STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ULISES A. GARCIA, )

)

Petitioner, )

)

vs. ) Case No. 99-2499

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, ) ELECTRICAL CONTRACTORS LICENSING ) BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on August 31, 1999, by video teleconference at Miami, Florida, before Susan B. Kirkland, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Renato Perez, Esquire

Law Offices of Perez and Perez 1105 Southwest 87th Avenue Miami, Florida 33174

For Respondent: Theodore R. Gay, Esquire

Department of Business and Professional Regulation,

Electrical Contractors Licensing Board

401 Northwest 2nd Avenue, Suite N-607 Miami, Florida 33128

STATEMENT OF THE ISSUE

Whether Petitioner should receive a passing grade for the Unlimited Electrical Contractors' Examination given on January 29, 1999.

PRELIMINARY STATEMENT

Petitioner, Ulises A. Garcia (Garcia), took the Unlimited Electrical Contractors' Examination on January 29, 1999. By an examination grade report mailed March 15, 1999, Respondent, Department of Business and Professional Regulation, Electrical Contractors'' Licensing Board (Department), notified Garcia that his score on the examination was 74, which was a failing score. Garcia requested an administrative hearing, challenging four questions. This case was forwarded to the Division of Administrative Hearings on June 4, 1999, for assignment to an Administrative Law Judge.

At the final hearing Garcia testified in his own behalf and called Juan Echavarria as his witness. Petitioner's Exhibit 1 was admitted in evidence. Respondent called Fae Hartsfield Mellichamp, and Richard Widera as its witnesses. Respondent's Exhibits 1-6 were admitted in evidence.

At the final hearing, Petitioner withdrew his challenge to two of the four questions at issue. The two questions which remain at issue are questions 20 and 53 of the morning portion of the examination.

The parties agreed to file proposed recommended orders within 15 days of the filing of the Transcript, which was filed on September 14, 1999. On September 29, 1999, the parties filed their Proposed Recommended Orders, which have been considered in rendering this Recommended Order.

FINDINGS OF FACT

1. On January 29, 1999, Petitioner Ulises A. Garcia (Garcia), sat for the Unlimited Electrical Contractors' Examination given by Respondent, Department of Business and Professional Regulation, Electrical Contractors' Licensing Board (Department). The examination consisted of 150 multiple-choice questions, 100 of which were on the morning portion of the examination and the remaining 50 of which were on the afternoon portion of the examination.

2. The questions are based on general trade knowledge and certain reference materials, which are identified to the candidates prior to the examination in the "Candidate Information Booklet for the Electrical Contractors' Examination." The candidates are allowed to bring the reference materials to the examination and to refer to them during the examination.

3. An applicant must receive a score of at least 75 in order to pass the examination. Each question is worth two-thirds of a point. The Department rounds the scores. For example, if a candidate scored 74 and 2/3 points, the Department awards a grade of 75.

4. By examination grade report mailed March 15, 1999, the Department notified Garcia that he had failed the examination with a grade of 74.

5. Garcia requested an administrative hearing challenging questions 20, 53, and 100 on the morning portion of the

   examination and question 2 on the afternoon portion of the examination. At the final hearing, Garica withdrew his challenge to questions 100 and 2, leaving questions 20 and 53 at issue.

6. Question 20 dealt with service entrance conductors. The parties stipulated that Garcia gave "A" as the answer. The answer which the Department considered to be correct was "C." Garcia stated that he was giving the answer which applied to the general rule concerning service entrance conductors and that he did not consider exceptions to the general rule in his answer. The Department took the position that the question did not specify that only the general rule should be considered; thus, the exceptions should be included.

7. If the general rule is used pertaining to question 20, the correct answer is "A." If some but not all the exceptions are used, the correct answer would be "C." The question, as posed, requires that if exceptions are to be considered all the exceptions should be considered. The multiple-choice question had four possible answers, none of which was the correct answer based upon the testimony of both Garcia's expert witness and the Department's expert witness. Because the correct answer is not included in the choices, Garcia should be given credit for his answer as has been the past practice of the Department when a question is vague or ambiguous.

8. Question 53 dealt with passive infrared detectors, commonly known as motion detectors. The parties stipulated that

   Garcia answered the question as "B." The Department's position is that the correct answer is "D."

9. The correct answer is "D" as found in Section 10.2 of Understanding and Servicing Alarms Systems, which is listed as reference material in the "Candidate Information Booklet for the Electrical Contractor's Examination."

10. Question 53 is not vague or ambiguous. Eighty-two percent of the 102 persons who took the January 29, 1999, examination answered question 53 correctly.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Section 120.57(1), Florida Statutes.

12. Section 489.516(1), Florida Statutes, provides:

    
    

    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 administered by the department. . . .

13. Petitioner is seeking to establish that he is entitled to credit for his answers to questions 20 and 53. As the applicant in a license proceeding, the ultimate burden of persuasion remains with the applicant throughout the proceeding. Department of Banking and Finance v. Osborne Stern and Co.,

    670 So. 2d 932 (Fla. 1996). Petitioner must establish by a

    preponderance of the evidence that he should receive a passing score on the examination.

14. Petitioner established by a preponderance of the evidence that the correct answer to question 20 did not appear as one of the multiple choices given in question 20. Thus, the Petitioner could not have correctly answered the question, no matter what answer he chose. When the Department has had situations in which the question is vague or ambiguous, the Department has given credit for the applicants' answers. Garcia should be given two-thirds of a point for question 20.

15. Garcia has failed to establish by a preponderance of the evidence that the answer he gave for question 53 was correct. He is not entitled to any credit for question 53.

16. With credit for question 20, Garcia's score is 74 2/3 points. The Department rounds the test scores. Garcia's final score should be rounded to 75, which is a passing score.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entering finding that Ulises A. Garcia received a passing score of 75 on the Unlimited Electrical Contractors' Examination given on

January 29, 1999.

DONE AND ENTERED this 22nd day of October, 1999, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

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 22nd day of October, 1999.

COPIES FURNISHED:

Renato Perez, Esquire

Law Offices of Perez and Perez 1105 Southwest 87th Avenue Miami, Florida 33174

Theodore R. Gay, Esquire Department of Business and

Professional Regulation,

Electrical Contractors' Licensing Board

401 Northwest 2nd Avenue, Suite N-607 Miami, Florida 33128

Ila Jones, Executive Director Electrical Contractors' Licensing Board Department of Business and

Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399

Barbara D. Auger, 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: 99-002499

Orders for Case No: 99-002499