97-000932 Alva Lee Graham vs. Construction Industry Licensing Board Status: Closed Recommended Order on Monday, July 21, 1997.

Summary: Applicant's challenges to the grading of certain questions and problems on plumbing contracting certification examination were without merit.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALVA LEE GRAHAM , )

)

Petitioner , )

)

vs. ) Case No. 97-0932

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION , )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a Section 120.57(1) hearing was held in

this case on June 5, 1997, by video teleconference at sites in

Miami and Tallahassee, Florida, before Stuart M. Lerner, a duly

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Alva Lee Graham, pro se

20100 Northwest 34th Avenue

Miami, Florida 33056

For Respondent: R. Beth Atchison

Assistant General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

STATEMENT OF THE ISSUE

Whether Petitioner's challenge to the failing grades he

received on the Business and Financial Management and General

Trade Knowledge portions of the April 1996 plumbing contractor

certification examination should be sustained.

PRELIMINARY STATEMENT

By letter dated July 25, 1996, Petitioner requested a

"formal hearing" on his challenge to the failing grades he

received on the Business and Financial Management and General

Trade Knowledge portions of the April 1996 plumbing contractor

certification examination. On February 27, 1997, the matter was

referred to the Division of Administrative Hearings (Division)

for the assignment of an Administrative Law Judge to conduct the

hearing Petitioner had requested. 1

As noted above, the hearing was held on June 5, 1997. At

the hearing, a total of three witnesses testified: Petitioner;

Mike Kurtz, a Florida-licensed plumbing contractor who serves as

a consultant for the Department of Business and Professional

Regulation (Department); and Fae Hartsfield, who is employed as a

senior psychometrician by the Department. Petitioner testified

on his own behalf. Kurtz and Hartsfield testified on behalf of

the Department. In addition to the testimony of these three

witnesses, five exhibits (Respondent's Exhibits 1 through 5) were

offered and received into evidence.

At the conclusion of the evidentiary portion of the hearing,

the undersigned announced on the record that proposed recommended

orders had to be filed no later than 14 days after the

undersigned's receipt of the transcript of the hearing. The

undersigned received the transcript of the hearing on June 20,

1997. On July 7, 1997, the Department filed a motion requesting

an extension of the deadline for the filing proposed recommended

orders. The undersigned, on July 8, 1997, issued an order

granting the motion and extending the deadline to July 9, 1997.

On July 9, 1997, the Department filed a proposed recommended

order, which the undersigned has carefully considered. To date,

Petitioner has not filed any post-hearing submittal.

FINDINGS OF FACT

Based upon the evidence adduced at hearing and the record as

a whole, the following Findings of Fact are made:

1. Petitioner sat for the certification examination for

plumbing contractors administered in April of 1996 (Certification

Examination).

2. The Certification Examination consisted of two parts.

One part contained questions relating to business and financial

management. The other part contained questions testing the

applicants' general knowledge of the plumbing trade.

3. Prior to the Certification Examination, applicants were

given a list of reference materials (Reference Materials) and

advised that questions on the test would be taken from these

sources, which included AIA Document A201, the Builder's Guide to

Accounting , the Contractor's Manual, the National Standard

Plumbing Code Illustrated, NFPA 99- Health Care Facilities, and

NFPA 54- National Fuel Gas Code. The applicants were further

advised that they would be permitted to bring these Reference

Materials to the testing site and to use them in attempting to

answer examination questions.

Question 8--Business and Financial Management, Session One

4. Question 8 of Session One of the Business and Financial

Management portion of the Certification Examination was a

multiple choice question that was clear and unambiguous and

covered subject matter with which the applicants should have been

familiar.

5. It required the applicants to determine which one of the

choices given did not represent, according to AIA Document A201,

a basis upon which an architect could withhold certification of

payment.

6. Section 9.5 of AIA Document A201 addresses the subject

of "decisions to withhold certification" and provides as follows:

9.5 DECISIONS TO WITHHOLD CERTIFICATION

9.5.1 The Architect may decide not to

certify payment and may withhold a

Certificate for Payment in whole or in part,

to the extent reasonably necessary to protect

the Owner, if in the Architect's opinion the

representations to the Owner required by

Subparagraph 9.4.2 cannot be made. If the

Architect is unable to certify payment in the

amount of the Application, the Architect will

notify the Contractor and Owner as provided

in Subparagraph 9.4.1. If the Contractor and

Architect cannot agree on a revised amount,

the Architect will promptly issue a

Certificate for Payment for the amount for

which the Architect is able to make such

representations to the Owner. The Architect

may also decide not to certify payment or,

because of subsequently discovered evidence

or subsequent observations, may nullify the

whole or a part of a Certificate for Payment

previously issued, to such extent as may be

necessary in the Architect's opinion to

protect the Owner from loss because of:

1. defective Work not remedied;

2. third party claims filed or reasonable

evidence indicating probable filing of such

claims;

3. failure of the Contractor to make

payments properly to Subcontractors or for

labor, materials or equipment;

4. reasonable evidence that the Work cannot

be completed for the unpaid balance of the

Contract Sum;

5. damage to the Owner or another

contractor;

6. reasonable evidence that the Work will

not be completed within the Contract Time,

and that the unpaid balance would not be

adequate to cover actual or liquidated

damages for the anticipated delay; or

7. persistent failure to carry out the Work

in accordance with the Contract Documents.

7. It is clear from a reading of Section 9.5 of AIA

Document A201 that the only correct answer to Question 8 of

Session One of the Business and Financial Management portion of

the Certification Examination is choice "(C)."

8. The response selected by Petitioner, choice "(B)," is

clearly incorrect.

9. Petitioner therefore appropriately received no credit

for this question.

Question 11--Business and Financial Management, Session One

10. Question 11 of Session One of the Business and

Financial Management portion of the Certification Examination was

a multiple choice question that was clear and unambiguous and

covered subject matter with which the applicants should have been

familiar.

11. It required the applicants to select the choice which

represented the most likely explanation for a decrease in gross

profits in relation to sales.

12. Page 149 of the Builder's Guide to Accounting reads, in

pertinent part, as follows:

A second useful test shows your cash position

over a period of time. Take your gross

profits as a percentage of sales volume for a

given period. Then compute this percentage

for a number of periods to get a trend. This

indicates the amount of real control you have

over your costs. When gross profit decreases

in relation to sales, either you are not

controlling your costs or your prices do not

allow enough markup over your costs. Other

factors that affect the level of gross profit

can be unexpected inventory losses, increases

in idle time, and material theft.

13. It is clear, particularly upon a reading of the

foregoing excerpt from the Builder's Guide to Accounting, that

the only correct answer to Question 11 of Session One of the

Business and Financial Management portion of the Certification

Examination is choice "(C)."

14. The response selected by Petitioner, choice "(B)," is

clearly incorrect.

15. Petitioner therefore appropriately received no credit

for this question.

Question 33--Business and Financial Management, Session One

16. Question 33 of Session One of the Business and

Financial Management portion of the Certification Examination was

a multiple choice question that was clear and unambiguous and

covered subject matter with which the applicants should have been

familiar.

17. It required the applicants to select the choice which

accurately described the characteristics of a joint venture.

18. Page 1-15 of the Contractor's Manual gives the

following description of a "joint venture":

A joint venture is a special combination of

two or more persons jointly seeking a profit

in some specific venture, without an actual

partnership or corporate designation. The

rights of persons who intend to do business

as joint venture are governed substantially

by the same rules that govern partnerships.

An oral agreement between the parties may be

sufficient to form a joint venture. However,

to preclude misunderstandings it is strongly

recommended that the agreement be in writing.

The primary difference between a partnership

and a joint venture is that a partnership is

usually created for the transaction of

business of a particular type, while the

joint venture is usually limited to a single

transaction. The advantages and

disadvantages of a joint venture are

substantially the same as those listed above

for partnerships.

19. It is clear, particularly upon a reading of the

foregoing excerpt from the Contractor's Manual, that the only

correct answer to Question 33 of Session One of the Business and

Financial Management portion of the Certification Examination is

choice "(C)."

20. The response selected by Petitioner, choice "(B)," is

clearly incorrect.

21. Petitioner therefore appropriately received no credit

for this question.

Question 36--Business and Financial Management, Session Two

22. Question 36 of Session Two of the Business and

Financial Management portion of the Certification Examination was

a multiple choice question that was clear and unambiguous and

covered subject matter with which the applicants should have been

familiar.

23. It required applicants to determine which of the

choices given indicated the point in time when revenue, costs,

and expenses are first recognized under the percentage of

completion method of accounting.

24. Page 19 of the Builder's Guide to Accounting contains

the following statement regarding the percentage of completion

method of accounting:

The advantage of the percentage of completion

method is that income and its related costs,

expenses, and profits are recognized and

reported as the job progresses.

25. It is clear, particularly upon a reading of the

foregoing excerpt from page 19 of the Builder's Guide to

Accounting, that the only correct answer to Question 36 of

Session Two of the Business and Financial Management portion of

the Certification Examination is choice "(C)."

26. The response selected by Petitioner, choice "(D)," is

clearly incorrect.

27. Petitioner therefore appropriately received no credit

for this question.

Question 37--Business and Financial Management, Session Two

28. Question 37 of Session Two of the Business and

Financial Management portion of the Certification Examination was

a multiple choice question that was clear and unambiguous and

covered subject matter with which the applicants should have been

familiar.

29. It asked how a contractor can be sure that general

ledger entries have been correctly made.

30. Page 202 of the Builder's Guide to Accounting states

the following regarding general ledger entries:

After you post your ledger at the close of

the period, the first step to take in drawing

up financial statements is to put together a

trial balance . See Figure 21-1. This

worksheet proves that the ledger is in

balance. In all cases, debits should equal

credits. So the total of all debits on one

side of the trial balance must equal the

total of all credits on the other side.

Otherwise, none of the financial statements

will balance. . . .

The general ledger is in balance when all

entries into it have been made correctly.

The way to prove this is to add up the totals

of all accounts. Modern-day general ledgers

are maintained by the double entry system.

This means that every entry is made twice-

one debit and one credit. Debits are

positive numbers and credits are negative.

Because every entry includes a positive

(debit) and a negative (credit), a correctly

posted general ledger will add up to a net of

zero.

31. It is clear, particularly upon a reading of that

portion of page 202 of the Builder's Guide to Accounting set

forth above, that the only correct answer to Question 37 of

Session Two of the Business and Financial Management portion of

the Certification Examination is choice "(B)."

32. The response selected by Petitioner, choice "(D)," is

clearly incorrect.

33. Petitioner therefore appropriately received no credit

for this question.

Question 40--General Trade Knowledge, Division II, Session Three

34. Question 40 of Session Three of the General Trade

Knowledge (Division II) portion of the Certification Examination

was a multiple choice question that was clear and unambiguous and

covered subject matter with which the applicants should have been

familiar.

35. It required the applicants to examine a drawing

illustrating fixtures in a public lavatory and to compare the

drawing to the requirements set forth in the National Standard

Plumbing Code Illustrated, Section 7.16.2 of which addresses the

"size of floor drains" and provides as follows:

Floor drains shall be of a size to serve the

intended purpose. Minimum size trap shall be

2 inches.

36. The only correct answer to this question is choice

"(A)."

37. Inasmuch as Section 7.16.2 of the National Standard

Plumbing Code Illustrated provides that the"[m]inimum size trap

shall be 2 inches," the response selected by Petitioner, choice

"(B)," is clearly incorrect.

38. Petitioner therefore appropriately received no credit

for this question.

Question 3--General Trade Knowledge, Division II, Session Four

39. Question 3 of Session Four of the General Trade

Knowledge (Division II) portion of the Certification Examination

was a multiple choice question that was clear and unambiguous and

covered subject matter with which the applicants should have been

familiar.

40. It required the applicants to determine which of the

devices listed, according to NFPA 99- Health Care Facilities, was

required to be located on a medical gas line immediately outside

of each vital life-support or critical care area.

41. Section 4-4.1.3.2 of NFPA 99- Health Care Facilities

provides as follows:

A shutoff valve shall be located immediately

outside each vital life-support or critical

care area in each medical gas line, and

located so as to be readily accessible in an

emergency. Valves shall be protected and

marked in accordance with 4-6.4.1.2.

All gas-delivery columns, hose reels, ceiling

tracks, control panels, or other special

installations shall be located downstream of

this valve.

42. It is clear from a reading of the pertinent portions of

NFPA 99- Health Care Facilities that the only correct answer to

Question 3 of Session Four of the General Trade Knowledge

(Division II) portion of the Certification Examination is choice

"(C)."

43. The response selected by Petitioner, choice "(B)," is

incorrect.

44. Petitioner therefore appropriately received no credit

for this question.

Question 25--General Trade Knowledge, Division II, Session Four

45. Question 25 of Session Four of the General Trade

Knowledge (Division II) portion of the Certification Examination

was a multiple choice question that was clear and unambiguous and

covered subject matter with which the applicants should have been

familiar.

46. It required the applicants to identify which of the

piping materials listed would be suitable for use in a fuel gas

system according to NFPA- 54 National Fuel Gas Code.

47. Section 2.6 of NFPA 54- National Fuel Gas Code

describes the "acceptable piping materials and joining methods"

for a fuel gas system. It provides, in pertinent part, as

follows:

2.6.2 Metallic Pipe.

(a) Cast-iron pipe shall not be used.

(b) Steel and wrought-iron pipe shall be at

least of standard weight (Schedule 40) and

shall comply with one of the following

standards:

1. Standard for Welded and Seamless Wrought-

Steel Pipe, ANSI/ASME B36.10.

2. Standard Specification for Pipe, Steel,

Black and Hot-Dipped, Zinc-Coated Welded and

Seamless, ASTM A53; or

3. Standard Specification for Seamless

Carbon Steel Pipe for High-Temperature

Service, ASTM A106.

(c) Nodular (ductile) iron pipe shall comply

with one of the following standards:

1. Standard for Ductile-Iron Pipe,

Centrifugally Cast, in Metal Molds or Sand-

Lined Molds, for Gas, ANSI A21.52; or

2. Specification for Ductile Iron Pressure

Pipe, ASTM A377.

Such pipe shall be not less than 3-inch size,

shall not be welded, and shall be used only

underground outside building foundation

boundaries, or above ground, provided that

joints are properly restrained against

movement and separation.

48. It is clear from a reading of the pertinent portions of

NFPA 54- National Fuel Gas Code that the only correct answer to

Question 25 of Session Four of the General Trade Knowledge

(Division II) portion of the Certification Examination is choice

"(A)."

49. The response selected by Petitioner, choice "(D)," is

clearly incorrect.

50. Petitioner therefore appropriately received no credit

for this question.

Isometric Drawings

51. In Session Three of the General Trade Knowledge

(Division II) portion of the Certification Examination the

applicants were given "five (5) problems relating to the

interpretation of various plumbing codes as they pertain to

piping and equipment systems illustrations as are commonly used

on construction drawings and in the plumbing industry." For each

problem the applicants were given a floor plan or "plan view," as

well as a "blank isometric sheet" on which they were required to

"develop an isometric drawing from each of the floor plans in the

space provided . . . compl[ying] with applicable codes and the

directions given in the problem." The following "plumbing

isometric drawing criteria" were listed in the examination

booklet:

Listed below are the criteria used to

evaluate all isometric drawings. Remember to

display all symbols and the directions of

flow. You must meet all the criteria

specified, for each drawing to obtain credit.

1.0 Proper Orientation of Fixtures and

Piping in Reference to the Floor Plan

All fixtures and piping must be properly

oriented as outlined by the floor plan.

2.0 Display of Symbols on Isometric Drawings

All symbols must be displayed in the correct

manner.

3.0 Indication of Direction of Flow as per

the National Standard Plumbing Code

Illustrated 1993 and the 1995 supplement

The direction of flow must be indicated even

if the direction is implied. . .

4.0 Elevations of Connections

All connections must be displayed at the

proper elevations.

5.0 Use of 30-60-90 Degree Angles

All angles must be displayed at the proper

orientation.

6.0 Code Compliance as per Standard Plumbing

Code, 1994 with 1995 revisions, (SBCCI)

The drawing must be in compliance with this

code and pass inspection.

7.0 Representation of Floor Plan Elevations

in Piping

The piping must display the correct elevation

in reference to the floor plan.

The examination booklet also contained the following instruction:

"Use only those symbols, abbreviations and drawing conventions as

are contained in the approved references and this booklet."

52. Petitioner's drawings in response to Problems 1, 3, 4,

and 5 (Petitioner's Drawings 1, 3, 4, and 5) did not "meet all

the criteria specified." Therefore, in accordance with the

grading policy set forth in the examination booklet, 2 Petitioner

did not obtain any credit for these drawings.

53. In Petitioner's Drawing 1, vents and fittings were not

properly displayed, and the water closet line was not displayed

at the correct elevation.

54. Petitioner's Drawing 3 was not in compliance with

applicable code requirements governing elevation. In addition,

vents and direction of flow were not properly indicated in the

drawing.

55. Petitioner's Drawing 4 failed to display a vent stack

going through the roof that was shown on the "plan view." In

addition, the wash fountains were mislabeled and an inappropriate

fitting was indicated on the drawing.

56. In Petitioner's Drawing 5, vents, fittings, and

direction of flow were not properly displayed. 3

CONCLUSIONS OF LAW

57. A person seeking certification to engage in the

plumbing contracting business in the State of Florida must apply

to the Department to take the certification examination. Section

489.111, Florida Statutes.

58. The certification examination for plumbing contractors

consists of two tests. "Test one . . . consist[s] of questions

relating to the business and financial management of a plumbing

contracting firm." "Test two . . . consist[s] of questions

relating to general knowledge of the plumbing trade." Rule 61G4-

16.001(13)(a)1 and 2, Florida Administrative Code. Rule 61G4-

16.001(13)(a)2d, Florida Administrative Code, provides that

"[t]est two shall include, but not be limited two, five plumbing

isometric drawings." It further provides as follows:

Based on the criteria listed below, each

drawing will be independently evaluated by

three graders. At least two of the three

graders must agree that a criterion is

correct to be graded as correct. If one or

more criterion is determined to be incorrect

by at least two of the graders, the entire

drawing will be counted as incorrect. All

specified criteria below must be met for each

drawing to obtain credit. No partial credit

will be given for a drawing. The following

are the criteria used by the graders to

evaluate each of the five isometric drawings.

(i) Proper Orientation of Fixtures and

Piping in Reference to the Floor Plan. All

fixtures and piping must be properly oriented

as outlined by the floor plan.

(ii) Display of Symbols on Isometric

Drawings. All symbols must be displayed in

the correct manner.

(iii) Indication of Direction of Flow as per

the National Standard Plumbing Code

Illustrated 1993 and the 1994 supplement.

The direction of flow must be indicated even

if the direction is implied. . . .

(iv) Elevations of Connections. All

connections must be displayed at the proper

elevations.

(v) Use of 30-60-90 Degree Angles. All

angles must be displayed at the proper

orientation.

(vi) Code Compliance as per Standard

Plumbing Code, 1994 , (SBCCI). The drawing

must be in compliance with this code and pass

inspection.

(vii) Representation of Floor Plan

Elevations in Piping. The piping must

display the correct elevation in reference to

the floor plan.

59. The questions and problems on the certification

examination are required to adequately and reliably measure the

applicant's competency and ability as a plumbing contractor. If

they do not provide such an adequate and reliable measure, they

must be rejected and not taken into consideration in determining

the applicant's score. Rule 61-11.010, Florida Administrative

Code.

60. "The score necessary to achieve a passing grade on the

certification exam[ination] shall be no less than a percentage of

seventy (70.0%) out of one hundred (100%) on each of the two

tests." Rule 61G4-16.001(13)(b), Florida Administrative Code.

61. An applicant who fails to attain a passing score on the

examination is entitled to review the "examination questions,

pertinent exhibits related to those questions, the correct

answers to those questions, the applicant's responses to the same

questions, the scratch papers used at the examination, and the

grades and grading key used in the licensure examination." Rule

61G4-16.003(1), Florida Administrative Code.

62. During the review session the applicant has "the right

to challenge [in writing] any question the [applicant] believes

may be ambiguous or any solution which the [applicant] believes

may be incorrect." "Any challenges submitted after the applicant

has left the review room [will] not be analyzed." Rule 61G4-

16.003(4), Florida Administrative Code.

63. "If the challenge is denied, the [applicant] may file a

petition for a hearing [pursuant to Chapter 120, Florida

Statutes] which must be in writing, be received by the Department

within thirty days of the letter of denial, and clearly identify

the question(s) that the [applicant] believes is ambiguous or the

test solution(s) that the [applicant] believes is incorrect."

Rule 61G4-16.003(6), Florida Administrative Code.

64. The burden is on the applicant at hearing to establish

by a preponderance of the evidence that the applicant's

examination was erroneously or improperly graded. See Harac v.

Department of Professional Regulation, Board of Architecture , 484

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

Health and Rehabilitative Services v. Career Service Commission ,

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

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

contest the failing scores he received on the Business and

Financial Management (Test One) and General Trade Knowledge (Test

Two) portions of the April 1996 plumbing contractor certification

examination. His challenge is directed to his failure to have

received any credit for his responses to multiple choice

questions 8, 11, and 33 on Test One, Session One; multiple choice

questions 36 and 37 on Test One, Session Two; multiple choice

question 40 and isometric drawing problems 1,3,4,and 5 on Test

Two, Division II, Session Three; and multiple choice questions 3

and 25 on Test Two, Division II, Session Four.

66. A review of the record evidence reveals that Petitioner

has not made a sufficient showing in support of his position that

he was erroneously or improperly denied credit for his responses

to these multiple choice questions and isometric drawing

problems.

67. Petitioner has failed to show that any of the questions

or problems in dispute was unclear, ambiguous, misleading, or in

any other respect unfair or unreasonable. Neither has he

established that he correctly answered any of the disputed

multiple choice questions or that his drawings in response to the

isometric drawing problems in dispute met "[a]ll specified

criteria," as required by Rule 61G4-16.001(13)(a)2d, Florida

Administrative Code.

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

his responses to these questions and problems, those grading his

examination did not act arbitrarily or without reason or logic.

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

failing grades he received on the Business and Financial

Management and General Trade Knowledge portions of the April 1996

plumbing contractor certification examination is without merit.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered rejecting

Petitioner's challenge to the failing grades he received on the

Business and Financial Management and General Trade Knowledge

portions of the April 1996 plumbing contractor certification

examination.

DONE AND ENTERED this 21st day of July, 1997, in

Tallahassee, Leon County, Florida.

___________________________________

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of July, 1997.

ENDNOTES

1 It is not apparent from the record why this case was not

referred to the Division sooner.

2 This policy is also set forth in Rule 61G4-16.001(13)(a)2d,

Florida Administrative Code.

3 Petitioner is challenging the grading of only those examination

questions and problems which are specifically addressed in the

foregoing Findings of Fact.

COPIES FURNISHED :

Alva Lee Graham

20100 Northwest 34th Avenue

Miami, Florida 33056

R. Beth Atchison

Assistant General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Rodney Hurst, Executive Director

Construction Industry Licensing Board

7960 Arlington Expressway, Suite 300

Jacksonville, Florida 32211

Lynda L. Goodgame, 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.