The Issue The issues presented are: (1) whether or not Respondent wrongfully eliminated materials from the Candidate/Petitioner during the April 19, 1990 engineering examination, and if so, (2) whether the Candidate/Petitioner received a failing grade because the materials were wrongfully eliminated.
Findings Of Fact The Petitioner (#100021) received a score of 69.0 on the Professional Engineer Fundamentals Examination given April 19, 1990. A minimum passing score was 70.0 on the examination which is written by National Council of Engineering Examiners and graded by Education Testing Service. (Transcript Pages 36 and 39) Prior to the April 1990 examination, the Board sent each candidate a letter, dated December 18, 1989 (Exhibit P-1) (Transcript Page 9 and 12), which said, "No review publications directed principally toward sample questions and their solutions of engineering problems are permitted in the examination room." (Transcript Page 31). The candidates were also provided with a "Candidate Information Booklet" dated January 1990 (Exhibit R-1, Transcript Page 77). The booklet states on page 14, "No books with contents directed toward sample questions or solutions of engineering problems are permitted in the examination room." (Transcript Pages 77 and 96). Petitioner, who also took the October 1989 examination had received notice at that examination that the Board of Engineers intended to change the procedure allowing reference materials in the examination. (Transcript Page 89 and Respondent's Exhibit 2.) The Board of Professional Engineers advised the examination supervisor and proctors that no engineering "review" materials would be allowed in the examination although engineering "reference" materials could be brought into and used for the examination. However the books which were excluded included books without "review" in the title, books with "reference" in the title, and books which contained problems and solutions. Before the examination began Deena Clark, an examination supervisor, read over a loud speaker system names of books that would not be permitted (Transcript Page 81). Practice examination and solution manuals were not allowed for use by engineering candidates (Transcript Pages 93 and 94). Schram's outlines and other materials were also excluded (Transcript Page 91). Also excluded was Lindeburg's 6th edition, "Engineering In Training Review Manual." (Transcript Pages 16 and 79). This decision was verified by the Board before the examination began (Transcript Page 81). After the examination had begun, Ms. Clark announced that the candidates could put certain copyrighted materials in a three-ring binder and use them which had been excluded earlier (Transcript Page 85). This was in response to candidates who needed economics tables for the examination However, no time was provided the candidate to prepare these references and only one minute was added to the examination time. (Transcript Page 85). Petitioner did not bring any economic tables to the examination site except those contained in books which were not allowed in the examination. (Transcript Page 19). Petitioner did not remove the economic tables and permitted references from the Lindeburg's review manual until lunch and these tables were not available to him on the morning examination. (Transcript Pages 22 and 88). Of the six engineering economics questions on the morning portion for the examination, the candidate correctly answered four. No data was provided on the nature of these questions. The Candidate correctly answered 53 questions in the morning (weighted x 1) and 23 questions in the afternoon (weighted x 2) for a total of 99 weighted required points. He answered eight questions correctly in the "addition" portion of the examination. The table for eight additional questions correct in the "Scoring Information Booklet" used in determining the candidates final grade shows the adjusted equated score was 126 and his scaled score was 69. (Page 21 of booklet). The value of each economics question converted to final scoring scale was enough that passage of one economics question would have resulted in passage of the examination. The exclusion of certain materials from the examination was arbitrary and capricious and was done by a few individuals without any stated objective standard published by the board. Further, the board knew before the examination which books were to be excluded and could have notified examinees of the exact items to be excluded. The Board's generally poor handling of this matter is exemplified in announcing after the examination had begun that items previously excluded could be used if placed in a ring binder but not allowing any time to prepare such materials. (Tx. pgs., 74-80, 84-86, and 91-97) The Petitioner would have used several tables which were excluded if the announcement had been made before the morning examination began with time to put the items in acceptable form. After notifications in October 1989, December 1989, and January 1990, Petition admitted that he did not call the Board of Professional Engineers to ask for guidance on books that would not be allowed on the April 1990 examination (Transcript Page 29). However, a final decision on books to be excluded was not made until approximately two weeks before the examination. The Petitioner did not show that the two questions which he missed on the Engineering Economics portion of the morning examination were missed for lack of the tables. The examination is a national examination and there is no evidence that the requirements and limits established by the Board in Florida were applicable nationwide. To alter the national instructions locally potentially adversely affects Florida results.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Petitioner be permitted to take the examination without charge on one occasion. RECOMMENDED this 27th day of March, 1991, in Tallahassee, Florida. STEPHEN F. DEAN 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 27th day of March, 1991. 1/ The general information provided to examinees by the State Board regarding the values of questions on the examination and scoring it misleading or inaccurate because neither the weighted required score nor the adjusted score was 48% of 80, 280, or any other number related to the scaled score of 70. The manner in which these values are associated with the scale score of 70 is contrary to the Board's explanation and is not self evident. This is a potential problem if the matter were formally challenged, and it appears the Board needs to reassess its procedures and instructions. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-5728 The Petitioner did not submit proposed findings. The Respondent submitted proposed findings which were read and considered. The following proposed findings were adopted or reject for the reasons stated: Adopted. Issue not fact. - 4. Rejected. Preliminary statement not fact. 5. -12. Adopted. Rejected. Preliminary statement not fact. Rejected as irrelevant. Rejected as preliminary statement. Adopted. Adopted. COPIES FURNISHED: Alan K. Garman Civil-Tech, Inc. 3573 Commercial Way Street B Spring Hill, FL 34606 William F. Whitson, Law Clerk Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Rex Smith Executive Director Board of Professional Engineers Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In February 1989, petitioner, Michael J. Millillo, Jr., was a candidate on the certified building contractor examination. The test is prepared and administered by respondent, Department of Professional Regulation, Construction Industry Licensing Board (Department or Board). Petitioner later received written advice from the Department that he had made a grade of 63 on Part II of the examination. According to agency rules, a score of at least 69.1 is required for passing. Petitioner then filed an appeal of his examination results contending that question 8 was ambiguous and that question 20 contained more than one correct answer. That prompted this proceeding. As a result of a stipulation by counsel at hearing, petitioner was given credit for his answer to question 20 and his grade was raised to 67. Accordingly, the appeal is now limited to question 8. The examination was prepared by the National Assessment Institute and requires an examinee to use "entry level" knowledge in formulating his responses. Question 8 was a mathematics question having a value of four points on a candidate's overall score. It is undisputed that if Millillo had received four additional points he would have passed the examination. Question 8 was a multiple choice question containing four possible answers. Although the question cannot be repeated verbatim here because of confidentiality constraints, it required a candidate to make nine separate mathematical calculations in order to arrive at the correct solution. Petitioner's challenge is limited to the first calculation, and more specifically, to the wording in the question. He contends that the wording was so ambiguous that a candidate could easily arrive at a different answer than suggested by the Board. In general terms, the subpart in dispute provided a candidate with an annual payroll cost for a general superintendent who was the supervisor on a project taking one hundred fifty days to complete. The candidate was required to calculate the superintendent's cost assuming he spent 15% of his time on the project. The solution was derived by multiplying a .15 factor X 150/360 X the annual payroll cost. Petitioner testified on his own behalf and suggested that the question assumed the superintendent devoted 15% of his total time for the entire year to the project, and that the appropriate cost would be obtained by multiplying that percentage factor times the individual's annual payroll cost. The resulting number was approximately twice as great as the Board's correct solution. Respondent's consultant, George Bruton, is a licensed contractor and assisted in the preparation of the examination questions. He considered the question to be clear and unambiguous and required a student to recognize that the superintendent spent 15% of his total time on the project for five months, which was the life of the project. This interpretation is logical and reasonable, consistent with the wording in the question, and is found to be correct. The witness added that because 78% of all candidates on the examination obtained the correct answer, it reinforces his contention that the question was not ambiguous.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying petitioner's request to receive a passing grade on the February 1989 certified building contractor's examination. DONE and ORDERED this 6th day of November, 1989, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 6th day of November, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-4312 Respondent: 1. Substantially adopted in finding of fact 1. 2-4. Substantially adopted in finding of fact 2. 5. Substantially adopted in finding of fact 5. 6-7. Substantially adopted in finding of fact 6. COPIES FURNISHED: Frederick F. Rudzik, Esquire One Fourth Street, North Suite 800 St. Petersburg, Florida 33701 E. Harper Field, Esquire 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Kenneth E. Easley, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
Findings Of Fact Petitioner is a candidate for licensure as a professional engineer. Petitioner took the licensure examination in October, 1992, and received an overall score of 68.10. The minimum passing score for the exam was 70. The examination used by the Department is a nationally recognized test administered and graded by the National Council of Examiners for Engineering and Surveying (NCEES). The scoring plan utilized by NCEES in this case provided, in pertinent part, that the score of 4 would be given where the applicant's response showed more than rudimentary knowledge but was insufficient to demonstrate competence. Petitioner received the score of 4 on problem #120 and felt his answer should have received a higher grade. To receive a score of 6 on problem #120, Petitioner's solution would have shown minimum competence by indicating the required volume of solids taken as the required volume of fill with all other analysis and computations being correct. According to the scoring plan, only "modest" errors in cost analysis or volume analysis computations are permitted to receive a grade of 6. Petitioner admitted that his calculation of volume on problem #120 was incorrect, but felt that since the error was only 10-15 percent, such error was reasonable given that he had correctly analyzed the majority of the problem. Petitioner's calculations for problem #120 were approximately 5900 cubic yards from the correct answer. Since Petitioner's volume calculations were incorrect, no credit was given for the cost analysis. Petitioner's error was not a "modest" miscalculation as set forth by the scoring plan.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Business and Professional Regulation, Board of Professional Engineers, enter a final order denying Petitioner's challenge to the professional engineer examination administered in October, 1992. DONE AND RECOMMENDED this 19th day of August, 1993, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2652 Rulings on the proposed findings of fact submitted by the Petitioner: Paragraph a) is rejected as contrary to the weight of the evidence. Paragraph b) is rejected as contrary to the weight of the evidence. Paragraph c) is rejected as irrelevant. Paragraph d) is rejected as irrelevant. Rulings on the proposed findings of fact submitted by the Respondent: 1. Paragraphs 1 through 5 are accepted. COPIES FURNISHED: Ali Khalilahmadi 12755 S.W. 60 Lane Miami, Florida 33183 Vytas J. Urba Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792 Jack McRay Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792 Angel Gonzalez Executive Director Board of Professional Engineers 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0755
The Issue The issues in this case are whether Respondent was negligent in the practice of engineering in violation of section 471.033(1)(g), Florida Statutes (2014),1/ as alleged in the Administrative Complaint; and, if so, what sanction should be imposed.
Findings Of Fact The following findings of fact are based on the testimony presented at the final hearing, exhibits accepted into evidence, and matters subject to official recognition. The Board is the state entity charged with regulating the practice of engineering, pursuant to chapter 455, Florida Statutes. FEMC provides administrative, investigative, and prosecutorial services to the Board pursuant to section 471.038, Florida Statutes. Mr. Henry obtained his professional engineering license from the state of Florida in 1992 and has been a licensed engineer for all times relevant to the issues in this case. His license number is PE 45894. In May 2014, Mr. Henry provided an estimate for engineering services to the owners of Darr Salaam Annex (“property owners”), a religious/community center in Thonotosassa, Florida. The services involved the renovation of an existing one-story building (“Project”). Initially the property owners hired another engineer who submitted the renovation plans to the appropriate agencies for a building permit: the Hillsborough County building plans review staff (“County”) and the Hillsborough County Fire Marshals’ Office (“FMO”). The County rejected the first submittal of the electrical and mechanical plans on June 26 and July 3, 2014; FMO rejected the submitted plans on June 27, 2014. The property owners retained Respondent to be the engineer of record (“EOR”) for the Project in August 2014. As the EOR, Respondent prepared, signed, sealed and submitted documentation to the County and FMO for the Project numerous times. The following is a summary of his submissions and the permitting entities’ responses. Date of Review Comments Status of Submitted Plan October 3, 2014 First resubmittal denied by FMO; second resubmittal required. October 20, 2014 Corrected electrical plan review denied by County. October 30, 2014 Building plan review denied by County. December 21, 2014 Corrected electrial plan review denied by County. December 22, 2014 Building plan review denied by County. January 2, 2015 Second resubmittal denied by FMO; resubmittal required. February 6, 2015 Third resubmittal denied by FMO. February 18, 2015 Corrected electrical plan approved by County. February 20, 2015 Building plans review denied by County. February 25, 2015 Corrected building plan approved by County. March 2, 2015 Corrected mechanical plan approved by County. March 13, 2015 Fourth resubmittal denied by FMO. March 16, 2015 Building plan approval rescinded by County. The parties presented no evidence as to whether the County and FMO ultimately approved the building plans or issued a building permit. The last plans Mr. Henry prepared and submitted to the County and FMO consisted of five illustrations including: (1) a demolition plan; (2) a lighting/safety plan; (3) wall details; (4) canopy details (structural plan); and (5) elevation drawings. The demolition plan contains a section titled “SCOPE OF WORK,” which states: THE THREE DECORATIVE CANOPIES ARE TO BE CONSTRUCTED AS PER THESE PLANS THE EXISTING 1ST FLOOR INTERIORS TO BE RENOVATED AS PER THESE PLANS THE RENOVATED BATHROOMS ARE TO BE WIRED ALL OTHER EXISTING LIGHTING TO BE RETAINED OUTLETS ON THE WALL REMOVED ARE [TO] BE DISCARDED THE EXISTING AC SYSTEMS ARE TO BE RETAINED[.] On March 20, 2015, Kevin McGuire, the Plans Reviewer for the FMO filed a complaint with the Board (“McGuire Complaint”) regarding Respondent. Mr. McGuire claimed Mr. Henry had been repeatedly told the plans were deficient and also been told how to correct them, but that Petitioner failed to address the issues raised by the FMO in the revised submittals. Mr. McGuire also stated in his Complaint that--in his opinion-- Mr. Henry lacked basic knowledge of the Florida Building Code and the Fire Prevention Code. Petitioner notified Respondent of the allegations in the McGuire Complaint. Mr. Henry responded he was not responsible for the electrical, mechanical and structural plans and that the Project was not a “straight forward situation.” After receipt of the McGuire Complaint and Mr. Henry’s response, the Board’s Probable Cause Panel authorized FEMC to initiate an investigation. These documents, as well as the final building plans submitted to the County and FMO, were provided to four FEMC consultants for review: Mr. Ooten (electrical and mechanical elements); Gerald Zadikoff, P.E. (structural elements); Mr. Jeffery (second review of the structural elements); and Sarah Maman, P.E. (fire safety and protection elements).3/ Based on the engineering reports prepared by these consultants, the Board filed the Administrative Complaint against Mr. Henry alleging deficiencies in the electrical, mechanical and structural design documents. Overall Violations As an initial matter, most of Mr. Henry’s violations (described in detail below) arise out his lack of description and specificity in the engineering documents. The overwhelming evidence establishes most of the deficiencies alleged by Petitioner could have been avoided had Mr. Henry simply provided the details required by the rules to (1) describe the specifications of the new electrical, plumbing and structural features; and (2) distinguish the existing systems more clearly from those that were being affected by the renovations. Respondent’s failure, if not refusal, to do so was one of the reasons the plans were repeatedly rejected by the County and FMO. In general, Mr. Henry accepted responsibility at the hearing for the Project plans, but he maintained that any departures from the FBC or rules were justified by the specific circumstances of the project in question and his sound professional judgment. He did not, however, establish what those specific or special circumstances were. Both experts’ testimony and reports established that departures from the rules, even if they are justified by circumstances and the professional judgment of the engineer—-which these were not--must be documented. Again, Mr. Henry’s lack of attention to detail in the documents was his downfall; it cannot be excused by any specific circumstance or his professional judgment. Respondent also claimed he was not responsible for describing the existing elements that he did not design. Again, it is difficult to discern from the documents alone what was in place before the renovation and what would be affected by the renovation. Mr. Henry admitted, “I don’t have a list of move this bathroom or move this outlet or move this here.” Mr. Henry could have used different colors or methods to distinguish the changes from the original structure, but he did not. None of the Project documents cite to the relevant codes, rules, or ordinances that Respondent relied upon as required by rule 61G15-30.003(1)(b). The plans simply state they comply with the FBC without noting which version or year Respondent was using. Mr. Henry believed that his general citation to the FBC put the plan reviewers and contractors on notice of all of the construction code requirements. This assertion is rejected based on the testimony of Mr. Ooten and Mr. Jeffery, which established: it is common practice in the profession to make specific citations; and plan reviewers and contractors have difficulty in evaluating and interpreting building plans without citations to specific statutes, codes, and rules. Similarly, Mr. Henry testified he did not have to provide the sizing and specifications of construction materials in writing because they were known by the contractor he was working with at the time. This contention is rejected based on Mr. Henry’s own testimony that others may need this information to complete the project, and his own admission there was no guarantee that the specific contractor he was working with would complete the Project. Electrical Violations The Board alleges the electrical “Legend” section lacked sufficient symbols or explanations as required by rule 61G15-33.004. The small copies of the drawings presented by the Board were difficult, if not impossible, to read. At the hearing, however, Respondent brought actual–size copies of the drawings he had submitted to the County and FMO and was able to show that although some information was missing from the “Legend” section, this information was located elsewhere in the documents. As such, the “Legend” is compliant and does not violate the Responsibility Rules. The Board, however, provided clear and convincing evidence, primarily through the testimony and report of Mr. Ooten, that the electrical engineering drawings Mr. Henry prepared were deficient. The drawings contain an Electrical Riser Diagram, but no short circuit values and no voltage drop calculations for the feeders, as required by of rule 61G15-33.003(2)(a) and (f). The drawings do not depict any surge protective devices nor do they explain why such devices were not necessary, as is required by rule 61G15-33.003(2)(d). The drawings do not specify the type of conductor insulation that is necessary or should be used, as required by rule 61G15-33.003(2)(b). The drawings contain incomplete circuitry of electrical outlets, equipment and devices such as air handlers, water heaters, lighting fixtures and receptacles, and ground fault circuit interrupter receptacle, as required by rule 61G15- 33.003(2)(g). The grounding conductors reflected in the drawings are inadequate and insufficient to satisfy the requirements of rule 61G15-33.003(2)(i). The electrical information omitted by Respondent is necessary to assure the circuit breakers, wires, conductors and other electrical components are adequate for the power usage, because undersized components can overheat and cause fires. Likewise, the grounding information is necessary to ensure the building is safe in the event of lightning or an electrical power surge. Lighting Violations The Board also provided clear and convincing evidence that the lighting plan Mr. Henry prepared was deficient. The drawings lack any light fixture specifications, as required by rule 61G15-33.004(2)(a). The drawings fail to provide for an appropriate number of exit lights, in violation of the Florida Fire Prevention Code and rule 61G15-33.004(2)(b). The drawings show no circuiting for any lighting fixtures, no calculated values for energy usage, and do not establish that the lighting plan complies with the Florida Energy Code for Building Construction, as required by rule 61G15- 33.004(2)(d) and (e). Mr. Henry claimed he was not required to make these notations because the renovation incorporated the existing lighting. Mr. Henry admitted, however, he could have labeled the existing lighting fixtures that were not going to be modified as “N/A” or “existing,” but did not think he needed to do so because “the contractor understands this.” Unfortunately, what was existing lighting and what was being changed was not apparent to the plan reviewers, Mr. Ooten, or the ALJ. Plumbing Violations The Board alleged numerous deficiencies in the plumbing plan, including that the potable water diagram shown on Sheet 3 of the drawings lacked designation of the total water fixture units, as required by rule 61Gl5-34.007(2)(c). Mr. Henry, however, clarified at the hearing that this information was contained in the documents, but not on the sheet related to plumbing. As such, the Board did not show the water diagram was insufficient. The Board, however, did present sufficient evidence to establish Mr. Henry’s plumbing drawings lack necessary data or provide incorrect information in violation of the FBC and applicable Responsibility Rules as follows: The drawings fail to designate fixture requirements, back flow prevention devices, water supply line locations or hot or cold water line locations other than sewage, as required by the FBC. The drawings lack plumbing equipment descriptions, or material specifications (i.e. sizes and strengths of the materials to be used), as required by rule 61G15-34.007(2)(a), (l), and (m). The drawings lack designation of storm riser and area drainage calculations, as required by rule 61G15-34.007(2)(e). The drawings lack piping layouts, as required by rule 61G15-34.007(2)(f). The drawings fail to list the applicable plumbing codes, design standards or requirements, as required by rule 61G15-34.007(2)(i). These omissions could result in inadequate water and sewer capabilities. The lack of drainage calculations make it difficult to assess the impact the renovations will have on the existing storm water runoff system. Again, Mr. Henry denied he was responsible for making these designations because the renovations, he claims, did not affect the existing plumbing. The testimony of Mr. Ooten, however, established: the additional bathroom features would affect the total plumbing system, and Mr. Henry should have better designated what portions would not be affected by the renovations. The Board also established that the Project plans fail to designate a handicap accessible bathroom stall as required by rule 61G15-34.007(2)(j). Although at the hearing, Mr. Henry showed a larger space where these bathrooms were located on the plans, they were not clearly marked as “handicap” stalls. Mr. Henry admitted as much and noted, “I could have also put a note in the [the plans that] this was a handicap bathroom, okay, but the dimensions speak for themselves. . . . I did not put a detail for the handicap bathroom. My mistake. All right. Everybody makes mistakes.” Structural Violations The Project renovations included widening the building’s doorways and adding canopies to the rooftop. These are changes affecting the structural elements of the building. Based on Mr. Jeffery’s testimony and report, the Board presented clear and convincing evidence that Respondent’s structural engineering design documents were professionally and legally deficient. The structural plans fail to provide the live or dead loads for the roof, as required by the FBC and rule 61G15- 31.002(5). Although Mr. Henry testified these were not necessary because no changes were made to the roof, the plans reflect there was an addition of three decorative canopies. The structural plans do not indicate that the live or dead loads remain unchanged despite these additions. To the contrary, Mr. Jeffery’s testimony and report established that the canopies (even if decorative) coupled with the changes in doorways would affect the structural loads. Thus, the structural plans were noncompliant. There are no structural notes indicating applicable code or strength of materials for masonry, grout, reinforcing steel and wood, as required by rule 61G15-31.003(1)(a). Mr. Henry claimed that providing the size of the structure beams was enough to satisfy the rule. This contention is rejected based on Mr. Jeffery’s testimony: [Mr. Henry]: I have here a 2-by-6 ridge beam. A 2-by-6 ridge beam . . . is established what load a 2 by 6 ridge bema from the American Wood Council. The American Wood Council has a sort of table that I use. I don’t put in in every plan because I establish my own table based on information from the American Wood Council. A 2-by-6 ridge—yes [?] [Mr. Jeffery]: First of all, you haven’t even said what species of wood it is, so each species of wood has a different strength. Secondly, with any species, there’s at least five or six different grades, and each of those grades has a different strength. So you’ve got maybe 10 to 15 options that could be picked from by the contractor, and you’ve not told him which one to pick. The wind loads indicated on the diagrams are inadequate in that they do not reflect the new canopies and do not establish that the structure could withstand or resist the minimum wind speed. Although the testimony conflicted about whether the 2005 or 2010 standards were applicable, Mr. Jeffery provided sufficient testimony to establish that the calculations on the plan that showed the canopy details were insufficient under either standard. Although knowledgeable about designing the renovations, Mr. Henry failed to utilize due care in performing as the EOR and failed to have due regard for acceptable standards of engineering principles in the preparation and submission of the engineering documents he signed and sealed for the Project. It was clearly and convincingly shown that Mr. Henry was negligent in the preparation and submission of the building plans for the Project. There is nothing in the record to indicate Respondent has a history of discipline or has had any other complaints filed against him in his 25 years as a licensed professional engineer in Florida. The Project was a renovation of an existing building with no major changes. There was no evidence the Board interviewed the property owners or Project contractor, nor was there evidence of any actual damages suffered by the public as a result of Mr. Henry’s negligence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Board of Professional Engineers: Finding Earl E. Henry engaged in negligence in the practice of engineering, in violation of section 471.033(1)(g), Florida Statutes, and Florida Administrative Code Rule 61G15- 19.001(4); Imposing a two-year probation; and Awarding costs related to the investigation and prosecution of this case as described in this Recommended Order. DONE AND ENTERED this 9th day of January, 2018, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 January, 2018.
The Issue This cause concerns whether the Respondent committed certain violations of Chapter 471, Florida Statutes (1989), governing the regulation of licensure and practice of Professional engineers in the State of Florida by certain alleged negligent acts with regard to the preparation of plans for a building and alleged engagement in the practice of architecture beyond the scope of authorized engineering practice.
Findings Of Fact The Petitioner is an agency of the State of Florida charged, in pertinent part, with regulating the practice of engineering pursuant to Section 20.30, Florida Statutes, Chapters 455 and 471, Florida Statutes, and with enforcing the licensure standards for registered professional engineers in the State of Florida. The Respondent is a licensed engineer, licensed by the State of Florida, holding license number PE 0029985. His address of record is Charles Stokes Engineering, 3000 Highway 231, North, Lynn Haven, Florida 32404. In 1989, the Respondent contracted with James Carlton to prepare building plans for a restaurant known as the Crab Shanty in Panama City Beach, Florida. Numerous changes were effected in the plans, both before and during construction, such that the restaurant evolved finally as a three-story restaurant built primarily of wood with utility-pole type pilings or posts and beams for framing, including glued-laminated wood beams (glue-lam). An initial set of plans (Petitioner's Exhibit 1) were submitted to the Bay County Building Official, Mr. James Pybus. While the initial 11-page plans depicted in Petitioner's Exhibit 1 lacked some detail, especially with regard to electrical, plumbing, air conditioning and mechanical aspects, the plans were later augmented by an additional 11 pages depicting some of the previously absent details and Mr. Pybus confirmed that the practice of his agency is not to require more detailed plans of such electrical, plumbing, air conditioning, or mechanical work, if it comes within the scope of the exceptions set forth in Section 471.003(2)(i), Florida Statutes (1989). Those exceptions provide that licensed subcontractor, in those fields can design the electrical, plumbing, air conditioner, or mechanical aspects of a project themselves if they have the appropriate contractor's licenses without engineering registration. Therefore, Mr. Pybus' agency does not require that engineers preparing such plans, as to these aspects of the planning work, include such details if licensed contractors for those areas of the construction project will be doing the design and installation work, which was the case in this situation. Personnel under Mr. Pybus' direction inspected the building during construction and preformed a final inspection, all of which confirmed that the construction was in accordance with appropriate building codes. Mr. Pybus opined that his office had reviewed the plans submitted and determined that the plans had depicted sufficient detail for construction in accordance with the applicable codes. The Petitioner presented a consulting engineer, Mr. Harold Benjamin, as an expert witness. Mr. Benjamin opined that the Respondent had exceeded the limits of his engineering experience by signing and sealing plans which entailed mechanical engineering, electrical engineering, and, to some extent, the field of architecture. The Respondent, however, has worked for many years in the nuclear power industry, during which time he was actively involved in electrical, structural and mechanical engineering and design which, by this extensive experience, qualified him to sign and seal plans covering the fields of mechanical and electrical engineering. The evidence to this extent refutes the testimony of Mr. Benjamin, and it is rejected in this regard. Further, although the Respondent preformed a minor amount of architectural work in designing the building, the architectural aspects of his building design were clearly incidental to the major considerations of civil, mechanical, structural, and electrical engineering. Even Mr. Benjamin, the Petitioner's witness, conceded that the architectural aspect of the design work was incidental to the overall plan and design work involved and was on the order of approximately ten percent of the Respondent's work on the project. Mr. Benjamin testified that he observed certain omissions on the plans contained in Petitioner's Exhibit 1. Those omissions involve not showing the proper type of support for some stairs, a foundation plan not being labeled, wall sections not being properly shown, and an absence of an "electrical legend" on the face of the plans. He opined that heating and air conditioning plans were unclear as to duct size, air delivery and quantities to various rooms. Mr. Benjamin acknowledged, however, that he was basing this testimony on only the plans depicted in Petitioner's Exhibit 1, which consisted of the first 11 pages and it was shown that this was not the complete set of plans actually drawn and ultimately filed with the building department by the Respondent, which consisted instead of a total of 22 pages which showed much more detail then Mr. Benjamin had reviewed and upon which he based his testimony. Mr. Benjamin only saw the remaining portion of the plans in question very briefly shortly prior to hearing and acknowledged that many of the omissions had been supplied on the additional plan sheets. Mr. Benjamin also acknowledged in his testimony that flaws in the design alleged by a Mr. Coleman, a "complaining architect" had not been proven in his view and, therefore, the Respondent was not negligent in his design. Upon redirect examination, Mr. Benjamin acknowledged that he only opined that the Respondent was negligent in terms of not consulting with qualified electrical and mechanical engineers with regard to the project because of his previously discussed opinion that the Respondent's engineering experience or expertise did not extend to electrical and mechanical engineering. This opinion, however, has been refuted as delineated above. Concerning the structural design aspects of the building and plans, in view of Mr. Benjamin's letter report to the Department of June 12, 1989, coupled with Mr. Benjamin's testimony that he did not do a complete review of the plans and did not examine the building itself, Mr. Benjamin's testimony has not established any negligence on the part of the Respondent. It affirmatively establishes that any architectural practice the Respondent may have engaged in was only incidental to his engineering design work for the project as a whole. Further, the testimony of Mr. Benjamin to the effect that the air conditioning system appeared to him inadequate to handle the peak load, as generated by restaurant occupancy of nearly 100 people and the restaurant kitchen, it was demonstrated at page 41 of the transcript that Mr. Benjamin had not observed the restaurant and kitchen space at the building in question and was not aware of what the actual occupancy of the restaurant was. Therefore, he is not deemed competent to express expert opinions concerning the adequacy of the air conditioning equipment and design. The Petitioner also presented the testimony of Mr. Berton Hufsey, a mechanical engineer. He was accepted as an expert witness in this field. Mr. Hufsey initially expressed criticism about certain plumbing and HVAC (heating, ventilating and air conditioning) aspects of the plans. Mr. Hufsey acknowledged, however, that because his practice is in the Miami, Florida, area, he was not familiar with the extent of detail customarily shown on engineering plans in the Bay County area and, thus, was not familiar with the professional practice standards in the Bay County area in that regard. Mr. Hufsey initially opined that the grease trap for the restaurant was inadequately sized and that all kitchen and bathroom waste were routed though the grease trap; that the toilet vent was a "dry vent" and that a wet vent, which washes the bottom of the vent pipe, should have been employed. He criticized the absence of details of the water heater and the kitchen ventilating system not being shown to be coordinated and balanced, but acknowledged that two fans were shown and appeared to balance. He also opined that the plans did not show an innerconnect to shut off heat producing equipment when the fire extinguisher system was operating, that exhaust fans or windows were not shown for the bathroom/toilet area, that the gas furnace was not shown to have a flue connection, and that the HVAC system was not shown to have a condensate water drain. Mr. Hufsey acknowledged in his testimony, however, that he thought, based upon this opinion and review of the initial set of the 11-page plans he had reviewed in making his recommendation to the Department, that the complaint had some validity but he would not go so far as to testify that negligence had occurred. Then, when confronted in his testimony by the as-built" plans, which he only saw on the day of the hearing, Mr. Hufsey acknowledged that the grease trap was properly designed, that the kitchen supply and exhaust fans were also appropriately detailed on the as-built plans, as well as the fire sprinkler system, and the air conditioning system. In summary, after reviewing the actual as-built, 22-page set of numbered and sealed plan sheets prepared by the Respondent, Mr. Hufsey acknowledged that the omissions and lack of detail noted on the first 11-page set of "rough plans" had been corrected with the exception of the "dry vent" for a toilet. Mr. Hufsey, however, acknowledged in regard to this that an experienced, qualified plumbing contractor would know the correct type of vent to install for the toilet, even if it was not actually depicted on the plans, and acknowledged that professional engineering practice in Florida provides that certain types of jobs can be designed and built by the licensed trade contractors such as plumbers, electrical contractors and mechanical contractors and that these types of trade contractors can design and build the plumbing, heating and air conditioning, and electrical aspects of a job such as this without having the design actually placed in the plans by the licensed registered engineer. See the exception contained in Section 471.003(2)(i), Florida statues (1989). Moreover, the Respondent, in his plans, affirmatively indicated that the sprinkler system had to take priority in its design and location over the mechanical, heating, air conditioning equipment and duct work, as well as the plumbing piping. This was a safety feature in order to ensure that the sprinkler system had effective coverage in the event of fire. Because of this safety feature, noted on the plans by the Respondent engineer, there necessarily had to be some degree of flexibility for installing the HVAC, the duct work~ and the plumbing work for those pertinent, licensed trade contractors. This was an additional appropriate reason why specific detail of the plumbing, electrical, and mechanical HVAC aspects of the job were not firmly and finally designed by the Respondent, because of the necessarily precise location of the sprinkler system shown on page 15 of the as-built plans. Thus, because of the exception allowed in the statute for design of HVAC, plumbing, and electrical work by the appropriate, licensed trade contractors and because of the priority the Respondent himself noted on the plans for the sprinkler system design and installation, it has not been shown that the Respondent was negligent in regard to the lack of detail on the plans for HVAC, electrical and plumbing design. Further, Mr. Hufsey acknowledged in his testimony concerning the alleged water heater detail deficiency, the lack of depiction of the air conditioning condensate drain, the furnace flue, and air supply; that experienced, licensed trade contractors in those relevant trades would be able to design and build those features into the building appropriately within the exception allowing them to do so at Section 471.003(2)(i), Florida Statutes. Mr. Garcia testified as an expert in the field of electrical engineering. Mr. Garcia stated that the plans submitted for the permit were deficient as to electrical items, thereby demonstrating negligence. Specifically, Mr. Garcia found that the initially submitted plans depicted no "panel scales"; no electrical risers; no load analysis; no specifications for lighting fixtures; insufficient detail to show compliance with the national electrical code and the energy code; that emergency lighting did not comply with the national electrical code; that no electrical legends were depicted; that circuits were not properly identified for lighting fixtures; that no schedule specifying light fixtures were shown; and that stairs were not shown to have the required emergency lighting. Mr. Garcia acknowledged in his testimony that the later, as-built plans depicted in Petitioner's Exhibit 8 showed that many of these items were corrected, although not all of them. He acknowledged, however, that on a project of this size that a licensed electrical contractor could design and build the required electrical items, equipment, and service, including the items he found not sufficiently depicted on the plans, without the services of a licensed engineer for the design, in accordance with the exception provided at Section 477.033(2)(i), Florida Statutes. Mr. Garcia testified, however, that a prudent engineer, if he omitted such detail from his plans, should make a notation on the plans to that effect to indicate that that design detail was to be provided by the licensed electrical contractor performing that aspect of the job. The Respondent failed to make this notation. The Petitioner presented the testimony of James Owen Power, a structural engineer accepted as an expert witness in that engineering field. Mr. Power expressed criticism concerning the Respondent's plans as demonstrating negligence in the practice of engineering in the following particulars: Sheet 2 of Exhibit 1 shows a roof over the third floor, sheet 3 shows no roof. The details on sheet 5 of Petitioner's Exhibit 1 related to the girder layout indicated glue laminated wood beams with insufficient notes to guide the contractor. The stairs of the south elevation were shown in two locations and did not show proper detail to show attachment to the building, nor that they met life safety standards. Sheet 5 of Petitioner's Exhibit 1, according to Mr. Power, shows a connection of the glued laminated wood member to a girder which was structurally inadequate because of the type and manner of bolting. The plans contained in Petitioner's Exhibit 1 used to obtain the building permit were somewhat confusing because certain irrelevant notes were written on the right hand side of sheet 1 of those plans. The piling construction notes, according to Mr. Power, called for 8 X 8 square pilings or 8 inch round marine treated pilings, but the drawing showed 12 inch round pilings. Sheet 6 of Petitioner's Exhibit 1 is confusing in that it is unclear whether it should be applied to the second or third floor, or just one of those two floors because the sheet specifies metal stud walls but does not indicate the gauge or size of the metal studs, nor did Mr. Power find the details sufficient to show how the walls should be framed at the top under the second floor trusses. Petitioner's Exhibit 1 allegedly shows insufficient detail with regarding to flashing and, finally, Mr. Power opined that there was not proper specification with regard to attachment of sheet metal to an overhang. Mr. Power's testimony was directed to Petitioner's Exhibit 1, the initial preliminary plans submitted for purposes of obtaining the building permit. Although building permit submittal plans should depict sufficient detail to show that a safely constructed building will result which will comply with appropriate building codes, it is not expected, as Mr. Pybus demonstrated, that all details be shown, especially in this case where certain planning details are appropriately and legally left to the designing and building performance of licensed trade contractors for the electrical, plumbing, and HVAC aspects of the building. Mr. Power's testimony does not demonstrate that the plans in Petitioner's Exhibit 1 would not have resulted in a safely constructed building which could comply with the building codes. In any event, the as-built set of plans drawn and designed by the Respondent (Petitioner's Exhibit 8), coupled with Respondent's unrefuted testimony, shows that these alleged deficiencies did not exist or had been adequately depicted in the as-built plans. The alleged improper connection of the glue lamented wood members to girders was actually demonstrated by the Respondent's testimony to be structurally adequate and in accordance with good, safe engineering practices. Concerning the alleged life safety standard violations regarding the stairs, Mr. Power acknowledged he had no architectural expertise, and was not qualified to render such an opinion, and the Respondent's case in chief shows that there was a change order regarding the stairs which legitimately accounts for the two different locations shown. Further, concerning the piling size complaint of Mr. Power, the Respondent demonstrated that the 8 inch sectional dimension of the pilings was the minimum diameter specification, which becomes obvious when it is taken into account that the drawing showed 12 inch round pilings. Accordingly this aspect of Mr. Power's criticism is invalid and is not indicative of negligence in the practice of engineering. The matters concerning the gauge or size of metal stud walls, the flashing, the depiction of roofs for the second and third floors, and the attachment of sheet metal to the overhang involved structural changes made during the course of construction as the result of legitimate agreements between the Respondent and the owner, as well as apparent deficiencies which were actually corrected on the final set of signed and sealed plans. Accordingly, these criticisms from Mr. Power do not reflect inadequacies or negligence in the practice of engineering in this regard either. Further, although Mr. Power expressed criticism concerning non- compliance with the statutory requirement for the drawings to be signed and sealed by the Respondent engineer, on cross examination he acknowledged that the Respondent had- in fact, attached to his final plans a cover letter and an index which had been signed and sealed with the appropriate raised seal and that each sheet of the drawing incorporated under that cover letter by reference was, in turn, appropriately identified by a stamped, red ink seal. Thus, the final plans were appropriately signed and sealed. Finally, it should be pointed out that none of the expert witnesses presented by the Petitioner had viewed the structure involved and none was able to testify competently that the structure had not, in fact, been finally designed, in the final plans, and constructed in a manner which would result in an improperly constructed, unsafe building. The Respondent presented the testimony of Mr. James Carlton, one of the owners of the building. Mr. Carlton established that he retained the Respondent to perform engineering services and that he did not want or need an architect because he had already conceived the architectural design of the building based upon his experience in the restaurant business. Mr. Carlton established that he was satisfied with the services provided by the Respondent and described his close cooperation with him and his supervision of the construction as very satisfactory. In fact, Mr. Carlton described the Respondent as working late at night seven days a week and always readily responding if changes were needed or desired by the owner or the contractors. Mr. Carlton described in detail the structural soundness of the building, even when subjected to 80 MPH winds and the weight and movement of crowds involving hundreds of people, which corroborated the Respondent's own testimony regarding the substantial structural soundness of the resulting building. The Respondent also presented the testimony of Henry Skipper, the contractor who actually constructed the building. Mr. Skipper confirmed that the plans provided adequate guidance for construction and for the work which was to be actually performed by licensed subcontractors in the trades of mechanical, electrical, plumbing, and HVAC. Mr. Skipper corroborated the fact that the Respondent was readily available to assist the contractors and subcontractors and the owner and to ensure that the building was properly constructed at all stages. Mr. Skipper found that the Respondent's plans contained the appropriate amount of detail treatment which he was accustomed to encountering in the preparation and use of building plans in the Bay County construction industry over a period of many years. Mr. Skipper's testimony appearing at pages 110 through 120 of the transcript specifically refutes the claims by Petitioner's witnesses concerning the adequacy of the design or construction of the stairs, the exterior walls, the glue--lam beams, the metal roofing and sheet metal detail, the perimeter walls, and the electrical, mechanical, plumbing, and HVAC aspects of the project. His testimony is accepted. Respondent testified in his own behalf and described his extensive experience as a professional engineer. In refuting the Petitioner's claims that he had worked outside his training and experience in terms of mechanical and electrical engineering, he established that he has many years of experience, derived from the nuclear power industry primarily, as well as to some extent in the sanitary sewer engineering design field by which he acquired extensive expertise in electrical mechanical, as well as structural engineering design. He is a licensed professional engineer in Alabama, Georgia, and Florida, and has been certified by the State of Florida as a Designated, Threshold Engineering Inspector. He has been approved for state employment as a professional engineer-mechanical III and a professional engineer-electrical I. His testimony appearing at pages 147-160 of the transcript together with the testimony of Mr. Skipper, the contractor, and the owner, Mr. Carlton, refutes the Petitioner's criticism concerning his design of the HVAC, plumbing, electrical, and structural aspects of the bui1ding. The Respondent established, in fact, that his design of the laminated beams and the method of connection of them, in fact, exceeded the recognized engineering and structural design requirements. Although various of the Petitioner's witnesses, as well as the Respondent in his testimony, established that sufficient detail concerning the mechanical, electrical, HVAC, and plumbing portions of the project were depicted on the plans so that appropriately licensed trade contractors practicing in those fields of contracting could do the final design and installation of those aspects of the project, the Respondent did not refute the showing by the Petitioner's witnesses that, as to the electrical equipment and service design portion of the project, the Respondent failed to properly note on his plans that flexibility for appropriate design and installation of the electrical segment of the project was being left to the licensed electrical subcontractor. In this regard then, it was established that the Respondent was negligent in the practice of engineering. It was not established that the Respondent engaged in any fraud or misconduct in the practice of engineering however, nor that he practiced architecture beyond the purview of his engineering licensure, in more than an incidental way.
The Issue Whether Petitioner is entitled to additional credit for his responses to Questions 23 and 27 of the Contract Administration section of the General Contractor licensure examination administered in July 1996, and, if so, whether the additional credit would give him a passing grade. Whether Petitioner is entitled to additional credit for his responses to Questions 11, 23, and 35 of the Contract Administration section of the General Contractor licensure examination administered in April 1997 and, if so, whether the additional credit would give him a passing grade.
Findings Of Fact Petitioner took the Contract Administration section of the General Contractor’s licensure examination in July 1996 and in April 1997. Between the two exams, Petitioner passed all sections of the examination except the Contract Administration section. Petitioner’s score on the Contract Administration section of the July 1996 examination, as graded by Respondent’s Bureau of Testing, was 65. His score on the Contract Administration section of the April 1997 examination was 67.5. For both examinations, there were 40 questions on the Contract Administration section. A candidate had to achieve a score of 70 to pass that section of the examination. Because each question was equally weighted, a candidate would have to correctly answer 28 questions to earn the passing score. All questions challenged by Petitioner were multiple- choice questions where the candidate was instructed to give the best answer from four possible choices. Prior to the examinations, the candidates were given a list of approved reference materials. The candidates were permitted to refer to those reference materials while taking the examinations. Respondent’s score of 65 on the July 1996 examination was based on the Bureau of Testing’s determination that Petitioner correctly answered 26 of the 40 questions. To earn a passing grade on the Contract Administration section of the July 1996 examination, Petitioner would have to receive credit for correctly answering two additional questions. His score of 67.5 on the April 1997 was based on the determination that he correctly answered 27 of the 40 questions. To earn a passing grade on the Contract Administration section of the April 1997 examination, Petitioner would have to receive credit for correctly answering one additional question. QUESTION 23 OF THE JULY 1996 EXAM The correct answer for Question 23 of the July examination is choice “D.” Of the four possible responses, choice “D” is the best answer to the question. Petitioner’s answer to this question was choice “A.” Petitioner did not receive credit for his response to this question because he did not select the best answer. The answer selected by Petitioner would not be the most accurate and cost-effective because the methodology he selected would not detect errors made by the first person performing the computations. The challenged question is a question that a candidate for licensure should be able to answer. The challenged question is not beyond the scope of knowledge that a candidate for licensure should have. The challenged question is not ambiguous. Petitioner is not entitled to additional credit for his response to Question 23 of the July 1996 exam. QUESTION 27 OF THE JULY 1996 EXAM The correct answer for Question 27 of the July examination is choice “C.” This correct answer is supported by reference materials made available to all candidates. Petitioner’s answer to this question was choice “B.” Petitioner did not receive credit for his response to this question because he did not select the correct answer to the question. The challenged question is a question that a candidate for licensure should be able to answer. The challenged question is not beyond the scope of knowledge that a candidate for licensure should have. The challenged question is not ambiguous. Petitioner is not entitled to additional credit for his response to Question 27 of the July 1996 exam. QUESTION 11 OF THE APRIL 1997 EXAM The correct answer for Question 11 of the April 1997 examination is choice “C.” This correct answer is supported by reference materials made available to all candidates. Petitioner’s answer to this question was choice “D.” Petitioner did not receive credit for his response to this question because he did not select the correct answer to the question. The challenged question is a question that a candidate for licensure should be able to answer. The challenged question is not beyond the scope of knowledge that a candidate for licensure should have. The challenged question is not ambiguous. Petitioner is not entitled to additional credit for his response to Question 11 of the April 1997 exam. QUESTION 23 OF THE APRIL 1997 EXAM The best answer for Question 23 of the April 1997 examination is choice “C.” This correct answer is supported by reference materials made available to all candidates. Petitioner’s answer to this question was choice “A.” While there is some support in the reference material for Petitioner's answer, the greater weight of the evidence established that his choice was not the best answer. Petitioner did not receive credit for his response to this question because he did not select the best answer to the question. The challenged question is a question that a candidate for licensure should be able to answer. The challenged question is not beyond the scope of knowledge that a candidate for licensure should have. The challenged question is not ambiguous. Petitioner is not entitled to additional credit for his response to Question 23 of the April 1997 exam. QUESTION 35 OF THE APRIL 1997 EXAM The correct answer for Question 11 of the April 1997 examination is choice “C.” This correct answer is supported by reference materials made available to all candidates. Petitioner’s answer to this question was choice “D.” Petitioner did not receive credit for his response to this question because he did not select the correct answer to the question. The challenged question is a question that a candidate for licensure should be able to answer. The challenged question is not beyond the scope of knowledge that a candidate for licensure should have. The challenged question is not ambiguous. Petitioner is not entitled to additional credit for his response to Question 11 of the April 1997 exam.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order that dismisses the challenges brought by Petitioner to Questions 23 and 27 on the July 1996 exam and to Questions 11, 23, and 35 of the April 1997 exam. DONE AND ENTERED this 3rd day of December, 1997, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 1997. COPIES FURNISHED: R. Beth Atchison, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Mr. Kenneth Marshall 624 Southwest 11th Court Fort Lauderdale, Florida 33315 John Preston Seiler, Esquire 2900 East Oakland Park Boulevard, No. 200 Fort Lauderdale, Florida 33306 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Rodney Hurst, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467
The Issue Whether Petitioner is entitled to additional credit for his responses to question numbers 21 and 24 of the Principles and Practice of Engineering Examination administered in April 1998.
Findings Of Fact Petitioner took the April 24, 1998 professional engineering licensing examination with an emphasis in civil engineering. A score of 70 is required to pass the test. Petitioner obtained a score of 69. In order to achieve a score of 70, Petitioner needs a raw score of 48. Therefore, Petitioner is in need of at least one additional raw score point. Petitioner is challenging question numbers 21 and 24. They are both multiple-choice questions and worth one point each. Exhibit 10 contains a diagram for the candidate's use in answering question numbers 21 and 24. Question 21 requires the examinee to calculate the percentage of wooded land on the diagram. The diagram contains a rectangle labeled "woodlot," and within the rectangle are three non-contiguous areas marked with schematics of trees. The Petitioner reduced the percentage of wooded area to conform to the portion of the area labeled "woodlot" marked with schematics of trees. In regard to question number 21, the Petitioner asserts that as a matter of convention, by failing to put the trees everywhere in the wooded lot, one may assume that there are trees only where there is a schematic of the trees. The Petitioner's challenge was rejected on the basis that the scorer opined that it is standard practice that drawings are only partially filled with details, and the most reasonable interpretation of the site plan drawings is that the woodlot fills the entire area enclosed by the rectangle. John Howath, a professional engineer, testified regarding accepted conventions in engineering drawings. In Howath's opinion the drawing on the examination used inconsistent methodologies and was confusing regarding whether all of the area designated by the label or "call out" of woodlot was in fact wooded. Both the Petitioner and Mr. Howath referred to drawings in the Civil Engineering Reference Manual which showed areas on drawings totally covered with visual indications of a particular material or condition. Peter Sushinsky, a professional engineer, testified as an expert for the Respondent. Mr. Sushinsky acknowledged the Petitioner's exhibits; however, Mr. Sushinsky noted that these were only a few examples of drawings that are available. Mr. Sushinsky referenced construction drawings he had seen in his practice with partial "cross-hatching" just like the diagram on the examination. In sum, Mr. Sushinsky's experience was that diagram might be totally or partially "cross-hatched." In Mr. Sushinsky's opinion it was not a bad diagram, only subject to a different interpretation by a minor group. Question number 24 asked the candidate to calculate the weir peak discharge from the catchment area using the rational formula. The Petitioner asserts the question is misleading and should read, "What is the peak discharge from the watershed?" The Petitioner bases his assertion on the ground that the "rational formula" is used to compute discharge from a watershed not a weir, as mandated by the question. The scorer did not address the Petitioner's concerns. The scorer stated, "It is clear from the item statement that the weir equation is not to be used." However, the questions ask the candidate to compute the weir discharge. Jennifer Jacobs, a professor of engineering, testified regarding the rationale formula that it was used to calculate watershed discharge and not weir discharge. All experts agreed that the rational formula is not used to compute weir discharge. The experts all agree that the question was confusing because the rational formula is not used to calculate the discharge from a weir. The Respondent's expert justifies the answer deemed correct on the basis that if one uses the rational formula and computes the watershed discharge, one of the answers provided is close to the result. The Respondent's expert calculated the watershed discharge as 230.6 cubic feet per second (cfs). The answer deemed correct was 232 cfs. The expert stated the weir attenuates flow. If the weir attenuates flow one would expect an answer less than 230.6 cfs., not an answer equal to or greater than 230.6 cfs. The amount of attenuation is based upon the physical features of the impoundment area and the mouth of the weir. Weir Attenuation varies. The only answers smaller than 230.6 are 200 or 32. Is the 232 cfs. answer wrong because it does not allow for attenuation by the weir? How much did the weir attenuate the flow? Under these facts, the question is capricious. The Respondent argues that the Petitioner didn't follow instructions while acknowledging that the "correct" answer is not the answer to the question that was asked.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Respondent enter a final order awarding Petitioner two raw points and a passing score on the Principles and Practice of Engineering Examination. DONE AND ENTERED this 20th day of May, 1999, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 1999. COPIES FURNISHED: Mark W. Nelson 720 Northwest 31st Avenue Gainesville, Florida 32609 Natalie A. Lowe, Esquire Board of Professional Engineers 1208 Hays Street Tallahassee, Florida 32301 Dennis Barton, Executive Director Board of Professional Engineers 1208 Hays Street Tallahassee, Florida 32301 William Woodyard, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Petitioner's response to the questions on the October 1990 Florida Professional Engineers Examination were sufficient to allow him to receive a passing grade. Whether problems in Petitioner's examination occurred which were due to the Department's change in the list of reference materials allowed into the examination room.
Findings Of Fact In order to obtain licensure as a Professional Engineer in Florida, Petitioner is required to successfully complete the licensure examination. Petitioner sat for the October 1990 National Engineering Licensure Exam. He received an overall score of 69.1%. A passing score for the examination was 70.0%. The Professional Engineer Candidate Information Booklet advised candidates that the reference materials taken into the examination room had to be formally bound, copyrighted and published. The only exception to this rule was the Standard Building Code, which is contained in a three-ring binder. On the first day of the examination, Petitioner learned that the Board of Engineers had approved the use of additional codes, standards and manuals that are bound in three ring binders during the examination. One of these newly approved references was the Highway Capacity Manual, Transportation Research Board. Petitioner did not have his copy of the Highway Capacity Manual with him at the examination site because of the prior prohibition against its use during the exam. Petitioner did not object to the last minute expansion of the reference materials list until after he received his test results. The examination questions and answers challenged by Petitioner are Questions #124 and #425. Question #124 involved a five-sided figure that contained curves in two of its sides. According to the situation given as part of the test question, this figure was a parcel of land. The engineer was required to compute the area of the parcel. The first requirement for part (a) of the question was the computation of the area of traverse ABCDEA in acres. The figure provided some of the sector measurements in feet as well as a stated radius for each curved area. A review of Petitioner's calculations for part (a) reveals that he did not close the figure. Closure is required in a problem involving land boundaries. Thus, he was not able to compute the area and convert the measurement to acres, as required. Each side had to be included to obtain the proper area measurement. Petitioner did not demonstrate entitlement to credit for his incorrect answer to part (a) because he did not follow the instructions or demonstrate competency in the engineering principles tested by this question. The scoring plan for the examination did not provide partial credit for the incomplete calculations made by Petitioner on this portion of the exam. Petitioner received full credit for part (b) of Question #124 during the original grading of the exam so that portion of the question is not in dispute. Part (c) of Question #124 required the exam candidates to compute the length of curve DE in feet. The measurement for sector DE was provided in feet along with the measurement for the radius. Petitioner's answer to Question #124, part (c) was 514.39 feet. The correct answer was 514.79 feet. Although Petitioner's solution is similar to the correct answer, he did not compute the length of the curve for the side DE as required by the exam instructions. Instead, he computed the central angle for the circular arc DE. Even in his computation of the central angle, Petitioner used a central angle of 58.94 instead of the correct angle of 58.99. The examination sought to test Petitioner's ability to compute the length of a curve. Petitioner ignored the instruction and used a different calculation method that was not requested. As a result, no credit was given for the wrong answer. Petitioner did not demonstrate competency in the engineering principles being tested. Question #425 was a multiple-choice problem with ten parts. The responses were to be made from five alternatives for each part. Petitioner received eight of the ten possible points for the question. Only subparts (3) and (4) were answered incorrectly. Petitioner did not demonstrate entitlement to credit for his incorrect answer to subpart (3) of Question #425. He did not provide evidence to support his theory that his answer "D" (1,390 gallons) was within a reasonable margin of error and should be given credit. The correct answer is "E" (1,410 gallons). The necessary calculations reveal that the actual answer is 1,408 gallons. The question asks for the multiple choice selection which is "most nearly" accurate based on the information given in subpart (2). Based upon the problem itself, Petitioner's additional input regarding temperature and expansion possibilities are without merit. The problem was not solved as presented. Petitioner did not demonstrate his ability to properly calculate the amount of substance occupying a particular volume. Subpart (4) of Question #425 deals with the symbols for roadway materials. The candidates were expected to select one of the listed materials as the one most likely used at a particular stage of roadway construction. Petitioner was unable to reference the Highway Capacity Manual when answering this question because the original instructions in the Professional Engineer Candidate Information Booklet instructed candidates that the only three-ring binder book allowed into the exam was the Standard Building Code. Although the decision prohibiting the entry of the Highway Capacity Manual into the examination room was changed prior to the exam, Petitioner was not alerted in time to have it available for his use. Prior to final hearing, Petitioner contended that if he had been given sufficient notice, he could have used the Highway Capacity Manual to define the symbols in subpart (4) of Question #425. At final hearing, Petitioner stated the answer could be in that manual or one of the other handbooks in the same series. The Highway Capacity Manual does not contain definitions for the symbols set forth in subpart (4). The Asphalt Handbook may contain such symbols. This reference would have been allowed into the examination even prior to the changed ruling on references contained in three-ring binders. The Hearing Officer was unable to find all of the symbols in subpart (4) in the pages provided by Petitioner. Petitioner failed to demonstrate that the change in the Department's policy regarding references in three-ring binders affected his ability to correctly answer subpart (4) of Question #425. He should not be given credit for his incorrect response on the answer sheet.
Recommendation Based upon the foregoing, it is RECOMMENDED: The Department should enter a Final Order which denies Petitioner's challenges to Questions #124 and #425. The exhibits marked "confidential" should remain sealed and not open to public inspection. DONE and ENTERED this 12th day of November, 1992, at Tallahassee, Florida. VERONICA E. DONNELLY 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 November, 1992. APPENDIX Petitioner's proposed findings of fact are addressed as follows: Accepted. See HO #2. Accepted. See Conclusions of Law. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. Contrary to fact. Rejected. Contrary to fact. Accepted. See HO #6. Accepted. Rejected. Contrary to fact. See HO #14. Accepted. Accepted. Rejected. Argumentative. Rejected. Contrary to fact. See HO #9. Rejected. Contrary to fact. See HO #15. Rejected. Contrary to fact. See HO #14. There was no number 20 in Petitioner's findings. Rejected. It was Petitioner's responsibility to meet this burden. Rejected. Improper argument. Rejected. Argument as opposed to factual finding. Rejected. Contrary to fact. See HO #23. Rejected. Speculative and contrary to evidence. Accepted. Accepted, except for the disadvantage issue. Speculative. Rejected. Contrary to fact. Rejected. Improper summary. Argumentative. Respondent's proposed findings of fact are addressed as follows: Accepted. See HO #2. Accepted. See Preliminary Statement. Accepted. Accepted. See HO #7. Accepted. See HO #9. Accepted. See HO #12. Accepted. Accepted. See HO #11 and #14. Accepted. See HO #15. Accepted. See HO #18-#19. Accepted. See HO #23. COPIES FURNISHED: Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Angel Gonzalez, Executive Director Board of Professional Engineers 1940 North Monroe Street Tallahassee, FL 32399-0792 Russell A. Ferlita 1220 LaBrad Lane Tampa, FL 33613 Vytas J. Urba, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-07950
The Issue The issue presented for decision herein is whether or not the Petitioner successfully completed the answers posed on the April, 1987 professional engineer's examination.
Findings Of Fact Petitioner took the April, 1987 professional engineering examination and was advised that he failed the principles and practice portion of the examine. His raw score was 45 points and the parties stipulated that he needed a minimum raw score of 48 points to pass the examination. In his request for hearing, Petitioner challenged questions 120, 123 and 420. However, during the hearing, he only presented testimony and challenged question 420. Question 420 is worth 10 points and is set forth in its entirety in Petitioner's Exhibit Number 1. For reasons of test security, the exhibit has been sealed. Question 420 requires the examinee to explore the area regarding "braced excavations" and explores the principles involved in such excavations. Question 420 requires the examinee to calculate the safety factor for a braced excavation including the depth of excavation which would cause failure by "bottom heaving". Petitioner, in calculating the safety factor, made a mathematical error when he incorporated the B-prime value calculation which was inserted into the equation in making his calculations. Question 420 does not direct the applicant to apply the calculations to either a square excavation or to a rectangular excavation. Petitioner assumed the shape of the excavation to be square and calculated the factor of safety according to that assumption. In assuming the square excavation, Petitioner did not make the more conservative calculation that will be required in making the safety factor calculation for a rectangular excavation. In this regard, an examination of Petitioner's work sheet indicates that he referenced the correct calculation on his work sheet but the calculation was not transferred to or utilized in the equation. Respondent utilizes the standard scoring plan outline, which is more commonly known as the Items Specific Scoring Plan (ISSP) which is used by the scorers in grading the exam. The ISSP provides a scoring breakdown for each question so that certain uniform criteria are met by all applicants. For example, four points are given for a correct solution on a specific question regardless of the scorer. This criteria is supplied by the person or persons who prepared the exam. The criteria indicates "in problem-specific terms, the types of deficiencies that would lead to scoring at each of the eleven (0-10) points on the scale". The ISSP awards six points on question 420 when the applicants meets the following standards: "all categories satisfied, applicant demonstrate minimally adequate knowledge in all relevant aspect of the item." ISSP awards seven points on question 420 when the applicant's answer meets the following standard: "all categories satisfied, obtains solution, but chooses less than optimum approach. Solution is awkward but reasonable". The ISSP awards eight points on question 420 when the applicant's answer meets the following standards: "all categories satisfied. Errors attributable to misread tables or calculating devices. Errors would be corrected by routine checking. Results reasonable, though not correct". The ISSP awards nine points on question 420 when the applicant's answer meets the following standard: "all categories satisfied, correct solution but excessively conservative in choice of working values; or presentation lacking in completeness of equations, diagrams, orderly steps in solution, etc." The ISSP criteria for awarding nine points as to question 420 clearly requires that the Petitioner calculate the correct solution without mathematical errors. The Petitioner's answer was not correct regardless of the assumption as to the shape of the excavation since he made a mathematical error. The ISSP criteria for awarding eight points as to question 420 allows Petitioner to calculate the answer with mathematical errors with the requirements that the results are reasonable. Petitioner made a mathematical error although his result was reasonable. His answer fits the criteria for the award of eight points in conformity with the ISSP criteria. Petitioner received six points for his answer to question 420 whereas he is entitled to an award of eight points.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Respondent enter a Final Order determining that Petitioner failed the principles and practice portion of the April, 1987 engineering examination. RECOMMENDED this 30th day of June 1988, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1988. COPIES FURNISHED: Glen E. Wichinsky, Esquire 900 Glades Road, 5th Floor Boca Raton, Florida 33431 Michael A. Mone', Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Allen R. Smith, Jr. Executive Director Department of Professional Regulation, Board of Professional Engineers 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Petitioner is an applicant for licensure by examination to practice architecture in Florida. The exam consists of two parts: the written part is given in December of each year and the site and design problem is given in June of each year. Todaro graduated from Ball State University, Muncie, Indiana in 1977 and had met the requirements for admittance to the licensure examination. Todaro took the design and site planning portion of the national architectural exam in June, 1980. This consists of a 12 hour sketch problem involving the design of a structure by the applicant, including requirements for placing the structure on the site, elevations, building cross-sections, facades, and floor plans. The exam is prepared by the National Council of Architectural Registration Boards (NCARB) and is used by all states. Pre-test information supplied to each applicant includes a booklet providing the architectural program to be accomplished and the various requirements to which applicants are expected to apply themselves in order to receive a passing grade. At the examination, other information is supplied to enable the applicant to more adequately design the structure requested and perform the necessary technical architectural requirements. The purpose of the examination is to require the applicant to put together a design and site plan solution in response to a program submitted by NCARB and allows the national testing service grading the examination (and through them the Florida Board of Architecture) to determine whether the applicant is able to coordinate the various structural, design, technical, aesthetic, energy and legal requirements which were tested in written form in the other portion of the examination given in December. The grading of the site and design problem is accomplished by the review of the applicant's product by at least three architects selected by the various architectual registration boards of some 20 states who are then given training by NCARB to standardize their conceptions of the minimal competence required for a passing grade. Each architect-grader is then asked to review various solutions submitted by applicants on a blind grading basis. That is, the grader has no knowledge of the name or state of origin of the solution which lie is grading. The grader is instructed in how to consider the appropriate criteria. Graders are also instructed to make notations for areas of strength and of weakness on the grading criteria and then determine, based upon an overall conception of the applicant's submission, whether or not a passing grade is warranted. A passing grade is a three, and an applicant must receive at least two passing grades from the three architects who independently grade the applicant's submission. In the instant cause, Todaro received two 2's and one 3. He was therefore notified of his failure to pass the examination and of his right to this hearing. While Petitioner established that an effort had been made on his part to comply with the instructions, it is clear that in several material areas he failed to achieve sufficient clarity of presentation, particularly as to adequate consideration to grading and site planning, adequate consideration to marking elevations on his floor plans and adequate notation regarding the type of materials to be used in his elevations, floor plans, and wall sections. In general Todaro failed to place within his solution adequate information to allow the graders to determine that his program could be used; he failed to synthesize the information which he had learned in his educational process, in such a manner as to prepare adequate plans to respond to the requirements of good architectural practice in the formulation of design and site plans.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the petition of Stephen Todaro to change his grade on the June, 1980, site and design architectural examination be denied. DONE and ENTERED this 8th day of January, 1981, in Tallahassee, Florida. H. E. SMITHERS Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1981. COPIES FURNISHED: Stephen A. Todaro 1507 N. E. 5th Avenue Ft. Lauderdale, Florida 33304 John J. Rimes, Esquire Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32301
