STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAUL A MEIER, )

)

Petitioner, )

)

vs. ) CASE NO. 89-5209

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, ELECTRICAL ) CONTRACTORS LICENSING BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held in Orlando, Florida, on January 30, 1990, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Attorney Robert S. Hayes

437 W. Vine Street Kissimmee, Florida 34741

For Respondent: Jack L. McRay, Senior Attorney

Department of Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-6792

STATEMENT OF THE ISSUES

The issue in this case is whether Petitioner is entitled to a passing grade on his examination for certification as an electrical contractor.

PRELIMINARY STATEMENT

By letter dated August 22, 1989, Petitioner requested a formal administrative hearing on Respondent's determination that he had failed the examination for certification as an electrical and alarm system contractor.

At the hearing, the parties stipulated to the question at issue and that, if it were determined that Petitioner were given credit for his answer, he would have passed the test.

Petitioner called two witnesses and offered into evidence six exhibits. Respondent called one witness and offered into evidence three exhibits. All exhibits were admitted. In addition, Hearing Officer Exhibit 1, which included Respondent's Exhibits 2 and 3, was also admitted.

A transcript was filed on February 13, 1990. Petitioner filed a proposed order. All of his proposed findings are adopted or adopted in substance.

FINDINGS OF FACT

1. Petitioner took the electrical and alarm system contractor examination in January, 1989. Petitioner failed the examination.

   
   

2. Petitioner timely challenged one question of relevance. The question that Petitioner challenges is question 34. If he were to receive a passing grade on this question or if the question were discarded, Petitioner would pass the examination.

   
   

3. The challenged question is:

   
   

   All cut ends of rigid nonmetallic conduits shall be inside and outside to remove rough edges.

   
   

   1. trimmed

   2. reamed

   3. shaped

   4. sanded

      
      

4. Petitioner answered "(B)." The answer for which Respondent gave credit is "(A)."

   
   

5. The National Electrical Code describes the finishing processes for rigid nonmetallic conduit and rigid metal conduit as follows:

   
   

   Section 347-5. Trimming. All cut ends shall be trimmed inside and outside to remove rough edges.

   Section 346-7(a). Reamed. All cut ends of conduits shall be reamed or otherwise

   finished to remove rough edges.

   
   

6. The National Electrical Code also uses the phrase "reamed or otherwise finished" with respect to intermediate metal conduit and electrical metallic tubing. Sections 345-8 and 348- 11.

7. The first article of the National Electrical Code is devoted to definitions. Under Article 100, the scope of the definitions article is explained as follows:

   
   

   Scope. Only definitions of terms peculiar to and essential to the proper use of this Code

   are included. In general, only those terms used in two or more articles are defined in Article 100. . . .

   Part A of this article contains definitions intended to apply wherever the terms are used throughout this Coded. . .

   
   

   Article 100 contains no definition of "trim" or "ream," although the term "ream" is used in two or more articles: namely, Articles 345, 346, and 348.

   
   

8. The term "ream" is the word commonly used in the relevant industry to describe the process by which a person eliminates the rough edges on the cut end of a rigid; nonmetallic conduit. The term "ream" is so used by, among others, practicing professional electrical and alarm system contractors. The term "ream" is also so used by manufacturers of "conduit reamers," which are packaged and labelled under that name. These "conduit reamers" are obviously designed for use with PVC and other rigid nonmetallic conduit. By contrast, the term "trim" is rarely used to describe this deburring process.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. Respondent is responsible for administering the examination for certification as an electrical and alarm systems contractor. Section 489.511(1), Florida Statutes.

    
    

11. The requirement imposed upon all examinations for licensure is that they "adequately and reliably measure an applicant's ability to practice the profession regulated by" Respondent. Section 455.217(1) (a), Florida Statutes. A question or portion of a test may be rendered invalid if the question or test instructions are "substantially insufficient and misleading." Alvarez v. Department of Professional Regulation, 458 So. 2d 808, 811 (Fla. 1st DCA 1984).

    
    

12. Question 34 is substantially insufficient and misleading and does not adequately and reliably measure a candidate's ability to practice the profession of alarm systems contracting. Article 100 defines those terms that are "essential to the proper use of this Code," provided such terms are used in more than one Article. "Ream" is used in more than one Article, but is not a defined term. The omission of "ream" from the defined terms is no oversight, but is reflective of industry custom in which either no importance is given to the difference between "reaming" and "trimming" and "reaming" is the term applied to the finishing or deburring of the inside and outside of a rigid nonmetallic conduit.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Department of Professional Regulation enter a Final Order assigning Petitioner a passing grade on the January, 1989, electrical and alarm systems contractor' s examination.

ENTERED this 26th day of February, 1990, in Tallahassee, Florida.

ROBERT E. MEALE, Hearing Officer Division of Administrative Hearings The DeSoto

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26 day of February, 1990.

COPIES FURNISHED:

Kenneth E. Easley General Counsel

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

Robert S. Hayes

437 W. Vine Street Kissimmee, FL 34741

Jack L. McRay, Senior Attorney Department of Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, FL 32399-0792

Pat Ard, Executive Director

Electrical Contractors Licensing Board Northwood Centre

1940 North Monroe Street Tallahassee, FL 32399-0792

Docket for Case No: 89-005209

Orders for Case No: 89-005209