11-002321 Gary Rosen vs. Department Of Business And Professional Regulation Status: Closed Recommended Order on Monday, October 24, 2011.

Summary: Petitioner failed to demonstrate, by a preponderance of the evidence, that the NAERMC Exams met the statutory and rule requirements to be certified for use in professional licensure of mold assessors and mold remediators.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GARY ROSEN , )

)

Petitioner, )

)

vs. ) Case No. 11 - 2321

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION , )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was conducted in this case pursuant to

sections 120.569 and 120.57(1), Florida Statutes, before

Administrative Law Judge Cathy M. Sellers of the Division of

Administrative Hearings on August 19 , 2011. The hearing was

held by video telecon ference at sites in West Palm Beach and

Tallahassee.

APPEARANCES

For Petitioner: Jack Bariton, Esquire

Law Offices of Jack Bariton

100 Northwest 70 th Avenue

Suite 203

Plantation, Florida 33317

For Respondent: Amy McKeever Toman, Esquire

Reginald Dixon, Esquire

Department of Business

and Professional Regulation

1 940 North Monroe Street

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue is whether the National Association of

Environmentally Responsible Mold Contractors ' Initial Mold

Assessor and Initial Mold Remediator licensing examinations meet

requirements of section 455.217, Florida Statutes, and Florida

Administrative Code Rule 61 - 11.015 , such that the y should be

certif ied by the State of Florida f or use in licens ing mold

assessors and mold remediators in Florida .

PRELIMINARY STATEMENT

On March 8, 2011, the Department of Business and

Professional Regulation (ÐRespondentÑ) issued a Notice of Intent

to Deny the application filed by Dr. Gary Rosen (ÐPetitionerÑ),

seeking certification of the National Association of

Environmentally Responsib le Mold Contractors ' Initial Mold

Assessor Exam and Initial Mold Remediator Exam as national

exam inations that meet the requirements of section 468.8413,

Florida Statutes, 1 for use in licensing mold assessors and mold

remediators in Florida. On March 12, 2011, Petitioner tim ely

filed an Election of Rights form and addendum, disputing the

material facts alleged in the Notice of Intent to Deny. The

matter was referred to the Division of Administrative Hearings

for the conduct of an administrative hearing pu rsuant to section

120.57(1) , Florida Statutes .

The final hearing initially was scheduled for

June 28, 2011. Petitioner retained counsel on June 22, 2011,

and filed a Motion for Continuance on June 23, 2011; the Motion

was granted and the final heari ng was continued until

August 19, 2011.

Respondent filed a Motion in Limine on June 21, 2011,

seeking to exclude evidence challenging Respondent ' s

c ertification of the American Council for Accredited

Certification (ÐACACÑ) as meeting the requirements of national

exam inations , and evidence challenging the legality of

Respondent ' s contract with ACAC to provide examination services

for licensing mold assessors a nd mold remediators in Florida.

On July 7, 2011, the Motion was granted with respect to evidence

relevant solely to those issues .

A telephonic prehearing conference between the parties and

the undersigned was held on August 11, 2011, to determine the

status of any prehearing statements to be submitted by the

parties.

On August 12, 2011, R espondent filed a Motion to Continue

or Dismiss, seeking to continue the final hearing for the

purpose of addressing discovery - related issues, or, in the

alternative, seeking to dismiss the proceeding . T he Motion was

denied on the same date.

On August 16, 2011, Petitioner filed a Unilateral

Prehearing Statement and a document entitled ÐSupplement to

Petitioner ' s List of Exhibits - Summary of Exhibits.Ñ On

August 17, 2011, Respondent filed a unilateral Amended

Prehear ing Statement .

Also on August 17 , 2011, Respondent filed a M otion to

Strike Petitioner ' s Supplement to Petitioner ' s List of Exhibits

- Summary of Exhibits. The undersigned reserved ruling on the

Respondent ' s Motion to Strike, advising the parties that the

Motion would be addressed, to t he extent necessary, in the

Recommended Order. Upon consideration , the undersigned

determines that the Supplement to Petitioner ' s List of Exhibits

Î Summary of Exhibits contains numerous factual statements not

substantiated by evidence in the record. Mor eover, to the

extent the document contains legal argument, that argument is or

should have been addressed in Petitioner ' s Proposed Recommended

Order. Accordingly, the undersigned determines that

Petitioner ' s List of Exhibits Î Summary of Exhibits is

redun dant, immaterial, and impertinent . 2 Respondent ' s Motion to

Strike is granted.

A telephonic prehearing conference was held on

August 17, 2011, to address fact ual and legal issues, including

evidentiary issues, to be addressed at the final hearing.

The final hearing was held on August 19, 2011. Petitioner

testified on his own behalf and offered Petitioner ' s Exhibits

100, 103, 109, 110, 122, 123, 125, 128, and 129 and Respondent ' s

Exhibits E and F into evidence. Respondent objected to the

admission of all but Petitioner ' s Exhibit 100 an d Respondent ' s

Exhibits E and F. A ll exhibits offered by Petitioner, except

Petitioner ' s Exhibit 122 , were admitted into evidence.

Respondent presented the testimony of Steve n Allen and

offered Respondent ' s Exhibits A , B, C, D, K, L, M, N, O, and P

into evidence. Petitioner objected to the admission of

Respondent ' s Exhibit B . A ll e xhibits offered by Respondent were

admitted into evidence . At the close of the hearing, the

undersigned advised the parties that they wou ld have ten days

from the date of filing of the hearing transcript in which to

file p roposed r ecommended o rders.

The two - volume transcript with filed with the Division of

Administrative Hearings on September 16, 2011. On September 19,

2011, a Notice o f Filing Transcript was issued, stating that

p roposed r ecommended o rders were due ten days after filing of

the transcript, on September 26, 2011. Pursuant to Plaintiff ' s

[sic] Motion for Extension of Time, the undersigned issued an

Order Granting Extension of Time, extending the time for the

parties to fil e p roposed r ecommended o rders until October 4,

2011.

The parties timely filed their P roposed R ecommended O rder s

on October 4, 2011. Both parties ' Proposed Recommended Order s

were considered in preparing this Recommended Order.

FINDINGS OF FACT

I. The Parties

1. Petitioner is the a pplicant for certification of the

National Association of Environmentally Responsible Mold

Contractors ' (ÐNAERMCÑ) Initial Mold Assessor Exam and Initial

Mold Remediator Exam (ÐNAERMC ExamsÑ) as national exams for use

in licensing mold assessors and mold remediators in Florida.

2 . Petitioner has extensive academic training and

professional experience in mold assessment and mold remediation.

He is a Florida - licensed mold asses sor and mold remediator , and

is certified or accredited by numerous professional mold - related

services organizations. 3 He has been a full - time professional

mold assessor and mold re mediator since 2004 - 2005 , having

p erformed over 1,000 mold and construction defect investigations

a nd over 500 mold remediation projects. He has authored

numerous texts on mold - related subjects and mold remediation.

3 . Petitioner has no formal training or experience in the

development of professional licensing examinations .

Petitioner ' s only training in exam development consisted of one

ten - hour course offered as part of a U.S. Green Building Council

certification program . H e also informally reviewed exam

development materials provided by Respondent ' s Exam ination

Development Specialist.

4 . Respondent is the state agency statutorily charged with

regulating mold - related services and administering the mold -

related services licensing program in Florida under chapter 468,

part XVI, Florida Statutes.

II. Florida ' s Mold - Related Services Regulatory Program

5 . Mold - related services consist of mold assessment 4 and

mold remediation, 5 which are performed by state - licensed mold

assessors and mold remediators.

6 . T here are two means by which persons may become

licensed to provide mold - related services in Florida : initial

licensure by examination, and licensure by endorsement .

7 . A person desiring to be initially licensed by

examination to provide mold - related services in Florida must,

among other things, pass a professional licensing exam ination .

8 . By statute, Respondent is required to provide,

contract, or approve services for the development, preparation,

administration, scoring, sco re reporting, and evaluation of

professional licensing examinations , including mold - related

services licensing examinations. Respondent may approve, for

use in professional licensing, any national examination that it

has certified as meeting the requirements of national

examinations and generally accepted testing standards.

§ 455.217(1), Fla. Stat.

I II . Respondent ' s Evaluation of the NAERMC Exams

9 . The NAERMC Exams are examinations that Petitioner

offer s in connection with courses app roved by the State of Texas

for training mold assessors and mold remediators , modified to

address Florida - specific issues .

1 0 . Petitioner applied to Respondent for certification of

the NAERMC Exam s for use in licensing mold assessors and mold

remediators in Florida. He did this by submitting two completed

Exam Evaluation Questionnaire s (ÐEEQÑ) to Respondent .

1 1 . The EEQ is an instrument Respondent has developed to

determin e whether an exam ination proposed for use in

profe ssional licensing meets the requirements of section

455.217(1 ) (d) , Florida Statutes ÏÏ that is, whether it is a

Ð national examination Ñ as defined in rule 61 - 11.015, and whether

it has been developed using generally accepted testing

standards .

12 . Petitioner submitted the first ver sion of his EEQ on

or about November 8, 2010. Respondent determined , from a review

of the EEQ , that the NAERMC Exams did not meet the statutory

standards for examinations that may be approved for use in

professional licensing in Florida. Respondent sent Petitioner a

written analysis and comments regarding the NAERMC Exams '

deficiencies.

1 3 . After rec eiving Respondent ' s analysis and comments ,

Petitioner requested and obtained a copy of the completed EEQ

that ACAC submitted for its examinations. The ACAC examinations

have been approved for use in mold - related services licensing in

Florida . 6

1 4 . Petitioner revised his E EQ responses and submitted an

amended EEQ for the NAERMC Exams on or about December 8, 2010.

Several , although not all, of the revised responses are

substantially similar or identical to ACAC ' s responses.

1 5 . Respondent ' s analysis of Petitioner ' s a mended EEQ

noted the similarity between many of Petitioner ' s and ACAC ' s

responses . Respondent asserts that Petitioner copied ACAC ' s

responses rather than providing truthful responses that

accurately describe the NAERMC Exams. Petitioner denie s he

copied the ACAC responses and claim s that his revised responses

reflect updates to the NAERMC Exams he made after having studi ed

the ACAC EEQ responses in order to determine Respondent ' s exam

certification requirements.

1 6 . R espondent determined that the NAERMC Exams d o not

me e t the statutory requirements in section 455.217 , and on

March 8, 2011, issued a Notice of Intent to Deny, proposing to

deny certification of the NAERMC Exams for use in professional

licensure of mold assessors and mold remediators in Florida.

I V . Statutory Standard for Certification of Professional

Licensing Examinations

1 7 . Pursuant to section 45 5.217 (1)(d) , Respondent may only

approve , for use in professional licensing , national

examination s it has certified meet the requirements of generally

accepted testing standards and national examinations.

18 . Steve n Allen, an Examination Development Specialist

with Respondent ' s Bureau of Education and Testing, testified on

behalf of Respondent regarding generally accepted testing

standards and national examinations .

19 . Mr. Allen has a Master ' s Degree in evaluati on and

measurement. His employment duties include evaluating exams

submitted to Respondent by independent exam ination providers for

certification for use in professional licensing , to determine

whether they are national examinations and have been develope d

using generally accepted testing standards. These duties

require Mr. Allen to be fully versed in generally accepted

testing standards and the national examination rule, and the

application of these standards in certif ying professional

licensing exams.

20. Mr. Allen was involved in reviewing the EEQs submitted

for the NAERMC Exams.

A. Generally Accepted Testing Standards

2 1 . P rofessional licensing examinations , including

examinations for mold - related services licensure, must meet

generally acce pted testing standards. These standards are well -

known, published standards for educational testing and

evaluation in the United States that are set by three national

organizations . 7 A ll testing organizations engaged in developing

high - stakes licensing exams must follow these standards .

22. Exam s must be prepared according to these standards to

ensure that they are valid and reliable . Exam validity involves

determining whether the exam covers a representative sample of

the cont ent and skills intended to be measured . Exam

reliability means that the exam provides consistent results when

measuring a test taker ' s knowledge, skills, and abilities.

2 3 . The starting point in developing an exam pursuant to

generally accepted testing standards is the performance of a

job/task analysis. A job/task analysis entails an analysis and

compilation of the knowledge, skills, and abilities to be tested

on a particular exam. If a job/task analysis is not accurately

performed, the validity of th e exam ÏÏ that is, whether the exam

actually measures what it purports to measure ÏÏ cannot be

verified. Therefore, performing a job/task analysis is

essential to preparing a valid examination .

2 4 . The first step in a job task analysis consists of the

assembly , by the testing organization , of a panel of experts in

the particular subject matter that the exam is being developed

to test. These subject matter experts must constitute a

representative sample of practitioners for the particular

profession for which the exam is being developed.

2 5 . Once the subject matter expert panel is assembled,

panel members complete an occupational survey instrument to

identify the knowledge, skills, and abilities for the particular

competency level for which the exam i s being developed. For

example, for an entry level skills licensing exam, the subject

matter expert panel ists would complete an occupational survey to

identify the knowledge, skills, and abilities that an applicant

of minim um competency for licensure must demo nstrate in order to

be licensed .

2 6 . The end product of the job/task analysis is a

collaboratively developed content outline identifying the areas

to be tested on the examination, with respective weight assigned

to each.

2 7 . Subject matter exp erts often have differ ing opinions

regarding content that should be tested on an exam. Therefore,

o btaining a consensus among subject matter expert panelists

regarding the content to be tested is essential to developing a

valid exam that tests the content intended to be tested. An

individual subject matter expert , working on his or her own, is

un able to engage in the collaborative process integral to

developing a valid exam.

2 8 . After the job/task analysis is complete, t he exam

items (questions) are pr epared by subject matter experts

according to the content outline . Before preparing the items,

the subject matter experts are trained to draft items that

accurately , reliably, and fairly test the content . After the

items have been prepared, they are revie wed by an item review

committee.

29. The se iterative review processes, conducted by subject

matter and psychometrics expert panel i s ts , are essential to

developing exam s that are valid and reliable.

30 . Pet itioner did not present evidence showing that he

developed the NAERMC Exams u sing a job/task analysis , as that

term is understood in the field of psychometric measurement .

Petitioner did not demonstrate that he conducted an occupational

survey of subject matter experts. Instead, h e compiled content

list s t hat he used in developing mold - related services courses 8

and writing books on mold - related topics . T hese compilations

were not developed for licensing examinations , 9 and the evidence

does not establish that they were d eveloped usin g the

collaborative process es entailed in a psychometrically sound

job/task analysis.

31. Petitioner ' s EEQ response also appears to misrepresent

key information regarding the NAERMC Exams. Specifically,

Petitioner ' s response to Item No. 24 of the December 8, 2010,

EEQ, addressing job/task analysis performance , states: Ð. . . a

review committee is formed from among industry experts and

stakeholders across the United States. Ñ However, at hearing,

Petitioner conceded that he is the only expert invol ved in

developing the NAERMC Exams and is the sole member of the

Ðreview committee. Ñ Petitioner ' s EEQ responses regarding

job/task analysis performance conflict with his testimony and ,

thus , are not credible.

3 2 . For these reasons, it is determined tha t Petitioner

did not present credible , persuasive evidence demonstrating that

he performed a job/task analysis in developing the NAERMC Exams .

A ccordingly, he did not show that the NAERMC Exams are valid.

3 3 . Petitioner also failed to demonstrate that the NAERMC

Exams are reliable , as that term is used in psychometric

measurement. E xam reliability is demonstrated by providing

statistical analys e s addressing the long - term performance of

individual exam items and of the exam as a whole .

3 4 . In his N ovember 8, 2010, EEQ response, Petitioner

stated that he performed an item analysis to identify poorly

performing items, but did not keep copies of the analys is .

However, in his December 8, 2010, EEQ response, Petitioner

provide d a statistical analysis fo r an item and an explanation

that substantially mimicked ACAC ' s response for that item .

3 5 . As a matter of practice in the professional

examination industry, e xam developer s keep and readily provide

item r eliability analysis information upon request from exam

certification entities . T he fact that Petitioner initially

represented that he did not keep such information , but then soon

after provided a response that mimic ked ACAC ' s , undermines the

EEQ ' s credibility and calls into question its accuracy wit h

respect to the NAERMC Exams ' r eliability .

3 6 . Petitioner ' s testimony and ot her evidence in the

record also call into question the credibility and accuracy of

other responses in the December 8, 2011, EEQ. Specifically , the

EEQ ask ed how many subject matter experts review each exam item

for accuracy and relevancy to the practice. Petitioner

responded that five experts would review each item ; however, at

hearing, he was unable to identify any of those experts.

Moreover, his EEQ respo nses directly conflict with a discovery

response 10 in which he stated that he was the sole subject matter

expert for development of the NAERMC Exams .

3 7 . B ased on inconsistencies in Petitioner ' s testimony,

EEQ responses, and discovery responses; his fai lure to perform a

psychometrically sound job/task analysis; his lack of

significant training in exam development; and his lack of

understanding of generally accepted testing standards and their

role in preparing valid, reliable exams, it is determine d that

Petitioner did not provide credible, persuasive evidence showing

that the NAERMC Exams meet generally accepted testing standards ,

as required by section 455.217(1)(d) .

B. National Examination

38 . To implement the Ðnational examinationÑ requirement in

section 455.217, Respondent has adopted r ule 61 - 11.015, Florida

Administrative Code, entitled "Definition of a National

Examination ." This rule establishes the criteria an exam must

meet to be a "national examination" that Respondent may use to

test professional licensure applicants. All rule criteria must

be met for an exam to be a "national examination . "

National or Multi - state Professional Organization

39 . To be a Ðnational examination, Ñ t he examination must

be developed by or for a national or multi - state professional

organization . Fla. Admin. Code R. 61 - 1 1.015(2) (emphasis added) .

To be a national or multi - state organization , t he organization

must be generally recognized by practitioners across the natio n

in the form of representatives from s tate licensing boards, or

must have membership representing a substantial number of the

nation ' s or states ' practitioners who have been licensed through

the national examination. Fla. Admin. Code R. 61 - 11.015(3).

4 0 . Petitioner created Certified Mold & Allergen Free,

Corp. (ÐCMAFCÑ) to, among other things, provide online training

cour ses in m old - related services. The courses are offered

through Petitioner ' s CMAFC, NAERMC , and Green Buildings.org

websites, and the U.S. Green Building Council (ÐUSGBCÑ) w ebsite.

The State of Texas approved two CMAFC courses for training

persons seeking licensure as mold assessor s and mold remediators

in Texas . CMAFC training courses have been taken by persons

located in states other than Florida.

4 1 . Petitioner also c reated NAERMC, an ÐassociationÑ that

provid e s free internet - based mold - related services training

courses 11 and Ð certification examinations Ñ that test the topics

covered in the online courses. Successful completion of the

Ðcertification exam s Ñ allows one to become certified by NAERMC.

Ð CertificationÑ by NAERMC entitles one to a certificate of

accomplishment and a logo symbol that can be placed on business

cards.

4 2 . Petitioner is NAERMC ' s only officer. NAERMC does not

have bylaws and does not prepare an annual report . Petitioner

testified that a nyone who passes the certification exams becomes

a NAERMC member, but he did not provide any specific information

regarding NAERMC ' s membership . NAERMC does not conduct

membership meetings or provide mailings to its membership.

4 3 . There is no evidence establishing that the NAERMC

Exams were developed by a national or multi - state professional

organization, as that term is defined in rule 61 - 11.015(3).

Petitioner did not present any evidence showing that NA ERMC ' s

membership includes or consists of practitioners across the

nation in the form of representat ives from state mold - related

services licensing boards. Nor did Petitioner present any

evidence that NAERMC ' s membership includes or consists of a

substant ial number of the nation ' s or state ' s mold - related

practitioners who have been licensed through the NAERMC Exams .

4 4 . Petitioner also did not present evidence establishing

that the NAERMC Exams were developed for a national or multi -

state professional organization , as provided in rule 61 -

11.015(3). The evidence show s only that Petitioner, through his

website s , offers mold - related services training courses to

persons in multiple states , and that successful complet ion of

the courses and exam s offered at the end of the course s entitles

one to NAERMC certification and membership. Petitioner

testified that the USGBC is a nationwide organization having

40,000 members , and presented evidence showing that some of his

CMA FC - copyrighted courses are offered through the USGBC website .

H owever, he did not present any evidence showing that USGBC is

generally recognized by practitioners across the nation in the

form of representati ves from state mold - related services

licensing boards , or that USGBC ' s membership represents a

substantial number of the nation ' s or state ' s mold - related

practitioners who have been licensed through NAERMC ' s Exams .

4 5 . Moreover , NAERMC ' s certification examinations are not

licensing examinations . Petitioner conceded this point at

hearing.

4 6 . For these reasons, Petitioner failed to establish that

the NAERMC Exams were developed by or for a national or multi -

state organization , as required by rule s 61 - 11.015(2) and 61 -

11.015(3).

Establishment of Entry Level Standards of Practice

4 7 . To be approved by Respondent as a Ðnational

examination, Ñ the exam ' s purpose must be to establish entry

level standards of practice that are common to all practitioners

in the licensing area. Fla. Admin. Code R. 61 - 11.015(2)(a).

Petitioner did not show that the NAERMC Exams meet this

criterion.

4 8 . As previously discussed, performing a psychometrically

sound job/task analysis is essential to developing an exam that

tests for the content intended to be tested ÏÏ here, the

knowledge, skills, and abilities that an entry level

professional mold assessor or mold remediator should possess .

49 . Petitioner, acting as a Ðcommittee of one,Ñ compiled

content lists based on his knowledge of mold - related topics that

he used to develop training courses and write books . At

hearing, Petitioner referred to t h ese content compilations a s a

Ðjob/task analysis , Ñ but they are not. A Ðjob/task analysisÑ is

a term of art used in psycho metric measure to describe a

specific, collaborative process for dev eloping exam content .

The evidence does not establish that Petitioner performed a

job/task analysis .

5 0 . Petitioner asserts that the NAERMC Exams test entry

level skills because he is a mold - related services subject

matter expert , so knows what content entry level mold - related

services professionals should know. Petitioner misapprehends

the importance of generally accepted testing standards in

developing exams that accurately test the knowledge, skills, and

abilities intended to be test ed . P etitioner has no training or

experience in licensure examination development, and his

testimony that the NAERMC Exams test entry level skills was not

persuasive.

5 1 . For these reasons, Petitioner did not demonstrate that

the NAERMC Exams ' purpose is to establish entry levels of

practice common to all mold - related services practitioners, as

required by rule 6 1 - 11.015(2)(a) .

Definition of Practice by a National Occupational Survey

5 2 . Rule 61 - 11.015(2 )( b) requires that the practice of the

profession at the national level be established through an

occupational survey with a representative sample of all

practitioners and professional practices.

5 3 . Petitioner did not meet this require ment. Petitioner

did not provide evidence establishing that he utilized a survey

instrument . 12 As previously discussed, P etitioner compiled mold -

related content lists that he used to develop training courses

and write books . However, these lists do not constitute an

occupational survey .

54. Petitioner t estified that he was involved with an

international organization in preparing standards for mold

assess ment and in an online community of mold experts . However,

he did n ot present any evidence to show that these entities

comprise a representative sample of all mold - related services

practitioners, as required by the rule.

5 5 . In sum, Petitioner did not provide credible,

persuasive evidence demons trat ing that he develop ed the NAERMC

Exams using an occupational survey to define the mold - related

services practice at the national level, as required by rule 61 -

11.0 1 5(2)(b) .

Assessment of Scope or Practice and Entry Skills

5 6 . Rule 61 - 11.015(2 )( c) provides that the licensure

examination m ust assess the scope of practice and the entry

skills defined by the national occupational survey.

5 7 . As previously discussed, Petitioner did not perform an

occupational survey in developing the NAERMC Exams ÏÏ a necessary

endeavo r to ensure that an exam accurately assess es the content

it is intended to assess . Because no occupational survey was

performed for the NAERMC Exams, it is not possible to verify

that they assess scope of practice and entry level skills, as

required by th e rule. Accordingly, the NAERMC Exams do not meet

this criterion .

Oversight and Scoring of the National Examination

5 8 . Rule 61 - 11.015(4) requires the organization to be the

responsible body for overseeing the development and scoring of

the national e xamination.

5 9 . Petitioner is the sole officer of NAERMC . He

t estified and provided information in the EEQs stating that he

alone develops the NAERMC Exams, and that he and his wife hand -

score the exams. Respondent did not present evidence showing

that these oversight measures are deficient under the rule.

Accordingly, Petitioner showed that NAERMC is responsible for

overseeing development and scoring of the NAERMC Exams.

H owever, because Petitioner has n ot established that the NAERMC

Exams are Ðnational examinations , Ñ this criterion is not met.

Examination Development and Scoring Security

6 0 . Rule 61 - 11.015(5) requires the organization to provide

security guidelines for the development and grading of the

national examination and to oversee the enforcement of these

guidelines.

6 1 . Petitioner testified that t he NAERMC Exams are

encrypted and electronic ally stored on Petitioner ' s computer and

a computer located in Nevada . Petitioner is the only person who

develop s the NAERMC Exams and has access to them.

6 2 . These measures do not conform to standard security

measures employed by e xam developers in the professional

examination industry . Typically, exam ination papers are

inventoried when they are removed from the vault for

admin istration, re - inventoried at the exam site before they are

administered, closely monitored during the examination process,

then re - inventoried by tracking form s once the exam is

completed. Measured against the industry standard, the NAERMC

Exams ' security measures are deficient.

6 3 . For these reasons , Petitioner did not present

credible, persuasive evidence demonstrating that rule 61 -

11.015(5) is met.

6 4 . Having considered the competent evidence in the

record , the undersigned determines , as a matter of ultimate

fact , that Petitioner failed to establish , by a preponderance of

the evidence , that the NAERMC Exams meet the requirements of

section 455.217 and rule 61 - 11.015.

CONCLUSIONS OF LAW

65 . The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding. § 120.57(1), Fla. Stat.

66 . This is a de novo proceeding. § 120.57(1)( k), Fla.

Stat. Accordingly, its purpose is to formulate final agency

action, not review agency action taken ear lier and

preliminarily. McDonald v. Dep ' t of Banking and Fin . , 346 So.

2d 569, 584 (Fla. 1 st DCA 1977).

67 . As the applicant for exam certification , 13 Petitioner

has the burden of proof, by a preponderance of the evidence, to

demonstrate entitlement to the certification of the NERRMC Exams

by meeting all applicable statutory and rule requirements.

§ 120.57(1)(j), Fla. Stat.; s ee Florida D ep ' t of Transp. v. J.

W. C. Co. , 396 So. 2d 778 (Fla. 1 st DCA 1981). T h e requirements

applicable to this proceeding are set forth in section 455.217

and rule 61 - 11.015 .

68 . Section 455.217(1)(a) requires Respondent to ensure

that professional licensure examinations adequately and reliably

measure an appl icant ' s ability to practice the profession

regulated by Respondent. To that end, Respondent may only

approve national examination s that it has certified as meet ing

the requirements of national examinations , and generally

accepted testing standards. § 455.217(1)(d) .

69 . Respondent has adopted r ule 61 - 11.015, Florida

Administrative Code, entitled "Definition of a National

Examination," which establishes the criteria an examination must

meet to be considere d a "national examination . " The rule

provides in pertinent part:

(2) A national examination is an

examination developed by or for a national

or multi - state professional association,

board, council, or society (hereinafter

referred to as organization) a nd

administered for the purpose of assessing

entry level skills necessary to protect the

health, safety, and welfare of the public

from incompetent practice and meets the

following standards:

(a) The purpose of the examination

shall be to establish entr y level standards

of practice that shall be common to all

practitioners;

(b) The practice of the profession at

the national level must be defined through

an occupational survey with a representative

sample of all practitioners and professional

practices ; and

(c) The examination for licensure must

assess the scope of practice and the entry

skills defined by the national occupational

survey.

(3) The organization must be generally

recognized by practitioners across the

nation in the form of representatives from

the State Boards or shall have membership

representing a substantial number of the

nation ' s or states ' practitioners who have

been licensed through the national

examination.

(4) The organization shall be the

responsible body for ove rseeing the

development and scoring of the national

examination.

(5) The organization shall provide

security guidelines for the development and

grading of the national examination and

shall oversee the enforcement of these

guidelines.

An applicant for certification of a professional licensing exam

must demonstrate that all of these criteria are met.

70. For the reasons set forth herein, Petitioner has not

met its burden to establish, by a preponderance of the evidence

in the record, that the NAERMC E xams meet the requirements of

national examinations and generally accepted testing standards,

as required by section 455.217 and rule 61 - 11.015.

71. Accordingly, Petitioner is not entitled to

certification of the NAERMC Exams for use in licensing mold

assessors and mold remediators in Florida.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Respondent enter a F inal O rder

d enying Petitioner ' s application for certification of the

National Association of Environmentally Responsible Mold

Contractors ' Initial Mold Assessor Exam and Initial Mold

Remediator Exam for use in the professional licensing of mold

assessors and mold remediators in Florida.

DONE AND ENTERED this 2 4 th day of October , 2011, in

Tal lahassee, Leon County, Florida.

S

CATHY M. SELLERS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 4 t h day of Octob er, 2011.

ENDNOTES

1 Unless otherwise stated, all references are to 2011 Florida

Statutes. See Lavernia v. Dep ' t of Prof. Reg. , 616 So. 2d 53

(Fla. 1 st DCA 1993)(law in effect at time of final agency

decision governs application).

2 See Fla. R. Civ. P. 1.140(f).

3 Pet itioner holds a bachelor ' s degree in chemistry and a

doctorate in biochemistry. He is a Florida - licensed mold

assessor, mold remediator, and building contractor. He holds

professional accreditation by the U.S. Green Building Council

and holds various cer tif ications from ACAC, the Indoor Air

Quality Association , and the Institute of Inspection, Cleaning

and Restoration Certification.

4 ÐMold assessmentÑ means a process performed by a mold assessor

that includes the physical sampling and detailed evaluation of

data obtained from a building history and inspection to

formulate an initial hypothesis about the origin, identity,

location, an d extent of amplification of mold growth of greater

than 10 square feet. § 468.8411(3), Fla. Stat.

5 ÐMold remediationÑ is defined in pertinent part as the

removal, cleaning, sanitizing, demolition, or other treatment,

including preventative activitie s, of mold or mold - contaminated

matter of greater than 10 square feet that was not purposely

grown at that location. § 468.8411(5), Fla. Stat.

6 Respondent certified, and entered into a contract with, ACAC

to serve as the mold - related services licensur e exam provider

for the State of Florida. Pursuant to section 455.217(1)(d),

Florida Statutes, Respondent ' s certification of, and contracting

with, ACAC does not preclude other providers ' exams from being

certified.

7 These organizations are the Americ an Psychological

Association, the American Educational Research Association, and

the National Council of Measurement of Education.

8 Two of these courses were approved by the State of Texas for

training applicants for licensure as mold assessors and mold

remediators.

9 Petitioner testified that he later used the compilations as

the content basis for the NAERMC Exams.

10 Response No. 2 of Petitioner, Gary Rosen ' s Response to

Respondent ' s Request for Production of Documents, dated August

3, 2011.

11 The training courses offered through NAERMC ' s website consist

of materials copyrighted by CMAFC.

12 Mr. Allen testified that an occupational survey entails a

survey instrument that is provided to, and completed by, the

panel of subject matter experts, to develop a consensus

regarding the topics to be covered on the examination. Mr.

Allen is an exam development specialist having extensive

knowledge of, and experience in, licensing exam development.

His testimony on this point was credible and persuasive.

13 The certification Petitioner seeks in this proceeding is a

ÐlicenseÑ under section 120.52(10), Florida Statutes.

COPIES FURNISHED :

Jack Bariton, Esquire

Jack Bariton Attorney at Law, P.A.

100 Northwest 7Oth Avenue, Suite 203

Plantation, Flo rida 33317

Reginald D. Dixon, Esquire

Department of Business

and Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399

Layne Smith, General Counsel

Department of Business

and Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399

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.