STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHRISTOPHER SCHLITT, )

)

Petitioner, )

)

vs. ) CASE NO. 90-4294

)

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 from the Division of Administrative Hearings, on September 28, 1990, in Vero Beach, Florida.

APPEARANCES

For Petitioner: Lawrence A. Barkett, Esquire

Gould, Cooksey, Fennell, Appleby, Barkett & O'Neill

979 Beachland Boulevard Vero Beach, Florida 32963

For Respondent: Vytas J. Urba, Esquire

Department of Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

STATEMENT OF THE ISSUE

The issue is whether Petitioner should be given credit for his answers to questions numbered 20, 22, and 33 on the February, 1990, Building Contractor's Examination.

PRELIMINARY STATEMENT

Respondent notified Petitioner that he failed to achieve a passing grade on the February, 1990, Building Contractor's Examination. Petitioner timely filed a challenge to the scoring of several of his answers on that examination and timely requested a formal hearing on the Department's denial of his challenge.

This matter was thereafter transferred to the Division of Administrative Hearings for the conduct of that formal proceeding.

Petitioner presented the testimony of David M. Olsen. Additionally, Joint Exhibits numbered 1-6 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 received a grade of 69 on Part II of the February, 1990, Certified Building Contractor Examination. A score of 69.01 was required to achieve a passing score.

   
   

2. At the commencement of the final hearing, Petitioner restricted his challenge to questions numbered 20, 22, and 33.

   
   

3. The correct answer to question numbered 20 is "C". Petitioner chose answer "D". Petitioner relied upon an exception to the general rule in choosing his answer. However, the stem of the question calls for an answer which states the general rule and not the exception. Accordingly, Petitioner's answer to question numbered 20 is incorrect.

   
   

4. The Department keyed answer "A" as the correct answer to question numbered 22. Petitioner chose answer "C". It is true, as the Department contends, that a separate set of records should be maintained for each construction project, but that is not the subject matter of question numbered

1. The words "maintain a separate set of project records" have a different meaning from the words "duplicate set of project records" or the words "a copy of the project records." The Department's chosen answer of "A" is an incorrect answer, while Petitioner's chosen answer of "C" is the only correct answer to question numbered 22. Petitioner should, therefore, be given credit for his answer to question numbered 22.

   
   

   1. The Department keyed "D" as the correct answer to question numbered 33, and Petitioner chose "B" as the correct answer. The persons listed in all four possible answers to question numbered 33 may, or may not, have actual, or express, authority. Likewise, the persons listed in all four possible answers may, or may not, have apparent authority. There is not enough information given in the stem of the question by which an examinee can differentiate among the four possible answers, and all of the answers are equally correct. The question is, therefore, ambiguous and devoid of any basis for determining one of the answers to be more correct than the others. To the extent that the Department interprets a section in the Florida Construction Law Manual to support its position, Respondent's interpretation is not a correct statement of the law in this State. Accordingly, Petitioner should be given credit for his answer to question numbered 33.

      
      

      CONCLUSIONS OF LAW

      
      

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

      
      

   3. Rule 21E-16.003(4), Florida Administrative Code, provides that an unsuccessful examinee may "...challenge any question which the examinee believes may be ambiguous or any solution which the examinee believes may be incorrect. Petitioner has met his burden of proving that the Department's answer to question numbered 22 is incorrect and that Petitioner's answer to that question is the only correct one. Likewise, Petitioner has met his burden of proving

that question numbered 33 is ambiguous and that his answer to that question is as correct as the Department's. On the other hand, Petitioner has failed in his burden of proof as to question numbered 20.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered awarding credit to Petitioner for

his answers to questions numbered 22 and 33 on the February, 1990, Building

Contractor's Examination.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 30th day of November, 1990.

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 30th day of November, 1990.

APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-4294

1. Petitioner's proposed finding of fact numbered 1 has been rejected as not constituting a finding of fact.

   
   

2. Petitioner's proposed finding of fact numbered 2 has been adopted either verbatim or in substance in this Recommended Order.

   
   

3. Respondent's proposed finding of fact numbered 2 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law, argument of counsel, or recitation of the testimony.

   
   

4. Respondent's proposed findings of fact numbered 1, 3, and 6 have been adopted either verbatim or in substance in this Recommended Order.

   
   

5. Respondent's proposed findings of fact numbered 4 and 5 have been rejected as not being supported by the weight of the evidence in this cause.

COPIES FURNISHED:

Vytas J. Urba, Esquire

Department of Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Lawrence A. Barkett, Esquire Gould, Cooksey, Fennell, Appleby,

Barkett & O'Neill

979 Beachland Boulevard Vero Beach, Florida 32963

Daniel O'Brien Executive Director

Construction Industry Licensing Board Post Office Box 2

Jacksonville, Florida 32202

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Docket for Case No: 90-004294

Orders for Case No: 90-004294