STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WARREN TARPLEY, )

)

Petitioner, )

)

vs. ) CASE NO. 90-4406

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written Notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Daniel Manry, held a formal hearing in the above-styled case on September 26, 1990, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Mr. Warren Tarpley, pro se

1807 Stratford Way

Palm City, Florida 34990

For Respondent: Vytas J. Urba, Esquire

Staff Attorney

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUES

The issue for determination in this proceeding is whether Petitioner was wrongfully denied credit for one or more answers given by Petitioner during the certified building contractor's examination (the "examination") in February, 1990.

PRELIMINARY STATEMENT

By letter dated July 4, 1990, Petitioner requested a formal hearing to contest the failing grade he received on the examination. The matter was referred to the Division of Administrative Hearings (the "Division") for assignment of a hearing officer on July 17, 1990, and assigned to the undersigned on July 23, 1990. The matter was set for formal hearing on September 26, 1990, pursuant to an Amended Notice of Hearing issued on September 4, 1990.

At the formal hearing, Petitioner testified in his own behalf and presented one exhibit which was admitted in evidence without objection. Respondent called one expert witness and identified six exhibits. Five of Respondent's exhibits were admitted in evidence without objection. Respondent's Exhibit 5 was identified but not submitted for admission in evidence. A transcript of the record of the formal hearing was not requested by either party.

Proposed findings of fact and conclusions of law were timely filed by Respondent on October 5, 1990. Petitioner did not file proposed findings of fact and conclusions of law. Respondent's findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner is an unsuccessful candidate for the certified building contractors examination, BC424, Part III, which was given in February, 1990, (the "examination"). Petitioner received a score of 69 percent on the examination. The minimum score required to pass the examination is 69.01 percent.

   
   

2. Petitioner challenges Respondent's refusal to grant credit for Petitioner's answers to questions 5, 10, and 25. 1/ In each challenge, Petitioner stated during his direct testimony that the relevant question is ambiguous and that there is more than one correct answer to the question, including the answer given by Petitioner.

   
   

3. None of the challenged questions are ambiguous. There is only one correct response to each of the questions challenged by Petitioner. The correct response to each question is answer "A". Petitioner did not choose the correct answer for any of the three challenged questions.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this proceeding. Section 120.57(1), Florida Statutes. The parties were duly noticed for the formal hearing.

   
   

5. Petitioner has the burden of proof in this proceeding. Petitioner must demonstrate by a preponderance of the evidence that Respondent's action is arbitrary and capricious. Harac v. Department of Professional Regulation, Board of Architecture, 484 So.2d 1333, 1338 (Fla. 3rd DCA 1986); State ex rel Glaser

   v. J.M. Peper, 155 So.2d 383 (Fla. 1st DCA 1963); State ex rel I. H. Topp v. Board of Electrical Contractors, 101 So.2d 583 (Fla. 1st DCA 1958).

   
   

6. Petitioner failed to satisfy his burden of proof in this proceeding. Respondent presented the testimony of David Olsen, an expert in the field of general contracting and examination preparation and grading. Mr. Olsen's testimony was persuasive.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that no credit be given for Petitioner's answers to the

questions challenged in this proceeding.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 25th day of March 1991.

DANIEL MANRY

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 March 1991.

ENDNOTE

1/ Petitioner originally challenged Respondent's refusal to grant credit for Petitioner's answers to question 12, but abandoned his challenge to question 12 during the formal hearing.

APPENDIX

Respondent has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. No notation is made for unnumbered paragraphs. Petitioner did not submit proposed findings of fact.

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1 Accepted in finding 1

2-3 Accepted in Conclusions of Law

4 Accepted in finding 2

5-6 Accepted in finding 3

COPIES FURNISHED:

Daniel O'Brien Executive Director

Construction Industry Licensing Board

P.O. Box 2

Jacksonville, Florida 32202

Jack McRay, Esquire General Counsel 1940 North Monroe

Tallahassee, Florida 32399-0792

Mr. Warren Tarpley 1807 Stratford Way

Palm City, Florida 34990

Vytas J. Urba, Esquire Staff Attorney

Department of Professional Regulation

1940 North Monroe

Tallahassee, Florida 32399-0792

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: 90-004406

Orders for Case No: 90-004406