STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSE F. MONTANO, )

)

Petitioner, )

)

vs. ) CASE NO. 92-2305

)

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on June 17, 1992, in Miami, Florida.

APPEARANCES

For Petitioner: Jose F. Montano, pro se

5888 Southwest 31st Street Miami, Florida 33155

For Respondent: Vytas J. Urba, Esquire

Department of Professional Regulation

Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

STATEMENT OF THE ISSUE

The issue presented is whether Petitioner should receive additional credit for his answers to three questions on the October 1991 Certified Building Contractor Examination.

PRELIMINARY STATEMENT

Respondent notified Petitioner that he had failed to achieve a passing grade on the October 1991 Certified Building Contractor Examination, and Petitioner timely requested a formal hearing concerning that determination.

This cause was thereafter transferred to the Division of Administrative Hearings for the conduct of that formal proceeding.

The Petitioner testified on his own behalf, and Respondent presented the testimony of Karl Lieblong. Additionally, Joint Exhibits numbered 1-5 were admitted in evidence.

Only the Respondent requested leave to file post-hearing proposed findings of fact in the form of a proposed recommended order. Respondent's proposed findings of fact numbered 1-7 have been adopted in this Recommended Order.

FINDINGS OF FACT

1. Petitioner received a score of 68 on Part I of the Certified Building Contractor Examination administered in October 1991. That score is less than the minimum passing score required.

   
   

2. Part I of that examination consisted of questions relating to business and financial management. Petitioner has challenged three of the questions contained in that portion of the examination.

   
   

3. Petitioner chose answer "A" as the correct answer to question numbered

36. At the final hearing, Petitioner agreed that his chosen answer was not correct and that answer "B," the answer chosen by the Department, was the only correct answer.

4. Petitioner chose answer "B" as the correct answer to question numbered

35. At the final hearing, Petitioner agreed that his chosen answer was not correct and that answer "D," the answer chosen by the Department, was the only correct answer.

5. Petitioner chose answer "A" as the correct answer to question numbered

1. At the final hearing, Petitioner agreed that his chosen answer was not correct and that answer "C," the answer chosen by the Department, was the only correct answer.

   
   

   CONCLUSIONS OF LAW

   
   

   1. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.

      
      

   2. Section 489.111, Florida Statutes, requires the successful completion of an examination prior to certification as a certified building contractor. The separate subject matter areas required to be included in the certification examination are established by Rule 21E-16.001, Florida Administrative Code.

      
      

   3. In a challenge to questions on a certification examination, Petitioner has the burden of proving by a preponderance of the evidence that he correctly answered questions but was not given credit for his correct answers. Petitioner challenged three questions in Part I of the October 1991 Certified Building Contractor Examination. During the final hearing, Petitioner admitted that the answers chosen by him were wrong and that the answers to those questions chosen by the Department were the correct answers. Accordingly, Petitioner has failed to meet his burden of proof.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered determining that Petitioner

failed to achieve a passing score on Part I of the October 1991 Certified

Building Contractor Examination.

DONE and ENTERED this 5th day of August, 1992, at Tallahassee, Florida.

LINDA M. RIGOT

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 5th day of August, 1992.

Copies furnished:

Vytas J. Urba, Assistant General Counsel Department of Professional Regulation Suite 60

1940 North Monroe Street Tallahassee, FL 32399-0792

Mr. Jose F. Montano

5888 Southwest 31st Street Miami, Florida 33155

Daniel O'Brien Executive Director

Construction Industry Licensing Board Post Office Box 2

Jacksonville, Florida 32202

Jack McRay, General Counsel Department of Professional

Regulation

1940 North Monroe Street Tallahassee, FL 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 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: 92-002305

Orders for Case No: 92-002305