STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JUAN CARLOS PEREZ, )

)

Petitioner, )

)

vs. ) Case No. 98-3634

) DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

ELECTRICAL CONTRACTORS )

LICENSING BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on December 15, 1998, via video teleconference, with the Petitioner appearing at Miami, Florida, and the Respondent appearing at Tallahassee, Florida, before Patricia Hart Malono, a duly- designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Juan Carlos Perez, pro se

7451 Southwest 161st Place Miami, Florida 33193

For Respondent: R. Beth Atchison, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-1007

STATEMENT OF THE ISSUE

Whether the Respondent should receive a passing grade on the Alarm Systems I Contractor Examination administered January 30, 1998.

PRELIMINARY STATEMENT

On January 30, 1998, Juan Carlos Perez sat for the Alarm Systems I Contractor Examination administered by the Department of Business and Professional Regulation, Bureau of Testing ("Department"), as a prerequisite to state licensure. In an Examination Grade Report dated March 13, 1998, Mr. Perez was notified by the Department that he failed to pass the examination; the minimum passing score was 75 points, and Mr.

Perez attained a score of 72 points.

In a letter dated May 18, 1998, Mr. Perez timely filed with the Department a petition in which he disputed his failure to get credit for his answers to examination questions 21, 58, and 59 and requested a hearing. The Department forwarded Mr. Perez's letter to the Division of Administrative Hearings for assignment of an administrative law judge. Pursuant to notice, the final hearing was held December 15, 1998.

At the hearing, Mr. Perez testified in his own behalf, and Petitioner's Exhibits 1 and 2 were offered and received into evidence. The Department presented the testimony of Ralph J. Annunziata, and Respondent's Exhibits 1 through 5 were offered and received into evidence.

The transcript of the proceeding was filed on January 19, 1999, and the Petitioner filed his Proposed Recommended Order on March 22, 1999, which has been duly considered. The Respondent did not file proposed findings of fact and conclusions of law.

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, Electrical Contractors' Licensing Board, is the state agency responsible for licensing and regulating electrical contractors, including alarm systems contractors, in the State of Florida. Sections 489.511, .515, and .533, Florida Statutes (1997).

2. Mr. Perez sat for the Alarm Systems I Contractor Examination on January 30, 1998. He disputes the Department's determination that the answers he gave to questions 21, 58, and

   59 are incorrect. These three questions are objective, multiple- choice questions, and the examination candidate is to choose the correct answer from among four possible answers.

3. According to the Department, the correct answer to question 21 is "A"; Mr. Perez chose answer "C." Question 21 is clear and unambiguous, and the correct answer was included among the choices provided. The correct answer is found in the Specifications for Plans which, together with a set of blueprints, was provided to the examination candidates with the

   examination booklet. On the back of the Specifications for Plans, the examination candidates were told that the document was to be used with the examination for licensure. Several of the questions on the examination were based on information contained in the specifications and blueprints. Although the examination candidates had not seen the specifications and blueprints prior to the examination, the requirement that the candidates use these documents in answering questions on the examination is not unfair. The Department could have had the legitimate purpose of testing the candidates' ability to read blueprints and specifications. Mr. Perez should not receive credit for his answer to question 21 because, according to the information contained in the specifications, the answer he gave is not the correct answer.

4. According to the Department, the correct answer to question 58 is "C"; Mr. Perez chose answer "A." Question 58 is clear and unambiguous, and the correct answer was included among the choices provided. The correct answer can be derived from information found in the reference material Mr. Perez was permitted to use while he was taking the examination. Although the correct answer could not be found in the reference material word-for-word, it was not unfair for the Department to expect the examination candidates to use the information provided to calculate the correct answer to the question. Mr. Perez should

   not receive credit for his answer to question 58 because the answer he gave is not the correct answer.

5. According to the Department, the correct answer to question 59 is "D"; Mr. Perez chose answer "A." Question 59 is clear and unambiguous, and the correct answer was included among the choices provided. The correct answer can be derived from both text and a schematic found in the reference material

   Mr. Perez was permitted to use while he was taking the examination. Although the correct answer could not be found in the reference material word-for-word, it was not unfair for the Department to expect the examination candidates to derive the correct answer from the information available in the materials. Mr. Perez should not receive credit for his answer to question 59 because the answer he gave is not the correct answer.

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569 and .57(1), Florida Statutes (1997).

7. Section 489.516, Florida Statutes (1997), provides in pertinent part:

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

8. Mr. Perez has the burden of proving by a preponderance of the evidence that the Department'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 herein, Mr. Perez has failed to meet this burden.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Electrical Contractors' Licensing Board, enter a final order dismissing Juan Carlos Perez's petition challenging the subject examination questions.

DONE AND ENTERED this 27th day of April, 1999, 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

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1999.

COPIES FURNISHED:

Illa Jones, Executive Director Electrical Contractors'

Licensing Board Department of Business and

Professional Regulations 1940 North Monroe Street

Tallahassee, Florida 32399-1007

R. Beth Atchinson, Esquire Department of Business and

Professional Rgulations 1940 North Monroe Street

Tallahassee, Florida 32300-1007

William Woodyard, General Counsel Department of Business and

Professional Regulations 1940 North Monroe Street

Tallahassee, Florida 32399-1007

Juan Carlos Perez

7451 Southwest 161st Place Miami, Florida 33193

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: 98-003634

Orders for Case No: 98-003634