STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD R. MONGIOVE, )

)

Petitioner, )

)

vs. )

) CASE NO. 94-1766

CONSTRUCTION INDUSTRY )

LICENSING BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this proceeding before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings, on August 24, 1994, in Orlando, Florida.

APPEARANCES

For Petitioner: James Kline, Esquire

Infantino & Berman Post Office Drawer 30

180 South Knowles Avenue

Winter Park, Florida 32790-0030

For Respondent: Clark R. Jennings, Esquire

Assistant Attorney General Department of Legal Affairs,

Administrative Law Section Suite PL-01, The Capitol Building Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

The issue is whether Respondent should deny Petitioner the right to take the state air conditioning contractor examination for lack of good moral character.

PRELIMINARY STATEMENT

On March 1, 1994, Respondent notified Petitioner that Respondent intended to deny Petitioner's request to take the state air conditioning contractor examination given by Respondent. Petitioner timely requested a formal hearing.

At the formal hearing, Petitioner called three witnesses and submitted 13 exhibits for admission in evidence. Respondent called six witnesses and submitted three exhibits. Testimony, exhibits, and rulings are reported in the transcript of the formal hearing filed on September 13, 1994.

Petitioner timely filed his proposed recommended order ("PRO") on September 30, 1994. Respondent timely filed its PRO on October 3, 1994. The parties' proposed findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. The National Assessment Institute ("NAI") provides examinations to the State Construction Industry Licensing Board, including the examination given for certification as a state air conditioning contractor. Petitioner has unsuccessfully taken the state air conditioning contractor examination approximately four times in the past.

   
   

2. Petitioner has reviewed previous examinations and is familiar with procedures imposed pursuant to Section 455.229(2), Florida Statutes. No part of the examination may be copied, including any part of the questions or answers. Loose-leaf student manuals purchased from NAI may be taken into a review and retained by the student after the review is completed. Scratch paper provided by NAI officials during a review must be turned in at the conclusion of the review.

   
   

3. On April 23, 1993, Petitioner reviewed a recent state air conditioning contractor examination. Petitioner reviewed the examination at a branch office of the NAI.

   
   

4. Prior to April 23, 1993, Petitioner purchased a student manual. Petitioner placed one piece of carbon paper over one piece of blank paper and inserted the carbon set between two pages of the student manual. Petitioner taped closed the two pages of the student manual and tabbed the taped pages of the student manual ("altered pages"). Petitioner inserted three more carbon sets inside the student manual in identical fashion, producing a total of four altered pages.

   
   

5. During the examination review on April 23, 1993, Petitioner placed a blank sheet of scratch paper on top of the first altered page of the student manual. Petitioner wrote the answers to the first part of the examination on the scratch paper. The answers were copied on the carbon set underneath the scratch paper. In a similar manner, Petitioner copied answers to each of the remaining three parts of the examination on the carbon sets inside each of the remaining altered pages in the student manual.

   
   

6. Petitioner used a numeric code of "1-4" to represent answers "a-d" on each part of the examination. Petitioner used arithmetic symbols and other lines to disguise his effort by making it appear he was writing down mathematical formulas. However, the sequence of numbers "1-4" correspond to the correct answers "a-d" for each part of the examination reviewed.

   
   

7. Petitioner copied 200 examination answers. During his testimony at the formal hearing, Petitioner explained:

   
   

   I did do something wrong.

   
   

   Transcript at 47.

   What I was trying to do was take down all the different letters. . . . I wanted to see if there was some kind of sequence where there were more A's, B's, more C's or more D's used.

   
   

   Transcript at 49.

   
   

   I was desperate. My whole life is air conditioning and refrigeration.

   * * *

   I've been trying to pass that test for at least the last two years, maybe more. . . . I believe it's been at least four times, maybe more.

   
   

   Transcript at 47.

   
   

8. NAI representatives monitoring the examination review telephoned local police, and Petitioner was arrested pursuant to Section 455.2175, Florida Statutes. The materials used by Petitioner to copy examination answers were confiscated by police. Criminal charges were dismissed without conviction.

   
   

9. Each examination question costs the state approximately $200. The 200 questions corresponding to the 200 answers copied by Petitioner will no longer be used by the state.

   
   

10. Petitioner testified that he has dyslexia and attention deficit disorder. However, Petitioner has never requested additional time for an examination, never notified Respondent of Petitioner's disability, and never requested Respondent to provide special examination facilities or procedures.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this proceeding. Section 120.57(1). The parties were duly noticed for the formal hearing.

    
    

12. Petitioner has the ultimate burden of proving by a preponderance of evidence that Petitioner is entitled to take the state air conditioning contractor examination. Florida Department of Transportation v. J.W.C. Co., 396 So.2d 778 (Fla. 1st DCA 1981). However, Respondent's refusal to certify Petitioner on the grounds of lack of good moral character must be supported by clear and convincing evidence. Section 489.111(3)(a)2., Florida Statutes. In addition, there must be a substantial connection between the lack of good moral character and the professional responsibilities of a certified contractor. Section 489.111(3)(a)1.

    
    

13. The term "good moral character" has been defined to include:

    
    

    . . . not only the ability to distinguish between right and wrong, but the character to observe the difference

    . . . .

    Zemour, Inc. v. State Division of Beverage, 347 So.2d 1102, 1105 (Fla. 1st DCA 1977). Similarly, the term "moral turpitude" has been defined to include "anything . . . done contrary to

    . . . honesty [and] principle. . . ." State ex rel Tullidge v. Hollingsworth, 146 So. 660, 661

    (Fla. 1933).

    
    

14. Petitioner lacks good moral character within the meaning of Section 489.111(3)(a)2., Florida Statutes. Petitioner's attempt to copy 200 examination answers was contrary to honesty and principle. Hollingsworth, 146 So. at 661. Petitioner's testimony was clear and convincing that he was able to distinguish between right and wrong but unable to observe the difference. Zemour, 347 So.2d at 1105.

    
    

15. There is a substantial connection between Petitioner's lack of good moral character and the responsibilities of a certified air conditioning contractor. Section 489.111(3)(a)1, Florida Statutes. When lack of good moral character is displayed in an effort to obtain a license, the connection between the lack of good moral character and the responsibilities accompanying the license is axiomatic.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order denying Petitioner's

request to take the state air conditioning contractor examination for the

reasons stated herein.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of October, 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 26th day of October, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1766

Petitioner's Proposed Findings of Fact

1. Accepted in substance

2. Rejected as conclusion of law 3.-8. Accepted in substance

9.-12. Rejected as irrelevant and immaterial

13. Accepted in substance

14.-15. Rejected as irrelevant and immaterial

16. Rejected as not supported by credible and persuasive evidence

17.-18. Rejected as irrelevant and immaterial

1. Rejected as not supported by credible and persuasive evidence

2. Rejected as irrelevant and immaterial and as recited testimony

3. Rejected as not supported by credible and persuasive evidence

Respondent's Proposed Findings of Fact 1.-8. Accepted in substance

1. Rejected as irrelevant and immaterial

2. Rejected as not supported by credible and persuasive evidence

11.-13. Accepted in substance

COPIES FURNISHED:

Richard Hickok Executive Director Construction Industry

Licensing Board Department of Business and

Professional Regulation

7960 Arlington Expressway, Suite 300

Jacksonville, Florida 32211-7467

Jack McRay

Acting General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

James W. Kline, Esquire

P.O. Drawer 30

180 South Knowles Avenue

Winter Park, Florida 32790-0030

Clark R. Jennings, Esquire Assistant Attorney General Deptartment of Legal Affairs Administrative Law Section

Suite PL-01, The Capitol Building Tallahassee, FL 32399-1050

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: 94-001766

Orders for Case No: 94-001766