STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEPHEN KENT BAKER, )

)

Petitioner, )

)

vs. ) CASE NO. 92-5624

) 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, William F. Quattlebaum, held a formal hearing in the above-styled case on January 11, 1993, in Fort Myers, Florida.

APPEARANCES

For Petitioner: Stephen K. Baker, pro se

SunBank Financial Center

12730 New Brittany Blvd., Suite 415 Fort Myers, Florida 33097

For Respondent: Vytas J. Urba, Esq.

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUE

The issue presented for consideration is whether the Petitioner's answers to questions 44, 65, 67, 71, 78, and 80 as set forth on the February 1992 examination for licensure as a Commercial Pool/Spa Contractor were inappropriately scored.

PRELIMINARY STATEMENT

In March, 1992, Stephen Kent Baker took and failed the examination for licensure as a Commercial Pool/Spa Contractor. By letter through legal counsel dated July 1, 1992, Mr. Baker requested a formal hearing to challenge the results of the exam. The Department of Professional Regulation forwarded the request to the Division of Administrative Hearings.

At hearing, Mr. Baker testified on his own behalf and had seven exhibits admitted. The Department presented the testimony of Karl G. Lieblong and had one exhibit admitted.

Mr. Baker's exhibits numbered 1-6 are questions from the challenged examination. Upon request of the Department and without objection, these exhibits are enclosed in a sealed envelope to preserve the confidentiality of the questions.

A transcript was filed on February 3, 1993. On January 19, 1993, Mr. Baker filed a letter which contains several numbered paragraphs. The numbered paragraphs are treated as a proposed recommended order. On February 15, 1993, The Department filed a proposed recommended order. The proposed findings of fact are ruled upon in the Appendix which is attached and hereby made a part of this Recommended Order.

FINDINGS OF FACT

1. Petitioner Stephen Kent Baker ("Baker"), took and failed the February 1992 examination for licensure as a Commercial Pool/Spa Contractor. The examination consists of two parts. Baker received a final grade of 64% on part one and 63.75% on part two.

   
   

2. The examination was an "open book" type exam in which candidate were permitted to utilize books included on a written list of materials provided to candidates prior to the exam date. There is no evidence that Baker did not have access to the materials containing the answers to the questions.

   
   

3. Exam questions 44, 65, 67 and 71 each make reference to the Florida Administrative Code. The approved reference list identifies the materials as Chapter 10D-5 but does not specifically state that the reference is part of the Florida Administrative Code. Chapter 10D-5, Florida Administrative Code, sets forth the rules and regulations related to public swimming pools and was included on the list of reference materials to which each candidate could refer during the exam.

   
   

4. The reference list identifies the Department of Health and Rehabilitative Services ("DHRS") as the source to obtain copies of the materials. The copy of Chapter 10D-5 available from the DHRS indicates that the materials are part of the Florida Administrative Code. Baker has been licensed as a Residential Pool Contractor since 1988 and is familiar with the contents of Chapter 10D-5.

   
   

5. Exam questions 78 and 80 each make reference to the Code of Federal Regulation. The relevant portion of the Code of Federal Regulation is clearly identified as such and is included in the Contractor's Manual which was identified on the list of approved reference materials which could be used in the exam.

   
   

6. Baker asserts that because the reference list does not specifically identify that Chapter 10D-5 is a part of the Florida Administrative Code and does not state that the Contractor's Manual contains materials from the Code of Federal Regulation, the questions are misleading.

   
   

7. Although there is no evidence to disprove Mr. Baker's assertion that he was personally unaware that Chapter 10D-5 was a part of the Florida Administrative Code and unaware that the relevant portion of the Code of Federal Regulation was included within the Contractor's Manual, such does not establish that the questions were misleading.

   CONCLUSIONS OF LAW

   
   

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

   
   

9. Chapter 489, Florida Statutes, charges the Department of Professional Regulation, Construction Industry Licensing Board with responsibility for licensure of commercial pool/spa contractors. Such persons must pass an examination prior to licensure. Section 489.111, Florida Statutes.

   
   

10. In an administrative challenge to the results of an examination process, an applicant must establish by a preponderance of the evidence that the questions are misleading, that scoring of his exam was erroneous and that the exam responses should receive additional consideration. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (1st DCA 1977). As set forth in the preceding findings of fact, the burden has not been met.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Department of Professional Regulation, Construction Industry Licensing Board, enter a Final Order dismissing Stephen Kent Baker's challenge to the grading of his responses to the February 1992 examination for licensure as a Commercial Pool/Spa Contractor.

DONE and RECOMMENDED this 3rd day of March, 1993, in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM

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 3rd day of March, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5624

The following constitute rulings on proposed findings of facts submitted by the parties.

Petitioner

The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:

1. Rejected, argument unsupported by credible evidence.

3. Rejected, irrelevant. The materials are included within the acceptable sources identified on the approved materials list.

Respondent

The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order.

COPIES FURNISHED:

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

Jacksonville, Florida 32202

Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Stephen K. Baker

SunBank Financial Center

12730 New Brittany Blvd., Suite 415 Fort Myers, Florida 33097

Vytas J. Urba, Esquire

Department of Professional Regulation 1940 North Monroe Street, Suite 60

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: 92-005624

Orders for Case No: 92-005624