00-004175 Jermado Emmanuel Turner vs. Department Of Business And Professional Regulation, Bureau Of Testing Status: Closed Recommended Order on Tuesday, January 30, 2001.

Summary: This is an examination question challenge on the Construction, Building Contractor examination. Recommend Petitioner`s challenge be denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JERMADO EMMANUEL TURNER, )

)

Petitioner, )

)

vs. ) Case No. 00-4175

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, BUREAU )

OF TESTING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its duly-designated Administrative Law Judge,

Jeff B. Clark, held a formal hearing in this case on Friday,

December 22, 2000, in Orlando, Florida.

APPEARANCES

For Petitioner: Jermado Emmanuel Turner

6511 John Aldan Way

Orlando, Florida 32818

For Respondent: Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 323 99-0792

STATEMENT OF THE ISSUE

Whether Petitioner is entitled to credit for his answers to

questions 41 and 48 on the February 2000 Construction, Building

Contractor (Contract Administration) examination.

PRELIMINARY STATEMENT

On February 9, 2000, Petit ioner, Jermado Emmanuel Turner,

sat for the February 2000 Construction, Building Contractor

(Contract Administration) examination.

He received a failing grade of 68 percent and after

informal review, by letter of May 22, 2000, Petitioner formally

challenged two questions on the examination.

On September 28, 2000, the Department of Business and

Professional Regulation, Bureau of Testing, forwarded the

petition for formal hearing (examination challenge) to the

Division of Administrative Hearings.

On Octobe r 9, 2000, an Initial Order was forwarded to

Petitioner and Respondent. Final hearing was scheduled for

December 22, 2000, in Orlando, Florida.

Petitioner, Jermado Emmanuel Turner, testified on his own

behalf and offered seven exhibits. All were admitted into

evidence. Petitioner's wife, Mrs. Cheri Turner, was present but

did not testify.

Respondent presented three witnesses, each of whom was an

expert witness. Respondent offered seven exhibits. All were

admitted into evidence.

At the end of the evi dentiary portion of the hearing, the

parties were advised of their right to file proposed recommended

orders and a deadline of 10 days after the filing of the

transcript was established. The Transcript of the hearing was

filed with the Division of Administrative Hearings on

January 16, 2000. A Proposed Recommended Order was received

from the Respondent and was considered.

Pursuant to Section 456.014(2), Florida Statutes,

examination questions (Respondent's Exhibit 5) are sealed and

not available for public investigation.

FINDINGS OF FACT

Upon consideration of oral and documentary evidence

received at the hearing, the following relevant findings of fact

are made:

1. The examination for licensure of a general contractor

in the State of Florida is administered by the Department of

Business and Professional Regulation, Division of Technology,

Licensure and Testing. Chapter 455.217, Florida Statutes. A

written examination is authorized by Rule 61G4-16.001, Florida

Administrative Code.

2. Respondent c ontracts with Professional Testing,

Incorporated, 1200 East Hillcrest Street, Orlando, Florida,

which develops tests for the Florida Construction Industry

Licensing Board. This practice is approved by Section 455.217,

Florida Statutes. Professional Testing, Incorporated, ensures

that questions and answers are not ambiguous through a number of

methodologies.

3. Petitioner has been an "original" candidate for the

construction, building contractor examination twice. The

examination has three sections: business finance, project

management, and contract administration. A candidate may retake

any section three times before the entire examination has to be

retaken.

4. One of the questions Petitioner is challenging is the

same question he had on the June 1999 examination, that is, the

"S mortar" question. This question was repeated on the August

1999 and the February 2000 examination.

5. The copies of the "S mortar" question and answers on

the August 1999 and February 2000 examinations which were

accepted into evidence were identical.

6. Petitioner maintains that the August 1999 examination

question and answers accepted into evidence is not the same as

the one he had on his examination.

7. Petitioner agrees that the answer he gave, 20.74, was

an incorrect answer and that 46.67 (the "graded correct" answer)

was correct.

8. Petitioner maintains that the 20.74 answer he gave on

the February 2000 examination was a result of having been

advised that 46.67 was an incorrect answer on the August 1999

test.

9 . Petitioner examined his original answer sheet form both

examinations (August 1999 and February 2000) at the hearing.

10. Petitioner's original answer for the August 1999

examination showed his answer to be "B", an incorrect answer,

not the "graded correct" answer "C" (which was 46.67).

11. The second challenged question is question 48 which

deals with a "critical activity list" also called a "critical

activity interval" or "critical path."

12. Petitioner's answer is 106 days; the "graded correct"

answer is 86 days.

13. Question 48 asked the test taker to identify "the

latest day work must begin on the roofing activity."

14. One-hundred and six is the number of days the roof

must be completed by (not when work must begin). Since this

roofing activity takes 21 days it must begin on the 86th day to

be complete on the 106th day.

15. The psychometrician expert witness testified that both

questions (and answers) were within acceptable statistical

ranges as valid. That opinion is accepted.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to Section 120.57(1), Florida Statutes.

17. The burden of proof is on the party asserting the

affirmative of an issue before an administrative tribunal.

Florida Department of Transportation v. J.W.C. Company, Inc. ,

396 So. 2d 778 (Fla. 2d DCA 1981). To succeed in his challenge

to the examination, Petitioner must establish, by a

preponderance of the evidence, that the examination was somehow

faulty, was arbitrarily or capriciously worded, or that he was

arbitrarily or capriciously denied credit through a grading

process devoid of logic or reason. Harac v. Department of

Professional Regulation , 484 So. 2d 1333, 1338 (Fla. 3d DCA

1986); State ex rel. Glaser v. J.M. Pepper , 155 So. 2d 383 (Fla.

1st DCA 1963); State ex rel. I.H. Topp v. Board of Electrical

Contractors for Jacksonville Beach, Florida , 101 So. 2d 583

(Fla. 1st DCA 1958).

18. Petitioner failed to satisfy his burden regarding the

challenged questions 41 and 48.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Department of Business and

Professional Regulation, Bureau of Testing, enter a final order

denying Petitioner's challenge to questions 41 and 48.

DONE AND ORDERED this 30th day of January, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hea rings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of January, 2001.

COPIES FURNISHED :

Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Jermado Emmanuel Turner

6511 John Aldan Way

Orlando, Florida 32818

Cathleen O'Dowd, Executive Director

Construction Industry Licensing Board

Department of Business and

Professional Regulation

7960 Arlington Expressway, Suite 300

Jacksonville, Florida 32211-7467

Barbara D. Auger, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.