STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID W. KRADIN, )

)

Petitioner, )

)

vs. ) CASE NO. 93-3936

) DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, ) CONSTRUCTION INDUSTRY )

LICENSING BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was held in this case on October 1, 1993, at Fort Lauderdale, Florida, before Susan B. Kirkland, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: David W. Kradin, Pro Se

1525-J Spring Harbor Drive Delray Beach, Florida 33445

For Respondent: Vytas J. Urba

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0750

STATEMENT OF THE ISSUES

Whether Petitioner should be granted additional credit for one or more examination questions answered by him during the February, 1993 General Contractor Examination.

PRELIMINARY STATEMENT

Respondent notified Petitioner that he failed to achieve a passing score on the project management portion of the February 1993 General Contractor Examination. By letter dated July 1, 1993, Petitioner timely requested an administrative hearing regarding that determination. On July 16, 1993, the case was transferred to the Division of Administrative Hearings for the conduct of a formal proceeding.

Petitioner testified on his own behalf and Respondent presented the testimony of Karl Lieblong. Joint exhibits 1 and 2 were entered into evidence. Petitioner's exhibits 1-18 were entered into evidence.

The transcript was filed on October 25, 1993. Respondent filed a proposed recommended order on November 8, 1993. Petitioner did not file proposed findings of fact or conclusions of law. Respondent's proposed findings of fact are ruled on in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner, David W. Kradin (Kradin), took the February, 1993 General Contractor Examination and received a score of 65 on the project management portion. A minimum score of 70 is required to pass that portion of the examination.

   
   

2. Kradin challenged questions numbered 6, 12, 19 and 30. Joint Exhibit 1 is a composite exhibit of the challenged questions. Joint Exhibit 2 is a drawing included in the examination relating to question number 6. Joint Exhibits 1 and 2 are deemed to be confidential pursuant to Section 455.229, Florida Statutes.

   
   

3. Question number 6 required the calculation of the square feet of concrete contact surface for formwork for an elevator pit depicted in Joint Exhibit 2. Kradin challenged the question on the basis that the drawing was unclear because the elevation line appeared to drop slightly in one place. The drawing was sufficiently clear to determine the correct answer. The height of the concrete contact surface could be determined by the height shown on the drawing and the height of the expansion joint. Kradin failed to answer the question correctly because of an error in his calculations.

   
   

4. Question number 12, an entry level question, dealt with comparing the estimated cost per cubic yard with the actual cost per cubic yard for excavation work based only on the information in the job cost ledger provided in the question. The job cost ledger contained costs and the net profit made from the sale of spoil. Kradin challenged the question as unclear and imprecise because the job cost ledger contained information on the net profit from the sale of spoil.

   
   

5. The parties stipulated that it is improper, incorrect, an error, and a mistake to have job profit in any job cost ledger.

   
   

6. Kradin included the net profit when he calculated the actual costs for the project. As a result his answer was incorrect because the profit should not have been included in the calculation of the actual cost for the excavation work.

   
   

7. Question number 19 concerned the calculation of the amount of money that should be deducted from a subcontractor's application payment for the cost of worker's compensation insurance premiums. Kradin challenged the question, stating that the question was improper because he read the question to mean that the subcontractor and contractor did not have a written agreement before the work was performed and that the contractor would pay the premium and deduct the premium amount from the subcontractor's pay request. He viewed the scenario set up in the question to mean that the subcontractor was violating the law because he did not have worker's compensation coverage and the general contractor was violating the law because he hired a subcontractor without worker's compensation coverage. Additionally, he read the question to mean that the general contractor was subjecting himself to civil liability because of the lack of worker's compensation coverage.

8. Question number 19 is not a difficult question. The contractor and subcontractor have agreed that the general contractor will provide worker's compensation coverage for the work done and will deduct the amount of the coverage from the subcontractor's application for pay. The question gives the amount of the pay request and the cost of the worker's compensation insurance per $100 worth of billing. The candidate is supposed to calculate the amount that will be deducted. The question does not deal with the legalities of the arrangement between the subcontractor and general contractor nor would a reasonable person read the question as such. Kradin's answer was not a correct calculation of the amount to be deducted.

   
   

9. The examination is an open book examination and the candidates are allowed to bring specified reference materials with them, including the Contractor's Manual. Question number 30 deals with material found in the Contractor's Manual, relating to project schedules. Here, the question asks the candidate to pick out the entity not listed in the manual. Kradin picked out an entity which was listed in the manual.

   
   

   CONCLUSIONS OF LAW

   
   

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

    
    

11. Section 489.113(1), Florida Statutes, provides in pertinent part:

    
    

    Any person who desires to engage in contracting on a statewide basis shall, as a prerequisite thereto, establish his competency and qualifications to be certified pursuant to this part. To establish his competency, a person shall pass the appropriate examination administered by the department. . . .

    
    

12. Petitioner has the burden of proof to establish by a preponderance of the evidence that he correctly answered the questions but was not given credit, that his examination was not graded in accordance with the applicable statutes or rules, or that the questions themselves were vague or ambiguous. See generally, Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977).

    
    

13. Petitioner challenged question number 6 on the basis that the drawing on which the question was based was not clear. The drawing clearly showed the height to the top of the elevation line and clearly showed the size and location of the expansion joint so that the overall height could be determined in calculating the square feet of concrete contact surface. Petitioner failed to establish by a preponderance of the evidence that the drawing for question number 6 was unclear or imprecise.

    
    

14. Petitioner challenged question number 12 as being unclear and imprecise. The question was neither unclear nor imprecise. The job cost ledger clearly indicated the amount shown for spoil disposal was net profit. Given the fact that job profit is not supposed to be in a job cost ledger, a reasonable person would not include the net profit amount in determining the actual cost of the work. Petitioner has failed to establish by a preponderance of the evidence that question number 12 was unclear or imprecise.

15. Petitioner challenged question number 19 on the basis that the question was improper because the question led him to believe the arrangement between the contractor and the concrete finishing contractor for the payment of the worker's compensation premiums for the work done was illegal; therefore an examination question should not be based on an illegal scenario. The question is not improper. The general contractor may purchase additional workers' compensation insurance to cover the subcontractor's employees (Petitioner's Exhibit 12). Based on a reasonable reading of the question, the general contractor and subcontractor had agreed that the general would provide the necessary worker's compensation coverage and instead of the subcontractor paying the general contractor upfront, the general contractor would deduct the premiums from the amount owed to the subcontractor. The candidate was to merely calculate the amount to be deducted, nothing more. Petitioner read far too much into the question. Petitioner failed to establish by a preponderance of the evidence that question number 19 was vague, ambiguous, or otherwise improper.

    
    

16. Petitioner challenged question number 30 on the basis that even though his answer was an entity that was listed, the manual had used the encompassing terms "all involved in the project" in discussing project schedules; therefore his answer should have been correct. The question called for an answer based on the Contractor's Manual; thus, all the candidate had to do was compare the list of entities in the answer with the list of entities in the Contractor's Manual and pick the entity not listed in the Contractor's Manual.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the challenge by Petitioner requesting that he be awarded

a passing grade for the Project Management portion of the February, 1993, General Contractor Examination be DENIED.

DONE AND ENTERED this 23rd day of November, 1993, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

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 23rd day of November, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3936

To comply with the requirements of Section 120.59(2), Florida Statutes, the following rulings are made on the Respondent's proposed findings of fact:

Respondent's Proposed Findings of Fact

1. Paragraphs 1 and 2 accepted.

2. Paragraphs 3, 4, 5 and 6 accepted in substance.

COPIES FURNISHED:

David W. Kradin

1525 J Spring Harbor Drive Delray Beach, Florida 33445

Vytas J. Urba, Esquire Department of Business

and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Jack McRay

Acting General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399

Richard Hickok Executive Director

Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300

Jacksonville, Florida 32211-7467

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: 93-003936

Orders for Case No: 93-003936