STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOE SENFAR, )

)

Petitioner, )

)

vs. ) Case No. 99-0601

)

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 March 31, 1999, via video teleconference, with the Petitioner appearing in Miami, Florida, and the Respondent appearing in Tallahassee, Florida, before Patricia Hart Malono, a duly- designated administrative law judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Joe Senfar, pro se

311 Southeast 135th Avenue Miami, Florida 33184

For Respondent: R. Beth Atchison, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-1307

STATEMENT OF THE ISSUE

Whether the Respondent should receive a passing grade on the Alarm Systems Contractor II Examination administered July 24, 1998.

PRELIMINARY STATEMENT

On July 24, 1998, Joe Senfar sat for the Alarm Systems Contractor II 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 September 10, 1998, Mr. Senfar was notified by the Department that he failed to pass the examination; the minimum passing score was 75 points, and

Mr. Senfar attained a score of 72 points.

In a letter dated November 5, 1998, Mr. Senfar requested a formal hearing to contest his failure to get credit for his answers to examination questions 11, 27, 36, 43, 55, 80, 83, 94, and 100. The Department forwarded Mr. Senfar's letter to the Division of Administrative Hearings for assignment of an administrative law judge. Pursuant to notice, the final hearing was held March 31, 1999.

At the hearing, Mr. Senfar testified in his own behalf.

Although he did not offer any exhibits at the hearing, he attached four documents to his letter dated April 5, 1999.

Mr. Senfar was granted leave to submit these late-filed exhibits, and Petitioner's Exhibits A, B, C, and D are received into

evidence. The Department presented the testimony of Ralph J. Annunziata, and Respondent's Exhibits 1 through 4 were offered and received into evidence.

The transcript of the proceeding was filed on April 12, 1999. The Petitioner filed a submittal on April 5, 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. Senfar sat for the Alarm Systems Contractor II Examination on July 24, 1998. At the hearing, he disputed the Department's determination that the answers he gave to questions 11, 27, 36, 43, 55, 80, 83, and 94 are incorrect. These questions are objective, multiple-choice questions, and the examination candidate must choose the correct answer from among four possible answers.

3. According to the Department, the correct answer to question 11 is "A"; Mr. Senfar chose answer "C." Question 11 is

   clear and unambiguous, and the correct answer is included among the choices provided. The examination candidates were directed to answer question 11 using the diagram that is printed above the question in the examination booklet. The correct answer to the question was not found in any of the reference materials

   Mr. Senfar was permitted to use while he was taking the examination, but it could be derived from the information provided in the diagram and in the question itself. Question 11 was intended to test the examination candidate's field knowledge acquired during the four years of field work required for a candidate to qualify to take the Alarm Systems Contractor II Examination. It was not unfair for the Department to expect the examination candidates to use the information learned in the field to derive the correct answer from the diagram provided.

   The reference Mr. Senfar provided to support his answer is not related to the question posed in question 11. Mr. Senfar should not receive credit for his answer to question 11 because the answer he gave is not the correct answer.

4. According to the Department, the correct answer to question 27 is "B"; Mr. Senfar chose answer "A." Question 27 is clear and unambiguous, and the correct answer was included among the choices provided. The correct answer can be derived from the information found in a table included in the reference materials Mr. Senfar was permitted to use while he was taking the examination. Although the correct answer itself was not included

   in the reference material, 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. The reference Mr. Senfar provided to support his answer directs the reader to the place where the information necessary to answer question 27 can be found, but the reference he provided does not itself provide this information. Mr. Senfar should not receive credit for his answer to question 27 because the answer he gave is not the correct answer.

5. According to the Department, the correct answer to question 36 is "B"; Mr. Senfar chose answer "A." Question 36 is clear and unambiguous, and the correct answer was included among the choices provided. The correct answer was included in the reference material Mr. Senfar was permitted to use while he was taking the examination. Mr. Senfar should not receive credit for his answer to question 36 because the answer he gave is not the correct answer.

6. According to the Department, the correct answer to question 43 is "B"; Mr. Senfar chose answer "A." Question 43 is clear and unambiguous, and the correct answer was included among the choices provided. The correct answer was included in the reference material Mr. Senfar was permitted to use while he was taking the examination. Mr. Senfar should not receive credit for his answer to question 43 because the answer he gave is not the correct answer.

7. According to the Department, the correct answer to question 55 is "A"; Mr. Senfar chose answer "B." Question 55 is clear and unambiguous, and the correct answer was included among the choices provided. The correct answer was included in the reference material Mr. Senfar was permitted to use while he was taking the examination. Mr. Senfar should not receive credit for his answer to question 55 because the answer he gave is not the correct answer.

8. According to the Department, the correct answer to question 80 is "C"; Mr. Senfar chose answer "B." Question 80 is clear and unambiguous, and the correct answer was included among the choices provided. The correct answer was included in the reference material Mr. Senfar was permitted to use while he was taking the examination. The reference provided by Mr. Senfar to support his answer is out-of-date and, in addition, does not relate to the question posed in question 80. Mr. Senfar should not receive credit for his answer to question 80 because the answer he gave is not the correct answer.

9. According to the Department, the correct answer to question 83 is "A"; Mr. Senfar chose answer "D." Question 83 is clear and unambiguous, and the correct answer was included among the choices provided. The correct answer was included in the reference material Mr. Senfar was permitted to use while he was taking the examination. Mr. Senfar should not receive credit for

   his answer to question 83 because the answer he gave is not the correct answer.

10. According to the Department, the correct answer to question 94 is "B"; Mr. Senfar chose answer "D." Question 94 is clear and unambiguous, and the correct answer was included among the choices provided. The correct answer was included in the reference material Mr. Senfar was permitted to use while he was taking the examination. The reference Mr. Senfar provided to support his answer is not related to the question posed in question 94. Mr. Senfar should not receive credit for his answer to question 94 because the answer he gave is not the correct answer.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties

    pursuant to Sections 120.569 and .57(1), Florida Statutes (1997).

    
    

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

    1. Any person who desires to engage in electrical 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.

13. Mr. Senfar 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. Senfar 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 Joe Senfar's petition for a formal hearing to challenge to the subject examination questions.

DONE AND ENTERED this 24th day of June, 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 24th day of June, 1999.

COPIES FURNISHED:

Lynne A. Quimby-Pennock, Esquire Contract Administrator Department of Business and

Professional Regulations 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Joe Senfar

311 Southwest 135th Avenue Miami, Florida 33184

Ila Jones, Executive Director Electrical Contractors'

Licensing Board Department of Business and

Professional Regulations 1940 North Monroe Street

Tallahassee, Florida 32399-1007

William Woodyard, General Counsel Department of Business and

Professional Regulations 1940 North Monroe Street

Tallahassee, Florida 32399-1007

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: 99-000601

Orders for Case No: 99-000601