STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANTONIO VERA, )

)

Petitioner, )

vs. ) CASE NO. 89-4935

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, ELECTRICAL ) CONTRACTORS' LICENSING BOARD )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written Notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Daniel Manry, held a formal hearing in the above-styled case on January 10, 1990, in Miami, Florida.

APPEARANCES

For Petitioner: Henry I. Smyler, Esquire

Dadeland Towers, Suite 520 9200 South Dadeland Boulevard Miami, Florida 33156

For Respondent: E. Harper Field, Esquire

Deputy General Counsel Department of Professional

Regulation

1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUES

The issue for determination in this proceeding was whether Petitioner's examination for licensure as an alarm system contractor I was incorrectly graded.

PRELIMINARY STATEMENT

By letter dated August 14, 1989, Petitioner requested a formal hearing to contest the failing grade he received on the alarm system contractors' I examination. The matter was referred to the Division of Administrative Hearings ("DOAH") for assignment of a hearing officer on September 7, 1989, assigned to hearing officer Joyous Parrish, and subsequently transferred to the undersigned. The matter was set for formal hearing on January 10, 1990, pursuant to a Notice of Hearing issued on October 19, 1989.

At the formal hearing, Petitioner challenged question 70 only. Petitioner presented four exhibits to be admitted in evidence. Petitioner's Exhibits 1 and

2 were admitted in evidence without objection. Petitioner's Exhibit 3 was admitted over objection, and Petitioner's Exhibit 4 was not admitted in evidence. Petitioner called two witnesses and testified in his own behalf. One witness was the Respondent's expert and the other witness was Petitioner's expert.

Respondent presented three exhibits to be admitted in evidence.

Respondent's Exhibit 1 was admitted without objection. Respondent's Exhibits 2 and 3 were not admitted in evidence. Respondent called one witness who was accepted as an expert.

A transcript of the formal hearing was ordered and filed on January 23, 1990. Proposed findings of fact and conclusions of law were timely filed by Petitioner on February 26, 1990, and by Respondent on February 21, 1990. The parties' findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner was an unsuccessful candidate for the January, 1989, alarm systems contractors' I examination (the "examination"). The examination was multiple choice, and a minimum score of 75 was required to pass the examination. After reevaluation, Petitioner received a grade of 74 on the examination. Petitioner challenged question 70 at the formal hearing. Credit for a correct answer to question 70 would result in Petitioner receiving a passing grade on the examination.

   
   

2. Question number 70 contained four possible answers. Pursuant to the Candidate Information Booklet, only one answer was correct. The Candidate Information Booklet advised Petitioner that the questions were designed so that a person with "the necessary background knowledge of electrical contracting will find it easy to select the correct answer." Finally, the References for State of Florida Alarm System Contractor I stated that "Some of the questions will be based on field experience and knowledge of trade practices. . ."

   
   

3. Question 70 was one of three questions which referred to a single diagram. The diagram contained eight items. Four of those items were labeled and four were not labeled. The labeled items were: a "Battery"; a closed "Contact"; an open "Switch"; and a "Re1ay" The items that were not labeled were: two horizontally parallel lines; a vertical coil; and an open contact.1/ The two questions not challenged by Petitioner referred to the labeled closed "Contact" and the "Battery". The

   text of question 70 referred to "the relay" (sic).

   
   

4. The text of question 70 asked whether "the relay" was: (a) normally open; (b) normally closed; (c) de-energized; or (d) normally open and de- energized. Petitioner selected (c) as the correct answer. Respondent considered (d) to be the correct answer. The uncontroverted evidence established that "the relay" referred to in the text of question 70 was de- energized. The only disputed issue of fact was whether "the relay" referred to in the text of question 70 was normally open.

5. The uncontroverted evidence further established that the essential parts of a relay include a coil, one normally open contact, and one normally closed contact. A contact may be normally open or normally closed depending on the design of the alarm system. The normal state of a contact is its de- energized state.

   
   

6. The language in question 70 was misleading and ambiguous based on the evidence in this proceeding. Question 70 asked whether "the relay" was normally open or normally closed, not whether a given contact was normally open or normally closed. The evidence established that a "contact" is either normally open or normally closed. No evidence established that a "relay" may be normally open or normally closed.

   
   

7. The diagram was misleading and ambiguous to the extent it applied to question 70. The diagram contained the essential parts of a relay, i.e., a coil, one normally open contact, and one normally closed contact. The coil and labeled closed "Contact" were connected in a circuit with the items shown as the "Battery" and the "Switch". The un-labeled open contact and the item shown as the "Relay" were separated from the coil by approximately 1/4 inch. A determination could not be made as to whether "the relay" referred to in the text of question 70 was de-energized without reference to the item shown as the "Switch" in the diagram. The "Switch" was open but was not connected in the same circuit with the item shown in the diagram as the "Relay".

   
   

8. Petitioner correctly assumed that "the relay" referred to in the text of question 70 was de-energized because the "Switch" shown in the diagram was open. Even though not connected in the same circuit with the item shown as the "Relay" in the diagram, the "Switch" was electronically associated with "the relay" referred to in the text of question 70. The uncontroverted evidence established the correctness of this assumption by Petitioner. 2/

   
   

9. Petitioner reasonably assumed that "the relay" referred to in the text of question 70 was comprised of the coil, the un-labeled open contact, and the labeled closed "Contact" in the diagram. Since "the relay" referred to in the text of question 70, like other relays, had to include both a normally closed contact and a normally open contact, it was impossible for Petitioner to decide whether "the relay" referred to in the text of question 70 was either normally open or normally closed. The only certain answer for Petitioner was that "the relay" referred to in the text of question 70 was de-energized.

   
   

10. Respondent established that the answer it considered to be the correct answer to question 70 was reasonable. However, Respondent failed to refute the preponderance of evidence that Petitioner's answer to question 70 /3 was also reasonable under the circumstances.

    
    

11. Respondent established that the portion of the diagram that included the item shown as the "Relay" was separated from the portion of the diagram that included the items shown as the open "Switch", the "Battery", and closed "Contact". The two portions of the diagram were not physically connected, were not part of the same circuit, and were separated by a space of approximately 1/4 inch in a diagram that was approximately 4 inches long.

    The two portions of the diagram were referred to by the terms of the examination as a single diagram because the single diagram was to be used in answering questions 68, 69, and 70. It was reasonable for Respondent to assume that when question 70 asked whether "the relay" was normally open or normally closed it was to be interpreted as asking whether "the relay contact" was normally open or normally closed.

    
    

12. Respondent attempted to establish the unreasonableness of Petitioner's answer with conflicting evidence. For the purpose of determining whether "the relay" referred to in the text of question 70 was de-energized, Respondent defined "the relay" by reference to the portion of the diagram that was disconnected from the item shown in the diagram as the "Relay". For the purpose of determining whether "the relay" referred to in the text of question 70 was normally open or normally closed, however, Respondent defined "the relay" referred to in the text of question 70 by reference to only that portion of the diagram shown as the "Relay".

    
    

    Respondent admitted during the formal hearing and in its written explanation for the answer to question 70 that "[t]he relay as shown is de- energized because the switch is open." (emphasis added) Thus, Respondent admitted that a determination of whether "the relay" referred to in the text of question 70 was de-energized was to be made by reference to a portion of the diagram that was not physically connected to the item shown in the diagram as the "Relay". However, Respondent's expert witness insisted during direct and cross examination that a determination of whether "the relay" referred to in the text of question 70 was normally open or normally closed was to be made by disregarding that portion of the diagram that included the coil, the "Switch", and the labeled closed "Contact".

    
    

13. Nothing in the instructions for questions 68-70 suggested the limited use of the diagram suggested by Respondent for the purpose of determining whether "the relay" referred to in the text of question 70 was normally open or normally closed. Instead, the instructions stated that "the next 3 questions (68- 70) refer to the following diagram." If Respondent intended for question

    70 to refer to only that portion of the diagram shown as the "Relay" it would have been reasonable for Respondent to arrange question 70 and the portion of the diagram shown as the "Relay" in separate diagrams.

    
    

14. Respondent's written explanation of the answer to question 70 was inconsistent with Respondent's suggested answer to question 70. Question 70 asks whether "the relay" is normally open or normally closed. Respondent's written explanation states that "the relay contacts are normally open." (emphasis added) Later in its written explanation, Respondent stated that "the relay [is] closed" and that "its normally closed contacts [are kept] open against spring pressure...". For the same reasons, Respondent's written explanation of the answer to the question was internally inconsistent.

15. The evidence presented by Respondent was inconsistent with Respondent's written explanation of the suggested answer to question 70. For the purpose of determining whether "the relay" referred to in question 70 was normally open or normally closed, Respondent's expert witness insisted during his testimony that "the relay" excluded that part of the diagram that included the coil. In its written explanation, however, Respondent stated that the "normally closed intrusion contacts are connected to the coil of the sensitive relay." (emphasis added) Further, Respondent's expert repeatedly testified that the labeled closed "Contact" in the diagram could be an intrusion contact but need not be any particular kind of contact. In Respondent's written explanation, however, the closed contacts were specifically identified as "intrusion contacts."

    
    

16. The language in question 70 and the diagram used to answer question 70 were misleading and ambiguous. The language in question 70 and the diagram permit more than one reasonable interpretation. Both Petitioner's answer to question 70 and Respondent's answer to question 70 were reasonable under the circumstances.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this proceeding. Section 120.57(1), Florida Statutes. The parties were duly noticed for the formal hearing.

    
    

18. Petitioner has the burden of proof in this proceeding and must demonstrate by a preponderance of the evidence that he is entitled to the relief requested. Florida Department of Transportation v. J. W. C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981). Petitioner is not required, as suggested by Respondent, to show that the grading of his examination was arbitrary or capricious in order to prevail. The cases cited by Respondent in support of its position, State ex rel I. H. Topp v. Board of Electrical Contractors, 101 So.2d

    583 (Fla. 1st DCA 1958) and State ex rel Glaser v. J.M. Pepper, 155 So.2d 383 (Fla. 1st DCA 1963), involved mandamus proceedings in circuit court and do not establish the standard of proof in administrative proceedings.

    
    

19. Petitioner satisfied his burden of proof in this proceeding. Petitioner established that the diagram for question 70 was misleading and ambiguous, and that his interpretation of question 70 was reasonable under the circumstances.

    
    

20. Respondent established that the answer it considered to be correct was reasonable, but failed to refute Petitioner's prima facie showing that Petitioner's answer was also reasonable under the circumstances.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner's request for a re-grade of his January, 1989,

alarm systems contractors I examination be GRANTED; Petitioner be given full credit for question 70; Petitioner be deemed to have passed the examination; and Petitioner be deemed qualified for registration as an alarm system contractor.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 16th day of April 1990.

DANIEL MANRY, 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 16th day of April 1990.

ENDNOTES

1/ The items that were not labeled are referred to hereinafter as "un-labeled". A "open" switch is in the off position.

2/ In his written explanation for the answer to question 70, the examiner states in relevant part that "the relay as shown is de-energized because the switch is open." (emphasis added)

3/ The basis for the reasonableness of the Respondent's suggested answer is discussed in paragraph 11 of this Recommended Order. The reasons for Respondents failure to refute Petitioner's evidence are discussed in paragraphs 12-16 of this Recommended Order.

APPENDIX TO RECOMMENDED ORDER CASE NO. 89-4935

Petitioner has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been

generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. No notation is made for unnumbered paragraphs.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1. Accepted in finding 1

   
   

2. Accepted in part in finding 1 Remainder rejected as irrelevant.

   
   

3. Accepted in part in findings 2, 9 Remainder rejected as irrelevant.

   
   

4. and 5 Accepted in findings 3, 13

Respondent has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been

generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1. and 3 Accepted in findings 1

   
   

2. and 4-6 Accepted in Preliminary Statement.

   
   

   1. Accepted in findings 2, 3

      
      

   2. Accepted in finding 7

      
      

   3. Accepted in finding 3

      
      

   4. Accepted in finding 4

      
      

   5. and 12 Rejected for the reasons stated in findings 6-16

COPIES FURNISHED:

Patricia Ard Executive Director

Department of Professional Regulation Electrical Contractors' Licensing Board 1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0792

Kenneth E. Easley, Esquire General Counsel

1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0792

Henry I. Smyler, Esquire Dadeland Towers, Suite 520 9200 South Dadeland Boulevard Miami, Florida 33156

E. Harper Field, Esquire Deputy General Counsel

1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0792

Docket for Case No: 89-004935

Orders for Case No: 89-004935