STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID WARREN,

Petitioner,

vs.

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, ELECTRICAL CONTRACTORS LICENSING BOARD,

Respondent.

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) Case No. 05-2839

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RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on October 5, 2005, in Stuart, Florida, before Jeff B. Clark, designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: David Nathan Warren, pro se

Post Office Box 1131

Palm City, Florida 34991

For Respondent: Charles F. Tunnicliff, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202 STATEMENT OF THE ISSUE

Whether Petitioner's challenge to the failing grade he received on the Limited Energy Examination of the Electrical

Contractors Licensing Board, taken on November 9, 2004, should be sustained.

PRELIMINARY STATEMENT

In November 2004, Petitioner took the Limited Energy Examination administered by the Department of Business and Professional Regulation (Department). After the examinations were graded, the Department notified Petitioner that he failed part of the exam and, therefore, failed to pass the exam.

Petitioner challenged seven examination questions. On February 7, 2005, the Department responded to Petitioner's challenges advising him that he would receive no additional

credit on the challenged questions. On or about March 7, 2005, the Department received Petitioner's February 25, 2005, letter requesting further consideration of his answers to two questions. On or about March 10, 2005, the Department advised Petitioner that his request for further consideration would be forwarded to the Division of Administrative Hearings (DOAH) for a formal administrative hearing with additional instructions regarding the hearing process.

On August 5, 2005, the Notice of Petition for Hearing was received by DOAH, and an Administrative Law Judge was assigned to conduct the hearing.

On the same day, August 5, 2005, an Initial Order was sent to both parties by DOAH. On August 22, 2005, the case was scheduled for final hearing on October 4, 2005.

The hearing was held on October 4, 2005. At the outset of the hearing, the parties stipulated that the only matter at issue in this proceeding was Respondent's answer to question No. 55 on the Limited Energy Examination.

At the hearing, Petitioner presented his own testimony.

All of the exhibits offered by Petitioner, numbered 1 through 36 were received into evidence. Exhibits 34 through 36 are demonstrative exhibits: different types of cable -- fiber optic, shielded twisted pair, and twisted pair. At the hearing, the Department presented the testimony of Ralph Annunziata, an electrical contractor, who testified as an expert witness; and Joe Muffoletto, a psychometrician, employed by the Department, who also testified as an expert witness. The Department's exhibits numbered 1 through 9 and 11 through 13 were received into evidence.

Official recognition was taken of Florida Administrative Code Rule 61G66-6.001.

At the conclusion of the hearing, the parties agreed to file their proposed recommended orders no later than ten days after the transcript was filed. The Transcript was filed on November 21, 2005. Respondent filed a motion to extend the time

for filing proposed recommended orders to December 16, 2005; the motion was granted. Petitioner then filed a Motion for Final Rebuttal and Closing Statement; this motion was granted. The parties' post-hearing submittals were timely filed and have been considered by the undersigned in preparation of this Recommended Order.

FINDINGS OF FACT

Based upon the testimony and evidence received at the hearing, the following findings are made:

1. Petitioner sat for the November 2004 Limited Energy Examination.

2. Upon receiving notice that he had not passed the examination, Petitioner challenged several examination questions. This hearing is a distillation of the challenge process and one question has been brought before this tribunal.

3. The particular question, No. 55, is, as follows: "[T]he best choice of conductor in an electrically noisy environment is: a. coaxial, b. fiber optics, c. twisted pair,

   d. shielded twisted pair."

   
   

4. Petitioner offered evidence, by way of his opinion, that the terms "fiber optic" and "conductor" are not synonymous, therefore the question is poorly-worded, and that "shielded twisted pair" should be the correct answer.

5. Petitioner also presented technical documents that distinguished between the terms "fiber optic" and "conductor."

6. The Department's expert witness in electrical contacting has 40 years' experience in electrical contracting and has been licensed in Florida since 1985. He opined that the terms "fiber optic" and "conductor" are synonymous, as used in the industry. The test is not only of reference knowledge, but also of trade knowledge. He stated that all four possible answers are "conductors." He stated that the only correct answer was b, "fiber optics."

7. The Department's expert witness, the psychometrician, testified that test questions are pre-screened by industry experts to assure that the questions are "viable, reliable, and valid" and that there is only one correct answer. Then a post- test assessment is conducted to determine the difficulty of the questions and to determine how many of the test-takers, who passed the test, got the correct answers. In this instance, question No. 55 was answered correctly by 93 percent of the individuals who passed the test and 92 percent of the 28

   test-takers.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division has jurisdiction over the parties to and subject matter of this proceeding pursuant to Sections 120.569 and 120.60 and Subsection 120.57(1), Florida Statutes (2004).

9. The profession of electrical contracting is regulated by the Department. See generally Chap. 455, Fla. Stat. (2004). Any person desiring to be licensed as an electrical contractor is required to file an application with the Department and pass the licensure exam. See §§ 489.511 and 489.513(3), Fla. Stat. (2004).

10. Petitioner has a heavy burden in this proceeding. He is required to establish by a preponderance of the evidence that the Department's grading of his examination was arbitrary or capricious. See, e.g., Harac v. Department of Professional

    Regulation, 484 So. 2d 1333, 1338 (Fla. 3rd DCA 1986). And see State ex rel. Topp v. Board of Electrical Examiners for Jacksonville Beach, 101 So. 2d 583 (Fla. 1st DCA 1958):

    Examining boards such as the one here present are generally constituted and established for the purpose of protecting the public against incompetents who seek to enter the various vocations and professions. Such boards are not vested with arbitrary hegemony over the rights of the individual, but are charged with the duty to administer their rules and regulations equally and justly as between all persons and groups who come within the bounds of their jurisdiction. So long as these boards conduct their examinations fairly and uniformly in accordance with lawful authority and their own rules and regulations, their judgment as to the proper grading of such examinations will not be disturbed by the courts, unless clearly shown to be arbitrary or devoid of logic and reason.

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    It is clear from the evidence in the instant case that the respondent Board, in the exercise of its lawful authority, determined that the realtor failed to earn a passing grade on its examination.

    Admittedly there will be questions on examinations of this type for which the amount of credit to be given various answers may differ in the minds of reasonable men.

    That such condition exists is not alone sufficient cause upon which to bottom an alleged abuse of discretion, particularly when as here the ultimate responsibility for assigning grades to such answers falls on those who have been duly elected or appointed to the board and whose function it is to issue a certificate of competency only after being satisfied as to the applicant's entitlement. Under such a circumstance the court will be extremely reluctant to substitute its judgment for that of the duly authorized board; else the board would be compelled through the judicial arm of mandamus to issue its certificates of competency not in its own discretion, but upon that of the court.

    
    

    Id. at 585-86.

    
    

11. Petitioner failed to meet his burden of proof; the evidence he offered is not persuasive considering the nature of the examination, the testimony of the industry expert, and the percentage of test-takers that chose the correct answer.

12. Petitioner failed to show that his response to question No. 55 was arbitrarily or capriciously graded. While Petitioner may have been confused by the wording of the question, there is no showing that such confusion was pervasive.

Indeed, the evidence supports the examiners' conclusions that Petitioner's answer to that question was incorrect. Therefore, Petitioner is not entitled to any additional credit for his answer to question No. 55.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Electrical Contractors Licensing Board enter a final order which denies Petitioner's application for an electrical contractor's license based upon the failing score that he received on the Limited Energy Examination of the November 2004 licensure examination.

DONE AND ENTERED this 12th day of January, 2006, in Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

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 12th day of January, 2006.

COPIES FURNISHED:

Charles Tunnicliff, Esquire Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

David Nathan Warren Post Office Box 1131

Palm City, Florida 34991

Anthony B. Spivey, Executive Director Electrical Contractors

Licensing Board Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Josefina Tamayo, 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: 05-002839

Orders for Case No: 05-002839