STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALEXANDER Z. KOBRYN, )

)

Petitioner, )

)

vs. ) CASE NO. 90-4423

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Veronica E. Donnelly, held a formal hearing in the above-styled case on December 11, 1990, in Tampa, Florida.

APPEARANCES

For Petitioner: Alexander Z. Kobryn, pro se

163 Padgett Drive Lakeland, Florida 33805

For Respondent: John Rodriguez, Esquire

HRS - Interprogram & Development Technical Assistance Office

1317 Winewood Boulevard Building One, Room 100 Tallahassee, Florida 32399-0700

STATEMENT OF THE ISSUES

Should the Petitioner be certified in Florida as a Radon Mitigation Specialist based upon his performance on the examination for certification given in April 1990?

Were any of the seven items on the examination challenged by Petitioner marked incorrect when they were in fact correct answers to the questions asked?

PRELIMINARY STATEMENT

On May 8, 1990, the Department of Health and Rehabilitative Services (the Department) notified the Petitioner, Alexander Z. Kobryn (Kobryn) that he did not receive a passing score on the Radon Mitigation Specialist Examination taken on April 19, 1990. In a letter dated June 20, 1990, the Petitioner requested a formal hearing to challenge the grading of the examination. The matter was then transferred to the Division of Administrative Hearings and scheduled for hearing.

On the date of hearing, the Petitioner attempted to have the proceeding videotaped. As the Petitioner did not seek advanced approval, the videotape equipment was not allowed to be used during the proceeding. Canon 3, Section 2(c) of the Code of Judicial Conduct does not allow the use of the equipment without prior approval. The code has been adopted by the Division of Administrative Hearings and Hearing Officers are subject to its provisions. In addition Section 119.07(3)(c), Florida Statutes, maintains the confidentiality of examinations administered by a governmental agency for purposes of certification. Without preliminary safeguards, the taping of the examination challenge could cause the unauthorized release of confidential information.

During the hearing, the Department presented three witnesses and filed eight exhibits. The Petitioner testified in his own behalf and offered two exhibits. All of the exhibits were admitted into evidence.

The transcript of the hearing was expedited in order to allow the filing of the Recommended Order [in December 1990. The continuance of the formal hearing to December 1, 1990, was granted based upon the representation that the Recommenced Order could still be filed in December if the November date for hearing was rescheduled, as requested by the Department.

The transcript of the proceeding was filed on December 18, 1990. The Department timely filed its proposed recommended order on December 27, 1990. The opportunity to file proposed findings of fact was waived by the Petitioner at hearing. Rulings on the proposed findings of fact submitted by the Department are in the Appendix of the Recommended Order.

FINDINGS OF FACT

1. The Office of Radiation Control within the Department of Health and Rehabilitative Services is the agency authorized to certify an individual as a radon mitigation specialist in Florida.

   
   

2. One of the required qualifications required for certification is that the individual pass the training examination.

   
   

3. The Petitioner, Alexander Z. Kobryn, sat for the training examination in April 1990. A comparison of Petitioner's answer sheet with the answer key used to grade the examination reveals that he marked the incorrect response on twenty-six of the examination questions. As the examination consisted of only seventy-five multiple choice questions, Petitioner's overall score was below the designated passing score of seventy percent.

   
   

4. After Petitioner's review of the examination, his answer sheet, the Environmental Protection Agency Training Manual, and the answer key, seven examination answers designated as the only correct answers were challenged by Petitioner. These items were questions numbered 11, 34, 54, 57, 58, 60 and 64.

   
   

5. The specific challenges were not isolated until the hearing date because Petitioner had not been granted the opportunity to review his incorrect until final hearing.

   
   

6. At hearing, the parties agreed that if any four of the challenged items were in fact correct answers, the Petitioner's examination would be rescored to reflect he had received a passing score of seventy percent.

7. As part of the test design, the correct answer for each question was supposed to reflect that certain training objectives were being met by the course materials for the Radon Mitigation Specialist Examination. A correct answer was supposed to reflect that the training materials had covered certain information deemed as necessary knowledge for individuals in the radon mitigation business.

   
   

8. Individuals taking the examination were not made aware of which training objectives they were meeting when they answered individual questions. This information was reserved for the designers of the test and the Department. The test takers answered the questions based on content alone.

   
   

9. On question 11 of the examination, applicants were asked to select the category which has the greatest influence on indoor radon and radon decay products. Four multiple choice answers were provided. Of these choices, two were eliminated by Petitioner and all other applicants. According to the information in Unit Two of the EPA Reducing Radon in Structures Manual, the keyed answer "A" was the best response.

   
   

10. During the hearing, the Petitioner provided an article written by Dr. Ed Vitz, a recognized expert and acknowledged author of the EPA manual. This article gives greater emphasis to the radon in the water supply than the training text on which the examination was based.

    
    

11. The Petitioner relied on the expert opinion of Dr. Ed Vitz when he exercised the judgment he was asked to use in his selection of the category with the greatest influence on indoor radon and radon decay products.

    
    

12. The Petitioner was able to justify his judgment selection of answer "B" on question 11 and should be given full credit for his response as a correct answer.

    
    

13. Question 34 of the examination asked applicants which remediation technique they (the individual) would consider first if the sub-slab vacuum test alters the direction of smoke at a block wall opening. The Petitioner chose

    sub-slab and baseboard suction (answer "C") over the keyed answer of sub-slab suction (answer "D").

    
    

14. The Petitioner argued that his answer to question 34 was equally as correct as the keyed answer. While he agrees that sub-slab suction should be considered, he also chose baseboard suction. This is a conservative selection that includes a more thorough attempt at remediation on the first try than the keyed answer. There was no redundancy.

    
    

15. As the test asked for a preliminary evaluation from the applicant of the techniques to be used, the Petitioner's answer was not incorrect. Without more information, he chose a more conservative approach than the answer ultimately sought by the examination. Because the Petitioner was able to justify his answer choice, he should be given full credit for his response of "C" as a correct answer.

    
    

16. Question 54 asks for the factor that does not directly influence the depressurization of a block stem wall. When answering the question, the Petitioner did not contemplate that more suction points would be needed in the trench if more corners existed in the wall. (See Section 5.55 of the EPA Manual.)

17. The answer keyed by the Department is the only correct answer to the question. The Petitioner should not be given credit for a correct response of question 54.

    
    

18. Question 57 asks for the mitigation method an applicant should use to increase the ventilation in a tightly constructed home with a 6-8 pCi/1 radon concentration.

    
    

19. In his answer, the Petitioner chose to keep the windows open during the day (answer "D"). The keyed answer was to install a constant fresh air supply (answer "B").

    
    

20. The Petitioner testified that the given level of radon concentration could be mitigated by either answer. The mitigation would be caused by the intrusion of fresh air from an external source. He chose answer "D" over answer "B" as his first mitigation method because it was the most cost-effective for the client.

    
    

21. If the question had asked for which mechanical devices should be used, answer "B" would clearly be the correct one. However, Petitioner established that his answer was not incorrect. The authority chosen by the Department to justify the keyed answer discusses ventilation caused by mechanical devices. However, the same text validates the method chosen by Petitioner.

    
    

22. The Petitioner should be given credit for a correct answer on question

    57.

    
    

23. The next question challenged was question 58. No one taking the

    examination chose the keyed answer "A". Instead, an overwhelming majority of applicants chose the same answer as selected by the Petitioner, answer "B".

    
    

24. The Petitioner explained that answer "B'1 was interpreted by him to include the duct work in the crawlspace. This is a reasonable interpretation of the selection ~~B~?. Under that interpretation, it is clearly the best answer to the question posed by the examination.

    
    

25. The Petitioner should be given credit for a correct answer on question

    58.

    
    

26. The Petitioner's selected answer to question 60 is incorrect, even

    under the authority he referenced in Section 5-90 of the EPA Manual. The answer keyed by the Department is correct, as established in Section 5-89 of the manual. The Petitioner should not receive credit for a correct answer for his response to this question.

    
    

27. Question 64 asked what course of action should be taken if post- mitigation measurements provided certain information. The keyed answer was "B", but the Petitioner gave the answer "C" as the proposed course of action.

    
    

28. The first measurement given in the question was a long-term measurement. It is the best means for judging results. The answer selected by Petitioner was redundant as opposed to conservative. Credit for a correct answer should not be given for his response to question 64.

    CONCLUSIONS OF LAW

    
    

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

    
    

30. Rule 10D-91.1306, Florida Administrative Code, requires an individual seeking certification as a radon mitigation specialist to pass the training examination. In order to pass the examination, the Respondent needed to receive credit for correct responses on four additional questions during his examination challenge. Based upon the evidence presented at hearing, the Petitioner was able to meet his burden of proof regarding the correctness of his answers to four additional questions.

RECOMMENDATION

Accordingly, it is RECOMMENDED:

1 . That a Final Order be entered finding that the Petitioner achieved a passing score on the Radon Mitigation Specialist Examination taken on April 19, 1990.

2. As a result of the passing score, tie Petitioner's exam status should be changed from "fail" to "pass".

DONE and ENTERED this 2nd day of January, 1991, in Tallahassee, Leon County, Florida.

VERONICA E. DONNELLY

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 o Administrative Hearings this 2nd day of January, 1991.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-4423

The Department's proposed findings of fact are addressed as follows:

1. Accepted.

2. Accepted.

3. Accepted.

4. Accepted. See HO #1.

5. Accepted. See HO #2.

6. Accepted. See HO #3.

7. Accepted. See HO #3.

8. Accepted. See HO #6.

9. Accepted. See HO #4.

10. Rejected. See HO #12, #15, #22 and #25.

11. Rejected. See HO #12, #15, #22 and #25.

COPIES FURNISHED:

Alexander Z. Kobryn

163 Padgett Drive Lakeland, Florida 33805

John Rodriguez, Esquire

HRS-Interprogram & Development Technical Assistance Office

1317 Winewood Boulevard Building One, Room 100 Tallahassee, Florida 32399-0700

R. S. Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Linda K. Harris, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Docket for Case No: 90-004423

Orders for Case No: 90-004423