STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ARTHUR HUTTINGER, III, )

)

Petitioner, )

)

vs. ) CASE NO. 90-1213

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice on June 27, 1990 in St. Augustine, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

FOR PETITIONER: Larry T. Griggs, Esquire

24 Cathedral Place Suite 303

St. Augustine, Florida 32084

FOR RESPONDENT: Vytas J. Urba, Esquire

Department of Professional Regulation

Northwood Centre, Suite 60 1940 North Monroe Street

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUES

This case involves a challenge to the licensing examination administered by the Department of Professional Regulation for the Construction Industry Licensing Board. The principal issue in this case is whether the Petitioner should pass the challenged examination, which was administered in October of 1989. The Petitioner contests the examination on four grounds, two of which are factual and two of which are legal:

Factual Grounds

1. Whether the Petitioner correctly answered enough questions for a passing grade; and

   
   

2. Whether the examination measured the Petitioner's ability to practice in the profession.

   Legal Grounds

   
   

3. Whether the examination challenge procedure violated the Petitioner's right to due process of law by not giving the Petitioner a fair opportunity to present his case because of the inability to fully discover and copy the examination; and

   
   

4. Whether the examination consisted of three tests, rather than two tests, contrary to the rules.

PRELIMINARY STATEMENT

The testimony of the Board's expert was received concerning the challenged questions and the correct answers. The Petitioner testified in his own behalf, pointing out weaknesses in the examination questions. The Petitioner introduced Exhibits 1 through 7, and the Respondent introduced Exhibits 1 and 2, all of which were received. The challenged questions were introduced, as a late-filed exhibit, together with the Petitioner's responses. These are accepted into the records because they were part of the materials referenced by the witnesses and examined by the Hearing Officer at the hearing. The Board's instructions to examinees attached to Respondent's brief is not accepted into evidence because it was not introduced at or referenced at the hearing.

In the Findings of Fact below, each challenged question will be discussed in numeric order. The questions challenged in numeric order are: 4, 10, 11, 13, 16, and 17.

FINDINGS OF FACT

1. The Petitioner, Arthur Huttinger, III, took the October, 1989, Florida Construction Industry Licensing Board examination. The Petitioner had completed and passed Part I of the examination given on June 30, 1989. The Petitioner's Exhibit 2 reflects that the Petitioner received a grade of 61 on Part II and a grade of 87 on Part III of the examination given on October 20 and 21, 1989.

   
   

2. The Petitioner filed a timely challenge to Part II of the examination on contract administration, which he failed on October 21, 1989. He challenged question nos. 4, 10, 11, 13, 16 and 17.

   
   

3. The Construction Industry Licensing Board is authorized by statute to examine and license through the Department of Professional Regulation contractors.

   
   

   Question NO. 4

   
   

4. Question NO. 4 requires the examinee to compute liquidated damages given the contractual amount of liquidated damages per day, the initial completion date, the information that the contractor's completion date was extended by a stated number of days, and the actual completion date. The key to answering the question correctly is computation of the number of days between the extended required completion date and the actual completion date. The key to this determination is whether or not the day of actual completion is included.

   
   

5. Based upon the testimony of the Board's expert, the custom of the trade is to count the day of actual completion. This question is reasonable.

6. The Petitioner failed to count the actual day of completion and thereby failed to answer question NO. 4 correctly.

   
   

   Question NO. 10

   
   

7. Question NO. 10, requires the examinee to compute the cost of a change order necessary to remove unsuitable soil to a depth of 46 inches below planter NO. 111 and the bottom of the footing of planter NO. 1. The data given includes that the contractor is responsible for the first 12 inches of unsuitable or unstable soil beneath foundations and footings and the amount of the charge for the removal of soil beneath 12 Inches, which includes removal, hauling, replacement with good material, and compaction. Sheet 1 of 17 shows the dimensions of the planter and provides a reference to a detail drawing of the footings. The key to the question is reference to the correct detail drawing for the correct dimensions of the footings. Thereafter, the number of cubic yards of material to be removed at the contractor's expense must be computed and multiplied by the cost per cubic yard. The correct answer is $585.65. The Petitioner obtained an answer between $560.00 and $570.00 because he used the dimensions of the planter, not the footings which were larger. The Petitioner did not have the correct answer for question NO. 10. The question clearly references the footings and reference to a detail of the planter's foundations is provided on the prints. This was a reasonable question.

   
   

   Question NO. 11

   
   

8. Question NO. 11 requires the examinee to compute the pickup and delivery price for all precast concrete fascia panels needed for the cafeteria given the supplier's price for pickup and delivery of the precast panels. The key to the question is computing the number of linear feet of fascia panels used in the cafeteria, excluding the panels over the walkway at the cafeteria entrance from the blueprints. The exterior dimensions of the cafeteria are given on sheet 1 of 17. Sheet 4 of 17 shows that the walkway to the cafeteria excludes 14 feet from the linear distance of panels to be transported. The number of linear feet times the cost of pickup and delivery per linear feet equals $754.40. The correct answer, answer A, is "less than $765.00." The Petitioner answered D, "more than $785.00." The Petitioner did not answer question NO. 11 correctly. This question is reasonable.

   
   

   Question NO. 13

   
   

9. Question NO. 13 requires the examinee to compute the estimated labor costs for erecting the forms for pouring the concrete walls of two elevator shafts between the second floor finished elevation and the third floor finished elevation. The examinee is given the cost per square foot for erecting the concrete forms, the size of the door openings, the second floor finished elevation and third floor finished elevation. The key to this question is computing the thickness of the walls, which requires the examinee to reference the detail drawing of the elevator pit shown on sheet 7 of 17. The thickness of the wall is not provided in the drawings of the upper floor's, and one must assume the wall is of uniform thickness above the pit from the detail drawing of the pit. The examinee must compute the area of the external wall, the area of the internal wall, the area of the door to be deducted from the interior and exterior walls, and the area of the jam which must be added to the areas of the interior and exterior walls. The total area of form material is multiplied by cost per square foot for erecting the forms for the answer. Some small variance may result from conversion to decimal equivalents. The answer to question NO.

   13 was answer C, "between $5,976.00 and $6,150.00." The Petitioner selected

   answer B, "between $5,800.00 and $5,975.00", which is an incorrect answer. The placement of the wall thickness information on the pit detail and the required assumption that the thickness remained constant between the pit and the top of the shaft is not reasonable given the purpose of the question to test construction administration. This question is unacceptable.

   
   

   Question NO. 16

   
   

10. Question NO. 16 requires the examinee to compute the minimum cost required to perform 168 hours of backhoe work, given no work is to be performed on Saturdays or Sundays and that no regular workday is cancelled; i.e., there are no holidays, contractor-provided fuel costs per equipment hour, contractor- hired operator costs per hour, operators hourly overtime costs, and the maximum overtime allowed per day and per week. Estimates from three different companies were provided. Company A's estimate was $150.00 per day with no weekly or monthly rate and not including operator or fuel charges. Company B's estimate was $3,750.00 per month with no daily or weekly rates available and rental does not include operator or fuel expenses. Company C's estimate was $385.00 per day with no weekly or monthly rates but included operator and fuel charges based upon an 8-hour day, 40- hour week and overtime at the rate of $40.00 per hour with a maximum of 2 hours per day or 10 hours per week allowed. The arithmetic solution is $7,825.00. The Board's "selected" answer is $7,892.00. The Petitioner selected answer B, $8,085.00. In this instance, the Board's options do not provide a correct answer. The question asked for an absolute answer, and none of the four choices provided is correct. This question is arbitrary.

    
    

    Question NO. 17

    
    

11. Question NO. 17 requires the examinee to compute the total material and labor costs for placing fertilizer on the portion of the building site which was seeded. It requires the examinee to compute the area of those portions of the drawings showing where grass was to be planted and multiply that area times the number of applications required times the number of pounds required. In addition to the information given, the examinee must refer to the blueprints to compute the area to be seeded. The key to the solution of this problem is to divide the area to be seeded into rectangles and triangles, the dimensions of which can be obtained from the drawings. Having determined the number of square feet to be seeded, the number of bags of fertilizer required can be computed. Multiplying the number of bags required times the cost per bag provides the total material cost. Two applications of fertilizer are required. The labor cost is $.25 per square yard. Dividing the number of square feet by 9 provides the square yardage to be fertilized times $.25 times 2 computes the labor costs. The material and labor costs total approximately $2,386.70. Answer B to question NO. 17 is "between $2,325.00 and $2,475.00, which is the correct answer. The Petitioner did not answer question NO. 17 correctly. The question is reasonable.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. This order is entered pursuant to Section 120.57(1), Florida Statutes.

13. The Petitioner challenged several questions on the licensure examination of the Florida Construction Industry Licensing Board administered by the Department of Professional Regulation in October 1989. The Petitioner also challenged the manner in which the test scores were computed and grades assigned for the examination.

    
    

14. The facts reveal that the correct arithmetic solution for Question 16 is not an available answer on the possible solutions. Although the Board argues that the instruction booklet says to pick the closest answer, the answers for Question 16 are arbitrary and the question should be discarded.

    
    

15. The facts also reveal that the correct solution to Question 13 is dependent upon the thickness of the walls of the elevator shaft between two upper stories. In this instance, the thickness of the shaft walls had to be determined from drawings of the elevator pit which was beneath the zero elevation level. The drawing of this pit, which was examined at hearing but which was not copied and submitted as an exhibit, is on sheet 17 of 17. This drawing does not reflect graphically extension of the wall section to the top of the shaft at the same thickness. The thickness of shaft walls is generally provided in blueprints in more convenient and logical places. Although the testing authority seeks to test the examinee's ability to problem solve and be observant, the correct solution to this question on contract administration is totally dependent upon the detailed reading of blueprints which do not provide information routinely and generally provided. Further, the examinee must assume that the wall remains at the same thickness the length of the shaft. This question does not test the subject matter for Part II of Test 2, contract administration, as stated in the Board's rule and should be discarded as devoid of logic and reason.

    
    

16. It is noted that the Petitioner did not have the correct answer to either question. The examination was worth 100 points, each question originally was worth 4 points, and the Petitioner had a score of 61. With the discard of two questions, the remaining questions increase their value to 4.3478 which, multiplied by the number of questions which the Petitioner correctly answered, increased his total score to between 65 and 66 points.

    
    

17. Petitioner also challenges the examination review process as denying him due process in preparing for this proceeding. The examination review process is separate and apart from discovery available to the litigant. There is no indication Petitioner attempted to discover the examination materials. Due process was not denied.

    
    

18. The Petitioner also challenges the way in which the test scores were assigned or computed. Rule 21E-16.O01(1), Florida Administrative Code, establishing the requirements for written certification examinations for general contractors, provides:

    
    

    1. Areas of competency. The certification examination shall consist of two (2) tests. Test 1 shall consist of questions relating to business and financial management. Test 2 shall consist of questions relating to contract administration and questions relating to project management.

    2. Passing Score. The score necessary to achieve a passing grade on the certification exam shall be no less than a percentage of sixty-nine and one one hundredth (69.01%) out of one hundred percent (100%) on each of the three tests.

    3. Reexamination.

       1. An applicant who fails either of the two tests referenced to in paragraph (a) above shall be

          required to pay the reexamination fee as set forth in Rule 21E-16.002.

       2. An applicant shall be required to retake only the tests on which he or she failed to achieve a passing score. However, an applicant must pass both tests with in any three consecutive administrations of said tests

       (Emphasis supplied.)

       
       

19. In August of 1989, the rule above was amended to change the number of examinations from three to two. This amendment occurred approximately two months before the examination challenged in this case was administered. Petitioner Exhibit 2 clearly reflects that the Test 2 was scored as two examinations, and that the Petitioner made a 61 on Part I and 87 on Part III. The Petitioner had passed Part I the previous June.

    
    

20. It is clear from reading the amended rule in its entirety that the Board desired two, not three, test for certification, and that the second test was to have two parts. However, if each of the parts continued to be graded and considered separately as stated in paragraph (b), above, the Board's intent for only two test would be frustrated.

    
    

21. A principle rule of statutory construction is to give effect to the intent of the drafters. Clearly, paragraph (b), above is inconsistent with the other provisions. As suggested by the Petitioner, the rule can be harmoniously applied by averaging an examinee's grades for Part II and Part III. This appears to have been the original intent of the Board and the reference in paragraph (b), above, to three examinations was overlooked during the amendment process.

    
    

22. The Petitioner's average grade on Part II and III, including credit for the questions discarded, is 76.1085%. This exceeds 69.01% and is a passing score for Test 2.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that Florida Construction Licensing Board find that the Petitioner passed the certification examination.

DONE AND ENTERED this 2nd day of August, 1990, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

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 2nd day of August, 1990.

COPIES FURNISHED:

Mr. Fred Seely Executive Director

Construction Industry Licensing Board Department of Professional Regulation

P.O. Box 2 Jacksonville, FL 32202

Kenneth E. Easley, Esq. General Counsel

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

Larry T. Griggs, Esq.

24 Cathedral Place Suite 303

St. Augustine, FL 32084

Vytas J. Urba, Esq. Department of Professional

Regulation

Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792

Docket for Case No: 90-001213

Orders for Case No: 90-001213