The Issue Whether Petitioner is entitled to additional credit for his solutions to four problems on the Principles and Practice of Engineering portion of the engineering licensure examination administered on October 30, 1998, by the National Council of Examiners for Engineers and Surveyors.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: On October 30, 1998, as part of his effort to obtain a Florida engineering license, Petitioner sat for the Principles and Practice of Engineering Examination (Examination). This is a national examination developed and administered by the National Council of Examiners for Engineers and Surveyors (NCEES). Petitioner chose to be tested in civil engineering. Petitioner received a raw score of 45 on the Examination. For the civil engineering specialization, a raw score of 45 converts to a score of 67. To pass the Examination, a converted score of 70 is needed. Petitioner formally requested (in writing, by letter dated March 26, 1999) that his solutions to Problems 120, 125, and 222 on the Examination be rescored. Petitioner's written request was made to Natalie Lowe of the Board, who forwarded it to the NCEES. Appended to Petitioner's letter to Ms. Lowe were two pages of "scratch paper" on which Petitioner had written during his post-examination review on March 19, 1999. On the first page were written comments he had made regarding the scoring of Problems 120 and 125. On the second page were the following written comments he had made regarding the scoring of Problems 220 and 222: 220 a, b, & c 2 parts b & c correct. Min. mark I should get[:] At least 5 instead of 2 and maybe 7. There is an error. 222 ok The NCEES's rescoring of Petitioner's solutions to Problems 120, 125, and 222 resulted in his receiving a raw score of 43 (or a converted score of 65, 5 points less than he needed to pass the Examination). The Board received the NCEES's rescoring results on May 12, 1999. The Board subsequently referred the matter to the Division to conduct an administrative hearing. At the administrative hearing that was held pursuant to the Board's referral, Petitioner challenged the grading of his solutions to Problems 120, 125, and 220 of the Examination, and indicated that he had "no dispute concerning the grading of [his solution to Problem] 222," notwithstanding that he had requested, in his March 26, 1999, letter to Ms. Lowe, that his solution to Problem 222 be rescored. Petitioner explained that he had made this request as a result of inadvertence and that he had actually intended to seek rescoring of his solution to Problem 220, not Problem 222. Problems 120, 125, and 222 were worth ten raw points each. Problem 120 contained four subparts (or requirements). Petitioner initially received four raw points for his solution to Problem 120. Rescoring did not result in any change to this score. Petitioner solved two subparts of Problem 120 correctly (subparts (a) and (b)). The solutions to the other two subparts of Problem 120 (subparts (c) and (d)), however, were incorrect inasmuch as Petitioner had neglected, in making the lateral force calculations and drawing the diagrams required by these subparts, to include the force attributable to the movement of the groundwater referred to in the problem. Therefore, in accordance with the requirements and guidelines of the NCEES scoring plan for this problem, the highest raw score that he could have received for his solution to this problem was a four, which is the score he received. Problem 125 contained three subparts (or requirements). Petitioner initially received a raw score of two for his solution to Problem 125. Upon rescoring, no change was made this raw score. Petitioner correctly solved only one of the three subparts of Problem 125 (subpart (c)). In his solution to subpart (a) of Problem 125, Petitioner did not provide, as required by this subpart, the quantities of water, cement, and aggregate necessary for the project described in the problem. Petitioner's solution to subpart (b) did not describe one of the acceptable slump increasing methods that the candidates were required describe in their solution to this subpart. Accordingly, giving Petitioner a raw score of two for his solution to Problem 125 was consistent with the requirements and guidelines of the NCEES scoring plan for this problem. Petitioner received a raw score of two for his solution to Problem 220. He did not request, in his March 26, 1999, letter to Ms. Lowe, a rescoring of his solution to this problem, and, as a result, his solution was not rescored. At the administrative hearing, Petitioner testified on his own behalf regarding the scoring of this solution and, during his testimony, contended that the score he received was too low; however, neither a copy of the problem, nor a copy of the NCEES scoring plan for this problem, was offered into evidence. Accordingly, the record is insufficient to support a finding that the score Petitioner received for his solution to Problem 220 was undeservedly low in light of the NCEES scoring plan for this problem. Petitioner initially received a raw score of eight for his solution to Problem 220. Rescoring resulted in this score being reduced two points to a six. Petitioner did not present any evidence supporting the position (which he advances in his Proposed Recommended Order) that he should have received a higher score for his solution to this problem, and, consequently, Respondent's expert, in his testimony at hearing, did not address the matter. While there were exhibits offered (by Respondent) and received into evidence relating to the scoring of Petitioner's solution to Problem 222, it is not apparent from a review of these exhibits that such scoring deviated from the requirements of the NCEES scoring plan for this problem (which was received into evidence as part of Respondent's Exhibit 12).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered rejecting Petitioner's challenge to the failing score he received from the NCEES on the Principles and Practice of Engineering portion of the October 30, 1998, engineering licensure examination. DONE AND ENTERED this 20th day of December, 1999, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 1999.
The Issue The central issue in this case is whether the Respondent is guilty of the violation alleged in the administrative complaint dated August 7, 1989; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: The Department is the state agency authorized to regulate and discipline licensees pursuant to Chapters 455 and 473, Florida Statutes. The Respondent is a licensed certified public accountant, license number AC 3214 (election of rights submitted by Respondent). In connection with an investigation of another licensee (not at issue herein), the Respondent submitted to the Department a financial report that Respondent had performed for the entity identified as Moreil Interiors, Inc. (Moreil). That document (Department's exhibit 1) consisted of four pages and represented financial information related to Moreil for a 6 month period ending December 31, 1984. Certified public accounts are required to utilize specific guidelines in the performance of accounting services. Those guidelines are codified in the Statements on standards for Accounting and Review Services (SSARS). The failure to abide by the SSARS guidelines constitutes performance below acceptable accounting standards. The financial report identified in paragraph 3 failed to comply with the SSARS in at least four material ways. The level of service indicated by the Respondent's report is not accepted practice for certified public accountants and has been rejected by the American Institute of Certified Public Accountants. The type and number of the deficiencies in that report constitute negligence on Respondent's part and establish a failure to exercise professional competence and due professional care in the performance of accounting services.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Professional Regulation, Board of Accountancy enter a final order requiring the Respondent to complete 24 hours of continuing education regarding compliance with the SSARS guidelines, and placing the Respondent on probation with his work to be reviewed, at his expense, by a consultant or certified public accountant approved by the Board, for a period of one year following completion of the continuing education. DONE and ORDERED this 19th day of July, 1990, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 1990. COPIES FURNISHED: Tobi Pam Senior Attorney Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792 Frank Berman P.O. Box 14156 North Palm Beach, Florida 33408 Martha Willis Executive Director Board of Accountancy Suite 16 4001 Northwest 43rd Street Gainesville, Florida 32606 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792
The Issue Whether Petitioner is entitled to additional credit for his solutions to Problems 124 and 222 of the Principles and Practice of Engineering portion of the engineering licensure examination administered on October 30, 1998, by the National Council of Examiners for Engineers and Surveyors.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: On October 30, 1998, as part of his effort to obtain a Florida engineering license, Petitioner sat for the Principles and Practice of Engineering Examination (Examination). This is a national examination developed and administered by the National Council of Examiners for Engineers and Surveyors (NCEES). Petitioner chose to be tested in civil engineering. Petitioner received a raw score of 47 on the Examination. For the civil engineering specialization, a raw score of 47 converts to a score of 69. To pass the Examination, a converted score of 70 is needed. Petitioner formally requested the NCEES to rescore his solutions to Problems 124, 125, and 222 on the Examination. At the time he made this request, Petitioner was aware that rescoring could result in the candidate's score being lowered (although he believed that, in his case, the outcome would be a higher, not a lower, score). Petitioner was wrong. The rescoring he requested resulted in his receiving a raw score of 43 (or a converted score of 65, 5 points less than he needed to pass the Examination). After being notified of the outcome of the rescoring, Petitioner requested the Florida Board of Professional Engineers to grant him a "formal administrative hearing" on the matter. Petitioner's request was granted. At hearing, Petitioner advised that he was challenging only the grading of his solutions to Problems 124 and 222 of the Examination, and that he was not pursuing his challenge to the score he had received for his solution to Problem 125. Problems 124 and 222 were worth ten (raw) points each. Problem 124 contained four subparts (or requirements). Petitioner received two (raw) points for his solution to Problem 124. Rescoring did not result in any change to this score. Due to mathematical errors that he made, Petitioner did not solve any of the subparts of Problem 124 correctly. Accordingly, in accordance with the requirements and guidelines of the NCEES scoring plan for this problem, the highest (raw) score that he could have received for his solution to this problem was a two, which is the score he received. Problem 222 contained five subparts (or requirements). Petitioner originally received a (raw) score of six for his solution to Problem 222. Upon rescoring, his (raw) score was reduced to two. In attempting to solve Problem 222, Petitioner overestimated the lateral earth pressure due to his misunderstanding of the term "equivalent fluid pressure" used in the problem. In addition, in his solution to subpart (a), he did not properly specify the appropriate bar size and spacing. Giving Petitioner a (raw) score of two for his solution to Problem 222 was consistent with the requirements and guidelines of the NCEES scoring plan for this problem.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered rejecting Petitioner's challenge to the failing score he received from the NCEES on the Principles and Practice of Engineering portion of the October 30, 1998, engineering licensure examination. DONE AND ENTERED this 4th day of October, 1999, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 1999.
The Issue Whether Petitioner is eligible for licensure by endorsement as a professional engineer and/or waiver of Part I of the engineering licensing examination.
Findings Of Fact From 1969 through 1974, Petitioner attended the Lipetsk Branch of the Moscow Institute of Steel and Alloys. In 1974, Petitioner graduated from the Lipetsk Polytechnical Institute (Institute) in Russia, with a degree in industrial and civil engineering. The degree in civil engineering earned by Petitioner is equivalent to a bachelor of science degree in civil engineering in the United States. Upon graduation from the Institute, Petitioner commenced her professional employment as an engineer on August 30, 1974, at the LIPTSKGRAZHDANPROEKT Design Institute. In January 1976, Petitioner was employed as a professional engineer at the State Design Institute DNEPRPROEKKTSTALKONSTRUKSIYA (DNEPR), where she was continuously employed until leaving the Soviet Union in December 1993. There are no specific licensing or registration requirements in Russia with respect to engineers. Therefore, after earning a degree in industrial and civil engineering, Petitioner could work as an engineer in Russia without taking any professional examination. However, in 1979, Petitioner took an examination in Russia that allowed her to sign her own drawings and calculations. During Petitioner's tenure at the DNEPR, she achieved the status of Senior Engineer in 1986; was promoted to the position of Category II Engineer for Steel Structures in 1988; was promoted to the post of Category I Engineer for Steel Structures in 1990; and was elevated to the position of Leading Engineer in 1991. To achieve the status of Category II Engineer for Steel Structures and Category I Engineer for Steel Structures at DNEPR, Petitioner had to take an examination in 1988 and in 1990, respectively. The promotion to each of these positions was predicated upon Petitioner's passing these examinations and demonstrating expertise in the areas of economics, chemistry, mathematics, physics, building materials, corrosion prevention, resistance of materials, and construction mechanics. As a result of passing the examinations in 1988 and 1990, Petitioner was not only promoted, but also received salary increases. Petitioner believes that the two examinations she took in Russia in 1988 and in 1990, while working at the DNEPR were substantially equivalent to the Fundamentals Examination. However, no evidence was presented to support this claim. The Fundamentals Examination is one component of the engineering licensing examination, and is designed to assess whether an individual is qualified to practice in this state as an engineer intern. This examination is usually taken either in the applicant's last year in engineering school or shortly after graduation. With regard to format, the Fundamentals Examination is an eight-hour examination and consists of 120 multiple-choice questions. The Principles and Practice Examination is the second part of the engineering licensing examination and is taken after successful completion of the Fundamentals Examination. Oscar E. Olsen, a structural engineer and owner of O.E. Olsen and Associates, a structural engineering firm, is currently Petitioner's employer. Mr. Olsen, who is generally familiar with the Fundamentals Examination, testified that the list of subjects covered on the two examinations taken by Petitioner in 1988 and 1990, coincide with the subject matter on the Fundamentals Examination. Mr. Olsen further testified that it appeared to him that the two examinations taken by Petitioner were comparable to the Fundamental Examinations required in Florida. Notwithstanding his testimony that the exams taken by Petitioner are substantially equivalent to the Fundamentals Examination, Mr. Olsen admitted that he has never seen or reviewed the examinations taken by Petitioner while she was in Russia. It is impossible to render a reasonable opinion as to whether the two examinations taken by Petitioner in Russia are substantially equivalent to the Fundamentals Examination, where the only information provided with regard to the former is a list of subject areas covered. Such a list gives no indication of the depth and specific content of the subject matter on the examinations; the difficulty of the examinations; the passing scores; the number and format of the questions; and the length of the examinations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent, the Board of Professional Engineers, enter a Final Order denying Petitioner's request for waiver of Part I, the Fundamentals Examination, and for licensure by endorsement. DONE AND ENTERED this 9th day of December, 1997, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 9th day of December, 1997. COPIES FURNISHED: Murray Silverstein, Esquire Powell, Carney, Hayes, and Silverstein One Plaza, Suite 1210 St. Petersburg, Florida 33731-1689 Edwin A. Bayo Assistant Attorney General Office of the Attorney General The Capitol, Plaza 01 Tallahassee, Florida 32399-1050 Angel Gonzalez Executive Director Board of Professional Engineers Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0755 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent's License as a general contractor should be revoked for alleged violation of Sections 468.112(2)(a) & (c), Florida Statutes. Respondent was not present at the hearing although notice of hearing had been provided him under date of February 17, 1976. Accordingly, the hearing was conducted as an uncontested proceeding.
Findings Of Fact E.J. Lamberth, III, holds general contractor certification number 006734. Addition Builders, Inc., Miami, Florida was registered as a certified general contractor on July 16, 1974 with Respondent as the qualifying individual thereon (Exhibits 6 & 7). On August 16, 1975, Respondent applied for a building permit from Metropolitan Dade County, Florida, for the purpose of adding a den to the home of Mr. and Mrs. S.A. Cohen, 7525 Southwest 77nd Court, Miami, Florida. The contractor for the job was listed as Addition Builders, Inc. Permit Number BS15057 was issued on August 19, 1974 (Exhibit 1.) On August 6, 1974, Respondent applied for a building permit from the City of North Miami, Florida for the addition of a bedroom and bath at premises owned by Mr. & Mrs. Michael J. Retter, 416 N.W. Opa Loka Boulevard, North Miami, Florida which showed Addition Builders, Inc. as the contractor. Permit A2860 was issued on August 20, 1974 (Composite Exhibit 2.) The work to be performed as set forth in the above permits was pursuant to contracts between the owners and Addition Builders, Inc. as contractor (Exhibits 5 & 8.) Acting upon complaints filed by the owners of the property involved in the above two contracts, Mr. William F. McDonald, a field investigator for Petitioner, met with the Respondent on February 21, 1975. In a voluntary statement made to Mr. McDonald and Mr. James Brooks, another investigator, at that time, Respondent admitted that he had not actually supervised either job but had depended upon Addition's superintendent to do so, and that he became the qualifying general contractor for Addition as a result of a newspaper advertisement. As part of his investigation, Mr. McDonald established that Respondent had been employed as a recreation supervisor by Metropolitan Dade County since January 9, 1963. McDonald also visited both of the homes in question and observed that the work under the contract was incomplete in February, 1975 (Testimony of McDonald, Exhibits 4, 5 & 9.) Respondent was never seen by owner Retter during the course of the work. Approximately 60 percent of the work was completed by Addition on this job, but the owner was obliged to complete the remainder himself (Testimony of Michael Retter.) Respondent advised Addition by letter that, effective December 24, 1974, he was resigning as general contractor for the firm. On February 20, 1975, the building official of the City of North Miami wrote to Respondent advising that they had received complaints on the stoppage of work at the Retter residence and requesting expedition of completion. Respondent answered that he had disassociated himself from Addition Builders, Inc. (Testimony of Lindblad, Composite Exhibit 3A & B.)
Recommendation That the certification as a general contractor of E.J. Lamberth, III, Number 0006734, be revoked. DONE and ENTERED this 5th day of April, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida COPIES FURNISHED: Barry Sinoff, Esquire Blackstone Building Suite 1010 Jacksonville, Florida 32202 Mr. E.J. Lamberth, III Addition Builders 7251 N.E. 2nd Avenue Miami, Florida 33138
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 solutions to three problems on the Principles and Practice of Engineering portion of the engineering licensure examination administered on October 29, 1999, by the National Council of Examiners for Engineers and Surveyors.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: On October 29, 1999, as part of his effort to obtain a Florida engineering license, Petitioner sat for the Principles and Practice of Engineering Examination (Examination). This is a national examination developed and administered by the National Council of Examiners for Engineers and Surveyors (NCEES). Petitioner chose to be tested in mechanical engineering. Petitioner received a raw score of 47 on the Examination. For the mechanical engineering specialization, a raw score of 47 converts to a score of 69. To pass the Examination, a converted score of 70 is needed. Petitioner formally requested (in writing, by letter dated March 13, 2000) that his solutions to Problems 141, 144, and 147 on the Examination be rescored. Petitioner's written request was made to the Board's "Legal Section," which forwarded it to the NCEES. The NCEES's rescoring of Petitioner's solutions to Problems 141, 144, and 147 resulted in his receiving no additional points. The Board received the NCEES's rescoring results on or about April 25, 1999. After receiving a letter from Petitioner (dated May 3, 2000) requesting a "formal hearing," the Board referred the matter to the Division. Problems 141, 144, and 147 were worth ten raw points each. Petitioner received four raw points for his solution to Problem 141. In his solution to Problem 141, Petitioner failed to take into consideration bending stresses and loads. Therefore, in accordance with the requirements and guidelines of the NCEES scoring plan for this problem, the highest raw score that he could have received for his solution to this problem was a four, which is the score he received. Petitioner received a raw score of two for his solution to Problem 144. In rescoring Petitioner's solution to this problem, the NCEES rescorer made the following "comments": A correct solution [to this problem] must include an energy balance on the open feedwater heater to determine the fraction of flow through turbine T1 that is extracted and taken to the open feedwater heater. a correct equation for determining the specific work developed by the two turbines on the basis of one pound entering turbine T1. The equation the examinee has written assumes the same flow through both turbines. determination of the mass rate of flow (m1) at the inlet to turbine T1. This is determined by dividing the net power by the specific net work. determining the rate at which heat is added in the steam generator and reheater. finally, dividing the rate at which heat is added in the steam generator by the heating value times 0.75 with the appropriate conversion factors. The examinee has used the new power (200 MW or 200 x 105)as the rate at which heat is added in the steam generator and reheater. This is incorrect. The scoring plan states 2 RUDIMENTARY KNOWLEDGE . . . OR-(3) determines tons/day = Wnet/7650, Wnet = (h1 - h2) + (h3 - h4) This is what the examinee has done. Based on the scoring plan and the above analysis, a score of 2 is recommended. There has been no showing that the foregoing "analysis" was in any way flawed or that application of the requirements and guidelines of the NCEES scoring plan for this problem should have resulted in Petitioner receiving a raw score higher than two for his solution to Problem 144. Petitioner received a raw score of four for his solution to Problem 147. In rescoring Petitioner's solution to this problem, the NCEES rescorer made the following "comments": The examinee used an incorrect temperature difference in [his] calculation of the heat transferred by convection and radiation from the outer surface of the pipe. Most of the examinee's work for requirement (b) was not needed. In doing that unnecessary work, however, [he] made two significant errors: 1. [He] evaluated a radiation exchange between the steam inside the pipe and the environment surrounding the pipe. The pipe shields the environment surrounding the pipe from the steam. 2. The examinee's equation "Total heat Loss = Conductive + Radiation" is not satisfactory. In attempting to evaluate the heat transfer from the insul[a]ted pipe, [he] assumed that the outer surface heat transfer coefficient was very high; 3.0 is not high. The examinee made no attempt to evaluate the payback period for the insulation. There has been no showing that the foregoing analysis was in any way flawed. For the errors made by Petitioner in his solution to Problem 147, a 50% "grade reduction" was warranted pursuant to the "error analysis" portion of the NCEES scoring plan for this problem. 1/ The remaining portions of the scoring plan for Problem 147 provided as follows: 10: Essentially complete and correct solution. May have one or two minor math, data, or chart reading errors. . . . Grade of 8: A grade of 8 will result from having any combination of the above listed errors which causes a grade reduction between 10% and 50%. A Grade of 6: A grade of 6 will result from having any combination of the above listed errors which causes a grade reduction between 30% and 50%. Grade of 4: 2/ A grade of 4 will result from having any combination of the above listed errors which causes a grade reduction between 50% and 70%. Grade of 2: A grade of 2 will result from having any combination of the above listed errors which causes a grade reduction between 70% and 90%. Grade of Zero: Nothing presented that warrants a grade of at least 10%. It is unclear from a reading of the NCEES scoring plan for Problem 147 whether a grade reduction of 50% should result in a raw score of four or six. The plan is ambiguous in this regard. While it may be reasonable to interpret the plan as requiring that a raw score of six be given where there is a grade reduction of 50%, the plan is also reasonably susceptible to the interpretation that a 50% grade reduction should result in a raw score of four, the score Petitioner received for his solution to Problem 147. It therefore cannot be said that the scoring of his solution to this problem was inconsistent with the problem's scoring plan, as reasonably construed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered rejecting Petitioner's challenge to the failing score he received from the NCEES on the Principles and Practice of Engineering portion of the October 29, 1999, engineering licensure examination. DONE AND ENTERED this 13th day of October, 2000, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 2000.
