STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BEHZAD KHAZAREE, )

)

Petitioner, )

)

vs. ) CASE NO. 93-3938

) DEPARTMENT OF PROFESSIONAL ) REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written Notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Daniel Manry, held a formal hearing in the above-styled proceeding on October 7, 1993, in Orlando, Florida.

APPEARANCES

FOR PETITIONER: Behzad Khazaree, pro se

142 Tollgate Trail Longwood, Florida 32750

FOR RESPONDENT: Vytas J. Urba, Esquire

Assistant General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0750 STATEMENT OF THE ISSUES

The issue for determination in this proceeding is whether Petitioner should receive credit for any or all of three challenged questions on the certified general contractors licensure examination given on February 23-24, 1993.

PRELIMINARY STATEMENT

Petitioner received a failing grade on one part of a two part examination.

Petitioner failed the part relating to project management.

Petitioner timely requested a formal hearing. The matter was referred to the Division of Administrative Hearings on July 21, 1993, for assignment of a Hearing Officer to conduct a formal hearing. A formal hearing was scheduled for October 7, 1993, pursuant to a Notice of Hearing issued on August 18, 1993.

At the formal hearing, petitioner presented the testimony of one expert witness, and submitted no exhibits for admission in evidence. Respondent presented the testimony of one expert witness and submitted three exhibits for

admission in evidence. The parties submitted two joint exhibits for admission in evidence. The witnesses and exhibits are described in the transcript of the formal hearing filed with the undersigned on October 22, 1993. Exhibits that included relevant portions of the examination were sealed pursuant to Section 119.07(3)(c), 455.229(2), and 455.232(2).

Petitioner did not file proposed findings of fact and conclusions of law.

Respondent timely filed proposed findings of fact and conclusions of law on November 5, 1993. Respondent's proposed findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. The certified general contractors examination given on February 23-24, 1993, consisted of two parts. Petitioner received a score of 71 on the first part and a score of 67 on the second part. The minimum score required to pass each part is 70.

   
   

2. Petitioner challenged question 5 in the second part. The question related to the "angle of repose".

   
   

3. The term "angle of repose" has been used for a number of years in the field of construction. The angle of repose is used when calculating the stability of soils for purposes of excavation.

   
   

4. Petitioner chose answer "B" to question 5. The correct answer to question 5 is answer "D", i.e., 5 feet 6 inches. The testimony of Respondent's expert witness was credible and persuasive.

   
   

5. Petitioner also challenged question 9 relating to the extra square feet needed for fire resistant partition walls. The problem required calculating the linear feet first and then multiplying by the height of the walls after subtracting for slab thickness. The examination was open book. Petitioner was permitted to refer to the Standard Building Code.

   
   

6. The correct answer to question 9 was "B". Petitioner chose answer "D". The testimony of Respondent's expert witness was credible and persuasive.

   
   

7. Petitioner challenged question 10 which required a calculation of the time to lay interior masonry walls. The correct answer to question 10 was "A". Petitioner chose answer "C". The testimony of Respondent's expert witness was credible and persuasive.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter an parties in this proceeding, Section 120.57, Florida Statutes. The parties were duly noticed for the formal hearing.

   
   

9. Petitioner has the burden of proof in this proceeding. Petitioner must prove by a preponderance of the evidence that Respondent acted in an arbitrary or unreasonable manner. Harac v. Department of Professional Regulation, 484 So.2d 1333, 1338 (Fla. 3rd DCA 1986).

10. Petitioner failed to show that Respondent acted arbitrarily or that the denial of credit for any one of the challenged questions was devoid of logic and reason. Topp v. Board of Electrical Examiners for Jacksonville Beach, Florida, 101 So.2d 583 (Florida 1st DCA, 1958).

    
    

11. The questions and answers may not be disclosed without violation of Sections 455.229(2) and 455.232. Accordingly, the discussion of the challenged questions and answers is necessarily limited in this Recommended Order.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's

challenge to his score of 67 on the general contractors examination given on

February 23-24, 1993.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 2nd day of December, 1993.

DANIEL MANRY

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 2nd day of December, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3938

Respondent submitted proposed findings of fact. It is noted below which proposed findings of fact were accepted and the paragraph number(s) in the Recommended Order where they were accepted, if any. Those proposed findings of fact which were rejected and the reason for their rejection are also noted below. No notation is made for unnumbered paragraphs.

The Respondent's Proposed Findings of Fact

Respondent's paragraphs 2-3 are rejected as irrelevant and immaterial. Respondent's remaining proposed findings of fact are accepted in substance.

COPIES FURNISHED:

Daniel O'Brien, Executive Director Department of Business and

Professional Regulation Construction Industry Licensing Post Office Box 2 Jacksonville, Florida 32202

Jack McRay General Counsel

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Vytas J. Urba, Asst. General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0750

Behzad Khazaree

142 Tollgate Trail Longwood, Florida 32750

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: 93-003938

Orders for Case No: 93-003938