STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID L. ADAMS, )

)

Petitioner, )

)

vs. ) CASE NO. 91-4064

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

)

Respondent. )

)

RECOMMENDED ORDER

This matter was heard by William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings, on September 12, 1991, in Miami, Florida.

APPEARANCES

For Petitioner: David L. Adams, pro se

9400 Southwest 80th Street Miami, Florida 33173

For Respondent: Thomas K. Equels, Esquire

Holtzman, Krinzman & Equels 1500 San Remo Avenue

Suite 200

Coral Gables, Florida 33146 STATEMENT OF THE ISSUE

The issue is whether the grade which Mr. Adams received on the February 20, 1991, general contractor examination should be regraded based upon Mr. Adams' challenge to the scoring of his examination.

PRELIMINARY STATEMENT

During the hearing two witnesses, Dr. Rosemary Ammons and Carl Lieblong testified on behalf of the Department. Fourteen exhibits were admitted into evidence. Because the test questions are confidential, they have been submitted in a separate envelope and have not been made available for public inspection.

No transcript of the proceeding was filed. The Department filed a proposed recommended order, and Mr. Adams filed a letter stating his arguments after the conclusion of the evidence. The findings proposed by the Department have been accepted, although the facts have been restated.

FINDINGS OF FACT

The following findings of fact are based upon the stipulation of the parties.

1. Mr. David L. Adams took the certified general contractor examination given on February 19 and 20, 1991. His score on part II of the examination was

   70.00 (a passing score), and 65.00 (a failing score) on part III, the Project Management Examination.

   
   

2. All parties agreed that instructions were given orally to candidates during the examination that only the answer which was marked on the machine readable answer sheet would be considered the answer of the candidate. Candidates were to mark the circles with a number two pencil, and blacken completely the circle corresponding to their answer. The machine readable answer sheet was completely separate from the booklet which contained the examination questions.

   
   

3. Candidates were also orally told to read the written test instructions on the first page of the examination. Those instructions include the statement that

   
   

   at no time will you receive credit for an item for which you did not fill in a response on

   your answer sheet. (Examination, page 1 of 24).

   
   

4. At the end of the test, candidates were also reminded orally that they should ensure that the answer corresponding to their calculations has been marked on the answer sheet, for no credit would be given for answers written in the examination booklet or on any scratch paper.

   
   

   The following findings were based upon the testimony and exhibits admitted during the hearing.

5. The rules of the Construction Industry Licensing Board state that the only paper that shall be graded in a

   certification examination is the official

   answer sheet. No credit shall be given for answers written in an examinee's booklet. Rule 21E-16.006, Florida Administrative Code.

   
   

6. Mr. Adams challenged the grading of question 12 on the Project Management Examination. He acknowledged during the hearing that he had marked the wrong answer on the answer sheet. Based upon the rules of the Board, the oral instructions given to the candidates, and the written instructions found on the first page of the Project Management Examination for general contractors given on February 20, 1991, Mr. Adams is not entitled to regrading of question 12.

   
   

7. Before the examination, every candidate is provided with a list of references which is sent by regular United States mail. The approved references may be consulted by the candidate while taking the test. The reference list for the February 1991 administration of the Project Management Examination stated that the Standard Building Code to be used by a candidate should include the 1989-90 revisions to that Code. Mr. Adams studied from, and brought with him to

   the examination, and unrevised 1988 copy of the Code. His use of that Code accounted for the answer he gave to question 13, which dealt with the time available to challenge a decision by the building official to reject plans. The time for appeal permitted in the 1988 building code differed from the appeal time which is permitted in the 1990 revision of the Code by sixty days. Mr.

   Adams contends that it is obvious that he knows how to use the Standard Building Code because the answer he gave would be correct if the edition of the Code which he used were the current Code. This argument cannot be accepted. The Code itself states in its preface that it will be updated annually. It is a matter of basic competency that general contractors must use the current version of the Standard Building Code. Mr. Adams is not entitled to credit for the answer he gave to question 13.

   
   

8. Mr. Adams has challenged his answer to question 15, which dealt with the amount of time necessary to erect steel members in a roof framing plan found in the examination booklet. The answer given by Mr. Adams was erroneous, because he did not correctly count the number of steel beams to be used in the project. The answer used by the Department in grading the examinations is the correct answer. Mr. Adams is not entitled to credit for the answer he gave to question 15.

   
   

9. Mr. Adams has challenged the grading of question 16, which deals with the total permit fees and plan checking fees due to the building department for a project. The question specifically instructs candidates that the fees are to be computed based upon the fee guidelines in the Standard Building Code. Mr. Adams' answer was incorrect, because he used the 1988 edition of the Standard Building Code, although if that edition of the Code were in effect his answer would have been correct. Mr. Adams is not entitled to regrading of his answer to question 16, because the answer he gave is incorrect under the current edition of the Standard Building Code.

   
   

10. Mr. Adams challenged the grading of his answer to question 17, which required the calculation of the amount due from an owner for a change order.

    Mr. Adams failed to take into account that the wall to be changed extended below grade, and as a consequence failed to calculate the full amount of additional concrete required for the change. Mr. Adams is not entitled to regrading of his answer for question 17.

    
    

11. During the hearing, Mr. Adams argued that because the Department had only produced a clean, unused copy of the Project Management Examination given on February 20, 1991, and not the exact copy of the examination which he had used, it was possible that the plans which he used in answering questions 15 and

    17 were not the same plans which the Department had used in calculating its answers for the test. The Department established that all plans utilized for the test are coded, and that the plans in test booklets do not vary from booklet to booklet. If Mr. Adams had been given the wrong set of plans, he would have done extremely poorly on the examination as a whole because a number of test questions are tied to the plans. Mr. Adams' contention that the plans in his examination booklet were different than the plans the Department used in developing its answers for the examination is contrary to the evidence.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes (1989).

13. An applicant for licensure as a general contractor by the Construction Industry Licensing Board is required to complete successfully an examination prior to certification as a general contractor. Section 489.111, Florida Statutes (1989).

    
    

14. The rules adopted by the Construction Industry Licensing Board make clear that only the answer found on the candidate's official answer sheet will be graded, and that no credit is given for answers written in a candidate's test booklet. Rule 21E-16.006, Florida Administrative Code, quoted in Finding 3.

Mr. Adams has failed to prove by a preponderance of the evidence that his answers to questions 12, 13, 15, 16 or 17 on the February 1991 Project Management Examination for general contractors were misgraded.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the challenge filed by David L. Adams to the grade which he received for the February 1991 certified general contractor examination be rejected.

RECOMMENDED this 26th day of November, 1991, at Tallahassee, Florida.

WILLIAM R. DORSEY, JR.

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 26th day of November, 1991.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-4064

The proposed findings of fact submitted by the Construction Industry Licensing Board have generally been accepted, although they have been edited. The arguments contained in the letter submitted by Mr. Adams have been incorporated in the Findings of Fact.

COPIES FURNISHED:

Thomas K. Equels, Esquire Holtzman, Krinzman & Equels 1500 San Remo Avenue

Suite 200

Coral Gables, FL 33146

David L. Adams

9400 Southwest 80th Street Miami, Florida 33173

Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Daniel O'Brien, Executive Director Department of Professional Regulation 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: 91-004064

Orders for Case No: 91-004064