97-005890 Richard E. Roberts vs. Electrical Contractors Licensing Board Status: Closed Recommended Order on Wednesday, April 22, 1998.

Summary: Electrical contractor examination did not improperly test outside of specialty of sign contractor.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD E. ROBERTS, )

)

Petitioner, )

)

vs. ) Case No. 97-5890

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

ELECTRICAL CONTRACTORS )

LICENSING BOARD, )

)

Res pondent. )

______________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing by

videoconference in Tallahassee, Florida, on February 10, 1998.

Petitioner, Petitioner's attorney, Petitioner's witness, and

the court reporter participated by videoconference in Fort

Myers, Florida. Respondent and Respondent's attorney

participated by videoconference in Tallahassee.

APPEARANCES

For Petitioner: J. Michael Hus sey, Attorney

Post Office Box 540

Fort Myers, Florida 33902-0540

For Respondent: William M. Woodyard

Assistant General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue is whether Petitioner is entitled to a passing

score on his examination for electrical outdoor sign specialty

certification.

PRELIMINARY STATEMENT

By undated letter, Petitioner demanded a hearing to

challenge the scoring of the certified outdoor sign

examination on July 17, 1997. In the letter, Petitioner

alleged that the test improperly covered material outside of

his specialty of outdoor signs.

At the hearing, Petitioner called one witness and offered

into evidence no exhibits. Respondent called two witnesses

and offered into evidence nine exhibits. One exhibit was

admitted as Administrative Law Judge Exhibit 1. All exhibits

were admitted.

The court reporter filed the transcript on March 10,

1998.

FINDINGS OF FACT

1. Petitioner has been in the outdoor sign business

since 1975 when he began as a sign painter. A short time

after entering the business, he became involved in the

construction of electrical signs.

2. Petitioner is the president of a company that earns

$700,000 annually from the construction and installation of

electrical signs. The company is licensed, and its qualifier

is a general contractor.

3. Petitioner has never been a licensed electrical

contractor, nor has he ever worked as an electrical

journeyman.

4. On July 17, 1997, Petitioner took the electrical

outdoor sign examination for the fourth time, and, for the

fourth time, he failed the exam. He earned a 67, and 75 is

the minimum passing score.

5. After receiving his grade for the July 1997 test,

Petitioner protested questions 3, 4, 14, 24, 42, 51, 60, 61,

72, 96, 97, 98, 99, and 100 as related to unlimited electrical

contracting or alarm contracting, rather than outdoor sign

electrical contracting. With leave of the Administrative Law

Judge, Petitioner added at the hearing several other questions

to his challenge: 18, 25, 32, 33, 35, 44, 50, 53, 55, 57, 68,

and 70.

6. At the hearing, Petitioner conceded that certain

questions applied to electrical sign contracting. These

questions were 14, 35, 44, 51, 53, and 55. These questions

clearly apply to electrical sign contracting.

7. At the hearing, Petitioner conceded that several

questions were related to electrical sign contracting, but not

exclusively to electrical sign contracting. These questions

were 25, 32, 33, 42, 50, 57, 60, 68, and 70. These questions

apply to electrical sign contracting and possibly to general

electrical contracting as well.

8. The remaining questions are 3, 4, 18, 24, 61, 72, 96,

97, 98, 99, and 100 are, like the questions discussed in the

preceding two paragraphs, applicable to electrical sign

contracting. Like all the challenged questions, except for

question 42, these questions involve subject matter that is

within the scope of the work authorized by the specialty

certificate that Petitioner seeks. As to the concrete that is

the subject of question 42, some working knowledge of this

aspect of the construction industry is needed to fulfill one's

obligations to the customer.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has

jurisdiction over the subject matter. Section 120.57(1),

Florida Statutes. (All references to Sections are to Florida

Statutes. All references to Rules are to the Florida

Administrative Code.)

10. The burden of proof is on Petitioner, as the

applicant. Department of Transportation v. J. W. C. Company,

Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981).

11. To prevail, Petitioner must show that Respondent

arbitrarily or capriciously denied him credit on the

challenged questions through a grading process devoid of logic

or reason, or that Respondent arbitrarily or capriciously

graded these questions. See, e.g. , Harac v. Department of

Professional Regulation , 484 So. 2d 1333 (Fla. 3d DCA 1986).

It would be sufficient, for instance, to show that Respondent

was testing subjects outside the scope of the subject

certificate.

32. Rule 61G6-6.002 provides:

The certification examinations for those

persons desiring to be licensed as

certified specialty electrical contractors

pursuant to Rule 61G6-7.001 shall consist

of the same areas of competency and be

graded in the same manner as the

certification examination, except that the

technical portion of the specialty

electrical contractor certification

examinations shall relate only to the

particular specialty in which

certification is desired.

13. Interpreted literally, Rule 61G6-6.002 restricts

specialty examinations to the specialty, so that electrical

sign examinations may not contain any questions concerning

electricity generally unless they apply directly to electrical

signs. However, this reading might prevent testing an

applicant in areas in which he would be certified to work if

he or she passes the exam.

14. The better interpretation of this rule i s that it

means that the technical portion of the exam may not contain

material that relates only to other specialties and not to the

specialty being tested--in this case, electrical signs. Under

this reading of the rule, a question is valid even if it does

not relate exclusively to the specialty that is the subject of

the test, as long as the question bears in some way on the

specialty that is the subject of the test.

15. In this case, all of the challenged questions are

within the scope of the specialty of electrical sign

contracting. All questions except question 42 involve

activities covered by the specialty certificate sought by

Petitioner. Question 42 validly inquires into a general

matter involving the concrete industry, with which a modest

level of familiarity would be helpful in the electrical sign

contractor's work.

RECOMMENDATION

It is

ORDERED that Respondent dismiss Petitioner's challenge to

the July 1997 electrical outdoor sign examination.

DONE AND ENTERED this 22nd day of April, 1998 , in

Tallahassee, Leon County, Florida.

___________________________________

ROBERT E. MEALE

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 22nd day of April, 1998.

COPIES FURNISHED:

J. Michael Hussey, Attorney

Post Office Box 540

Fort Myers, Florida 33902-0540

William M. Woodyard

Assistant General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399

Lynda L. Goodgame, General Counsel

Office of the General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Ila Jones, Executive Director

Board of Employee Leasing Companies

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 must be filed with the

agency that will issue the final order in this case.