STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS A. CENTOLA, JR., )

)

Petitioner, )

)

vs. ) CASE NO. 93-6616

)

STATE OF FLORIDA, DEPARTMENT )

OF BUSINESS AND PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on February 3, 1994, a formal hearing was held in this case. The authority for conducting the hearing is set forth in Section 120.57(1), Florida Statutes. The hearing location was Jacksonville, Florida. Charles C. Adams was the Hearing Officer.

APPEARANCES

For Petitioner: Thomas A. Centola, Jr., Pro se

532 Ponte Vedra Boulevard

Ponte Vedra Beach, Florida 32082

For Respondent: Vytas J. Urba, Esquire

Department of Business

and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792

STATEMENT OF ISSUES

The issue is whether Petitioner is entitled to credit for the answer given in the General Contractor Examination, Contract Administration, Question No. 3, thus improving his grade and allowing him to pass the examination.

PRELIMINARY STATEMENT

Petitioner challenged his examination results in the General Contracting Examination given by the Florida Department of Professional Regulation, now the Department of Business and Professional Regulation. The examination was administered on June 29 and 30, 1993. Originally, Petitioner challenged the examination results for Questions Numbered 3, 10, 16 and 20 in the Contract Administration portion to the General Contracting Examination. Petitioner abandoned challenges to all questions except Question No. 3. Following submission of this case to the Division of Administrative Hearings for formal hearing, the hearing was conducted on the aforementioned date.

At hearing Petitioner testified and presented Richard Renstrom as a witness. Petitioner's Composite Exhibit No. 1 was admitted on the basis described in the transcript. Respondent presented the witness Carl Lieblong. Respondent's Exhibits No. 1 through 3 were admitted.

The parties submitted proposed recommended orders. The proposed recommended orders have been reviewed and the suggested fact finding set forth in the proposed recommended orders have been addressed in an appendix to the recommended order.

FINDINGS OF FACT

1. Petitioner, a candidate to be licensed as a general contractor in Florida, took the General Contracting Examination on June 29 and 30, 1993.

   
   

2. The examination instrument was prepared by the National Assessment Institute through an agreement with Respondent to prepare and deliver the examination to determine minimal competence of candidates as a perquisite to licensure in the field of general contracting in Florida. The examination that was given was constituted of two parts. Part I was Contract Administration. Part II was Project Management.

   
   

3. To be a successful candidate one must have scored a minimum grade of 70 on each part. Petitioner received a score of 67 in the Contract Administration part of the examination.

   
   

4. Petitioner has challenged the score received on Question No. 3 within that part. If his challenge is successful he will have passed that part and the overall examination.

   
   

5. Respondent's Exhibit No. 1 contains the examination question, possible answers, correct answer and solution to the problem.

   
   

6. To assist Petitioner and other candidates in preparing for the examination Respondent provided a candidate information booklet. The candidate information booklet explained the subject matter about which the candidates would be examined, the purpose of examination and the method of grading the examination. In addition Petitioner and other candidates were provided a general building and residential building reference list to assist in answering the questions in the examination instrument. Finally, the candidates were reminded that some questions were based upon field experience and knowledge of trade practices within the construction business.

   
   

7. Having in mind the preparatory information, Petitioner believes the correct answer to Question No. 3 is (D), whereas the answer called for in the examination instrument is (C).

   
   

8. Petitioner places emphasis on the belief that field experience and knowledge of trade practices would have caused the candidate to conclude that

   (D) was the proper answer.

9. Moreover, Petitioner has placed emphasis on the means the Respondent employs to ascertain the propriety of the examination challenge. Those factors are in turn:

   
   

   1. Was the item clearly and unambiguously worded?

   2. Was enough information presented to allow you to select the correct response?

   3. Did approved reference materials support the correct response?

   4. Were all current techniques taken into account when the correct response was determined?

   5. Did responding correctly to the item require knowledge which was beyond the scope of knowledge that should be expected of the candidate for licensure?

      
      

10. With this information as the background Petitioner has also included his drawings within Petitioner's Composite Exhibit No. 1, which Petitioner describes as "what went on in Petitioner's mind after reviewing said examination question", considered in the context of associated examination drawings and specifications provided to assist in the solution and as found in Respondent's Exhibit No. 2.

    
    

11. The examination question at issue referred the candidate to the drawings and specifications found in Respondent's Exhibit No. 2. The candidate was then directed to prepare formwork to substitute concrete for concrete masonry in elevator shaft walls depicted in the drawings and specifications.

    The candidate was told the labor cost per square foot for erecting forms for the "concrete contact surface area". The candidate was reminded of the dimensions of the formed openings for the elevator door. The candidate was told to assume that the form work abutted boxed columns located at the intersections of certain grid lines and to deduct measurements for door openings and to include forms for door jams and headers. With these assumptions in mind the candidate was provided four possible answers as the labor costs to erect the forms for the elevator shaft wall between the finished second and third floor elevations.

    
    

12. To arrive at the solution the candidate need only perform mathematical calculations consistent with the instructions. The correct answer is depicted in the solution to Question No. 3 found in Respondent's Exhibit 1. By performing the proper calculation, the correct answer is (C).

    
    

13. The question was unambiguous and the solution obvious. Nothing in the question or the pre-examination explanations made from Respondent to Petitioner called for reference to the fire code in arriving at the answer to Question No.

1. Therefore, it was inappropriate for Petitioner to try and calculate the answer by attempting to ascertain the appropriate material for boxing the column associated with the elevator shaft taking into account fire code requirements.

   
   

   1. Petitioner assumed the necessity to utilize fire retardant materials to encase the boxed column located at the intersection of grid lines D and 3 as the column abutted the formwork that was described in the problem. Placement of fire retardant material around the column was not necessary and contributed to Petitioner's miscalculation of the answer to the question.

   2. Moreover, in Petitioner's calculation, contrary to the instructions which said to assume that the form work abutted the boxed column at the intersection of grid lines D and 3, Petitioner made his calculations along the centerline and not as these surfaces abutted. This meant that the lineal footage determination should have been 35 and not 36 as calculated by the Petitioner. Petitioner also calculated by using two headers and two jams pertaining to the doorway on the second floor to the elevator. Only one header was required in that the bottom of the doorway was not an area where concrete was being poured which would require a form to hold the concrete in place while it was being poured. This caused the Petitioner's measurement to be 23 feet instead of the anticipated 19 foot measurement.

      
      

   3. In summary, it is the attempt to try and develop an answer which takes into account the fire code in boxing the column and the other errors in calculation specifically referred to here that led the Petitioner to obtain the incorrect answer.

      
      

      CONCLUSIONS OF LAW

      
      

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

      
      

   5. To be licensed as a general contractor Petitioner must successfully complete an examination. See Section 489.111, Florida Statutes.

      
      

   6. When Petitioner took the general contractor's examination on June 29 and 30, 1993, he did not receive a passing score in that he achieved a score of

      67 in the Contract Administration portion of the examination. He needed to receive a grade of 70 to pass.

      
      

   7. Petitioner bears the burden to prove that he is entitled to credit for the answer to Question No. 3 in the part of the examination related to Contract Administration. This would entitle Petitioner to a passing score. Petitioner did not meet the burden of proof.

      
      

   8. Petitioner was properly apprised of the requirements of the examination. Question No. 3 in the Contract Administration part of the examination was unambiguous and the suggested solution to that question is correct. Petitioner's reading of the question, solution to the question and answer to the question are incorrect.

RECOMMENDATION

Based upon a consideration of the facts found and the conclusions of law reached, it is,

RECOMMENDED:

That a final order be entered which dismisses the Petitioner's challenge to the examination results and upholds the determination that Petitioner did not pass the General Contractor's Licensing Examination given on June 29 and 30, 1993.

DONE and ENTERED this 24th day of March, 1994, in Tallahassee, Florida.

CHARLES C. ADAMS

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 24th day of March, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6616

The following discussion is given concerning the proposed findings of fact: Petitioner's Facts:

Paragraphs 1 through 9 are subordinate to facts found.

Paragraphs 10 through 57 are rejected as they attempt to justify the Petitioner's choice of answers to Question No. 3 in the examination instrument.

Respondent's Facts:

Paragraphs 1 through 5 are subordinate to facts found. Paragraph 6 constitutes legal argument.

Paragraphs 7 and 8 are subordinate to facts found.

COPIES FURNISHED:

Thomas A. Centola, Jr.

532 Ponte Vedra Boulevard

Ponte Vedra Beach, Florida 32082

Vytas J. Urba, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Richard Hickok, Executive Director Construction Industry Board

7960 Arlington Expressway, Suite 300

Jacksonville, Florida 32211-7467

Jack McRay, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 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: 93-006616

Orders for Case No: 93-006616