Findings Of Fact Based on the stipulations and admissions of the parties, the exhibits received in evidence, and the testimony of the witnesses at the hearing in this case, I make the following findings of fact. Findings based on stipulations and admissions of the parties The Petitioners, John Eugene Harden and Dova Cauthen, qualified for and were administered the January 1982 Electrical Contractors' Licensing Examination. After their examinations were graded and regraded, Petitioners were notified that they had not received a "Passing" score of 75 or more. The Petitioners, John Eugene Harden and Dova Cauthen, qualified for and were administered the July 1982 Electrical Contractors' Licensing Examination. After their examinations were graded and regraded, Petitioners were notified that they had not received a "Passing" score of 75 or more. Both Petitioners reside in Dade County, Florida. The Respondent Department of Professional Regulation (hereafter DPR or the "Department") is an agency of the State of Florida. The Respondent Electrical Contractors' Licensing Board (hereafter referred to as the "Board") is an agency of the State of Florida statutorily responsible, along with DPR, for licensing certified electrical contractors. The Office of the Executive Director of the Board is located at 130 North Monroe Street, Tallahassee, Florida. The business address of Petitioner Harden is Harden Electric, 311 N.E. 8th Street, Homestead, Florida 33030. The business address of Petitioner Cauthen is 959 N.E. 79th Street, Miami, Florida 33138. 8. On March 20, 1981, Rules 21GG-6.01 (2), 21GG-6.01 (3), 21GG-6.01 (4), of the Rules of the Electrical Contractors' Licensing Board, were amended. Rule 21GG-6.01 (2) altered the format of the licensing examination so that the formerly entirely open book examination became a part open book, part closed book examination. Rule 21GG-6.01 (4) raised the passing grade on the licensing examination from 70 to 75. Rule 21GG-6.01 (3) altered the technical format. On December 3, 1981, Susan Tully, counsel to the Electrical Contractors' Licensing Board, caused a change to be made in Rule 21GG-6.01 (1) (c) of the Rules of the Electrical Contractors' Licensing Board. This change was made without formal notice or informal notice to the public and without a vote of the Electrical Contractors' Licensing Board, although the change was discussed at a Board meeting. None of the procedures set forth in Section 120.54 of the Florida Statutes were followed in amending this Rule. Liz Cloud was the Bureau Chief of the Division of Elections, Bureau of Administrative Code, Department of State. The address of the Bureau is Room 1802, The Capitol Building, Tallahassee, Florida. The change in Rule 21GG-6.01 (1)(c) eliminated parts 72 A, B, C and D and indicated that the entire Fire Safety Code (and not just the aforementioned parts) would be a subject of the Electrical Contractors' Licensing Examinations. In fact, the reason for the alleged "technical change" was that the Board intended and tested examinees in the January and July 1982 Licensing Examinations on materials in parts of the Fire Safety Code in addition to those contained in 72 A, B, C and D of the Fire Safety Code. Petitioner Harden specifically requested to review his January and July 1982 Electrical Contractors' Licensing Examinations. On March 25, 1982, Petitioner Harden went to Tallahassee, Florida to review his January 1982 Licensing Examination papers, but although he requested an "examination review" he was never provided with his own examination booklet or a copy thereof. During this alleged "examination review" Mr. Harden wrote written objections to the January 1982 examination on the forms provided to him based on the master copy of the examination provided to him. On August 31, 1982, Petitioner Harden went to Tallahassee, Florida to review his July 1982 Licensing Examination papers, but although he requested an "examination review" he was never provided with his own examination booklet or a copy thereof. During this alleged "examination review" Mr. Harden wrote written objections to the July 1982 examination on the forms provided to him based on the master copy of the examination provided to him. Petitioner Cauthen specifically requested an "examination review" with respect to her January and July 1982 Licensing Examination papers. On March 17, 1982, Petitioner Cauthen went to Tallahassee, Florida to review her January 1982 Licensing Exami-nation papers, but although she requested an "examination review" she was never provided with her own examination booklet or a copy thereof. During this alleged "examination review" Ms. Cauthen wrote written objections to the January 1982 examination on the forms provided to her based on the master copy of the examination provided to her. On August, 19, 1982 Petitioner Cauthen went to Tallahassee, Florida to review her July 1982 Licensing Examination papers, but although she requested an "examination review" she was never provided with her own examination booklet or a copy thereof. During this alleged "examination review" Ms. Cauthen wrote written objections to the July 1982 examination on the forms provided to her based on the master copy of the examination provided to her. Petitioners Harden and Cauthen sought Board review of their January and July 1982 Electrical Contractors' Licensing Examinations. Petitioners were advised in July 1983 that no copies of their actual booklets exist; Petitioners were advised in October 1983 that their actual booklets were shredded. At the November 8, 1982, meeting of the Board, Ms. Ida Cameron representing DPR, presented to the Board a package of information (assembled in package form) for the Board to consider during the examination review. With regard to Question Number 71 on the afternoon portion of the July 1982 Licensing Examination, two of the four possible responses, "A" and "C" were credited. Candidates like Petitioner Cauthen who answered "B" received no credit for the question. Petitioners Harden and Cauthen have requested Chapter 120.57 hearings with respect to their January and July 1982 licensing examinations and the review, grading and agency action with respect to same. Although request for production was specifically made for said packages of information with respect to the January 1982 and July 1982 licensing examinations in February, 1983, no packages have been produced to date. DPR destroyed the Petitioners' examination booklets before the end of the two year period immediately following each of the 1982 examinations. That Section 455.217 of the Florida Statutes requires the Board "by rule" to designate areas of competency to be covered by each licensing examination. That Section 455.217 states that the Board shall "by rule specify the general areas of competency to be covered by each examination, the relative weight to be assigned in grading each area tested, and the score necessary to achieve a passing grade." That the amendment of Rule 21GG-6.01 (2) required candidates to commit to memory portions of the electrical code, accounting, law, worker's compensation rules, federal employer's tax guide, A1A General Conditions, business practices; legal and insurance requirements. In the July 1982 Electrical Contractors' Licensing Examination candidates were given one hour more time in which to take the examination than was given during the January 1982 examination. Rule 21GG-6.01 (4) was amended in conjunction with Rules 21GG-6.01 (1)(a), (2) and (3) at a board hearing in March, 1981. Rule 21GG-6.01 (4) raised the passing score on the January 1982 Electrical Contractors' Examination and the July 1982 Electrical Contractors' Examination from 70 to 75. The amendment to Rule 21GG-6.01 (4) required that electrical contractors pass the certification examination with a score of 75 percent, whereas all other construction industry licensing board contractors licensed by the Department of Professional Regulation (13 other categories) were merely required to achieve a 70 percent pass score. That Section 455.217 of the Florida Statutes provides that "The board shall make rules providing for reexamination of any applicants who have failed the examination." That DPR did not and has never provided Petitioners, their attorneys or agents with their own examination booklets for the January and July 1982 Electrical Contractors' Licensing Examinations. DPR has provided Petitioners only with copies of "master" examinations for their review. That Section 455.217 of the Florida Statutes provides that the Board shall make available an examination review procedure for applicants. That the Respondents produced Notice of Destruction of Examination Booklets and Other Examination Materials dated April 14, 1982, which allegedly evidences destruction of Petitioners' examination booklets for the January 7, 1982, Examination on April 14, 1982. That the Respondents produced Notice of Destruction of Examination Booklets and Other Examination Materials dated October 15, 1982, which allegedly evidences destruction of Petitioners' examination booklets for the July 13, 1982, Examination on October 15, 1982. The findings in paragraphs 1 through 33, immediately above, are based directly on the stipulations of the parties, most of which stipulations were memorialized at the beginning of the hearing. The findings in the following paragraphs are based primarily on testimony and exhibits, but some of them are also based in whole or in part on stipulations. In the findings which follow there are certain to be at least some repetitious findings in the course of putting matters into context and making additional findings which are related to some of the stipulated findings. I have tried to avoid all unnecessary repetition, but a certain amount is necessary for clarity and a certain amount is unavoidable due to the sheer size of the task at hand. Findings on background matters and on matters relating to more than one rule Both of the Petitioners in this rule challenge proceeding are individuals who have applied to the Electrical Contractors' Licensing Board for licensure as certified electrical contractors. Both of them have been approved to sit for the licensure examination. Petitioner Harden took the Board's licensure examination on each of the following occasions: July 1981, January 1982, July 1982, and January 1983. The Board has not given him a passing grade on any of those' four examinations. Petitioner Cauthen took the Board's licensure examination on two occasions: January 1982 and July 1982. The Board has not given her a passing grade on either of those two examinations. The grade notifications received by these Petitioners show, inter alia, that Petitioner Cauthen received a grade of 73 on the July 1982 examination. Both of these Petitioners have presently pending formal proceedings under Section 120.57(1), Florida Statutes, in which they are challenging various matters related to the preparation of, administration of, scoring of, and inherent validity of the Board's January 1982 and July 1982 licensure examinations. The Electrical Contractors' Licensing Board certification examination is different from a master electrician examination. However, the two examinations are in many ways similar because of the overlap in the nature of the subject matter to be tested on both examinations. The passing score or cut score on the local master electrician examination administered by Dade County is 70 percent. Most of the questions on that examination are about the National Electric Code. Part of the Dade County master electrician exam is closed book. Prior to 1972, persons wishing to engage in electrical contracting in the state of Florida were required to be licensed by the local governments in the areas in which they sought to operate. Since 1972, persons wishing to engage in electrical contracting in the state of Florida must be licensed by a unit of local government or by the Electrical Contractors' Licensing Board. Persons who are licensed by the Electrical Contractors' Licensing Board are known as certified electrical contractors. A certified electrical contractor can engage in electrical contracting anywhere in the state of Florida without local licensure. Persons who are licensed by one or more local governments (typically a municipality or a county) are known as registered electrical contractors. Registered electrical con-tractors are licensed to engage in electrical contracting only in the geographic areas encompassed by the boundaries of the local government entities that issued their local licenses. There is, however, a certain amount of reciprocity from one local government to another. Certification as a state certified electrical contractor does not authorize the electrical contractor to work as an electrician, although a certified electrical contractor can pull permits. A person does not have to be a licensed electrician in order to become a state certified electrical contractor, although many electrical contractors are also licensed as journeyman or master electricians. Candidates for the electrical contractor licensure examination have a great $ variety in the nature and scope of their background and experience. This variety in background and experience is among the reasons which cause testing for minimum competence as an electrical contractor not to be an exact science. As between certification and registration, certification by the Electrical Contractors' Licensing Board is not a major factor in the ability to compete for business. A person who has a statewide certification can save some money by avoiding the expense of obtaining local competency cards, but as a general rule a registered electrical contractor can work just about anywhere in the state due to reciprocity. Especially, a person who has passed a Block master electrician examination or a Block local electrical contractor's examination can work just about anywhere in the state because most counties in Florida accept the Block examination. Registered electrical contractors regularly compete for business with certified electrical contractors. For example, Petitioner Cauthen's company is presently licensed in Monroe, Dade, and Broward counties, where it does a considerable amount of business. Petitioner Cauthen's company bids on lots of contracts and submits bids in competition with both registered and certified electrical contractors. Thus, the company is already in competition with certified electrical contractors. Similarly Board Member Isaacs, whose certified company does 90 percent of its work in Duval County, has regular competition from registered electrical contractors. Board Member Isaacs competes with approximately 250 electrical contractors. Of that 250, approximately 175 are registered and the others are certified. A much bigger factor in competition than the registration versus certification issue is the cost of doing business in more than one area or the cost of doing business at a location that is distant from one's primary base of operations. Only about fifty electrical contracting firms regularly compete for business over the entire state of Florida. Accordingly, a restriction on the number of persons licensed by the Board as certified electrical contractors would have minimal, if any, limitation on the competition faced by those members of the Board who are certified electrical contractors. The Electrical Contractors' Licensing Board admin-istered its own certification licensure examination from 1972 through 1980. During that period of time the Board administered the examination a total of twenty-two times. During those twenty-two sessions of Board administered examinations, a total of 824 candidates sat for the examination, of which 392 were successful. Although the percentage of candidates who were successful on a particular Board administered examination ranged from a low of 20.7 percent to a high of 78.8 percent, the average passing rate of all candidates on all twenty- two of the Board administered examinations was 47.57 percent. (By way of comparison, it is interesting to note that the percentage of candidates who are successful on the Block master electrician examination is between 30 percent and 35 percent of those who take the examination.) Further, on fifteen of the twenty-two occasions on which the Board administered the examination, the percentage of candidates who were successful was 50 percent or less. In 1979, the regulation of professions and occupations was reorganized. The Department of Professional Regulation (the Department) was created as an umbrella agency over numerous boards, including the Electrical Contractors' Licensing Board and the Construction Industry Licensing Board. The responsibility for examining applicants, which in the case of the Electrical Contractors' Licensing Board had been handled by the Board members themselves, was taken over by the Office of Examination Services (O.E.S.). Toward the end of 1980 and the beginning of 1981, O.E.S. did not like what the Board was doing and the Board did not like what O.E.S. was doing. There was a general lack of trust between the two entities, there was poor communication between the two entities, and the relationship between them at that time might best be described as estranged. Although both entities made efforts at cooperation with the other, such efforts were not always effective or well received. As a result of the poor communication between the two entities, certain personal concerns over Board actions by individuals within the O.E.S. were never communicated to the Board (and therefore could not be answered. 4/ The first examination administered by the O.E.S. was in January 1981. Of the fifty candidates who took the January 1981 examination, forty-six were successful. This was a passing rate of 92 percent. In view of the Board's experience when it was administering its own examination, the Board was understandably surprised and concerned when the percentage of candidates passing the first O.E.S. administered examination was almost twice the average passing percentage on the Board administered examinations. The Board had no evidence that the overall qualifications or capabilities of the applicants examined by O.E.S. at the January 1981 examination were any higher than the capabilities of those examined previously. To the contrary, a review of their qualifications based on the information in their applications indicated that their qualifications were substantially the same as those of previous candidates tested by the Board. Also, the admission standards for the January 1981 examination were the same as those for prior examinations. The Board concerns about the O.E.S. administered January 1981 examination included the following matters, among others, memorialized at a Board meeting discussing the examinations: The candidates had been allowed to take any reference material desired into the exami- nation. Previously the Board had allowed only reference books listed as part of the application form. There was a very high pass rate in compar- ison to all past examinations. There appeared to be too few calculation questions. The questions had been placed on the paper in sequence with the reference book materials. There was a possibility that notes were taken into the examination which would have given advantage to the candidates. The Board's Examination Committee had been under the assumption that the entire examination would be presented for review of the questions. Instead the only questions presented were ones questionable under Department criteria for measuring competency. It was explained, from past experience, that persons conducting the seminars for exams had obtained the entire exam content from persons taking the examination in the past. It had been done with a camera which was taken into the examination. The Board, when administer- ing the examination, had been very strict on what was used in performing the examination. In the last exam the security was very poor. The Board felt there were so few calculation questions on the O.E.S. administered examination in January of 1981 that the examination was not a proper or sufficient examination. This was due at least in part to the fact that O.E.S. had difficulty covering all areas of the examination with the desired number of questions because the O.E.S. bank of questions was very limited at that time. Previous Board examinations were open book with certain reference material allowed. When the Office of Examination Services took over the administration of the January 1981 exams, it sent to the candidates a form letter adapted from the Construction Industry Licensing Board. This form letter instructed the candidates that they would be able to bring into the examination any notes and other materials desired. This was contrary to the past practice of the Board and contrary to the Board's wishes. The Board was very frustrated and concerned about the circumstances which led up to the January 1981 examination because the O.E.S. had refused to allow the Board to have any input into the examination and the Board thought the O.E.S. had come up with an apprentice level examination. In the Board's opinion, the January 1981 examination prepared by O.E.S. clearly tested at a level less than that of minimum competency. And, although O.E.S. did not agree with the Board that the January examination was invalid, O.E.S. did agree that the examination was a lot easier than they had thought it would be. The Electrical Contractors' Licensing Board did not conduct any formal studies or formal analysis prior to making the 1981 amendments to Rule 21GG-6.01 changing the format of the examination and the cut score. However, the Board's Rules Committee did a great deal of work on the matter and the matter was discussed extensively at Board meetings. In this regard it is important to keep in mind that the Board members (with the exception of the two lay members) were all experienced practicing electrical contractors who were familiar with the requirements of day-to-day electrical contracting. The Board's decision to change part of the examination to closed book was due to a concern that people with no electrical knowledge could become licensed if the examination was all open book and had a low percentage of technical questions. The Board felt that more than half of the examination should be technical questions. The closed book National Electrical Code questions were for the purpose of testing what a person with experience in the field of electrical contracting should know about everyday matters. The primary, if not the sole, motivation for the Board's 1981 amendments to Rule 21GG-6.01 was the Board's concern about the quality of the O.E.S. administered examination and the Board's feeling that, due to its estranged relationship with O.E.S., the only vehicle through which it could effectively influence the quality of future examinations was through rule- making. Those amendments were not motivated by any desire on the part of the Board to restrict competition in the field of electrical contracting. During the past few years the job requirements of an electrical contractor have remained substantially the same. Block and Associates (hereinafter "Block") is a company based in Gainesville, Florida, that writes licensure examinations for contractors in various trades. Block writes such examinations for cities, counties, and states. Block has prepared electrical contracting licensure examinations for the states of Florida, Georgia, and Oklahoma, as well as for St. Johns County, Florida. Block prepares licensure examinations for just about anything that involves electricity, including such things as electrical contracting, electrical journeyman, electrical-master, low voltage, elevator, burglar alarm and fire alarm Block prepares master electrician examinations for over one hundred governmental entities. The Block electrical master exams and the Block electrical contractor exams use some of the same questions. Subsequent to the 1982 examinations which form the gravamen of these Petitioners' related proceedings under Section 120.57, Florida Statutes, the ECLB has contracted with Block and Associates to prepare the Board's certification licensure examination. The Board has never said anything to Block about wanting to achieve any particular passing rate or wanting to have any particular percentage of the candidates taking the examination achieve a passing score. The Board has never interfered with Block's autonomy in the preparation of the electrical contractor exam. All of Block's electrical contractor examinations include business questions. It is important to test for business skills because an electrical contractor who gets into business trouble may start cutting corners and cutting corners is a hazard to the public. Some of Block's electrical contractor examinations also have specific sections on safety. Block always does a post-administration statistical analysis of the examinations questions it uses. The reason for this is to find out if anything is wrong with the questions; in other words, to determine whether the questions are valid. The computer program used by Block to check the validity of its tests was prepared for Block by a professor in the College of Education at the University of Florida. Block uses a computer to conduct a validity analysis of each test it administers. Findings regarding Rule 21GG- 6.01(1)(c) of the Electrical Contractors' Licensing Board Rule 21GG-6.01(1)(c) of the Electrical Contractors' Licensing Board reads as follows (with the portion challenged by the Petitioners underscored): The areas of competency to be covered by the certification examination shall be as follows: (a) *** (c) Safety, which shall include but not be limited to, OSHA regulations, life safety codes, and the Fire Safety Code (NFPA). Prior to the December 1981 amendment which is challenged here, Rule 2100-6.01(1)(c) read as follows: The areas of competency to be covered by the certification examination shall be as follows: (a) *** (c) Safety, which shall include but not be limited to, OSHA regulations, life safety codes, and the fire safety code (NFPA 72A, B, C and D). The Board's purpose in amending the rule to delete the reference to "72A, B, C and D" was to make it clear to candidates for examination that the Board' intended to include in the safety portion of its examinations questions from portions of Volume Seven of the NFPA other than Chapters 72 A, B, C, and D of that volume. Volume Seven of the NFPA contains quite a bit of material in addition to the material included in Chapters 72 A, B, C, and D of that volume. In view of the modifying phrase "shall include but not be limited to," the amendment to delete the reference to Chapters 72 A, B, C and D was not a necessary prerequisite to the use of examination questions based on other portions of Volume Seven of the NFPA. The Board could ask the same examination questions before and after the amendment. Several weeks before each examination, the Department of Professional Regulation sent all candidates for examination, including these Petitioners, a notice to appear for the examination. The notice to appear included a list of reference books on which the examination was to be based. That list of reference books contained a specific reference to Volume Seven of the NFPA. All sixteen volumes which comprise the entire NFPA were not listed as reference books. Neither of these Petitioners demonstrated that he or she was genuinely confused or misdirected by the amendment to Rule 21GG-6.01(1)(c). Neither Petitioner contended he or she had studied all sixteen volumes of the NFPA. Instead, both Petitioners studied from the books on the reference list. Neither Petitioner has an application for the examination pending; neither claims an intention to take the examination again. Findings regarding Rule 21GG- 6.01(1), (2), (3), and (4) of the Electrical Contractors' Licensing Board At the time of the examinations which are the subject of these Petitioners' related cases under Section 120.57, Florida Statutes, Rule 21GG- 6.01(1), (2), (3), and (4) of the Electrical Contractors' Licensing Board read as follows, in pertinent part: The areas of competency to be covered by the certification examination shall be as follows: Technical, which shall include, but not be limited to, electrical calculations, estimating, designs, and electrical schematics; and which shall be divided into two (2) separate areas, one containing electrical calculations, the other containing Code-related questions not requiring calculations. General business, which shall include but not be limited to, problems relating to accounting, law, insurance, workers' compen- sation and social security; The format of the examination shall be as follows: The portions of the examination con- taining the electrical calculations and $ safety questions shall be open book. The applicant is responsible for bringing and may.. use during these portions the applicable code books, reference materials as approved by the Board, and noiseless mechanical or non- mechanical instruments he wishes to use. The portions of the examination con- taining the noncalculation technical questions and all business questions shall be closed-book. The applicant will not be permitted to use the reference materials listed in 2(a) or any other reference materials. Security measures as set forth by the Department shall be followed during both portions of the examination. The relative grading weight to be assigned to each area of competency shall be approximately as follows: Technical - 60 percent Electrical Calculations-40 percent of Test Code-related questions-20 percent of Test General business - 30 percent Safety - 10 percent An applicant shall be required to achieve a score of a general average of not less than seventy-five percent (75 percent) in order to pass the examination and be certified for licensure. There shall not be a practical or clinical examination. The language quoted above is the language of the relevant portions of the rule as it read after the March 1981 amendments to the rule. The principal amendments in March of 1981 may be summarized as follows: (1) changes which divided technical questions on the examination into two separate areas, (2) changes which made part of the examination open book and part closed book [it was previously all open book, and (3) a change in the minimum passing score from 70 percent to 75 percent. These Petitioners challenge the validity of all three of the principal amendments. As originally proposed, the March 1981 amendments to subsection (2)(a) of Rule 21GG-6.01 would have permitted a candidate to bring "any notes" to the open book portion of the examination. During the adoption process the words "and any notes" were deleted from the amendment by the Board. The words "and any notes" did not appear in Rule 21GG-6.01 prior to the 1981 amendments. Nor was it the practice of the Board prior to 1981 to permit candidates for examination to take any notes into the examination when it was administered by the Board. Findings regarding examination content and relative grading weights In November of 1983 the Electrical Contractors' Licensing Board again amended Rule 21GG-6.01(3) to change the relative grading weights of the areas of competency to be tested. After November of 1983 the relative grading weights of the areas of competency were as follows: Technical increased from 60 percent to 65 percent; electrical calculations increased from 40 percent to 45 percent; code related questions remained 20 percent of the examination; general business was decreased from 30 percent to 25 percent of the examination; and safety remained 10 percent of the examination. 5/ The licensing examination given by the Board has historically contained materials testing knowledge of electrical work and also materials testing the business qualifications of the applicants. Since the inception of the Board's licensing exam, the electrical work portions have contained electrical calculations. Throughout the time the Board has been administering licensure examinations for certification, the percentages of the examination devoted to particular subject areas have been based upon the Board's belief as to the appropriate levels of knowledge needed by a certified electrical contractor. The weighting of the examination was equitable when it was weighted 60 percent technical, 30 percent business, and 10 percent safety, and it is still equitable now that it is weighted 65 percent technical, 25 percent business, and 10 percent safety. The Board changed to the current percentages at the suggestion of Block and Associates. The Board's examination has had similar ratios for a long time, at least as far back as 1971. The proportions of the examination devoted to each particular subject matter did not change due to the March 1981 amendments. With the exception of the January 1981 examination put together by O.E.S., electrical calculations had historically been 40 percent of the test. Since the Board felt this percentage should be maintained, and since it was necessary to divide those calculations from the other portion of the technical section (since one would be tested in the closed book portion and the other in the open book portion), the division of the technical part of the exam was set out in the rule. On an electrical contractor licensure examination it is appropriate to include in the area of "technical" questions, questions dealing with the following subjects: electrical calculations, parts of estimating, and designs and electrical schematics. In the "business" portion of an electrical contractor examination, it is appropriate to include questions dealing with the following: accounting, worker compensation, and social security. Findings regarding closed book versus open book examinations Local licensing examinations had, in 1981, included a closed book portion. Local licensing examinations and state licensing examinations given in other states still include such a closed book portion. The basic Block examination has always included a closed book portion. Closed book examinations are not all that unusual in occupational and professional licensure testing. The CPA an Nursing examinations are closed book. Also, virtually all of the electrical examinations administered by Block and Associates include a closed book portion. The advantage of a closed book examination technique is that it is easier to identify the candidates who have had practical experience in the subject matter being tested. A closed book examination is a better test for field experience and for general knowledge of the subject matter being tested. Certain questions known as "anchor" questions was given both in the open book examination before the format change and in the closed book section after the format changed. The relative performance by candidates on the same questions in the two formats shows the format change not to have prejudiced the candidates. Further, an examination analysis of the results of the closed book portions of the ECLB examinations reveals that, based on candidate performance, the closed book portion of the examinations was easier than the open book portion. This also shows that the format change did not prejudice the candidates. Findings regarding "cut scores" From 1972 until the rule changes in 1981, the minimum passing score, or "cut score," set by the Board for the certification licensure examination was 70 percent. Cut scores of both 70 percent and 75 percent are very common cut scores for licensure examinations in the fields of electrical contracting, journeyman electrician, and master electrician, as well as licensure examinations in other occupations and professions. Many local licensure examinations have a 75 percent cut score. Standing alone, the cut score to be applied to a future examination is somewhat lacking in specific significance. A cut score must be considered in relation to the content of the examination to which it is to be applied. All of the testing experts who testified at the hearing agreed that setting an examination cub score is an inherently arbitrary decision. In the final analysis it is a judgment call that cannot be made with scientific exactitude and is unavoidably arbitrary to a certain extent. As explained by one of the Petitioners' testing experts, even though statistical methodology is available for the determination of cut scores, to a large extent the cut score is a random decision, the validity of which can be assessed only in relationship to the specific testing instrument to which it is applied. For example, during the course of Block's preparation of its first licensure examination in 1958 for the City of Ormond Beach, when it came time to decide what cut score to use, the five experts who were preparing the examination talked it over and decided that 75 percent was the equivalent' of a good. "C" when compared to academic grades, and they decided to use 75 percent as their cut score. It is not possible to be much more scientific or precise than that in setting cut scores, especially when one has a group of candidates of varied experience and background taking the examination. A skilled test preparer can construct an examination of equal validity within a range of cut scores from 65 percent to 80 percent if the test preparer knows at the time of constructing the examination what the cut score will be. With any cut score in that range, a skilled test preparer can raise or lower the percentage of candidates who will actually pass the examination by careful selection of the questions to be used on the examination. By using easy questions, the person preparing the examination can insure that more people will pass a test with a high cut score. Similarly, by using hard questions, the person preparing the examination can insure that fewer people will pass an examination with a low cut score. On some standardized licensure examinations the cut score is determined after the examination results are examined. In other words, the examination results are "curved" based on the performance of the group of candidates who take a particular session of the examination and the actual cut score is determined in relationship to the raw scores achieved by each particular group of candidates. This flexible method of setting cut scores seems to work well on standardized examinations which are administered to large numbers of candidates, but it is questionable whether it would work very well with small groups of candidates. The Board's examinations have historically been administered to small groups of candidates. Findings regarding the effects of changes on testing instruments. In order for a licensure examination to accomplish the purpose for which it is administered, it should, of course, be valid and reliable. Several of the Petitioners' expert witnesses described what might be characterized as the best way to make changes to an examination or as the ideal way to make changes to an examination. Nevertheless, the manner in which the Electrical Contractors' Licensing Board went about making the changes to the examination which were incorporated in the March 1981 rule changes was a reasonable and logical response to the circumstances faced by the Board. It was perhaps not the best way to have resolved matters, but it was a reasonable response. The Board's action in this regard was not arbitrary or capricious. Even the Petitioners' most persuasive expert in the field of testing conceded that if the content experts (in this case the Board members) felt that given a specific content domain and given a specific item bank the testing instrument measured less than minimum competency, a logical response would be to raise the cut score. Another logical reaction to that situation would be to change a portion of the examination from open book to closed book. Both actions would be reasonable and logical responses to that type of problem. Where there has been a modification in the format of a testing instrument, an accepted methodology for analysis of the effects of format modification is the use of repetitive questions from prior testing instruments. These repetitive questions are known as "anchor" questions. If a statistically significant deviation in performance on the anchor questions is demonstrated, the format modification requires further analysis through other statistical tools. However, if an analysis of the anchor questions shows inconclusive or mixed results on the anchor questions (such as equal or improved candidate performance on those questions), it may then be concluded that the format change is not significant to candidate performance and may be an appropriate format change relative to the profession or occupation being examined. Content validity is the most practical' measure of the validity of a licensure examination. The content validity of an examination depends on the extent to which the questions on an examination may be accepted as representative of performance within a specifically defined content domain of which the examination instrument is a sample. Content validation would be the best way to determine the validity of the examinations which were administered in 1982 pursuant to the March 1981 rule amendments. One method of establishing content validity is to have a group of experts identify the domains of knowledge that are applicable to the profession or occupation being tested. The establishment of content validity relies heavily on the opinions and judgments of people who are experts in the relevant profession or occupation. Expert judgment plays a integral part in developing the definition of the content domain to be tested. To the extent that the content domain of Boar examinations was established by the March 1981 amendments to Rule 21GG-6.01(3), the content domain was established on the basis of the expert judgment of persons who were experts in the field of electrical contracting, namely, the members of the Electrical Contractors' Licensing Board. The relative grading weights established in the 1981 amendments to Rule 21GG-6.01(3) have at least a possible correlation to electrical contractor competence. In fact, the persuasive expert testimony establishes that those relative grading weights did bear a reasonable relationship to electrical contractor competence. The current slightly different relative grading weights also bear a reasonable relationship to electrical contractor competence even though there has been no recent change in the nature of the responsibilities of electrical contractors. In this regard it must be remembered that testing is not an exact science and no test for minimum competency can ever be expected to be an exact model of actual work experience. The best that can be expected is a reasonable model. There are various accepted methodologies for the creation of standardized examinations, adherence to which tends to enhance the likelihood that the examination instrument finally produced will be valid and reliable. However, adherence to those accepted procedures is not a necessary prerequisite to creation of a valid and reliable examination. This is particularly true when one is going to be testing small groups of people with varied backgrounds instead of the massive groups of people with similar backgrounds for whom standardized tests are more typically designed. In the final analysis the only practical and reliable measure of the validity of an examination is by statistical analysis of the examination after it has been administered. Given the nature of the circumstances faced by the Board at the time of the March 1981 amendments to the examination format and cut score, given the nature of the pool of candidates to be examined, given the nature of the changes contemplated by the Board, and given the very nature of the process of testing for minimum competency--which involves perhaps as much art as it does science-- there is no study or data which would have been particularly useful to the Board in helping to determine exactly what the effect of their changes would be. Such effects can only be determined or measured with any degree of accuracy after the administration of an examination that incorporated the changes. Following the administration of such an examination, it is possible to perform a statistical analysis of all questions used on the examination and to eliminate or give credit for any questions which are shown by statistical analysis to be invalid or unreliable. This is precisely the process that is used by Block in the validation of their examinations and is an accepted testing procedure. It would have served no useful purpose to have conducted a trial run of an examination using licensed certified electrical contractors as a test group for the new examination format. First, it would be virtually impossible to try to put together an accurate cross-section of certified electrical contractors to use as a test group. Second, one would expect them all to pass the examination, so when they did so nothing of value would have been learned. Finally, the administration of such a trial run would risk the possibility of compromising examination question security. One aspect of accepted methodology for the preparation of standardized examinations is the definition of the content domain of the examination, i.e., a determination of what knowledge is essential to demonstrate that the candidates for licensure are minimally competent. This aspect of examination preparation is often accomplished by performing a formal job analysis, which is, in essence, a study of all of the usual tasks performed by a person engaged in the occupation or profession to be tested, including an evaluation of the relative importance of each of those tasks to minimum competence. The content domain can also be defined on the basis of the judgment of a group of experts in the occupation or profession to be tested. With the exception of the lay members who were added in recent years, all of the members of the Electrical Contractors' Licensing Board are, and have been, persons certified to engage in electrical contracting in the state of Florida and actively engaged in the electrical contracting business. Therefore, at all relevant times all of the professional members of the Board had extensive personal knowledge of what was involved in the practice of electrical contracting, which personal knowledge was as useful in defining content domain as would have been a formal job analysis. (In this regard it is important to note that even with the addition of lay members to the Board in recent years, the experienced professional members have continued to constitute a substantial majority of the Board.) Findings regarding Rule 21GG-6.0 of the Electrical Contractors' Licensing Board Rule 21GG-6.03 of the Electrical Contractors' Licensing Board reads as follows: An examinee is entitled to review his examination questions, answers, papers, grades and grading key used in the certification examination; however, no applicant may copy any materials provided for his review. Such review shall be conducted during regular business hours, in the presence of a representative of the Board at the Board's official headquarters. If, following the review of his exami- nation, an examinee believes that an error was made in the grading of his examination, or in the evaluation of his answers, he may request the Board to review his examination. Requests for Board review must be in writing, state with specificity the reason why review is requested, and be received within thirty (30) days after the examinee received notice that he failed the examination. (3) Upon receipt of a request for Board review, the examination shall be reviewed by the Board at the next regularly scheduled Board meeting. If it is found that an error was made, the grade received by the examinee may be adjusted to reflect the correction. The examinee shall be notified of the final decision. The Petitioners' only challenge to Rule 21GG-6.03 is predicated upon their concern that it may be misapplied to them by the Board. Findings regarding Rule 21-11.11(3) of the Department of Professional Regulation as it existed prior to the October 1982 amendments Prior to the October 1982 amendments, Rule 21-11.11(3) of the Department of Professional Regulation read as follows: (3) Examination grade reviews shall be conducted at a site designated by the Department. The candidate and his/her attorney or other qualified representative shall be allowed to attend the examination grade review. A candidate may attend only one review per examination administration. The above quoted version of the rule was in effect at the time of the Petitioners' reviews of their January and July 1982 examinations. Findings regarding Rule 21-11.11(3) of the Department of Professional Regulation, as amended in October of 198 Rule 21-11.11(3) of the Department of Professional Regulation, as amended in October of 1982, reads as follows, in pertinent part: A candidate taking a Department exam- nation may request and receive an appointment for review until such times as the exam- ination records are destroyed in accordance with Chapters 455, 119 and 267, Florida Statutes. However, unless otherwise provided by a rule of the appropriate Board within the Department, candidates may review their exam- ination for the purpose of filing objections to the examination for the Board's consideration under the following conditions and time frame: Within thirty (30) days of the date of the grade notification letter the candidate shall notify the Department of his/her desir to review the examination for the purpose of filing objections for consideration. Such review shall have been completed within the next thirty (30) days after the first thirty (30) days defined in (a) above. At the examination review, the candi- date shall be permitted to record on forms provided by the Department any and all objections to the examination the candidate desires the appropriate Board to review. Such forms shall remain in the custody of the Office of Examination Services for presen- tation to the appropriate Board at the next available Board meeting as an official agenda item. The candidate shall not copy" questions from the test booklet. The candidate may write on a separate paper in the presence of the Office of Examination Services employee, any objection or question he/she has to the written examination. The candidate shall leave the written objections and questions with the Office of Examination Services employee when he/she leaves the review room but she/she shall be permitted to leave with a form listing the question numbers he/she finds to be controversial. In the instance of a written exami- nation, all objections will be presented to the appropriate Board for consideration. Upon completion of the Board's review of written examination items the Department shall notify the reviewing candidate of the Board's decision. If the Board does not concur with the candidate's objections then the candidate will be notified in writing of this and the thirty (30) day appeal time per- iod shall begin to run from the date of this notice. Findings regarding Rule 21- 11.11(13) of the Department of Professional Regulation (later renumbered as Rule 21-11.11(3)(1)j Rule 21-11.11(13) of the Department of Professional Regulation, which was later renumbered as Rule 21-11.11(3)(1), reads as follows: If the consultant finds that the original grade was not rendered in accordance with the grading criteria, then he/she twill regrade that portion, or the entire examination, whichever is appropriate, pursuant to appli- cable statutes and rules. If it is not possible to regrade the examination, the candidate will be allowed to retake the examination at no charge. It is clear from the text of Rule 21-11.11(3)(j) that the language of Rule 21-11.11(3)(1) quoted immediately above is intended to apply only to practical examinations. It does not purport to apply to written examinations. These Petitioners took only written examinations, they have not taken any practical examinations. Findings regarding Rule 21-11.14 of the Department of Professional Regulation Rule 21-11.14 of the Department of Professional Regulation reads as follows, in pertinent part: Unless otherwise provided by a rule of the appropriate board within the Department, Security and Monitoring procedures shall be as follows: (10) Disposition of Test Booklets. Secured processing of Answer Sheets Test booklets for the state devel- oped examinations shall be disposed of and filed in accordance with the following procedure: 1. Ten copies of the examination book- lets shall be retained for ninety (90) days. This procedure shall insure that there are adequate copies of the booklets available for the board to review in their review of preliminary analysis of the examination and review sessions if review responsibilities are retained by the board. After the above defined ninety (90) day period the retention schedule shall change from ten copies to four copies. In the event any irregularity occurs during the examination with any state developed booklet, it shall be the examination supervisor's responsibility to prepare a detailed report of such irregularity and to retain the booklet in question in the secured files for a period of ninety (90) days. Destruction of examination booklets and related materials described in B.2.b., above: When in accordance with procedure, it is appropriate to destroy test booklets, it shall be the Archives's responsibility to schedule such destruction. In all instances there shall be evidenced in writing by the examination supervisor and a witness on a form which shall evidence the date of destruction and the official in charge of such destruction and a witness. When examination booklets are being prepared by the Department of Professional Regulation prior to an examination, the booklets are carefully inspected to make sure that all of the booklets are identical. Following that inspection the booklets are sealed and stored in a secure place in order to insure, among other things, that no changes are made to any of the examination booklets before they are handed out to the candidates. After an examination is given, the Department of Professional Regulation retrieves all of the examination booklets, including all booklets that were used by all of the candidates, and retains them in a secure place until the excess booklets can be destroyed. The examination supervisor selects the booklets which are to be retained from among the booklets that were not handed out to the candidates at the examination. In the normal course of events all of the examination booklets that were actually handled by the candidates at the examination are destroyed within a very few months of the date of the examination. With the exception of the examination booklet of one other candidate (which exception is not relevant to the disposition of this rule challenge proceeding), all of the examination booklets which were handed out to candidates during the examinations taken by these two Petitioners were destroyed approximately 90 days after each of the examinations. When such destruction took place, the Department retained copies of the examination booklets which had not been used by any candidate, which copies were identical to the copies that had been handed out to the candidates during the examination. As part of the examination instructions, all candidates for examination are advised not toe write anything in their examination booklets because all of the booklets used by the candidates will be shredded. They are specifically told to do all of their computations on sheets of work paper that are provided to them at the examination. All candidates are specifically told that the only things they turn in that will be saved are their answer sheets and their sheets of work paper. Findings regarding "unwritten" and "unpublished" rules of the Electrical Contractors' Licensing Board. The findings of fact immediately below relate to the eight "unwritten" and "unpublished" alleged rules of the Electrical Contractors' Licensing Board which are described in subparagraphs (F), (O), (P), (V), (X), (Y), (Z), and (FF) at pages 1 through 5 of the Petition. (The descriptions of these alleged rules are quoted at pages 2 through 6 of this Final Order.) One of these "unpublished" rules is alleged to be a rule to the effect that the Board requires more than minimum competency in order for a candidate to receive state certification and licensure as an electrical contractor. The other seven "unwritten" or "unpublished" rules of the Electrical Contractors' Licensing Board alleged in the Petition are all related in one way or another to the Board's alleged free form actions in the course of its review of the two examinations which have been challenged by these Petitioners in related proceedings under Section 120.57(1), Florida Statutes. None of the evidence regarding these matters proved the existence of an agency statement of general applicability purporting in and of itself to have the direct and consistent effect of law. For reasons which are explained in the Conclusions of Law portion of this Final Order, the evidence is insufficient to establish that the Electrical Contractors' Licensing Board has any "unwritten" or unpublished5? rules such as those described in subparagraphs (F), (O), (P), (V), (X), (Y), (Z), and (FF) of the Petition. 6/ Findings regarding "unwritten" and "unpublished" rules of the Department of Professional Regulation The findings of fact immediately below relate to the six "unwritten" and "unpublished" alleged rules of the Department of Professional Regulation which are described in subparagraphs (G), (J), (1), (L), (Q), and (R) at pages 1 through 5 of the Petition. The descriptions of these alleged rules are quoted at pages 2 through 6 of this Final Order.) These six "unwritten" or "unpublished" alleged rules of the Department of Professional Regulation are all related in one way or another to actions of functionaries of the Department in the course of performing the Department's role in the administration and review of the two examinations which have been challenged by these Petitioners in related proceedings under Section 120.57(1), Florida Statutes. None of the evidence regarding these matters proved the existence of an agency statement of general applicability purporting in and of itself to have the direct and consistent effect of law. For reasons which are explained in the Conclusions of Law portion of this Final Order, the evidence is insufficient to establish that the Department of Professional Regulation has any "unwritten" or "unpublished" rules such as those described in subparagraphs (G),(J), (I), (L), (Q), and (R).7 Findings regarding "unwritten" and "unpublished" rules of both the E1Electrical -Contractors' Licensing Board and the Department of Professional Regulation The findings of fact immediately below relate to the ten "unwritten" and "unpublished" alleged rules of both the Electrical Contractors' Licensing Board and the Department of Professional Regulation which are described in subparagraphs (M), (N), (S), (T), (U), (AA), (BB), (CC), (DD), and (EE) at pages 1 through 5 of the Petition. (The descriptions of these alleged rules are quoted at pages 2 through 6 of this Final Order.) These ten "unwritten" or "unpublished" alleged rules of both the Electrical Contractors' Licensing Board and the Department of Professional Regulation are all related in one way or another to actions allegedly taken by the Board and the Department in the performance of their respective functions related to the administration and review of the two examinations which have been challenged by these Petitioners in related proceedings under Section 120.57(1), Florida Statutes. None of the evidence regarding these matters proved the existence of an agency statement of general applicability purporting in and of itself to have the direct and consistent effect of law. For reasons which are explained in the Conclusions of Law portion of this Final Order, the evidence is insufficient to establish that both the Electrical Contractors' Licensing Board and the Department of Professional Regulation have any "unwritten" or "unpublished" rules such as those described in subparagraphs (M), (N), (S), (T), (U), (AA), (BB), (CC), (DD), and (EE) of the Petition.8
The Issue The issue presented is whether Mr. Lord should be granted additional credit for his answer to question number 144 on the April 1990 Professional Engineer licensure examination.
Findings Of Fact Mr. Lord (Candidate #301402) received a score of 66.3 percent on the April 20, 1991, Principals and Practice portion of the Professional Engineer examination. A minimum passing score was 70.0 percent. Mr. Lord challenged the scoring of his response to question number 144. Question number 144 is an essay question involving an assembly line problem where four separate stations are used to assemble a product in sequence. A fifth station can assist in maximizing the number of finished products produced per hour, and is capable of performing all operations. The correct answer to question number 144 was 100 products per hour, while Mr. Lord's answer was 25 pieces per hour. Petitioner received a score of 2 (out of a possible 10) points on question number 144. This was based on the scoring plan developed for the exam by the National Council of Examiners for Engineering and Surveying. Mr. Lord used a method of averaging station assembly times to determine the maximum average number of products each station could produce. The averaging method gave a solution which did not identify the central issue presented by the essay question: identifying and eliminating the bottlenecks in production. Mr. Lord also made an assumption that the initial four stations could do all operations, thus defining the model inaccurately. This misreading allowed Mr. Lord to use an averaging methodology. Mr. Granata, the Department's expert, testified that it is a coincidence of the numbers that if you multiply Respondent's answer (25) by four (the initial number of machines) you get the Board's answer (100). Mr. Greenbaum, Petitioner's expert witness, testified that Petitioner's answer is "unique" and that he, as an expert, would have answered the question using a methodology similar to the one developed by the Department's expert, Mr. Granata, and by the NCEE (National Council of Examiners for Engineering).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the challenge to the grading of Mr. Lord's response to question 144 on the April 1990 Professional Engineer licensure examination be dismissed. RECOMMENDED this 14th day of March, 1991, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 1991. COPIES FURNISHED: William F. Whitson, Law Clerk Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Curtis Lord 1416A Old Lystra Road Chapel Hill, NC 27514 Rex Smith, Executive Director Department of Professional Regulation Board of Professional Engineers 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Petitioner is entitled to additional credit on the challenged examination for licensure.
Findings Of Fact Petitioner, John R. Maroney, is a candidate for licensure as an electrical contractor low voltage applicant. He sat for examination in January 1999. His candidate number is 240024. Respondent, Department of Business and Professional Regulation, Board of Electrical Contractors, is the state agency charged with the responsibility of licensing applicants such as Petitioner. On the examination challenged, Petitioner received a score of 73.00, which was designated a failed status. In order to achieve a pass status Petitioner was required to obtain a score of 75.00. Petitioner timely challenged the results of two questions on the January 1999 examination. First, as to question 49, Petitioner maintained that his answer was reasonable as none of the answers given were correct. Question 49 required applicants to perform a mathematical computation and to select the best answer from those offered. The answer selected by Petitioner was $6.59 from the correct answer. The answer, the one that was given credit, was $4.77 or $1.47 from the correct answer, depending on whether the individual was paid for over-time at a higher rate. In either case the Department’s "correct" answer while not being mathematically accurate was the closer answer to a properly computed answer. The instructions on the examination directed applicants to choose the best answer to each question posed. Thus, while not mathematically accurate, Respondent’s answer to question 49 was the best from those offered. Choosing the best answer was also the issue in question 84 as none of the answers given on the examination accurately describes the cause of the problem. In making his selection, Petitioner admitted he had guessed, as he could not determine how any of the provided answers could decipher the problem he was to solve. Petitioner’s argument in this regard is well made since none of the answers given are attributable to the conditions described. Nevertheless, by process of elimination, an applicant could rule out the options offered by recognizing that two choices related to relay 1 could not contribute to the problem described. As Petitioner selected one of these clearly erroneous options, he cannot be given credit for the choice. As to the two remaining options, while inaccurate, the option that received credit was more likely related to the problem as the stop switch (stop 3) being faulty could cause the described problem if the circuit were to continue to be closed. Petitioner’s answer that described the problem on a relay unrelated to stop 3 would not be the best answer.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Electrical Contractors’ Licensing Board, enter a final order dismissing Petitioner’s challenge to the examination for licensure. DONE AND ENTERED this 15th day of December, 1999, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 15th day of December, 1999. COPIES FURNISHED: Lynne A. Quimby-Pennock Assistant General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-1007 John R. Maroney 9641 Northwest 39th Court Cooper City, Florida 33024 Ila Jones, Executive Director Board of Electrical Contractors Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 William Woodyard, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399
The Issue Whether the Respondent is entitled to an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency charged with regulating the practice of professions pursuant to Section 20.165, Florida Statutes, and Chapters 455 and 489, Florida Statutes. The ECLB is charged with regulating the practice of electrical contracting pursuant to Section 489.507, Florida Statutes. Pursuant to Rule 61G6-4.006, Florida Administrative Code, the ECLB has established a Probable Cause Panel to determine whether probable cause exists to believe that a violation of governing statutes has occurred. Mr. Borota is, and was at all times material to this matter, licensed as a Registered Electrical Specialty Contractor, having been issued license numbers ET 0000218 and ES 0000213. Mr. Borota is, and was at all times material to this matter, the licensed qualifier for his wholly owned Florida corporation, Communication Installation and Service Co., Inc. Subsection 489.517(3)(a), Florida Statutes, requires a licensee to provide proof of completing at least 14 classroom hours of continuing education courses during each biennium following issuance of the license. Rule 61G6-9.003(2), Florida Administrative Code, defines "course" as "any course, seminar or other program of instruction which has been approved by the board for the purpose of complying with the continuing education requirements for electrical and alarm contractors." Rule 61G6-9.004(1), Florida Administrative Code, requires that licensees provide proof of completion of at least 14 classroom hours of continuing education courses "approved by the board." Rule 61G6-9.005(1)(a), Florida Administrative Code, requires course sponsors to register with the ECLB prior to submitting their courses to the board for approval. Rule 61G6- 9.005, Florida Administrative Code, provides that accredited universities and colleges which offer courses in the contracting areas specified in Part II of Chapter 489, Florida Statutes, are deemed admitted as course sponsors. Rule 61G6-9.006(1), Florida Administrative Code, allows a registered course sponsor to submit to the ECLB an application for approval of a continuing education course, and provides that relevant courses offered by accredited universities and colleges are deemed approved. The ECLB regularly publishes a list of approved continuing education courses. Rule 61G6-9.002, Florida Administrative Code, sets forth criteria for continuing education. The following sets forth the relevant portions of the rule as it read during the period relevant to this case: The following programs of continuing education may be used to satisfy the continuing education requirement provided that the licensee complies with the terms set forth herein: Courses for credit which are business, technical or safety courses relevant to the electrical contracting industry and which require a passing grade taken at an accredited college, university, or community college. The licensee must furnish an official transcript and a notarized statement affirming classroom hours attended and the receipt of a passing grade. Noncredited courses conducted by an accredited institution of higher learning, official governmental agency, the military, or recognized national or state trade or civil organization provided the following conditions are met: the course must be business, technical or safety course relevant to the electrical contracting industry. the course must follow a written text, which must be submitted to the Board for approval on request. the instructor of the course must be a professional educator, certified electrical contractor or a similar authority in the field. The licensee must submit a notarized statement affirming the following: Number of classroom hours attended Sponsor of the course Location of the course Date of the course Name of the instructor and his credentials Benefit received from the course George Ayrish, program administrator for the ECLB, testified that Rule 61G6-9.002, Florida Administrative Code, allows a licensee to obtain credit for courses that are not on the approved list, provided the substantive criteria for continuing education courses are met and the notarized statement is filed. The ECLB conducts random audits of its licensees every two years. On January 27, 1997, the ECLB sent Mr. Borota a written notice that his license was undergoing such an audit for the period September 1, 1994, through August 31, 1996. The notice requested that Mr. Borota provide, among other items not relevant to this proceeding, certification that he had completed the required continuing education hours. Mr. Borota responded with certificates of attendance at three separate technical electrical contracting courses presented by equipment vendors: a "3M Hot Melt Fiber Optics Connectors" course offered by 3M Telecom Systems Division on June 25, 1995; a "Category 5" cabling installation course offered by The Siemon Company on December 5, 1995; and an "Installation Certification Program" offered by Ortronics Open System Architecture Networking Products on June 19, 1995. None of these courses were included in the ECLB’s list of approved continuing education courses. By letter dated March 18, 1997, the ECLB informed Mr. Borota that the courses submitted as evidence of continuing education must be "Board approved" and "completed within the audit period." Mr. Borota responded with a certificate indicating that he had completed "product application training" and was thus a certified installer for Superior Modular Products, Inc. The certificate was dated July 31, 1995. This course was not included in the ECLB’s list of approved continuing education courses. On August 18, 1997, Mr. Ayrish filed a Uniform Complaint Form alleging that Mr. Borota did not provide proof of continuing education as required by Rule 61G6-9.004(1), Florida Administrative Code. The complaint was forwarded to Kathy MacNeill, a senior consumer complaint analyst for the Department of Business and Professional Regulation. By letter dated October 9, 1997, Ms. MacNeill advised Mr. Borota that a complaint had been filed against him. She enclosed a copy of Mr. Ayrish’s complaint. The letter requested that Mr. Borota submit a written response within 20 days. By letter dated October 13, 1997, Mr. Borota responded to Ms. MacNeill’s request. He wrote, in relevant part, that: Regarding the continuing education for ET 0000218 I did send the certificates of classes that I had taken during the audit time in question. All of the classes that I had taken covered communications cabling which is what our company does. Most of the classes that are held by the contractors schools that are recommended for low voltage systems licensing cover information on security systems cabling and we do not do that kind of work. Please advise if I need to send any additional information or what I will need to do to close this case. No further direct communication occurred between Mr. Borota and Ms. MacNeill. Mr. Borota testified that he attempted to phone the Department a few times after the exchange of letters, but that he never spoke to anyone. Ms. MacNeill prepared a written Investigative Report, dated November 6, 1997, stating an alleged violation of failure to provide proof of continuing education and forwarding the matter to the Department’s legal counsel "for whatever action is deemed appropriate." The Complaint and the audit file were placed on the docket for consideration by the Probable Cause Panel of the ECLB at a telephonic conference on March 20, 1998. On the same date, a Memorandum Of Finding was signed by the chairperson of the Probable Cause Panel, indicating probable cause was found. The Department issued an Administrative Complaint on March 23, 1998, alleging that Mr. Borota failed to submit proof in response to the audit of having complied with the continuing education requirements of Subsection 489.517(3), Florida Statutes, and the rules promulgated thereunder. Mr. Borota was served with the Administrative Complaint on March 30, 1998. On April 21, 1998, Mr. Borota timely filed his written Election Of Rights disputing the material facts set forth in the Complaint and demanding an evidentiary hearing pursuant to Subsection 120.57(1), Florida Statutes. On the same date, Mr. Borota also submitted an affidavit, substantially complying with Rule 61G6-9.002(2), Florida Administrative Code, attesting that he had attended 30 additional hours of continuing education courses during the audit period. These courses were professional seminars provided at the annual winter meeting of Building Industry Consulting Service International, Inc. (“BICSI”), a non-profit telecommunications technical association. The materials for the BICSI conferences show that the University of South Florida was a co-sponsor of the event. The BICSI seminars were not on the ECLB’s list of approved continuing education courses. On August 6, 1998, counsel for the Department filed a Motion For Final Order, arguing that there were no disputed issues of material fact in the case because none of the courses submitted by Mr. Borota were on the ECLB’s approved list of continuing education courses. The ECLB denied the Department’s motion and agreed to refer the Administrative Complaint to the Division of Administrative Hearings ("DOAH") for the conduct of a formal administrative hearing. The case was never forwarded to DOAH. The record does not disclose why the case remained at the ECLB for nearly two years following the ECLB’s denial of the Motion for Final Order. The Administrative Complaint was again considered by the Probable Cause Panel of the ECLB on May 23, 2000. On the same date, a Memorandum Of Finding was signed by the chairperson of the Probable Cause Panel that determined no probable cause was found and that the Administrative Complaint should be dismissed. Both meetings of the Probable Cause Panel were tape recorded. The tapes were of such poor quality that a certified transcript of the meetings could not be prepared by either an independent court reporter or the Department. Redacted tape copies and an uncertified transcript of the meetings were admitted into evidence by agreement of the parties. The transcript is sufficient to show that the March 20, 1998, Probable Cause Panel treated Mr. Borota’s case in a pro forma fashion, without discussion of the particulars of the investigation, prior to making a finding of probable cause to proceed against Mr. Borota. At the hearing in the instant case, the Department admitted that Mr. Borota was the prevailing party in the disciplinary proceeding because the Administrative Complaint was dismissed upon a finding of "no probable cause" at the May 23, 2000, Probable Cause Panel meeting. Mr. Borota testified that he was the sole owner and qualifying licensee of the corporation through which he practiced as a licensed electrical contractor, that his net worth was less than $2 million, and that he and the corporation employed fewer than 25 workers. The Department offered no evidence to dispute Mr. Borota’s testimony on these points.
The Issue The issue presented is whether Petitioner's application to qualify two additional business entities should be granted.
Findings Of Fact Petitioner, David Rheaume, has been an electrician since about 1960. Petitioner is a certified electrical contractor, holding Florida license number EC 13003139. Petitioner currently serves as the primary qualifier for two companies, David's Electric Service, Inc. (David's Electric), in Fort Myers, and Primary Electric of Southwest Florida, Inc. (Primary Electric), in Cape Coral. As the primary qualifier for David's Electric and Primary Electric, Petitioner is responsible for the supervision of all operations of the business organization, for all field work at all sites, and for financial matters, both for the organization in general and for each specific job. § 489.522(1)(a), Fla. Stat. (2006). David's Electric is wholly owned and operated by Petitioner. He is the sole officer and employee. On average, Petitioner works three-to-four hours per day, five or six days per week, doing mostly service work and upgrades. He gets most of his work from the local pennysaver-type advertising circular, and his schedule depends on the number of calls he receives from customers. He may work for six hours on one day, and not at all on the next. Petitioner considers himself semi-retired, and no longer undertakes new home installations. Petitioner is able to make his own flexible schedule as the owner/operator of David's Electric, and believes that he will be able to supervise the operations of the additional entities for which he seeks to act as qualifier. Primary Electric performs electrical service work and the wiring of newly constructed houses. Petitioner spends a "couple hours a week at the most," supervising the electrical contracting work of Primary Electric. The owner/operator of Primary Electric calls Petitioner when a job is ready for inspection. Petitioner then goes to the job site and checks to make sure the job has been done properly before the county inspector arrives. The owner/operator consults Petitioner if he has a problem understanding the blueprints on a job. The staff of Primary Electric consists of the owner/operator and two helpers. Petitioner is officially the vice president and owns ten percent of the company. He serves in a consulting capacity, and performs no physical work for Primary Electric. At the hearing, Petitioner identified the owner/operator of Primary Electric as "Don," and could not, with confidence, recall "Don's" surname. Don supervises the business on a day-to-day basis. Petitioner knew that Don's wife "signs all the checks," but was not certain whether she has an official position in the company. The checkbook and financial records are forwarded to the office of Petitioner's CPA, where Petitioner checks them. Don, the owner/operator of Primary Electric, is not a licensed electrical contractor. Petitioner allows Don to hire and supervise the helpers who work on Primary Electric's job site. Petitioner readily conceded that he knows nothing about the hiring or qualifications of the helpers, and that he relies on Don to address any problems with faulty work performed by the helpers. Primary Electric has pulled permits and performed electrical contracting jobs without Petitioner's prior knowledge. Petitioner testified that he allowed Don to go to local building departments and pull permits for electrical contracting jobs without prior consultation with Petitioner, because "I have that much faith in him." Petitioner acknowledged that on some smaller jobs, such as additions or service work, the owner/operator of Primary Electric has finished the jobs and gone through final inspections without ever notifying him. In response, Petitioner told Don to "at least call me." Petitioner applied to serve as the primary qualifier for Dolphin Electric of SW Florida, Inc. (Dolphin Electric), a start-up company based in Cape Coral. Vincent Sica is the president of Dolphin Electric, and Petitioner is the vice president and ten percent owner. Mr. Sica is a friend of Petitioner, and formerly worked for Petitioner at David's Electric. Mr. Sica was denied an electrical contractor's license by the Board, then asked Petitioner to serve as his qualifier, thereby allowing Dolphin Electric to work in the field of electrical contracting. Dolphin Electric, if approved as an additional business under Petitioner's license, would operate as an electrical contracting business focusing primarily on wiring new custom houses built by Mr. Sica's brother, who is a general contractor. Mr. Sica and his son would perform the work. Petitioner will perform no physical work for Dolphin Electric. Petitioner intends to supervise Dolphin Electric in the same manner that he supervises Primary Electric, including allowing Mr. Sica to pull permits for electrical jobs without first consulting Petitioner. According to Petitioner, Mr. Sica was an electrician in New Jersey and is very qualified. Petitioner stated that he would likely supervise Dolphin Electric a little more closely, if only, because he and Mr. Sica are friends and spend a lot of time together. Petitioner applied to serve as the primary qualifier for Mill Electrical Contractors, Inc. (Mill Electric), a start- up company based in Fort Myers. Terry Gaschk is the president of Mill Electric, and Petitioner is the vice president and ten percent owner. Mr. Gaschk is a friend of Petitioner, and worked for Petitioner at David's Electric during a busy time. Although he has only known Mr. Gaschk for one year, Petitioner testified that Mr. Gaschk is "like a brother" to him and is a better electrician than Petitioner. When Mr. Gaschk wanted to start his own company, Petitioner was willing to serve as his qualifier. Mill Electric, if approved as an additional business under Petitioner's license, would probably operate as an electrical contracting business focusing primarily on wiring newly constructed houses. Petitioner was not sure of Mr. Gaschk's intentions, because of the current softness of the residential construction business. Petitioner guessed that Mill Electric would stay a one-man operation doing service jobs until the market improves. Petitioner intends to supervise Mill Electric in the same manner that he supervises Primary Electric, including allowing Mr. Gaschk to pull permits for electrical jobs without first consulting Petitioner. Petitioner did not demonstrate intent to adequately supervise the operations of the proposed additional entities, Dolphin Electric and Mill Electric. At Petitioner's application request hearing, the Board's chief concern was the appearance that Petitioner was engaged in a "license selling" scheme with his friends. At the de novo hearing before the undersigned, Petitioner did little to put this concern to rest. Petitioner's intent is to continue working part-time for his own company, and to allow his friends to run the day-to- day operations of the two start-up companies, including the hiring and supervision of employees, the pulling of permits for electrical work, and the performance of that work without the direct supervision of a certified electrical contractor. In general, Petitioner would be consulted when there is a problem with the work, or when his presence is required for an inspection. The undersigned does not find that Petitioner had any conscious bad intentions in making his applications. Petitioner sincerely believes that Mr. Sica and Mr. Gaschk are at least as proficient in the field as is he, and is confident enough, in his opinion, to risk his license on their behalf. However, Petitioner's casual manner of supervising the work of his friends, coupled with the sheer volume of supervisory work that he proposed to undertake for a total of three companies plus his own, caused reasonable doubts in the mind of the Board. Unfortunately, Petitioner was unable to dispel those doubts in this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: A final order be entered denying Petitioner's applications to qualify Dolphin Electric of SW Florida, Inc., and Mill Electrical Contractors, Inc. as additional business entities. DONE AND ENTERED this 8th day of March, 2007, 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 8th day of March, 2007. COPIES FURNISHED: Reginald D. Dixon, Esquire Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Howard Andrew Swett, Esquire Knott, Consoer, Ebelini, Hart & Swett, P.A. 1625 Hendry Street, Suite 301 Fort Myers, Florida 33901 Anthony B. Spivey, Executive Director Electrical Contractors' Licensing Board 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulations 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Petitioner was born on March 14, 1960. At the time of this hearing he was 22 years old. Petitioner moved to Florida from Arkansas in March, 1981, and subsequently applied for and was issued a State certificate as a general contractor in February, 1982. While in Arkansas, Petitioner obtained a license as a master electrician (Exhibit 1) and his company, American Enterprise Electric, was licensed as an electrical contractor (Exhibit 2). The electrical contractors' license was obtained without examination, as Petitioner was doing electrical contracting when the Arkansas licensing law was passed in 1979. Petitioner started working for his father, a general contractor in Arkansas, at an early age and was doing electrical work in his early teens. He took over the electrical end of his father's contracts, prepared bids, supervised, and did most of the electrical wiring on several apartment buildings, office buildings, and single family residences through his late teens. In 1978 Petitioner started his own business as an electrical contractor in Arkansas. He subsequently added air conditioning and electronics work. Operating as Allgood Electric, Petitioner did the electrical work on residences, apartment buildings and office buildings in which others were the general contractor. In his application, Exhibit 4, Petitioner dates 3/30/78 as the start of his electrical contracting company. The last job reported on Exhibit 4 is dated 9/1/80, shortly before Petitioner moved to Florida. From 3/7/78 through 9/1/80 Petitioner lists on Exhibit 4 a total electrical contractor dollar value of $60,000 with two of these jobs accounting for $35,000. Petitioner holds no local license as an electrician or electrical contractor. No evidence was presented of the electrical contracting done by his company in Florida, although he testified he has a qualifying agent to allow his company to do electrical contracting.
Findings Of Fact Bobby Serota is licensed as an electrical contractor in Dade, Broward and Palm Beach Counties and is fully qualified by experience and training to take the FECLB examination. Petitioner is presented of Serota and Maggi Electrical Company, Inc. In 1979, the company failed to remit to the Internal Revenue Service (IRS) payroll taxes when due, and the IRS placed a lien against the company for some $24,000 for taxes, penalties and interest. Serota entered into an agreement with the IRS to repay this indebtedness at the rate of $1500 per month and is current on those payments. If this scheduled is maintained the lien will be satisfied in January, 1982. The examination for which Serota has applied is given twice per year. The next examination will be given in December, 1981, or January, 1982.
Recommendation From the foregoing it is concluded that Petitioner is fully qualified to sit for the next examination but for the IRS lien filed against his company. This IRS lien will be liquidated by the time the next examination is given provided Petitioner keeps his payments to the IRS current. It is, therefore, RECOMMENDED that Bobby Serota be qualified to sit for the next electrical contractors examination provided that he submits to the Board by 1 December 1981, a statement showing his payments to the IRS are current. ENTERED this 14th day of August, 1981, in Tallahassee, Leon County, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of August, 1981. COPIES FURNISHED: Mr. Bobby Serota 2040C Tigertail Boulevard Dania, Florida 33004 Susan Tully, Esquire Assistant Attorney General Department of Legal Affairs Administrative Law Section The Capitol Tallahassee, Florida 32301 Nancy Kelley Wittenberg, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 =================================================================
