STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT J. UEBELACKER, )

)

Petitioner, )

)

vs. ) CASE No. 90-7211

)

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 March 12, 1991, in Punta Gorda, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: no appearance

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 III of the building contractor 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 November 9, 1990, this matter was referred to the Division of Administrative Hearings and this proceeding followed.

At the hearing, it was determined that the Petitioner had been properly notified of the time and place of the hearing and after waiting twenty minutes and Petitioner failed to appear in person or through counsel, the hearing

proceeded. The Department presented David N. Olsen, as an expert witness. The transcript was not ordered transcribed, and neither party filed proposed findings of fact and conclusions of law.

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

FINDINGS OF FACT

1. Petitioner sat for reexamination at the June 1990 certified building contractor examination. On Part II, he received a score of 74.0. A minimum passing score is 69.01. On Part III, he received a score of 67.00. Minimum passing score is 69.01. Petitioner had previously passed Part I of the exam.

   
   

2. Petitioner initially challenged question numbers 4, 10 and 17.

   
   

3. 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 numbers 4, 10 & 17 for the certified building contractor examination administered on June 26 and 27, 1990.

   
   

4. As to question number 4, the only correct response to the question was answer "B". Petitioner's answer to the question was "D", which was not acceptable. As to question number 10, the correct response was answer "C". Petitioner's answer "B", was not acceptable. As to question number 17, the correct response was answer "C". Petitioner's answer "A" was not acceptable.

   
   

5. The Department's determination that answers "B", "C" and "C" were the only appropriate answers was not arbitrary and unreasonable.

   
   

   CONCLUSIONS OF LAW

   
   

6. 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.

   
   

7. 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.

   
   

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

   
   

9. 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).

   
   

10. Petitioner was scored 67.0 points, and 69.01 points was the minimal passing grade for Part III of the examination.

11. Petitioner failed to prove 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 not arbitrary when grading his examination. See: State of Florida v. J. M. Pepper, 155 So.2d 383 (Fla. 1st DCA 1963).

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the challenge by Petitioner that he be awarded a passing

grade for Part III of the June 1990 certified building contractors examination be DENIED.

DONE AND ENTERED this 19th day of April, 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 19th day of April, 1991.

COPIES FURNISHED:

Robert J. Uebelacker

326 NW Catherine Avenue Port Charlotte, FL 33952

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: 90-007211

Orders for Case No: 90-007211