99-002629 Nelson A. Palma vs. Department Of Business And Professional Regulation, Electrical Contractors Licensing Board Status: Closed Recommended Order on Wednesday, December 22, 1999.

Summary: Applicant failed to meet his burden of proving that he was erroneously or improperly denied credit for his answers to questions in dispute.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NELSON A. PALMA, )

)

Petitioner, )

)

vs. ) Case No. 99-2629

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

ELECTRICAL CONTRACTORS )

LICENSING BOARD, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

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

to Section 120.57, Florida Statutes, on November 1, 1999, 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: Nelson A. Palma, pro se

15489 Miami Lake Way North, No. 109

Miami, Florida 33014

For Respondent: Lynne A. Quimby-Pennock, Esquire

Assistant General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

STATEMENT OF THE ISSUE

Whether Petitioner's challenge to the failing grade he

received on the January 1999 Unlimited Electrical Contractor

Examination should be sustained.

PRELIMINARY STATEMENT

By letter dated May 19, 1999, and received by the Department

of Business and Professional Regulation, Bureau of Testing

(Department) on May 26, 1999, Petitioner challenged the failing

score he received on the January 1999 Unlimited Electrical

Contractor Examination (Examination). More specifically, he

contended that his answers to eight questions for which he did

not receive credit were correct and that his score should be

raised accordingly. The eight questions were Questions 25 and 88

on the morning (or "AM") part of the Examination, and Questions

8, 20, 32, 36, 37, and 39 on the afternoon (or "PM") part of the

Examination. On July 2, 1999, the Department referred the matter

to the Division of Administrative Hearings (Division) for the

assignment of a Division Administrative Law Judge to conduct an

administrative hearing on Petitioner's challenge.

As noted above, the hearing was held on November 1, 1999.

At the hearing, two witnesses testified, Petitioner and Cynthia

Woodley, Ph.D.

Petitioner testified on his own behalf. During his

testimony, he indicated that he was withdrawing his challenge to

the scoring of his answers to questions 20 and 32 of the

afternoon part of the Examination. Dr. Woodley, a psychometrican

who is the Vice-President of Operations for Professional Testing

Service, testified (as an expert witness) for the Department.

The Department had intended to present at the hearing the

testimony of another expert witness, Richard Widera, Ph.D., but,

due to illness, Dr. Widera was unable to attend the hearing. The

Department requested, and was granted, without objection by

Petitioner, permission to present Dr. Widera's testimony by

deposition (taken after the conclusion of the hearing at a time

convenient to the parties and Dr. Widera).

There were also six exhibits received into evidence at the

hearing. All six exhibits (Respondent's Exhibits 1-3 and 5-7)

were offered by the Department.

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 ten days after the

undersigned's receipt of the transcript of the hearing, or ten

days after the undersigned's receipt of the transcript of

Dr. Widera's deposition, whichever was later. The undersigned

received the transcript of Dr. Widera's deposition on

November 18, 1999. He received the hearing transcript (which

consisted of one volume) on December 2, 1999. Petitioner and the

Department filed post-hearing submittals on December 10, 1999,

and December 13, 1999, respectively. These post-hearing

submittals have been carefully considered by the undersigned.

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

electrical contractors in Florida (Unlimited Electrical

Contractor Examination, which is referred to herein as the

"Certification Examination" or "Examination") administered on

January 29, 1999.

2. The Certification Examination consisted of two parts

("AM Part" and "PM Part"). The "AM Part" contained questions

testing the candidates' general knowledge of the electrical

trade. The "PM Part" contained questions relating to business

and financial management.

3. There were a total of 150 Examination questions (100 on

the "AM Part" and 50 on the "PM Part"), all of which were

multiple choice questions. Each question was worth .666 of a

point. To attain a passing score, candidates needed to receive a

total of 75 points.

4. Of the 102 applicants who took the Certification

Examination on January 29, 1999 (Candidates), almost 62 percent

received a passing score.

5. Petitioner was among the Candidates who did not receive

a passing score. He attained a score of 73.

6. Prior to the Certification Examination, the Candidates

were provided a "Candidate Information Booklet," which provided

the following "overview" of the Examination:

The examination is designed to measure how

well a candidate has mastered the

fundamentals of electrical contracting and to

measure his or her ability to interpret and

apply the appropriate sections of the

National Electrical Code ( N.E.C.) and other

applicable references to practical problems.

The questions have been designed so that a

person who has the required minimum ability

to use the N.E.C. and the necessary

background knowledge of electrical

contracting will find it easy to select the

correct answer. A person who is not familiar

with electrical contracting and cannot use

the N.E.C. will find it hard to guess the

correct answer for any question because they

present the candidate with a choice of common

misconceptions, common faults, incorrect

practices, or plausible nonsense. Therefore,

the candidate should read each question

thoroughly and carefully and select the best

answer to the question. Each question has

only one correct answer, which will be graded

as the correct answer to the question.

In certain areas (e.g., Section 220-10(b))

the N.E.C. stipulates a standard procedure

should be followed in normal circumstances

and permits alternate procedures or

exceptions in other circumstances. If the

question does not obviously call for the

application of an alternate procedure or

exception, the candidate should apply the

provision of the N.E.C. in accordance with

the procedures stipulated for normal

circumstances.

The questions are based on the content

outlines listed on the following pages

(separately for each examination).

Candidates should use appropriate content

outlines when studying the suggested

references provided later in this booklet.

It is suggested that each candidate become

familiar with using the references, so that

he or she can find the information necessary

to answer the questions within a minimal

amount of time. Candidates are NOT required

to bring these references to the examination

site; however, these references will be

allowed if brought. No other references are

allowed at the examination site.

Among "the suggested references provided later in this booklet,"

in addition to the 1996 edition of the National Electrical Code,

were the 1996 editions of the Builder's Guide to Accounting, the

National Fire Alarm Code, and the Handy Reference Guide to the

Fair Labor Standards Act.

Question 25, "AM Part"

7. Question 25 of the "AM Part" of the Certification

Examination was a clear and unambiguous multiple choice question

that covered subject matter (automatic fire detection devices

selected for positive alarm sequence operations) with which the

Candidates should have been familiar.

8. The correct answer to the question may be gleaned from a

reading of the following excerpt from the 1996 edition of the

National Fire Alarm Code, which was among the reference materials

that the Candidates were permitted to bring with them to the

testing site:

The signal from an automatic fire detection

device selected for positive alarm sequence

operations shall be acknowledged at the

control unit by trained personnel within 15

seconds of annunciation in order to initiate

the alarm investigation phase. If the signal

is not acknowledged within 15 seconds, all

building and remote signals shall be

activated immediately and automatically.

9. This correct answer is among the responses from which

the Candidates had to choose.

10. Seventy-four percent of the Candidates chose this

correct response. 1/

11. Petitioner was not among these Candidates.

12. The response Petitioner selected is clearly incorrect.

13. He therefore appropriately received no credit for this

response.

Question 88, "AM Part"

14. Question 88 of the "AM Part" of the Certification

Examination was a clear and unambiguous multiple choice question

that covered subject matter (secondary standby power backup) with

which the Candidates should have been familiar merely from

reading the plans and specifications that were provided with the

Examination. (In answering this question, the Candidates were

instructed to "use" these plans and specifications.)

15. The correct answer to this question is among the

responses from which the Candidates had to choose.

16. Sixty-eight percent of the Candidates chose this

correct response.

17. Petitioner was not among these Candidates.

18. The response Petitioner selected is clearly incorrect.

19. He therefore appropriately received no credit for this

response.

Question 8, "PM Part"

20. Question 8 of the "PM Part" of the Certification

Examination was a clear and unambiguous multiple choice question

that covered subject matter (income tax planning) with which the

Candidates should have been familiar from reading Appendix D of

the 1996 edition of the Builder's Guide to Accounting, which was

among the reference materials that the Candidates were permitted

to bring with them to the testing site.

21. The correct answer to this question is among the

responses from which the Candidates had to choose.

22. Ninety percent of the Candidates chose this correct

response.

23. Petitioner was not among these Candidates.

24. The response Petitioner selected is clearly incorrect.

25. He therefore appropriately received no credit for this

response.

Question 36, "PM Part"

26. Question 36 of the "PM Part" of the Certification

Examination was a clear and unambiguous multiple choice question

that covered subject matter (recovery of back pay under wage and

hour law) with which the Candidates should have been familiar

from reading the 1996 edition of the Handy Reference Guide to the

Fair Labor Standard Act, which was among the reference materials

that the Candidates were permitted to bring with them to the

testing site.

27. The correct answer to this question is among the

responses from which the Candidates had to choose.

28. Seventy-six percent of the Candidates chose this

correct response.

29. Petitioner was not among these Candidates.

30. The response Petitioner selected is clearly incorrect.

31. He therefore appropriately received no credit for this

response.

Question 37, "PM Part"

32. Question 37 of the "PM Part" of the Certification

Examination was a clear and unambiguous multiple choice question

that covered subject matter (cash management) that the Candidates

should have been familiar with from reading the 1996 edition of

the Builder's Guide to Accounting, which the Candidates were

directed, in the stem of the question, to refer to in answering

the question.

33. The correct answer to this question, which can be found

by looking at pages 236 and 237 of the 1996 edition of the

Builder's Guide to Accounting, is among the responses from which

the Candidates had to choose.

34. Fifty-six percent of the Candidates chose this correct

response.

35. Petitioner was not among these Candidates.

36. The response Petitioner selected is clearly incorrect.

37. He therefore appropriately received no credit for this

response.

Question 39, "PM Part"

38. Question 39 of the "PM Part" of the Certification

Examination was a clear and unambiguous multiple choice question

that covered subject matter (cash flow statements) that the

applicants should have been familiar with from reading the 1996

edition of the Builder's Guide to Accounting, which, as noted

above, was among the reference materials that the Candidates were

permitted to bring with them to the testing site.

39. The correct answer to this question is among the

responses from which the Candidates had to choose.

40. Sixty-three percent of the Candidates chose this

correct response.

41. Petitioner was not among these Candidates.

42. The response Petitioner selected is clearly incorrect.

43. He therefore appropriately received no credit for this

response.

CONCLUSIONS OF LAW

44. A person seeking certification to engage in the

electrical contracting business in the State of Florida must

apply to the Department to take the certification examination.

Section 489.511, Florida Statutes.

45. The "certification examination requirements" are set

forth in Rule 61G6-6.001, Florida Administrative Code, which

provides as follows:

(1) The areas of competency to be covered by

the certification examination shall be as

follows: Technical knowledge; General

Business knowledge; and safety knowledge.

(2) The examination shall be open book. The

applicant is responsible for bringing and may

use during the examination the applicable

code books, reference materials and

calculators as approved by the Board.

Security measures as set forth by the

Department shall be followed during the

examination.

(3) The content areas of each examination

and the approximate weight assigned to each

section are as follows:

(a) Unlimited Electrical Contractor.

Technical section 64%; General Business

Section 33%; and Safety Section 3%.

(b) Residential Electrical Contractor.

Technical Section 59%; General Business

Section 33%; and Safety Section 8%.

(c) Alarm Systems Contractor I. Technical

Section 66%; General Business Section 25%;

and Safety Section 9%.

(d) Alarm Systems Contractor II. Technical

Section 70%; General Business Section 25%;

and Safety Section 5%.

(e) Low Energy Contractor. Technical

Section 69%; General Business Section 25%;

and Safety Section 6%.

(f) Sign Specialty Contractor. Technical

Section 70%; General Business Section 25%;

and Safety Section 5%.

(g) Lighting Maintenance Contractor.

Technical Section 70%; General Business

Section 25%; and Safety Section 5%.

(4) An applicant shall be required to

achieve a score of a general average of not

less than seventy-five percent (75%) in order

to pass the examination and be certified for

licensure. When a cut off score contains a

fraction of a percentage point of one-half

(.5) or higher that score will be raised to

the next highest whole number. When a cut

off score contains a fraction of a percentage

point of less than one-half (.5) that score

will be lowered to the next lowest whole

number. There shall not be a practical or

clinical examination.

46. The following requirements imposed by Rule 61-

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

in grading the applicant's certification examination:

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.

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

certification examination 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

be mailed.

48. Following the "post-examination review," the applicant

"may petition for a formal hearing before the Division of

Administrative Hearings," but must do so "no later than twenty-

one (21) days after the post-examination review." Rule 61-

11.012, Florida Administrative Code.

49. The burden is on the applicant at the "formal hearing"

to establish by a preponderance of the evidence that his or her

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).

50. In the instant case, Petitioner requested a hearing

before the Division to contest the failing score he received on

the January 1999 Unlimited Electrical Contractor Examination.

His challenge (as modified at the hearing) is directed to his

failure to have received any credit for his responses to six

multiple choice questions on the Examination (Questions 25 and 88

on the "AM Part" of the Examination, and Questions 8, 36, 37, and

39 on the "PM Part" of the Examination).

51. 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 questions.

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

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.

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

his responses to these questions, those grading his examination

did not act arbitrarily or without reason or logic.

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

failing grade he received on the January 1999 Unlimited

Electrical Contractor 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 grade he received on the

January 1999 Unlimited Electrical Contractor Examination.

DONE AND ENTERED this 22nd day of December, 1999, 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]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of December, 1999

ENDNOTE

1/ If a question is missed by more than 50 percent of those

taking an examination, it is "flagged" for review. None of the

questions at issue in the instant case were "flagged" inasmuch as

they were answered correctly by 50 percent or more of the

Candidates.

COPIES FURNISHED :

Nelson A. Palma

15489 Miami Lake Way North, No. 109

Miami, Florida 33014

Lynne A. Quimby-Pennock, Esquire

Assistant General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Barbara D. Auger, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Ila Jones, Executive Director

Electrical Contractors Licensing Board

Department of Business and Professional

Regulation

Northwood Centre

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.