Judges: SHARYN L. SMITH
Agency: Department of Business and Professional Regulation
Latest Update: Dec. 04, 1990
Summary: Petitioner didn't tell examiners of hearing impairment and didn't prove this caused his poor performance on the exam. Petitioner's relief denied.
82-0539STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JOHN A. LOVE, )
)
Petitioner, )
)
vs. ) CASE NO. 82-539
)
DEPARTMENT OF PROFESSIONAL )
REGULATION, Construction Industry ) Licensing Board, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, SHARYN L. SMITH, held a formal hearing in this case on July 20, 1982, in Coral Gables, Florida. The following appearances were entered.
APPEARANCES
For Petitioner: Peter D. Blanc, Esquire
Post Office Box 1108
West Palm Beach, Florida 33402
For Respondent: Stephanie A. Daniel, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
The issue for determination in this case is whether the Petitioner John A. Love is entitled to a passing grade on the contractor's licensing examination administered June 4 and 5, 1981, in Miami, Florida.
At the final hearing John A. Love, Susan Love and Terry Verner testified for the Petitioner. David Martin, Ann Carlson, Lynda Kissel, Carol Bales and Nancy Brown testified for the Respondent and Respondent's Exhibits 1-6 were offered and admitted into evidence.
Proposed findings of fact and conclusions of law have been submitted by the parties. To the extent that those findings submitted by the parties are not reflected in this order, they are rejected as being either not supported by admissible evidence or as being irrelevant to the issues determined here.
FINDINGS OF FACT
On June 4 and 5, 1981, Petitioner John A. Love sat for the general contractor's licensing examination at Bayfront Auditorium in Miami, Florida. The exam which was administered consisted of three parts. The first part was
given the morning of the first day. The second part was given the afternoon of the first day and the third part was given the second day.
The Petitioner Love arrived at the auditorium approximately twenty minutes prior to the scheduled starting time of the June 4th exam. Upon arrival the Petitioner Love discovered that the doors to the auditorium were locked and he was required to remain outside in the rain until the doors were open at approximately 7:00 a.m.
Once inside the auditorium, the Petitioner Love was given an assigned seat which was located in the rear right center of the room.
After being seated, the Petitioner was given the plans and specifications for the exam and told not to open or observe them until told to do so.
At about 7:30 a.m. a proctor instructed all examinees to check their examination area to determine if they each had a set of plans and specifications which should have consisted of fifteen pages of plans and nineteen pages of specifications. Examinees were instructed to raise their hands if they did not have all exam materials. The proctors repeated the instructions regarding the number of plans and specifications two or three times. Examinees were also instructed to count the number of pages of plans and specifications in their booklets.
After these instructions were given, the examinees were given thirty
(30) minutes to study their plans and specifications.
At no time prior to the commencement of the construction examination did Petitioner Love raise his hand to indicate he was missing any exam materials. The Petitioner Love did not check his plans and specifications when instructed to do so by the proctor.
The construction examination began after the instructions were completed. At that time, all examinees were instructed to open their examination booklets. Inside the booklet was a cover sheet on which was written "Important Instructions--Read Carefully." On the same page was an instruction detailing both the number of pages and plans that the examinee should have and a brief description of what each page should contain. At the end of the instructions was printed, "If you do not have all of these sheets, raise your hands." Petitioner Love failed to read this page of instructions.
Approximately two hours after the morning portion of the examination had begun, Petitioner Love raised his hand and informed a proctor that he was missing a page from his plans. Petitioner discovered the missing page when a person seated near him raised his hand to indicate he was missing a page from the plans.
The missing page was promptly provided by the proctor; with the process of replacing the sheet taking approximately 5-10 minutes.
When the Petitioner Love notified the proctors of the missing page, he was on question twelve of the exam.
The Petitioner's scores were 75 percent on the first part, 90 percent on the second part and 45 percent on the third part which gave him an overall
grade of 68.70 percent. A grade of 69.01 percent was required to achieve a passing grade.
On the first part of the exam the Petitioner missed four questions prior to the challenged incident and only one following it.
Petitioner Love has a hearing impairment directly related to his previous occupation as a firefighter. However, the Petitioner never informed the Respondent of his impairment prior to the exam so that special arrangements would be made to accommodate him.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this dispute.
In this proceeding, the Petitioner Love has requested that his grade on part one of the construction examination be adjusted to compensate for the problems he encountered during the examination. These problems included pages missing from the examination booklets and a lack of special consideration for examinees such as the Petitioner who suffered from hearing disabilities.
The answer sheet for part one, Respondent's Exhibit 4, reflects that the Petitioner missed four questions prior to reaching question twelve and following the missing page incident, Petitioner Love missed only one examination question. The Petitioner apparently completed the examination and as reflected by the answer sheet, did significantly better on that portion of the exam which occurred following the incident in question Indeed, the Petitioner scored highest on the afternoon portion of the first day exam, the portion which followed the missing page incident.
The procedures utilized by the Department to ensure that examinees are provided accurate and complete examination booklets and materials were reasonable under the circumstances. The responsibility for ensuring that examinations be conducted fairly and that all examinees receive the same complete examination booklets is on the Department. Recognizing that some problems will invariably occur as a result of human error, the Department has attempted to follow a procedure which requires all examinees to check their booklets and materials prior to an exam. The fact that due to a physical problem the Petitioner Love did not hear the instructions prior to the exam does not mandate that his grade be adjusted in this case. Had the Petitioner timely informed the Department of his hearing problem, special arrangements would have been required to have been provided so that the Petitioner could have clearly heard the exam instructions. However, the Department cannot be responsible for failing to provide special services for those who do not request them. See York
v. State ex rel. Schwcaid, 10 So.2d 813 (Fla. 1943) and Civil Service Board v. Fonner, 181 So.2d 595 (Fla. 3rd DCA 1965).
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying the Petitioner's request
that his grade on part one of the June 4, 1981, general contractor's licensing
examination be adjusted to reflect an overall passing grade.
DONE and ORDERED this 9th day of September, 1982, in Tallahassee, Florida.
SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 1982.
COPIES FURNISHED:
Peter D. Blanc, Esquire Post Office Box 1108
West Palm Beach, Florida 33402
Stephanie A. Daniel, Esquire Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
James Linnan Executive Director
Construction Industry Licensing Board Post Office Box 2
Jacksonville, Florida 32202
Samuel R. Shorstein Secretary
Department of Professional Regulation Old Courthouse Square
130 North Monroe Street Tallahassee, Florida 32301
Docket for Case No: 82-000539
Orders for Case No: 82-000539
| Issue Date |
Document |
Summary |
|
Oct. 21, 1982 |
Agency Final Order
|
|
|
Sep. 09, 1982 |
Recommended Order
|
Petitioner didn't tell examiners of hearing impairment and didn't prove this caused his poor performance on the exam. Petitioner's relief denied.
|
