This cause was heard before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings, on February 10, 1997 in Tallahassee, Florida.
For Petitioner: Michael F. Coppins, Esquire
Cooper, Coppins and Monroe, P.A. Post Office Drawer 14447 Tallahassee, Florida 32317-4447
For Respondent: R. Beth Atchinson, Esquire
The issue is whether Respondent is entitled to additional credit for correctly answering certain questions on the unlimited electrical contractor examination administered on January 19, 1996.
On July 15, 1996 Petitioner Gerald W. Thompson (Petitioner) filed a Petition for Formal Hearing with Respondent Department of Business and Professional Regulation (Respondent). The petition challenged Respondent’s determination that Petitioner had not passed the January, 1996 Electrical Contractor’s Examination.
Respondent referred the petition to the Division of Administrative Hearings on October 2, 1996.
The undersigned issued a Notice of Hearing scheduling this case for formal hearing on February 10, 1997. At the hearing, the parties submitted seven joint exhibits which were admitted into evidence. Petitioner testified on his own behalf, presented the testimony of three witnesses, and offered three additional exhibits which were admitted into evidence. Petitioner submitted a fourth witness’s deposition testimony as a post-hearing exhibit. One witness testified on Respondent’s behalf.
The transcript was filed on March 18, 1997. The parties filed their proposed recommended orders on April 7, 1997.
Petitioner began working for an electrical contractor in Tallahassee, Florida in 1959. He served three years as an apprentice under a journeyman electrician. After working in the trade for three and one-half years, Petitioner passed a test and became a journeyman electrician.
Since 1972, Petitioner has been the owner of an
electrical contracting business in Tallahassee, Florida. His company employs two master electricians, several journeymen electricians, and one electrical contractor.
Petitioner took the examination for licensure as an unlimited electrical contractor for the third time on January 19, 1996. A minimum passing score on that examination is seventy- five (75.00) total points.
On or about June 20, 1996, Respondent sent Petitioner an amended grade report indicating that Petitioner’s examination score was 73.30 and that he had failed the test.
Block and Associates, an independent testing service, prepared the examination at issue for Respondent.
The examination consist of multiple-choice questions which are machine graded. The morning session includes 100 technical questions. In order to answer some of the technical questions, an applicant must be able to read and interpret a power and lighting floor plan together with specifications. The afternoon session includes fifty (50) questions involving general principles of law and business.
The subject examination is an open book test. Candidates may take certain designated reference material into the test area. The candidate’s information booklet advises that “these references should be brought to the examination site as questions will be asked that are based upon obtaining data from these references before answering.”
The candidate’s information booklet directs the candidate to select the best answer to each question. The candidate is then advised that “[e]ach question has one answer, which will be graded as the correct answer to the question.” In other words, of the four answer choices for each question, Respondent considers only the best answer to be the “correct” answer. Respondent considers the other three answer choices to be “distractors” or incorrect answers for which the candidate will receive no credit. A distractor tests a candidate’s overall knowledge, skills and ability by being plausible but nonetheless wrong.
In this case, Petitioner is challenging Respondent’s failure to give him credit for a “correct” answer in relation to six different questions - i.e., question numbers 20, 29, 51, and
90 from the morning session and question numbers 13 and 33 from the afternoon session.
Question number 20, AM Session, states: All machines used for external or internal grinding shall be .
provided with safety switches
provided with permanently attached eye protection shields
supplied with sufficient power to maintain the spindle speed at safe levels under all conditions of normal operation
provided with safety flanges
Respondent claims that answer C is the best answer. Petitioner chose answer D as the correct answer.
Candidates may refer to the regulations of the
Occupational Safety and Health Administration (OSHA), United States Department of Labor, found in 29 C.F.R. §1926 (1993) during the exam. 29 C.F.R. §1926.303 (1993) provides in pertinent part:
§1926.303 Abrasive wheels and tools.
Power. All grinding machines shall be supplied with sufficient power to maintain the spindle speed at safe levels under all conditions of normal operation.
Guarding. (1) Grinding machines shall be equipped with safety guards in conformance with the requirements of American National Standards Institute, B7.1-1970, Safety Code of the Use, Care and Protection of Abrasive Wheels, and paragraph (d) of this
section. . . .
Use of abrasive wheels. . . .
(6) When safety flanges are required, they shall be used only with wheels designed to fit the flanges. Only safety flanges, of a type and design and properly assembled so as to ensure that the pieces of wheel will be retained in case of accidental breakage, shall be used. . . . .
The focus of question number 20 is on safety in the use of power tools as regulated by OSHA. The concept that machines used for grinding shall be provided with safety guards and safety flanges is clearly articulated in the OSHA standards.
In this case, the authoritative references and other competent evidence support answers C and D as correct answers for question number 20. However, the greater weight of the evidence indicates that answer D is the better answer. Therefore, Respondent should have given Petitioner credit for correctly answering question number 20, AM Session.
Question number 29, AM Session, states: A digital fire alarm communicator transmitter shall be connected only to a telephone circuit.
“loop start”
“ground start”
party line
single line
Respondent maintains that answer A is the best answer. Petitioner answered D.
The National Fire Protection Association (NFPA) publishes the National Fire Alarm Code in conjunction with the American National Standard Institute (ANSI). NFPA 72, National Fire Alarm Code (1993), is an approved reference for the subject examination. NFPA 72, §§ 4-2.3.2.1.1 and 4-2.3.2.1.3 (1993) provide as follows:
4-2.3.2.1.1 A DACT [Digital Alarm Communicator Transmitter] shall be connected to the public switched telephone network upstream of any private telephone system at the protected premises. In addition, special attention is required to ensure that this connection shall be made only to a loop start telephone circuit and not to a ground start telephone circuit.
* * *
4-2.3.2.1.3 A DACT shall be capable of seizing the telephone line (going off-hook) at the protected premises, disconnecting an outgoing or incoming telephone call, and preventing its use for outgoing telephone calls until signal transmission has been completed. A DACT shall not be connected to a party line telephone facility.
Answers A and D are both correct answers to question number 29. However the greater weight of the evidence indicates
that answer A is the better answer because a single line can be loop started or ground started. Therefore, Respondent properly determined that Petitioner should receive no credit for question number 29, AM Session.
Question number 51, AM Session, states: If the building lost normal power for a period of time in excess of 1-1/2 hours, how many lights would be required to remain functional?
0
2
4
7
Respondent claims that answer A is the best answer. Petitioner chose answer B as the correct answer.
Question number 51 requires the candidate to review plans, drawings, and electrical schematics in order to select the correct answer. The plans reveal the existence of two battery powered emergency lights. The electrical legend states that the emergency lights are “[f]lourescent with emergency battery pack to provide 90 minutes of illumination on normal power failure.” Although it is not apparent on the face of the question or the electrical legend, the emergency battery pack would automatically recharge upon the restoration of normal power to the building.
Respondent used the word “functional” in question number 51 to test the candidate’s knowledge that emergency light battery life, absent power, was 1-1/2 hours. Respondent’s answer of “zero” reflected that the emergency light battery pack would
be completely discharged leaving the emergency lights without the capacity to illuminate after 1-1/2 hours of an on-going power failure.
Petitioner, recognizing the recharge capability of the emergency lights, considered the word “functional” to include the proposition that the battery recharging process would occur upon restoration of normal power. This interpretation requires the candidate to assume that normal power will be restored and the battery pack recharged.
Depending on the interpretation that a candidate places on the word “functional” in question number 51, either answer A or B could be considered correct. However, the greater weight of the evidence indicates that answer A is more correct than answer
B. Answer A, unlike answer B, does not require the test taker make assumptions not apparent on the face of the question. Therefore, Respondent properly determined that Petitioner should not be given credit for correctly answering question number 51, AM Session.
Question 90, AM Session, states: The required size of an electrical conductor is determined by all but which of the following?
either stranded or solid
length
material
amps
Respondent asserts that answer A is the correct answer. Petitioner chose answer B.
There is no correct or “best” answer for question number 90. All four choices are useful to some degree in determining the size of an electrical conductor.
The NFPA publishes NFPA 70, National Electrical Code (1993), which is an approved reference for the subject test. In that code Table 8, Conductor Properties, clearly shows that the difference between stranded or solid wire has an objective, quantifiable effect on the required size of an electrical conductor. The selection of solid versus stranded wire produces a different result for ohms, i.e. resistance. Resistance is part of the consideration to determine the correct size of the wire.
Petitioner’s answer to question number 90 was incorrect because the required size of an electrical conductor is determined in part by its length. Respondent’s answer to question number 90 was also incorrect because the size of an electrical conductor depends in part on whether the wire is solid or stranded. Respondent’s question failed to give sufficient information for Petitioner to select “stranded or solid” as the correct or best answer because the question did not request the candidate to choose the least important factor in determining the size of an electrical conductor. As the question was written, Petitioner’s answer was no more incorrect than Respondent’s. Under these circumstances, Petitioner should receive credit for answering question number 90, AM Session, correctly.
Question number 13, PM Session, states: A “credit memo” from your bank could indicate .
a charge for preprinted checks
a check you deposited has been returned
a check you wrote for $100.00 was cleared at $1,100.00
interest given to you
Respondent claims that answer D is the best answer. Petitioner chose answer C.
The 1987 edition of Builder’s Guide to Accounting, by Michael C. Thomsett, is an approved reference for the subject test. That text states in pertinent part:
Error adjustments Your bank notifies you about error they find. For example, if you have a math error on a deposit, the bank will send you either a debit memo (advising you to decrease your balance) or a credit memo (advising you to increase your balance). . . Banking terminology can be confusing.
Charges, debits and debit memos are all ways of reducing your balance. Credits and credit memos increase your balance.
Thomsett, Michael C., Builder’s Guide to Accounting, Craftsman Book Company (1987) p.80.
Respondent’s answer choice of “interest given to you” is correct if the account in question is an interest bearing account. Interest paid on such an account would increase the account balance. However, corporate checking accounts do not pay interest in the state of Florida. Likewise, Petitioner’s answer choice of “a check you wrote for $100.00 was cleared for
$1,100.00” would result in a credit memo when the bank realized
its error and adjusted the account to reflect the increased balance regardless of whether the account was personal or corporate. Petitioner’s answer is just as correct as Respondent’s because there was not enough information given in the question to allow Petitioner to select answer D as the correct answer or to determine that answer C was an incorrect answer. Accordingly, Petitioner should be given credit for correctly answering question number 13, PM Session.
Question number 33, PM Session, states: Bonding capacity is .
the maximum value of uncompleted work a bonding company will allow a contractor to default on at any one given time
The maximum value of work a bonding company will allow a contractor to bid at any one given time
the maximum value of uncompleted work a bonding company will allow a contractor to have on hand at any one given time
the maximum value of work a bonding company will allow a contractor to bid in any one year
Respondent claims that answer C is the correct answer. Petitioner chose answer B as the correct answer.
One of the approved references for the subject test is the 6th edition of Construction Contracting by Richard H. Clough. Section 7.13 of that text states as follows in pertinent part:
7.13 Bonding Capacity
A useful concept widely used by the construction industry is that of ’bonding capacity’ or ’bonding line.’ These terms have no precise definition but refer to the maximum value of uncompleted work the surety
will allow the contractor to have on hand at any one time. . . .
Clough, Richard H., Construction Contracting, 6th edition, John Wiley & Sons (1994) p.188.
Answers B and C are both correct in part. Uncompleted work is one of many factors used by sureties to determine bonding capacity. Sureties also consider the applicant’s background, experience, ability, equipment, type of personnel and financial performance. However, the greater weight of the evidence indicates that answer C is the best answer. Therefore, Respondent properly determined that Petitioner should not receive credit for correctly answering question number 33, PM Session.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding. Section 120.57, Florida Statutes.
Petitioner has the burden of proving by a preponderance of the evidence that he is entitled to licensure as an unlimited electrical contractor. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981). In this case, Petitioner must demonstrate that he has achieved a passing score of 75 points on the subject examination.
The greater weight of the evidence supports Petitioner’s challenge to Respondent’s failure to give Petitioner credit for correct answers on three of the six examination
questions at issue here. Competent evidence indicates that Petitioner should be given credit for correct answers to the following questions: (a) question number 20, AM Session; (b) questions number 90, AM Session; and (c) question number 13, PM Session.
Based on the Findings of Fact and Conclusions of Law set forth above, it is recommended that Respondent enter a Final Order finding that Petitioner is entitled to additional credit for correctly answering question numbers 20 and 90 in the AM Session and question number 13 in the PM Session and adjusting his score accordingly on the May 19, 1996 unlimited electrical contractor examination.
Michael F. Coppins, Esquire Cooper, Coppins and Monroe, P.A. Post Office Drawer 14447 Tallahassee, FL 32317-4447
R. Beth Atchison, Esquire Department of Business and
Lynda L. Goodgame, Esquire Department of Business and
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.
