STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSEPH A. TRILLO, )

)

Petitioner, )

)

vs. ) CASE NO. 92-4924

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, ELECTRICAL ) CONTRACTORS LICENSING BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on November 19, 1992, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Joseph A. Trillo, pro se

800 Jeffrey Street

Boca Raton, Florida 33487

For Respondent: Vytas J. Urba, Esquire

Assistant General Counsel

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0750 STATEMENT OF THE ISSUES

Whether Petitioner has been improperly denied licensure as an alarm systems contractor due to unreasonable grading or administration of the licensure examination.

PRELIMINARY STATEMENT

Petitioner is a successful, experienced alarm systems contractor licensed in the states of Rhode Island and Massachusetts. Petitioner sought licensure in Florida and sat for the alarm systems contractor examination administered by Respondent in January 1992. Petitioner did not pass the examination and brought the instant action to challenge the type questions on the examination and the makeup of the Electrical Contractors Licensing Board (ECLB). Petitioner argues that questions pertaining to law and accounting are inappropriate and that certain questions pertain to outdated technology. Further, Petitioner argues that more alarm system contractors should be members of the ECLB. The questions challenged by Petitioner were Questions 1, 6, 17, 18, 19, 23, 25, 76, 78, 83,

and 98.

At the formal hearing, Petitioner testified on his own behalf and presented six exhibits, three of which were admitted into evidence and three of which were rejected. Respondent called as its only witness Charles Pardue and presented two exhibits, which were accepted into evidence. Mr. Pardue is an employee of Block & Associates, the entity that prepared the subject examination for Respondent. Petitioner's Exhibit 6 and the examination questions were accepted into evidence as confidential exhibits and have been sealed.

A transcript of the proceedings has been filed. Rulings on the parties' proposed findings of fact may be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner is an experienced and successful alarm system contractor licensed in Rhode Island and Massachusetts. Petitioner sought licensure as an alarm system contractor in Florida and sat for the Alarm System II Contractor's Examination administered by Respondent in January 1992. Applicants for licensure as alarm system contractors must pass the examination to be qualified for licensure. Petitioner's final grade on the examination was 70, but the minimum passing grade was 75. Petitioner did not pass the examination and, consequently, he was denied licensure.

   
   

2. All challenged questions were multiple choice questions and the candidates were to select the best answer from the four possible answers provided. Candidates were allowed to use approved source materials during this open book examination.

   
   

3. Petitioner challenged Questions #1, 17, 18, 19, and 76 because the content of each question pertained to accounting. For the reasons to be discussed in the Conclusions of Law portion of this Recommended Order, Petitioner's contention that accounting questions should not be included on the examination is rejected.

   
   

4. The answer Petitioner selected for Question #1 was not the best answer to the question. Consequently, Petitioner was properly denied credit for his response to Question #1.

   
   

5. The answer Petitioner selected for Question #17 was not the best answer to the question. Consequently, Petitioner was properly denied credit for his response to Question #17.

   
   

6. The answer Petitioner selected for Question 18 was the best answer for the question, and he was awarded appropriate credit for that correct answer.

   
   

7. The answer Petitioner selected for Question #19 was not the best answer to the question. Consequently, Petitioner was properly denied credit for his response to Question #19.

   
   

8. The answer Petitioner selected for Question 76 was the best answer for the question, and he was awarded appropriate credit for that correct answer.

   
   

9. Petitioner challenged Question #6 contending that the question was badly worded and that there were three possible answers to the question. Petitioner selected answer "B" as his answer to the question, but argued at hearing that answers "A", "B", or "C" are also correct answers. Respondent asserts that answer "C" is the best answer to the question. Petitioner failed

   to establish that Question #6 was impermissibly vague or that Respondent's determination that answer "C" was the best answer to the question was devoid of logic or reason. The answer Petitioner selected for Question #6 was not the best answer to the question. Consequently, Petitioner was properly denied credit for his response to Question #6.

   
   

10. Petitioner challenged Question #23. The answer Petitioner selected for Question #23 was not the best answer to the question. Consequently, Petitioner was properly denied credit for his response to Question #23.

    
    

11. Petitioner challenged Question #25 on the basis that the question was a trick question and that there were three possible answers to the question. Petitioner selected answer "B" as his answer to the question, but argued at hearing that answers "A", "B", or "C" are also correct answers. Respondent asserts that answer "A" is the best answer to the question. Petitioner established that his answer to the question was as correct as the answer selected by Respondent as the best answer to the question. Consequently, Petitioner was improperly denied credit for his response to Question #25.

    
    

12. Petitioner challenged Question #78 and argued that the source material upon which Respondent based its answer is obsolete. Petitioner chose answer "A" while Respondent asserts that answer "D" is the best answer to the question. Respondent's answer appears in "Design Applications of Security Fire Alarm Systems", a reference book to which the candidates were permitted to refer while taking the examination. While Petitioner was very critical of this reference book, he failed to establish that Respondent could not rely on the book or that the determination by Respondent that answer "D" was the best answer to the question was devoid of logic or reason. Petitioner failed to establish that Question #78 was an improper question or that he was entitled to credit for his answer to the question.

    
    

13. At the formal hearing, Petitioner raised for the first time a challenge to Question #83, a question pertaining to the use of coaxial cable. Petitioner contends that because alarm system contractors do not routinely use coaxial cable, the question is improper and should be thrown out. Petitioner concedes that the information necessary to correctly answer the question was in the resource material to which the candidates were permitted to refer while taking the examination and that he gave the wrong answer to the question. Petitioner failed to establish that Question #83 pertained to an improper subject or that he was entitled to credit for his response to the question.

    
    

14. Petitioner challenged Question #98. After the examination was administered, the Electrical Contractors Licensing Board rejected this question from every candidate's examination as being outside the scope of practice. Consequently, that question was not a factor in the scoring of Petitioner's examination.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

    
    

16. Section 489.516, Florida Statutes, provides that a person desiring to be licensed as an alarm system contractor on a statewide basis shall pass the appropriate examination administered by Respondent. Respondent has the responsibility for administering that examination. See, Section 455.217, Florida Statutes.

17. Petitioner has the burden of proving by a preponderance of the evidence that he is entitled to the relief he seeks. Rule 28-6.08(3), Florida Administrative Code. See also, Florida Department of Transportation v. J.W.C., Co., 396 So.2d 778 (Fla. 1st DCA 1981). Petitioner has not established that Respondent graded his examination arbitrarily or that the decision to deny him credit for his answers to Questions 1, 6, 17, 19, 23, 78, and 83 lacked logic or reason. See, Harac v. Department of Professional Regulation, 484 So.2d 1333, 1338 (Fla. 3d DCA 1986). Compare, Topp v. Board of Electrical Examiners for Jacksonville Beach, Florida, 101 So.2d 583 (Fla. 1st DCA 1958).

    
    

18. General business is a required part of the examination. See, Rules 21GG-6.001(3) and 21GG-6.015, Florida Administrative Code. An agency's interpretation of its own rules and regulations will not be overturned even if such interpretation is not the sole possible interpretation, the most logical interpretation, or the most desirable interpretation. An agency's interpretation of its rules and governing statutes will not be overturned unless the interpretation is clearly erroneous. Health Quest Corporation, et al. v. Department of Health and Rehabilitative Services and Arbor Health Care Co., et al., 11 FALR 5427 (1989), ABC Liquors, Inc. v. Department of Business Regulation, 397 So.2d 696 (Fla. 1st DCA 1981); Department of Insurance v. Southeast Volusia Hospital District, 438 So.2d 815 (Fla. 1983). Petitioner failed to establish that the inclusion of Questions #1, 17, 18, 19, and 76 because the content of each question pertained to accounting was a clearly erroneous interpretation by Respondent of its rules and governing statutes. Consequently, Petitioner's challenge that those questions are too difficult or should be invalidated because they pertain to accounting is rejected.

    
    

19. Petitioner answered Questions #18 and 76 correctly, and he received appropriate credit for his answers.

    
    

20. Petitioner established by a preponderance of the evidence that there were two equally correct answers to Question #25. Petitioner's response, answer "B" is just as correct as the answer selected by Respondent, answer "A". Consequently, Petitioner should be awarded credit for his answer to Question #25. Petitioner failed to establish that he was entitled to credit for any of the other challenged questions.

    
    

21. Even if Petitioner had been able to establish that one of the questions should be invalidated, he would not have been entitled to receive credit for his incorrect answers to that question. An invalid question does not further the purpose of the examination, which is to test minimum competency of persons who desire to practice a regulated profession. See, Alvarez v. Department of Professional Regulation, 458 So.2d 808 (Fla. 1st DCA 1984), and Department of Professional Regulation v. Hillegas, 13 FALR 184 (DOAH 90-1611, 1990). See also Rule 21-11.011(3), Florida Administrative Code.

    
    

22. Petititioner failed to establish that the ECLB is illegally constituted.

    
    

23. Section 455.229(2), Florida Statutes, provides, in pertinent part, as follows:

(2) ... If an administrative hearing is held, the department shall provide challenged examination questions and answers to the hearing officer. The examination questions

and answers provided at the hearing are confidential and exempt from s. 119.07(1), unless invalidated by the hearing officer.

...

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which awards Petitioner credit

for his answer to Question #25, but which denies him additional credit for his answers to the other challenged questions. It is further recommended that the examination questions and Petitioner's Exhibit 6 pertaining to certain of the examination questions be sealed as confidential exhibits.

DONE AND ENTERED this 19th day of January, 1993, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 January, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-4924

The post-hearing submittal filed by Petitioner consists of argument and suggestions as to measures the Respondent should take to improve the examination, but does not contain proposed findings of fact that require a ruling from the undersigned.

The proposed findings of fact submitted by Respondent are adopted in material part by the Recommended Order.

COPIES FURNISHED:

Joseph A. Trillo 800 Jeffrey Street

Boca Raton, Florida 33487

Vytas J. Urba, Esquire Assistant General Counsel

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0750

Daniel O'Brien, Executive Director Department Of Professional Regulation Electrical Contractors Licensing Board 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Jack McRay, 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 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: 92-004924

Orders for Case No: 92-004924