STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAUL E. CURTIS, )

)

Petitioner, )

)

vs. ) CASE NO. 88-4409

) CONSTRUCTION INDUSTRY ) LICENSING BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Tampa, Florida on December 8, 1988, before Arnold H. Pollock, Hearing Officer. The issue for consideration was whether the Respondent should be granted an additional opportunity to take the contractor's licensing examination.

APPEARANCES

Petitioner: Arnold D. Levine, Esquire

100 South Ashley Drive, Suite 1600 Post Office Box 3429

Tampa, Florida 33601-3429

Respondent: Clark R. Jennings, Esquire

Assistant Attorney General Suite 1603, The Capitol

Tallahassee, Florida 32399-1050 BACKGROUND INFORMATION

On February 28, 1988, Respondent requested the Florida Construction Industry Licensing Board, (Board), to extend him one additional examination session as a replacement for the October 22/23, 1987 session which he did not attend because, allegedly, he did not receive his admission ticket until after the session was held. On July 18, 1988, the Board's Examination Department denied Petitioner's request and on August 1, 1988, Petitioner appealed. The Board rejected Petitioner's appeal and he was advised that he might request a formal hearing which was done on August 25, 1988. Thereafter, on September 6, 1988, the file was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer and on September 28, 1988, the hearing was set for December 8, 1988 at which time it was held as scheduled.

At the hearing, Petitioner testified in his own behalf and presented the testimony of Doris P. Tillman, office manager for Curtoom, Incorporated; and Wilhelmina Curtis, Petitioner's wife and unofficial bookkeeper at Curtoom.

Petitioner also introduced Petitioner's Exhibits 1 and 2. Respondent presented the testimony of Cheryl D. Berry, senior clerk for the Board's Examination Department, and introduced Respondent's Exhibit A.

A transcript of the proceeding was furnished but neither party submitted Proposed Findings of Fact.

FINDINGS OF FACT

1. The Construction Industry Licensing Board, (Board), is the state agency in Florida charged with the responsibility of regulating contractors. As a part of this function, it periodically administers written examinations to applicants to determine their qualification to be certified or registered with the various counties as contractors in this state.

   
   

2. At some time prior to August, 1987, Petitioner, Paul E. Curtis, made application to the Board to take the October, 1987 examination. As a result of his application, which was submitted sometime in June or July, 1987, he received several pieces of correspondence from the Board requesting additional information. In early August, 1987, the Board advised Petitioner that he did not qualify for license examination at that time and requested even additional information. This request for additional information was mailed to the Respondent on August 27, 1987, and Petitioner had ten days to respond. He was very late in doing so, not submitting the requested information until September 25, 1987. Nonetheless, even though he could have been disqualified on that basis, the Board determined he was qualified to sit for the examination and mailed his examination admission card to him on September 29, 1987.

   
   

3. At the time the admission card was mailed to Petitioner, his name was listed on the Department's sight book indicating the candidate number, the date of the examination to be taken, and the date the admission card was sent. All admission cards are mailed by United States Mail. To the best of the knowledge of Ms. Berry, Examination Branch clerk, candidates whose admission cards were mailed out subsequent to the date on which Petitioner's card was mailed apparently received them as they did sit for the examination in question on October 22 and 23, 1987.

   
   

4. Petitioner, however, did not sit for the examination. He contends that as of the date of the examination, he had not received his admission card. Evidence uncontroverted by the Respondent tends to indicate that the admission card was not received by the Petitioner until October 26, 1987, a date subsequent to the examination dates. This was supported by the testimony of Ms. Tillman, the office manager, who personally recalled opening the letter from the Board which contained the admission card and applying the current date stamp to it as was routine practice on the day the card was received. That was October 26, 1987. This was confirmed by the unofficial bookkeeper, Mrs. Curtis. She indicated that because Petitioner had been looking forward to some communication from the Board, all employees had been notified to look out for any Board correspondence, to open it immediately upon receipt, and to get it to Petitioner as soon as it was stamped in. This procedure was followed and according to both Ms. Tillman and Mrs. Curtis, the stamp was placed on the document the day it was received and it was immediately delivered to Petitioner. By this time, the examination had already been given.

   
   

5. Petitioner subsequently sat for the examination on the two sessions following that of October 22/23, 1987 and has successfully passed three of four sections of the examination. Rules of the Board, however, require that in order to be licensed, a candidate must pass all sections of the examination in three consecutive sessions. The Board has taken the position that Petitioner's failure to sit for the examination at the first session after his qualification

   as eligible to take it, on October 22/23, 1987, constitutes his use of the first of three sessions. Therefore, even though he need not submit a new application and pay a new application fee, and though he need not submit new evidence of eligibility, he must again take and successfully pass all four sections of the examination. The three which he has already passed will no longer count.

   
   

6. Ms. Berry asserts that Petitioner had the responsibility to call the Examination Branch and find out if he was eligible to sit if he had not received his admission card prior to the examination date. She relates that had he done so, he would have been advised of his qualification number and with that and identification, could have been admitted to take the examination if he had presented himself at the examination site on the date scheduled. This procedure outlined by Ms. Berry, however, is nowhere made known to any applicant and is not a requirement of the Board.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes.

   
   

8. Under the provisions of Section 489.111(1), Florida Statutes, any person who desires to be certified as a contractor in this states shall apply to the Department of Professional Regulation in writing to take the certification examination. A person shall be entitled to take the examination if he or she meets the qualifications outlined in Section 489.111(2)(a) through (c). The board may refuse to certify an applicant for failure to satisfy the requirement of good moral character only if one of the conditions outlined in Section 489.111(3)(a) exist. This Petitioner was ultimately determined qualified to take the examination.

   
   

9. Consistent with the provisions of Section 489.108, the board promulgated certain rules governing the taking of the certification and registration examinations. Rule 21E-15.0015(2), F.A.C. states:

   
   

   Admission cards and instructions shall be sent to approved candidates approximately fifteen (15) days prior to the examination.

   
   

10. No alternative method is mentioned for an applicant to determine if he or she has been deemed approved nor is the candidate advised to check with the Board to confirm his or her status in the event an admission card is not forthcoming prior to examination date.

    
    

11. As Ms. Berry pointed out, an applicant can only take the examination three times before having to take it again and the three attempts must be consecutive. Rule 21E-16.001(c)2 provides:

    
    

    An applicant shall be required to retake only the tests on which he or she failed to achieve a passing score. However, an applicant must pass all three tests within any three consecutive administrations of said tests. If an applicant has not passed all three tests within three consecutive administrations (all past test scores of the applicant

    shall be considered invalid), he or she shall be required to ... [pay the fees and file a new application]

    
    

12. The uncontroverted evidence of record indicates that Petitioner's admission card was not received by him until October 26, 1987. This date is subsequent to the examination date. Evidence that others whose admission cards were sent out after that of Petitioner did take the examination does not demonstrate that he received his or overcome the direct testimony of Petitioner and his employees that the ticket was received after the examination was given. Since he did not receive notice of his eligibility and authorization to take the examination on time, he could not be reasonably held to have waived his opportunity to take the examination. That he may have found out an alternative method of securing entrance to the examination had he called and inquired is irrelevant. None of the requirements for licensure require such action on the part of an applicant.

    
    

13. The agency rule pertinent here provides for the issuance of an admission card within fifteen days of an examination. That is all the rule provides and for the Board to now state that Petitioner must suffer the consequences of its error or the error of the postal service is an unreasonable and arbitrary implementation of a change in requirements. Agencies must honor their own substantive rules until they are amended or abrogated [properly], Gadsden State Bank v. Lewis, 348 So.2d 343 (Fla. 1st DCA 1977).

    
    

14. Since, therefore, Petitioner did not have the reasonable opportunity to take the examination because his admission card had not been received at the time of the examination, it would be patently improper to require him to retake and pass the three sections he has already passed and he should be given an opportunity to take the examination for the section he has not passed to make up for the October 22/23 1987 that he unavoidably missed.

RECOMMENDATION

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

RECOMMENDED that Petitioner, Paul E. Curtis, be afforded an opportunity to sit for that part of the Contractor's examination that he has not already passed and that he not be required to take the entire examination over.

RECOMMENDED this 20th day of January, 1989, at Tallahassee, Florida.

ARNOLD H. POLLOCK

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 20th day of January, 1989.

COPIES FURNISHED:

Arnold D. Levine, Esquire

100 South Ashley Drive Suite 1600

Post Office Box 3429 Tampa, Florida 33601-3429

Clark R. Jennings, Esquire Assistant Attorney General Suite 1603, The Capitol

Tallahassee, Florida 32399-1050

Fred Seely, Executive Director DPR, Construction Industry

Licensing Board Post Office Box 2

Jacksonville, Florida 32201

General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 88-004409

Orders for Case No: 88-004409