STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALFRED SIMMONS, )

)

Petitioner, )

)

vs. )

) CASE NO. 96-2862

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, ) CONSTRUCTION INDUSTRY LICENSING ) BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on October 3, 1996, via video teleconference, with the petitioner and the respondent appearing at Miami, Florida, before Patricia Hart Malono, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Alfred Simmons, pro se

7755 West Kismet Street Miramar, Florida 33023

For Respondent: R. Beth Atchison,

Assistant General Counsel Department of Business and

Professional Regulation Construction Industry Licensing Board 1940 North Monroe Street

Tallahassee, Florida 32399-0750

STATEMENT OF THE ISSUES

Whether the petitioner is entitled to credit for the answers given to the challenged questions in the General Contractor’s examination administered October 18, 1995.

PRELIMINARY STATEMENT

On October 18, 1995, Alfred Simmons sat for the General Contractor’s examination administered by the respondent as a prerequisite to certification as a general contractor. In an Examination Grade Report dated October 19, 1995, Mr. Simmons was notified by the respondent that he attained passing scores of 75 and 70 percent, respectively, on the contract administration and project management portions of the examination but failed to pass the business and financial administration portion of the examination, attaining a score of only 68.75 percent.

On March 13, 1996, Mr. Simmons timely filed a Request for a Formal Hearing with the respondent asserting that unspecified test questions on the General Contractor examination administered October 18, 1995, were ambiguously worded, that not enough information was presented in the questions to allow him to select the correct answers, and that the approved reference material did not support the correct response. Mr. Simmons further asserted that, but for the defects in certain of the examination questions, he would have received a passing score. The Board forwarded

the request to the Division of Administrative Hearings for the assignment of an administrative law judge. By notice dated July 22, 1996, the case was scheduled for a final hearing via video teleconference on October 3, 1996.

At the hearing, Mr. Simmons testified in his own behalf, and Petitioner’s exhibit 1 was offered and received into evidence. The respondent presented the testimony of Linda McNutt, an employee of National Assessment Institute and a member of the team that prepared the examination administered on October 18, 1995, and of Frank Bailey, a consultant with National Assessment Institute and an expert in general construction, including business and financial administration. Respondent’s exhibits 1, 2, 3, 4, and 5 were offered and received into evidence.

The transcript of the hearing was filed with the Division on October 22, 1996, and the respondent timely submitted proposed findings of fact and conclusions of law, which have been duly considered.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:

1. The Department of Business and Professional Regulation, Construction Industry Licensing Board, is the state agency with jurisdiction over the examination and

   regulation of general contractors in the State of Florida. Sections 489.107(4) and .113(1), Florida Statutes.

2. Mr. Simmons sat for the General Contractor examination on October 18, 1995, and received a failing grade of 68.75 percent on the business and financial administration portion of the examination. Even though he passed the other two portions of the examination, Mr. Simmons failed the examination as a result of the failing grade on this portion of the examination.

3. Mr. Simmons subsequently filed a timely challenge to unspecified test questions on the business and financial administration portion of the examination. He presented evidence at the hearing concerning the sufficiency of his answers to questions 13 and 22 of the financial administration section of the examination and claimed that he would have presented evidence relating to questions 18 and 39 of the business administration section but could not because he was not certain that the questions included in the review materials provided to him by the respondent were the same as the questions included in the test booklet he used on October 18, 1995.

4. Question 13 of the financial administration section of the examination is an objective, multiple choice question. The applicant is to choose the correct answer

   from among four choices. The correct answer to question 13 is “C," but Mr. Simmons incorrectly chose “B.”

5. Question 22 of the financial administration section of the examination is an objective, multiple choice question. The applicant is required to choose the correct answer to the question from among four answers provided and is to choose the correct answer based only on the information included in the question. The correct answer to question 22 is “C," but Mr. Simmons incorrectly chose “A.”

6. Mr. Simmons failed to prove that questions 18 and

   
   

   39 of the business administration section of the examination included in the review manual provided to him by the respondent were not the same questions included in the test booklet he used on October 18, 1995. Because he failed to present any evidence regarding the sufficiency of his answers to these questions, he is deemed to have abandoned any substantive challenge to them.

7. Question 13 of the business administration section of the examination is clear and unambiguous, and only one correct answer was included among the answer choices. The correct answer is found in the reference material which Mr. Simmons was permitted to use while he was taking the examination. The respondent correctly gave no credit to Mr. Simmons for his answer to this question because it was the wrong answer.

8. Question 22 of the business administration section of the examination is clear and unambiguous, and only one correct answer was included among the answer choices. The method for determining the correct answer from the information provided in the question is contained in the reference materials Mr. Simmons was permitted to use while he was taking the examination. The respondent correctly gave no credit to Mr. Simmons for his answer to this question because it was the wrong answer.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to section 120.57(1), Florida Statutes (Supp. 1996).

10. Section 489.113(1) provides that

    
    

    Any person who desires to engage in contracting on a statewide basis shall, as a prerequisite thereto, establish his competency and qualifications to be certified pursuant to this part. To establish his competency, a person shall pass the appropriate examination administered by the department.

11. Petitioner has the burden of proving by a preponderance of the evidence that the respondent’s decision to give him no credit for his answers to the challenged questions is arbitrary or capricious or constitutes an abuse of discretion. See State ex rel. Glasser v. J.M. Pepper,

    155 So. 2d 383 (Fla. 1st DCA 1963); State ex rel. Topp v.

    Board of Electrical Examiners, 101 So. 2d 583 (Fla. 1st DCA 1958). Based on the facts found above, Mr. Simmons has failed to meet that burden.

12. Section 455.229(2), Florida Statutes, provides in pertinent part:

Examination questions and answers are not subject to discovery but may be introduced into evidence and considered only in camera in any administrative proceeding under chapter 120. 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 the Department of Business and Professional Regulation, Construction Industry Licensing Board, issue a final order dismissing Alfred Simmons’s challenge to the subject examination and that the examination questions and answers provided at the hearing be sealed and not open to public inspection.

DONE AND ENTERED this 3rd day of January, 1997, in Tallahassee, Leon County, Florida.

PATRICIA HART MALONO

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 1997.

COPIES FURNISHED:

Alfred Simmons

7755 West Kismet Street Miramar, Florida 33023

R. Beth Atchison, Assistant General Counsel Department of Business and

Professional Regulation Construction Industry Licensing Board Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0750

Lynda L. Goodgame General Counsel

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Richard Hickok, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300

Jacksonville, Florida 32211-7467

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-002862

Orders for Case No: 96-002862