Findings Of Fact The Petitioner, James Ilardi, was an unsuccessful candidate for the June, 1989 General Contractor's Construction Examination in the State of Florida. He is an experienced contractor and is licensed in the State of South Carolina. He is the past President of the Charleston Contractor's Association in South Carolina. He has experience with most types of building construction, including office buildings, military facilities, hospitals, factories and other large projects. He served as Chief Executive Officer for a design and construction firm for a period of ten years. The Respondent is an agency of the State of Florida charged with administering the certified general contractor's examination and with regulating the licensure and practice of construction contractors in the State of Florida. The Petitioner sat for the certified general contractor's examination in June, 1989. He has challenged the scoring of his answers to questions 2, 11, 12, 17, 19 and 33 on that examination. During the course of the hearing, he abandoned his challenges to questions 2, 17, 19 and 33. If he were accorded correct answers to either of the remaining challenged questions, numbers 11 or 12, he would have a sufficient score to obtain a passing grade of 70 on that examination. Both questions 11 and 12 used a "critical path network diagram" for use in working out the correct answer to the questions. The Petitioner criticized the diagram as being obscure, difficult to read and containing error. He maintained that it was not supported by the representations found in the reference materials recommended by the Respondent, in its "Instructions to Candidates", as being the material to use to arrive at answers to the questions. The Petitioner contends that the size of the diagram, "the multiple fonts, the difference in the intensity of the print, and the use of symbols all contribute to the obscurity and illegibility of the diagram, itself". In particular, he complains that the symbol listing includes a symbol which he did not find on the diagram. That is, the symbol for "structural steel" and "steel bar joists, which is two straight vertical parallel lines. He also complains that general practice in the construction industry, in his experience, and as indicated in the reference work "Construction Contracting", pages 325-326, one of the references listed for candidates to use in answering these questions, recommends against the use of symbols in lieu of abbreviated notations for description of activities on such a diagram. The main complaint he had concerning the use of symbols, however, was the fact that use of symbols, and having to constantly defer to the symbol legend on the exam materials, was time-consuming and was not generally accepted industry practice or procedure. He contends that the diagram contains error or is obscure and does not conform to the Respondent's recommended reference materials nor to industry standards and. is deficient in format, design and reproductive quality. Thus, he maintains that questions 11 and 12 do not adequately test the knowledge or skills necessary for licensure as a general contractor. The Petitioner acknowledged that the questions at issue had been reviewed twice by the Respondent's examination content specialist and that an "item analysis and review process" by the Respondent's expert resulted in the Respondent maintaining its position that the two questions and supporting materials were valid in fairly testing the knowledge of general contractor licensure candidates. In summary, the Petitioner contends that as to question 11, the symbol for steel bar joists, the two parallel vertical lines, does not appear on the diagram; therefore, he was unable to determine whether his answer was correct or not. As to question number 12, he maintains, in essence, that the use of symbols instead of brief abbreviated descriptions of the activities involved, accompanying the arrows in the diagram which indicate the critical path for the activity in question (paint work), render answering the question confusing and time consuming in having to constantly refer to the symbol legend and look for the symbols. He states that, in his 20 years of construction industry experience, he has not had to use symbols in working with a critical path diagram. The Petitioner did not demonstrate, however, that the use of symbols was incorrect procedure as delineated in the reference materials supplied to the candidates and which they were instructed to use in answering the questions on the examination. The Respondent produced the testimony of Mr. Olson, a Florida certified general contractor, who is also employed with the National Assessment Institute which developed this examination. Mr. Olson, however, did not, himself, have a hand in developing the examination. Mr. Olson did, however, review the Petitioner's challenges to the questions at issue and his responses, reviewed questions 11 and 12, as well as the Respondent's asserted correct answers to those questions and the methodology used in reaching those answers. Mr. Olson established that this was an "open-book" examination and the candidates were informed of and supplied all necessary reference materials to answer these two questions. The only optional consideration was that candidates could have used a calculator to speed up their calculations and were informed that it was permissible to use a calculator. Question 11 required candidates to calculate the total time necessary to install structural steel and steel bar joists in interpreting the activity network represented by the diagram in question. They were asked to calculate whether the installation was ahead of schedule or behind schedule and by how much. Mr. Olson established that the correct response was "C", which is two days behind schedule. Mr. Olson demonstrated that it was quite possible for a candidate to make this calculation and track this in formation on the diagram provided the candidates, through reading the path with the symbols, which alphabetically represent the activity, and which are numerical in representing the time in days. He established that this is very typical of the construction industry, related to the preparation, reading and interpreting of blueprints. A tremendous amount of symbols and legends are typically used in preparing and interpreting blueprints. Mr. Olson established that the pertinent number, 85 days, could be calculated for installation of structural steel and steel bar joists, based upon the information supplied to the candidates. By using the diagram and the information supplied with the question, the candidate can calculate that the actual number of days that were taken for the job was 87 days and therefore, that the project, at that point, was two days behind schedule. Mr. Olson performed this calculation by using the actual diagram the Petitioner used and reference information the Petitioner was given to use in answering the actual examination question at issue. He also established that the two parallel lines representing steel bar joists and structural steel on the diagram, and in the symbol legend supplied with the diagram, were indicated on the diagram supplied to Mr. Ilardi at the examination. Mr. Olson also established that the reference quoted for question number 11 was walkers Building Estimator's Reference Book, which, indeed, listed the type of activity network depicted in the diagram used by candidates for question number 11 and 12. Mr. Olson also established that question number 12 requires a candidate to work through an activity network diagram to find the amount of days necessary from the beginning of a project to the time the painting activity begins. He established that the answer could be obtained without the use of any other reference materials other than the information depicted on the diagram, itself, associated with the question. He established that the only correct answer from that information on the diagram could be "D" or 153 days. The Petitioner did not establish that his answer to question number 12, nor to question number 11 for that matter, was a correct answer and did not establish that there was any misleading quality or ambiguity in the wording of the questions and the associated information which would mislead a candidate into calculating the wrong answers or that there was erroneous information depicted in the reference materials or the diagram which would result in the candidate being misled into giving a wrong answer to questions 11 and 12.. Mr. Ilardi challenged the examination as to the testing environment, as that relates to the ambient light level in the examination room and to the acoustic qualities of the room. He also asserted that the test was not standardized throughout the State and was biased due to age, because of the perceived hearing and vision difficulties which he believed were caused by the acoustics in the examination room and the light available. Other than stating his opinions in this regard, he produced no testimony or evidence concerning these alleged qualities of the testing environment. It was demonstrated by she Respondent that, indeed, the test is standardized throughout the State and is the one given to all candidates in Florida, regardless of the test location.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is therefore RECOMMENDED that a Final Order be entered denying Petitioner's request to receive a passing grade on the certified general contractor's licensure examination. DONE and ENTERED this 4th day of May, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 4th day of May, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-3784 Petitioner's Proposed Findings of Fact Rejected. The Petitioner was not qualified as an expert witness. Other than that, this finding is accepted. Rejected, as not in accord with the preponderant weight of the evidence. Rejected, as not supported by the preponderant weight of the evidence. 4.A.-4.C. Accepted. 4.D. Rejected, as not in accordance with the preponderant weight of the evidence. Accepted, but not itself materially dispositive. Rejected, as not in accordance with the preponderant weight of the evidence. Rejected, as not in accordance with the preponderant weight of the evidence. Rejected, as not in accordance with the preponderant weight of the evidence and as subordinate to the Hearing Officer's Findings of Fact on this subject matter. Rejected, as not constituting a finding of fact, but rather a quotation from the transcript of the proceedings. Rejected, as not in accordance with the preponderant weight of the evidence and as subordinate to the Hearing Officer's Findings of Fact on this subject matter. Rejected, as immaterial and not probative of the issues of whether the questions were ambiguous or misleading or whether the Petitioner's answers were correct. Rejected, as not in accordance with the preponderant weight of the evidence. Rejected, as not in accordance with the preponderant weight of the evidence. Rejected, as not in accordance with the preponderant weight of the evidence, and as not materially dispositive. 4.1. Rejected, as not materially dispositive. Rejected, as immaterial. Rejected, as immaterial. Accepted, but not a matter of factual dispute and immaterial. Respondent's Findings of Fact 1-10. Accepted. COPIES FURNISHED: Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board P.O. Box 2 Jacksonville, FL 32202 Kenneth D. Easley, Esq. General Counsel Department of Professional Regulation 1940 N. Monroe Street, Ste. 60 Tallahassee, FL 32399-0792 E. Harper Field, Esq. Deputy General Counsel Department of Professional Regulation 1940 N. Monroe Street, Ste. 60 Tallahassee, FL 32399-0792 Mr. James Ilardi P.O. Box 8095 Jacksonville, FL 32239
The Issue Whether Petitioner is entitled to credit for his answers to questions 41 and 48 on the February 2000 Construction, Building Contractor (Contract Administration) examination.
Findings Of Fact Upon consideration of oral and documentary evidence received at the hearing, the following relevant findings of fact are made: The examination for licensure of a general contractor in the State of Florida is administered by the Department of Business and Professional Regulation, Division of Technology, Licensure and Testing. Chapter 455.217, Florida Statutes. A written examination is authorized by Rule 61G4-16.001, Florida Administrative Code. Respondent contracts with Professional Testing, Incorporated, 1200 East Hillcrest Street, Orlando, Florida, which develops tests for the Florida Construction Industry Licensing Board. This practice is approved by Section 455.217, Florida Statutes. Professional Testing, Incorporated, ensures that questions and answers are not ambiguous through a number of methodologies. Petitioner has been an "original" candidate for the construction, building contractor examination twice. The examination has three sections: business finance, project management, and contract administration. A candidate may retake any section three times before the entire examination has to be retaken. One of the questions Petitioner is challenging is the same question he had on the June 1999 examination, that is, the "S mortar" question. This question was repeated on the August 1999 and the February 2000 examination. The copies of the "S mortar" question and answers on the August 1999 and February 2000 examinations which were accepted into evidence were identical. Petitioner maintains that the August 1999 examination question and answers accepted into evidence is not the same as the one he had on his examination. Petitioner agrees that the answer he gave, 20.74, was an incorrect answer and that 46.67 (the "graded correct" answer) was correct. Petitioner maintains that the 20.74 answer he gave on the February 2000 examination was a result of having been advised that 46.67 was an incorrect answer on the August 1999 test. Petitioner examined his original answer sheet form both examinations (August 1999 and February 2000) at the hearing. Petitioner's original answer for the August 1999 examination showed his answer to be "B", an incorrect answer, not the "graded correct" answer "C" (which was 46.67). The second challenged question is question 48 which deals with a "critical activity list" also called a "critical activity interval" or "critical path." Petitioner's answer is 106 days; the "graded correct" answer is 86 days. Question 48 asked the test taker to identify "the latest day work must begin on the roofing activity." One-hundred and six is the number of days the roof must be completed by (not when work must begin). Since this roofing activity takes 21 days it must begin on the 86th day to be complete on the 106th day. The psychometrician expert witness testified that both questions (and answers) were within acceptable statistical ranges as valid. That opinion is accepted.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Bureau of Testing, enter a final order denying Petitioner's challenge to questions 41 and 48. DONE AND ORDERED this 30th day of January, 2001, in Tallahassee, Leon County, Florida. 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 30th day of January, 2001. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jermado Emmanuel Turner 6511 John Aldan Way Orlando, Florida 32818 Cathleen O'Dowd, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Respondent is the state agency charged with the duty of regulating general contractors in the State of Florida. An applicant for certification as a general contractor must pass the examination administered by Respondent as a prerequisite to, certification. Section 489.113(1), Florida Statutes. Petitioner sat for the certified general contractor's examination on October 14-15, 1988. Petitioner passed one part of the examination, but he did not pass the other two parts of the examination. Petitioner timely and properly challenged the grading of two examination questions for which he received no credit, to wit: Question Number PM 10 and Question CA 10. Petitioner abandoned any challenge he may have had to other questions. Question PM 10, a multiple choice question, required Petitioner to apply one of the sections of the Standard Building Code to a factual problem. The question required both a correct construction of the provision and a correct application of the provision. Petitioner misconstrued the provision and therefore missed the problem. Respondent gave Petitioner no credit for his answer to Question PM 10 because Petitioner gave the wrong answer to the question. Question CA 10, also a multiple choice question, required Petitioner to correctly construe the question presented and to respond accordingly. This question involved a change order and the payment therefor. In computing the amount that he would charge the owner, Petitioner included charges for the removal of certain materials that the contractor would have to remove in order to perform his contract. Those costs should be allocated to the contractor, not to the owner. Petitioner misconstrued the question and therefore missed the problem. Respondent gave Petitioner no credit for his answer to Question CA 10 because Petitioner gave the wrong answer to the question.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Respondent, State of Florida, Department of Professional Regulation, enter a final order which finds that Petitioner abandoned his challenges to all questions except Question PM 10 and Question CA 10 and which denies Petitioner's challenges to Question PM 10 and to Question CA 10. It is further recommended that the two questions filed as exhibits in this proceeding be sealed. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 11th day of August, 1989. CLAUDE B. ARRINGTON 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 11th day of August, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-1859 The proposed findings of fact submitted on behalf of Petitioner are addressed as follows: The proposed findings found in the first full paragraph of Petitioner's proposed recommended order are addressed in paragraphs 1, 2, 3, and 4. The proposed findings found in the second and third full paragraphs of Petitioner's proposed recommended order are addressed, in part, in paragraph 5. The proposed findings are rejected, in part, as being subordinate to the findings made in paragraph 5. The proposed findings found in the fourth full paragraph of Petitioner's proposed recommended order are addressed, in part, in paragraph 7. The proposed findings are rejected, in part, as being subordinate to the findings made in paragraph 7. The proposed findings found in the fifth full paragraph of Petitioner's proposed recommended order are rejected as being recitation of testimony. The proposed findings of fact submitted on behalf of Respondent are addressed as follows: Addressed in paragraph 2 - 3. Addressed in paragraph 4. Addressed in part in paragraph 4. Rejected in part as being unnecessary to the conclusion reached. 4 - 10. Rejected as being recitation of testimony and as being subordinate to the findings made. 11. Rejected as being unnecessary to the conclusion reached. COPIES FURNISHED: George W. Harrell, Esquire Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Charles L. Neustein, Esquire 801 41st Street - 5th Floor Miami Beach, Florida 33140 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
The Issue May Petitioner be granted credit for Questions 11, 12, and 18 on his February 1989 Certified General Contractor Examination so as to be considered to have successfully passed the examination?
Findings Of Fact Petitioner sat for the certified general contractors' examination on February 18, 1989. Petitioner has passed two parts of the examination, but scored 65 on the part of the examination containing the three challenged questions which serve as the basis for the appeal. The Petitioner requires a score of 69.01 to pass the third part of the examination. Petitioner timely and properly challenged the grading of three examination questions for which he received no credit, to wit: Questions 11, 12, and 18 in Test Booklet GC 421-0749. Petitioner alleged that his answers to Questions 11 and 12, which had been marked incorrect, were equally correct with those selected as correct by Respondent. He also contended that the network drawn in the critical path method which formed the reference point for each of these questions was so illegible, due to labelling of the network diagram, that no ore, including Petitioner, could have been expected to successfully complete it in the timeframe allotted. Additionally, he contended that his answer of "B" to Question 18, amounting to $6642 should be counted correct, the same as Answer A which amounted to $6400 because Petitioner's answer amounted to only a few dollars more than the answer Respondent designated as correct. With regard to the illegibility issue, Petitioner did not object to legibility at any time during the course of the examination itself, nor did he fill out a comment form at the time of turning in his examination or claim to have a defective test booklet at those times. He did, however, later challenge legibility as to the specified questions, and he has been permitted to present evidence of lack of legibility on that basis. Apparently, Petitioner's concern was based on a misunderstanding that certain letter-number configurations in Questions 11 and 12 could be used more than once, when, in fact, each could be used only one time. He did not understand that letters appear always above a line while numbers always appear below a line and that based on the legend, some of his interpretations of component parts of the diagram could not have logically occurred. Petitioner also thought some numbers and/or letters could be repeated and so became confused. As a result, he worked some problems presented by the diagram incorrectly. These interpretations, as opposed to lack of a legible diagram, appear to have accounted for his mistakes. Also, George Bruton, who was qualified as an expert on the requirements of certified general contractors in Florida, was able to correctly answer Questions 11 and 12 without utilizing those symbols the Petitioner stated were illegible. Therefore, it must be concluded that the quality of the diagram did not prevent the Petitioner from correctly answering the questions. Question 18, a multiple choice question, required the Petitioner to estimate the cost of construction for a perimeter fence built with certain materials. The Petitioner utilized materials not included in the question and his perimeter did not accomplish the goal set by the problem. Among other problems, the Petitioner used six corner posts instead of four corner posts. Therefore, he answered the question incorrectly. Under this set of circumstances, Petitioner's dollar amount answer in excess of the correct answer also is clearly incorrect and not subject to "rounding off" simply because it is "close." Questions 11, 12, and 18 are each worth 4 points. Petitioner failed to demonstrate his entitlement to have his score of 65 raised above 65 by 4 (69), 8 (73), or 12 (77) points respectively.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Department of Professional Regulation enter a final order continuing to keep sealed the exhibits herein, finding that Petitioner abandoned his challenges to all questions except Questions 11, 12, and 18 of Test GC 421-0749, denying Petitioner's challenge to the foregoing questions, and denying a raise in the test score therefor. DONE and ENTERED this 22nd day of January, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 15th day of May, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-4098 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: 1 and 2 are rejected as not supported by the record. 3 is accepted but immaterial to the facts ash found and issue raised herein. Respondent's PFOF: 1 is subordinate and a conclusion of law 2, 3, 4, 5, 6, 7, and 8 are accepted. COPIES FURNISHED: G. W. Harrell, Esquire Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Edward K. Fewox, Jr. 3924 Wormwood Circle Jacksonville, Florida 32210 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Kenneth D. Easley General Counsel Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in the case is whether the Petitioner is entitled to credit for answers, which the Respondent scored as incorrect, to three questions on the February 2003 General Contractor Construction Examination.
Findings Of Fact The Petitioner took the General Contractor Construction Examination on February 11, 2003. After being notified that he did not pass the test, the Petitioner requested a review of the test and his responses. Following the informal review of his examination answers, the Respondent awarded no further credit and the Petitioner requested an administrative hearing. The Petitioner initially challenged the scoring of his answers to 12 examination questions. The challenged examination questions are identified as Business and Finance AM questions 6, 12, 33, and 40, Business and Finance PM questions 2 and 25, and General Contract Administration questions 21, 22, 30, 34, 48, and 59. At the hearing, the Petitioner withdrew his challenges to Business and Finance AM questions 6, 12, and 33, and maintained his challenge to Business and Finance AM question 40. Business and Finance AM question 40 requires an examination candidate to identify the proper response, according to a specified reference source, to the hypothetical discovery of hidden asbestos revealed during a demolition process. The correct answer to Business and Finance AM question 40 requires a contractor to stop working and notify the owner and architect in writing. The answer is directly referenced in the text of "General Conditions of Contract," a book that the Petitioner was permitted to use during the examination. The Petitioner's answer to Business and Finance AM question 40 was to stop work and notify the owner by telephone. The evidence fails to establish that the Petitioner's response to Business and Finance AM question 40 is correct or that the Petitioner is otherwise entitled to credit for his answer. At the hearing, the Petitioner withdrew his challenges to Business and Finance PM questions 2 and 25. The Petitioner also withdrew his challenges to General Contract Administration questions 30, 34, 48, and 59, and maintained his challenge to General Contract Administration questions 21 and 22. General Contract Administration question 21 requires an examination candidate to calculate the workday upon which concrete footers could be poured following completion and inspection of specified preparatory work. According to the question, no inspection or other work occurs on Saturdays or Sundays and an inspection would occur on the workday after the footing preparation was completed. The question provided that the specified preparatory work would begin on a Monday and would take seven days to complete. An inspection would occur on the eighth workday. The correct answer to General Contract Administration question 21 was that the footers could be poured on the ninth workday. The Petitioner's answer to General Contract Administration question 21 was that the footers could be poured on the eleventh day. The Petitioner incorrectly included the weekend in his calculation of workdays. The evidence fails to establish that the Petitioner's response to General Contract Administration question 21 is correct or that the Petitioner is otherwise entitled to credit for his answer. General Contract Administration question 22 requires an examination candidate to calculate the total linear feet of rebar needed to reinforce a footer of specified length and construction. The calculation of the total linear feet of rebar as performed at the hearing by the Respondent's witness, William H. Palm (qualified as an expert in General Contracting), is accepted as correct. Based on the specifications given in the question, Mr. Palm calculated that there would be eight 20-foot bars with the eight bars overlapping each other by 12.5 inches at each of seven overlaps. Multiplying the seven overlaps by 12.5 inches results in 7.29 feet of total overlap. Adding the total overlapping segments to the 160-foot total and multiplying the results by the four continuous bars results in an answer to General Contract Administration question 22 of 669.16 feet. The closest possible answer from the multiple choices listed in the examination question is 670 linear feet. The Petitioner's answer to General Contract Administration question 22 was that 666 linear feet of rebar would be required. The evidence fails to establish that the Petitioner's response to General Contract Administration question 22 is correct or that the Petitioner is otherwise entitled to credit for his answer. The Petitioner also challenges as inappropriate and unfair, the use of "general trade knowledge" as a reference to correct answers. The evidence presented by the Petitioner fails to establish that the use of "general trade knowledge" is inappropriate or unfair. General trade knowledge is general or common knowledge among professionals in the trade. The list of appropriate references available to all examination candidates states that some questions will "be based on field experience and knowledge of trade practices."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a Final Order dismissing the Petitioner's challenge to the grading of the Petitioner's responses to the February 2003 General Contractor Construction Examination. DONE AND ENTERED this 12th day of December, 2003, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 December, 2003. COPIES FURNISHED: Carl Malavenda 15811 Gulf Boulevard Redington Beach, Florida 33703-1733 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Nancy Campiglia, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Tim Vaccaro, Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Pursuant to Section 475.021, the Division of Real Estate of the Department of Professional Regulation, Florida Real Estate Commission, is empowered to perform examination services as required by Chapter 475. On February 2, 1987, an examination was administered for licensure as a real estate salesman. Petitioner, Ray Gold, sat for that examination. Mr. Gold received a score of 72, which was not a passing grade. Rule 2IV-2.029, Florida Administrative Code, provides as follows: The answers to the Broker, Salesman and Instructor examination shall be graded on the basis of 100 points for a perfect examination. An applicant who receives a grade of 75 points or higher shall be deemed to have successfully completed the licensure examination. The salesman's examination shall be based upon a knowledge, understanding and application of real estate principles and practices, real estate law and real estate mathematics as contained in the Commission prescribed prerequisite education course for licensure as a real estate salesman to the extent these subject areas can reasonably be separated, 45 points shall be based on law, 45 points on principles and practices and 10 points on real estate mathematics... Mr. Gold originally objected to the answers to Questions 29, 31, 37, 52, 56, 64, 75, and 97. In the course of the final hearing, Mr. Gold abandoned his objection to Questions 29, 31, 52, and 75. Question 37 asks essentially whether the name of the broker or the brokerage firm must appear in all advertising. Mr. Gold believed that the correct answer is the name of the broker. In arriving at this answer Mr. Gold relied upon page 179 of the Florida Real Estate Commission Handbook. However, the edition upon which Mr. Gold relied was outdated. The current edition, FREC Handbook, 1986 edition, sets forth Rule 2IV-10.025. That rule clearly requires that advertising must contain the license name of the brokerage firm. Accordingly, it is determined that Mr. Gold's answer to Question 37 was incorrect and he should not receive credit for his answer. Question 56 inquires regarding the appraisal technique known as the comparable sales approach to value. In this appraisal technique, Mr. Gold believes answer C -- "market value of the subject property is adjusted to comparables" -- is the correct answer. The answer deemed correct by the Respondent is answer D -- "sales price of comparables are adjusted to the subject property. "Mr. Gold relies upon a copy of a residential appraisal report form, FNMA Form 1004. The Respondent however relies upon a text, Florida Real Estate Principles, Practices, and Law, by G. Gaines, Jr., and D. S. Coleman. This text is one of the designated and approved texts for use in teaching the FREC Course I. All persons must take and pass this course in order to be eligible to sit for the examination. At page 265 of that text, it is clearly stated: "All adjustments necessary to achieve the maximum degree of similarity must be made to each comparable property, not to the subject property." Based upon this authority, it is determined that the answer D is the only correct answer to Question 56. Mr. Gold is not entitled to receive credit for his answer. Question 64 asks which types of loss in value are usually incurable. Mr. Gold believes that both answer C -- "Economic obsolescence" -- and answer D -- "Straight-line depreciation" -- are correct. Mr. Gold gave answer D on his examination. The answer recognized as correct by the Respondent is answer C. At page 269 of the above-cited Gaines and Coleman text, three main types of depreciation are identified and it is clearly indicated that external (economic or locational) obsolescence is incurable. Straight-line depreciation is not indicated to be incurable. Accordingly, it is determined that answer C is the correct answer to Question 64 and that Mr. Gold is not entitled to credit for his incorrect answer. Question 97 involves calculation of the estimated value of a house and land using the cost approach to value. The question specifically gives separate information for calculation of the value of the house and the value of the land. The question then inquires, "What is the estimated value of the house?" Mr. Gold correctly applied the cost approach method and arrived at the estimated value of the house only which is reflected in answer A -- "$41,600.00." The information given specifies that the lot is worth $15,000.00. Answer B, the correct answer according to the Respondent, is "$56,600.00" -- the value of the house and the lot. Page 267 of the above-cited Gaines and Coleman text describes the steps in estimating value by the cost approach method. There it states that to determine the value of the property, one essentially calculates the value of the house and the value of the land as if it were vacant and then adds the two values together. Because the question only asked the estimated value of the house, and not the estimated value of the property, it is determined that the question was ambiguous and that Mr. Gold's answer A is equally correct. Accordingly, it is determined that Mr. Gold should receive additional credit for this correct answer. Each question on the examination is worth one point. Based upon the foregoing, Mr. Gold is entitled to receive one additional point added to his score. As recalculated, Mr. Gold is entitled to a score of 73 on the examination. This score is insufficient to pass the exam.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Florida Real Estate Commission, enter a Final Order and therein award credit to Ray Gold for a correct answer on Question 97, but deny licensure to Mr. Gold based upon his failure to achieve a passing score on the subject examination. DONE and ENTERED this 17th day December, 1987 in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1987. COPIES FURNISHED: Ray Gold Daytona Beach Pin Co. Post Office Box 5792 Daytona Beach, Florida 32018 Chester G. Senf, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Darlene F. Keller, Acting Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
The Issue The issue for determination is whether Petitioner's examination challenge should be sustained.
Findings Of Fact Respondent is the governmental agency responsible for issuing licenses to practice architecture. Respondent is also responsible for administering examinations for such licenses on behalf of the state. At all times pertinent to this proceeding, Petitioner has been unlicensed as an architect. Petitioner took the Predesign part of the Architecture Examination given in June, 1995. Respondent's Bureau of Testing notified Petitioner by Examination Grade Report dated September 6, 1995, that Petitioner had earned a score of 74 on the Predesign part of the examination. The minimum score needed to pass the Predesign part of the examination is 75. Petitioner timely requested a formal hearing. A formal hearing was conducted on March 12, 1996. At the formal hearing, Petitioner challenged questions 74 and 105. Petitioner also challenged Respondent's failure to award credit for 10 pretest, or "pilot," questions included in the examination. Petitioner selected answer D to question 74. The correct answer is B. Petitioner selected answer A to question 105. The correct answer is D. The correct answer to each question is the answer identified by Respondent. The correct answer to each question is not the answer selected by Petitioner. Questions 74 and 105 are clear and unambiguous. Each question contains enough correct information to allow Respondent to select the correct response. Questions 74 and 105 are supported by reference materials which are approved and generally accepted in the architectural community. The correct responses to questions 74 and 105 do not require knowledge which is beyond the scope of knowledge that reasonably could be expected from a candidate for licensure. Pretest questions or "pilot items" are questions that are placed within an examination to determine their validity and reliability. No candidate, including Petitioner, may receive credit for correctly answering pretest questions. Before administering the examination, Respondent notified all candidates, including Petitioner, that pretest questions would be included as part of the examination. Petitioner is not entitled to credit for pretest questions.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is, RECOMMENDED that the Board enter a Final Order denying Petitioner's examination challenge. DONE AND ENTERED this 29th day of April, 1996, in Tallahassee, Florida. DANIEL S. MANRY, 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 29th day of April 1996. COPIES FURNISHED: Angel Gonzalez, Executive Director Department of Business and Professional Regulation Board of Architecture and Interior Design Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda Goodgame General Counsel Department of Business and Professional Regulation Northwood Center 1940 North Monroe Street Tallahassee, Florida 32399-0792 Vasantro Shere, pro se 117 Rabun Court Sanford, Florida 32773 R. Beth Atchison Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399
The Issue Whether Petitioner's response to the questions on the October 1990 Florida Professional Engineers Examination were sufficient to allow him to receive a passing grade. Whether problems in Petitioner's examination occurred which were due to the Department's change in the list of reference materials allowed into the examination room.
Findings Of Fact In order to obtain licensure as a Professional Engineer in Florida, Petitioner is required to successfully complete the licensure examination. Petitioner sat for the October 1990 National Engineering Licensure Exam. He received an overall score of 69.1%. A passing score for the examination was 70.0%. The Professional Engineer Candidate Information Booklet advised candidates that the reference materials taken into the examination room had to be formally bound, copyrighted and published. The only exception to this rule was the Standard Building Code, which is contained in a three-ring binder. On the first day of the examination, Petitioner learned that the Board of Engineers had approved the use of additional codes, standards and manuals that are bound in three ring binders during the examination. One of these newly approved references was the Highway Capacity Manual, Transportation Research Board. Petitioner did not have his copy of the Highway Capacity Manual with him at the examination site because of the prior prohibition against its use during the exam. Petitioner did not object to the last minute expansion of the reference materials list until after he received his test results. The examination questions and answers challenged by Petitioner are Questions #124 and #425. Question #124 involved a five-sided figure that contained curves in two of its sides. According to the situation given as part of the test question, this figure was a parcel of land. The engineer was required to compute the area of the parcel. The first requirement for part (a) of the question was the computation of the area of traverse ABCDEA in acres. The figure provided some of the sector measurements in feet as well as a stated radius for each curved area. A review of Petitioner's calculations for part (a) reveals that he did not close the figure. Closure is required in a problem involving land boundaries. Thus, he was not able to compute the area and convert the measurement to acres, as required. Each side had to be included to obtain the proper area measurement. Petitioner did not demonstrate entitlement to credit for his incorrect answer to part (a) because he did not follow the instructions or demonstrate competency in the engineering principles tested by this question. The scoring plan for the examination did not provide partial credit for the incomplete calculations made by Petitioner on this portion of the exam. Petitioner received full credit for part (b) of Question #124 during the original grading of the exam so that portion of the question is not in dispute. Part (c) of Question #124 required the exam candidates to compute the length of curve DE in feet. The measurement for sector DE was provided in feet along with the measurement for the radius. Petitioner's answer to Question #124, part (c) was 514.39 feet. The correct answer was 514.79 feet. Although Petitioner's solution is similar to the correct answer, he did not compute the length of the curve for the side DE as required by the exam instructions. Instead, he computed the central angle for the circular arc DE. Even in his computation of the central angle, Petitioner used a central angle of 58.94 instead of the correct angle of 58.99. The examination sought to test Petitioner's ability to compute the length of a curve. Petitioner ignored the instruction and used a different calculation method that was not requested. As a result, no credit was given for the wrong answer. Petitioner did not demonstrate competency in the engineering principles being tested. Question #425 was a multiple-choice problem with ten parts. The responses were to be made from five alternatives for each part. Petitioner received eight of the ten possible points for the question. Only subparts (3) and (4) were answered incorrectly. Petitioner did not demonstrate entitlement to credit for his incorrect answer to subpart (3) of Question #425. He did not provide evidence to support his theory that his answer "D" (1,390 gallons) was within a reasonable margin of error and should be given credit. The correct answer is "E" (1,410 gallons). The necessary calculations reveal that the actual answer is 1,408 gallons. The question asks for the multiple choice selection which is "most nearly" accurate based on the information given in subpart (2). Based upon the problem itself, Petitioner's additional input regarding temperature and expansion possibilities are without merit. The problem was not solved as presented. Petitioner did not demonstrate his ability to properly calculate the amount of substance occupying a particular volume. Subpart (4) of Question #425 deals with the symbols for roadway materials. The candidates were expected to select one of the listed materials as the one most likely used at a particular stage of roadway construction. Petitioner was unable to reference the Highway Capacity Manual when answering this question because the original instructions in the Professional Engineer Candidate Information Booklet instructed candidates that the only three-ring binder book allowed into the exam was the Standard Building Code. Although the decision prohibiting the entry of the Highway Capacity Manual into the examination room was changed prior to the exam, Petitioner was not alerted in time to have it available for his use. Prior to final hearing, Petitioner contended that if he had been given sufficient notice, he could have used the Highway Capacity Manual to define the symbols in subpart (4) of Question #425. At final hearing, Petitioner stated the answer could be in that manual or one of the other handbooks in the same series. The Highway Capacity Manual does not contain definitions for the symbols set forth in subpart (4). The Asphalt Handbook may contain such symbols. This reference would have been allowed into the examination even prior to the changed ruling on references contained in three-ring binders. The Hearing Officer was unable to find all of the symbols in subpart (4) in the pages provided by Petitioner. Petitioner failed to demonstrate that the change in the Department's policy regarding references in three-ring binders affected his ability to correctly answer subpart (4) of Question #425. He should not be given credit for his incorrect response on the answer sheet.
Recommendation Based upon the foregoing, it is RECOMMENDED: The Department should enter a Final Order which denies Petitioner's challenges to Questions #124 and #425. The exhibits marked "confidential" should remain sealed and not open to public inspection. DONE and ENTERED this 12th day of November, 1992, at Tallahassee, Florida. VERONICA E. DONNELLY 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 12th day of November, 1992. APPENDIX Petitioner's proposed findings of fact are addressed as follows: Accepted. See HO #2. Accepted. See Conclusions of Law. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. Contrary to fact. Rejected. Contrary to fact. Accepted. See HO #6. Accepted. Rejected. Contrary to fact. See HO #14. Accepted. Accepted. Rejected. Argumentative. Rejected. Contrary to fact. See HO #9. Rejected. Contrary to fact. See HO #15. Rejected. Contrary to fact. See HO #14. There was no number 20 in Petitioner's findings. Rejected. It was Petitioner's responsibility to meet this burden. Rejected. Improper argument. Rejected. Argument as opposed to factual finding. Rejected. Contrary to fact. See HO #23. Rejected. Speculative and contrary to evidence. Accepted. Accepted, except for the disadvantage issue. Speculative. Rejected. Contrary to fact. Rejected. Improper summary. Argumentative. Respondent's proposed findings of fact are addressed as follows: Accepted. See HO #2. Accepted. See Preliminary Statement. Accepted. Accepted. See HO #7. Accepted. See HO #9. Accepted. See HO #12. Accepted. Accepted. See HO #11 and #14. Accepted. See HO #15. Accepted. See HO #18-#19. Accepted. See HO #23. COPIES FURNISHED: Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Angel Gonzalez, Executive Director Board of Professional Engineers 1940 North Monroe Street Tallahassee, FL 32399-0792 Russell A. Ferlita 1220 LaBrad Lane Tampa, FL 33613 Vytas J. Urba, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-07950
Findings Of Fact Petitioner is an experienced and successful alarm system contractor licensed in Rhode Island and Massachusetts. Petitioner sought licensure as an alarm system contractor in Florida and sat for the Alarm System II Contractor's Examination administered by Respondent in January 1992. Applicants for licensure as alarm system contractors must pass the examination to be qualified for licensure. Petitioner's final grade on the examination was 70, but the minimum passing grade was 75. Petitioner did not pass the examination and, consequently, he was denied licensure. All challenged questions were multiple choice questions and the candidates were to select the best answer from the four possible answers provided. Candidates were allowed to use approved source materials during this open book examination. Petitioner challenged Questions #1, 17, 18, 19, and 76 because the content of each question pertained to accounting. For the reasons to be discussed in the Conclusions of Law portion of this Recommended Order, Petitioner's contention that accounting questions should not be included on the examination is rejected. The answer Petitioner selected for Question #1 was not the best answer to the question. Consequently, Petitioner was properly denied credit for his response to Question #1. The answer Petitioner selected for Question #17 was not the best answer to the question. Consequently, Petitioner was properly denied credit for his response to Question #17. The answer Petitioner selected for Question 18 was the best answer for the question, and he was awarded appropriate credit for that correct answer. The answer Petitioner selected for Question #19 was not the best answer to the question. Consequently, Petitioner was properly denied credit for his response to Question #19. The answer Petitioner selected for Question 76 was the best answer for the question, and he was awarded appropriate credit for that correct answer. Petitioner challenged Question #6 contending that the question was badly worded and that there were three possible answers to the question. Petitioner selected answer "B" as his answer to the question, but argued at hearing that answers "A", "B", or "C" are also correct answers. Respondent asserts that answer "C" is the best answer to the question. Petitioner failed to establish that Question #6 was impermissibly vague or that Respondent's determination that answer "C" was the best answer to the question was devoid of logic or reason. The answer Petitioner selected for Question #6 was not the best answer to the question. Consequently, Petitioner was properly denied credit for his response to Question #6. Petitioner challenged Question #23. The answer Petitioner selected for Question #23 was not the best answer to the question. Consequently, Petitioner was properly denied credit for his response to Question #23. Petitioner challenged Question #25 on the basis that the question was a trick question and that there were three possible answers to the question. Petitioner selected answer "B" as his answer to the question, but argued at hearing that answers "A", "B", or "C" are also correct answers. Respondent asserts that answer "A" is the best answer to the question. Petitioner established that his answer to the question was as correct as the answer selected by Respondent as the best answer to the question. Consequently, Petitioner was improperly denied credit for his response to Question #25. Petitioner challenged Question #78 and argued that the source material upon which Respondent based its answer is obsolete. Petitioner chose answer "A" while Respondent asserts that answer "D" is the best answer to the question. Respondent's answer appears in "Design Applications of Security Fire Alarm Systems", a reference book to which the candidates were permitted to refer while taking the examination. While Petitioner was very critical of this reference book, he failed to establish that Respondent could not rely on the book or that the determination by Respondent that answer "D" was the best answer to the question was devoid of logic or reason. Petitioner failed to establish that Question #78 was an improper question or that he was entitled to credit for his answer to the question. At the formal hearing, Petitioner raised for the first time a challenge to Question #83, a question pertaining to the use of coaxial cable. Petitioner contends that because alarm system contractors do not routinely use coaxial cable, the question is improper and should be thrown out. Petitioner concedes that the information necessary to correctly answer the question was in the resource material to which the candidates were permitted to refer while taking the examination and that he gave the wrong answer to the question. Petitioner failed to establish that Question #83 pertained to an improper subject or that he was entitled to credit for his response to the question. Petitioner challenged Question #98. After the examination was administered, the Electrical Contractors Licensing Board rejected this question from every candidate's examination as being outside the scope of practice. Consequently, that question was not a factor in the scoring of Petitioner's examination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which awards Petitioner credit for his answer to Question #25, but which denies him additional credit for his answers to the other challenged questions. It is further recommended that the examination questions and Petitioner's Exhibit 6 pertaining to certain of the examination questions be sealed as confidential exhibits. DONE AND ENTERED this 19th day of January, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 19th day of January, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-4924 The post-hearing submittal filed by Petitioner consists of argument and suggestions as to measures the Respondent should take to improve the examination, but does not contain proposed findings of fact that require a ruling from the undersigned. The proposed findings of fact submitted by Respondent are adopted in material part by the Recommended Order. COPIES FURNISHED: Joseph A. Trillo 800 Jeffrey Street Boca Raton, Florida 33487 Vytas J. Urba, Esquire Assistant General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Daniel O'Brien, Executive Director Department Of Professional Regulation Electrical Contractors Licensing Board 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
