The Issue The issue posed for decision herein is whether or not the Respondent, State of Florida, Department of Professional Regulation, Electrical Contractors Licensing Board, erred and/Dr abused its discretion in its denial of Petitioner's application for statewide certification on the basis that it failed to demonstrate that it possessed adequate financial responsibility.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel, the Proposed Recommended Order and the entire record compiled herein, the following relevant facts are found. On March 19, 1979, Petitioner, Eric Copenhagen, t/a Aries Electric, filed an application with the Electrical Contractors' Licensing Board (herein called the Respondent) for statewide certification as an electrical contractor. (Respondent's Composite Exhibit 1.) On May 17, 1979, the Respondent denied Petitioner's application on the grounds that the qualifying agent, Eric R. Copenhagen, did not show financial responsibility and the business entity, Aries Electric, Inc., did not show financial responsibility and sufficient business and credit reputation as is set forth and required pursuant to Section 463.184(3), Florida Statutes (1977). l/ (Testimony of Board Member Kenneth Dunworth.) The Respondent denied Petitioner's application for certification based on Petitioner's response to Question 17(b) on the application to the effect that there was outstanding at the time of the demise of Kahn-Copenhagen Electric, Inc. a sum due and owing Consolidated Electric Company of $49,000.00; a credit report which reflected a tax lien in the amount of $52,440.00, which lien became effective approximately August 3, 1973, and remains unpaid; and a lien due and payable of $73.00 effective May 5, 1973. (Respondent's Exhibits 2, 3 and 4.) During the hearing, the evidence adduced established that the approximately $49,000.00 obligation owed to the supplier, Consolidated Electric, Inc., stems from a Housing and Urban Development (HUD) project undertaken by Petitioner's predecessor corporation, Kahn-Copenhagen Electric, Inc., and that the amount owed to the supplier was paid by the General Contractor as a result of litigation between petitioner and the. General Contractor. The evidence reveals that the lien which was outstanding at the time that the Board reviewed Petitioner's application for certification which was due to the Florida Department of Commerce has now been satisfied. There remains, however, outstanding obligations in the form of a tax lien due the Internal Revenue Service in the amount of approximately $53,000.00. The Petitioner contends that he was unaware of the existence of the tax lien and that there had been an agreement worked out between the Internal Revenue Service and himself to satisfy the outstanding amounts due and owing the Internal Revenue Service which grew out of the dispute between the supplier, the General Contractor and Kahn- Copenhagen on the HUD project. The records, however, do not reflect that these outstanding tax obligations have been satisfied at the time of the hearing. (Petitioner's Composite Exhibit 1.) In such circumstances, it appears that the Board, at the time that it reviewed Petitioner's application for certification, acted within its discretion in denying the Petitioner's application for certification due to an absence of showing of financial stability and/or responsibility. (Section 468.184(3), Florida Statutes.) I shall so recommend.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That the Respondent (Board's) denial of the Petitioner's application for certification be SUSTAINED. 4/ ENTERED this 10th day of June, 1980, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Collins Building Room 101 Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th of June, 1980.
Findings Of Fact The Respondent, Joseph B. Smith is the holder of a registered electrical contractor's license, number ER 0007369, issued by the State of Florida. During the month of May, 1981, the Respondent obtained an electrical permit for work on apartments located at the corner of Stockton and Forbes Streets, in Jacksonville, Florida. The work was contracted for by Ronnie D. Norvelle. Gary Moore performed the electrical work on the project. Neither of these men was employed by or under the supervision of the Respondent. On March 3, 1982, the Construction Trades Qualifying Board for the City of Jacksonville, Florida, directed that a letter of reprimand be placed in the Respondent's permanent record. The basis for the action taken by the Construction Trades Qualifying Board for the City of Jacksonville, Florida, was the violation of Section 950.111(a), Code of Ordinances of the City of Jacksonville.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that license number ER 0007369 held by the Respondent, Joseph B. Smith, be revoked. THIS ORDER ENTERED this 28th day of June, 1983, in Tallahassee, Florida. WILLIAM B. THOMAS, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1983. COPIES FURNISHED: Stephanie A. Daniel, Esquire 130 North Monroe Street Tallahassee, Florida 32301 Mr. Joseph B. Smith 6335 Park Street Jacksonville, Florida 32205 Allen R. Smith, Jr., Executive Director Electrical Contractors Licensing Board 130 North Monroe Street Tallahassee, Florida 32301 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Based on the stipulations and admissions of the parties, the exhibits received in evidence, and the testimony of the witnesses at the hearing in these consolidated cases, I make the following findings of fact. Findings based on stipulations and admissions of the parties The Petitioners, John Eugene Harden and Dova Cauthen, qualified for and were administered the January 1982 Electrical Contractors' Licensing Examination. After their examinations were graded and re-graded, Petitioners were notified that they had not received a "Passing" score of 75 or more. The Petitioners, John Eugene Harden and Dova Cauthen, qualified for and were administered the July 1982 Electrical Contractors' Licensing Examination. After their examinations were graded and re-graded, Petitioners were notified that they had not received a "Passing" score of 75 or more. Both Petitioners reside in Dade County, Florida. The Respondent Department of Professional Regulation (hereafter "DPR" or the "Department") is an agency of the State of Florida. The Respondent Electrical Contractors' Licensing Board (hereafter referred to as the "Board") is an agency of the State of Florida statutorily responsible, along with DPR, for licensing certified electrical contractors. The office of the Executive Director of the Board is located at 130 North Monroe Street, Tallahassee, Florida. The business address of Petitioner Harden is Harden Electric, 311 N.E. 8th Street, Homestead, Florida 33030. The business address of Petitioner Cauthen is 959 N.E. 79th Street, Miami, Florida 23138. Petitioner Harden specifically requested to review his January and July 1982 Electrical Contractors' Licensing Examinations. On March 25, 1982, Petitioner Harden went to Tallahassee, Florida, to review his January 1982 Licensing Examination papers, but although he requested an "examination review" he was never provided his own examination booklet or a copy thereof. During this alleged "examination review" Mr. Harden wrote written objections to the January 1982 examination on the forms provided to him based on the master copy of the examination provided to him. On August 31, 1982, Petitioner Harden went to Tallahassee, Florida, to review his July 1982 Licensing Examination papers, but although he requested an "examination review" he was never provided his own examination booklet or a copy thereof. During this alleged "examination review" Mr. Harden wrote written objections to the July 1982 examination on the forms provided to him based on the master copy of the examination provided to him. Petitioner Cauthen specifically requested an "examination review" with respect to her January and July 1982 Licensing Examination papers. On March 17, 1982, Petitioner Cauthen went to Tallahassee, Florida, to review her January 1982 Licensing Examination papers, but although she requested an "examination review" she was never provided her own examination booklet or a copy thereof. During this alleged "examination review" Ms. Cauthen wrote written objections to the January 1982 examination on the forms provided to her based on the master copy of the examination provided to her. On August 19, 1982, Petitioner Cauthen went to Tallahassee, Florida, to review her July 1982 Licensing Examination papers, but although she requested an "examination review" she was never provided her own examination booklet or a copy thereof. During this alleged "examination review" Ms. Cauthen wrote written objections to the July 1982 examination on the forms provided to her based on the master copy of the examination provided to her. Petitioners Harden and Cauthen sought Board review of their January and July 1982 Electrical Contractors' Licensing Examinations. Petitioners were advised in July 1953 that no copies of their actual booklets exist; Petitioners were advised in October 1982 that their actual booklets were shredded. With regard to question 71 on the afternoon portion of the July 1982 Licensing Examination, two of the four possible responses, "A" and "C" were credited. Candidates like Petitioner Cauthen who answered "B" received no credit for the question. DPR destroyed the Petitioners' examination booklets before the end of the two year period immediately following each of the 1982 examinations. That Section 455.217 of the Florida Statutes requires the Board "by rule" to designate areas of competency to be covered by each licensing examination. That Section 455.217 states that the Board shall "by rule specify the general areas of competency to be covered by each examination, the relative weight to be assigned in grading each area tested, and the score necessary to achieve a passing grade." That the amendment of Rule 2IGG-6.01(2) required candidates to commit to memory portions of the electrical code, accounting, law, worker's compensation rules, federal employer's tax guide, AIA General Conditions, business practices, legal and insurance requirements. In the July 1982 Electrical Contractors' Licensing Examination candidates were given one hour more time in which to take the examination than was given during the January 1982 examination. That DPR did not and has never provided Petitioners, their attorneys or agents with their own examination booklets for the January and July 1982 Electrical Contractors' Licensing Examinations. DPR has provided Petitioners only with copies of "master" examinations for their review. That the Respondents produced Notice of Destruction of Examination Booklets and Other Examination Materials dated April 14, 1982, which allegedly evidences destruction of Petitioners' examination booklets for the January 7, 1982, Examination on April 14, 1982. That the Respondents produced Notice of Destruction of Examination Booklets and Other Examination Materials dated October 15, 1982, which allegedly evidences destruction of Petitioners' examination booklets for the July 13, 1982, Examination on October 15, 1982. The findings in paragraphs 1 through 23, immediately above, are based directly on the stipulations of the parties in Case No. 84-0309R, the evidence in which has been incorporated into the record in these cases. The findings in the following paragraphs are based on testimony and exhibits, but some of them are also based in whole or in part on stipulations. In the findings which follow there are certain to be at least some repetitious findings in the course of putting matters into context and making additional findings which are related to some of the stipulated findings. Findings incorporated from Final Order in Case No. 84-0309R Both of the Petitioners in these consolidated proceedings are individuals who have applied to the Electrical Contractors' Licensing Board for licensure as certified electrical contractors. Both of them have been approved to sit for the licensure examination. Petitioner Harden took the Board's licensure examination on each of the following occasions: July 1981, January 1982, July 1982, and January 1983. The Board has not given him a passing grade on any of those four examinations. Petitioner Cauthen took the Board's licensure examination on two occasions: January 1982 and July 1982. The Board has not given her a passing grade on either of those two examinations. The Electrical Contractors' Licensing Board certification examination is different from a master electrician examination. However, the two examinations are in many ways similar because of the overlap in the nature of the subject matter to be tested on both examinations. The passing score or cut score on the local master electrician examination administered by Dade County is 70 percent. Most of the questions on that examination are about the National Electrical Code. Part of the Dade County master electrician examination is closed book. Prior to 1972, persons wishing to engage in electrical contracting in the state of Florida were required to be licensed by the local governments in the areas in which they sought to operate. Since 1972, persons wishing to engage in electrical contracting in the state of Florida must be licensed by a unit of local government or by the Electrical Contractors' Licensing Board. Persons who are licensed by the Electrical Contractors' Licensing Board are known as certified electrical contractors. A certified electrical contractor can engage in electrical contracting anywhere in the state of Florida without local licensure. Persons who are licensed by one or more local governments (typically a municipality or a county) are known as registered electrical contractors. Registered electrical contractors are licensed to engage in electrical contracting only in the geographic areas encompassed by the boundaries of the local government entities that issued their local licenses. There is, however, a certain amount of reciprocity from one local government to another. Certification as a state certified electrical contractor does not authorize the electrical contractor to work as an electrician, although a certified electrical contractor can pull permits. A person does not have to be a licensed electrician in order to become a state certified electrical contractor, although many electrical contractors are also licensed as journeyman or master electricians. Candidates for the electrical contractor licensure examination have a great variety in the nature and scope of their background and experience. This variety in background and experience is among the reasons which cause testing for minimum competence as an electrical contractor not to be an exact science. The Electrical Contractors' Licensing Board administered its own certification licensure examination from 1972 through 1980. During that period of time the Board administered the examination a total of twenty-two times. During those twenty-two sessions of Board administered examinations, a total of 824 candidates sat for the examination, of which 392 were successful. In 1979, the regulation of professions and occupations was reorganized. The Department of Professional Regulation (the Department) was created as an umbrella agency over numerous boards, including the Electrical Contractors' Licensing Board and the Construction Industry Licensing Board. The responsibility for examining applicants, which in the case of the Electrical Contractors' Licensing Board had been handled by the Board members themselves, was taken over by the Office of Examination Services (O.E.S.). Previous Board examinations were open book with certain reference material allowed. When the Office of Examination Services took over the administration of the January 1981 exams, it sent to the candidates a form letter adapted from the Construction Industry Licensing Board. This form letter instructed the candidates that they would be able to bring into the examination any notes and other materials desired. This was contrary to the past practice of the Board and contrary to the Board's wishes. The Board was very frustrated and concerned about the circumstances which led up to the January 1981 examination because the O.E.S. had refused to allow the Board to have any input into the examination and the Board thought the O.E.S. had come up with an apprentice level examination. In the Board's opinion, the January 1981 examination prepared by O.E.S. clearly tested at a level less than that of minimum competency. And although O.E.S. did not agree with the Board that the January examination was invalid, O.E.S. did agree that the examination was a lot easier than they had thought it would be. The Electrical Contractors' Licensing Board did not conduct any formal studies or formal analysis prior to making the 1981 amendments to Rule 21GG-6.01 changing the format of the examination and the cut score. However, the Board's Rules Committee did a great deal of work on the matter and the matter was discussed extensively at Board meetings. In this regard it is important to keep in mind that the Board members (with the exception of the two lay members) were all experienced practicing electrical contractors who were familiar with the requirements of day-to-day electrical contracting. The Board's decision to change part of the examination to closed book was due to a concern that people with no electrical knowledge could become licensed if the examination was all open book and had a low percentage of technical questions. The Board felt that more than half of the examination should be technical questions. The closed book National Electrical Code questions were for the purpose of testing what a person with experience in the field of electrical contracting should know about everyday matters. The primary, if not the sole, motivation for the Board's 1981 amendments to Rule 21GG-6.01 was the Board's concern about the quality of the O.E.S. administered examination and the Board's feeling that, due to its estranged relationship with O.E.S., the only vehicle through which it could effectively influence the quality of future examinations was through rulemaking. Those amendments were not motivated by any desire on the part of the Board to restrict competition in the field of electrical contracting. During the past few years the job requirements of an electrical contractor have remained substantially the same. Block and Associates (hereinafter "Block") is a company based in Gainesville, Florida, that writes licensure examinations for contractors in various trades. Block writes such examinations for cities, counties, and states. Block has prepared electrical contracting licensure examinations for the states of Florida, Georgia, and Oklahoma, as well as for St. Johns County, Florida. Block prepares licensure examinations for just about anything that involves electricity, including such things as electrical contracting, electrical journeyman, electrical master, low voltage, elevator, burglar alarm, and fire alarm. Block prepares master electrician examinations for over one hundred governmental entities. The Block electrical master exams and the Block electrical contractor exams use some of the same questions. Subsequent to the 1982 examinations which form the gravamen of these proceedings, the Board has contracted with Block and Associates to prepare the Board's certification licensure examination. The Board has never said anything to Block about wanting to achieve any particular passing rate or wanting to have any particular percentage of the candidates taking the examination achieve a passing score. The Board has never interfered with Block's autonomy in the preparation of the electrical contractor exam. All of Block's electrical contractor examinations include business questions. It is important to test for business skills because an electrical contractor who gets into business trouble may start cutting corners and cutting corners is a hazard to the public. Some of Block's electrical contractor examinations also have specific sections on safety. Block always does a post-administration statistical analysis of the examination questions it uses. The reason for this is to find out if anything is wrong with the questions; in other words, to determine whether the questions are valid. The computer program used by Block to check the validity of its tests was prepared for Block by a professor in the College of Education at the University of Florida. Block uses a computer to conduct a validity analysis of each test it administers. The Board's purpose in amending Rule 21GG- 6.01(1)(c) to delete the reference to "72A, B, C and D" was to make it clear to candidates for examination that the Board intended to include in the safety portion of its examinations questions from portions of Volume Seven of the NFPA other than Chapters 72 A, B, C, and D of that volume. Volume Seven of the NFPA contains quite a bit of material in addition to the material included in Chapters 72 A, B, C, and D of that volume. In view of the modifying phrase "shall include but not be limited to," the amendment to delete the reference to Chapters 72 A, B, C, and D was not a necessary prerequisite to the use of examination questions based on other portions of Volume Seven of the NFPA. The Board could ask the same examination questions before and after the amendment. Several weeks before each examination, the Department of Professional Regulation sent all candidates for examination, including these Petitioners, a notice to appear for the examination. The notice to appear included a list of reference books on which the examination was to be based. That list of reference books contained a specific reference to Volume Seven of the NFPA. All sixteen volumes which comprise the entire NFPA were not listed as reference books. Neither of these Petitioners demonstrated that he or she was genuinely confused or misdirected by the amendment to Rule 21GG-6.01(1)(c). Neither Petitioner contended he or she had studied all sixteen volumes of the NFPA. Instead, both Petitioners studied from the books on the reference list. In November of 1983 the Electrical Contractors' Licensing Board again amended Rule 21GG-6.01(3) to change the relative grading weights of the areas of competency to be tested. After November of 1982 the relative grading weights of the areas of competency were as follows: Technical increased from 60 percent to 65 percent; electrical calculations increased from 40 percent to 45 percent; code- related questions remained 20 percent of the examination; general business was decreased from 30 percent to 25 percent of the examination; and safety remained 10 percent of the examination. The licensing examination given by the Board has historically contained materials testing knowledge of electrical work and also materials testing the business qualifications of the applicants. Since the inception of the Board's licensing exam, the electrical work portions have contained electrical calculations. Throughout the time the Board has been administering licensure examinations for certification, the percentages of the examination devoted to particular subject areas have been based upon the Board's belief as to the appropriate levels of knowledge needed by a certified electrical contractor. The weighting of the examination was equitable when it was weighted 60 percent technical, 30 percent business, and 10 percent safety, and it is still equitable now that it is weighted 65 percent technical, 25 percent business, and 10 percent safety. The Board changed to the current percentages at the suggestion of Block and Associates. The Board's examination has had similar ratios for a long time, at least as far back as 1971. The proportions of the examination devoted to each particular subject matter did not change due to the March 1981 amendments. With the exception of the January 1981 examination put together by O.E.S., electrical calculations had historically been 40 percent of the test. Since the Board felt this percentage should be maintained, and since it was necessary to divide those calculations from the other portion of the technical section (since one would be tested in the closed book portion and the other in the open book portion), the division of the technical part of the exam was set out in the rule. On an electrical contractor licensure examination it is appropriate to include in the area of "technical" questions, questions dealing with the following subjects: electrical calculations, parts of estimating, and designs and electrical schematics. In the "business" portion of an electrical contractor examination, it is appropriate to include questions dealing with the following: accounting, worker compensation, and social security. Local licensing examinations had, in 1981, included a closed book portion. Local licensing examinations and state licensing examinations given in other states still include such a closed book portion. The basic Block examination has always included a closed book portion. Closed book examinations are not all that unusual in occupational and professional licensure testing. The CPA and nursing examinations are closed book. Also, virtually all of the electrical examinations administered by Block and Associates include a closed book portion. The advantage of a closed book examination technique is that it is easier to identify the candidates who have had practical experience in the subject matter being tested. A closed book examination is a better test for field experience and for general knowledge of the subject matter being tested. Certain questions known as "anchor" questions were given both in the open book examination before the format change and in the closed book section after the format changed. The relative performance by candidates on the same questions in the two formats shows the format change not to have prejudiced the candidates. Further, an examination analysis of the results of the closed book portions of the Board examinations reveals that, based on candidate performance, the closed book portion of the examinations was easier than the open book portion. This also shows that the format change did not prejudice the candidates. To the extent that the content domain of Board examinations was established by the March 1981 amendments to Rule 21GG-6.01(3), the content domain was established on the basis of the expert judgment of persons who were experts in the field of electrical Contracting, namely, the members of the Electrical Contractors' Licensing Board. The relative grading weights established in the 1981 amendments to Rule 2100-6.01(3) have at least a possible correlation to electrical contractor competence. In fact, the persuasive expert testimony establishes that those relative grading weights did bear a reasonable relationship to electrical contractor competence. The current slightly different relative grading weights also bear a reasonable relationship to electrical contractor competence even though there has been no recent change in the nature of the responsibilities of electrical contractors. In this regard it must be remembered that testing is not an exact science and no test for minimum competency can ever be expected to be an exact model of actual work experience. The best that can be expected is a reasonable model. There are various accepted methodologies for the creation of standardized examinations, adherence to which tends to enhance the likelihood that the examination instrument finally produced will be valid and reliable. However, adherence to those accepted procedures is not a necessary prerequisite to creation of a valid and reliable examination. This is particularly true when one is going to be testing small groups of people with varied backgrounds instead of the massive groups of people with similar backgrounds for whom standardized tests are more typically designed. In the final analysis the only practical and reliable measure of the validity of an examination is by statistical analysis of the examination after it has been administered. Given the nature of the circumstances faced by the Board at the time of the March 1981 amendments to the examination format and cut score, given the nature of the pool of candidates to be examined, given the nature of the changes contemplated by the Board, and given the very nature of the process of testing for minimum competency--which involves perhaps as much art as it does science--there is no study or data which would have been particularly useful to the Board in helping to determine exactly what the effect of their changes would be. Such effects can only be determined or measured with any degree of accuracy after the administration of an examination that incorporated the changes. Following the administration of such an examination, it is possible to perform a statistical analysis of all questions used on the examination and to eliminate or give credit for any questions which are shown by statistical analysis to be invalid or unreliable. This is precisely the process that is used by Block in the validation of their examinations and is an accepted testing procedure. It would have served no useful purpose to have conducted a trial run of an examination using licensed certified electrical contractors as a test group for the new examination format. First, it would be virtually impossible to try to put together an accurate cross-section of certified electrical contractors to use as a test group. Second, one would expect them all to pass the examination, so when they did so nothing of value would have been learned. Finally, the administration of such a trial run would risk the possibility of compromising examination question security. One aspect of accepted methodology for the preparation of standardized examinations is the definition of the content domain of the examination, i.e., a determination of what knowledge is essential to demonstrate that the candidates for licensure are minimally competent. This aspect of examination preparation is often accomplished by performing a formal job analysis, which is, in essence, a study of all of the usual tasks performed by a person engaged in the occupation or profession to be tested, including an evaluation of the relative importance of each of those tests to minimum competence. The content domain can also be defined on the basis of the judgment of a group of experts in the occupation or profession to be tested. With the exception of the lay members who were added in recent years, all of the members of the Electrical Contractors' Licensing Board are, and have been, persons certified to engage in electrical contracting in the state of Florida and actively engaged in the electrical contracting business. Therefore, at all relevant times all of the professional members of the Board had extensive personal knowledge of what was involved in the practice of electrical contracting, which personal knowledge was as useful in defining content domain as would have been a formal job analysis. (In this regard it is important to note that even with the addition of lay members to the Board in recent years, the experienced professional members have continued to constitute a substantial majority of the Board.) When examination booklets are being prepared by the Department of Professional Regulation prior to an examination, the booklets are carefully inspected to make sure that all of the booklets are identical. Following that inspection the booklets are sealed and stored in a secure place in order to insure, among other things, that no changes are made to any of the examination booklets before they are handed out to the candidates. After an examination is given, the Department of Professional Regulation retrieves all of the examination booklets, including all booklets that were used by all of the candidates, and retains them in a secure place until the excess booklets can be destroyed. The examination supervisor selects the booklets which are to be retained from among the booklets that are not handed out to the candidates at the examination. In the normal course of events all of the examination booklets that were actually handled by the candidates at the examination are destroyed within a very few months of the date of the examination. With the exception of the examination booklet of one other candidate (which exception is not relevant to the disposition of these proceedings), all of the examination booklets which were handed out to candidates during the examinations taken by these two Petitioners were destroyed approximately 90 days after each of the examinations. When such destruction took place, the Department retained copies of the examination booklets which had not been used by any candidate, which copies were identical to the copies that had been handed out to the candidates during the examination. As part of the examination instructions, all candidates for examination are advised not to write anything in their examination booklets because all of the booklets used by the candidates will be shredded. They are specifically told to do all of their computations on sheets of work paper that are provided to them at the examination. All candidates are specifically told that the only things they turn in that will be saved are their answer sheets and their sheets of work paper. The findings in paragraphs 25 through 63, immediately above, are substantially identical to certain of the findings of fact made in the Final Order in Case No. 84-0309R. They are, of course, based on the evidence received during the hearing in that case, which evidence has by stipulation been incorporated into the record in these cases. Most of the findings which follow are based on evidence received during the hearing of these examination challenge cases, bat some of them are also based on the evidence incorporated from the record in Case No. 84-0309R. The rest of the findings The examination prequalification process imposed by the Board is designed to ascertain whether an individual meets the professional criteria to attempt the examination and has no specific relationship to whether a candidate will pass or fail the examination. The January and July 1982 examinations were administered in geographical locations accessible to the Petitioners and although there were certain minor distractions and interruptions which occurred during the administration of both examinations, there were no major irregularities in the administration of either examination. Specifically, none of the irregularities in the administration of either examination was of sufficient magnitude to adversely impact the fundamental fairness of the manner in which the examinations were administered. The proof in this case is insufficient to show that the examination conditions on either occasion were such as to have interfered with the abilities of either of these Petitioners to choose correct answers on the examinations. The copies of the examination booklets which were furnished to the Petitioners at their examination reviews and thereafter were true and correct copies of the examination booklets which were given to all candidates at the time of the examinations. There is no persuasive or convincing evidence that either of these Petitioners has suffered any harm as a result of not being able to see the very same booklets that they personally used during the examination. The evidence in this regard is purely speculative. And, in any event, in view of the instructions to all candidates that their individual examination booklets would be shredded and that only their answer sheets and work paper sheets would be saved, if the Petitioners wrote useful information in their examination booklets and failed to also write that information on their work paper sheets, they were the authors of their own inconvenience and are not entitled to any relief on the basis of a matter that they could have prevented. When the Board conducts its post-examination review, it has been the policy of the Board to grant credit to all candidates for questions which are determined by the Board to be "bad items" for one reason or another. The Board has also on occasion granted credit for either of two answers when in the judgment of the Board it appeared that either of the two answers should be considered a correct answer. Both of these types of adjustments to the grading of the exams are reasonable ways to compensate for shortcomings in the examination instrument depending upon the particular circumstances of a given examination question. The examination scores achieved by the Petitioners when their scores were properly tabulated in the manner in which the scores of other candidates were tabulated are as follows: January 1982 examination: Dova Cauthen 68.0 John Harden 52.0 July 1982 examination: Dova Cauthen 73.0 John Harden 61.0 The foregoing tabulation of scores takes into consideration every reasonable manner in which examination scores could be tabulated. The foregoing tabulation ascribes the highest score possible to each candidate under all scenarios which are consistent with the greater weight of the evidence. During the course of the hearing, it was stipulated that, on the basis of proof at the hearing, both Petitioners were entitled to have certain additional points added to their grades where the proof demonstrated that the answers chosen by the Petitioners were as good as the keyed answers. On the basis of the tabulated scores plus the stipulated additions to all of those scores, both of the Petitioners would still be assigned failing grades. Accordingly, it is necessary to address the remainder of the Petitioners' contentions to determine whether they are entitled to have further points added to their scores or are otherwise entitled to licensure regardless of whether their scores can properly be raised to a passing level by the award of additional points. Findings regarding examination directions The directions which accompanied the challenged examinations are clear and to the point. They are easy to understand and consist of the type of information one would normally expect to see in the directions for a multiple choice examination. The most persuasive of the Petitioners' testing experts said the directions were good examination directions, and I so find. The Petitioners contend that, as applied, the directions are misleading and confusing because they instruct the candidates to mark only one choice for each question, but in some instances there was more than one correct answer among the choices. This is a shortcoming not of the directions, but of some of the questions and the answer choices that were given with them. In those instances in which a question does contain two correct answer choices or in which none of the answer choices are correct under any reasonable interpretation, the remedy adopted by the Respondent, which is to grant credit for additional responses and in some instances to grant credit for all responses, is an appropriate and fair resolution to any problem created by the application of the directions to a problematic question. Findings regarding "domino" questions The Petitioners have challenged a number of questions on the grounds that they are unfair or improper because they are "domino" questions. "Domino" questions are questions which require for their solution the application of information gleaned from obtaining the correct answer to one or more prior questions. Because the correct answer to one question depends upon application of the correct answer to one or more prior questions, it is argued that "domino" questions are inherently unfair inasmuch as an incorrect answer to an early question virtually guarantees an incorrect answer to any later "domino" questions. The "domino" question format is not a preferred testing format in many testing situations. Nevertheless, it appears to be a technique particularly well suited for testing for minimal competency in the field of electrical contracting because it provides a testing model which closely parallels functions electrical contractors are required to perform on a regular basis in the practice of their profession. In the practice of electrical contracting, it is common for a contractor to be required to make a series of calculations, each of which incorporates the answer obtained in one or more prior calculations. Accordingly, the "domino" question format is an appropriate format for testing candidates for licensure as electrical contractors. The "domino" question format is also used on other professional examinations in Florida. Findings regarding "Walker" questions The closed book portion of both examinations contained questions taken from an approved reference source entitled Practical Accounting and Cost Keeping for Contractors by Frank R. Walker Company, Eighth Edition. The Walker reference is a collection of materials regarding various topics related to bookkeeping and record management. The accounting information contained therein is fundamental. The Walker reference uses a number of antiquated terms and peculiar phrases. Nevertheless, most of the concepts in the Walker reference are rather straight- forward and uncomplicated. The Walker reference book could not be regarded as a very good textbook on the subject of accounting, but it is adequate for the purposes for which it was intended. Since the administration of the subject examinations, the Board has become disenchanted with the Walker book and has replaced it with another book. On a variety of different grounds, the Petitioners have challenged each and every one of the questions taken from the Walker reference. With the one exception noted below, the Petitioners' challenges to the questions taken from the Walker reference are without merit because virtually all of the questions are drawn directly from material in the Walker reference and in virtually all cases the language of the correct answer choice is the same, as or is a close paraphrase of, some explicit statement in the Walker reference. Anyone familiar with the Walker reference should not have any trouble selecting the correct answers to the Walker based questions. Furthermore, even without any familiarity with the Walker reference, a person with a reasonable amount of business experience should have been able to answer many of the questions just on the basis of a common sense application of that business experience. In sum, the Walker derived questions are fair and reasonable questions. The one exception to the foregoing is question 80 on the January closed book examination. Answer choices "C" and "D" should also be credited on this question. Accordingly, both Petitioners should receive credit for this question. Findings regarding the January "load" questions On the January 1982 examination all candidates (including the Petitioners) were given credit for all answers to a series of load questions (questions 13 through 20 of the open book portion) on that examination. For reasons which are not elucidated in the record in these cases, it was apparently determined by the Department or by the Board that those load questions were "too difficult." The Petitioners contend that because credit was given for all answers to all load questions on the January examination, the same should be done with regard to all of the load questions on the July examination. However, the Petitioners have failed to prove on what basis the January load questions were deemed to be "too difficult" and, therefore, there is insufficient evidence upon which to find whether the July load questions are "too difficult" for the same reasons. As found further below, standing alone, the July load questions do not appear to be too difficult. Findings regarding the July "load" questions Like the January exam, the July 1982 examination also contained a series of questions referred to as the "load" questions. The purpose of these questions (some of which were "domino" questions) was to require the candidates to demonstrate an ability to determine various amperages, voltages, and conduit sizes based on the content, character, and size of the buildings and equipment in a hypothetical shopping center described in an exhibit which was included in the examination booklet. The Petitioners have challenged all of the July load questions that either or both of them missed, asserting, inter alia, that the Board's solution to most of the questions is erroneous. For the reasons set forth below, I find that the Petitioners are not entitled to have any points added to their scores on the basis of their challenges to the load questions other than the one point the Respondents stipulated should be added to Petitioner Harden's score. Both Petitioners missed question 66 in the load series. Both Petitioners missed this question because they both omitted a crucial and undisputed step in their calculations. Both failed to take into account the continuous load factor. The reason for their incorrect answers had nothing to do with the issues in dispute between the experts as to how other aspects of the question should be calculated. Petitioner Harden answered question 68 correctly. Petitioner Cauthen chose an incorrect answer for reasons which are not elucidated in the record. Nevertheless, it would appear that her incorrect answer was not due to any defect in the question, because her answer choice is inconsistent with either of the answers advanced by the competing expert witnesses. Petitioner Harden answered questions 69 and 70 correctly. There is no showing of any causal connection between Petitioner Cauthen's incorrect answers to these questions and any defects in the Board's solution to the questions. To the contrary, it appears most likely that Petitioner Cauthen missed these questions by using information from her incorrect answers to prior questions. Petitioner Harden answered question 71 correctly. Although the competing experts used different methods to calculate the answer, they both came up with the same answer. Thus, there is nothing more than speculation or conjecture as to why Petitioner Cauthen missed this question. It is stipulated that Petitioner Harden should be given credit for question 72 because an alternative method of calculating the answer would result in the answer he chose. However calculated, the only arguably correct answers are the one chosen by Petitioner Harden and the one chosen by the Board and the competing experts. Thus, there is nothing more than speculation or conjecture as to why Petitioner Cauthen chose a different answer. Both Petitioners missed question 73. The experts for the opposing parties disagreed on how this question should be answered. But however it should be answered, the fact remains that neither of the Petitioners appears to have been familiar with either of the methods of solution proposed by the experts, because both chose answers that were inconsistent with those methods of solution. Thus, even assuming that the Board's solution was incorrect, there is no proof that any such shortcoming caused either of the Petitioners to miss this question. In any event, I am persuaded that the Board's solution was the better of the competing solutions offered at hearing. Both Petitioners missed questions 74 and 75. They both appear to have missed both of these questions because of choosing incorrect answers to prior questions and not because of anything improper or incorrect in questions 74 and 75. Both Petitioners missed question 76. Nothing improper or incorrect about the question affected the Petitioners' ability to select the correct answer, because under any interpretation of the correct solution to the question, the correct answer was "none of the above." Petitioner Harden answered question 77 incorrectly. Nothing improper or incorrect about this question affected his ability to select the correct answer. Although the answer depended in part on the answer to a prior question, the correct answer would be calculated using any of the solution methods proposed by the expert witnesses. Findings regarding National Electrical Code Questions Question 18 on the January closed book examination and question 20 on the July closed book examination are challenged as being "tricky" questions. While the selection of the correct answer to these questions requires close attention to detail, both questions are fair and reasonable. Question 22 on the July closed book examination contains a minor typographical error. Despite the typographical error, 84 per cent of the candidates taking the examination selected the correct answer. Accordingly, I find that the minor typographical error did not have any significant adverse impact on the ability of the candidates to understand and answer the question. Question 26 on the January closed book examination is a fair and reasonable question. It was answered correctly by 92 per cent of the candidates. Question 43 on the July closed book examination is a fair and reasonable question. The correct answer is derived directly from a specific exception to a provision of the National Electrical Code. It is reasonable to expect candidates for licensure as electrical contractors to be familiar with exceptions to the Code. Question 47 on the July closed book examination is a fair and reasonable question if credit is given for both responses "C" and "D." Both Petitioners selected response "A," so they are not entitled to additional credit for this question. Question 51 on the July closed book examination would have been easier to understand if the word "`metal" had been inserted before the word "raceway" in the stem of the question. But the evidence in this case is insufficient to establish that the omission of the word "metal" confused the Petitioners and caused them to miss this question. Their answers are consistent with their having assumed that the question involved a metal raceway, but also having simply chosen the wrong answer. Question 53 on the July closed book examination has only one correct answer, "seal or plug." The Petitioners' answer to this question is not a reasonable alternative answer. Question 78 on the January open book examination and question 25 on the July open book examination are both fair and reasonable questions. The omission of the power factor did not make it unreasonably difficult to answer these questions. Question 80 on the January open book examination and question 38 on the July open book examination are fair and reasonable questions. The fact that the question stem does not specifically state that the ranges are residential or commercial does not appear to have affected the ability of candidates to answer the question. Further, it is implicit from the available answer choices that the question contemplates residential ranges. Question 43 on the July open book examination is a fair and reasonable question if credit is given for both response "A" and "D." There is no persuasive competent substantial evidence that response "B" is an acceptable answer. Accordingly, Petitioner Cauthen is entitled to credit for this question, but Petitioner Harden is not. Question 53 on the July open book examination was miskeyed. Accordingly, Petitioner Harden should be given credit for this question. (Petitioner Cauthens original score has been computed on the basis of her having correctly answered this question.) Question 58 on the July open book examination has an ambiguous last sentence in the stem. As a result of that ambiguity, credit should be given for both responses "C" and "D." Accordingly, Petitioner Harden should be given credit for this question. Question 28 on the January open book examination has a word missing from the stem. Nevertheless, 73 per cent of the candidates were able to answer the question correctly. Accordingly, I find that the missing word did not have any significant adverse impact on the ability of the candidates to understand and answer the question. Question 41 on the January open book examination did not contain a correct answer in any of the answer choices. Accordingly, it is stipulated that Petitioner Harden should receive credit for this question. (Petitioner Cauthen's original score has been computed on the basis of her having correctly answered this question.) Question 42 on the January open book examination was miskeyed. Accordingly, Petitioner Cauthen should be given credit for this question. (Petitioner Harden's original score has been computed on the basis of his having correctly answered this question.) Question 44 on the January open book examination was miskeyed. Accordingly, Petitioner Cauthen should be given credit for this question, but Mr. Harden should not. Question 63 on the January open book examination is a fair and reasonable question. Although Petitioners contend the question is confusing, the fact remains that it was clear enough for 75 per cent of the candidates to select the correct answer. Question 43 on the January closed book examination contains a minor typographical error. Despite the typographical error, 90 per cent of the candidates taking the examination selected the correct answer. Accordingly, I find that the minor typographical error did not have any significant adverse impact on the ability of the candidates to understand and answer the question. Question 45 on the January closed book examination had four possible correct answers, depending upon which exception to Section 300-5, National Electrical Code, was applied. This question, unlike others appearing on the examinations, gave no indication in the content of the question stem as to whether the exceptions should be applied. Accordingly, all responses should be treated as correct and both Petitioners should be given credit for this question. Question 16 on the January closed book examination was miskeyed. Credit should be given for responses "A" and "B." Accordingly, Petitioner Harden should be given credit for this question. (Petitioner Cauthen's original score has been computed on the basis of her having correctly answered this question.) Question 26 on the January closed book examination is a fair and reasonable question. Although Petitioners' expert described a complex way of answering the question which would lead to a different answer, the fact remains that there is a fairly simple solution which leads to the correct answer which was used by 88 per cent of the candidates to select the correct answer. Question 69 on the January closed book examination does not have any correct answer choice. Accordingly, both Petitioners should be given credit for this question. Findings regarding financial analysis questions A major point of contention in these cases concerns the propriety of a series of questions on both the January and July examinations which can perhaps most accurately be described as financial analysis questions. This group of questions has been challenged on a variety of grounds including, (a) the candidates were not provided with a reference source for the questions, (b) the questions were too difficult for the skill level of the group being examined, (c) in order to obtain the correct answer to some questions the candidates had to guess which way the Board expected them to round their answers, and (d) that the exhibits used in conjunction with the financial analysis questions were incorrect and inadequate. With regard to the assertion that the financial analysis questions were too difficult for the skill level of the group taking the examinations, Petitioner Cauthen correctly answered 17 of 20 of this category of questions on the January examination and all 20 in this category on the July examination. Statistical analysis of the performance of all candidates on this category of questions reveals that on the January examination an average of 74.8 per cent of all candidates responding answered the financial analysis questions correctly, and on the July examination 81 per cent of all candidates responding answered the financial analysis questions correctly. These averages are significantly higher than the average percentage of correct responses achieved on the remainder of the questions on the morning portion of the two examinations. Accordingly, I find that the financial analysis questions were not too difficult for the skill level of the group being tested. Some of the financial analysis questions required the application of knowledge or information that is not specifically covered in any of the reference books listed in the notices to appear for the examinations. Petitioners contend that these questions are therefore unfair because even if they had studied all of the reference books, they would not have learned what they needed to know to answer some of these questions. The high percentage of correct answers achieved by all candidates on the financial analysis questions indicates that these questions were quite fair. All of the concepts that were involved in the solution of the financial analysis questions were concepts that an experienced businessman would normally be expected to be familiar with. All of the financial analysis questions were at a difficulty level such that a typical high school graduate who had some familiarity with bookkeeping should have been able to answer them. The unfairness contention is also dispelled by the fact that the notices to appear specifically stated that the examinations would include questions regarding financial statements, which put all candidates on notice to be prepared to answer such questions. Both of the Petitioners attended examination preparation courses, which courses included financial statement analysis in the course materials. The exhibits relating to the financial analysis questions which were included in the examination booklets contained all of the information necessary to calculate the answers to the financial analysis questions. The exhibits were fairly comprehensive and contained the type of basic "nuts and bolts" information a businessman would use for his own internal business purposes. The answer choices to several of the financial analysis questions were such as to require the candidate to round the calculated answer in order to determine the correct response. Some of the rounding functions were not in strict accordance with classical rounding principles and on some occasions the calculated answer would have to be rounded down, for example, when the classical rule would have mandated rounding up to the nearest whole number. The examination instructions did not tell the candidates what type of rounding principles they should use. The foregoing notwithstanding, irregularities in rounding do not tend to have an adverse effect on the performance of examination candidates unless the candidates are required to choose between very close answer choices. In the subject examinations there is only one question which arguably presented a rounding irregularity in conjunction with very close answer choices. This was question 32 on the January open book examination, which was missed by Petitioner Harden. However, even though it is possible that the format of the answer choices to question 32 confused Petitioner Harden and caused him to choose the wrong answer by rounding his calculated answer, it is equally possible that Petitioner Harden missed this question for some other reason. The evidence is insufficient to show that the format of question 32 on the January open book examination is what caused Petitioner Harden to miss it when so many others got it right. What the evidence does show (both through his Scores and his candid admission) is that Petitioner Harden has difficulty solving mathematical problems that involve the calculation of or application of percentages. Question 39 on the January closed book examination should be credited to Petitioner Harden for the same reasons that the identical question was credited to all candidates on the July examination. (Petitioner Cauthen's original score has been computed on the basis of her having correctly answered this question.) The evidence is insufficient to establish that the order of questions 8, 9, and 10 on the January closed book examination had any adverse effect on Petitioner Harden's ability to select the correct answer to those questions. Findings regarding safety questions In light of the language of the rule describing what as meant by "safety" questions, and the information about safety questions in the notices to appear for the examinations, there was nothing improper or unfair about the subject matter of the safety questions that appeared on the subject examinations. Findings regarding miscellaneous questions Question 23 on the January closed book examination is a fair and reasonable question. It has only one correct answer choice, which choice was correctly selected by 83 per cent of all candidates. Question 50 on the January closed book examination is a fair and reasonable question. It has only one correct answer choice, which choice was correctly selected by 92 per cent of all candidates. Question 80 on the July closed book examination is a fair and reasonable question. The question contains all the information that is necessary to select the correct answer. On the basis of the findings in the foregoing paragraphs, the tabulated scores of the Petitioners should be adjusted as follows: January 1982 Examination Dova Cauthen: Tabulated score of 68, plus addition of 3.5 points, equals final score of 71.5 John Harden Harden: Tabulated score of 2, plus addition of 4.0 points, equals final score of 56.0 July 1982 examination Dova Cauthen: Tabulated score of 73, plus addition of 0.5 points, equals final score of 73.5 John Harden: Tabulated score of 61.0, plus addition of 2.0 points, equals final score of 63.0 Findings regarding several other matters In the normal course of events, the questions on a licensure examination should be job related. The licensure examinations prepared by Block and Associates are designed to test for everyday knowledge. The Board is of the opinion that the questions asked on the subject examinations directly relate to the everyday practice of electrical contracting. The National Electrical Code is Volume 6 of the Fire Safety Code. Budgetary considerations of necessity affect the quality and nature of examinations prepared for professional licensure. For obvious reasons it would be unreasonable to spend millions of dollars to develop an examination for just a few people. Without question, the examinations at issue here are not as well constructed as the CPA examinations. Not nearly as much effort was put into the construction of these examinations as is typically put into the construction of a CPA examination. The subject examinations could perhaps even be fairly described as mediocre, at best. But on the whole, and in light of the circumstances under which the examinations were given, these examinations were reasonable. They bear a reasonable relationship to the task they seek to accomplish and they do a reasonable job of giving each candidate a fair chance to demonstrate minimal competence as an electrical contractor. Statistical analysis of the results of the January and July 1982 examinations indicates that those examinations, as adjusted to grant additional credit for some questions, are reasonably valid and reliable testing instruments. At least one person who failed one of the subject examinations has since been a successful candidate on a later examination. Where, as here, it is contended that candidates have been subjected to an invalid examination, the remedy which best addresses the competing interests of the candidates' desire for licensure and the public's need for protection is for the candidate to retake the examination.
The Issue The Petitioner has applied to take the Electrical Contractors' Licensing Board licensure examination and the Board proposes to deny the Petitioner's application on the ground that the Petitioner does not fully meet the experience requirements which are prerequisites to taking the examination. The parties stipulated that the Petitioner has satisfied one-half of the experience requirement pursuant to Rule 21GG-5.03(2), Florida Administrative Code, by reason of his having a bachelor's degree in electrical engineering from the University of Miami. Thus, the central issue in this case is whether the Petitioner's professional and business experience constitutes one and one-half years "proven experience in the trade as an electrical contractor or in a responsible management position with an electrical contractor." See Section 2489.521, Fla. Stat., Rule 2100-5.03(1), F.A.C.
Findings Of Fact Based on the testimony of the witnesses, the exhibits received in evidence, and the stipulations of the parties, I make the following findings of fact. Mr. Juan M. Reynes has applied to the Electrical Contractors' Licensing Board (hereinafter referred to as "the Board") to take the licensure examination for certification as an electrical contractor. Mr. Reynes' application was denied because the Board concluded that he had failed to demonstrate the experience required by Section 2489.521, Florida Statutes, as interpreted by Rule 21GG-5.03, Florida Administrative Code. Mr. Reynes is originally from Cuba, where his father ran an electrical contracting company. When Mr. Reynes was a teenager he began working in his father's business in 1949. He worked in a number of capacities, including work as an apprentice to an electrical engineer. Thereafter Mr. Reynes studied electrical engineering at the University of Havana and received a degree in electrical engineering during the middle or late 1950's. Thereafter, Mr. Reynes was licensed as an electrical engineer in Cuba. Following receipt of his degree and license as an electrical engineer, Mr. Reynes continued to work for his father's electrical contracting company from 1958 until sometime in 1962. During the period from 1958 to 1962, Mr. Reynes was involved in all aspects of the management of his father's electrical contracting company. His involvement in the management of the business included such things as signing contracts for the company, locating new business for the company, obtaining the necessary permits, dealing with the supply houses, and keeping the necessary employee records. In Cuba a license to practice electrical engineering also authorized the licensee to engage in the business of electrical contracting. The permitting procedure in Cuba was one in which permission to construct was obtained by having the appropriate government officials sign the blue prints. It was necessary to have an electrical engineer degree in order to submit blue prints for government approval. At the time Mr. Reynes was working as a licensed electrical engineer with his father's company there were laws in Cuba similar to Florida's worker's compensation laws and unemployment compensation laws. Workers in Cuba were also guaranteed certain other benefits such as guaranteed vacation days and sick leave. It was necessary to keep records regarding each employee. At the time Cuba did not have any laws similar to the Social Security laws in this country. When Mr. Reynes was studying for his electrical engineering degree in Cuba, his course work included studying the law of contracts. Thereafter Mr. Reynes spent a number of years in jail in Cuba as a political prisoner. Following his release from jail, from October of 1970 until January 1972 Mr. Reynes worked on some extensive electrical construction projects for Alfa Romeo in Cuba. After finishing that project, Mr. Reynes was able to obtain permission to leave Cuba and move to Spain. All of the electrical construction projects that Mr. Reynes was involved in within Cuba were built pursuant to the latest available edition of the North American National Electric Code. In Spain, Mr. Reynes did some work in the fields of electronics and electrical engineering. He left Spain and came to the United States. In the United States he has worked for a lot of companies in a variety of positions related to one aspect or another of electricity, but most of that experience is not relevant to the experience requirements for taking the electrical contractor's certification examination. While working in the United States, Mr. Reynes studied electrical engineering at the University of Miami and received a bachelor's degree in electrical engineering in May of 1981. He graduated cum laude as a result of receiving high grades, which he was able to do while also working full time to support himself and his family. In October of 1981, he took the licensure examination for professional engineer and passed it the first time he took it. Since February of 1982, he has been licensed as a professional engineer by the Board of Professional Engineers of the State of Florida. Since being licensed as a professional engineer, Mr. Reynes has owned and operated his own electrical engineering business. He has worked as an engineering consultant for several general contractors and electrical contractors, but he has not been in a responsible management position with an electrical contractor since coming to the United States, nor has he pulled any building permits for electrical construction in the United States. However, in working for electrical contractors, he has done such things as calculate the total number of man hours required for projects, calculate the total cost of supplies for projects, and supervised the actual construction of projects. In the operation of his own business Mr. Reynes has one full-time employee and two part-time employees. In the operation of his own business he has become familiar with such matters as preparation of payroll and the necessary deductions, the Internal Revenue Service requirements for businesses, worker's compensation insurance, and unemployment compensation insurance. An important part of the experience required by the applicable statute and rule is experience in the business activities aspect of electrical contracting. These activities include such things as payroll, insurance, bonding, worker's compensation, unemployment compensation, contract, and building laws.
Recommendation On the basis of all of the foregoing it is recommended that the Electrical Contractor's Licensing Board issue a Final Order concluding that Mr. Reynes is eligible to take the next electrical contractors' certification examination. DONE and ORDERED this 29th of November 1984, at Tallahassee, Florida. MICHAEL M. PARRISH 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 29th day of November 1984. COPIES FURNISHED: Juan M. Reynes, 336 W. 16th Street Hialeah, Florida 33010 Arthur Wallberg, Esquire Assistant Attorney General Room 1601 The Capitol Tallahassee, Florida 323301 Allen R. Smith, Jr. Executive Director Florida Electrical Contractors' Licensing Board 130 N. Monroe Street Tallahassee, Florida 32301
Findings Of Fact By an application dated March 27, 1979, and received by the Board on March 30, 1979, Petitioner, James L. Dentico, applied to the Florida Electrical Contractors' Licensing Board for a license as a certified electrical contractor. The Board has a committee on applications which reviewed Mr. Dentico's application. The committee determined that his application did not evidence sufficient experience in the trade. That determination prompted a letter written May 8, 1979, from Mr. Allen R. Smith, Jr., the Board's Executive Director, to Mr. Dentico. The letter states, in pertinent part, that: Your application failed to evidence to the Board that you had six (6) years' comprehensive experience training as required by 468.185(2). If you can evidence six (6) years as reflected in 468.185(2) in the trade as an electrical engineer, this evidence will be brought before the board. By letter dated May 15, 1979, Mr. Dentico responded through counsel. He contended that his application did evidence sufficient experience since, in his opinion, he had more than the minimum one and one half years of experience in the trade as required by Section 468.185(2), Florida Statutes. Mr. Dentico's attorney reiterated his request originally made on March 27, 1979, with the application that all future communications relating to the application be made directly to him, Philip J. Gouze, Esquire. Mr. Dentico's application was then returned to the Board for further consideration. That review was made at the Board's June 7, 1979, meeting in Tampa. As the result of communications between Mr. Smith's office and Mr. Gouze, Mr. Dentico was under the impression that he could take the electrical contractors' examination scheduled for June 8, 1979, in Tampa. To obtain his admission ticket for the written examination, Mr. Dentico appeared at the Board's June 7, 1979, meeting. Upon entering the room, he was questioned by Board members about his contracting experience in North Carolina and Florida. At the time Petitioner appeared, the Board had before it a seconded motion to accept his application. After the initial questioning, Mr. Borrell stated: Mr. Borrell: O.K., a motion has been made and it has been seconded that we accept this application. Mr. Lenhart: I think we need a little more evidence and based on this discussion, I will have to withdraw my motion. Mr. Isaac (the Chairman): I withdraw my second. Mr. Borrell: Motion made to withdraw it. Mr. Lenhart: And I base it on failure to evidence sufficient experience as an unlimited managing electrical contractor. Mr. Sommerkamp: I second. Mr. Borrell: Is there any discussion on this motion? Mr. Borrell: Let's go back to square one. Mr. Lenhart: Based on what he has said, I think the application is misleading and I would recommend that he reapply. Mr. Isaac: I second. (Vote was unanimous.) Mr. Dentico persisted in urging his qualifications on the Board. He was further questioned about his experience. After the additional questioning, Mr. Morgan said: Mr. Morgan: What is the motion? Mr. Borrell: Reject. The Chairman called for a vote and it was unanimous. Mr. Borrell: The Board does not see fit at this time and if you submit more data, we will be glad to review; but based on the findings we have here the information our decision has to stay and you will be notified of the right to appeal. Mr. Dentico's counsel was not present at the Board meeting and the record does not reflect that he was notified of the Board's action until the denial letter of August 13, 1979. On that date, Mr. Smith wrote to Mr. Dentico to state: The Florida Electrical Contractors' Licensing Board has reviewed your application for examination to be licensed as an electrical contractor, authorized to provide unlimited services, throughout the State. The Board has found that you [sic] application lacks sufficient evidence to qualify you to sit for the examination for the following reason: Your application failed to evidence to the Board at its June 7, 1979, meeting the necessary experience in the field as an electrical contractor authorized to provide unlimited services. Please refer to Sections 468.180 and 468.185, Florida Statutes, and Rule 21GG-2.01(1). The Florida Administrative Procedures Act entitles you to request a hearing on this matter should you choose to do so. Attached you will find an "Election of Rights" form which fully explains the procedures you may follow in requesting a hearing. The Board has not controverted any of the information in Petitioner's application. Mr. Dentico has a Bachelor of Science in electrical engineering from the Indiana Institute of Technology. He has a Masters degree in electrical engineering from the Georgia Institute of Technology. Between 1969 and 1973, he was an advanced design engineer at Grumman Aerospace Corporation. His responsibilities included research design and development of aircraft and satellite control systems, designing electrical hookup equipment for laboratory experiments and preparing cost estimates and technical writing for bids on government contracts. At Grumman, his time was divided equally into three functions: research, development and engineering. As part of his development responsibility, he was in charge of the construction of apparatus display and testing tables which were a mock-up of the hydraulic and electrical environment in which a prototype component would later operate. Mr. Dentico supervised the electricians who constructed the wiring, ran the conduits, etc., for those apparatuses. Subsequently, Mr. Dentico operated his own business, N. K. Investments of North Carolina, from January, 1975, to February, 1977. He designed and cost estimated an electrical power distribution system for a 320 boat slip marina and for the service building of that marina in New Bern, North Carolina. He also prepared an electrical cost estimate for a four-story office building there. Mr. Dentico also had some experience in doing the general electrical work on a two-story, nine-unit apartment complex building in Miami Shores, during 1977. Under the supervision of Gurney Electric Corporation, the project electrical contractor, he put in conduit, pulled wires and installed appliances. The functions of an electrical contractor are to order the necessary equipment for a given project, to supervise the contractor's employees in constructing the job according to the plans and specifications, to coordinate the work of the contractor's employees with the needs of the general contractor and in accordance with the directions of the project electrical engineer. There are times when a project does not have an electrical engineer and in that case, the design work is expected to be performed by the electrical contractor. Careful consideration has been given to each of the proposed findings of fact submitted by the parties. To the extent that they are not contained in this Order they are rejected as being either not supported by competent evidence or as irrelevant and immaterial to the issues for determination here.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the application of James L. Dentico for certification as an electrical contractor be granted subject only to successful completion of an objective written examination about Mr. Dentico's fitness for a certificate as required by Section 468.184(2), Florida Statutes (1977). That $50.00 of Petitioner's application fee be returned to him if Section 21GG-2.09, Florida Administrative Code, is still in effect. DONE and ENTERED this 30th day of January, 1980, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue The issue in this case is whether the Pinellas County Construction Licensing Board should discipline the Respondent for alleged willful or deliberate disregard and violation of applicable building codes.
Findings Of Fact The Respondent, Henry C. Robertson, is a certified electrical contractor, holding license number C-2720. In June, 1993, the Respondent was the exclusive electrical contractor for a residential subdivision project in Pinellas County that had been underway since 1991. Altogether, it consisted of several hundred residential units. The Respondent pulled the electrical permits for all of the units in the project. There was a single entrance to the subdivision via security gate. At its end, the entrance road (Arabian Lane) formed a "T" with the other road in the subdivision. By June, 1993, most of the subdivision already was built out. On June 15, 1993, the Respondent called the Board staff for final inspection on one half of a duplex located at 1757 Arabian Lane. When the inspector arrived, electrical work was being done on the other half of the duplex. Neither of the two workers on the job was a master or a journeyman electrician. One declined to answer the inspector's questions and just walked off the jobsite; the other stayed but could not give any information as to the whereabouts of the journeyman. No other workers were in the vicinity, i.e., in either side of the duplex, at adjacent properties, or within sight. Section 7(a) of the Pinellas Countywide Amendments to the National Electrical Code, 1993 Edition, limits the issuance of electrical permits to licensed electrical contractors and provides: "Where any electrical work is being done a master or journeyman electrician shall at all times be present on the job." According to the Respondent's testimony, there was a journeyman electrician somewhere in the subdivision who could have been contacted by the two workers at 1757 Arabian Lane if they needed help or advice. The Respondent himself also visits all jobsites at least once a day. This testimony was not refuted or contradicted. The Board's Chief Electrical Inspector, Joseph Bolesina, testified that, in interpreting Section 7(a) of the Pinellas Countywide Amendments to the National Electrical Code, his office considers each electrical permit issued to define "the job" to which it applies. In the case of 1757 Arabian Lane, each side of the duplex had its own electrical permit. However, he conceded that, if work was in progress on both sides of the duplex, only one master or journeyman would be required for the two permits involved. Neither the Board nor his office has specified any other circumstances under which a single master or journeyman electrician could "at all times be present" at work being done on more than one permit. He testified that, in his view, it would depend on whether the master or journeyman electrician would be readily accessible and available to check work and to help and give advice as necessary. He testified that, in his view, the presence of a master or journeyman electrician "somewhere in the subdivision," rotating between individual jobsites, would not qualify, even if they could be contacted immediately by radio or cellular phone. In this case, neither of the workers was able to contact the journeyman electrician who was supposed to have been available and accessible to them. The Respondent testified that he believed his work methods on June 15, 1993, met the letter and the spirit of the building codes, especially in light of the difficulty he and other electrical contractors have finding and hiring journeymen. He testified that he thought the "job" consisted of all the work going on at the subdivision project, not each individual unit. In August, 1992, the Respondent stipulated to a $150 fine to resolve Board Complaint No. C92-330, alleging a violation of Section 7(a) of the Pinellas Countywide Amendments to the National Electrical Code by a company he qualified (although he was not involved personally in the violation). In that case, the journeyman left the jobsite to get supplies that were short. In May, 1993, the Respondent stipulated to another $150 fine to resolve Board Complaint No. C93-8, alleging another violation by the same company. (Again, the Respondent qualified the company but was not involved personally in the violation). In that case, the journeyman electrician was not due to arrive at work for an hour when the workers were found unloading and stretching out cord in preparation for beginning work without him. In April, 1994, the Board filed Complaint No. C94-96 for another alleged violation, this time by a company the Respondent was operating personally. The Respondent admitted the charges. In that case, the journeyman left the jobsite to get PVC cement. The prior incidents did not raise the identical issue present in this case. However, the Respondent testified that he has had several occasions to discuss with Board staff the subject of compliance with Section 7(a) of the Pinellas Countywide Amendments to the National Electrical Code. While those discussions may not have specified all circumstances under which a single master or journeyman electrician could "at all times be present" at work being done on more than one permit, they should have made it clear to the Respondent that the journeyman electrician at least had to be available and accessible to the workers. In this case, the two workers on the jobsite were unable to tell the inspector where the journeyman was. The Board has published "Guidelines for Disciplinary Action" which provide for a $300 fine as the "typical" penalty for the first "minor" infraction and, for repeat "minor" infractions: an "additional $500 up to three; then mandatory appearance before the Board." The Guidelines also list aggravating and mitigating circumstances which focus on the harm done by the offense, the licensee's efforts to rectify the situation, and whether there is a history of similar offenses by the licensee. They also authorize suspension or revocation and fines "not to exceed $1,000 per count."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County Construction Licensing Board enter a final order: (1) finding the Respondent guilty of willfully or deliberately violating Section 7(a) of the Pinellas Countywide Amendments to the National Electrical Code, as charged; and (2) fining him $500. RECOMMENDED this 13th day of January, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 13th day of January, 1995. APPENDIX TO RECOMMENDED ORDER To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-3. Accepted and incorporated to the extent not subordinate or unnecessary. First sentence, rejected as not proven. (The Respondent does not contend that he is "exempt" but rather that the entire subdivision should be considered a single "job.") Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven that he cannot find any journeyman electricians for residential work. (Proven only that the Respondent has had difficulty finding and hiring them.) Respondent's Proposed Findings of Fact. Accepted and incorporated to the extent not subordinate or unnecessary. COPIES FURNISHED: William J. Owens, Executive Director Pinellas County Construction Licensing Board Suite 102 11701 Belcher Road Largo, Florida 34643-5116 Henry C. Robertson Robertson Electrical Services, Inc. 15316 Indian Head Drive Tampa, Florida 33618
The Issue The issues in this case are whether Respondent violated an order of the Board of Professional Engineers (Board) previously entered in a disciplinary proceeding, and, if so, what disciplinary action is appropriate.
Findings Of Fact Respondent is a licensed professional engineer in Florida and holds license PE 20638. He has held the license continuously since 1979. In 2000, Petitioner brought a disciplinary action against Respondent, styled FEMC v. John B. Benson, III, P.E., Department of Business and Professional Regulation Case No. BPR- 2000-04871, for alleged negligence in preparing a deficient electrical plan and related misconduct in connection with the construction of an addition to a church. The case terminated with the Board's Final Order Approving Settlement Stipulation ("2000 Final Order"). In the parties' Settlement Stipulation, Respondent agreed to pay a fine and to be permanently prohibited from practicing electrical engineering. On September 17, 2004, Respondent signed and sealed, as an engineer, an Inspection Report by Affidavit for electrical inspection of the "rough-in"2 electrical work associated with construction at 4915 26th Street, West, Building A, in Bradenton, Florida. On September 17, 2004, Respondent signed and sealed, as an engineer, an Inspection Report by Affidavit for electrical inspection of the rough-in electrical work associated with construction at 4915 26th Street, West, Building J. On December 1, 2004, Respondent signed and sealed, as an engineer, an Inspection Report by Affidavit for final electrical inspection of the electrical work associated with construction at 4915 26th Street, West, Building A. On December 3, 2004, Respondent signed and sealed, as an engineer, an Inspection Report by Affidavit for final electrical inspection of the electrical work associated with construction at 13411 Blythfield Terrace, Bradenton, Florida. No allegation was made, or evidence introduced to show, that the inspection reports referred to in paragraphs 4 through 7 contained errors or that the inspections were deficient. Mr. Ooten, an expert in electrical engineering and building inspections, testified that building officials usually require an electrical plan to be included in building plans, but the electrical plan does not have to be signed and sealed by an electrical engineer. On December 17, 2004, the Board received a complaint from the chief building official for Manatee County, regarding Respondent's signing and sealing electrical inspections in 2004, contrary to the Board's 2000 Final Order prohibiting Respondent from practicing electrical engineering. This complaint and the Board's subsequent investigation led to the Administrative Complaint which is the subject of this case. Respondent's defense to the charges in the Administrative Complaint is that he understood the Board's 2000 Final Order to prohibit him from designing an electrical plan. He did not think he was prohibited from signing and sealing electrical inspections, or from signing and sealing construction plans that included electrical components. On March 25, 2005, the Board received another complaint from the chief building official for Manatee County, who claimed that Respondent signed and sealed an electrical plan for a building for the Lemur Conservation Foundation. In response to this second complaint, Respondent informed the Board that he had placed a disclaimer statement on the building plans that "These plans have been reviewed for adequacy of structural components and systems only in compliance with FBC 01 Section 1606 130 MPH." Respondent placed this statement only on the first page of the building plans. As a consequence of this second complaint and investigation, Respondent was issued a "Letter of Guidance." No Letter of Guidance, clearly identified as such, is contained in the record. Respondent's Exhibit 1 includes a "Closing Order" of Petitioner, dated August 8, 2005, which may constitute the Letter of Guidance. It contains a statement directed to Respondent: The panel cautions the Subject that when he signs any page of plans he is responsible for all engineering depicted on the page unless the limitation of his analysis and approval appears clearly on the same page. Respondent asserts that, until the Letter of Guidance was issued, he did not understand that his inspection of electrical components and systems was the practice of electrical engineering. The Letter of Guidance, however, did not address the issue of the propriety of Respondent's four electrical inspections. The Letter of Guidance was a response to the second complaint about Respondent's signing and sealing an electrical plan, and his defense that he used a disclaimer statement to indicate that his signature and seal was not a representation about the electrical plan. The essence of the Board's "guidance" to Respondent was to make his disclaimer regarding the electrical components more explicit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a Final Order finding that Respondent violated Subsection 471.031(1)(k), Florida Statutes, for violating an order of the Board previously entered in a disciplinary proceeding, and imposing a penalty of license suspension for a period of four months and a fine of $4,000, plus the costs of these proceedings, as determined by the Board. DONE AND ENTERED this 9th day of June, 2006, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 9th day of June, 2006.
