The Issue The issue in this case is whether Florida Administrative Rule 61G15-22.011(2) is an invalid exercise of delegated legislative authority.
Findings Of Fact Petitioner Peter J. Singhofen is a licensed professional engineer in the State of Florida. He is the President and sole stockholder of Petitioner Streamline. In the 1980’s, Mr. Singhofen had a need for and developed engineering software that specialized in stormwater management for the terrain found in Florida. The software had to be specific to Florida because the terrain in the state is different from the terrain in many other parts of the country, and the Florida Statutes and rules governing stormwater management are some of the most stringent in the country. The software that Mr. Singhofen developed uses the Interconnected Channel and Pond Routing model (ICPR). This system performs complex calculations utilized in stormwater management and planning. It was the first proprietary model to be formally reviewed and accepted as a nationally accepted hydraulic model. ICPR is also extensively used by local and state government agencies throughout Florida, both to review stormwater permit applications as well as for the development of stormwater management master plans. Some of the users of Petitioners’ software are the Southwest Florida Water Management District, Department of Environmental Protection, South Florida Water Management District, St. Johns Water Management District, and Department of Transportation. Indeed, ICPR may be the most popular program of its type in the State of Florida. Streamline sells the stormwater management software and offers training and technical support for the software it sells. Clearly Petitioners have a direct financial interest in the engineering software they developed and own. As part of its business, Streamline conducts eight-to- ten workshops each year. Many of the state and local agencies that use ICPR send their engineers to these training programs. These workshops take three days. The first two days consist of intense lectures supported by hands-on exercises on computers provided by Petitioners. On the third day participants perform a "real world" project, using aerial photographs and survey notes to work on the project. The evidence was clear that these workshops are not “shill” presentations that are tantamount to product promotions or advertisements. Florida Statutes require licensed professional engineers to obtain a minimum of four professional development hours in the licensees' area of practice each biennium, or two hours per year. The Board approved Streamline as a CE provider during the 2001-2003 and 2003-2005 bienniums. However, Streamline's application for approval for the 2005-2007 biennium was denied as a result of amendment to Florida Administrative Code Rule 61G15-22.011(2), effective August 8, 2005. The amendment to the Rule in question reads as follows: . . . The continuing education provider shall not have any financial or commercial interest, direct or indirect, in any technology that is the subject of the instruction. The denial, and thus the Rule, has the potential to affect Petitioners’ substantial interests in its product since their training can no longer qualify for CE credits for the engineers who need training and technical support in order to better use this complex software. The Notice of Rulemaking published in the Florida Administrative Weekly listed the authority for the Rule as Section 471.017(3), Florida Statutes. Section 471.017(3), Florida Statutes, grants the Board rulemaking authority and requires that the CE rules be consistent with the guidelines of the National Council of Examiners for engineering and Surveying (NCEES) for multijurisdictional licensees. The Notice of Rule Development published in the Florida Administrative Weekly, as well as the Notice of Rulemaking, stated the purpose and effect of the Rule was to include a prohibition of conflict of interest as an added requirement for Board approval of CE providers. The same reason was provided in the Additional Statement to the Secretary of State under the Statement of Facts and Circumstances Justifying Proposed Rule. However, there was no discussion or finding by the Board prior to engaging in rulemaking that a CE provider who taught about technology over which he or she had a commercial interest would be engaging in a conflict of interest. In fact, the NCEES guidelines do not contain such a prohibition. According to the Board’s Director, the statement that the purpose and effect of the Rule was to avoid a conflict of interest was "erroneous" and that "it was erroneous three times if it was published three times." Indeed, other than minor references in various minutes of Board meetings, there was very little official Board discussion about the Rule prior to its adoption. The evidence on the rationale behind the Rule showed that there was general concern by the Board over prohibiting “shill” CE courses that were nothing more than product promotions or advertisements. The fact that the published purpose of the Rule was erroneous is a material failure to follow the rulemaking process since notice to the public of the Rule’s purpose is an important aspect of rulemaking. Notably, the Board does not directly approve individual courses. It approves CE providers. Under the Rule the courses must be offered or sponsored by an approved CE provider. NCEES model rules do recognize that a governmental authority may approve CE providers. In Appendix C, the guidelines indicate that provider approval be contingent upon the provider permitting a Board to attend courses and review course material to determine whether the course meets the standards of the Board. In the process of applying for CE provider status, the Board requires the applicant to provide course descriptions, syllabuses, and a list of courses intended to be provided. Section 456.025(7), Florida Statutes, mandates that: [e]ach board . . . shall establish, by rule, a fee not to exceed $250 for anyone seeking approval to provide continuing education courses or programs and shall establish by rule a biennial renewal fee not to exceed $250 for the renewal of providership of such courses. The fees collected from continuing education providers shall be used for the purposes of reviewing course provider applications, monitoring the integrity of the courses provided, covering legal expenses incurred as a result of not granting or renewing a providership, and developing and maintaining an electronic continuing education tracking system. Florida Administrative Code Rule 61G15-22.011 provides that: The Board retains the right to audit and/or monitor courses [61G15-22.011(7)], which the guidelines require the provider to permit; The Board retains the right to review course materials [61G15-22.011(7)], which the guidelines require the provider to supply; The provider must provide a description of the type of courses or seminars the provider expects to conduct [61G15- 22.011(3)(a)] and a sample of intended course materials [61G15-22.011(3)(d) and the course curriculum [61G15-22.011(3)(f)], which the guidelines require a provider to supply; The provider must demonstrate the education and/or experience necessary to instruct engineers in the conduct of their practice [61G15-22.011(2)], which reflects the guideline requirement that providers ensure instructors are qualified; The provider must list anticipated locations to conduct the course [61G15- 22.011(3)(3)], which the guidelines require the provider to supply after the course is presented. Based upon information an applicant has provided, the Board has in the past denied applications for CE providers proposing to offer "shill" courses. Additionally, an existing rule of the Board, as well as NCEES guidelines, specifically provides that equipment demonstrations or trade show displays do not qualify as continuing education activities. See Fla. Admin. R. 61G15- 22.005. The evidence was not clear on how denial of CE provider status, because the provider had a financial interest in the technology which is the subject of a CE course, would prohibit “shill” courses without limiting otherwise legitimate CE courses such as the one here. Indeed, the most logical person to present a course on the software at issue here would be Petitioners, since they are the developers of the software. The NCEES guidelines at Section 2 set forth model rules for continuing professional competency. NCEES guideline 2B4 defines course/activity as any qualifying course or activity with a clear purpose and objective that will maintain, improve, or expand the skills and knowledge relevant to the licensee's field of practice. Rule 61G15- 22.002(5) defines course/activity as any qualifying course or activity with a clear purpose and objective that will maintain, improve or expand the skills and knowledge relevant to the licensee's area of practice. Clearly, Petitioners’ workshops meet these definitions. NCEES guideline 2C sets forth the ways licensees can earn the necessary CE credit through patenting inventions, active participation as an officer in professional or technical societies, authoring published papers, articles, books or accepted licensing exam items, teaching or instructing college courses or continuing education courses, completion of college courses, CE courses, correspondence, televised, videotaped and other short courses or tutorials, seminars, in-house courses, attendance at workshops, professional and technical presentations made at meetings, conventions or conferences. Similarly, Florida Administrative Code Rule 61G15-22.003, sets forth qualifying activities for the area of practice requirements and generally lists the same types of activities as the NCEES guidelines. Petitioners’ course specifically falls within both the NCEES guidelines and the Board’s rules defining qualifying activities for CE credit. Thus, the Board’s amendment to Florida Administrative Code Rule 61G15-22.011 results in a qualifying activity being excluded from such recognition, and thereby is inconsistent with NCEES guidelines. Such inconsistency is outside of the Board’s rulemaking authority and the amendment to Florida Administrative Rule 61G15-22.011(2) is an invalid exercise of delegated legislative authority.
Findings Of Fact Respondent Eloisa Sacerio has been employed by Petitioner as a classroom teacher for approximately 20 years pursuant to a continuing contract. Respondent is certified to teach Spanish in kindergarten through 12th grade, elementary education, English for Speakers of Other Languages, English, and middle school. Respondent has primarily taught Spanish. During that 20 years of service, she has been assigned to approximately 11 different work sites due to Respondent being "surplused" from site to site. Surplusing is a contractual procedure that arises when there are not enough students to fill a class for an elective subject. Spanish is an elective subject. Respondent's first five years of service were at the elementary school level. During these first five years, her performance was satisfactory. During the following 13 years, Respondent taught at three different middle schools. Her performance at the middle school level was "mixed" in that she had some performance problems at two of those schools. Respondent experienced some difficulties in her teaching performance during the 1987-88 school year and a portion of the 1988-89 school year when she was teaching at McMillan Middle School. Although she brought her teaching skills up to an acceptable level thereafter, she was surplused from McMillan at the end of the 1991-92 school year because not enough students signed up for her classes. She was assigned to the elementary school level for the 1992-93 school year since she was trained and certified to teach at the elementary school level and had taught at that level without difficulty. For the next two years, Respondent was assigned to Coral Reef Elementary School and Howard Drive Elementary School as a teacher of Spanish as a Second Language (Spanish SL) and Spanish for Spanish Speakers (Spanish S). A teacher assigned to two schools is an itinerant teacher. One of those schools is designated as the teacher's home school, the one primarily responsible for evaluating the teaching performance of an itinerant teacher such as Respondent. Coral Reef was the home school for Respondent. It is not unusual for a Spanish teacher to be an itinerant teacher. At the beginning of the 1992-93 school year, Respondent attended a faculty meeting at Coral Reef. At that meeting, she received a faculty handbook which contained School Board rules, policies, procedures and labor contract provisions. Howard Drive also gave Respondent its faculty handbook at the beginning of the school year. Just prior to the 1992-93 school year, Hurricane Andrew struck Dade County. Its aftermath impacted both Coral Reef and Howard Drive, affecting scheduling for the schools and the teachers. Coral Reef started the school year operating on double shifts paired with Perrine Elementary School. Many schedule adjustments were made until well into the school year. Respondent was given half as much planning time as the other Spanish teachers at Coral Reef since she taught there only half of the school day. Respondent filed a grievance alleging insufficient planning time. The grievance was resolved during a meeting between the administration of Coral Reef and members of the teacher's union to which Respondent belongs. The schedule Respondent had grieved was no longer in place and had been revised prior to that meeting. Respondent's performance in the classroom during the 1992-93 and 1993- 94 school years was evaluated utilizing the Teacher Assessment and Development System (TADS). TADS is an objective instrument used to observe minimal teaching behaviors. The categories of teaching behaviors evaluated by TADS are preparation and planning, knowledge of subject matter, classroom management, techniques of instruction, teacher-student relations, and assessment techniques. These six categories are evaluated during a formal class observation of the classroom teacher. A seventh category, professional responsibility, reflects the duties and responsibilities of a teacher in complying with School Board rules, contractual provisions, statutes and regulations, site directives and the policies and procedures that deal with record keeping and attendance. The union filed grievances on behalf of Respondent with the TADS Monitoring Committee (TMC) for ten or eleven formal observations of Respondent's teaching during the 1992-93 and 1993-94 school years. The TMC was established by contractual stipulation between the union and the School Board. The committee was set up to monitor the TADS process for procedural irregularities, by reviewing only the records and the paper process resulting from a formal observation. It does not review the judgment of the observers who conducted the formal observation. Even after Respondent utilized the TMC process to scrutinize the formal observations of her, she was still found to be unacceptable in classroom management and techniques of instruction for both the 1992-93 and 1993-94 school years. On October 27, 1992, Respondent was formally observed in the classroom and rated unsatisfactory in techniques of instruction by Joe Carbia, principal of Coral Reef. The students in the class did not appear to possess the preliminary skills or background to be successful in the lesson being taught and did not understand the material. The lesson observed had no beginning and no closure. It ended simply by Respondent telling the students to do their homework. The entire class period was spent trying to elicit answers to questions taken from the workbook although none of the students were able to answer the questions presented by Respondent. Respondent was prescribed activities to help her overcome her deficiencies in her techniques of instruction. She was to observe two other Spanish SL teachers as scheduled by the assistant principal Valerie Swanson in order to give Respondent an opportunity to observe good instructional techniques. She was to read, discuss and implement guidelines from the TADS Prescription Manual. She was to meet with Swanson to receive assistance on the materials that dealt with teaching techniques. Carbia held a post-observation conference with Respondent and discussed the deficiencies observed and the prescribed activities. Prescriptive activities are directives. Swanson met with Respondent to offer support and to discuss the various prescriptive activities assigned to Respondent as a result of the October 27, 1992, observation. Specifically, Swanson met with Respondent on November 1, 10, 16, 18 and 25, 1992. Swanson answered any questions posed by Respondent. On November 14, 1992, Respondent was present at Coral Reef but failed to appear to teach one of her regularly-scheduled classes. Principal Carbia taught the class in Respondent's place. Elective teachers are required to check in with the classroom teacher at the beginning of the class period. Respondent did not check in as she was required to do. Respondent's explanation was that when she went to her prior class, she was told by that classroom teacher that the students were watching a closed circuit television program so Respondent did not have to teach that class that day. Respondent concluded that her next class would also be watching the program. Respondent never asked anyone if that were the case. Respondent's assumption was incorrect. Carbia informed Respondent that the class rules she sent home to students' parents were inappropriate for elementary school students. These rules were the same class rules Respondent used when she taught middle school. Respondent was directed not to send the parents any communication without prior administrative approval. Respondent sent subsequent communications to parents without prior approval. Parents complained to the administrators at Coral Reef about Respondent's teaching, both orally and in writing. Some children did not like Respondent's Spanish class and did not want to go to school because they were in Respondent's class. Those children were crying, getting stomachaches and going home upset. When advised by administrators of these complaints, Respondent replied that the students were spoiled and not used to studying. She accepted no responsibility for the problems the children experienced. Conferences were held with complaining parents, Respondent, and the administration at Coral Reef concerning Respondent's grading policy. In these conferences, Respondent was unable to explain the grades she had given students. Carbia changed some students' grades because Respondent's gradebook did not justify the grades she had given the students. On November 12, 1992, Carbia held a conference-for-the-record with Respondent to address the parental complaints received by the Coral Reef administration regarding Respondent. Carbia gave Respondent copies of several written complaints he had received. The parents complained about Respondent's instruction, inappropriate grade level homework, and the manner in which Respondent dealt with the children. Respondent admitted that she screamed at the children. On November 25, 1992, Swanson held an informal conference with Respondent. She gave Respondent suggestions on how to organize her gradebook in a manner that would substantiate the grades Respondent gave her students. Conduct, class work, homework, and tests were to be specifically and clearly labeled in the gradebook for each student. On December 4, 1992, Respondent was absent. Respondent failed to comply with the directive contained in the Coral Reef Faculty Handbook to have emergency lesson plans on file in the main office at Coral Reef. Respondent is required by Petitioner and state law to have emergency lesson plans on hand. On December 10, 1992, Respondent was again formally observed in the classroom by Carbia and was rated unacceptable in knowledge of subject matter and techniques of instruction. Respondent was rated unacceptable in knowledge of subject matter because the lesson was taught at one cognitive level, i.e., the students were merely involved in recall activities. Respondent was rated unacceptable in techniques of instruction because twenty-five minutes of the thirty-minute class time was devoted to Respondent attempting to elicit responses from the students. The students could not give Respondent the correct answers, and she made no attempt to give feedback to the students. Respondent made no provision for closure to the lesson. The students exhibited a great deal of confusion regarding the activity and repeatedly requested clarification. Respondent offered no clarification. She only gave reprimands. Respondent was prescribed activities to help her in overcoming her deficiencies in knowledge of subject matter and techniques of instruction. She was directed to read, discuss and implement guidelines for improvement found in the TADS Prescription Manual. She was directed to observe two other classroom teachers' techniques of instruction. She was to meet with Swanson to receive assistance in understanding the reading materials and to discuss any questions she had regarding her observations of the other teachers. On or about December 17, 1992, a conference-for-the-record was held. Respondent was placed on prescription for Category VII of TADS, professional responsibilities. There was also a review of her performance on the formal observations of October 27 and December 10, 1992. Respondent was rated unacceptable in Category VII, because she failed to obey the directive to observe Ms. Navarro's Spanish SL class (she observed only part of the class), failed to attend her regularly-scheduled Spanish S class, sent home communications without prior administrative approval, did not maintain gradebooks which could be used to substantiate the grades she gave students, and did not have emergency lesson plans available in the office. Respondent was prescribed activities to help her overcome these professional responsibility deficiencies. Respondent was to read and review the Code of Ethics of the Educational Profession in Florida. Swanson continued to assist Respondent with her gradebook and emergency substitute folder. Respondent was to observe a master Spanish teacher, Rebecca Sosa at Kendale Elementary School. On February 8, 1993, Respondent was again formally observed by Carbia and was rated unacceptable in preparation and planning, knowledge of subject matter, and techniques of instruction. Respondent was rated unacceptable in preparation and planning because the lesson plan objective was not an instructional objective for Spanish SL but was only a listing of activities. No attempt was made by the teacher to make the lesson meaningful to the students. The only involvement of the students in the activity was limited to filling in blank items on two xeroxed worksheets. Respondent was prescribed activities to help her overcome her deficiencies in preparation and planning. Under the direction of Swanson, Respondent was to read and discuss the preparation and planning unit in the TADS Prescription Manual. Respondent was to review samples of other teachers' lesson plans. Respondent was rated unacceptable in knowledge of subject matter because the entire instruction was at one cognitive level, i.e., recall and responses. Respondent was prescribed activities to help her overcome her deficiencies in knowledge of subject matter. She was to read, discuss and implement the guidelines for improvement found in the TADS Prescription Manual. Respondent was also to observe other Spanish SL teachers and regular classroom teachers, as scheduled by Swanson. Respondent was rated unacceptable in techniques of instruction because there was no variety in her instruction. The materials used in the lesson were merely two xeroxed sheets with fill-in-the-blank recall items. The activities were not related to the instructional objectives. Several students in the class were confused by Respondent's instructions, but Respondent made no attempt to clarify. Respondent was prescribed activities to help her overcome her deficiencies in techniques of instruction. Respondent was to read and discuss the guidelines for improvement found in the TADS Prescription Manual. Swanson assisted Respondent in those prescriptive activities and was available for conferences regarding those activities. Carbia held a post-observation conference with Respondent to go over the prescription. Respondent was still exhibiting the same deficiencies as before. At the conference, Respondent gave no explanation for her failure to improve her performance. Respondent was told that she had not incorporated in her teaching the prescriptions previously given to her. On March 15, 1993, a conference-for-the-record was held with Respondent. Although Respondent had been provided assistance to help her overcome the deficiencies in her gradebook, her gradebook remained unacceptable. Respondent was placed on prescription for Category VII and was prescribed activities to assist her. Respondent was to submit her gradebooks to Swanson on a weekly basis for review. She was also provided with samples of good gradebooks. On March 16, 1993, Respondent was formally observed by Swanson and Wally Lyshkov, a foreign language supervisor. That formal observation was an external review. In an external review, there are two certified observers: one from the school site and the other from outside the school site. The observers complete the TADS observation forms independently. Respondent was rated unacceptable in knowledge of subject matter, techniques of instruction, and assessment techniques. Respondent was rated unacceptable in knowledge of subject matter because there was no logical sequencing of the material presented in the observed lesson. The lesson was based on furniture vocabulary. There was no attempt made by Respondent to contextualize the vocabulary. The lesson was at one cognitive level, i.e., simple choral repetition. Respondent was rated unacceptable in techniques of instruction and assessment techniques because the lesson lacked sequence and was inappropriate for that grade level. Although the students were confused by Respondent's instruction, she provided no clarification to the confused students. Further, there was no evidence of formal assessment of the students in her gradebook or work folders. Respondent was prescribed activities. She was directed to read and discuss certain materials. A post-observation conference was held with Respondent to discuss the prescriptive activities. Thereafter, Swanson met with Respondent on numerous occasions to assist her with these prescriptive activities. On May 4, 1993, Respondent was formally observed by Florine Curtis, the principal of Howard Drive, and Diana Urbizu, an outside observer. Respondent was rated unacceptable in classroom management during that external review because the class was chaotic. Respondent appeared unaware that several students were off-task while she taught the lesson. The students were not properly instructed because of the lack of classroom management. After the observation, Urbizu and Curtis discussed the types of activities that would assist Respondent to improve her performance. Curtis wrote the prescription to help Respondent overcome her deficiencies. Respondent was directed to read certain materials, to complete a specified activity and submit the activity to Curtis, to observe the other Spanish teacher at Howard Drive conduct a Spanish SL class, to write a brief summary of her observation, and to develop a plan for effective classroom management with suitable consequences and submit the plan to Curtis for review. Curtis held a post-observation conference with Respondent and discussed with her all of the prescribed activities and areas of deficiency. Respondent was given the opportunity to explain her performance. Curtis submitted the rough draft of the TADS observation form to Dr. Joyce Annunziata to review. Annunziata reviewed the form to assure that all the deficiencies were procedurally correct and faxed it back to Curtis with her notations. Annunziata did not make any substantive changes to the evaluation. Curtis worked informally with Respondent at Howard Drive to help Respondent improve her performance. Respondent could not be placed on a second formal prescription at Howard Drive since she was on prescription at Coral Reef, Respondent's home school. Spanish teachers at both schools are not assigned a classroom. Since elementary school students remain in the same classroom, these teachers travel from classroom to classroom and conduct a thirty-minute lesson. Respondent wanted the classroom teachers to manage the classroom while she conducted the Spanish lesson. Classroom management is always the responsibility of the teacher conducting the lesson. It does not matter whether the teacher travels to the classroom to conduct the lesson or whether the students travel to the teacher. On May 28, 1993, a conference-for-the-record was held to notify Respondent of her unacceptable annual evaluation for the 1992-93 school year and to remind Respondent of the negative implications for her future employment with Petitioner if she failed to remediate her deficiencies. Respondent indicated in the conference that the prescriptions had been a waste of time. She indicated that her only motivation for getting off prescription was to transfer to another school since she never wanted to teach at Coral Reef. During the 1992-93 school year, Swanson, while performing her routine duties, informally observed Respondent in the classroom. During these occasions, Respondent was observed yelling at the students and using a negative approach to teaching. Respondent would demean children, make derogatory remarks, and call them stupid. Curtis informally observed Respondent in the classroom during the 1992-93 school year. During these occasions, Respondent was observed to lack classroom management skills and to use inappropriate methods of instruction. Respondent's classroom was always noisy. Her method of instruction was to "teach to a test" rather than to teach the objective of the lesson. Respondent spent the week going over material that would be on the Friday test. Curtis held numerous informal conferences with Respondent to help Respondent improve her performance. Curtis suggested specific classroom management skills and techniques of instruction. She also suggested that Respondent properly maintain her gradebook by labeling the entries. Aida Helbig, the Bilingual Supervisor for Foreign Language Skills, visited Respondent at Coral Reef and Howard Drive in order to help Respondent improve her performance. During the 1992-93 and 1993-94 school years she met with Respondent nine times. Helbig informally observed Respondent to be unsatisfactory in classroom management and techniques of instruction. Audrey Dillaman taught third grade at Coral Reef during the 1992-93 school year. Respondent taught Spanish SL to Dillaman's class. Respondent's instruction was composed of primarily worksheets and conjugating verbs which was inappropriate for the grade level. The students and parents became frustrated, and the parents withdrew their children from Respondent's class. Only seven of Dillaman's students remained in Respondent's class at the end of the second grading period although 18 had started out at the beginning of the year. Respondent wrote in cursive on the blackboard for third grade students who had not yet learned to read or write cursive. Respondent expected first grade students who had not learned to read English, to read Spanish words from the blackboard and charts. The goal of teaching Spanish to elementary school students is to expose them to a foreign language. The emphasis is on an oral program. The sequence of learning a language is oral, reading, and then writing. Respondent's emphasis was on a written program. Respondent required second- grade students to have a Spanish/English dictionary although the district curriculum does not. In September of 1993, Swanson had a discussion with Respondent concerning written communications sent home to parents. Swanson suggested methods Respondent could use to communicate with parents. Swanson even typed a sample letter for Respondent which explained Respondent's classwork to parents. On October 1, 1993, Respondent was formally observed in the classroom by Carbia and rated unacceptable in classroom management and techniques of instruction. Respondent was unacceptable in classroom management because more than fifty percent of the class period was spent passing out and collecting an assignment, with much confusion and disorder. Sixty to seventy percent of the students were off-task, and Respondent did not redirect those off-task students. Instead, Respondent used verbal threats to address inappropriate behavior. Respondent was rated unacceptable in techniques of instruction because the only instructional material used was a xeroxed sheet. The only instructional methodology used was a game of questions and answers among students. During the game, the students were not clear about what team they were on. There was a great deal of inattention, stumbling, and wrong answers during the game. Respondent did not attempt to clarify the students' confusion. Respondent was prescribed activities to help her overcome her deficiencies in classroom management and techniques of instruction. Respondent was to visit other Spanish SL classes at Coral Reef and Kendale Elementary School. Respondent was to review appropriate TADS prescriptive activities with Swanson. Coral Reef and Howard Drive continued to receive parental complaints about Respondent's performance. At Coral Reef students dropped Respondent's classes, and parents requested that their children be switched to another Spanish teacher. Respondent's gradebook continued to be a problem. These concerns were discussed at a November 1, 1993, conference-for-the-record. On November 2, 1993, Respondent was formally observed in the classroom by Swanson and rated unacceptable in classroom management and techniques of instruction. She failed to obey the directive to post her classroom behavior rules during the class time and failed to refer to her classroom rules until just prior to the end of the class time. Students were off-task and Respondent failed to redirect them. The students attended to Respondent only when individually asked a specific question. During the lesson Respondent did not mention the strengths and weaknesses of the students. The majority of the lesson was devoted to one-on-one teacher-to-student dialogue while the rest of the students were inattentive. There were no opportunities for the students to contribute ideas, make comments, or ask questions of the Respondent. Respondent was prescribed activities to help her overcome her deficiencies in classroom management and techniques of instruction. She was to visit other Spanish SL classes at Coral Reef and at Kendale Elementary School. Respondent was to review appropriate TADS prescriptive activities with Swanson. Swanson provided Respondent with the Competency Based Curriculum (CBC). During the 1993-94 school year, Petitioner began phasing in its CBC. The phasing in of this curriculum is not a factor that would effect the evaluation and assessment of teaching competency under TADS. In November 1993, Swanson discussed with her Respondent's gradebook. Swanson gave Respondent written instructions on how to set up her gradebook and class rules. However, Respondent's gradebook remained unacceptable throughout the 1993-94 school year. On December 2, 1993, Respondent was formally observed by Jean Moeller, assistant principal at Howard Drive, and was rated unacceptable in classroom management and techniques of instruction. Respondent was unacceptable in classroom management because she did not use non-verbal techniques to obtain the students' attention from the beginning of the lesson. During the first fifteen minutes of the lesson, i.e., half of the class period, students were off-task. Several of the students were involved in activities other than Spanish. There was no attempt by Respondent to redirect off-task behavior. Respondent was unacceptable in techniques of instruction because she used inappropriate teaching materials. Respondent had two xeroxed sheets in Spanish that were incorrectly utilized. She wrote English on the chalkboard and the students were required to copy English responses to some of the Spanish phrases on the xeroxed papers. The Spanish SL objectives avoid English translation activities. This is stated in the teacher's guide. At this level, children should be responding primarily in Spanish. Respondent was prescribed activities to help her overcome her deficiencies. Respondent was required to read the TADS Prescription Manual on classroom management. She was to make a list of non-verbal techniques that could be implemented in her class to effectively increase on-task behavior and submit the list to Moeller. She was to discuss her reading with Moeller. Respondent was to turn in her daily lesson plans to Moeller a week in advance from December 8, 1993, to January 12, 1994, on Wednesdays. Moeller recommended both Spanish teacher Grijalva and Spanish SL specialist Helbig as resources to assist Respondent in overcoming her deficiencies. Respondent was to observe Grijalva in the classroom. Grijalva is an excellent Spanish teacher who has good classroom management skills and techniques of instruction. Grijalva also knows the curriculum and utilizes appropriate assessment techniques. Grijalva is a specialist in CBC and has trained teachers in CBC. Grijalva provided assistance to help Respondent improve her performance. Respondent observed Grijalva playing a tic-tac-toe game with her students. Respondent attempted to play the same game with her students. However, the game as Respondent structured it resulted in the brighter students repeatedly asking difficult questions of the same student that was least likely to know the answers to the questions. When that student did not know the answers, Respondent made demeaning comments to the student. The student put her head down and cried. On December 8, 1993, a conference-for-the-record was held with Respondent to address her performance, the continuing parental complaints about her performance, and her future employment with Petitioner. Respondent was reminded that she had been on prescription since October 1992 and continued to be unacceptable in classroom management and techniques of instruction. Respondent was given an opportunity to address all the concerns noted. Respondent's written explanation was not responsive to any of the concerns that came up at the conference. On January 27, 1994, Respondent was formally observed at Howard Drive by Principal Curtis and Mercedes Toural, an outside observer. Respondent was rated unacceptable in classroom management and techniques of instruction. Respondent did not have control of the classroom. The children appeared to be in control, and Respondent did not use strategies to prevent, identify, or redirect off-task behavior. Further, the lesson involved having an answer to a test item as opposed to being a lesson with an objective, an activity, and a means of assessment. Respondent was prescribed activities to help her overcome her deficiencies. Respondent was to read the TADS manual, complete written activities, and observe Grijalva. That external review was the second formal observation by Curtis. It occurred almost a year after the first formal observation done by Curtis. Respondent's performance continued to be deficient despite the guidance and assistance provided during that time. At Howard Drive, Respondent used food to reward and punish students in her class. The use of food to reward good behavior and/or to punish inappropriate behavior is a poor teaching technique. After the observation of January 27, 1994, Curtis met with Respondent informally on numerous occasions. Respondent remained deficient in classroom management and techniques of instruction for the 1993-94 school year. There was no improvement in her performance at Howard Drive. On April 29, 1994, there was an external review observation done by Margarita Alemany and by Carbia at Coral Reef Elementary. Carbia rated Respondent unacceptable in classroom management and techniques of instruction. Alemany rated Respondent unacceptable in knowledge of subject matter, classroom management, and techniques of instruction. Respondent was unacceptable in classroom management because a substantial number of students were off-task at different times, and students were inattentive. Respondent used no verbal techniques to redirect the students who were off-task and no techniques to maintain the attention of the students. Respondent was rated unacceptable in techniques of instruction because the only instructional material used was a xeroxed sheet entitled "First Grade Vocabulary of April 25." None of the students were able to read the sheet and provide correct responses. Respondent was prescribed activities to assist her in overcoming her deficiencies. Respondent, under the direction of Swanson, was to read, discuss, and implement guidelines for improvement found in the TADS Prescription Manual. On June 6, 1994, a conference-for-the-record was held at Coral Reef to review the annual evaluation and its consequences. Respondent over the two school years, 1992-93 and 1993-94, had numerous classroom observations and four external reviews. Respondent had been provided assistance to improve her performance by both the administration of Howard Drive and that of Coral Reef. Yet, Respondent remained unacceptable in classroom management and techniques of instruction for the 1993-94 annual evaluation. Respondent failed to turn in her gradebooks for the 1992-93 and the 1993-94 school years. Respondent was required to turn in her gradebooks from both school locations to the individual school at the end of each school year. This is required by School Board policy and was addressed in the end-of-the-year directives. Respondent kept the gradebooks in her possession until they were given to Petitioner on February 16, 1995. By that date, the gradebooks had been altered to include labeling and more grades which were not in the gradebooks when they were formally evaluated. During the 1992-93 and 1993-94 school years, many students withdrew from the Respondent's Spanish classes. Classroom teachers complained to the administrators of Howard Drive and Coral Reef concerning Respondent's rapport with the students, her classroom management techniques, and her methods of instruction. Respondent exhibited a negative approach to teaching that did not change over the two-year period. Her approach negatively impacted the Spanish program at both schools because students chose not to take Spanish if Respondent was their teacher. Respondent did not accept responsibility for any problems and deficiencies she had in the classroom. She always blamed others. Although Respondent completed all the prescribed activities, she did not incorporate what she learned into her performance. Petitioner provided substantial assistance to Respondent to help her improve her performance. She received assistance from the administrators of two schools and from other teachers and district personnel. For 1993-94 Respondent was assigned to teach the same grade levels as the prior year to allow her to build on her experiences from 1992-93. All the Spanish teachers at Coral Reef had the same planning time during 1993-94 in order to make it convenient for Respondent to get assistance from them. Yet, Respondent failed to communicate with and relate to her students to such an extent that she deprived them of a minimum educational experience. She also taught inefficiently and ineffectively and failed to comply with Petitioner's prescribed course of study using appropriate materials and methods.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in Petitioner's Amended Notice of Specific Charges as Corrected, sustaining Respondent's suspension without pay, and dismissing her from her employment. DONE and ENTERED this 2nd day of October, 1995, at Tallahassee, Florida. 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 2nd day of October, 1995. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 94-4316 Petitioner's proposed findings of fact numbered 2, 4-23, and 25-117 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 1 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law. Petitioner's proposed findings of fact numbered 3 and 24 have been rejected as being subordinate to the issues herein. Respondent's proposed findings of fact numbered 1-3 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 16 has been rejected as being irrelevant to the issues under consideration in this cause. Respondent's proposed findings of fact numbered 13 and 17 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Respondent's proposed findings of fact numbered 5, 8-12, 15, and 18 have been rejected as being subordinate to the issues herein. Respondent's proposed findings of fact numbered 4, 6, 7, 14, and 19-22 have been rejected as not being supported by the weight of the competent evidence in this cause. COPIES FURNISHED: Twila Hargrove Payne, Esquire Patricia D. Bass, Esquire Madelyn P. Schere, Esquire 1450 Northeast Second Avenue, Suite 301 Miami, Florida 33132 Ronald S. Lieberman, Esquire NationsBank Building, Penthouse 2 9350 South Dixie Highway Miami, Florida 33156 Mr. Octavio J. Visiedo Superintendent of Dade County School Board Suite 403 1450 Northeast Second Avenue Miami, Florida 33132-1308 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
Findings Of Fact The Petitioner has been employed by the Fire Department of the City of Tallahassee since 1981. Mr. Grice has obtained a Bachelor of Science degree with a major in sociology and a minor in corrections, which he maintains is sufficiently related to the "human resource management" type of degree as to constitute "fire related" training, so as to authorize his entry into the Supplemental Compensation Program under the above mentioned Rules. The Respondent is an agency of the State of Florida charged with promulgating and enforcing standards with regard to the profession of firefighting. It is charged with determining the qualifications for entrance into various certification programs and areas of licensure within the profession of firefighting. It was established by Mr. Stark that the major concentration area of "sociology" is not readily identifiable and applicable as "fire related" training and is not an enumerated major concentration of study qualifying one for entry into the Supplemental Compensation Program. It is a generalized course of study not involving significant education in subjects such as personnel management so as to constitute a course of study in the acceptable field of "Human Resource Management." It is not one of the educational areas enumerated in Rule 4A-37.73, Florida Administrative Code. It was also shown that the Petitioner does not otherwise have the requisite 18 semester hours or the 27 quarter hours of college course work to his credit which are readily identifiable and applicable as "fire related." The Petitioner attempted to employ as precedent a case involving a Mr. Birney Jordan who, in a similar proceeding, was determined to be qualified for this Supplemental Compensation Program. It was established, however, that that case is unrelated to the situation at bar and has no precedential value in the consideration of the Petitioner's application. Mr. Jordan's application was considered by a different governing board, the Fire Standards Council, with different standards applicable at the time he sought certification. Further, Mr. Jordan had sufficient credits in fire-related training and in the acceptable field of military science, to qualify for that program. The Petitioner has no military science credits appearing in his college transcript and took no military science courses. He had one course in military history, which is not a relevant area of study which would assist in qualifying him for the subject program. Thus no policy by the Respondent agency resulting in variant applications of the rules at issue has been demonstrated. Finally, it has been shown that the agency has adopted and followed a consistent policy of not admitting applicants to the Supplemental Compensation Program on the strength of a sociology degree alone. In short, it has not been established by Petitioner that he has sufficient numbers of hours in college course work which are readily identifiable and applicable as "fire related" training, so as to qualify him for entry into the Supplemental Compensation Program at issue.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the candor and demeanor of the witnesses, the evidence of record, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the application for qualification for supplemental compensation filed by Lawrence C. Grice be denied. DONE and ENTERED this 13th day of March 1987, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 13th day of March 1987. APPENDIX, CASE NO. 86-2460 Petitioner's Proposed Findings of Fact: The Petitioner's post-hearing submittal cannot be deemed to constitute Proposed Findings of Fact. In reality, the Petitioner's post-hearing pleading filed January 21, 1987, consists of argument concerning admissibility of certain items of evidence offered and argument concerning Petitioner's position as to the weight and credibility ascribed to that evidence. The Petitioner has submitted no Proposed Findings of Fact as such. Respondent's Proposed Findings of Fact: Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. COPIES FURNISHED: Lawrence C. Grice, Jr. 5632 Maple Forrest Drive Tallahassee, Florida 32303 Stephen C. Fredrickson, Esquire Office of Legal Services Department of Insurance 413-B Larson Building Tallahassee, Florida 32301 Honorable William Gunter State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Don Dowdell, Esquire General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300
Findings Of Fact L.B. Thanki received a degree in Civil Engineering at the University of Durham at Kings College, Newcastle Upon Tyne in the United Kingdom in 1956. Petitioner received a batchelor of law degree from Sardar Patel University (India) in 1967. This degree is the equivalent of two years study in law. The degree obtained from the University of Durham is not the equivalent of the degree received from an ABET approved university in the United States because it lacks 16 credit hours in Humanities and Social Sciences. Petitioner presented no evidence that his degree from the University of Durham or the curriculum he completed at any other university included the missing 16 hours in Humanities and Social Sciences. Petitioner presented a certificate (which was not offered into evidence) that he had completed a course in computer services meeting the board's evidentiary requirements of computer skills.
Recommendation Based on foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered denying Petitioner's application for licensure by examination as an engineering intern. RECOMMENDED this 10th day of May, 1991, in Tallahassee, Leon County, Florida. N. AYERS 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 10th day of May, 1991. COPIES FURNISHED: B. Thanki 1106 East Hillsborough Avenue Tampa, Florida 33604 Edwin A. Bayo, Esquire Assistant Attorney General Department of Legal Affairs The Capitol, Suite LL04 Tallahassee, Florida 32399-1050 Carrie Flynn, Acting Executive Director Florida Board of Professional Engineers Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0755 Jack L. McRay, General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact On or about August 30, 1988, the Petitioner, Gregory W. Isphording, applied for licensure as a Florida professional geologist without written examination under Section 492.105(2)(c), Florida Statutes (1987). The Petitioner has an undergraduate degree in geology (as well as some credit towards a master's degree). He also has 3.9 qualifying years of work experience in the field of geology since earning his undergraduate degree. The Petitioner's work experience while he was pursuing his undergraduate degree between May, 1979, and May, 1984, was unusual. His father, Dr. Wayne C. Isphording, a Florida licensed professional geologist and a Ph.D. and professor of geology at the University of South Alabama, which the Petitioner was attending, employed his son in his firm, Tierra Consulting, Inc. Through this unusual opportunity (and even before that, as a result of being raised in the home of a geology professor), the Petitioner had opportunities for valuable practical learning and experience not available to many other geology students. He was trained under the direct supervision of his father in drilling, sampling and analysis techniques. When the Petitioner became proficient in these techniques, his father began to supervise him less and rely more and more on the Petitioner to perform these tasks accurately and effectively. By approximately May, 1980, at the end of the first year of his employment, the Petitioner's father began to rely on the Petitioner to train other students employed by Tierra Consulting. The Petitioner's employment continued through May, 1984, when he was graduated with a degree in geology. During his undergraduate years, the Petitioner worked full-time for his father's firm, working an average of 50 hours a week. Although his grades suffered as a result of his long hours, the Petitioner was convinced that the experience he was receiving in the field was more important than his grades and would land him a better, more responsible, and higher paying job. His work experience is indeed impressive for an undergraduate. It includes topographic and geologic surveying of a mine site in the Boqueron Valley in the Republic of Panama, assisting in field and laboratory analyses on the U. S. Army Corps of Engineers environmental assessment of D'Olive Bay, Alabama, environmental and geologic and topographic investigation of a SMACKO Drilling Corp. oil well site in southern Mobile County, Alabama, and responsibility for topographically mapping a portion of the Three Mile Creek flood plain for use in connection with litigation against the City of Mobile. During his employment in his father's firm during his undergraduate years, the Petitioner also had the opportunity to collaborate with his father on, and coauthor, several abstracts presented at meetings of various professional associations. (These were not published papers in the strict sense in that they did not undergo the lengthy, rigorous critical review associated with formal published academic papers.) Despite the Petitioner's impressive work experience, he was unable to prove that he was involved in the synthesis and application phases of the work of a professional geologist. His was more the work of a technician; his father was available to synthesize and apply the data that his son collected. In this sense, the Petitioner's relationship with his father was much like the relationship between a master craftsman and his apprentice. To the extent that he did participate in the synthesis and application of the data he collected, it appears that his participation was in the nature of private study under the tutelage of a college professor. As such, his work was an adjunct to his formal education. Although the Petitioner's knowledge and understanding of geology increased over time during his undergraduate years, it was not proven that the Petitioner was in a position to engage in the synthesis and application required of one who assumes the role of a geologist working under the supervision of a licensed professional geologist (analogous to a journeyman working under the supervision of a master) before his formal education was completed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Professional Geologists enter a final order denying the application of the Petitioner, Gregory W. Isphording, for licensure as a Florida professional geologist. RECOMMENDED this 28th day of June, 1989 in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 June, 1989. COPIES FURNISHED: Gregory W. Isphording, pro se 8819 Orange Oaks Circle Tampa, Florida 33637 Clark R. Jennings, Esquire Department of Legal Affairs The Capitol Tallahassee, Florida 32399-1050 Allen R. Smith, Jr. Executive Director Board of Professional Geologists 1940 North Monroe Street Tallahassee, Florida 32399-0750 Kenneth Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0729
The Issue The ultimate issue to be resolved in this proceeding is whether the Petitioner should be awarded a doctor of education degree by Florida State University. Petitioner contends that he properly completed the requirements for the degree, that a valid offer of the degree was made to him, that he accepted the offer, and that the degree was then wrongfully withheld. The university contends that Petitioner did not meet the requirements for the degree and that no valid, enforceable offer of it was made to Petitioner.
Findings Of Fact In 1976, Petitioner was admitted into the doctoral program in biology at Florida State University. He applied to transfer to the science education program and was admitted to the doctoral program in science education within the College of Education at Florida State University on June 24, 1977. He was pursuing a doctor of philosophy (Ph.D.) degree. Among the requirements that Petitioner needed to meet in order to receive the degree were successful completion of a diagnostic examination, completion of thirty-six resident hours of course work, course work in the field of statistics, a preliminary examination, approval of a prospectus for a doctoral dissertation, and presentation of an acceptable dissertation and a successful dissertation defense. Following his admission into the Ph.D. program in science education, a supervisory committee was established for the Petitioner, and a major professor was appointed. It was the major professor's and supervisory committee's function to monitor Petitioner's progress and ultimately to make a recommendation as to whether petitioner should be awarded a degree. By November 7, 1980, Petitioner had completed all of the requirements for a Ph.D. degree except for the presentation of his dissertation and the dissertation defense. These were scheduled to be conducted by the supervisory committee on November 7, 1980. Petitioner had been advised by at least two members of the committee that he might not be ready to present and defend his dissertation. Petitioner felt that he was. On November 7, 1980, Petitioner met with his supervisory committee and presented and defended his dissertation. After his presentation, Petitioner left the room, and the committee evaluated the dissertation and defense. The committee unanimously concluded that the dissertation and defense were inadequate. The dissertation was not marginally inadequate. It was grossly below standards. The committee unanimously and appropriately concluded that the dissertation and defense were not acceptable, and that Petitioner had not met the requirements for a Ph.D. degree. Petitioner's major professor felt that the Petitioner had devoted considerable time, energy, and hard work to the degree program. He was concerned that the effort not be totally wasted. He requested that the committee consider accepting the dissertation as adequate for the award of a doctor of education (Ed.D.) degree or a "master's specialist" degree, and that the committee recommend that Petitioner be awarded one of those degrees or that he be allowed to continue working toward a Ph.D. degree. None of the members of the supervisory committee had had experience with the Ed.D. degree. They all considered it an inferior degree and felt that awarding it to Petitioner would constitute something of a "consolation prize." In fact, an Ed.D. degree from Florida State University is not intended to be an inferior degree. Its focus is somewhat different, but the requirements for obtaining the degree are basically the same. The committee was mistaken in considering the offer of such a degree to Petitioner. Indeed, the requirements for an Ed.D. degree being similar, and in some cases identical to those for the Ph.D. degree, Petitioner had not qualified for the award of an Ed.D. degree. After the committee adjourned its proceedings on November 7, Petitioner's major professor discussed the committee's actions with Petitioner. He told Petitioner that pending proper approval, Petitioner would have the options of continuing to work toward a Ph.D. degree, or receiving an Ed.D. or master's specialist degree. It appears that the major professor was overly sensitive about the Petitioner's feelings, and he may not have bluntly advised Petitioner that he failed his dissertation, presentation, and defense. Petitioner considered his options and told his major professor that if it was possible, he would be amenable to accepting an Ed.D. degree. The major professor contacted administrative officials and was advised that the award of an Ed.D. degree would be possible. The major professor advised the Petitioner of that and told him that pending approval from the department chairman who had charge of the science education program, Petitioner could receive the Ed.D. degree. The major professor also advised Petitioner that some revisions would need to be made in the dissertation and that the title page would need to be retyped in order to reflect that it was being submitted in support of an Ed.D. degree. Petitioner complied with the direction to retype the first page, but made only minor revisions in the dissertation. Members of the supervisory committee signed off on the dissertation as being acceptable in support of an Ed.D. degree. The matter was submitted to the department chairman. The department chairman read the dissertation and concluded that it was grossly inadequate. He determined that he would not authorize the award of an Ed.D. degree because Petitioner would need to be properly accepted into an Ed.D. program before he could be awarded such a degree, and additionally because he considered the dissertation inadequate to support an Ed.D. degree. This action was communicated to the supervisory committee. The committee met again and determined that since the Ed.D. degree could not be awarded, that Petitioner should be given failing grades for the dissertation, presentation, and defense. Prior to the department chairman's review of the dissertation, Petitioner had paid his fees and was anticipating being awarded an Ed.D. degree. Since it was not approved by the department chairman, the degree was not awarded. Thereafter, the Petitioner opted not to apply to have his work considered in support of an Ed.D. degree or master's specialist degree. He continued working toward a Ph.D. degree for approximately six months. Ultimately, he decided to drop out of the program, and he initiated this proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby, RECOMMENDED: That a final order be entered by Florida State University denying Petitioner's application for award of an Ed.D. degree and dismissing the Petition for Administrative Hearing. RECOMMENDED this 24th day of January, 1983, in Tallahassee, Florida. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1983. COPIES FURNISHED: John D. Carlson, Esquire Woods, Johnston & Carlson 1030 East Lafayette Street Suite 112 Tallahassee, Florida 32301 Patricia A. Draper, Esquire Charles S. Ruberg, Esquire Florida State University Suite 311, Hecht House Tallahassee, Florida 32306 Dr. Bernard F. Sliger President Florida State University 211 Westcott Tallahassee, Florida 32306
The Issue The issue presented is whether Petitioner's application for licensure by examination as a professional engineer should be granted.
Findings Of Fact Petitioner is an applicant for licensure by examination as a professional engineer. By letter dated February 6, 1991, Respondent notified Petitioner that his education did not meet the criteria for licensure. Specifically, Petitioner's education was not deemed to be equivalent to an accredited engineering degree because it lacked 6 credit hours of mathematics, 24 credit hours of engineering sciences, and 8 credit hours of humanities and social sciences. Further, Petitioner had failed to submit any evidence of possessing computer skills. Petitioner is a graduate of the Indian Institute of Technology in Kharagpur, India. He received a degree styled Bachelor of Technology in Civil Engineering in 1967. Petitioner is not a graduate of Florida's State University System. Further, Petitioner did not notify Respondent before July 1, 1984, that he was engaged in active and responsible engineering work on July 1, 1981. Petitioner had his transcript evaluated by the World Education Service (hereinafter "WES"). WES filed a report, dated September 20, 1985, attesting that Petitioner's education was the equivalent of an engineering technology degree. A second report issued by WES, dated March 14, 1988, is identical. A third report, dated January 7, 1991, is identical to the first two, except that in this latest report, the WES opines that Petitioner has the equivalent of a bachelor's degree in civil engineering. The Board's Education Advisory Committee reviews foreign degree candidates to determine if their education meets the standards established by the Accreditation Board for Engineering and Technology, Inc., (hereinafter "ABET"). The ABET standards for an approved baccalaureate degree in engineering include: 16 hours of mathematics (calculus through differential equations), 16 hours of basic sciences, 32 hours of engineering sciences, 16 hours of engineering design, and 16 hours of humanities and social sciences. There is a major difference between an engineering degree and an engineering technology degree. An engineering technology degree does not require the same number of hours in advanced mathematics (calculus through differential equations) as an engineering degree. Furthermore, an engineering technology curriculum emphasizes the technical aspects of the profession, such as engineering design coursework, but does not stress the underlying engineering sciences. Petitioner's transcript and course titles were typical of an engineering technology curriculum. Petitioner's mathematics courses were not solely at the advanced math level, but also included algebra and geometry. Furthermore, Petitioner's transcript only demonstrated 8 hours of engineering sciences. The title of Petitioner's degree is not dispositive. What is dispositive is that Petitioner's course of study had its emphasis on technical design courses rather than on higher math and engineering sciences courses.
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 examination. DONE and ENTERED this 24th day of September, 1991, at Tallahassee, Florida. 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 24th day of September, 1991. APPENDIX TO RECOMMENDED ORDER Respondent's proposed findings of fact numbered 1-3, 6, and 8-11 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 5 has been rejected as being irrelevant to the issues under consideration in this cause. Respondent's proposed findings of fact numbered 4 and 7 have been rejected as not constituting findings of fact but rather as constituting conclusions of law, argument of counsel, or recitation of the testimony. COPIES FURNISHED: Om Prakash Bhola 3600 Khayyam Avenue Apt. #7 Orlando, Florida 32826 Edwin A. Bayo, Esquire Assistant Attorney General Department of Legal Affairs Suite LL04, The Capitol Tallahassee, Florida 32399-1050 Carrie Flynn, Acting Executive Director Department of Professional Regulation Board of Professional Engineers Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Petitioner, Christian E. Behrens, is a certified firefighter and is currently employed by the City of Miami Beach Fire Department as a firefighter II. As such, Petitioner is a "firefighter" as defined by Section 633.382(1), Florida Statutes. Petitioner has been employed by the City of Miami Beach Fire Department for approximately six and one-half years. He has an outstanding record with his employer and is highly rated in job performance. Petitioner received an associate in arts degree from Miami-Dade Community College in December, 1983. Petitioner received a bachelor of science degree from Florida International University with a major in computer science in April, 1987. Petitioner has completed in excess of the 18 semester credit hours of fire-related courses required for entry into the supplemental compensation program; however, such courses were completed after the Petitioner received the degrees described above and such courses were not included in the credits needed for the described degrees. The Department's position in this case is that the Petitioner would qualify for supplemental compensation at the associate degree level if he applies for, and receives, a second associate in arts degree from Miami-Dade Community College in either fire science or EMT technology. This would then qualify Petitioner under the associate level of compensation. Computer science is a valuable fire-related technology utilized by fire departments across this state. As a part of his regular duties, Petitioner has been required to learn, and teach to others, the statewide fire management information system. This system is mandated by the Department and is a computer program utilizing computers in the work place. Additionally, Petitioner has assisted in the design and implementation of his fire department's USC pen pad system. Again, this is a computer program mandated by his employer which utilizes computers in the work place. Additionally, Petitioner spends countless hours working with computers to assist in the daily function of his fire department. These hours are a part of, or are in addition to, other duties he performs for the fire department. Computers have become an indispensable portion of the operations of the Coral Gables Fire Department and, indeed assist all aspects of the fire department operation: from personnel to administration to actual fire fighting. As such Petitioner's skills and training make him a highly desirable employment prospect. Petitioner's expertise is considered by Operations Chief Cook to be invaluable and fire-related.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Insurance and Treasurer, Division of State Fire Marshal, enter a final order granting Petitioner's request for supplemental compensation at the bachelor degree level. DONE AND ENTERED this 7th day of April, 1994, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 7th day of April, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-4319 Rulings on the proposed findings of fact submitted by Petitioner: Paragraphs 1 through 3, 8, 9, and 10 are accepted. Paragraph 4 is rejected as a restatement of law. Paragraph 5 is rejected as a restatement of the statute and rule. Paragraph 6 is rejected as restatement of the rule. Paragraph 7 is rejected as argument or irrelevant. Paragraph 11 is rejected as argument. Paragraph 12 is rejected as conclusion of law or argument. Rulings on the proposed findings of fact submitted by Respondent: Paragraphs 1, 2, 4, 5, 7, 8 through 24, 31 through 33, 38 and 39 are accepted. Paragraphs 3 and 6 are accepted but are irrelevant. 3 Paragraphs 25, 26, 27, 28, 29, 30, 34, 35, 36, and 37 are rejected as argument, irrelevant, or not supported by credible evidence. COPIES FURNISHED: Hon. Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neil General Counsel Department of Insurance The Capitol, PL-11 Tallahassee, Florida 32399-0300 William Lance Gerlin 330 Alhambra Circle Coral Gables, Florida 33134 Daniel T. Gross Division of Legal Services Department of Insurance and Treasurer 612 Larson Building Tallahassee, Florida 32399-0333
Findings Of Fact The Department excepts to a portion of the Hearing Officer's finding of fact #3 on the basis that it is not supported by substantial competent evidence in the record. The Hearing Officer finds that a degree in public affairs from Florida Atlantic University is known as a degree in public administration elsewhere. The Hearing Officer cites no record authority for this statement and it does not appear that any officials from Florida Atlantic University or any other post-secondary institutions testified as to what a public affairs degree could be known as at other institutions. Further, the documentary evidence does not support this finding by the Hearing Officer. Joint Exhibit 2 indicates that the Petitioner, Mr. Bingham, received a Bachelor of Arts degree with a major in Political Science from Florida Atlantic University. No where on the official sealed transcript does it indicate that Mr. Bingham received a degree in public affairs or public administration. The Department's exception to finding of fact 3 is accepted. The Department excepts to the Hearing Officer's finding of fact #4 on the basis that it is not supported by substantial competent evidence in the record. For the reasons set forth in paragraph 1 above, the Department's exception to finding of fact 4 is accepted. The Department excepts to the Hearing Officer's finding of fact #9 on the basis that the Hearing Officer erroneously interpreted fire-related courses as a fire-related major study concentration area. The proper standard for reviewing Mr. Bingham's transcript is whether the major study concentration area is fire-related, not whether the Petitioner's major study concentration area includes courses that are job-related. "The intent of the statute and the rule is to require fire fighters to qualify themselves for the performance of their duties by taking fire science courses, not general courses which might be somewhat generally related to the fire fighting career." In the Matter of Jorge Du Quesne; Case No. 91-L-367AKL (Final Order entered November 22, 1991). The Department's exception to finding of fact 9 is accepted. The Department excepts to the Hearing Officer's finding of fact #11 on the basis that it is not supported by substantial competent evidence in the record. For the reasons set forth in paragraphs 1 and 3 above, the Department's exception to finding of fact #11 is accepted. RULING ON EXCEPTIONS TO CONCLUSIONS OF LAW The Department excepts to the Hearing Officer's conclusion of law #15 the reason being that the Hearing Officer uses an erroneous interpretation of the applicable Rules. It appears that in this conclusion of law the Hearing Officer is simply restating the provisions of Rule 4A-37.084(3) and (5), Florida Administrative Code. Although some what difficult to follow, it does not appear that the Hearing Officer has erroneously interpreted this Rule. The Department's exception to conclusion of law #15 is rejected. The Department excepts to the Hearing Officer's conclusion of law #16, again the reason being that the Hearing Officer uses an erroneous interpretation of the applicable Rules and that the conclusion is not supported by competent substantial evidence. The Hearing Officer has based this conclusion of law solely on her theory that if the Petitioner had not changed his major and had attended a different school he might have had his major called something else that would be fire-related. The Hearing Officer does not have authority to arbitrarily change the Petitioner's major study concentration area, nor is there substantial competent evidence in the record to support such a change. The Department's exception to conclusion of law #16 is accepted. The Department excepts to the Hearing Officer's conclusion of law #17 on the basis that it is not supported by substantial competent evidence. For the reasons set forth in paragraph 2 above, the Department's exception to conclusion of law #17 is accepted. The Department excepts to the Hearing Officer's conclusion of law #18 on the basis that it is not supported by substantial competent evidence. For the reasons set forth in paragraph 2 above, the Department's exception to conclusion of law #18 is accepted. RULING ON EXCEPTIONS TO RULINGS ON FINDINGS SUBMITTED BY RESPONDENT IN APPENDIX TO RECOMMENDED ORDER 1. To the extent not inconsistent with the rulings on exceptions to findings of fact contained herein, the Department's exceptions to the Hearing Officer's appendix to Recommended Order are accepted. RULING ON EXCEPTIONS TO RECOMMENDATION Based on the foregoing rulings on the Department's exceptions to the Hearing Officer's findings of fact and conclusions of law, the Hearing Officer's recommendation that the Petitioner be accepted into the Firefighter's Supplemental Compensation Program is rejected and the appropriate disposition of this case is that Petitioner is denied participation said program. Upon careful consideration of the record, the submissions of the parties and being otherwise advised in the premises, it is ORDERED: The Findings of Fact of the Hearing Officer are adopted as the Department's Findings of Fact, with the exception of Findings of Fact #3, 4, 9 and 11. The Conclusions of Law of the Hearing Officer are adopted as the Department's Conclusions of Law with the exception of Conclusions of Law #16, 17, and 18, That the Hearing Officer's recommendation that Mr. Bingham's request for entry into the Firefighter's Supplemental Compensation Program be accepted is rejected and the appropriate disposition of this case is that Mr. Bingham's request is denied. ACCORDINGLY, the request for entry into the Firefighter's Supplemental Compensation Program submitted by WILLIAM L. BINGHAM is hereby DENIED. Any party to these proceedings adversely affected by this Order is entitled to seek review of this Order pursuant to Section 120.68, Florida Statutes, and Rule 9.110, Florida Rules of Appellate Procedure. Review proceedings must be instituted by filing a petition or notice of appeal with the General Counsel, acting as the agency clerk, at 612 Larson Building, Tallahassee, Florida, and a copy of the same with the appropriate district court of appeal within thirty (30) days of rendition of this Order. DONE and ORDERED this 6th day of May 1993. TOM GALLAGHER Treasurer and State Fire Marshal COPIES FURNISHED: HONORABLE LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 WILLIAM L. BINGHAM 11156 Northwest 35th Street Sunrise, Florida 33351 DANIEL T. GROSS, ESQUIRE Division of Legal Services 612 Larson Building Tallahassee, Florida 32399-0300
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting Petitioner's application for entry into the Firefighters' Supplemental Compensation Program at the bachelor's degree level. DONE AND ENTERED this 26th day of March, 1993, in Tallahassee, Leon County, Florida. 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 26th day of March, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-6278 Petitioner's proposed findings of fact numbered 1-3 and 5-8 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 4 has been rejected as being subordinate to the issue being determined herein. Respondent's proposed findings of fact numbered 1, 2, 9, 10, and 13 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 3-8 have been rejected as being subordinate to the issue being determined herein. Respondent's proposed finding of fact numbered 11 has been rejected as not being supported by the weight of the evidence. Respondent's proposed finding of fact numbered 12 has been rejected as not constituting a finding of fact but rather as constituting argument of counsel. COPIES FURNISHED: Mr. William L. Bingham 11156 Northwest 35th Street Sunrise, Florida 33351 Daniel T. Gross, Esquire Department of Insurance and Treasurer 412 Larson Building Tallahassee, Florida 32399-0300 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neil, General Counsel Department of Insurance The Capitol, PL-11 Tallahassee, Florida 32399-0300
Findings Of Fact Petitioner has not completed an approved engineering curriculum. From 1955 through 1958, he was enrolled in an engineering program at the University of Florida. He received an associate in arts degree. During 1961 he was enrolled for three semesters in an engineering program. Petitioner's other educational experiences have not been in the field of engineering. Since the Petitioner did not complete the requirements for a degree program, it is appropriate that his educational experience be viewed as engineering work experience in order to determine his eligibility to take the examination for licensure as a professional engineer. Since he has completed only the earlier stages of an engineering program, it is not appropriate that his years of educational background be credited directly as years of work experience. It is appropriate, however, that he be considered as having had one year of engineering work experience as an engineer based upon his total educational background. From 1964 until 1970, Petitioner worked for the Department of of Coastal and Oceanographic Engineering at the University of Florida. He was in charge of field experiments considering littoral drift on the east coast of Florida. He assisted in setting up programs for beach erosion control. Petitioner was in charge of conducting various experiments to observe beach erosion, to locate sources of offshore sand for use in erosion prevention, and in developing models to establish techniques for stabilizing sand movements. Some of the work he performed was clearly engineering work, but a significant portion of it would more properly be classified as surveying work. The Petitioner was directly supervised by James A. Purpura, who was a professional engineer. Unfortunately, Mr. Purpura is deceased. Only three-quarters of a year of the experience that the Petitioner had with the Department of Coastal and Oceanographic Engineering has been verified by a registered professional engineer as engineering experience. In view of the fact that significant portions of the Petitioner's work from 1964 to 1970 was not engineering work, and the fact that his work cannot be verified as engineering work, it is not appropriate that he be credited with more than three-fourths year of engineering work experience for this period. From 1970 until 1972, Petitioner was employed with Global Oceanic, Inc. Petitioner testified that during this period he designed a submersible dredge; was involved in restoration of beach property in the Bahamas; and designed and constructed a marina, a water desalination plant, various seawalls, and roads. Petitioner testified that he was employed as field engineer during this period. Petitioner presented no verification from a registered professional engineer as to the nature of his work experience with Global Oceanic, Inc. He testified that his director-supervisor, who was a professional engineer, died. From 1972 until 1973, Petitioner was employed with his own company, McGill and Associates. His work during this period was to complete activities with Global Oceanic, Inc., after his employer died. Petitioner testified that his work with McGill and Associates was as a field engineer. Again, however, there has been no verification of his work experience by a registered professional engineer. In view of the fact that the Petitioner's experience wit Global Oceanic, Inc., and with McGill and Associates from 1972 until 1973 has not been verified by a professional engineer as engineering work experience, it is not appropriate that the Petitioner be credited with experience by the Board of Engineers. From 1973 until 1975, Petitioner was employed by Kunde and Associates, an engineering firm. During this period, he oversaw various construction projects, and monitored them to assure that they were being constructed in accordance with engineering specifications. He served as a field engineer, directly responsible for various dredging and road building projects. Petitioner's work experience while at Kunde and Associates has been verified by a professional engineer as engineering work experience, and there does not appear to be any dispute that he should be credited with two years of engineering work experience for this period. Since 1975, the Petitioner has worked with his own company, McGill and Associates. He has been in the business of designing and constructing swimming pools and whirlpool spas. He has spent a fair amount of his time engaged in the original design of whirlpools. He has also participated in designing swimming pools, but in order to receive construction permits, registered engineers have had to evaluate and approve his designs. A considerable amount of the work that Petitioner has performed since 1975 has been engineering work; however, limited engineering know-how is required in swimming pool and whirlpool design and construction. Only approximately one year of non-repetitive engineering experience can appropriately be credited to such activities. Crediting Petitioner with one year of engineering work experience resulting from his educational background, three-fourths year of engineering work experience with the Department of Coastal and Oceanographic Engineering at the University of Florida, two years of engineering work experience with Kunde and Associates, and one year of engineering work experience with McGill and Associates, the Petitioner has four and three-fourths years of valid engineering work experience.
