STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EUGENE BOATRIGHT, )

)

Petitioner, )

)

vs. ) CASE NO. 89-5207

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on December 13, 1989, in Jacksonville Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: Alfred C. Scott

Attorney at Law

125 North Market Street Jacksonville, Florida 32202

For Respondent: D. Harper Field

Deputy General Counsel Department of Professional Regulation

Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

STATEMENT OF THE ISSUES

The issue is whether the Petitioner, Eugene Boatright, is entitled to licensure as an alarm systems contractor by virtue of a passing grade on the January 26, 1989, examination.

PRELIMINARY STATEMENT

Mr. Boatright presented his own testimony. The Department of Professional Regulation (DPR) presented the testimony of John M. Trimmer and had exhibits 1 and 2 admitted in evidence. Exhibits 1 and 2 contain the challenged examination questions and are sealed pursuant to Section 455.230, Florida Statutes (Supp.

1988).

The parties waived the filing of a transcript. DPR filed its proposed findings of fact and conclusions of law on December 29, 1989. Mr. Boatright filed his proposed findings of fact and conclusions of law on January 4, 1990. All proposed findings of fact and conclusions of law have been considered. A specific ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.

FINDINGS OF FACT

1. Eugene Boatright was an unsuccessful candidate for the alarm systems contractor's licensure examination given on January 26, 1989.

   
   

2. Mr. Boatright made a score of 74. A score of 75 was required for licensure.

   
   

3. Each correct answer had a grade value of one point.

   
   

4. Mr. Boatright originally challenged the answers to questions 22, 95 and

   1. At the formal hearing he abandoned his challenge to question 22.

      
      

      1. Question 95 dealt with standards for the installation, maintenance and use of Remote Station Protective signaling devices. The reference was to

         N.F.P.A. Chapter 72C, Section 1-3.1.

         
         

      2. Mr. Boatright contended that telephone exchange was a correct answer. DPR contended that telephone exchange was incorrect because all telephone exchanges do not have personnel on duty at all times trained to receive alarm signals.

         
         

      3. The reference section contains an exception which states:

         
         

         Exception: Where such an agency is unwilling to receive alarm signals, the authority having jurisdiction shall be permitted to accept another location with personnel on duty at all times trained to receive the alarm and immediately transmit it to the fire department.

         
         

      4. While a telephone exchange may, under the circumstances set forth in the exception, receive alarm signals, telephone exchange is not a correct answer to question 95.

         
         

      5. The instructions on the examination specifically advised the candidates that they were to use the general rule and were only to use the exception where it was directly indicated in the question.

         
         

      6. Question 99 invovled the mounting requirements for all installed fire warning equipment.

         
         

      7. The reference sections asserted by DPR were N.F.P.A. Chapter 75-1.1.2 and 1.1.3 and Chapter 74-4.1. Chapter 75 refers to "Installation." Chapter 74 refers to "Equipment Performance."

      8. Question 99 contains three possible answers:

         
         

         All installed household fire warning equipment shall be mounted

         1. so as to be supported independently of its attachment wires.

         2. so jaring [sic] or vibration will not cause accidental operation.

         3. so that the failure of any non- reliable or short-life component, which renders the detector inoperative shall be readily apparent without the need for a test.

            
            

      9. Mr. Boatright contends that the correct answer does not include part III of the answer. DPR contends that this portion of the answer is correct and refers to Chapter 74 on equipment performance to support its position.

         
         

      10. Chapter 75-1.1.2 and 1.1.3, in the chapter relating to installation, states:

          
          

          5-1.1.2 All devices shall be so located and mounted that accidental operation will not be cause by jarring or vibration.

          5-1.1.3 All installed household fire warning equipment shall be mounted so as to be supported independently of its attachment to wires.

          [Emphasis supplied].

          
          

      11. Chapter 74-1, in the chapter relating to equipment performance, states:

          
          

          1. General. The failure of any nonreliable [sic] or short-life component which renders the detector inoperative shall be readily apparent to the occupant of the living unit without the need for test.

1. Chapter 74-1 is only peripherally related to mounting and relates primarily to performance of the equipment.

   
   

2. Question 99 is ambiguous and the answer given by Mr. Boatright is a correct answer.

   
   

3. Mr. Boatright is entitled to one additional point on his examination and he therefore should have received a passing grade of 75 on the examination.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction of the parties to and subject matter of these proceedings. Section 120.57(1), Florida Statutes.

   
   

5. Rule 21E-16.003(5), Florida Administrative Code, provides that the burden is on the unsuccessful examinee to identify the question that the examinee believes is ambiguous or the test solution that the examinee believes is incorrect. The standard by which to measure Mr. Boatright's challenge is

   whether the question and answer was "substantially insufficient and misleading." Alvarez v. Department of Professional Regulation, 458 So.2d 808, 811 (Fla. 1st DCA 1984). This burden of proof must be by the preponderance of the competent, substantial evidence.

   
   

6. In this case, it is concluded that Mr. Boatright has met his burden of proof on question 99. Question 99 was ambiguous, misleading and substantially incorrect. The more correct answer was that given by Mr. Boatright. Mr. Boatright should be given credit for his correct answer to question 99. If credit is given, he has achieved a passing score and is entitled to licensure.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Construction

Industry Licensing Board, enter a Final Order granting the examination challenge of Eugene Boatright and awarding one additional point to the score achieved by Mr. Boatright on the January 26, 1989, examination.

DONE and ENTERED this 12th day of January, 1990, in Tallahassee, Florida.

DIANE K. KIESLING

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1990.

APPENDIX TO RECOMMENDED ORDER IN CASE NO 89-5207

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case.

Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Eugene Boatright

1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(5); 10(10 & 11); 12(14 & 15); 18(17; and 19(18).

2. Proposed findings of fact 2-6, 8, 11, and 13-17 are subordinate to the facts actually found in this Recommended Order.

3. Proposed finding of fact 7 is unnecessary.

4. Proposed finding of fact 9 is unsupported by the competent, substantial evidence.

Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of

Professional Regulation, Construction Industry Licensing Board

1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1 & 2); 2(4); and 3(3).

2. Proposed findings of fact 4 and 5 are unnecessary.

3. Proposed findings of fact 6 and 7 are subordinate to the facts actually found in this Recommended Order.

COPIES FURNISHED:

Alfred C. Scott Attorney at Law

125 North Market Street Jacksonville, FL 32202

E. Harper Field

Deputy General Counsel

Department of Professional Regulation Northwood Centre

Suite 60

1940 North Monroe Street Tallahassee, FL 32399-0792

Kenneth D. Easley General Counsel

Department of Professional Regulation Northwood Centre

Suite 60

1940 North Monroe Street Tallahassee, FL 32399-0792

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

Jacksonville, FL 32202

Docket for Case No: 89-005207

Orders for Case No: 89-005207