STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARL MALAVENDA,

Petitioner,

vs.

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION,

Respondent.

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) Case No. 03-2406

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RECOMMENDED ORDER

On November 10, 2003, an administrative hearing in this case was held by videoconference between Tampa and Tallahassee, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Carl R. Malavenda, pro se

15811 Gulf Boulevard

Redington Beach, Florida 33703-1733

For Respondent: Charles F. Tunnicliff, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202 STATEMENT OF THE ISSUE

The issue in the case is whether the Petitioner is entitled to credit for answers, which the Respondent scored as incorrect,

to three questions on the February 2003 General Contractor Construction Examination.

PRELIMINARY STATEMENT

The Petitioner took and failed the General Contractor Construction Examination in February 2003. The Petitioner challenged the scoring of some of his answers. After an informal review of the test and his answers, the Respondent awarded no additional credit, and the Petitioner filed a request for an administrative hearing. The Respondent forwarded the request for hearing to the Division of Administrative Hearings, which scheduled the hearing for September 24, 2003. On motions of the Respondent, the hearing was twice continued, and the dispute was heard on November 10, 2003.

At the hearing, the Petitioner presented the testimony of one witness and testified on his own behalf. The Respondent presented the testimony of two witnesses and had three exhibits admitted into evidence. A transcript of the hearing was filed on November 21, 2003. Both parties filed Proposed Recommended

Orders.

FINDINGS OF FACT

1. The Petitioner took the General Contractor Construction Examination on February 11, 2003. After being notified that he did not pass the test, the Petitioner requested a review of the test and his responses. Following the informal review of his

   examination answers, the Respondent awarded no further credit and the Petitioner requested an administrative hearing.

2. The Petitioner initially challenged the scoring of his answers to 12 examination questions. The challenged examination questions are identified as Business and Finance AM questions 6, 12, 33, and 40, Business and Finance PM questions 2 and 25, and General Contract Administration questions 21, 22, 30, 34, 48, and 59.

3. At the hearing, the Petitioner withdrew his challenges to Business and Finance AM questions 6, 12, and 33, and maintained his challenge to Business and Finance AM question 40.

4. Business and Finance AM question 40 requires an examination candidate to identify the proper response, according to a specified reference source, to the hypothetical discovery of hidden asbestos revealed during a demolition process.

5. The correct answer to Business and Finance AM question

   
   

   40 requires a contractor to stop working and notify the owner and architect in writing. The answer is directly referenced in the text of "General Conditions of Contract," a book that the Petitioner was permitted to use during the examination.

6. The Petitioner's answer to Business and Finance AM question 40 was to stop work and notify the owner by telephone.

7. The evidence fails to establish that the Petitioner's response to Business and Finance AM question 40 is correct or

   that the Petitioner is otherwise entitled to credit for his answer.

8. At the hearing, the Petitioner withdrew his challenges to Business and Finance PM questions 2 and 25.

9. The Petitioner also withdrew his challenges to General Contract Administration questions 30, 34, 48, and 59, and maintained his challenge to General Contract Administration questions 21 and 22.

10. General Contract Administration question 21 requires an examination candidate to calculate the workday upon which concrete footers could be poured following completion and inspection of specified preparatory work.

11. According to the question, no inspection or other work occurs on Saturdays or Sundays and an inspection would occur on the workday after the footing preparation was completed. The question provided that the specified preparatory work would begin on a Monday and would take seven days to complete. An inspection would occur on the eighth workday. The correct answer to General Contract Administration question 21 was that the footers could be poured on the ninth workday.

12. The Petitioner's answer to General Contract Administration question 21 was that the footers could be poured on the eleventh day. The Petitioner incorrectly included the weekend in his calculation of workdays.

13. The evidence fails to establish that the Petitioner's response to General Contract Administration question 21 is correct or that the Petitioner is otherwise entitled to credit for his answer.

14. General Contract Administration question 22 requires an examination candidate to calculate the total linear feet of rebar needed to reinforce a footer of specified length and construction.

15. The calculation of the total linear feet of rebar as performed at the hearing by the Respondent's witness, William H. Palm (qualified as an expert in General Contracting), is accepted as correct. Based on the specifications given in the question, Mr. Palm calculated that there would be eight 20-foot bars with the eight bars overlapping each other by 12.5 inches at each of seven overlaps. Multiplying the seven overlaps by

    12.5 inches results in 7.29 feet of total overlap. Adding the total overlapping segments to the 160-foot total and multiplying the results by the four continuous bars results in an answer to General Contract Administration question 22 of 669.16 feet. The closest possible answer from the multiple choices listed in the examination question is 670 linear feet.

16. The Petitioner's answer to General Contract Administration question 22 was that 666 linear feet of rebar would be required. The evidence fails to establish that the

    Petitioner's response to General Contract Administration question 22 is correct or that the Petitioner is otherwise entitled to credit for his answer.

17. The Petitioner also challenges as inappropriate and unfair, the use of "general trade knowledge" as a reference to correct answers. The evidence presented by the Petitioner fails to establish that the use of "general trade knowledge" is inappropriate or unfair.

18. General trade knowledge is general or common knowledge among professionals in the trade. The list of appropriate references available to all examination candidates states that some questions will "be based on field experience and knowledge of trade practices."

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. § 120.57(1), Fla. Stat. (2003).

20. The Petitioner has the burden of establishing by a preponderance of evidence that the examination was faulty, arbitrarily or capriciously worded or graded, or that the Petitioner was arbitrarily or capriciously denied credit by a grading process devoid of logic or reason. Harac v. Department

    of Professional Regulation, 484 So. 2d 1333 (Fla. 3d DCA 1986); State ex rel Glaser v. J.M. Pepper, 155 So. 2d 383 (Fla. 1st DCA

    1963); State ex rel I.H. Topp v. Board of Electrical Examiners for Jacksonville Beach Florida, 101 So. 2d 583 (Fla. 1st DCA 1958). In this case, the Petitioner has failed to meet the burden.

21. As set forth herein, the Petitioner withdrew a number of challenges to the grading of his examination responses. As to the remaining challenged questions, the evidence fails to establish that the Petitioner's responses are correct or that the Petitioner is otherwise entitled to credit for the responses.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Respondent enter a Final Order dismissing the Petitioner's challenge to the grading of the Petitioner's responses to the February 2003 General Contractor Construction Examination.

DONE AND ENTERED this 12th day of December, 2003, in Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 2003.

COPIES FURNISHED:

Carl Malavenda

15811 Gulf Boulevard

Redington Beach, Florida 33703-1733

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Nancy Campiglia, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2202

Tim Vaccaro, Director

Construction Industry Licensing Board Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of 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: 03-002406

Orders for Case No: 03-002406