19-002367 Gary P. Santoro vs. Department Of Business And Professional Regulation, Construction Industry Licensing Board Status: Closed Recommended Order on Friday, August 23, 2019.

Summary: Petitioner failed to show the Construction Business and Finance Examination was unfair, that there was insufficient transparency in the exam review process, or that the grading process was arbitrary and capricious. His failing grade stands.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GARY P. SANTORO,

Petitioner,

vs. Case No. 19 - 2 367

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION,

CONSTRUCTION INDUSTRY LICENSING

BOARD,

Respondent.

_______________________________/

RECOMMENDED ORDER

A final hearing was held in this matter before Robert S.

Cohen, an Administrative Law Judge with the Division of

Administrative Hearings (ÐDOAHÑ), on July 2, 2019 , by video

teleconference at sites in Sarasota and Tallahassee, Flo rida.

APPEARANCES

For Petitioner: Gary Peter Santoro , pro se

Hometown Air & Services

8229 Blaikie Court

Sarasota, Florida 34240 - 8323

For Respondent: Thomas G. Thomas, Esquire

Departmen t of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

STATEMENT OF THE ISSUE S

The issue s in this case are whether Petitioner, Gary P.

Santoro ( Ð Petitioner Ñ or Ð Mr. Santoro Ñ ), undeservedly received a

failed grade on the Construction Business and Finance Examination

(ÐExaminationÑ) for licensure as an air - conditioning contractor;

whether any questions on the examination had more than one

correct answer; whethe r the examination is unfair; whether there

is transparency in the examination review process; and whether

the examination grading process is arbitrary and capricious.

PRELIMINARY STATEMENT

Mr. Santoro is seeking to become licensed as a Class ÐAÑ

air - condit ioning contractor by the Construction Industry

Licensing Board ( Ð Board Ñ ) within the Department of Business and

Professional Regulation ( Ð Respondent Ñ or Ð Department Ñ ).

Petitioner must obtain at least a 70 - percent score on the

Examination as one of the requ irements for licensure as an

air - conditioning contractor. Petitioner is challenging the

scoring of his answers on the Examination , which was taken by him

on November 16, 2018.

After receiving his score report informing him that he had

not passed the Exam ination, Petitioner requested a review of his

incorrect answers and related questions. His request was

granted , and his review was held on December 18, 2018. Based on

the review, he was given credit for one of his incorrect answers,

but this still left h im one correct answer short from achieving a

passing score. Mr. Santoro was informed of his right to contest

the determination in an administrative hearing. Mr. Santoro

timely filed with the Department a request for an administrative

hearing in which he raised disputed facts regarding the scoring

of his Examination. The Department transmitted the case to DOAH

for assignment of an a dministrative law j udge to conduct the

requested hearing. On June 12, 2019, RespondentÓs Motion for

More Definite Statement was approved and PetitionerÓs response

narrowed the challenged questions to four: BF 1290, BF 0473,

BF 0162, and BF 1691.

At the hearing, Petitioner testified on h is own behalf and

presented the testimony of Ruth Lynn Santoro. Petit i oner offered

eight ex hibits, all of which were admitted into evidence.

Respondent presented the testimony of Alex Bosqu é for the

DepartmentÓs Bureau of Education and Testing , Dr. Cynthia

Woodley , and Lawrence Graham and offered eight exhibits, all of

which were admitted into evidence.

Petitioner filed his Proposed Recommended Order on July 5,

2019. The one - volume Transcript of the final hearing was filed

on July 15, 2019 . Respondent timely submitted its Proposed

Recommended Order on July 24 , 2019. Both proposed orders have

been considered, along with the entire evidentiary record for

purposes of this O rder.

References to statutes are to Florida Statutes (201 8 ) ,

unless otherwise noted.

FINDING S OF FACT

1. Mr. Santoro took the Examination on November 16, 2018.

Petitioner failed the Examination because he scored less than

70 percent correct.

2. The Examination contains 125 questions, 120 of which are

scored . T he other five are not scored and are considered ÐpilotÑ

questions for potential use on future examinations. In or der to

pass the Examination, a candidate must obtain a score of at least

70 percent. All scored questions on the Examination are weighted

equally.

3. As a result of failing to pass the Examination,

Petitioner was notified of his results.

4. All question s on the Examination had a single correct

answer.

5. Cynthia Woodley, Ph.D., employed by Professional

Testing, Inc. ( Ð PTI Ñ ), as the chief operating officer, is an

expert in psychometrics and exam development. She holds a

masterÓs degree in vocational edu cation and a doctorate in

curriculum and instruction with a specialization in measurement.

Her current position calls for her to manage a number of

licensure and certification exam programs. She explained at

length how specific questions become part of a professional

licensure exam.

6. To develop questions, her company brings in any number

of subject matter experts, people actually employed in the

professions being tested, and they help develop subject matter

questions for a particular exam. That was th e process used for

development of the Examination in this matter.

7. Once the subject matter experts are trained in exam

question writing techniques, they write questions , which are

reviewed by other subject matter experts to determine whether the

questio ns are fair and understandable enough to be answer ed by

prospective test takers. Generally, five subject matter experts

review each question before it makes its way onto an exam.

8. PTI measures the ÐP valueÑ of the questions by

determining what percen t of individuals taking a given exam

answer a particular question correctly. For example, a P value

of .90 means that 90 percent of the people taking the exam

answered a particular question correctly. PTI looks for a wide

range of P values in its exam qu estions . If a P value is too

low, say .40, the company might reexamine that question to

determine whether it should be removed from future exams since

fewer than half the people taking the exam answer ed it correctly.

9. The business and finance portion o f the exam is given to

all contractors, regardless of their specialty, with the

exception of pool service contractors. Here, Petitioner, a

HVAC contractor was administered the same Examination as plumbing

contractors, electrical contractors, general contr actors, etc.

10. Each of the 120 questions on the exam in this case was

equally weighted. There were also five pilot questions inserted

into the exam , which did not count towards the total score, but

were included as test questions for future exams.

11 . Petitioner provided hearsay documents regarding

computer hacking and computer glitches associated with some exams

administered around the United States. However, he did not

connect the articles submitted into evidence to the exam

administered in this c ase or any exam administered by the

Department in Florida. Dr. Woodley was familiar with the

allegations of computer glitches in testing, but testified that

the problems were with K - 12 testing in schools, not with

professional licensure exams , such as adm inistered by the

Department . Therefore, since the hearsay evidence was not linked

to the exam at issue or similar professional licensure exams

given in Florida , it is entitled to no weight in arriving at the

decision in this case.

12. Question BF 1290 has a single correct answer , which is

answer ÐC . Ñ Petitioner selected answer ÐB . Ñ Petitioner was

unable to demonstrate that the answer he selected was correct.

13 . Question BF 0473 has a single correct answer , which is

answer ÐA . Ñ Petitioner selected a nswer ÐC . Ñ This question asks

for an answer of general applicability. PetitionerÓs claim that

his answer is equally correct is based on a narrow exception in

law. Accordingly, Petitioner was not able to demonstrate that

the answer he selected was correc t.

14 . Question BF 0162 has a single correct answer , which is

answer ÐB . Ñ Petitioner selected answer ÐC . Ñ Petitioner was

unable to demonstrate that the answer he selected was correct.

15 . Question BF 1691 has a single correct answer , which is

answer ÐC . Ñ Petitioner selected answer ÐD . Ñ Petitioner was

unable to demonstrate that the answer he selected was correct.

16 . Petitioner was unable to submit sufficient evidence to

show that the E xamination is unfair , that there is insufficient

transparency in t he examination review process , or that the

examination grading process is arbitrary and capricious.

Accordingly, he cannot prevail in his challenge to the

E xam ination .

17. Petitioner testified that he took and passed the HVAC

contractors special license examination on his first attempt. He

has taken the Examination on numerous occasions and is yet to be

successful. He testified he studied hard for every

administration of the exam, but just cannot reach the finish line

successfully. While that is unfort unate, the evidence does not

support that his failure to succeed on the Examination is the

fault of the exam itself or of the Department either in its

contracting to have the exam created or in the administration of

the exam.

18. From the way he conducted himself at hearing,

Petitioner appears to be an intelligent, diligent, and successful

individual in his HVAC business. For some unknown reason he has

been unable to successfully complete the Examination. His

persistence in retaking the Examination multi ple times is

admirable and should ultimately pay off with his successful

passage of the Examination.

CONCLUSIONS OF LAW

19 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter pursuant to

sections 120.569 an d 120.57(1) , Florida Statutes.

2 0 . The Department is the state agency responsible for the

regulatory process governing contractors, including the process

by which persons apply for licensure as contractors in the State

of Florida pursuant to c hapter 455 a nd p art I of c hapter 489,

Florida Statutes. In addition to other requirements, applicants

for licensure must pass the Examination administered by the

Department or its agents. F la . A dmin . C ode R . 61G4 - 16.001.

2 1 . Petitioner, as the party asserting the a ffirmative of

the issue in this proceeding, has the burden of proof. Balino v.

DepÓt of HRS , 348 So. 2d 349 (Fla. 1st DCA 1977); DepÓt of

Agric. & Consumer Servs. v. Strickland , 262 So. 2d 893 (Fla. 1st

DCA 1972). The level of proof is generally a prepon derance of

the evidence. DepÓt of Banking & Fin. v. Osborne Stern & Co. ,

670 So. 2d 932 (Fla. 1996) ; s ee also Davis v. DepÓt of Child. &

Fam. Servs. , 160 So. 3d 854, 857 (Fla. 2015). Here, Petitioner

must prove by a preponderance of the evidence that he should be

given credit for some or all of the financial examination answers

deemed incorrect by the Department sufficient to result in a

passing grade on the exam.

22. To prevail, Petitioner must show by a preponderance of

the evidence that the examinatio n was arbitrary or capricious or

that the grading process was devoid of logic or reason. In

administrative proceedings, the party making a claim generally

has the burden of proving that claim and establishing the basis

for the claim. Young v. Dep Ó t of C m ty. Aff . , 625 So. 2d 831,

833 - 844 (Fla. 1993); Envtl . Trust v. Dep Ó t of Envtl . Prot . ,

714 So. 2d 493, 497 (Fla. 1st DCA 1998); Balino , 348 So. 2d at

350 ; s ee also Beshore v. Dep Ót of Fin . Servs . , 928 So. 2d 411,

414 (Fla. 1st DCA 2006) ; Espinoza v. Dep Ót of Bus . & Prof Ól Reg . ,

739 So. 2d 1250, 1251 (Fla. 3d DCA 1999).

23. Petitioner failed to establish a legal basis for why he

was entitled to a passing grade for the Examination. The record

in this case does not provide a basis for awarding any addition al

credit to Petitioner. Petitioner did not offer any expert

testimony in support of his claims. In fact, all of the expert

testimony in the record is uncontroverted , persuasive, and

compels a conclusion that Petitioner has failed to meet his

burden.

24. Petitioner failed to establish that the examination is

unfair , that there is insufficient transparency in the

examination review process , or that the examination grading

process is arbitrary and capricious. Because P etitioner did not

earn a passing scor e on the Examination, the Department acted

appropriately in awarding him a failing grade.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Construction Industry Licensing

Board enter a final order up holding the DepartmentÓs Amended

Grade Report finding that Petitioner failed to achieve a passing

score on the Construction Business and Finance Examination , which

he took on November 16, 2018.

DONE AND ENTERED this 2 3r d day of August , 2019 , in

Tallahasse e, Leon County, Florida.

S

ROBERT S. COHEN

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 3r d day of August , 2019 .

COPIES FURNISHED:

Thomas G. Thomas, Esquire

Department of Business and

Professional Regulation

2601 Blair Stone Road

Tallahassee, Flor ida 32399 - 2202

(eServed)

Gary Peter Santoro

Hometown Air & Services

8229 Blaikie Court

Sarasota, Florida 34240 - 8323

(eServed)

Ray Treadwell, General Counsel

Office of the General Counsel

Department of Business and

Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

Daniel Biggins, Executive Director

Construction Industry Licensing Board

Department of Business and

Professional Regu la tion

2601 Blair Stone Road

Tallahassee, Florida 32399

(eServed)

Halsey Beshe ars, Secretary

Department of Business and

Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the dat e 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.