STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GRADY E. HALL, d/b/a HOWARD ) HALL ELECTRIC, )

)

Petitioner, )

)

vs. ) CASE NO. 80-414

) ELECTRICAL CONTRACTORS' LICENSING ) BOARD, DEPARTMENT OF PROFESSIONAL ) REGULATION, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was duly scheduled for hearing before Linda

M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on March 20, 1980, in Tallahassee, Florida.

The Petitioner, Grady E. Hall, d/b/a Howard Hall Electric ("Petitioner"), was represented by Paul A. Lehrman, Esquire, Tallahassee, Florida. The Respondent, Electrical Contractors' Licensing Board ("Board"), was represented by Patricia R. Gleason, Esquire, Assistant Attorney General, Tallahassee, Florida; and the Respondent, Department of Professional Regulation ("Department"), was represented by Frederick H. Wilsen, Esquire, Tallahassee, Florida.

The Petitioner failed the November 2, 1979, examination administered by the Board to persons seeking statewide certification and licensure as electrical contractors. Petitioner thereafter challenged the examination on three bases:

1. that insufficient notice of the date of examination had been provided to him, (2) that the reference book list provided by the Board for use in preparation for the examination and during the examination was inaccurate and incomplete, and (3) that the accounting portion of the examination was improperly drafted. The position of the Respondents was that the examination itself was properly and fairly drafted and administered.

   
   

   The hearing proceeded on the First Amended Petition after certain language suggesting a challenge to Chapter 21GG-6.01, Florida Administrative Code, had been withdrawn and stricken with prejudice by agreement of the parties. The parties further stipulated that the Petitioner had been certified by the Board to sit for the examination on November 2, 1979, that Petitioner's application submitted to the Board was genuine and admissible, that the examination and grading key were genuine and admissible for purposes of the hearing, and that the examination and grading key admitted into evidence were to be sealed from public view. After review of the examination, the grading key, and the Petitioner's answers to the examination, those documents have been sealed by the undersigned.

   Petitioner presented the testimony of himself, Anthony Taylor, and Professor William Hillison. Respondents presented the testimony of Kenneth Dunworth and Allen Rex Smith, Jr.

   
   

   Post-hearing proposed orders and memoranda were submitted by the parties hereto. To the extent that those findings of fact have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence or as having been irrelevant to the issues under consideration herein.

   
   

   FINDINGS OF FACT

   
   

   1. Petitioner is a registered electrical contractor doing business as Howard Hall Electric.

      
      

   2. On October 16, 1979, Petitioner filed his application to become a certified electrical contractor. Prior to filing his application, Petitioner knew the next examination for such certification was scheduled to be given on November 2, 1979.

      
      

   3. At its meeting on October 18 and 19, 1979, the board approved Petitioner's application to sit for the Electrical Contractors' Certification Examination. By letter dated October 24, 1979, the Board advised Petitioner of the approval and provided Petitioner with information concerning the November 2, 1979, examination. The information provided included a listing of those areas of competency to be covered by the certification examination, and specifically set forth that the examination would include problems relating to accounting.

      
      

   4. Petitioner was provided by the Board a reference book list of those books permitted to be utilized during the "open-book" examination. The list did not include a reference book for accounting.

      
      

   5. Petitioner took the examination on November 2, 1979. On December 3, 1979, the Board directed a letter to the Petitioner advising him that he had failed the examination, having achieved a score of 67.

      
      

   6. The rules of the Board require that a score of 70 be attained in order to pass the examination. Of the candidates taking the examination on November 2, 1979, 20 persons of the 26 sitting for the examination were successful. Further, 19 of the 24 persons taking the accounting portion of the examination were successful.

      
      

   7. Petitioner requested a review of his examination, and such review was afforded to him by the Board. Additionally, an analysis of the examination itself was performed by the Office of Examination Services of the Department of Professional Regulation. The Board, which had drafted the examination, reviewed the examination and Petitioner's answers to the questions thereon and determined that the examination was fair and properly graded as to the Petitioner. The Office of Examination Services performed an item analyzation as to the number of candidates responding correctly and incorrectly as to each question on the examination. Although the Office of Examination Services determined that several questions on the examination could have misled some candidates, most candidates responded correctly, and most candidates successfully passed the examination.

      
      

   8. Although one of the books on the reference list provided by the Board was out of print and unavailable, the examination contained no questions dealing with that subject matter

   9. In performing its analysis of the examination, the Office of Examination Services contacted Professor William Hillison of Florida State University to obtain his opinion of the questions in the accounting section of the examination. Dr. Hillison felt that most of the questions in the accounting section were capable of being answered correctly by Florida State University students in their sophomore year in the introductory accounting courses offered by that school. Although Professor Hillison believed that several of the questions in the accounting section were problematic as to the terminology utilized, no testimony was presented that his students would be unable to answer the questions or that the questions were beyond a level of expertise expected to be possessed by a businessman having a general knowledge of management, finance, accounting, and any other functional areas of business.

      
      

      CONCLUSIONS OF LAW

      
      

   10. Pursuant to Part II of Chapter 489, Florida Statutes, Respondent Board was created within the Respondent Department. Further, the Board was charged with certifying for licensure persons possessing the competency necessary to become a certified electrical contractor. Part II of Chapter 489, Florida Statutes, requires for certification, inter alia, successful completion of the certification examination. The areas of competency to be covered by the certification examination are set forth in Chapter 21GG-6.01 of the Florida Administrative code. Although that rule became effective after the November 2, 1979, examination, Emergency Rule 21GG-ER-79 in effect at that time set forth identical areas of competency to be tested. The specific area pertinent to this cause is "general business, which shall include but not be limited to, problems relating accounting "

       
       

   11. Petitioner's first contention, inadequate notice of the examination date, is immaterial to the disposition of this cause in view of the fact that he was aware of the examination date prior to the time that he submitted his application in order that he might be permitted to take the certification examination on November 2, 1979. Petitioner cannot now be heard to complain of inadequate preparation time in view of the fact that that decision was his. No Legal requirement setting forth a minimum notification time has been cited.

       
       

   12. Petitioner's second contention, regarding the incomplete and/or inaccurate reference book list, is also immaterial to the disposition of this cause. No questions appeared on the examination in the area of law for which the one out-of-print publication was listed. Additionally, no legal requirement has been found requiring that candidates for the certification examination be provided materials for every area of competency to be covered.

       
       

   13. Pursuant to Part II of Chapter 489, Florida Statutes, passage of the state certification examination is a prerequisite to licensure. By failing the examination, Petitioner has failed to meet all prerequisites to licensure set forth in Chapter 489. Pursuant to the statutory scheme, a "registered electrical contractor" possesses a geographically limited registration license; on the other hand, a "certified electrical contractor" possesses a geographically unlimited certificate of competency. Under this major distinction, a certified electrical contractor need not comply with local municipal or county requirements. Accordingly, Section 489.511, Florida Statutes, requires the Board to investigate the financial responsibility of the applicant. To that end, a portion of the certification examination tests the applicant's general business acumen.

   14. Dr. Hillison's testimony, while enlightening as to students, failed to indicate that the accounting portion of the examination in question exceeded a level of difficulty or contained arbitrarily drafted questions for certification of a person to be certified by the Beard as being financially responsible and knowledgeable.

       
       

   15. The thrust of petitioner's attack on the accounting portion of the examination is that had he answered several more questions correctly, he would have passed the examination. Such an argument is logical, but fails to take into account that had Petitioner answered correctly several additional questions on any portion of the examination, he would have successfully achieved the minimum grade required.

       
       

   16. Petitioner has failed to carry his burden to show that the examination in question was improperly drafted or administered or graded as to him, and further has failed to show that the Board acted in an arbitrary or capricious manner or otherwise abused its discretion in the preparation, administration, or grading of the examination. Rather, the Board possesses ample statutory authority to require the applicant to demonstrate knowledge of accounting and other financial matters. It is not within the province of the undersigned to require that the Petitioner be licensed in view of his failure to present substantial competent evidence that his failure of the examination was caused by the Board, or that he has met all prerequisites for licensure. State ex rel. Lane v. Dade County, 258 So.2d 347 (3 DCA Fla. 1972); State ex rel. I. H. Topp

v. Board of Electrical Examiners for Jacksonville Beach, 101 So.2d 583 (1 DCA Fla. 1958).

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED THAT:

Petitioner's application for licensure as a certified electrical contractor be denied.

RECOMMENDED this 7th day of May, 1980, in Tallahassee, Florida.

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings Department of Administration

Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Paul A. Lehrman, Esquire

103 North Gadsden Street Tallahassee, Florida 32301

Patricia R. Gleason, Esquire Assistant Attorney General Department of Legal Affairs The Capitol

Tallahassee, Florida 32301

Frederick H. Wilsen, Esquire Legal Section

Department of Professional Regulation 2009 Apalachee Parkway

Tallahassee, Florida 32301

Nancy Kelley Wittenberg, Secretary Department of Professional Regulation The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

Docket for Case No: 80-000414

Orders for Case No: 80-000414