STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GEORGE SOLAR, )

)

Petitioner, )

)

vs. ) CASE No. 90-6607

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on January 17, 1991, in Tampa, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: George Solar (pro se)

1302 West Adalee Street Tampa, Florida

For Respondent: Vytas J. Urba, Esquire

Senior Attorney

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida

STATEMENT OF THE ISSUES

Whether Petitioner should be granted additional credit for one or more examination questions answered by him during the June 1990 Certified Building Contractor Examination.

PRELIMINARY STATEMENT

Petitioner was notified that he failed to pass Part II of the Certified Building Contractor's examination and would not be licensed. Petitioner timely filed a challenge to three questions on the examination and sought a 120.57(1) formal hearing. On October 17, 1990, this matter was referred to the Division of Administrative Hearings and this proceeding followed.

At the hearing, the three challenged questions were admitted as joint exhibits. Two exhibits were admitted on behalf of the Petitioner and he testified in his own behalf. The Department offered one exhibit in evidence and presented David M. Olson, as an expert witness. The transcript was filed on

January 29, 1991. Petitioner filed proposed findings of fact and conclusions of law which were received on February 25, 1991. Respondent filed its proposals on February 8, 1991. The proposals of the parties have been given careful consideration and have been incorporated in the findings of facts where supported by the greater weight of the evidence. My specific rulings are contained in the Appendix attached hereto.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Petitioner sat for the June 1990 certified building contractor examination. On Part II, he received a score of 68.0. A minimum passing score is 69.01. On Part III, he received a score of 71.00. Minimum passing score is

   69.01. Petitioner had previously passed Part I of the exam.

   
   

2. Petitioner initially challenged question numbers 6, 13 and 14.

   
   

3. Upon completion of the testimony, Petitioner withdrew his challenges to question numbers 13 and 14.

   
   

4. The National Assessment Institute prepares licensure examinations for building contractors in the State of Florida under authority of the Office of Examination Services, Department of Professional Regulation. The Institute prepared question number 6 for the certified building contractor examination administered on June 26 and 27, 1990.

   
   

5. Question number 6 tested the candidate's ability to calculate the time necessary for a crew to excavate, form and pour concrete for a reinforced concrete curb and gutter in a parking area and have it inspected. The candidate was asked to select the earliest date that concrete can be scheduled to be poured. Four dates were given: (A) June 11, (B) June 13, (C) June 15, and (D) June 18, 1990. The Institute determined that the only correct answer was: (D) June 18, 1990. The Petitioner selected: (C) June 15, 1990.

   
   

6. Part of the instructions to the examination candidates stated: "The inspection request will NOT be called in the day the work is completed."

   
   

7. The evidence was undisputed that preliminary calculations indicate with regard to question 6 the mathematical approach to the solution demonstrates that the work will take nine days (rounded up), starting June 1 and completed on June 13, and, therefore, the inspection is to be called in on Thursday, June 14, 1990.

   
   

8. The third paragraph of the question states:

   
   

   Inspections have been taking one day from the time the inspection is called in until the time the inspection is completed. Inspections can NOT be called in or performed on Saturdays or Sundays."

   
   

9. The first sentence of the fourth paragraph states: "The concrete is to be placed the day after the inspection is completed." (Emphasis supplied)

10. The Department's position is that the plain language of the question indicates that it would take one day or 24 hours from the date the request for inspection was called in (June 14) until the inspection was completed which would be June 15. Since the instructions were clear that the concrete cannot be poured on the same day the inspection is completed or on Saturdays or Sundays, then the earliest date that the concrete can be scheduled is Monday, June 18, 1990, or answer (D).

    
    

11. The Petitioner argues that it is not uncommon in the construction industry to "call in" an inspection in the morning and have it completed on the same date (in one day). Therefore, since it is undisputed that the inspection is to be "called in" on Thursday, June 14, that it was reasonable and logical for him to conclude that the inspection would also be completed the same date. Since the question instructed that the concrete is to be placed the day after the inspection is completed, he selected answer (C), June 15, 1990 (a Friday) as the correct answer.

    
    

12. The Department does not dispute that it is common practice in the construction industry for an inspection to be called for and completed in one day.

    
    

13. The Department's determination that answer (D) was the only appropriate answer was arbitrary and unreasonable.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1), Florida Statutes.

    
    

15. Chapter 489, Florida Statutes, directs the Construction Industry Licensing Board follow the designated statutory guidelines prior to issuance of a license to every candidate for licensure. Section 489.111, Florida Statutes, requires successful completion of an examination prior to issuance of a license to practice building contracting. This section also vests the Department of Professional Regulation with authority and responsibility for grading such examinations.

    
    

16. Chapter 21D-11, Florida Administrative Code, specifies the manner for administration of licensure examinations and also the criteria for grading the examination.

    
    

17. Petitioner has the burden to prove by a preponderance of the evidence that his examination merited the award of more points than he received and that any extra points given would be sufficient to attain a passing grade on the examination. See generally: Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

    
    

18. Petitioner was scored 68.0 points, and 69.01 points was the minimal passing grade for Part II of the examination.

    
    

19. Petitioner proved by a preponderance of the evidence that one of his answers to the challenged questions was a correct answer deserving credit. The Department of Professional Regulation was arbitrary when grading his examination. See: State of Florida v. J. M. Pepper, 155 So.2d 383 (Fla. 1st DCA 1963). In particular, the Department's denial of credit for Petitioner's answer

    to question number 6 was devoid of logic and reason. Topp v. Board of Electrical Examiners for Jacksonville Beach, Florida, 101 So.2d 583 (Fla. 1st DCA 1958).

    
    

20. It was reasonably shown by the Department that the answer that they selected: (D) was not arbitrary or capricious or devoid of logic and reason.

    
    

21. It was equally shown by the Petitioner that the Department's interpretation of the sentence contained in paragraph 3 of question 6: "Inspections have been taking one day from the time the inspection is called in until the time the inspection is completed," is flawed. The Department insists that "one day" means that 24 hours must elapse between call in and completion of the inspection. They insisted that since the inspection could not be completed until Friday, June 15, the concrete could not be poured until Monday, June 18th. Petitioner successfully demonstrated that it was reasonable for him to assume that since the call in for the inspection would take place on the morning of the 14th that it was reasonable to calculate that the inspection would be completed that same day (or in one day) and that the concrete could be scheduled for pouring on Friday, June 15th and that his answer should have been accepted as correct.

    
    

22. Black's Law Dictionary, Fourth Edition, West 1951 defines the word "day" as: "A period of time consisting of twenty-four hours and including the solar day and the night." It also defines the word as: "The whole or any part of a period of 24 hours from midnight to midnight." The language of the question, therefore, was ambiguous. It was, therefore, arbitrary and unreasonable for the Department to assume, without so instructing the candidates, that 24 hours must elapse between call in and completion of the inspection and that answer (D) to question 6 was the only correct answer.

    
    

23. Petitioner should be awarded four points for his answer to question 6, which would give him a point score of 72.00 points for Part II, a passing grade.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that:

1. Petitioner be awarded four points for his answer to question number 6 of Part II of the Certified Building Contractor examination for June, 1990.

   
   

2. Petitioner be awarded a passing grade for Parts II and III of the examination.

DONE AND ENTERED this 28th day of March, 1991, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

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 28th day of March, 1991.

APPENDIX

The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Petitioner's proposed findings of fact.

Accepted in substance: paragraphs 1,2,3,4,5,6,7,10 Rejected as argument: paragraphs 8,9

Respondent's proposed findings of fact.

Accepted in substance: paragraphs 1,2,3(included in Preliminary Statement), 4(in part),5.

Rejected: paragraph 4(in part, as against the greater weight of the evidence and argument), 5 and 6(challenge withdrawn)

Copies furnished:

George Solar

1302 West Adalee Street Tampa, Florida

Vytas J. Urba, Esquire Senior Attorney

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Daniel O'Brien, Executive Director Construction Industry Licensing Board Post Office Box 2

Jacksonville, Florida 32202

Jack McRay, Esquire General Counsel

Department of Professional Regulation 1940 North Monroe Street

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 10 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: 90-006607

Orders for Case No: 90-006607