STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANTHONY S. RACHUBA, JR., )

)

Petitioner, )

)

vs. ) CASE NO. 90-7212

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, CONSTRUCTION INDUSTRY ) LICENSING BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on February 22, 1991, in Tallahassee, Florida, before Joyous D. Parrish, a designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Anthony S. Rachuba Jr., pro se

1665 Foulkrod Street

Philadelphia, PA 19124

For Respondent: Vytas J. Urba

Assistant General Counsel Department of Professional

Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

STATEMENT OF THE ISSUES

The central issue in this case is whether Petitioner should obtain credit for the answers he gave to questions 1, 3, 4, 12, 13, 14, 17 and 19 of the June, 1990 certified plumbing contractor examination.

PRELIMINARY STATEMENT

This case began on October 12, 1990, when the Petitioner, Anthony S. Rachuba, Jr., filed an appeal to challenge his examination results. The matter was forwarded to the Division of Administrative Hearings for formal proceedings on November 14, 1990.

At the hearing, Petitioner testified in his own behalf and presented the testimony of Robert Koning, a licensed plumbing contractor. Larry Simmons, a licensed mechanical contractor employed as a consultant to ACSI, and David Olsen a licensed plumbing contractor, employed by National Assessment Institute, a division of ACSI, testified on behalf of the Respondent. A composite exhibit

consisting of the challenged questions, copies of Petitioner's responses, and the correct answers (as to questions 12, 13, 14, 17 and 19) together with portions of the Standard Plumbing Code have been received.

After the hearing the transcript of the proceedings was filed on March 20, 1991. The corrected transcript, p. 140, was filed on April 1, 1991. The parties waived the requirements of Rule 22I-6.031, Florida Administrative Code and agreed to submit their proposed findings of fact within thirty days of the filing of the transcript. Specific rulings on the proposed findings of fact are included in the attached appendix.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence received, the following findings of fact are made:

1. The Petitioner is an unsuccessful applicant for licensure to become a certified plumbing contractor. Petitioner took the examination administered in June, 1990, and timely filed written challenges to questions numbered 1, 3, 4, 12, 13, 14, 17 and 19.

   
   

2. The examination was developed by the National Assessment Institute, a division of ASCI, for the Department of Professional Regulation, Construction Industry Licensing Board (Department). Petitioner's challenges were disallowed by the Department and the instant review was initiated by Petitioner.

   
   

3. The challenged questions can be divided into two categories: questions 1, 3, and 4 of the exam required the applicant to review a plan view of a plumbing configuration and to draw an isometric view of the plumbing design.

   The second group of questions: 12, 13, 14, 17 and 19 required the applicant to answer multiple choice options based upon the Standard Plumbing Code and the illustrations related to each question.

   
   

4. With regard to questions 1, 3, and 4 the skill tested was the applicant's ability to look at the plan view, a single dimension floor plan, and to draw the isometric view, a three dimensional plan of the piping system with elevations relative to the fixtures being depicted. As to each of these questions the applicant was to assume the following:

   
   

   GIVEN: Floor plan for a sanitary waste and vent system serving a typical commercial building. Assume the drawing and piping arrangement are in accordance with the Standard Plumbing Code. Draw an isometric piping diagram in the space provided on the right. Maintain the same fixture arrangement and piping configuration. Do not show pipe sizes.

   
   

5. With regard to question 1, the Petitioner challenged the question because the isometric drawing for the floor drain would have to be lower than the other fixtures. Since the plan view only depicted one pipe, which connected the water closets and the urinals, Petitioner determined that the floor drain could not be drawn at the appropriate elevation. To correctly draw the isometric for this question Petitioner would have had to assume the question deviated from a normal construction drafting method and "hid" a pipe below the

   pipe serving the other fixtures. Instead of indicating the second pipe for the floor drain, Petitioner omitted it altogether since he believed only one pipe was there.

   
   

6. Petitioner altered the piping configuration with regard to the shower for question 1 in that he tied the vent stack to the one vent through the roof instead of showing the shower with its own vent. Consequently, Petitioner's isometric drawing for question 1 was incorrect.

   
   

7. With regard to question 3, Petitioner challenged this question since he felt his isometric drawing correctly depicted the plumbing configuration. Question 3 showed a plan view of four bathrooms utilizing a "T" shaped pipe to which the fixtures would drain. Petitioner's isometric drawing did not show traps for the lavatories to be installed. Instead, Petitioner indicated "LAVS" next to the piping configuration. Traps are required for all lavatories and should have been depicted on the isometric drawing. The Petitioner's drawing for question 3 was therefore incorrect.

   
   

8. Petitioner's challenge to question 4 was based upon his assertion that the plan view did not depict a kitchen sink vent and that, therefore, his isometric of that plan would only need to draw the piping as shown. Additionally, Petitioner noted that the sink was not described in the schedule of fixtures listed in the legend for the examination.

   
   

9. Petitioner's challenge to question 4 is valid because the configuration shown in the plan view would be improper and contrary to code. Consequently Petitioner's isometric, while not to code standard, conforms to the plan requested. The Department's assertion that the wall clean out should be viewed also as a vent is contrary to the way vents are depicted throughout the test and was not credible.

   
   

10. The Petitioner's challenge to question 12 claimed that while his answer was incorrect the Department's answer was also incorrect. The most correct selection from the options offered was "D". Petitioner has substantiated this claim based upon the horizontal branch having a sufficient diameter to accommodate the four "sink" fixtures. Consequently, this question should be deleted from scoring. This question could have reasonably been calculated based upon two interpretations of the code. Accordingly, the only correct answer was "D".

    
    

11. Question 13 related to a horizontal fixture branch for a public bathroom setting. In the diagram two back-to-back bathrooms with three water closets (tank type) and two lavatories were depicted. As drawn the Department claimed the illustration complies with the code. The Petitioner determined that the loop vent for the configuration was too small. The essence of Petitioner's claim is based upon an assertion that the developed length of the piping for fixture clearances must be considered to compute the vent size on the vertical rise. Based upon the code requirements the 2 inch vent depicted in zone "H" cannot meet standards. Consequently, the system does not comply with the code. Petitioner should receive credit for this question.

    
    

12. Question 14 related to zone "I" which depicted a bathroom configuration. According to the Department, the system, as illustrated, complied with the code. Petitioner's response to the question found the vertical vent through the roof to be too small. The issue for this question relates to whether the floor drain should be assigned 5 drainage fixture units or 1 drainage fixture unit. The number of the fixture units dictates the pipe

    size. In this instance the 1 1/2 inch vent pipe is incorrect. Consequently, the Department's answer for this question was incorrect. The Petitioner's answer was more correct but was also erroneous since the size pipe through the roof was large enough.

    
    

13. Zone "L" depicted a horizontal combination for a waste and vent system located within an area which did not allow the fixtures to be individually vented. Question 17 required the applicant to review the configuration and to determine whether the drawing was correct or incorrect. If incorrect, the options required the applicant to specify the reason the system failed to meet code. For this question the Department and the Petitioner both concluded that the system was incorrect. The reasons differed, however, as to why the depicted design failed. In this instance the system could be permitted if the upstream system were washed. The Petitioner's answer was as correct as that of the Department; consequently, Petitioner should receive credit for his answer.

    
    

14. Petitioner's challenge to question 19 claimed that the Department's answer required the applicant to look at a separate zone ("M") to reach the answer. The review of the second zone was contrary to the general instructions according to Petitioner. Petitioner's assertion in this regard was incorrect since the zones were interrelated and reasonably had to be reviewed together. Based upon that assessment the Department's answer was the most correct.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings.

    
    

16. Section 489.113(1), Florida Statutes, provides:

    
    

    Any person who desires to engage in contracting on a statewide basis shall, as a prerequisite thereto, establish his competency and qualifications to be certified pursuant

    to this part. To establish his competency, a person shall pass the appropriate examination administered by the department....

    
    

17. Petitioner has the burden of establishing by a preponderance of the evidence that Respondent's decision to allow no credit for his answers to the challenged questions constitutes arbitrary and capricious action or an abuse of discretion.

    
    

18. In this case, Petitioner has met the burden of establishing that the Department's answers or grading of questions 4, 12, 13, 14, and 17 was arbitrary or incorrect. Petitioner has not met that burden as to the balance of the questions challenged. Petitioner is entitled to credit for questions 4, 13, and

17. As to questions 12 and 14 the Department should delete those questions to recompute Petitioner's score.

19. Section 455.230, Florida Statutes, provides:

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, it is hereby, RECOMMENDED:

That a final order be entered granting Petitioner's challenge to the examination as to questions 4, 12, 13, 14, and 17; giving Petitioner credit for

his answers to questions 4, 13, and 17, and deleting questions 12 and 14. Further, that the examination questions and answers provided at hearing be sealed and not open to public inspection.

DONE AND ENTERED this 13th day of May, 1991, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

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 13th day of May, 1991.

APPENDIX TO RECOMMENDED ORDER

Rulings on the Proposed Findings of Fact submitted by the Petitioner:

Petitioner did not submit proposed facts in a form to allow specific rulings as to acceptance or rejection of a stated fact. The unnumbered paragraphs consuming 10 pages contained argument, comment, and supposition in addition to factual matters related to the challenge. The paragraphs (referred to in order of their presentation) which can be accepted are as follows: 2, 4, 14, 15, 17, 18, 21 and 22. All other paragraphs contain either comment or are too nonspecific to accept in the form presented. Consequently they are rejected as argument, recitation or citation to testimony, or irrelevant.

Rulings on the Proposed Findings of Fact submitted by the Respondent:

Respondent also failed to present proposed findings of fact in a form to allow rulings on a convenient basis. Rulings are addressed by numbered paragraphs as to those accepted:

1. The first sentence of paragraph 1 is accepted.

   
   

2. The last three sentences of paragraph 1 are accepted.

   
   

3. With regard to paragraph 2, the first sentence and the last two sentences of the paragraph are accepted.

   
   

4. The first sentence of paragraph 3 is accepted.

   
   

5. The first three sentences of paragraph 4 are accepted.

   
   

6. The first three sentences of paragraph 5 are accepted.

   
   

7. The last sentence of paragraph 7 is accepted.

   
   

8. The first three sentences and the last sentence of paragraph 8 are accepted.

The remaining portions of the proposed facts are rejected as recitation of testimony, comment, or argument.

COPIES FURNISHED:

Anthony S. Rachuba, Jr. TR Mechanical, Inc.

1665 Foulkrod Street

Philadelphia, PA 19124

Vytas J. Urba, Staff Atty.

Dept. of Professional Regulation 1940 N. Monroe St., Ste. 60

Tallahassee, FL 32399-0792

Daniel O'Brien, Exec. Director DPR-Construction Industry

Licensing Board

P.O. Box 2 Jacksonville, FL 32202

Jack McRay, General Counsel Dept. of Professional Regulation 1940 N. Monroe St., Ste. 60

Tallahassee, FL 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: 90-007212

Orders for Case No: 90-007212