The Issue The issue presented is whether the Respondent committed the offenses alleged in the Administrative Complaint, and, if so, what penalty should be imposed.
Findings Of Fact At all times material hereto, Respondent, Manuel Cabanas was licensed as an electrical contractor and held license number ER 0006946 issued by Petitioner, the Electrical Contractors' Licensing Board. On or around December 13, 1988, the Construction Trades Qualifying Board of Dade County, Florida (Board) charged Respondent with the misrepresentation of material facts concerning his employment or work status on documents submitted with his application to obtain a business certificate of competency. A hearing on the charge was held before the Board on January 3, 1989. At the hearing, Respondent initially pled not guilty, but changed his plea to no contest sometime after a Board member advised Respondent that his testimony indicated that he was actually guilty of the charge. On January 6, 1989, Respondent was notified by the Board that after hearing all the testimony, a determination had been made that Respondent was guilty of the charge. As discipline for his act, the Board revoked Respondent's certificate of competency.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered suspending Respondent's license number ER 0006946, conditioned upon reinstatement of the local license as long as Respondent intends to practice in the jurisdiction of the Construction Trades Qualifying Board of Dade County, Florida. As to any other jurisdiction, the appropriate penalty is suspension of Respondent's license number ER 0006946 for a period of six months. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of December 1989. JANE C. HAYMAN 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 Administrative Hearings this 21st day of December 1989.
The Issue The issue presented for decision herein is whether or not the Petitioner successfully completed the answers posed on the April, 1987 professional engineer's examination.
Findings Of Fact Petitioner took the April, 1987 professional engineering examination and was advised that he failed the principles and practice portion of the examine. His raw score was 45 points and the parties stipulated that he needed a minimum raw score of 48 points to pass the examination. In his request for hearing, Petitioner challenged questions 120, 123 and 420. However, during the hearing, he only presented testimony and challenged question 420. Question 420 is worth 10 points and is set forth in its entirety in Petitioner's Exhibit Number 1. For reasons of test security, the exhibit has been sealed. Question 420 requires the examinee to explore the area regarding "braced excavations" and explores the principles involved in such excavations. Question 420 requires the examinee to calculate the safety factor for a braced excavation including the depth of excavation which would cause failure by "bottom heaving". Petitioner, in calculating the safety factor, made a mathematical error when he incorporated the B-prime value calculation which was inserted into the equation in making his calculations. Question 420 does not direct the applicant to apply the calculations to either a square excavation or to a rectangular excavation. Petitioner assumed the shape of the excavation to be square and calculated the factor of safety according to that assumption. In assuming the square excavation, Petitioner did not make the more conservative calculation that will be required in making the safety factor calculation for a rectangular excavation. In this regard, an examination of Petitioner's work sheet indicates that he referenced the correct calculation on his work sheet but the calculation was not transferred to or utilized in the equation. Respondent utilizes the standard scoring plan outline, which is more commonly known as the Items Specific Scoring Plan (ISSP) which is used by the scorers in grading the exam. The ISSP provides a scoring breakdown for each question so that certain uniform criteria are met by all applicants. For example, four points are given for a correct solution on a specific question regardless of the scorer. This criteria is supplied by the person or persons who prepared the exam. The criteria indicates "in problem-specific terms, the types of deficiencies that would lead to scoring at each of the eleven (0-10) points on the scale". The ISSP awards six points on question 420 when the applicants meets the following standards: "all categories satisfied, applicant demonstrate minimally adequate knowledge in all relevant aspect of the item." ISSP awards seven points on question 420 when the applicant's answer meets the following standard: "all categories satisfied, obtains solution, but chooses less than optimum approach. Solution is awkward but reasonable". The ISSP awards eight points on question 420 when the applicant's answer meets the following standards: "all categories satisfied. Errors attributable to misread tables or calculating devices. Errors would be corrected by routine checking. Results reasonable, though not correct". The ISSP awards nine points on question 420 when the applicant's answer meets the following standard: "all categories satisfied, correct solution but excessively conservative in choice of working values; or presentation lacking in completeness of equations, diagrams, orderly steps in solution, etc." The ISSP criteria for awarding nine points as to question 420 clearly requires that the Petitioner calculate the correct solution without mathematical errors. The Petitioner's answer was not correct regardless of the assumption as to the shape of the excavation since he made a mathematical error. The ISSP criteria for awarding eight points as to question 420 allows Petitioner to calculate the answer with mathematical errors with the requirements that the results are reasonable. Petitioner made a mathematical error although his result was reasonable. His answer fits the criteria for the award of eight points in conformity with the ISSP criteria. Petitioner received six points for his answer to question 420 whereas he is entitled to an award of eight points.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Respondent enter a Final Order determining that Petitioner failed the principles and practice portion of the April, 1987 engineering examination. RECOMMENDED this 30th day of June 1988, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1988. COPIES FURNISHED: Glen E. Wichinsky, Esquire 900 Glades Road, 5th Floor Boca Raton, Florida 33431 Michael A. Mone', Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Allen R. Smith, Jr. Executive Director Department of Professional Regulation, Board of Professional Engineers 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations that the Respondent has violated Section 489.129(1)(d) and (m), Florida Statutes. At the hearing in this case, the Petitioner presented the testimony of two witnesses and offered three exhibits, all of which were received in evidence. The Respondent testified on his own behalf, presented the testimony of one other witness, and offered three exhibits, all of which were received in evidence. At the conclusion of the hearing the parties were granted twenty days from the date of the filing of the transcript within which to file their proposed recommended orders. The transcript was filed on October 12, 1987, which made the proposed recommended orders due on November 2, 1987. On November 2, 1987, the Petitioner filed a proposed recommended order. On November 3, 1987, the attorney for the Respondent advised the Hearing Officer by telephone that his proposed recommended order would be late, but that it would be filed within the next day or two. As of the date of this recommended order, the Respondent has not filed a proposed recommended order or any other posthearing document. My specific rulings on the findings of fact proposed by the Petitioner are contained in the Appendix which is attached to and incorporated into this recommended order.
Findings Of Fact Based on the stipulations and admissions of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at hearing, I make the following findings of fact. Findings based on admissions Petitioner is the State agency charged with regulating the practice of contracting, pursuant to Section 20.30 and Chapter 455, Florida Statutes. At all times relevant hereto, Respondent was licensed by the Construction Industry Licensing Board as a registered general contractor. At all times relevant hereto, Respondent had been issued by said Board, and held, license number RG-S013131. Respondent's address of record is in Jacksonville, Florida. Respondent did, through the contracting business Respondent was then associated with and responsible for in his capacity as a licensed contractor, contract with Marcel R. Poirier, hereinafter referred to as the "Customer," to perform certain contracting work for the Customer. The details of the contracted work were generally as follows: Contract entered into on or about: 1-86 Contracted price: $10,655 Job located in: Jacksonville, Florida Job generally consisted of: remodeling a house Respondent's said contracting business thereafter began said job. In prior case number 74096, the probable cause panel of the State Construction Board, found that there was probable cause to believe that Respondent had committed a disciplinary violation of Chapter 489, and Respondent was sent a letter of guidance on or about 12-12-87 (sic). Findings based on the evidence adduced at the hearing The Building Code of the City of Jacksonville contains the following relevant provisions: 320.502 Inspection Request. It shall be the responsibility of the holder of a permit to make a request to the Building and Zoning Inspection Division for the mandatory inspections required by s. 320.504. . . . 320.504 Mandatory inspections. No work shall be done on any part of a building or structure or a plumbing, electrical or mechanical installation beyond the point indicated in this section for each successive inspection until the inspection has been made and the work included therein has been approved by the Building Official. It shall be unlawful to lath, seal or otherwise conceal or cover work for which an inspection is required until it has been inspected and approved by the Building Official. With respect to construction inspections: (4) frame inspection shall be made at each floor level and after all framing, fire blocking, furring and bracing are in place and plumbing and electrical work are roughed in. With respect to electrical inspections: rough inspection shall be made after all rough electrical construction which will be concealed by other construction has been completed and all plumbing, piping and other systems are installed. . . . final inspection shall be made after all electrical construction has been completed. . . . Section 320.504 of the Building Code of the City of Jacksonville contains requirements for mandatory "final" inspections of the electrical, plumbing, and mechanical aspects of a construction project, but it does not provide for a mandatory "final" inspection of the structural construction following the several mandatory inspections at progressive stages of the structural construction. Respondent's contract with the Customer was to build a shelled-in addition to the Customer's residence. Respondent's contract did not include any electrical or plumbing work and did not include covering the interior side of the framing. When Respondent finished all of his work under the contract the framing was still open and visible for inspection and the rough electrical construction had not been started. After Respondent finished all of his work under the contract, the Customer planned to do the electrical construction and to then close in the interior walls. Pursuant to Section 320.504(a)(4) of the Building Code of the City of Jacksonville, the electrical work should be roughed in before calling for the frame inspection. The Respondent did not think he was required to request a frame inspection because when he finished all of the work under his contract, the structure was not ready for a frame inspection inasmuch as the electrical work (a responsibility of the Customer) had not been roughed in. Neither the Respondent not anyone on his behalf requested a frame inspection. Respondent completed all work on the subject contract and received his final payment on April 15, 1986. Shortly before that date, the Customer had called a building inspector for a consultation regarding the construction project and, as a result of that consultation, the building inspector suggested that a portion of the roof construction be modified. The Customer communicated this suggestion to the Respondent and the suggested modification was made. The Respondent's foreman believed, albeit erroneously, that the consultation which resulted in the suggestion that a portion of the roof construction be modified was the frame inspection. The foreman's erroneous belief was based in part on the fact that at the time of the consultation, all of the framing was finished and all of the framing was still open and available for inspection.
Recommendation Based on all of the foregoing, I recommend the entry of a Final Order dismissing all charges against the Respondent. DONE AND ENTERED this 30th day of November, 1987, 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 30th day of November, 1987. APPENDIX TO RECOMMENDED ORDER The following are my specific rulings on each of the findings of fact proposed by the parties. Findings proposed by Petitioner: Paragraphs 1, 2, 3, 4, 5, and 6: Accepted. Paragraphs 7 and 8: Accepted in substance, but with additional findings in the interest of clarity and accuracy. Findings proposed by Respondent: (None) COPIES FURNISHED: G. VINCENT SOTO, ESQUIRE DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 WILLIAM T. LASSITER, ESQUIRE 720 NORTH OCEAN STREET JACKSONVILLE, FLORIDA 32202 MR. TOM GALLAGHER, SECRETARY DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 WILLIAM O'NEIL, ESQUIRE GENERAL COUNSEL DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 MR. FRED SEELY, EXECUTIVE DIRECTOR CONSTRUCTION INDUSTRY LICENSING BOARD POST OFFICE BOX 2 JACKSONVILLE, FLORIDA 32201
The Issue May Petitioner be granted credit for Questions 11, 12, and 18 on his February 1989 Certified General Contractor Examination so as to be considered to have successfully passed the examination?
Findings Of Fact Petitioner sat for the certified general contractors' examination on February 18, 1989. Petitioner has passed two parts of the examination, but scored 65 on the part of the examination containing the three challenged questions which serve as the basis for the appeal. The Petitioner requires a score of 69.01 to pass the third part of the examination. Petitioner timely and properly challenged the grading of three examination questions for which he received no credit, to wit: Questions 11, 12, and 18 in Test Booklet GC 421-0749. Petitioner alleged that his answers to Questions 11 and 12, which had been marked incorrect, were equally correct with those selected as correct by Respondent. He also contended that the network drawn in the critical path method which formed the reference point for each of these questions was so illegible, due to labelling of the network diagram, that no ore, including Petitioner, could have been expected to successfully complete it in the timeframe allotted. Additionally, he contended that his answer of "B" to Question 18, amounting to $6642 should be counted correct, the same as Answer A which amounted to $6400 because Petitioner's answer amounted to only a few dollars more than the answer Respondent designated as correct. With regard to the illegibility issue, Petitioner did not object to legibility at any time during the course of the examination itself, nor did he fill out a comment form at the time of turning in his examination or claim to have a defective test booklet at those times. He did, however, later challenge legibility as to the specified questions, and he has been permitted to present evidence of lack of legibility on that basis. Apparently, Petitioner's concern was based on a misunderstanding that certain letter-number configurations in Questions 11 and 12 could be used more than once, when, in fact, each could be used only one time. He did not understand that letters appear always above a line while numbers always appear below a line and that based on the legend, some of his interpretations of component parts of the diagram could not have logically occurred. Petitioner also thought some numbers and/or letters could be repeated and so became confused. As a result, he worked some problems presented by the diagram incorrectly. These interpretations, as opposed to lack of a legible diagram, appear to have accounted for his mistakes. Also, George Bruton, who was qualified as an expert on the requirements of certified general contractors in Florida, was able to correctly answer Questions 11 and 12 without utilizing those symbols the Petitioner stated were illegible. Therefore, it must be concluded that the quality of the diagram did not prevent the Petitioner from correctly answering the questions. Question 18, a multiple choice question, required the Petitioner to estimate the cost of construction for a perimeter fence built with certain materials. The Petitioner utilized materials not included in the question and his perimeter did not accomplish the goal set by the problem. Among other problems, the Petitioner used six corner posts instead of four corner posts. Therefore, he answered the question incorrectly. Under this set of circumstances, Petitioner's dollar amount answer in excess of the correct answer also is clearly incorrect and not subject to "rounding off" simply because it is "close." Questions 11, 12, and 18 are each worth 4 points. Petitioner failed to demonstrate his entitlement to have his score of 65 raised above 65 by 4 (69), 8 (73), or 12 (77) points respectively.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Department of Professional Regulation enter a final order continuing to keep sealed the exhibits herein, finding that Petitioner abandoned his challenges to all questions except Questions 11, 12, and 18 of Test GC 421-0749, denying Petitioner's challenge to the foregoing questions, and denying a raise in the test score therefor. DONE and ENTERED this 22nd day of January, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-4098 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: 1 and 2 are rejected as not supported by the record. 3 is accepted but immaterial to the facts ash found and issue raised herein. Respondent's PFOF: 1 is subordinate and a conclusion of law 2, 3, 4, 5, 6, 7, and 8 are accepted. COPIES FURNISHED: G. W. Harrell, Esquire Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Edward K. Fewox, Jr. 3924 Wormwood Circle Jacksonville, Florida 32210 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Kenneth D. Easley General Counsel Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792
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
