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

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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL RICHARDS , )

)

Petitioner , )

)

vs. ) Case No. 01-0791

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION , )

CONSTRUCTION INDUSTRY LICENSING )

BOARD , )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

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

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

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

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

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner : Michael Richards, pro se

3802 Lakewood Road

Lake Worth, Florida 33461

For Respondent : Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

STATEMENT OF THE ISSUE

Whether Petitioner's challenge to the failing grade he

received on the contract administration portion of the October

2000 General Contractor Examination should be sustained.

PRELIMINARY STATEMENT

By letter to Respondent dated February 8, 2001, Petitioner

requested a hearing to contest the failing score that he had

received on the contract administration portion of the October

2000 General Contractor Examination.

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

Division of Administrative Hearings (Division) for the

assignment of an Administrative Law Judge to conduct the hearing

Petitioner had requested.

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

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

questions (on the contract administration portion of the October

2000 General Contractor Examination) in dispute were

Questions 2, 9, 29, and 38.

During the evidentiary portion of the hearing, Petitioner

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

testified on behalf of Respondent. No other testimony was

presented. In addition to the testimony of these three

witnesses, eight exhibits (Petitioner's Exhibit 1 and

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

and received into evidence.

At the conclusion of the evidentiary portion of the

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

hearing submittals had to be filed no later than ten days

following the date of the filing of the transcript of the

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

filed on April 25, 2001.

On May 2, 2001, Respondent timely filed a Proposed

Recommended Order, which the undersigned has carefully

considered. To date, Respondent 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 contract administration portion

of the Florida certification examination for general contractors

administered in October 2000 (Contract Administration

Examination).

2. The Contract Administration Examination consisted of

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

100 points.

3. To attain a passing score on the Contract

Administration Examination, candidates needed to receive a total

of 70 points.

4. Of the 378 candidates who took the Contract

Administration Examination, 156 received passing scores.

5. Petitioner was not among this group of successful

candidates. He received a failing score of 66.67 on the

examination.

6. Question 2 of the Contract Administration Examination

was a clear and unambiguous multiple-choice question that

required the candidate to determine, based upon the information

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

concrete footings for a residential construction project would

begin.

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

8. Approximately 50 percent of the candidates chose this

correct response.

9. Petitioner chose another answer that was clearly

incorrect because it represented the calendar day (not the

workday ) on which the pouring would begin.

11. He therefore appropriately received no credit for his

answer.

12. Question 9 of the Contract Administration Examination

was a clear and unambiguous multiple-choice question that fairly

tested the candidate's knowledge of the requirements of Section

489.113(3), Florida Statutes, which provides as follows:

A contractor shall subcontract all

electrical, mechanical, plumbing, roofing,

sheet metal, swimming pool, and air-

conditioning work, unless such contractor

holds a state certificate or registration in

the respective trade category, however:

(a ) A general, building, or residential

contractor, except as otherwise provided in

this part, shall be responsible for any

construction or alteration of a structural

component of a building or structure, and

any certified general contractor or

certified underground utility and excavation

contractor may perform clearing and

grubbing, grading, excavation, and other

site work for any construction project in

the state. Any certified building

contractor or certified residential

contractor may perform clearing and

grubbing, grading, excavation, and other

site work for any construction project in

this state, limited to the lot on which any

specific building is located.

(b ) A general, building, or residential

contractor shall not be required to

subcontract the installation, or repair made

under warranty, of wood shingles, wood

shakes, or asphalt or fiberglass shingle

roofing materials on a new building of his

or her own construction.

(c ) A general contractor shall not be

required to subcontract structural swimming

pool work.

(d ) A general contractor, on new site

development work, site redevelopment work,

mobile home parks, and commercial

properties, shall not be required to

subcontract the construction of the main

sanitary sewer collection system, the storm

collection system, and the water

distribution system, not including the

continuation of utility lines from the mains

to the buildings.

(e ) A general contractor shall not be

required to subcontract the continuation of

utility lines from the mains in mobile home

parks, and such continuations are to be

considered a part of the main sewer

collection and main water distribution

systems.

(f ) A solar contractor shall not be

required to subcontract minor, as defined by

board rule, electrical, mechanical,

plumbing, or roofing work so long as that

work is within the scope of the license held

by the solar contractor and where such work

exclusively pertains to the installation of

residential solar energy equipment as

defined by rules of the board adopted in

conjunction with the Electrical Contracting

Licensing Board.

(g ) No general, building, or residential

contractor certified after 1973 shall act

as, hold himself or herself out to be, or

advertise himself or herself to be a roofing

contractor unless he or she is certified or

registered as a roofing contractor.

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

14. Approximately 65 percent of the candidates chose this

correct response.

15. Petitioner chose another answer that was clearly

incorrect inasmuch as a newly licensed general contractor is not

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

install or repair wood shake roofs on existing buildings

constructed by other contractors.

16. Petitioner therefore appropriately received no credit

for his answer.

17. Question 29 of the Contract Administration Examination

was a clear and unambiguous multiple-choice question that fairly

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

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

#5 bars of reinforcing steel.

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

19. Approximately 67 percent of the candidates chose this

correct response.

20. Petitioner chose another answer that was clearly

incorrect.

21. He therefore appropriately received no credit for his

answer.

22. Question 38 of the Contract Administration Examination

was a clear and unambiguous multiple-choice question that fairly

tested the candidate's ability to distinguish between unit price

contracts and other types of contracts, including lump sum

contracts.

23. Approximately 82 percent of the candidates chose this

correct response.

24. Petitioner chose another answer that was clearly

incorrect.

25. He therefore appropriately received no credit for his

answer.

CONCLUSIONS OF LAW

26. Any person seeking certification to engage in

contracting on a statewide basis in the State of Florida must

apply to the Department of Business and Professional Regulation

to take the certification examination. Section 489.111, Florida

Statutes.

27. The certification examination for general contractors

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

financial administration; Test 2, which covers contract

administration; and Test 3, which covers project management.

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

Code.

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

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

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

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

follows:

1. 27% Preconstruction Activities

2. 40% Project Contracts

3. 20% Obtaining Licenses, Permits and

Approvals

4. 13% Construction Procedures and

Operations

30. The following requirements imposed by Rule 61-

11.010(1)(b), Florida Administrative Code, must be followed in

grading Test 2:

Departmentally developed objective,

multiple-choice examinations shall be graded

by the Department or its designee. After an

examination has been administered the Board

shall reject any questions which do not

reliably measure the general areas of

competency specified in the rules of the

Board. The Department shall review the item

analysis and any statistically questionable

items after the examination has been

administered. Based upon this review, the

Department shall adjust the scoring key by

totally disregarding the questionable items

for grading purposes, or by multi-keying,

giving credit for more than one correct

answer per question. All questions which do

not adequately and reliably measure the

applicant's ability to practice the

profession shall be rejected. The

Department shall calculate each candidate's

grade utilizing the scoring key or adjusted

scoring key, if applicable, and shall

provide each candidate a grade report.

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

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

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

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

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

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

as follows:

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

Florida Statutes, a candidate who has taken

and failed a departmentally developed

objective multiple-choice examination, a

departmentally developed practical

examination, or an examination developed for

the department by a professional testing

company shall have the right to review the

examination questions, answers, papers,

grades, and grade keys for the parts of the

examination failed or the questions the

candidate answered incorrectly only. Review

of examinations developed by or for a

national council, association, society

(herein after referred as national

organization) shall be conducted in

accordance with national examination

security guidelines.

(2 ) Examination reviews shall be conducted

in the presence of a representative of the

Department at its Tallahassee headquarters

during regular working hours which are

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

Monday through Friday, excluding official

state holidays.

(a ) All examination reviews shall be

conducted in accordance with that

examination's administration procedures to

the extent possible and feasible.

(b ) All security rules defined in Rule 61-

11.007, Florida Administrative Code, shall

apply to all review sessions. Any candidate

violating said rule shall be dismissed from

the review session and may be subject to

other sanctions as determined by the Board.

(c ) All examination reviews by candidates

shall be scheduled and completed no later

than sixty (60) days subsequent to the date

on the grade notification. However reviews

will not be conducted during the thirty (30)

day period immediately prior to the next

examination.

(d ) A representative from the Bureau of

Testing shall remain with all candidates

throughout all examination reviews. The

representative shall inform candidates that

the representative cannot defend the

examination or attempt to answer any

examination questions during the review.

Prior to the review candidates shall be

provided written instructions titled "Review

Candidates Instructions" form number BPR-

TLT-002 incorporated herein by reference and

dated 08/01/96 and "Guidelines Governing

Examination Reviews" form number BPR-TLT-

001 , incorporated herein by reference and

dated 08/01/96, concerning the conduct rules

and guidelines for the review. Prior to any

review, all candidates shall acknowledge

receipt of these rules and affirm to abide

by all such rules in writing.

(e ) Upon completion of all reviews, all

candidates shall acknowledge in writing the

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

all materials reviewed, and other relevant

review information (Acknowledgment of Grade

Review).

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

through (2)(e), examination candidates shall

be prohibited from leaving any review with

any written challenges, grade sheets, or any

other examination materials, unless the

respective Board determines by rule that

examination security will not be undermined

by doing so.

(4 ) For a practical examination, unless

examination security is involved, a

candidate may obtain by mail a copy of

his/her grade sheets resulting from a

practical examination. The request must be

made in writing, signed by the candidate and

state the address to which the grade sheets

are to mailed.

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

"may petition for a formal hearing before the Division of

Administrative Hearings." Rule 61-11.012, Florida

Administrative Code.

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

to establish by a preponderance of the evidence that his

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) ; and Florida Department

of Health and Rehabilitative Services v. Career Service

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

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

contest the failing score he attained on the contract

administration portion (Test 2) of the certification examination

for general contractors that he took in October 2000. His

challenge is directed to his failure to have received credit for

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

36. 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 answers to these questions.

37. Petitioner has failed to show that any of these

questions was unclear, ambiguous or in any other respect unfair

or unreasonable. Neither has he established that he correctly

answered these multiple-choice questions.

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

his answers to these questions, those grading his examination

did not act arbitrarily or without reason or logic.

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

the failing score he received on the contract administration

portion of the October 2000 certification examination for

general contractors 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 score he received on the

contract administration portion of the October 2000

certification examination for general contractors.

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

(850) 488- 9675 SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of May, 2001.

COPIES FURNISHED:

Michael Richards

3802 Lakewood Road

Lake Worth, Florida 33461

Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

Kathleen O'Dowd, Executive Director

Construction Industry Licensing Board

Department of Business and

Professional Regulation

7960 Arlington Expressway, Suite 300

Jacksonville, Florida 32211-7467

Hardy L. Roberts III, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-2202

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.