STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KENNETH MARSHALL, )

)

Petitioner, )

)

vs. ) Case Nos. 97-2368

) 97-4372

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 September 29, 1997, by video in Tallahassee, Florida, and Fort Lauderdale, Florida, before Claude B. Arrington, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: John Preston Seiler, Esquire

2900 East Oakland Park Boulevard Number 200

Fort Lauderdale, Florida 33306

For Respondent: R. Beth Atchison, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0750

STATEMENT OF THE ISSUES

Whether Petitioner is entitled to additional credit for his responses to Questions 23 and 27 of the Contract Administration

section of the General Contractor licensure examination administered in July 1996, and, if so, whether the additional credit would give him a passing grade.

Whether Petitioner is entitled to additional credit for his responses to Questions 11, 23, and 35 of the Contract Administration section of the General Contractor licensure examination administered in April 1997 and, if so, whether the additional credit would give him a passing grade.

PRELIMINARY STATEMENT

Petitioner was a candidate for the General Contractor licensure examination administered by Respondent in July 1996 and again in April 1997. Case 97-2368 was timely filed by Petitioner to challenge the scoring of various questions on the July 1996 examination. Subsequently, Petitioner timely filed Case 97-4372 to challenge the scoring of various questions on the April 1997 examination. The cases were consolidated at the request of the parties.

At the formal hearing, Petitioner announced that he was only challenging Questions 23 and 27 of the July 1996 exam and Questions 11, 23, and 35 of the April 1997 exam.

At the formal hearing, the parties offered 10 exhibits, which were accepted into evidence. Petitioner testified on his own behalf, but presented no other evidence. Respondent presented the testimony of Karl Lieblong, who was permitted to

express opinions within the scope of his expertise as a contractor.

A transcript of the proceedings has been filed. The Respondent filed a proposed recommended order, which has been duly considered by the undersigned in the preparation of this Recommended Order. Petitioner gave his closing argument at the formal hearing, which has also been duly considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner took the Contract Administration section of the General Contractor’s licensure examination in July 1996 and in April 1997. Between the two exams, Petitioner passed all sections of the examination except the Contract Administration section.

2. Petitioner’s score on the Contract Administration section of the July 1996 examination, as graded by Respondent’s Bureau of Testing, was 65. His score on the Contract Administration section of the April 1997 examination was 67.5.

3. For both examinations, there were 40 questions on the Contract Administration section. A candidate had to achieve a score of 70 to pass that section of the examination. Because each question was equally weighted, a candidate would have to correctly answer 28 questions to earn the passing score.

4. All questions challenged by Petitioner were multiple- choice questions where the candidate was instructed to give the

   best answer from four possible choices. Prior to the examinations, the candidates were given a list of approved reference materials. The candidates were permitted to refer to those reference materials while taking the examinations.

5. Respondent’s score of 65 on the July 1996 examination was based on the Bureau of Testing’s determination that Petitioner correctly answered 26 of the 40 questions. To earn a passing grade on the Contract Administration section of the July 1996 examination, Petitioner would have to receive credit for correctly answering two additional questions. His score of 67.5 on the April 1997 was based on the determination that he correctly answered 27 of the 40 questions. To earn a passing grade on the Contract Administration section of the April 1997 examination, Petitioner would have to receive credit for correctly answering one additional question.

   QUESTION 23 OF THE JULY 1996 EXAM

   
   

6. The correct answer for Question 23 of the July examination is choice “D.” Of the four possible responses, choice “D” is the best answer to the question. Petitioner’s answer to this question was choice “A.” Petitioner did not receive credit for his response to this question because he did not select the best answer. The answer selected by Petitioner would not be the most accurate and cost-effective because the methodology he selected would not detect errors made by the first person performing the computations.

7. The challenged question is a question that a candidate for licensure should be able to answer. The challenged question is not beyond the scope of knowledge that a candidate for licensure should have. The challenged question is not ambiguous.

8. Petitioner is not entitled to additional credit for his response to Question 23 of the July 1996 exam.

   QUESTION 27 OF THE JULY 1996 EXAM

   
   

9. The correct answer for Question 27 of the July examination is choice “C.” This correct answer is supported by reference materials made available to all candidates. Petitioner’s answer to this question was choice “B.” Petitioner did not receive credit for his response to this question because he did not select the correct answer to the question.

10. The challenged question is a question that a candidate for licensure should be able to answer. The challenged question is not beyond the scope of knowledge that a candidate for licensure should have. The challenged question is not ambiguous.

11. Petitioner is not entitled to additional credit for his response to Question 27 of the July 1996 exam.

    QUESTION 11 OF THE APRIL 1997 EXAM

    
    

12. The correct answer for Question 11 of the April 1997 examination is choice “C.” This correct answer is supported by reference materials made available to all candidates. Petitioner’s answer to this question was choice “D.” Petitioner did not receive credit for his response to this question because he did not select the correct answer to the question.

13. The challenged question is a question that a candidate for licensure should be able to answer. The challenged question is not beyond the scope of knowledge that a candidate for licensure should have. The challenged question is not ambiguous.

14. Petitioner is not entitled to additional credit for his response to Question 11 of the April 1997 exam.

    
    

    QUESTION 23 OF THE APRIL 1997 EXAM

    
    

15. The best answer for Question 23 of the April 1997 examination is choice “C.” This correct answer is supported by reference materials made available to all candidates. Petitioner’s answer to this question was choice “A.” While there is some support in the reference material for Petitioner's answer, the greater weight of the evidence established that his choice was not the best answer. Petitioner did not receive credit for his response to this question because he did not select the best answer to the question.

16. The challenged question is a question that a candidate for licensure should be able to answer. The challenged question is not beyond the scope of knowledge that a candidate for licensure should have. The challenged question is not ambiguous.

17. Petitioner is not entitled to additional credit for his response to Question 23 of the April 1997 exam.

    QUESTION 35 OF THE APRIL 1997 EXAM

    
    

18. The correct answer for Question 11 of the April 1997 examination is choice “C.” This correct answer is supported by reference materials made available to all candidates. Petitioner’s answer to this question was choice “D.” Petitioner

    did not receive credit for his response to this question because he did not select the correct answer to the question.

19. The challenged question is a question that a candidate for licensure should be able to answer. The challenged question is not beyond the scope of knowledge that a candidate for licensure should have. The challenged question is not ambiguous.

20. Petitioner is not entitled to additional credit for his response to Question 11 of the April 1997 exam.

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction of the parties to and the subject of this proceeding. Section 120.57(1), Florida Statutes.

22. Section 489.113, Florida Statutes, requires a candidate for licensure as a general contractor to pass a licensure examination. Respondent has the responsibility to administer that examination.

23. Petitioner has the burden of proving by a preponderance of the evidence that he is entitled to additional credit for his responses to the examination question. See Harac v. Department of Professional Regulation, 484 So 2d 1333 (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); and State ex rel. Glaser v. J. M. Pepper, 155 So. 2d 383 (Fla. 1st DCA 1963). Petitioner did not meet that burden.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order that dismisses the challenges brought by Petitioner to Questions 23 and 27 on the July 1996 exam and to Questions 11, 23, and 35 of the April 1997 exam.

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

CLAUDE B. ARRINGTON

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 December, 1997.

COPIES FURNISHED:

R. Beth Atchison, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0750

Mr. Kenneth Marshall

624 Southwest 11th Court

Fort Lauderdale, Florida 33315

John Preston Seiler, Esquire

2900 East Oakland Park Boulevard, No. 200 Fort Lauderdale, Florida 33306

Lynda L. Goodgame, 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 32211-7467

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: 97-002368

Orders for Case No: 97-002368