The Issue The issues in this case are whether certain questions within the June 2002 construction building contractor examination are invalid, and whether Petitioner should receive credit for certain answers scored as incorrect.
Findings Of Fact In June 2002, Petitioner sat for the construction building contractor examination. Shortly following the exam, Petitioner was advised that he incorrectly answered 17 of the 50 exam questions and did not attain the minimum passing score of 70 percent, but received a failing scaled score of 66 percent. Petitioner timely challenged the validity and scoring of eight questions, including questions 8, 14, 17, 33, 34, 38, 43, and 44. In order for Petitioner to acquire a passing score, Petitioner must prove that certain challenged questions are invalid or demonstrate that he is entitled to receive credit for his answers. Specifically, Petitioner must demonstrate that either three questions should be stricken from the exam providing Petitioner with 70.2 percent, two questions should be stricken and one answer scored as correct providing Petitioner with 70.8 percent or two answers should scored as correct providing Petitioner with 70 percent. QUESTION 8 Exam Question 8 asks, "According to AIA-A201, who determines the interest rate that the contractor can charge on due and unpaid payments?" Petitioner's expert, Mr. Uman, argues that the parties to the contract are not defined within the question and it is therefore misleading. However, the credited answer D, "all the parties must agree on the rate" is within the provided reference material and is clearly the best answer. It is not misleading and Petitioner's argument lacks merit. In addition, 89.47 percent of the test-takers correctly answered Question 8. QUESTION 14 Exam Question 14 is wordy and involves computations. It requires the test-taker to calculate the number of "labor" hours required per 100 pieces to build a wall, given certain pricing and wall construction information. Question 14 is ambiguous and confusing on its face. While the question asks for labor hours, the facts provide a fixed combined hourly cost for a mason and laborer's hour. There is no distinction made between "labor" hours and a "laborer's" hours. Mr. Collier admitted that there is some apparent confusion between "labor" costs and the "laborer's" costs. Mr. Palm further agreed and indicated that he fully understood Petitioner's rationale to divide the labor costs in half and choose answer A. Furthermore, it is clear that Petitioner's perception of the question was not unique. In fact, only 46.62 percent of the test-takers correctly answered Question 14. QUESTION 17 Exam Question 17 asks, "During the bid process, which document has priority in the event of conflicting information?" Clearly, the correct answer is B, "addenda." Petitioner's argument regarding "competitively bid projects" is without merit. Mr. Palm succinctly explained that Petitioner's selection was obviously incorrect because "plans don't change during the bid process unless there is an addenda issued." Moreover, 75.56 percent of the test-takers correctly answered Question 17. QUESTION 33 Exam Question 33 identifies a situation that where drawings differ from written specifications and where there is no legal precedent that one is more binding than the other. The question specifically calls for the best procedure according to the listed and available reference. While Mr. Uman argues that the answer does not appear within the reference material in a clear manner, the exact text of the question and answer are in fact within the material. Petitioner's argument lacks credibility. QUESTION 34 Exam Question 34 asks the test-taker "what is the EARLIEST workday for completing the masonry work?" given the number of crew, the number of hours required, and the ratio constant of the crew. Although 80.45 percent of the test-takers correctly answered Question 34, Mr. Uman argues that the question could have been answered without reference to the Builder's Guide to Accounting material and therefore, was misleading. Petitioner's argument is devoid of common sense. QUESTION 38 Exam Question 38 asks the test-taker to identify the activity that "a specialty structural contractor is qualified" to perform. Petitioner's expert, Mr. Uman, again argues that the question is misleading since the credited correct answer "perform non-structural work" is not written verbatim in the provided reference material. To the contrary however, all of the alternative choices are clearly listed in the reference material as activities specifically prohibited by specialty structure contractors. Furthermore, page 2B17 to 61G415.015 of the Contractor's Manual specifically states that: The specialty structure contractor whose services are limited shall not perform any work that alters the structural integrity of the building including but not limited to roof trusses. Respondent's experts, Mr. Collier and Mr. Palm, agree that Question 38 is clear. Moreover, 53.38 percent of test- takers correctly answered the question. While the question appears to require enhanced reasoning skills and is generally more difficult, it is not misleading. Petitioner's assertions are without merit. QUESTION 43 Exam Question 43 asks, "Which accounting method should be used by a contractor if the contractor is unable to reasonably estimate the amount of progress to date on a job or the total costs remaining to fulfill the contract?" Mr. Uman argues that the question is ambiguous and the reference material is "not terribly clear." He further alleges that when a contractor cannot estimate progress, the contractor cannot establish a "completed contract method," the credited correct answer. Respondent's experts disagree. While it is true that Mr. Palm agreed that all of the choices are accounting methods which is inconsistent with Mr. Collier's testimony, the reference material is clear. In fact, 58.65 percent of the test-takers correctly answered Question 43. Petitioner presented insufficient evidence that he should receive credit for his answer or that Question 43 should be invalidated. QUESTION 44 Exam Question 44 provides detailed information regarding a standard form contract and asks, "Based ONLY on the information given above, what is the amount of the current payment due?" In addition, however, as Mr. Uman points out, the standard form referred to in the problem was mistakenly misidentified as Form 201 instead of Form 702. While it is clear that the referenced form was mislabeled, the precise form number was incidental, unrelated to the question, and unnecessary to compute the answer. In fact, Mr. Palm explains that the problem was "just a mathematical exercise." According to Mr. Collier, the question was not misleading, and the incorrect reference was irrelevant. "It's simple math, industry knowledge." Furthermore, Petitioner's answer is clearly incorrect because "he failed to deduct the retainage." Finally, 54.89 percent of the test-takers correctly answered Question 44.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered invalidating only Question 14, re-computing Petitioner's examination score, and dismissing his challenge. DONE AND ENTERED this 1st day of October, 2003, in Tallahassee, Leon County, Florida. S WILLIAM R. PFEIFFER 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 1st day of October, 2003. COPIES FURNISHED: Nickolas Ekonomides, Esquire 791 Bayway Boulevard Clearwater, Florida 33767 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Nancy P. Campiglia, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Robert Crabill, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The primary issue for determination is whether Petitioner should be permitted to take the examination provided by Respondent to individuals seeking licensure as a certified residential contractor.
Findings Of Fact By certified mail letter dated September 8, 1989, Respondent's representative denied Petitioner's application to sitfor the residential contractor licensure examination. At all times pertinent to these proceedings, Petitioner has been licensed by Respondent as a certified underground utility contractor; a certified building contractor; a certified general contractor; a certified roofing contractor; and a certified plumbing contractor. At the present time, Petitioner's licenses as an underground utility contractor and a general contractor are inactive. Petitioner derives 60 percent of his income from consulting services and service as an arbitrator in negotiation and settlement of contracting industry disputes. Petitioner maintains that his credibility as a consultant and expert witness will be bolstered as a result of completing the specific examination for licensure as a residential contractor. Further, he maintains that possibilities of his selection as a arbitrator will also be enhanced as the result of such examination and licensure. Petitioner is also an instructor for an examination preparation organization designed to prepare individuals to pass various state and local contractor examinations, including the examination required for licensure as a certified residential contractor. Respondent's denial of Petitioner's application was predicated upon Petitioner's existing licensure status as a building contractor, as defined in Section 489.105(3)(b), Florida Statutes. As stated by Respondent's representative in the September 8, 1989 letter, Petitioner's statutory scope of work asa licensed building contractor "includes and surpasses that of a residential contractor as defined by Section 489.105(3)(c), Florida Statutes" and therefore submittal of an application for a residential contractor license did not serve the purpose of determining Petitioner's qualification for that license. An applicant who successfully completes the examination offered by Respondent for licensure as a general contractor has essentially demonstrated competency in the areas covered by Respondent's examinations for builder and residential contractor licensure. Such an applicant may be considered to have completed the examinations for competency to hold those licenses. At the final hearing, the parties stipulated that Respondent has reconsidered its denial, in part, and will issue a residential contractor license to Petitioner. While Petitioner will not be permitted to take the examination for residential contractor licensure, his previous test score from the general contractor examination will be used, by Respondent, to document Petitioner's competency as a residential contractor and to comply with statutory requirements 1/ for licensure that competency be ascertained by the applicant's completion of the appropriate examination.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that upon issuance of a residential contractor's license to Petitioner, a final order be entered dismissing, as moot, any further proceedings in this cause. DONE AND ENTERED this 12th day of September, 1990, in Tallahassee, Leon County, Florida. DON W.DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Fl 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of September, 1990.
Findings Of Fact The Petitioner, Isidoro Carrillo, sat for Part II of the residential contractors examination administered in June, 1992. The Petitioner received a raw score of 62 on Part II of this examination which was amended to a grade of 63. A minimum passing score is 70. Each correct answer was worth 4 points. The Petitioner originally challenged questions numbered 8, 11, 15, 16, 18, 19, and 25 on the examination. At the hearing, the Petitioner conceded the Department's answer to questions no. 18 was correct. The Petitioner did not present any evidence with regard to questions numbered 8, 19, and 25 at the hearing. The Petitioner challenged questions numbered 11, 15, and 16. Questions numbered 11, 15, and 16 were labeled as the Hearing Officer's Exhibit and determined to be confidential pursuant to Section 455.229, Florida Statutes. A set of plans was introduced and labeled as Respondent's Exhibit 1. These plans are also determined to be confidential pursuant to Section 455.229, Florida Statutes. Question No. 11 required the computation of the square area of the foyer. The portion of the house to be included within the computation of the area of foyer was to include "all adjacent interior cased openings and door ways." Sheet 3 of 6 of the plans for the structure reveal notes relating to the foyer. The annotations regarding the foyer state: "See Note No. 18" and "See Note No. 19." Sheet 1 of 6 contains the specific notes relating to the plans. Note No. 18 states: "40 (width) x 68 (height) cased opening (See (Floor Plan)." Note No. 19 states, "58 (width) x 68 (height) cased opening (See Floor Plan)." The Petitioner failed to compute the correct answer for question No. 11 because he excluded from his computations the area between the foyer and the living room which was subject to note No. 19. The Petitioner's excluded this area from his calculation because the area between the foyer and living room lacks jams and is not a cased opening. The Petitioner and Respondent's expert both agreed that a cased opening was "Any opening finished with jams and trim, but without doors." A jam is defined as a vertical structure with depth. Referring to the plans in question, the opening between the foyer and the living room lacks jams. Respondent's expert explained that the area between the foyer and living room was included in the computation purely on the basis of Note 19, defining the area as a cased opening. Petitioner challenged question No. 15 which required the examinee to compute the amount of time required "to lift and place all single wood trusses with a span of 21' 4" given that the truck can lift and place one full-span, single, roof truss every 15 minutes. Sheet 5 of 6 of the plans depicts the roof truss layout for the house. On the plan, there are three single roof trusses with an overall length of 25' 4" and a span of 21' 4" and one gable end truss with a span of 21' 4" which is placed on top of and runs the length of the south wall of the building. This gable end truss has a span of 21' 4" but does not span any distance because it sits atop the wall. The response expected by the Respondent was one hour with the truck lifting four trusses: the three 25' 4" trusses plus the gable end truss. The Petitioner's answer was 45 minutes because he excluded the gable end truss which sits atop the wall and does not span any distance. The Petitioner challenges question No. 16 which asks the examinee to calculate the total cost for the pressure treated 4 x 8 and 2 x 6 lumber required to construct the wood deck, excluding wood rails, and given the price per 100 board feet of the 4 x 8 and the 2 x 6 pressure treated lumber. The expected response was answer A. The candidate's response was answer D because the candidate had included 4 x 8 beams running along and parallel to the wall of the house in his calculation of the cost figures. However, the detailed drawings of the wooden deck at the top of Sheet 3 of 6 and on Sheet 2 of 6 reveal that there are no 4 by 8 beams running along and parallel to the side of the house.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, the Hearing Officer concludes that the Petitioner was successful in challenging only one of three of the questions involved. The Petitioner's score of 67 points is insufficient for him to pass the examination. The Petitioner's records should be corrected; however, the Petitioner has not demonstrated a passing grade of 70, and therefore should not be licensed. DONE and ENTERED this 30th day of April, 1993, in Tallahassee, Florida. STEPHEN F. DEAN 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 30th day of April, 1993. APPENDIX A The Petitioner did not file proposed findings. The Respondent filed proposed findings which were read and considered. The following states which of those findings were adopted, and which were rejected and why: Respondent's Findings: Proposed Order: Paragraph 1-5 Paragraph 1-3 Paragraph 6 Paragraph 4-8 Paragraph 7 Paragraph 9,10 Paragraph 8 Paragraph 11 COPIES FURNISHED: Isidoro Carrillo Post Office Box 1896 New Smyrna Beach, Florida 32170 Vytas J. Urba, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Daniel O'Brien, Executive Director DPR - Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32202 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
