STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRIAN FRIEFELD, )

)

Petitioner, )

)

vs. ) CASE NO. 90-6590

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written Notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Daniel Manry, held a formal hearing in the above-styled case on March 6, 1991, in Miami, Florida.

APPEARANCES

For Petitioner: Sheldon Friefeld, Esquire

The Ives Building, Suite 501 20801 Biscayne Boulevard

Aventura, Florida 33180

For Respondent: Roberta L. Fenner

Staff Attorney

Department of Professional Regulation 1940 North Monroe Street

Tallahasse, Florida 32399-0792 STATEMENT OF THE ISSUES

The issues for determination in this proceeding are whether question 37 on the February, 1990 General Contractor Examination is ambiguous and whether Petitioner should be given credit for his answer to Question 37 and be given a passing grade on the examination.

PRELIMINARY STATEMENT

By letter dated October 1, 1990, Petitioner requested a formal hearing to contest the failing grade he received on the General Contractor Examination given in February, 1990. Petitioner challenged questions 5, 25, and 37 as ambiguous.

The matter was referred to the Division of Administrative Hearings for assignment of a hearing officer on October 17, 1990, and assigned to the undersigned on November 6, 1990. The matter was set for formal hearing on March 6, 1990, pursuant to a Notice of Hearing issued on November 27, 1990.

At the formal hearing, Petitioner waived his challenges to questions 5 and

25 and proceeded with his challenge to question 37. The parties presented two joint exhibits which were admitted in evidence pursuant to the stipulation of the parties. Respondent presented an additional exhibit consisting of a copy of question 37 which was admitted under seal without objection. Petitioner testified in his own behalf and called his counsel to testify. Ruling on Respondent's objection to the testimony of Respondent's counsel was reserved for disposition in this Recommended Order. Respondent presented the testimony of one expert witness, David Olson.

A transcript of the record of the formal hearing was requested and filed with the undersigned on March 25, 1991 Proposed findings of fact and conclusions of law were required to be filed with the undersigned no later than April 4, 1991, and were timely filed by Respondent on April 4, 1991. Petitioner did not file proposed findings of fact and conclusions of law. Respondent's findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner is an unsuccessful candidate for the General Contractor Examination given in February, 1990, (the "examination"). Petitioner passed part three but failed parts one and two. Petitioner subsequently passed part one in June, 1990. Petitioner received a score of 69 percent on part two of the examination and needs only one point to pass part two and the entire examination. 1/ Question 37 is worth one point.

   
   

2. Respondent gave credit for answer "(D) 10" in response to question 37. Petitioner selected answer "(A) 0" in response to question 37.

   
   

3. Question 37 requires a candidate to apply Section 713.12, Florida Statutes, to the facts provided in the stem to question 37. Section 713.12, in relevant part, gives a spouse 10 days after learning of a contract to object to the signing of a contract by his or her spouse. Question 37 requires a candidate to determine how many days a wife has to object to a contract entered into by a contractor and both spouses but signed only by her husband with her knowledge.

   
   

4. Question 37 is not ambiguous. There is only one correct response to the question challenged by Petitioner. The correct response to the question is answer "(D) 10." Petitioner did not choose the correct answer for question 37.

   
   

5. The wife is not deemed to waive any objection she has if she does not make it at the time of the signing. The time that the wife learned of the contract and its signing is clear and unambiguous from the facts in the stem of the question. The contract was entered into by both the husband and wife and was signed by the husband with the wife's knowledge. The ordinary and plain meaning of the term "with" connotes "at the same time as." The only type of property that is reasonably contemplated in question 37 is real property.

   
   

6. Of the 649 candidates who took the examination, 81 percent selected answer "(D) 10." Of the candidates who scored in the upper 27 percent on the examination, 92 percent selected answer "(D) 10." Only two percent of the candidates selected answer "(A) 0."

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this proceeding. Section 120.57(1), Florida Statutes. The parties were duly noticed for the formal hearing.

   
   

8. Respondent's objection to the testimony of Petitioner's counsel is overruled. Petitioner's counsel is a licensed general contractor who spends the predominate amount of his professional time in the construction industry. He was qualified as an expert in the construction industry. Counsel practices very little law, is unfamiliar with administrative proceedings, and is Petitioner's natural father.

   
   

9. Petitioner has the burden of proof in this proceeding. Petitioner must demonstrate by a preponderance of the evidence that Respondent's action is arbitrary and capricious. Harac v. Department of Professional Regulation, Board of Architecture, 484 So.2d 1333, 1338 (Fla. 3rd DCA 1986); State ex rel Glaser

   v. J.M. Pepper, 155 So.2d 383 (Fla 1st DCA 1963); State ex rel I. H. Topp v. Board of Electrical Contractors, 101 So.2d 583 (Fla. 1st DCA 1958).

   
   

10. Petitioner failed to satisfy his burden of proof in this proceeding. Respondent presented the testimony of David Olsen, an expert in the field of general contracting and examination preparation and grading. Mr. Olson's testimony was persuasive.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's

challenge to question 37.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 8th day of April 1991.

DANIEL MANRY

Hearing Officer

Division of Administration 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 8th day of April 1991.

ENDNOTE

1/ The minimum score required to pass the examination is 69.01 percent.

APPENDIX

Respondent has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. No notation is made for unnumbered paragraphs. Petitioner did not submit proposed findings of fact.

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1-5 Accepted in Finding 1

6-8 Accepted in Finding 2

9-21 Accepted in Finding 4

22-23 Accepted in Finding 5

COPIES FURNISHED:

Daniel O'Brien Executive Director

Construction Industry Licensing Board

P.O. Box 2

Jacksonville, Florida 32202

Jack McRay, Esquire General Counsel 1940 North Monroe

Tallahassee, Florida 32399-0792

Sheldon Friefeld, Esquire The Ives Building, Suite 501 20801 Biscayne Boulevard

Aventura, Florida 33180

Roberta L. Fenner Staff Attorney

Department of Professional Regulation

1940 North Monroe

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties-have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-006590

Orders for Case No: 90-006590