STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM T. DAVENPORT, )

)

Petitioner, )

)

vs. ) CASE NO. 94-3534

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, ) CONSTUCTION INDUSTRY LICENSING ) BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on October 3, 1994, in Jacksonville, Florida, before David M. Maloney, a duly-designated Hearing Officer of the Division of Administrative Hearings. A transcript of the hearing was filed with the Division of Administrative Hearings on October 24, 1994.

Petitioner filed a proposed recommended order on October 26, 1994 and Respondent filed a proposed recommended order on October 28, 1994. The attached appendix contains rulings on the parties' proposed findings of fact by number.

APPEARANCES

For Petitioner: Pro Se

336 14th Street

Jacksonville Beach, Floirda 32250

For Respondent: Wellington H. Meffert II

Assistant General Counsel Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUES

Whether Petitioner is entitled to receive a passing grade or reexamination on the "Contract Administration, Division I" portion of the General Contractor Examination taken by petitioner on February 17, 1994?

PRELIMINARY STATEMENT

On June 28, 1994, the Department of Business and Professional Regulation requested that a hearing officer be assigned to conduct a proceeding pursuant to Section 120.57, Florida Statutes. Attached to the letter were copies of a petition for formal hearing filed by petitioner, William T. Davenport, in a

letter dated June 11, 1994. The petition makes reference to a General Contractor examination the previous February. It lists six reasons for requesting the hearing. All but one of the six were abandoned by Mr. Davenport at hearing, leaving no. 5:

The room in which the exam was given was so small that the proctor was constantly within

3 feet of me while taking the exam. The close proximity of the proctor ... was disruptive, annoying, and induced a higher degree of stress than what should have been. This was not a good test taking environment and appears to have violated basic educational principals for administering exams.

Petition for Formal Hearing, letter of William T. Davenport dated June 11, 1994.

At hearing, Mr. Davenport expressly abandoned the challenges to the three examination questions. Abandoned, as well, were the remaining challenges, when Mr. Davenport announced his preference to focus his case on the testing environment and the activities of the proctors and other workers in the facility that he believed had distracted him from concentrating on the exam and, in his view, led to missing a passing grade on the exam by two points.

Also at hearing, for the first time in the case, Mr. Davenport alleged that before the exam began a book he was entitled to use had been incorrectly seized by a proctor. The Department objected to the presentation of evidence concerning the book, legitimately claiming surprise.

In response, Mr. Davenport argued he should be allowed to present evidence in relation to the appropriation of the book in the context of activities of the proctors which disrupted his concentration as alleged under No. 5 in his petition. The Department's objection was treated as a motion to strike and petitioner was allowed to present evidence on the issue. After full consideration, the motion to strike is denied. It is ruled that Mr. Davenport's evidence concerning the book will be evaluated under the issue in his petition listed as no. 5, above. Because no specific allegation in the petition relates to the book and in light of the Department's motion to strike, the confiscation of the book, by itself, cannot serve as a basis for a passing grade or entitlement to reexamination. The issue may be considered only as an act of a proctor in the larger context of testing environment.

FINDINGS OF FACT

Test Anxiety at the February 1994 General Contractor's Examination

1. The General Contractor's Examination used in the licensing of individuals as general contractors is divided into three parts, each of which may be passed separately. Credit for passing any one portion of the examination is good for a period of only one year. An applicant for a license as a General Contractor is limited in taking any part of the examination to three times per year. If an applicant fails to pass all three parts of the examination in one year, therefore, the applicant must commence the examination process anew, as if none of the portions of the examination had been passed.

2. On February 17, 1994, William T. Davenport, sat for the Contract Administration portion of the exam for the third time within a one-year period. At each of the two examinations taken earlier, he had passed one portion. The Contract Administration portion was the only part he had not yet passed.

   
   

3. Mr. Davenport was anxious as he waited to take the exam. He fully realized that if he did not pass the Contract Administration portion he would have to start the examination process all over again. His concern was generated not only from the perspective of delay and inconvenience attendant to having to repeat the entire exam process, but also from the perspective of cost.

   Repeating the process would require him to pay the full exam fee after having paid already a full examination fee for each of three examinations in the year of his attempt to successfully complete the examination requirements for licensure.

   
   

   Different Approved Reference Lists

   
   

4. The Construction Industry Licensing Board approves reference materials that applicants may use during the examination and issues a list of those materials periodically. The Reference List for the February examination covered the period between November 1, 1993 and February 28, 1994. On that list was a book Mr. Davenport brought with him to the examination: Practical Mathematics, 3rd Edition, Copyright 1972.

   
   

5. As Mr. Davenport sat nervously awaiting commencement of the exam, a proctor removed Practical Mathematics from his desk indicating that use of the book was not allowed. Mr. Davenport relates his response to the incident in this way,

   
   

   
   

   (Tr. 26.)

   The anxiety was very high at that point.

   My concern was try to get through the exam and, when the book was taken away from me, I panicked, to be blunt. I just totally panicked.

   
   

6. Unlike the testing period from November 1, 1993 to February 28, 1994, Practical Mathematics was not on the Reference List for the next period of testing, from March 1, through June 30, 1994. The later list, issued January 13, had been out for over a month at the time of the exam. It is likely the proctor removed the book in mistaken reliance on the later list.

   
   

7. As it turned out, the proctor returned the book to Mr. Davenport either shortly before the examination commenced. As he did so, the proctor commented, "Well, I don't know." (Tr. 25.)

   
   

8. Mr. Davenport did not use the book during the exam because, "[a]t that point, I was reluctant to use the book ... I didn't want the test to be invalidated and I didn't want to be challenged." Id.

1. Not using the book proved to be critical to whether Mr. Davenport passed the Contract Administration portion of the exam. He scored a 68. A passing grade is 70. Had Mr. Davenport answered correctly question number 3, which was worth four points, he would have received a 72, a passing grade.

   
   

2. The question involves applying a percentage. Mr. Davenport could not remember whether in obtaining a percentage it is necessary to multiply or

   divide. Practical Mathematics has a chapter on percentages. The chapter teaches that multiplication is the arithmetic method to use when obtaining a percentage. But Mr. Davenport guessed that division should be used. He divided by the percentage and, therefore, chose an incorrect answer.

   
   

3. Question number 3 on the exam is one of the questions that Mr. Davenport challenged originally:

   
   

   A 2-man crew has consistently worked at a labor performance standard ratio of 0.85 to 1. They are selected for a job requiring 60 (standard time) man-hours to perform. They will NOT work more than 8 hours per workday. NO work will be done on Saturdays or Sundays. There are NO

   holidays during the time the work will be performed.

   
   

   According to Builder's Guide to Accounting, if the job must be finished NO later than Friday afternoon at 5:00 p.m., what is the last day that they could be scheduled to start the job?

   1. Thursday of the previous week

   2. Friday of the previous week

   3. Monday of the same week

   4. Tuesday of the same week

      
      

      Respondent's. Ex. No. 2. The correct answer is "(D) Tuesday of the same week."

      
      

4. The Department's expert witness explained that the correct answer is reached by way of an algebraic formula. The formula is: "the labor performance standard ratio = x (the unknown) divided by the standard time man hours" and then that answer is divided by 2 since the crew is a 2 man crew. Applied to the problem, the formula is: .85/1 = x/60, with x, once known, divided by 2. Using the formula, the calculation goes as follows: .85/1 = x/60; multiplying both sides of the equation by 60, .85(60) = x; carrying out the arithmetic calculation, x equals 51; 51/2 = 25.5. It takes 25.5 hours, therefore, for the crew to complete the job. If, as the problem states, the job must be completed by Friday at 5 p.m. and the crew works 8 hours a day, then it will take the crew

   3 full days and 1.5 additional hours to complete the job. Working backward from Friday, the crew will work 8 hours on Friday, 8 hours on Thursday, and 8 hours on Wednesday for a total of 24 hours. The crew must start on Tuesday of the same week to work the additional 1.5 hours required to complete the job.

   
   

5. One does not need to use algebra, however, to solve the problem. One can simply obtain the number of actual hours needed to complete the job by applying 85 percent (the crew's labor performance standard) to the number of standard time manhours called for by the job, in this case, 60.

   
   

6. Here is where Mr. Davenport needed Practical Mathematics. Not knowing whether to obtain the actual hours by multiplying .85 times 60 or dividing .85 into 60, he guessed, in error, division. Through the use of division, it appears incorrectly that the number of manhours needed is 70.588. Divided by two, to take into account that there are two members of the crew, it would take the crew 35.294 hours. If it took the crew 35 hours and a fraction to complete the job on time, the crew would need to start on Monday of the same week. "(C) Monday of the same week," is the answer chosen by Mr. Davenport.

   Other Distractions

   and the Site of the Exam

   
   

7. The examination was conducted in the Tallahassee office of the National Assessment Institute (NAI). The NAI was under contract to the Department as the vendor to conduct the exam.

   
   

8. At the time of the examination, the exam site was a room approximately forty feet by thirteen feet four inches in size. It contained nine tables, each

   18 inches by eight feet. The tables were spaced 35 inches from each other. At each table were two straight-backed chairs.

   
   

9. There were seven candidates present for the examination. The first and last tables were unoccupied. Each of the seven candidates were allotted 34 square feet of floor space to be occupied by the candidate, the chair, the table and materials used in the exam.

   
   

10. On the east wall of the exam room were three plate glass fixed windows. Two of the windows are 48 inches long by 36 inches tall and one is 36 inches long by 31 inches tall. The glass is one-eighth inch thick non- commercial grade. The windows are acceptable under NAI guidelines.

    
    

11. On the other side of the windows is a workroom that measured 15.25 by

    17.5 feet. Through these windows the examination supervisor seated in the work room can monitor the performance of the proctors in the exam room and see the candidates as they take the exam. The candidates, seated to the left of the workroom, do not face the workroom. Rather, their right side is exposed to the workroom. If the tables are numbered 1 through 9 on Respondent's Ex. No. 1, beginning with 1 on the side of the room marked on the exhibit as "N" or north, candidates who were seated at tables 4 through 8 were directly exposed to the workroom windows.

    
    

12. Mr. Davenport was seated at one of the tables exposed to the workroom windows, most likely table 3, 4 or 5, that is, one of the center 3 tables. During the exam, he could see employees through the windows moving in the workroom and hear noise from the workroom.

    
    

13. There were four employees who were present at one time or another in the workroom. Three of these employees were also engaged in proctoring the examination. In addition to the visual diversion posed by the four employees in the workroom, Mr. Davenport could hear sounds emanating from the room. The doors to the workroom, open so that the exam supervisor seated in the workroom could hear what occurred in the exam room, also allowed sounds from the workroom into the exam room. The source of the sound was the printer working, the four workers conversing from time to time and other noises associated with an office work environment. Sight of the employees and noise from the workroom prevented petitioner from fully concentrating on the exam.

    
    

14. Mr. Davenport was also distracted by the activities of the proctors while in the exam room. During the four hours he sat for the exam, three of the four employees he observed in the workroom were also acting as proctors. They left the workroom in a rotation in order to spell each other. During their shifts as proctors, the three monitored the exam room. Mr. Davenport felt distracted by the coming and goings of the three as they rotated in and out of the room. Although there was a table designated for the proctors at a corner outside the workroom across from table 3, they rarely sat there. They sat at

    one of the empty tables or walked beside the seated candidates, all the time carrying out the function of a proctor: observing the candidates during examination.

    
    

15. The FCILB Examination Administration Manual, applicable to the February General Contractor's exam, details the responsibilities of proctors in sixteen separate counts. No. 13 reads:

    
    

    Proctors observe at all times and move quietly about the room. Proctors do not disturb or distract candidates during the examination.

    If speaking is necessary, a proctor needs to be quiet and brief as possible. Proctors avoid asking candidates to move chairs to get around them, standing too close or directly behind candidates, or rustling papers and talking to other proctors in the vicinity.

    
    

    Petitioner's Ex. No. 2, FCILB Examination Administration Manual, p. 2-5.

    
    

16. Movement of the proctors was necessary during the exam because of its open-book format. It is incumbent on the proctors of an open-book exam to insure that candidates do not copy questions form the examination into their reference materials.

    
    

    Other Candidates Reactions to the NAI's Tallahassee Office

    
    

17. Among the three proctors the day of the exam was Ms. Jean Love. Ms. Love is also the Office Manager of the NAI's Tallahassee Office. She has worked for NAI for over two years. Before that she worked for eight and one-half years with the Department in examination services, during which she administered exams, including acting as a proctor for exams.

    
    

18. In addition to the daily operations of the office, she oversees the administration of examinations, a function she fulfilled at the February General Contractor's exam this year. Ms. Love did not see any unusual or distracting activities on the part of the other two proctors and did not undertake any activities, in her opinion, that would have violated any of the responsibilities of proctors, including those quoted, above, from the FCILB Examination Administration Manual.

    
    

19. The activities during the exam in the workroom, undertaken under Ms. Love's supervision, were normal activities undertaken every day at the NAI Tallahassee Office during and outside of times of examinations. Aside from typical office activities, such as conducting telephone conversations, scheduling candidates for tests, and doing paperwork that included hand-folding documentation, there was no unusual activity the day of the exam. The only event in the workroom that contributed at all to the sound of normally quiet office activity was the validation of a single candidate's check.

    
    

20. No complaints about noise in the workroom during the February General Contractor's Exam were registered with the NAI Tallahassee Office. Nor did any of the candidates that day complain about the activities of the proctors. Ms. Love did not learn of Mr. Davenport's complaint until after he filed his challenge to the examination questions.

21. While a proctor may have from time to time stood near Mr. Davenport as he took the exam, none of the proctors hovered over him or, in Ms. Love's opinion, did anything that would distract the average candidate.

    
    

22. No complaint during the examination was made by Mr. Davenport. He did not complain about inability to concentrate on the exam until after he received the exam results.

    
    

23. During Ms. Love's two years at the NAI Tallahassee office, no candidate, prior to Mr. Davenport, had ever complained about the testing environment for any reason. The comments she has received from candidates following exams have been solely complimentary. Over the last two years, the office has administered between 15 and 20 tests per month. Complimentary comments are made, on average, by one candidate per test. In the last two years the office has received, at a minimum, well in excess of 350 compliments on the testing environment from candidates. In contrast, Mr. Davenport's complaint stands alone as the only complaint about the office testing environment in the last two years at the NAI's Tallahassee Office.

    
    

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57, F. S.

    
    

25. The Department is authorized to administer the examination, Section 489.111, F. S. Petitioner must pass the examination to become licensed. Section 489.1125, F. S.

    
    

26. Licensure examinations administered by or on behalf of the Department are governed generally by Chapter 61-11, Florida Administrative Code. Rule 61- 11.006, Florida Administrative Code, is entitled "Examination Administration." Subsection (4) reads:

    
    

    All examinations will be administered in accordance with the "Bureau of Examination Services Test Administration Manual, copyright 1989." Administration requirements set forth

    by national boards and councils will be complied with in the administration of the specific examination.

    
    

    Rule 61-11.014(8), Florida Administrative Code, describes the responsibilities of proctors:

    
    

    1. During the testing time, proctors shall walk quietly about their station and keep a close watch to prevent any attempt to copy questions or answers or to remove pages from exam booklets. Proctors shall not in any way disturb or embarrass any candidate. ...

       
       

27. The challenger in a licensing examination challenge has the burden of proving the agency's conduct of the examination and in denying him credit for an answer was unfair. State ex rel Topp v. Board of Electrical Examiners for Jacksonville Beach, 101 So.2d 583, 586 (Fla. 1st DCA 1958).

28. Mr. Davenport's challenge consists of two main points - the inadequacy of the testing environment and the appropriation of the book before the exam had commenced.

    
    

29. With regard to the test site and environment, the site is probably less than ideal. The exam room is relatively small and there is no extra room for the proctors as they move about in observation of the candidates. The adjacent workroom with its windows, sounds and sights poses potential distractions. But the workroom also allows the exam supervisor to closely monitor both the candidates and the proctors. The proctors, in turn, are required to observe the candidates closely in order to perform their obligation of ensuring that test questions are not being copied onto reference materials.

    
    

30. Mr. Davenport was unusually sensitive to test-taking anxiety. His heightened sense of anxiety led to his being distracted by the workroom sights and sounds and typical activities of the proctors. There is no evidence that these activities were disruptive for other candidates. To the contrary, all the evidence, save the less-than-ideal physical dimensions of the exam room, supports the environment of the NAI Tallahassee office as a good one for taking examinations.

    
    

31. Anxiety also accounts for Mr. Davenport's failure to use Practical Mathematics after it was returned to him. It was taken from him incorrectly and this was bound to be a disturbance to any candidate, particularly one as apprehensive as Mr. Davenport. The comment of the proctor at the time of the book's return was not helpful. But, once the book was returned there was nothing to keep Mr. Davenport from using it, other than his own fears.

    
    

32. On the other hand, had Mr. Davenport not had the book mistakenly taken from his desk, and had he been able to overcome the state of distress he found himself in and used it, he would have answered question no. 3 correctly, passed the Contract Administration portion of the test, and have completed successfully the examination requirements for licensure. As matters stand now, Mr. Davenport will have to take the entire examination again after having passed two portions and having missed a passing grade on the third by only one question when missing the correct answer to the question is at least, in part, attributable to the mistaken act of an exam proctor.

RECOMMENDATION

It is, accordingly,

RECOMMENDED, in the alternative:

1. That petitioner's request for reexamination or a passing grade on the "Contract Administration, Division I" portion of the General Contractor's examination administered in February 1994 be DENIED; or, in the alternative,

   
   

2. If the Construction Industry Licensing Board is willing to overlook the petitioner's failure to challenge his grade specifically on the appropriation of the book before the examination in the petition for formal hearing and the Department's legitimate objection to the presentation of evidence on the issue, that petitioner be allowed to sit for reexamination and, if he passes the Contract Administration portion of the exam, be credited with passing the other two portions of the exam as well as if all three portions had been passed in one year.

DONE and ENTERED this 1st day of December, 1994.

DAVID M. MALONEY

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 1st day of December, 1994.

APPENDIX

Petitioner's proposed findings of fact Nos. 3, 4, 5, 6, 9, 10, 12, and 13 are adopted, in substance, insofar as material.

With respect to petitioner's proposed finding of fact No. 1, the first and last sentences are adopted. The remainder of the proposed finding, and in particular the reference to Linda Chaffin, test proctor, is rejected because it is either not supported by the evidence or argumentative in nature rather than factual.

Petitioner's proposed finding of fact No. 2 is rejected as against the weight of the evidence.

Petitioner's proposed finding of fact Nos. 7 and 8 are rejected as unsupported by the evidence.

With respect to petitioner's proposed finding of fact No. 11, the reference to Linda Chaffin is rejected. Ms. Chaffin was not identified by the evidence as the proctor who removed the book from petitioner prior to the exam.

Respondent's proposed findings of fact are adopted, in substance, insofar as material.

COPIES FURNISHED:

William T. Davenport

336 14th Avenue, North Jacksonville, FL 32250

William W. Woodyard Assistant General Counsel D B P R

1940 North Monroe Street Tallahassee, FL 32399-0750

Richard Hickok, Executive Director C I L B

7960 Arlington Expy., Ste. 300

Jacksonville, FL 32311-7467

Jack McRay General Counsel D B P R

1940 North Monroe Street Tallahassee, FL 32399-0750

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: 94-003534

Orders for Case No: 94-003534