STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCOTT ERIC BAKER, )

)

Petitioner, )

)

vs. ) CASE NO. 91-7580

) 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 F. Quattlebaum, held a formal hearing in the above-styled case on March 11, 1992, in Fort Myers, Florida.

APPEARANCES

For Petitioner: Scott Eric Baker, pro se

13438 Caribbean Boulevard Fort Myers, Florida 33095

For Respondent: Vytas J. Urba, Esq.

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUE

The issue presented for consideration is whether the Petitioner's answer to question #6 in the June 1991 examination for licensure as a Certified Air Conditioning Class A Contractor was inappropriately scored.

PRELIMINARY STATEMENT

In June, 1991, Scott Eric Baker took and failed the examination for licensure as a Certified Air Conditioning Class A Contractor. Thereafter, Mr. Baker met informally with officials from the Department of Professional Regulation and challenged certain portions of the exam. Based upon the informal meeting, Mr. Baker was awarded additional points, but his total score remained below the passing level. By letter of November 6, 1991, Mr. Baker requested a formal hearing to review his answers to exam questions and to challenge the results of the exam. The Respondent forwarded the request to the Division of Administrative Hearings.

At hearing, Mr. Baker withdrew challenges to all but one of the questions identified in the request for formal hearing and focused his presentation on Question 6 of Part One of the exam. Mr. Baker testified on his own behalf, offered the testimony of William Dausch, and had one exhibit admitted into

evidence. The Department presented the testimony of Dave Olsen and had one exhibit admitted into evidence.

A transcript was filed on April 3, 1992. The Department filed a proposed recommended order. The proposed findings of fact are ruled upon in the Appendix which is attached and hereby made a part of this Recommended Order.

FINDINGS OF FACT

1. Petitioner Scott Eric Baker ("Petitioner"), took the Certified Air Conditioning Class A Contractor examination in June 1991. The examination consists of two parts, Part One on business and financial management, and Part Two on actual air conditioning system mechanics. The Petitioner informally challenged the scoring of certain questions and received additional points but his total score of 68% was below the minimum passing score of 69.01%.

   
   

2. Part One, Question 6 of the June 1991 directs the applicant to estimate the cost of refrigeration piping and related hardware shown in a related schematic. The schematic illustrates proposed refrigerant piping between a 15 ton air-cooled condensing unit and an air handler unit. Pipe joint connections are identified by standard symbols.

   
   

3. The question states as follows:

   
   

   Refer to the Refrigeration System shown in Figure 1. Estimate the cost of the Refrigeration Piping. Add 6% Florida State Sales Tax to the total cost.

   
   

4. The multiple choice list of possible answers to the question are:

   
   

   1. Less than $500.00.

      (B) Between $500.00 and $600.00 (C) Between $600.01 and $700.00

      (D) More than $700.00

      
      

5. The pipe joint segments identified by the symbols on the schematic are 90-degree elbow joints. Elbow joints can connect pipe segments which have different elevations. Elbow joints can also be connected to construct a "swing joint" which provides for pipe alignment. Swing joints do not change the elevation between the pipe segments connected at the joint.

   
   

6. According to the schematic, the first pipe segments, (two feet two inch pipes), run from the air-cooled condensing unit to a joint. The schematic does not identify the elevation of the air-cooled condensing unit or of the first pipe segments.

   
   

7. The second pipe segments lie at an elevation of 104 feet 4 inches and connect via a pipe joint to the third pipe segments, which lie at an elevation of 104 feet 0 inches. The third segments connect via a pipe joint to the fourth pipe segments which are at an elevation of 103 feet 8 inches. The fourth segments connect to the pipe segments leading from the air handling unit (AHU 1).

   
   

8. The correct answer to Question 6 is (B). The total cost for piping and hardware shown on the schematic is approximately $557. There are 83.3333 lineal feet of 1 and 3/8 inch diameter pipe at $3.96 per lineal foot, totaling about

   $330.00. There are 75.7527 lineal feet of 7/8 inch diameter pipe at $2.35 per

   lineal foot, totaling about $178.02. There are fourteen 90-degree elbows, (seven 1 and 3/8 inch elbows at 1.71 each and seven 7/8 inch elbows at .79 each) totaling 17.50. The total of materials is 525.52. Inclusion of the 6% tax results in an estimated cost of $557.05.

   
   

9. Because there was no elevation shown for the first pipe segment between the condenser unit and the pipe joint, the Petitioner assumed that the pipe joint symbol indicated an elevation change and that the condenser unit could be located substantially above or below the identified 104 feet 0 inches elevation of the second segment. Accordingly, his answer to Question 6 was "(D) More than

   $700.00."

   
   

10. The Petitioner's answer is based, not on the information provided in the schematic, but on unreasonable assumptions as to the condenser unit location, and is incorrect.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

12. Chapter 489, Florida Statutes, charges the Department of Professional Regulation, Construction Industry Licensing Board with responsibility for licensure of air conditioning contractors. Such persons must pass an examination prior to licensure. Section 489.111, Florida Statutes.

    
    

13. In an administrative challenge to the results of an examination grading process, an applicant must establish by a preponderance of the evidence that the scoring of his exam was erroneous and that the exam responses should receive additional consideration. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (1st DCA 1977). The burden has not been met. The evidence did not establish that the grading of the Petitioner's response to Part One, Question 6 was incorrect or otherwise inappropriate.

    
    

14. The Petitioner's answer to Question 6 is founded upon an assumption that the first pipe joint symbol signifies an elevation change. The schematic does not identify the elevation of the condenser unit. The Petitioner assumed that the elevation change could be substantial and calculated his estimated cost to be the maximum answer available.

    
    

15. The schematic at issue identifies elevation changes in increments of four inches. It is not reasonable to assume that an elevation change greater than four inches would be omitted from the schematic or to assume that all pipe joint symbols indicate an elevation change. The more reasonable assumption is that the referenced pipe joint symbol identifies a swing joint and that any elevation change which may occur is a change of less than four inches. Even if such minor change is assumed and calculated as part of the response to the question, the answer to the question would remain (B).

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Department of Professional Regulation, Construction Industry Licensing Board, enter a Final Order dismissing Scott Eric Baker's

challenge to the grading of his responses to the June 1991 examination for licensure as a Certified Air Conditioning Class A Contractor.

DONE and RECOMMENDED this 29th day of April, 1992, in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1992.

APPENDIX TO RECOMMENDED ORDER

The following constitute rulings on proposed findings of facts submitted by the parties.

Petitioner

The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:

4. Rejected, unnecessary.

10-14. Rejected, recitation of testimony.

Respondent

The Respondent did not file a proposed recommended order.

Copies furnished to:

Daniel O'Brien, Executive Director Construction Industry Licensing Board Post Office Box 2

Jacksonville, FL 32202

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

Tallahassee, FL 32399-0792

Scott Eric Baker

13438 Caribbean Boulevard Fort Myers, Florida 33095

Vytas J. Urba, Esq. Assistant General Counsel

Department of Professional Regulation 1940 North Monroe Street, Suite 60

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 ten 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: 91-007580

Orders for Case No: 91-007580