Findings Of Fact Respondent is the state agency charged with the duty of regulating general contractors in the State of Florida. An applicant for certification as a general contractor must pass the examination administered by Respondent as a prerequisite to certification. Section 489.113(1), Florida Statutes. Petitioner sat for the certified general contractor's examination on October 14-15, 1988. Petitioner did not pass Part I of the examination. Petitioner scored the highest score one can score on Part I without passing that part of the examination. While Petitioner received a grade of 69 on Part I of the examination, a grade in excess of 69 is required to pass. Had Petitioner been awarded any credit for his answers to the challenged questions, he would have passed Part I of the examination. Petitioner timely challenged the grading of four examination questions contained in Part I of the examination for which he received no credit, to wit: Question 5, Question 26, Question 32, and Question 39. Petitioner's challenges were as to the format of the question or as to the grading of the question. Petitioner abandoned any challenge he may have had to other questions. Each of the challenged questions is an objective, multiple choice question. The candidate is required to choose the correct response from among four possible answers. Prior to taking the examination, Petitioner was told by Respondent that certain approved reference materials were used in formulating the examination questions and that certain reference materials could be used during the examination. Question 5 provided certain information from which the candidate was to determine the correct answer to an accounting problem. The question contained sufficient information to correctly answer the problem. The evidence does not support Petitioner's contention that this question is unfairly tricky. The accounting formula which was necessary to determine the correct answer to the problem was available to Petitioner in the reference material he was permitted to use during the examination. Respondent gave Petitioner no credit for his answer to Question 5 because Petitioner gave the wrong answer to the question. Question 26, required the candidate to correctly answer a question about a reporting requirement of the Occupational Safety and Health Administration (OSHA). The question contained sufficient information to determine the correct response. The basis of Petitioners challenge to this question is that the information needed to answer the question was not contained in the reference material published by OSHA. The information needed to arrive at the correct response is contained in other reference material Petitioner was permitted to use during the examination. Respondent gave Petitioner no credit for his answer to Question 26 because Petitioner gave the wrong answer to the question. Petitioner contends that two of the four responses to Question 32, which involved statements as to partnerships, are correct and that he should be given credit for his response to the question. Petitioner made unwarranted assumptions in arriving at his answer which resulted in his answer being incorrect. The question contained only one correct response. The question provided sufficient information to enable Petitioner to arrive at the correct response through the use of the reference materials that the candidates were permitted to use. Respondent gave Petitioner no credit for his answer to Question 32 because Petitioner gave the wrong answer to the question. Petitioner contends that two of the four responses to Question 39, which involved statements about workers compensation, are correct and that he should be given credit for his response to the question. Petitioner made unwarranted assumptions in arriving at his answer which resulted in his answer being incorrect. The question contained only one correct response. The question provided sufficient information to enable Petitioner to arrive at the correct response through the use of the reference materials that the candidates were permitted to use. Respondent gave Petitioner no credit for his answer to Question 39 because Petitioner gave the wrong answer to the question. None of the candidates who sat for the examination, including Petitioner, was awarded partial credit for an incorrect response.
Recommendation Based on the foregoing bindings of Fact and Conclusions of Law, it is: RECOMMENDED that Respondent, State of Florida, Department of Professional Regulation, enter a final order which finds that Petitioner abandoned his challenges to all questions except Question 5, Question 26, Question 32, and Question 39 and which denies Petitioner's challenges to Question 5, Question 26, Question 32, and Question 39. It is further recommended that the questions filed as exhibits in this proceeding be sealed. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of January, 1990. CLAUDE B. ARRINGTON 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 12th day of January, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-4934 The following rulings are made on the proposed findings of fact submitted on behalf of Respondent. The proposed findings of fact in paragraph 1 are adopted in material part by paragraph 1 of the Recommended Order. The proposed findings of fact in paragraph 2 are adopted in material part by paragraph 1 of the Recommended Order. The proposed findings of fact in paragraph 3 are adopted in material part by paragraph 2 of the Recommended Order. The proposed findings of fact in paragraph 4 are adopted in material part by paragraph 3 of the Recommended Order. The proposed findings of fact in paragraph 5 are adopted in material part by paragraph 4 of the Recommended Order. The proposed findings of fact in paragraph 6 are adopted in material part by paragraph 5 of the Recommended Order. The proposed findings of fact in paragraph 7 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 8 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 9 are adopted in material part by paragraph 5 of the Recommended Order. The proposed finding of fact in paragraph 10 are adopted in material part by paragraph 6 of the Recommended Order. The proposed findings of fact in paragraph 11 are adopted in material part by paragraph 7 of the Recommended Order. The proposed findings of fact in paragraph 12 are adopted in material part by paragraph 8 of the Recommended Order. The proposed findings of fact in paragraph 13 are adopted in material part by paragraph 9 of the Recommended Order. The proposed findings of fact in paragraph 14 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 15 are adopted in material part by paragraph 10 of the Recommended Order. The proposed findings of fact in paragraph 16 are adopted in material part by paragraphs 6-9 of the Recommended Order. COPIES FURNISHED: Dirk Douglas Summerlot, pro se 16146 75th Avenue North Palm Beach Gardens, Florida 33418 Robert G. Harris, Esquire Qualified Representative Department of Professional 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Kenneth D. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 69 Tallahassee, Florida 32399-0792 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 =================================================================
The Issue The basic issue in this case is whether the Petitioner should be given a passing grade on the April, 1987, professional engineering examination. At the hearing the specific issues in dispute were narrowed to whether the Petitioner should be given a higher grade on each of three questions on the examination. At the hearing the Petitioner testified on his own behalf and presented the testimony of two other witnesses. He also offered several documentary exhibits into evidence. The Respondent offered the testimony of one witness and also offered several exhibits. Subsequent to the hearing a transcript of the hearing was filed with the Hearing Officer and the parties were given a reasonable time thereafter within which to file their proposed recommended orders. Both parties filed post-hearing submissions containing proposed findings of fact, conclusions of law, and recommendations. The parties' proposals have been given careful consideration in the preparation of this recommended order. All findings of fact proposed by all parties are addressed 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. The April, 1987, professional engineering examination required an applicant to work four problems in the morning session and four problems in the afternoon session, for a total of eight problems. In order to pass the examination, the applicant had to achieve an average score of six points for all eight problems, or a raw score of forty-eight points. Mr. Schmidt's examination was given a total score of forty points, comprised of scores as follows: 10, 8, 5, 5, 4, 4, 3, and 1. Mr. Schmidt, therefore, needs eight additional raw points in order to receive a passing grade on the examination. An additional requirement is that in order to receive a passing grade on the examination, the applicant must score six points or more on at least five of the eight questions. Mr. Schmidt is challenging three questions on the exam, questions 114, 411 and 418. On question 114, Mr. Schmidt was given a score of four. On question 411, Mr. Schmidt was given a score of five. On question 418, Mr. Schmidt was given a score of three. At the commencement of the hearing, the Respondent stipulated that Mr. Schmidt's score of question 418 should be increased to five. The Item Specific Scoring Plan (ISSP) is a device utilized to standardize graders so that a person grading a specific problem for various different candidates would consistently apply the same score to the same type of deficiency throughout the scoring process. There was an individualized Item Specific Scoring Plan for each problem given on the subject examination. Each of the Item Specific Scoring Plans contains objective criteria for assigning from 0 to 10 points to a candidate's answer to each question. There is no evidence that the Item Specific Scoring Plans are defective or arbitrary and capricious. The percentage of successful candidates on the chemical engineering examination has been rather low on recent examinations. Approximately 15% passed the April, 1986, exam. Only 2.9% passed the October, 1986, exam, and 25% passed the April, 1987, exam. During that same period of time the success rate was generally (but not always) higher for candidates for licensure in other fields of engineering. The grade of four given to Mr. Schmidt's response to question number 114 is consistent with the individualized Item Specific Scoring Plan for that question. The grade of five given to Mr. Schmidt's response to question number 411 is consistent with the individualized Item Specific Scoring Plan for that question. The grade of three given to Mr. Schmidt's response to question number 418 is not consistent with the individualized Item Specific Scoring Plan for that question. The parties have stipulated that Mr. Schmidt's grade on question number 418 should be at least five. The evidence is insufficient to show that Mr. Schmidt is entitled to a higher grade than five on question number 418.
Recommendation Based on all of the foregoing, I recommend that the Board of Professional Engineers issue a final order to the following effect: Increasing Petitioner's score on question 418 from three to five, leaving Petitioner's other scores unchanged, and assigning to Petitioner a final grade of forty-two. DONE AND ORDERED this 11th day of March, 1988, 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 11th day of March, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4175 The following are my specific rulings on all of the proposed findings of fact submitted by the parties. Findings proposed by Petitioner: Petitioner's proposed findings regarding problem number 114 are essentially correct summaries of the testimony as far as they go. Nevertheless, most of them have been omitted as unnecessary subordinate details, particularly in view of the further testimony of Dr. O'Connell to the effect that he had no quarrel with the ISSP for this question and to the testimony of both Dr. O'Connell and Dr. Hanley to the effect that the grade given to Petitioner on this question is consistent with the ISSP. Petitioner's proposed findings regarding problem number 411 have for the most part been rejected as irrelevant on the basis of testimony by both Dr. O'Connell and Dr. Hanley to the effect that the ISSP required evidence of a trial and error solution and that such a solution is not shown in the Petitioner's answer. Petitioner's proposed findings regarding problem number 418 are essentially correct summaries of the testimony as far as they go. Nevertheless, most of them have been omitted as unnecessary subordinate details, in view of additional evidence to the effect that the Petitioner's boxed answer to this question was not a reasonable answer. With regard to the penultimate paragraph of the Petitioner's proposed findings, the first two sentences are essentially correct, but also irrelevant, because the burden of proof is on the Petitioner rather than on `the Respondent. With regard to the remainder of the penultimate paragraph, I have made findings regarding the success rate of chemical engineers, but find that evidence, standing along, insufficient to establish any impropriety in the examination. The final paragraph of the Petitioner's proposed findings is more in the nature of argument than proposed facts. It may well be that the Petitioner received less prehearing information from the Respondent than he was entitled to receive, but those are matters which should be raised before rather than after the hearing, and are matters which are waived if not timely asserted. Findings proposed by Respondent: Paragraph 1: Accepted. Paragraph 2: Accepted. Paragraph 3: Omitted as unnecessary subordinate details. Paragraph 4: Omitted as unnecessary subordinate details. Paragraph 5: The essence of this paragraph has been accepted, but most details have been omitted an unnecessary. Paragraph 6: Accepted. Paragraph 7: Accepted. Paragraph 8: Accepted in substance. Paragraph 9: Accepted. Paragraph 10: Accepted. Paragraph 11: Accepted. Paragraph 12: Omitted as unnecessary subordinate details. COPIES FURNISHED: Mr. Daniel B. Schmidt 2209 Northeast 15th Terrace Gainesville, Florida 32601 H. Reynolds Sampson, Esquire Assistant General Counsel 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 Allen R. Smith, Executive Director Board of Professional Engineers 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The ultimate issue for determination is whether the Department of Environmental Protection should award attorney's fees and costs to G.E.L. Corporation pursuant to Section 120.595, Florida Statutes (2002).
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In February 1989, petitioner, Dennis John Hujar, was an examinee on the certified residential contractor examination The test is prepared under the direction of and administered by respondent, Department of Professional Regulation, Construction Industry Licensing Board (Department or Board). Petitioner later received written advice from the Department that he had made a grade of 68 on the examination. According to agency rules, a score of at least 69.1 is required for passing. Petitioner then filed an appeal of his grade contending that question 19 was ambiguous. That prompted this proceeding. The examination in question was prepared by the National Assessment Institute and contains three specific areas of testing, including business and financial management. The latter section includes questions on business law. Each item or question is drafted by a committee made up of representatives of the Department, Board and construction industry. After being drafted, the question is reviewed by the Department and Board for accuracy and content. However, the business law questions are not reviewed by attorneys prior to their use. Question 19 was a business law question having a value of two points on an examinee's overall score. The parties agree that if Hujar had received two additional points he would have passed the examination. Question 19 was designed to ascertain if the candidate could differentiate between a licensed and unlicensed contractor, the significance of that distinction, and the circumstances under which the recovery of profit and supervisory costs would be allowed. The question contained four possible answers, (a), (b), (c) and (d), one of which was a "good detractor" for the examinees. The correct solution was based on reference material contained in section 2.10 of the Florida Construction Law Manual, a copy of which has been received in evidence as hearing officer exhibit 2. As is pertinent here, that section provided as follows: Where a contractor or subcontractor has no license and enters into a contract, the contract is void for illegality. (citation omitted) The unlicensed contractor is not permitted to recover for lost profit. However, where work has already been done, the courts have allowed recovery on the basis of quantum meruit, but still deny recover of lost profit and cost of supervision. (citation omitted) In a case where the principal of a corporation was licensed as a general contractor for 17 years, but the corporation owned by the principal was not so licensed, a California court held that there was substantial compliance with licensing so as not to deny recovery of sums due. (citation omitted) Any person who is not licensed may not be considered as a lienor and may not have a mechanic's lien. (citation omitted) Because of security and confidentiality constraints, the challenged question cannot be repeated verbatim herein. It is suffice to say that the problem posed a hypothetical situation involving a state licensed general contractor who utilized an out-of-state (or unlicensed) subcontractor for site work on a Florida project. After the subcontractor completed site work of a specified value, the initial draw request was submitted to the owner for reimbursement of that cost and a reasonable profit. A second invoice for site work was then submitted to the Florida contractor but not the owner. At the same time, the owner learned of the subcontractor's unlicensed status and halted work on the project. The question asked the amount of money that the owner would "most likely (be) liable for at the time of the due date for the initial draw." According to the answer sheet received in evidence as hearing officer exhibit 1, the owner was liable for the initial draw request at that time, including allowable overhead, but did not owe for the cost of the second invoice not yet submitted to him by the contractor. This response was consistent with the cited reference material. Through his representative, petitioner claimed that the word "liable" most logically should be construed to mean the amount of money that the owner was ultimately liable to pay on the project although not necessarily at that point in time. Under this theory, the owner would have been responsible for a dollar amount at least equal to the contractors's cost in the initial draw plus the second but not yet submitted invoice for completion of the site work. If such an interpretation of the question was valid, petitioner's answer would have been correct. In this regard, it is noted that although there is no testimony as to the response given by Hujar on this question, it may be reasonably inferred that his answer was the same as that suggested by his representative. Koning contended further that in order to make correct the Board's response, the question should have asked for the owner's liability "at that time", thereby denoting that the ultimate liability was not in issue. It is noted that petitioner's representative is a licensed general, plumbing, roofing and underground utilities contractor and teaches the law manual as a preparatory course for the state examination. Petitioner is a former student. Respondent's consultant, George Bruton, who is a licensed general contractor and assists in the preparation of examination questions, considered the question to be clear and unambiguous. According to Bruton, the question required a student to recognize that 100% of a subcontractor's invoice plus allowable overhead are due and payable in full at the time of the first draw. However, because the owner had not yet been invoiced for the remaining amount of site work, he would not be liable for that amount. Bruton discounted petitioner's suggested answer as being nonresponsive on the grounds the words "ultimate liability" did not appear in the question, and petitioner was assuming a condition not called for in the question. Since the question did not use the words "ultimate liability", and petitioner's interpretation is not the most reasonable one, it is found that the question was not so "substantially misleading and insufficient" as to warrant the invalidation of the question or to justify a different response.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying petitioner's request to receive a passing grade on the examination. DONE and ENTERED this 26th day of October, 1989, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 October, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-4313 Petitioner: 1-2. Used in finding of fact 2. Used in findings of fact 2 and 4. Used in preliminary statement and conclusions of law. Used in preliminary statement and finding of fact 8. Used in finding of fact 7. Rejected since it can be inferred that petitioner's response was choice c. Respondent: Respondent's "summary of facts" has been treated as conclusions of law and therefore specific rulings have not been made. The document attached to the summary of facts is not of record and has accordingly been disregarded. COPIES FURNISHED: Mr. Robert Koning 8301 Joliet Street Hudson, Florida 34667 Mr. Dennis J. Hujar 1511 Brooker Road Brandon, Florida 33511 E. Harper Field, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Kenneth E. Easley, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
Recommendation Based on the foregoing Finding of Fact and Conclusion of Law, it is recommended that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief in this case. RECOMMENDED this 28th day of February, 1990, 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 28th day of February, 1990.
The Issue Whether Petitioner's responses to Question 10 and to Question 19 on the October 1990, general contractor's examination were incorrectly scored.
Findings Of Fact Petitioner sat for the general contractors licensing examination administered by Respondent in October 1990. The overall examination consisted of three parts. Petitioner has passed Parts I and III of the examination, but he failed Part II of the examination. Petitioner received a score of 67 on Part II of the examination while a score of 69.01 is required to pass that part of the examination. Petitioner initially challenged nine questions on Part II of the examination. Prior to hearing, Petitioner abandoned his challenges to all questions except for questions 10, 19, and 20. Evidence as to all three questions was presented by the parties at the formal hearing. In his post- hearing submittal, Petitioner abandoned his challenge to question 20. Consequently, only the challenges to Questions 10 and 19 need to be resolved. Question 10 and Question 19 are each worth four points. If Petitioner is given additional credit worth 2.01 points, he will have passed Part II. The challenged questions are multiple choice questions with only one response being considered by Respondent to be the correct response. For each challenged question, Petitioner selected a response other than the response Respondent considered to be the correct response. For each of the challenged questions, Petitioner received a score of zero. Question 10 requires the candidate to make certain calculations to determine the cost of a change order for a construction project. Petitioner contends that the question is unfair because of the narrow band between the possible answers. Respondent established that the question contained all information necessary to make the required computations. While Petitioner is correct in that some other questions may be less difficult because of the greater margin of error in the calculations required by those less difficult questions, his answer to Question 10 is nevertheless incorrect. Petitioner is entitled to no credit for his incorrect answer to Question 10. Question 19 provides certain information in the stem of the question and pertains to the time constraints on the service of a notice to owner by a subcontractor under the Florida Mechanics Lien Law. From the information provided in the stem of the question, the candidate can determine the date the subcontractor first furnished materials or labor. The stem of the question also informs the candidate of the date on which final payment was made to the contractor in reliance on the final contractor's affidavit. The answer to the question contains four multiple choice dates from which the candidate is to choose his answer. Preceding the answers is the following: "According to the Florida Construction Law Manual, in order to meet the requirements of the Mechanics Lien Law, concerning proper filing of the Notice to Owner, the concrete subcontractor's Notice to Owner must be served to the owner no later than:". The pertinent portions of the Florida Construction Law Manual provide as follows: Notice to the owner must be served on the owner within the earliest of the following time periods: One, before or within 45 days of the first commencement to furnish labor and materials on the job site, or within 45 days of starting to make specialty manufactured materials. Two, before final payment is made in reliance on the final contractor's affidavit. 1/ Petitioner contends that Question 19 is ambiguous because the stem of the question does not identify whether the contract referred to in the stem of the question is between the contractor and the owner or between the contractor and the subcontractor. Petitioner is correct in his contention that the question refers to the date that a contract was signed without identifying whether the contract was that between the owner and the contractor or that between the contractor and the subcontractor. The absence of that information is not fatal because the question enables the candidate to determine the date the subcontractor started work and provides the date of final payment was made to the contractor, which is the information necessary to correctly answer the question. Petitioner also contends that Question 19 is ambiguous because the answer considered by Respondent to be the correct answer is not the last date upon which the notice to owner can be served upon the owner. The correct response to Question 19 from the dates provided as possible answers to the question according to Respondent is the day before final payment was made to the contractor in reliance on the affidavit. The day that the final payment was made was not one of the four possible answers. Petitioner argues in his post- hearing submittal (but not at the formal hearing) that the question is misleading because the notice to owner could have been served on the day of final payment if the notice was served prior to the final payment by the owner. While the date of the final payment may arguably be a better choice than the date preceding the date of final payment, the date of final payment is not one of the choices. Of the choices offered the date preceding the date of final payment is clearly the best possible response. Petitioner's response to Question 19 was based on the statutory provision permitting the subcontractor to perfect service within 45 days of the date the subcontractor first furnished labor or material. The question informed the candidate that final payment to the contractor was made in reliance on a final contractor's affidavit six days prior to the date selected by Petitioner. Petitioner's answer to Question 19 was clearly wrong because a notice to owner from a subcontractor must be served before final payment to the contractor. The question is not misleading or unfair. Petitioner is entitled to no credit for his incorrect response to question 19.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which denies Petitioner's challenges to questions 10 and 19 of the October 1990 general contractor's examination. RECOMMENDED this 10th day of February, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1992.
The Issue The issue for determination is whether Respondent discriminated against Petitioner on the basis of national origin, race, and perceived disability in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact No dispute exists that Mr. Pierre is a male and Black and that his national origin is Haitian. No dispute exists that he is a member of the protected class as it relates to discrimination. No dispute exists that, at all times material hereto, the School Board was an employer as defined by the Florida Civil Rights Act of 1992, as amended. Mr. Pierre began his employment with the School Board in 1996. For nine (9) years, he worked in the Maintenance Department and was promoted three times. His various supervisors rated his work as excellent. At all times material hereto, Mr. Pierre’s co-workers were of various ethnic groups—Haitian, Hispanic, Black/African American, Caucasian, etc. For approximately seven years, Mr. Pierre was under the supervision of Foreman John Bateman. Mr. Bateman considered Mr. Pierre to be a “fabulous” worker and recommended Mr. Pierre for promotion. Subsequent thereto, Mr. Bateman observed a change in Mr. Pierre’s behavior and attitude. Mr. Bateman discussed the changes in Mr. Pierre’s behavior and attitude with his (Mr. Bateman’s) supervisor, James Bass. Such a change in behavior and attitude was exhibited on April 27, 2004. On that date, Mr. Pierre refused to take orders from a temporary leadman, Joe Williams, in the absence of the leadman, Joe Pierrot. Mr. Bass was called to the work-site, and he spoke to Mr. Pierre regarding his refusal to follow the directives of Mr. Williams. After the discussion, Mr. Pierre agreed to follow the directives of Mr. Williams. Mr. Bass memorialized the incident in a memorandum “For the Record” dated the same day. Mr. Bass testified as to the incident and noted, among other things, in the memorandum that Mr. Pierre had become “very disruptive, creating a hostile environment;” that, after the discussion, Mr. Pierre “returned to his duties without incident;” and that Mr. Pierre was “a very hard worker, but he appears to have ‘fits’ at times . . . seems to intimidate his co-workers with his attitude and overly-aggressive behavior . . . has a tendency to accuse his co-workers of not liking him because of his nationality (Haitian).” Mr. Pierre testified that he did not look at the memorandum and refused to sign it; and that he informed Mr. Bass that he (Mr. Pierre) did not have a “fight” with anyone. Another incident occurred on July 9, 2004. Mr. Bass memorialized the incident in a memorandum “For the Record” dated the same day of the incident. A worker, Mike Walters, had placed a bottle of water in a refrigerator over night, and the next day, the bottle of water was missing. As Mr. Pierre was walking past Mr. Walters, he (Mr. Walters) commented that someone had taken his bottle of water. Mr. Pierre immediately took offense, became agitated, and refused to calm down, even after Mr. Walters explained to Mr. Pierre that he was making a general statement, not directed at Mr. Pierre. Only after the leadman, Mr. Pierrot, interceded did Mr. Pierre calm down. Mr. Bass included in the memorandum that Mr. Pierre appeared to believe that “everyone was out to get him”; that Mr. Pierre’s co-workers expressed being fearful of him; that Mr. Pierre was advised that such behavior was not acceptable; and that further such behavior would lead to disciplinary action up to and including termination. Mr. Bass signed the memorandum, but Mr. Pierre refused to sign it. Mr. Pierre testified at hearing that the Mr. Walters accused him of “stealing” the water but that he knew nothing about it. The undersigned finds Mr. Pierre’s testimony credible that he (Mr. Pierre) believed that he was being accused of stealing the water but that he knew nothing about the water being stolen. An inference is drawn and a finding of fact is made that Mr. Pierre became upset because of this belief. Mr. Pierre was counseled regarding his behavior. Mr. Bass and the District Maintenance Manager, Mark Dorsett, decided that a re-assignment might benefit Mr. Pierre and his co-workers. As a result, on July 20, 2004, Mr. Pierre was re- assigned from a team of workers, i.e., a crew, responsible for cleaning air conditioning coils to a crew responsible for preventative maintenance tasks. The re-assignment was memorialized in a memorandum dated July 20, 2004. The memorandum provided, among other things, that Mr. Pierre would be monitored for six months and, if the re-assignment did not improve Mr. Pierre’s relationship with his co-workers, “progressive disciplinary action” would be invoked; and that the re-assignment would hopefully improve the relationships. The memorandum was copied to Mr. Pierre. Approximately three months later, however, on October 20, 2004, another incident occurred. The incident was memorialized in a memorandum “For the Record” dated October 25, 2004. According to the memorandum, Mr. Pierre had an argument with Sammie Riviera, Mr. Pierre’s work-partner, regarding Mr. Pierre’s tools, which “escalated to a verbal altercation.” Also, the memorandum indicated that, when Mr. Pierre returned to work, after the incident, he began accusing his co-workers of taking his missing tools, which he was unable to locate. Further, the memorandum indicated that the foreman, Jose Martell, advised Mr. Pierre that his behavior would have to “cease immediately.” Moreover, the memorandum indicated that Mr. Martell and Mr. Martell’s supervisor, Diane Caulfield, determined that Mr. Pierre would benefit from the School Board’s Employees Assistance Program (EAP). Mr. Martell and Ms. Caulfield signed the memorandum, but Mr. Pierre did not. Mr. Riviera did not testify at hearing. Mr. Pierre testified that, contrary to what others thought that he believed, he did not believe that Mr. Riviera stole his tools. Mr. Pierre testified that Mr. Riviera used his tools and dropped them on the floor; that he (Mr. Pierre) picked-up the tools and placed them in the truck; that Mr. Riviera attempted to talk to him (Mr. Pierre) but that he (Mr. Pierre) refused to talk to Mr. Riviera. In his testimony, Mr. Pierre did not deny that he and Mr. Riviera argued. On October 26, 2004, Ms. Caulfield presented Mr. Pierre with an EAP Referral Form, which stated the reason for the referral as “Anger Management – no one wanting to work with him.” Ms. Caulfield signed the EAP Referral Form, but Mr. Pierre refused to sign it. At hearing, Mr. Pierre testified that he did not recall Ms. Caulfield’s request for him to attend the EAP. The undersigned finds Mr. Pierre’s testimony to be credible, but such finding does not change or affect the undersigned’s finding that Ms. Caulfield requested Mr. Pierre to attend the EAP. Approximately 20 days later, on November 15, 2004, another incident occurred. The incident was memorialized in a memorandum “For the Record” dated November 16, 2004. Mr. Pierre’s work-partner, Mr. Riviera, observed Mr. Pierre handling a device that he (Mr. Pierre) should not have been handling, and Mr. Riviera so advised Mr. Pierre, who became “very agitated” and was “yelling” at Mr. Riviera. Additionally, the memorandum indicated that Mr. Riviera had observed, on occasion, Mr. Pierre mumbling to himself “excessively” and “banging himself against a wall.” Further, Mr. Riviera indicated that such behavior by Mr. Pierre, together with Mr. Pierre’s exhibited temper, caused Mr. Riviera to be “fearful of his personal well-being” while working with Mr. Pierre. Mr. Martell signed the memorandum, but Mr. Pierre did not sign it. Approximately, nine months later, in August 2005, Mr. Pierre visited the Director of Maintenance, Sylvester Davis. Mr. Davis had known Mr. Pierre since Mr. Pierre began working with the School Board and had always encouraged Mr. Pierre to visit him. Mr. Davis observed that Mr. Pierre was upset about something, but Mr. Pierre was unable to explain to Mr. Davis what was happening to him (Mr. Pierre), so Mr. Davis decided to talk to Ms. Caulfield. Mr. Pierre testified that he went to talk to Mr. Davis because he (Mr. Pierre) was not feeling safe at work, believed that he (Mr. Pierre) was being “persecuted,” and believed that Mr. Davis could help. Mr. Davis met with Ms. Caulfield and expressed his concern regarding Mr. Pierre. She explained what had been happening with Mr. Pierre and showed Mr. Davis the memoranda that had accumulated regarding Mr. Pierre’s behavior. Mr. Davis suggested the EAP, and Ms. Caulfield advised him that Mr. Pierre had already been referred to the EAP. After his meeting with Ms. Caulfield, Mr. Davis became concerned regarding the safety of Mr. Pierre and the other workers. Mr. Davis determined that a Fit-For-Duty examination was appropriate. In a memorandum dated September 19, 2005, directed to the School Board’s Special Investigative Unit (SIU), which is within the School Board’s Office of Professional Standards (OPS), Mr. Davis, among other things, provided the SIU with information in order for it to conduct a Fit-For-Duty examination of Mr. Pierre. In the memorandum, Mr. Davis indicated, among other things, that Mr. Pierre’s behavior had gotten progressively worse; that a safety problem had arisen since Mr. Pierre’s work assignments required assistance, but his co-workers were refusing to work with him because of their fear of his reactions; that Mr. Pierre’s co-workers were concerned about him, had respect for him, and viewed him as an excellent worker; and that Mr. Pierre’s co-workers just wanted him to get help. Further, in the memorandum, Mr. Davis requested that a person who could speak Creole be present when the SIU spoke with Mr. Pierre. Moreover, at hearing, Mr. Davis testified that, at no time did he want Mr. Pierre to be terminated, only for him to get the help that he needed to continue to work for the School Board. Mr. Davis viewed the Fit-For-Duty examination as a way to help Mr. Pierre. Mr. Davis’ testimony is found to be credible. The Fit-For-Duty evaluation is a non-disciplinary process wherein the School Board is attempting to help an employee. School Board Policy 4004 provides in pertinent part: RULES Fit for Duty Determination Procedures (emphasis in original) The Executive Director of Professional Standards & Special Investigative Unit (SIU) receives request from a Principal/Administrator (includes District Administrators) or Superintendent/Designee. (Supporting Documents) SIU notifies employee via certified mail that he/she must undergo a physical and/or psychological examination. A reassignment letter is prepared directing employee to remain at home with pay, pending the outcome of the examination. (Letter 1) The affected employee shall select the name of a medical doctor, psychologist or psychiatrist from a list maintained by the Executive Director of Professional Standards & Special Investigative Unit, within 48 hours. (See Attachment to Letter 1) SIU Administrator schedules within ten working days a medical appointment and follows-up in writing to the doctor’s office and to the employee of appointment confirmation. Note: This is a mandatory appointment and failure to attend can result in termination of employment for failure to comply with School Board Policy 4004. (Letters 2 & 3) (emphasis in original) * * * 6. The doctor as delineated in the policy will conduct Pre-evaluation at District expense. Note: a 2nd Opinion will be at the employees expense if requested, with the employee selecting from the School Board approved list as delineated in the policy. (emphasis in original) * * * If employee fails to attend any mandatory appointment with the assigned doctor of the designee assigned to handle the Fitness for Duty Evaluation Case per School Board Policy 4004, then a pre- disciplinary meeting is arranged and employee is notified in writing. (Letter 7) If applicable a recommendation for termination is sent to the School Board of Broward County based on just cause, for insubordination, failure to comply with School Board Policy 4004. (Letter 8) By letter dated September 27, 2005, which was hand- delivered to Mr. Pierre, the Executive Director of OPS, SIU, Joe Melita, notified Mr. Pierre that Mr. Davis had requested a Fit- For-Duty Assessment, pursuant to School Board Policy 4004, and that Mr. Pierre was required to submit to a psychological examination at School Board expense. Mr. Melita provided further in the letter that Mr. Pierre was directed to choose a doctor from a list of doctors, which was attached to the letter, indicating his (Mr. Pierre’s) first and second choice, within two days of receipt of the letter; that the OPS Administrator, Richard Mijon, would schedule the appointment with the physician chosen; and that Mr. Pierre was to not return to work, but remain at home with pay pending the determination of the examination. The letter was addressed to Mr. Pierre at 2450 SW 7th Street, Fort Lauderdale, Florida 33312. An inference is drawn and a finding of fact is made that a perception existed that Mr. Pierre may have been experiencing psychological problems. Additionally, on September 27, 2005, Mr. Mijon met with Mr. Pierre and two of Mr. Pierre’s line supervisors in Mr. Mijon’s office. The line supervisors requested that a Creole-speaking individual also attend to assist Mr. Pierre in communicating only. Mr. Mijon complied with the request and obtained the services of one of his officers, Marc Elias, who was born in Haiti and who spoke Creole, for interpretation purposes only. The aforementioned letter dated September 27, 2005, was hand-delivered to Mr. Pierre at this meeting, and Mr. Mijon reviewed the contents of the letter with Mr. Pierre, who signed the letter and dated his signature (September 27, 2005). The list of physicians attached to the letter included physicians from the counties of Dade [sic], Broward, and Palm Beach. Mr. Pierre testified at hearing that he did not know any of the doctors on the list and, therefore, Mr. Elias circled three of the doctors and marked the order of preference (first, second, and third) for him. Mr. Pierre’s testimony is found to be credible, but also an inference is drawn and a finding is made that the choices were made after consulting with Mr. Pierre. Additionally, on the list, Mr. Pierre provided his contact telephone numbers (home and cell). Mr. Mijon reviewed with Mr. Pierre the choice of doctors, with preferences, and his (Mr. Pierre’s) telephone numbers. Also, Mr. Pierre’s address on the letter dated September 27, 2005, was taken from the School Board’s records. At the meeting, Mr. Pierre did not indicate that his mailing address was incorrect. At the conclusion of the meeting, Mr. Pierre requested that a Creole-speaking doctor perform the Fit-For-Duty examination. Mr. Mijon considered Mr. Pierre’s request reasonable, knew that none of the physicians on list spoke Creole, and indicated to Mr. Pierre that he would hold the list of physicians in abeyance and locate a Creole-speaking doctor through the EAP. On or about October 3, 2005, Mr. Mijon received a list of Creole-speaking psychiatrists and/or psychologists from the EAP. On that same day, Mr. Mijon again obtained the services of Mr. Elias and directed Mr. Elias to contact Mr. Pierre by telephone. Mr. Elias complied and contacted Mr. Pierre by telephone, activating the speakerphone. Mr. Elias participation in the entire telephone conversation was for translation purposes only. Mr. Mijon informed Mr. Pierre that a list of Creole-speaking doctors had been obtained and that Mr. Pierre needed to come to Mr. Mijon’s office on October 5, 2005, to do as he had done previously—choose three doctors, identifying his preferences (one through three), and sign and date the document. Mr. Pierre indicated, during the telephone conversation, that he would not come into Mr. Mijon’s office to do anything, indicating, among other things, that he (Mr. Pierre) was being persecuted. Mr. Mijon informed Mr. Pierre that, if he did not come into his (Mr. Mijon’s) office on October 5, 2005, that he (Mr. Pierre) would be considered to have waived his right to choose from the second list of doctors, and that he (Mr. Mijon) would have no choice but to use the original list chosen by Mr. Pierre, which contained no Creole-speaking doctors, contact Mr. Pierre’s first choice, and schedule an appointment with the first doctor from the original list. On October 5, 2005, Mr. Pierre failed to appear at Mr. Mijon’s office. Mr. Mijon proceeded to schedule an appointment with the doctor from the original list, Laura Hohnecker, Ph.D., who was indicated as Mr. Pierre’s first choice. The appointment was set for October 12, 2005, at Dr. Hohnecker’s office, 1:00 p.m. to 4:30 p.m. On October 6, 2005, Mr. Mijon contacted Mr. Pierre by telephone and again obtained the services of Mr. Elias for translation purposes only. Again, the telephone was placed on speakerphone. Mr. Mijon advised Mr. Pierre that an appointment had been scheduled with Dr. Hohnecker, Mr. Pierre’s first choice from the original list, for the Fit-For-Duty examination, and provided Mr. Pierre with the date, time, address, and telephone number of Dr. Hohnecker. Further, Mr. Mijon informed Mr. Pierre that the appointment was mandatory and that, if he (Mr. Pierre) failed to attend the appointment, disciplinary action may result. In addition to the telephone conversation, Mr. Mijon sent a letter, dated October 6, 2005, by certified and regular U.S. mail to Mr. Pierre, containing the same information that was discussed during the telephone conversation. The letter was addressed to Mr. Pierre at the same address that was used by Mr. Mijon on the letter dated September 27, 2005. The certified letter was returned but not for being unclaimed. Mr. Pierre failed to appear at Dr. Hohnecker’s office on October 12, 2005, for his appointment for a Fit-For-Duty examination. Due to Mr. Pierre’s failure to appear for his appointment, by letter dated October 14, 2005, Mr. Melita directed Mr. Pierre to appear at his (Mr. Melita’s) office on Tuesday, October 25, 2005, at 9:00 a.m. to meet with Mr. Mijon for a pre-disciplinary meeting, indicating that the purpose of the pre-disciplinary meeting was Mr. Pierre’s insubordination/noncompliance with School Board Policy 4004. The letter further indicated, among other things, that Mr. Pierre had failed to attend the mandatory appointment, as directed, with Dr. Hohnecker for his Fit-For-Duty examination. Moreover, the letter advised Mr. Pierre that his failure to attend the meeting on October 25, 2005, would result in his (Mr. Pierre’s) name being forwarded to the School Board for “termination” of employment. The letter was addressed to Mr. Pierre at the same address that was used by Mr. Mijon on the letter dated September 27, 2005, and was sent to Mr. Pierre by certified and regular U.S. mail. The certified letter was returned but not for being unclaimed. Subsequently, by letter dated November 7, 2005, Mr. Melita informed Mr. Pierre that, due to a hurricane, the meeting scheduled for October 25, 2005 was re-scheduled for Monday, November 14, 2005, at 9:00 a.m., restating the purpose for the meeting and the same information contained in the letter dated October 14, 2005. The letter was sent to Mr. Pierre by certified and regular U.S. mail, at the same address that was used by Mr. Mijon on the letter dated September 27, 2005. Mr. Pierre, accompanied by his counsel, attended the meeting on November 14, 2005. Mr. Elias was also present at the meeting for interpretation purposes only. At the meeting, Mr. Pierre denied that he had received a telephone call on October 3, 2005, regarding Mr. Mijon obtaining a list of Creole- speaking doctors for the Fit-For-Duty evaluation and the consequences for him (Mr. Pierre) not attending the meeting scheduled for October 5, 2005, with Mr. Mijon. At hearing, Mr. Pierre also testified that he did not receive the telephone call on October 3, 2005, regarding the meeting on October 5, 2005, and the consequences for his failure to attend. The undersigned does not find Mr. Pierre’s testimony to be credible. The undersigned makes a finding of fact that Mr. Pierre received the telephone call on October 3, 2005, regarding the meeting on October 25, 2005, and the consequences for his failure to attend. Also, at hearing, Mr. Pierre testified that he did not speak on the telephone with Mr. Mijon and Mr. Elias on October 6, 2005, regarding the appointment with Dr. Hohnecker on October 12, 2005, and the consequences for his failure to attend. The undersigned does not find Mr. Pierre’s testimony to be credible. A finding of fact is made that Mr. Pierre received the aforementioned telephone call on October 6, 2005, regarding the appointment with Dr. Hohnecker on October 12, 2005, and the consequences for his failure to attend. At the meeting on November 14, 2005, Mr. Melita determined that Mr. Pierre had presented no justifiable explanation for his (Mr. Pierre’s) failure to attend the appointment with Dr. Hohnecker on October 12, 2005, for the Fit- For-Duty examination. Mr. Melita recommended termination of Mr. Pierre’s employment with the School Board due to insubordination and non-compliance with School Board Policy 4004. By letter dated November 30, 2005, sent by certified and regular U.S. mail, Mr. Melita notified Mr. Pierre, among other things, of the recommendation, the basis for the recommendation, and the date (December 13, 2005) that the recommendation would be submitted to the School Board for approval. Mr. Pierre testified that he did not receive the letter dated November 30, 2005. Regarding Mr. Pierre’s address on the letters from the School Board sent by certified and regular U.S. mail, at hearing, Mr. Pierre testified that, in 2004, he had moved from the address reflected on the letters; that, after he was sent home in September 2005, he was receiving his paychecks from the School Board in the mail at his new 2004 address; and that, around December 2005, he moved to Sarasota, Florida. The evidence demonstrates that the certified letters were returned but fails to demonstrate whether the letters sent by regular U.S. mail were returned or not returned. Furthermore, the evidence demonstrates and Mr. Pierre admits that he and his counsel attended the re-scheduled pre-disciplinary meeting on November 14, 2005, regarding Mr. Pierre’s insubordination/noncompliance with School Board policy 4004, as to Mr. Pierre’s failure to attend the mandatory appointment with Dr. Hohnecker for his Fit-For-Duty examination. Mr. Pierre testified that he and his counsel became aware of the meeting on November 14, 2005, as a result of his counsel contacting Mr. Melita, attempting to discover what issue the School Board had with Mr. Pierre. The undersigned finds Mr. Pierre’s testimony credible regarding his addresses for 2004 and 2005. However, the undersigned further finds that the failure of Mr. Pierre to advise Mr. Mijon of his (Mr. Pierre’s) correct address at the meeting on September 27, 2005 was unreasonable. Mr. Pierre has not been employed since his termination from the School Board. Mr. Pierre has been consistently seeking employment since his termination from the School Board. At the time of the hearing, Mr. Pierre was suffering from hypertension and depression for which is taking medication for both. The evidence fails to demonstrate that Mr. Pierre was suffering from these illnesses or taking medication for them at the time that he was employed with the School Board. The evidence fails to demonstrate that similarly situated employees of the School Board were treated differently or more favorably.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the discrimination complaint of Antoine Daniel Pierre against the Broward County School Board. DONE AND ENTERED this 31st day of July, 2008, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 31st day of July, 2008.
The Issue The issue presented is whether Petitioner should be awarded credit for his response to question numbered 30 of Part III of the October, 1989, certified general contractor examination.
Findings Of Fact Petitioner sat for the certified general contractor examination which was administered on October 21, 1989. After taking that examination, Petitioner had achieved passing scores on two of three parts of the certified general contractor examination. Petitioner was awarded a score of 69 on Part III of the examination, which is one point short of a passing score. Petitioner timely and properly challenged one question, question numbered 30, from Part III of the examination. If awarded credit for his answer to question numbered 30, Petitioner would achieve a passing score and be granted a certificate of licensure. Question numbered 30 is an objective (multiple choice) question pertaining to accounting, which asks the examinee to identify indirect costs from among four possible choices. The examination questions, including question numbered 30 on Part III, were developed by ACSI/NAI, a private organization under contract with the Department of Professional Regulation to develop the examination. ACSI/NAI originally keyed the grading of question numbered 30 so that answer "A" was the only correct response. After the examination was administered, ACSI/NAI determined that two additional answers, "B" and "C," were also correct and advised Respondent to award credit to candidates who chose answers "A," "B," or "C." ACSI/NAI advised that no credit should be awarded for answer "D" as this answer was incorrect. While taking Part III, which is an open book examination, Petitioner realized that choices "A," "B," and "C" were correct answers pursuant to page 94 of the approved reference book. Petitioner believed that only one answer could be correct for each question. Since he knew that three of the four answers were correct as the question was written, Petitioner decided that the question was incorrectly written, mentally deleted the word "not" which appeared in the question thereby making answer "D" the only correct response, and marked answer "D" on his answer sheet. Petitioner was awarded no credit as answer "D" to question numbered 30 as written is not correct. No candidates were awarded credit for choosing answer "D" on question numbered 30. Question numbered 30 is not ambiguous. It is clear in the response it is seeking. Although questions are not drafted to have more than one correct response, question numbered 30 did. Therefore, all examinees choosing one of the correct answers was given credit. Question numbered 30 is adequate for testing a candidate's knowledge in the subject area being tested. Examinees are graded solely according to the answers given on their answer sheets. No partial credit is awarded, and no credit is awarded for examinees' comments written either on official comment forms or in the examinee's test booklet. The Directions on the examination booklet instructed the examinees to mark only one answer per question. The Directions further advised the examinees in boldfaced type: "You will be graded only on the answers recorded on the answer sheet."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's challenge to question numbered 30 on the October, 1989, certified general contractor examination. DONE and ENTERED this 25th day of July, 1990, at Tallahassee, Florida. LINDA M. RIGOT, 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 25th day of July, 1990 APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-1214 Petitioner's proposed findings of fact numbered 1, 2, 4- 7, 9-11, 14-16, 29-31, 37, 40, 41, 44, 48, 51, 53, and 55 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 3, 8, 17, 26, 27, 34, 35, 45, 46, and 54 have been rejected as being irrelevant to the issues under consideration in this cause. Petitioner's proposed findings of fact numbered 12, 13, 18-25, 28, 32, 33, 36, 38, 39, 42, 43, 47, 49, 50, and 52 have been rejected as being unnecessary for determination herein. Respondent's proposed findings of fact numbered 1 and 2 have been rejected as not constituting findings of fact but rather as constituting conclusions of law. Respondent's proposed findings of fact numbered 3-14 have been adopted either verbatim or in substance in this Recommended Order. Copies furnished: Michael J. Kurzman, Esquire LEIBY AND ELDER Penthouse 2 290 Northwest 165 Street Miami, Florida 33169 Robert G. Harris Qualified Representative Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact The Petitioner is Barbara Clark and Company, a CPA firm. Barbara Clark owns and operates the company. The Respondent issued a Request for Proposal, RFP Number 7112, for CPA audit services. The Petitioner responded to the RFP along with four other proposers. The award for RFP Number 7112, CPA audit services, was to be made to the two (2) companies who received the highest number of points based on individual evaluations by four (4) people selected for the RFP review committee. The evaluation criteria to be used by the review committee members was specified in Section 1.16 of the RFP and involved review of the management and technical aspects of a given proposal. The committee members for the RFP were instructed by the FAMU Purchasing Director to use the criteria as outlined in Section 1.16 in the process of evaluating the management and technical plans of the respective proposals and that each member should evaluate and score each proposal independent from the other committee members. The evaluations by each member were placed in a sealed envelope. The proposals submitted in response to RFP Number 7112, CPA audit services, were reviewed by the evaluation committee members. After the members completed their review, they met as a group with the Purchasing Director. The sealed envelopes which contained the individual committee members' evaluation sheets for each proposal were opened and the points for each proposer were determined by adding the points for each respective proposal. The evaluation of RFP Number 7112, CPA audit services, occurred pursuant to the evaluation criteria in RFP Number 7112, CPA audit services. No committee member testified. There was absolutely no evidence submitted by Petitioner which demonstrated that the committee members did not follow the specifications of the RFP. Likewise, there was a lack of evidence that the evaluation process established in the RFP was arbitrary or capricious. The two (2) proposers that received the highest number of points were recommended for the award of RFP Number 7112, CPA audit services. Petitioner's proposal was not evaluated as having either of the highest point totals for RFP Number 7112, CPA audit services and therefore did not receive an award of the contract. The FAMU Purchasing Director, Oscar Martinez, sent to each proposer by certified letter, return receipt, notification of the intended award of RFP Number 7112, CPA audit services, to the two proposers with the highest number of points. The FAMU Purchasing Director, Oscar Martinez, discussed the results of RFP Number 7112, CPA audit services, with Barbara Clark after he mailed the intended award notification to the proposers. A mathematical error in the calculation of points for one of the proposers was discovered and corrected. The error had no effect on the rankings of the proposers and was therefore an immaterial discrepancy in the award of the RFP. Petitioner utterly failed to establish that the intended award pursuant to RFP Number 7112, CPA audit services, was not in good faith and not the result of a fair, full and honest exercise of the agency's discretion in making such an award. Likewise Petitioner utterly failed to establish that Respondent acted arbitrarily or capriciously in its intended award of RFP Number 7112, CPA audit services. After a review of the evidence Petitioner's protest of the intended award of RFP Number 7112, CPA audit services, was clearly without merit and lacked factual or legal support and was therefore frivolous and improper. Indeed the barest attempt was made by Petitioner to prepare or pursue evidence for the hearing in this matter. Although Respondent consulted with Petitioner and provided Petitioner information regarding RFP Number 7112, CPA audit services, Petitioner persisted in pursuing its protest of the intended award of the RFP. Petitioner continued its protest of RFP Number 7112, CPA audit services, long after it was or should have been aware that it had no factual or legal grounds for such a protest causing Respondent's attorney to spend 13 hours in preparation for this case. However, Respondent did not submit an affidavit from another attorney who reviewed the file and number of hours spent by Respondent's attorney and attested to the reasonableness of the hours spent or the fee charged. Therefore, Respondent's motion for attorney's fees is denied.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That the protest be dismissed. DONE and ENTERED this 29th day of May, 1996, in Tallahassee, Leon County, Florida. DIANNE CLEAVINGER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1996. APPENDIX CASE NO. 96-1371 1. The facts contained in paragraphs 1-28 of Respondent's proposed findings of fact are adopted, in substance, in so far as material. COPIES FURNISHED: George W. Butler, Esquire Florida Agricultural and Mechanical University Office of the General Counsel 300 Lee Hall Tallahassee, Florida 32307 Barbara A. Clark Barbara A. Clark and Company 270 First Avenue South, Suite 101 St. Petersburg, Florida 33701 Frank T. Brogan, Commissioner Department of Education The Capitol Tallahassee, Florida 32399-0400 Michael Olenick, Esquire Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Bishop Holifield, Esquire Florida Agricultural and Mechanical University 300 Lee Hall Tallahassee, Florida 32307-3100
Findings Of Fact The Petitioner, James Ilardi, was an unsuccessful candidate for the June, 1989 General Contractor's Construction Examination in the State of Florida. He is an experienced contractor and is licensed in the State of South Carolina. He is the past President of the Charleston Contractor's Association in South Carolina. He has experience with most types of building construction, including office buildings, military facilities, hospitals, factories and other large projects. He served as Chief Executive Officer for a design and construction firm for a period of ten years. The Respondent is an agency of the State of Florida charged with administering the certified general contractor's examination and with regulating the licensure and practice of construction contractors in the State of Florida. The Petitioner sat for the certified general contractor's examination in June, 1989. He has challenged the scoring of his answers to questions 2, 11, 12, 17, 19 and 33 on that examination. During the course of the hearing, he abandoned his challenges to questions 2, 17, 19 and 33. If he were accorded correct answers to either of the remaining challenged questions, numbers 11 or 12, he would have a sufficient score to obtain a passing grade of 70 on that examination. Both questions 11 and 12 used a "critical path network diagram" for use in working out the correct answer to the questions. The Petitioner criticized the diagram as being obscure, difficult to read and containing error. He maintained that it was not supported by the representations found in the reference materials recommended by the Respondent, in its "Instructions to Candidates", as being the material to use to arrive at answers to the questions. The Petitioner contends that the size of the diagram, "the multiple fonts, the difference in the intensity of the print, and the use of symbols all contribute to the obscurity and illegibility of the diagram, itself". In particular, he complains that the symbol listing includes a symbol which he did not find on the diagram. That is, the symbol for "structural steel" and "steel bar joists, which is two straight vertical parallel lines. He also complains that general practice in the construction industry, in his experience, and as indicated in the reference work "Construction Contracting", pages 325-326, one of the references listed for candidates to use in answering these questions, recommends against the use of symbols in lieu of abbreviated notations for description of activities on such a diagram. The main complaint he had concerning the use of symbols, however, was the fact that use of symbols, and having to constantly defer to the symbol legend on the exam materials, was time-consuming and was not generally accepted industry practice or procedure. He contends that the diagram contains error or is obscure and does not conform to the Respondent's recommended reference materials nor to industry standards and. is deficient in format, design and reproductive quality. Thus, he maintains that questions 11 and 12 do not adequately test the knowledge or skills necessary for licensure as a general contractor. The Petitioner acknowledged that the questions at issue had been reviewed twice by the Respondent's examination content specialist and that an "item analysis and review process" by the Respondent's expert resulted in the Respondent maintaining its position that the two questions and supporting materials were valid in fairly testing the knowledge of general contractor licensure candidates. In summary, the Petitioner contends that as to question 11, the symbol for steel bar joists, the two parallel vertical lines, does not appear on the diagram; therefore, he was unable to determine whether his answer was correct or not. As to question number 12, he maintains, in essence, that the use of symbols instead of brief abbreviated descriptions of the activities involved, accompanying the arrows in the diagram which indicate the critical path for the activity in question (paint work), render answering the question confusing and time consuming in having to constantly refer to the symbol legend and look for the symbols. He states that, in his 20 years of construction industry experience, he has not had to use symbols in working with a critical path diagram. The Petitioner did not demonstrate, however, that the use of symbols was incorrect procedure as delineated in the reference materials supplied to the candidates and which they were instructed to use in answering the questions on the examination. The Respondent produced the testimony of Mr. Olson, a Florida certified general contractor, who is also employed with the National Assessment Institute which developed this examination. Mr. Olson, however, did not, himself, have a hand in developing the examination. Mr. Olson did, however, review the Petitioner's challenges to the questions at issue and his responses, reviewed questions 11 and 12, as well as the Respondent's asserted correct answers to those questions and the methodology used in reaching those answers. Mr. Olson established that this was an "open-book" examination and the candidates were informed of and supplied all necessary reference materials to answer these two questions. The only optional consideration was that candidates could have used a calculator to speed up their calculations and were informed that it was permissible to use a calculator. Question 11 required candidates to calculate the total time necessary to install structural steel and steel bar joists in interpreting the activity network represented by the diagram in question. They were asked to calculate whether the installation was ahead of schedule or behind schedule and by how much. Mr. Olson established that the correct response was "C", which is two days behind schedule. Mr. Olson demonstrated that it was quite possible for a candidate to make this calculation and track this in formation on the diagram provided the candidates, through reading the path with the symbols, which alphabetically represent the activity, and which are numerical in representing the time in days. He established that this is very typical of the construction industry, related to the preparation, reading and interpreting of blueprints. A tremendous amount of symbols and legends are typically used in preparing and interpreting blueprints. Mr. Olson established that the pertinent number, 85 days, could be calculated for installation of structural steel and steel bar joists, based upon the information supplied to the candidates. By using the diagram and the information supplied with the question, the candidate can calculate that the actual number of days that were taken for the job was 87 days and therefore, that the project, at that point, was two days behind schedule. Mr. Olson performed this calculation by using the actual diagram the Petitioner used and reference information the Petitioner was given to use in answering the actual examination question at issue. He also established that the two parallel lines representing steel bar joists and structural steel on the diagram, and in the symbol legend supplied with the diagram, were indicated on the diagram supplied to Mr. Ilardi at the examination. Mr. Olson also established that the reference quoted for question number 11 was walkers Building Estimator's Reference Book, which, indeed, listed the type of activity network depicted in the diagram used by candidates for question number 11 and 12. Mr. Olson also established that question number 12 requires a candidate to work through an activity network diagram to find the amount of days necessary from the beginning of a project to the time the painting activity begins. He established that the answer could be obtained without the use of any other reference materials other than the information depicted on the diagram, itself, associated with the question. He established that the only correct answer from that information on the diagram could be "D" or 153 days. The Petitioner did not establish that his answer to question number 12, nor to question number 11 for that matter, was a correct answer and did not establish that there was any misleading quality or ambiguity in the wording of the questions and the associated information which would mislead a candidate into calculating the wrong answers or that there was erroneous information depicted in the reference materials or the diagram which would result in the candidate being misled into giving a wrong answer to questions 11 and 12.. Mr. Ilardi challenged the examination as to the testing environment, as that relates to the ambient light level in the examination room and to the acoustic qualities of the room. He also asserted that the test was not standardized throughout the State and was biased due to age, because of the perceived hearing and vision difficulties which he believed were caused by the acoustics in the examination room and the light available. Other than stating his opinions in this regard, he produced no testimony or evidence concerning these alleged qualities of the testing environment. It was demonstrated by she Respondent that, indeed, the test is standardized throughout the State and is the one given to all candidates in Florida, regardless of the test location.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is therefore RECOMMENDED that a Final Order be entered denying Petitioner's request to receive a passing grade on the certified general contractor's licensure examination. DONE and ENTERED this 4th day of May, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-3784 Petitioner's Proposed Findings of Fact Rejected. The Petitioner was not qualified as an expert witness. Other than that, this finding is accepted. Rejected, as not in accord with the preponderant weight of the evidence. Rejected, as not supported by the preponderant weight of the evidence. 4.A.-4.C. Accepted. 4.D. Rejected, as not in accordance with the preponderant weight of the evidence. Accepted, but not itself materially dispositive. Rejected, as not in accordance with the preponderant weight of the evidence. Rejected, as not in accordance with the preponderant weight of the evidence. Rejected, as not in accordance with the preponderant weight of the evidence and as subordinate to the Hearing Officer's Findings of Fact on this subject matter. Rejected, as not constituting a finding of fact, but rather a quotation from the transcript of the proceedings. Rejected, as not in accordance with the preponderant weight of the evidence and as subordinate to the Hearing Officer's Findings of Fact on this subject matter. Rejected, as immaterial and not probative of the issues of whether the questions were ambiguous or misleading or whether the Petitioner's answers were correct. Rejected, as not in accordance with the preponderant weight of the evidence. Rejected, as not in accordance with the preponderant weight of the evidence. Rejected, as not in accordance with the preponderant weight of the evidence, and as not materially dispositive. 4.1. Rejected, as not materially dispositive. Rejected, as immaterial. Rejected, as immaterial. Accepted, but not a matter of factual dispute and immaterial. Respondent's Findings of Fact 1-10. Accepted. COPIES FURNISHED: Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board P.O. Box 2 Jacksonville, FL 32202 Kenneth D. Easley, Esq. General Counsel Department of Professional Regulation 1940 N. Monroe Street, Ste. 60 Tallahassee, FL 32399-0792 E. Harper Field, Esq. Deputy General Counsel Department of Professional Regulation 1940 N. Monroe Street, Ste. 60 Tallahassee, FL 32399-0792 Mr. James Ilardi P.O. Box 8095 Jacksonville, FL 32239
