Findings Of Fact Stephen G. Blume, the Respondent, is a state certified Class A contractor under Chapter 489, Florida Statutes. He holds license number CA C009753, and he is the qualifying agent for BCH Mechanical, Inc. (BCH), a Florida corporation, in which Blume is the principle stockholder. BCH is a mechanical contractor and concentrates its efforts in commercial construction work, particularly in shopping center construction. BCH subcontracts from owners or general contractors for the installation of heating, ventilating, and air conditioning for individual establishments within shopping malls. Prior to February 18, 1983, the Respondent contracted with a general contractor for the Respondent to provide heating, ventilation, and air conditioning equipment to approximately 15 stores in the Aventura Mall in Dade County, Florida. The work was of a nature for which the Respondent and BCH were qualified to perform under Chapter 489, Florida Statutes. On February 18, 1983, the Respondent and his company contracted with Richard E. Hahn, doing business as Temp-Rite Air Conditioning and Refrigeration, Inc., to install air conditioning systems in spaces 128, 163, 645, and 677 at the Aventura Mall. See attachment to Respondent's Exhibit 1, and paragraph 3 of the administrative complaint. On February 23, 1983, the Respondent obtained building and mechanical permits to perform heating, ventilation, and air conditioning work on spaces 163, 645, 677, and 128 at the Aventura Mall. See Petitioner's Exhibit 1. The Respondent did not attempt to list the permits in the name of Hahn at the time of application or subsequently. Richard Hahn did not have a certificate of competency to do air conditioning construction work, and was not qualified in Dade County to obtain a permit to do that work himself. He also was not licensed by the Construction Industry Licensing Board to perform this work. The Respondent selected Hahn by the following process. When he got to the mall, he contacted Robert Shaw Controls, the company that was doing work on the concourse air conditioning systems at the mall. Employees of Robert Shaw told the Respondent of three pipe fitting companies that were then doing work at the mall. All three gave the Respondent bids, and Respondent selected Hahn's company as low bidder. There is no evidence that Blume was a friend of Hahn prior to this contract. Respondent's company specializes in installation of air conditioning systems in shops in commercial malls. Respondent's company employs 30 to 40 people. Most of this is handled by his own employees, without subcontracts. Thus, for most of his work, there is no need for a licensed subcontractor. At the Aventura Mall project, the Respondent determined that he needed to hire a subcontractor affiliated with the pipefitters union for the work on first floor shops. The Respondent did not have a bargaining agreement with the pipefitters union, and thus could not call the Dade County pipefitters' hiring hall to hire a pipefitter as a temporary employee. Instead, Respondent had to subcontract the work to a pipe fitter union member. Respondent determined that he needed pipefitter union affiliation because that union was quite strong in Dade County, and use of nonunion members might have caused labor unrest at the mall work site. It was not to the economic advantage of the Respondent to subcontract the work to Hahn. It would have been more profitable to the Respondent to have followed his usual business practice of doing the air conditioning pipe fitting work using his own nonunion pipefitter employees. The Respondent asked Hahn if he was a licensed contractor for his work, whether he was a union pipe fitter, and whether he carried worker's compensation coverage. The Respondent was told by Hahn that he had a license, that he was a journeyman union pipe fitter, and that he did carry worker's compensation coverage. Following his past practice, the Respondent asked Hahn only for proof of his worker's compensation coverage. The Respondent did nothing to attempt to verify the truth of Hahn's assertion that he was a licensed contractor. The Respondent could have verified the existence of Hahn's license by either asking Hahn to show him his license card or by telephoning the license record officer in Dade County and asking that agency to verify Hahn's license. The Respondent did not do either of these things both of which were relatively easy to do. The Respondent had memorized his own contract license number. William Lessaris was employed by the Respondent and BCH Mechanical, Inc., to provide daily supervision of the project. Lessaris was at the job site daily. Other BCH employees were also on the job site. John D. Arition is Mechanical and Building Inspector and Plans Processor for far the Building and Zoning Department of Dade County, Florida. Arition was called by Lessaris to come to the job site to perform the air conditioning inspection. Arition did not tell BCH Mechanical, Inc., when he would arrive. When Arition arrived on the job site, Hahn was there. Arition asked Hahn for his license to do the work. Hahn told Arition that he did not have a license. Arition ordered Hahn to cease work. Hanh picked up his tools and left the job site. Arition then talked with Lessaris and told him about the problem with Hahn. The work was completed satisfactorily, without defects. Subsequently, Hahn was administratively charged with violating various provisions of Dade County construction law, was found to have committed six violations, was fined a total of $2,700 and had his personal certificate of competency suspended for one year. Blume was asked to appear at the hearing, but could not due to prior scheduled work. There is no evidence that Blume was given adequate notice of the date of the hearing, and it appears that he was given only short notice of the precise date. Blume was not subpoened to appear, and was not at fault in failing to appear. Blume voluntarily supplied Dade County with all documentary evidence requested.
Recommendation In consideration of the foregoing, it is recommended that the Petitioner enter a final order finding no violations as alleged, and dismissing the administrative complaint. DONE and ORDERED this 29th day of March, 1985, in Tallahassee, Florida. WILLIAM C. SHERRILL, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 1985. COPIES FURNISHED: Mr. Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 H. Reynolds Sampson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 William Sizemore, Esquire Suite 838, Plaza On The Mall 201 East Kennedy Boulevard Tampa, Florida 33602 Salvatore Carprino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Petitioner Scott Eric Baker ("Petitioner"), took the Certified Air Conditioning Class A Contractor examination in June 1991. The examination consists of two parts, Part One on business and financial management, and Part Two on actual air conditioning system mechanics. The Petitioner informally challenged the scoring of certain questions and received additional points but his total score of 68% was below the minimum passing score of 69.01%. Part One, Question 6 of the June 1991 directs the applicant to estimate the cost of refrigeration piping and related hardware shown in a related schematic. The schematic illustrates proposed refrigerant piping between a 15 ton air-cooled condensing unit and an air handler unit. Pipe joint connections are identified by standard symbols. The question states as follows: Refer to the Refrigeration System shown in Figure 1. Estimate the cost of the Refrigeration Piping. Add 6% Florida State Sales Tax to the total cost. The multiple choice list of possible answers to the question are: Less than $500.00. (B) Between $500.00 and $600.00 (C) Between $600.01 and $700.00 (D) More than $700.00 The pipe joint segments identified by the symbols on the schematic are 90-degree elbow joints. Elbow joints can connect pipe segments which have different elevations. Elbow joints can also be connected to construct a "swing joint" which provides for pipe alignment. Swing joints do not change the elevation between the pipe segments connected at the joint. According to the schematic, the first pipe segments, (two feet two inch pipes), run from the air-cooled condensing unit to a joint. The schematic does not identify the elevation of the air-cooled condensing unit or of the first pipe segments. The second pipe segments lie at an elevation of 104 feet 4 inches and connect via a pipe joint to the third pipe segments, which lie at an elevation of 104 feet 0 inches. The third segments connect via a pipe joint to the fourth pipe segments which are at an elevation of 103 feet 8 inches. The fourth segments connect to the pipe segments leading from the air handling unit (AHU 1). The correct answer to Question 6 is (B). The total cost for piping and hardware shown on the schematic is approximately $557. There are 83.3333 lineal feet of 1 and 3/8 inch diameter pipe at $3.96 per lineal foot, totaling about $330.00. There are 75.7527 lineal feet of 7/8 inch diameter pipe at $2.35 per lineal foot, totaling about $178.02. There are fourteen 90-degree elbows, (seven 1 and 3/8 inch elbows at 1.71 each and seven 7/8 inch elbows at .79 each) totaling 17.50. The total of materials is 525.52. Inclusion of the 6% tax results in an estimated cost of $557.05. Because there was no elevation shown for the first pipe segment between the condenser unit and the pipe joint, the Petitioner assumed that the pipe joint symbol indicated an elevation change and that the condenser unit could be located substantially above or below the identified 104 feet 0 inches elevation of the second segment. Accordingly, his answer to Question 6 was "(D) More than $700.00." The Petitioner's answer is based, not on the information provided in the schematic, but on unreasonable assumptions as to the condenser unit location, and is incorrect.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Professional Regulation, Construction Industry Licensing Board, enter a Final Order dismissing Scott Eric Baker's challenge to the grading of his responses to the June 1991 examination for licensure as a Certified Air Conditioning Class A Contractor. DONE and RECOMMENDED this 29th day of April, 1992, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1992. APPENDIX TO RECOMMENDED ORDER The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 4. Rejected, unnecessary. 10-14. Rejected, recitation of testimony. Respondent The Respondent did not file a proposed recommended order. Copies furnished to: Daniel O'Brien, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32202 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Scott Eric Baker 13438 Caribbean Boulevard Fort Myers, Florida 33095 Vytas J. Urba, Esq. Assistant General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
Findings Of Fact At all times pertinent to the issues herein discussed, Respondent Wallace W. Stewart was licensed as a registered air conditioning contractor by the Florida Construction Industry Licensing Board under License No. RA 0022169. Since at least October 1979, Respondent has been qualifying agent for the contracting firm "Stewart's Solar Energy, Inc.," with the Florida Construction Industry Licensing Board. In September 1979, Fred Johnson was acting as real estate agent for his son, Don F. Johnson of Ponte Vedra, Florida, a licensed general contractor who at the time had several residences for sale in the area. During that period, Mr. Fred Johnson engaged in a discussion with the Respondent concerning the possibility of installing a solar cooling, heating and hot water system in the house that Mr. Johnson proposed to have his son, Don, build for him in St. Johns County, Florida. Pursuant to these discussions, on September 10, 1979, Respondent prepared a proposal for Mr. and Mrs. Fred Johnson for the installation of a complete cooling and heating system and solar collectors for the purpose of domestic hot water in the said residence. Before this proposal was accepted, Mr. Fred Johnson's son, Don, discussed the terms of the proposal with the Respondent. Specifically discussed was that portion of the proposal wherein Respondent proposed to include the following: Necessary piping for circulating chilled and hot water system, perimeter heat, storage tanks for hot and cold water, necessary heat exchangers, refrigeration equipment, circulating pumps, duct system, thermostats, heat exchanger (fireplace), also piping and controls for the hot water heater. Before allowing his father to sign this proposal and accept it, Don Johnson asked Respondent exactly what he proposed to provide regarding the fireplace and was told that Mr. Stewart would provide a firebox interior, which consisted of a steel box shaped like a fireplace, to protect the heat exchanger that was to go with it. At that time, Mr. Stewart took Don Johnson into his workshop and showed him an outfit which he indicated would be similar to, if not identical to, that which he intended to install in the senior Johnson's home. It was understood that Respondent would supply the firebox and heat exchanger, but the builder was to do the masonry work and the chimney. Thereafter, based upon that understanding, Don Johnson recommended to his father that he accept the proposal, which was accomplished on or about the September 10, 1979, date; and both Fred Johnson and his wife, Christine, did so, agreeing to pay, for the complete system, the sum of $5,483 in accordance with a schedule set forth in the proposal sheet. Construction was begun and progressed to the time it was appropriate to install the firebox. At that point, Respondent told Don Johnson, the builder, he was unable to provide the firebox at that time. Since the state of construction was such that a delay in providing the firebox would hold up the continuance of construction, Respondent asked Don Johnson if he, Don, could provide the standard firebox into which Respondent would put his heat exchanger and thereafter give a credit against the purchase price. In response to this suggestion, Don Johnson told Respondent the cost would be between $400 and $500, to which sum Respondent agreed. As a result, Don Johnson put in the firebox that he procured, and Respondent thereafter put in the heat exchanger unit. Construction on the house continued until such time as, in April 1980, the house was considered sufficiently complete for Mr. and Mrs. Fred Johnson to move in. In the interim, however, in order to get the duct work done for the air conditioning and heating system he installed, Respondent, who was not licensed to perform heating and air conditioning installation in St. Johns County, Florida, arranged with Mr. Everett Masters, owner of Masters Heating and Air Service of St. Augustine, Florida, to do the duct work for the Johnson home. A building mechanical permit is not required to do duct work, and Mr. Masters did the duct work without a permit, even though he was not satisfied that the installation called for in the drawings was sufficient to accomplish the purpose of heating and cooling for a house that size. According to Mr. Masters, he did the work according to the specifications given to him, but protested to a representative of Mr. Stewart, Respondent, that the ducts were too small. In response, he was told to put the ducts in as called for in the specifications, which he did, but was never paid for the work he provided. St. Johns County Ordinance No. 76-20, an ordinance regulating contractors and the business of contracting within that county, at Section 4 thereof requires that air conditioning contractors be certified in order to conduct that business within the county. The contract involved here for the construction of Mr. Johnson's house would have required the contractor, Respondent, to have a local license to complete the air conditioning work. Respondent does not have a license in St. Johns County and never has had one. As a matter of fact, before the work was done, Mr. Don Germain, an assistant building official for St. Johns County, told Respondent in 4Z. Germain's office that he, Respondent, would need a county license at the time Respondent had come to the office prior to installing the air conditioning unit in the Johnson house. At this point, Mr. Germain discussed the project, including the rough drawing Respondent had with him, and advised Respondent at that time what permits and what licensing provisions must be fulfilled. At that time, solar heating and hot water systems did not require the license. However, the other work called for in this contract, such as the installation of the air conditioning system, would require a type of license which Respondent did not have. Germain and the Respondent had an extensive discussion on this. As it appeared to Mr. Germain, Respondent could not seem to understand why a license would be needed. A mechanical permit was issued on April 23, 1950, to Masters Heating and Air for a part of the system. A part did not include the entire installation permit. This permit applied for by Mr. Masters was acquired at the request of Don Johnson, the contractor, who pleaded with him to do so because, according to Mr. Johnson, the only way he could get final approval of the construction in order to get the elec- tricity turned on in the house was if this permit was applied for and issued. The permit in question was issued for something other than the duct work accomplished by Mr. Masters. Mr. Masters did not install the air conditioning equipment, only the ducting. The permit, if legitimate, would allow final approval of the installation of the entire air conditioning system. The information contained on the permit was provided to Mr. Masters by Respondent. According to Mr. Germain, Respondent never did get final approval of the building inspector on the total installation. The equipment was not initially accepted by the building department, since it was not a unitary unit-- in which all segments are designed to work together as a unit. However, even though the unit was rejected by the building authorities, they let the work continue based on a letter from the engineer who approved the purchase of the system, which indicated the engineer would be responsible for the working of the unit. In addition, the building officials allowed the work on Mr. Johnson's home to continue even after the discussions regarding the lack of a proper licensee because Respondent assured Mr. Germain of the building office that Mr. Masters, who was in fact a registered and licensed air conditioning contractor in St. Johns County, was going to do the work. Though the unit was basically installed in April 1980, it was not working property even up to July 3, 1980 It did not cool properly. At that point, Respondent contends he was still owed some money by Mr. Johnson. In November 1980, when it became obvious that the initially installed compressor was insufficient in size to cool a house the size of Mr. Johnson's, Respondent replaced the compressor, installing one a half ton larger than that initially installed. At that point, Don Johnson paid Respondent the sum of $800, which, according to Mr. Johnson, was the entire sum owed on the complete installation after deduction of the credit of $483 for the firebox which Mr. Johnson fabricated in lieu of that initially proposed by Respondent and which Respondent could not provide. After Respondent was paid the $800, he stopped responding to calls to service the cooling system and the heating system, even though neither worked properly at that time. Respondent admits that at some point in time he refused to continue servicing Mr. Johnson's unit and did not honor the warranty. He contends, however, that he stopped servicing because Mr. Johnson still owed him $453. The weight of the evidence indicates otherwise. Mr. Johnson ultimately hired another craftsman to repair his system, and the system was repaired without any further assistance by Respondent.
Recommendation That Respondent pay a fine of $1,000, and that Respondent's license be placed on probation for a period of two years.
The Issue Whether Petitioner's bid was properly rejected as being nonresponsive.
The Issue Whether Respondent, a certified air conditioning contractor, committed the offenses alleged in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact At all times material to this proceeding, Respondent has been a certified air conditioning contractor, having been issued license number 1133613 on December 27, 1985. Petitioner's licensure file reflects that Respondent's license is held as follows: "Michael J. Morrow d/b/a ATM A/C & Refrigeration, Inc." (ATM). Respondent has never applied for a certificate of authority for ATM pursuant to the provisions of Section 489.119, Florida Statutes. On December 12, 1998, Carmen Schneider contracted with Sun Coast to install an air conditioning and heating unit at her residence located in Miramar, Florida. At no time has Sun Coast been a licensed air conditioning contractor. Respondent had no agreement to do any work for Ms. Schneider, and he had no agreement to subcontract the work for Sun Coast. The City of Miramar issued permit 98121104 for the Schneider job. According to its computer records, Respondent, d/b/a ATM pulled the permit for the Schneider job. The greater weight of the credible evidence established that neither Respondent nor his corporation pulled the permit for the Schneider job1 as alleged in Count II of the Administrative Complaint. Petitioner failed to establish that Respondent enabled Sun Coast to engage in uncertified or unregistered contracting in violation of Section 489.129(1)(d), Florida Statutes, as alleged in Count III. Petitioner presented an affidavit establishing that its costs of investigation of Respondent (absent attorney time) totaled $705.03. That affidavit does not state the cost of investigation for each count. On February 2, 1998, Petitioner entered a Final Order in Case Number 98-12100 that disciplined Respondent's license because he assisted an unlicensed person or entity engage in the uncertified and unregistered practice of contracting and because he proceeded on a job without a permit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the Findings of Fact and Conclusions of Law contained in the Recommended Order. It is further recommended that for the violation found for Count I, Respondent be assessed an administrative fine in the amount of $500.00 and that his license be suspended until such times he pays the administrative fine and complies with the requirements of Section 489.119, Florida Statutes. It is further recommended that Counts II and III of the Administrative Complaint be dismissed. DONE AND ENTERED this 17th day of June, 2002, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 17th day of June, 2002.
The Issue The issue presented for decision herein is whether or not Respondent violated local law by engaging in the installation of a range hood without timely obtaining a permit; improperly supervised the project and exceeded the scope of work that he is licensed, in violation of subsections 489.129(1)(d)(m), and (j) 489.115; 489.117(2) and 489.119 and 489.105(4), Florida Statutes.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings: Petitioner, Department of Professional Regulation, Construction Industry Licensing Board, was, at all times material hereto, the state agency charged with regulating the construction industry in Florida. Respondent was, at all times material hereto, a certified air conditioning contractor, License Number CA-C018243, in Fort Lauderdale, Florida, and was the qualifying agent for Kitchen Ventilation Specialists (KVS or Respondent). Roberto Villanueva is the owner and president of R.V. Air Conditioning Incorporated (RV). RV had a permit to perform air conditioning work at the Cardoza Hotel in Miami Beach, Florida. During May, 1987, KVS obtained a contract to install a six foot stainless steel hood in the kitchen of the Cardoza. The job was scheduled for June 4, 1987. Respondent dispatched too employees to the Cardoza at 6:30 a.m. on June 4, 1987 to hang the hood per "Falios plans." Villanueva observed KVS' employees installing the rang- hood at the Cardoza and notified chief inspector Ed Stein that he had the permit for the air conditioning work at the Cardoza Hotel, that the employees of KVS were not working under his permit, and that they were installing the hood without a permit. Ed Stein approached the KVS employees and determined that they did not have a permit and did not hold a certificate of competency to make the installation. He issued a stop-work order and a notice of violation to KVS once he determined that they were employees of that entity. Stein asked the employees to gather their tools and leave the job site. The employees left the site at that time. He returned the following day and noticed that the hood had been completely installed in contravention of the stop-work order. R.V. Air Conditioning ran the ductwork and connected the ventilation system to the hood installed by EVS. While Respondent denied that his employees completed the installation of the hood in contravention of the work-order, such testimony is not credible in view of the fact that R.V.'s employees had no incentive to complete the installation for the hood when it was Villanueva who called the building department to advise that work was being done on the job-site which they had obtained a permit for and that KVS employees failed to obtain a permit. It is common knowledge, within the construction industry, that attaching the hood in the manner in which KVS employees did so was, in effect, installing a hood and not just "hanging" a hood. Respondent, on the other hand, contended that setting this hood on the Cardoza job-site was not installing a hood because he did not run the ductwork to the hood. However, on cross-examination, Respondent conceded that there was no difference between hanging or installing the hood. Respondent's contention that he was under the impression that he was working under the permit obtained by the general contractor, R.V. Air Conditioning, is unpersuasive and is not credited herein. This is especially so in view of the fact that when the stop-work order was issued to his employees, he phoned Ed Stein and explained that his employees were only delivering and setting the hood and that a permit was not required. Stein thereupon replied that he had to either obtain a permit or get a writing from the general contractor, R.V. Air Conditioning, explaining that he was working under that contract. Respondent failed to obtain such a writing and did not obtain a permit until July 7, 1987, at which time he completed an application for a permit to "hang" the hood. Respondent paid an administrative fine and a fee amounting to twice the usual amount for the permit. (Petitioner's Exhibit 1).
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Respondent's certified air conditioning contractor's license be placed on probation for a period of twelve (12) months. Petitioner imposed an administrative fine against Respondent in the amount of one thousand dollars ($1,000.00) payable to Petitioner within 30 days of the filing of its Final Order. DONE and ORDERED this 31st day of October, 1988, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1988.
Findings Of Fact The Petitioner, John L. Horn, applied for and took the February 22, 1980, examination for a Class B air conditioning contractor's license, having been qualified, and meeting all preliminary requirements to sit for this examination. Mr. Horn answered Question 6 of the exam by selecting multiple choice Answer E. Question 6 of the February 22, 1981, examination was as follows: The contractor for the classroom and office building shown on Drawing AC-3 is required to accurately measure the air flow from each of the air handling units. Which of the following methods should be used? A magnehelic gauge with the high pressure port connected to the supply duct and the low pressure port connected to the return duct. An inclined draft gauge with a pitot tube traverse at several points in the supply duct to determine the mean velocity. An inclined draft gauge with a pitot tube traverse in the centerline of the supply duct to determine the actual velocity. A rotating vane anemometer located in the supply duct air stream. A velometer located at each sidewall outlet. All answers except Answer B were graded as incorrect, including the answer submitted by Mr. Horn. The February, 1980, Class B air conditioning contractor's examination was developed by American Community Testing Services, located in Jacksonville, pursuant to a contract with the Department of Professional Regulation. Question 6 was prepared by Mr. Larry Simmons for the testing service. This question seeks multiple Choice Answer B as the correct answer. Each examination question is written by an expert in the field, and is then checked by another expert for accuracy. The questions are then reviewed by a consultant to the testing service who is a professor of mechanical engineering. These internal review procedures are utilized to minimize the existence of errors. Prior to the time an examination question is used, it is subjected to Departmental review to assure that any grammatical errors are corrected. Subsequent to the examination, Question 6 and the various answers given by examinees were analyzed. Based upon testing criteria, Answers C and D in Question 6 were judged to possibly be correct, in addition to Answer B. Based on this same testing criteria, however, Answers A and E were not possibly correct. A discrimination index disclosed that Question 6 was a difficult question. Nevertheless, every examinee is qualified by experience to sit for the examination, which is designed for competition among peers. The post-examination review procedures used by the Department are for the purpose of assuring that there is not another correct answer. This review is performed by the writer of the question and an expert in the field being reviewed. The preferred method for measuring air flow is to use a pitot tube traverse, as suggested by Answer B. Other methods are available alternatives, but are not given as choices in the answers to Question 6. Answer A is incorrect because it measures static pressure and not air flow. Answer D is not correct because of the large hole that would have to be cut in the duct in order to insert the instrument, and after sealing the duct no reading could be taken. Answer E is also incorrect because it would allow air to flow into the room. Answer C could be correct in a small duct, but not in the duct shown on the drawing accompanying Question 6. The question seeks the best answer among the five choices; Answer B is the only acceptable choice and the correct answer. Twelve of the 14 persons who scored in the upper 27 percent on the examination answered Question 6 correctly, by choosing Answer B. Only 7 of the 19 persons who scored in the lower 27 percent on the examination answered this question correctly. This difference produced a discrimination index of .47 percent, which is within professional testing standards as an accurate measure of the validity of the question. This evidence was not controverted. Thus, based upon generally accepted testing criteria, the discrimination index shows Question 6 to be a valid question, and Answer B to be the correct answer. Mr. Horn's contentions are not supported by the weight of the evidence presented. The burden of proof is upon an applicant for a license to demonstrate that he meets all standards for eligibility. Mr. Horn did not present sufficient evidence to meet this burden of proof, and the Board established by substantial, competent evidence the validity of Question 6 and the correctness of Answer B.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of John L. Horn for a license as a state certified Class B Air Conditioning Contractor be denied. THIS RECOMMENDED ORDER entered on this 15th day of April, 1981. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of April, 1981. COPIES FURNISHED: John L. Horn 114 Willow Branch Avenue Jacksonville, Florida 32205 Charles F. Tunnicliff, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Patricia R. Gleason, Esquire Assistant Attorney General The Capitol Tallahassee, Florida 32301
