Findings Of Fact The Petitioner is not a graduate of at least a four-year accredited college or university course, and has not qualified for a degree with a major in accounting. The Petitioner has not completed such courses as would constitute a major in accounting. The Petitioner has not satisfied all of the legal requirements to take the Florida examination or to receive a Reciprocal Certificate from the Respondent. The Petitioner has practiced accountancy for more than fifty years, and he holds Certified Public Accountant Certificates from the state of New York and the Commonwealth of Massachusetts. The Petitioner has also been admitted to practice before the United States Treasury Department and the United States Tax Court. The Petitioner has performed meritorious work as a Certified Public Accountant, and as also performed many important civic services.
Recommendation That the application of Philip M. Percus for a Reciprocal Certificate allowing him to practice as a Certified Public Accountant in Florida be denied. Recommended this 6th day of May, 1977, in Tallahassee, Florida. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Laurence J. Marchbanks, Esquire 301 W. Camino Gardens Boulevard Boca Raton, Florida 33432 Attorney for Petitioner James S. Quincey, Esquire P.O. Box 1090 Gainesville, Florida 32602 Attorney for Respondent Douglas N. Thompson, Jr. Executive Director Florida State Board of Accountancy Post Office Box 13475 Gainesville, Florida 32604
The Issue Whether the Florida Prepaid College Board (Respondent) is liable to Stephen E. Pazian (Petitioner) under the Participation Agreement for losses incurred in his investments in the Florida Prepaid College Plan as a result of Respondent’s failure to follow Petitioner’s investment instructions.
Findings Of Fact Respondent is a corporate entity created by Section 1009.971, Florida Statutes,2/ responsible for administering the Florida College Savings Program, also known as the Florida College Investment Plan (the Plan). Petitioner is an individual with a Master’s degree in Business Administration from the University Georgia. Petitioner and his wife have been residents of Homosassa, Florida, since 2003. In October 2003, Petitioner opened two accounts with Respondent under the Plan and directed that the funds for both accounts be 100 percent invested in the U.S. Equity Investment Option. Petitioner opened the first account with an initial investment of $50,000 for his daughter, Jordan S. Pazian, Account Number 0079456. The other account Petitioner opened was for his son, Benjamin W. Pazian, Account Number 0079484, also with an initial investment of $50,000. The contract between Respondent and an account owner under the Plan is the Participation Agreement. The Participation Agreement is incorporated by reference into Florida Administrative Code Rule 19B-16.003. Respondent agreed to the terms of the Participation Agreement when he signed the applications opening the two accounts. In turn, Section 1 of the Participation Agreement provides that “the Florida College Investment Plan Application (the ‘Application’) that I completed, signed and submitted to the Board and the Disclosure Statement is incorporated by reference and made a part of this Participation Agreement.” The Disclosure Statement provided to Petitioner at the time he opened the subject accounts, explained on page 28, that the Board “will mail to the Account Owner quarterly statements indicating: Contributions to each selected Investment Option made to your Account during the period. Withdrawals from each selected Investment Option from your Account made during the period. The total value of your Account at the end of the period.” In addition, the Disclosure Statement explained that the fourth-quarter, year-end account statement would provide the same information for the preceding calendar year and the investment performance for each investment option. The Application forms completed by Petitioner required Petitioner, as account owner, to provide “Contact Information” to the Board as part of the Application. Petitioner listed his address as “11987 W. Timberlane Dr., Homosassa, FL 34448-7311,” on both Applications. On October 13, 2003, Petitioner signed both Applications and initialed the following two paragraphs contained on the final page of the Applications: I have read and understand the Florida College Investment Plan Disclosure Statement and the Participation Agreement, and consent to the policies, terms, and conditions of the Florida College Investment Plan, and the Participation Agreement. I understand that the Participation Agreement, which is incorporated into this application by reference, as it relates to enrollment in the Florida College Investment Plan, constitutes a legally binding agreement between me and the Florida Prepaid College Board. I understand that the policies, terms and conditions of the Florida College Investment Plan and Participation Agreement may be amended from time to time without prior notice, and I understand and agree that I will be subject to those amendments. I understand that enrolling in the Florida College Investment Plan and investing my funds in the investment options involves a high degree of risk, account values may fluctuate and there is no guarantee. I understand that I could lose all funds, including any earnings on those funds, deposited in the account, and investments in the Florida College Investment Plan are not deposits or obligations of, or insured or guaranteed by the State of Florida, the United States government, the Florida Prepaid College Board, the Federal Deposit Insurance Corporation, or any other governmental agency or financial institution. Intuition Systems, Inc., is Respondent’s contract provider of certain administrative services with respect to the Florida College Investment Plan, including processing forms from account owners that direct changes in the selection of investment options within the Plan. On January 10, 2007, Petitioner telephoned Respondent. The call was answered by Intuition Systems, Inc. During the telephone call, Petitioner asked for a personal identification number (PIN) for online access to his two accounts. Petitioner also asked about the process for changing the direction of his investments in the Plan. In his testimony, Petitioner recalled, or thought he recalled, receiving Respondent’s facsimile number during the telephone call on January 10, 2007. That testimony, however, is not credited because, although Intuition Systems, Inc.’s business records reflect telephone contact from Petitioner on January 10, 2007, and that Petitioner ordered a PIN number and asked about changing his investments, there is no indication in the records that Petitioner asked for or received a facsimile number. Petitioner more likely received Respondent’s facsimile number from either its appearance on the first page of quarterly statements of the accounts mailed to Petitioner’s Florida residence, or from Petitioner’s wife, who received the mail and opened the quarterly statements. Petitioner testified that he did not personally receive his PIN, but conceded that it was probably sent to his home. Based upon Petitioner’s testimony and Intuition Systems, Inc.’s records reflecting Petitioner’s request for a PIN and that a PIN number was mailed to Petitioner’s residence in Homosassa, it is found that, within five-to-seven days from January 10, 2007, until Petitioner closed the accounts in 2009, Petitioner had access to a PIN number for online, computer access to investment information to the Plan accounts he opened for his children. Around the same time period (middle January 2007), Petitioner also received either online access to, or one or more copies in the mail of, a document entitled “Florida College Investment Plan Allocation Transfer Form” (Allocation Transfer Forms). Based upon Intuition System, Inc.’s records reflecting the January 10, 2007, telephone call, it is found that Petitioner was “advised of web-for-transfer form,” and the most likely scenario is that Petitioner printed Allocation Transfer Forms from Respondent’s website and provided copies of the forms to his wife. Petitioner left Florida in late January 2007 to live, temporarily, in California to work as president and chief executive officer for Prismedical Corporation. While in California, Petitioner stayed in a large motor home near his work in Napa, California, from approximately late January 2007 until returning to Florida in the fall of 2008. During that time period, Petitioner made several trips back to his residence in Homosassa, Florida. Petitioner is unaware of the exact dates he was in Florida during 2007 and 2008, but estimates he was in Florida on approximately the following dates: January 1 through January 28, 2007, May 31 through June 2, 2007, August 25 through September 3, 2007, September 28, 2007, October 7, 2007, November 21 through November 24,2007, December 23 through December 31, 2007, January 1 through January 2, 2008, February 9 through February 17, 2008, and November 10, 2008, through the end of 2008. During the time period that Petitioner was staying in California, Petitioner never updated his address on file with Respondent from Homosassa, Florida, as set forth in his Applications for the accounts, and there is no evidence that Petitioner otherwise advised Respondent or its administrator of an address change. Prior to February 4, 2007, Respondent’s wife, Barbara Pazian, filled out the top portion of two Allocation Transfer Forms for Petitioner’s two Plan accounts: one for the investment account for their daughter, Jordan, and the other for the investment account for their son, Benjamin. The information Ms. Pazian wrote into the top portion of each of the two Allocation Transfer Forms included Stephen E. Pazian’s name as the account owner, a daytime telephone number in Homosassa, Florida, the names of their two children as beneficiaries of the accounts, and the respective account numbers for the two accounts. Petitioner obtained the two partially completed Allocation Transfer Forms from his wife either before or after he left for California. On Sunday, February 4, 2007, while in his motor home in California, Respondent completed and signed the bottom portion of each of the two Allocation Transfer Forms. The Allocation Transfer Form Petitioner completed for the account in Jordan Pazian’s name authorized Respondent to move 100 percent of the equity balance to the fixed income investment option. The Allocation Transfer Form Petitioner filled out for the account in Benjamin Pazian’s name authorized Respondent to move 50 percent of the equity balance into the fixed income option. The top pre-printed paragraph of the Allocation Transfer Forms provides: Return this form to: Florida College Investment Plan P.O. Box 6587 Tallahassee, Florida 32314-6567 Respondent’s facsimile number is not provided on the pre-printed Allocation Transfer Forms. Instead of mailing the Allocation Transfer Forms, Petitioner prepared a facsimile transmittal cover sheet on his computer and dated it February 5, 2007. The facsimile cover sheet was on Prismedical Corporation letterhead and was signed by Petitioner with a message to the Florida College Investment Plan Finance Department from Petitioner stating, “Please find attached two Investment Fund transfer requests for you to process. Please call me should there be any questions.” On Monday, February 5, 2007, Petitioner instructed Jennifer Teixeira, an office assistant at Prismedical Corporation in California, to transmit by facsimile the two completed Allocation Transfer Forms and the facsimile cover sheet Petitioner had prepared to Respondent at fax number 850- 309-1766. As shown by telephone records, Ms. Teixeira completed the task of transmitting by facsimile the three pages as instructed on February 5, 2007, at 9:28 a.m. While there was evidence adduced at the final hearing that Respondent has acted upon investment instructions received by fax, it is clear that the instructions on the Allocation Transfer Forms require mailing and that it was Petitioner who decided to transmit the forms by facsimile instead of mail. Petitioner received a printout from the transmitting facsimile machine in California indicating that the three pages faxed to Respondent on February 5, 2007, were received by Respondent. Other than review of that printout, Petitioner did not try to confirm with Respondent that his investment instructions were received and Petitioner did not communicate with Respondent regarding his faxed instructions for over one year and nine months. The instructions contained in the two Allocation Transfer Forms transmitted to Respondent in that February 5, 2007, facsimile were never acted upon by Respondent or its administrator, Intuition Systems, Inc. There are a number of possible explanations for Respondent’s failure to follow the investment instructions on the two Allocation Transfer Forms. First, while telephone records show that three pages were transmitted, there could have been a problem with Respondent’s fax machine which prevented actual receipt of the transmission. It is also possible that the transmission was received, but the pages were never printed because of error or because of a confidentiality code on the sending machine in California. Another plausible explanation is that the pages were received and printed out, but then lost or misplaced. A possible, but less likely,3/ scenario is that the three pages were transmitted upside down so that only blank pages were transmitted. The person in charge of document management operations for Intuition Systems, Inc., went through all of the images of incoming correspondence, including faxes, received from February 2, 2007 through February 8, 2007, by Intuition Systems, Inc., on behalf of Respondent, and could not find the fax transmitted by Petitioner to Respondent on February 5, 2007. Regardless of the actual reason, it is clear that the investment instructions contained in the Allocation Transfer Forms for Petitioner’s accounts transmitted to Respondent on February 5, 2007, were never followed. The quarterly account statements for both of Petitioner’s accounts with Respondent for the four quarters of 2007 and first three quarters of 2008 were mailed to Petitioner’s residence in Homosassa, Florida, no later than the following dates: Quarter Mailing Dates First Quarter 2007 May 1, 2007; Second Quarter 2007 August 9, 2007; Third Quarter 2007 November 7, 2007; Fourth Quarter 2007 February 13, 2008; First Quarter 2008 May 12, 2008; Second Quarter 2008 July 31, 2008; Third Quarter 2008 November 6, 2008. Petitioner’s wife, Ms. Barbara Pazian, received all of the above-listed quarterly statements and filed them away at the Pazian’s home in Homosassa. The first paragraph of each quarterly statement mailed to Petitioner’s residence specifically states: This statement summarizes your account activity for the previous quarter. Please review the information carefully. Changes to the account, including a change of address, must be in writing and be signed by the account owner. You may mark your changes directly on this statement, sign the statement and mail it to the address below or FAX to (850) 309-1766. Additional information about your account is available at www.florida529plans.com, Florida College Investment Plan, “Access My Account.” If you have any questions, please call 1-800- 552-GRAD (4723). (Emphasis added). On May 8, 2007, Petitioner’s wife called the Florida College Prepaid Board, through Intuition Systems, Inc., to inquire whether she could use some of the investment funds to purchase a new car for their daughter, Jordan, and was told that she could not. Ms. Pazian wrote a handwritten note stating “car not” on the original first 2007 quarterly report for Jordan’s account. If Petitioner had reviewed any of the above-listed quarterly statements or accessed the accounts on a computer using his PIN number, Petitioner would have seen that the instructions contained in the Allocation Transfer Forms he signed, dated February 4, 2007, had not been followed. The account summaries on the first page of each of the quarterly statements listed above clearly indicate that the only funded investment option in both accounts throughout the time period from 2007 through October 31, 2008, was the “U.S. Equity Investment Option.” According to Petitioner, however, he never bothered to review the quarterly statements or access the accounts by computer from January 2007 through October 2008. During the same time period, however, Petitioners regularly reviewed the performance of his non-Plan investments via online computer access. At the final hearing, Petitioner explained that he did not follow his investments in the Plan because it was his understanding that he could only make investment changes in his Plan accounts once a year. Petitioner further testified that since his Plan investments could not be actively traded like his other investment accounts, he considered them “sort of set-it- and-forget-it accounts.” According to Petitioner, the first time he noticed that his investment instructions had not been followed and that all of his investments under the Plan were still invested in the U.S. Equity Investment Option was when he returned home in November 2008 and decided to review the quarterly statements that his wife had filed away. In contrast, according to the testimony of Respondent’s General Counsel Thomas McSwain, during a telephone conference with Petitioner in February 2009, Petitioner told him that, while Petitioner was in California, Ms. Pazian kept him informed of his Plan account balances each quarter from the quarterly statements. Contemporaneous notes taken by Mr. McSwain are consistent with his recollection of that conversation with Petitioner in February 2009. Based upon Mr. McSwain’s testimony and corroborating notes, as well as Petitioner’s self-reported practice of regularly following his other investments, the undersigned credits Mr. McSwain’s testimony over that of Petitioner and finds that during the period of time that Petitioner was in California, Petitioner’s wife kept him informed of the account balances of his Plan investments when she received quarterly statements for those accounts mailed to Petitioner’s home in Homosassa, Florida. While Petitioner might not have actually reviewed his quarterly statements for his Plan investments from 2007 through the third quarter of 2008, the fact that he was kept apprised of the account balances on a quarterly basis demonstrates that Petitioner had sufficient information to know that his investment instructions faxed to Respondent on February 5, 2007, had not been followed. If Petitioner’s investment instructions had been followed, the quarterly statements would have revealed different account balances between his two Plan accounts. Instead, the account balances reflected on the quarterly statements for both accounts remained exactly the same throughout the time that Petitioner was in California. A change of the investment option for Petitioner’s Plan account for his daughter Jordan from a 100 percent allocation in the U.S. Equity Investment Option on February 5, 2007 to a 100 percent allocation in the Fixed Income Investment Option would have resulted as follows: Account Number: 0079456 Beneficiary: Jordan S. Pazian [Actual] [Adjusted] U.S.EQUITY OPTION FIXED INCOME OPTION Date Shares Price Balance4/ Shares Price Balance5/ 2/5/2007 4,363.7302 $15.83 $69,083.82 6,083.7900 $11.36 $69,083.82 3/31/2007 4,363.7302 $15.67 $68,360.89 6,083.7900 $11.50 $69,989.40 6/30/2007 4,363.7302 $16.51 $72,059.87 6,083.7900 $11.43 $69,533.18 9/30/2007 4,363.7302 $16.63 $72,579.53 6,083.7900 $11.76 $71,530.65 12/31/2007 4,363.7302 $16.11 $70,292.97 6,083.7900 $12.11 $73,660.76 3/31/2008 4,363.7302 $14.93 $65,129.07 6,083.7900 $12.29 $74,761.00 6/30/2008 4,363.7302 $14.59 $63,647.65 6,083.7900 $12.15 $73,947.41 9/30/2008 4,363.7302 $13.65 $59,559.57 6,083.7900 $12.12 $73,737.68 12/31/2008 4,363.7302 $10.76 $46,946.07 6,083.7900 $12.67 $77,094.04 3/31/2009 4,363.7302 $9.56 $41,714.74 6,083.7900 $12.78 $77,756.03 4/30/2009 4,363.7302 $10.58 $46,188.98 6,083.7900 $12.85 $78,203.31 6/30/2009 4,363.7302 $11.12 $48,515.40 6,083.7900 $13.03 $79,290.58 7/10/2009 4,363.7302 $10.62 $46,342.01 6,083.7900 $13.20 $80,327.87 A change of the investment option for Petitioner’s Plan account for his son Benjamin from a 100 percent allocation in the U.S. Equity Investment Option on February 5, 2007, to a 50 percent allocation in the Fixed Income Investment Option and a 50 percent allocation in the U.S. Equity Investment Option would have resulted as follows: Account Number: 0079484 Beneficiary: Benjamin W. Pazian INCOME OPTION[Actual] [Adjusted]U.S.EQUITY OPTION 50% U.S. EQUITY OPTION + 50% FIXED Date Shares Balance6/ (prices same as above) U.S. Equity Shares Balance (prices same as above) + Fixed Income Shares Balance7/ (prices same as above) Total 2/5/2007 4,363.7302 $69,083.82 2,181.8650 $34,541.91 + 3,041.8950 $34,541.91 $69,083.82 3/31/2007 4,363.7302 $68,360.89 2,181.8650 $34,180.44 + 3,041.8950 $34,994.70 $69,175.15 6/30/2007 4,363.7302 $72,059.87 2,181.8650 $36,029.93 + 3,041.8950 $34,766.59 $70,796.52 9/30/2007 4,363.7302 $72,579.53 2,181.8650 $36,289.76 + 3,041.8950 $35,765.33 $72,055.09 12/31/2007 4,363.7302 $70,292.97 2,181.8650 $35,146.48 + 3,041.8950 $36,830.38 $71,976.86 3/31/2008 4,363.7302 $65,129.07 2,181.8650 $32,564.53 + 3,041.8950 $37,380.50 $69,945.03 6/30/2008 4,363.7302 $63,647.65 2,181.8650 $31,823.83 + 3,041.8950 $36,973.70 $68,797.53 9/30/2008 4,363.7302 $59,559.57 2,181.8650 $29,779.78 + 3,041.8950 $36,868.84 $66,648.63 12/31/2008 4,363.7302 $46,946.07 2,181.8650 $23,473.03 + 3,041.8950 $38,547.02 $62,020.05 3/31/2009 4,363.7302 $41,714.74 2,181.8650 $20,857.37 + 3,041.8950 $38,879.02 $59,735.38 4/30/2009 4,363.7302 $46,188.98 2,181.8650 $23,094.49 + 3,041.8950 $39,101.65 $62,196.14 6/30/2009 4,363.7302 $48,515.40 2,181.8650 $24,257.70 + 3,041.8950 $39,645.29 $63,902.99 7/10/2009 4,363.7302 $46,342.01 2,181.8650 $23,171.00 + 3,041.8950 $40,163.93 $63,334.94 Although Petitioner had sufficient information since at least May 2007, to know that his February 2007 investment instructions had not been followed, the first time that Petitioner contacted Respondent regarding those investment instructions was on November 13, 2008, when Petitioner made a telephone call to Respondent through Intuition Systems, Inc. During that telephone call, Petitioner complained that he sent the Allocation Transfer Forms in February 2007, but that the accounts were never updated. The Intuition Systems, Inc., representative who took the call advised Petitioner that the forms were never received and therefore, the Plan accounts could not be updated. Petitioner then spoke to a supervisor at Intuition Systems, Inc., who advised Petitioner that there was no record that the Allocation Transfer Forms had been received. In January 2009, Petitioner sent a letter addressed to Mr. Hoepner, Chairman of the Florida College Prepaid Board, which was received by Respondent on January 12, 2009. In that letter, Petitioner requested that his investments be retroactively changed to reflect the investments and earnings as they would have been for each of the accounts had his investment instructions dated February 5, 2007, been followed. Petitioner’s January 2009 letter also stated, in reference to his investment instructions transmitted February 5, 2007, “The cover sheet for this request as well as the request forms and other relevant documents are attached for your reference.” The attached fax cover sheet was in color, was dated February 5, 2007, and signed by Petitioner, but had no initials of Ms. Teixeira, who had sent the original fax cover sheet on February 5, 2007. Later, during his November 19, 2009, deposition, Petitioner admitted that he had printed out that fax cover sheet in color from his computer and signed it in late 2008 or early 2009, but backdated it to February 5, 2007. Later, Petitioner produced the original fax cover sheet which he had sent on February 5, 2007, which had the initials of Ms. Teixeira on the front. According to Petitioner, his wife found the original. Petitioner’s wife, however, did not remember finding it. Regardless of who found the original, the fact that Petitioner was able to print out, back-date, and sign a copy that appears to be the original fax cover sheet demonstrates the mischief that could be achieved had Petitioner desired to misrepresent the facts regarding his February 5, 2007, facsimile. The undersigned finds that Petitioner did not intend to misrepresent the facts regarding that facsimile, but rather finds that Petitioner was overenthusiastic in his attempt to demonstrate to Respondent what had happened on February 5, 2007, through use of identical copies of the original fax cover resident in his computer. This incident, however, was considered in assessing the credibility of Petitioner’s other assertions in this case. As indicated above, Petitioner spoke to Mr. McSwain on the telephone in February 2009. During that call, Petitioner told Mr. McSwain that he did not want the February 5, 2007, Allocation Transfer Forms implemented until the matter was resolved. Respondent’s executive director sent Petitioner a letter dated April 27, 2009, informing Petitioner that Respondent was unable to approve his request, and offering Petitioner another opportunity to implement changes to his Plan accounts and including forms for that purpose. Petitioner never submitted the forms and no allocation changes took place. After filing the Amended Petition for Formal Hearing dated June 1, 2009, initiating this case, Petitioner’s Plan accounts were closed and rolled over into another 529 college investment plan at his request on or about July 10, 2009. On that date, the balance of each account was $46,292.01, after deduction of a $50.00 rollover fee for each account.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Prepaid College Board enter a Final Order finding that the Florida Prepaid College Board is not liable to Petitioner, Stephen E. Pazian, under the Participation Agreement and dismissing Petitioner’s Amended Petition with prejudice. DONE AND ENTERED this 9th day of March, 2010, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 2010.
Findings Of Fact Petitioner Samuel J. Pomeranz holds a "Rank 2" certificate issued by the Florida Department of Education. Petitioner Samuel J. Pomeranz obtained an advanced certificate in Educational Administration and Supervision in June 1970, from City College of New York. He obtained a Bachelor of Arts Degree in 1957 and a Master of Arts Degree in Education in 1959. Petitioner was licensed as a teacher in the State of New York and served as head of Curriculum Development in a senior high school in New York, New York. At the time of the hearing, he had not taught school in the State of Florida. Petitioner applied for a "Rank 1A" teaching certificate from the Respondent Department of Education Certification Section, but certification as "Rank 1A" was denied. Florida Administrative Code Rule 6A-4.049(1)(b) 1. requires that an applicant hold a "sixth year postmaster's level degree." Applicant received a certificate rather than a degree at the conclusion of his postmaster's work.
Recommendation Affirm the Respondent's action in denying Petitioner's request for "Rank 1A" certificate. DONE and ORDERED this 22nd day of October, 1976 in Tallahassee, Florida. COPIES FURNISHED: William L. Boyd, Esquire Post Office Box 5617 Tallahassee, Florida 32303 Gene T. Sellers, Esquire State Board of Education Knott Building Tallahassee, Florida 32304 DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Findings Of Fact The Petitioner, Ana Caos, M.D., is a applicant for a restricted license to practice Medicine in the State of Florida pursuant to the provisions of Section 458.311(8), Florida Statutes. Successful completion of the Florida Board Examination is a prerequisite to licensure under Section 458.311(8), Florida Statutes. The Florida Board Examination is also known as the FLEX examination. In an effort to meet that prerequisite, the Petitioner has already taken the FLEX examination six times since October 1, 1966. The Petitioner has passed portions of the licensure examination, but thus far she has not received a passing grade on the Basic Sciences portion of that examination. The Petitioner seeks to continue taking the licensure examination until she achieves a passing grade on all portions of the examination. The issue of whether Section 458.311(2), Florida Statutes, had the effect of limiting the number of times the Petitioner could take the FLEX exam was first considered by the Board of Medicine in 1992. In response to an earlier application by the Petitioner, by letter dated March 11, 1992, the Petitioner was advised by Board staff that Section 458.311(2), Florida Statutes, appeared to apply to her application and that the matter would be considered by the Board at the next meeting of the Board. Thereafter, by letter dated May 7, 1992, Board staff advised the Petitioner that her application would be considered by the Board's Credentials Committee, and that the Petitioner was required to attend the meeting of that committee on May 27, 1992. At the May 27, 1992, meeting, the Board's Credentials Committee, following perfunctory advice of counsel, and without discussion by the committee members, voted to recommend that the Petitioner be allowed to take the FLEX exam a sixth time after 1986, even though she had previously failed the exam five times since 1986. The committee recommendation was adopted by a majority of the Board of Medicine, and the Petitioner was allowed to take the FLEX examination for a sixth time since 1986. The Petitioner failed the FLEX examination for a sixth time since 1986. The Petitioner has reapplied for licensure under Section 458.311(8), Florida Statutes (1992 Supp.), and seeks to take the FLEX exam for a seventh time since 1986. On January 19, 1993, the Board of Medicine filed and served an order regarding the Petitioner's pending licensure application. The order reads as follows, in pertinent part: You are hereby notified pursuant to Section 120.60(3), Florida Statutes, that the Board of Medicine voted to DENY your application for licensure as a physician by examination. The Board of Medicine reviewed and considered your application for licensure by examination on November 19, 1992, in a telephone conference call originating in Tallahassee, Florida and has determined that said licensure by examinatiion be denied, stating as grounds therefore: That you have failed to pass the FLEX examination six times since October 1986. Subsection 458.311(2), Florida Statutes, prohibits licensure of any individual who has failed the FLEX examination five times after October 1, 1986. Although the Board previously permitted you to sit for the the FLEX examination for a sixth time in 1992, it has since that time determined that this provision applies to all applicants for licensure. The Board of Medicine has an existing rule that interprets several provisions of Section 458.311(8), Florida Statutes (1991). (See Rule 21M-22.020 (1), Florida Administrative Code.) At the Board meeting on July 11 and 12, 1992, the Board of Medicine discussed proposed amendments to the existing rule and voted to initiate rulemaking to amend Rule 21M-22.020(1), Florida Administrative Code, by adding to it new subsections specifically addressing the issue of how many times applicants under subsections (8) and (10) of Section 458.311, Florida Statutes, may take the licensure examination. At its meeting on July 11 and 12, 1992, the Board of Medicine instructed its legal counsel to initiate rulemaking to adopt the rule amendments described above. For reasons unknown to the Board's Executive Director, the Board's legal counsel did not file the proposed rule amendment for adoption until March of 1993. The March 12, 1993, issue of the Florida Administrative Weekly contains notice of the Board's intention to adopt the rule amendments described above. The full text of the proposed rule is as follows: 21M-22020 Western Hemisphere Exile Requirements. For purposes of interpreting Section 458.311, Florida Statutes, as amended by Section 6, Chapter 86-245, Laws of Florida, (codified at Subsection 458.311(8)(9)(a), Florida Statutes (1992 Supp))(1988 Supp), the following shall apply: (a) - (c) No change (d) The phrase "successfully completes the Florida Board Examination" is interpreted as requiring obtaining a passing score as defined by Rule 21M-29.001(2) within the time frame set forth in Section 458.311(2), Florida Statutes. Specifically, if the applicant has failed the examination five times after October 1, 1986, the applicant is no longer eligible for licensure. For purposes of interpreting Section 458.311, Florida Statutes, as amended by Chapter 89-266, Chapter 89-541 and Chapter 92-53, Laws of Florida, (codified at Subsection 458.311(10), Florida Statutes (1992 Supp.)(1991)), the following shall apply: (a) - (g) No change. (h) The phrase "successful completion of the licensure examination" is interpreted as requiring obtaining a passing score as defined by Rule 21M-29.001(2) within the time frame set forth in Section 458.311(2), Florida Statutes. Specifically, if the applicant has failed the examination five times after October 1, 1986, the applicant is no longer eligible for licensure. It is the consistent practice of the Board of Medicine to apply the provisions of Section 458.311(1)(a)-(d), (4), and (5), Florida Statutes, to all applicants seeking licensure under Section 458.311(8), which last-mentioned section is also known as the "Cuban Exile Program."
The Issue The issue for determination is whether Respondent committed an unlawful employment act by discriminating against Petitioner on the basis of race in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact Ms. Westbrooks is an African-American female. In 2000, Ms. Westbrooks began her employment with the City in a billing position in Customer Service as an Account Clerk. She performed very well in that position and received an above satisfactory rating. In 2002, a Junior Accountant position became available, and Ms. Westbrooks applied for the position. The position description for a Junior Accountant indicates that the position’s duties included “Professional accounting work covering all fixed assets accounting and reporting.” Further, the position description indicates that the minimum qualifications consisted of the following: Associate’s degree in Accounting or related field, with some work experience in an accounting environment OR An equivalent combination of training and experience which provides the required knowledge, skills and abilities. Carlos Perez, the City’s Finance Director and a Certified Public Accountant (CPA), performed the hiring for the Junior Accountant position. He hired Ms. Westbrooks for the Junior Accountant position. Mr. Perez considered Ms. Westbrooks’ performance in the Junior Accountant position as excellent. She consistently received performance ratings of above satisfactory and merit increases. In 2006, an Accountant position became available. The City advertised the position. The announcement for the position indicated that the position’s duties included “complex technical work performing professional accounting work covering all phases of account maintenance, classification, analysis, and expenditure control of all phases of City wide fiscal transactions.” Further, the announcement indicated that the minimum requirements for the position were: Bachelors degree in Accounting, Finance or a closely related field with major coursework in accounting . . . plus one to two years experience in accounting. OR An equivalent combination of training and experience which provides the required knowledge, skills, and abilities. Moreover, the announcement provided that “Only those applicants who most closely meet the specific requirements for the position will be contacted for an interview.” Ms. Westbrooks applied for the Accountant position. No dispute exists that Ms. Westbrooks does not possess a bachelor’s degree in accounting. She has an Associates in Arts (AA) degree in Business Administration, which she obtained in 1993. At all times material hereto, the City had a tuition reimbursement program, wherein an employee of the City could obtain a degree and receive tuition reimbursement for obtaining the degree. Ms. Westbrooks was aware of the reimbursement program but chose not to avail herself of it in order to obtain a bachelor’s degree in accounting. However, she did avail herself of the program to obtain certifications associated with her position as a Junior Accountant. No dispute exists that Ms. Westbrooks met the minimum requirements for the Accountant position, satisfying the alternative requirement of equivalent combination of training and experience. Ms. Westbrooks was provided an interview. An interview panel conducted the interviews and rated the applicants, who were interviewed, on a scale of 0 through 5. The interview panel consisted of the City’s Chief Accountant, Budget Administrator, and Pension Administrator. Only the applicants who had an overall rating of 3.0 or higher on the interview were submitted by the City’s Personnel Administration Director, Rebecca Jones, to Mr. Perez. Ms. Jones is an African American and is female. Mr. Perez makes the final decision as to who is hired for accounting positions. He was the final decision-maker for this Accounting position. Mr. Perez is not African American. Only three persons received an overall interview rating of 3.0 or higher. Ms. Westbrooks was one of the three persons, and she received the highest interview score. On December 6, 2006, Ms. Jones submitted to Mr. Perez the names of the three persons, with their interview scores: Laura Westbrooks 4.0 Ronald Castrillo 3.4 Bayard Louis 3.3 Mr. Perez had never hired an accountant who did not have a four-year college degree, i.e., a bachelor’s degree, regardless of race. His position was that the person hired for the Accountant position, and all of his accountants, needed a four-year college degree because that person, as all of his accountants, would be fourth in line to head the Finance Department, as Acting Finance Director, behind himself, the Assistant Finance Director, and the Chief Accountant—at least once a year he (Mr. Perez), the Assistant Finance Director, and the Chief Accountant all attend a conference together; and that a person with a four-year college degree has the technical ability needed to perform in the position, whereas, a person without a four-year degree would not have the technical ability needed. Further, as to the accounting focus of a junior accountant position versus an accountant position, a junior accountant’s focus is fixed assets, whereas, accountants are involved with all aspects of accounting, which includes and goes beyond fixed assets. Mr. Perez had made Ms. Westbrooks aware of his position, regarding accountants, during her tenure in the Junior Accountant position. Ms. Jones did not consider Mr. Perez’s position and action, regarding the hiring of accountants, as being discriminatory. Mr. Perez’s final requirement of a four-year college degree in order to be hired by him as an accountant became the City’s requirement. Mr. Perez offered the Accountant position to Mr. Castrillo who had an AA degree in Business Administration, a Bachelor’s degree in Accounting and who was scheduled to graduate the following semester with a Master’s degree in Accounting. However, Mr. Castrillo did not accept the position due to the failure to agree on a salary. The Accountant position was re-advertised. Ms. Westbrooks remained eligible for the Accountant position and was, therefore, in the pool of applicants to be considered; but was not re-interviewed because the interview questions did not change On March 8, 2007, Ms. Jones submitted to Mr. Perez the names of the applicants who had an overall rating of 3.0 or higher on the interview, together with their interview scores: Tricia Beerom 4.0 Sampson Okeke 3.4 Mirtha Servat 3.3 Mr. Perez hired Ms. Beerom for the Accountant position. Ms. Beerom had a Bachelor of Science degree in Accounting and Management and was an African-American female. Ms. Westbrooks believed that she was not afforded an opportunity to advance because of Mr. Perez’s position regarding accountants possessing a four-year degree and that, therefore, she was discriminated against. However, even though the City had a policy against discrimination and a procedure to file discrimination complaints, she chose not to proceed through the City’s discrimination process because she had no faith in the City. Ms. Westbrooks believed that she was not going to be treated fairly by the City in any attempt by her to achieve upward mobility, which caused her to continuously experience stress, which negatively impacted her health. She eventually resigned from the City. Ms. Westbrooks’ resignation was effective May 4, 2007. At the time of her resignation, Ms. Westbrooks’ salary was $40,000. After her resignation, she received her contributions to the City’s retirement system in the amount of approximately $13,000. In September 2008, over a year after her resignation from the City, Ms. Westbrooks obtained employment with the University of Miami, School of Medicine, as a Grant and Contracts Specialist, with a salary of $41,500. Ms. Westbrooks did not identify any employees who were in classified positions as herself, who were or were not African American and who had upward mobility in positions, and who did not have four-year college degrees. Classified positions are protected by the City’s Civil Service rules and must be advertised. Ms. Westbrooks did identify City employees who were in unclassified positions, not a classified position like herself, i.e., directors and city manager, who did not have four-year college degrees, and who were and were not African American. Unclassified positions are not protected by the City’s Civil Service rules and need not be advertised. The city manager hires all department directors. No dispute exists that, at all times material hereto, a former Director of Purchasing was a white female and a long term employee, who had an AA, not a four-year degree, and who was promoted through the ranks; a Director of Public Works was a white male and a long-term employee, who had an AA, not a four- year degree, and who was promoted through the ranks. No dispute exists that the City’s City Manager is an African-American male who does not have a four-year college degree. No dispute exists that, at all times material hereto, all of the City’s Department Directors, who are African American, have four-year college degrees. The EEOC instituted an “E-RACE Initiative (Eradicating Racism and Colorism from Employment)” and developed a “set of detailed E-RACE goals and objectives to be achieved within a five-year timeframe from FY [fiscal year] 2008 to FY [fiscal year] 2013.” Included in the E-RACE Initiative, were “Best Practices for Employers and Human Resources/EEO Professionals,” which included best practices for recruitment, hiring and promotion. The E-RACE Initiative was implemented by the EEOC subsequent to the action complained of by Ms. Westbrooks and was not demonstrated to be federal law, rule, or regulation; and was, therefore, not shown to have the force or impact of law. The E-RACE Initiative is not applicable to the instant case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that the City of North Miami did not commit a discriminating employment practice against Laura A. Westbrooks in violation of the Florida Civil Rights Act of 1992, as amended, by failing to hire her for an accounting position. DONE AND ENTERED this 1st day of September, 2009, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 September, 2009.
Findings Of Fact Shechet holds Certificate No. R-0573 as a certified public accountant practicing in the State of Florida, which he received by virtue of reciprocal status, having previously practiced in the State of Ned York. Shechet began his accounting career in 1924 and has practiced his profession continuously for the fifty-three years since that time. The records of the Board reflect that Shechet provided no evidence of the completion of any courses or studies that would give him credits towards the reestablishment of his professional competency in the period between January 1, 1974, and April 2, 1977. On September 15, 1975, Shechet sat for an examination which was approved by the Hoard and given to practicing certified public accountants pursuant to applicable law requiring reestablishment of professional competency. Shechet received a score of 3 out of a possible score of 100. The established passing grade for the examination is 75. The examination consisted of 100 multiple choice questions, each with 4 responses. The approved method of answering the questions was to select one response and then, on the answer sheet, darken the circle corresponding to the letter assigned to the selected response. If more than one circle is darkened in a given set of responses, the answer is marked wrong. In each of the 100 answers, Shechet marked more than one response either by darkening, check mark or "X". On May 13, 1977, the State Board of Accountancy suspended Shechet's certificate R-0573 as a certified public accountant for failing to comply with requirements for the reestablishment of his professional knowledge and competency to practice public accounting.
Findings Of Fact Petitioner attended the University of Dayton in Dayton, Ohio, for five semesters beginning in 1966 and ending in 1969. In the first term of the 1967-1968 school year, Petitioner registered for five academic subjects. He received two failing grades and was officially withdrawn from a third class: COURSE DESCRIPTION GRADE CR PTS PSY 201 INTRO PSYCHOLOGY C 3 6 HST 270 ECONOMIC HST OF U.S. D 3 3 ENG 205 MAJOR WORLD WRITERS F 3 0 MIL 201 SECOND YEAR BASIC F 1 0 POL 201 AMER. GOVT-NATL. W 3 0 HRS 10.0 PTS 9.0 AVE 0.9000 ACADEMIC DISMISSAL In the first term of the 1968-1969 school year, Petitioner registered for six academic subjects. He received two failing grades and was officially withdrawn from a third class: COURSE DESCRIPTION GRADE CR PTS ENG 201 POETRY & THE NOVEL C 3 6 FRN 202 INTERM FRENCH II C 3 6 MIL 201 SECOND YEAR BASIC W 1 0 PHL 306 EPISTEMOLOGY F 3 0 POL 303 STATE AND LOCAL GOV F 3 0 POL 306 INTERNATIONAL LAW C 3 6 HRS 15.0 PTS 18.0 AVE 1.2000 ACADEMIC DISMISSAL Petitioner testified that these unsatisfactory grades were not the true evaluation of his academic performance. He claims that they were awarded by professors who refused to follow policies relating to unlimited cuts, attendance, withdrawal, and nonpayment/financial aid adopted by the university in the late 1960s. The record contains copies of the applicable university policies. However, there is no record evidence that the University of Dayton ever corrected Petitioner's transcript to reflect his alleged true academic standing. In 1992, Petitioner began attending Saint Thomas University in Miami, Florida, to complete his education and prepare for a teaching career. Petitioner discussed his prior academic history with a friend, Jeanette Gendron. Ms. Gendron was very concerned that the failing grades from the University of Dayton would adversely impact Petitioner's career in general and his application for a teaching certificate in particular. Petitioner was aware of Ms. Gendron's concerns as they discussed them over the years. Petitioner graduated from Saint Thomas University, Miami, Florida, in May of 1993 with a B.A. degree. On or about June 29, 1993, Petitioner filled out and executed an application for a Florida teaching certificate in the field of Social Science, grades six (6) through twelve (12). On said application, Petitioner signed the following sworn statement: I hereby certify that I subscribe to and will uphold the principles incorporated in the Constitutions of the United States of America and the State of Florida. I understand the Florida Statutes provide for the revocation of an Educator's Certificate if evidence and proof are established that the certificate has been obtained by fraudulent means. I further certify that all information pertaining to the application is true, correct, and complete. Petitioner was residing in Hollywood, Broward County, Florida, at the time he signed this statement. Petitioner filed this application with Respondent on or about June 19, 1993. In November of 1993, Petitioner was attending graduate school in Connecticut. In order to expedite the processing of his application, Petitioner asked his friend, Ms. Gendron, to search his personal records in Florida for a copy of his grade transcript from the University of Dayton. Ms. Gendron found the transcript and made a copy with the following alterations: (1) She changed the unsatisfactory grades to Bs and Cs; (2) She made corresponding changes in credit hours, quality points and grade point averages for two terms; (3) She eliminated the words "Academic Dismissal" for three terms; and (4) She eliminated the words "Readmitted to College of Arts and Sciences, Jan. 1968." After making these alterations on or about November 25, 1993, Ms. Gendron sent the transcript from Florida to Connecticut to Petitioner so he could send it to Respondent. There is no evidence that Petitioner asked Ms. Gendron to alter the transcript. However, Petitioner's testimony that he did not know about the alterations is not persuasive. He knew how Ms. Gendron felt about the bad grades and, according to Ms. Gendron's affidavit, he had the opportunity to review the transcript before he sent it to Respondent. Respondent even testified that: She (Ms. Gendron) told me she was doing it because she didn't like the look of them. She didn't like the grades. She thought that I would be doing better than that. And, we discussed this previously. I did discuss it over the years. About two years ago I discussed it with her, that what had happened, especially before May of 1993, I discussed it. The record copy of this first altered transcript appears to bear the seal of a Notary Public from Connecticut and the date "Nov. 30, 1993" typed in the lower left corner. Respondent received this transcript on or about December 7, 1993. On December 27, 1993, Ms. Gendron altered another copy of Petitioner's grade transcript from the University of Dayton. Using liquid paper and a stamp, she attempted to match the second transcript to the one she sent to Petitioner on November 25, 1993. However, there are obvious differences in the two altered transcripts. The second time she changed the words "Academic Dismissal" to "Academic Evaluation" for three terms. She also did not eliminate the words "Readmitted to College of Arts and Sciences, Jan. 1968." Ms. Gendron used a stamp to make it appear that the corrected transcript was officially approved and initialed by the University of Dayton Registrar. Ms. Gendron's affidavit states that she sent the second altered transcript directly to Respondent on December 31, 1993, and that Respondent should have received it in the first week of January, 1994. However, the alleged stamp and initial of the Registrar is dated January 5, 1994. The transcript also has the date "Jan. 5, 1994" typed in the lower left corner. Upon receipt of the second altered transcript, Respondent notified Petitioner of the differences in the documents. Petitioner asked the University of Dayton to send an official transcript directly to Respondent. On or about February 1, 1994, Respondent received an official transcript from the University of Dayton showing the failing grades for the first term of the 1967-1968 school year and the first term of the 1968-1969 school year along with the correct number of credit hours earned, quality points accumulated, and grade point average. In February of 1994, Petitioner filled out and executed a second application for a Florida teaching certificate in the field of Political Science, grades six (6) through twelve (12). On February 11, 1994, Petitioner signed the second application containing a sworn statement identical to the one set forth above in paragraph nine (9). Respondent received this application on February 15, 1994. By letter dated March 7, 1994, Respondent notified Petitioner that Professional Practices Service would review the official transcript from the university which differed from the original official transcript submitted on Petitioner's behalf. Respondent advised Petitioner that further processing of his application was pending clearance from Professional Practices Service. By letter dated June 24, 1994, Respondent informed Petitioner that his application for certification in Political Science (filed on February 15, 1994) was void and that Respondent would refund the $54 application fee. Respondent advised Petitioner that it was unnecessary to apply for certification in Political Science because that subject area was included in the broader field of Social Science. Respondent refunded the fee for the voided application by state warrant dated June 30, 1994. By Notice of Reasons dated July 12, 1994, Respondent informed Petitioner that his application for a Florida teaching certificate in the field of Social Science was denied. Petitioner worked as substitute teacher in Broward and Dade public schools in 1994 and earned good evaluations from his supervisors. He also taught Sunday School at St. Matthew Catholic Church where he serves as catechist. After receiving his B.A., Petitioner immediately began working towards a M.S. in guidance and counseling at Saint Thomas University. The record contains references from his professors emphasizing his potential as a teacher. Petitioner has completed all academic requirements to be qualified as a Social Science teacher. He has passed all required state teacher certification examinations. His application appears to be complete. Despite being otherwise qualified to hold a Florida teaching certificate, record evidence indicates that Petitioner knew the first two University of Dayton transcripts sent to Respondent incorrectly reflected his academic standing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order denying the Petitioner's application for a Florida certificate, such denial to be without prejudice to refile a future application. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 13th day of March, 1995. SUZANNE F. HOOD, Hearing Officer 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 13th day of March, 1995. APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Petitioner's Proposed Findings of Fact Rejected. More of a conclusion of law than a proposed finding of fact. Reject Petitioner's assertion that he did not "willfully violate any rules and regulations of the district school board or state Board of Education." See paragraph 24. Rejected. More of a conclusion of law than a proposed finding of fact. Rejected. See conclusions of law. Rejected. See conclusions of law. Rejected. See conclusions of law. Rejected. See conclusions of law. Rejected. See conclusions of law. Rejected. See conclusions of law. Respondent's Proposed Findings of Fact Accepted in paragraph 18 of this Recommended Order (RO) Accepted in paragraphs 9 & 18 of this RO. Accepted. Implicit in paragraphs 9 & 18 of this RO. Accepted in paragraph 24 of this RO. However, both of the falsified transcripts were submitted prior to the filing of the application dated February 11, 1994. Accepted. See paragraphs 11 & 14 of this RO. Accepted. See paragraphs 11 & 14 of this RO. Accepted. See paragraphs 2, 3, & 17 of this RO. Accepted in paragraph 19 of this RO. COPIES FURNISHED: Frank O'Neil Post Office Box 661 Hollywood, FL 33022-0061 J. David Holder, Esquire 1480 North Peidmont Way Tallahassee, FL Thomas Abrams, Esq. 1377 97th St. Miami, FL 33154 Karen Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, FL 32399-0400 Kathleen M. Richards, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, FL 32399-0400
Findings Of Fact The Petitioner is a certified public accountant licensed in the State of Pennsylvania, having been licensed in 1961. The Petitioner is seeking licensure as a certified public accountant in Florida pursuant to the provisions of Chapter 43.308(3)(b), Florida Statutes, and Rule 21A-29.01(1)(b), Florida Administrative Code, that is, he seeks licensure in Florida by endorsement based upon his Pennsylvania licensure without the necessity for taking the Florida examination. At the time of the Petitioner's initial licensing in the State of Pennsylvania in 1961 he met Florida's requirements in the areas of education and experience. The Petitioner currently holds a valid license in Pennsylvania and is licensed in other states. The Board of Accountancy reviewed the Petitioner's application and determined that he met the Florida requirements for education and experience and that he was administered the same examination in Pennsylvania in 1961 that was administered in Florida in 1961, the uniform certified public accountancy examination administered by the American Institute of Certified Public Accountants (AICPA). The Board determined, however, in its non-final order, that the Petitioner did not receive grades on that examination administered in Pennsylvania that would have constituted passing grades in Florida and denied his application. The rules of the Board require that an applicant for licensure as a certified public accountant receive a grade of 75 or above on all parts of an examination administered by the American Institute of Certified Public Accountants. See Rule 2IA-28.05(2)(3), Florida Administrative Code. The rules in effect in 1961 also required that a grade of 75 or above be received on all four subjects of the examination in order to achieve licensure in Florida. See Rules of the State Board of Accountancy Relative to Examinations and the Issuance and Revocation of Certificates, Rule 1(f). See also Section 473.10, Florida Statutes (1961). The requirement that applicants for licensure by endorsement receive grades on all four areas of the AICPA Exam of 75 or better has been enforced in Florida since the 1930's and has been a requirement embodied in the rules of the Board since 1949. In February, 1961, the Pennsylvania Board of Accountancy, pursuant to a resolution enacted for insular reasons of its own, determined to accept as passing the Petitioner's and other candidates' scores in the Law and Practice portions of the AICPA licensure examination, even though those grades were below the score of 75. The Board thus deemed that the Petitioner passed the examination for purposes of licensure in Pennsylvania with a score of "75" by fiat, even though in fact the Petitioner did not receive an actual score of 75 in those two subject areas as determined by the AICPA which administered and graded the examination. The acceptance of the lower grade on the part of the Pennsylvania Board was not done pursuant to a regrading of the Petitioner's exam in an attempt to correct mistakes or errors in the AICPA's finding regarding his score, but was rather simply due to an arbitrary determination by the Pennsylvania Board that for the Petitioner and certain other Pennsylvania applicants the lower grade in that particular instance would be considered as passing. The Petitioner had no knowledge that the Pennsylvania Board had taken this action in arbitrarily upgrading his scores on two portions of the exam so that he passed the entire exam until he began his application process with the Florida State Board of Accountancy in September, 1980. During its investigation of the Petitioner's application for licensure by endorsement, the Florida Board of Accountancy ascertained that the Petitioner had in fact received grades of 65 in the Law and Practice pertions of the Uniform AICPA Examination which were then subsequently arbitrarily raised by resolution of the Pennsylvania Board. The Florida Beard has at no time accepted as passing grades for a licensure examination those grades by applicants of less than 75 on the AICPA examination. It is true that prior to the Florida Board's becoming aware, in 1973, of the fact that Pennsylvania had arbitrarily raised some grades of its applicants, it did in fact accept some similarly situated candidates for licensure by endorsement in Florida. After becoming aware at that time of this arbitrary grade-raising process, the Board has consistently refused licensure to applicants from other states who actually received less than 75 on the AICPA Examination as determined by the AICPA. For considerations of equity and fairness the Board did, however, allow candidates who had already been licensed in Florida by endorsement prior to the Board's becoming aware of this anomaly to retain their licenses. Since the Petitioner failed to meet the AICPA examination requirement of a grade of 75 or better on all portions of the examination which was set forth and adopted in the Florida rules and statutes in effect at the time of his licensure in Pennsylvania in 1961, his request for licensure by endorsement was denied by the Board's non-final order on December 8, 1980.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of counsel, it is RECOMMENDED that the denial of the Petitioner's application for licensure by endorsement by the Board of Accountancy of the State of Florida be upheld and that the petition be denied. DONE AND ENTERED this 22nd day of June, 1981 in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 1981. COPIES FURNISHED: George L. Waas, Esquire 1114 East Park Avenue Tallahassee, Florida 32301 John J. Rimes, III, Esquire Assistant Attorney General Suite 1601, The Capitol Tallahassee, Florida 32301
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to the issue herein, Petitioner, Ronald R. Corum, Examinee Identification No. 200619, was a candidate for licensure by examination as a professional engineer, and the Board of Professional Engineers was and is the state agency in Florida responsible for the licensing of Professional Engineers and the regulation of the practice of professional engineering in the state of Florida. Petitioner sat for the October 1990, Florida Professional Engineer Licensure Examination (Principles and Practice of Engineering). This part of the examination is divided into a morning session and an afternoon session. The morning session requires the examinee to choose four essay questions from a choice of twelve essay questions and produce a numerical solution to each question. The afternoon session is multiple choice and the examinee has to solve four questions from a choice of twelve questions. Each of the questions, both morning and afternoon, are worth ten points (raw score) for a total maximum raw score of 80 points, with a minimum passing raw score of 48 points. Petitioner received a raw score of 47 points. Question 124 was one of the essay question selected by Petitioner to solve in morning session of examination. Question 124 consisted three parts, 124A, B and C which required the examinee to: compute the area of traverse (in acres) a five-sided polygon; compute the net area (in acres) in the land parcel after adding sector area AB and excluding sector area DE; and compute the length of curve DE (in feet). The problems posed by Question 124 are not uncommon in the day to day practice of professional engineering and are not particularly difficult to solve. Petitioner attempted to solve Part A by using the method of coordinates which is an acceptable method of determining the area of a traverse. However, the Petitioner made a fundamental error in applying the method, not a simple mathematical error, in that he did not return to the beginning point of the traverse which resulted in an unrealistic answer. The correct answer to Part A was 16.946 acres. The Petitioner calculated the area to be 126.12 acres. In attempting to solve Part B, the Petitioner misapplied a correct methodology by erroneously expressing the central angle of the area in degrees rather than in radians. A radian is equal to approximately 57 degrees and this resulted in substantial error in Petitioner's calculation. The correct answer was 17.607 acres. Petitioner's answer was 219.63 acres which was not possible in relation to the area the Petitioner had already calculated for the traverse in Part A. This was a very serious error, a fundamental error, not a mathematical error. The maximum raw score for question 124 was ten points. Petitioner received a raw score of two points. On review, Petitioner was again granted only two points out of ten possible points. The examinee's identity is not known to the scorer during the initial scoring or the review. Both question 124 and the scoring plan used in grading question 124 were approved by the National Council of Examiners of Engineers and Surveyors (NCEES). The scoring of question 124 was weighted so that Parts A and B were worth four points each, and Part C was worth two points. Petitioner correctly answered Part C and received two points. The Petitioner did not receive any points for Part A or Part B. The examinee was not aware of this weighting policy at the time of the examination. The scoring plan for question 124 which was used by the NCEES grader was set up in six (6) categories from 0 - 10 in two-point increments as follows: 10 - Exceptionally competent. 8 - More than minimum competence but less than exceptionally competent. 6 - Minimum competence. 4 - More than rudimentary knowledge but insufficient to demonstrate competence. 2 - Rudimentary knowledge. 0 - Nothing presented to indicate significant knowledge of the problem. Petitioner's use of acceptable methodologies in attempting to solve the problems of Parts A and B may indicate at least rudimentary knowledge and possibly more than rudimentary knowledge but insufficient knowledge to demonstrate competence which would have entitled Petitioner to at least two points on Parts A and B each. However, the unreasonableness and the impossibility of his answers and his failure to recognize the unreasonableness and impossibility of his answers coupled with his fundamental error in solving the problems of Parts A and B were such that the Petitioner did not demonstrate significant knowledge of the problems for Parts A and B. Therefore, any credit that would have been given for using acceptable methodologies in attempting to solve the problems would be negated by this lack of significant knowledge of the problems. Because of this lack of significant knowledge of the problems the scorer correctly adjusted Petitioner's score on Part A and Part B each to zero. Unreasonable answers result in credit being deleted, and this policy is uniform among all of the states. However, the examinee is not made aware of this policy at the time of the examination. There was no instruction or guide to indicate to the examinee that if the examinee recognized that any answer was unrealistic that the examinee should so indicate on the answer sheet. Likewise, there was no instruction or guide to indicate that the examinee would be more heavily penalized if the examinee did not indicate on the answer sheet that the answer was unrealistic. An examinee's inability to recognize an unrealistic answer and to so indicate on the answer sheet without specific instruction goes to the examinee's competence as a professional engineer. Therefore, Petitioner has not been treated unfairly by the lack of instruction or guide advising him to indicate his ability to recognize an unrealistic answer on the answer sheet. The NCEES scorer for question 124 attempted to award the same score to all examinees of the October 1990 examination who gave similar unrealistic answers to question 124 as did Petitioner without noting on the answer sheet that the answer was unrealistic. The examinees are not informed of how the scoring plan will be applied in advance of the examination or that the essay question will be scored in two- point increments only. There was no evidence that this information would be of significant benefit to the examinee. In fact, the Petitioner did allocate his time in attempting to solve question 124 similar to the weighting of the scoring plan, spending only a small part of the time on Part C. Part B should have identified the curved areas to be computed as segments, rather than sectors. Petitioner attempted to solve Part B as though it referred to segments, and did not raise this issue in the request for review. Petitioner's use of degrees rather than radians would have been equally erroneous in determining the area of a sector. There was no evidence to show that identifying the curved area as a sector rather than a segment had any effect on Petitioner's attempt to solve the problem. The official solution to Part B contained a typographical error made during the transcription of the grader's handwritten solution. This had no effect on the scoring of Part B. The solution cannot affect the answer given by the examinees, as the solution is only available after the examinee has completed the examination and is challenging the scoring. There is a lack of competent substantial evidence in the record to establish that the scores which Petitioner received on Part A and Part B of question 124 of the October, 1990 Professional Engineering Licensure Examination were incorrect, unfair or invalid, or that the examination, and subsequent review, were administered in an arbitrary or capricious manner.
Recommendation Based upon the foregoing, it is RECOMMENDED: That Respondent enter a Final Order dismissing the Petitioner's challenge to the grading of his response to question 124 on the October 1990 Professional Engineer's Licensure Examination. DONE and ENTERED this 26th day of November, 1991, in Tallahassee, Florida. WILLIAM R. CAVE 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 26th day of November, 1991. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in the case. Rulings on Proposed Finding of Fact Submitted by the Petitioner Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which adopts the proposed finding of fact: 1 (2); 2 (3); 3 (3); 4 (5); 5 (5); 6 (7); 7 (9); 8 (9); 9 (13); 10 (13); 11 (12); 12 (9); 13 (5); 14 (6); 15 (9); 16 (11); 17 (7); 18 (1); 20 (16); 21 (16) and 22 (18). Proposed finding of fact 19 is not supported by substantial competent evidence in the record but see finding of fact 11. Rulings on Proposed Findings of Fact Submitted by the Respondent 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which adopts the proposed findings of fact: 1 (2); 2 (3); 3 (4); 4 (5); 5 (6); 6 (6); 7 (7); 8 (8); 9 (9); 10 (12); 11 (11); 12 (15); 13 (9, 16); 14 (17); 15 (18). COPIES FURNISHED: Wellington H. Meffert, II, Esquire Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 David W. Persky, Esquire Spicola & Larkin 806 Jackson Street Tampa, FL 33602 Angel Gonzalez, Executive Director Board of Professional Engineers 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792
