STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ELI BUZAGLO, )

)

Petitioner, )

)

vs. ) CASE NO. 89-6139

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on February 7, 1990, in Miami, Florida , before J. Stephen Menton, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Eli Buzaglo, pro se

6569 Racquet Club Drive Lauderhill, Florida 33319

For Respondent: E. Harper Field, Esquire

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUES

The issue in this proceeding is whether Petitioner's examination for licensure as a general contractor was incorrectly graded.

PRELIMINARY STATEMENT

By letter dated October 13, 1989, the Petitioner requested a hearing to contest the failing grade he received on the general contractor examination given on June 30, 1989. At the initial review of his exam, Petitioner challenged questions 1, 4, 13, 28, 32, 37 and 38 on Part II of the exam. At the hearing, Petitioner waived his challenge to all the questions except questions

13 and 32. Petitioner testified on his own behalf and introducted one exhibit into evidence which was accepted without objection. During the course of the hearing, Petitioner performed calculations related to Question 32 and determined that the answer deemed by Respondent as correct in grading the exam was indeed right and the answer he marked on his answer sheet was wrong. No other evidence was offered in connection with that question. Respondent presented the testimony of one witness, David Olsen, who is a certified general contractor

employed by National Assessment Institute, the company that developed this exam. Respondent produced both questions 13 and 32 at the hearing for review.

No transcript of the hearing has been provided by the parties. The Respondent submitted a Proposed Recommended Order including proposed findings of fact and conclusions of law. The Petitioner submitted a letter which was received on February 12, 1990. The letter summarizes Petitioner's arguements, but does not specifically set forth proposed findings of fact. Rulings on the proposed findings of fact submitted by the parties are included in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon my observation of the witnesses, their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I make the following findings of fact:

1. In order for Petitioner to obtain a license as a general contractor in Florida, he is required to successfully complete a certification examination. The exam is administered by the Department of Professional Regulation. The questions on the exam are prepared from specific reference materials disclosed to the applicants, generally accepted industry procedures and standard field knowledge.

   
   

2. In June of 1989, Petitioner took the exam and received a passing grade on all parts of the exam except Part II for which he received a grade of 67. A score of 69.1 was necessary for Petitioner to receive a passing grade on Part II.

   
   

3. Each of the challenged questions are worth 2.5 points. Therefore, if Petitioner is given credit for either of the questions, he will achieve a passing score.

   
   

4. The first question challenged by Petitioner, question 13, required the exam taker to determine the labor cost for erecting concrete forms given certain assumptions. The diagram provided in connection with the question indicated there was an elevator shaft which included two elevators and, therefore, two elevator door openings.

   
   

5. In calculating the correct answer, an applicant was required to deduct the surface area corresponding to both door openings. In calculating his answer, the Petitioner only deducted for the area corresponding to one elevator door. Petitioner contends that the question is ambigious because it does not specifically direct the exam taker to deduct for both elevator doors. However, the question specifically states to "deduct for door openings". There is no ambiguity in the question and the Petitioner's answer was incorrect. The only right answer to the question was the answer deemed correct by the Respondent in grading the exam.

   
   

6. While Petitioner also challenged question 32, the only testimony presented at the hearing indicated that the answer used by Respondent in grading the exam was correct.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes (1989).

   
   

8. The Respondent has the authority to administer an examination to determine the qualifications of a person seeking to be licensed as a general contractor in this state. Section 489.111, Florida Statutes (1989).

   
   

9. Petitioner has the burden of proof in this case and must prove that the Respondent acted erroneously or arbitrarily or capriciously in the administration and grading of the exam.

   
   

10. The Petitioner has failed to carry his burden of proof in this proceeding. Indeed, the evidence established that the answers deemed correct by the Respondent in grading questions 13 and 32 were the only right answers to those questions.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is recommended that Petitioner's request that his June, 1989 examination for a general contractor's license be regraded be DENIED.

RECOMMENDED this 21st day of February, 1990, in Tallahassee, Florida.

J. STEPHEN MENTON 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 21st day of February, 1990.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-6139

The Respondent submitted a Proposed Recommended Order including proposed findings of fact and conclusions of law. The Petitioner submitted a letter which contains a number of paragraphs of mixed findings of fact and conclusions of law which have not been numbered thoughout. To the extent that the proposed findings of fact can be isolated, they are addressed below.

The Petitioner's Proposed Findings of Fact

Prosposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order were Accepted or

Reason for Rejection.

The Petitioner's letter sets forth his arguement as to why the question was ambigious and not properly structured. Petitioner's arguements are rejected and subordinate to Findings of Fact 4 and 5.

The Respondent's Proposed Findings of Fact Prosposed Finding Paragraph Number in the Findings of Fact

of Fact Number in the Recommended Order were Accepted or

Reason for Rejection.

1. Adopted in substance in Findings of Fact 2.

   
   

2. Adopted in substance in Findings of Fact 2.

   
   

3. Included in the preliminary statement.

   
   

4. Included in the preliminary statement.

   
   

5. Included in the preliminary statement.

   
   

6. Adopted in substance in Findings of Fact 5.

   
   

7. Adopted in substance in Findings of Fact 5.

   
   

8. Adopted in substance in Findings of Fact 5.

   
   

9. Adopted in substance in Findings of Fact

   5 and 6.

   
   

10. Included in the preliminary statement and adopted in substance in Findings of Fact 6.

COPIES FURNISHED:

E. Harper Field, Esquire Department of Professional

Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Eli Buzaglo

6569 Racquet Club Drive Lauderhill, Florida 33319

Fred Seely, Executive Director Department of Professional Regulation Post Office Box 2

Jacksonville, Florida 32202

Kenneth E. Easley, General Counsel Department of Professional

Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Docket for Case No: 89-006139

Orders for Case No: 89-006139