer to the problem was available to Petitioner in the reference material he was permitted to use during the examination. Respondent gave Petitioner no credit for his answer to Question 5 because Petitioner gave the wrong answer to the question.

   
   

7. Question 26, required the candidate to correctly answer a question about a reporting requirement of the Occupational Safety and Health Administration (OSHA). The question contained sufficient information to determine the correct response. The basis of Petitioners challenge to this question is that the information needed to answer the question was not contained in the reference material published by OSHA. The information needed to arrive at the correct response is contained in other reference material Petitioner was

   permitted to use during the examination. Respondent gave Petitioner no credit for his answer to Question 26 because Petitioner gave the wrong answer to the question.

   
   

8. Petitioner contends that two of the four responses to Question 32, which involved statements as to partnerships, are correct and that he should be given credit for his response to the question. Petitioner made unwarranted assumptions in arriving at his answer which resulted in his answer being incorrect. The question contained only one correct response. The question provided sufficient information to enable Petitioner to arrive at the correct response through the use of the reference materials that the candidates were permitted to use. Respondent gave Petitioner no credit for his answer to Question 32 because Petitioner gave the wrong answer to the question.

   
   

9. Petitioner contends that two of the four responses to Question 39, which involved statements about workers compensation, are correct and that he should be given credit for his response to the question. Petitioner made unwarranted assumptions in arriving at his answer which resulted in his answer being incorrect. The question contained only one correct response. The question provided sufficient information to enable Petitioner to arrive at the correct response through the use of the reference materials that the candidates were permitted to use. Respondent gave Petitioner no credit for his answer to Question 39 because Petitioner gave the wrong answer to the question.

   
   

10. None of the candidates who sat for the examination, including Petitioner, was awarded partial credit for an incorrect response.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes, Rule 21-11.012, Florida Administrative Code.

    
    

12. Section 489.113(1), Florida Statutes, provides, in pertinent part, as follows:

    
    

    1. 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 too this part. To establish his competency, a person shall pass the appropriate examination administered by the department....

       
       

13. Petitioner has the burden of establishing by a preponderance of the evidence that Respondent's decision to allow no credit for his answers to the four 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 meat that burden.

14. Section 455.230, Florida Statutes, provides, in pertinent part, as follows:

Notwithstanding any other provision of this chapter, examination questions and answers shall not be subject to discovery, but may be introduced into evidence and considered only in camera in any administrative proceeding under Chapter 120. ... In any subsequent administrative hearing the department shall provide challenged examination questions and answers to the hearing officer. Examination questions and answers so provided at the hearing, which are not invalidated, shall be sealed and not open to pubic inspection.

RECOMMENDATION

Based on the foregoing bindings of Fact and Conclusions of Law, it is: RECOMMENDED that Respondent, State of Florida, Department of Professional

Regulation, enter a final order which finds that Petitioner abandoned his

challenges to all questions except Question 5, Question 26, Question 32, and Question 39 and which denies Petitioner's challenges to Question 5, Question 26, Question 32, and Question 39. It is further recommended that the questions filed as exhibits in this proceeding be sealed.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of January, 1990.

CLAUDE B. ARRINGTON

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 12th day of January, 1990.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-4934

The following rulings are made on the proposed findings of fact submitted on behalf of Respondent.

1. The proposed findings of fact in paragraph 1 are adopted in material part by paragraph 1 of the Recommended Order.

2. The proposed findings of fact in paragraph 2 are adopted in material part by paragraph 1 of the Recommended Order.

3. The proposed findings of fact in paragraph 3 are adopted in material part by paragraph 2 of the Recommended Order.

4. The proposed findings of fact in paragraph 4 are adopted in material part by paragraph 3 of the Recommended Order.

5. The proposed findings of fact in paragraph 5 are adopted in material part by paragraph 4 of the Recommended Order.

6. The proposed findings of fact in paragraph 6 are adopted in material part by paragraph 5 of the Recommended Order.

7. The proposed findings of fact in paragraph 7 are rejected as being subordinate to the findings made.

8. The proposed findings of fact in paragraph 8 are rejected as being subordinate to the findings made.

9. The proposed findings of fact in paragraph 9 are adopted in material part by paragraph 5 of the Recommended Order.

10. The proposed finding of fact in paragraph 10 are adopted in material part by paragraph 6 of the Recommended Order.

11. The proposed findings of fact in paragraph 11 are adopted in material part by paragraph 7 of the Recommended Order.

12. The proposed findings of fact in paragraph 12 are adopted in material part by paragraph 8 of the Recommended Order.

13. The proposed findings of fact in paragraph 13 are adopted in material part by paragraph 9 of the Recommended Order.

14. The proposed findings of fact in paragraph 14 are rejected as being subordinate to the findings made.

15. The proposed findings of fact in paragraph 15 are adopted in material part by paragraph 10 of the Recommended Order.

16. The proposed findings of fact in paragraph 16 are adopted in material part by paragraphs 6-9 of the Recommended Order.

    
    

    COPIES FURNISHED:

    
    

    Dirk Douglas Summerlot, pro se 16146 75th Avenue North

    Palm Beach Gardens, Florida 33418

    
    

    Robert G. Harris, Esquire Qualified Representative Department of Professional

    1940 North Monroe Street, Suite 60

    Tallahassee, Florida 32399-0792

    
    

    Kenneth D. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 69

    Tallahassee, Florida 32399-0792

    
    

    Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2

    Jacksonville, Florida 32202

    =================================================================

    AGENCY FINAL ORDER

    =================================================================

    
    

    STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD

    
    

    DIRK DOUGLAS SUMMERLOT,

    
    

    Petitioner,

    
    

    -vs- DOAH CASE NO.: 89-4934

    
    

    DEPARTMENT OF PROFESSIONAL REGULATION,

    
    

    Respondent

    /

    
    

    FINAL ORDER

    
    

    THIS MATTER came before the Construction Industry Licensing Board pursuant to Section 120.57(1)(b)(9), Florida Statutes, on February 8, 1990, in Orlando, for consideration of the Recommended Order (a copy of which is attached hereto and incorporated herein by reference) issued by the hearing officer in the above styled case. The Petitioner was represented by Ray Shope. The Respondent appeared pro se at the Board meeting.

    
    

    Upon consideration or the hearing officer's Recommended Order, and there being no exceptions filed and the arguments of the parties and after a review of the complete record in this matter, the Board makes the following findings:

    
    

    FINDINGS OF FACT

    
    

    1. The hearing officer's findings of fact numbered 1 through 5 and 7 through 10 are hereby approved and adopted and incorporated herein by references.

       
       

    2. There is competent, substantial evidence to support the hearing officer's findings of fact with the exception of finding number 6 which is rejected.

Professional Regulation, Northwood Centre, 1940 N. Monroe Street, Tallahassee, FL 32301, and by the- filing the filing fee and one copy of the Notice of Appeal with the District Court within thirty (30) days of the effective date of this Order.

This Order shall become effective upon filing with the Clerk of the Department of Professional Regulation.

DONE AND ORDERED this 21st day of March, 1990.

MIKE BLANENSHIP, CHAIRMAN

Construction Industry Licensing Board

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been provided by U.S. Mail to

Dirk Douglas Summerlot 16146 75th Avenue North

Palm Beach Gardens, Florida 33418

and by hand delivery/United States Mail to the Board Clerk, Department of Professional Regulation and its Counsel, Northwood Centre, 1940 North Monroe Street, Tallahassee, Florida 32399- 0792, on or before 5:00 p.m., this 16th day of April, 1990.

Docket for Case No: 89-004934

Orders for Case No: 89-004934