01-000791 Michael Richards vs. Department Of Business And Professional Regulation, Construction Industry Licensing Board
 Status: Closed
Recommended Order on Friday, May 11, 2001.


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Summary: Candidate failed to meet his burden of proving that his challenge to the contract administration portion of the certification examination for general contractors should be sustained.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8MICHAEL RICHARDS , )

11)

12Petitioner , )

14)

15vs. ) Case No. 01-0791

20)

21DEPARTMENT OF BUSINESS AND )

26PROFESSIONAL REGULATION , )

29CONSTRUCTION INDUSTRY LICENSING )

33BOARD , )

35)

36Respondent. )

38_________________________________)

39RECOMMENDED ORDER

41Pursuant to notice, a hearing was held in this case in

52accordance with Section 120.57(1), Florida Statutes, on

59April 11, 2001, by video teleconference at sites in West Palm

70Beach and Tallahassee, Florida, before Stuart M. Lerner, a duly-

80designated Administrative Law Judge of the Division of

88Administrative Hearings.

90APPEARANCES

91For Petitioner : Michael Richards, pro se

983802 Lakewood Road

101Lake Worth, Florida 33461

105For Respondent : Charles F. Tunnicliff, Esquire

112Department of Business and

116Professional Regulation

1181940 North Monroe Street

122Tallahassee, Florida 32399-2202

125STATEMENT OF THE ISSUE

129Whether Petitioner's challenge to the failing grade he

137received on the contract administration portion of the October

1462000 General Contractor Examination should be sustained.

153PRELIMINARY STATEMENT

155By letter to Respondent dated February 8, 2001, Petitioner

164requested a hearing to contest the failing score that he had

175received on the contract administration portion of the October

1842000 General Contractor Examination.

188On February 27, 2001, Respondent referred the matter to the

198Division of Administrative Hearings (Division) for the

205assignment of an Administrative Law Judge to conduct the hearing

215Petitioner had requested.

218As noted above, the hearing was held on April 11, 2001. At

230the outset of the hearing, the parties stipulated that the only

241questions (on the contract administration portion of the October

2502000 General Contractor Examination) in dispute were

257Questions 2, 9, 29, and 38.

263During the evidentiary portion of the hearing, Petitioner

271testified on his own behalf, and Fae Mellichamp and William Palm

282testified on behalf of Respondent. No other testimony was

291presented. In addition to the testimony of these three

300witnesses, eight exhibits (Petitioner's Exhibit 1 and

307Respondent's Exhibits 1, 2, 5, 6, 7, 10, and 11) were offered

319and received into evidence.

323At the conclusion of the evidentiary portion of the

332hearing, the undersigned announced, on the record, that post-

341hearing submittals had to be filed no later than ten days

352following the date of the filing of the transcript of the

363hearing. The hearing Transcript (consisting of one volume) was

372filed on April 25, 2001.

377On May 2, 2001, Respondent timely filed a Proposed

386Recommended Order, which the undersigned has carefully

393considered. To date, Respondent has not filed any post-hearing

402submittal.

403FINDINGS OF FACT

406Based upon the evidence adduced at hearing and the record

416as a whole, the following findings of fact are made:

4261. Petitioner sat for the contract administration portion

434of the Florida certification examination for general contractors

442administered in October 2000 (Contract Administration

448Examination).

4492. The Contract Administration Examination consisted of

45660 multiple-choice questions of equal value, worth a total of

466100 points.

4683. To attain a passing score on the Contract

477Administration Examination, candidates needed to receive a total

485of 70 points.

4884. Of the 378 candidates who took the Contract

497Administration Examination, 156 received passing scores.

5035. Petitioner was not among this group of successful

512candidates. He received a failing score of 66.67 on the

522examination.

5236. Question 2 of the Contract Administration Examination

531was a clear and unambiguous multiple-choice question that

539required the candidate to determine, based upon the information

548given, on what workday (not calendar day) the pouring of

558concrete footings for a residential construction project would

566begin.

5677. There was only one correct answer to this question.

5778. Approximately 50 percent of the candidates chose this

586correct response.

5889. Petitioner chose another answer that was clearly

596incorrect because it represented the calendar day (not the

605workday ) on which the pouring would begin.

61311. He therefore appropriately received no credit for his

622answer.

62312. Question 9 of the Contract Administration Examination

631was a clear and unambiguous multiple-choice question that fairly

640tested the candidate's knowledge of the requirements of Section

649489.113(3), Florida Statutes, which provides as follows:

656A contractor shall subcontract all

661electrical, mechanical, plumbing, roofing,

665sheet metal, swimming pool, and air-

671conditioning work, unless such contractor

676holds a state certificate or registration in

683the respective trade category, however:

688(a ) A general, building, or residential

695contractor, except as otherwise provided in

701this part, shall be responsible for any

708construction or alteration of a structural

714component of a building or structure, and

721any certified general contractor or

726certified underground utility and excavation

731contractor may perform clearing and

736grubbing, grading, excavation, and other

741site work for any construction project in

748the state. Any certified building

753contractor or certified residential

757contractor may perform clearing and

762grubbing, grading, excavation, and other

767site work for any construction project in

774this state, limited to the lot on which any

783specific building is located.

787(b ) A general, building, or residential

794contractor shall not be required to

800subcontract the installation, or repair made

806under warranty, of wood shingles, wood

812shakes, or asphalt or fiberglass shingle

818roofing materials on a new building of his

826or her own construction.

830(c ) A general contractor shall not be

838required to subcontract structural swimming

843pool work.

845(d ) A general contractor, on new site

853development work, site redevelopment work,

858mobile home parks, and commercial

863properties, shall not be required to

869subcontract the construction of the main

875sanitary sewer collection system, the storm

881collection system, and the water

886distribution system, not including the

891continuation of utility lines from the mains

898to the buildings.

901(e ) A general contractor shall not be

909required to subcontract the continuation of

915utility lines from the mains in mobile home

923parks, and such continuations are to be

930considered a part of the main sewer

937collection and main water distribution

942systems.

943(f ) A solar contractor shall not be

951required to subcontract minor, as defined by

958board rule, electrical, mechanical,

962plumbing, or roofing work so long as that

970work is within the scope of the license held

979by the solar contractor and where such work

987exclusively pertains to the installation of

993residential solar energy equipment as

998defined by rules of the board adopted in

1006conjunction with the Electrical Contracting

1011Licensing Board.

1013(g ) No general, building, or residential

1020contractor certified after 1973 shall act

1026as, hold himself or herself out to be, or

1035advertise himself or herself to be a roofing

1043contractor unless he or she is certified or

1051registered as a roofing contractor.

105613. There was only one correct answer to this question.

106614. Approximately 65 percent of the candidates chose this

1075correct response.

107715. Petitioner chose another answer that was clearly

1085incorrect inasmuch as a newly licensed general contractor is not

1095free, pursuant to Section 489.113(3)(b), Florida Statutes, to

1103install or repair wood shake roofs on existing buildings

1112constructed by other contractors.

111616. Petitioner therefore appropriately received no credit

1123for his answer.

112617. Question 29 of the Contract Administration Examination

1134was a clear and unambiguous multiple-choice question that fairly

1143tested the candidate's ability to calculate, based upon the

1152information given, the cost of delivering 28,000 lineal feet of

1163#5 bars of reinforcing steel.

116818. There was only one correct answer to this question .

117919. Approximately 67 percent of the candidates chose this

1188correct response.

119020. Petitioner chose another answer that was clearly

1198incorrect.

119921. He therefore appropriately received no credit for his

1208answer.

120922. Question 38 of the Contract Administration Examination

1217was a clear and unambiguous multiple-choice question that fairly

1226tested the candidate's ability to distinguish between unit price

1235contracts and other types of contracts, including lump sum

1244contracts.

124523. Approximately 82 percent of the candidates chose this

1254correct response.

125624. Petitioner chose another answer that was clearly

1264incorrect.

126525. He therefore appropriately received no credit for his

1274answer.

1275CONCLUSIONS OF LAW

127826. Any person seeking certification to engage in

1286contracting on a statewide basis in the State of Florida must

1297apply to the Department of Business and Professional Regulation

1306to take the certification examination. Section 489.111, Florida

1314Statutes.

131527. The certification examination for general contractors

1322consists of three tests : Test 1, which covers business and

1333financial administration; Test 2, which covers contract

1340administration; and Test 3, which covers project management.

1348Rule 61G4-16.001(1)(a), (b) and (c), Florida Administrative

1355Code.

135628. Test 2 is the test at issue in the instant case.

136829. The "content areas to be covered [in Test 2] and the

1380approximate weights to be assigned to said areas" are set forth

1391in Rule 61G4-16.001(1)(b), Florida Administrative Code, as

1398follows:

13991. 27% Preconstruction Activities

14032. 40% Project Contracts

14073. 20% Obtaining Licenses, Permits and

1413Approvals

14144. 13% Construction Procedures and

1419Operations

142030. The following requirements imposed by Rule 61-

142811.010(1)(b), Florida Administrative Code, must be followed in

1436grading Test 2:

1439Departmentally developed objective,

1442multiple-choice examinations shall be graded

1447by the Department or its designee. After an

1455examination has been administered the Board

1461shall reject any questions which do not

1468reliably measure the general areas of

1474competency specified in the rules of the

1481Board. The Department shall review the item

1488analysis and any statistically questionable

1493items after the examination has been

1499administered. Based upon this review, the

1505Department shall adjust the scoring key by

1512totally disregarding the questionable items

1517for grading purposes, or by multi-keying,

1523giving credit for more than one correct

1530answer per question. All questions which do

1537not adequately and reliably measure the

1543applicant's ability to practice the

1548profession shall be rejected. The

1553Department shall calculate each candidate's

1558grade utilizing the scoring key or adjusted

1565scoring key, if applicable, and shall

1571provide each candidate a grade report.

157731. A candidate must receive a grade of at least 70

1588percent (out of 100 percent) on Test 2 to pass the examination.

1600Rule 61G4-16.001(21), Florida Administrative Code.

160532. A candidate who fails to attain a passing score on the

1617test is entitled to a "post-examination review" in accordance

1626with Rule 61-11.017, Florida Administrative Code, which provides

1634as follows:

1636(1 ) Pursuant to section 455.217(1)(d),

1642Florida Statutes, a candidate who has taken

1649and failed a departmentally developed

1654objective multiple-choice examination, a

1658departmentally developed practical

1661examination, or an examination developed for

1667the department by a professional testing

1673company shall have the right to review the

1681examination questions, answers, papers,

1685grades, and grade keys for the parts of the

1694examination failed or the questions the

1700candidate answered incorrectly only. Review

1705of examinations developed by or for a

1712national council, association, society

1716(herein after referred as national

1721organization) shall be conducted in

1726accordance with national examination

1730security guidelines.

1732(2 ) Examination reviews shall be conducted

1739in the presence of a representative of the

1747Department at its Tallahassee headquarters

1752during regular working hours which are

1758defined as 8:00 a.m. through 4:30 p.m.,

1765Monday through Friday, excluding official

1770state holidays.

1772(a ) All examination reviews shall be

1779conducted in accordance with that

1784examination's administration procedures to

1788the extent possible and feasible.

1793(b ) All security rules defined in Rule 61-

180211.007, Florida Administrative Code, shall

1807apply to all review sessions. Any candidate

1814violating said rule shall be dismissed from

1821the review session and may be subject to

1829other sanctions as determined by the Board.

1836(c ) All examination reviews by candidates

1843shall be scheduled and completed no later

1850than sixty (60) days subsequent to the date

1858on the grade notification. However reviews

1864will not be conducted during the thirty (30)

1872day period immediately prior to the next

1879examination.

1880(d ) A representative from the Bureau of

1888Testing shall remain with all candidates

1894throughout all examination reviews. The

1899representative shall inform candidates that

1904the representative cannot defend the

1909examination or attempt to answer any

1915examination questions during the review.

1920Prior to the review candidates shall be

1927provided written instructions titled "Review

1932Candidates Instructions" form number BPR-

1937TLT-002 incorporated herein by reference and

1943dated 08/01/96 and "Guidelines Governing

1948Examination Reviews" form number BPR-TLT-

1953001 , incorporated herein by reference and

1959dated 08/01/96, concerning the conduct rules

1965and guidelines for the review. Prior to any

1973review, all candidates shall acknowledge

1978receipt of these rules and affirm to abide

1986by all such rules in writing.

1992(e ) Upon completion of all reviews, all

2000candidates shall acknowledge in writing the

2006review's start time, the review's end time,

2013all materials reviewed, and other relevant

2019review information (Acknowledgment of Grade

2024Review).

2025(3 ) In addition to the provisions of (2)(a)

2034through (2)(e), examination candidates shall

2039be prohibited from leaving any review with

2046any written challenges, grade sheets, or any

2053other examination materials, unless the

2058respective Board determines by rule that

2064examination security will not be undermined

2070by doing so.

2073(4 ) For a practical examination, unless

2080examination security is involved, a

2085candidate may obtain by mail a copy of

2093his/her grade sheets resulting from a

2099practical examination. The request must be

2105made in writing, signed by the candidate and

2113state the address to which the grade sheets

2121are to mailed.

212433. Following the "post examination review," the candidate

"2132may petition for a formal hearing before the Division of

2142Administrative Hearings." Rule 61-11.012, Florida

2147Administrative Code.

214934. The burden is on the candidate at the "formal hearing"

2160to establish by a preponderance of the evidence that his

2170examination was erroneously or improperly graded. See Harac v.

2179Department of Professional Regulation, Board of Architecture ,

2186484 So. 2d 1333, 1338 (Fla. 3d DCA 1986) ; and Florida Department

2198of Health and Rehabilitative Services v. Career Service

2206Commission , 289 So. 2d 412, 414 (Fla. 4th DCA 1974).

221635. In the instant case, Petitioner requested a hearing to

2226contest the failing score he attained on the contract

2235administration portion (Test 2) of the certification examination

2243for general contractors that he took in October 2000. His

2253challenge is directed to his failure to have received credit for

2264the answers he gave in response to Questions 2, 9, 29, and 38.

227736. A review of the record evidence reveals that

2286Petitioner has not made a sufficient showing in support of his

2297position that he was erroneously or improperly denied credit for

2307his answers to these questions.

231237. Petitioner has failed to show that any of these

2322questions was unclear, ambiguous or in any other respect unfair

2332or unreasonable. Neither has he established that he correctly

2341answered these multiple-choice questions.

234538. Accordingly, in declining to award him any credit for

2355his answers to these questions, those grading his examination

2364did not act arbitrarily or without reason or logic.

237339. In view of the foregoing, Petitioner's challenge to

2382the failing score he received on the contract administration

2391portion of the October 2000 certification examination for

2399general contractors is without merit.

2404RECOMMENDATION

2405Based on the foregoing Findings of Fact and Conclusions of

2415Law, it is

2418RECOMMENDED that a final order be entered rejecting

2426Petitioner's challenge to the failing score he received on the

2436contract administration portion of the October 2000

2443certification examination for general contractors.

2448DONE AND ENTERED this 11th day of May, 2001, in

2458Tallahassee, Leon County, Florida.

2462___________________________________

2463STUART M. LERNER

2466Administrative Law Judge

2469Division of Administrative Hearings

2473The DeSoto Building

24761230 Apalachee Parkway

2479Tallahassee, Florida 32399-3060

2482(850) 488- 9675 SUNCOM 278-9675

2487Fax Filing (850) 921-6847

2491www.doah.state.fl.us

2492Filed with the Clerk of the

2498Division of Administrative Hearings

2502this 11th day of May, 2001.

2508COPIES FURNISHED:

2510Michael Richards

25123802 Lakewood Road

2515Lake Worth, Florida 33461

2519Charles F. Tunnicliff, Esquire

2523Department of Business and

2527Professional Regulation

25291940 North Monroe Street

2533Tallahassee, Florida 32399-2202

2536Kathleen O'Dowd, Executive Director

2540Construction Industry Licensing Board

2544Department of Business and

2548Professional Regulation

25507960 Arlington Expressway, Suite 300

2555Jacksonville, Florida 32211-7467

2558Hardy L. Roberts III, General Counsel

2564Department of Business and

2568Professional Regulation

2570Northwood Centre

25721940 North Monroe Street

2576Tallahassee, Florida 32399-2202

2579NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

2585All parties have the right to submit written exceptions within

259515 days from the date of this recommended order. Any exceptions

2606to this recommended order should be filed with the agency that

2617will issue the final order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 05/11/2001
Proceedings: Recommended Order
PDF:
Date: 05/11/2001
Proceedings: Recommended Order issued (hearing held April 11, 2001) CASE CLOSED.
PDF:
Date: 05/11/2001
Proceedings: Recommended Order cover letter identifying hearing record referred to the Agency sent out.
PDF:
Date: 05/02/2001
Proceedings: Respondent`s Proposed Recommended Order (filed via facsimile). filed.
Date: 04/25/2001
Proceedings: Transcript of Proceedings filed.
Date: 04/11/2001
Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
PDF:
Date: 04/05/2001
Proceedings: Amended Notice of Video Teleconference issued. (hearing scheduled for April 11, 2001; 1:00 p.m.; West Palm Beach and Tallahassee, FL, amended as to scheduling by video teleconference).
PDF:
Date: 04/03/2001
Proceedings: Amended Notice of Hearing issued. (hearing set for April 11, 2001; 1:00 p.m.; West Palm Beach, FL, amended as to hearing start time ).
PDF:
Date: 03/30/2001
Proceedings: Joint Motion to Change Time of Hearing (filed via facsimile).
PDF:
Date: 03/16/2001
Proceedings: Order of Pre-hearing Instructions issued.
PDF:
Date: 03/16/2001
Proceedings: Notice of Hearing issued (hearing set for April 11, 2001; 9:00 a.m.; West Palm Beach, FL).
PDF:
Date: 03/15/2001
Proceedings: Respondent`s Response to Initial Order (filed via facsimile).
PDF:
Date: 02/27/2001
Proceedings: Request for Hearing filed.
PDF:
Date: 02/27/2001
Proceedings: Initial Order issued.
PDF:
Date: 02/27/2001
Proceedings: Notice of Test Scores (filed via facsimile).
PDF:
Date: 02/27/2001
Proceedings: Agency referral (filed via facsimile).

Case Information

Judge:
STUART M. LERNER
Date Filed:
02/27/2001
Date Assignment:
04/09/2001
Last Docket Entry:
05/11/2001
Location:
West Palm Beach, Florida
District:
Southern
Agency:
Department of Business and Professional Regulation
 

Counsels

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