STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GARY P. SANTORO,

vs.

Petitioner,

Case No. 19-2367

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, CONSTRUCTION INDUSTRY LICENSING BOARD,

Respondent.

/

RECOMMENDED ORDER

A final hearing was held in this matter before Robert S. Cohen, an Administrative Law Judge with the Division of Administrative Hearings (“DOAH”), on July 2, 2019, by video teleconference at sites in Sarasota and Tallahassee, Florida.

APPEARANCES

For Petitioner: Gary Peter Santoro, pro se

Hometown Air & Services 8229 Blaikie Court

Sarasota, Florida 34240-8323

For Respondent: Thomas G. Thomas, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-2202

STATEMENT OF THE ISSUES

The issues in this case are whether Petitioner, Gary P. Santoro (“Petitioner” or “Mr. Santoro”), undeservedly received a failed grade on the Construction Business and Finance Examination (“Examination”) for licensure as an air-conditioning contractor; whether any questions on the examination had more than one correct answer; whether the examination is unfair; whether there is transparency in the examination review process; and whether the examination grading process is arbitrary and capricious.

PRELIMINARY STATEMENT

Mr. Santoro is seeking to become licensed as a Class “A” air-conditioning contractor by the Construction Industry Licensing Board (“Board”) within the Department of Business and Professional Regulation (“Respondent” or “Department”).

Petitioner must obtain at least a 70-percent score on the Examination as one of the requirements for licensure as an air-conditioning contractor. Petitioner is challenging the

scoring of his answers on the Examination, which was taken by him on November 16, 2018.

After receiving his score report informing him that he had not passed the Examination, Petitioner requested a review of his incorrect answers and related questions. His request was granted, and his review was held on December 18, 2018. Based on the review, he was given credit for one of his incorrect answers,

but this still left him one correct answer short from achieving a passing score. Mr. Santoro was informed of his right to contest the determination in an administrative hearing. Mr. Santoro timely filed with the Department a request for an administrative hearing in which he raised disputed facts regarding the scoring of his Examination. The Department transmitted the case to DOAH for assignment of an administrative law judge to conduct the requested hearing. On June 12, 2019, Respondent’s Motion for More Definite Statement was approved and Petitioner’s response narrowed the challenged questions to four: BF 1290, BF 0473,

BF 0162, and BF 1691.

At the hearing, Petitioner testified on his own behalf and presented the testimony of Ruth Lynn Santoro. Petitioner offered eight exhibits, all of which were admitted into evidence.

Respondent presented the testimony of Alex Bosqué for the Department’s Bureau of Education and Testing, Dr. Cynthia Woodley, and Lawrence Graham and offered eight exhibits, all of which were admitted into evidence.

Petitioner filed his Proposed Recommended Order on July 5, 2019. The one-volume Transcript of the final hearing was filed on July 15, 2019. Respondent timely submitted its Proposed Recommended Order on July 24, 2019. Both proposed orders have been considered, along with the entire evidentiary record for purposes of this Order.

References to statutes are to Florida Statutes (2018),

unless otherwise noted.

FINDINGS OF FACT

1. Mr. Santoro took the Examination on November 16, 2018.

   
   

   Petitioner failed the Examination because he scored less than

   
   

   70 percent correct.

   
   

2. The Examination contains 125 questions, 120 of which are scored. The other five are not scored and are considered “pilot” questions for potential use on future examinations. In order to pass the Examination, a candidate must obtain a score of at least

   70 percent. All scored questions on the Examination are weighted equally.

3. As a result of failing to pass the Examination, Petitioner was notified of his results.

4. All questions on the Examination had a single correct answer.

5. Cynthia Woodley, Ph.D., employed by Professional Testing, Inc. (“PTI”), as the chief operating officer, is an expert in psychometrics and exam development. She holds a master’s degree in vocational education and a doctorate in curriculum and instruction with a specialization in measurement. Her current position calls for her to manage a number of licensure and certification exam programs. She explained at

   
   

   length how specific questions become part of a professional licensure exam.

6. To develop questions, her company brings in any number of subject matter experts, people actually employed in the professions being tested, and they help develop subject matter questions for a particular exam. That was the process used for development of the Examination in this matter.

7. Once the subject matter experts are trained in exam question writing techniques, they write questions, which are reviewed by other subject matter experts to determine whether the questions are fair and understandable enough to be answered by prospective test takers. Generally, five subject matter experts review each question before it makes its way onto an exam.

8. PTI measures the “P value” of the questions by determining what percent of individuals taking a given exam answer a particular question correctly. For example, a P value of .90 means that 90 percent of the people taking the exam answered a particular question correctly. PTI looks for a wide range of P values in its exam questions. If a P value is too low, say .40, the company might reexamine that question to determine whether it should be removed from future exams since fewer than half the people taking the exam answered it correctly.

9. The business and finance portion of the exam is given to all contractors, regardless of their specialty, with the

   
   

   exception of pool service contractors. Here, Petitioner, a

   
   

   HVAC contractor was administered the same Examination as plumbing contractors, electrical contractors, general contractors, etc.

10. Each of the 120 questions on the exam in this case was equally weighted. There were also five pilot questions inserted into the exam, which did not count towards the total score, but were included as test questions for future exams.

11. Petitioner provided hearsay documents regarding computer hacking and computer glitches associated with some exams administered around the United States. However, he did not connect the articles submitted into evidence to the exam administered in this case or any exam administered by the Department in Florida. Dr. Woodley was familiar with the allegations of computer glitches in testing, but testified that the problems were with K-12 testing in schools, not with professional licensure exams, such as administered by the Department. Therefore, since the hearsay evidence was not linked to the exam at issue or similar professional licensure exams given in Florida, it is entitled to no weight in arriving at the decision in this case.

12. Question BF 1290 has a single correct answer, which is answer “C.” Petitioner selected answer “B.” Petitioner was unable to demonstrate that the answer he selected was correct.

    
    

13. Question BF 0473 has a single correct answer, which is answer “A.” Petitioner selected answer “C.” This question asks for an answer of general applicability. Petitioner’s claim that his answer is equally correct is based on a narrow exception in law. Accordingly, Petitioner was not able to demonstrate that the answer he selected was correct.

14. Question BF 0162 has a single correct answer, which is answer “B.” Petitioner selected answer “C.” Petitioner was unable to demonstrate that the answer he selected was correct.

15. Question BF 1691 has a single correct answer, which is answer “C.” Petitioner selected answer “D.” Petitioner was unable to demonstrate that the answer he selected was correct.

16. Petitioner was unable to submit sufficient evidence to show that the Examination is unfair, that there is insufficient transparency in the examination review process, or that the examination grading process is arbitrary and capricious. Accordingly, he cannot prevail in his challenge to the Examination.

17. Petitioner testified that he took and passed the HVAC contractors special license examination on his first attempt. He has taken the Examination on numerous occasions and is yet to be successful. He testified he studied hard for every administration of the exam, but just cannot reach the finish line successfully. While that is unfortunate, the evidence does not

    
    

    support that his failure to succeed on the Examination is the fault of the exam itself or of the Department either in its contracting to have the exam created or in the administration of the exam.

18. From the way he conducted himself at hearing, Petitioner appears to be an intelligent, diligent, and successful individual in his HVAC business. For some unknown reason he has been unable to successfully complete the Examination. His persistence in retaking the Examination multiple times is admirable and should ultimately pay off with his successful passage of the Examination.

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter pursuant to sections 120.569 and 120.57(1), Florida Statutes.

20. The Department is the state agency responsible for the regulatory process governing contractors, including the process by which persons apply for licensure as contractors in the State of Florida pursuant to chapter 455 and part I of chapter 489, Florida Statutes. In addition to other requirements, applicants for licensure must pass the Examination administered by the Department or its agents. Fla. Admin. Code R. 61G4-16.001.

21. Petitioner, as the party asserting the affirmative of the issue in this proceeding, has the burden of proof. Balino v.

    
    

    Dep’t of HRS, 348 So. 2d 349 (Fla. 1st DCA 1977); Dep’t of

    
    

    Agric. & Consumer Servs. v. Strickland, 262 So. 2d 893 (Fla. 1st DCA 1972). The level of proof is generally a preponderance of the evidence. Dep’t of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); see also Davis v. Dep’t of Child. &

    Fam. Servs., 160 So. 3d 854, 857 (Fla. 2015). Here, Petitioner must prove by a preponderance of the evidence that he should be given credit for some or all of the financial examination answers deemed incorrect by the Department sufficient to result in a passing grade on the exam.

22. To prevail, Petitioner must show by a preponderance of the evidence that the examination was arbitrary or capricious or that the grading process was devoid of logic or reason. In administrative proceedings, the party making a claim generally has the burden of proving that claim and establishing the basis for the claim. Young v. Dep’t of Cmty. Aff., 625 So. 2d 831,

    833-844 (Fla. 1993); Envtl. Trust v. Dep’t of Envtl. Prot.,

    
    

    714 So. 2d 493, 497 (Fla. 1st DCA 1998); Balino, 348 So. 2d at 350; see also Beshore v. Dep’t of Fin. Servs., 928 So. 2d 411,

    414 (Fla. 1st DCA 2006); Espinoza v. Dep’t of Bus. & Prof’l Reg., 739 So. 2d 1250, 1251 (Fla. 3d DCA 1999).

23. Petitioner failed to establish a legal basis for why he was entitled to a passing grade for the Examination. The record in this case does not provide a basis for awarding any additional

    
    

    credit to Petitioner. Petitioner did not offer any expert testimony in support of his claims. In fact, all of the expert testimony in the record is uncontroverted, persuasive, and compels a conclusion that Petitioner has failed to meet his burden.

24. Petitioner failed to establish that the examination is unfair, that there is insufficient transparency in the examination review process, or that the examination grading process is arbitrary and capricious. Because Petitioner did not earn a passing score on the Examination, the Department acted appropriately in awarding him a failing grade.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board enter a final order upholding the Department’s Amended Grade Report finding that Petitioner failed to achieve a passing score on the Construction Business and Finance Examination, which he took on November 16, 2018.

DONE AND ENTERED this 23rd day of August, 2019, in Tallahassee, Leon County, Florida.

S

ROBERT S. COHEN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 2019.

COPIES FURNISHED:

Thomas G. Thomas, Esquire Department of Business and

Professional Regulation 2601 Blair Stone Road

Tallahassee, Florida 32399-2202 (eServed)

Gary Peter Santoro Hometown Air & Services 8229 Blaikie Court

Sarasota, Florida 34240-8323 (eServed)

Ray Treadwell, General Counsel Office of the General Counsel Department of Business and

Professional Regulation 2601 Blair Stone Road

Tallahassee, Florida 32399-2202 (eServed)

Daniel Biggins, Executive Director Construction Industry Licensing Board Department of Business and

Professional Regulation 2601 Blair Stone Road Tallahassee, Florida 32399 (eServed)

Halsey Beshears, Secretary Department of Business and

Professional Regulation 2601 Blair Stone Road

Tallahassee, Florida 32399-2202 (eServed)

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: 19-002367

Orders for Case No: 19-002367