STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

DOMENICO I. DE LISO, )

)

Petitioner, )

)

vs. ) CASE NO. 90-1214

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on May 15, 1990, in Miami, Florida.

APPEARANCES

For Petitioner: Michael J. Kurzman, Esquire

LEIBY AND ELDER

Penthouse 2

290 Northwest 165 Street Miami, FL 33169

For Respondent: Robert G. Harris

Qualified Representative Department of Professional

Regulation

1940 North Monroe Street Tallahassee, FL 32399-0792

STATEMENT OF THE ISSUE

The issue presented is whether Petitioner should be awarded credit for his response to question numbered 30 of Part III of the October, 1989, certified general contractor examination.

PRELIMINARY STATEMENT

Respondent notified Petitioner that he failed to achieve a passing grade on Part III of the October, 1989, certified general contractor examination, and Petitioner timely requested a formal hearing regarding his response to question numbered 30. The matter was therefore transferred to the Division of Administrative Hearings for the conduct of that formal proceeding.

Petitioner testified on his own behalf and presented the testimony of George John. Respondent presented the testimony of George John and David M. Olsen. Additionally, Hearing Officer Exhibits numbered 1 and 2, Petitioner's Exhibits numbered 1 and 2, and Respondent's Exhibit numbered 1 were admitted in evidence.

Both parties submitted post hearing proposed findings of fact in the form of proposed recommended orders. A ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner sat for the certified general contractor examination which was administered on October 21, 1989. After taking that examination, Petitioner had achieved passing scores on two of three parts of the certified general contractor examination. Petitioner was awarded a score of 69 on Part III of the examination, which is one point short of a passing score.

   
   

2. Petitioner timely and properly challenged one question, question numbered 30, from Part III of the examination. If awarded credit for his answer to question numbered 30, Petitioner would achieve a passing score and be granted a certificate of licensure.

   
   

3. Question numbered 30 is an objective (multiple choice) question pertaining to accounting, which asks the examinee to identify indirect costs from among four possible choices.

   
   

4. The examination questions, including question numbered 30 on Part III, were developed by ACSI/NAI, a private organization under contract with the Department of Professional Regulation to develop the examination.

   
   

5. ACSI/NAI originally keyed the grading of question numbered 30 so that answer "A" was the only correct response. After the examination was administered, ACSI/NAI determined that two additional answers, "B" and "C," were also correct and advised Respondent to award credit to candidates who chose answers "A," "B," or "C." ACSI/NAI advised that no credit should be awarded for answer "D" as this answer was incorrect.

   
   

6. While taking Part III, which is an open book examination, Petitioner realized that choices "A," "B," and "C" were correct answers pursuant to page 94 of the approved reference book. Petitioner believed that only one answer could be correct for each question. Since he knew that three of the four answers were correct as the question was written, Petitioner decided that the question was incorrectly written, mentally deleted the word "not" which appeared in the question thereby making answer "D" the only correct response, and marked answer "D" on his answer sheet.

   
   

7. Petitioner was awarded no credit as answer "D" to question numbered 30 as written is not correct. No candidates were awarded credit for choosing answer "D" on question numbered 30.

   
   

8. Question numbered 30 is not ambiguous. It is clear in the response it is seeking. Although questions are not drafted to have more than one correct response, question numbered 30 did. Therefore, all examinees choosing one of the correct answers was given credit.

9. Question numbered 30 is adequate for testing a candidate's knowledge in the subject area being tested.

   
   

10. Examinees are graded solely according to the answers given on their answer sheets. No partial credit is awarded, and no credit is awarded for examinees' comments written either on official comment forms or in the examinee's test booklet.

    
    

11. The Directions on the examination booklet instructed the examinees to mark only one answer per question. The Directions further advised the examinees in boldfaced type: "You will be graded only on the answers recorded on the answer sheet."

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

13. Rule 21E-16.003, Florida Administrative Code, provides that an examinee may challenge any question he or she believes to be either ambiguous or to have an incorrect solution. Accordingly, Petitioner is required to show that the question could reasonably be interpreted in more than one way or that Respondent's solution is erroneous and Petitioner's solution is correct.

    
    

14. Question numbered 30 is not ambiguous. It is clear what information the question is seeking. The problem arose from the fact that there was more than one correct solution. Petitioner knew that. Instead of selecting one of the correct answers, Petitioner mentally rewrote the question by deleting the word "not" from the question and chose the answer which would have been correct if the question had been written that way. Unfortunately for Petitioner, his answer was not a correct answer as the question was written, and Petitioner cannot be given credit for his answer to a question as rewritten by him.

    
    

15. Rule 21E-16.006, Florida Administrative Code, provides, in pertinent part, as follows: "The only paper that shall be graded in a certification examination is the official answer sheet. No credit shall be given for answers written in an examinee's booklet." As with Rule 21E-16.003, there is no evidence that this Rule has been challenged pursuant to Section 120.56, Florida Statutes. Accordingly, any comments or other answers provided by Petitioner in his examination booklet or on an official comment form may not be considered by Respondent in determining whether to award credit to the Petitioner for his answer to question numbered 30.

    
    

16. Petitioner testified that he marked in his examination booklet so as to explain the answer he chose and why he chose it. The rule, however, specifically prohibits credit for an answer written in an examinee's booklet. Further, the Directions on the examination booklet specifically advised the examinees that they would be graded only on the answers recorded on the answer sheet. Accordingly, it is not necessary to determine whether Petitioner wrote his explanation in his examination booklet during the examination, as Petitioner contends, or during a subsequent examination review, as Respondent seems to suggest.

    
    

17. Similarly, Petitioner's argument that he filled out an official comment form during the examination explaining why question numbered 30 was improperly worded and explaining why he was choosing answer "D" and should, therefore, be given credit is without merit. It is not necessary to resolve the

    factual issue of whether Petitioner did so in view of Respondent's evidence that no such comment sheet from Petitioner was found, because comments written on comment sheets, although official forms, cannot be considered in awarding credit. Rule 21E-16.006, Florida Administrative Code. The evidence is clear that comments written on official comment forms are considered by the consultants and reviewers of the examination and are taken into consideration in the analysis performed for each question after the examination has been administered. It may be that the comments could result in a question being deleted from the examination or that the comments could result in more than one answer being given credit, as happened with question numbered 30 on this examination. However, the Rule prohibits giving credit to an examinee for anwers other than on the answer sheet. Accordingly, Petitioner's assertion that he knew the correct answer and gave Respondent written proof of that on the official comment form cannot be considered.

    
    

18. Lastly, Petitioner argues that he should be given credit for his answer to question numbered 30 because he has proven that he had the requisite knowledge to pass the examination since he knew that there was more than one correct answer to question numbered 30 and also knew that if he mentally deleted the word "not" from that question, then the answer he chose would be correct. Unfortunately for Petitioner, he did not communicate that he had the requisite knowledge in that he chose the one incorrect answer to a question which was unambiguous. Even if Petitioner has the requisite knowledge to have successfully completed the examination, his answer sheet did not reflect that.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's challenge to

question numbered 30 on the October, 1989, certified general contractor examination.

DONE and ENTERED this 25th day of July, 1990, at Tallahassee, Florida.

LINDA M. RIGOT, 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 25th day of July, 1990

APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-1214

1. Petitioner's proposed findings of fact numbered 1, 2, 4- 7, 9-11, 14-16, 29-31, 37, 40, 41, 44, 48, 51, 53, and

   55 have been adopted either verbatim or in substance in this Recommended Order.

2. Petitioner's proposed findings of fact numbered 3, 8, 17, 26, 27, 34, 35, 45, 46, and 54 have been rejected as being irrelevant to the issues under consideration in this cause.

3. Petitioner's proposed findings of fact numbered 12, 13, 18-25, 28, 32, 33, 36, 38, 39, 42, 43, 47, 49, 50, and

   52 have been rejected as being unnecessary for determination herein.

4. Respondent's proposed findings of fact numbered 1 and 2 have been rejected as not constituting findings of fact but rather as constituting conclusions of law.

5. Respondent's proposed findings of fact numbered 3-14 have been adopted either verbatim or in substance in this Recommended Order.

Copies furnished:

Michael J. Kurzman, Esquire LEIBY AND ELDER

Penthouse 2

290 Northwest 165 Street Miami, Florida 33169

Robert G. Harris Qualified Representative

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

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

Jacksonville, Florida 32202

Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Docket for Case No: 90-001214

Orders for Case No: 90-001214