The Issue May Petitioner be granted credit for Questions 11, 12, and 18 on his February 1989 Certified General Contractor Examination so as to be considered to have successfully passed the examination?
Findings Of Fact Petitioner sat for the certified general contractors' examination on February 18, 1989. Petitioner has passed two parts of the examination, but scored 65 on the part of the examination containing the three challenged questions which serve as the basis for the appeal. The Petitioner requires a score of 69.01 to pass the third part of the examination. Petitioner timely and properly challenged the grading of three examination questions for which he received no credit, to wit: Questions 11, 12, and 18 in Test Booklet GC 421-0749. Petitioner alleged that his answers to Questions 11 and 12, which had been marked incorrect, were equally correct with those selected as correct by Respondent. He also contended that the network drawn in the critical path method which formed the reference point for each of these questions was so illegible, due to labelling of the network diagram, that no ore, including Petitioner, could have been expected to successfully complete it in the timeframe allotted. Additionally, he contended that his answer of "B" to Question 18, amounting to $6642 should be counted correct, the same as Answer A which amounted to $6400 because Petitioner's answer amounted to only a few dollars more than the answer Respondent designated as correct. With regard to the illegibility issue, Petitioner did not object to legibility at any time during the course of the examination itself, nor did he fill out a comment form at the time of turning in his examination or claim to have a defective test booklet at those times. He did, however, later challenge legibility as to the specified questions, and he has been permitted to present evidence of lack of legibility on that basis. Apparently, Petitioner's concern was based on a misunderstanding that certain letter-number configurations in Questions 11 and 12 could be used more than once, when, in fact, each could be used only one time. He did not understand that letters appear always above a line while numbers always appear below a line and that based on the legend, some of his interpretations of component parts of the diagram could not have logically occurred. Petitioner also thought some numbers and/or letters could be repeated and so became confused. As a result, he worked some problems presented by the diagram incorrectly. These interpretations, as opposed to lack of a legible diagram, appear to have accounted for his mistakes. Also, George Bruton, who was qualified as an expert on the requirements of certified general contractors in Florida, was able to correctly answer Questions 11 and 12 without utilizing those symbols the Petitioner stated were illegible. Therefore, it must be concluded that the quality of the diagram did not prevent the Petitioner from correctly answering the questions. Question 18, a multiple choice question, required the Petitioner to estimate the cost of construction for a perimeter fence built with certain materials. The Petitioner utilized materials not included in the question and his perimeter did not accomplish the goal set by the problem. Among other problems, the Petitioner used six corner posts instead of four corner posts. Therefore, he answered the question incorrectly. Under this set of circumstances, Petitioner's dollar amount answer in excess of the correct answer also is clearly incorrect and not subject to "rounding off" simply because it is "close." Questions 11, 12, and 18 are each worth 4 points. Petitioner failed to demonstrate his entitlement to have his score of 65 raised above 65 by 4 (69), 8 (73), or 12 (77) points respectively.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Department of Professional Regulation enter a final order continuing to keep sealed the exhibits herein, finding that Petitioner abandoned his challenges to all questions except Questions 11, 12, and 18 of Test GC 421-0749, denying Petitioner's challenge to the foregoing questions, and denying a raise in the test score therefor. DONE and ENTERED this 22nd day of January, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-4098 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: 1 and 2 are rejected as not supported by the record. 3 is accepted but immaterial to the facts ash found and issue raised herein. Respondent's PFOF: 1 is subordinate and a conclusion of law 2, 3, 4, 5, 6, 7, and 8 are accepted. COPIES FURNISHED: G. W. Harrell, Esquire Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Edward K. Fewox, Jr. 3924 Wormwood Circle Jacksonville, Florida 32210 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Kenneth D. Easley General Counsel Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact 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 =================================================================
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.
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 plumbing contractor must pass the examination administered by Respondent as a prerequisite to certification. Section 489.113(1), Florida Statutes. Petitioner sat for Part I of the plumbing contractor's examination on February 19, 1990. Petitioner did not pass Part I of the examination. Following notification that he had not passed Part I of the examination, Petitioner filed a timely challenge to Question 7. Petitioner scored the highest score one can score on Part I without passing that part of the examination. Had Petitioner been awarded any credit for his answer to Question 7 or if question 7 were thrown out, he would have passed Part I of the examination. Question 7 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. Among those reference materials was Circular E prepared by the Internal Revenue Service. Question 7 provided certain information in the stem of the question and offered four different dates as possible answers to the question. Based on the factual information stated in the stem of the question, the candidate was to determine the latest date a certain tax form must be filed. The information contained in the stem of the question and the information available to all candidates in IRS Circular E were sufficient to enable the candidate to correctly answer the problem. The evidence does not support Petitioner's contention that this question is unfairly deceptive or otherwise defective. Respondent gave Petitioner no credit for his answer to Question 7 because Petitioner gave the wrong answer to the question.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Respondent, State of Florida, Department of Professional Regulation, enter a final order which denies Petitioner's challenge to Question It is further recommended that Respondent's Exhibit 1 be sealed. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of February, 1991. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 1991. APPENDIX TO RECOMMENDED ORDER, IN CASE NO. 90-4407 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 rejected as being unnecessary to the findings made and to the conclusions reached. The proposed findings of fact in paragraphs 2-10 are rejected as being subordinate to the findings made and because Section 455.230, Florida Statutes, discourage such detailed findings about a confidential examination question. Copies furnished: Thomas Tighe 8581 N.W. 3rd Street Pembroke Pines, Florida 33024 Roberta L. Fenner, Esquire Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 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 Did the Respondent, Florida Department of Law Enforcement ("FDLE"), properly follow the criteria for operational assessment? Did FDLE's operational assessment test all the stated criteria in the Request for Proposal ("RFP")? If FDLE's assessment did not test all the stated criteria, must the RFP be reissued? If FDLE should reissue the RFP, must the issue of whether FDLE properly followed the criteria for operational assessment be determined?
Findings Of Fact 1-12. Adopted. Rejected as contrary to best and most credible evidence. Adopted. Rejected as contrary to best and most credible evidence relating to "Benchmarks". Adopted. True but irrelevant. 18-21. Adopted. 22-25. Irrelevant. 26-28. Adopted. 29. Irrelevant. 30-33. Adopted. 34-39. Irrelevant. Adopted. Irrelevant. 42-44. Adopted. Irrelevant. Adopted. 47-48. Irrelevant. 49-61. Adopted. COPIES FURNISHED: James T. Moore, Commissioner Department of Law Enforcement P.O. Box 1489 Tallahassee, FL 32302 Rodney E. Gaddy, Esq. Judith D. Landis, Esq. Department of Law Enforcement P.O. Box 1489 Tallahassee, FL 32302 W. Robert Vezina, Esq. Mary M. Piccard, Esq. CUMMINGS, LAWRENCE & VEZINA, P.A. P.O. Box 589 Tallahassee, FL 32302 Paul J. Martin, Esq. Department of Legal Affairs The Capitol-Suite 1501 Tallahassee, FL 32399-1050 Terrell C. Madigan, Esq. PAPY, WEISSENBORN & PAPY P.O. Box 1761 Tallahassee, FL 32302 Robert S. Cohen, Esq. HABEN, CULPEPPER, ET AL. Box 10095 Tallahassee, FL 32302
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that the award of DEC be rejected and the process return to phase one to relet the bids. DONE AND ENTERED this 1st day of November, 1991, in Tallahassee, Leon County, Florida. STEVEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of November, 1991.
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 passed one part of the examination, but he did not pass the other two parts of the examination. Petitioner timely and properly challenged the grading of two examination questions for which he received no credit, to wit: Question Number PM 10 and Question CA 10. Petitioner abandoned any challenge he may have had to other questions. Question PM 10, a multiple choice question, required Petitioner to apply one of the sections of the Standard Building Code to a factual problem. The question required both a correct construction of the provision and a correct application of the provision. Petitioner misconstrued the provision and therefore missed the problem. Respondent gave Petitioner no credit for his answer to Question PM 10 because Petitioner gave the wrong answer to the question. Question CA 10, also a multiple choice question, required Petitioner to correctly construe the question presented and to respond accordingly. This question involved a change order and the payment therefor. In computing the amount that he would charge the owner, Petitioner included charges for the removal of certain materials that the contractor would have to remove in order to perform his contract. Those costs should be allocated to the contractor, not to the owner. Petitioner misconstrued the question and therefore missed the problem. Respondent gave Petitioner no credit for his answer to Question CA 10 because Petitioner gave the wrong answer to the question.
Recommendation Based on the foregoing Findings 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 PM 10 and Question CA 10 and which denies Petitioner's challenges to Question PM 10 and to Question CA 10. It is further recommended that the two questions filed as exhibits in this proceeding be sealed. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 11th day of August, 1989. 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 11th day of August, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-1859 The proposed findings of fact submitted on behalf of Petitioner are addressed as follows: The proposed findings found in the first full paragraph of Petitioner's proposed recommended order are addressed in paragraphs 1, 2, 3, and 4. The proposed findings found in the second and third full paragraphs of Petitioner's proposed recommended order are addressed, in part, in paragraph 5. The proposed findings are rejected, in part, as being subordinate to the findings made in paragraph 5. The proposed findings found in the fourth full paragraph of Petitioner's proposed recommended order are addressed, in part, in paragraph 7. The proposed findings are rejected, in part, as being subordinate to the findings made in paragraph 7. The proposed findings found in the fifth full paragraph of Petitioner's proposed recommended order are rejected as being recitation of testimony. The proposed findings of fact submitted on behalf of Respondent are addressed as follows: Addressed in paragraph 2 - 3. Addressed in paragraph 4. Addressed in part in paragraph 4. Rejected in part as being unnecessary to the conclusion reached. 4 - 10. Rejected as being recitation of testimony and as being subordinate to the findings made. 11. Rejected as being unnecessary to the conclusion reached. COPIES FURNISHED: George W. Harrell, Esquire Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Charles L. Neustein, Esquire 801 41st Street - 5th Floor Miami Beach, Florida 33140 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 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 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 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 Whether Petitioner is entitled to any credit for his answer to Question 51 of Division G of the June 1989 Board of Architecture examination.
Findings Of Fact In June, 1989, Petitioner sat for the examination given by Respondent to become certified in Florida as an architect. Petitioner received a failing grade on Division G of the examination, the part of the examination that relates to mechanical, plumbing, and electrical systems. Petitioner received no credit for his answer to question 51 of Division G. Had Petitioner received any credit for his response to question 51, he would have passed Division G. Petitioner had previously passed the other portions of the examination and has taken Division G six times. Following notification that he had failed the examination, Petitioner filed a timely challenge to Respondent's grading of Question 51, contending that his answer was correct and that he should have been given credit for his answer. The National Council of Architectural Registration Boards prepares a standardized examination that is used by many states, including Florida, for the testing of candidates for certification as architects. Question 51 of Division G is a question on that standardized examination. Question 51 is an objective question that tests the applicant's knowledge as to the types of fixtures or types of equipment that are required to have their waste outlets equipped with air gaps to prevent contamination due to possible backup of sewage through the waste piping. The candidate is required to select the correct answer from one of four possible answers. Petitioner concedes that the answer Respondent contends is the only correct answer is a correct answer to the question. Petitioner maintains, however, that the question is misleading and that the answer he selected also correctly answers the question. There is only one correct answer to the question. The answer given by Petitioner to question 51 of the examination was not correct because the waste outlet on the fixture selected by Respondent does not have an air gap and is, instead, directly connected to the drainage system. The air gap on the fixture selected by Petitioner as being the correct answer is between the potable water supply and the fixture, which is referred to as being an air gap in the water distribution system. Petitioner's contention that the question is misleading is rejected. There is a difference between an air gap for the water distribution system and an air gap for the waste system. Petitioner's failure to distinguish between the two types of air gaps caused him to incorrectly answer the question. Respondent gave Petitioner no credit for his answer to Question 51 because he failed to select the correct answer to the question.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent, State of Florida, Department of Professional Regulation, enter a final order which denies Petitioner's challenge to Question 51 of Division G of the examination. It is further recommended that the Hearing Officer Exhibit filed in this proceeding be sealed. RECOMMENDED this 14th day of May, 1990, 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 14th day of May, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-0237 The following rulings are made on the proposed findings of fact submitted by Petitioner in his letter filed April 27, 1990. Paragraph 1 of the letter consists solely of argument. Paragraph 2 of the letter is rejected as being contrary to the greater weight of the evidence. Paragraphs 3 and 4 of the letter are rejected as being unnecessary to the conclusions reached. The first sentence of Paragraph 5 of the letter is rejected as being contrary to the conclusions reached. While the subject question may have been a difficult question, the contention that the question was misleading is rejected. Paragraph 5(1) is rejected as being argument and as being, in part, contrary to the position taken by Petitioner at the final hearing. Paragraph 5(2) is rejected as being argument and as being unnecessary to the conclusions reached. Petitioner's argument in Paragraph 5(2) reflects his misreading of the question that was posed to him. The following rulings are made on the proposed findings of fact submitted by Respondent. The proposed findings in paragraphs 1 - 5 are accepted in material part. The proposed findings in paragraphs 6 and 7 are rejected as being subordinate to the findings made. The proposed findings in paragraph 8 are rejected as being subordinate to the findings made. COPIES FURNISHED: Juan A. Montalvan, Jr., pro se 11031 S. W. 40th Terrace Miami, Florida 33165 E. Harper Field, Deputy General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Patricia Ard Executive Director Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
