Findings Of Fact In June 1995, Kenneth Gauthreaux (Petitioner) took the Pre-Design part of the Architecture Examination (Examination). A minimum grade of 75 is required to pass the Examination. The Department of Business and Professional Regulation, Board of Architecture (Respondent) notified Petitioner that he had failed the Examination having received a grade of 73. The Examination is a national examination and is graded by national examiners. Respondent issues licenses to practice architecture in the State of Florida and administers the Examination on behalf of the State. Petitioner challenges, as invalid, the answers selected by the national examiners to questions 9, 16, 73, and 122 of the Examination, which are A, C, A, and D, respectively. Petitioner selected answers B, A, B, and C to the questions, respectively. At hearing, Petitioner withdrew his challenge to question 73, answer A. As the Examination is a national examination, in answering the questions, what is generally occurring nationally, as opposed to locally, is controlling. For example, local codes are not applicable. The correct answers to questions 9, 16, and 122 are the answers identified by Respondent as the answers by the national examiners, i. e., A, C, and D, respectively. The answers selected by Petitioner are not correct. The challenged questions and answers are supported by reference materials which are approved and generally accepted in the national architecture community. The scope of knowledge required for the challenged questions and answers is not beyond the knowledge reasonably expected from a candidate for licensure. The challenged questions contain sufficient information for a candidate for licensure to select the correct answer. The challenged questions are clear and unambiguous. The challenged questions are not arbitrary or capricious. The challenged questions are not devoid of logic or reason. The challenged questions are valid. Statistics indicate that 77 percent of the candidates for licensure (candidates), who took the Examination, answered question 9 correctly; 64 percent of the candidates answered question 16 correctly; and 54 percent of the candidates answered question 122 correctly.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Board of Architecture enter a final order dismissing Kenneth Gauthreaux's examination challenge and denying him licensure. DONE AND ENTERED this 26th day of July, 1996, in Tallahassee, Leon County, Florida. ERROL H. POWELL, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 1996. APPENDIX The following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact Introductory Paragraphs Paragraph 1. Rejected as being argument, or conclusions of law. Paragraph 2. Rejected as being not supported by the evidence presented. Question No. 122 Paragraph 1. Rejected as being unnecessary, argument, or conclusions of law. Paragraph 2. Rejected as being not supported by the evidence presented, argument, or conclusions of law. (The "Additional Evidence" is not admitted into evidence. See, the Preliminary Statement.) Paragraph 3. Rejected as being subordinate. Paragraph 4. Rejected as being subordinate, argument, or conclusions of law. Paragraph 5. Rejected as being subordinate. Paragraph 6. Rejected as being subordinate, or unnecessary. Paragraph 7. Rejected as being argument, or a conclusion of law. Question No. 16 Paragraph 1. Rejected as being not supported by the evidence presented, argument, or conclusion of law. Paragraph 2. Rejected as being not supported by the evidence presented, argument, or a conclusion of law. Paragraph 3. Rejected as being subordinate, not supported by the evidence presented, argument, or conclusions of law. Paragraph 4. Rejected as being argument, or conclusions of law. Question No. 9 Paragraph 1. Rejected as being argument, or conclusions of law. Paragraph 2. Rejected as being subordinate, unnecessary, or argument. Paragraph 3. Rejected as being argument, or conclusions of law. Paragraph 4. Rejected as being argument, or conclusions of law. Paragraph 5. Rejected as being argument, or conclusions of law. Paragraph 6. Rejected as being subordinate, or unnecessary. Paragraphs 7, 8, and 9 are not considered part of Petitioner's proposed findings of fact, but part of his proposed conclusions of law. If Petitioner intended the said Paragraphs to be part of his proposed findings of fact, they are rejected as being argument, or conclusions of law. Respondent's Proposed Findings of Fact 1. Partially accepted in finding of fact 1. 2. Partially accepted in finding of fact 2. 3. Partially accepted in finding of fact 2. 4. Partially accepted in finding of fact 2. 5. See Preliminary Statement. 6. See Preliminary Statement. 7. Partially accepted in finding of fact 4. 8. Partially accepted in finding of fact 4. 9. Partially accepted in finding of fact 7. 10. Partially accepted in finding of fact 11. 11. Partially accepted in finding of fact 10. 12. Partially accepted in finding of fact 8. 13. Partially accepted in finding of fact 9. 14. Partially accepted in finding of fact 13. 15. Partially accepted in finding of fact 6. 16. Partially accepted in finding of fact 15. 17. Partially accepted in finding of fact 15. 18. Partially accepted in finding of fact 15. 19. Rejected as being subordinate. NOTE--Where a proposed finding has been partially accepted, the remainder has been rejected as being subordinate, irrelevant, unnecessary, cumulative, not supported by the greater weight of the evidence, not supported by the evidence presented, argument, or a conclusion of law. COPIES FURNISHED: Mr. Kenneth Gauthreaux 15151 SW 128th Avenue Miami, Florida 33186 R. Beth Atchison Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angel Gonzalez, Executive Director Board of Architecture and Interior Design Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Respondent presented evidence from Petitioner's application which showed registration in Illinois on February 19, 1980. According to this application, she is not registered in any other state and does not hold an academic degree in architecture.
Recommendation From the foregoing, it is RECOMMENDED: That the petition be DISMISSED. DONE and ENTERED this 28th day of July, 1982 in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 FILED with the Clerk of the Division of Administrative Hearings this 28th day of July, 1982. COPIES FURNISHED: Frederick R. Brock, Esquire GARTNER AND PHILLIPS Suite 600 1325 San Marco Boulevard Jacksonville, Florida 32207 Arthur C. Walberg, Esquire Office of the Attorney General The Capitol Tallahassee, Florida 32301 Herbert Coons, Jr. Executive Director Board of Architecture Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Samuel R. Shorstein Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Petitioner should be granted additional credit for one or more examination questions answered by him during the June 1990 Certified Building Contractor Examination.
Findings Of Fact Petitioner sat for the June 1990 certified building contractor examination. On Part II, he received a score of 68.0. A minimum passing score is 69.01. On Part III, he received a score of 71.00. Minimum passing score is 69.01. Petitioner had previously passed Part I of the exam. Petitioner initially challenged question numbers 6, 13 and 14. Upon completion of the testimony, Petitioner withdrew his challenges to question numbers 13 and 14. The National Assessment Institute prepares licensure examinations for building contractors in the State of Florida under authority of the Office of Examination Services, Department of Professional Regulation. The Institute prepared question number 6 for the certified building contractor examination administered on June 26 and 27, 1990. Question number 6 tested the candidate's ability to calculate the time necessary for a crew to excavate, form and pour concrete for a reinforced concrete curb and gutter in a parking area and have it inspected. The candidate was asked to select the earliest date that concrete can be scheduled to be poured. Four dates were given: (A) June 11, (B) June 13, (C) June 15, and (D) June 18, 1990. The Institute determined that the only correct answer was: (D) June 18, 1990. The Petitioner selected: (C) June 15, 1990. Part of the instructions to the examination candidates stated: "The inspection request will NOT be called in the day the work is completed." The evidence was undisputed that preliminary calculations indicate with regard to question 6 the mathematical approach to the solution demonstrates that the work will take nine days (rounded up), starting June 1 and completed on June 13, and, therefore, the inspection is to be called in on Thursday, June 14, 1990. The third paragraph of the question states: Inspections have been taking one day from the time the inspection is called in until the time the inspection is completed. Inspections can NOT be called in or performed on Saturdays or Sundays." The first sentence of the fourth paragraph states: "The concrete is to be placed the day after the inspection is completed." (Emphasis supplied) The Department's position is that the plain language of the question indicates that it would take one day or 24 hours from the date the request for inspection was called in (June 14) until the inspection was completed which would be June 15. Since the instructions were clear that the concrete cannot be poured on the same day the inspection is completed or on Saturdays or Sundays, then the earliest date that the concrete can be scheduled is Monday, June 18, 1990, or answer (D). The Petitioner argues that it is not uncommon in the construction industry to "call in" an inspection in the morning and have it completed on the same date (in one day). Therefore, since it is undisputed that the inspection is to be "called in" on Thursday, June 14, that it was reasonable and logical for him to conclude that the inspection would also be completed the same date. Since the question instructed that the concrete is to be placed the day after the inspection is completed, he selected answer (C), June 15, 1990 (a Friday) as the correct answer. The Department does not dispute that it is common practice in the construction industry for an inspection to be called for and completed in one day. The Department's determination that answer (D) was the only appropriate answer was arbitrary and unreasonable.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner be awarded four points for his answer to question number 6 of Part II of the Certified Building Contractor examination for June, 1990. Petitioner be awarded a passing grade for Parts II and III of the examination. DONE AND ENTERED this 28th day of March, 1991, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 1991. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: paragraphs 1,2,3,4,5,6,7,10 Rejected as argument: paragraphs 8,9 Respondent's proposed findings of fact. Accepted in substance: paragraphs 1,2,3(included in Preliminary Statement), 4(in part),5. Rejected: paragraph 4(in part, as against the greater weight of the evidence and argument), 5 and 6(challenge withdrawn) Copies furnished: George Solar 1302 West Adalee Street Tampa, Florida Vytas J. Urba, Esquire Senior Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Daniel O'Brien, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Jack McRay, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Petitioner's application for licensure in the category of mechanical plans examiner should be approved.
Findings Of Fact Based upon the testimony and evidence received at the formal hearing, the following findings of fact are made: Petitioner has been employed as a plans examiner for the City of Melbourne (City) since 1988. Petitioner has been a certified building plans examiner since 1994. She also holds certification as a standard and limited building inspector. Sometime in October 2003, Petitioner was informed that her limited plans examiner license, No. LP 369, had been permitted to expire on November 30, 1997, for failure to pay her renewal fee. The building official in her department at the City advised her that the renewal for the license had not been paid since 1996. It has been the practice of her department to automatically renew each of her licenses with the appropriate board, each year, as it came due, as a service to its employees. Why this one license, among several, was not renewed is unknown. After notification of the expiration of her limited plans examiner license, Petitioner immediately discontinued the review of electrical, mechanical, and plumbing plans and contacted the Department of Business and Professional Regulation (DBPR), reported the oversight, and requested directions on how to reinstate the limited plans examiner license, No. LP 369. No response was forthcoming; however, on October 27, 2003, DBPR issued an unsigned Notice and Order directed to Petitioner to cease and desist practicing as a limited plans examiner. Petitioner immediately complied and sought reinstatement. No formal disciplinary action was taken; however, reinstatement was denied on the grounds that her license had become null and void on November 30, 1997, pursuant to the self-executing language contained in Section 455.271, Florida Statutes. On January 3, 2005, Petitioner submitted an application to DBPR as a mechanical plans examiner. By Notice of Intent to Deny, dated July 18, 2005, DBPR notified Petitioner that it intended to deny Petitioner's application for licensure as a mechanical plans examiner. Citing Sections 468.607, 468.609, and 468.621, Florida Statutes, Respondent alleged that Petitioner did not have five years of combined experience in the field of construction, or a related field, or plans review corresponding to building plan review; that Petitioner did not provide an affidavit for each separate period of work experience from an architect, engineer, contractor, or building code administrator who has knowledge of Petitioner's duties and responsibilities; that Petitioner was employed by a local government authority without being properly licensed; and that she performed unlicensed activities in violation of the provisions of Chapter 468, Florida Statutes. Petitioner has shown that she satisfied the following requirements for licensure as a mechanical plans examiner. The evidence shows that: Petitioner is more than 18 years of age and is of good moral character; Petitioner has more than five years of combined experience in the field of construction and plans review; and Petitioner's application provided an affidavit for each separate period of work experience from a building code administrator who has knowledge of Petitioner's duties and responsibilities. Petitioner has more than adequate time in plans review, she did submit an affidavit of work experience signed by her building code administrator, and the administrator has a thorough knowledge of her duties. Building Official Alan Beyer, BU 383, certified to her years of plans review. Petitioner has been reviewing plans for the City since 1988. In 1994, based on her prior experience, Petitioner received a license as a limited plans examiner. Said license was allowed to expire through non-renewal and became void on November 30, 1997. Petitioner continued to perform her job until she was notified in October 2003 that her license had expired. Petitioner immediately discontinued the review of electrical, mechanical, and plumbing plans. Nevertheless, Petitioner performed activities during the period of 1997 through 2003, for which she was not licensed. However, the evidence is clear that Petitioner did not knowingly do so. Respondent has been previously licensed by Petitioner as a limited building inspector, a standard building inspector, and a standard building plans examiner. Each of these licenses has been maintained and is current, including the standard building plans examiner license, No. PX 838. Petitioner has no history of discipline in any of these areas, since 1993, the year the state first began to regulate this occupation. Petitioner has kept current the continuing educational requirements for each category for which she holds a license, including that of limited plans examiner. The subcategory of plumbing plans examiner was recently added to the standard building plans examiner license already held by Respondent. This subcategory required the same work experience (five-year combined experience) and affidavits signed by a building code administrator. The Board approved this addition to Petitioner's license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order granting Petitioner's request to complete the requirements for future standard licensing as a mechanical plans examiner. DONE AND ENTERED this 7th day of December, 2006, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 7th day of December, 2006.
