STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK A. CERRA, )

)

Petitioner, )

)

vs. ) CASE NO. 90-2639

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

LICENSING BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on July 24, 1990, in Miami, Florida, before J. Stephen Menton, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Frank A. Cerra pro se

24 Seneca Road.

Fort Lauderdale, Florida 33308

For Respondent: Vytas J. Urba, Esquire

Department of Professional Regulation Northwood Centre

1946 North Monroe Street Suite 60

Tallahassee, Florida 32399-0750 STATEMENT OF THE ISSUED

The issue in this proceeding is whether Petitioner is entitled to a reexamination on Part II of the certified general contractor's exam taken by Petitioner on October 20-21, 1989, due to problems in the administration of the exam.

PRELIMINARY STATEMENT

By letter dated February .25, 1990, the Petitioner requested a hearing to contest the failing grade he received on the certified general contractor's examination administered in October 1989. In his February 25, 1990 letter, the Petitioner contended that he was not given a fair opportunity to successfully pass the exam because he was not timely provided with adequate materials to complete the exam. Specifically, Petitioner contends that he was prohibited from bringing any pencils into the examination room and the exam proctors did not provide him with a sufficient of sharpened pencils during the exam. As a

result, he contends that he lost a significant amount of time and was under undue time pressure on a part of the exam for which he subsequently received a failing grade.

At the hearing, Petitioner testified on his own behalf and offered four exhibits into evidence, all of which were accepted. Petitioner's Exhibit 3 was a late-filed exhibit consisting of a copy of the worksheets that Petitioner used during the exam. Those worksheets were in the custody of Respondent at the time of hearing and were not available at the hearing. Petitioner complained that the worksheets were necessary for him to present his case. However, those documents were not the subject of any formal discovery requests and Petitioner failed to take appropriate steps to insure that they would be available at the hearing. During the hearing, the parties stipulated that Respondent would submit a copy of the worksheets after the hearing in order for them to be incorporated into the record of this proceeding. Counsel for Respondent has provided a copy of the worksheets in accordance with the agreement reached at the hearing and they have been reviewed in connection with the preparation of this Recommended Order.

Respondent presented the testimony of one witness, David Olsen, who is employed by the National Assessment Institute, the company that developed and administered the exam for Respondent. Respondent offered one exhibit into evidence which was accepted without objection.

A transcript of the proceedings has been filed. At the hearing, the parties agreed that proposed findings of fact and conclusions of law were to be filed within ten days after the date of the filing of the transcript.

Respondent timely filed a proposed recommended order. In late August 1990, Petitioner contacted the Hearing Officer and advised that he had not received notice of the filing of the transcript. He requested and was granted an additional ten days to submit his proposed findings of fact and conclusions of law. Petitioner's proposal was filed on September 10, 1990. The submittals from both Petitioner and Respondent have been reviewed and considered in the preparation of this Recommended Order. A ruling on each of the parties' proposed findings of fact is 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 complied 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 examination is prepared by the ACSI National Assessment Institute ("NAI") and administered by the Department of Professional Regulation (DPR). The NAI develops the procedures for administering the certification examination.

   
   

2. Petitioner took the general contractor's examination administered by DPR in October 1989. In order to pass the examination, an applicant is required to achieve a passing grade on all three parts of the exam. Petitioner had previously obtained a passing grade on Part I of the exam. Therefore, Petitioner only attempted Parts II and III during the October 1989 examination.

3. Petitioner obtained a passing grade on Part III of the October 1989 examination. However, Petitioner received a grade of 64 on Part II of the October 1989 examination. A grade of 69.01 is required to pass Part II.

   
   

4. The first twenty questions on Part II of the October 1989 exam were worth four points each. Questions 21-40 were worth one point each. Petitioner would have to obtain an additional six points in order to achieve a passing grade.

   
   

5. Petitioner has not challenged any specific questions on the examination. Instead, his challenge is based solely upon the manner in which the examination was administered.

   
   

6. The exam administration procedures were developed by NAI. All exam proctors are required to abide by these guidelines. These guidelines prohibit an exam taker from providing his own writing instruments. DPR provides each of the exam takers with a pencil. The policies and guidelines utilized in administering the exam establish a "one pencil" policy for all exam takers. Petitioner was treated no different than any of the other exam takers, all of whom were given only one pencil and instructed that they were not allowed to use any other writing implements.

   
   

7. The testing information booklet provided to all applicants prior to the examination advised them that they would not be able to bring pencils into the examination room.

   
   

8. The three-part examination was administered over a two-day period. Because Petitioner had already passed Part I of the exam, he was not present for the first day of the two-day examination. Part II of the exam is four and a half hours long and commenced on the morning of the second day.

   
   

9. Petitioner arrived at the examination room at 7:00 a.m. on day two of the exam in accordance with the instructions that he had been given prior to the exam. When he arrived at the examination room, most of the exam takers were seated, instructions were being given and proctors were distributing materials, including one pencil per applicant.

   
   

10. Petitioner told the exam proctor that he was a "hard presser" and asked that she provide him with an additional pencil. The proctor advised Petitioner that she was unable to give him an additional pencil because the number of pencils for the exam were limited. She told him that she would provide him with a sharp pencil whenever he raised his hand.

    
    

11. Petitioner broke his pencil while filing out the informational sheets prior to the commencement of the exam. Petitioner raised his hand as instructed in order to obtain a new pencil. When he did not get an immediate response, he stood up and was promptly told to sit back down. The exam began before he received a new pencil. When the exam started Petitioner had still had not completed the informational sheets so he was briefly delayed in starting the exam. However, Petitioner's contention that he lost at least ten minutes in beginning the exam appears to be overstated.

    
    

12. Petitioner broke his pencil on several other occasions during the exam. Each time he received a sharpened pencil from the proctor shortly after he raised his hand. Petitioner believes that he lost approximately 20-30 minutes because of his frequent need to obtain new pencils. Petitioner contends that, because of the time that he lost, he was unable to verify and check his

    answers and that he incorrectly transferred some of the answers from his worksheets to his answer sheet. Petitioner's testimony that he lost as much as

    30 minutes during the morning portion of the exam because of the continuous need to replace pencils is not accepted. While a broken pencil may have been an annoyance and a brief delay, it should not have been the major disruption that Petitioner has made it out to be. He was not required to search the room for a proctor or a new pencil.

    
    

13. Petitioner answered all of the questions on the examination. Petitioner has not established that any of his answers would have been different if he had an additional pencil or additional time to review his work.

    
    

14. There is no indication that Petitioner had to leave his seat in order to obtain a new pencil. Even if his pencil broke, Petitioner should have been able to review his prior work and check his answers. While Petitioner may have lost a few minutes at the beginning of the examination because he had to go back and fill out the informational sheets, the evidence was not sufficient to establish that he lost approximately 20 percent of the exam time as he claimed. Furthermore, the evidence did not establish that Petitioner would have answered any of the questions differently.

    
    

15. During the lunch break, Petitioner went out and bought a pencil sharpener which he used during the afternoon portion of the exam (Part III). With the help of the pencil sharpener, Petitioner completed Part III with only one pencil. As indicated above, he passed that section of the exam.

    
    

16. Under the rules of the Board, Petitioner must pass all three sections of the exam within three consecutive administrations of the exam in order to be deemed to have passed the entire exam. Petitioner retook the entire exam, in February 1990 and passed Past I and Part II. However, he received a failing grade of Part III.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

18. 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).

    
    

19. Petitioner has the burden of proof in this case and must prove that the Respondent acted erroneously or negligently in the administration and/or grading of the exam. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981).

    
    

20. Respondent argues that the Petitioner must demonstrate that Respondent's actions in grading or administering the exam were either arbitrary or capricious and/or that the Respondent abused its discretion in this case. In support of its position, Respondent cites State ex rel Glaser v. J.N. Pepper,

    155 So.2d 383 (Fla. 1st DCA 1963) and State ex rel Topp v. Board of Electrical Examiners, 101 So.2d 583 (Fla. 4th DCA 1958). However, both of those cases involved mandamus proceedings in circuit court. While those decisions demonstrate a reluctance on the part of the courts to substitute their judgement for that of the duly authorized board, they do not establish the burden of proof in this administrative proceeding. This administrative proceeding was

    instituted under the rules and policies adopted by the licensing board which will enter the Final Order in this case. Those rules establish the administrative procedure for challenging the grading of an exam. The rules do not require a petitioner to prove that the grader abused its Therefore, while the burden of proof is on the Petitioner to prove his case by a preponderance of the evidence, he need not demonstrate that DPR acted arbitrarily or capriciously in order to prevail in this challenge.

    
    

21. There is no dispute in this case as to the correct answers to the questions on the exam. While the Petitioner's worksheets have been submitted and reviewed as part of this proceeding, they do not conclusively reflect that any of the questions missed by Petitioner were the result of transcript ion errors that could have been caught if Petitioner had more time. In any event, no credit can be given to Petitioner for any answers on the worksheets that were not marked on his answer sheet.

    
    

22. The content of the examination, the general procedures for administering the exam and the criteria for determining passing grades are contained in Chapter 21-11 and Rules 21E-16.001 and 21E-16.005, Florida Administrative Code.

23. Rule 21-11.013(3) provides:

If through some mechanical fault of the Department, insufficient time is allowed for completion of a procedure, materials are lost by the Department, or other problems occur which are due to the Department's inaction or negligence, the Department shall permit reexamination in those areas at the next regularly scheduled examination.

1. Petitioner argues that, pursuant to this provision, he is entitled to reexamination "at the next regularly scheduled examination." While the "one policy" seems unduly restrictive, Petitioner has not established that he had insufficient time to complete the exam "due to the Department's inaction or negligence." Petitioner answered all of the questions on the exam. While Petitioner contends that he had insufficient time to check his answers, it is sheer speculation to assume that any of his answers would have changed if he had another pencil or was provided with another pencil in a more expeditious manner.

   
   

2. Under Rule 21E-16.001(1)(c), Florida Administrative Code, the Petitioner's prior passing test scores on Part I and Part III of the exam will be considered invalid and he will be required to make an original application and pay all appropriate fees if he has not passed all portions of the test within three consecutive administrations of the exam. Since he passed Part II during the February 1990 exam, Petitioner requests that his passing grade on that part should be given retroactive effect to the October 1989 exam so that he can achieve a passing grade on all portions of the exam within the three-exam period established by Rule 22E-16.001(1) (c), Florida Administrative Code. However, Petitioner has not demonstrated that he is entitled to reexamination and/or retroactive credit for his February 1990 passing grade on Part II.

   
   

3. Petitioner has failed to carry his burden of establishing that the Respondent did not administer the exam in accordance with the applicable statutory rules or that there was inaction or negligence on the part of DPR which resulted in him having insufficient time to complete the exam.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner's request for reexamination on Part II of the general contractor's examination administered in October 1989 be DENIED.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26 day of September 1990.

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 26 day of September 1990.

APPENDIX

Both parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or

Reason for Rejection.

1. Adopted in substance in Findings of Fact 3.

   
   

2. Adopted in substance in Findings of Fact 5.

   
   

3. Adopted in substance in the Preliminary Statement.

   
   

4. Adopted in part in Findings of Fact

   6, 7 and 12. The remainder is rejected constituting argument rather than findings of fact.

   
   

5. Rejected as constituting argument rather than a finding of fact. This subject matter is addressed in the Preliminary Statement.

6. Adopted in part in Findings of Fact

2. However, no evidence was presented regarding procedures on prior examinations. Therefore, that portion of the proposal is rejected as unsub- stantiated by competent

evidence.

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or

Reason for Rejection.

Adopted in substance in Finding of Fact 3.

1. Adopted in substance in Finding of Fact 5.

   
   

2. Adopted in the Preliminary Statement.

   
   

3. Adopted in substance in Findings of Fact 6, 7 and 12 except the last sentence whic

is rejected as constituting a conclusion of law.

COPIES FURNISHED:

Mr. Frank A. Cerra

24 Seneca Road

Fort Lauderdale, Florida 33308

Vytas J. Urba, Esquire Department of Professional

Regulation Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0750

Fred Seely, Executive Director Construction Licensing Board Post Office Box 2 Jacksonville, Florida 32201

Docket for Case No: 90-002639

Orders for Case No: 90-002639