STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RONALD D. YANKS, )

)

Petitioner, )

)

vs. ) CASE NO. 89-1859

) 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, Claude B. Arrington, held a formal hearing in the above-styled case on June 14, 1989 in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Charles L. Neustein, Esquire

Charles L. Neustein, P.A. 801 41st Street, 5th Floor Miami Beach, Florida 33140

For Respondent: George W. Harrell, Esquire

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUES

Whether Petitioner correctly answered two questions on the certified general contractor's examination for which he received no credit, and, if so, the relief to which Petitioner is entitled.

PRELIMINARY STATEMENT

Petitioner sat for the certified general contractor examination on October 14-15, 1988. After receiving notification that he passed one part of the examination, but that he failed the other two parts of the examination, Petitioner challenged the Respondent's grading of two questions. The parties stipulated that the two questions, Number PM 10 and Number CA 10, had been timely and properly challenged. The parties further stipulated that any challenge by Petitioner to any other question was abandoned.

Prior to the beginning of the hearing, the Petitioner's pending emergency motion which sought an order compelling the production of certain documents and the imposition of sanctions was denied.

At the final hearing, Petitioner testified on his own behalf and called three expert witnesses Respondent called one expert witness. The only documentary evidence presented by either party were the two examination questions which were accepted as Hearing Officer exhibits.

At the parties' request, a deadline was established for filing proposed findings of fact or other post-hearing submissions that was more than ten days after the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 22I-6.031, Florida Administrative Code. The parties' proposed findings have been addressed in the appendix to this recommended order.

Because the examination questions are made confidential by Section 455.230, Florida Statutes, the questions challenged by the Petitioner will be discussed in general terms.

FINDINGS OF FACT

1. Respondent is the state agency charged with the duty of regulating general contractors in the State of Florida. An applicant for certification as a general contractor must pass the examination administered by Respondent as a prerequisite to, certification. Section 489.113(1), Florida Statutes.

   
   

2. Petitioner sat for the certified general contractor's examination on October 14-15, 1988.

   
   

3. Petitioner passed one part of the examination, but he did not pass the other two parts of the examination.

   
   

4. Petitioner timely and properly challenged the grading of two examination questions for which he received no credit, to wit: Question Number PM 10 and Question CA 10. Petitioner abandoned any challenge he may have had to other questions.

   
   

5. Question PM 10, a multiple choice question, required Petitioner to apply one of the sections of the Standard Building Code to a factual problem. The question required both a correct construction of the provision and a correct application of the provision. Petitioner misconstrued the provision and therefore missed the problem.

   
   

6. Respondent gave Petitioner no credit for his answer to Question PM 10 because Petitioner gave the wrong answer to the question.

   
   

7. Question CA 10, also a multiple choice question, required Petitioner to correctly construe the question presented and to respond accordingly. This question involved a change order and the payment therefor. In computing the amount that he would charge the owner, Petitioner included charges for the removal of certain materials that the contractor would have to remove in order to perform his contract. Those costs should be allocated to the contractor, not to the owner. Petitioner misconstrued the question and therefore missed the problem.

   
   

8. Respondent gave Petitioner no credit for his answer to Question CA 10 because Petitioner gave the wrong answer to the question.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes, Rule 21-11.012, Florida Administrative Code.

   
   

10. Section 489.113(1), Florida Statutes, provides, in pertinent part, as follows:

    
    

    1. Any person who desires to engage in contracting on a statewide basis shall, as a prerequisite thereto, establish his competency and qualifications to be certified pursuant to this part. To establish his competency, a person shall pass the appropriate examination administered by the department.

       
       

11. Petitioner has the burden of establishing by a preponderance of the evidence that Respondent's decision to allow no credit for either of the two challenged questions constitutes arbitrary and capricious action. State ex rel. Glasser v. J.M. Pepper, et al., 155 So.23d 383 (Fla. 1st DCA 1963). Petitioner has failed to meet that burden.

    
    

12. Section 455.230, Florida Statutes, provides, in pertinent part, as follows:

Notwithstanding any other provision of this chapter, examination questions and answers shall not be subject to discovery, but may be introduced into evidence and considered only in camera in any administrative proceeding under Chapter 120. ... In any subsequent administrative hearing the department shall provide challenged examination questions and answers to the hearing officer. Examination questions and answers so provided at the hearing, which are not invalidated, shall be sealed and not open to pubic inspection.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Respondent, State of Florida, Department of Professional

Regulation, enter a final order which finds that Petitioner abandoned his challenges to all questions except Question PM 10 and Question CA 10 and which denies Petitioner's challenges to Question PM 10 and to Question CA 10. It is further recommended that the two questions filed as exhibits in this proceeding be sealed.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 11th day of August, 1989.

CLAUDE B. ARRINGTON

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-1859

The proposed findings of fact submitted on behalf of Petitioner are addressed as follows:

1. The proposed findings found in the first full paragraph of Petitioner's proposed recommended order are addressed in paragraphs 1, 2, 3, and 4.

2. The proposed findings found in the second and third full paragraphs of Petitioner's proposed recommended order are addressed, in part, in paragraph 5. The proposed findings are rejected, in part, as being subordinate to the findings made in paragraph 5.

3. The proposed findings found in the fourth full paragraph of Petitioner's proposed recommended order are addressed, in part, in paragraph 7. The proposed findings are rejected, in part, as being subordinate to the findings made in paragraph 7.

4. The proposed findings found in the fifth full paragraph of Petitioner's proposed recommended order are rejected as being recitation of testimony.

The proposed findings of fact submitted on behalf of Respondent are addressed as follows:

1. Addressed in paragraph 2 - 3.

2. Addressed in paragraph 4.

3. Addressed in part in paragraph 4. Rejected in part as being unnecessary to the conclusion reached.

4 - 10. Rejected as being recitation of testimony and as being subordinate to the findings made.

11. Rejected as being unnecessary to the conclusion reached.

COPIES FURNISHED:

George W. Harrell, Esquire

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Charles L. Neustein, Esquire 801 41st Street - 5th Floor Miami Beach, Florida 33140

Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2

Jacksonville, Florida 32202

Docket for Case No: 89-001859

Orders for Case No: 89-001859