STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES GEORGE, )

)

Petitioner, )

)

vs. ) CASE NO. 92-2383

)

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 16, 1992, in Miami, Florida.

APPEARANCES

For Petitioner: James George, pro se

Suite 201

17325 Northwest 27th Avenue Miami, Florida 33056

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 certain questions on the October 1991 Certified General Contractor Examination.

PRELIMINARY STATEMENT

Respondent notified Petitioner that he had failed to achieve a passing score on the October 1991 Certified General Contractor Examination, and Petitioner timely requested a formal hearing regarding that determination. This cause was subsequently transferred to the Division of Administrative Hearings for the conduct of the formal proceeding.

The Petitioner testified on his own behalf, and Respondent presented the testimony of David M. Olsen. Additionally, Petitioner's Exhibit numbered 1 and Respondent's Exhibits numbered 1-3 were admitted in evidence.

Both parties submitted post-hearing proposed findings of fact. A specific ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner failed to achieve the minimum passing score on Part I of the Certified General Contractor Examination administered in October 1991.

   
   

2. He filed a challenge to nine of the questions contained in Part I. Petitioner challenged questions numbered 2, 3, 4, 6, 9, 10, 14, 25, and 34.

   
   

3. During the final hearing, Petitioner agreed that the Department's chosen answers to questions numbered 2, 3, 6, 10, 25, and 34 were the correct answers to those questions.

   
   

4. During the final hearing, the Department agreed that Petitioner's chosen answer to question numbered 4 was correct and that Petitioner should be given additional credit for his correct answer. The Department thereupon re- computed Petitioner's score and determined that, with the additional credit for that answer, Petitioner's score on the examination is now 68, still less than the required minimum passing score.

   
   

5. Petitioner chose answer "D" to question numbered 9. The Department's chosen answer of "A" is the only correct answer to that question. The question itself is neither vague nor ambiguous.

   
   

6. Petitioner chose answer "C" to question numbered 14. The Department's chosen answer of "B" is the only correct answer to that question. The question itself is neither vague nor ambiguous.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

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

   
   

9. 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 or that the questions themselves were vague or ambiguous. Petitioner has failed to meet his burden of proof.

   
   

10. Petitioner challenged nine questions from Part I of the October 1991 Certified General Contractor Examination. During the final hearing, the Department agreed that Petitioner's answer to one of those questions was correct and gave him additional credit for his answer to that question. The additional credit given raised his score to 68, less than the required minimum passing score. Also during the final hearing, Petitioner agreed that the Department's chosen answers to six of the questions challenged by Petitioner were the correct answers and that, therefore, Petitioner's chosen answers were not correct. As to the remaining two questions challenged by Petitioner, Petitioner failed to

answer those questions correctly, and those questions were neither vague nor ambiguous. Accordingly, Petitioner has failed to show that he is entitled to additional credit for his answers on the examination.

RECOMMENDATION

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

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

Contractor Examination.

DONE and ENTERED this 7th 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 7th day of August, 1992.

APPENDIX TO RECOMMENDED ORDER

1. Petitioner's six unnumbered paragraphs in his post-hearing submittal have been rejected as not constituting findings of fact, but rather as constituting argument.

   
   

2. Respondent's proposed findings of fact numbered 1 and 4-7 have been adopted in substance in this Recommended Order.

   
   

3. Respondent's proposed findings of fact numbered 2 and 3 have been rejected as not being supported by any competent evidence in this cause.

Copies furnished:

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

1940 North Monroe Street Tallahassee, FL 32399-0792

Mr. James George Suite 201

17325 Northwest 27th Avenue Miami, Florida 33056

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: 92-002383

Orders for Case No: 92-002383