Findings Of Fact The following findings of fact are based upon the stipulation of the parties. Mr. David L. Adams took the certified general contractor examination given on February 19 and 20, 1991. His score on part II of the examination was 70.00 (a passing score), and 65.00 (a failing score) on part III, the Project Management Examination. All parties agreed that instructions were given orally to candidates during the examination that only the answer which was marked on the machine readable answer sheet would be considered the answer of the candidate. Candidates were to mark the circles with a number two pencil, and blacken completely the circle corresponding to their answer. The machine readable answer sheet was completely separate from the booklet which contained the examination questions. Candidates were also orally told to read the written test instructions on the first page of the examination. Those instructions include the statement that at no time will you receive credit for an item for which you did not fill in a response on your answer sheet. (Examination, page 1 of 24). At the end of the test, candidates were also reminded orally that they should ensure that the answer corresponding to their calculations has been marked on the answer sheet, for no credit would be given for answers written in the examination booklet or on any scratch paper. The following findings were based upon the testimony and exhibits admitted during the hearing. The rules of the Construction Industry Licensing Board state that the only paper that shall be graded in a certification examination is the official answer sheet. No credit shall be given for answers written in an examinee's booklet. Rule 21E-16.006, Florida Administrative Code. Mr. Adams challenged the grading of question 12 on the Project Management Examination. He acknowledged during the hearing that he had marked the wrong answer on the answer sheet. Based upon the rules of the Board, the oral instructions given to the candidates, and the written instructions found on the first page of the Project Management Examination for general contractors given on February 20, 1991, Mr. Adams is not entitled to regrading of question 12. Before the examination, every candidate is provided with a list of references which is sent by regular United States mail. The approved references may be consulted by the candidate while taking the test. The reference list for the February 1991 administration of the Project Management Examination stated that the Standard Building Code to be used by a candidate should include the 1989-90 revisions to that Code. Mr. Adams studied from, and brought with him to the examination, and unrevised 1988 copy of the Code. His use of that Code accounted for the answer he gave to question 13, which dealt with the time available to challenge a decision by the building official to reject plans. The time for appeal permitted in the 1988 building code differed from the appeal time which is permitted in the 1990 revision of the Code by sixty days. Mr. Adams contends that it is obvious that he knows how to use the Standard Building Code because the answer he gave would be correct if the edition of the Code which he used were the current Code. This argument cannot be accepted. The Code itself states in its preface that it will be updated annually. It is a matter of basic competency that general contractors must use the current version of the Standard Building Code. Mr. Adams is not entitled to credit for the answer he gave to question 13. Mr. Adams has challenged his answer to question 15, which dealt with the amount of time necessary to erect steel members in a roof framing plan found in the examination booklet. The answer given by Mr. Adams was erroneous, because he did not correctly count the number of steel beams to be used in the project. The answer used by the Department in grading the examinations is the correct answer. Mr. Adams is not entitled to credit for the answer he gave to question 15. Mr. Adams has challenged the grading of question 16, which deals with the total permit fees and plan checking fees due to the building department for a project. The question specifically instructs candidates that the fees are to be computed based upon the fee guidelines in the Standard Building Code. Mr. Adams' answer was incorrect, because he used the 1988 edition of the Standard Building Code, although if that edition of the Code were in effect his answer would have been correct. Mr. Adams is not entitled to regrading of his answer to question 16, because the answer he gave is incorrect under the current edition of the Standard Building Code. Mr. Adams challenged the grading of his answer to question 17, which required the calculation of the amount due from an owner for a change order. Mr. Adams failed to take into account that the wall to be changed extended below grade, and as a consequence failed to calculate the full amount of additional concrete required for the change. Mr. Adams is not entitled to regrading of his answer for question 17. During the hearing, Mr. Adams argued that because the Department had only produced a clean, unused copy of the Project Management Examination given on February 20, 1991, and not the exact copy of the examination which he had used, it was possible that the plans which he used in answering questions 15 and 17 were not the same plans which the Department had used in calculating its answers for the test. The Department established that all plans utilized for the test are coded, and that the plans in test booklets do not vary from booklet to booklet. If Mr. Adams had been given the wrong set of plans, he would have done extremely poorly on the examination as a whole because a number of test questions are tied to the plans. Mr. Adams' contention that the plans in his examination booklet were different than the plans the Department used in developing its answers for the examination is contrary to the evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the challenge filed by David L. Adams to the grade which he received for the February 1991 certified general contractor examination be rejected. RECOMMENDED this 26th day of November, 1991, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of November, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-4064 The proposed findings of fact submitted by the Construction Industry Licensing Board have generally been accepted, although they have been edited. The arguments contained in the letter submitted by Mr. Adams have been incorporated in the Findings of Fact. COPIES FURNISHED: Thomas K. Equels, Esquire Holtzman, Krinzman & Equels 1500 San Remo Avenue Suite 200 Coral Gables, FL 33146 David L. Adams 9400 Southwest 80th Street Miami, Florida 33173 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Daniel O'Brien, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the factual stipulations of the parties, the following relevant facts are found: Respondent Melvin A. Grosz is a registered residential contractor, having been issued license number RR 006311. He has been licensed since the 1960s. COUNT I In November of 1950, respondent entered into a contract with W. J. Murphy to install windows and do other renovation work on Mr. Murphy's residence located at 3312 N. San Miguel, Tampa, Florida. Respondent received from the Murphys an advancement in the amount of $1,250 for the work to be performed. While respondent did do some cleaning work, he failed to do any further work or supply any labor in performance of the contract. In February of 1951, respondent executed a "Stipulation of Settlement and Promissory Note" with the Murphys, agreeing that he failed to perform any work or supply any labor, acknowledging that he owed the Murphys $1,250 and agreeing to pay the Murphys $250 per month for five consecutive months beginning on March 10, 1951. As of the date of the hearing in this matter, respondent had made no payments to the Murphys. COUNT II On or about October 9, 1980, respondent entered into a contract with Vera Reid for the sum of $3,245 to do certain remodeling on her residence at 203 North Tampania Street, Tampa, Florida. After having completed about 40 percent of the construction work and after having received $3,100 of the contract amount, respondent abandoned the Reid construction project during December of 1950. COUNT III On or about December 19, 1980, respondent entered into a contract with James F. and Mary L. Stewart to construct a residence in Lutz, Florida, on a sliding total price basis not to exceed $25,000. Respondent was to be the general building contractor and as to coordinate and supervise all subcontractors and perform other duties. Pursuant to his contract with the Stewarts, respondent did obtain the first subcontractor and did some preliminary work. Respondent received $1,300 from the Stewarts, but performed only minimal work, valued at approximately $300, prior to abandoning the Stewart project. Respondent's promises to repay the Stewarts were never fulfilled. COUNT IV In June of 1981, a direct information was filed against the respondent charging that, on March 21, 1981, he unlawfully obtained or used windows belonging to another, the value of said windows being in excess of $100. On March 2, 1952, respondent entered a plea of nolo contendere to a charge of grand theft in the second degree. The Circuit Court of Hillsborough County entered an Order on March 2, 1952, withholding adjudication of guilt, and placing respondent on probation for a period of two years. As a condition of probation, respondent was to make restitution in the amount of $423.92, with probation to terminate automatically upon the payment of such restitution. The respondent did subsequently make the required restitution payment. COUNT V On or about September 1, 1951, the City of Tampa revoked respondent's Certificate of Competency due to his violation of Tampa Code, Chapter 45, Article III, Division 4, Section 45-75(c). This action was based upon his abandonment of the Reid project discussed in Findings of Fact (4) and (5) of this Recommended Order. MITIGATION Respondent admits the factual allegations and charges set forth above. He states that during the times involved in these charges, he was experiencing numerous family and financial problems, was taking antidepressant medication and was unable to function properly, and his daughter was involved in a serious accident. He no longer takes medication and feels that he is now capable of working. Respondent desires to pay the Murphys, Stewarts and Ms. Reid the monies he owes them and feels that he would be able to do so within 90 to 120 days if given the opportunity to work as a registered residential contractor.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that respondent be found guilty of violating Section 459.129(1)(b),(h),(i) and Florida Statutes (1979), that an administrative fine in the amount of $500 be imposed against him and that respondent be placed on probation for a period of six (6) months. If, at the end of six (6) months respondent has not made restitution to the Murphys, the Stewarts and Ms. Reid, respondent's certificate of registration as a contractor should be revoked. Respectfully submitted and entered this 12th day of May, 1983, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 1983. COPIES FURNISHED: John O. Williams, Esquire Mr. James Linnan 547 North Monroe Street (Suite 204) Executive Director Tallahassee, Florida 32301 Construction Industry Licensing Board Melvin A. Grosz Post Office Box 2 2511 Marlin Avenue Jacksonville, Florida 32202 Tampa, Florida 33611 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint? If so, what punitive action should be taken against him?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Respondent is a building contractor. He obtained his license (License Number CB C028158) to engage in the contracting business in the State of Florida in 1984. Respondent's license expired on August 31, 1996, without Respondent having made any effort to renew it. On September 1, 1996, the Department placed Respondent's license on "a delinquent status for non-renewal." 5/ It considers the license to be invalid for the 1996-98 licensing period. At all times material to the instant case, Respondent was the primary qualifying agent for Loma Linda Homes Corporation (Loma Linda). In late 1993 or early 1994, Loma Linda entered into a written contract (Contract) with Carmen Bennett and her daughter-in-law, Virginia Bennett, in which it agreed to construct a residence for the Bennetts at 5403 Loma Vista Loop in the Loma Vista subdivision in Davenport, Florida. The Contract had a "[t]ime is of the essence" provision. 6/ The Contract further provided that is was "conditioned upon Purchaser[s, the Bennetts] obtaining a mortgage loan commitment within sixty days from the date of this contract for a term not to exceed thirty (30) years at the prevailing market interest rate at time of closing." The Bennetts timely obtained such a commitment. Prior to the execution of the Contract, Loma Linda had received a $1,000.00 deposit from the Bennetts. At or around the time the Contract was executed, the Bennetts provided Loma Linda with an additional deposit in the amount of $9,813.00. The Contract provided that "[i]f Seller [Loma Linda] fails, neglects, or refuses to perform this Contract, the Purchasers [the Bennetts] shall receive the return of all sums paid to the Seller." Loma Linda failed to meet its obligations under the Contract. Construction of the residence that Loma Linda agreed to build for the Bennetts never commenced. All that Loma Linda did in furtherance of its contractual obligations was to clear the lot on which the home was to be built. The Bennetts have not received back any of the $10,813.00 in deposit monies that they paid Loma Linda.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board enter a final order: (1) finding Respondent guilty of the violations alleged in Counts I, III and V of the Administrative Complaint; (2) penalizing Respondent for having committed these violations by imposing on him a fine in the amount of $1,000.00 and requiring him to pay $10,813.00 in restitution to the Bennetts and to reimburse the Department for all reasonable costs, excluding attorney's fees, associated with the Department's investigation and prosecution of the charges set forth in Counts I, III and V of the Administrative Complaint; 10/ and (3) dismissing Counts II and IV of the Administrative Complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 9th day of January, 1997. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1997.
The Issue Whether Petitioner is entitled to additional credit for his responses to Questions 23 and 27 of the Contract Administration section of the General Contractor licensure examination administered in July 1996, and, if so, whether the additional credit would give him a passing grade. Whether Petitioner is entitled to additional credit for his responses to Questions 11, 23, and 35 of the Contract Administration section of the General Contractor licensure examination administered in April 1997 and, if so, whether the additional credit would give him a passing grade.
Findings Of Fact Petitioner took the Contract Administration section of the General Contractor’s licensure examination in July 1996 and in April 1997. Between the two exams, Petitioner passed all sections of the examination except the Contract Administration section. Petitioner’s score on the Contract Administration section of the July 1996 examination, as graded by Respondent’s Bureau of Testing, was 65. His score on the Contract Administration section of the April 1997 examination was 67.5. For both examinations, there were 40 questions on the Contract Administration section. A candidate had to achieve a score of 70 to pass that section of the examination. Because each question was equally weighted, a candidate would have to correctly answer 28 questions to earn the passing score. All questions challenged by Petitioner were multiple- choice questions where the candidate was instructed to give the best answer from four possible choices. Prior to the examinations, the candidates were given a list of approved reference materials. The candidates were permitted to refer to those reference materials while taking the examinations. Respondent’s score of 65 on the July 1996 examination was based on the Bureau of Testing’s determination that Petitioner correctly answered 26 of the 40 questions. To earn a passing grade on the Contract Administration section of the July 1996 examination, Petitioner would have to receive credit for correctly answering two additional questions. His score of 67.5 on the April 1997 was based on the determination that he correctly answered 27 of the 40 questions. To earn a passing grade on the Contract Administration section of the April 1997 examination, Petitioner would have to receive credit for correctly answering one additional question. QUESTION 23 OF THE JULY 1996 EXAM The correct answer for Question 23 of the July examination is choice “D.” Of the four possible responses, choice “D” is the best answer to the question. Petitioner’s answer to this question was choice “A.” Petitioner did not receive credit for his response to this question because he did not select the best answer. The answer selected by Petitioner would not be the most accurate and cost-effective because the methodology he selected would not detect errors made by the first person performing the computations. The challenged question is a question that a candidate for licensure should be able to answer. The challenged question is not beyond the scope of knowledge that a candidate for licensure should have. The challenged question is not ambiguous. Petitioner is not entitled to additional credit for his response to Question 23 of the July 1996 exam. QUESTION 27 OF THE JULY 1996 EXAM The correct answer for Question 27 of the July examination is choice “C.” This correct answer is supported by reference materials made available to all candidates. Petitioner’s answer to this question was choice “B.” Petitioner did not receive credit for his response to this question because he did not select the correct answer to the question. The challenged question is a question that a candidate for licensure should be able to answer. The challenged question is not beyond the scope of knowledge that a candidate for licensure should have. The challenged question is not ambiguous. Petitioner is not entitled to additional credit for his response to Question 27 of the July 1996 exam. QUESTION 11 OF THE APRIL 1997 EXAM The correct answer for Question 11 of the April 1997 examination is choice “C.” This correct answer is supported by reference materials made available to all candidates. Petitioner’s answer to this question was choice “D.” Petitioner did not receive credit for his response to this question because he did not select the correct answer to the question. The challenged question is a question that a candidate for licensure should be able to answer. The challenged question is not beyond the scope of knowledge that a candidate for licensure should have. The challenged question is not ambiguous. Petitioner is not entitled to additional credit for his response to Question 11 of the April 1997 exam. QUESTION 23 OF THE APRIL 1997 EXAM The best answer for Question 23 of the April 1997 examination is choice “C.” This correct answer is supported by reference materials made available to all candidates. Petitioner’s answer to this question was choice “A.” While there is some support in the reference material for Petitioner's answer, the greater weight of the evidence established that his choice was not the best answer. Petitioner did not receive credit for his response to this question because he did not select the best answer to the question. The challenged question is a question that a candidate for licensure should be able to answer. The challenged question is not beyond the scope of knowledge that a candidate for licensure should have. The challenged question is not ambiguous. Petitioner is not entitled to additional credit for his response to Question 23 of the April 1997 exam. QUESTION 35 OF THE APRIL 1997 EXAM The correct answer for Question 11 of the April 1997 examination is choice “C.” This correct answer is supported by reference materials made available to all candidates. Petitioner’s answer to this question was choice “D.” Petitioner did not receive credit for his response to this question because he did not select the correct answer to the question. The challenged question is a question that a candidate for licensure should be able to answer. The challenged question is not beyond the scope of knowledge that a candidate for licensure should have. The challenged question is not ambiguous. Petitioner is not entitled to additional credit for his response to Question 11 of the April 1997 exam.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order that dismisses the challenges brought by Petitioner to Questions 23 and 27 on the July 1996 exam and to Questions 11, 23, and 35 of the April 1997 exam. DONE AND ENTERED this 3rd day of December, 1997, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 1997. COPIES FURNISHED: R. Beth Atchison, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Mr. Kenneth Marshall 624 Southwest 11th Court Fort Lauderdale, Florida 33315 John Preston Seiler, Esquire 2900 East Oakland Park Boulevard, No. 200 Fort Lauderdale, Florida 33306 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Rodney Hurst, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467
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 issue in this proceeding is whether Petitioner's examination for licensure as a residential contractor was incorrectly graded.
Findings Of Fact Based upon my observation of the witnesses, their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I make the following findings of fact: In order for Petitioner to obtain a license as a residential contractor in Florida, he is required to successfully complete a certification examination. The examination is prepared by the ACSI National Assessment Institute and administered by the Department of Professional Regulation (DPR). The questions on the exam are prepared from specific reference materials disclosed to the applicants, generally accepted industry procedures and standard field knowledge. Petitioner took the residential contractor's examination administered by DPR in October, 1988. There were three parts to the examination and an applicant was required to pass all three parts in order to be entitled to licensure. Petitioner received the following grades on his exam: Part I - 67.5; Part II - 84.0; Part III - 84.0. While the grades received by the Petitioner on Parts II and III of the exam were passing scores for those sections, Petitioner needed to obtain a grade of at least 69.01 on Part I in order to pass the exam. Petitioner challenges several of the questions on Part I of the exam contending that they were unclear and ambiguous, and that, in any event, he correctly indicated the "closest" answer included for the multiple choice questions. There is conflicting evidence as to the value of each of the challenged questions. At the hearing, Respondent's testing expert testified that each of the questions challenged by Petitioner was worth one point and, therefore, Petitioner would have to succeed in challenging two of the questions in order to obtain a passing grade in excess of 69.01. However, Petitioner challenged this evaluation system as being contrary to the information set forth in the testing materials. According to Petitioner, those materials indicated that each question was worth two points. In the Proposed Recommended Order submitted by counsel for Respondent, it is admitted that each correct question has a grade value of two points. Based upon this admission, the undersigned finds that each of the challenged questions is worth two points. The first question challenged by Petitioner, BA#1, involved the amount of reimbursement that could be expected under a builder's risk insurance policy following an accident on a job site. The question provides the exam taker with a detailed listing of the damage that occurred. The factual predicate for the question sets forth the replacement cost for damage to a temporary job site structure, the amount of damage to construction materials not in place and the amount of damage to a truck which was not covered by vehicular insurance. According to Respondent, the correct answer to the question required the applicant to add those three items together to determine the amount that would be paid under the insurance policy. In selecting his answer, Petitioner did not include the damage to the truck. Petitioner contends that he did not include the damage to the truck in calculating the amount of insurance proceeds that could be expected for two reasons. First, he contends that the owner of the truck was not identified. However, Respondent was able to demonstrate from the approved reference materials that the owner of the truck was not a controlling factor if the truck was located on the project property. Therefore, Petitioner's challenge to the question on this basis has no merit. However, the second reason cited by Petitioner for not including the damage to the truck as part of the expected insurance proceeds has merit. According to the approved reference materials, to be included under the all risk policy, the truck must be categorized as either construction equipment or part of the contractor's tools. As noted above, the contractor was not clearly identified as the owner of the truck so there is no basis for including the truck as part of the contractor's tools. While the reference materials clearly indicate that "construction equipment" is covered under the all risk policy, Petitioner contends that the truck in this question was not sufficiently described to be included in the classification of "construction equipment". In support of his contention that the truck should not be considered "construction equipment," Petitioner cited several portions of the reference materials which state that "construction equipment" does not have a common meaning, but includes the "equipage used for the physical accomplishment of the work." The reference materials do not specifically state that trucks or other vehicles designed for highway use are included within the definition of construction equipment. Indeed, in the portions of the reference materials dealing with construction equipment, only tractors and similar heavy machinery are specifically mentioned. Petitioner also introduced a copy of a builder's risk insurance form used by a local insurance agent which specifically excludes "conveyances designed for highway use." Thus, the only evidence of industry standards indicates that trucks are specifically excluded from builder's risk policies. In sum, based upon the approved reference materials and industry standards, Petitioner was justified in excluding the damage to the truck in arriving at his answer to question BA#1. The second question challenged by Petitioner was BA#6. This question required an applicant to compare estimated costs of construction with actual costs reflected on the job cost ledger. The factual predicate for the question provided for a positive cash inflow achieved from resale of excavation material. According to Respondent, the correct answer to the question should have included this "negative cost" in determining the difference between the estimated cost and the actual cost reflected on the job cost ledger. Petitioner contends that the "negative cost" for spoils disposal should not be included on the cost ledger. While Petitioner concedes that the spoils disposal can result in positive cash inflow, he contends that such a positive inflow should not be reflected as a "cost", but instead should only increase the contractor's profit on the job. The reference materials for the exam do not clearly state that "negative costs" are includable within the job cost ledger. This accounting methodology is not set forth in the reference materials and is merely a book- keeping procedure rather than a construction standard established through field knowledge. Since this book-keeping procedure was not adequately explained in the reference materials and does not qualify as an industry standard, the Petitioner was justified in including only "positive costs" in answering question BA#6. Petitioner also challenges question BA#9. That question states that an insurance company will provide a reduced premium if the insured adopts a safety program. The question also provides the cost associated with the implementation of the safety program. The exam taker is required to choose the answer that reflects the total cost of the insurance program. According to Respondent, the correct answer should include the reduced insurance premium plus the cost associated with implementing the safety program. Petitioner excluded the cost associated with the safety program on the grounds that it was not actually a "cost of insurance." While Petitioner's answer would have been correct if the question asked how much was paid to the insurance company, the question asked for the total net cost incurred by the company for insurance. Thus, the most appropriate response included the cost of the safety program which would necessarily be incurred in order to achieve the lower insurance premium. Petitioner has not sustained his burden of proof with respect to this question. During the hearing, Petitioner also argued that question FA#11, which dealt with interest rates on a construction loan, tested an applicant on a subject matter which was beyond the scope of knowledge an applicant for a residential contractor's license can be expected to have acquired prior to taking the exam. While the question deals with subject matter that is generally available only to the owner of a project, (i.e., the interest payments due on the construction loan), to obtain the correct answer, the applicant needed only to apply simple math procedures involving the calculation of interest. These math procedures are typical skills a contractor will frequently utilize in business. Therefore, the Petitioner has not sustained his burden of proof in challenging this question.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner's October, 1988 examination for residential contractor's license be regraded in order to give him credit for correctly answering questions BA#1 and BA#6 and that Petitioner be deemed to have passed the exam and be qualified for registration as a residential contractor. DONE AND ENTERED this 4th day of August, 1989, in Tallahassee, Leon County, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of August, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-1232 Both of the parties have submitted Proposed Recommended Orders. The Petitioner's Proposed Recommended Order contains a number of paragraphs of mixed findings of fact and conclusions of law which have not been numbered throughout. To the extent that the proposed findings of fact can be isolated, they are addressed below. Petitioner's Proposed Findings of Fact Proposed Finding of Paragraph Number and Recommended Order Fact Number Where Accepted or Reason for Rejection Accepted in Finding of Fact 8. Accepted in part but subordinate to Finding of Fact 10. Accepted in Finding of Fact 11. Accepted in Finding of Fact 11. Accepted in Finding of Fact 11. Rejected as overbroad. However, see Finding of Fact 11 which deals with this issue. Accepted in Finding of Fact 12. Accepted in Finding of Fact 12. Accepted in Finding of Fact 12. Accepted in Finding of Fact 12. Accepted in Finding of Fact 12. The remainder of Petitioner's Proposed Findings of Fact and Recommended Order are deemed by the undersigned to constitute merely summarization of the testimony or legal argument. Respondent's Proposed Findings of Fact Proposed Finding of Paragraph Number and Recommended Order Fact Number Where Accepted or Reason for Rejection Accepted in Findings of Fact 2, 3-5. Accepted in Findings of Fact 6, 8, 10, 12, 14 and 15. However, Petitioner also challenged question FA#11. Accepted (as amended by the correction filed on June 29) in Finding of Fact 7. The first sentence is adopted in the preliminary statement. The second sentence is rejected as subordinate to the Findings of Fact set forth in this Recommended Order. The first sentence is adopted in the preliminary statement. The second sentence is rejected as merely a summary of the testimony. The first sentence is adopted in Findings of Fact 10 and 11. However, The second sentence is rejected as a result of the Correction to Proposed Recommended Order filed by Respondent on June 29, 1989. As to question BA#6, this proposal is rejected as subordinate to the Findings of Fact contained in this Recommended Order. As to question BA#9, this proposal is adopted in Finding of Fact 14. COPIES FURNISHED: Bruce D. Lamb, General Counsel Department of Professional Regulation 1940 North Monroe Street, Ste 60 Tallahassee, Florida 32399-0729 E. Harper Field Deputy General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 James C. Marshall, Esquire 3241 S.W. 104 Ct. Miami, Florida 33165
