Findings Of Fact The Respondent entered into a contract with Anthony Cocco and his wife in August of 1977, to construct a single-family residence. By June of 1978, work on the project had virtually ceased, although Respondent caused some landscaping work to be done after that date. In October, 1978, Respondent gave notice to Cocco of a default on the contract. This led to civil litigation on the contract between the parties which was unresolved at the time of the subject hearing. Respondent was licensed as a residential contractor in 1970. See Petitioner's Exhibit #1. The Respondent was also licensed at the time of the hearing. See Petitioner's Exhibit #2. No evidence was received that the Respondent was licensed at any time between the date he entered into the contract with Cocco and the date that Respondent gave notice of default. Regarding the Respondent's licensure between August of 1977, and October, 1978, the only evidence received was the Petitioner's Exhibit #2, which states in pertinent part: ... Said licensee was licensed September 1970 and has been current for all years licensed.
Recommendation Therefore, based on the foregoing Findings of Fact and Conclusions of Law, the Respondent's Motion for Directed Verdict is granted, and it is recommended that this cause be dismissed. DONE and ORDERED this 19th day of April, 1982, in Tallahassee, Leon County, 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 19th day of April, 1982. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Michael E. Egan, Esquire 217 South Adams Street Post Office Box 1386 Tallahassee, Florida 32302 Jane E. Heerema, Esquire 217 South Adams Street Post Office Box 1386 Tallahassee, Florida 32302 George E. Tragos, Esquire 487 Mandalay Avenue Clearwater Beach, Florida 33515 Samuel Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 C. B. Stafford, Executive Director Board of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
The Issue The issue in this proceeding is whether Petitioner's examination for licensure as a residential contractor was incorrectly graded.
Findings Of Fact Based upon my observation of the witnesses, their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I make the following findings of fact: In order for Petitioner to obtain a license as a residential contractor in Florida, he is required to successfully complete a certification examination. The examination is prepared by the ACSI National Assessment Institute and administered by the Department of Professional Regulation (DPR). The questions on the exam are prepared from specific reference materials disclosed to the applicants, generally accepted industry procedures and standard field knowledge. Petitioner took the residential contractor's examination administered by DPR in October, 1988. There were three parts to the examination and an applicant was required to pass all three parts in order to be entitled to licensure. Petitioner received the following grades on his exam: Part I - 67.5; Part II - 84.0; Part III - 84.0. While the grades received by the Petitioner on Parts II and III of the exam were passing scores for those sections, Petitioner needed to obtain a grade of at least 69.01 on Part I in order to pass the exam. Petitioner challenges several of the questions on Part I of the exam contending that they were unclear and ambiguous, and that, in any event, he correctly indicated the "closest" answer included for the multiple choice questions. There is conflicting evidence as to the value of each of the challenged questions. At the hearing, Respondent's testing expert testified that each of the questions challenged by Petitioner was worth one point and, therefore, Petitioner would have to succeed in challenging two of the questions in order to obtain a passing grade in excess of 69.01. However, Petitioner challenged this evaluation system as being contrary to the information set forth in the testing materials. According to Petitioner, those materials indicated that each question was worth two points. In the Proposed Recommended Order submitted by counsel for Respondent, it is admitted that each correct question has a grade value of two points. Based upon this admission, the undersigned finds that each of the challenged questions is worth two points. The first question challenged by Petitioner, BA#1, involved the amount of reimbursement that could be expected under a builder's risk insurance policy following an accident on a job site. The question provides the exam taker with a detailed listing of the damage that occurred. The factual predicate for the question sets forth the replacement cost for damage to a temporary job site structure, the amount of damage to construction materials not in place and the amount of damage to a truck which was not covered by vehicular insurance. According to Respondent, the correct answer to the question required the applicant to add those three items together to determine the amount that would be paid under the insurance policy. In selecting his answer, Petitioner did not include the damage to the truck. Petitioner contends that he did not include the damage to the truck in calculating the amount of insurance proceeds that could be expected for two reasons. First, he contends that the owner of the truck was not identified. However, Respondent was able to demonstrate from the approved reference materials that the owner of the truck was not a controlling factor if the truck was located on the project property. Therefore, Petitioner's challenge to the question on this basis has no merit. However, the second reason cited by Petitioner for not including the damage to the truck as part of the expected insurance proceeds has merit. According to the approved reference materials, to be included under the all risk policy, the truck must be categorized as either construction equipment or part of the contractor's tools. As noted above, the contractor was not clearly identified as the owner of the truck so there is no basis for including the truck as part of the contractor's tools. While the reference materials clearly indicate that "construction equipment" is covered under the all risk policy, Petitioner contends that the truck in this question was not sufficiently described to be included in the classification of "construction equipment". In support of his contention that the truck should not be considered "construction equipment," Petitioner cited several portions of the reference materials which state that "construction equipment" does not have a common meaning, but includes the "equipage used for the physical accomplishment of the work." The reference materials do not specifically state that trucks or other vehicles designed for highway use are included within the definition of construction equipment. Indeed, in the portions of the reference materials dealing with construction equipment, only tractors and similar heavy machinery are specifically mentioned. Petitioner also introduced a copy of a builder's risk insurance form used by a local insurance agent which specifically excludes "conveyances designed for highway use." Thus, the only evidence of industry standards indicates that trucks are specifically excluded from builder's risk policies. In sum, based upon the approved reference materials and industry standards, Petitioner was justified in excluding the damage to the truck in arriving at his answer to question BA#1. The second question challenged by Petitioner was BA#6. This question required an applicant to compare estimated costs of construction with actual costs reflected on the job cost ledger. The factual predicate for the question provided for a positive cash inflow achieved from resale of excavation material. According to Respondent, the correct answer to the question should have included this "negative cost" in determining the difference between the estimated cost and the actual cost reflected on the job cost ledger. Petitioner contends that the "negative cost" for spoils disposal should not be included on the cost ledger. While Petitioner concedes that the spoils disposal can result in positive cash inflow, he contends that such a positive inflow should not be reflected as a "cost", but instead should only increase the contractor's profit on the job. The reference materials for the exam do not clearly state that "negative costs" are includable within the job cost ledger. This accounting methodology is not set forth in the reference materials and is merely a book- keeping procedure rather than a construction standard established through field knowledge. Since this book-keeping procedure was not adequately explained in the reference materials and does not qualify as an industry standard, the Petitioner was justified in including only "positive costs" in answering question BA#6. Petitioner also challenges question BA#9. That question states that an insurance company will provide a reduced premium if the insured adopts a safety program. The question also provides the cost associated with the implementation of the safety program. The exam taker is required to choose the answer that reflects the total cost of the insurance program. According to Respondent, the correct answer should include the reduced insurance premium plus the cost associated with implementing the safety program. Petitioner excluded the cost associated with the safety program on the grounds that it was not actually a "cost of insurance." While Petitioner's answer would have been correct if the question asked how much was paid to the insurance company, the question asked for the total net cost incurred by the company for insurance. Thus, the most appropriate response included the cost of the safety program which would necessarily be incurred in order to achieve the lower insurance premium. Petitioner has not sustained his burden of proof with respect to this question. During the hearing, Petitioner also argued that question FA#11, which dealt with interest rates on a construction loan, tested an applicant on a subject matter which was beyond the scope of knowledge an applicant for a residential contractor's license can be expected to have acquired prior to taking the exam. While the question deals with subject matter that is generally available only to the owner of a project, (i.e., the interest payments due on the construction loan), to obtain the correct answer, the applicant needed only to apply simple math procedures involving the calculation of interest. These math procedures are typical skills a contractor will frequently utilize in business. Therefore, the Petitioner has not sustained his burden of proof in challenging this question.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner's October, 1988 examination for residential contractor's license be regraded in order to give him credit for correctly answering questions BA#1 and BA#6 and that Petitioner be deemed to have passed the exam and be qualified for registration as a residential contractor. DONE AND ENTERED this 4th day of August, 1989, in Tallahassee, Leon County, Florida. J. STEPHEN MENTON 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 4th day of August, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-1232 Both of the parties have submitted Proposed Recommended Orders. The Petitioner's Proposed Recommended Order contains a number of paragraphs of mixed findings of fact and conclusions of law which have not been numbered throughout. To the extent that the proposed findings of fact can be isolated, they are addressed below. Petitioner's Proposed Findings of Fact Proposed Finding of Paragraph Number and Recommended Order Fact Number Where Accepted or Reason for Rejection Accepted in Finding of Fact 8. Accepted in part but subordinate to Finding of Fact 10. Accepted in Finding of Fact 11. Accepted in Finding of Fact 11. Accepted in Finding of Fact 11. Rejected as overbroad. However, see Finding of Fact 11 which deals with this issue. Accepted in Finding of Fact 12. Accepted in Finding of Fact 12. Accepted in Finding of Fact 12. Accepted in Finding of Fact 12. Accepted in Finding of Fact 12. The remainder of Petitioner's Proposed Findings of Fact and Recommended Order are deemed by the undersigned to constitute merely summarization of the testimony or legal argument. Respondent's Proposed Findings of Fact Proposed Finding of Paragraph Number and Recommended Order Fact Number Where Accepted or Reason for Rejection Accepted in Findings of Fact 2, 3-5. Accepted in Findings of Fact 6, 8, 10, 12, 14 and 15. However, Petitioner also challenged question FA#11. Accepted (as amended by the correction filed on June 29) in Finding of Fact 7. The first sentence is adopted in the preliminary statement. The second sentence is rejected as subordinate to the Findings of Fact set forth in this Recommended Order. The first sentence is adopted in the preliminary statement. The second sentence is rejected as merely a summary of the testimony. The first sentence is adopted in Findings of Fact 10 and 11. However, The second sentence is rejected as a result of the Correction to Proposed Recommended Order filed by Respondent on June 29, 1989. As to question BA#6, this proposal is rejected as subordinate to the Findings of Fact contained in this Recommended Order. As to question BA#9, this proposal is adopted in Finding of Fact 14. COPIES FURNISHED: Bruce D. Lamb, General Counsel Department of Professional Regulation 1940 North Monroe Street, Ste 60 Tallahassee, Florida 32399-0729 E. Harper Field Deputy General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 James C. Marshall, Esquire 3241 S.W. 104 Ct. Miami, Florida 33165
The Issue The issues in this case are whether Respondent, Matthew Brillis ("Brillis"), and Respondent, Insurance School of Continuing Education (the "Insurance School"), violated Sections 626.611(7), (9), and (13), Sections 626.621(2), (3), (6), and (12), and Sections 626.9521(1) and 626.9541(1)(e)1, Florida Statutes (1997), and Florida Administrative Code Rules 4- 228.040(2)(d) and (3)(b), 4.228-090(5), 4-228.100(2), 4- 228.160(1) and (6), and 4-228.170 by submitting invoice and roster forms to the state for a cancelled class of continuing education, and, if so, what, if any, penalty should be imposed. (All references to chapters and sections are to Florida Statutes (1997) unless otherwise stated. Unless otherwise stated, all references to rules are to rules promulgated in the Florida Administrative Code in effect as of the date of this Order.)
Findings Of Fact Petitioner is the state agency responsible for regulating life and health insurance agents. Brillis is licensed as a life and health insurance agent and teaches continuing education courses under the name of the Insurance School. Section 626.2815 establishes requirements and standards for continuing education courses for persons licensed to sell insurance in Florida. Each licensee must complete 28 hours of continuing education every two years. Petitioner interprets Section 626.2815 as authorizing Petitioner to regulate providers of continuing education courses. Petitioner claims that Section 626.2815 authorizes Petitioner to approve the instructors and school officials employed by such providers. Petitioner requires providers to apply for approval for each course before the provider can offer the course. If Petitioner approves the course, Petitioner requires the provider to file with Petitioner a "schedule of classes." The schedule of classes contains a variety of information including the signature of the school official, the name of the course, the location of the class, and the number of credit hours requested. After the course is completed, Petitioner requires a provider to file an "invoice and roster." The invoice and roster contains the name of the course, its location, the names of the persons who attended the course for credit, and the number of credit hours received by each person. Petitioner requires the provider to include a payment of $1.00 per person with each invoice and roster. Petitioner enters the information from the invoice and roster into Petitioner's computer system. The computer assigns credit to each licensee listed in the invoice and roster. In May 1995, the Insurance School filed three schedule of classes with Petitioner. The schedules notified Petitioner that the Insurance School would teach classes on Life Insurance Policies and Rules and Regulations on September 18, 1995, and a class on Government/Retirement Programs on September 19, 1995, at a Holiday Inn in West Palm Beach. Each of the schedules were stamped with a replica of the signature of Brillis. The signature was stamped on the line requiring a signature of the school official. Employees of the Insurance School routinely used a stamp with a replica or facsimile of Brillis' signature to complete the forms required by Petitioner. Brillis travels extensively while teaching continuing education courses. His signature stamp is reasonably necessary to comply with the filing requirements imposed by Petitioner. The Insurance School has been in operation and approved by Petitioner since 1991. Employees at the Insurance School made arrangements with the Holiday Inn in West Palm Beach for a class room and lodging for the instructor for September 18 and 19, 1995. Prior to September 11, 1995, the Insurance School cancelled the classes due to an error in the flyers mailed out to promote the classes and consequent low attendance. On September 11, 1995, employees of the Insurance School cancelled the class room and the lodging for the instructor at the Holiday Inn in West Palm Beach. Brillis instructed employees of the Insurance School, in a written memorandum, to call each person enrolled in the cancelled classes and notify him or her of the cancellation. Brillis also instructed his employees to offer each person the choice of a refund or a credit toward a future class and to notify the state that the classes had been cancelled. Employees of the Insurance school carried out the instructions from Brillis. Attached to the written instructions left by Brillis, is a copy of the schedule of classes with a large "X" in the box next to the word "cancellation." In the upper right corner of the schedule is a notation written by an employee other than Brillis stating that the notice to the state was "sent 9/11." Petitioner does not have any record that it ever received the notice of cancellation. Petitioner does have a request for course credit for the cancelled classes that was filed with Petitioner in error. In May 1997, Petitioner notified Brillis that an invoice and roster had been sent to Petitioner for the cancelled classes. The invoice and roster requested course credit for the cancelled classes. Petitioner told Brillis that Petitioner had issued certificates of completion to the persons registered and listed on the invoice and roster. A computer error at the Insurance School caused the invoice and roster to be sent to Petitioner. After a class is cancelled and the licensee is notified, standard procedure requires the appropriate employee at the Insurance School to input the word "cancelled" in the computer file for each person in the cancelled class. This procedure was not followed for the cancelled classes. When the employee responsible for running the invoice and roster form for the Insurance School keyed the computer to collate the licensees that had attended the classes originally scheduled for September 18 and 19, 1995, the computer did not show that the classes had been cancelled. An employee would have no way of knowing that the classes had been cancelled unless the note of cancellation had been input into the computer file. The invoice and roster form was erroneously generated, stamped with Brillis' signature, and sent to Petitioner. Although some portions of the invoice and roster contain handwritten information, none of the handwriting is the handwriting of Brillis. The handwriting remains unidentified. The erroneous request for course credit for the cancelled classes is a single isolated incident caused by a computer error. The computer error was the result of an honest mistake committed by one or more employees of the Insurance School. Brillis did not cause the computer error and did not instruct his employees to take action that resulted in the erroneous request for course credit. Rather, Brillis instructed his employees to take action that would have prevented the mistake by notifying Petitioner that the classes had been cancelled. If those instructions had been followed, there would have been no erroneous request for course credit. Brillis has been licensed to sell insurance in Florida since 1964. In 34 years, Petitioner has never taken any disciplinary action against Brillis' license. Brillis began teaching continuing education courses for insurance agents before 1991. Since 1991, there has never been any disciplinary action taken against Brillis' license. The Insurance School was formed as a Florida corporation on May 31, 1991. It was dissolved on August 26, 1994. Since its dissolution, the Insurance School has not been a Florida corporation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondents not guilty of all of the allegations in the separate administrative complaints filed against them. DONE AND ENTERED this 8th day of June, 1998, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1998. COPIES FURNISHED: Bill Nelson State Treasurer and Insurance Commissioner The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Daniel Y. Summer General Counsel Department of Insurance and Treasurer The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300 John R. Dunphy, Esquire Joseph A. Robles, Esquire Department of Insurance Division of Legal Services 612 Larson Building Tallahassee, Florida 32399-0300 Cynthia S. Tunnicliff Pennington, Moore, Wilkinson, Bell and Dunbar, P.A. 215 South Monroe Street, Suite 200 Tallahassee, Florida 32302-2095
The Issue Does Petitioner, Lee County School Board (Board or District), have just cause to terminate the employment of Respondent, Stacey Landau, from her position as a school teacher for submitting fraudulent medical documentation in support of applications for accommodations and benefits under the Americans With Disabilities Act (ADA) and the Family Medical Leave Act (FMLA)?
Findings Of Fact The Board owns and operates the public schools in Lee County, Florida. It is responsible for hiring, terminating, and overseeing all employees in the school district. The District has employed Ms. Landau since January 19, 1998. Most recently, she was assigned to work as a teacher of students with disabilities at Patriot Elementary School. Ms. Landau is an instructional employee and is governed by the Collective Bargaining Agreement between the Board and the Teacher's Association for Lee County (TALC). The District employs her pursuant to a professional services contract. Ms. Landau holds a Florida educator's certificate. She is certified in elementary education, English for speakers of other languages, and exceptional student education. Ms. Landau's performance assessments have always been satisfactory or better. The District has not previously disciplined her. Ms. Landau submitted documents to the District in 2012 and 2013 to support her requests for accommodations under ADA and FMLA. The documents included three dated July 25, 2012; August 16, 2012; and June 24, 2013. During a July 24, 2013, meeting of the District ADA Committee to review Ms. Landau's most recent request, members of the committee developed concerns about the authenticity of the June 24, 2013, document. It was one of three documents submitted by Ms. Landau that bore the signature of James Weiner, M.D. The other two were dated July 25, 2012, and August 16, 2012, also purportedly signed by Dr. Weiner. Ranice Monroe, the District's director of Professional Standards and Equity, contacted Dr. Weiner's office to determine the authenticity of the signature. After Dr. Weiner's staff advised Ms. Monroe that neither the doctor nor his staff had completed or signed the form, the District had Dr. Weiner review the other two forms to determine their authenticity. Dr. Weiner is a physician who works for the Sypret Institutes, a neurosurgical practice. He also worked, during the relevant period, for Southwest Florida Neurosurgical and Rehabilitation Associates. Dr. Weiner practices anesthesia, pain management, and rehabilitative medicine. He treated Ms. Landau for several years. During all time periods relevant to this proceeding, Ms. Landau was Dr. Weiner's patient. Ms. Landau was also the patient of an ophthalmologist, Dr. Elmquist, who was treating her for her deteriorating eyesight. Information provided by his office is not relevant to the issues in this proceeding. Throughout his career, Dr. Weiner has consistently followed the same practice when completing forms, such as forms for workers' compensation patients, medical certifications for benefits, and medical certifications for accommodations. He personally completes the forms by hand, usually during the evening at home. He never signs the forms in blank. Ordinarily, Dr. Weiner's staff does not complete these types of forms for him. Dr. Weiner's office does not have and has never had a typewriter. The forms that he completes for patients are never completed by typewriter or other mechanical printing device. Dr. Weiner keeps copies of forms that he completes in his patients' files, whether he provides them to the patient, an employer, or an insurance carrier. July 25, 2012, Form Ms. Landau submitted a form titled, Medical Certification of ADA Qualifying Impairment dated July 25, 2012, in support of her request for accommodations due to a disability. The form has four sections seeking identified information and provides room for physician-identifying information and the physician's signature. "Cervical spasmodic torticollis" is handwritten in the section asking for the "[n]ature and severity of the employee's impairment." "Chronic" is handwritten in the section seeking "[p]ermanent or long term impact." The handwriting for the responses in those two sections is the handwriting of Dr. Weiner. He completed those sections of the form. Dr. Weiner also completed the section of the form providing the name and contact information for the attending physician, which is also in his handwriting. The patient name on the form is in handwriting that Dr. Weiner says is not his. Handwriting that Dr. Weiner says is not his provides the response called for by a section stating: "Major life activities substantially limited by impairment " The response states that, among other things, Ms. Landau has a limited ability to engage in daily activities with her son, grocery shop, carry heavy objects, lift items out of the car, and walk. The following section seeks "[w]ork related restrictions that necessitate a reasonable accommodation for this employee." The response, in handwriting that Dr. Weiner says is not his, states: some physical restraint, deflecting aggressive attacks, [illegible] emotional stress that see daily and extend throughout the long [illegible]. Moving furniture to put classroom back together [illegible] has [illegible]. Dr. Weiner theorized that someone modified a form that he had completed changing the responses in the two sections quoted above. The physical evidence is not consistent with the theory. The form has lines on which to provide the responses. The lines on all sections in question are complete. There is nothing indicating that text on them was erased or pasted over. The writing is on the lines with the loops of letters such as "ys" and "fs" crossing below the lines in a natural manner. There is also plausible testimony from Ms. Landau's mother, also a patient of Dr. Weiner, that on occasion, his staff has completed parts of forms that he signs. Consideration of the persuasive and credible evidence does not result in the conclusion that it is more probable than not that Ms. Landau caused sections of the July 25, 2012, form to be altered after Dr. Weiner completed it. It is probable, accepting Dr. Weiner's testimony that he never signs blank forms, that in this instance, his staff assisted him in completing the form. Comparing the copy of the July 25, 2012, Medical Certification form that Ms. Landau provided the school with the copy of the form, if any, in Dr. Weiner's records, would have demonstrated whether the form that Ms. Landau provided to the school was one that Dr. Weiner had prepared. The record does not contain evidence of a file copy. August 16, 2012, Form The responses on the Medical Certification form dated August 16, 2012, that Ms. Landau provided the District are typed or otherwise mechanically printed. Only the signatures of Dr. Weiner are in script. The responses are typed or printed on pieces of paper that have been obviously pasted or taped over the lines on the form where responses are to be written. This includes the section for the address of the provider. The response to the "[n]ature and severity of the employee's impairment" section is markedly different from that of the form dated July 25, 2012, less than a month earlier. The printed response states: "Positive cervical nodes with intra-abdominal metastases and tumor invasion." The difference between the July 25 and August 16, 2012, response to the "[p]ermanent or long term impact" section is also marked. The printed response states: "Ms. Landau will require routine blood tests and pet scans to monitor for possible future growth. Ms. Landau requires monitoring and assistance with food consumption and nutrition." The responses to the other two sections calling for narrative responses are also very different from the responses in the July 25, 2012, form. These differences, the credible and persuasive testimony of Dr. Weiner that he has never used printed responses on these sorts of forms, and the fact that the responses are plainly added to the form over the lines provided, make it more probable than not that Ms. Landau altered the form intending to deceive the Board. June 24, 2013, Form This form is an acknowledged forgery. Britton Thorne, an unemployed family friend of Ms. Landau forged the responses on the four-page form and Dr. Weiner's signature on it. Because he was unemployed and Ms. Landau needed assistance due to her vision impairment, Mr. Thorne was living with her, helping with household chores, providing transportation, and attending doctor appointments with her. Mr. Thorne testified that he grew frustrated with his inability to have the form completed by Dr. Elmquist and was unwilling to leave the form at the doctor's office for completion. Consequently, he completed the form. He signed Dr. Weiner's name because he had a prescription from Dr. Weiner available with a signature to copy. Mr. Thorne then sealed the forged form in an envelope. He drove Ms. Landau to the District office to deliver the envelope with the forged form. Mr. Thorne did not tell Ms. Landau what he had done until Dr. Weiner's office advised Ms. Landau that he was discharging her because he had learned of the forgery from the District. Mr. Thorne's demeanor while testifying and his acknowledged concern about possible criminal prosecution for his actions made his testimony credible and persuasive. There is no credible, persuasive evidence that Ms. Landau knew of Mr. Thorne's forgery at the time she submitted the form to the District.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order finding just cause to terminate the employment of Stacey Landau and dismissing her from her position as a teacher with the Lee County School District. DONE AND ENTERED this 31st day of March, 2014, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 31st day of March, 2014.
Findings Of Fact Test Anxiety at the February 1994 General Contractor's Examination The General Contractor's Examination used in the licensing of individuals as general contractors is divided into three parts, each of which may be passed separately. Credit for passing any one portion of the examination is good for a period of only one year. An applicant for a license as a General Contractor is limited in taking any part of the examination to three times per year. If an applicant fails to pass all three parts of the examination in one year, therefore, the applicant must commence the examination process anew, as if none of the portions of the examination had been passed. On February 17, 1994, William T. Davenport, sat for the Contract Administration portion of the exam for the third time within a one-year period. At each of the two examinations taken earlier, he had passed one portion. The Contract Administration portion was the only part he had not yet passed. Mr. Davenport was anxious as he waited to take the exam. He fully realized that if he did not pass the Contract Administration portion he would have to start the examination process all over again. His concern was generated not only from the perspective of delay and inconvenience attendant to having to repeat the entire exam process, but also from the perspective of cost. Repeating the process would require him to pay the full exam fee after having paid already a full examination fee for each of three examinations in the year of his attempt to successfully complete the examination requirements for licensure. Different Approved Reference Lists The Construction Industry Licensing Board approves reference materials that applicants may use during the examination and issues a list of those materials periodically. The Reference List for the February examination covered the period between November 1, 1993 and February 28, 1994. On that list was a book Mr. Davenport brought with him to the examination: Practical Mathematics, 3rd Edition, Copyright 1972. As Mr. Davenport sat nervously awaiting commencement of the exam, a proctor removed Practical Mathematics from his desk indicating that use of the book was not allowed. Mr. Davenport relates his response to the incident in this way, (Tr. 26.) The anxiety was very high at that point. My concern was try to get through the exam and, when the book was taken away from me, I panicked, to be blunt. I just totally panicked. Unlike the testing period from November 1, 1993 to February 28, 1994, Practical Mathematics was not on the Reference List for the next period of testing, from March 1, through June 30, 1994. The later list, issued January 13, had been out for over a month at the time of the exam. It is likely the proctor removed the book in mistaken reliance on the later list. As it turned out, the proctor returned the book to Mr. Davenport either shortly before the examination commenced. As he did so, the proctor commented, "Well, I don't know." (Tr. 25.) Mr. Davenport did not use the book during the exam because, "[a]t that point, I was reluctant to use the book ... I didn't want the test to be invalidated and I didn't want to be challenged." Id. Not using the book proved to be critical to whether Mr. Davenport passed the Contract Administration portion of the exam. He scored a 68. A passing grade is 70. Had Mr. Davenport answered correctly question number 3, which was worth four points, he would have received a 72, a passing grade. The question involves applying a percentage. Mr. Davenport could not remember whether in obtaining a percentage it is necessary to multiply or divide. Practical Mathematics has a chapter on percentages. The chapter teaches that multiplication is the arithmetic method to use when obtaining a percentage. But Mr. Davenport guessed that division should be used. He divided by the percentage and, therefore, chose an incorrect answer. Question number 3 on the exam is one of the questions that Mr. Davenport challenged originally: A 2-man crew has consistently worked at a labor performance standard ratio of 0.85 to 1. They are selected for a job requiring 60 (standard time) man-hours to perform. They will NOT work more than 8 hours per workday. NO work will be done on Saturdays or Sundays. There are NO holidays during the time the work will be performed. According to Builder's Guide to Accounting, if the job must be finished NO later than Friday afternoon at 5:00 p.m., what is the last day that they could be scheduled to start the job? Thursday of the previous week Friday of the previous week Monday of the same week Tuesday of the same week Respondent's. Ex. No. 2. The correct answer is "(D) Tuesday of the same week." The Department's expert witness explained that the correct answer is reached by way of an algebraic formula. The formula is: "the labor performance standard ratio = x (the unknown) divided by the standard time man hours" and then that answer is divided by 2 since the crew is a 2 man crew. Applied to the problem, the formula is: .85/1 = x/60, with x, once known, divided by 2. Using the formula, the calculation goes as follows: .85/1 = x/60; multiplying both sides of the equation by 60, .85(60) = x; carrying out the arithmetic calculation, x equals 51; 51/2 = 25.5. It takes 25.5 hours, therefore, for the crew to complete the job. If, as the problem states, the job must be completed by Friday at 5 p.m. and the crew works 8 hours a day, then it will take the crew 3 full days and 1.5 additional hours to complete the job. Working backward from Friday, the crew will work 8 hours on Friday, 8 hours on Thursday, and 8 hours on Wednesday for a total of 24 hours. The crew must start on Tuesday of the same week to work the additional 1.5 hours required to complete the job. One does not need to use algebra, however, to solve the problem. One can simply obtain the number of actual hours needed to complete the job by applying 85 percent (the crew's labor performance standard) to the number of standard time manhours called for by the job, in this case, 60. Here is where Mr. Davenport needed Practical Mathematics. Not knowing whether to obtain the actual hours by multiplying .85 times 60 or dividing .85 into 60, he guessed, in error, division. Through the use of division, it appears incorrectly that the number of manhours needed is 70.588. Divided by two, to take into account that there are two members of the crew, it would take the crew 35.294 hours. If it took the crew 35 hours and a fraction to complete the job on time, the crew would need to start on Monday of the same week. "(C) Monday of the same week," is the answer chosen by Mr. Davenport. Other Distractions and the Site of the Exam The examination was conducted in the Tallahassee office of the National Assessment Institute (NAI). The NAI was under contract to the Department as the vendor to conduct the exam. At the time of the examination, the exam site was a room approximately forty feet by thirteen feet four inches in size. It contained nine tables, each 18 inches by eight feet. The tables were spaced 35 inches from each other. At each table were two straight-backed chairs. There were seven candidates present for the examination. The first and last tables were unoccupied. Each of the seven candidates were allotted 34 square feet of floor space to be occupied by the candidate, the chair, the table and materials used in the exam. On the east wall of the exam room were three plate glass fixed windows. Two of the windows are 48 inches long by 36 inches tall and one is 36 inches long by 31 inches tall. The glass is one-eighth inch thick non- commercial grade. The windows are acceptable under NAI guidelines. On the other side of the windows is a workroom that measured 15.25 by 17.5 feet. Through these windows the examination supervisor seated in the work room can monitor the performance of the proctors in the exam room and see the candidates as they take the exam. The candidates, seated to the left of the workroom, do not face the workroom. Rather, their right side is exposed to the workroom. If the tables are numbered 1 through 9 on Respondent's Ex. No. 1, beginning with 1 on the side of the room marked on the exhibit as "N" or north, candidates who were seated at tables 4 through 8 were directly exposed to the workroom windows. Mr. Davenport was seated at one of the tables exposed to the workroom windows, most likely table 3, 4 or 5, that is, one of the center 3 tables. During the exam, he could see employees through the windows moving in the workroom and hear noise from the workroom. There were four employees who were present at one time or another in the workroom. Three of these employees were also engaged in proctoring the examination. In addition to the visual diversion posed by the four employees in the workroom, Mr. Davenport could hear sounds emanating from the room. The doors to the workroom, open so that the exam supervisor seated in the workroom could hear what occurred in the exam room, also allowed sounds from the workroom into the exam room. The source of the sound was the printer working, the four workers conversing from time to time and other noises associated with an office work environment. Sight of the employees and noise from the workroom prevented petitioner from fully concentrating on the exam. Mr. Davenport was also distracted by the activities of the proctors while in the exam room. During the four hours he sat for the exam, three of the four employees he observed in the workroom were also acting as proctors. They left the workroom in a rotation in order to spell each other. During their shifts as proctors, the three monitored the exam room. Mr. Davenport felt distracted by the coming and goings of the three as they rotated in and out of the room. Although there was a table designated for the proctors at a corner outside the workroom across from table 3, they rarely sat there. They sat at one of the empty tables or walked beside the seated candidates, all the time carrying out the function of a proctor: observing the candidates during examination. The FCILB Examination Administration Manual, applicable to the February General Contractor's exam, details the responsibilities of proctors in sixteen separate counts. No. 13 reads: Proctors observe at all times and move quietly about the room. Proctors do not disturb or distract candidates during the examination. If speaking is necessary, a proctor needs to be quiet and brief as possible. Proctors avoid asking candidates to move chairs to get around them, standing too close or directly behind candidates, or rustling papers and talking to other proctors in the vicinity. Petitioner's Ex. No. 2, FCILB Examination Administration Manual, p. 2-5. Movement of the proctors was necessary during the exam because of its open-book format. It is incumbent on the proctors of an open-book exam to insure that candidates do not copy questions form the examination into their reference materials. Other Candidates Reactions to the NAI's Tallahassee Office Among the three proctors the day of the exam was Ms. Jean Love. Ms. Love is also the Office Manager of the NAI's Tallahassee Office. She has worked for NAI for over two years. Before that she worked for eight and one-half years with the Department in examination services, during which she administered exams, including acting as a proctor for exams. In addition to the daily operations of the office, she oversees the administration of examinations, a function she fulfilled at the February General Contractor's exam this year. Ms. Love did not see any unusual or distracting activities on the part of the other two proctors and did not undertake any activities, in her opinion, that would have violated any of the responsibilities of proctors, including those quoted, above, from the FCILB Examination Administration Manual. The activities during the exam in the workroom, undertaken under Ms. Love's supervision, were normal activities undertaken every day at the NAI Tallahassee Office during and outside of times of examinations. Aside from typical office activities, such as conducting telephone conversations, scheduling candidates for tests, and doing paperwork that included hand-folding documentation, there was no unusual activity the day of the exam. The only event in the workroom that contributed at all to the sound of normally quiet office activity was the validation of a single candidate's check. No complaints about noise in the workroom during the February General Contractor's Exam were registered with the NAI Tallahassee Office. Nor did any of the candidates that day complain about the activities of the proctors. Ms. Love did not learn of Mr. Davenport's complaint until after he filed his challenge to the examination questions. While a proctor may have from time to time stood near Mr. Davenport as he took the exam, none of the proctors hovered over him or, in Ms. Love's opinion, did anything that would distract the average candidate. No complaint during the examination was made by Mr. Davenport. He did not complain about inability to concentrate on the exam until after he received the exam results. During Ms. Love's two years at the NAI Tallahassee office, no candidate, prior to Mr. Davenport, had ever complained about the testing environment for any reason. The comments she has received from candidates following exams have been solely complimentary. Over the last two years, the office has administered between 15 and 20 tests per month. Complimentary comments are made, on average, by one candidate per test. In the last two years the office has received, at a minimum, well in excess of 350 compliments on the testing environment from candidates. In contrast, Mr. Davenport's complaint stands alone as the only complaint about the office testing environment in the last two years at the NAI's Tallahassee Office.
Recommendation It is, accordingly, RECOMMENDED, in the alternative: That petitioner's request for reexamination or a passing grade on the "Contract Administration, Division I" portion of the General Contractor's examination administered in February 1994 be DENIED; or, in the alternative, If the Construction Industry Licensing Board is willing to overlook the petitioner's failure to challenge his grade specifically on the appropriation of the book before the examination in the petition for formal hearing and the Department's legitimate objection to the presentation of evidence on the issue, that petitioner be allowed to sit for reexamination and, if he passes the Contract Administration portion of the exam, be credited with passing the other two portions of the exam as well as if all three portions had been passed in one year. DONE and ENTERED this 1st day of December, 1994. DAVID M. MALONEY 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 1st day of December, 1994. APPENDIX Petitioner's proposed findings of fact Nos. 3, 4, 5, 6, 9, 10, 12, and 13 are adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 1, the first and last sentences are adopted. The remainder of the proposed finding, and in particular the reference to Linda Chaffin, test proctor, is rejected because it is either not supported by the evidence or argumentative in nature rather than factual. Petitioner's proposed finding of fact No. 2 is rejected as against the weight of the evidence. Petitioner's proposed finding of fact Nos. 7 and 8 are rejected as unsupported by the evidence. With respect to petitioner's proposed finding of fact No. 11, the reference to Linda Chaffin is rejected. Ms. Chaffin was not identified by the evidence as the proctor who removed the book from petitioner prior to the exam. Respondent's proposed findings of fact are adopted, in substance, insofar as material. COPIES FURNISHED: William T. Davenport 336 14th Avenue, North Jacksonville, FL 32250 William W. Woodyard Assistant General Counsel D B P R 1940 North Monroe Street Tallahassee, FL 32399-0750 Richard Hickok, Executive Director C I L B 7960 Arlington Expy., Ste. 300 Jacksonville, FL 32311-7467 Jack McRay General Counsel D B P R 1940 North Monroe Street Tallahassee, FL 32399-0750
The Issue The issue for resolution in this proceeding is whether Petitioner is entitled to additional credit for his response to question 124 in the Principles and Practice of Engineering portion of the engineering licensure examination administered on October 30, 1998, by the National Council of Examinees for Engineers and Surveyors (NCEES).
Findings Of Fact Petitioner is a candidate for licensure as a professional engineer. On October 30, 1998, Petitioner sat for the Principles and Practice of Engineering portion of the examination in civil engineering. This is a national examination developed, controlled, and administered by the NCEES. Respondent is a Florida non-profit corporation created by Section 471.038, Florida Statutes, to provide administrative and other services to the Florida Board of Professional Engineers (Board). Petitioner was notified in January 1999, that his raw- score on the examination was 45, which converted to a full score of 67, was below the required passing score of 70. He contested the score and asked for a rescore of his responses to examination questions 123 and 124. NCEES reviewed the responses and awarded two additional points for question 123; it awarded no additional points for question 124. The rescore resulted in a raw-score of 47 and a full score of 69, still short of a passing grade. Petitioner then requested a formal administrative hearing and, as stated above, confined his challenge to his score on question 124. Question 124 involved computations for a detour roadway during a bridge replacement project. The question had four parts, thus requiring four computations (a-d). Segments of the detour were expressed in metric lengths (meters) in the question. A beginning station was described as 5 + 000.000. The question required that all computations be carried out to the appropriate significant digits. As described by the scoring plan for question 124, a perfect score was 10 points for an "exceptionally competent" response. The next highest score was 8 points for "more than minimum but less than exceptional competence," described as: Failure to provide answers to the required accuracy and a correct solution to requirements (a)-(d) OR an incorrect solution to one of the requests (a)-(d) with all answers within the required accuracy. Failure to provide the answers to the required accuracy will result in a deduction of two points at any level of scoring. (Respondent's Exhibit no. 8) The NCEES scorers awarded Petitioner a "6" for question 124, both initially and upon his requested review. Six points indicated "minimum competence," described as: Demonstrated a competent knowledge of reverse curves with a correct solution to at least two of the requirements meeting the required accuracy or a correct solution to at least three of the four possible requirements but answer(s) fail to meet the required accuracy. (Respondent's Exhibit no. 8) A solution is the methodology or process employed to reach a numerical result or answer in the examination problem, according to the competent credible testimony of Petitioner's experts. Those experts would have scored Petitioner's responses to question 124 as an "8" or "9". On rescoring, the NCEES score's comments in assigning a score of "6" were: SCORER'S COMMENTS: Requirement (a)-Failed to meet accuracy requirements of +/-0.015m. Requirement(b)-Decimal error was made. The station was in km and the curve length was in meters. Requirement(c)-Same error as in Requirement (b). No points were deducted for this error. Requirement (d)-Solution is correct. Minimum competence was shown by this solution. The grading process for the portions of the examination of which question 124 was a part was subjective within the guidelines provided by NCEES. Different scorers could award different points for the same answer. Petitioner's experts and Respondent's expert, all competent, credible witnesses, differed as to the score they would award. Petitioner's response to (a) of question 124 was not accurate within +/- 0.015m. That error alone would have resulted in a 2-point penalty. However, he also mis-read the initial stationing provided in the problem statement, resulting in inaccurate answers for (b) and (c). A correct solution generally includes the appropriate use of available data. In this case Petitioner's error in reading the correct station position was a technical error only and was caused by a misleading expression of the position in the question itself. His solutions to (a)-(d) were otherwise correct. In Florida, the only engineers who use the metric system are consultants for the Florida Department of Transportation (FDOT) and even that agency is phasing out the use of metrics. The use of metric measurements is not the standard of practice for Florida Professional Engineers. Out of the 30 projects that Respondent's expert has done since he was licensed, only one involved the use of the metric units. J. Keith Dantin, P.E., one of Petitioner's experts, has never in his 14 years of experience worked on a roadway or surveying problem in metric units. The Candidate Information Booklets provided by the Respondent to the examinees are conflicting and confusing. The February 1998 version states: "Examinees should be prepared to solve bridge problems using either metric or English units of measure. All other problems are in English units." (Petitioner's Exhibit No. 1). The October 1998 version states under the category Structural Design Standards: "All problems are in English units" (Respondent's Exhibit No. 3, boldface in original). When FDOT uses metric units it still expresses those units in English terminology. Thus, where question 124 positioned the beginning station at 5 + 000.000, the English translation would have been 50 + 00. It is evident that Petitioner read the station to be 5 + 00, missing one of the O's; if he had used the 5 + 000, or if the question had expressed the position at 50 + 00 (the English terminology used by the FDOT), all of Petitioner's answers would have been correct and his solutions would not have included the merely mechanical error of utilizing the wrong beginning station position. While he felt that he, personally, would understand the problem, Respondent's expert agreed there might be a bit of confusion. Respondent's expert was candid and credible but his professional experience was substantially less than Petitioner's experts, who also were candid and, on balance, more competent. Petitioner should have been scored an 8 on question 124. His solutions were basically correct and his answers were off merely due to the confusing expression of the beginning station. In real practice his error would have been caught before it reached the field and the error in no way betrayed a lack of fitness to practice as a professional engineer.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioner's challenge to his score on question 124 be sustained and that his score be upgraded by 2 points, from a "6" to "8". DONE AND ENTERED this 3rd day of November, 1999, in Tallahassee, Leon County, Florida. MARY CLARK 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 3rd day of November, 1999. COPIES FURNISHED: William H. Hollimon, Esquire Ausley & McMullen, P.A. 227 South Calhoun street Tallahassee, Florida 32302 Jeff G. Peters, Esquire Cedar Woods Office Center 1266 Paul Russell Road Tallahassee, Florida 32301 Natalie A. Lowe, Esquire Vice President for Legal Affairs Florida Board of Professional Engineers 1208 Hays Street Tallahassee, Florida 32301 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Respondent, James "Jimmy" Bilbo (Bilbo) was at all times material to this proceeding a member of the Liberty County School Board. On July 22, 1993, Complainant, Jeremiah "Jerry" Anders (Anders), a former employee of the Liberty County School Board, filed Complaint No. 93-98 with the State of Florida Commission on Ethics (Commission) against Bilbo. Specifically Anders alleged the following: I feel Jimmy Bilbo has violated Sec. 112.313(6) of the Florida Statutes. Please see the attached descriptions of possible violations. * * * * During the spring of 1993 Jimmy Bilbo instructed the following work be done on his friend, Laban Bontrager's bulldozer at the bus shop: Grease job Rake installed Filled with county diesel This was done on school time with school materials. Clay Evans and Lester Bramblett witnessed this. The Commission ordered a preliminary investigation. On December 7, 1993, the Commission filed a Public Report, finding there was no probable cause to believe Bilbo violated Section 112.313(6), Florida Statutes and dismissing the complaint. On January 13, 1994, Bilbo filed his Amended Petition for Costs and Attorney's Fees and Request for Hearing. Shortly after Bilbo was elected, the school board, on Bilbo's motion, voted to refer some allegations of impropriety at the school bus barn to the state attorney's office for investigation. Some ethics complaints were also filed relating to the same incidents, but Bilbo played no part in the initiation of the ethics complaints. During these investigations Mr. Anders had been questioned. Anders harbored some resentment towards Bilbo for his part in the referral of the matter to the state attorney's office. Mr. Anders was employed with the Liberty County School System until June 30, 1993, when his contract was not renewed. In April, 1993, Bilbo loaned a tractor (bulldozer) to the school system for use in filling in holes at the school maintenance garage that resulted from the removal of fuel tanks at the maintenance garage and in spreading dirt for a parking area. The tractor was also to be used to clear out and dress up a holding pond adjacent to the garage in order to accommodate runoff water. Although the tractor was owned by Laban Bontrager, a friend of Bilbo's, Bilbo had authorization to loan the tractor. Bilbo and Lester Bramlett, the school maintenance foreman, went to Bilbo's home, loaded the tractor which had a root rake attached to the front end and a full tank of gas, and carried the tractor to the maintenance garage for Mr. Bramblett to use for county work. In order for the tractor to be used to spread dirt for the parking area, Mr. Bramlett and Bilbo removed the root rake. The tractor remained on county property until approximately mid-May, 1993. During this time the tractor was used only for county work. While Mr. Bramblett was using the tractor, he added fuel as necessary and kept the blade and tracks greased for effective operation of the machine. After Mr. Bramblett finished using the tractor, he put fuel in the tank. When Bilbo came for the return of the tractor, Bilbo mounted the root rake on the tractor and loaded the tractor on his trailer. Bilbo did not charge anyone for the use of the tractor. In his complaint, Anders listed Clay Evans and Lester Bramlett as witnessing the work being done on the tractor on school time and with school materials in violation of Section 112.313(6), Florida Statutes. Mr. Anders was not present at the alleged incident. Bramblett denied that Bilbo instructed him to grease the tractor, put a rake on it, and fill it with fuel. Both Messrs Bramblett and Evans testified that the tractor was used for county work at no charge to the county. Diane Lindsey testified that she heard Bramblett say that Bilbo told him to gas and service the tractor and put the root rake on it. Having judged the credibility of the witnesses, I find that Bilbo did not instruct Mr. Bramblett to gas, service, or attach the root rake to the tractor. The tractor was loaned to the school system containing a full tank of gas and it was returned to Bilbo with a full tank of gas. It was necessary to grease the tractor while in use to keep it running properly, and Bilbo put the rake on the tractor prior to loading the tractor for the return trip to Bilbo's house. There was no personal benefit to Bilbo or to Mr. Bontrager. After Anders' contract was not renewed, Anders told George Sanders, a friend of Anders and Bilbo, to tell three friends, Mr. Johnson, Mr. Wilbanks and Bilbo, that "he [Anders] had him [Bilbo] and was going to get him." Anders told Mr. Bramblett after the investigation by the Commission of Anders' complaint, that he wanted "Bilbo to feel the same kind of pain that he had."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying James "Jimmy" Bilbo's Amended Petition for Attorney's Fees and Costs. DONE AND ENTERED this 28th day of March, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 28th day of March, 1994. APPENDIX TO FINAL ORDER, CASE NO. 94-337FE To comply with the requirements of Section 120.59(2), Florida Statutes, (1993), the following rulings are made on Respondent's proposed findings of fact Respondent's Proposed Findings of Fact. Paragraphs 1-5: Accepted in substance. Paragraph 6: Accepted in substance except the Report on Investigation was not entered into evidence. Paragraphs 7-8: Accepted in substance. Paragraph 9: Accepted in substance. Paragraphs 10-14: Rejected as unnecessary detail. Paragraph 15: Accepted in substance. Paragraph 16: The first sentence is accepted in substance. The second sentence is rejected as not supported by the evidence. Paragraph 17: Accepted in substance except the portion "to teach him a lesson" which is rejected as not supported by the evidence. Paragraph 18: Rejected as not supported by competent substantial evidence. COPIES FURNISHED: James W. Bilbo Route One, Box 80 Bristol, Florida 32321 Jerry Anders Route 1, Box 151 Bristol, Florida 32321 Carrie Stillman Complaint Coordinator Post Office Box 15709 Tallahassee, Florida 32317-5709 Bonnie Williams Executive Director Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, Esquire General Counsel Ethics Commission 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahasee, Florida 32317-5709
Findings Of Fact Donald A. Moyant, Petitioner, operates a contractors' exam school in Brandon, Florida, at which he preps builders to take the CILB exam for licensure as contractors. Petitioner took the exam given in June 1985 and received a score of 58.60. A score of 70.00 is required to pass this examination. The only answer that Petitioner questions is the answer he supplied to question No. 2, which related to the number of reinforcing bars required in a concrete slab of given dimensions and spacings of the bars. In Petitioner's solution to the problem he dropped the fractional bar that resulted from dividing the length of the slab by the spacing between bars. The correct solution requires the addition of a bar for this fractional spare. Petitioner's purpose in pursuing this proceeding is to obtain information to use in his Contractors Exam School, Inc. Since he would not have passed the examination even if his solution to question No. 2 had been marked correct, Petitioner is without standing to bring this action because he is doing so on behalf of the school he runs and not to allow him to receive a passing grade.
The Issue The issue in the case is whether the allegations set forth in the Respondent's letter to the Petitioner dated February 16, 2004, are correct.
Findings Of Fact Pursuant to statute, the Florida Department of Education has developed and administers the Florida Teacher Certification Examination. A Florida teacher seeking certification as an educator by the State of Florida must obtain a passing score on the exam. In November 2003, the Petitioner applied to take the Teacher's Professional Education Test on January 24, 2004. The Petitioner signed the registration application on November 13, 2003, acknowledging that she agreed to the provisions set forth in the exam application materials. The Respondent received the Petitioner's signed application on November 17, 2003. The instruction sheet contained in the exam application materials provides in relevant part that examinees may not "communicate with other examinees in any way" or "give or receive assistance from other examinees," and states that related violations will result in the examination being "voided." Approximately two weeks prior to the exam, the Respondent sent a letter to all registrants. The Petitioner received a copy of the letter. In the letter, the Respondent outlined behaviors regarded as cheating, and specifically identified cheating to include "looking, or attempting to look, at the examination answers, responses, or other materials of another examinee." Prior to exam administration, supervisors and proctors received a Test Administration Manual and received instruction on identification of "cheating" or "suspected cheating," including observation of an examinee looking or attempting to look at another examinee's test materials or answer sheet. As to cheating, the Test Administration Manual sets forth the procedure to be followed by a supervisor or proctor who observes or suspects cheating is occurring, and provides in relevant part as follows: If a room supervisor who observes cheating activity, or to whom cheating activity is reported by a room proctor, is reasonably certain that cheating is taking place based on the clarity, duration, or vantage point of the observations, whether or not another individual can confirm the observation, the room supervisor shall collect the examinee's examination materials; inform the examinee that he or she will not be allowed to complete that examination or participate in any further testing on that examination administration date; make notes of the identity of those involved or in a position to have observed or been aware of the activity and the relative locations in, and other pertinent features of, the examination room; at the conclusion of the testing time, quietly request examinees who were not involved in but were in a position to have observed or been aware of the cheating to come to a private office or other appropriate location to be interviewed by, and give a statement to the room supervisor; and prepare a full written report of the incident, including as attachments all witnesses' statements and other pertinent documents or tangible items and make the report part of the Room Supervisor's Irregularity Report. Suspected cheating - If a room supervisor reasonably suspects that cheating activity is occurring but cannot be certain, even after conferring with one or more other individuals, that a cheating activity is taking place, the room supervisor shall continue to make observations and quietly notify a room proctor to continue to make observations of the suspicious activity; follow steps c, d, and e in number 3 above; and include in the Irregularity Report a notation that the answer folder of the examinee suspected of cheating should be analyzed in connection with the circumstances described in the report. During the exam administration on January 24, 2004, a supervisor present in the room where the Petitioner was located observed the Petitioner staring at the answer sheet of another person (identified as "Rekha"), who was also taking the exam. Rekha was seated to the left and slightly ahead of the Petitioner in the exam room. At the hearing, the supervisor described the Petitioner's suspicious behavior as "constant staring" and "noticeable concentration" towards Rekha's answer sheet. At the time the room supervisor observed the Petitioner's behavior, the test period was drawing to a close. Many examinees had already completed their work and left the room. By the time the supervisor saw the Petitioner's behavior, there were no other examinees in position to observe the Petitioner. After the exam ended, the supervisor compared the Petitioner's answer sheet with that of Rekha, and observed that there were a number of erasures and answer changes on the Petitioner's answer sheet that matched Rehka's answers. The supervisor completed an "Irregularity Report" dated January 24, 2004, in which he wrote: I witnessed Shagufa constantly looking at Rekha's answer sheet, in about the last 30 minutes of test. I compared answer sheets afterwards and noticed several answer changes on Shagufa's sheet to what was on Rekha's. The irregularity report and the answer sheets were submitted to the Respondent for further review. After the Respondent received the materials, the Respondent assigned Dr. Cornelia Orr, an expert in test response analysis, to review the answer sheets. Dr. Orr testified persuasively at the hearing and her testimony is credited. Dr. Orr compared the exam score for the Petitioner (referred to as Examinee A) with that of Rekha (referred to as Examinee B) and determined that their scores were "very similar." Dr. Orr reviewed the erasures on the answer sheets and determined that there were 27 erasures on the Petitioner's answer sheet. There were four erasures on Examinee B's sheet. Of the Petitioner's 27 erasures, 18 were changed from incorrect to correct answers and matched the answers of Examinee B. An additional four answers were changed from correct to incorrect answers and matched incorrect answers of Examinee B. Dr. Orr reviewed the incorrect answers on both sheets and determined that the Petitioner missed 54 questions, that Examinee B missed 48 questions, and that 30 of the Petitioner's incorrect responses matched the incorrect answers of Examinee B. Dr. Orr described the incidence of corresponding incorrect answers on the two answer sheets as "highly unusual." After concluding her review of the two answer sheets, Dr. Orr then analyzed the answers and scores of the 3,747 persons who took the test on the same day to determine the correlations between all examinees to Examinees A and B's answers. For all examinees, the average number of wrong answers corresponding to those of Examinee B was nine, as compared to the Petitioner's 30 incorrect answers which matched those of Examinee B. Based on Dr. Orr's review and evaluation, she determined that the chance probability of the Petitioner's high number of incorrect answers corresponding to those of Examinee B was one in 33,000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Education enter a Final Order voiding the score of Shagufa Mubarik on the January 24, 2004, Professional Education Test. DONE AND ENTERED this 14th day of July, 2004, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 2004. COPIES FURNISHED: Shagufa Mubarik 2426 Island Club Way Orlando, Florida 32822 Scott J. Odenbach, Esquire Department of Education 325 West Gaines Street, Suite 1244 Tallahassee, Florida 32399-0400 Honorable Jim Horne, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400
