STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSE ALABAU, )

)

Petitioner, )

)

vs. ) CASE NO. 90-7018

) DEPARTMENT OF PROFESSIONAL ) REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on January 22, 1991, in West Palm Beach, Florida.

APPEARANCES

FOR PETITIONER: Sylvan Burdick, Esquire

Burdick & Considine Commerce Center

324 Datura Street

West Palm Beach, Florida 33402

FOR RESPONDENT: Vytas J. Urba, Esquire

Senior Attorney

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

STATEMENT OF THE ISSUES

Whether petitioner's challenge to the grading of his examination for licensure as a Class B air conditioning contractor should be sustained.

PRELIMINARY STATEMENT

Petitioner sat for the examination required for certification as a Class B air conditioning contractor on June 26, 1990. After receiving notification that he failed Part I of the examination, petitioner challenged respondent's grading of several questions, including questions numbered 5, 11, and 50. The respondent sustained petitioner's challenge to question 11 and raised his grade from 67 to 69, but denied petitioner's challenge to questions 5 and 50. In turn, petitioner filed a timely request for a formal hearing, pursuant to Section 120.57(1), Florida Statutes, to contest the respondent's decision denying his challenge to questions 5 and 50. 1/

At hearing, petitioner testified on his own behalf, and his exhibits 1-5 were received into evidence. Respondent called David Olsen as a witness, and its exhibit 1 was received into evidence. Joint exhibits 1 and 2 were also received into evidence.

The transcript of hearing was filed February 14, 1991, and the parties were afforded ten days from that date to file proposed findings of fact. Respondent has filed proposed findings, and they are addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Respondent is the state agency charged with the duty of regulating contracting in the State of Florida. An applicant for certification as a Class B air conditioning contractor must pass the examination administered by respondent as a prerequisite to certification. Section 489.113(1), Florida Statutes.

   
   

2. Petitioner sat for Part I of the Class B air conditioning contractor's examination on June 26, 1990, and received a failing grade of 67.

   
   

3. Subsequently, petitioner filed a timely challenge to the respondent's grading of questions 5, 11, and 50 to the examination. Respondent sustained petitioner's challenge to question 11, accorded him credit, and raised his grade from 67 to 69. Respondent denied, however, petitioner's challenge to questions

   5 and 50. Had petitioner been accorded credit for either question 5 or 50, he would have passed Part I of the examination.

   
   

4. Question number 5 is an objective, multiple choice question. Based on the factual data in the question, the candidate is to choose, from among four possible answers, the answer that would derive the lowest cost for a line of credit. The correct response to the question was "C", and petitioner erroneously responded "A."

   
   

5. At hearing, petitioner contended that he should be accorded credit for question 5 because he could have correctly derived the answer if Walker's Building Estimators Reference Book had been on the list of materials to bring to the test site. In this regard, petitioner testified that the test directed the applicants to utilize such reference in deriving the answer, and that had he been noticed of such fact he could have derived the correct answer through the referenced book. The subject examination, produced at hearing, was not, however, shown to contain any mention of the Walker's reference book, nor was the Walker's reference book one of the recommended reference books. In sum, petitioner's recollections regarding this question are erroneous, and his failure to correctly answer question 5 was based on his own lack of knowledge, and not any misdirection or misconduct on the part of respondent.

   
   

6. Question 50 is likewise an objective, multiple choice question. Based on the factual data in that question, the candidate is again required to choose the correct response from among four possible answers. The correct response to the question was "D", and petitioner erroneously responded "C." At hearing, petitioner conceded that answer "D" was the only correct answer to question 50.

   
   

7. Questions 5 and 50 were clear and unambiguous, and each contained only one correct response. Appropriately, respondent gave petitioner no credit for his answer to either question, because petitioner gave the wrong answer to each question.

   CONCLUSIONS OF LAW

   
   

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

   
   

9. Section 489.113(1), Florida Statutes, provides:

   
   

   Any person who desires to engage in contracting on a statewide basis shall, as a prerequisite

   thereto, establish his competency and qualifications to be certified pursuant to this part. To establish his competency, a person shall pass the appropriate examination administered by the department . . . .

   
   

10. Petitioner has the burden of establishing by a preponderance of the evidence that respondent's decision to allow no credit for his answers to the challenged questions constitutes arbitrary and capricious action or an abuse of discretion. See: State ex rel. Glasser, v. J.M. Pepper, 155 So.2d 383 (Fla. 1st DCA 1963) and State ex rel. Topp v. Board of Electrical Examiners, 101 So.2d

    583 (Fla. 1st DCA 1958). Petitioner has failed to meet that burden.

    
    

11. Section 455.230, Florida Statutes, provides:

Notwithstanding any other provision of this chapter, examination questions and answers shall not be subject to discovery, but may be introduced into evidence and considered only

in camera in any administrative proceeding under Chapter 120. ... In any subsequent administrative hearing the department shall provide challenged examination questions and answers to the hearing officer. Examination questions and answers so provided at the hearing, which are not invalidated, shall be sealed and not open to public inspection.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered dismissing petitioner's challenge

to the subject examination, and that the examination questions and answers provided at hearing be sealed and not open to public inspection.

DONE and ENTERED this 12th day of March, 1991, at Tallahassee, Florida.

WILLIAM J. KENDRICK, 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

12th day of March, 1991.

ENDNOTES

1/ In addition to questions 5 and 50, petitioner challenged the respondent's grading of other questions. However, at hearing, petitioner abandoned all challenges except those to questions 5 and 50.

APPENDIX TO RECOMMENDED ORDER CASE NO. 90-7018

Respondent's proposed findings of fact are addressed as follows:

1. Addressed in paragraph 3.

2. Rejected as not a factual finding.

3. Addressed in paragraph 3, and the preliminary statement.

4. Addressed in paragraphs 4, 5, and 7.

5. Addressed in paragraph 6.

Copies furnished to:

Sylvan Burdick, Esquire Burdick & Considine Commerce Center

324 Datura Street

West Palm Beach, Florida 33402

Vytas J. Urba, Esquire Senior Attorney

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Daniel O'Brien Executive Director

Construction Industry Licensing Board

Post Office Box 2 Jacksonville, Florida 32202

Jack McRay, General Counsel Department of Professional

Regulation

1940 North Monroe Street 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 consult with 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: 90-007018

Orders for Case No: 90-007018