STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT E. ROSSER, )

)

Petitioner, )

)

vs. ) CASE NO. 94-5214

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

LICENSING BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Hearing Officer, Joyous D. Parrish, held a formal hearing by video teleconference in the above-styled case on November 28, 1994, with the parties located in Miami, Florida.

APPEARANCES

For Petitioner: Robert E. Rosser

Post Office Box 560541 Miami, Florida 33256-0541

For Respondent: William M. Woodyard

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0750

STATEMENT OF THE ISSUES

The central issue in this case is Petitioner's challenge to part III of the licensure examination as set forth in his letter dated September 8, 1994.

PRELIMINARY STATEMENT

This case began on September 8, 1994, when the Department of Business and Professional Regulation, Bureau of Testing (Department) received a request for a formal hearing from Petitioner, Robert E. Rosser. Petitioner sought to challenge the results of a general contractor's examination for licensure. More specifically, Petitioner took issue with the format of the questions and whether question number 2 was answered properly on his "scratch sheet" such that he should receive credit for that answer.

The Department forwarded the matter to the Division of Administrative Hearings for formal proceedings on September 20, 1994. The hearing was then scheduled for video teleconference hearing by notice of hearing entered October

18, 1994. Petitioner opposed the hearing being conducted by video teleconference and requested that the hearing be conducted by telephone conference call. As Petitioner sat off-camera and, therefore, since only the audio portion of his presentation was transmitted, the request to continue the hearing and to conduct same by telephone was denied.

At the hearing, Petitioner testified in his own behalf. His notes prepared during the examination have been received as Petitioner's exhibit 1. The Respondent presented the testimony of Karl G. Lieblong, a licensed general contractor employed as a consultant for examinations conducted for the Florida Construction Industry Licensing Board. The Respondent's exhibits numbered 1 through 7 were admitted into evidence. All exhibits are confidential and have been sealed in an envelope and marked accordingly.

A transcript of the proceeding has not been filed. The parties proposed recommended orders have been considered in the preparation of this order.

Specific rulings on the proposed findings of fact are included in the appendix at the conclusion of this order.

FINDINGS OF FACT

1. Petitioner, Robert E. Rosser, is a candidate for licensure as a general contractor.

   
   

2. Petitioner has taken the examination to become a licensed general contractor consecutively over the last four years. As a result of the twelve attempts at the examination, Petitioner has passed parts I and II on two separate test dates.

   
   

3. In his attempts to pass the examination Petitioner has enrolled in and studied for the examination with two approved construction schools.

   
   

4. Petitioner scored a 68 on part III of the general contractor's examination for the June 16, 1994 test date.

   
   

5. Petitioner timely challenged questions related to part III (Project Management) of the general contractor's examination given on June 16, 1994.

   
   

6. Petitioner attended a review session and claimed that as to question 2 his scratch sheet from the examination demonstrates he had used formulas properly and that he had inadvertently marked the incorrect response on the answer grid sheet.

   
   

7. The minimum score required to pass part III of the examination was 70.

   
   

8. For each of the challenged questions in part III (2, 4, 7, 9, 11, 17, 18, and 20) Respondent presented competent evidence to support the correct answer as scored by the Department. The Petitioner did not present credible evidence to dispute the accuracy of the answers which had been deemed correct by the Department. Based upon those answers, the Petitioner's score sheet was tabulated correctly.

   
   

9. The questions challenged were clearly and unambiguously worded and contained sufficient factual information to reach a correct answer.

   
   

10. The examination was open book and applicants were allowed to use reference materials.

11. All current techniques were considered before the correct answer was chosen.

    
    

12. All knowledge needed to reach a correct answer was within a candidate's expected range of expertise.

    
    

13. The Department's scoring of part III was not arbitrary, capricious, or devoid of logic.

    
    

14. For each of the challenged questions, the correct answer was scored at a higher percentage than the answers marked by Petitioner. In fact, for question 4, for example, 79 percent of the examinees scored the correct answer while only 3 percent marked the same answer as Petitioner.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

16. Petitioner has the burden of proof to establish, by a preponderance of the evidence, that the Department inaccurately scored his examination or that the denial of credit was devoid of logic and reason. In this case he has failed to meet that burden.

    
    

17. Petitioner has not established that his answers to the challenged questions were correct nor that the Department acted arbitrarily in denying him credit for the answers chosen.

    
    

18. The Department, on the other hand, has showed that the answers selected and scored as correct by the Respondent were reliable. Respondent's consultant explained the grading process adequately to establish the accuracy of the Department's answers.

    
    

19. In contrast, the Petitioner's claim that his scratch sheets support a finding that his answer was an inadvertent error is not supported by the record in this cause. Petitioner's scratch sheet does not contain the correct answer. Consequently, Petitioner cannot receive credit for the answer calculated.

    
    

20. Finally, Petitioner's claims that he is entitled to additional credit because of alleged procedural irregularities is rejected. A prehearing order was not entered in this case. Nevertheless to accommodate Petitioner's request for time to attempt a settlement, the parties were afforded ten days following the final hearing within which to discuss settlement options. Similarly, Petitioner's claim that he was entitled to responses to interrogatories is rejected as no interrogatories were served in this case. Petitioner met with Respondent's expert witness at the time of hearing and was given an opportunity to discuss all challenged questions before the formal hearing began. No evidence was taken until Petitioner had the chance to discuss the issues with the Department's representative.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That Department of Business and Professional Regulation, Bureau of Testing enter a final order dismissing Petitioner's challenge to the general contractor's examination.

DONE AND RECOMMENDED this 23rd day of January, 1995, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

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 January, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5214

Rulings on the Petitioner's proposed findings of fact:

Petitioner did not number the paragraphs denoted as "STATEMENT OF FACTS AND FINDINGS". The lettered paragraphs are addressed as listed; but where no letter identified the paragraph, the rulings are as to the paragraphs in the order of presentation.

1. Paragraph [A] is accepted.

2. Paragraph [B] is accepted to the extent it identifies Petitioner as a candidate otherwise rejected as not supported by the weight of the credible evidence. Petitioner's citation to Rule 21E-16.005 is an error. It is accepted that the minimum passing grade for the challenged part is 70 percent out of 100 percent.

3. Paragraph [C] is accepted in substance; however, Petitioner's citation to Rule 21E-16.003 is an error.

4. The next paragraph is rejected as contrary to the weight of the credible evidence.

5. The next paragraph is accepted as a correct statement of procedural review.

6. The next paragraph is rejected regarding question 4 is rejected as not a statement of fact or contrary to the weight of the credible evidence.

7. The next paragraph is rejected regarding question 7 is rejected as not a statement of fact or contrary to the weight of the credible evidence.

8. The next paragraph is rejected regarding question 9 is rejected as not a statement of fact or contrary to the weight of the credible evidence.

9. The next paragraph is rejected regarding question 11 is rejected as not a statement of fact or contrary to the weight of the credible evidence.

10. The next paragraph is rejected as not a statement of fact. Petitioner's scratch sheets have been received as Petitioner's exhibit 1.

11. The next paragraph is rejected regarding question 17 is rejected as not a statement of fact or contrary to the weight of the credible evidence.

12. The next paragraph is rejected as not a statement of fact. Petitioner's scratch sheets have been received as Petitioner's exhibit 1.

13. The next paragraph is rejected regarding question 18 is rejected as not a statement of fact or contrary to the weight of the credible evidence.

14. The next paragraph is rejected regarding question 20 is rejected as not a statement of fact or contrary to the weight of the credible evidence.

15. Paragraph [D] is accepted as statement of procedural information but is not supported by the evidence.

16. Paragraph [E] is accepted as statement of procedural information but is not supported by the evidence.

17. The next paragraph is merely an address for the Department and is not a statement of fact.

18. Paragraph [F] is accepted as statement of procedural information but is irrelevant.

19. Paragraph [G] is accepted as statement of procedural information but is irrelevant.

20. The next paragraph is merely an address for the Division and is not a statement of fact.

21. Paragraph [H] is accepted as statement of procedural information but is irrelevant.

22. Paragraph [I] is accepted as statement of procedural information but is irrelevant.

23. Paragraph [J] is accepted as statement of procedural information but is irrelevant.

24. Paragraph [K] is rejected as contrary to the record in this case since an order of prehearing instruction was not entered in this case and interrogatories were not served.

25. Paragraph [L] is rejected as irrelevant, not a statement of fact, and contrary to the record. Moreover, Petitioner's scratch sheets have been received as Petitioner's exhibit 1.

26. Paragraph [M] is rejected as argument or contrary to the weight of credible evidence.

27. Paragraph [N] is rejected as irrelevant or contrary to the weight of credible evidence.

28. Paragraph [O] is rejected as contrary to the weight of credible evidence.

29. Paragraph [P] is rejected as contrary to the weight of credible evidence.

Rulings on the proposed findings of fact submitted by the Respondent:

1. Paragraphs 4 through 11 are accepted.

2. Paragraph 1 is accepted as statement of procedural information.

3. Paragraph 2 is accepted as to the substance but is not a statement of relevant fact.

4. Paragraph 3 is accepted as to the substance but is not a statement of relevant fact.

COPIES FURNISHED:

Robert E. Rosser

P.O. Box 560541

Miami, Florida 33256-0541

William M. Woodyard Assistant General Counsel Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0750

Jack McRay General Counsel

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Richard Hickok Executive Director

Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300

Jacksonville, Florida 32211-6310

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: 94-005214

Orders for Case No: 94-005214