The Issue The issue in this case is whether Petitioner is entitled to credit for 14 challenged examination questions in the State Officers Certification Examination (SOCE) for Law Enforcement Officers.
Findings Of Fact Petitioner challenged 14 questions after failing the SOCE for the third and final time on September 30, 2009. The challenged questions are numbered 32, 62, 63, 79, 87, 128, 139, 154, 155, 156, 170, 187, 212, and 236. During the hearing, Petitioner withdrew her challenges to questions 79, 87, 155, and 212. Ten questions remain at issue in this proceeding. A preponderance of the evidence does not support Petitioner’s challenges to the 10 questions at issue. Expert testimony shows the challenged questions were validated through appropriate field testing. The questions are accurate to the curriculum and perform sufficiently during testing. The correct answer to each challenged question was identified in the curriculum by expert testimony during the hearing. The statistical probability of an examinee answering a question correctly is identified in the record by a "P" value. For challenged question 32, the “P” value was 0.80, which means that 80 percent of examinees answered the question correctly. Only 78 of 5,220 examinees chose the answer chosen by Petitioner for question 32. The "P" value for challenged question 62 was 0.76, meaning that 76 percent of examinees answered the question correctly. Only 222 of 1,655 examinees chose the response that Petitioner chose for question 62. The "P" value for challenged question 63 was 0.95, meaning that 95 percent of examinees answered the question correctly. Only 150 of 3,387 examinees chose the response that Petitioner chose for question 63. The "P" value for challenged question 128 was 0.59, meaning that 59 percent of examinees answered the question correctly. Approximately 2,142 of 4,456 examinees chose the response that Petitioner chose for question 128. The "P" value for challenged question 139 was 0.93, meaning that 93 percent of examinees answered the question correctly. Only 20 of 568 examinees chose the response that Petitioner chose for question 139. The "P" value for challenged question 154 was 0.90, meaning that 90 percent of examinees answered the question correctly. Only 51 of 4,331 examinees chose the response that Petitioner chose for question 154. The "P" value for challenged question 156 was 0.80, meaning that 80 percent of examinees answered the question correctly. Only 404 of 5,721 examinees chose the response that Petitioner chose for question 156. The "P" value for challenged question 170 was 0.81, meaning that 81 percent of examinees answered the question correctly. Only 596 of 4,681 examinees chose the response that Petitioner chose for question 170. The "P" value for challenged question 187 was 0.90, meaning that 90 percent of examinees answered the question correctly. Only 28 of 2,908 examinees chose the response that Petitioner chose for question 187. The "P" value for challenged question 236 was 0.92, meaning that 92 percent of examinees answered the question correctly. Only 133 of 2,449 examinees chose the response that Petitioner chose for question 236.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order denying Petitioner’s challenge to the 10 examination questions from the September 20, 2009, Law Enforcement State Officer Certification Examination numbered 32, 62, 63, 128, 139, 154, 156, 170, 187, and 236. DONE AND ENTERED this 9th day of April, 2010, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 2010.
Findings Of Fact Petitioner, Carlos Martinez Mallen, is an applicant for licensure by endorsement to become a professional engineer in the State of Florida. He filed his application for licensure with the Florida Board of Professional Engineers (hereinafter "Board") in January 1988, relying on the facts that he was licensed in Spain approximately 25 years ago and has approximately 30 years of experience as a professional engineer. The Board subsequently determined that he could not be considered for licensure by endorsement. Petitioner has never taken a licensing examination in the United States which is substantially equivalent to the examination required for licensure by Section 471.013, Florida Statutes, and described in Chapter 21H, Florida Administrative Code. Further, Petitioner has never been licensed in any state or territory of the United States, although he does hold a license to practice engineering in Spain. On the other hand, Petitioner's engineering experience record shows that he has considerable experience in the practice of engineering which would meet the additional experience requirements of Section 471.013, Florida Statutes. The Board, having determined that Petitioner does not qualify for licensure by endorsement, performed an analysis of Petitioner's application to determine whether his degree from the University of Madrid was an engineering degree which might qualify him to sit for the 1icensure examination and to ascertain if Petitioner could obtain licensure by that alternative method. An analysis was made by the Board's Education Advisory Committee to determine whether the curriculum for Petitioner's degree from the University of Madrid met the requirements of Rule 21H-20.006, Florida Administrative Code. This analysis was specifically directed to determine whether Petitioner's curriculum conformed to the criteria for accrediting engineering programs set forth by the Engineering Accreditation Commission of the Accreditation Board of Engineering and Technology, Inc., (hereinafter "ABET"). The analysis of Petitioner's degree shows that, when compared with ABET criteria, Petitioner's engineering education was deficient four semester hours in mathematics and included no courses in engineering design, sixteen semester hours of which are required by ABET criteria. Further, Petitioner's education included no computer application of engineering design programs, a mandated requirement by ABET standards. Petitioner has never taken any of these courses subsequent to receiving his degree in Spain. Petitioner's degree, rather than being an engineering degree, is the equivalent of a bachelor's degree in chemistry. Petitioner's degree is significantly deficient in required course areas, so that it does not meet the Board's criteria. Petitioner thus cannot be considered as an applicant for examination since in order to sit for the professional engineer examination in the State of Florida, one must have an engineering degree which meets standards acceptable to the Board. Finally, Petitioner's background was reviewed to determine whether he could be considered for licensure under a different provision for licensure by endorsement. Petitioner has never held a professional engineer registration or license from another State of the United States. The Board has never interpreted the word "state" found in the statutes and rules regulating the licensure of professional engineers in Florida to include foreign counties. Petitioner is not a graduate of the State University System. Petitioner did not notify the Department before July 1, 1984, that he was engaged in engineering work on July 1, 1981, and wished to take advantage of a temporary educational waiver. As a result of the Board's review of all avenues to licensure available to Petitioner, Petitioner's application was denied either to sit for the examination to become a professional engineer or to be licensed by endorsement, unless and until he meets the educational requirements to sit for the professional engineer examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application for licensure by endorsement and further finding that Petitioner's educational background does not meet the requirements necessary to take the examination to become licensed in the State of Florida. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of March, 1990. LINDA M. RIGOT 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, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-5973 Petitioner's proposed paragraphs numbered 0.00, .10, .20, .30, .40, .50, 1.10, 1.20, 2.20, 3.10, 3.20, 3.40, 3.60, 4.10, 4.11, 4.13, 5.00, 5.30, 5.40, 5.41, 5.50, 5.51, 5.52, 6.00, 6.10, 6.20, 6.21, 6.22, 6.23, 6.24, 6.25, 6.26, 7.00, 7.40, and 7.50 have been rejected as not constituting findings of fact but rather as constituting argument or conclusions of law. Petitioner's proposed paragraphs numbered 1.21, 3.00, 4.00, 7.10, 7.20, 730, 7.41, 7.42, and 7.43 have been rejected as being contrary to the weight of the evidence in this cause. Petitioner's proposed paragraphs numbered 1.22 and 2.10 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed paragraphs numbered 3.30, 3.50, 3.70, 4.12, 4.20, 5.10, 5.11, and 5.20 have been rejected as being irrelevant to the issues involved in this proceeding. Respondent's proposed findings of fact numbered 1-8 have been adopted either verbatim or in substance in this Recommended Order. COPIES FURNISHED: John J. Rimes, III, Esquire Office of Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32399-1050 Carlos Martinez Mallen 33C Venetian Way #66 Miami Beach, Florida 33139 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Rex Smith, Executive Director Department of Professional Regulation Board of Professional Engineers 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The central issue in this case is whether the Respondent is guilty of the violation alleged in the administrative complaint dated August 7, 1989; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: The Department is the state agency authorized to regulate and discipline licensees pursuant to Chapters 455 and 473, Florida Statutes. The Respondent is a licensed certified public accountant, license number AC 3214 (election of rights submitted by Respondent). In connection with an investigation of another licensee (not at issue herein), the Respondent submitted to the Department a financial report that Respondent had performed for the entity identified as Moreil Interiors, Inc. (Moreil). That document (Department's exhibit 1) consisted of four pages and represented financial information related to Moreil for a 6 month period ending December 31, 1984. Certified public accounts are required to utilize specific guidelines in the performance of accounting services. Those guidelines are codified in the Statements on standards for Accounting and Review Services (SSARS). The failure to abide by the SSARS guidelines constitutes performance below acceptable accounting standards. The financial report identified in paragraph 3 failed to comply with the SSARS in at least four material ways. The level of service indicated by the Respondent's report is not accepted practice for certified public accountants and has been rejected by the American Institute of Certified Public Accountants. The type and number of the deficiencies in that report constitute negligence on Respondent's part and establish a failure to exercise professional competence and due professional care in the performance of accounting services.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Professional Regulation, Board of Accountancy enter a final order requiring the Respondent to complete 24 hours of continuing education regarding compliance with the SSARS guidelines, and placing the Respondent on probation with his work to be reviewed, at his expense, by a consultant or certified public accountant approved by the Board, for a period of one year following completion of the continuing education. DONE and ORDERED this 19th day of July, 1990, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 1990. COPIES FURNISHED: Tobi Pam Senior Attorney Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792 Frank Berman P.O. Box 14156 North Palm Beach, Florida 33408 Martha Willis Executive Director Board of Accountancy Suite 16 4001 Northwest 43rd Street Gainesville, Florida 32606 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792
Findings Of Fact 1. The Findings of Fact set forth in the Recommended Order are approved, adopted, and incorporated by reference as modified by Rulings on Respondent’s Exceptions noted above. 2. There is competent, substantial evidence to support the Findings of Fact.
Conclusions Based upon the foregoing findings of fact and conclusions of law, it is Ordered that Petitioner’s challenge to the licensure examination taken December 6, 2000, is Denied and his petition is Dismissed. This order takes effect upon filing with the Clerk of the Department of Health. Done and Ordered this ( , day of , 2002. BOARD OF PODIATRIC MEDICINE
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the agency clerk of the Department of Health and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal. That Notice of Appeal must be filed within thirty days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by Certified Mail to Charles Pellegrini, Katz, Kutter, Alderman, Bryant & Yon, P.A., 106 E. College Ave., Suite 1200, Tallahassee, FL 32301, and Perry Verleni, 7624 S.W. 56th Avenue, Gainesville, FL 32608, and by interoffice mail to Cherry Shaw, Department of Health, 4052 Bald Cypress Way, Tallahassee, FL 32399-1783, Ella Jane P. Davis, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, FL 32399-3060, and to Ann Cocheu, Office of the Attorney General, PL 01 The Capitol, Tallahassee, FL 32399-1050, this IS. day of "\ , 2002. LE qlee F.\Usens\ ADMIN\WILMA\ Ann \pod\000208d.wpd
Findings Of Fact In order for the Petitioner to obtain his license as a building contractor in Florida, he is required to successfully complete a certification examination which consists of three tests. The examination is prepared by the ACSI National Assessment Institute and administered by the Department of Professional Regulation. The June 1987, examination involved a new format, new scoring methods, and areas of competency which had not been tested in previous exams. A post examination report prepared by the Office of Examination Services of the Department of Professional Regulation reveals that, while forty seven per cent of the examinees passed at least one part of the examination, only seven per cent passed the entire examination. Historically, pass rates for previous examinations ranged from thirty five to fifty five per cent. The reasons given for the low pass rate on this particular exam by the Office of Examination Services were: 1) Candidates are currently required to demonstrate competency in each of the three content areas. If the exam was graded in the same manner as the grading method used in prior exams (compensatory scoring), the pass rate would have increased to twenty one per cent in this examination. 2) Whenever an examination is significantly changed, the performance of the candidates will decrease until they prepare for the demands of the new examination. 3) There appeared to be a time problem. Many of the candidates did not timely complete the answers to all of the questions in the second and third test. The Petitioner was not prepared for the new format. The review course taken by him shortly before the exam did not alert him to the changes approved by the Board. As a reexamination candidate, his expectations as to exam content were even more entrenched than those of first time candidates. The Petitioner failed all three tests in the exam. A review of the Petitioner's score sheets on all three tests reveal that he timely completed all of the answers, so the time problem does not appear to have affected his results. If the compensatory scoring method had been used on this exam, as it had been in prior exams, the Petitioner would still not have passed the examination administered in June 1987. The Petitioner did not demonstrate that the Respondent failed to follow standard procedures for conducting or grading the examination. The Petitioner was not treated differently from other candidates who took the examination. Although the content in this exam was different than the preceding exam, the content of the exam had been properly promulgated in Rule 21E-16.001, Florida Administrative Code, as amended May 3, 1987. The Respondent has agreed to allow the Petitioner the opportunity to take the next scheduled examination, without charge.
Findings Of Fact Based upon the stipulation of the parties, the following facts are found: Respondent, (hereafter HRS) notified Petitioner (hereafter Starke) of a disallowance in Starke's Medicaid cost report by a letter which was received by Starke on October 4, 1983. The disallowance letter informed the Petitioner that pursuant to Rule 10-2.35, Florida Administrative Code, any request for a formal hearing must be "received by" HRS within 30 days or the hearing shall be deemed waived. Starke mailed its petition for formal hearing on November 3, 1983, a Thursday. The petition was received by HRS on November 7, 1983, a Monday. HRS denied Starke's petition for hearing on the grounds that the request for the hearing had not been received by HRS within 30 days of the date Starke received notice. The date by which the Petition had to be received was November 3, 1983. If HRS had allowed three (3) days for filing by mail, the petition would have been timely filed.
The Issue Whether Petitioner is entitled to additional credit for his solutions to four problems on the Principles and Practice of Engineering portion of the engineering licensure examination administered on October 30, 1998, by the National Council of Examiners for Engineers and Surveyors.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: On October 30, 1998, as part of his effort to obtain a Florida engineering license, Petitioner sat for the Principles and Practice of Engineering Examination (Examination). This is a national examination developed and administered by the National Council of Examiners for Engineers and Surveyors (NCEES). Petitioner chose to be tested in civil engineering. Petitioner received a raw score of 45 on the Examination. For the civil engineering specialization, a raw score of 45 converts to a score of 67. To pass the Examination, a converted score of 70 is needed. Petitioner formally requested (in writing, by letter dated March 26, 1999) that his solutions to Problems 120, 125, and 222 on the Examination be rescored. Petitioner's written request was made to Natalie Lowe of the Board, who forwarded it to the NCEES. Appended to Petitioner's letter to Ms. Lowe were two pages of "scratch paper" on which Petitioner had written during his post-examination review on March 19, 1999. On the first page were written comments he had made regarding the scoring of Problems 120 and 125. On the second page were the following written comments he had made regarding the scoring of Problems 220 and 222: 220 a, b, & c 2 parts b & c correct. Min. mark I should get[:] At least 5 instead of 2 and maybe 7. There is an error. 222 ok The NCEES's rescoring of Petitioner's solutions to Problems 120, 125, and 222 resulted in his receiving a raw score of 43 (or a converted score of 65, 5 points less than he needed to pass the Examination). The Board received the NCEES's rescoring results on May 12, 1999. The Board subsequently referred the matter to the Division to conduct an administrative hearing. At the administrative hearing that was held pursuant to the Board's referral, Petitioner challenged the grading of his solutions to Problems 120, 125, and 220 of the Examination, and indicated that he had "no dispute concerning the grading of [his solution to Problem] 222," notwithstanding that he had requested, in his March 26, 1999, letter to Ms. Lowe, that his solution to Problem 222 be rescored. Petitioner explained that he had made this request as a result of inadvertence and that he had actually intended to seek rescoring of his solution to Problem 220, not Problem 222. Problems 120, 125, and 222 were worth ten raw points each. Problem 120 contained four subparts (or requirements). Petitioner initially received four raw points for his solution to Problem 120. Rescoring did not result in any change to this score. Petitioner solved two subparts of Problem 120 correctly (subparts (a) and (b)). The solutions to the other two subparts of Problem 120 (subparts (c) and (d)), however, were incorrect inasmuch as Petitioner had neglected, in making the lateral force calculations and drawing the diagrams required by these subparts, to include the force attributable to the movement of the groundwater referred to in the problem. Therefore, in accordance with the requirements and guidelines of the NCEES scoring plan for this problem, the highest raw score that he could have received for his solution to this problem was a four, which is the score he received. Problem 125 contained three subparts (or requirements). Petitioner initially received a raw score of two for his solution to Problem 125. Upon rescoring, no change was made this raw score. Petitioner correctly solved only one of the three subparts of Problem 125 (subpart (c)). In his solution to subpart (a) of Problem 125, Petitioner did not provide, as required by this subpart, the quantities of water, cement, and aggregate necessary for the project described in the problem. Petitioner's solution to subpart (b) did not describe one of the acceptable slump increasing methods that the candidates were required describe in their solution to this subpart. Accordingly, giving Petitioner a raw score of two for his solution to Problem 125 was consistent with the requirements and guidelines of the NCEES scoring plan for this problem. Petitioner received a raw score of two for his solution to Problem 220. He did not request, in his March 26, 1999, letter to Ms. Lowe, a rescoring of his solution to this problem, and, as a result, his solution was not rescored. At the administrative hearing, Petitioner testified on his own behalf regarding the scoring of this solution and, during his testimony, contended that the score he received was too low; however, neither a copy of the problem, nor a copy of the NCEES scoring plan for this problem, was offered into evidence. Accordingly, the record is insufficient to support a finding that the score Petitioner received for his solution to Problem 220 was undeservedly low in light of the NCEES scoring plan for this problem. Petitioner initially received a raw score of eight for his solution to Problem 220. Rescoring resulted in this score being reduced two points to a six. Petitioner did not present any evidence supporting the position (which he advances in his Proposed Recommended Order) that he should have received a higher score for his solution to this problem, and, consequently, Respondent's expert, in his testimony at hearing, did not address the matter. While there were exhibits offered (by Respondent) and received into evidence relating to the scoring of Petitioner's solution to Problem 222, it is not apparent from a review of these exhibits that such scoring deviated from the requirements of the NCEES scoring plan for this problem (which was received into evidence as part of Respondent's Exhibit 12).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered rejecting Petitioner's challenge to the failing score he received from the NCEES on the Principles and Practice of Engineering portion of the October 30, 1998, engineering licensure examination. DONE AND ENTERED this 20th day of December, 1999, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 1999.
The Issue Count I: Whether or not Respondent violated a provision of Chapter 458 and a lawful order of the Department of Professional Regulation by refusing to comply with a March 23, 1988 order of the Secretary of the Department of Professional Regulation to produce and release medical reports pertaining to Respondent's mental or physical condition, and in so refusing violated Sections 458.331(1)(x) and 458.339(2) F.S. Count II: Whether or not Respondent violated a lawful order of the Board of Medicine previously entered in a disciplinary hearing, that is, whether or not Respondent specifically violated probation conditions imposed by a final order entered April 18, 1988, by failing to notify the Board of a change of residence address, and in so doing violated Sections 458.331(1)(x) and 458.339(2) F.S.
Findings Of Fact Respondent was first licensed as a medical physician under the laws of the state of Florida in 1971. Thereafter, he regularly renewed license number ME 0017326 until it expired December 31, 1989. The instant case's DPR number is 8902496. Due to the defenses and motions, it is important to note that the instant case constitutes the third formal administrative complaint against Respondent. Prior to August 10, 1987, Respondent was charged in the first formal administrative complaint (DPR Case No. 63959) by the Department of Professional Regulation, Board of Medicine, with certain professional violations, none of which involved allegations Respondent was physically or mentally impaired to practice. On August 10, 1987 the Board of Medicine entered a Final Order approving, adopting, and incorporating a May 14, 1987 stipulation signed by Respondent. In pertinent part, the disposition of that case under the August 10, 1987 Final Order provided as follows: Respondent's license shall be placed on probation for a period of one (1) year subject to the following terms of probation: Respondent shall not violate the provisions of Chapters 455, 458, or 893 Florida Statutes. In the event the Respondent should leave Florida to reside or practice outside of Florida for periods longer than thirty (30) consecutive days, the Respondent shall notify the Board in writing of the dates of departure and return. Periods of residency or practice outside of Florida will not apply to the reduction of the Respondent's probationary period. The Respondent shall advise the Board of any change in his residence and/or office address. Respondent's term of probation under the August 10, 1987 Final Order commenced on August 10, 1987 and would have concluded on August 9, 1988 but for subsequent intervening events. On or about July 10, 1987, the second formal administrative complaint had been filed against Respondent. That administrative complaint was referenced by DPR Case No. 75536. The second case also did not involve any allegations of Respondent's unfitness to practice due to any type of impairment, but did allege inappropriate or excessive prescribing of drugs and failure to treat a patient with that level of care, skill and treatment recognized by a reasonably prudent similar physician, failing to keep written medical records, gross or repeated malpractice, and prescribing outside of professional practice. In October 1987, Respondent considered himself "burned out" and under stress and at the request of his partners submitted himself to evaluations for alcohol and drug abuse. The results of these evaluations are not in evidence. 2/ For a period of time, the precise dates of which are not clear on the record, Respondent also submitted himself to counselling with a psychiatrist, Dr. Virzi. While counselling with Dr. Virzi, Respondent was under the impression that Dr. Virzi was in confidential communication with, and following instructions given by, Dr. Roger Goetz on behalf of the Board of Medicine. Respondent "thought" Dr. Goetz was the "Florida Director of the Impaired Physicians Program for the entire State," but was a little vague on how he came by that knowledge and equally vague on whether he or Dr. Virzi ever actually provided any medical records to Dr. Goetz. Respondent testified that Dr. Goetz appeared with him at a Board of Medicine probationary hearing, but the exhibits which purport to be the Respondent's record before the Board and the Department of Professional Regulation (DPR) are silent on any official involvement of Dr. Goetz with Respondent either on behalf of the Board of Medicine or the DPR or before the Board for any reason. Neither Dr. Virzi nor Dr. Goetz testified; no records of Respondent's psychiatric treatment or of his entry into any impaired physician program were offered in evidence. Respondent presently has no agreement with anybody, including Dr. Virzi or Dr. Goetz, to complete any type of treatment program and he is not now and never has been in the Physicians Recovery Network. Respondent testified that although he acknowledged to himself and possibly to his partners in February 1988 that he was impaired, the nature of that impairment, other than "stress," was undisclosed and unacknowledged by Respondent at formal hearing. Indeed, Respondent further testified that at some point, he stopped seeing Dr. Virzi because Dr. Virzi recommended that Respondent enter an alcoholic treatment program and Respondent personally understood his evaluations to be that he was not an alcoholic. As of the date of formal hearing, Respondent was seeing a different psychiatrist. Respondent's testimony leaves the overall impression that Dr. Goetz' contact with him was secondhand at best and that no medical releases were executed by Respondent specifically for Dr. Goetz. However, there was sufficient evidence from which one may infer that a Board consultant was informally notified that there was reason to believe Respondent was impaired as a result of the misuse or abuse of alcohol and drugs, or both, or due to mental condition, and that throughout this period of the consultant's involvement, Respondent was simultaneously under investigation and prosecution by the DPR under the second formal administrative complaint which did not allege impairment. On February 23, 1988, Respondent signed a stipulation to settle the second disciplinary case upon presentation of the stipulation to the Board. The stipulation, however, bore DPR Case No. 75537. On or about March 23, 1988, an Order to Produce and Release Medical Records signed by the Secretary of the Department of Professional Regulation was entered in DPR Case No. 0090191. In pertinent part, that order found, determined, and ordered that: . . . The Department of Professional Regulation has reason to believe Glenn L. Pohlman, M.D. has violated Section 458.331(1)(s), Florida Statutes, by being mentally impaired and unable to practice medicine with reasonable skill and safety to patients. . . . Furthermore, the Department has need for additional information relative to the mental and physical condition of Glenn L. Pohlman, M.D. . . . pursuant to Section 458.339 Florida Statutes Glenn L. Pohlman M.D. is hereby ORDERED to forthwith release to the Department of Professional Regulation the names of all physicians treating him for the period of time from on or about January 1, 1986 through and including the date of the filing of this Order for any mental or physical condition, and it is further ordered that Glenn L. Pohlman, M.D. release to the Department of Professional Regulation all medical records and reports pertaining to his own mental and physical condition within that same period of time. In order to comply with this order, Glenn L. Pohlman M.D. shall execute five (5) Patient Consent for Release of Medical Information forms. . . . The foregoing Departmental Order is facially sufficient. Its case number corresponds to a computer cross-reference sheet listing a confidential complaint dated November 10, 1987. (P-5, last page) Respondent admitted receiving a copy of the Department's Order in March 1988. Respondent did not appeal the Department's Order or directly take issue with its "lawfulness." He merely refused to comply with it until the Board gave him more information. On April 18, 1988, the Board of Medicine entered a Final Order in DPR Case No. 75537 approving, adopting, and incorporating, as modified therein, the February 23, 1988 stipulation signed by Respondent in DPR Case No. 75537. The witnesses' testimony and the chronology of the official records admitted in evidence are persuasive that, despite the discrepancy of case numbers, the Final Order/Stipulation in DPR Case No. 75537 disposed of the charges contained in the formal administrative complaint in DPR Case No. 75536. That is, the second disciplinary case initiated July 10, 1987 by the second formal administrative complaint described in Finding of Fact 5, supra. That Final Order provides, in pertinent part: 5. Respondent's license shall be placed on probation for a period of up to two (2) years subject to the following terms of probation: * * * b. In the event the Respondent should leave Florida to reside or practice outside the State of Florida for periods longer than thirty (30) consecutive days, the Respondent shall notify the Board in writing of the dates of departure and return. Periods of residency or practice outside of Florida will not apply to the reduction of the Respondent's probationary period. The Respondent shall advise the Board of any change in his residence and/or office address. * * * 8. Respondent agrees to abide by all terms and conditions of this Stipulation. It is expressly understood that a violation of this stipulation shall be considered a violation of Chapter 458, Florida Statutes, for which a disciplinary action may be initiated. There is no acknowledgment within the February 23, 1988 stipulation and no finding within the April 18, 1988 Final Order that the Respondent was impaired. The order requires his prescribing to be monitored but does not limit the scope of Respondent's practice or require his withdrawal from practice. Respondent's term of probation under the April 18, 1988 Final Order would have concluded on April 17, 1990 but for subsequent intervening events. Regardless of testimony by the Administrative Assistant to the Florida Board of Medicine that on the basis of an August 1988 letter from Dr. Scales described in Finding of Fact 25, infra, the Board had tolled the Respondent's probationary periods under each of the two prior Final Orders of probation, beginning in February 1988, it is found that any tolling of the Respondent's probationary periods by the Board must legally be based upon the terms of the respective Final Orders. In a March 28, 1989 interview initiated by a DPR investigator, Respondent gave the investigator a North Carolina address and telephone number, saying it was his temporary residence, and again refused to comply with the Department's March 23, 1988 Order to release his medical records. On May 15, 1989, a letter pursuant to Section 455.225 F.S. from DPR Investigator Dowd to Respondent at Respondent's last known Jacksonville professional address (see Finding of Fact 23) informed Respondent that he was being investigated in connection with a complaint that Respondent had "failed to honor a lawful order by the Department of Professional Regulation to sign and execute a Release of Medical Information." That letter referenced Case No. ME0017326 3/ 8902496 4/. Approximately July 5, 1989, Respondent confirmed that the North Carolina address and telephone number were temporary. At formal hearing, Investigator Danson acknowledged that at all times material, investigators could always, eventually, locate Respondent through the North Carolina telephone number and address or through the Jacksonville professional address. On August 11, 1989, DPR Investigator Danson sent Respondent another copy of the March 23, 1988 Order and requested immediate compliance. On August 21, 1989, Respondent's then-attorney wrote Investigator Danson, asking to be informed of any lawful complaints pending at that time which might relate to Respondent. The evidence does not reflect any reply from any DPR employee to the attorney's letter, and Respondent continued to refuse to provide medical records or sign releases therefor. Respondent never produced any medical records and never signed any releases. He has consistently refused to provide his medical records or sign releases therefor up to and including the date of formal hearing herein which was the result of the third formal administrative complaint dated October 24, 1990. At least until February 20, 1988, Respondent maintained a professional practice at 3599 University Boulevard South, Jacksonville, Florida 32216. Even when not actively practicing at that address, Respondent has continued to receive mail there up to and including the date of formal hearing herein. He has also continued to be a stockholder in the medical practice of his partners still practicing there and a stockholder in the building at that address. He likewise draws disability insurance payments from the insurer for the partnership. Respondent has never taken the initiative to provide DPR or the Board with any other address in writing despite the two prior Final Orders requiring him to do so. At formal hearing, Respondent represented that, in collaboration with his partners, he voluntarily ceased to practice medicine in the state of Florida on February 20, 1988, a date prior to his signing the second stipulation, prior to entry of the Order of the Secretary, and prior to entry of the second Final Order of probation. The record is clear, however, that in May 1988, pursuant to the terms of the April 18, 1988 Final Order, Respondent qualified Dr. Scales as his monitoring physician to oversee his professional practice. In August 1988, Dr. Scales, Respondent's monitoring physician, notified the Department of Professional Regulation that he had nothing to monitor or report on since Respondent had ceased active practice in February 1988, three months before Dr. Scales was even qualified as monitoring physician. At no time did Respondent surrender his license to the Board or request being placed on inactive status. He is currently on inactive licensure status only because he did not timely renew his license prior to its natural expiration on December 31, 1989. Between February 1988 and the date of formal hearing, Respondent lived in several locations. Although he asserted that he has never "established residency" outside the state of Florida, Respondent admitted that since entry of the April 18, 1988 Final Order, he has "lived" outside Florida for more than 30 consecutive days, that he spent five weeks in Europe, and many months, at least intermittently, in Arizona and North Carolina. Since February 1989, much of Respondent's time has been devoted to repairing and refurbishing for sale a house in Charlotte, North Carolina. The house was damaged by a hurricane after he had purchased it in January 1989. Respondent simultaneously maintained a residence in Jacksonville with his daughter, but he has never taken affirmative action to notify DPR or the Board in writing of this address or of an address where he lived in Melbourne, Florida, for more than thirty days in 1988, either. Although vague and inconclusive as to the exact time frames of his absences from the state of Florida, it is clear that on several occasions, Respondent has failed to notify DPR or the Board of Medicine in writing of his dates of departure and return to Florida and has frequently resided outside the state of Florida for more than 30 consecutive days. Nor has he notified anyone in writing of his in-state changes of residence.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a Final Order providing as follows: Finding Respondent guilty of Counts I and II as alleged in the third administrative complaint (two violations of Section 458.331(1)(x) F.S.), and suspending his license to practice medicine in the state of Florida until the March 23, 1988 Order of the Department is complied with, subject to the statutory cap for suspension of a license, and thereafter ordering probation under the terms and conditions of the two prior final orders. DONE and ENTERED this 1st day of October, 1991, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 October, 1991.
The Issue The issue presented is whether Mr. Lord should be granted additional credit for his answer to question number 144 on the April 1990 Professional Engineer licensure examination.
Findings Of Fact Mr. Lord (Candidate #301402) received a score of 66.3 percent on the April 20, 1991, Principals and Practice portion of the Professional Engineer examination. A minimum passing score was 70.0 percent. Mr. Lord challenged the scoring of his response to question number 144. Question number 144 is an essay question involving an assembly line problem where four separate stations are used to assemble a product in sequence. A fifth station can assist in maximizing the number of finished products produced per hour, and is capable of performing all operations. The correct answer to question number 144 was 100 products per hour, while Mr. Lord's answer was 25 pieces per hour. Petitioner received a score of 2 (out of a possible 10) points on question number 144. This was based on the scoring plan developed for the exam by the National Council of Examiners for Engineering and Surveying. Mr. Lord used a method of averaging station assembly times to determine the maximum average number of products each station could produce. The averaging method gave a solution which did not identify the central issue presented by the essay question: identifying and eliminating the bottlenecks in production. Mr. Lord also made an assumption that the initial four stations could do all operations, thus defining the model inaccurately. This misreading allowed Mr. Lord to use an averaging methodology. Mr. Granata, the Department's expert, testified that it is a coincidence of the numbers that if you multiply Respondent's answer (25) by four (the initial number of machines) you get the Board's answer (100). Mr. Greenbaum, Petitioner's expert witness, testified that Petitioner's answer is "unique" and that he, as an expert, would have answered the question using a methodology similar to the one developed by the Department's expert, Mr. Granata, and by the NCEE (National Council of Examiners for Engineering).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the challenge to the grading of Mr. Lord's response to question 144 on the April 1990 Professional Engineer licensure examination be dismissed. RECOMMENDED this 14th day of March, 1991, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 14th day of March, 1991. COPIES FURNISHED: William F. Whitson, Law Clerk Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Curtis Lord 1416A Old Lystra Road Chapel Hill, NC 27514 Rex Smith, Executive Director Department of Professional Regulation Board of Professional Engineers 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
