The Issue Is Petitioner entitled to enough credit so as to have passed the professional engineering examination?
Findings Of Fact Petitioner took the April 18-19, 1997, Professional Engineer Licensing Examination. A passing grade would have been "70." Petitioner achieved a scaled score of "68." In order to achieve a passing grade, he would have to prove entitlement to two more points per scale. Question * involved engineering ethics. In a multiple choice of four possibilities, examinees were asked to determine under what conditions a professional engineer may ethically accept gift items from potential suppliers. Petitioner selected the most restrictive possible answer, multiple choice answer "d," to the effect that it is never appropriate to accept any item from a supplier. Petitioner took the position that if a professional engineer never accepts anything from anybody, then s/he never owes anyone anything and therefore s/he can never have his/her professional judgment clouded by favoritism nor can s/he be "corrupted." In support of his answer, Petitioner quoted from, and introduced, Board-approved manual sections related to the duty that registered professional engineers owe to one another. Petitioner's answer was graded "incorrect" because the type of gifts specifically named in the question are not deemed prohibited in the practice of engineering. According to the grading system, multiple choice answer "c" would have been completely correct. Even applying Petitioner's belief system, the Agency's expert was unable to relate the question about suppliers and the items listed in the question to the duty owed among engineers because the ethical consideration concerning the duty of one engineer to another is confined to "valuable" exchanges and the examination question referred to named items, the monetary value of which "is not significant." In the expert's opinion, Petitioner should have relied on the portions of the manual related to an engineer's duty not to solicit or accept "valuable" considerations in connection with work for clients. Nonetheless, although Petitioner's answer "d" was considered technically "wrong" by the national testing service, the Agency expert testified that it still could have been "double-keyed" as a "subordinate correct alternative answer." The only reason it was not "double keyed" as a subordinate correct alternative answer is because similarly stringent responses from licensure candidates were minimal. (TR-39). Neither witness could testify as to how much the sole question at issue herein was worth in scoring points (TR-28, 48- 50). Nobody testified how many points Question * was worth or whether the Question * that is at issue herein was the Question * from the morning or afternoon testing session. By reference to Petitioner's scored answer sheet (Petitioner's Exhibit 4), the undersigned has determined that the question at issue was Question * of the morning session and the correct answer was worth only one additional raw point for the following reasons. As set out supra, the oral testimony and all the exhibits show that Question No. * at issue ideally should have been answered "c," and that Petitioner answered "d." The score shown on Petitioner's Exhibit 4 for the afternoon session is "26 x 2 = 52" correct answers out of 60 questions. The score sheet page shows 34 wrong answers. Arithmetic would suggest that each afternoon question was worth two raw points. However, on Question * of the afternoon testing session, Petitioner answered "c" and the grader's marks indicate that the correct answer was "d." Therefore, upon all the evidence, I deduce that the afternoon session Question * is not the question at issue here. However, on the morning session page, Petitioner's answer to Question * was "d," and it was marked wrong because the grader thought it should have been "c." The morning session answer sheet equates with all other evidence concerning the question and answer at issue in this cause. There were 120 questions on the morning session, for which Petitioner received 62 points on his answer sheet. For the morning session, it appears that 58 of Petitioner's answers were marked wrong. Therefore, 62 correct answers and 58 wrong answers out of a possible 120 questions, would logically indicate that each question on the morning session was worth one raw point. This is borne out by the total score for the entire examination recorded on the morning session page as "62 + 52 = 114 = 68.0 scale." There is no scale provided by which to translate the raw score of 114 into 68.0.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a Final Order awarding Petitioner one additional point on his examination and denying him a passing grade thereon. DONE AND ENTERED this 26th day of June, 1998, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 1998. COPIES FURNISHED: Gabriel Enriquez 3461 Southwest Second Avenue Apartment 218 Gainesville, Florida 32607 R. Beth Atchison, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Angel Gonzalez, Director Department of Business and Professional Regulation Board of Professional Engineers Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 Lynda Goodgame, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399
The Issue The issues are whether Respondent violated standardized testing procedures while proctoring the SAT-9 Test for her first grade class, and if so, what penalty should be imposed.
Findings Of Fact Respondent holds Florida Educator Certificate No. 467712, covering the area of Elementary Education. Her certificate is valid through June 30, 2007. Respondent has been a public school teacher in Florida for 21 years. During that time, she has worked as a classroom teacher in fifth and first grades at four different schools. At all times material here, Respondent was a first grade teacher at Niblack Elementary School (Niblack) in Columbia County, Florida. Respondent was the curriculum resource teacher at Niblack for the 2000/2001 school term, the first year Niblack was established. She helped organize the new school, selecting textbooks and other school materials. She assisted in the development of school improvement plans and the creation of the Parent Teacher Organization. Respondent worked long hours beyond the normal school hours to ensure the success of Niblack as a neighborhood school. She had good report with the parents and the community. After her first year at Niblack, Respondent returned to the classroom as a first grade teacher because she missed being with the children. Prior to the incident at issue here, Respondent has never been the subject of any disciplinary action. She has always received positive teacher evaluations. For the school years 1999/2000, 2000/2001, and 2001/2002, Respondent's evaluations reflect that she met or exceeded expectations. When school began in the Fall of 2001, Nikki Crawford was the paraprofessional assigned to work with the first grade students at Niblack. In the first week of classes, a conflict arose between Ms. Crawford and some of the first grade teachers, including Respondent. The initial conflict involved the scheduling of Ms. Crawford's time in each of the first grade classrooms. Eventually, Mark Crutcher, Niblack's Principal, and personnel at the school district level had to intervene in order to resolve the conflict. The purpose of the intervention was to clarify that the teachers and not Ms. Crawford were in control of the classrooms. The SAT-9 is a standardized test that is used to evaluate student performance. The staff at Niblack uses the test results as a guide to determine what the students learned over the past year, how they compared to other students nationally, and where the students should be placed the following school year. The test results do not benefit an individual teacher personally or professionally. The school does not receive a grade or funding based on the test results. The administration of the SAT-9 in the first grade is the first time that students at Niblack experience a standardized test. For the 2001/2002 school year, the test was administered in April 2002. The SAT-9 is a secure test that requires teachers and proctors to undergo training on test procedures. Amber Todd, Niblack's guidance counselor and testing coordinator, provided that training for the 2001/2002 school term. During the training, Ms. Todd gave Respondent a copy of the state statutes governing testing procedures. On or about April 5, 2002, Respondent signed a document indicating that she had received a copy of the test security requirements for the 2001/2002 administration of the SAT-9. Ms. Todd gave Respondent a document outlining the general testing procedures at Niblack. The document explained the mechanics of distributing and returning the tests to the guidance counselor's office. In regard to test preparation, the document listed spatial seating as one of several topics. The topics relating to procedures during testing included, but were not limited to, cheating and disruptive behavior. The document did not reference appropriate or inappropriate communication between teachers and students during the test. Ms. Todd gave Respondent a photocopy of the test security page out of the test manual but did not give her a copy of the test manual. However, Ms. Todd informed Respondent that she could review the manual in Ms. Todd's office. Respondent had prior experience in administering the SAT-9. She did not take advantage of the opportunity to review the test manual in Ms. Todd's office prior to the test in April 2002. Ms. Todd informed Respondent that the desks in the classroom needed to be separated. Ms. Todd and the test manual directed Respondent to read the script in the manual verbatim and to strictly follow the time allowed for each test section. Finally, Ms. Todd told Respondent and Ms. Crawford that they had discretion to redirect students but not to coach them. Respondent and Ms. Crawford could tell students to stay in their seats, to stop talking, and to pay attention. Teachers and proctors were allowed to tell students they were working in the wrong section, to erase the answers in the wrong section, and to go back to the correct section. Ms. Crawford was assigned to proctor the SAT-9 in Respondent's class in April 2002. When the test began, Respondent had not separated all of the students' desks. With the exception of a couple of desks that had been moved to one side, the desks were arranged in the normal classroom configuration with desks touching in groups of threes. The only other change in the classroom was that the seating location of some students had been rearranged. Respondent did not separate the desks because she wanted room to walk between the students during the test. The classroom was small and crowded with 18 desks. However, the most persuasive evidence is that Respondent did not make an effort to separate the desks to the extent possible. When Respondent began the first section of the test, she read the script of the instructions to her students. She read the sample question, which was in a story format, and the multiple choice answers as required. Pursuant to the test instructions, Respondent had to direct some of the students to erase their answers to the sample question and to mark the correct answers. Respondent then deviated from the script by reading aloud the first part of the first test question and telling the students to put their finger where the question began. She did not read the answers to the first question. Respondent did not improperly read any other portion of the test. Respondent was responsible for timing each section of the test. At one point during the test, Ms. Crawford asked Respondent how long the students had to finish a test section. Respondent replied that they had until 9:20 a.m. Ms. Crawford's testimony that Respondent began the timed test at 8:54, allowing the students an extra 6 minutes to complete the section is not persuasive. Students are not allowed to work on test sections that are not being timed. In other words, if a student begins to work in section 2 while section 1 is being timed, the teacher and the proctor should tell the student to erase his or her answers in section 2 and go back to work on section 1. During the test, Ms. Crawford informed Respondent that a student named Tyler was working in the wrong section. Respondent then told Tyler to go back to the section she should have been working on. Respondent's communication with Tyler was not improper according to the training provided by Ms. Todd. Ms. Crawford also had to redirect a couple of Respondent's students to erase their answers in the wrong section of the test and to begin working in the correct test section. A second student named Latrice put her head on her desk and closed her booklet within five minutes after a timed test began. Respondent did not believe Latrice could not have finished the test so quickly. Respondent picked up and opened Latrice's booklet. Respondent told Latrice that she could not possibly be finished and needed to go back and check her answers. Respondent also told Latrice she must have some of the answers wrong. Respondent made this statement to Latrice without actually checking to see if any of her answers were wrong. Even so, Respondent's communication with Latrice was inappropriate. If Latrice had finished the test and closed her booklet, Respondent should have taken the booklet without telling Latrice that she needed to keep working because she must have some of the answers wrong. After the test, Ms. Crawford informed Ms. Todd that Respondent had violated the reading portion of the SAT-9 test procedures by failing to separate the desks, by failing to properly time the test on one section, by failing to follow the script, and by improperly coaching two students. Ms. Todd then informed Mr. Crutcher about the allegations of improper test procedures. The Columbia County School District decided to invalidate the reading portion of the SAT-9 test for Respondent's first grade class. They did not invalidate the math portion of the test. The school district then administered a substitute reading test to the students. The Columbia County School District subsequently suspended Respondent without pay from May 21, 2002, through May 28, 2002. Respondent transferred to another Columbia County school for the 2002/2003 school term. As of the date of the hearing, Respondent continued to be employed by the Columbia County School District.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the EPC enter a final order, placing Respondent’s teaching certificate on probation for a period of five years. DONE AND ENTERED this 20th day of November, 2003, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 2003. COPIES FURNISHED: Betty N. Goggins 1291 East Camp Street Lake City, Florida 32025 William B. Graham, Esquire Ginger L. Barry, Esquire McFarlain & Cassedy 305 South Gadsden Street Tallahassee, Florida 32301 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224E Tallahassee, Florida 32399 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224E Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issues in this case are whether certain questions within the June 2002 construction building contractor examination are invalid, and whether Petitioner should receive credit for certain answers scored as incorrect.
Findings Of Fact In June 2002, Petitioner sat for the construction building contractor examination. Shortly following the exam, Petitioner was advised that he incorrectly answered 17 of the 50 exam questions and did not attain the minimum passing score of 70 percent, but received a failing scaled score of 66 percent. Petitioner timely challenged the validity and scoring of eight questions, including questions 8, 14, 17, 33, 34, 38, 43, and 44. In order for Petitioner to acquire a passing score, Petitioner must prove that certain challenged questions are invalid or demonstrate that he is entitled to receive credit for his answers. Specifically, Petitioner must demonstrate that either three questions should be stricken from the exam providing Petitioner with 70.2 percent, two questions should be stricken and one answer scored as correct providing Petitioner with 70.8 percent or two answers should scored as correct providing Petitioner with 70 percent. QUESTION 8 Exam Question 8 asks, "According to AIA-A201, who determines the interest rate that the contractor can charge on due and unpaid payments?" Petitioner's expert, Mr. Uman, argues that the parties to the contract are not defined within the question and it is therefore misleading. However, the credited answer D, "all the parties must agree on the rate" is within the provided reference material and is clearly the best answer. It is not misleading and Petitioner's argument lacks merit. In addition, 89.47 percent of the test-takers correctly answered Question 8. QUESTION 14 Exam Question 14 is wordy and involves computations. It requires the test-taker to calculate the number of "labor" hours required per 100 pieces to build a wall, given certain pricing and wall construction information. Question 14 is ambiguous and confusing on its face. While the question asks for labor hours, the facts provide a fixed combined hourly cost for a mason and laborer's hour. There is no distinction made between "labor" hours and a "laborer's" hours. Mr. Collier admitted that there is some apparent confusion between "labor" costs and the "laborer's" costs. Mr. Palm further agreed and indicated that he fully understood Petitioner's rationale to divide the labor costs in half and choose answer A. Furthermore, it is clear that Petitioner's perception of the question was not unique. In fact, only 46.62 percent of the test-takers correctly answered Question 14. QUESTION 17 Exam Question 17 asks, "During the bid process, which document has priority in the event of conflicting information?" Clearly, the correct answer is B, "addenda." Petitioner's argument regarding "competitively bid projects" is without merit. Mr. Palm succinctly explained that Petitioner's selection was obviously incorrect because "plans don't change during the bid process unless there is an addenda issued." Moreover, 75.56 percent of the test-takers correctly answered Question 17. QUESTION 33 Exam Question 33 identifies a situation that where drawings differ from written specifications and where there is no legal precedent that one is more binding than the other. The question specifically calls for the best procedure according to the listed and available reference. While Mr. Uman argues that the answer does not appear within the reference material in a clear manner, the exact text of the question and answer are in fact within the material. Petitioner's argument lacks credibility. QUESTION 34 Exam Question 34 asks the test-taker "what is the EARLIEST workday for completing the masonry work?" given the number of crew, the number of hours required, and the ratio constant of the crew. Although 80.45 percent of the test-takers correctly answered Question 34, Mr. Uman argues that the question could have been answered without reference to the Builder's Guide to Accounting material and therefore, was misleading. Petitioner's argument is devoid of common sense. QUESTION 38 Exam Question 38 asks the test-taker to identify the activity that "a specialty structural contractor is qualified" to perform. Petitioner's expert, Mr. Uman, again argues that the question is misleading since the credited correct answer "perform non-structural work" is not written verbatim in the provided reference material. To the contrary however, all of the alternative choices are clearly listed in the reference material as activities specifically prohibited by specialty structure contractors. Furthermore, page 2B17 to 61G415.015 of the Contractor's Manual specifically states that: The specialty structure contractor whose services are limited shall not perform any work that alters the structural integrity of the building including but not limited to roof trusses. Respondent's experts, Mr. Collier and Mr. Palm, agree that Question 38 is clear. Moreover, 53.38 percent of test- takers correctly answered the question. While the question appears to require enhanced reasoning skills and is generally more difficult, it is not misleading. Petitioner's assertions are without merit. QUESTION 43 Exam Question 43 asks, "Which accounting method should be used by a contractor if the contractor is unable to reasonably estimate the amount of progress to date on a job or the total costs remaining to fulfill the contract?" Mr. Uman argues that the question is ambiguous and the reference material is "not terribly clear." He further alleges that when a contractor cannot estimate progress, the contractor cannot establish a "completed contract method," the credited correct answer. Respondent's experts disagree. While it is true that Mr. Palm agreed that all of the choices are accounting methods which is inconsistent with Mr. Collier's testimony, the reference material is clear. In fact, 58.65 percent of the test-takers correctly answered Question 43. Petitioner presented insufficient evidence that he should receive credit for his answer or that Question 43 should be invalidated. QUESTION 44 Exam Question 44 provides detailed information regarding a standard form contract and asks, "Based ONLY on the information given above, what is the amount of the current payment due?" In addition, however, as Mr. Uman points out, the standard form referred to in the problem was mistakenly misidentified as Form 201 instead of Form 702. While it is clear that the referenced form was mislabeled, the precise form number was incidental, unrelated to the question, and unnecessary to compute the answer. In fact, Mr. Palm explains that the problem was "just a mathematical exercise." According to Mr. Collier, the question was not misleading, and the incorrect reference was irrelevant. "It's simple math, industry knowledge." Furthermore, Petitioner's answer is clearly incorrect because "he failed to deduct the retainage." Finally, 54.89 percent of the test-takers correctly answered Question 44.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered invalidating only Question 14, re-computing Petitioner's examination score, and dismissing his challenge. DONE AND ENTERED this 1st day of October, 2003, in Tallahassee, Leon County, Florida. S WILLIAM R. PFEIFFER 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 (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 2003. COPIES FURNISHED: Nickolas Ekonomides, Esquire 791 Bayway Boulevard Clearwater, Florida 33767 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Nancy P. Campiglia, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Robert Crabill, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Is Petitioner entitled to one additional point on the October 1996 Professional Civil Engineer Examination so as to achieve a passing score for licensure in Florida?
Findings Of Fact Petitioner took the Civil Engineer Examination given in October 1996. The Department of Business and Professional Regulation's Bureau of Testing notified Petitioner by Examination Grade Report dated February 17, 1997, that she had earned a score of 69.00 on the Civil Engineer Examination. The minimum passing score for the Civil Engineer Examination is 70.00. Petitioner timely requested formal hearing and challenged only Question 120, for which she received no points. Petitioner is trained as a materials engineer. Question 120 is a soils and foundation problem outside her concentrated area of study. It is an open book examination question. Petitioner selected the correct equation from the applicable manual, but acknowledged that she solved the variables of that equation incorrectly. The National Council of Examiners for Engineering and Surveying (NCEES) produced, distributed, and was responsible for grading the examinations. Petitioner contended that the examiner who graded her answer sheet applied different criteria than the examination criteria published by the NCEES. Petitioner further contended that since one criterion her grader actually used was merely to "write the correct equation," she should be awarded at least one point on that basis. However, a comparison of the actual grader's handwritten "summary" on Petitioner's Solution Pamphlet (Respondent's Exhibit 3) and the NCEES's Solutions and Scoring Plan (Respondent's Exhibit 2) does not bear out Petitioner's theory. It is clear that out of five possible parts of the question, which five parts total two points' credit each, merely selecting the correct equation from an open text would not amount to two points, or even one point, credit. I accept as more competent, credible and persuasive the testimony of Eugene N. Beauchamps, the current Chairman of the NCEES Examination Policy Committee and a Florida licensed Professional Engineer, that the grader's "summary" describes what he actually reviewed in Petitioner's written solution to Question 120 rather than establishing one or more different grading criteria. In order to receive a score of two on Question 120, the candidate was required to demonstrate any one of five requirements listed in the NCEES Solution and Scoring Plan for "2-Rudimentary Knowledge." The first requirement in the NCEES Solution and Scoring Plan (Respondent's Exhibit 2) for receiving a score of two points is, "Determines effective overburden stress at mid- depth of clay layer." The remaining four NCEES scoring criteria required that the examinee: Computes the change in effective stress at mid- depth of the clay layer due to placement of the fill. Computes the primary consolidation settlement, based on a change in effective stress, due to the fill surcharge. Evaluates the Average Degree of Consolidation and the Time Factor. Determines the waiting period after fill placement recognizing the existence of double-drained conditions. In order to gain two more points (total 4 points) so as to demonstrate "More Than Rudimentary Knowledge But Insufficient to Demonstrate Minimum Competence," Petitioner would have to have met two of the five bulleted criteria. For two more points (total 6 points) for "Minimum Competence," Petitioner would have had to score three bullets. For two more points (total 8 points) for "More than Minimum But Less Than Exceptional Competence," Petitioner would have had to score four bullets. Finally, to attain "Exceptional Competence" for 10 total points, Petitioner would have had to score all five bullets. In the first correct equation for answering Question 120, "p sub zero" (p naught) equals the present effective overburden pressure, which represents what clay was present before anything was put on top of the clay layer. "P" equals the total pressure acting at mid-height of the consolidating clay layer or the pressure of the dirt and the water in the dirt. "H" equals the thickness of the consolidating clay layer. Petitioner's solution for the first bullet, "determining the effective overburden stress at mid-depth of clay layer," indicated p sub zero (p naught) as the "present effective overburden pressure," but it incorrectly calculated p sub zero equaling 125 pounds multiplied by 13 feet. This is incorrect because the effective overburden pressure would not include 13 feet of fill. The 13 feet of fill is not part of p sub zero, the present effective overburden pressure. Petitioner's solution for the first bullet, also multiplied water, represented by 62.4, by 12, which is incorrect. She should have used a multiplier of 10 to receive credit for this problem. The grader indicated the correct equation was used incorrectly by Petitioner because of the two foregoing incorrect calculations. The equation, as Petitioner stated it, was correct and her multiplication was correct. Her solution identified P sub zero as present effective overburden pressure but present effective overburden pressure would not include the fill. Petitioner had the correct equation for the present effective overburden pressure and her mathematics were correct. However, she did not use the consolidation equation correctly, not obtaining the correct percentage of primary consolidation. As stated, the problem did not consider the fill as part of the present effective overburden pressure. Her solution also contained the correctly written time rate of settlement equation but failed to use it, and no waiting period was determined. The practical result of Petitioner's error could range from a cracked building to a collapsed building, depending upon the degree of error to site and materials.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a Final Order denying Petitioner's challenge and affirming her score as one point below passing. RECOMMENDED this 3rd day of March, 1998, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1998. COPIES FURNISHED: Susan E. Wilson 3581 Jose Terrace Jacksonville, Florida 32217 R. Beth Atchison Assistant General Counsel Department of Business and Profession Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Angel Gonzalez, Executive Director Department of Business and Profession Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Lynda L. Goodgame General Counsel Department of Business and Profession Regulation 1940 North Monroe Street Tallahassee, Florida 32399
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: On April 19, 1990, petitioner, Don R. Blackburn, was a candidate on the engineering intern portion of the professional engineer examination given in Miami, Florida. The test was administered by the Department of Professional Regulation (DPR) on behalf of respondent, Board of Professional Engineers (Board). On July 25, 1990, the Board issued a written uniform grade notice advising petitioner that he had received a grade of 66 on the examination. A grade of 70 is necessary to pass this part of the examination. By letter dated August 15, 1990, petitioner requested a formal hearing to contest his score. In his letter, Blackburn generally contended that the examination was unfairly administered because certain books were allowed to be used by some but not all candidates, untrained proctors were given the authority to scan review materials and determine which could or could not be used by the candidates, and because of the chaos and confusion that occurred during the examination, he was unable to attain a score that he otherwise would have been able to achieve. Blackburn is an engineer for Lee County and is seeking to pass the engineering intern portion of the examination. A passing grade on that portion is a prerequisite to sitting on the second part of the professional engineer examination. He has taken the examination on a number of occasions and has gradually improved his score to just short of passing. Indeed, on the October 1989 examination, Blackburn scored a 69, or just one point less than the required 70. Prior to the April 1990 examination, the engineering intern portion of the professional engineer examination was an unrestricted open book examination. This meant candidates could use any and all reference and review materials during the examination. Beginning with the April 1990 examination, the Board imposed certain restrictions on the use of review materials. As early as October 9, 1989, the Board's executive director sent a memorandum to all candidates on the October 1989 examination, including Blackburn, concerning the new restrictions. The memorandum stated in part: Please be advised of certain restrictions listed in the Candidate Information Booklet which will not be implemented until the April 1990 examination. These restrictions are found in the "Examination Administration Information" section and are concerning the following two areas: * * * 2. Books or information containing sample questions or engineering problems may also be brought provided they are bound. Again, the new restrictions listed in the Candidate Information Booklet regarding the above two areas WILL NOT be implemented until the April 1990 examination. All candidates on the April 1990 examination were given a Candidate Information Booklet prepared in January 1990 by DPR's Bureau of Examination Services. On pages 13 and 14 of the booklet was found the following information: This is an open book examination. Candidates may use textbooks, handbooks, notes, and reference materials which are bound, copyrighted and printed. The term "bound" refers to material that is bound permanently, hard or paperback stitched or glued, or spiral, plastic or three-ringed bound. The printed material must remain contained (bound) in its cover during the entire examination. No writing tablets, unbound tablets or unbound "loose notes" will be allowed. No books with contents directed toward sample questions or solutions of engineering problems are permitted in the examination room. Examinees are not permitted to exchange reference materials or aids during the examination. (Emphasis in original) What the emphasized language meant is that "review" manuals, which contain problems and solutions, were prohibited from use during the examination while "reference" books were not. However, the booklet did not list the specific names of published materials that would be permitted or excluded. In order to ascertain which books he might use on the next examination, on March 27, 1990, Blackburn telephoned the Board in Tallahassee and spoke with a female employee named "B. J." who advised him that "review publications directed principally towards the solution of engineering problems" would be excluded. When asked if "Lindeburg's Sixth Edition" would be authorized, B. J. told Blackburn she wasn't sure and that it would be left up to the proctors in the room. She did say, however, that a review manual authored by Schaum could be used. The engineering intern examination in April 1990 was administered in two separate rooms at the Radisson Hotel in Miami, Florida. Blackburn was in a "very large" upstairs room with approximately thirty other candidates while a similar number took the examination in a downstairs room. The examination in the upstairs room began at 8:43 a.m. after various instructions were read to the candidates by the examination supervisor, Jeannie Smith, a veteran of twenty years in proctoring and supervising professional examinations. According to Smith, there was "considerable confusion" concerning which books could be used by the candidates, particularly since this was the first examination given with the new restrictions. She also acknowledged that there was "chaos" prior to the beginning of the examination and that this was, "extremely upsetting" to the examinees. However, before the examination began, Smith announced on a microphone the names of certain books which the Board had given her that were either prohibited or could be used by candidates. She further advised that if candidates had any questions they were to come to a bulletin board by the microphone where she had posted Xerox copies of the covers of various books. If a book could be used, it had the word "YES" printed on the cover while a "NO" was printed on those covers of books that could not be used. 1/ It is noted that only one cover sheet with a "YES" was posted, that being the Civil Engineering Reference Manual, Fourth Edition, Michael R. Lindeburg. However, at least three candidates who took the examination that morning, including petitioner, did not see the posted materials nor hear the invitation for candidates to come to the bulletin board. One book in issue that was specifically prohibited was Engineer In Training Review Manual, Sixth Edition, Michael R. Lindeburg, which contained 378 solved problems, and thus fell within the general prohibition of review manuals described on page 14 of the Candidate Information Booklet. However, those candidates who had the Seventh Edition of the same book were allowed to keep and use that manual even though it contained 422 solved problems, or some 44 more solved problems than was contained in the prohibited Sixth Edition. By allowing those students having the Seventh Edition to use the same even though it contained "review" materials, DPR violated the instructions contained in the Candidate Information Booklet and gave an advantage to those candidates not enjoyed by others, including petitioner. In addition, at least one other candidate in the upstairs group was allowed to use a prohibited review manual (Schaum's Outline Series, Theory and Problems of Electric Power Systems) but still that candidate did not attain a passing grade. Petitioner also contended that candidates taking the examination in the downstairs room were allowed to use language dictionaries during the morning part of the examination while those upstairs could not. 2/ Petitioner's contention is grounded upon hearsay evidence and accordingly it is found that no competent proof to support this claim was submitted. However, there was obviously some confusion over this matter because, after receiving complaints of this nature from two candidates, Smith telephoned the Board's offices in Tallahassee during the lunch break to ascertain whether such books could be used. Upon learning that they could not, she advised the upstairs group at the beginning of the afternoon session that dictionaries were not allowed. Blackburn also established that during the examination proctors went from desk to desk examining the materials that each candidate had in his possession. If a candidate had what the proctor perceived to be a book containing solutions to problems, the candidate was told to put the book on the floor. In the alternative, she candidates were told that if they tore the offending pages out of the book, they could continue using the remaining materials. Petitioner has complained that the proctors were not engineers and they were untrained in determining whether a book was acceptable or not. The Board has conceded that engineers do not proctor examinations but asserted that they are intelligent enough to determine whether books fall within the proscribed category. According to Blackburn's proctor at the examination, George Walton, a retired Coast Guard captain and engineering graduate of the Coast Guard Academy, he relied upon the list of approved and disapproved books supplied by the Board prior to the examination in determining whether materials would be excluded or not. Walton also stated that if he examined a book and found it contained solutions, he would disallow the same unless the offending pages were removed. A DPR expert in testing and measurements, Dr. Joseph A. Klock, examined the pass/fail rate for the examination taken by Blackburn and compared that rate to the October 1989 examination rate. Doctor Klock found no significant difference in the two rates and concluded that there was no statistically significant difference in performance of candidates over those time periods despite the confusion which occurred during the April 1990 examination. Blackburn did not present any evidence to show that if he had used the Seventh Edition of the Engineer In Training Review Manual, he would have been able to achieve more points on a particular problem and thus would have had a passing grade. Blackburn's principal complaint was that he had spent many hours preparing for the examination in question, that he was forced to guess which books to bring to the examination, and because of the confusion and chaos that took place at the beginning of the examination as well as his awareness that others were using a review manual with solved problems, it was impossible for him to give his best effort on the examination.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner's request to receive a passing grade on the April 1990 professional engineer examination be DENIED. However, petitioner should be entitled to retake the next examination at no charge. DONE and ENTERED this 28th day of November, 1990, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of November, 1990.
The Issue Whether Petitioner is entitled to a passing score on the pharmacology/ocular disease portion of the optometry licensing examination administered August 3, 2000.
Findings Of Fact Pursuant to Chapter 456, Florida Statutes, Respondent is the agency of the State of Florida that develops, administers, scores, and reports scores for licensure examinations, such as the examination at issue in this proceeding. The Board of Optometry is created as a part of Respondent by Section 463.003(1), Florida Statutes. Pursuant to Section 456.013(4), Florida Statutes, this Recommended Order is to be forwarded to the Board of Optometry, which will enter a Final Order. Section 463.006(1), Florida Statutes, provides that anyone seeking licensure as an optometrist must pass a licensure examination. Section 463.006(2), Florida Statutes, provides, in part, as follows: The examination shall consist of the appropriate subjects, including applicable state laws and rules and general and ocular pharmacology with emphasis on the topical application and side effects of ocular pharmaceutical agents. . . . The optometry licensing examination consists of four separate examinations, one of which is the pharmacology examination. A candidate cannot be licensed as an optometrist in Florida until he or she passes all four examinations. In 1999, Petitioner passed three of the four examinations, but he failed the pharmacology examination. Petitioner retook the pharmacology examination on August 3, 2000. Pursuant to Section 456.017(2), Florida Statutes, and Rule 64B13-4.002, Florida Administrative Code, Petitioner did not have to retake the three portions of the licensure examination he passed in 1999. A candidate who fails a licensure examination has the right to review the examination material to determine whether he or she wants to file a challenge to the grading of the examination. Pertinent to this proceeding, Section 456.017(2), Florida Statutes, requires the following of Respondent: . . . provide procedures for applicants who fail an examination to review their examination questions, answers, papers, grades, and grading key for the questions the candidate answered incorrectly or, if not feasible, the parts of the examination failed. . . . Respondent is required to maintain the examination material by Section 456.017(3), Florida Statutes, which provides as follows: (3) For each examination developed or administered by the department or a contracted vendor, an accurate record of each applicant's examination questions, answers, papers, grades, and grading key shall be kept for a period of not less than 2 years immediately following the examination, and such record shall thereafter be maintained or destroyed as provided in chapters 119 and 257. This subsection does not apply to national examinations approved and administered pursuant to this section. A candidate is not allowed to retain a copy of the examination material or to make any copy thereof. Rule 64B13- 4.003, Florida Administrative Code, provides as follows: (3) An applicant is entitled to review his examination questions, answers, papers, grades and grading key used in the state examination for licensure; however, no applicant may copy any materials provided for his review. . . . A candidate has the right to a second review of the examination material in order to prepare for an administrative hearing. The candidate's attorney can participate in this second review. Rule 64B-1.009(1), Florida Administrative Code, provides, in pertinent part, as follows: (1) After the candidate's petition, which is a written statement requesting a hearing pursuant to 120.57, Florida Statutes, and setting out the information required under rule 28-106.201 of the Florida Administrative Code, has been filed, the candidate, and/or the candidate's attorney shall be permitted to review the examination questions and answers at the department's headquarters for the purpose of preparing for the administrative hearing, as specified in board rule or by the department when there is no board. . . . The examination at issue in this proceeding was not a national examination. Respondent maintains its master examination item bank for the optometry examination by computer. 1/ Typically, an examination booklet for a particular examination is printed from that computer item bank only when the booklet is needed for a legitimate purpose, such as an examination, a review, or a hearing. Once the booklet has served its purpose, it is destroyed. A psychometrician and three consulting optometrists usually proofread the contents of a newly printed examination booklet before it is used for an examination. The pharmacology examination at issue in this proceeding consisted of different case histories, each of which described a patient’s presenting condition and pertinent medical history. Each case history was followed by five questions with multiple choice answers. Candidates were instructed to select the best answer to each question from the multiple choice answers provided in the examination booklet. Respondent printed Booklet D from its master examination item bank for use as an exhibit in this proceeding. Booklets A, B, and C were not available for use as exhibits. Following his review of the examination material on November 7, 2000, Petitioner filed the Petition that underpins this proceeding. Question 74 required a candidate to select the best treatment for a patient based on the patient's case history. The candidate had 7 possible answers, lettered A - G, from which to choose. Each of the choices was a prescription medicine. In discussing Question 74, the Petition alleged that according to the answer key, the best answer was a certain topical steroid, which was choice F on Booklet D. That assertion is wrong. Choice E, not choice F, was the choice identified by the answer key as being the best answer to Question 74. Petitioner's response to Question 74 on August 3, 2000, was choice B. In discussing Question 44, the Petition alleged that according to the case history, a particular diagnostic procedure had not been performed on the patient. The last sentence of the case history for this question in Booklet D reflected the results of the diagnostic procedure that Petitioner alleged was not performed. Petitioner reviewed the examination material, including Booklet C, to prepare for the final hearing in this proceeding on February 28, 2001. Petitioner testified at the final hearing that the medication identified by Respondent as being the best response (choice E in Booklets C and D) to Question 74 was not an available answer in Booklets A and B. Petitioner testified at the final hearing that the last sentence of the case history for Question 44 in Booklets C and D had been omitted from Booklets A and B. Petitioner continued to assert that his responses to Questions 44, 74, and 75 were the best responses as those questions were presented to him when he took the examination. Lee Skinner, a psychometrician employed by Respondent, supervised the administration of the pharmacology examination at issue in this proceeding. Mr. Skinner and three consulting optometrists proofread the examination booklets used for the August 3, 2000, pharmacology examination. Mr. Skinner testified that Booklet A was identical in all material respects to Booklet D and that the alleged omissions did not exist. Consistent with Respondent’s policies, the hard copy of Booklet A was destroyed following the administration of the examination. Petitioner's answer sheet and the notes he took during the examination were preserved and were admitted as exhibits. Consistent with Respondent's examination review policies, Petitioner was not permitted to retain a copy of or make notes as to Booklet A, B, or C. For reasons that cannot be attributed to him, Petitioner’s testimony as to the alleged omissions in Booklets A and B could not be corroborated because hard copies of the examination booklets at issue were not available. 2/ Because Petitioner could not have a copy of or make notes from the examination booklets, he had to rely on his memory when preparing the underlying Petition and in testifying. Mr. Skinner’s testimony that there were no material differences between Booklet A and Booklet D is credible and persuasive. Petitioner failed to prove the alleged discrepancies between Booklet A and Booklet D. A score of 70% is needed to pass the pharmacology examination. Petitioner's score on the pharmacology examination administered August 3, 2000, was a failing score of 68.5%. Each of the three questions at issue is worth 0.75%. Petitioner would have to receive credit for a correct answer to at least two of the three questions at issue in this proceeding to attain the additional 1.5% he needs to pass the examination. The case history for Question 44 contained all the information necessary for a candidate to select the correct answer. On August 3, 2000, Petitioner did not select the best answer to Question 44. Consequently, he is not entitled to additional credit for his answer to that question. The case history for Questions 74 and 75 contained all the information necessary for a candidate to select the correct answer. Petitioner received no credit for his answer to Question 74 because he did not select the best answer to that question. Question 75 required the candidate to select the correct dosage and manner of administration of the medicine that was the best answer to Question 74. Petitioner's incorrect answer to Question 74 caused him to miss Question 75. Petitioner received no credit for his answer to Question 75 because he did not select the correct answer to that question. In addition to proofreading an examination booklet, a psychometrician typically reviews all answers to a licensure examination to make sure that no question was invalid. A question is considered invalid if 30% or fewer candidates select the answer identified by Respondent as being the best answer. Mr. Skinner reviewed all answers to Questions 44, 74, and 75 to determine whether an abnormal number of candidates missed each question. Based on the number of candidates that correctly responded to the three questions at issue compared to the incorrect answers, Mr. Skinner opined that each of the three questions was a valid examination question. 3/ Petitioner failed to establish a basis to disqualify Questions 44, 74, or 75.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order dismissing Petitioner's challenge to the grading of his responses to Questions 44, 74, and 75 of the pharmacology examination administered August 3, 2000. DONE AND ENTERED this 14th day of June, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of June, 2001.
The Issue Whether problems occurred in Petitioner's examinations for licensure during the October 1990 and February 1991 construction examinations which were due to the Department's inaction or negligence. Whether provisions were made for Petitioner's physical handicap during the exam process. Whether Petitioner's responses to the examination questions on either of the examinations were sufficient to allow him to receive a passing grade and licensure.
Findings Of Fact Petitioner Woodring has taken the Certified Residential Contractor's Examination three times. During these test taking sessions, he has been unable to successfully pass the examination. The second time Petitioner took the examination was in October 1990. His scores on the examination were: Part I - 64; Part II - 66; and Part III - 63. A passing score for each part is 69.01. 3. After receiving his test results, Woodring challenged the scoring of some of the questions on the examination. At hearing, Woodring challenged the following questions: Part I - Questions 3 and 16; Part III - Questions 7, 8 and Petitioner also challenged the exam format and procedures. He asserts that provisions were not made for his learning disabilities or physical handicaps. Petitioner gave the answer "D" as the correct answer for Question 3 on Part I of the examination. The Department established at hearing that the question contained all of the information necessary to make the required computations and that "B" was the correct answer. Petitioner did not demonstrate entitlement to credit for his incorrect answer to that question. During the test, he made a mathematical error when he calculated the cost of the program and a second mathematical error when he projected the savings. As a result, he arrived at the wrong answer. Petitioner marked "B" as the correct answer to Question 16 on Part I. The Department established at hearing that the correct answer is "C". The answer given by Petitioner was erroneous. He admitted at hearing that he had used the wrong table in the Circular E withholding chart from the Internal Revenue Service reference material. During his reading of the problem, he had confused "biweekly" and "semimonthly." Petitioner did not demonstrate entitlement to credit for his incorrect answer on that question. On Question 7 on Part III, Petitioner marked "D" as the correct answer. In reaching that result, Petitioner correctly calculated the amount of liquidated damages that would occur if the contractor decided to wait during a delay period on the delivery of his original tile order. Petitioner's response to the question was based on this calculation. The calculation of the liquidated damages was a preliminary calculation in a larger, more complex problem. Petitioner was required to also calculate the cost of the more expensive tile which could be delivered on time, and determine if the use of this tile would be less expensive to him or her than waiting on the delayed delivery of the less expensive tile. The question was unambiguous, and the exam materials contained all of the information necessary for completion of the problem. The Department established at hearing that the correct answer was "B". Petitioner failed to comprehend that he was to mitigate the costs to a contractor from the tile delay by determining if the immediate use of the more expensive tile would be less costly to a contractor than the anticipated liquidated damages. The flaw was in Petitioner's reading comprehension of this problem as opposed to a flaw in the challenged question. As a result, Petitioner is not entitled to credit for his answer. The correct answer for Question 8 on Part III is "C". Petitioner gave "A" as the correct answer. When Petitioner did his calculations of the material and labor costs for the creation of the concrete driveway, he used only the descriptions of material and labor costs charted in the problem. He did not apply this information to the additional information set forth in the Residential Plans and specifications. The problem directed the examinees to refer to the Residential Plans and specifications when solving this problem. These documents contained the data needed to calculate the area of the driveway. Petitioner's failure to apply the information provided in the plans resulted in the underestimation of the area of the driveway by over 33 percent. This significant difference was what caused Petitioner to select the wrong answer to the exam question. The Department established at hearing that the correct answer was "C". The question was unambiguous. Petitioner is not entitled to credit for the answer he gave to this question. The correct answer for Question 13 of Part III is "A". Petitioner marked "D" as the proper response. A review of the Residential Plans and specifications shows that the structure did not contain any forty x one x four trusses. Therefore, no time was required for the lifting and placing of trusses of this size. In arriving at his answer, Petitioner failed to determine the size of the trusses he was counting on the Residential Plans. If he had properly read the plans, he would have seen that there were no trusses of this size, according to the specifications. By failing to size the trusses on the plan, Petitioner came to an incorrect answer. He is not entitled to credit for the answer given because he did not demonstrate competence in reading and interpreting plans, as required by the question. During the application process, all exam candidates are advised in writing that the Department will provide special assistance to candidates with learning disabilities or physical handicaps to the ultimate extent possible. The burden is on the exam candidate to timely request the special assistance and to obtain the prerequisite certification of handicaps. Petitioner did not notify the Department of his handicaps in the manner set forth in the Candidate Booklet provided to him during the application process. If proper certifications had been provided prior to the last two testing sessions, the Department could have made a decision as to whether the test instrument and test administrative procedures should have been modified on Petitioner's behalf. The Petitioner, who now understands that Certifications of Handicaps are necessary, has had such certifications of handicap completed since the February 1991 examination. The Department was not under a duty to discover Petitioner's handicaps nor was it required to make provisions for those handicaps in the testing process without prior receipt of the necessary information. No provisions were made for Petitioner's handicaps during the October 1990 and February 1991 testing sessions. At hearing, Petitioner established he was deaf and did not understand verbal instructions and time warnings during the aforementioned testing sessions. This situation adversely affected his performance on both occasions.
Recommendation Accordingly, it is RECOMMENDED: The Department should enter a Final Order which denies Petitioner's challenges to Part I - Questions 3 and 16; Part III - Questions 7, 8 and 13. Petitioner's request for certification without a demonstration of competency through successful completion of the exam should also be denied. Prior to any reexamination, the proper prerequisite certifications should be given to the Department by Petitioner so that special assistance can be given, if needed. The Joint Exhibit and Respondent's Exhibits 5 and 6 should remain sealed and not open to public inspection. Any other exhibits or file documents marked confidential should also remain sealed. DONE and ENTERED this 15th day of April, 1992, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of April, 1992. APPENDIX TO RECOMMENDED ORDER, CASE Nos. 91-1883 & 91-2692 Respondent's proposed findings of fact are addressed as follows: 1. Accepted. 2. Accepted. See HO #2. 3. Accepted. See HO #3. 4. Accepted. 5. Accepted. 6. Accepted. 7. Accepted. See HO #6. 8. Accepted. 9. Accepted. 10. Accepted. See HO #16. 11. Accepted. See HO #18. 12. Accepted. 13. Accepted. See HO #22. 14. Accepted. 15. Accepted. 16. Accepted. See HO #23. 17. Accepted. 18. Accepted. See HO #8. 19. Accepted. See HO #9 and #10. 20. Accepted. 21. Accepted. 22. Accepted. Rejected. Contrary to fact. Accepted. Copies furnished: VYTAS J URBA ESQ ASST GENERAL COUNSEL DEPARTMENT OF PROFESSIONAL REGULATION NORTHWOOD CENTRE STE 60 1940 N MONROE ST TALLAHASSEE FL 32399-0792 RON WOODRING 38219 PALMGROVE DR ZEPHYRHILLS FL 33541 LEONARD M ERNEST MA ED HILLSBOROUGH COMMUNITY COLLEGE DALE MABRY CAMPUS/INTERPRETER TRAINING PROGRAM PO BOX 30030 TAMPA FL 33630-3030 DANIEL O'BRIEN/EXECUTIVE DIRECTOR CONSTRUCTION INDUSTRY LICENSING BOARD 111 EAST COASTLINE DR - RM 504 PO BOX 2 JACKSONVILLE FL 32202 JACK McRAY ESQ/GENERAL COUNSEL DEPT OF PROFESSIONAL REGULATION NORTHWOOD CENTRE - STE 60 1940 N MONROE ST TALLAHASSEE FL 32399 0792
The Issue Whether the petitioner is entitled to credit for the answers given to the challenged questions in the General Contractor’s examination administered October 18, 1995.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Business and Professional Regulation, Construction Industry Licensing Board, is the state agency with jurisdiction over the examination and regulation of general contractors in the State of Florida. Sections 489.107(4) and .113(1), Florida Statutes. Mr. Simmons sat for the General Contractor examination on October 18, 1995, and received a failing grade of 68.75 percent on the business and financial administration portion of the examination. Even though he passed the other two portions of the examination, Mr. Simmons failed the examination as a result of the failing grade on this portion of the examination. Mr. Simmons subsequently filed a timely challenge to unspecified test questions on the business and financial administration portion of the examination. He presented evidence at the hearing concerning the sufficiency of his answers to questions 13 and 22 of the financial administration section of the examination and claimed that he would have presented evidence relating to questions 18 and 39 of the business administration section but could not because he was not certain that the questions included in the review materials provided to him by the respondent were the same as the questions included in the test booklet he used on October 18, 1995. Question 13 of the financial administration section of the examination is an objective, multiple choice question. The applicant is to choose the correct answer from among four choices. The correct answer to question 13 is “C," but Mr. Simmons incorrectly chose “B.” Question 22 of the financial administration section of the examination is an objective, multiple choice question. The applicant is required to choose the correct answer to the question from among four answers provided and is to choose the correct answer based only on the information included in the question. The correct answer to question 22 is “C," but Mr. Simmons incorrectly chose “A.” Mr. Simmons failed to prove that questions 18 and 39 of the business administration section of the examination included in the review manual provided to him by the respondent were not the same questions included in the test booklet he used on October 18, 1995. Because he failed to present any evidence regarding the sufficiency of his answers to these questions, he is deemed to have abandoned any substantive challenge to them. Question 13 of the business administration section of the examination is clear and unambiguous, and only one correct answer was included among the answer choices. The correct answer is found in the reference material which Mr. Simmons was permitted to use while he was taking the examination. The respondent correctly gave no credit to Mr. Simmons for his answer to this question because it was the wrong answer. Question 22 of the business administration section of the examination is clear and unambiguous, and only one correct answer was included among the answer choices. The method for determining the correct answer from the information provided in the question is contained in the reference materials Mr. Simmons was permitted to use while he was taking the examination. The respondent correctly gave no credit to Mr. Simmons for his answer to this question because it was the wrong answer.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Business and Professional Regulation, Construction Industry Licensing Board, issue a final order dismissing Alfred Simmons’s challenge to the subject examination and that the examination questions and answers provided at the hearing be sealed and not open to public inspection. DONE AND ENTERED this 3rd day of January, 1997, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 1997. COPIES FURNISHED: Alfred Simmons 7755 West Kismet Street Miramar, Florida 33023 R. Beth Atchison, Assistant General Counsel Department of Business and Professional Regulation Construction Industry Licensing Board Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Richard Hickok, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467
Findings Of Fact On May 23, 1975, the Petitioners herein took the general contractors licensing exam in Miami, Florida. Petitioners failed to achieve a passing score on said examination and thereafter several reviews of the examination questions and answers resulted. The exam in question was administered to approximately 659 examinees. The test was made up of 100 questions and the examinees were allotted 4 hours to complete the exam. The examinees were instructed in the examination booklet to answer as many questions as possible within the time limit and to always select the best possible answer out of the listed choices. The examinees were furnished a list of reference materials by Respondent and they were advised that the exam questions would come from some 18 odd reference books supplied on the reference lists. Petitioner Dennis Milch took the general contractor's examination administered on May 23, 1975. 2/ In preparation of the exam he took a prep course given by Cole Construction and began his preparation approximately two months prior to the exam. He received a score of 67.5 on the exam. He earned a degree from the University of South Florida and took advance construction courses at FIU where he earned a degree in marketing. His work experience consisted of serving as an apprentice carpenter for Burke Construction Company in Miami for approximately two months and as a contractor to build residential homes in Houston Texas. Milch voiced his opinion that the exam questions failed to satisfy the statutory requirements of being "objective" within the meaning of Chapter 468, Florida Statutes. Joseph Cole, the founder of Cole Construction College in 1949, testified that he had approximately 30 years experience in teaching construction, architectural and engineering courses. He had conducted various seminars for students and received a B.S. Degree from the University of Miami. He received a B.S. Degree in biochemistry and civil engineering from the University of Pittsburgh and conducted seminars at the University of Florida in Math, Physics and Engineering. He also conducted seminars at the Markowitz Engineering School. He was licensed in 1947 in Coral Gables, Miami Beach, and in Miami where he has built approximately 2,000 single-family homes, high-rise buildings and apartments. He aired his opinion that Milch missed approximately 36 questions of which approximately 24 were what he regarded as "impossible" questions. He expressed his awareness that during the morning sessions two questions were voided and credits were given to all examinees having a point value of 1 point each. Two questions were also voided from the afternoon session. Thomas H. Hebert, an associate of the testing agency which compiled the exam for the Board, i.e., Bryon, Harlow, Schaefer, Reed and Associates, explained the procedure for compiling the tests for the Board (Respondent). He stated that data is taken from Board references and an exam format is established. Examinees are tested on plan reading and estimating using standard plans for takeoff and specification requirements. The test is first administered to contractors and others who had previously passed the exam. This is done to test time limits, etc., and grading procedures. By so doing, he testified that it is possible to correct deficiencies in the exam. After the examination is compiled and is administered to the agency employees and other contractors who have passed the exam, an item analysis is compiled and computerized. There are five possible answers for each question. The exam is divided into three segments, i.e., the upper 27 percent, the mid 46 percent, and the lower 27 percent. After the tests results are in, the weighting on various questions are checked to see if large numbers of examinees "jump" one question and further to see if questions are ambiguous. If found to be or that there are two correct answers for a given question, credit is given for both answers. Thereafter, a discrimination index is compiled based on the lower and upper 27 percent. These papers are scrutinized and if there is a discrepancy in excess of .1 to .8 percent, the question is examined and a solution is derived at based on results gathered from the scrutiny. He testified further that if an exam paper is mutilated or is otherwise difficult to machine score, it is hand graded. All exam papers in which the score ranged from 0 to 30 are hand graded as are those where the score ranges between 60 to 70. Of those questions where there is no correct answer, the question is deleted and a new base is established. For example, if a question is deemed faulty, each question has a weight of 1.1 one hundredths of a point. If they have three correct answers, points are given for all three answers. It was further brought out during his testimony that it was not necessary for a contractor to pass the certification examination in order to practice contracting in Florida. Evidence reveals that there are two kinds of licenses issued by the Board, i.e., registration and certification. The registration process only requires compliance with local requirements and the filing of a form with the Board, which may be the passing of a local competency exam or simply obtaining a local occupational license. The Certification method is optional and if the contractor passes the certification examination, it is unnecessary for him to take any local examinations. After going over various questions missed by Petitioner Dennis Milch, Petitioners argue that the scope of the Board Certification Examination included questions affecting the business of contracting as well as the technical aspects of for example how to nail two boards together to make a safe structure. Florida Statutes Chapter 468.106(2)(a) provides for an examination covering knowledge of basic principles of contracting and construction. Chapter 468.101 declares the purpose of Chapter 468 and states in pertinent part that "any person desiring to obtain a certificate to engage in the business shall be required to establish his competency and qualifications." Hence, the legislature has covered the business of contracting as well as the theory of construction. This serves the purpose of Chapter 468 by making it safer for owners to contract with the contractors and to have assurances that no liens will be placed on their property by subcontractors, that the owners are safe from suit from work that was done on the job, that the payments made on the construction will not be diverted and that the contractor understands his obligations. This requires general knowledge of the mechanics lien law, basic contract law and workers compensation law, all of which were tested by the subject examination. Respecting Petitioners' argument that they were denied certain constitutional guarantees when they were instructed by Respondent to select the best possible answer but that after the test was administered and Respondent determined that many questions had no best choice, the Board failed to delete such questions from the exam, it was noted that after the Respondent discovered that several test questions were deemed acceptable but that the answers offered did not meet the tests of selecting the best possible answer, adjustments were made. In other words, there was no single best possible answer for approximately four questions. Rather than deleting the entire question, Respondent permitted those examinees who selected either the answer originally preferred by the Board or one of the later adopted alternate answers to achieve full credit for such questions and answers. The statute (Chapter 468, F.S.) mandates that the examination be an "objective" written examination. The criteria of objectivity is not met where the examining body is granted the discretion to accept alternate answers to a given question. A "best" answer is something different from an acceptable answer. To give the Board discretion to accept alternate answers would authorize a substitution of standards which is' not permitted by Chapter 468, F.S. Once subjectivity comes into play, Respondent becomes vested with almost unbridled discretion in deciding who shall become a certified general contractor. This was prohibited by the legislature by requiring objectivity in setting a uniform minimum test grade. As relates to Petitioner Milch, it was noted that a subsequent review of his exam resulted in his being awarded a half credit for his answer to question number 39 and the Board determined that after review answers B and A were both correct. The net result of this was that his overall score was 68. A review of the court cases revealed that Florida courts have not been involved in the minute details of how examination grades or points are awarded. See the cases of State ex rel. Topp v. Board of Electrical Examiners, 101 So.2d 583 (Fla. App. 1st 1968), and State ex real. Lane v. Dade County 258 So.2d (347 Fla. App. 3rd, 1972). These cases generally show that unless there is a clear abuse of discretion, courts shall not substitute their judgment for the agencies as to how examinations are graded. Petitioners also submit that once regrading had commenced, the Board should have deleted all questions with wrong answers or more than one equally acceptable answer, distributed the weight of the deleted questions in proportionate fashion of the remaining questions and considered passing to be 70 percent of the total points available, rather than 70 cumulative points. During the hearing, Petitioners failed to show how they were injured by the difference in the award of the points for questions deleted. A wrong without damage does not constitute a good cause of action. Based on the evidence presented it appears that the Petitioners are treated the same as all other examinees. Since the Petitioners have failed to establish that if the assignment of points were different, they would have passed the examination, this argument is moot. Petitioners also alleges that they were denied certain constitutional protections by Respondent's failure to adopt and promulgate uniform rules and regulations concerning preparation, administration and review of licensing examinations. Florida Statutes, Chapter 468, requires Respondent to conduct its affairs pursuant to Florida Statutes Chapter 120. The Administrative Procedure Acts set out specific procedures to be followed by State agencies in adopting, promulgating and enforcing rules. Statutory authority governing the granting of a license should be strictly followed. In this case, there is no evidence of the existence of any unlawful rule or regulation adopted by Respondent to govern any of the variety of issues concerning the licensing of general contractors. Petitioners also submit that the Board should be required to promulgate and enforce rules concerning examinations and appeals or results thereof and cite the reasons for the actions it takes prior to its review of the examination. The Board is not required to adopt rules and regulations in every area in which it is authorized to act by statute. Where the statute is clear, there is no requirement or reason by the Board to adopt rules. Here, the Board provided the applicants with a chance to examine the questions, their papers, grades and to complain if they wished about the questions either individually or at board meetings with the possibility that the fairness of the questions could be resolved quickly and informally and if necessary, as in this case, without the full ponoply of an administrative hearing. By so doing, the Board was clearly following its statutory duty to provide the applicants with a chance to see their examination papers and grades. (F.S. Chapter 466.110). Based on the above, it is concluded that Respondent compiled the May 23, 1975 examination based on objective standards. When the Board determined that certain questions were defective either because there was more than one answer or for other reasons, the Board reviewed said questions and credited those examinees who failed to properly answer the question. By so doing, Petitioners were treated the same as all examinees who took the exam. Based on the record evidence, it further appears that all the questions meet the statutory tests of being objective and the Board's determination that a cumulative score of 70 percent is necessary to successfully obtain a certification, was not shown by any competent or substantial evidence to be an abuse of discretion. It is therefore recommended that the agency's action be sustained and that the petition filed herein be dismissed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is therefore recommended that the agency's actions be affirmed and the petition filed herein be DISMISSED. DONE and ENTERED this 17th day of January, 1977, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Findings Of Fact 1. The Findings of Fact set forth in the Recommended Order are approved, adopted, and incorporated by reference as modified by Rulings on Respondent’s Exceptions noted above. 2. There is competent, substantial evidence to support the Findings of Fact.
Conclusions Based upon the foregoing findings of fact and conclusions of law, it is Ordered that Petitioner’s challenge to the licensure examination taken December 6, 2000, is Denied and his petition is Dismissed. This order takes effect upon filing with the Clerk of the Department of Health. Done and Ordered this ( , day of , 2002. BOARD OF PODIATRIC MEDICINE
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the agency clerk of the Department of Health and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal. That Notice of Appeal must be filed within thirty days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by Certified Mail to Charles Pellegrini, Katz, Kutter, Alderman, Bryant & Yon, P.A., 106 E. College Ave., Suite 1200, Tallahassee, FL 32301, and Perry Verleni, 7624 S.W. 56th Avenue, Gainesville, FL 32608, and by interoffice mail to Cherry Shaw, Department of Health, 4052 Bald Cypress Way, Tallahassee, FL 32399-1783, Ella Jane P. Davis, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, FL 32399-3060, and to Ann Cocheu, Office of the Attorney General, PL 01 The Capitol, Tallahassee, FL 32399-1050, this IS. day of "\ , 2002. LE qlee F.\Usens\ ADMIN\WILMA\ Ann \pod\000208d.wpd
