94-004124 Mark Hachenburg vs. Construction Industry Licensing Board
 Status: Closed
Recommended Order on Wednesday, October 19, 1994.

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Summary: Where questions on general contract exam not shown to be unclear, unambigous or otherwise unfair and answer to questions were clearly incorrect, exam challenge rejected





12Petitioner, )


15vs. ) CASE NO. 94-4124







36Respondent. )



41Pursuant to notice, a formal hearing was conducted in this case on

53September 1, 1994, in Miami, Florida, before Stuart M. Lerner, a duly designated

66Hearing Officer of the Division of Administrative Hearings.


75For Petitioner: Mark Hachenburg, pro se

81905 Northeast 199th Street, Number 208

87Miami, Florida 33179

90For Respondent: Wellington H. Meffert II, Esquire

97Assistant General Counsel

100Department of Business and

104Professional Regulation

1061940 North Monroe Street, Suite 60

112Tallahassee, Florida 32399-0792


119Whether Petitioner's challenge to the failing grade he received on the

130contract administration portion of the May 18, 1994, general contractor's

140certification examination should be sustained?


147By letter dated June 14, 1994, Petitioner initiated a challenge to the

159failing grade he received on the contract administration portion of the general

171contractor's certification examination for which he sat on May 18, 1994.

182Initially, Petitioner took issue with the grading of Questions 3, 14, 21, 29,

195and 31 on that portion of the examination. Following an examination review, the

208challenges to Questions 3, 14 and 29 were resolved, leaving Petitioner with a

221total of 69 points on this portion of the examination, one point short of a

236passing grade.

238Thereafter, Petitioner requested a formal hearing on the matters that

248remained in dispute. The case was referred to the Division of Administrative

260Hearings on July 22, 1994, for the assignment of a Hearing Officer to conduct

274the formal hearing Petitioner had requested.

280At the hearing, which was held on September 1, 1994, Petitioner testified

292on his own behalf. He also offered one exhibit into evidence. Respondent

304presented the testimony of one witness, Karl Lieblong, a certified general

315contractor who serves as a consultant for the National Assessment Institute,

326which prepared and administered the May 18, 1994, certification examination at

337issue in the instant case. In addition, Respondent offered seven exhibits into

349evidence. All of Respondent's exhibits, as well as Petitioner's lone exhibit,

360were received by the Hearing Officer.

366Following the conclusion of the evidentiary portion of the hearing on

377September 1, 1994, the Hearing Officer advised the parties on the record that

390their post-hearing submittals had to be filed no later than ten days following

403the Hearing Officer's receipt of the transcript of the hearing. The Hearing

415Officer received the hearing transcript on September 23, 1994. On September 30,

4271994, Respondent timely filed its post-hearing submittal. Respondent's post-

436hearing submittal contains, among other things, seven proposed findings of fact.

447All of these proposed findings of fact have been accepted by the Hearing Officer

461and incorporated in substance [although not necessarily repeated verbatim] in

471this Recommended Order, with the exception of proposed finding of fact 6, to the

485extent that it states that "[t]he correct response [to Question 31 of the

498contract administration portion of the May 18, 1994, certification examination]

508was 'C'" [as opposed to "B"]. To date, Petitioner has not filed any post-

523hearing submittal.


528Based upon the evidence adduced at hearing, and the record as a whole, the

542following Findings of Fact are made:

5481. Petitioner sat for the certification examination for general

557contractors administered on May 18, 1994.

5632. The contract administration portion of the examination consisted of 40


5753. The first twenty questions were worth four points each. The remaining

587twenty questions were worth one point apiece.

5944. To pass this portion of the examination, a total of 70 points was


6095. Question 21 of this portion of the examination was a multiple choice

622question which required the candidate to identify factors which, according to

633the "Building Estimators Reference Book," should be taken into consideration in

644estimating the cost of erecting tubular steel scaffolding.

6526. According to the "Building Estimators Reference Book," the cost of

663erecting tubular steel scaffolding "depend[s] on many conditions: the type of

674job to be done, whether interior or exterior; ground conditions; height and

686width, as well as load to be carried; and length of time it will be in use."

7037. Accordingly, the correct answer to Question 21 was clearly "B."

7148. Petitioner selected answer "A," which included "wire rope block size"

725as one of the factors needed to be considered in estimating the cost of erecting

740tubular steel scaffolding.

7439. Wire rope block, however, is used in suspended scaffolding, not in

755tubular steel scaffolding.

75810. Petitioner's answer to question 21 therefore was clearly incorrect.

76811. Question 31 of the contract administration portion of the May 18,

7801994, certification examination was also a multiple choice question. It

790required the candidate to select the number of days within which, according to

803the "American Institute of Architects' Document A401" (AIA-A401), a contractor

813must make a progress payment to a subcontractor following the contractor's

824receipt of payment from the owner.

83012. Section 11.3 of AIA-A401 provides, in pertinent part, that "[t]he

841Contractor shall pay the Subcontractor each progress payment within three

851working days after the Contractor receives payment from the Owner."

86113. Accordingly, the correct answer to Question 31 was clearly "B."

87214. Petitioner's answer to the question was "C," which was clearly


88415. Petitioner erroneously based this answer upon Section 4.7 of AIA-A401,

8951/ which addresses the subject of "remedies for nonpayment" and does not,

907unlike Section 11.3 of that document, specify the time frame within which the

920contractor must pay the subcontractor.


92816. Any person seeking certification to engage in contracting on a

939statewide basis in the State of Florida must apply to the Department of Business

953and Professional Regulation to take the certification examination. Section

962489.111, Fla. Stat.

96517. The certification examination for general contractors consists of

974three tests: Test 1, which covers business and financial administration; Test

9852, which covers contract administration; and Test 3, which covers project

996management. Fla. Admin. Code Rule 61G4-16.001(1)(a), (b) and (c).

100518. An applicant must receive a grade of at least 70 percent (out of 100

1020percent) on each of these tests to pass the examination. Fla. Admin. Code Rule


103519. An applicant who fails to attain a passing score on the examination is

1049entitled to review his examination and to submit written objections for

1060evaluation by Department staff. Fla. Admin. Code Rules 61G4-16.003.

106920. If, after such reevaluation, the applicant still has a failing score

1081and he believes that an error was made in the grading of his examination, the

1096applicant may request a hearing pursuant to Chapter 120, Florida Statutes.

1107Section 455.229, Fla. Stat.; Fla. Admin. Code Rule 61G4-16.003(6).

111621. The burden is on the applicant at hearing to establish by a

1129preponderance of the evidence that his examination was erroneously or improperly

1140graded. See Harac v. Department of Professional Regulation, Board of

1150Architecture, 484 So.2d 1333, 1338 (Fla. 3d DCA 1986); Florida Department of

1162Health and Rehabilitative Services v. Career Service Commission, 289 So.2d 412,

1173414 (Fla. 4th DCA 1974).

117822. In the instant case, Petitioner requested a hearing to contest the

1190failing score he attained on the contract administration portion (Test 2) of the

1203certification examination for general contractors that he took on May 18, 1994.

1215His challenge is directed to his failure to have received credit for the answers

1229he gave in response to Questions 21 and 31.

123823. A review of the record evidence reveals that Petitioner has not made a

1252sufficient showing in support of his position that he was erroneously or

1264improperly denied credit for his answers to these questions.

127324. Petitioner has failed to show that either of these questions was

1285unclear, ambiguous or in any other respect unfair or unreasonable. Neither has

1297he established that he correctly answered these multiple-choice questions. That

1307he selected the wrong answers to these questions is readily apparent from a

1320reading of the pertinent portions of the source materials referenced in these


133325. Accordingly, in declining to award him any credit for his answers to

1346these questions, those grading his examination did not act arbitrarily or

1357without reason or logic.

136126. In view of the foregoing, Petitioner's challenge to the failing score

1373he received on the contract administration portion of the May 18, 1994,

1385certification examination for general contractors is without merit.


1394Based upon the foregoing Findings of Fact and Conclusions of Law, it is


1408RECOMMENDED that the Construction Industry Licensing Board enter a final

1418order rejecting Petitioner's challenge to the failing score he received on the

1430contract administration portion of the certification examination for general

1439contractors for which he sat on May 18, 1994.

1448DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of

1460October, 1994.



1466Hearing Officer

1468Division of Administrative Hearings

1472The DeSoto Building

14751230 Apalachee Parkway

1478Tallahassee, Florida 32399-1550

1481(904) 488-9675

1483Filed with the Clerk of the

1489Division of Administrative Hearings

1493this 19th day of October, 1994.


15001/ Section 4.7 of AIA-A401 reads as follows:

1508If the Contractor does not pay the Subcontractor through no fault of the

1521Subcontractor, within seven days from the time payment should be made as

1533provided in this Agreement, the Subcontractor may, without prejudice to other

1544available remedies, upon seven additional days written notice to the Contractor,

1555stop the Work of this Subcontract until payment of the amount owing has been

1569received. The Subcontract Sum shall, by appropriate adjustment, be increased by

1580the amount of the Subcontractor's reasonable costs of shutdown, delay and start-



1595Mark Hachenburg

1597905 Northeast 199th Street, #208

1602Miami, Florida 33179

1605572 Northeast 31st Street

1609Pompano Beach, Florida 33064

1613Wellington H. Meffert II, Esquire

1618Assistant General Counsel

1621Department of Business and

1625Professional Regulation

16271940 North Monroe Street, Suite 60

1633Tallahassee, Florida 32399-0792

1636Richard Hickok, Executive Director

1640Construction Industry Licensing Board

16447960 Arlington Expressway, Suite 300

1649Jacksonville, Florida 32211-7467

1652Jack McRay, General Counsel

1656Department of Business and

1660Professional Regulation

16621940 North Monroe Street, Suite 60

1668Tallahassee, Florida 32399-0792


1677All parties have the right to submit written exceptions to this recommended

1689order. All agencies allow each party at least 10 days in which to submit

1703written exceptions. Some agencies allow a larger period of time within which to

1716submit written exceptions. You should contact the agency that will issue the

1728final order in this case concerning agency rules on the deadline for filing

1741exceptions to this recommended order. Any exceptions to this recommended order

1752should be filed with the agency that will issue the final order in this case.

Select the PDF icon to view the document.
Date: 02/16/1995
Proceedings: Final Order filed.
Date: 02/06/1995
Proceedings: Agency Final Order
Date: 02/06/1995
Proceedings: Recommended Order
Date: 10/19/1994
Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held 09/01/94.
Date: 09/30/1994
Proceedings: Respondent's Proposed Recommended Order filed.
Date: 09/23/1994
Proceedings: Transcript of Proceedings filed.
Date: 09/01/1994
Proceedings: CASE STATUS: Hearing Held.
Date: 08/12/1994
Proceedings: Ltr. to SLS from Mark Hachenburg re: Reply to Initial Order filed.
Date: 08/05/1994
Proceedings: Notice of Hearing sent out. (hearing set for 9/1/94; 9:30am; Miami)
Date: 08/01/1994
Proceedings: (Respondent) Response to Initial Order filed.
Date: 07/27/1994
Proceedings: Initial Order issued.
Date: 07/22/1994
Proceedings: Agency referral letter; Request for Administrative Hearing, letter form filed.
Date: 07/20/1994
Proceedings: Request for Administrative Hearing, letter form filed.

Case Information

Date Filed:
Date Assignment:
Last Docket Entry:
Miami, Florida

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Related Florida Statute(s) (2):

Related Florida Rule(s) (1):