STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALVA LEE GRAHAM, )

)

Petitioner, )

)

vs. ) Case No. 97-0932

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a Section 120.57(1) hearing was held in this case on June 5, 1997, by video teleconference at sites in Miami and Tallahassee, Florida, before Stuart M. Lerner, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Alva Lee Graham, pro se

20100 Northwest 34th Avenue Miami, Florida 33056

For Respondent: R. Beth Atchison

Assistant General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUE

Whether Petitioner's challenge to the failing grades he received on the Business and Financial Management and General Trade Knowledge portions of the April 1996 plumbing contractor

certification examination should be sustained.

PRELIMINARY STATEMENT

By letter dated July 25, 1996, Petitioner requested a "formal hearing" on his challenge to the failing grades he received on the Business and Financial Management and General Trade Knowledge portions of the April 1996 plumbing contractor certification examination. On February 27, 1997, the matter was referred to the Division of Administrative Hearings (Division) for the assignment of an Administrative Law Judge to conduct the hearing Petitioner had requested.1

As noted above, the hearing was held on June 5, 1997. At the hearing, a total of three witnesses testified: Petitioner; Mike Kurtz, a Florida-licensed plumbing contractor who serves as a consultant for the Department of Business and Professional Regulation (Department); and Fae Hartsfield, who is employed as a senior psychometrician by the Department. Petitioner testified on his own behalf. Kurtz and Hartsfield testified on behalf of the Department. In addition to the testimony of these three witnesses, five exhibits (Respondent's Exhibits 1 through 5) were offered and received into evidence.

At the conclusion of the evidentiary portion of the hearing, the undersigned announced on the record that proposed recommended orders had to be filed no later than 14 days after the undersigned's receipt of the transcript of the hearing. The

undersigned received the transcript of the hearing on June 20, 1997. On July 7, 1997, the Department filed a motion requesting an extension of the deadline for the filing proposed recommended orders. The undersigned, on July 8, 1997, issued an order granting the motion and extending the deadline to July 9, 1997. On July 9, 1997, the Department filed a proposed recommended order, which the undersigned has carefully considered. To date, Petitioner has not filed any post-hearing submittal.

FINDINGS OF FACT

Based upon the evidence adduced at hearing and the record as a whole, the following Findings of Fact are made:

1. Petitioner sat for the certification examination for plumbing contractors administered in April of 1996 (Certification Examination).

2. The Certification Examination consisted of two parts. One part contained questions relating to business and financial management. The other part contained questions testing the applicants' general knowledge of the plumbing trade.

3. Prior to the Certification Examination, applicants were given a list of reference materials (Reference Materials) and advised that questions on the test would be taken from these sources, which included AIA Document A201, the Builder's Guide to Accounting, the Contractor's Manual, the National Standard Plumbing Code Illustrated, NFPA 99- Health Care Facilities, and NFPA 54- National Fuel Gas Code. The applicants were further

   advised that they would be permitted to bring these Reference Materials to the testing site and to use them in attempting to answer examination questions.

   Question 8--Business and Financial Management, Session One

   
   

4. Question 8 of Session One of the Business and Financial Management portion of the Certification Examination was a multiple choice question that was clear and unambiguous and covered subject matter with which the applicants should have been familiar.

5. It required the applicants to determine which one of the choices given did not represent, according to AIA Document A201, a basis upon which an architect could withhold certification of payment.

6. Section 9.5 of AIA Document A201 addresses the subject of "decisions to withhold certification" and provides as follows:

1. DECISIONS TO WITHHOLD CERTIFICATION

   
   

   1. The Architect may decide not to certify payment and may withhold a Certificate for Payment in whole or in part, to the extent reasonably necessary to protect the Owner, if in the Architect's opinion the representations to the Owner required by Subparagraph 9.4.2 cannot be made. If the Architect is unable to certify payment in the amount of the Application, the Architect will notify the Contractor and Owner as provided in Subparagraph 9.4.1. If the Contractor and Architect cannot agree on a revised amount, the Architect will promptly issue a Certificate for Payment for the amount for which the Architect is able to make such representations to the Owner. The Architect may also decide not to certify payment or, because of subsequently discovered evidence

or subsequent observations, may nullify the whole or a part of a Certificate for Payment previously issued, to such extent as may be necessary in the Architect's opinion to protect the Owner from loss because of:

1. defective Work not remedied;

2. third party claims filed or reasonable evidence indicating probable filing of such claims;

3. failure of the Contractor to make payments properly to Subcontractors or for labor, materials or equipment;

4. reasonable evidence that the Work cannot be completed for the unpaid balance of the Contract Sum;

5. damage to the Owner or another contractor;

6. reasonable evidence that the Work will not be completed within the Contract Time, and that the unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated delay; or

7. persistent failure to carry out the Work in accordance with the Contract Documents.

1. It is clear from a reading of Section 9.5 of AIA Document A201 that the only correct answer to Question 8 of Session One of the Business and Financial Management portion of the Certification Examination is choice "(C)."

2. The response selected by Petitioner, choice "(B)," is clearly incorrect.

3. Petitioner therefore appropriately received no credit for this question.

   Question 11--Business and Financial Management, Session One

   
   

4. Question 11 of Session One of the Business and Financial Management portion of the Certification Examination was a multiple choice question that was clear and unambiguous and

   covered subject matter with which the applicants should have been familiar.

5. It required the applicants to select the choice which represented the most likely explanation for a decrease in gross profits in relation to sales.

6. Page 149 of the Builder's Guide to Accounting reads, in pertinent part, as follows:

   A second useful test shows your cash position over a period of time. Take your gross profits as a percentage of sales volume for a given period. Then compute this percentage for a number of periods to get a trend. This indicates the amount of real control you have over your costs. When gross profit decreases in relation to sales, either you are not controlling your costs or your prices do not allow enough markup over your costs. Other factors that affect the level of gross profit can be unexpected inventory losses, increases in idle time, and material theft.

7. It is clear, particularly upon a reading of the foregoing excerpt from the Builder's Guide to Accounting, that the only correct answer to Question 11 of Session One of the Business and Financial Management portion of the Certification Examination is choice "(C)."

8. The response selected by Petitioner, choice "(B)," is clearly incorrect.

9. Petitioner therefore appropriately received no credit for this question.

   Question 33--Business and Financial Management, Session One

   
   

10. Question 33 of Session One of the Business and

    Financial Management portion of the Certification Examination was a multiple choice question that was clear and unambiguous and covered subject matter with which the applicants should have been familiar.

11. It required the applicants to select the choice which accurately described the characteristics of a joint venture.

12. Page 1-15 of the Contractor's Manual gives the following description of a "joint venture":

    A joint venture is a special combination of two or more persons jointly seeking a profit in some specific venture, without an actual partnership or corporate designation. The rights of persons who intend to do business as joint venture are governed substantially by the same rules that govern partnerships. An oral agreement between the parties may be sufficient to form a joint venture. However, to preclude misunderstandings it is strongly recommended that the agreement be in writing.

    
    

    The primary difference between a partnership and a joint venture is that a partnership is usually created for the transaction of business of a particular type, while the joint venture is usually limited to a single transaction. The advantages and disadvantages of a joint venture are substantially the same as those listed above for partnerships.

13. It is clear, particularly upon a reading of the foregoing excerpt from the Contractor's Manual, that the only correct answer to Question 33 of Session One of the Business and Financial Management portion of the Certification Examination is choice "(C)."

14. The response selected by Petitioner, choice "(B)," is

    clearly incorrect.

    
    

15. Petitioner therefore appropriately received no credit for this question.

    Question 36--Business and Financial Management, Session Two

    
    

16. Question 36 of Session Two of the Business and Financial Management portion of the Certification Examination was a multiple choice question that was clear and unambiguous and covered subject matter with which the applicants should have been familiar.

17. It required applicants to determine which of the choices given indicated the point in time when revenue, costs, and expenses are first recognized under the percentage of completion method of accounting.

    
    

18. Page 19 of the Builder's Guide to Accounting contains the following statement regarding the percentage of completion method of accounting:

    The advantage of the percentage of completion method is that income and its related costs, expenses, and profits are recognized and reported as the job progresses.

    
    

19. It is clear, particularly upon a reading of the foregoing excerpt from page 19 of the Builder's Guide to Accounting, that the only correct answer to Question 36 of Session Two of the Business and Financial Management portion of the Certification Examination is choice "(C)."

20. The response selected by Petitioner, choice "(D)," is

    clearly incorrect.

    
    

21. Petitioner therefore appropriately received no credit for this question.

    Question 37--Business and Financial Management, Session Two

    
    

22. Question 37 of Session Two of the Business and Financial Management portion of the Certification Examination was a multiple choice question that was clear and unambiguous and covered subject matter with which the applicants should have been familiar.

23. It asked how a contractor can be sure that general ledger entries have been correctly made.

24. Page 202 of the Builder's Guide to Accounting states the following regarding general ledger entries:

    After you post your ledger at the close of the period, the first step to take in drawing up financial statements is to put together a trial balance. See Figure 21-1. This worksheet proves that the ledger is in balance. In all cases, debits should equal credits. So the total of all debits on one side of the trial balance must equal the total of all credits on the other side.

    Otherwise, none of the financial statements will balance. . . .

    
    

    The general ledger is in balance when all entries into it have been made correctly.

    The way to prove this is to add up the totals of all accounts. Modern-day general ledgers are maintained by the double entry system.

    This means that every entry is made twice- one debit and one credit. Debits are positive numbers and credits are negative. Because every entry includes a positive (debit) and a negative (credit), a correctly posted general ledger will add up to a net of zero.

25. It is clear, particularly upon a reading of that portion of page 202 of the Builder's Guide to Accounting set forth above, that the only correct answer to Question 37 of Session Two of the Business and Financial Management portion of the Certification Examination is choice "(B)."

26. The response selected by Petitioner, choice "(D)," is clearly incorrect.

27. Petitioner therefore appropriately received no credit for this question.

    Question 40--General Trade Knowledge, Division II, Session Three

    
    

28. Question 40 of Session Three of the General Trade Knowledge (Division II) portion of the Certification Examination was a multiple choice question that was clear and unambiguous and covered subject matter with which the applicants should have been familiar.

29. It required the applicants to examine a drawing illustrating fixtures in a public lavatory and to compare the drawing to the requirements set forth in the National Standard Plumbing Code Illustrated, Section 7.16.2 of which addresses the "size of floor drains" and provides as follows:

    Floor drains shall be of a size to serve the intended purpose. Minimum size trap shall be

    2 inches.

    
    

30. The only correct answer to this question is choice "(A)."

31. Inasmuch as Section 7.16.2 of the National Standard

    Plumbing Code Illustrated provides that the"[m]inimum size trap shall be 2 inches," the response selected by Petitioner, choice "(B)," is clearly incorrect.

32. Petitioner therefore appropriately received no credit for this question.

    Question 3--General Trade Knowledge, Division II, Session Four

    
    

33. Question 3 of Session Four of the General Trade Knowledge (Division II) portion of the Certification Examination was a multiple choice question that was clear and unambiguous and covered subject matter with which the applicants should have been familiar.

34. It required the applicants to determine which of the devices listed, according to NFPA 99- Health Care Facilities, was required to be located on a medical gas line immediately outside of each vital life-support or critical care area.

35. Section 4-4.1.3.2 of NFPA 99- Health Care Facilities provides as follows:

    A shutoff valve shall be located immediately outside each vital life-support or critical care area in each medical gas line, and located so as to be readily accessible in an emergency. Valves shall be protected and marked in accordance with 4-6.4.1.2.

    
    

    All gas-delivery columns, hose reels, ceiling tracks, control panels, or other special installations shall be located downstream of this valve.

    
    

36. It is clear from a reading of the pertinent portions of NFPA 99- Health Care Facilities that the only correct answer to

    Question 3 of Session Four of the General Trade Knowledge (Division II) portion of the Certification Examination is choice "(C)."

37. The response selected by Petitioner, choice "(B)," is incorrect.

38. Petitioner therefore appropriately received no credit for this question.

    Question 25--General Trade Knowledge, Division II, Session Four

    
    

39. Question 25 of Session Four of the General Trade Knowledge (Division II) portion of the Certification Examination was a multiple choice question that was clear and unambiguous and covered subject matter with which the applicants should have been familiar.

40. It required the applicants to identify which of the piping materials listed would be suitable for use in a fuel gas system according to NFPA- 54 National Fuel Gas Code.

41. Section 2.6 of NFPA 54- National Fuel Gas Code describes the "acceptable piping materials and joining methods" for a fuel gas system. It provides, in pertinent part, as follows:

    2.6.2 Metallic Pipe.

    
    

    1. Cast-iron pipe shall not be used.

       
       

    2. Steel and wrought-iron pipe shall be at least of standard weight (Schedule 40) and shall comply with one of the following standards:

       1. Standard for Welded and Seamless Wrought- Steel Pipe, ANSI/ASME B36.10.

          
          

       2. Standard Specification for Pipe, Steel, Black and Hot-Dipped, Zinc-Coated Welded and Seamless, ASTM A53; or

          
          

       3. Standard Specification for Seamless Carbon Steel Pipe for High-Temperature Service, ASTM A106.

       
       

    3. Nodular (ductile) iron pipe shall comply with one of the following standards:

    
    

    1. Standard for Ductile-Iron Pipe, Centrifugally Cast, in Metal Molds or Sand- Lined Molds, for Gas, ANSI A21.52; or

       
       

    2. Specification for Ductile Iron Pressure Pipe, ASTM A377.

    
    

    Such pipe shall be not less than 3-inch size, shall not be welded, and shall be used only underground outside building foundation boundaries, or above ground, provided that joints are properly restrained against movement and separation.

    
    

42. It is clear from a reading of the pertinent portions of NFPA 54- National Fuel Gas Code that the only correct answer to Question 25 of Session Four of the General Trade Knowledge (Division II) portion of the Certification Examination is choice "(A)."

43. The response selected by Petitioner, choice "(D)," is clearly incorrect.

44. Petitioner therefore appropriately received no credit for this question.

    Isometric Drawings

    
    

45. In Session Three of the General Trade Knowledge

    (Division II) portion of the Certification Examination the applicants were given "five (5) problems relating to the interpretation of various plumbing codes as they pertain to piping and equipment systems illustrations as are commonly used on construction drawings and in the plumbing industry." For each problem the applicants were given a floor plan or "plan view," as well as a "blank isometric sheet" on which they were required to "develop an isometric drawing from each of the floor plans in the space provided . . . compl[ying] with applicable codes and the directions given in the problem." The following "plumbing isometric drawing criteria" were listed in the examination booklet:

    Listed below are the criteria used to evaluate all isometric drawings. Remember to display all symbols and the directions of flow. You must meet all the criteria specified, for each drawing to obtain credit.

    
    

    1.0 Proper Orientation of Fixtures and Piping in Reference to the Floor Plan

    
    

    All fixtures and piping must be properly oriented as outlined by the floor plan.

    
    

    2.0 Display of Symbols on Isometric Drawings

    
    

    All symbols must be displayed in the correct manner.

    
    

    3.0 Indication of Direction of Flow as per the National Standard Plumbing Code Illustrated 1993 and the 1995 supplement

    
    

    The direction of flow must be indicated even if the direction is implied. . .

    
    

    4.0 Elevations of Connections

    All connections must be displayed at the proper elevations.

    
    

    5.0 Use of 30-60-90 Degree Angles

    
    

    All angles must be displayed at the proper orientation.

    
    

    6.0 Code Compliance as per Standard Plumbing Code, 1994 with 1995 revisions, (SBCCI)

    
    

    The drawing must be in compliance with this code and pass inspection.

    
    

    7.0 Representation of Floor Plan Elevations in Piping

    
    

    The piping must display the correct elevation in reference to the floor plan.

    
    

    The examination booklet also contained the following instruction: "Use only those symbols, abbreviations and drawing conventions as are contained in the approved references and this booklet."

46. Petitioner's drawings in response to Problems 1, 3, 4, and 5 (Petitioner's Drawings 1, 3, 4, and 5) did not "meet all the criteria specified." Therefore, in accordance with the grading policy set forth in the examination booklet,2 Petitioner did not obtain any credit for these drawings.

47. In Petitioner's Drawing 1, vents and fittings were not properly displayed, and the water closet line was not displayed at the correct elevation.

48. Petitioner's Drawing 3 was not in compliance with applicable code requirements governing elevation. In addition, vents and direction of flow were not properly indicated in the drawing.

49. Petitioner's Drawing 4 failed to display a vent stack going through the roof that was shown on the "plan view." In addition, the wash fountains were mislabeled and an inappropriate fitting was indicated on the drawing.

50. In Petitioner's Drawing 5, vents, fittings, and direction of flow were not properly displayed.3

    CONCLUSIONS OF LAW

    
    

51. A person seeking certification to engage in the plumbing contracting business in the State of Florida must apply to the Department to take the certification examination. Section 489.111, Florida Statutes.

52. The certification examination for plumbing contractors consists of two tests. "Test one . . . consist[s] of questions relating to the business and financial management of a plumbing contracting firm." "Test two . . . consist[s] of questions relating to general knowledge of the plumbing trade." Rule 61G4- 16.001(13)(a)1 and 2, Florida Administrative Code. Rule 61G4- 16.001(13)(a)2d, Florida Administrative Code, provides that "[t]est two shall include, but not be limited two, five plumbing isometric drawings." It further provides as follows:

    Based on the criteria listed below, each drawing will be independently evaluated by three graders. At least two of the three graders must agree that a criterion is correct to be graded as correct. If one or more criterion is determined to be incorrect by at least two of the graders, the entire drawing will be counted as incorrect. All specified criteria below must be met for each drawing to obtain credit. No partial credit

    will be given for a drawing. The following are the criteria used by the graders to evaluate each of the five isometric drawings.

    
    

    1. Proper Orientation of Fixtures and Piping in Reference to the Floor Plan. All fixtures and piping must be properly oriented as outlined by the floor plan.

       
       

    2. Display of Symbols on Isometric Drawings. All symbols must be displayed in the correct manner.

       
       

    3. Indication of Direction of Flow as per the National Standard Plumbing Code Illustrated 1993 and the 1994 supplement.

       The direction of flow must be indicated even if the direction is implied. . . .

       
       

    4. Elevations of Connections. All connections must be displayed at the proper elevations.

       
       

    5. Use of 30-60-90 Degree Angles. All angles must be displayed at the proper orientation.

       
       

    6. Code Compliance as per Standard Plumbing Code, 1994, (SBCCI). The drawing must be in compliance with this code and pass inspection.

       
       

    7. Representation of Floor Plan Elevations in Piping. The piping must display the correct elevation in reference to the floor plan.

       
       

53. The questions and problems on the certification examination are required to adequately and reliably measure the applicant's competency and ability as a plumbing contractor. If they do not provide such an adequate and reliable measure, they must be rejected and not taken into consideration in determining the applicant's score. Rule 61-11.010, Florida Administrative Code.

54. "The score necessary to achieve a passing grade on the certification exam[ination] shall be no less than a percentage of

    
    

    seventy (70.0%) out of one hundred (100%) on each of the two tests." Rule 61G4-16.001(13)(b), Florida Administrative Code.

55. An applicant who fails to attain a passing score on the examination is entitled to review the "examination questions, pertinent exhibits related to those questions, the correct answers to those questions, the applicant's responses to the same questions, the scratch papers used at the examination, and the grades and grading key used in the licensure examination." Rule 61G4-16.003(1), Florida Administrative Code.

56. During the review session the applicant has "the right to challenge [in writing] any question the [applicant] believes may be ambiguous or any solution which the [applicant] believes may be incorrect." "Any challenges submitted after the applicant has left the review room [will] not be analyzed." Rule 61G4- 16.003(4), Florida Administrative Code.

57. "If the challenge is denied, the [applicant] may file a petition for a hearing [pursuant to Chapter 120, Florida Statutes] which must be in writing, be received by the Department within thirty days of the letter of denial, and clearly identify the question(s) that the [applicant] believes is ambiguous or the test solution(s) that the [applicant] believes is incorrect." Rule 61G4-16.003(6), Florida Administrative Code.

58. The burden is on the applicant at hearing to establish by a preponderance of the evidence that the applicant's examination was erroneously or improperly graded. See Harac v. Department of Professional Regulation, Board of Architecture, 484 So. 2d 1333, 1338 (Fla. 3d DCA 1986); Florida Department of Health and Rehabilitative Services v. Career Service Commission, 289 So. 2d 412, 414 (Fla. 4th DCA 1974).

59. In the instant case, Petitioner requested a hearing to contest the failing scores he received on the Business and Financial Management (Test One) and General Trade Knowledge (Test Two) portions of the April 1996 plumbing contractor certification examination. His challenge is directed to his failure to have received any credit for his responses to multiple choice questions 8, 11, and 33 on Test One, Session One; multiple choice questions 36 and 37 on Test One, Session Two; multiple choice question 40 and isometric drawing problems 1,3,4,and 5 on Test Two, Division II, Session Three; and multiple choice questions 3 and 25 on Test Two, Division II, Session Four.

60. A review of the record evidence reveals that Petitioner has not made a sufficient showing in support of his position that he was erroneously or improperly denied credit for his responses to these multiple choice questions and isometric drawing problems.

61. Petitioner has failed to show that any of the questions or problems in dispute was unclear, ambiguous, misleading, or in

    any other respect unfair or unreasonable. Neither has he established that he correctly answered any of the disputed multiple choice questions or that his drawings in response to the isometric drawing problems in dispute met "[a]ll specified criteria," as required by Rule 61G4-16.001(13)(a)2d, Florida Administrative Code.

    
    

62. Accordingly, in declining to award him any credit for his responses to these questions and problems, those grading his examination did not act arbitrarily or without reason or logic.

63. In view of the foregoing, Petitioner's challenge to the failing grades he received on the Business and Financial Management and General Trade Knowledge portions of the April 1996 plumbing contractor certification examination is without merit.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a final order be entered rejecting Petitioner's challenge to the failing grades he received on the Business and Financial Management and General Trade Knowledge portions of the April 1996 plumbing contractor certification examination.

DONE AND ENTERED this 21st day of July, 1997, in Tallahassee, Leon County, Florida.

STUART M. LERNER

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 21st day of July, 1997.

ENDNOTES

1 It is not apparent from the record why this case was not referred to the Division sooner.

2 This policy is also set forth in Rule 61G4-16.001(13)(a)2d, Florida Administrative Code.

3 Petitioner is challenging the grading of only those examination questions and problems which are specifically addressed in the foregoing Findings of Fact.

COPIES FURNISHED:

Alva Lee Graham

20100 Northwest 34th Avenue Miami, Florida 33056

R. Beth Atchison Assistant General Counsel

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Rodney Hurst, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300

Jacksonville, Florida 32211

Lynda L. Goodgame, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

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: 97-000932

Orders for Case No: 97-000932