STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

W. EDWIN CONNERY, )

)

Petitioner, )

vs. ) CASE NO. 88-0232

) DEPARTMENT OF PROFESSIONAL ) REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on July 11, 1988, and October 17, 1988 at Tallahassee, Florida, before Veronica E. Donnelly, a duly designated Hearing Officer of the Division of Administrative Hearings.

Appearances for the parties at the hearing were as follows:

For Petitioner: W. Edwin Connery, pro se

5794 Southwest 6th Court Cape Coral, Florida 33914

For Respondent: William A. Leffler, III, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

By letter dated February 2, 1988, the Petitioner requested a hearing to contest the failing grade he received on the Building Contractors Examination of June 26-27, 1987, which was taken to qualify for licensure as a building contractor. The Petitioner challenges the exam process in three distinct areas:

1. The Petitioner contends that his individual rights as a reexamination candidate were substantially affected by the change in format of the June 1987 exam. 2) The examination given was an invalid examination. 3) The examination was improperly scored.

   
   

   During the hearing, the Petitioner called four witness and submitted eight exhibits. The Respondent presented four exhibits, and filed one exhibit post hearing. All of the exhibits, except Petitioner's Exhibit #5 were admitted into evidence. The Petitioner requested additional time beyond the ten day time requirement to file his proposed findings of fact. The Respondent waived its right to submit proposed findings. Rulings on the proposed findings submitted by Petitioner are in the Appendix to the Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   1. In order for the Petitioner to obtain his license as a building contractor in Florida, he is required to successfully complete a certification examination which consists of three tests. The examination is prepared by the

      ACSI National Assessment Institute and administered by the Department of Professional Regulation.

      
      

   2. The June 1987, examination involved a new format, new scoring methods, and areas of competency which had not been tested in previous exams.

      
      

   3. A post examination report prepared by the Office of Examination Services of the Department of Professional Regulation reveals that, while forty seven per cent of the examinees passed at least one part of the examination, only seven per cent passed the entire examination. Historically, pass rates for previous examinations ranged from thirty five to fifty five per cent.

      
      

   4. The reasons given for the low pass rate on this particular exam by the Office of Examination Services were: 1) Candidates are currently required to demonstrate competency in each of the three content areas. If the exam was graded in the same manner as the grading method used in prior exams (compensatory scoring), the pass rate would have increased to twenty one per cent in this examination. 2) Whenever an examination is significantly changed, the performance of the candidates will decrease until they prepare for the demands of the new examination. 3) There appeared to be a time problem. Many of the candidates did not timely complete the answers to all of the questions in the second and third test.

      
      

   5. The Petitioner was not prepared for the new format. The review course taken by him shortly before the exam did not alert him to the changes approved by the Board. As a reexamination candidate, his expectations as to exam content were even more entrenched than those of first time candidates. The Petitioner failed all three tests in the exam.

      
      

   6. A review of the Petitioner's score sheets on all three tests reveal that he timely completed all of the answers, so the time problem does not appear to have affected his results.

      
      

   7. If the compensatory scoring method had been used on this exam, as it had been in prior exams, the Petitioner would still not have passed the examination administered in June 1987.

      
      

   8. The Petitioner did not demonstrate that the Respondent failed to follow standard procedures for conducting or grading the examination. The Petitioner was not treated differently from other candidates who took the examination. Although the content in this exam was different than the preceding exam, the content of the exam had been properly promulgated in Rule 21E-16.001, Florida Administrative Code, as amended May 3, 1987.

      
      

   9. The Respondent has agreed to allow the Petitioner the opportunity to take the next scheduled examination, without charge.

      
      

      CONCLUSIONS OF LAW

      
      

   10. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

       
       

   11. Because the construction industry is regulated in Florida, the Legislature has enacted law requiring persons who seek licensure to meet certain educational and experience criteria in order to be entitled to take the Construction Examination. Section 489.111, Florida Statutes. To become

       licensed, the candidate must pass the examination. Section 489.113, Florida Statutes.

       
       

   12. The content of the examination, the grading criteria to be used in considering the adequacy of an candidate's response to the requirements of the examination, as well as the criteria for determining passing grades are contained in Rules 21E-16.O01 and 21E-16.005, Florida Administrative Code.

       
       

   13. The Petitioner in this case was a reexamlnation candidate during the June 1987 examination. As to reexamination, the only legal entitlement granted to the candidate is the right to take the next subsequent exam upon the payment of the reexamination fee. Rule 21E-16.002, Florida Administrative Code. There is no legal requirement that the subsequent examination be similar in format or content to the preceding exam as long as the subsequent exam tests the general areas of competency listed in Rule 21E-16.001, Florida Administrative Code.

       
       

   14. Between the time the Petitioner first took his exam and the reexamination, the contents of Rule 21E-16.001, Florida Administrative Code, was changed. The changes to the rule were duly promulgated, and became effective May 3, 1987. As a result of these changes, the areas of competency and the passing score required of a candidate were significantly changed.

       
       

   15. The Petitioner contends that the June 1987 examination was an invalid exam. Even if this were to be proved by the Petitioner, the appropriate remedy under Florida law is to seek an order directing that the candidate be given a valid examination. State ex. rel. Lane v. Dade County, 258 So.2nd 347 (Fla. 3d DCA 1972), Alvarez, et al. v. Department of Professional Regulation, 458 So.2d 808 (Fla. 1st DCA 1984). Because the Respondent has already agreed to allow the Petitioner to retake the examination at no cost to him, the Petitioner has only one additional remedy beyond the one offered by the Respondent.

       
       

   16. Because this case involves a reexamination where the tested areas of competency were changed from the first exam, the Petitioner will now take his third examination. As the current Rule 21E-16.001 has no effect on Rule 21E- 16.002, the Petitioner's first examination will still be considered as his first test attempt. The problem in this case under the current rules occurs because of the Petitioner's exercise of his right to an administrative hearing.

       
       

   17. Pursuant to the current Rule 21E-16.O01, if the candidate does not pass the new exam within three consecutive administrations of the exam, he shall be required to make a new application and pay all appropriate fees. In this case, the second administration of this examination took place in October,

       1987. The third administration took place in June of 1988. The Petitioner did not sit for these exam sessions because his June 1987 exam challenge was pending before the Division of Administrative Hearings.

       
       

   18. In order to give the Petitioner the same treatment which would be afforded to other candidates, it appears that the appropriate remedy would be to waive the requirement that he pass all three tests during three consecutive exams, and require that he pass the tests during the next two examinations, due his intervening exam challenge.

       
       

   19. Any other remedies are beyond the function of the Hearing Officer because the Construction Industry Licensing Board has the ultimate responsibilities for the licensure process. Boards empowered to license persons wishing to engage in a particular business or profession usually exercise a discretionary function in such matters. Courts will not interfere in this

process unless an applicant for licensure proves arbitrary abuse of discretion, which amounts to virtual refusal of a board to perform its duties. State ex. rel. I.H. Topp v. Board of Electrical Examiners, 101 So.2nd 583 (Fla. 4th DCA 1958); Sanitarian's Registration Board v. Solomon, 148 So.2nd 744 (Fla. 1st DCA 1961); Harrac v. Department of Professional Regulation, 484 So.2nd 1333 (Fla.

3rd DCA 1986).

Based upon the foregoing, it is RECOMMENDED:

1. That the Petitioner be allowed to sit for the next licensure examination, without charge.

   
   

2. That the next examination be considered the "next consecutive examination" taken by the Petitioner for purposes of Rule 21E-16.002, Florida Administrative Code.

DONE AND ENTERED this 13th day of December, 1988, at Tallahassee, Florida.

VERONICA E. DONNELLY, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0232

Petitioner's proposed findings of fact are addressed as follows:

1. Rejected. These allegations are contrary to the evidence presented at hearing. See HO#8.

2. Rejected. See HO#8.

3. Rejected. Conclusionary. See HO#8.

4. Rejected. Conclusionary and contrary to fact. Accept that the Petitioner was offered and granted a reexamination. See HO#9.

5. Rejected. See HO#8. Beyond the jurisdiction of The Division of Administrative Hearings.

6. Rejected. Beyond the jurisdiction of The Division of Administrative Hearings.

COPIES FURNISHED:

W. Edwin Connery

5794 Southwest 6th Court Cape Coral, Florida 33914

Bruce D. Lamb, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

William A. Leffler, III, Esquire Florida Department of Professional

Regulation

330 North Monroe Street Tallahassee, Florida 32399-0750

Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2

Jacksonville, Florida 32201

Docket for Case No: 88-000232

Orders for Case No: 88-000232