The Issue The issue for consideration in this case is whether Petitioner should be granted extra credit for questions numbers 320, 321, 322, and 323, for which he gave allegedly incorrect answers, on the October 1996, Environmental Engineer Examination administered by the Department.
Findings Of Fact At all times pertinent to the issues herein, the Board of Professional Engineers was the state agency responsible for the professional testing and licensing of professional engineers, and the regulation of the engineering profession in Florida. Petitioner is a graduate engineer, specializing in environmental engineering, who took the Environmental Engineer Examination administered by the Bureau on October 25 and 26, 1996. By Examination Grade Report dated February 17, 1997, the Bureau notified Petitioner that he had achieved a score of 67.00 on the examination; that a minimum score of 70.00 is required for passing the examination; and, therefore, that Petitioner had failed the examination. Petitioner thereafter filed an appeal of the examination results, challenging the grading of questions numbers 320, 321, 322, and 323 of the examination in question. Question 320 tests the candidate’s ability to understand the characteristics of pumps both in series and parallel. The engineering principle involved is Bernouli’s Theory. The problem is in two parts, A and B. The first part asks which of two impellers are in the pump, based on a given set of data using Bernouli’s Principle. Petitioner answered Part A correctly. Part B repeats Part A, except that the candidate has to recognize the difference between series and parallel pumps, and Petitioner did not get the question correct. The National Council of Examiners for Engineering and Surveying (NCEES) published a scoring plan for each question on the examination. The maximum award a candidate can receive on this question is “10.” The NCEES’ scoring plan for this question provides a score of “4,” which Petitioner received, when the candidate gets one part of the question correct and one part incorrect. To earn a score of “6” for the question, the candidate must present a correct parallel pump analysis, and in this case, Petitioner doubled head pressure instead of flow. Question 321 also consists of two parts and deals with a sewer which is facing overload based on population projections. A relief sewer is proposed and the candidate must do two things. He must first analyze the flow of the existing sewer, and then determine what the invert of the new sewer line would be at the outer end of that sewer In this instance, Petitioner got the second part of the problem correct but not the first. Petitioner started off correctly, but then incorrectly used a piece of information that was given. The problem must be solved using Manning’s Equation, and then checked for scouring velocity. Petitioner used the minimum velocity in determining what the flow is and, according to Mr. Hutchinson, this is not the way to solve the problem. Hutchinson suggests that in solving the problem, the candidate first finds out how much flow will exist in the years ahead by knowing the population and the flow per capita. Then, using Manning’s Equation, the candidate calculates the flow the existing sewer can take. Subtracting the second from the first, the answer is the flow the new pipe will have to be designed for. In the examination question, all the required information is given except the diameter, which is determined through the use of Manning’s Equation. Once that is done, the candidate must check the new scouring velocity. This is done by calculating the velocity in the new sewer to be sure it is in excess of the number given in the problem statement. Here, Petitioner took the minimum scouring velocity and used that figure to calculate the size of the pipe. As a result, he arrived at the wrong answer of ten inches, when the correct answer was twenty-four inches. Petitioner was awarded a grade of “4” for his answer to problem number 321. According to NCEES’ Scoring plan, a “4” reflects the candidate got only one of the two parts correct. Question 322 deals with a hazardous waste incinerator. The first part of the problem calls for a determination of the amount of air needed to complete combustion if the additional air (excess air) is 100 percent. This means twice the air needed to perfectly combust the material. The candidate must first put down the chemical equation, all the constituents of which are given in the problem. Then, the candidate must balance the equation, and for 100 percent excess air, one multiplies the air input by a factor of two. The second part of the problem asks for the amount of water necessary to quench the gasses. Petitioner did not correctly balance the chemical equation called for in the first part even though he made an effort, and he was given some credit for trying. His answer to the second part was twice what it should have been. Since Petitioner did not do either part of the problem correctly, the award of “4” for his answer was, in Hutchinson’s opinion, generous. Question 323 involves a situation wherein a vehicle which gives off carbon monoxide is used inside a facility. Some of the workers have experienced dizziness. Readings are given for the carbon monoxide levels. The candidate is asked to calculate several factors. The first is what the eight-hour time weighted exposure is. There are certain limits involved. The second is how much ventilation air would be necessary to reduce the concentration to a lower stipulated level in one hour. The size and other specifics of the facility are given. The third part of the question is a non-mathematical essay question wherein the candidate is asked to define the disadvantages of having a combustion engine internal to a facility. The fourth part of the problem asks why mere dilution of the pollution is not the solution to the problem. Petitioner answered the first part of the problem correctly. He overstated the amount of air called for in part two of the problem by a magnitude of two. Petitioner answered the third part of the problem correctly, but in the fourth part, provided only one of the two reasons called for. He was awarded a score of “4” for his answer to this problem. The NCEES’ scoring plan indicates a score of “4” is appropriate when the candidate gets the first part correct; commits a logic error in the second part; and provides only two of three answers called for in the combined third and fourth parts. This is exactly what Petitioner did. In Mr. Hutchinson’s opinion, none of the problems in issue here were beyond the scope of knowledge that should be expected of a candidate for licensure. In addition, the questions as written are not ambiguous or unclear, and they give the candidate enough information to properly answer the questions. The examination is not a test of a candidate’s ability to do mathematical calculations. The examiners look at the ability to calculate as something which a high school student should be able to do. What is being tested is the candidate’s understanding of the engineering particulars and concepts. For example, in problem 320, the examiners are testing the candidate’s understanding of the difference between parallel flow and series flow for a pump. Under the scoring plan, that issue carries as much or more weight that the ability to solve the mathematics. Petitioner did not demonstrate the requisite understanding. The examination is structured so as to administer four questions in the morning session and four questions in the afternoon session. The examination is made up of questions which are submitted by members of that committee of the NCEES which drafts the examinations. The proposed questions are tested by committee members who solve each question in no more than twenty minutes. If the committee members judge the question to be appropriate and acceptable, it goes into a question bank and is subsequently reviewed several times before it is first incorporated in an examination two or more years later. In each question, the subject matter and the language of the question are reviewed to determine that there is no trick information involved; that all information necessary to correctly solve the question is incorporated; and that the scoring plan is valid. If any changes are made to a question during the evaluation time, two additional independent reviews are required. The examination is given nation-wide at the same time. At that time, the NCEES selects fifty to sixty tests at random, which are sent in for scoring. Of those, ten are selected and sent to a monitor to insure uniformity of scoring and appropriateness of the scoring plan. Once the examination is determined to be satisfactory, fifteen expert judges are called in to evaluate the fifty to sixty tests and to review them for demonstrated minimum competence by the candidates whose examinations are under scrutiny. At that point, a minimum numerical score is reached, and the remaining tests are graded. In his cross examination of the Respondent’s expert Mr. Hutchinson, regarding not only each of the examination problems in issue but also the methodology of the development and grading of the examination, Petitioner prefaced his questions by extensive, comprehensive statements of his position as to the matter at issue. Notwithstanding frequent and repeated reminders by the Administrative Law Judge that the matters being expressed were unsworn and not testimony, and therefore could not be considered as evidence, Petitioner persisted. The majority of his comments and arguments made in his Proposed Findings of Fact and Conclusions are based on that material and it is impossible for the undersigned to recommend Petitioner be granted the relief he proposes, based on the evidence admitted at hearing, as his testimony, when received, was not persuasive. Petitioner also submitted at hearing, as his Composite Exhibit 1, a series of documents which, for the most part, include personal information regarding his credentials, and copies of the pleadings, orders, and correspondence which make up the case file. Also included was a letter from Petitioner’s supervisor testifying to his hard work, industry, and professionalism; and a breakdown of the raw scores he achieved on the examination in question. None of this has a significant bearing on the merits of his challenge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Professional Engineers enter a Final Order in this matter denying Petitioner additional credit for his answers to problems 320, 321, 322, and 323, on the October 1996 Environmental Engineer Examination. DONE AND ENTERED this 17th day of February, 1998, in Tallahassee, Leon County, Florida. _ ARNOLD H. POLLOCK 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 1998. COPIES FURNISHED: Scott D. Walker 14535 Bruce B. Downs Boulevard Number 918 Tampa, Florida 33613 R. Beth Atchison, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angel Gonzalez Executive Director Board of Professional Engineers 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether petitioner's challenge to the grading of his examination for licensure as a Class B air conditioning contractor should be sustained.
Findings Of Fact Respondent is the state agency charged with the duty of regulating contracting in the State of Florida. An applicant for certification as a Class B air conditioning contractor must pass the examination administered by respondent as a prerequisite to certification. Section 489.113(1), Florida Statutes. Petitioner sat for Part I of the Class B air conditioning contractor's examination on June 26, 1990, and received a failing grade of 67. Subsequently, petitioner filed a timely challenge to the respondent's grading of questions 5, 11, and 50 to the examination. Respondent sustained petitioner's challenge to question 11, accorded him credit, and raised his grade from 67 to 69. Respondent denied, however, petitioner's challenge to questions 5 and 50. Had petitioner been accorded credit for either question 5 or 50, he would have passed Part I of the examination. Question number 5 is an objective, multiple choice question. Based on the factual data in the question, the candidate is to choose, from among four possible answers, the answer that would derive the lowest cost for a line of credit. The correct response to the question was "C", and petitioner erroneously responded "A." At hearing, petitioner contended that he should be accorded credit for question 5 because he could have correctly derived the answer if Walker's Building Estimators Reference Book had been on the list of materials to bring to the test site. In this regard, petitioner testified that the test directed the applicants to utilize such reference in deriving the answer, and that had he been noticed of such fact he could have derived the correct answer through the referenced book. The subject examination, produced at hearing, was not, however, shown to contain any mention of the Walker's reference book, nor was the Walker's reference book one of the recommended reference books. In sum, petitioner's recollections regarding this question are erroneous, and his failure to correctly answer question 5 was based on his own lack of knowledge, and not any misdirection or misconduct on the part of respondent. Question 50 is likewise an objective, multiple choice question. Based on the factual data in that question, the candidate is again required to choose the correct response from among four possible answers. The correct response to the question was "D", and petitioner erroneously responded "C." At hearing, petitioner conceded that answer "D" was the only correct answer to question 50. Questions 5 and 50 were clear and unambiguous, and each contained only one correct response. Appropriately, respondent gave petitioner no credit for his answer to either question, because petitioner gave the wrong answer to each question.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered dismissing petitioner's challenge to the subject examination, and that the examination questions and answers provided at hearing be sealed and not open to public inspection. DONE and ENTERED this 12th day of March, 1991, at Tallahassee, Florida. WILLIAM J. KENDRICK, 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 12th day of March, 1991.
The Issue The issues in this case are whether Petitioner, Gary P. Santoro (“Petitioner” or “Mr. Santoro”), undeservedly received a failed grade on the Construction Business and Finance Examination (“Examination”) for licensure as an air-conditioning contractor; whether any questions on the examination had more than one correct answer; whether the examination is unfair; whether there is transparency in the examination review process; and whether the examination grading process is arbitrary and capricious.
Findings Of Fact Mr. Santoro took the Examination on November 16, 2018. Petitioner failed the Examination because he scored less than 70 percent correct. The Examination contains 125 questions, 120 of which are scored. The other five are not scored and are considered “pilot” questions for potential use on future examinations. In order to pass the Examination, a candidate must obtain a score of at least 70 percent. All scored questions on the Examination are weighted equally. As a result of failing to pass the Examination, Petitioner was notified of his results. All questions on the Examination had a single correct answer. Cynthia Woodley, Ph.D., employed by Professional Testing, Inc. (“PTI”), as the chief operating officer, is an expert in psychometrics and exam development. She holds a master’s degree in vocational education and a doctorate in curriculum and instruction with a specialization in measurement. Her current position calls for her to manage a number of licensure and certification exam programs. She explained at length how specific questions become part of a professional licensure exam. To develop questions, her company brings in any number of subject matter experts, people actually employed in the professions being tested, and they help develop subject matter questions for a particular exam. That was the process used for development of the Examination in this matter. Once the subject matter experts are trained in exam question writing techniques, they write questions, which are reviewed by other subject matter experts to determine whether the questions are fair and understandable enough to be answered by prospective test takers. Generally, five subject matter experts review each question before it makes its way onto an exam. PTI measures the “P value” of the questions by determining what percent of individuals taking a given exam answer a particular question correctly. For example, a P value of .90 means that 90 percent of the people taking the exam answered a particular question correctly. PTI looks for a wide range of P values in its exam questions. If a P value is too low, say .40, the company might reexamine that question to determine whether it should be removed from future exams since fewer than half the people taking the exam answered it correctly. The business and finance portion of the exam is given to all contractors, regardless of their specialty, with the exception of pool service contractors. Here, Petitioner, a HVAC contractor was administered the same Examination as plumbing contractors, electrical contractors, general contractors, etc. Each of the 120 questions on the exam in this case was equally weighted. There were also five pilot questions inserted into the exam, which did not count towards the total score, but were included as test questions for future exams. Petitioner provided hearsay documents regarding computer hacking and computer glitches associated with some exams administered around the United States. However, he did not connect the articles submitted into evidence to the exam administered in this case or any exam administered by the Department in Florida. Dr. Woodley was familiar with the allegations of computer glitches in testing, but testified that the problems were with K-12 testing in schools, not with professional licensure exams, such as administered by the Department. Therefore, since the hearsay evidence was not linked to the exam at issue or similar professional licensure exams given in Florida, it is entitled to no weight in arriving at the decision in this case. Question BF 1290 has a single correct answer, which is answer “C.” Petitioner selected answer “B.” Petitioner was unable to demonstrate that the answer he selected was correct. Question BF 0473 has a single correct answer, which is answer “A.” Petitioner selected answer “C.” This question asks for an answer of general applicability. Petitioner’s claim that his answer is equally correct is based on a narrow exception in law. Accordingly, Petitioner was not able to demonstrate that the answer he selected was correct. Question BF 0162 has a single correct answer, which is answer “B.” Petitioner selected answer “C.” Petitioner was unable to demonstrate that the answer he selected was correct. Question BF 1691 has a single correct answer, which is answer “C.” Petitioner selected answer “D.” Petitioner was unable to demonstrate that the answer he selected was correct. Petitioner was unable to submit sufficient evidence to show that the Examination is unfair, that there is insufficient transparency in the examination review process, or that the examination grading process is arbitrary and capricious. Accordingly, he cannot prevail in his challenge to the Examination. Petitioner testified that he took and passed the HVAC contractors special license examination on his first attempt. He has taken the Examination on numerous occasions and is yet to be successful. He testified he studied hard for every administration of the exam, but just cannot reach the finish line successfully. While that is unfortunate, the evidence does not support that his failure to succeed on the Examination is the fault of the exam itself or of the Department either in its contracting to have the exam created or in the administration of the exam. From the way he conducted himself at hearing, Petitioner appears to be an intelligent, diligent, and successful individual in his HVAC business. For some unknown reason he has been unable to successfully complete the Examination. His persistence in retaking the Examination multiple times is admirable and should ultimately pay off with his successful passage of the Examination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board enter a final order upholding the Department’s Amended Grade Report finding that Petitioner failed to achieve a passing score on the Construction Business and Finance Examination, which he took on November 16, 2018. DONE AND ENTERED this 23rd day of August, 2019, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 23rd day of August, 2019. COPIES FURNISHED: Thomas G. Thomas, Esquire Department of Business and Professional Regulation 2601 Blair Stone Road Tallahassee, Florida 32399-2202 (eServed) Gary Peter Santoro Hometown Air & Services 8229 Blaikie Court Sarasota, Florida 34240-8323 (eServed) Ray Treadwell, General Counsel Office of the General Counsel Department of Business and Professional Regulation 2601 Blair Stone Road Tallahassee, Florida 32399-2202 (eServed) Daniel Biggins, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 2601 Blair Stone Road Tallahassee, Florida 32399 (eServed) Halsey Beshears, Secretary Department of Business and Professional Regulation 2601 Blair Stone Road Tallahassee, Florida 32399-2202 (eServed)
The Issue Whether the Florida Department of Health’s (“Respondent” or “Department”) determination that Tallahassee Corporate Center, LLC (“Petitioner” or “TCC”) submitted a nonresponsive reply to the Department’s Invitation to Negotiate (“ITN”) No. 640:0040 is contrary to the Department’s governing statutes, rules, policies, or the solicitation specifications; and, if so, whether the decision was clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact The ITN The Department is a state agency that seeks space for administrative offices, a call-center facility, and claimant hearings. The Department currently leases office space from TCC, which lease expires on October 31, 2019. On July 19, 2017, the Department issued the ITN seeking vendors that could provide 135,815 square feet of office space for lease. The Department issued one addendum to the ITN on September 1, 2017, deleting a requirement that the space be contiguous within a single building. There were no challenges to the terms, conditions, or specifications contained in either the ITN or the amendment thereto.4/ Both TCC and TRV are potential lessors which submitted replies to the ITN. The ITN includes a provision expressly reserving the Department’s “right to negotiate with all responsive and responsible Proposers, serially or concurrently, to determine the best-suited solution.” (emphasis added). The term “Proposer” is defined in the ITN to mean “the individual submitting a Reply to this [ITN], such person being the owner of the proposed facility or an individual duly authorized to bind the owner of the facility.” This reservation of rights placed interested lessors on notice that only responsive proposers could be invited to negotiations. The Department seeks to lease space in either an existing building or a building to be constructed in the future. In the Introduction, the ITN describes the proposals requested as follows: The [Department] is seeking detailed and competitive replies to provide built-out office facilities and related infrastructure for occupancy by the [Department]. As relates to any space that is required to be built-out pursuant to this [ITN], see Attachment “A” which includes the [Department] Specifications detailing the build-out requirements. The proposed facility may be within an existing building or a non-existing building designed as a Build-to-Suit to meet the [Department] Specifications. The specifications in Attachment A provide the basic requirements for the potential leased space, including the required type, number, and square feet of each space (i.e., office, workstation, conference room, storage), as well as the voice and data requirements for each space. The ITN provides that Attachment A “is an integral part of this ITN.” Section III.A. of the ITN details the requirements for responsive replies, including documentation demonstrating control of the property, a floor plan to scale, and return of each ITN page with the proposer’s initials. In addition, for Build-to- Suit proposals, responsive replies must include the proposed site plan, and may include building renderings.5/ Section IV. provides the Lease Terms and Conditions, and requires replies to indicate whether the proposer will meet each term and condition by marking either a “Yes” or “No” option with an “X.” Section IV.B. provides that the space must be made available for occupancy on September 1, 2019. This section emphasizes the importance of timely occupancy, requiring submission from the Lessor to the Tenant Broker of items to assure same, such as the sample construction project schedule, documentation of construction inspections, a performance bond, and proposed and final floor plans. Section IV.B. is not limited in applicability to Build-to-Suit leases. In fact, Section IV.B. provides that, for build-to-suit leases, the lessor must also provide architectural design and construction plans to the Department of Management Services for prior approval. Section IV.G. is titled “Space Availability – Turn-Key Build Out,” and requires as follows: The State requires a “turn-key” build-out by the Lessor. Therefore, Proposer shall assume all cost risks associated with delivery in accordance with the required space program specifications detailed in Attachment A. Proposer agrees to provide a “turn-key” build-out in accordance with the space program specifications detailed in Attachment “A” following the [Department]’s approval of an architectural layout provided by the Proposer: YES or NO “Turn-key” is a term of art in the commercial leasing industry meaning to deliver a space to the lessee which can be occupied immediately. The turn-key requirement is applicable to both build-out of an existing facility and build-to-suit new construction. By the terms of the ITN, the requirement for a turn- key build-out applies to all proposers, and is not restricted to proposers offering a build-to-suit option. TCC’s Reply TCC submitted a proposal for an existing building, the very building in which the Department currently leases space for the functions described in the ITN. Item IV.G In its reply, TCC responded “NO” to the statement “Proposer agrees to provide a ‘turn-key’ build-out in accordance with the space program specifications detailed in this Attachment A following the [Department]’s approval of an architectural layout provided by the Proposer.” In the space between Items IV.G. and IV.H., TCC added the following typewritten language: 10 Year Term – TI Allowance capped at $7 psf ($3.50 psf beginning year 1/$3.50 psf after year 5) 15 Year Term – TI Allowance capped at $10 psf ($5 psf beginning year 1/ $5 psf after yr. 5). In an apparent effort to explain the interlineated text in its reply, TCC also submitted an “Additional Response” sheet with its ITN reply, which reads as follows: ITN:640:0400 Additional Response Attachment A/[Department] Specification As the current Landlord for the [Department], our response proposes a “Stay In Place” option. Under this option, we propose a Tenant Improvement Allowance in order for the [Department] to address any Tenant Improvements necessary. With [Department] currently occupying the space, it would be impossible to ask them to move out of its existing office space in order to meet the requested [Department] Specifications in Attachment A. A “stay-in-place” offer is also a term of art in the commercial leasing industry which references negotiations between an existing lessee and lessor for a new lease of the space currently occupied by the lessee. The terms of the ITN are clear: the Department is seeking to negotiate with all proposers which agree to meet its space program specifications. TCC’s representative, Todd Hakimi, testified (both in his deposition and at final hearing), that TCC’s reply offered a stay-in-place option, rather than a turn-key or build-to-suit lease. Mr. Hakimi further testified that he formulated the response to the ITN on his understanding that the space currently leased to the Department by TCC was satisfactory to the Department, thus no buildout of the space was necessary to comply with the ITN. Mr. Hakimi’s testimony is belied by TCC’s supplemental response explaining that it would be impossible to ask the Department to “move out of its existing office space to meet the requested Agency Specifications in Attachment A.” In the supplemental response, TCC admits that the Department is seeking space which meets specifications not met by the existing office space. TCC’s reply was nonresponsive. By responding “No” to Item IV.G., TCC indicated it would not comply with the Department’s space program specifications in Attachment A, which is an integral and material component of the ITN. Tenant Improvement Allowance Instead, TCC’s reply offered a Tenant Improvement Allowance (“TIA”), shifting the burden to the Department to meet its space program requirements, rather than providing a “turn- key” space on September 1, 2019. Moreover, TCC’s reply “capped” the TIA at a per- square-foot amount, essentially limiting the amount TCC would pay toward the space program requirements set forth in Attachment A. In doing so, TCC refused to “assume all cost risk associated with delivery in accordance with the space program specifications” as required by Item IV.G.6/ If accepted, Petitioner’s response would give TCC a competitive advantage over other responders who agreed to “assume all cost risk associated with delivery in accordance with the space program requirements.” Broker Commission Item IV.J., another mandatory lease condition, requires lessors to agree to execute a Commission Agreement, which was attached to the ITN as Attachment G, another integral and material component of the ITN: Proposer acknowledges review of the Commission Agreement (Attachment G). Proposer agrees to execute and be bound by the Agreement should the Proposed Space be selected by the [Department]. YES or NO The Commission Agreement includes a schedule for the commission rate based on the total aggregate gross base rent that could be paid ranging from 3.50 percent on the first $500,000 of base rent to 2.50 percent on the base amount of $8.5 million and over. TCC checked “YES” in response to Item IV.J., but contradicted that reply by adding “Agree to 2% commission.” Mr. Hakimi testified that he offered a two-percent commission because he viewed his reply to the ITN as a renewal of the current lease, and it is customary to give a lower broker commission for renewal than for a new lease. The Department was not seeking a renewal lease. The ITN sought proposals to meet the agency space program specifications either within an existing building or at a build- to-suit location. TCC refused to be bound by this material term of the ITN, thus TCC’s reply was nonresponsive. If accepted by Respondent, TCC’s lower broker commission rate would have given TCC a competitive advantage over other proposers. Control of Property The ITN also provided that to be responsive, each lessor was required to submit documentation demonstrating the lessor’s control of the property proposed for the leased space: Replies must completely and accurately respond to all requested information, including the following: (A) Control of Property (Applicable for Replies for Existing and/or Non-Existing Buildings). For a Reply to be responsive, it must be submitted by one of the entities listed below, and the proposal must include supporting documentation proving control of the property proposed. * * * The owner of record of the facility(s) and parking area(s) – Submit a copy of the deed(s) evidencing clear title to the property proposed. * * * The authorized agent, broker or legal representative of the owner(s) – Submit a copy of the Special Power of Attorney authorizing submission of the proposal. The Special Power of Attorney form was attached to the ITN as Attachment H, another integral part of the ITN. Section K of the ITN clearly states, “Attachment H . . . is required if submitting on behalf of owners.” Attachment D to the ITN was a Disclosure Statement which solicited from proposers information about the ownership of the property, including the name of the titleholder, as well as the titleholder’s social security number or federal employer identification number, as applicable. TCC’s reply contained a blank Attachment D. TCC’s reply included a deed identifying DRA CRT Tallahassee Center, LLC (“DRA CRT”), as the owner of the property offered for lease. TCC’s reply was executed by TCC President, Lyda Hakimi. TCC did not execute Attachment K or include an executed power of attorney to demonstrate that TCC has control of the property on behalf of DRA CRT. TCC owns DRA CRT, but the two are different legal entities. In order to demonstrate control of the property owned by DRA CRT, TCC was required to execute Attachment K or otherwise provide a power of attorney to demonstrate authority to bind the owner to TCC’s proposal. TCC’s reply did not demonstrate control of the property as required by the ITN. TCC’s reply was not responsive on this issue. Waivable Minor Irregularity TCC contends that its failure to include an executed power of attorney was a minor irregularity which should have been waived by the Department. TCC’s argument is twofold. First, TCC maintains that the Department had actual knowledge that TCC was DRA CRT’s agent because the Department was currently leasing the property from TCC. Second, TCC maintains that proposals by other responders failed to establish control of the property, but were nevertheless deemed responsive by the Department.7/ TCC’s first argument is not persuasive. As discussed in the Conclusions of Law, the undersigned’s role is not to make independent findings based on the evidence of record, but to determine whether the Department’s failure to waive the minor irregularity was arbitrary, capricious, or clearly erroneous. In support of its argument that the Department acted arbitrarily in its determination that TCC was nonresponsive on the issue of control of the property, TCC introduced, over strenuous objection, the ITN response from TRV and two separate responses from OAG Investment 3, LLC (“OAG”). TRV’s reply reveals TRV is the owner of the property. TRV’s proposal is executed by John McNeill as “Advisor” to TRV, and includes an executed Attachment H, Special Power of Attorney, from John Abernathy granting power of attorney to Mr. McNeill to act on his behalf regarding the ITN. TCC complains that TRV’s proposal does not demonstrate the relationship between TRV and Mr. Abernathy or establish Mr. Abernathy’s authority to grant a power of attorney on behalf of TRV. Thus, TCC argues, TRV’s reply suffers from the same defect as its own--failure to demonstrate control of the property--so the Department acted arbitrarily in failing to waive that nonconformity for TCC. Petitioner’s argument is not well-taken because the facts are distinguishable. First, as to TRV’s response, TRV is both the owner of the property and the proposer for the ITN. In contrast, TCC is the proposer, but not the owner of the property. Second, TRV’s reply documents, on Attachment D, establishes Mr. Abernathy’s authority “to conduct business as a representative of” TRV. TRV’s reply included the required deed evidencing ownership, as well as a completed Attachment D Disclosure, and Attachment H Special Power of Attorney. By contrast, in TCC’s reply, it neglected to complete either Attachment D or Attachment H. TCC made no effort to document the proposer’s authority to bind the property owner to the terms of the ITN. The facts relating to TRV’s reply are not sufficiently similar to TCC’s for the undersigned to conclude that the Department acted arbitrarily in failing to waive TCC’s nonconformity relating to control of the property. The same applies to the proposals from OAG. OAG’s reply for property on Barcelona Lane shows ownership of the property by the Townsend Mary D. Trust (“Trust”) and a purchase and sale agreement between the Trust and OAG executed by Mary Townsend on behalf of the Trust. TCC first complains that the Trust holds the property by a Quit Claim Deed, which “does not prove title or control.” Second TCC alleges that the reply does not establish Mary Townsend’s authority to execute the purchase and sale agreement on behalf of the Trust. As to OAG’s reply for the Mahan Drive property, TCC complains that the warranty deed identifies ownership of only a 30-percent interest in the property, and the purchase and sale agreement to OAG is from six named individuals, one of whom is noted as a trustee of an unidentified trust, and only three of whom have an ownership interest in the property based on the deed submitted. It is beyond the undersigned’s authority to determine whether OAG’s replies establish control of the property per the ITN specifications. The only purpose for which the TRV and OAG replies were admitted was to rebut the Department’s assertion that TCC’s reply was nonresponsive on the issue of control of the property. The factual differences between TCC’s documentation of ownership and control and those of the OAG proposals, do not support a finding that the Department acted arbitrarily in failing to waive the nonconformity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order dismissing Tallahassee Corporate Center, LLC’s Petition. DONE AND ENTERED this 31st day of May, 2018, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 May, 2018.
Findings Of Fact The Petitioner, James Ilardi, was an unsuccessful candidate for the June, 1989 General Contractor's Construction Examination in the State of Florida. He is an experienced contractor and is licensed in the State of South Carolina. He is the past President of the Charleston Contractor's Association in South Carolina. He has experience with most types of building construction, including office buildings, military facilities, hospitals, factories and other large projects. He served as Chief Executive Officer for a design and construction firm for a period of ten years. The Respondent is an agency of the State of Florida charged with administering the certified general contractor's examination and with regulating the licensure and practice of construction contractors in the State of Florida. The Petitioner sat for the certified general contractor's examination in June, 1989. He has challenged the scoring of his answers to questions 2, 11, 12, 17, 19 and 33 on that examination. During the course of the hearing, he abandoned his challenges to questions 2, 17, 19 and 33. If he were accorded correct answers to either of the remaining challenged questions, numbers 11 or 12, he would have a sufficient score to obtain a passing grade of 70 on that examination. Both questions 11 and 12 used a "critical path network diagram" for use in working out the correct answer to the questions. The Petitioner criticized the diagram as being obscure, difficult to read and containing error. He maintained that it was not supported by the representations found in the reference materials recommended by the Respondent, in its "Instructions to Candidates", as being the material to use to arrive at answers to the questions. The Petitioner contends that the size of the diagram, "the multiple fonts, the difference in the intensity of the print, and the use of symbols all contribute to the obscurity and illegibility of the diagram, itself". In particular, he complains that the symbol listing includes a symbol which he did not find on the diagram. That is, the symbol for "structural steel" and "steel bar joists, which is two straight vertical parallel lines. He also complains that general practice in the construction industry, in his experience, and as indicated in the reference work "Construction Contracting", pages 325-326, one of the references listed for candidates to use in answering these questions, recommends against the use of symbols in lieu of abbreviated notations for description of activities on such a diagram. The main complaint he had concerning the use of symbols, however, was the fact that use of symbols, and having to constantly defer to the symbol legend on the exam materials, was time-consuming and was not generally accepted industry practice or procedure. He contends that the diagram contains error or is obscure and does not conform to the Respondent's recommended reference materials nor to industry standards and. is deficient in format, design and reproductive quality. Thus, he maintains that questions 11 and 12 do not adequately test the knowledge or skills necessary for licensure as a general contractor. The Petitioner acknowledged that the questions at issue had been reviewed twice by the Respondent's examination content specialist and that an "item analysis and review process" by the Respondent's expert resulted in the Respondent maintaining its position that the two questions and supporting materials were valid in fairly testing the knowledge of general contractor licensure candidates. In summary, the Petitioner contends that as to question 11, the symbol for steel bar joists, the two parallel vertical lines, does not appear on the diagram; therefore, he was unable to determine whether his answer was correct or not. As to question number 12, he maintains, in essence, that the use of symbols instead of brief abbreviated descriptions of the activities involved, accompanying the arrows in the diagram which indicate the critical path for the activity in question (paint work), render answering the question confusing and time consuming in having to constantly refer to the symbol legend and look for the symbols. He states that, in his 20 years of construction industry experience, he has not had to use symbols in working with a critical path diagram. The Petitioner did not demonstrate, however, that the use of symbols was incorrect procedure as delineated in the reference materials supplied to the candidates and which they were instructed to use in answering the questions on the examination. The Respondent produced the testimony of Mr. Olson, a Florida certified general contractor, who is also employed with the National Assessment Institute which developed this examination. Mr. Olson, however, did not, himself, have a hand in developing the examination. Mr. Olson did, however, review the Petitioner's challenges to the questions at issue and his responses, reviewed questions 11 and 12, as well as the Respondent's asserted correct answers to those questions and the methodology used in reaching those answers. Mr. Olson established that this was an "open-book" examination and the candidates were informed of and supplied all necessary reference materials to answer these two questions. The only optional consideration was that candidates could have used a calculator to speed up their calculations and were informed that it was permissible to use a calculator. Question 11 required candidates to calculate the total time necessary to install structural steel and steel bar joists in interpreting the activity network represented by the diagram in question. They were asked to calculate whether the installation was ahead of schedule or behind schedule and by how much. Mr. Olson established that the correct response was "C", which is two days behind schedule. Mr. Olson demonstrated that it was quite possible for a candidate to make this calculation and track this in formation on the diagram provided the candidates, through reading the path with the symbols, which alphabetically represent the activity, and which are numerical in representing the time in days. He established that this is very typical of the construction industry, related to the preparation, reading and interpreting of blueprints. A tremendous amount of symbols and legends are typically used in preparing and interpreting blueprints. Mr. Olson established that the pertinent number, 85 days, could be calculated for installation of structural steel and steel bar joists, based upon the information supplied to the candidates. By using the diagram and the information supplied with the question, the candidate can calculate that the actual number of days that were taken for the job was 87 days and therefore, that the project, at that point, was two days behind schedule. Mr. Olson performed this calculation by using the actual diagram the Petitioner used and reference information the Petitioner was given to use in answering the actual examination question at issue. He also established that the two parallel lines representing steel bar joists and structural steel on the diagram, and in the symbol legend supplied with the diagram, were indicated on the diagram supplied to Mr. Ilardi at the examination. Mr. Olson also established that the reference quoted for question number 11 was walkers Building Estimator's Reference Book, which, indeed, listed the type of activity network depicted in the diagram used by candidates for question number 11 and 12. Mr. Olson also established that question number 12 requires a candidate to work through an activity network diagram to find the amount of days necessary from the beginning of a project to the time the painting activity begins. He established that the answer could be obtained without the use of any other reference materials other than the information depicted on the diagram, itself, associated with the question. He established that the only correct answer from that information on the diagram could be "D" or 153 days. The Petitioner did not establish that his answer to question number 12, nor to question number 11 for that matter, was a correct answer and did not establish that there was any misleading quality or ambiguity in the wording of the questions and the associated information which would mislead a candidate into calculating the wrong answers or that there was erroneous information depicted in the reference materials or the diagram which would result in the candidate being misled into giving a wrong answer to questions 11 and 12.. Mr. Ilardi challenged the examination as to the testing environment, as that relates to the ambient light level in the examination room and to the acoustic qualities of the room. He also asserted that the test was not standardized throughout the State and was biased due to age, because of the perceived hearing and vision difficulties which he believed were caused by the acoustics in the examination room and the light available. Other than stating his opinions in this regard, he produced no testimony or evidence concerning these alleged qualities of the testing environment. It was demonstrated by she Respondent that, indeed, the test is standardized throughout the State and is the one given to all candidates in Florida, regardless of the test location.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is therefore RECOMMENDED that a Final Order be entered denying Petitioner's request to receive a passing grade on the certified general contractor's licensure examination. DONE and ENTERED this 4th day of May, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 May, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-3784 Petitioner's Proposed Findings of Fact Rejected. The Petitioner was not qualified as an expert witness. Other than that, this finding is accepted. Rejected, as not in accord with the preponderant weight of the evidence. Rejected, as not supported by the preponderant weight of the evidence. 4.A.-4.C. Accepted. 4.D. Rejected, as not in accordance with the preponderant weight of the evidence. Accepted, but not itself materially dispositive. Rejected, as not in accordance with the preponderant weight of the evidence. Rejected, as not in accordance with the preponderant weight of the evidence. Rejected, as not in accordance with the preponderant weight of the evidence and as subordinate to the Hearing Officer's Findings of Fact on this subject matter. Rejected, as not constituting a finding of fact, but rather a quotation from the transcript of the proceedings. Rejected, as not in accordance with the preponderant weight of the evidence and as subordinate to the Hearing Officer's Findings of Fact on this subject matter. Rejected, as immaterial and not probative of the issues of whether the questions were ambiguous or misleading or whether the Petitioner's answers were correct. Rejected, as not in accordance with the preponderant weight of the evidence. Rejected, as not in accordance with the preponderant weight of the evidence. Rejected, as not in accordance with the preponderant weight of the evidence, and as not materially dispositive. 4.1. Rejected, as not materially dispositive. Rejected, as immaterial. Rejected, as immaterial. Accepted, but not a matter of factual dispute and immaterial. Respondent's Findings of Fact 1-10. Accepted. COPIES FURNISHED: Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board P.O. Box 2 Jacksonville, FL 32202 Kenneth D. Easley, Esq. General Counsel Department of Professional Regulation 1940 N. Monroe Street, Ste. 60 Tallahassee, FL 32399-0792 E. Harper Field, Esq. Deputy General Counsel Department of Professional Regulation 1940 N. Monroe Street, Ste. 60 Tallahassee, FL 32399-0792 Mr. James Ilardi P.O. Box 8095 Jacksonville, FL 32239
Findings Of Fact In April, 1988, Petitioner sat for the examination given by Respondent to become certified in Florida as a Professional Engineer. Petitioner received a failing grade on the examination. Petitioner received a score of 46 where a score of 48 was necessary to pass the examination. Following notification that he had failed the examination, Petitioner filed a timely challenge to question 275 of the examination, contending that he had been given inadequate credit for his answer. A perfect answer to question 275 was worth 10 points. When Petitioner's answer to question 275 was first graded, Petitioner was awarded a score of 2 points. At Petitioner's request, his answer to question 275 was reevaluated. As a result of the reevaluation, Petitioner was awarded an additional two points for his answer to question 275, so that the total points awarded Petitioner for his answer to question 275 was 4 points of the possible 10 points. Petitioner contends that he should be awarded at least six points for his answer to question 275. The examination questions were prepared by the National Council of Engineering Examiners, which prepares examination questions for a number of states, including the State of Florida. Question 275 required the applicant to answer the question by assuming certain data and by applying a certain formula. The question required the applicant to give the answer and to show how he arrived at the answer. The final answer to the question given by Petitioner was the correct answer to the question. However, in coming to his answer, Petitioner did not use the formula required by the question and he did not properly utilize the information given by the question. The answer given by Petitioner to question 275 of the examination was only partially correct. The score Petitioner received for his partially correct answer was not arbitrarily or capriciously awarded.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Respondent, State of Florida, Department of Professional Regulation, enter a final order which denies Petitioner's challenge to question 275 of the examination. It is further recommended that the exhibits filed in this proceeding be sealed. DONE and ENTERED this 14th day of September, 1989, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 14th day of September, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-3254 The rulings on the proposed findings submitted on behalf of Petitioner in his letter filed September 5, 1989, are as follows: The proposed findings contained in the first paragraph of the letter are rejected as being unsupported by the record and as being argument. The proposed findings contained in the second paragraph of the letter are rejected as being contrary to the evidence presented at the formal hearing. The proposed findings contained in the third and fourth paragraphs are rejected as being argument The rulings on the proposed findings contained in Respondent's Proposed recommended order are as follows: The proposed findings contained in the first paragraph are accepted in substance. See Paragraphs 1 and 2 of the recommended order. The proposed findings contained in the second paragraph are rejected as being contrary to the evidence. See Paragraph 2 of the recommended order. The proposed findings contained in the third paragraph are accepted in substance. See Paragraph 3 of the recommended order. The proposed findings contained in the fourth paragraph are accepted in substance. See Paragraph 4 of the recommended order. The proposed findings contained in the fifth paragraph are rejected as being subordinate to the conclusions reached. The proposed findings contained in the sixth paragraph are rejected as being subordinate to the conclusions reached and as being the recitation of testimony. COPIES FURNISHED: Francisco A. Lee 3885 Edgar Avenue Boynton Beach, Florida 33436 E. Harper Field, Deputy General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth E. Easley, - General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Allen R. Smith, Jr., Executive Director Department of Professional Regulation Board of Professional Engineers 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues in this case are whether certain questions within the June 2002 construction building contractor examination are invalid, and whether Petitioner should receive credit for certain answers scored as incorrect.
Findings Of Fact In June 2002, Petitioner sat for the construction building contractor examination. Shortly following the exam, Petitioner was advised that he incorrectly answered 17 of the 50 exam questions and did not attain the minimum passing score of 70 percent, but received a failing scaled score of 66 percent. Petitioner timely challenged the validity and scoring of eight questions, including questions 8, 14, 17, 33, 34, 38, 43, and 44. In order for Petitioner to acquire a passing score, Petitioner must prove that certain challenged questions are invalid or demonstrate that he is entitled to receive credit for his answers. Specifically, Petitioner must demonstrate that either three questions should be stricken from the exam providing Petitioner with 70.2 percent, two questions should be stricken and one answer scored as correct providing Petitioner with 70.8 percent or two answers should scored as correct providing Petitioner with 70 percent. QUESTION 8 Exam Question 8 asks, "According to AIA-A201, who determines the interest rate that the contractor can charge on due and unpaid payments?" Petitioner's expert, Mr. Uman, argues that the parties to the contract are not defined within the question and it is therefore misleading. However, the credited answer D, "all the parties must agree on the rate" is within the provided reference material and is clearly the best answer. It is not misleading and Petitioner's argument lacks merit. In addition, 89.47 percent of the test-takers correctly answered Question 8. QUESTION 14 Exam Question 14 is wordy and involves computations. It requires the test-taker to calculate the number of "labor" hours required per 100 pieces to build a wall, given certain pricing and wall construction information. Question 14 is ambiguous and confusing on its face. While the question asks for labor hours, the facts provide a fixed combined hourly cost for a mason and laborer's hour. There is no distinction made between "labor" hours and a "laborer's" hours. Mr. Collier admitted that there is some apparent confusion between "labor" costs and the "laborer's" costs. Mr. Palm further agreed and indicated that he fully understood Petitioner's rationale to divide the labor costs in half and choose answer A. Furthermore, it is clear that Petitioner's perception of the question was not unique. In fact, only 46.62 percent of the test-takers correctly answered Question 14. QUESTION 17 Exam Question 17 asks, "During the bid process, which document has priority in the event of conflicting information?" Clearly, the correct answer is B, "addenda." Petitioner's argument regarding "competitively bid projects" is without merit. Mr. Palm succinctly explained that Petitioner's selection was obviously incorrect because "plans don't change during the bid process unless there is an addenda issued." Moreover, 75.56 percent of the test-takers correctly answered Question 17. QUESTION 33 Exam Question 33 identifies a situation that where drawings differ from written specifications and where there is no legal precedent that one is more binding than the other. The question specifically calls for the best procedure according to the listed and available reference. While Mr. Uman argues that the answer does not appear within the reference material in a clear manner, the exact text of the question and answer are in fact within the material. Petitioner's argument lacks credibility. QUESTION 34 Exam Question 34 asks the test-taker "what is the EARLIEST workday for completing the masonry work?" given the number of crew, the number of hours required, and the ratio constant of the crew. Although 80.45 percent of the test-takers correctly answered Question 34, Mr. Uman argues that the question could have been answered without reference to the Builder's Guide to Accounting material and therefore, was misleading. Petitioner's argument is devoid of common sense. QUESTION 38 Exam Question 38 asks the test-taker to identify the activity that "a specialty structural contractor is qualified" to perform. Petitioner's expert, Mr. Uman, again argues that the question is misleading since the credited correct answer "perform non-structural work" is not written verbatim in the provided reference material. To the contrary however, all of the alternative choices are clearly listed in the reference material as activities specifically prohibited by specialty structure contractors. Furthermore, page 2B17 to 61G415.015 of the Contractor's Manual specifically states that: The specialty structure contractor whose services are limited shall not perform any work that alters the structural integrity of the building including but not limited to roof trusses. Respondent's experts, Mr. Collier and Mr. Palm, agree that Question 38 is clear. Moreover, 53.38 percent of test- takers correctly answered the question. While the question appears to require enhanced reasoning skills and is generally more difficult, it is not misleading. Petitioner's assertions are without merit. QUESTION 43 Exam Question 43 asks, "Which accounting method should be used by a contractor if the contractor is unable to reasonably estimate the amount of progress to date on a job or the total costs remaining to fulfill the contract?" Mr. Uman argues that the question is ambiguous and the reference material is "not terribly clear." He further alleges that when a contractor cannot estimate progress, the contractor cannot establish a "completed contract method," the credited correct answer. Respondent's experts disagree. While it is true that Mr. Palm agreed that all of the choices are accounting methods which is inconsistent with Mr. Collier's testimony, the reference material is clear. In fact, 58.65 percent of the test-takers correctly answered Question 43. Petitioner presented insufficient evidence that he should receive credit for his answer or that Question 43 should be invalidated. QUESTION 44 Exam Question 44 provides detailed information regarding a standard form contract and asks, "Based ONLY on the information given above, what is the amount of the current payment due?" In addition, however, as Mr. Uman points out, the standard form referred to in the problem was mistakenly misidentified as Form 201 instead of Form 702. While it is clear that the referenced form was mislabeled, the precise form number was incidental, unrelated to the question, and unnecessary to compute the answer. In fact, Mr. Palm explains that the problem was "just a mathematical exercise." According to Mr. Collier, the question was not misleading, and the incorrect reference was irrelevant. "It's simple math, industry knowledge." Furthermore, Petitioner's answer is clearly incorrect because "he failed to deduct the retainage." Finally, 54.89 percent of the test-takers correctly answered Question 44.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered invalidating only Question 14, re-computing Petitioner's examination score, and dismissing his challenge. DONE AND ENTERED this 1st day of October, 2003, in Tallahassee, Leon County, Florida. S WILLIAM R. PFEIFFER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 2003. COPIES FURNISHED: Nickolas Ekonomides, Esquire 791 Bayway Boulevard Clearwater, Florida 33767 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Nancy P. Campiglia, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Robert Crabill, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the Respondent discriminated against the Petitioner on the basis of her age, in violation of Section 760.10, Florida Statutes (2004),1 the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: In February 2002, Ms. Cabrera was hired by the Housing Authority as the Assistant to the Capital Funds Program Coordinator ("CFP Coordinator"). The CFP Coordinator was, at all times material to this proceeding, Celi Ervesun, who was Ms. Cabrera's direct supervisor. At the times material to this proceeding, Ms. Cabrera was over 40 years of age. At the times material to this proceeding, the Capital Funds Program ("CFP") department was responsible for managing construction projects involving the modernization of the public housing buildings under the jurisdiction of the Housing Authority, as well as for any other construction work being undertaken by the Housing Authority and any major maintenance projects costing over $12,000. The position of assistant to the CFP Coordinator was advertised, and Ms. Cabrera was one of several persons in the pool of applicants chosen by the Executive Director of the Housing Authority, Jose Morales, for interviews. Ms. Ervesun interviewed Ms. Cabrera and recommended to Mr. Morales that Ms. Cabrera be offered the position. On the basis of Ms. Cabrera's résumé and the interview, Ms. Ervesun believed that Ms. Cabrera had the qualifications necessary for the position as her assistant. Ms. Ervesun was not aware of Ms. Cabrera's age when she recommended that Ms. Cabrera be hired. Among the major duties and responsibilities of the assistant to the CFP Coordinator was assisting the CFP Coordinator in preparing materials and forms for bid packages for construction work to be performed under the CFP; assisting with the preparation of numerous work documents associated with the CFP; assisting with the preparation of reports; serving as the CFP Coordinator's secretary and receptionist; and maintaining "an accurate and up-to date the [sic] file system and all records and forms that involve the construction contract administration of all modernizations works."2 When she first began working at the Housing Authority, Ms. Cabrera appeared to be interested in her job, and she performed her assigned tasks well and willingly. As time passed, however, Ms. Ervesun noticed that Ms. Cabrera was not completing assignments timely and was not sufficiently knowledgeable about construction management to enable her to understand fully the requirements of her job. In Ms. Cabrera's annual evaluation, completed in February 2003, Ms. Ervesun rated Ms. Cabrera "Below Average" in technical and operational job knowledge and in planning and organizing. Ms. Ervesun noted that the CFP had many ongoing projects and that Ms. Cabrera needed to improve her time- management skills and her ability to plan and use her time well. Ms. Ervesun noted that Ms. Cabrera "has a positive attitude and is ready to attend all seminars that could improve her ability to perform her tasks."3 When Ms. Ervesun actually asked Ms. Cabrera to attend seminars, however, Ms. Cabrera refused to travel, outside Miami, Florida. Although there were few relevant seminars in Miami, Ms. Ervesun made arrangements for Ms. Cabrera to attend one seminar in Miami. Shortly before the seminar was scheduled to take place, Ms. Ervesun was out of town and Ms. Cabrera expressed her intention not to attend the seminar. This came to the attention of Jose Martinez, who was the Director of Administration for the Housing Authority at the time, and Mr. Martinez ordered Ms. Cabrera to attend the seminar, which she did. The organization and maintenance of construction- project files was of particular concern to Ms. Ervesun. The CFP department had been closed prior to Ms. Ervesun's being hired in January 2002, and the project files kept by the CFP had not been properly maintained. Because many of the projects undertaken by the Housing Authority and overseen by the CFP used government funds, federal agencies, including the Department of Housing and Urban Development and the Army Corps of Engineers, frequently audited the project files maintained by the CFP. It was, therefore, essential that the files be kept up-to-date and organized in accordance with a checklist provided to Ms. Ervesun by the Army Corps of Engineers after it found during an audit in February 2002 that the CFP project files were in disarray. At the time of the Army Corps of Engineers' audit, the CFP department was housed in a very small space. Ms. Ervesun decided to wait until the department moved into larger office space to begin the task of organizing the files in accordance with the guidelines provided by the Army Corps of Engineers. The move occurred in April 2003, and Ms. Ervesun expected Ms. Cabrera to begin working in earnest on the files at that time. At any given time, the CFP Coordinator oversaw approximately 60 projects. The project files were quite extensive and included many documents that had to be organized in accordance with the guidelines provided by the Army Corps of Engineers. Ms. Ervesun suggested to Ms. Cabrera that she work on the files at least one hour each day to clear up the backlog in filing and to keep the files current. Ms. Ervesun found, however, that Ms. Cabrera made very little progress in organizing the files and also failed to complete other essential job responsibilities timely, such as verifying payrolls for workers on construction projects, another task required by the federal agencies providing funding for the construction projects. By the fall of 2003, Ms. Ervesun had become increasingly unhappy about Ms. Cabrera's failure to complete assigned tasks and her tendency to make numerous mistakes in her work. Ms. Ervesun often raised her voice to Ms. Cabrera and expressed her displeasure with the way Ms. Cabrera was doing her job. John Esposito, whose office was next to Ms. Cabrera's and Ms. Ervesun's office, overheard Ms. Ervesun, in a loud voice, tell Ms. Cabrera that she was stupid and incompetent; that the quality of her work was not satisfactory; that she needed to stop making the same mistakes over and over; and that she needed to do better work. In Mr. Esposito's opinion, Ms. Ervesun was unprofessional in some of her dealings with Ms. Cabrera, and he considered Ms. Ervesun's tone of voice to be demeaning to Ms. Cabrera and her treatment of Ms. Cabrera abusive. Ms. Cabrera related one incident that she considered particularly humiliating: She was asked by Ms. Ervesun and several co-workers to take off her shoes so they could measure her height to prove that she was not really 5'3" tall, as she claimed. Ms. Cabrera believed that Ms. Ervesun made fun of her because she was short. Mr. Esposito observed Ms. Cabrera in tears on a number of occasions, and Ms. Cabrera complained to him about the way Ms. Ervesun treated her and about what Ms. Cabrera considered Ms. Ervesun's incompetence. Ms. Ervesun mentioned several times to Mr. Esposito that she needed to replace Ms. Cabrera because she was not doing her job. In the fall of 2003, both Ms. Ervesun and Ms. Cabrera discussed with Mr. Martinez the problems each was having with the other. Ms. Ervesun told Mr. Martinez that Ms. Cabrera was making a lot of mistakes in her work and asked Mr. Martinez to talk to Ms. Cabrera about her job performance.4 Before he began counseling Ms. Cabrera about her job performance, however, Mr. Martinez conducted his own investigation, and he confirmed that Ms. Cabrera was, in fact, making numerous mistakes, especially in maintaining the project files. When Mr. Martinez began counseling Ms. Cabrera, she consistently denied making the mistakes identified by Ms. Ervesun and told Mr. Martinez that Ms. Ervesun was "picking on her" about her job performance. After a counseling session, Ms. Cabrera would do better for a while but then lapse back into making careless mistakes in filing or in the preparation of reports. On the occasions when Ms. Ervesun complained to Mr. Martinez about Ms. Cabrera's mistakes, he personally looked at the files and satisfied himself that Ms. Cabrera was actually making the mistakes Ms. Ervesun complained about. Mr. Martinez believed the situation could be improved if Ms. Cabrera would put in the effort and if she and Ms. Ervesun would work together as a team. Mr. Martinez advised Ms. Ervesun to help Ms. Cabrera correct her mistakes in keeping the files by putting in writing the way she wanted the files organized and maintained. Ms. Ervesun had consistently told Ms. Cabrera that the files needed to be organized in accordance with the guidelines provided in February 2002 by the Army Corps of Engineers. Except for the observations included in Ms. Cabrera's February 2003 evaluation, the first time Ms. Ervesun put any of her complaints in writing to Ms. Cabrera was in a memorandum dated October 10, 2003. In that memorandum, Ms. Ervesun told Ms. Cabrera to concentrate on getting the project files in order. On December 12, 2003, Ms. Ervesun wrote Ms. Cabrera another memorandum regarding Ms. Cabrera's failure to finish organizing the project files and her failure to make sure that all filing was current. Ms. Ervesun referred to a discussion she and Ms. Cabrera had on "Wednesday," presumably December 10, 2003, in which Ms. Ervesun had asked Ms. Cabrera to provide her a written report on the status of the files and filing "by the end of the day."5 Ms. Ervesun noted that Ms. Cabrera had not provided the status report as of December 12, 2003. Ms. Ervesun directed Ms. Cabrera to have the report on her desk by December 15, 2003, but extended the deadline to December 16, 2003, because the computers were down on December 15. On December 22, 2003, Ms. Ervesun wrote to Ms. Cabrera requesting that she provide her with the status report Ms. Cabrera was to have provided on December 16, 2003. Ms. Cabrera responded that afternoon with the status of the files in five of the file drawers. Ms. Ervesun replied on December 23, 2003, that she needed the status of the files in the remaining eight file drawers. At some point during her employment with the Housing Authority, Ms. Cabrera joined the employees' union. Ms. Ervesun was not aware at the time that Ms. Cabrera had joined the union and was not concerned that she had done so. When Mr. Martinez learned that Ms. Cabrera had joined the union, he involved Ms. Cabrera's union representative in the efforts to help her improve her performance. Mr. Martinez also offered to allow Ms. Cabrera to work overtime, for additional pay, to catch up with her work, but Ms. Cabrera did not take advantage of this opportunity. On January 14, 2004, Ms. Ervesun was advised that Ms. Cabrera had not provided corrected advertisements for an up- coming bid solicitation in time for the publication deadline, resulting in the bid solicitation having to be revised to include a new deadline. On January 16, 2004, Ms. Ervesun issued a Final Warning to Ms. Cabrera, with the agreement of Mr. Martinez and Mr. Morales, the Housing Authority's Executive Director. In the Final Warning, Ms. Ervesun pointed out a number of deficiencies in Ms. Cabrera's job performance and stated that Ms. Cabrera would be given 10 days to bring her "job tasks and responsibilities up to departmental standards" or face disciplinary action that could include termination.6 Ms. Cabrera was actually given over 30 days to correct her performance deficiencies, but she failed to complete assigned tasks timely and continued to make mistakes in filing and in preparing reports. Ms. Cabrera was advised in a memorandum from Mr. Martinez dated February 20, 2004, that the Housing Authority's Executive Director had terminated her employment based on her "repeated failure to follow instructions" and on the following: On several occasions the Capital Fund Program Coordinator met with you to discuss the many pending issues (e.g., files not updated, failure to verify certified payroll, failure to complete assignments on time) that currently exist in the Capital Fund Department and to date most of those issues are still pending. You failed to act upon the orders and the written warning given to you in the presence of your Union Representative on January 16, 2004 in order to resolve all the pending issues. Furthermore, other tasks that were assigned to you have yet to be completed (i.e., list identifying files in storage). Your failure to follow instructions is a violation of the Authority's Personnel Rules and Regulations, Rule XXV, A. Category I, 6 - "failure to follow instructions.[7] Ms. Cabrera was advised of her right to appeal the decision by filing a grievance, which she did through her union representative. Ms. Cabrera attached a "Grievance Report" to the Employee Grievance form, in which she objected to her termination and stated various grounds for her contention that her termination was not warranted; none of the grounds mentioned by Ms. Cabrera referred to age discrimination. After a hearing before the Housing Authority's Board of Commissioners, the decision to terminate Ms. Cabrera was upheld. Ms. Cabrera was replaced as assistant to the CFP Coordinator by a young woman who was under 30 years of age. The replacement was hired on Ms. Ervesun's recommendation after following the routine procedure for filling job-vacancies at the Housing Authority. Summary Ms. Cabrera offered no persuasive direct evidence to establish that her termination was the result of discrimination because of her age. The only direct evidence that Ms. Cabrera offered was her own self-serving testimony, which is not credited, that Ms. Ervesun had told her that she was too old for the assistant's job and that Ms. Ervesun had told her she intended to replace Ms. Cabrera with a younger person. Ms. Cabrera conceded that no one overheard Ms. Ervesun make these remarks; she did not file a formal complaint with the Human Relations Department that Ms. Ervesun was discriminating against her on the basis of her age; she did not complain verbally to Mr. Martinez or Mr. Esposito that Ms. Ervesun's treatment of her was based on her age; and she did not include an allegation of age discrimination in the grievance that the union filed on her behalf to challenge her termination. The evidence presented by Ms. Cabrera was sufficient to establish that she was over 40 years of age at the relevant times, that she was terminated from her employment, that she was initially considered qualified for the position as assistant to the CFP Coordinator, and that she was replaced by a younger person. The evidence presented by the Housing Authority established that Ms. Cabrera was terminated because she did not perform her job responsibilities satisfactorily, after a number of warnings and counseling sessions, and Ms. Cabrera did not submit any evidence to establish that this proffered reason for her termination was a fabrication or was otherwise unworthy of belief.
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 dismissing the Petition for Relief filed by Lucy Cabrera. DONE AND ENTERED this 8th day of January, 2007, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 8th day of January, 2007.
