The Issue The issues in this case are whether Respondent, Luis Garcia, committed the offenses alleged in an Administrative Complaint issued by Petitioner, the Department of Business and Professional Regulation, on December 6, 2006, and, if so, what penalty should be imposed.
Findings Of Fact Prior to June 2005, Respondent received what appeared to be a valid Miami-Dade Building Business Certificate of Competency. Upon receipt, Respondent applied to the Department of Business and Professional Regulation (hereinafter referred to as the “Department”) to obtain a registered contractor’s license using the Certificate of Competency. Based on the Certificate of Competency, the Department issued Respondent a registered contractor’s license bearing license number RF11067267. Respondent also applied for a certificate of authority for his business, A.P.A. Plumbing Corporation (hereinafter referred to as “APA”). Based on the Certificate of Competency and the registered contractor’s license being granted, the Department issued a certificate of authority to APA, QB 42763. Subsequent to the Department’s issuance of both the registered contractor’s license to Respondent and the certificate of authority for APA, Respondent and the Department learned that the Miami-Dade Building Business Certificate of Competency (hereinafter referred to as the “BCCO”) obtained by Respondent was not a valid certificate. Respondent’s actions were not as a result of any fraud or intentional action on the part of Respondent; however, it is acknowledged by all parties that the Miami-Dade Building Business Certificate of Competency obtained by Respondent was not valid. At no time during the application process or upon attesting to the qualified business license application did Respondent have knowledge that the Miami-Dade BCCO employees were engaged in a scheme to defraud the public. At no time during the application process or upon attesting to the qualified business license application did Respondent have knowledge that Respondent obtained the BCCO Competency Card in deviation of any state laws or rules, or local ordinances. At no time during the application process or upon attesting to the qualified business license application did Respondent have knowledge that the BCCO Competency Card was not a valid certificate. At no time during the application process or upon attesting to the qualified business license application did Respondent have knowledge that Respondent’s attestation on the application was inaccurate. At no time during the application process or upon attesting to the qualified business license application did Respondent have knowledge that the approved BCCO qualifying board did not approve the Competency Card. At no time did Respondent have knowledge that any documents Respondent submitted to the Department contained false, forged, or otherwise inaccurate information or material. At the time the Department issued the registered contractor’s license and subsequent certificate of authority on the sole basis of the Miami-Dade Building Business Certificate of Competency presented by Respondent, the Department properly issued the registered contractor’s license based on the information submitted to it. The parties stipulated that the Respondent was not entitled to the registered contractor’s license and certificate of authority because the Miami-Dade Building Business Certificate of Competency was not a valid certificate. At the time of application to the Department, Respondent was not qualified by any local jurisdiction or any other method necessary to receive a registered contractor’s license from the Department. Subsequent to Respondent’s initial application and receipt of registered contractor’s license RF11067267, Respondent has taken the competency test required to be properly licensed through the Department. Respondent asserts that he has passed the test. The Department will not dispute this if he is able to provide verification that he did receive a passing score.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department finding that Luis Garcia violated the provisions of Sections 489.129(1)(a) and (m), and 455.227(1)(h), Florida Statutes, as alleged in Counts I, III, and IV of the Administrative Complaint; dismissing Count II of the Administrative Complaint; requiring that Respondent pay the costs incurred by the Department in investigating and prosecuting this matter; giving Respondent 30 days to voluntarily relinquish his license; and revoking Respondent’s license if he fails to voluntarily relinquish it within 30 days of the final order. DONE AND ENTERED this 13th day of December, 2007, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 13th day of December, 2007. COPIES FURNISHED: Matthew D. Morton Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Timothy Atkinson, Esquire Oertel, Fernandez, Cole & Bryant Post Office Box 1110 Tallahassee, Florida 32302 Richard A. Alayon, Esquire Alayon & Associates, P.A. 4551 Ponce de Leon Boulevard Coral Gables, Florida 33146 G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Petitioner is entitled to additional credit for his responses to question numbers 21 and 24 of the Principles and Practice of Engineering Examination administered in April 1998.
Findings Of Fact Petitioner took the April 24, 1998 professional engineering licensing examination with an emphasis in civil engineering. A score of 70 is required to pass the test. Petitioner obtained a score of 69. In order to achieve a score of 70, Petitioner needs a raw score of 48. Therefore, Petitioner is in need of at least one additional raw score point. Petitioner is challenging question numbers 21 and 24. They are both multiple-choice questions and worth one point each. Exhibit 10 contains a diagram for the candidate's use in answering question numbers 21 and 24. Question 21 requires the examinee to calculate the percentage of wooded land on the diagram. The diagram contains a rectangle labeled "woodlot," and within the rectangle are three non-contiguous areas marked with schematics of trees. The Petitioner reduced the percentage of wooded area to conform to the portion of the area labeled "woodlot" marked with schematics of trees. In regard to question number 21, the Petitioner asserts that as a matter of convention, by failing to put the trees everywhere in the wooded lot, one may assume that there are trees only where there is a schematic of the trees. The Petitioner's challenge was rejected on the basis that the scorer opined that it is standard practice that drawings are only partially filled with details, and the most reasonable interpretation of the site plan drawings is that the woodlot fills the entire area enclosed by the rectangle. John Howath, a professional engineer, testified regarding accepted conventions in engineering drawings. In Howath's opinion the drawing on the examination used inconsistent methodologies and was confusing regarding whether all of the area designated by the label or "call out" of woodlot was in fact wooded. Both the Petitioner and Mr. Howath referred to drawings in the Civil Engineering Reference Manual which showed areas on drawings totally covered with visual indications of a particular material or condition. Peter Sushinsky, a professional engineer, testified as an expert for the Respondent. Mr. Sushinsky acknowledged the Petitioner's exhibits; however, Mr. Sushinsky noted that these were only a few examples of drawings that are available. Mr. Sushinsky referenced construction drawings he had seen in his practice with partial "cross-hatching" just like the diagram on the examination. In sum, Mr. Sushinsky's experience was that diagram might be totally or partially "cross-hatched." In Mr. Sushinsky's opinion it was not a bad diagram, only subject to a different interpretation by a minor group. Question number 24 asked the candidate to calculate the weir peak discharge from the catchment area using the rational formula. The Petitioner asserts the question is misleading and should read, "What is the peak discharge from the watershed?" The Petitioner bases his assertion on the ground that the "rational formula" is used to compute discharge from a watershed not a weir, as mandated by the question. The scorer did not address the Petitioner's concerns. The scorer stated, "It is clear from the item statement that the weir equation is not to be used." However, the questions ask the candidate to compute the weir discharge. Jennifer Jacobs, a professor of engineering, testified regarding the rationale formula that it was used to calculate watershed discharge and not weir discharge. All experts agreed that the rational formula is not used to compute weir discharge. The experts all agree that the question was confusing because the rational formula is not used to calculate the discharge from a weir. The Respondent's expert justifies the answer deemed correct on the basis that if one uses the rational formula and computes the watershed discharge, one of the answers provided is close to the result. The Respondent's expert calculated the watershed discharge as 230.6 cubic feet per second (cfs). The answer deemed correct was 232 cfs. The expert stated the weir attenuates flow. If the weir attenuates flow one would expect an answer less than 230.6 cfs., not an answer equal to or greater than 230.6 cfs. The amount of attenuation is based upon the physical features of the impoundment area and the mouth of the weir. Weir Attenuation varies. The only answers smaller than 230.6 are 200 or 32. Is the 232 cfs. answer wrong because it does not allow for attenuation by the weir? How much did the weir attenuate the flow? Under these facts, the question is capricious. The Respondent argues that the Petitioner didn't follow instructions while acknowledging that the "correct" answer is not the answer to the question that was asked.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Respondent enter a final order awarding Petitioner two raw points and a passing score on the Principles and Practice of Engineering Examination. DONE AND ENTERED this 20th day of May, 1999, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 May, 1999. COPIES FURNISHED: Mark W. Nelson 720 Northwest 31st Avenue Gainesville, Florida 32609 Natalie A. Lowe, Esquire Board of Professional Engineers 1208 Hays Street Tallahassee, Florida 32301 Dennis Barton, Executive Director Board of Professional Engineers 1208 Hays Street Tallahassee, Florida 32301 William Woodyard, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether Petitioner is qualified for certification of qualification for licensure as a professional engineer by endorsement, pursuant to section 471.015(3), Florida Statutes.
Findings Of Fact In 1982, Petitioner earned a bachelor's degree in construction engineering from Florida International University. Petitioner does not have a doctorate in engineering. On June 24, 2009, the state of North Carolina issued Petitioner a license as a professional engineer. This is his only professional engineer license. Because Petitioner had over 20 years' progressive experience on engineering projects acceptable to the North Carolina State Board of Examiners for Engineers and Surveyors, he was eligible for a professional engineer license by, among other things, passing Part II of the National Council for Examiners of Engineering and Surveying (NCEES), which is also known as the Principals and Practices Examination. Due to his experience, North Carolina did not require Petitioner to pass Part I of the NCEES, which is also known as the Fundamentals Examination. By application dated August 27, 2009, Petitioner applied for Florida licensure by endorsement as a professional engineer. Ultimately, Respondent declined to certify to the Florida Engineers Management Corporation the application for licensure by endorsement because Petitioner had not passed Part I of the NCEES. Except for not having passed Part I of the NCEES examination (or, if applicable, not having met one of the other two alternatives set forth in section 471.015(5)(a), as discussed in the Conclusions of Law), Petitioner otherwise meets the education and experience requirements set forth in section 471.013(1), Florida Statutes, for certification for licensure by endorsement.
Recommendation It is RECOMMENDED that the Board of Professional Engineers enter a final order denying Petitioner's application for certification of qualification for licensure by endorsement. DONE AND ENTERED this 11th day of July, 2011, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 11th day of July, 2011. COPIES FURNISHED: Michael Todd Flury, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Kristine M. Johnson, Esquire 10620 Griffin Road, Suite 106-B Cooper City, Florida 33328 Carrie A. Flynn, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 John Rimes, Esquire Chief prosecuting Attorney Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether the examination, its administration, or its grading were arbitrary or capricious.
Findings Of Fact Su-Jung Shiuey sat for the acupuncture licensure examination on July 18 through 20, 1986, in Orlando, Florida. The examination included a requirement for candidates to demonstrate practical clinical skills including sanitation, needling technique, and point location. A passing score of 70 on the clinical practical portion of the examination is required of candidates. Su-Jung Shiuey failed to locate four points in the point location portion of the examination. See Respondent's exhibits 3 and 4. No evidence was presented that this portion of the examination was not fair or was not graded fairly. Su-Jung Shiuey failed to demonstrate proper needling techniques. See Respondent's exhibits 2 and 3. No evidence was presented that this portion of the examination was not fair or was not graded fairly. Each of the examiners was a licensed acupuncturist in Florida. Each of the examiners worked with a co-examiner, and all examiners are required to score candidates independently. Each of the examiners' grade sheets for these two portions of the examination made the same findings and similar observations. Su-Jung Shiuey received 66 points on the clinical practical portion of the examination and was denied licensure. Su-Jung Shiuey presented no independent testimony or evidence to discredit the qualifications of Respondent's witnesses or evidence.
Recommendation Based on the foregoing, it is RECOMMENDED: That Dr. Su-Jung Shiuey's request for increased score, or reexamination without fee, should be DENIED. DONE AND ORDERED this 9th day of January, 1987, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1987. COPIES FURNISHED: Dr. Su-Jung Shiuey (Petitioner's husband) 331 Bloomfield Avenue Nutley, New Jersey 07110 Jeffrey H. Barker, Esquire Deputy General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Marcelle Flanagan, Executive Director Board of Acupuncture Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings Benton, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Petitioner is entitled to credit for his answers to questions 42 and 81 of the morning session of the Fundamentals of Engineering Examination portion of the engineering licensure examination given on April 15, 2000.
Findings Of Fact Worku took the Fundamentals of Engineering Examination portion of the examination for licensure to practice as an engineer intern on April 15, 2000. The examination is a national multiple-choice examination developed and administered by the National Council of Examiners for Engineers and Surveyors (NCEES). The examination is divided into a morning session and an afternoon session. The questions in the morning session are worth one raw point each. The questions in the afternoon session are worth two raw points each. Worku challenged questions 42 and 81, which were on the morning session of the examination. Worku received 56 raw points for the morning session and 52 raw points for the afternoon session for a total raw score of 108 on the examination. Based on the NCEES' Score Conversion Table, a raw score of 108 converts to a score of 69. A converted score of 70, which equates to a raw score of 109-113, is a passing score. Question 81 asked the examinee to identify the geometric shape that was given by an equation provided in the question. Each examinee was given a reference manual during the examination. The manual contains general formulas for the types of geometric shapes listed as possible answers to question 81. The equation given in question 81 was for a specific shape and was not listed among the general formulas in the reference manual. Worku felt that because the general equation was not used that the equation was stated incorrectly. However, the equation was stated correctly. The equation differed from the equation listed in the reference manual because it was for a special shape of the geometric figure. Worku did not answer question 81 correctly. Question 42 dealt with recrystallization as it relates to metal. The question asks the examinee to pick the answer which explains the reference to the term "recrystallization" in the question. Worku contends that there are two correct answers to question 42 and that the answer which he provided is one of the correct answers. The answer which Worku provided is not a correct answer. It refers to the process of annealing, which is the process of decreasing the toughness of a metal. Recrystallization can be a part, but is not always part of annealing. Recrystallization and annealing are not synonymous terms; thus Worku is not entitled to credit for question 42.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Amanuel Worku failed the Engineering Fundamentals Examination with a score of 69. DONE AND ENTERED this 5th day of January, 2001, in Tallahassee, Leon County, Florida. ___________________________________ Susan B. Kirkland 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 5th day of January, 2001. COPIES FURNISHED: Amanuel Worku 18492 Northwest 52nd Path Miami, Florida 33055 Douglas Sunshine, Esquire Florida Engineers Management Corporation 1208 Hays Street Tallahassee, Florida 32301 Natalie A. Lowe, Executive Director Board of Professional Engineers 1208 Hays Street Tallahassee, Florida 32301 Barbara D. Auger, General counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
