STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DENNIS WHITE, )

)

Petitioner, )

)

vs. ) CASE NO. 89-6136

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case in Miami, Florida on February 7, 1990, before J. Stephen Menton, duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Dennis White, pro se

11401 S.W. 40 Terrace

Miami, Florida 33165

For Respondent: E. Harper Field, Esquire

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUES

The issue in this proceeding is whether Petitioner has been unfairly denied a building contractor's license because of unreasonable grading of the June, 1989 examination given by Respondent to applicants for licensure as a building contractor.

PRELIMINARY STATEMENT

By letter dated August 28, 1989, the Petitioner requested a hearing to contest the failing grade he received on the building contractor examination given on June 30, 1989. In his August 28, 1989 letter, the Petitioner challenged two of the questions on the June, 1989 exam (questions 10 and 12).

At the hearing, the parties stipulated that the answers deemed correct by Respondent in grading Questions 10 and 12 were in fact the only right answers and that Petitioner's answer sheet was marked to reflect answers other than the correct answers for those questions. Petitioner testified on his own behalf and offered two exhibits into evidence which were accepted without objection.

Respondent produced the questions (10 and 12) at the hearing for review, but did not present any testimony.

No transcript of the hearing has been provided by the parties. The Respondent submitted a proposed recommended order including proposed findings of fact and conclusions of law. The Petitioner did not submit any proposed findings. Rulings on the proposed findings of fact submitted by the Respondent are included in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon my observation of the witnesses, their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I make the following findings of fact:

1. In order for Petitioner to obtain a license as a building contractor in Florida, he is required to successfully complete a certification examination. The exam is administered by the Department of Professional Regulation. The questions on the exam are prepared from specific reference materials disclosed to the applicants, generally accepted industry procedures and standard field knowledge.

   
   

2. In October of 1988, Petitioner took the examination and achieved a passing score on Part I of the exam but received a failing grade on Part II and Part III.

   
   

3. In February of 1989, Petitioner again took Part II and Part III of the exam. This time he achieved a passing score on Part II, but failed Part III.

   
   

4. In June of 1989, Petitioner took Part III of the exam for a third time and received a grade of 69. A score of 69.1 was necessary for Petitioner to receive a passing grade on Part III.

   
   

5. A correct answer to either of the two challenged questions would give Petitioner a passing grade on Part III.

   
   

6. There is no dispute that the answers deemed correct by Respondent in grading the exam were the only right answers to the questions.

   
   

7. Petitioner offered into evidence the scratch paper he used while taking the exam. Those papers demonstrate that he correctly calculated the answers to the questions, but incorrectly marked the answers on his answer sheet.

   
   

8. The instructions provided to all exam takers at the time of the exam specifically provide that only responses on the answer sheet can be scored.

   
   

   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 (1989).

   
   

10. The Respondent has the authority to administer an examination to determine the qualifications of a person seeking to be licensed as a building contractor in this state. Section 489.111, Florida Statutes (1989).

11. Petitioner has the burden of proof in this case and must prove that the Respondent acted erroneously or arbitrarily or capriciously in the administration and grading of the exam.

    
    

12. There is no dispute in this case as to the correct answers to the challenged questions. While the scratch paper submitted by Petitioner indicates that he reached the correct answers, no credit can be given to him because those answers were not marked on his answer sheet. Thee Respondent did not abuse its discretion in failing to consider the calculations on Petitioner's scratch paper in grading the exam.

    
    

13. Under Rule 21E-16.001(1)(c), Florida Administrative Code, the Petitioner's passing test scores on Part I and Part II of the exam are now considered invalid and he will be required to make an original application and pay all appropriate fees since he has not passed all portions of the test within three consecutive administrations of the exam. At the hearing (as well as in his letter seeking the hearing,) Petitioner requested relief from the operation of this Rule. However, there is no provision in the Rules or the Statute establishing his right to such relief.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is recommended that Petitioner's request that his June, 1989 examination for a building contractor's license be regraded be DENIED.

RECOMMENDED this 21st day of February, 1990, in Tallahassee, Florida.

J. STEPHEN MENTON 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 21st day of February, 1990.

APPENDIX TO RECOMMENDED ORDER, CASE NUMBER 89-6136

The Respondent submitted a Proposed Recommended Order which includes proposed findings of fact and conclusions of law. The Petitioner did not submit any post-hearing findings. The following rulings are directed towards the findings of fact contained in the Proposed Recommended Order submitted by the Respondent.

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order were accepted or

Reason for Rejection.

1. Adopted in substance in Findings of Fact 4.

   
   

2. Included in the preliminary statement.

   
   

3. Adopted in substance in Findings of Fact 5.

   
   

4. Included in the preliminary statement.

   
   

5. Adopted in substance in Findings of Fact 6.

   
   

6. Adopted in substance in the preliminary statement and in Findings of Fact 7.

   
   

7. Adopted in substance in Findings of Fact 8.

COPIES FURNISHED:

E. Harper Field, Esquire Department of Professional

Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Dennis White

11401 S. W. 40 Terrace

Miami, Florida 33165

Fred Seely, Executive Director Department of Professional Regulation Post Office Box 2

Jacksonville, Florida 32202

Kenneth D. Easley, General Counsel Department of Professional

Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Docket for Case No: 89-006136

Orders for Case No: 89-006136