STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RON WOODRING, )

)

Petitioner, )

)

vs. ) CASE Nos. 91-1883

) 91-2692

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Veronica E. Donnelly, held a formal hearing in the above-styled case on September 20, 1991, in Dade City, Florida.

APPEARANCES

For Petitioner: Ron Woodring, pro se

38219 Palmgrove Drive

Zephyrhills, Florida 33541

Leonard E. Ernest, M.A.Ed. Qualified Interpreter for the Deaf Hillsborough Community College Dale Mabry Campus-Interpreter

Training Program Post Office Box 30030

Tampa, Florida 33630 3030

For Respondent: Vytas J. Urba, Esquire

Assistant General Counsel

Dept of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 0792

STATEMENT OF THE ISSUES

Whether problems occurred in Petitioner's examinations for licensure during the October 1990 and February 1991 construction examinations which were due to the Department's inaction or negligence.

Whether provisions were made for Petitioner's physical handicap during the exam process.

Whether Petitioner's responses to the examination questions on either of the examinations were sufficient to allow him to receive a passing grade and licensure.

PRELIMINARY STATEMENT

Petitioner, Ron Woodring (Woodring) was notified that he failed to pass all three parts of the Certified Building Contractor's Examination given in October 1990. Woodring timely filed a challenge to questions on the examination. He also challenged the provisions Respondent, Department of Professional Regulation, Construction Industry Licensing Board (the Department) made for his physical handicap during the examination process. A formal administrative hearing was sought by Petitioner, and the case was referred to the Division of Administrative Hearings.

While the original exam challenge was pending, Petitioner took the February 1991 Certified Building Contractor's Examination. After Petitioner failed to pass this examination, an Administrative Complaint was filed concerning this examination session. The second complaint deals solely with constitutional issues. The case was referred to the Division of Administrative Hearings along with a Motion for Consolidation with the prior case. The Department's Motion for Consolidation was granted, and the two cases were scheduled for hearing.

After a qualified interpreter was appointed for Petitioner Woodring, the Hearing Officer gave Petitioner the opportunity to challenge questions on the second examination. A review of the earlier exam challenge questions along with the second exam was scheduled and attended by Petitioner.

As part of the prehearing conference, it was stipulated that all constitutional issues could be submitted in written form and preserved for review by the appellate court, who would have subject matter jurisdiction if either party timely appeals the Final Order ultimately entered in these proceedings. All of the constitutional issues that were not ruled upon by the Hearing Officer were preserved for the court's review.

During the hearing, Petitioner testified in his own behalf and submitted two exhibits. He was allowed to take Exhibit 1 back into his possession and to file it posthearing. The Department called four witnesses and submitted five exhibits. One joint exhibit was filed. All of the exhibits were admitted into evidence. An additional exhibit was filed by Respondent and admitted into evidence posthearing as Respondent's Exhibit 6.

Although given the opportunity, Petitioner did not challenge specific exam questions in the February 1991 examination.

A transcript of the proceedings has been filed. Posthearing, Petitioner requested a free transcript. On January 8, 1992, Petitioner was found to be indigent and the Department was ordered to provide him with a copy of the transcript due to indigency and the finding that the process of having to work through an interpreter interfered with his ability to recollect the proceedings for purposes of Proposed Recommended Order preparation without a transcript.

The deadline for filing a Proposed Recommended Order by Petitioner was extended by the Hearing Officer to allow the Petitioner a second opportunity to file a Proposed Recommended Order after the transcript was received. Petitioner has never acknowledged receipt of the transcript. Neither a waiver of the opportunity to file the Proposed Recommended Order nor a filing of such a document was received by the Division of Administrative Hearings from Petitioner.

Petitioner's Exhibit 1 was not returned to the record. However, a copy of the same document is in Petitioner's Exhibit 2, and will be used in lieu of the original.

FINDINGS OF FACT

1. Petitioner Woodring has taken the Certified Residential Contractor's Examination three times. During these test taking sessions, he has been unable to successfully pass the examination.

   
   

2. The second time Petitioner took the examination was in October 1990. His scores on the examination were: Part I - 64; Part II - 66; and Part III -

63. A passing score for each part is 69.01.

3. After receiving his test results, Woodring challenged the scoring of some of the questions on the examination. At hearing, Woodring challenged the following questions: Part I - Questions 3 and 16; Part III - Questions 7, 8 and

1. Petitioner also challenged the exam format and procedures. He asserts that provisions were not made for his learning disabilities or physical handicaps.

   
   

   1. Petitioner gave the answer "D" as the correct answer for Question 3 on Part I of the examination.

      
      

   2. The Department established at hearing that the question contained all of the information necessary to make the required computations and that "B" was the correct answer.

      
      

   3. Petitioner did not demonstrate entitlement to credit for his incorrect answer to that question. During the test, he made a mathematical error when he calculated the cost of the program and a second mathematical error when he projected the savings. As a result, he arrived at the wrong answer.

      
      

   4. Petitioner marked "B" as the correct answer to Question 16 on Part I.

      
      

   5. The Department established at hearing that the correct answer is "C".

      
      

   6. The answer given by Petitioner was erroneous. He admitted at hearing that he had used the wrong table in the Circular E withholding chart from the Internal Revenue Service reference material. During his reading of the problem, he had confused "biweekly" and "semimonthly."

      
      

   7. Petitioner did not demonstrate entitlement to credit for his incorrect answer on that question.

      
      

   8. On Question 7 on Part III, Petitioner marked "D" as the correct answer. In reaching that result, Petitioner correctly calculated the amount of liquidated damages that would occur if the contractor decided to wait during a delay period on the delivery of his original tile order. Petitioner's response to the question was based on this calculation.

      
      

   9. The calculation of the liquidated damages was a preliminary calculation in a larger, more complex problem. Petitioner was required to also calculate the cost of the more expensive tile which could be delivered on time, and determine if the use of this tile would be less expensive to him or her than waiting on the delayed delivery of the less expensive tile.

   10. The question was unambiguous, and the exam materials contained all of the information necessary for completion of the problem.

       
       

   11. The Department established at hearing that the correct answer was "B".

       
       

   12. Petitioner failed to comprehend that he was to mitigate the costs to a contractor from the tile delay by determining if the immediate use of the more expensive tile would be less costly to a contractor than the anticipated liquidated damages.

       
       

   13. The flaw was in Petitioner's reading comprehension of this problem as opposed to a flaw in the challenged question. As a result, Petitioner is not entitled to credit for his answer.

       
       

   14. The correct answer for Question 8 on Part III is "C". Petitioner gave "A" as the correct answer.

       
       

   15. When Petitioner did his calculations of the material and labor costs for the creation of the concrete driveway, he used only the descriptions of material and labor costs charted in the problem. He did not apply this information to the additional information set forth in the Residential Plans and specifications.

       
       

   16. The problem directed the examinees to refer to the Residential Plans and specifications when solving this problem. These documents contained the data needed to calculate the area of the driveway.

       
       

   17. Petitioner's failure to apply the information provided in the plans resulted in the underestimation of the area of the driveway by over 33 percent. This significant difference was what caused Petitioner to select the wrong answer to the exam question.

       
       

   18. The Department established at hearing that the correct answer was "C". The question was unambiguous.

       
       

   19. Petitioner is not entitled to credit for the answer he gave to this question.

       
       

   20. The correct answer for Question 13 of Part III is "A". Petitioner marked "D" as the proper response.

       
       

   21. A review of the Residential Plans and specifications shows that the structure did not contain any forty x one x four trusses. Therefore, no time was required for the lifting and placing of trusses of this size.

       
       

   22. In arriving at his answer, Petitioner failed to determine the size of the trusses he was counting on the Residential Plans. If he had properly read the plans, he would have seen that there were no trusses of this size, according to the specifications.

       
       

   23. By failing to size the trusses on the plan, Petitioner came to an incorrect answer. He is not entitled to credit for the answer given because he did not demonstrate competence in reading and interpreting plans, as required by the question.

   24. During the application process, all exam candidates are advised in writing that the Department will provide special assistance to candidates with learning disabilities or physical handicaps to the ultimate extent possible.

       
       

   25. The burden is on the exam candidate to timely request the special assistance and to obtain the prerequisite certification of handicaps.

       
       

   26. Petitioner did not notify the Department of his handicaps in the manner set forth in the Candidate Booklet provided to him during the application process. If proper certifications had been provided prior to the last two testing sessions, the Department could have made a decision as to whether the test instrument and test administrative procedures should have been modified on Petitioner's behalf.

       
       

   27. The Petitioner, who now understands that Certifications of Handicaps are necessary, has had such certifications of handicap completed since the February 1991 examination.

       
       

   28. The Department was not under a duty to discover Petitioner's handicaps nor was it required to make provisions for those handicaps in the testing process without prior receipt of the necessary information.

       
       

   29. No provisions were made for Petitioner's handicaps during the October 1990 and February 1991 testing sessions.

       
       

   30. At hearing, Petitioner established he was deaf and did not understand verbal instructions and time warnings during the aforementioned testing sessions. This situation adversely affected his performance on both occasions.

       
       

       CONCLUSIONS OF LAW

       
       

   31. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to Section 120.57(1), Florida Statutes, and Rule 21-11.012, Florida Administrative Code.

       
       

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

       
       

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

       
       

   34. Petitioner has the burden of establishing by a preponderance of the evidence that the Department's decision to deny credit for his answers to the challenged questions constitutes arbitrary and capricious action. State ex rel. Glasser v. J.M. Pepper, et al., 155 So.2d 383 (Fla. 1st DCA 1963). Petitioner has failed to meet that burden.

       
       

   35. The evidence adduced at hearing reveals Petitioner made errors on the exam and was unable to establish competency. Accordingly, the Department cannot issue the certification requested until Petitioner successfully completes the examination.

   36. Rule 21-11.008, Florida Administrative Code, allows the Department to provide special assistance to examinees with learning disabilities or handicapped conditions. Examination formats and procedures may be modified to accommodate for impairments, depending on the nature and severity of the condition. Each case is dealt with on an individual basis. In order to gain the special assistance the Department is willing to provide, an exam candidate must timely request the special assistance and provide the Department with certifications from a psychologist, physician or learning disability specialist.

       
       

   37. The Petitioner in this case did not provide the Department with the necessary certifications prior to his testing sessions. As it was his responsibility to provide this information, he cannot shift this responsibility to the Department after failing scores demonstrate he needed a special exam setting to demonstrate competency.

       
       

   38. Section 455.230, Florida Statutes, provides in pertinent part, as follows:

       
       

   39. 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 opened to public inspection.

       
       

   40. Based upon the foregoing, all of the challenged exam questions are sealed and not open to public inspection.

RECOMMENDATION

Accordingly, it is RECOMMENDED:

1. The Department should enter a Final Order which denies Petitioner's challenges to Part I - Questions 3 and 16; Part III - Questions 7, 8 and 13.

   
   

2. Petitioner's request for certification without a demonstration of competency through successful completion of the exam should also be denied.

   
   

3. Prior to any reexamination, the proper prerequisite certifications should be given to the Department by Petitioner so that special assistance can be given, if needed.

   
   

4. The Joint Exhibit and Respondent's Exhibits 5 and 6 should remain sealed and not open to public inspection. Any other exhibits or file documents marked confidential should also remain sealed.

DONE and ENTERED this 15th day of April, 1992, in Tallahassee, Leon County, Florida.

VERONICA E. DONNELLY

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 15th day of April, 1992.

APPENDIX TO RECOMMENDED ORDER, CASE Nos. 91-1883 & 91-2692

Respondent's proposed findings of fact are addressed as follows:

1. Rejected. Contrary to fact.

2. Accepted.

Copies furnished:

VYTAS J URBA ESQ ASST GENERAL COUNSEL

DEPARTMENT OF PROFESSIONAL REGULATION NORTHWOOD CENTRE STE 60

1940 N MONROE ST TALLAHASSEE FL 32399-0792

RON WOODRING 38219 PALMGROVE DR

ZEPHYRHILLS FL 33541

LEONARD M ERNEST MA ED HILLSBOROUGH COMMUNITY COLLEGE

DALE MABRY CAMPUS/INTERPRETER TRAINING PROGRAM PO BOX 30030

TAMPA FL 33630-3030

DANIEL O'BRIEN/EXECUTIVE DIRECTOR CONSTRUCTION INDUSTRY LICENSING BOARD

111 EAST COASTLINE DR - RM 504 PO BOX 2

JACKSONVILLE FL 32202

JACK McRAY ESQ/GENERAL COUNSEL DEPT OF PROFESSIONAL REGULATION NORTHWOOD CENTRE - STE 60

1940 N MONROE ST 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: 91-001883

Orders for Case No: 91-001883