Findings Of Fact Petitioner sat for the Alarm System Contractor 1 licensure examination on July 12, 1991. The examination includes questions pertaining to both fire and burglar alarm systems and is considered to be the most difficult of the alarm system examinations. Petitioner received a score of 74 on the licensure examination, but the minimum passing score was 75. There were 100 questions on the examination, and each question was worth one point. Petitioner timely challenged several questions on the examination. At the formal hearing scheduled for this proceeding, Petitioner abandoned all challenges except his challenges to Question 64 and Question 75. Each challenged question is a multiple choice question with four possible answers. The candidates are instructed to select the best answer to the question from the four possible answers. Question 64 requires the candidate to identify the entity that is responsible for responding to "trouble on" a police-connected burglar alarm system. Because the phrase "trouble on" an alarm system is used in the industry to mean that the system is not functioning properly, the question requires the candidate to identify the entity responsible for repairing malfunctions on the alarm system. The parties agree that the installing company is the entity responsible for repairing malfunctions on a police-connected burglar alarm system. While agreeing that the installing company is responsible for repairing malfunctions on the system, Petitioner contends that the best answer to the question is the "police department". A signal generated by a police-connected burglar alarm system is received by a central station. Most systems employ two signals, one to signify an intrusion and the other to signify a malfunction. When a signal is received by the central station, an effort is made to contact the property owner prior to calling the police department. If the property owner cannot be located by telephone, the fact that a signal was received is usually relayed to the police department. Petitioner argues that the police department is the best answer because it is the first of the entities given as possible answers that is contacted after a signal, whether the signal is caused by a malfunction or by an intrusion, is received by the central station. Petitioner's contention that "police department" is the best response to the question is rejected. While a malfunction may be discovered as a result of one or more false signals that are relayed to the police department by the central station, the police department bears no responsibility for correcting malfunctions that occur on the system. The greater weight of the evidence establishes that the best answer to the question is the "installing company". Petitioner failed to give the best answer to Question 64. Consequently, it is concluded that Petitioner was properly awarded no credit for his answer to Question 64. Petitioner's assertion that Question 64 is vague or ambiguous because the stem of the question does not state the type of "trouble" that was on the system is rejected. The phrase "trouble on" an alarm system has a definite meaning in the alarm system industry. The use of this phrase within the context of an examination question is not impermissibly vague or ambiguous. Question 75 asks the candidate which of the following three devices performs essentially the same function in an alarm system: "exit/entry delay relays", "delay loops", and "shunt locks". The four possible answers consist of possible combinations of the three types of devices. Respondent asserts that the best answer to the question is that all three devices perform essentially the same function, to-wit, allowing entry and exit from premises without setting off the alarm. Petitioner asserts that the best answer is the one which offers the combination of "exit/entry delay relays" and "delay loops" since those two devices have a delay feature, which automatically rearms the system after a delay. Shunt locks typically do not have a delay feature (a delay feature can be incorporated into a shunt lock device if the owner desires) and are not widely used in new installations because of advances in technology. A shunt lock is usually rearmed manually, but so are some delay relay devices. All three devices can be disarmed to allow entry and exit and thereafter rearmed. While the rearming is automatic with some of the devices, the greater weight of the evidence established that all three devices performed "essentially the same function" and that, consequently, the answer to the question selected by Respondent is the best answer. Petitioner failed to give the best answer to Question 75. Consequently, it is concluded that Petitioner was properly awarded no credit for his answer to Question 75.
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 64 and 75 of the Alarm System Contractor 1 licensure examination administered July 12, 1991. DONE AND ORDERED this 3rd day of November, 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 3rd day of November, 1992. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-0212 The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. The proposed findings of fact in paragraphs 1, 2, and 4 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 3 are adopted in part by the Recommended Order. The proposed findings of fact in paragraph 3 are rejected in part as being unnecessary to the conclusions reached for the reasons discussed in the findings of fact portion of the Recommended Order. The proposed findings of fact in paragraphs 5 and 6 are adopted in part and are rejected since the greater weight of the evidence, including the expert testimony of Respondent's witness, established that the primary function of all three devices is to disarm the system to permit entry and exit from the premises. The proposed findings of fact in paragraph 7 are rejected as being subordinate to the findings made. The proposed findings of fact submitted on behalf of the Respondent are adopted in material part by the Recommended Order. COPIES FURNISHED: Daniel O'Brien, Executive Director Department of Professional Regulation/Electrical Contractors' Licensing Board 1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792 Vytas J. Urba, Assistant General Counsel Department of Professional Regulation 1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792 Daniel Guerrieri, Esquire 950 South Miami Avenue Miami, Florida 33130
The Issue The issue is whether the Petitioner, Eugene Boatright, is entitled to licensure as an alarm systems contractor by virtue of a passing grade on the January 26, 1989, examination.
Findings Of Fact Eugene Boatright was an unsuccessful candidate for the alarm systems contractor's licensure examination given on January 26, 1989. Mr. Boatright made a score of 74. A score of 75 was required for licensure. Each correct answer had a grade value of one point. Mr. Boatright originally challenged the answers to questions 22, 95 and At the formal hearing he abandoned his challenge to question 22. Question 95 dealt with standards for the installation, maintenance and use of Remote Station Protective signaling devices. The reference was to N.F.P.A. Chapter 72C, Section 1-3.1. Mr. Boatright contended that telephone exchange was a correct answer. DPR contended that telephone exchange was incorrect because all telephone exchanges do not have personnel on duty at all times trained to receive alarm signals. The reference section contains an exception which states: Exception: Where such an agency is unwilling to receive alarm signals, the authority having jurisdiction shall be permitted to accept another location with personnel on duty at all times trained to receive the alarm and immediately transmit it to the fire department. While a telephone exchange may, under the circumstances set forth in the exception, receive alarm signals, telephone exchange is not a correct answer to question 95. The instructions on the examination specifically advised the candidates that they were to use the general rule and were only to use the exception where it was directly indicated in the question. Question 99 invovled the mounting requirements for all installed fire warning equipment. The reference sections asserted by DPR were N.F.P.A. Chapter 75-1.1.2 and 1.1.3 and Chapter 74-4.1. Chapter 75 refers to "Installation." Chapter 74 refers to "Equipment Performance." Question 99 contains three possible answers: All installed household fire warning equipment shall be mounted so as to be supported independently of its attachment wires. so jaring [sic] or vibration will not cause accidental operation. so that the failure of any non- reliable or short-life component, which renders the detector inoperative shall be readily apparent without the need for a test. Mr. Boatright contends that the correct answer does not include part III of the answer. DPR contends that this portion of the answer is correct and refers to Chapter 74 on equipment performance to support its position. Chapter 75-1.1.2 and 1.1.3, in the chapter relating to installation, states: 5-1.1.2 All devices shall be so located and mounted that accidental operation will not be cause by jarring or vibration. 5-1.1.3 All installed household fire warning equipment shall be mounted so as to be supported independently of its attachment to wires. [Emphasis supplied]. Chapter 74-1, in the chapter relating to equipment performance, states: General. The failure of any nonreliable [sic] or short-life component which renders the detector inoperative shall be readily apparent to the occupant of the living unit without the need for test. Chapter 74-1 is only peripherally related to mounting and relates primarily to performance of the equipment. Question 99 is ambiguous and the answer given by Mr. Boatright is a correct answer. Mr. Boatright is entitled to one additional point on his examination and he therefore should have received a passing grade of 75 on the examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Construction Industry Licensing Board, enter a Final Order granting the examination challenge of Eugene Boatright and awarding one additional point to the score achieved by Mr. Boatright on the January 26, 1989, examination. DONE and ENTERED this 12th day of January, 1990, in Tallahassee, Florida. DIANE K. KIESLING 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 89-5207 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Eugene Boatright Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(5); 10(10 & 11); 12(14 & 15); 18(17; and 19(18). Proposed findings of fact 2-6, 8, 11, and 13-17 are subordinate to the facts actually found in this Recommended Order. Proposed finding of fact 7 is unnecessary. Proposed finding of fact 9 is unsupported by the competent, substantial evidence. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Professional Regulation, Construction Industry Licensing Board Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1 & 2); 2(4); and 3(3). Proposed findings of fact 4 and 5 are unnecessary. Proposed findings of fact 6 and 7 are subordinate to the facts actually found in this Recommended Order. COPIES FURNISHED: Alfred C. Scott Attorney at Law 125 North Market Street Jacksonville, FL 32202 E. Harper Field Deputy General Counsel Department of Professional Regulation Northwood Centre Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Kenneth D. Easley General Counsel Department of Professional Regulation Northwood Centre Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32202
The Issue Petitioner, Danny Rhoda, has applied for eligibility to take the competency examination for licensing as a fire protection system Contractor IV. The issue in this proceeding is whether Mr. Rhoda’s application should be approved.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED that the Department of Insurance enter its Final Order denying Danny D. Rhoda’s application for eligibility to take the Contractor IV licensing examination. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 7th day of January, 1997. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 1997. COPIES FURNISHED: Danny D. Rhoda Post Office Box 232 Fruitland Park, Florida 34731 Lisa S. Santucci, Esquire Division of Legal Services 612 Larson Building Tallahassee, Florida 32399-0333 Daniel Y. Sumner, Esquire General Counsel Department of Insurance & Treasurer The Capitol, LL-26 Tallahassee, Florida 32399-0300 Bill Nelson State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-3000
Findings Of Fact Petitioner was an unsuccessful candidate for the January, 1989, alarm systems contractors' I examination (the "examination"). The examination was multiple choice, and a minimum score of 75 was required to pass the examination. After reevaluation, Petitioner received a grade of 74 on the examination. Petitioner challenged question 70 at the formal hearing. Credit for a correct answer to question 70 would result in Petitioner receiving a passing grade on the examination. Question number 70 contained four possible answers. Pursuant to the Candidate Information Booklet, only one answer was correct. The Candidate Information Booklet advised Petitioner that the questions were designed so that a person with "the necessary background knowledge of electrical contracting will find it easy to select the correct answer." Finally, the References for State of Florida Alarm System Contractor I stated that "Some of the questions will be based on field experience and knowledge of trade practices. . ." Question 70 was one of three questions which referred to a single diagram. The diagram contained eight items. Four of those items were labeled and four were not labeled. The labeled items were: a "Battery"; a closed "Contact"; an open "Switch"; and a "Re1ay" The items that were not labeled were: two horizontally parallel lines; a vertical coil; and an open contact.1/ The two questions not challenged by Petitioner referred to the labeled closed "Contact" and the "Battery". The text of question 70 referred to "the relay" (sic). The text of question 70 asked whether "the relay" was: (a) normally open; (b) normally closed; (c) de-energized; or (d) normally open and de- energized. Petitioner selected (c) as the correct answer. Respondent considered (d) to be the correct answer. The uncontroverted evidence established that "the relay" referred to in the text of question 70 was de- energized. The only disputed issue of fact was whether "the relay" referred to in the text of question 70 was normally open. The uncontroverted evidence further established that the essential parts of a relay include a coil, one normally open contact, and one normally closed contact. A contact may be normally open or normally closed depending on the design of the alarm system. The normal state of a contact is its de- energized state. The language in question 70 was misleading and ambiguous based on the evidence in this proceeding. Question 70 asked whether "the relay" was normally open or normally closed, not whether a given contact was normally open or normally closed. The evidence established that a "contact" is either normally open or normally closed. No evidence established that a "relay" may be normally open or normally closed. The diagram was misleading and ambiguous to the extent it applied to question 70. The diagram contained the essential parts of a relay, i.e., a coil, one normally open contact, and one normally closed contact. The coil and labeled closed "Contact" were connected in a circuit with the items shown as the "Battery" and the "Switch". The un-labeled open contact and the item shown as the "Relay" were separated from the coil by approximately 1/4 inch. A determination could not be made as to whether "the relay" referred to in the text of question 70 was de-energized without reference to the item shown as the "Switch" in the diagram. The "Switch" was open but was not connected in the same circuit with the item shown in the diagram as the "Relay". Petitioner correctly assumed that "the relay" referred to in the text of question 70 was de-energized because the "Switch" shown in the diagram was open. Even though not connected in the same circuit with the item shown as the "Relay" in the diagram, the "Switch" was electronically associated with "the relay" referred to in the text of question 70. The uncontroverted evidence established the correctness of this assumption by Petitioner. 2/ Petitioner reasonably assumed that "the relay" referred to in the text of question 70 was comprised of the coil, the un-labeled open contact, and the labeled closed "Contact" in the diagram. Since "the relay" referred to in the text of question 70, like other relays, had to include both a normally closed contact and a normally open contact, it was impossible for Petitioner to decide whether "the relay" referred to in the text of question 70 was either normally open or normally closed. The only certain answer for Petitioner was that "the relay" referred to in the text of question 70 was de-energized. Respondent established that the answer it considered to be the correct answer to question 70 was reasonable. However, Respondent failed to refute the preponderance of evidence that Petitioner's answer to question 70 /3 was also reasonable under the circumstances. Respondent established that the portion of the diagram that included the item shown as the "Relay" was separated from the portion of the diagram that included the items shown as the open "Switch", the "Battery", and closed "Contact". The two portions of the diagram were not physically connected, were not part of the same circuit, and were separated by a space of approximately 1/4 inch in a diagram that was approximately 4 inches long. The two portions of the diagram were referred to by the terms of the examination as a single diagram because the single diagram was to be used in answering questions 68, 69, and 70. It was reasonable for Respondent to assume that when question 70 asked whether "the relay" was normally open or normally closed it was to be interpreted as asking whether "the relay contact" was normally open or normally closed. Respondent attempted to establish the unreasonableness of Petitioner's answer with conflicting evidence. For the purpose of determining whether "the relay" referred to in the text of question 70 was de-energized, Respondent defined "the relay" by reference to the portion of the diagram that was disconnected from the item shown in the diagram as the "Relay". For the purpose of determining whether "the relay" referred to in the text of question 70 was normally open or normally closed, however, Respondent defined "the relay" referred to in the text of question 70 by reference to only that portion of the diagram shown as the "Relay". Respondent admitted during the formal hearing and in its written explanation for the answer to question 70 that "[t]he relay as shown is de- energized because the switch is open." (emphasis added) Thus, Respondent admitted that a determination of whether "the relay" referred to in the text of question 70 was de-energized was to be made by reference to a portion of the diagram that was not physically connected to the item shown in the diagram as the "Relay". However, Respondent's expert witness insisted during direct and cross examination that a determination of whether "the relay" referred to in the text of question 70 was normally open or normally closed was to be made by disregarding that portion of the diagram that included the coil, the "Switch", and the labeled closed "Contact". Nothing in the instructions for questions 68-70 suggested the limited use of the diagram suggested by Respondent for the purpose of determining whether "the relay" referred to in the text of question 70 was normally open or normally closed. Instead, the instructions stated that "the next 3 questions (68- 70) refer to the following diagram." If Respondent intended for question 70 to refer to only that portion of the diagram shown as the "Relay" it would have been reasonable for Respondent to arrange question 70 and the portion of the diagram shown as the "Relay" in separate diagrams. Respondent's written explanation of the answer to question 70 was inconsistent with Respondent's suggested answer to question 70. Question 70 asks whether "the relay" is normally open or normally closed. Respondent's written explanation states that "the relay contacts are normally open." (emphasis added) Later in its written explanation, Respondent stated that "the relay [is] closed" and that "its normally closed contacts [are kept] open against spring pressure...". For the same reasons, Respondent's written explanation of the answer to the question was internally inconsistent. The evidence presented by Respondent was inconsistent with Respondent's written explanation of the suggested answer to question 70. For the purpose of determining whether "the relay" referred to in question 70 was normally open or normally closed, Respondent's expert witness insisted during his testimony that "the relay" excluded that part of the diagram that included the coil. In its written explanation, however, Respondent stated that the "normally closed intrusion contacts are connected to the coil of the sensitive relay." (emphasis added) Further, Respondent's expert repeatedly testified that the labeled closed "Contact" in the diagram could be an intrusion contact but need not be any particular kind of contact. In Respondent's written explanation, however, the closed contacts were specifically identified as "intrusion contacts." The language in question 70 and the diagram used to answer question 70 were misleading and ambiguous. The language in question 70 and the diagram permit more than one reasonable interpretation. Both Petitioner's answer to question 70 and Respondent's answer to question 70 were reasonable under the circumstances.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner's request for a re-grade of his January, 1989, alarm systems contractors I examination be GRANTED; Petitioner be given full credit for question 70; Petitioner be deemed to have passed the examination; and Petitioner be deemed qualified for registration as an alarm system contractor. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 16th day of April 1990. DANIEL MANRY, 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 16th day of April 1990.
The Issue Whether Petitioner meets the criteria to sit for the Alarm Contractor I licensure examination.
Findings Of Fact The Electrical Contractor's Licensing Board is the agency of the State of Florida responsible for licensing alarm system contractors. Section 489.505, Florida Statutes, contains the following definitions pertaining to this proceeding: As used in this part: "Alarm system" means any electrical device or combination of electrical devices used to detect a situation which causes an alarm in the event of a burglary, fire, robbery, medical emergency, or equipment failure. "Alarm system contractor" means a person whose business includes the execution of contracts requiring the ability, experience, science, knowledge, and skill to lay out, fabricate, install, maintain, alter, repair, monitor, inspect, replace, or service alarm systems for compensation, including, but not limited to, all types of alarm systems for all purposes. "Alarm system contractor I" means an alarm system contractor whose business includes all types of alarm systems for all purposes. . . . Petitioner applied to sit for the alarm system contractor I examination pursuant to the provisions of Section 489.511(2)(a)3.c., Florida Statutes, which provides that a person can sit for the licensure examination if that person: c. Has, within the 12 years immediately preceding the filing of the application, at least 6 years of comprehensive training, technical education, or broad experience associated with an electrical or alarm system installation or servicing endeavor; or Rule 61G6-5.003(1)(c)2., Florida Administrative Code, provides, in pertinent part, as follows: Any person desiring to take the certification examination must establish that he or she meets eligibility requirements according to one of the following criteria: * * * (c) Has, within 12 years immediately preceding the filing of the application, at least 6 years of comprehensive training, technical education, or broad experience associated with an electrical or an alarm system installation or servicing endeavor. The experience required must include: * * * 2. For an alarm contractor I, at least 40% of work that is in fire alarm systems. By letter dated June 16, 1998, Respondent denied Petitioner's application on the ground that the application failed to demonstrate compliance with Rule 61G6-5.003(1)(c)2., Florida Administrative Code. At all times pertinent to this proceeding, Petitioner worked full-time for Florida Power and Light in the capacity of a connect and disconnect man. Petitioner described this position as installing electric meters or disconnecting electric meters when there has been an initiation, change, or termination of service. Petitioner's employment with Florida Power and Light does not require him to work directly with any type of alarm system. The application form provided by Respondent required Petitioner to submit a representative list of his experience. He was to provide a detailed description of the work performed, the job location and address, the general contractor's name, and the name and telephone number of the contractor who pulled the permit. Petitioner provided information pertaining to five jobs in his application and at the formal hearing. Petitioner claimed to have worked on the burglar and fire alarm system during the construction of the First Baptist Church of Brownsville, 4600 Northwest 23rd Avenue, Miami, Florida, between March 29, 1997, and February 9, 1998. Petitioner claimed that he designed the fire alarm system and drew the plans for that system on the blueprint that was used for the construction of the building. Petitioner also claimed to have participated in the installation of the fire and burglar alarm systems. Petitioner testified that the alarm system had 99 devices and was a Fire Light 5210 U.D. system. Petitioner testified that he kept a computer generated time ticket for each job. These computer records were not offered into evidence. Petitioner testified that he spent approximately 2300 hours on the job involving the church. 1/ The second job identified by Petitioner was a joint project with West Kendall Electric for the installation of a NAPCO 2600 model fire alarm system in a residence between March and October 1993. Petitioner estimated that he spent approximately twenty hours on this job. The third job identified by Petitioner was the installation of a residential fire alarm system, security system, burglar alarm system, intercom system, television antenna system, and telephone system at a residence located at 199905 Southwest 135th Avenue, Miami, Florida. The dates of the job were between December 19, 1990, and July 15, 1991. The fire and burglar alarm system was a NAPCO 2600 model. Petitioner did not estimate the amount of time he expended on that job. The fourth job identified by Petitioner was the installation of a NAPCO 3000 model system at 14911 Southwest 144th Terrace, Miami, Florida. Petitioner described this system as an industrial fire and burglar alarm panel with automation and approximately 35 sensors. The dates of the job were between January 6, 1995, and October 20, 1996. Petitioner testified that he expended approximately 90 hours on this project, with forty to forty-five percent of the job being devoted to the fire alarm system. The fifth job identified by Petitioner was the installation of a NAPCO 2600 model fire and burglar alarm system at 14460 Southwest 152nd Court, Miami, Florida. This was another joint project with West Kendall Electric. Petitioner estimated that he expended 80 hours on that job with forty to forty-five percent of the job being devoted to the fire alarm system. This job lasted between December 14, 1993, and March 27, 1994. Petitioner testified that he spent 2,358 hours on the five jobs he identified. He also stated that he had devoted 1,414 of those hours to burglar alarm systems, "according to the ratio." 2/ Petitioner testified that he had been a member of the National Fire Protection Association since 1994. There are no standards for admission to that association, other than the payment of a membership fee. Petitioner has attended various fire alarm seminars over the years sponsored either by system manufactures or associations, such as the National Fire Protection Association. He attended a seminar consisting of 16 hours sponsored by the National Fire Protection Association in May of 1994. He attended an alarm installers seminar sponsored by a manufacturer in February 1990 consisting of 24 hours over a three-day period. He attended another seminar sponsored by a manufacturer for eight hours on October 29, 1992. Petitioner attended a fire alarm training seminar on May 19, 1998.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order that denies Petitioner's application to sit for the certification examination. DONE AND ENTERED this 4th day of January, 1999, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (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 4th day of January, 1999.
The Issue Whether Petitioner is entitled to additional credit for his answer to Item 264 on the "Principles and Practice" part of the October 1993 Fire Protection Engineer Examination.
Findings Of Fact Petitioner applied for licensure as a Fire Protection Engineer with Respondent, the state agency responsible for the licensure of Fire Protection Engineers in Florida. Petitioner was required to successfully complete an examination administered by the Respondent to become licensed as a Fire Protection Engineer. Petitioner sat for the licensing examination for Fire Protection Engineer administered by Respondent on October 29 and 30, 1993. A score of 70 is required to pass the "Principles and Practice" part of the licensure examination. Petitioner received a score of 66.30 on that part of the examination, which is a failing grade. Item 264 is a question for which a completely correct answer would have been awarded 10 points. Item 264 contained a diagram of a building and required the applicants to properly space heat or smoke detectors in the building and to justify the type of detection device used in a particular area. Petitioner was awarded a total of four points for his partially correct answer to Item 264. Petitioner would have passed the "Principles and Practice" portion of the examination had he been awarded eight or more points for his answer to Item 264. At Petitioner's request, his response to Item 264 was regraded by the National Council of Examiners for Engineering and Surveying (NCEES), a consulting firm utilized by Respondent to develop and score licensure examinations. When Petitioner's response to the exam was initially scored, he received a score of 4 points. The regrading of the examination did not change that score. The report prepared by NCEES in conjunction with the regrading of Petitioner's answer to Item 264 stated the following 1/ in explaining the score awarded for Petitioner's answer: The examinee did not reference the NFPA 72 A, D, and E standards 2/ to answer the question. The lounge area requires heat detectors rather than smoke detectors. The smoke detectors would be sending false alarms and they would be disconnected to stop the alarms. The heat detectors would be more reliable. The examinee's solution did not show detectors in the corridor, locker room, and boiler room; all of which are required. The examinee's solution did not space the detectors according to NFPA 72. According to the NCEES approved scoring plan, the examinee's solution demonstrates less than minimum competence (score of 4 points). Pursuant to the scoring standards that have been adopted, a score of four represents a borderline unqualified response, which is explained as being: Applicant has failed to demonstrate adequate knowledge in one or more categories. For example, approach may be correct but the solution is unreasonable. Significant constraints may have been overlooked. Solution is unacceptable, but marginally so. Petitioner's answer to Item 264 failed to properly space detectors in his answer, failed to place detectors in the corridor, locker room, and boiler room, and incorrectly placed smoke detectors in the lounge area instead of heat detectors. Petitioner did not establish that the standards used to score the examination were arbitrary, capricious, or devoid of logic. Petitioner did not establish that the application of those scoring standards to Petitioner's response to Item 264 was arbitrary, capricious, or devoid of logic. Item 264 is a reliable and valid test item. Respondent established that Petitioner's response to Item 264 was fairly graded. Petitioner is not entitled to additional credit for his response to Item 264.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a final order that adopts the findings of fact and the conclusions of law contained herein and which DENIES Petitioner's challenge to the scoring of his answer to Item 264 of the October 1993 Fire Protection Engineer Examination. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 10th day of November 1994. 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 November 1994.
The Issue At issue in this proceeding is whether Respondent, Department of Management Services (“DMS"), acted contrary to the agency's governing statutes, rules or policies, or the bid specifications in its proposed decision to award the contract for Invitation to Bid No. MSFM-13002020 (the "ITB") to Intervenor Future Computer Systems, LLC ("FCS").
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of the proceeding, the following findings of fact are made: Jere Lahey, the procurement officer and contract manager for the Jacksonville office of DMS? Division of Real Estate Development and Management, coordinated with Stuart Piccolo, an engineering specialist in the same office, to develop the ITB specifications for the replacement of four existing Edwards fire alarm panels in four buildings at the Mary L. Singleton Regional Service Center in Jacksonville. The panels, which have been installed in the buildings since their construction approximately 20 years ago, have become obsolete for maintenance purposes. Lacking funding to replace the entire fire alarm system, DMS decided to replace the main control panel in each of the four buildings, retrofitting the systems to work with the updated controls. Mr. Lahey testified that he and Mr. Piccolo decided that the specifications should be for a design-build project. The General Scope of work identified in the ITB was as follows: Replace existing Edwards Systems Technology IRC-3 fire alarm panels in four different campus buildings with Edwards Systems Technology EST-3 panels including minor upgrades defined in Design Criteria Documentation. It is understood in the industry that the EST-3 product can only be installed, programmed and operated by a company that is certified by the manufacturer, Edwards. Mr. Lahey identified three EST-certified companies in the Jacksonville area. He testified that DMS relied on Edwards? certification process in the belief that Edwards would not certify a company that lacked the ability to install its products. On September 4, 2013, DMS released the ITB to the three EST certified companies in the Jacksonville area: Jacksonville Sound, FCS, and Milton J. Wood Fire Protection, Inc. (“Wood”).2/ The ITB listed a construction estimate of $100,000.00. Jacksonville Sound and FCS submitted bids on the project. Wood withdrew from the solicitation prior to the bid opening, citing a conflict. DMS opened the bids on October 23, 2013, and found both bids responsive to the criteria set forth in the ITB. The ITB specified that DMS would make a single award to the low bidder. FCS was the low bidder, with a bid of $29,980.00. Jacksonville Sound?s bid was $36,855.00. The ITB provided that “Bids must be submitted in full in accordance with the requirements of the Contract Documents consisting of Technical and Non Technical Design Criteria Specifications.” The referenced Design Criteria Specifications were titled, “Design/Build Bid Scope for Replacement of „Like Kind Equipment?-- Replace Fire Alarm Main Panels in Four Campus Buildings.” The specifications consisted of seven pages of written technical and non-technical specifications, four pages of schematic drawings of the buildings, and one page explaining the criminal background checks required of contractors and their employees. The technical specifications contained 27 paragraphs, of which only one, paragraph 7, is directly at issue in this proceeding. Paragraph 7 provided: Contractors provided with Invitations to Bid have been chosen due to their years in the industry and having a partnered relationship with Edwards Systems Technology. Contractor, upon request, shall provide evidence to support 5 years [sic] experience with performing retrofits with the specific product line as mentioned in the “Summary.” There was no section titled “Summary” in the specifications. However, there was no dispute that the “specific product line” in question was the Edwards EST-3 fire alarm panels that were discussed in the General Scope of work. See Finding of Fact 2, supra. DMS did not request that the bidders provide evidence regarding their experience with performing retrofits with the EST-3 product line. Neither bidder submitted information regarding its experience with performing retrofits with the EST- 3 product line. The issue raised by Jacksonville Sound in its formal written protest is whether the second sentence of paragraph 7 required the contracting entity to have been an EST-certified company for five years at the time of bid submission, or whether it was sufficient for the company to have been EST-certified for fewer than five years provided that the company employees actually performing the work on the project have five years? experience with performing retrofits with the EST-3 product line. EST is a controlled line, meaning that Edwards contracts with specific companies to represent the product as “strategic partners” with Edwards. Strategic partners are fully authorized by the manufacturer to sell, install, program and maintain Edwards? products, including the EST-3 product line. An Edwards strategic partner must have its technicians trained and certified in the different systems manufactured by Edwards. To install an EST system, a technician must be certified in that specific product line. Only certified technicians have the ability, via Edwards? proprietary software, to program the installed EST-3 control panel. It is undisputed that Jacksonville Sound has been an Edwards strategic partner for more than five years. It is also undisputed that FCS was a strategic partner at the time it submitted its bid, but that it had been certified for only three and one-half years. It is further undisputed that FCS currently employs individuals who have the requisite five years? experience performing retrofits with the Edwards EST-3 product line. In fact, one of those employees, Randy Kight, gained the bulk of his EST-3 experience as an employee of Jacksonville Sound before moving to FCS. Jacksonville Sound contends that the second sentence of paragraph 7 requires the company bidding on the project to have five years? experience in retrofitting the EST-3 product line. In order to have such experience, the company would necessarily have to have been an Edwards “strategic partner” for those five years. Under this reading of the ITB, FCS would be considered nonresponsive because it lacks the requisite five years as an Edwards strategic partner. DMS and FCS contend that the second sentence of paragraph 7 is directed at the employees who will actually be working on the EST-3 panels at the job site, and that the length of time a bidder has been a strategic partner is immaterial provided the bidder will be a strategic partner during the life of the contract. To support its contention, Jacksonville Sound observes that paragraph 7 references only the “contractor.” Jacksonville Sound points out that various other provisions of the ITB distinguish between the contractor and “employees,” “subcontractor employees,” “workers,” and “individuals who will be performing the work.” Jacksonville Sound argues that had DMS intended for the second sentence of paragraph 7 to apply to employees rather than the company, it would have made the distinction found in other provisions of the ITB. Mr. Piccolo, the author of the non-technical specifications, testified at the hearing. While conceding that the second sentence of paragraph 7 might have been drafted more clearly, he testified: By that statement, I kind of wanted to ensure that any individual that was working on the job site had the confidence and the knowledge to be able to perform these retrofits just because of — of the Duval County Courthouse, you know. And I hate to use that as an example because it?s a sore thumb for a lot of people. But I wanted to make sure that the job went smooth. And if there were any difficulties or trials or tribulations that we could, you know, step back a second and see that the individual that you placed on the property, how much experience does he actually have dealing with this type of work? He could have come from the security systems side, he could have come from the fire alarm side . . . . * * * Like I say, if there?s an observation that an individual doesn?t portray himself as being competent to perform the duties or the expectations of delivery, then obviously you would step back a second and say: What are the qualifications of this individual? Was he cutting the grass before he came over here? Supporting Mr. Piccolo?s interpretation is the fact that the disputed sentence contains the term, “upon request.” Before sending out the ITB, DMS was already aware of the status of the three selected companies as “strategic partners” of Edwards. This was the key piece of information that permitted a company to submit a bid on the project at all. It was immaterial to DMS whether a company had been a strategic partner for one year, three years, or ten years, because DMS was relying on the certification provided by Edwards that its strategic partners were qualified to install, program and maintain the EST-3 panels regardless of their seniority. “Upon request” indicates that DMS was reserving the right to inquire into the experience of the individuals performing the work on-site, should the need arise. This provision informed the bidders that any employee performing the work is required to have a minimum of five years of experience in retrofitting the EST-3 product line. Jacksonville Sound is unable to point to any material benefit that would accrue to DMS by virtue of its selected vendor having been an Edwards strategic partner for five years or more, as opposed to three and one-half years. The record evidence indicates that all strategic partners have the same rights and duties under their agreements with Edwards, without reference to how long they have been strategic partners. The basis for award of this bid was the lowest price. DMS did not investigate the number of years a company had been a strategic partner of Edwards or the qualifications of the personnel who would perform the on-site work. The ITB?s “upon request” provision anticipates that DMS will deal with any personnel problems as they arise during the winning bidder?s performance of the contract. By submitting their bids in response to the ITB, Jacksonville Sound and FCS made firm commitments to staffing the project in accordance with DMS? requirements. Both bidders represented that they currently employ technicians who meet the standards set forth in the ITB. If that situation changes during contract performance, the winning bidder will be responsible for securing replacement personnel who satisfy the terms of the contract. In any procurement, there is always a remote potential that the winning vendor will breach or default. DMS' contract provides remedies for such defaults. In summary, it is found that the bids of both Jacksonville Sound and FCS met the requirements of the ITB generally, and of paragraph 7 of the ITB?s technical specifications in particular. The reading of paragraph 7 urged by Jacksonville Sound was not unreasonable, but could not be said to add any performance assurances to the contract beyond the given fact that all of the bidders were required to be Edwards-certified strategic partners. DMS? reading of paragraph 7 made practical sense and gave the agency additional assurance that the personnel who work on the project will have at least five years? experience in retrofitting the specified product line.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that the Department of Management Services enter a final order dismissing Jacksonville Sound and Communications, Inc.?s formal written protest and awarding the contract for Invitation to Bid No. MSFM-13002020 to Future Computer Systems, LLC. DONE AND ENTERED this 24th day of February, 2014, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 24th day of February, 2014.
Findings Of Fact On April 17, 1987, petitioner, Gary L. Waldron, filed an application for a certificate of competency with respondent, Department of Insurance and Treasurer (Department). If granted, Waldron would be authorized to take an examination for a certificate of competency as a fire protection system contractor II. After reviewing the application the Department issued a letter on May 5, 1987 advising Waldron that his application had been denied on the ground he lacked the necessary "four years proven experience in the employment of a contractor, or educational equivalent thereto, or a combination thereof." The letter of denial prompted this proceeding. The Department has regulatory jurisdiction over contractors who install fire protection systems. Before engaging in such activities, a person must obtain a certificate of competency from the Department. For regulatory purposes, and depending on the nature of the work, there are four classes of contractors, those being Contractors I, II, III and IV. In this case, Waldron desires certification as a Contractor II. This would authorize him to "lay out, fabricate, install, inspect, alter, repair and service" certain types of fire protection systems, except those that are preengineered. To be eligible for licensure, Waldron must possess "four years proven experience in the employment of a contractor or educational equivalent thereto or a combination thereof." By rule, the agency has provided that such experience may be gained only with a contractor certified as a Contractor I, II, III or IV. This is consistent with its interpretation of the statute as explicated by the chief of the bureau of explosives and fire equipment. Waldron owns a contracting firm, Waldron's, Incorporated, in Fort Lauderdale, and is licensed as a mechanical contractor. Over the last ten years or so, he has installed a number of non-preengineered fire protection systems for various major oil companies at Port Everglades (in Broward County). The Port is one of the largest petroleum storage areas in the Southeast. It is undisputed that the systems installed by Waldron are the types that would ordinarily be installed by a Contractor II. Such systems met the fire safety standards at Port Everglades, which equalled or exceeded relevant state standards adopted by the Department. This was confirmed by the chief of fire and security at Port Everglades and corroborated by petitioner's composite exhibit 1, which documents a variety of jobs completed by Waldron in recent years. In early 1987 Waldron learned that a certificate of competency was required to do the work he had previously been performing. This resulted in Waldron filing his application. Although the application and other evidence of record establish that Waldron has had many years of experience in installing the type of system typically installed by a Contractor II, none was obtained "in the employment of a (licensed) contractor." Further, he does not possess the alternative educational equivalent prescribed by Department rules. Therefore, he is not eligible at this time to take examination for licensure as a Contractor II.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner's application to take the examination for licensure as a Contractor II be DENIED. DONE AND ORDERED this 13th day of October, 1987, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 13th day of October, 1987.
