STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JUAN A. MONTALVAN, JR., )

)

Petitioner, )

)

vs. ) CASE NO. 90-0237

) DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF )

ARCHITECTURE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on April 18, 1990, in Miami, Florida.

APPEARANCES

For Petitioner: Juan A. Montalvan, Jr., pro se

11031 S. W. 40th Terrace Miami, Florida 33165

For Respondent: E. Harper Field, Esquire

Department of Professional Regulation Northwood Center, Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

STATEMENT OF THE ISSUES

Whether Petitioner is entitled to any credit for his answer to Question 51 of Division G of the June 1989 Board of Architecture examination.

PRELIMINARY STATEMENT

In June 1989, Petitioner sat for the examination administered by Respondent as a prerequisite for certification by examination as an architect in the State of Florida. After being notified that he had received a failing grade on Division G of the examination, he challenged Respondent's decision to award him no credit for his answer to Question Number 51 of Division G. Had he been given any credit for his answer, he would have passed that portion of the examination.

At the final hearing, Petitioner testified on his own behalf, called one expert witness, and presented two documentary exhibits, which were accepted into evidence. Respondent called one expert witness and introduced one documentary exhibit, which was accepted into evidence. The examination question and Respondent's answer thereto were accepted into evidence as a composite exhibit which was labeled Hearing Officer Exhibit 1.

A transcript of the proceedings has been filed. Specific rulings on the parties' proposed findings may be found in the appendix to this recommended order.

Because the examination questions are made confidential by Section 455.230, Florida Statutes, the question challenged by the Petitioner will be discussed in general terms, and Hearing Officer Exhibit 1 will be treated as a confidential exhibit.

FINDINGS OF FACT

1. In June, 1989, Petitioner sat for the examination given by Respondent to become certified in Florida as an architect.

   
   

2. Petitioner received a failing grade on Division G of the examination, the part of the examination that relates to mechanical, plumbing, and electrical systems. Petitioner received no credit for his answer to question 51 of Division G. Had Petitioner received any credit for his response to question 51, he would have passed Division G. Petitioner had previously passed the other portions of the examination and has taken Division G six times.

   
   

3. Following notification that he had failed the examination, Petitioner filed a timely challenge to Respondent's grading of Question 51, contending that his answer was correct and that he should have been given credit for his answer.

   
   

4. The National Council of Architectural Registration Boards prepares a standardized examination that is used by many states, including Florida, for the testing of candidates for certification as architects. Question 51 of Division G is a question on that standardized examination.

   
   

5. Question 51 is an objective question that tests the applicant's knowledge as to the types of fixtures or types of equipment that are required to have their waste outlets equipped with air gaps to prevent contamination due to possible backup of sewage through the waste piping. The candidate is required to select the correct answer from one of four possible answers. Petitioner concedes that the answer Respondent contends is the only correct answer is a correct answer to the question. Petitioner maintains, however, that the question is misleading and that the answer he selected also correctly answers the question.

   
   

6. There is only one correct answer to the question. The answer given by Petitioner to question 51 of the examination was not correct because the waste outlet on the fixture selected by Respondent does not have an air gap and is, instead, directly connected to the drainage system. The air gap on the fixture selected by Petitioner as being the correct answer is between the potable water supply and the fixture, which is referred to as being an air gap in the water distribution system. Petitioner's contention that the question is misleading is rejected. There is a difference between an air gap for the water distribution system and an air gap for the waste system. Petitioner's failure to distinguish between the two types of air gaps caused him to incorrectly answer the question.

   
   

7. Respondent gave Petitioner no credit for his answer to Question 51 because he failed to select the correct answer to the question.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57, Florida Statutes.

   
   

9. Petitioner has the burden of establishing by a preponderance of the evidence that Respondent's decision to award no points for his response to the disputed question constitutes arbitrary and capricious action. State ex rel. Glasser v. J.M. Pepper, et al., 155 So.2d 383 (Fla. 1st DCA 1963). Petitioner has failed to meet that burden.

   
   

10. Section 455.230, Florida Statutes, provides, in pertinent part, as follows:

Notwithstanding any other provision of this chapter, examination questions and answers shall not be subject to discovery, but may be introduced into evidence and considered only in camera in any administrative proceeding under chapter 120. ... In any subsequent administrative hearing the department shall provide challenged examination questions and answers to the hearing officer. Examination questions and answers so provided at the hearing, which are not invalidated, shall be sealed and not open to public inspection.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent, State of Florida, Department of Professional Regulation, enter a final order which denies Petitioner's challenge to Question

51 of Division G of the examination. It is further recommended that the Hearing Officer Exhibit filed in this proceeding be sealed.

RECOMMENDED this 14th day of May, 1990, in Tallahassee, Leon County, Florida.

Claude B. Arrington 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 14th day of May, 1990.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-0237

The following rulings are made on the proposed findings of fact submitted by Petitioner in his letter filed April 27, 1990.

1. Paragraph 1 of the letter consists solely of argument.

2. Paragraph 2 of the letter is rejected as being contrary to the greater weight of the evidence.

3. Paragraphs 3 and 4 of the letter are rejected as being unnecessary to the conclusions reached.

4. The first sentence of Paragraph 5 of the letter is rejected as being contrary to the conclusions reached. While the subject question may have been a difficult question, the contention that the question was misleading is rejected. Paragraph 5(1) is rejected as being argument and as being, in part, contrary to the position taken by Petitioner at the final hearing. Paragraph 5(2) is rejected as being argument and as being unnecessary to the conclusions reached. Petitioner's argument in Paragraph 5(2) reflects his misreading of the question that was posed to him.

The following rulings are made on the proposed findings of fact submitted by Respondent.

1. The proposed findings in paragraphs 1 - 5 are accepted in material part.

2. The proposed findings in paragraphs 6 and 7 are rejected as being subordinate to the findings made.

3. The proposed findings in paragraph 8 are rejected as being subordinate to the findings made.

COPIES FURNISHED:

Juan A. Montalvan, Jr., pro se 11031 S. W. 40th Terrace Miami, Florida 33165

E. Harper Field, Deputy General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Patricia Ard Executive Director

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Docket for Case No: 90-000237

Orders for Case No: 90-000237