Findings Of Fact Petitioner is an unsuccessful candidate for the General Contractor Examination given in February, 1990, (the "examination"). Petitioner passed part three but failed parts one and two. Petitioner subsequently passed part one in June, 1990. Petitioner received a score of 69 percent on part two of the examination and needs only one point to pass part two and the entire examination. 1/ Question 37 is worth one point. Respondent gave credit for answer "(D) 10" in response to question 37. Petitioner selected answer "(A) 0" in response to question 37. Question 37 requires a candidate to apply Section 713.12, Florida Statutes, to the facts provided in the stem to question 37. Section 713.12, in relevant part, gives a spouse 10 days after learning of a contract to object to the signing of a contract by his or her spouse. Question 37 requires a candidate to determine how many days a wife has to object to a contract entered into by a contractor and both spouses but signed only by her husband with her knowledge. Question 37 is not ambiguous. There is only one correct response to the question challenged by Petitioner. The correct response to the question is answer "(D) 10." Petitioner did not choose the correct answer for question 37. The wife is not deemed to waive any objection she has if she does not make it at the time of the signing. The time that the wife learned of the contract and its signing is clear and unambiguous from the facts in the stem of the question. The contract was entered into by both the husband and wife and was signed by the husband with the wife's knowledge. The ordinary and plain meaning of the term "with" connotes "at the same time as." The only type of property that is reasonably contemplated in question 37 is real property. Of the 649 candidates who took the examination, 81 percent selected answer "(D) 10." Of the candidates who scored in the upper 27 percent on the examination, 92 percent selected answer "(D) 10." Only two percent of the candidates selected answer "(A) 0."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's challenge to question 37. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 8th day of April 1991. DANIEL MANRY Hearing Officer Division of Administration 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 8th day of April 1991.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In February 1989, petitioner, Michael J. Millillo, Jr., was a candidate on the certified building contractor examination. The test is prepared and administered by respondent, Department of Professional Regulation, Construction Industry Licensing Board (Department or Board). Petitioner later received written advice from the Department that he had made a grade of 63 on Part II of the examination. According to agency rules, a score of at least 69.1 is required for passing. Petitioner then filed an appeal of his examination results contending that question 8 was ambiguous and that question 20 contained more than one correct answer. That prompted this proceeding. As a result of a stipulation by counsel at hearing, petitioner was given credit for his answer to question 20 and his grade was raised to 67. Accordingly, the appeal is now limited to question 8. The examination was prepared by the National Assessment Institute and requires an examinee to use "entry level" knowledge in formulating his responses. Question 8 was a mathematics question having a value of four points on a candidate's overall score. It is undisputed that if Millillo had received four additional points he would have passed the examination. Question 8 was a multiple choice question containing four possible answers. Although the question cannot be repeated verbatim here because of confidentiality constraints, it required a candidate to make nine separate mathematical calculations in order to arrive at the correct solution. Petitioner's challenge is limited to the first calculation, and more specifically, to the wording in the question. He contends that the wording was so ambiguous that a candidate could easily arrive at a different answer than suggested by the Board. In general terms, the subpart in dispute provided a candidate with an annual payroll cost for a general superintendent who was the supervisor on a project taking one hundred fifty days to complete. The candidate was required to calculate the superintendent's cost assuming he spent 15% of his time on the project. The solution was derived by multiplying a .15 factor X 150/360 X the annual payroll cost. Petitioner testified on his own behalf and suggested that the question assumed the superintendent devoted 15% of his total time for the entire year to the project, and that the appropriate cost would be obtained by multiplying that percentage factor times the individual's annual payroll cost. The resulting number was approximately twice as great as the Board's correct solution. Respondent's consultant, George Bruton, is a licensed contractor and assisted in the preparation of the examination questions. He considered the question to be clear and unambiguous and required a student to recognize that the superintendent spent 15% of his total time on the project for five months, which was the life of the project. This interpretation is logical and reasonable, consistent with the wording in the question, and is found to be correct. The witness added that because 78% of all candidates on the examination obtained the correct answer, it reinforces his contention that the question was not ambiguous.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying petitioner's request to receive a passing grade on the February 1989 certified building contractor's examination. DONE and ORDERED this 6th day of November, 1989, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of November, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-4312 Respondent: 1. Substantially adopted in finding of fact 1. 2-4. Substantially adopted in finding of fact 2. 5. Substantially adopted in finding of fact 5. 6-7. Substantially adopted in finding of fact 6. COPIES FURNISHED: Frederick F. Rudzik, Esquire One Fourth Street, North Suite 800 St. Petersburg, Florida 33701 E. Harper Field, Esquire 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Kenneth E. Easley, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
Findings Of Fact At all times material to this proceeding, the Respondent has been licensed as a residential contractor in the State of Florida, holding license number CR C022406, and was the licensed contractor qualifying Rothberg Homes, Inc. On or about May 21, 1986, the Respondent entered into a contract to build Mr. and Mrs. Frank Sargent a new home in Palm Harbor, Florida, for $95,670. The home was to be completed before November 15, 1986, so that the Sargents could qualify for a lower interest rate. The Respondent relied heavily on his construction superintendent, Frank Jackson, to accomplish the work in a timely and workmanlike manner. The Respondent was responsible primarily for selling contracts and for taking care of the company finances. To comply with the technical requirements of the contract, the Respondent had construction begin in July, 1986, with the clearing of the lot. But foundation footers were not dug and poured until about a month later, and construction proceeded at a slow pace (then it went on at all.) The Sargents registered numerous complaints to Jackson about the slow pace and some complaints to the Respondent about Jackson, but nothing was done to speed construction along. In October, 1986, the Sargents, who were on the job site daily, began hearing complaints from suppliers and subcontractors that the Respondent was slow paying them but was told that he eventually was coming through with the payments due. By November, the Respondent was not making payments at all in some cases. Also in October and November, Jackson was in the process of opening his own business (not construction-related) and was devoting less and less time to the Sargent job. November 15, 1986, approached, and it became obvious that the deadline would not be met. The Sargents and the Respondent met and agreed to extend the deadline one month to December 16. On December 11th, the Sargents again reminded the Respondent of the deadline and its importance to them, but the December 16 deadline also came and went with the house only about 70 percent complete. In December, Jackson quit altogether. The Sargents complained to the Respondent, who promised to replace Jackson but never did. Because the Respondent had stopped paying subs and suppliers, they refused to do any more work, and the Sargents wound up having to pay some of them out of their own pockets in order for work to continue. In March 1987, some of the subs and suppliers also filed claims of liens for unpaid work which the Sargents had to clear out of their own pockets in order to close the purchase of the house. Mr. Sargent himself did some of the work, some of which would have been warranty work if the Respondent had paid his bills on time, to save some additional expense caused by the Respondent's failure to keep current on his accounts with the subs and suppliers and to avoid some of the additional hassle of trying to persuade an unpaid sub or supplier to do warranty work. On March 16, 1987, the Sargents met with the Respondent to arrive at an accounting for purposes of the upcoming closing. They agreed that the Sargents should receive the last construction loan draw of about $9,500 to compensate them for payments they made that should have been made by the Respondent and that the Respondent still owed them $6,000, which the parties agreed would be the subject of a promissory note from the Respondent to the Sargents. (This does not even account for the Sargents being shortchanged when a three-foot roof overhang for which they had contracted turned out to be only a two-foot overhang.) The Respondent has paid the promissory note.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Construction Industry Licensing Board enter a final order finding the Respondent, Daniel S. Rothberg, guilty of violating Section 489.129(1)(h) and (m), Florida Statutes (1987), and imposing an administrative fine in the amount of $1,500. RECOMMENDED this 19th day of December, 1988, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1988. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Daniel S. Rothberg 624 Charisma Drive Tarpon Springs, Florida 34689 Daniel S. Rothberg 196 Mayfair Circle Palm Harbor, Florida 34684 Warren A. Wilson, III, Esquire 2101 U.S. Highway 19 North Suite 201 Palm Harbor, Florida 33563 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Bruce D. Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
