STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BEHZAD KHAZRAEE, )

)

Petitioner, )

)

vs. )

)

DEPARTMENT OF BUSINESS AND ) CASE NO. 93-6931 PROFESSIONAL REGULATION, )

CONSTRUCTION INDUSTRY LICENSING ) BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was conducted in this proceeding before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings, on March 24, 1994, in Orlando, Florida.

APPEARANCES

For Petitioner: Vytas J. Urba, Esquire

William M. Woodyard, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0750

For Respondent: Mr. Behzad Khazraee, pro se

142 Tollgate Trail Longwood, Florida 32750

STATEMENT OF THE ISSUE

The issue for determination in this proceeding is whether Petitioner should receive credit for any of the 15 challenged questions in two parts of the certified general contractors examination given in June, 1993.

PRELIMINARY STATEMENT

By letter dated November 17, 1993, Petitioner requested a hearing to contest the failing grade he received on the general contractors examination given on June 29-30, 1993. The matter was referred to the Division of Administrative Hearings for assignment of a Hearing Officer to conduct a formal hearing.

At the formal hearing, the parties submitted three joint exhibits.

Petitioner testified in his own behalf and submitted no separate exhibits. Respondent presented the testimony of Mr. Karl Lieblong and submitted no separate exhibits. The identity of the witnesses and exhibits is set forth in the transcript filed with the undersigned on April 22, 1994.

Proposed findings of fact and conclusions of law were timely filed by Respondent on April 18, 1994. Petitioner did not submit proposed findings of fact and conclusions law. Respondent's proposed findings of fact are accepted in substance.

FINDINGS OF FACT

1. Petitioner took the general contractors examination given on June 29- 30, 1993. The examination consisted of three parts. The minimum score required to pass each part was 70.

   
   

2. Petitioner passed the Business and Finance part of the examination with a score of 70. Petitioner failed the other two parts of the examination. He received a score of 61 on the Contract Administration part of the examination and a score of 67 on the Project Management part of the examination.

   
   

3. Petitioner challenged eight questions on the Contract Administration part of the examination and seven questions on the Project Management part of the examination. The part of the examination on which each question appeared, the question number, the correct answer, and the answer chosen by Petitioner are as follows:

   
   

   EXAM PART QUESTION	CORRECT	ANSWER	PETITIONER'S ANSWER
   Contract Admin. 2		B	C
   Contract Admin. 5		D	A
   Contract Admin. 10		D	C
   Contract Admin. 11		C	D
   Contract Admin. 13		C	B
   Contract Admin. 20		C	D
   Contract Admin. 22		C	D
   Contract Admin. 37		B	D
   Project Mgmt. 7		C	D
   Project Mgmt. 9		D	C
   Project Mgmt. 10		C	A
   Project Mgmt. 11		B	C
   Project Mgmt. 13		B	A
   Project Mgmt. 23		D	A
   Project Mgmt. 37		A	D

   
   

   For each of the foregoing questions, the correct answer was the answer identified by Respondent and not the answer chosen by Petitioner. Petitioner presented no competent and substantial evidence to support his answers.

   
   

4. The challenged questions were clearly and unambiguously worded. The challenged questions contained enough correct information to allow the candidate to select the correct response. The correct response for each of the challenged questions was supported by approved reference materials.

5. The correct response did not require knowledge which was beyond the scope of knowledge that reasonably could be expected from a candidate for licensure. All current techniques were taken in account when the correct response was determined by Respondent. The examination was open book. Petitioner was allowed to refer to the Standard Building Code.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this proceeding. Section 120.57(1), Florida Statutes. The parties were duly noticed for the formal hearing.

   
   

7. Petitioner has the burden of proof in this proceeding. Petitioner must demonstrate by a preponderance of the evidence that Respondent graded his examination arbitrarily or that the denial of credit was devoid of logic and reason. Harac v. Department of Professional Regulation, 484 So.2d 1333, 1338 (Fla. 3d DCA 1986); State ex rel I. H. Topp v. Board of Electrical Contractors for Jacksonville, Beach, Florida, 101 So.2d 583 (Fla. 1st DCA 1958); State ex rel Glaser v. J.M. Pepper, 155 So.2d 383 (Fla. 1st DCA 1963).

   
   

8. Petitioner failed to satisfy his burden of proof in this proceeding. The evidence showed that the correct answer was the correct answer chosen by Respondent and not the answer chosen by Petitioner. The testimony of Respondent's expert witness was credible and persuasive. Current techniques were taken into account when the correct response was determined by Respondent.

   
   

9. The correct response for each of the challenged questions was supported by approved reference materials and did not require unreasonable or unusual knowledge. The examination was open book. Petitioner was allowed to refer to the Standard Building Code.

   
   

10. The challenged questions were clearly and unambiguously worded. The challenged questions contained enough correct information to allow the candidate to select the correct response.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order and therein DENY

Petitioner's challenge to the questions at issue in this proceeding.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 27th day of April, 1994.

DANIEL MANRY

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 27th day of April, 1994.

COPIES FURNISHED:

Richard Hickok Executive Director

Department of Business and Professional Regulation

1940 North Monroe, Suite 60

Tallahassee, FL 32399-0792

Jack McRay, Esquire General Counsel

Department of Business and Professional Regulation

1940 North Monroe, Suite 60

Tallahassee, FL 32399-0792

Vytas J. Urba, Esquire William M. Woodyard, Esquire Department of Business and

Professional Regulation 1940 North Monroe, Suite 60

Tallahassee, FL 32399-0792

Mr. Behzad Khazraee

142 Tollgate Trail Longwood, FL 32750

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: 93-006931

Orders for Case No: 93-006931