STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARLOS ROSADO, )

)

Petitioner, )

)

vs. ) CASE NO. 92-0212

) DEPARTMENT OF PROFESSIONAL ) REGULATION, ELECTRICAL ) CONTRACTORS' 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 August 3, 1992, in Miami, Florida.

APPEARANCES

For Petitioner: Daniel Guerrieri, Esquire

950 South Miami Avenue Miami, Florida 33130

For Respondent: Vytas J. Urba, Esquire

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUE

Whether Petitioner is entitled to a passing grade on the Alarm System Contractor 1 licensure examination administered July 12, 1991.

PRELIMINARY STATEMENT

Petitioner sat for the Alarm System Contractor 1 licensure examination (which includes both fire and burglar alarm systems) on July 12, 1991. After learning that he had not passed the examination, Petitioner challenged several questions on the examination. At the beginning of the formal hearing that was held in this matter, Petitioner abandoned all challenges except his challenges to Questions 64 and 75.

At the formal hearing, Petitioner testified on his own behalf and called as his only other witness, J. E. Menendez, a licensed master electrical contractor. Respondent presented the testimony of J. M. Trimmer, an experienced electrical contractor and an employee of the company that prepares the Alarm System Contractor 1 licensure examinations for Respondent. The parties presented the

challenged examination questions as a joint exhibit, which was accepted into evidence as a confidential exhibit. Petitioner presented no additional exhibits. Respondent presented four additional exhibits, each of which was accepted into evidence.

A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 22I-6.031, Florida Administrative Code. 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 Alarm System Contractor 1 licensure examination on July 12, 1991. The examination includes questions pertaining to both fire and burglar alarm systems and is considered to be the most difficult of the alarm system examinations.

   
   

2. Petitioner received a score of 74 on the licensure examination, but the minimum passing score was 75. There were 100 questions on the examination, and each question was worth one point. Petitioner timely challenged several questions on the examination. At the formal hearing scheduled for this proceeding, Petitioner abandoned all challenges except his challenges to Question 64 and Question 75. Each challenged question is a multiple choice question with four possible answers. The candidates are instructed to select the best answer to the question from the four possible answers.

   
   

3. Question 64 requires the candidate to identify the entity that is responsible for responding to "trouble on" a police-connected burglar alarm system. Because the phrase "trouble on" an alarm system is used in the industry to mean that the system is not functioning properly, the question requires the candidate to identify the entity responsible for repairing malfunctions on the alarm system. The parties agree that the installing company is the entity responsible for repairing malfunctions on a police-connected burglar alarm system.

   
   

4. While agreeing that the installing company is responsible for repairing malfunctions on the system, Petitioner contends that the best answer to the question is the "police department". A signal generated by a police-connected burglar alarm system is received by a central station. Most systems employ two signals, one to signify an intrusion and the other to signify a malfunction. When a signal is received by the central station, an effort is made to contact the property owner prior to calling the police department. If the property owner cannot be located by telephone, the fact that a signal was received is usually relayed to the police department. Petitioner argues that the police department is the best answer because it is the first of the entities given as possible answers that is contacted after a signal, whether the signal is caused by a malfunction or by an intrusion, is received by the central station. Petitioner's contention that "police department" is the best response to the question is rejected. While a malfunction may be discovered as a result of one or more false signals that are relayed to the police department by the central station, the police department bears no responsibility for correcting malfunctions that occur on the system.

5. The greater weight of the evidence establishes that the best answer to the question is the "installing company". Petitioner failed to give the best answer to Question 64. Consequently, it is concluded that Petitioner was properly awarded no credit for his answer to Question 64.

   
   

6. Petitioner's assertion that Question 64 is vague or ambiguous because the stem of the question does not state the type of "trouble" that was on the system is rejected. The phrase "trouble on" an alarm system has a definite meaning in the alarm system industry. The use of this phrase within the context of an examination question is not impermissibly vague or ambiguous.

   
   

7. Question 75 asks the candidate which of the following three devices performs essentially the same function in an alarm system: "exit/entry delay relays", "delay loops", and "shunt locks". The four possible answers consist of possible combinations of the three types of devices.

   
   

8. Respondent asserts that the best answer to the question is that all three devices perform essentially the same function, to-wit, allowing entry and exit from premises without setting off the alarm.

   
   

9. Petitioner asserts that the best answer is the one which offers the combination of "exit/entry delay relays" and "delay loops" since those two devices have a delay feature, which automatically rearms the system after a delay. Shunt locks typically do not have a delay feature (a delay feature can be incorporated into a shunt lock device if the owner desires) and are not widely used in new installations because of advances in technology. A shunt lock is usually rearmed manually, but so are some delay relay devices. All three devices can be disarmed to allow entry and exit and thereafter rearmed. While the rearming is automatic with some of the devices, the greater weight of the evidence established that all three devices performed "essentially the same function" and that, consequently, the answer to the question selected by Respondent is the best answer.

   
   

10. Petitioner failed to give the best answer to Question 75. Consequently, it is concluded that Petitioner was properly awarded no credit for his answer to Question 75.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

12. Section 489.516, Florida Statutes, provides that a person desiring to be licensed as an alarm system contractor on a statewide basis shall pass the appropriate examination administered by Respondent. Respondent has the responsibility for administering that examination. See, Section 455.217, Florida Statutes.

    
    

13. 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). Petitioner has not established that Respondent graded his examination arbitrarily or that the decision to deny him credit for his answers to either of the two questions lacked reason. See, Harac

    v. Department of Professional Regulation, 484 So.2d 1333, 1338 (Fla. 3d DCA 1986). Compare, Topp v. Board of Electrical Examiners for Jacksonville Beach, Florida, 101 So.2d 583 (Fla. 1st DCA 1958).

14. The greater weight of the evidence establishes that Petitioner was awarded no credit for his answer to Question 64 because he failed to give the best response to that question. Consequently, it is concluded that his challenge to Question 64 should be rejected.

    
    

15. Likewise, the greater weight of the evidence establishes that Petitioner was awarded no credit for his answer to Question 75 because he failed to give the best response to that question. Consequently, it is concluded that his challenge to Question 75 should be rejected.

    
    

16. Joint Exhibit 1, the examination questions, should be considered confidential exhibits and sealed. See, Section 455.229(2), Florida Statutes.

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 64 and 75 of the Alarm System Contractor 1 licensure

examination administered July 12, 1991.

DONE AND ORDERED this 3rd day of November, 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 3rd day of November, 1992.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-0212

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, 2, and 4 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraph 3 are adopted in part by the Recommended Order. The proposed findings of fact in paragraph 3 are rejected in part as being unnecessary to the conclusions reached for the reasons discussed in the findings of fact portion of the Recommended Order.

3. The proposed findings of fact in paragraphs 5 and 6 are adopted in part and are rejected since the greater weight of the evidence, including the expert testimony of Respondent's witness, established that the primary function of all three

   devices is to disarm the system to permit entry and exit from the premises.

4. The proposed findings of fact in paragraph 7 are rejected as being subordinate to the findings made.

The proposed findings of fact submitted on behalf of the Respondent are adopted in material part by the Recommended Order.

COPIES FURNISHED:

Daniel O'Brien, Executive Director Department of Professional

Regulation/Electrical Contractors' Licensing Board

1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792

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

Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792

Vytas J. Urba, Assistant General Counsel Department of Professional Regulation 1940 North Monroe Street

Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792

Daniel Guerrieri, Esquire 950 South Miami Avenue Miami, Florida 33130

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: 92-000212

Orders for Case No: 92-000212