STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GARY L. KESSLER, )

)

Petitioner, )

)

vs. ) CASE NO. 92-1612

) DEPARTMENT OF PROFESSIONAL ) REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on May 14, 1992, in West Palm Beach, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles Wender, Esquire

190 West Palmetto Park Road Boca Raton, Florida 33432

For Respondent: Vytas J. Urba, Esquire

Assistant General Counsel Department of Professional

Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUES

1. Whether the Department of Professional Regulation committed an "unlawful employment practice" in violation of Section 760.10(5), Florida Statutes, by failing to take reasonable measures to accommodate Petitioner's handicap in testing Petitioner to determine his qualifications to be certified as an alarm system contractor?

   
   

2. If so, what relief should Petitioner be provided?

PRELIMINARY STATEMENT

After the investigation of Petitioner's complaint had been completed and the Executive Director of the Florida Commission on Human Relations (Commission) had issued a Notice of Determination of No Cause, Petitioner filed a Petition for Relief with the Commission in which he alleged that the State of Florida, Department of Professional Regulation, had committed an unlawful employment practice based upon the following:

For several years, the Petitioner, Gary Kessler, worked in Florida as a

County-licensed installer of fire and burglar alarms. The Petitioner worked as a sole proprietor and in conjunction with other licensed installers. At no time was the Petitioner's competence or ability to perform questioned.

Petitioner Kessler suffers from "dyslexia" which, according to Robert J. Zielinski, Ph.D., a clinical psychologist, is a mental handicap which prevents the Petitioner from learning complex mathematical or business-type skills. This handicap prevents him from

book-type learning, and from passing any type of written test. Although the Petitioner is skilled in his profession and can demonstrate such skills in non-written, verbal form, the Respondent has refused to accommodate him.

Petitioner further alleged in his Petition for Relief the following: The testing procedure employed by the

Respondent was discriminatory and denied the

Petitioner a valid license to work due to Petitioner's handicap.

The Respondent denied Petitioner a right to work based on his handicap -- entitling the Petitioner to damages, a license, costs, attorney's fees and/or an appropriate examination, taking into account the Petitioner's handicap, while testing his competency to perform the work under the license.

On March 9, 1992, the Commission transmitted Petitioner's Petition for Relief to the Division of Administrative Hearings for the assignment of a Hearing Officer. The Division received the Petition for Relief two days later.

At the outset of the final hearing held in this cause, the Department, through counsel, indicated that it did not dispute Petitioner's claim that he is dyslexic and that dyslexia constitutes a "handicap," within the meaning of Chapter 760, Florida Statutes.

A total of three witnesses testified at the final hearing: Petitioner; Dr. Robert Zielinski, the clinical psychologist referenced in the Petition for Relief; and Ila Jones, the Program Administrator for the Examination Administration Section of the Department's Bureau of Examination Services. In addition to the presentation of the testimony of these three witnesses, a total of nine exhibits were offered and received into evidence.

At the close of the evidentiary portion of the hearing on May 14, 1992, the Hearing Officer advised the parties on the record that their post-hearing submittals had to be filed no later than ten days following the Hearing Officer's receipt of the transcript of the hearing. The Hearing Officer received a copy of the hearing transcript on May 28, 1992. Subsequently, at the request of Petitioner and without objection from the Department, the Hearing

Officer extended the deadline for the submission of post-hearing submittals to June 25, 1992. The Department and Petitioner filed proposed recommended orders on June 8, 1992, and June 22, 1992, respectively. The proposed findings of fact set forth in these proposed recommended orders have been carefully considered and are specifically addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon the record evidence, the following Findings of Fact are made:

1. Petitioner suffers from dyslexia. Consequently, it is difficult for him to read and to understand and remember what he has read. He also has difficulty in comprehending and retaining auditorially presented materials without frequent repetition.

   
   

2. Academically, Petitioner did poorly in school. He did not graduate from high school.

   
   

3. Since he was a young boy, however, Petitioner has displayed a special talent for electrical work.

   
   

4. Before moving to Florida in 1970, where he has lived and worked since, Petitioner owned and operated an alarm system installation business in his native state of New York.

   
   

5. From 1970 to 1975, Petitioner worked for others installing alarm systems and similar devices.

   
   

6. In 1975, Petitioner opened his own alarm system installation business. He successfully operated the business for ten years demonstrating his skill and competency in the installation of alarm systems. During that time, he obtained a license from Dade County and a temporary certificate from the Department to engage in the alarm system installation business.

   
   

7. By 1985, Petitioner's temporary certificate from the Department had expired and he had not obtained a regular certificate. He was therefore forced to close his business.

   
   

8. Petitioner has been unsuccessful in his ongoing efforts to be certified to engage in the alarm system installation business on a statewide basis.

   
   

9. He has taken the alarm system contractor certification examination, which is a written test administered by the Department, on five separate occasions. Each time, he has failed to achieve a passing score, although his scores have improved from one test to the next. He received a score of 55 or 56 on the last test he took.

   
   

10. Although he and his attorney may have communicated with representatives of the Electrical Contractors' Licensing Board regarding the matter, at no time prior to taking the first four tests did Petitioner or anyone acting on his behalf notify the Department that he suffered from dyslexia and that he wanted the Department to give him a practical, instead of a written, examination and/or make other special accommodations for him in the testing process because of his disability.

    
    

11. Prior to the fifth and last examination, which was administered on January 29, 1991, the Department received a written Certification of Handicap

    from Dr. Robert Zielinski, a clinical psychologist who had examined Petitioner at Petitioner's request for approximately one hour on September 7, 1989. In the certification he had prepared, Zielinski indicated that Petitioner was unable "to read and comprehend what was read" and that therefore the Department should take the following measures in administering the examination to Petitioner:

    
    

    Recommended testing environment: regular environment for testing

    Recommended format of examination: Since he is not able to read and understand, he would have to be given the test verbally by an examiner.

    Recommended time allocation for testing: 2-4 additional hours for each testing day Recommended recording of responses: He would need to have someone else mark his answers down on the paper after being read the questions or verbal exam on a one to one basis

    
    

    Zielinski did not recommend in his certification that Petitioner be given a practical examination in lieu of a written examination because he did not believe that he had the option to make such a recommendation.

    
    

12. The Department routinely relies upon the recommendations of the psychologist, physician or learning disability specialist who certifies that an examination candidate has a handicap that warrants the provision of special assistance. It followed this practice in the instant case when it administered the alarm system contractor examination to Petitioner for the fifth time on January 29, 1991. It provided Petitioner with a "helper" to read the examination questions to him and to mark his answers on the answer sheet. It also gave him eight hours, instead of the usual five, in which to complete the examination.

    
    

13. Petitioner did not take full advantage of the special assistance with which he had been provided on this occasion. He declined the "helper's" offer to read the entire examination to him and to mark down his answers on the answer sheet, although he did request the helper's assistance with a word or two that he had trouble reading. Furthermore, he did not use all of the time he had been allotted to complete the examination.

    
    

14. Petitioner had greatest difficulty with those questions on the examination designed to test the candidate's knowledge of general business matters. His problem was not so much reading the questions, but understanding them. He asked the "helper" to explain and interpret these questions for him. The "helper" refused inasmuch as it was against Department policy (as it still is) to assist a candidate in determining the answers to examination questions.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Human Rights Act of 1977 (Act) is codified in Sections 760.01 through 760.10, Florida Statutes. Among other things, it makes certain acts "unlawful employment practices" and gives the Florida Commission on Human Relations the authority, if it finds that such an "unlawful employment practice" has occurred, to "issue an order prohibiting the practice and providing affirmative relief from the effects of the practice, including reasonable attorney's fees." Section 760.10, Fla. Stat.

16. The "unlawful employment practices" proscribed by the Act include those described in Section 760.10(5), Florida Statutes, which provides as follows:

    
    

    Whenever, in order to engage in a profession, occupation or trade, it is required that a person receive a license, certification, or other credential, become a member or an associate of any club, association, or other organization, or pass any examination, it is an unlawful employment practice for any person to discriminate against any other person seeking such license, certification, or other credential, seeking to become a member or associate of such club, association, or other organization, or seeking to take or pass such examination, because of such other person's race, color, religion, sex, national origin, age, handicap, or marital status.

    
    

17. "Person," as that term is used in Section 760.10(5), Florida Statutes, includes "the state; or any governmental entity or agency."

    
    

18. In the instant case, Petitioner has alleged that the Department of Professional Regulation committed an "unlawful employment practice," in violation of Section 760.10(5), Florida Statutes, by having failed in its administration of the alarm system contractor certification examination to make reasonable accommodations for Petitioner in light of his dyslexia.

    
    

19. The Department concedes that Petitioner is dyslexic and that dyslexia constitutes a "handicap," within the meaning of Section 760.10(5), Florida Statutes.

    
    

20. Furthermore, it does not quarrel with the notion that, if it is not to run afoul of the provisions of Section 760.10(5), Florida Statutes, it must make reasonable accommodations for handicapped examination candidates. Indeed, the Department has a rule - - Rule 21-11.008, Florida Administrative Code -- that addresses the subject. It provides as follows:

    
    

    1. The Department of Professional Regulation, Office of Examination Services, will provide special assistance to candidates with learning disabilities or physically handicapped conditions to the ultimate extent possible. It is understood that in some instances the Department's capabilities may be affected and limited by cost, administration restraints and availability

       of resources. The Department recognizes that little is known about how much time and type of examination setting people with different handicapping conditions will need. It is also recognized that time and setting will vary depending upon the nature and severity of the impairment. Each case will be dealt with on an individual basis within the limits prescribed herein. In the instances of

       National examinations, guidance will be sought from the National provider.

    2. Candidates requesting special assistance must be certified as handicapped by a psychologist, physician or learning disability specialist. Candidate's certification shall include:

       1. Name of the test used, the diagnosis, and length of time with condition;

       2. Recommended time per regular hour of examination including rest periods;

       3. Recommended testing environment; and

       4. Recommended format of the examination.

    3. The Department may modify the test instrument and test administration procedures. Such modifications may include:

       1. Flexible Time. Candidates will be provided with the examination time recommended by a psychologist, physician or learning disability specialist. Time allocation will be based upon candidate's certification and doctor's recommendations. The Department recognizes that reading braille and using a cassette recorder or a reader takes longer than reading regular print. Additional rest periods will be given to avoid mental fatigue when extended time periods are allowed.

       2. Flexible setting. Individual and small group setting examination administrations shall be available to test takers requesting such a service. Request shall be accompanied by documentation provided by a psychologist, physician or learning disability specialist justifying such a service. Consideration should be given to sites with handicapped areas and special lighting for visually impaired candidates.

       3. Flexible Recording of Responses. Test takers' responses can be recorded by a proctor, a tape recorder, a typewriter, a braille writer, or marked on the test booklet. Test takers will be allowed also to point to the correct response. The proctor may transcribe the candidate's responses onto a machine scannable answer sheet. In instances where

          the proctor is required to mark the responses on behalf of the candidate there will be a tape recording of the candidate's selected responses.

       4. Flexible Format. The test booklet may be produced in large print, high quality regular print, braille, or the test may be tape recorded or read aloud. For hearing impaired candidates, consideration should be given to written, spoken language or an interpreter that signs and interprets instructions or examination questions

          simultaneously.

    4. In no case shall time modifications authorized herein be interpreted or construed as an authorization to provide a candidate with assistance in determining the answer to any test item.

    5. Definition of Terms.

       1. A handicapped person means any person who:

          1. Has a physical or mental impairment which substantially limits one or more major life activities;

          2. Has a record of such an impairment; or

          3. Is regarded as having such an impairment.

       2. Physically handicapped constitutes a wide diverse group of individuals who have permanent or temporary physical or psychomotor disabilities. These candidates may be in wheelchairs, wear braces, or use crutches, or they may need special assistance to move about.

       3. Learning disabled constitutes a group of individuals with permanent or temporary mental disabilities such as brain damage, brain dysfunction, dyslexia, perceptual disorders, or language disorder.

       
       

21. As the Department points out, it acted in accordance with the provisions of Rule 21-11.008 in the instant case. After receiving the written Certification of Handicap required by subsection (2) of the rule, it made each and every special accommodation recommended by the clinical psychologist who had prepared the certification on Petitioner's behalf.

    
    

22. While these special accommodations were made only after Petitioner had failed the examination in question four times, at no time prior to administering the examination on any of these four previous occasions had the Department received any written Certification of Handicap or other notification that Petitioner had a handicap and required special assistance in taking the examination. The Department cannot be faulted for having failed to make accommodations for a handicap of which it was not made aware. 1/

    
    

23. Petitioner suggests that, to have reasonably accommodated his handicap, the Department should have dispensed with the written examination and given him a practical examination or similar test to determine whether he had the necessary knowledge, skill and ability to be certified as an alarm system contractor. The Department's failure to have done so, Petitioner argues, constitutes an "unlawful employment practice." The argument is not a persuasive one.

    
    

24. For one thing, Petitioner never requested the Department to administer such an alternative examination. 2/

    
    

25. Even if he had, the Department would have been obliged to refuse his request. Pursuant to Section 455.217, Florida Statutes, with certain exceptions not pertinent to the instant case, the Department may administer a practical examination only when the applicable board's rules so provide and "specify the criteria by which examiners are to be selected, the grading criteria to be used

    by the examiner, the relative weight to be assigned in grading each criterion, and the score necessary to achieve a passing grade." The rules of the Electrical Contractors' Licensing Board do not contain such provisions. In fact, they expressly prohibit practical examinations. See Rule 21GG-6.001(4), Fla. Admin. Code ("There shall not be a practical or clinical examination").

    Inasmuch as the Department is expressly forbidden by law 3/ to administer a practical examination to any candidate seeking certification as an alarm system contractor, it would not have acted unreasonably had it, in response to a request made by Petitioner, refused to give him such an examination.

    
    

26. Moreover, it would have been reasonable for the Department to have turned down such a request, even in the absence of a rule provision expressly prohibiting practical examinations. The examination that the Department administers to candidates seeking certification as alarm system contractors must cover certain areas, including "general business," that are specified in the rules of the Electrical Contractors' Licensing Board. See Rules 21GG-6.001(3) 4/ and 21GG-6.015, 5/ Fla. Admin. Code. A practical examination of the type envisioned by Petitioner would be a suitable device to test a candidate's competency in perhaps some, but certainly not all, of these areas.

    
    

27. In view of the foregoing, it is concluded that on none of the five occasions that it administered the alarm system contractor certification examination to Petitioner did the Department violate the provisions of Section 760.10(5), Florida Statutes, and commit an "unlawful employment practice." Accordingly, Petitioner's Petition for Relief should be denied.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that the Department of Professional Regulation did not commit an "unlawful employment practice" in violation of Section 760.10(5), Florida Statutes, as alleged by Petitioner, and denying his Petition for Relief.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 6th day of July, 1992.

STUART M. LERNER

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 6th day of July, 1992.

ENDNOTES

1/ Although representatives of the Electrical Contractors' Licensing Board may have been aware of Petitioner's handicap and his desire for special assistance, the Board and the Department are separate and distinct entities, as a reading of the various provisions of Chapters 455 and 489, Florida Statutes, readily reveals, and the knowledge of one cannot be imputed to the other.

2/ If such a request was made, it was made to representatives of the Electrical Contractors' Licensing Board, not to the Department or any of its representatives.

3/ "Agency rules and regulations, duly promulgated under the authority of law, have the effect of law." State v. Jenkins, 469 So.2d 733, 734 (Fla. 1985).

4/ Rule 21GG-6.001(3) provides as follows:

The relative grading weight to be assigned to each area of competency shall be approximately as follows:

1. Technical- 65%

   1. Electrical Calculations- 45% of Test

   2. Code-related questions- 20% of Test

2. General business- 25%

3. Safety- 10%

5/ Rule 21GG-6.015 provides in pertinent part as follows:

The certification examination for those persons desiring to be licensed as alarm system contractors pursuant to 489.505(2) shall consist of the same areas of competency and be graded in the same manner as the certification examination for electrical contractors, except that the technical portion of the examination shall relate only to alarm system contracting.

APPENDIX TO RECOMMENDED ORDER

The following are the Hearing Officer's specific rulings on the findings of fact proposed by the parties:

Petitioner's Proposed Findings of Fact

1-6. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

7-9. Rejected because they are contrary to the greater weight of the evidence. 10-11. Accepted and incorporated in substance.

1. This proposed finding has been rejected as being contrary to the greater weight of the evidence to the extent that it suggests that the special accommodations the Department made for Petitioner were not reasonably designed, in light of the information which the Department had available to it, to minimize, to the ultimate extent possible, the effect his handicap would have on the validity of his test results. It has been accepted and incorporated in substance, however, to the extent that it states that "Petitioner was provided

   with a reader" and additional time to take the exam (all of which he did not use), but nonetheless failed the test again.

2. Rejected because it is contrary to the greater weight of the evidence.

3. Rejected because it is more in the nature of a conclusion of law than a finding of fact.

The Department's Proposed Findings of Fact

1-7. Accepted and incorporated in substance.

COPIES FURNISHED:

Charles Wender, Esquire

190 West Palmetto Park Road Boca Raton, Florida 33432

Vytas J. Urba, Esquire Assistant General Counsel Department of Professional

Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Margaret Jones, Clerk Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1570

Dana Baird, Esquire General Counsel

Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1570

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 OF TIME 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: 92-001612

Orders for Case No: 92-001612