STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRIAN FRIEFELD, )

)

Petitioner, )

)

vs. ) CASE NO. 91-5179

)

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, Claude B. Arrington, held a formal hearing in the above-styled case on December 19, 1991, in Miami, Florida.

APPEARANCES

For Petitioner: Sheldon Friefeld, Esquire

20801 Biscayne Boulevard

Suite 501

Aventura, Florida 33180

For Respondent: Tim Vaccaro, Esquire

Staff Attorney

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

STATEMENT OF THE ISSUE

Whether Petitioner's responses to Question 10 and to Question 19 on the October 1990, general contractor's examination were incorrectly scored.

PRELIMINARY STATEMENT

Petitioner sat for the general contractor's examination administered by Respondent in October 1990. Petitioner received a score of 67 on Part II of the examination, but a score of 69.01 was required to pass that part of the examination. Petitioner initially challenged the scoring of nine questions on Part II of the examination. After reviewing the examination just before the start of the formal hearing, Petitioner limited his challenge to only three questions, namely questions 10, 19, and 20, and evidence as to all three questions was presented at the formal hearing. However, by his proposed recommended order, Petitioner withdrew his challenge of Question 20, so that the only two questions at issue are Question 10 and 19.

At the formal hearing, the parties presented the testimony of David M. Olsen and Karl Lieblong. Mr. Olsen is an employee of National Assessment Institute, which assists Respondent in the development and assessment of the general contractors examinations administered by Respondent. Mr. Lieblong is a general contractor in the State of Florida and was accepted as an expert in the field of general contracting.

A transcript of the proceedings has been filed. Rulings on the parties' proposed findings of fact may be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner sat for the general contractors licensing examination administered by Respondent in October 1990. The overall examination consisted of three parts. Petitioner has passed Parts I and III of the examination, but he failed Part II of the examination. Petitioner received a score of 67 on Part II of the examination while a score of 69.01 is required to pass that part of the examination. Petitioner initially challenged nine questions on Part II of the examination. Prior to hearing, Petitioner abandoned his challenges to all questions except for questions 10, 19, and 20. Evidence as to all three questions was presented by the parties at the formal hearing. In his post- hearing submittal, Petitioner abandoned his challenge to question 20. Consequently, only the challenges to Questions 10 and 19 need to be resolved.

2. Question 10 and Question 19 are each worth four points. If Petitioner is given additional credit worth 2.01 points, he will have passed Part II. The challenged questions are multiple choice questions with only one response being considered by Respondent to be the correct response. For each challenged question, Petitioner selected a response other than the response Respondent considered to be the correct response. For each of the challenged questions, Petitioner received a score of zero.

   
   

3. Question 10 requires the candidate to make certain calculations to determine the cost of a change order for a construction project. Petitioner contends that the question is unfair because of the narrow band between the possible answers. Respondent established that the question contained all information necessary to make the required computations. While Petitioner is correct in that some other questions may be less difficult because of the greater margin of error in the calculations required by those less difficult questions, his answer to Question 10 is nevertheless incorrect. Petitioner is entitled to no credit for his incorrect answer to Question 10.

   
   

4. Question 19 provides certain information in the stem of the question and pertains to the time constraints on the service of a notice to owner by a subcontractor under the Florida Mechanics Lien Law. From the information provided in the stem of the question, the candidate can determine the date the subcontractor first furnished materials or labor. The stem of the question also informs the candidate of the date on which final payment was made to the contractor in reliance on the final contractor's affidavit. The answer to the question contains four multiple choice dates from which the candidate is to choose his answer. Preceding the answers is the following: "According to the Florida Construction Law Manual, in order to meet the requirements of the Mechanics Lien Law, concerning proper filing of the Notice to Owner, the concrete subcontractor's Notice to Owner must be served to the owner no later than:".

5. The pertinent portions of the Florida Construction Law Manual provide as follows:

   
   

   Notice to the owner must be served on the owner within the earliest of the following time periods:

   One, before or within 45 days of the first commencement to furnish labor and materials

   on the job site, or within 45 days of starting to make specialty manufactured materials.

   Two, before final payment is made in reliance on the final contractor's affidavit. 1/

   
   

6. Petitioner contends that Question 19 is ambiguous because the stem of the question does not identify whether the contract referred to in the stem of the question is between the contractor and the owner or between the contractor and the subcontractor. Petitioner is correct in his contention that the question refers to the date that a contract was signed without identifying whether the contract was that between the owner and the contractor or that between the contractor and the subcontractor. The absence of that information is not fatal because the question enables the candidate to determine the date the subcontractor started work and provides the date of final payment was made to the contractor, which is the information necessary to correctly answer the question.

   
   

7. Petitioner also contends that Question 19 is ambiguous because the answer considered by Respondent to be the correct answer is not the last date upon which the notice to owner can be served upon the owner. The correct response to Question 19 from the dates provided as possible answers to the question according to Respondent is the day before final payment was made to the contractor in reliance on the affidavit. The day that the final payment was made was not one of the four possible answers. Petitioner argues in his post- hearing submittal (but not at the formal hearing) that the question is misleading because the notice to owner could have been served on the day of final payment if the notice was served prior to the final payment by the owner. While the date of the final payment may arguably be a better choice than the date preceding the date of final payment, the date of final payment is not one of the choices. Of the choices offered the date preceding the date of final payment is clearly the best possible response.

   
   

8. Petitioner's response to Question 19 was based on the statutory provision permitting the subcontractor to perfect service within 45 days of the date the subcontractor first furnished labor or material. The question informed the candidate that final payment to the contractor was made in reliance on a final contractor's affidavit six days prior to the date selected by Petitioner. Petitioner's answer to Question 19 was clearly wrong because a notice to owner from a subcontractor must be served before final payment to the contractor. The question is not misleading or unfair. Petitioner is entitled to no credit for his incorrect response to question 19.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. Petitioner has the burden of proving by a preponderance of the evidence that he is entitled to the relief he seeks. Rule 28-6.08(3), Florida

    Administrative Code. See also, Florida Department of Transportation v. J.W.C., Co., 396 So.2d 778 (Fla. 1st DCA 1981), State ex rel. Glasser v. J.M. Pepper, et al., 155 So.2d 383 (Fla. 1st DCA 1963), and Topp v. Board of Electrical Examiners, 101 So.2d 583 (Fla. 1st DCA 1958). Petitioner has failed to meet that burden.

    
    

11. Section 455.229(2), Florida Statutes, provides, in pertinent part, as follows:

    
    

    (2) ... If an administrative hearing is held, the department shall provide challenged exami- nation questions and answers to the hearing officer. The examination questions and answers provided at the hearing are confidential and exempt from s. 119.07(1), unless invalidated

    by the hearing officer. ...

    
    

12. Even if Petitioner had been able to establish that one of the questions should be invalidated, he would not have been entitled to receive credit for his incorrect answers to that question. An invalid question does not further the purpose of the examination, which is to test minimum competency of persons who desire to practice a regulated profession. See, Alvarez v. Department of Professional Regulation, 458 So.2d 808 (Fla. 1st DCA 1984), and Department of Professional Regulation v. Hillegas, 13 FALR 184 (DOAH 90-1611, 1990). See also Rule 21-11.011(3), Florida Administrative Code.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which denies Petitioner's challenges to questions 10 and 19 of the October 1990 general contractor's examination.

RECOMMENDED this 10th day of February, 1992, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 10th day of February, 1992.

ENDNOTES

1/ Compare, Section 713.06, Florida Statutes, which provides, in pertinent part that the notice to owner must be served

"...before commencing, or not later than 45 days from commencing, to furnish his services or materials, but, in any event, before the date of the owner's disbursement of the final payment after the contractor has furnished the affidavit. "

APPENDIX TO THE RECOMMENDED ORDER, CASE NO. 91-5179

The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner.

1. The proposed findings of fact in paragraphs 1 and 2 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraph 3, 18, 22, and 23, which quote verbatim from examination questions, are rejected as being unnecessary to the conclusions reached and to protect the confidentiality of the questions and the answers.

3. The proposed findings of fact in paragraphs 4, 5, 6, 7, and 19 are rejected as being subordinate to the findings made.

4. The proposed findings of fact in paragraph 8 are adopted in part by the Recommended Order, and are rejected in part as being contrary to the findings made and to the conclusions reached.

5. The proposed findings of fact in paragraph 11 are rejected as being unsubstantiated by the evidence. The "Exhibit B" attached to Petitioner's post- hearing submittal is not in evidence and cannot be considered.

6. The proposed findings of fact in paragraph 12 are rejected as being contrary to the findings made and to the conclusions reached.

7. The proposed findings of fact in paragraph 13 are rejected as being unnecessary to the conclusions reached. The Petitioner's argument that the question is ambiguous and misleading is rejected as being contrary to the greater weight of the evidence as to the conclusions reached. The statistics cited by Petitioner, although correct, merely establish that the question was a difficult one.

8. The proposed findings of fact in paragraph 14 are rejected as being contrary to the conclusions reached.

9. The proposed findings of fact in paragraph 15 are rejected as being argument and unnecessary to the conclusions reached since the question involved is not a true-false question.

10. The proposed findings of fact in paragraphs 16 and 17 are rejected as being contrary to the greater weight of the evidence and to the conclusions reached.

11. The proposed findings of fact in paragraph 20 and 21 are rejected as being unnecessary to the conclusions reached.

The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent.

1. The proposed findings of fact in paragraphs 1, 2, 4 and 13 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraphs 3, 9, 10, 11, and 12 are rejected as being unnecessary to the conclusions reached due to Petitioner's withdrawal of his challenge to Question 20.

3. The proposed findings of fact in paragraphs 5, 6, 7, 8, 14, 15, and 16 are rejected as being subordinate to the findings made.

COPIES FURNISHED:

Tim Vaccaro, Esquire Staff Attorney

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Sheldon Friefeld, Esquire The Ives Building

20801 Biscayne Boulevard

Suite 501

Miami, Florida 33180

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: 91-005179

Orders for Case No: 91-005179