STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DENNIS JOHN HUJAR, )

)

Petitioner, )

)

vs. ) CASE NO. 89-4313

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, CONSTRUCTION INDUSTRY ) LICENSING BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on October 11, 1989, in Tampa, Florida.

APPEARANCES

For Petitioner: Robert Koning (qualified representative) 8301 Joliet Street

Hudson, Florida 34667

For Respondent: E. Harper Field, Esquire

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUES

Whether petitioner should have received a passing grade on the February 1989 certified residential contractor's examination.

PRELIMINARY STATEMENT

On an undisclosed date, petitioner, Dennis John Hujar, received advice from respondent, Department of Professional Regulation, Construction Industry Licensing Board, that he had received a failing grade (68) on the February 1989 certified residential contractor examination. After an informal grade review session was conducted, petitioner requested a formal hearing under Subsection 120.57(1), Florida Statutes (1987) to contest the agency's decision.

Specifically, petitioner contended that question 19 on the examination was ambiguous or otherwise improperly worded. The matter was eventually referred by respondent to the Division of Administrative Hearings on August 9, 1989, with a request that a hearing officer be assigned to conduct a hearing. By notice of hearing dated August 30, 1989, a final hearing was scheduled on October 11, 1989, in Tampa, Florida.

At final hearing, petitioner was represented by a qualified representative, Robert Koning, a licensed general contractor, who also testified on petitioner's behalf. Respondent presented the testimony of George Bruton, a Board consultant. Finally, hearing officer exhibits 1 and 2 were received in evidence. These exhibits are the question and answer being challenged and the source of authority for the correct answer.

The transcript of hearing was filed on October 23, 1989. Proposed findings of fact and conclusions of law were filed by respondent and petitioner on October 17 and 23, 1989, respectively. A ruling on each proposed finding is made in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. In February 1989, petitioner, Dennis John Hujar, was an examinee on the certified residential contractor examination The test is prepared under the direction of and administered by respondent, Department of Professional Regulation, Construction Industry Licensing Board (Department or Board).

   
   

2. Petitioner later received written advice from the Department that he had made a grade of 68 on the examination. According to agency rules, a score of at least 69.1 is required for passing. Petitioner then filed an appeal of his grade contending that question 19 was ambiguous. That prompted this proceeding.

   
   

3. The examination in question was prepared by the National Assessment Institute and contains three specific areas of testing, including business and financial management. The latter section includes questions on business law. Each item or question is drafted by a committee made up of representatives of the Department, Board and construction industry. After being drafted, the question is reviewed by the Department and Board for accuracy and content. However, the business law questions are not reviewed by attorneys prior to their use.

   
   

4. Question 19 was a business law question having a value of two points on an examinee's overall score. The parties agree that if Hujar had received two additional points he would have passed the examination.

   
   

5. Question 19 was designed to ascertain if the candidate could differentiate between a licensed and unlicensed contractor, the significance of that distinction, and the circumstances under which the recovery of profit and supervisory costs would be allowed. The question contained four possible answers, (a), (b), (c) and (d), one of which was a "good detractor" for the examinees. The correct solution was based on reference material contained in section 2.10 of the Florida Construction Law Manual, a copy of which has been received in evidence as hearing officer exhibit 2. As is pertinent here, that section provided as follows:

   
   

   Where a contractor or subcontractor has no license and enters into a contract, the contract is void for illegality. (citation omitted) The unlicensed contractor is not permitted to recover for lost profit.

   However, where work has already been done,

   the courts have allowed recovery on the basis of quantum meruit, but still deny recover of lost profit and cost of supervision. (citation omitted) In a case where the principal of a corporation was licensed as a general contractor for 17 years, but the corporation owned by the principal was not so licensed, a California court held that there was substantial compliance with licensing so as not to deny recovery of sums due. (citation omitted) Any person who is not licensed may not be considered as a lienor and may not have a mechanic's lien.

   (citation omitted)

   
   

6. Because of security and confidentiality constraints, the challenged question cannot be repeated verbatim herein. It is suffice to say that the problem posed a hypothetical situation involving a state licensed general contractor who utilized an out-of-state (or unlicensed) subcontractor for site work on a Florida project. After the subcontractor completed site work of a specified value, the initial draw request was submitted to the owner for reimbursement of that cost and a reasonable profit. A second invoice for site work was then submitted to the Florida contractor but not the owner. At the same time, the owner learned of the subcontractor's unlicensed status and halted work on the project. The question asked the amount of money that the owner would "most likely (be) liable for at the time of the due date for the initial draw." According to the answer sheet received in evidence as hearing officer exhibit 1, the owner was liable for the initial draw request at that time, including allowable overhead, but did not owe for the cost of the second invoice not yet submitted to him by the contractor. This response was consistent with the cited reference material.

   
   

7. Through his representative, petitioner claimed that the word "liable" most logically should be construed to mean the amount of money that the owner was ultimately liable to pay on the project although not necessarily at that point in time. Under this theory, the owner would have been responsible for a dollar amount at least equal to the contractors's cost in the initial draw plus the second but not yet submitted invoice for completion of the site work. If such an interpretation of the question was valid, petitioner's answer would have been correct. In this regard, it is noted that although there is no testimony as to the response given by Hujar on this question, it may be reasonably inferred that his answer was the same as that suggested by his representative. Koning contended further that in order to make correct the Board's response, the question should have asked for the owner's liability "at that time", thereby denoting that the ultimate liability was not in issue. It is noted that petitioner's representative is a licensed general, plumbing, roofing and underground utilities contractor and teaches the law manual as a preparatory course for the state examination. Petitioner is a former student.

   
   

8. Respondent's consultant, George Bruton, who is a licensed general contractor and assists in the preparation of examination questions, considered the question to be clear and unambiguous. According to Bruton, the question required a student to recognize that 100% of a subcontractor's invoice plus allowable overhead are due and payable in full at the time of the first draw. However, because the owner had not yet been invoiced for the remaining amount of site work, he would not be liable for that amount. Bruton discounted petitioner's suggested answer as being nonresponsive on the grounds the words

   "ultimate liability" did not appear in the question, and petitioner was assuming a condition not called for in the question. Since the question did not use the words "ultimate liability", and petitioner's interpretation is not the most reasonable one, it is found that the question was not so "substantially misleading and insufficient" as to warrant the invalidation of the question or to justify a different response.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division - of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1987).

   
   

10. As the party seeking to establish his entitlement to a passing grade, petitioner bears the burden of establishing the same by the preponderance of the evidence.

    
    

11. Rule 21E-16.003(5), Florida Administrative Code (1987) provides in part that an unsuccessful examinee may "petition for a hearing ... and clearly identify the question(s) that the examinee believes is ambiguous or the test solution(s) that the examinee believes is incorrect." Within that context, the narrow issue presented here is whether question 19 is so ambiguous or otherwise improperly worded as to justify the award of two additional points to petitioner for his suggested answer.

    
    

12. This appeal differs from those appeals where a subjective grading of a candidate's solution has been made. Thus, the requirement in Sanitarians' Registration Board v. Solomon, 148 So.2d 744 (Fla. 1st DCA 1962) and similar cases that the unsuccessful candidate "shoulders a heavy burden" in proving that the subjective grading by an expert was arbitrary does not apply. More relevant but not directly on point are the cases involving "misleading" or "insufficient" instructions to the examinee. In Alvarez v. Department of Professional Regulation, 458 So.2d 808, 811 (Fla. 1st DCA 1984), the court held that if an examinee could show that an agency's instructions were "substantially insufficient and misleading", a successful appeal would lie. This standard appears to be a reasonable gauge by which to measure the validity of petitioner's challenge. In this case, it is concluded that the candidate has failed to meet that burden. More specifically, the wording in the question is not so substantially insufficient and misleading as to warrant its invalidation or to allow an alternative response. Indeed, the more persuasive evidence reflects that the Board's interpretation of the question is the most reasonable. This being so, the appeal should be denied.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying petitioner's request to

receive a passing grade on the examination.

DONE and ENTERED this 26th day of October, 1989, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

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 26th day of October, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-4313

Petitioner:

1-2. Used in finding of fact 2.

1. Used in findings of fact 2 and 4.

2. Used in preliminary statement and conclusions of law.

3. Used in preliminary statement and finding of fact 8.

4. Used in finding of fact 7.

5. Rejected since it can be inferred that petitioner's response was choice

c.

Respondent:

Respondent's "summary of facts" has been treated as conclusions of law and therefore specific rulings have not been made. The document attached to the summary of facts is not of record and has accordingly been disregarded.

COPIES FURNISHED:

Mr. Robert Koning 8301 Joliet Street

Hudson, Florida 34667

Mr. Dennis J. Hujar 1511 Brooker Road

Brandon, Florida 33511

E. Harper Field, Esquire

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

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

Jacksonville, Florida 32202

Kenneth E. Easley, Esquire

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Docket for Case No: 89-004313

Orders for Case No: 89-004313