STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JEFFREY RAYBIN, )

)

Petitioner, )

)

vs. ) CASE NO. 90-4164

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on September 4, 1990, in Boca Raton, Florida, by Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings

APPEARANCES

For Petitioner: Alan L. Arons, Esquire

1761 W. Hillsboro Boulevard Suite 409

Deerfield Beach, Florida 33442-1502

For Respondent: Vytas J. Urba, Esquire

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0750 STATEMENT OF THE ISSUES

1. Whether Petitioner's challenge to the failing score he received on the February, 1990, certification examination for general contractors should be sustained?

   
   

2. If so, what relief should Petitioner be afforded?

PRELIMINARY STATEMENT

By letter dated June 20, 1990, and received by Respondent's Office Examination Services on June 26, 1990, Petitioner requested a formal hearing on his challenge to the failing score he received on the February, 1990, certification examination for general contractors. In his letter, Petitioner indicated that his challenge was directed to the following six questions on the examination: GC121-#36; GC121-#40; GC221-#17; GC221-#l8; GC221-#21; and GC221-

#24. The matter was referred to the Division of Administrative Hearings on July 2, 1990, for the appointment of a Hearing Officer.

At hearing, Petitioner, through his attorney, stated on the record that, of the examination questions referenced in his June 20, 1990, letter to the Department's Office of Examination Services, he intended to contest only question GC221-#21.

One witness testified at hearing: David M. Olson, who directed the development and grading of the examination at issue in the instant case In addition, the parties offered two exhibits into evidence, both of which were received by the Hearing Officer.

At the conclusion of the evidentiary portion of the hearing, the Hearing Officer advised the parties on the record that their posthearing submittals had to be filed no later than ten days following the close of the hearing.

Respondent filed its Proposed Recommended Order on September 14, 1990. The findings of fact proposed by Respondent have been carefully considered and are specifically addressed in the Appendix to this Recommended Order. Petitioner, on September 17, 1990, filed a posthearing brief containing argument in support of his position that he answered question GC221-#21 correctly.

FINDINGS OF FACT

Based upon the record evidence, the following Findings of Fact are made:

1. Petitioner sat for the certification examination for general contractors administered by the State of Florida in February, 1990.

   
   

2. The examination consisted of two parts: GC121 and GC221.

   
   

3. GC221 was comprised of 40 questions.

   
   

4. Candidates were given four and one half hours to answer these 40 questions. This was an ample amount of time in which to complete the examination.

   
   

5. Before the examination, candidates were given a list of reference materials and advised that the questions on the test would be taken from these sources. They were further advised that they would be permitted to bring these listed reference materials to the testing site and to use them in attempting to answer the examination questions.

   
   

6. One of the reference materials listed was the "Builder's Guide to Accounting" by Michael Thomset.

   
   

7. The "Builder's Guide to Accounting" has a section devoted to the subject of preparing a cash budget. The first three paragraphs of this section read as follows:

   
   

   A cash budget must reflect business realities, since you use it to chart the future course of your operation. If you have never used a budget before, start by estimating your immediate future cash income. Figure out as closely as possible the amount of incoming cash for the next month. Once you know this you can time your own expenses to the

   availability of these funds. Most businesses have had to budget this way out of necessity at one time or another. But effective cash budgeting does more than allow you to pay your bills. It puts you on a controlled course of financial action designed to achieve

   long-range goals. There are two principal methods of preparing a cash budget or forecast:

   the cash movement method and the source and application of funds method.

   Although there are other forecasting procedures, these two are commonly used because they are easy to prepare and at least as informative as any other method. The cash movement method involves budgeting only the flow of actual cash in and out of your business. Do not list additions to accounts receivable, as no cash changes hands in charge sales. And do not include liabilities. But make an estimate of payments on account. Estimate payments on account over several months, taking the amount of your charge sales from your total income budget. Budget taxes and loan payments as they become

   payable. This method is especially valuable for builders who have wide variations in

   their business volume from month to month. Such variations usually follow a predictable course. Building volume is affected by the seasons, zoning and political actions in your community, unusual weather patterns, the rate of community growth, and varying demands for the different types of work you do. Budgeting by the cash method allows you to handle directly cash flow changes that occur because of monthly volume variations. Figure 14-2 shows the form this budget should take. List each type of expected cash receipt and payment.

   This assures you that funds will be available to pay normal monthly expenses. Carry forward the amount at the end of the period on the last line to the beginning of the next period on the top line of the next column.

   Include in the cash budget the cost of any fixed assets you acquire, such as the $10,900 under Capital Assets.

   
   

8. GC221-#21, the lone question in dispute in the instant case, is a multiple choice question that was drawn from the foregoing excerpt from the "Builder's Guide to Accounting."

9. It is clear from a reading of that portion of the "Builder's Guide to Accounting" excerpted above that the only correct answer to GC221-#21 is (A). Petitioner chose another answer. Accordingly, he did not receive any credit for this question.

   
   

10. Petitioner received a grade of 68.50 on GC221, .51 points shy of the grade that he needed to pass this part of the certification examination.

    
    

    CONCLUSIONS OF LAW

    
    

11. Any person seeking certification to engage in contracting on a statewide basis in the State of Florida must apply to the Department of Professional Regulation to take the certification examination. Section 489.111, Fla. Stat.

    
    

12. The certification examination for general contractors consists of two tests. One test involves questions relating to business and financial management. The other test involves questions relating to contract administration and project management. Fla. Admin. Code Rule 21E-16.001(1)(a).

    
    

13. An applicant must receive a grade of 69.01% (out of 100%) on each of these tests to pass the examination. Fla. Admin. Code Rule 21E-16.001(1)(b).

    
    

14. An applicant who fails to attain a passing score on the examination is entitled to review his examination and to submit written objections for evaluation by Department staff and, if necessary, an expert consultant. Fla. Admin. Code Rules 21-11.011 and 21E-16.003.

    
    

15. If, after such reevaluation, the applicant still has a failing score and he believes that an error was made in the grading of his examination, the applicant may request a hearing, pursuant to Chapter 120, Florida Statutes. Sections 455.229 and 455.230, Fla. Stat.; Fla. Admin. Code Rule 21-11.012.

    
    

16. The burden is on the applicant at hearing to establish by a preponderance of the evidence that his examination was erroneously or improperly graded. See Harac v. Department of Professional Regulation, Board of Architecture, 484 So.2d 1333, 1338 (Fla. 3d DCA 1986) ("Ordinarily one who fails a licensure examination would shoulder a heavy burden in proving that a subjective evaluation by an expert is arbitrary"); Florida Department of Health and Rehabilitative Services v. Career Service Commission, 289 So.2d 412, 414 (Fla. 4th DCA 1974) ("the burden of proof is `on the party asserting the affirmative on an issue before an administrative tribunal"').

    
    

17. In the instant case, Petitioner has requested a hearing to contest the failing score he attained on the certification examination for general contractors that he took in February, 1990. His challenge is directed exclusively to his failure to receive credit for the answer he gave in response to question GC221-#21.

    
    

18. A review of the record evidence reveals that Petitioner has not made a sufficient showing in support of his position that he was erroneously or improperly denied credit for his answer to this question.

    
    

19. Petitioner has failed to show that question GC221-#21 was unclear, ambiguous or in any other respect unfair or unreasonable. Neither has he established that he correctly answered this multiple-choice question. That he selected the wrong answer to this question is apparent from a reading of the

    pertinent portions of the "Builder's Guide to Accounting," the authoritativeness of which Petitioner does not contest. According to this authoritative work, while the source and application of funds method is one of the two principal methods of preparing a cash budget, it is the cash movement method, the other principal method, not the source and application of funds method, "which is especially valuable for builders who have wide variations in their business volume from month to month." Petitioner therefore erred in answering GC221-#2l. Accordingly, in declining to award him any credit for his answer to this question, those grading his examination did not act arbitrarily or without reason or logic.

    
    

20. In view of the foregoing, Petitioner's challenge to the failing score he received on the February, 1990, certification examination for general contractors is without merit.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Construction Industry Licensing Board reject Petitioner's challenge to the failing score he received on the February, 1990, certification examination for general contractors.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 25th day of September, 1990.

STUART M. LERNER

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 25th day of September, 1990.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-4164

The following are the Hearing Officer's specific rulings on the findings of fact proposed by Respondent:

1. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

2-4. Rejected because they are more in the nature of statements of the case than findings of fact.

5. First sentence: Rejected because it is more in the nature of a statement of the case than a finding of fact; Second, fourth and fifth sentences: Accepted and incorporated in substance; Third sentence: Rejected because it is more in the nature of a summary of testimony than a finding of fact based upon

such testimony; Sixth and seventh sentences: Rejected because they constitute argument concerning the adequacy of Petitioner's proof rather than findings of fact.

COPIES FURNISHED:

Alan L. Arons, Esquire

1761 West Hillsboro Boulevard Suite 409

Deerfield Beach, Florida 33442-1502

Vytas J. Urba, Esquire Department of Professional

Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0750

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

Jacksonville, Florida 32201

Docket for Case No: 90-004164

Orders for Case No: 90-004164