STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ISIDORO CARRILLO, )

)

Petitioner, )

)

vs. ) CASE NO. 92-6874

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

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing in this case was held pursuant to Notice on April 1, 1993, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings, in South Daytona Beach, Florida. In this case, the Petitioner challenges questions contained on the Construction Industry Licensing Board residential contractor's examination.

APPEARANCES

For Petitioner: Isidoro Carrillo, pro se

Post Office Box 1896

New Smyrna Beach, Florida 32170

For Respondent: Vytas J. Urba, Esquire

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUE

Whether the questions and grading of the questions on the residential contractors examination was arbitrary or capricious?

PRELIMINARY STATEMENT

The Petitioner took the June 1992 Residential Contractors Examination. He failed the examination, and challenged specific questions on the examination in the prescribed manner. The Department of Professional Regulation referred the case to the Division of Administrative Hearings in late November 1992. The case was set for hearing on April 1, 1993, by a Notice of Hearing dated December 11, 1992, and heard as noticed.

Subsequent to the hearing the parties submitted materials to the hearing officer which were read and considered. The Petitioner's materials were technical references which he referred to and cited at hearing. The

Respondent's proposed findings were read and considered. Appendix A states which of the Respondent's findings were adopted, and which were rejected and why.

FINDINGS OF FACT

1. The Petitioner, Isidoro Carrillo, sat for Part II of the residential contractors examination administered in June, 1992. The Petitioner received a raw score of 62 on Part II of this examination which was amended to a grade of 63.

   
   

2. A minimum passing score is 70. Each correct answer was worth 4 points.

   
   

3. The Petitioner originally challenged questions numbered 8, 11, 15, 16, 18, 19, and 25 on the examination. At the hearing, the Petitioner conceded the Department's answer to questions no. 18 was correct. The Petitioner did not present any evidence with regard to questions numbered 8, 19, and 25 at the hearing. The Petitioner challenged questions numbered 11, 15, and 16.

   Questions numbered 11, 15, and 16 were labeled as the Hearing Officer's Exhibit and determined to be confidential pursuant to Section 455.229, Florida Statutes. A set of plans was introduced and labeled as Respondent's Exhibit 1. These plans are also determined to be confidential pursuant to Section 455.229, Florida Statutes.

   
   

4. Question No. 11 required the computation of the square area of the foyer. The portion of the house to be included within the computation of the area of foyer was to include "all adjacent interior cased openings and door ways." Sheet 3 of 6 of the plans for the structure reveal notes relating to the foyer. The annotations regarding the foyer state: "See Note No. 18" and "See Note No. 19." Sheet 1 of 6 contains the specific notes relating to the plans. Note No. 18 states: "40 (width) x 68 (height) cased opening (See (Floor Plan)." Note No. 19 states, "58 (width) x 68 (height) cased opening (See Floor Plan)."

   
   

5. The Petitioner failed to compute the correct answer for question No. 11 because he excluded from his computations the area between the foyer and the living room which was subject to note No. 19. The Petitioner's excluded this area from his calculation because the area between the foyer and living room lacks jams and is not a cased opening.

   
   

6. The Petitioner and Respondent's expert both agreed that a cased opening was "Any opening finished with jams and trim, but without doors." A jam is defined as a vertical structure with depth.

   
   

7. Referring to the plans in question, the opening between the foyer and the living room lacks jams.

   
   

8. Respondent's expert explained that the area between the foyer and living room was included in the computation purely on the basis of Note 19, defining the area as a cased opening.

   
   

9. Petitioner challenged question No. 15 which required the examinee to compute the amount of time required "to lift and place all single wood trusses with a span of 21' 4" given that the truck can lift and place one full-span, single, roof truss every 15 minutes. Sheet 5 of 6 of the plans depicts the roof truss layout for the house. On the plan, there are three single roof trusses with an overall length of 25' 4" and a span of 21' 4" and one gable end truss with a span of 21' 4" which is placed on top of and runs the length of the south

   wall of the building. This gable end truss has a span of 21' 4" but does not span any distance because it sits atop the wall.

   
   

10. The response expected by the Respondent was one hour with the truck lifting four trusses: the three 25' 4" trusses plus the gable end truss. The Petitioner's answer was 45 minutes because he excluded the gable end truss which sits atop the wall and does not span any distance.

    
    

11. The Petitioner challenges question No. 16 which asks the examinee to calculate the total cost for the pressure treated 4 x 8 and 2 x 6 lumber required to construct the wood deck, excluding wood rails, and given the price per 100 board feet of the 4 x 8 and the 2 x 6 pressure treated lumber. The expected response was answer A. The candidate's response was answer D because the candidate had included 4 x 8 beams running along and parallel to the wall of the house in his calculation of the cost figures. However, the detailed drawings of the wooden deck at the top of Sheet 3 of 6 and on Sheet 2 of 6 reveal that there are no 4 by 8 beams running along and parallel to the side of the house.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties pursuant to Section 120, Florida Statutes. This order is entered pursuant to Section 120.57, Florida Statutes.

    
    

13. Chapter 489, Florida Statutes, provides that the Construction Industry Licensing Board shall establish guidelines to the issuance of licenses to contractors. The Department of Professional Regulation is authorized by Chapter 489, Florida Statutes, to prepare and grade the contractor's examination. Chapter 21D-11, Florida Administrative Code, specifies the manner for the administration of licensure examinations and the criteria for grading those examinations.

    
    

14. The Petitioner has the burden to proof by a preponderance of the evidence that his examination was not graded in accordance with the applicable statutes or rules, or that the administration in grading of the examination was arbitrary and capricious. The Petitioner challenged three questions. The substantive basis for Petitioner's challenge to question No. 16 was not demonstrated. The Petitioner misread the detailed drawing of the porch, and on that basis miscalculated the amount of lumber required. Neither the question nor its grading was arbitrary or capricious.

    
    

15. The Petitioner's challenge to question No. 15 is based upon his argument that he appropriately excluded the gable end truss because it had not span because it was not spanning a distance, i.e., the middle of the truss was not supported. However, the question does not ask the examinee to compute the time required to move the trusses spanning 21' 4", but rather it asked the examinee to compute the time required to move the trusses having a span of 21' 4". Although the gable end truss is fully supported along its entire length, the truss has a span of 21' 4", and, therefore, is properly included in the computation. Neither the question nor its grading was arbitrary or capricious.

    
    

16. With regard to question No. 11, the examinee is, in essence, asked to compute the area of the foyer to include all adjacent interior cased openings. The drafters of the question then defined certain areas of the foyer as cased openings in the notes to the plans contained on page 1 of 6. The Petitioner is correct in challenging this question because the area involved does not meet the

definition of a "cased opening." However, as stated above the value of each question is 4 points and the addition of 4 points to the Petitioner's score of

63 gives him only a total of 67, short of the 70 points required for licensure.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, the Hearing Officer concludes that the Petitioner was successful in challenging only one of three of the questions involved. The Petitioner's score of 67 points is insufficient for him to pass the examination.

The Petitioner's records should be corrected; however, the Petitioner has not demonstrated a passing grade of 70, and therefore should not be licensed.

DONE and ENTERED this 30th day of April, 1993, in Tallahassee, Florida.

STEPHEN F. DEAN

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 30th day of April, 1993.

APPENDIX A

The Petitioner did not file proposed findings. The Respondent filed proposed findings which were read and considered. The following states which of those findings were adopted, and which were rejected and why:

Respondent's Findings: Proposed Order: Paragraph 1-5 Paragraph 1-3

Paragraph 6 Paragraph 4-8

Paragraph 7 Paragraph 9,10

Paragraph 8 Paragraph 11

COPIES FURNISHED:

Isidoro Carrillo Post Office Box 1896

New Smyrna Beach, Florida 32170

Vytas J. Urba, Esquire

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

Daniel O'Brien, Executive Director DPR - Construction Industry

Licensing Board Post Office Box 2

Jacksonville, FL 32202

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

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. 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: 92-006874

Orders for Case No: 92-006874