Findings Of Fact The following findings of fact are based upon the stipulation of the parties. Mr. David L. Adams took the certified general contractor examination given on February 19 and 20, 1991. His score on part II of the examination was 70.00 (a passing score), and 65.00 (a failing score) on part III, the Project Management Examination. All parties agreed that instructions were given orally to candidates during the examination that only the answer which was marked on the machine readable answer sheet would be considered the answer of the candidate. Candidates were to mark the circles with a number two pencil, and blacken completely the circle corresponding to their answer. The machine readable answer sheet was completely separate from the booklet which contained the examination questions. Candidates were also orally told to read the written test instructions on the first page of the examination. Those instructions include the statement that at no time will you receive credit for an item for which you did not fill in a response on your answer sheet. (Examination, page 1 of 24). At the end of the test, candidates were also reminded orally that they should ensure that the answer corresponding to their calculations has been marked on the answer sheet, for no credit would be given for answers written in the examination booklet or on any scratch paper. The following findings were based upon the testimony and exhibits admitted during the hearing. The rules of the Construction Industry Licensing Board state that the only paper that shall be graded in a certification examination is the official answer sheet. No credit shall be given for answers written in an examinee's booklet. Rule 21E-16.006, Florida Administrative Code. Mr. Adams challenged the grading of question 12 on the Project Management Examination. He acknowledged during the hearing that he had marked the wrong answer on the answer sheet. Based upon the rules of the Board, the oral instructions given to the candidates, and the written instructions found on the first page of the Project Management Examination for general contractors given on February 20, 1991, Mr. Adams is not entitled to regrading of question 12. Before the examination, every candidate is provided with a list of references which is sent by regular United States mail. The approved references may be consulted by the candidate while taking the test. The reference list for the February 1991 administration of the Project Management Examination stated that the Standard Building Code to be used by a candidate should include the 1989-90 revisions to that Code. Mr. Adams studied from, and brought with him to the examination, and unrevised 1988 copy of the Code. His use of that Code accounted for the answer he gave to question 13, which dealt with the time available to challenge a decision by the building official to reject plans. The time for appeal permitted in the 1988 building code differed from the appeal time which is permitted in the 1990 revision of the Code by sixty days. Mr. Adams contends that it is obvious that he knows how to use the Standard Building Code because the answer he gave would be correct if the edition of the Code which he used were the current Code. This argument cannot be accepted. The Code itself states in its preface that it will be updated annually. It is a matter of basic competency that general contractors must use the current version of the Standard Building Code. Mr. Adams is not entitled to credit for the answer he gave to question 13. Mr. Adams has challenged his answer to question 15, which dealt with the amount of time necessary to erect steel members in a roof framing plan found in the examination booklet. The answer given by Mr. Adams was erroneous, because he did not correctly count the number of steel beams to be used in the project. The answer used by the Department in grading the examinations is the correct answer. Mr. Adams is not entitled to credit for the answer he gave to question 15. Mr. Adams has challenged the grading of question 16, which deals with the total permit fees and plan checking fees due to the building department for a project. The question specifically instructs candidates that the fees are to be computed based upon the fee guidelines in the Standard Building Code. Mr. Adams' answer was incorrect, because he used the 1988 edition of the Standard Building Code, although if that edition of the Code were in effect his answer would have been correct. Mr. Adams is not entitled to regrading of his answer to question 16, because the answer he gave is incorrect under the current edition of the Standard Building Code. Mr. Adams challenged the grading of his answer to question 17, which required the calculation of the amount due from an owner for a change order. Mr. Adams failed to take into account that the wall to be changed extended below grade, and as a consequence failed to calculate the full amount of additional concrete required for the change. Mr. Adams is not entitled to regrading of his answer for question 17. During the hearing, Mr. Adams argued that because the Department had only produced a clean, unused copy of the Project Management Examination given on February 20, 1991, and not the exact copy of the examination which he had used, it was possible that the plans which he used in answering questions 15 and 17 were not the same plans which the Department had used in calculating its answers for the test. The Department established that all plans utilized for the test are coded, and that the plans in test booklets do not vary from booklet to booklet. If Mr. Adams had been given the wrong set of plans, he would have done extremely poorly on the examination as a whole because a number of test questions are tied to the plans. Mr. Adams' contention that the plans in his examination booklet were different than the plans the Department used in developing its answers for the examination is contrary to the evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the challenge filed by David L. Adams to the grade which he received for the February 1991 certified general contractor examination be rejected. RECOMMENDED this 26th day of November, 1991, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of November, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-4064 The proposed findings of fact submitted by the Construction Industry Licensing Board have generally been accepted, although they have been edited. The arguments contained in the letter submitted by Mr. Adams have been incorporated in the Findings of Fact. COPIES FURNISHED: Thomas K. Equels, Esquire Holtzman, Krinzman & Equels 1500 San Remo Avenue Suite 200 Coral Gables, FL 33146 David L. Adams 9400 Southwest 80th Street Miami, Florida 33173 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Daniel O'Brien, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
Findings Of Fact Petitioner is an experienced and successful alarm system contractor licensed in Rhode Island and Massachusetts. Petitioner sought licensure as an alarm system contractor in Florida and sat for the Alarm System II Contractor's Examination administered by Respondent in January 1992. Applicants for licensure as alarm system contractors must pass the examination to be qualified for licensure. Petitioner's final grade on the examination was 70, but the minimum passing grade was 75. Petitioner did not pass the examination and, consequently, he was denied licensure. All challenged questions were multiple choice questions and the candidates were to select the best answer from the four possible answers provided. Candidates were allowed to use approved source materials during this open book examination. Petitioner challenged Questions #1, 17, 18, 19, and 76 because the content of each question pertained to accounting. For the reasons to be discussed in the Conclusions of Law portion of this Recommended Order, Petitioner's contention that accounting questions should not be included on the examination is rejected. The answer Petitioner selected for Question #1 was not the best answer to the question. Consequently, Petitioner was properly denied credit for his response to Question #1. The answer Petitioner selected for Question #17 was not the best answer to the question. Consequently, Petitioner was properly denied credit for his response to Question #17. The answer Petitioner selected for Question 18 was the best answer for the question, and he was awarded appropriate credit for that correct answer. The answer Petitioner selected for Question #19 was not the best answer to the question. Consequently, Petitioner was properly denied credit for his response to Question #19. The answer Petitioner selected for Question 76 was the best answer for the question, and he was awarded appropriate credit for that correct answer. Petitioner challenged Question #6 contending that the question was badly worded and that there were three possible answers to the question. Petitioner selected answer "B" as his answer to the question, but argued at hearing that answers "A", "B", or "C" are also correct answers. Respondent asserts that answer "C" is the best answer to the question. Petitioner failed to establish that Question #6 was impermissibly vague or that Respondent's determination that answer "C" was the best answer to the question was devoid of logic or reason. The answer Petitioner selected for Question #6 was not the best answer to the question. Consequently, Petitioner was properly denied credit for his response to Question #6. Petitioner challenged Question #23. The answer Petitioner selected for Question #23 was not the best answer to the question. Consequently, Petitioner was properly denied credit for his response to Question #23. Petitioner challenged Question #25 on the basis that the question was a trick question and that there were three possible answers to the question. Petitioner selected answer "B" as his answer to the question, but argued at hearing that answers "A", "B", or "C" are also correct answers. Respondent asserts that answer "A" is the best answer to the question. Petitioner established that his answer to the question was as correct as the answer selected by Respondent as the best answer to the question. Consequently, Petitioner was improperly denied credit for his response to Question #25. Petitioner challenged Question #78 and argued that the source material upon which Respondent based its answer is obsolete. Petitioner chose answer "A" while Respondent asserts that answer "D" is the best answer to the question. Respondent's answer appears in "Design Applications of Security Fire Alarm Systems", a reference book to which the candidates were permitted to refer while taking the examination. While Petitioner was very critical of this reference book, he failed to establish that Respondent could not rely on the book or that the determination by Respondent that answer "D" was the best answer to the question was devoid of logic or reason. Petitioner failed to establish that Question #78 was an improper question or that he was entitled to credit for his answer to the question. At the formal hearing, Petitioner raised for the first time a challenge to Question #83, a question pertaining to the use of coaxial cable. Petitioner contends that because alarm system contractors do not routinely use coaxial cable, the question is improper and should be thrown out. Petitioner concedes that the information necessary to correctly answer the question was in the resource material to which the candidates were permitted to refer while taking the examination and that he gave the wrong answer to the question. Petitioner failed to establish that Question #83 pertained to an improper subject or that he was entitled to credit for his response to the question. Petitioner challenged Question #98. After the examination was administered, the Electrical Contractors Licensing Board rejected this question from every candidate's examination as being outside the scope of practice. Consequently, that question was not a factor in the scoring of Petitioner's examination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which awards Petitioner credit for his answer to Question #25, but which denies him additional credit for his answers to the other challenged questions. It is further recommended that the examination questions and Petitioner's Exhibit 6 pertaining to certain of the examination questions be sealed as confidential exhibits. DONE AND ENTERED this 19th day of January, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 19th day of January, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-4924 The post-hearing submittal filed by Petitioner consists of argument and suggestions as to measures the Respondent should take to improve the examination, but does not contain proposed findings of fact that require a ruling from the undersigned. The proposed findings of fact submitted by Respondent are adopted in material part by the Recommended Order. COPIES FURNISHED: Joseph A. Trillo 800 Jeffrey Street Boca Raton, Florida 33487 Vytas J. Urba, Esquire Assistant General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Daniel O'Brien, Executive Director Department Of Professional Regulation Electrical Contractors Licensing Board 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the petitioner is entitled to credit for the answers given to the challenged questions in the General Contractor’s examination administered October 18, 1995.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Business and Professional Regulation, Construction Industry Licensing Board, is the state agency with jurisdiction over the examination and regulation of general contractors in the State of Florida. Sections 489.107(4) and .113(1), Florida Statutes. Mr. Simmons sat for the General Contractor examination on October 18, 1995, and received a failing grade of 68.75 percent on the business and financial administration portion of the examination. Even though he passed the other two portions of the examination, Mr. Simmons failed the examination as a result of the failing grade on this portion of the examination. Mr. Simmons subsequently filed a timely challenge to unspecified test questions on the business and financial administration portion of the examination. He presented evidence at the hearing concerning the sufficiency of his answers to questions 13 and 22 of the financial administration section of the examination and claimed that he would have presented evidence relating to questions 18 and 39 of the business administration section but could not because he was not certain that the questions included in the review materials provided to him by the respondent were the same as the questions included in the test booklet he used on October 18, 1995. Question 13 of the financial administration section of the examination is an objective, multiple choice question. The applicant is to choose the correct answer from among four choices. The correct answer to question 13 is “C," but Mr. Simmons incorrectly chose “B.” Question 22 of the financial administration section of the examination is an objective, multiple choice question. The applicant is required to choose the correct answer to the question from among four answers provided and is to choose the correct answer based only on the information included in the question. The correct answer to question 22 is “C," but Mr. Simmons incorrectly chose “A.” Mr. Simmons failed to prove that questions 18 and 39 of the business administration section of the examination included in the review manual provided to him by the respondent were not the same questions included in the test booklet he used on October 18, 1995. Because he failed to present any evidence regarding the sufficiency of his answers to these questions, he is deemed to have abandoned any substantive challenge to them. Question 13 of the business administration section of the examination is clear and unambiguous, and only one correct answer was included among the answer choices. The correct answer is found in the reference material which Mr. Simmons was permitted to use while he was taking the examination. The respondent correctly gave no credit to Mr. Simmons for his answer to this question because it was the wrong answer. Question 22 of the business administration section of the examination is clear and unambiguous, and only one correct answer was included among the answer choices. The method for determining the correct answer from the information provided in the question is contained in the reference materials Mr. Simmons was permitted to use while he was taking the examination. The respondent correctly gave no credit to Mr. Simmons for his answer to this question because it was the wrong answer.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Business and Professional Regulation, Construction Industry Licensing Board, issue a final order dismissing Alfred Simmons’s challenge to the subject examination and that the examination questions and answers provided at the hearing be sealed and not open to public inspection. DONE AND ENTERED this 3rd day of January, 1997, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 1997. COPIES FURNISHED: Alfred Simmons 7755 West Kismet Street Miramar, Florida 33023 R. Beth Atchison, Assistant General Counsel Department of Business and Professional Regulation Construction Industry Licensing Board Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Richard Hickok, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467
The Issue Whether Petitioner is entitled to credit for his answers to questions 41 and 48 on the February 2000 Construction, Building Contractor (Contract Administration) examination.
Findings Of Fact Upon consideration of oral and documentary evidence received at the hearing, the following relevant findings of fact are made: The examination for licensure of a general contractor in the State of Florida is administered by the Department of Business and Professional Regulation, Division of Technology, Licensure and Testing. Chapter 455.217, Florida Statutes. A written examination is authorized by Rule 61G4-16.001, Florida Administrative Code. Respondent contracts with Professional Testing, Incorporated, 1200 East Hillcrest Street, Orlando, Florida, which develops tests for the Florida Construction Industry Licensing Board. This practice is approved by Section 455.217, Florida Statutes. Professional Testing, Incorporated, ensures that questions and answers are not ambiguous through a number of methodologies. Petitioner has been an "original" candidate for the construction, building contractor examination twice. The examination has three sections: business finance, project management, and contract administration. A candidate may retake any section three times before the entire examination has to be retaken. One of the questions Petitioner is challenging is the same question he had on the June 1999 examination, that is, the "S mortar" question. This question was repeated on the August 1999 and the February 2000 examination. The copies of the "S mortar" question and answers on the August 1999 and February 2000 examinations which were accepted into evidence were identical. Petitioner maintains that the August 1999 examination question and answers accepted into evidence is not the same as the one he had on his examination. Petitioner agrees that the answer he gave, 20.74, was an incorrect answer and that 46.67 (the "graded correct" answer) was correct. Petitioner maintains that the 20.74 answer he gave on the February 2000 examination was a result of having been advised that 46.67 was an incorrect answer on the August 1999 test. Petitioner examined his original answer sheet form both examinations (August 1999 and February 2000) at the hearing. Petitioner's original answer for the August 1999 examination showed his answer to be "B", an incorrect answer, not the "graded correct" answer "C" (which was 46.67). The second challenged question is question 48 which deals with a "critical activity list" also called a "critical activity interval" or "critical path." Petitioner's answer is 106 days; the "graded correct" answer is 86 days. Question 48 asked the test taker to identify "the latest day work must begin on the roofing activity." One-hundred and six is the number of days the roof must be completed by (not when work must begin). Since this roofing activity takes 21 days it must begin on the 86th day to be complete on the 106th day. The psychometrician expert witness testified that both questions (and answers) were within acceptable statistical ranges as valid. That opinion is accepted.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Bureau of Testing, enter a final order denying Petitioner's challenge to questions 41 and 48. DONE AND ORDERED this 30th day of January, 2001, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 30th day of January, 2001. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jermado Emmanuel Turner 6511 John Aldan Way Orlando, Florida 32818 Cathleen O'Dowd, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the Florida Real Estate Commission (hereinafter referred to as the "Commission") should refuse, on the grounds set forth in its August 17, 1994, order, to certify Petitioner as qualified to practice as a real estate salesperson in the State of Florida?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: On or about June 20, 1994, Petitioner filed with the DRE an application for licensure as a real estate salesperson. Petitioner took the real estate salesperson's licensure examination that was administered on July 25, 1994, in Miami, Florida (hereinafter referred to as the "Examination"). The Examination, which consisted of 100 multiple choice questions, began sometime between 8:35 and 8:45 a.m. on the morning of July 25, 1994, after the candidates had been read approximately five pages of written Examination instructions. Petitioner entered the Examination room late, at approximately 9:45 a.m., at which time he was given an Examination booklet and answer sheet and escorted to his seat. He was asked if he wanted to be read the written Examination instructions that had been read to the candidates prior to his arrival, but he declined the offer inasmuch as he was anxious to begin the Examination. Petitioner was seated at a table next to Candidate #362078. Although there were two different "forms" of the Examination, an "odd form" and an "even form," both Petitioner and Candidate #362078 had the same form. On various occasions during the Examination, Petitioner looked at Candidate #362078's answer sheet to see Candidate #362078's answers. 1/ At least four proctors witnessed such conduct. In accordance with DRE policy, Petitioner was allowed to finish the examination. Petitioner answered 85 of the 100 questions on the Examination correctly, one less than Candidate #362078 answered correctly. Petitioner and Candidate #362078 answered 75 of the same questions correctly. There were five questions that both Petitioner and Candidate #362078 answered incorrectly. They chose the identical incorrect response on four of these five questions (Questions 24, 46, 59 and 99). On Question 24, Petitioner and Candidate #362078 both gave "A" as the answer to the question. Only 10.4 percent of the 1049 candidates taking the Examination gave this incorrect response to Question 24. On Question 59, Petitioner and Candidate #362078 again both gave "A" as the answer to the question. Only 12.4 percent of the 1049 candidates taking the Examination gave this incorrect response to Question 59.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Commission enter a final order refusing to certify Petitioner as qualified to practice as a real estate salesperson in the State of Florida, without prejudice to Petitioner reapplying for licensure at such time as he is able to show that, because of the lapse of time since the Examination and his subsequent good conduct and reputation, or other reason deemed sufficient, he is qualified to practice as a real estate salesperson and therefore the interest of the public and investors will not likely be endangered by the granting of such licensure. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of February, 1995. STUART M. LERNER 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 February, 1995.
The Issue Whether Petitioner is entitled to additional credit for his responses to question numbers 21 and 24 of the Principles and Practice of Engineering Examination administered in April 1998.
Findings Of Fact Petitioner took the April 24, 1998 professional engineering licensing examination with an emphasis in civil engineering. A score of 70 is required to pass the test. Petitioner obtained a score of 69. In order to achieve a score of 70, Petitioner needs a raw score of 48. Therefore, Petitioner is in need of at least one additional raw score point. Petitioner is challenging question numbers 21 and 24. They are both multiple-choice questions and worth one point each. Exhibit 10 contains a diagram for the candidate's use in answering question numbers 21 and 24. Question 21 requires the examinee to calculate the percentage of wooded land on the diagram. The diagram contains a rectangle labeled "woodlot," and within the rectangle are three non-contiguous areas marked with schematics of trees. The Petitioner reduced the percentage of wooded area to conform to the portion of the area labeled "woodlot" marked with schematics of trees. In regard to question number 21, the Petitioner asserts that as a matter of convention, by failing to put the trees everywhere in the wooded lot, one may assume that there are trees only where there is a schematic of the trees. The Petitioner's challenge was rejected on the basis that the scorer opined that it is standard practice that drawings are only partially filled with details, and the most reasonable interpretation of the site plan drawings is that the woodlot fills the entire area enclosed by the rectangle. John Howath, a professional engineer, testified regarding accepted conventions in engineering drawings. In Howath's opinion the drawing on the examination used inconsistent methodologies and was confusing regarding whether all of the area designated by the label or "call out" of woodlot was in fact wooded. Both the Petitioner and Mr. Howath referred to drawings in the Civil Engineering Reference Manual which showed areas on drawings totally covered with visual indications of a particular material or condition. Peter Sushinsky, a professional engineer, testified as an expert for the Respondent. Mr. Sushinsky acknowledged the Petitioner's exhibits; however, Mr. Sushinsky noted that these were only a few examples of drawings that are available. Mr. Sushinsky referenced construction drawings he had seen in his practice with partial "cross-hatching" just like the diagram on the examination. In sum, Mr. Sushinsky's experience was that diagram might be totally or partially "cross-hatched." In Mr. Sushinsky's opinion it was not a bad diagram, only subject to a different interpretation by a minor group. Question number 24 asked the candidate to calculate the weir peak discharge from the catchment area using the rational formula. The Petitioner asserts the question is misleading and should read, "What is the peak discharge from the watershed?" The Petitioner bases his assertion on the ground that the "rational formula" is used to compute discharge from a watershed not a weir, as mandated by the question. The scorer did not address the Petitioner's concerns. The scorer stated, "It is clear from the item statement that the weir equation is not to be used." However, the questions ask the candidate to compute the weir discharge. Jennifer Jacobs, a professor of engineering, testified regarding the rationale formula that it was used to calculate watershed discharge and not weir discharge. All experts agreed that the rational formula is not used to compute weir discharge. The experts all agree that the question was confusing because the rational formula is not used to calculate the discharge from a weir. The Respondent's expert justifies the answer deemed correct on the basis that if one uses the rational formula and computes the watershed discharge, one of the answers provided is close to the result. The Respondent's expert calculated the watershed discharge as 230.6 cubic feet per second (cfs). The answer deemed correct was 232 cfs. The expert stated the weir attenuates flow. If the weir attenuates flow one would expect an answer less than 230.6 cfs., not an answer equal to or greater than 230.6 cfs. The amount of attenuation is based upon the physical features of the impoundment area and the mouth of the weir. Weir Attenuation varies. The only answers smaller than 230.6 are 200 or 32. Is the 232 cfs. answer wrong because it does not allow for attenuation by the weir? How much did the weir attenuate the flow? Under these facts, the question is capricious. The Respondent argues that the Petitioner didn't follow instructions while acknowledging that the "correct" answer is not the answer to the question that was asked.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Respondent enter a final order awarding Petitioner two raw points and a passing score on the Principles and Practice of Engineering Examination. DONE AND ENTERED this 20th day of May, 1999, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 1999. COPIES FURNISHED: Mark W. Nelson 720 Northwest 31st Avenue Gainesville, Florida 32609 Natalie A. Lowe, Esquire Board of Professional Engineers 1208 Hays Street Tallahassee, Florida 32301 Dennis Barton, Executive Director Board of Professional Engineers 1208 Hays Street Tallahassee, Florida 32301 William Woodyard, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact In April, 1988, Petitioner sat for the examination given by Respondent to become certified in Florida as a Professional Engineer. Petitioner received a failing grade on the examination. Petitioner received a score of 46 where a score of 48 was necessary to pass the examination. Following notification that he had failed the examination, Petitioner filed a timely challenge to question 275 of the examination, contending that he had been given inadequate credit for his answer. A perfect answer to question 275 was worth 10 points. When Petitioner's answer to question 275 was first graded, Petitioner was awarded a score of 2 points. At Petitioner's request, his answer to question 275 was reevaluated. As a result of the reevaluation, Petitioner was awarded an additional two points for his answer to question 275, so that the total points awarded Petitioner for his answer to question 275 was 4 points of the possible 10 points. Petitioner contends that he should be awarded at least six points for his answer to question 275. The examination questions were prepared by the National Council of Engineering Examiners, which prepares examination questions for a number of states, including the State of Florida. Question 275 required the applicant to answer the question by assuming certain data and by applying a certain formula. The question required the applicant to give the answer and to show how he arrived at the answer. The final answer to the question given by Petitioner was the correct answer to the question. However, in coming to his answer, Petitioner did not use the formula required by the question and he did not properly utilize the information given by the question. The answer given by Petitioner to question 275 of the examination was only partially correct. The score Petitioner received for his partially correct answer was not arbitrarily or capriciously awarded.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Respondent, State of Florida, Department of Professional Regulation, enter a final order which denies Petitioner's challenge to question 275 of the examination. It is further recommended that the exhibits filed in this proceeding be sealed. DONE and ENTERED this 14th day of September, 1989, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-3254 The rulings on the proposed findings submitted on behalf of Petitioner in his letter filed September 5, 1989, are as follows: The proposed findings contained in the first paragraph of the letter are rejected as being unsupported by the record and as being argument. The proposed findings contained in the second paragraph of the letter are rejected as being contrary to the evidence presented at the formal hearing. The proposed findings contained in the third and fourth paragraphs are rejected as being argument The rulings on the proposed findings contained in Respondent's Proposed recommended order are as follows: The proposed findings contained in the first paragraph are accepted in substance. See Paragraphs 1 and 2 of the recommended order. The proposed findings contained in the second paragraph are rejected as being contrary to the evidence. See Paragraph 2 of the recommended order. The proposed findings contained in the third paragraph are accepted in substance. See Paragraph 3 of the recommended order. The proposed findings contained in the fourth paragraph are accepted in substance. See Paragraph 4 of the recommended order. The proposed findings contained in the fifth paragraph are rejected as being subordinate to the conclusions reached. The proposed findings contained in the sixth paragraph are rejected as being subordinate to the conclusions reached and as being the recitation of testimony. COPIES FURNISHED: Francisco A. Lee 3885 Edgar Avenue Boynton Beach, Florida 33436 E. Harper Field, Deputy General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth E. Easley, - General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Allen R. Smith, Jr., Executive Director Department of Professional Regulation Board of Professional Engineers 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Petitioner's challenge to the State Officer's examination should be sustained.
Findings Of Fact Petitioner took the State Officers Certification Examination (SOCE) on August 29, 2007. This was Petitioner's third time taking the examination, which he did not pass. While it is clear that Petitioner did not pass, no evidence was presented indicating what score was achieved on the examination. Likewise, no evidence was presented regarding the value of the questions challenged in this proceeding. Therefore, it cannot be determined on this record whether awarding credit for or discarding the two challenged questions would result in a passing score. Question 1281/ required the applicant to demonstrate knowledge of the formula used for calculating the speed a car was traveling from skid marks. The scenario in the question provided enough information for the test taker to answer the question correctly. The proposed answers placed different factors from the scenario in the formula. The correct answer fitting the formula was answer choice "C". Petitioner answered "B". Petitioner challenged the question because the correct answer reflected a whole number and resulted from "rounding up," when the training materials provided instructed students not to "round up." The question did not ask the applicant for the exact number, but asked that they identify the answer with the correct formula components. Petitioner's answer did not include the appropriate formula components. The correctness of Petitioner's answer was in no way affected by his complaint about "rounding up." Indeed, all of the available answers were whole numbers. Question 128 is statistically valid. Eighty-two percent of all applicants who have answered this question have answered it correctly. The question has been answered by 3,606 students. Of that number, 2,960 students have answered the question correctly, while only 399 have chosen the answer selected by Petitioner. Question 150 required the applicant to determine what charges could be considered against a person going under or attempting to go under a crime-scene tape. The scenario in the question provided enough information for the test-taker to answer the question correctly. Given the facts presented in the scenario for question 150, the correct answer was "D". Petitioner answered "C". Petitioner's challenge to the question is based upon assumptions related to the scenario that were not presented in the examination, coupled with a misreading of the training materials. Moreover, of the 1,126 applicants who have answered question 150, 757 students have answered the question correctly. Only 353 applicants have chosen the answer selected by Petitioner. Petitioner has failed to show that either question 128 or question 150 was unclear, ambiguous or in any respect unfair or unreasonable. Neither has he established that he answered either question correctly.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Florida Department of Law Enforcement enter a final order rejecting Petitioner's challenge to the scoring on questions 128 and 150 of the SOCE and dismiss the petition in this proceeding. DONE AND ENTERED this 12th day of February, 2008, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 12th day of February, 2008.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: On April 19, 1990, petitioner, Don R. Blackburn, was a candidate on the engineering intern portion of the professional engineer examination given in Miami, Florida. The test was administered by the Department of Professional Regulation (DPR) on behalf of respondent, Board of Professional Engineers (Board). On July 25, 1990, the Board issued a written uniform grade notice advising petitioner that he had received a grade of 66 on the examination. A grade of 70 is necessary to pass this part of the examination. By letter dated August 15, 1990, petitioner requested a formal hearing to contest his score. In his letter, Blackburn generally contended that the examination was unfairly administered because certain books were allowed to be used by some but not all candidates, untrained proctors were given the authority to scan review materials and determine which could or could not be used by the candidates, and because of the chaos and confusion that occurred during the examination, he was unable to attain a score that he otherwise would have been able to achieve. Blackburn is an engineer for Lee County and is seeking to pass the engineering intern portion of the examination. A passing grade on that portion is a prerequisite to sitting on the second part of the professional engineer examination. He has taken the examination on a number of occasions and has gradually improved his score to just short of passing. Indeed, on the October 1989 examination, Blackburn scored a 69, or just one point less than the required 70. Prior to the April 1990 examination, the engineering intern portion of the professional engineer examination was an unrestricted open book examination. This meant candidates could use any and all reference and review materials during the examination. Beginning with the April 1990 examination, the Board imposed certain restrictions on the use of review materials. As early as October 9, 1989, the Board's executive director sent a memorandum to all candidates on the October 1989 examination, including Blackburn, concerning the new restrictions. The memorandum stated in part: Please be advised of certain restrictions listed in the Candidate Information Booklet which will not be implemented until the April 1990 examination. These restrictions are found in the "Examination Administration Information" section and are concerning the following two areas: * * * 2. Books or information containing sample questions or engineering problems may also be brought provided they are bound. Again, the new restrictions listed in the Candidate Information Booklet regarding the above two areas WILL NOT be implemented until the April 1990 examination. All candidates on the April 1990 examination were given a Candidate Information Booklet prepared in January 1990 by DPR's Bureau of Examination Services. On pages 13 and 14 of the booklet was found the following information: This is an open book examination. Candidates may use textbooks, handbooks, notes, and reference materials which are bound, copyrighted and printed. The term "bound" refers to material that is bound permanently, hard or paperback stitched or glued, or spiral, plastic or three-ringed bound. The printed material must remain contained (bound) in its cover during the entire examination. No writing tablets, unbound tablets or unbound "loose notes" will be allowed. No books with contents directed toward sample questions or solutions of engineering problems are permitted in the examination room. Examinees are not permitted to exchange reference materials or aids during the examination. (Emphasis in original) What the emphasized language meant is that "review" manuals, which contain problems and solutions, were prohibited from use during the examination while "reference" books were not. However, the booklet did not list the specific names of published materials that would be permitted or excluded. In order to ascertain which books he might use on the next examination, on March 27, 1990, Blackburn telephoned the Board in Tallahassee and spoke with a female employee named "B. J." who advised him that "review publications directed principally towards the solution of engineering problems" would be excluded. When asked if "Lindeburg's Sixth Edition" would be authorized, B. J. told Blackburn she wasn't sure and that it would be left up to the proctors in the room. She did say, however, that a review manual authored by Schaum could be used. The engineering intern examination in April 1990 was administered in two separate rooms at the Radisson Hotel in Miami, Florida. Blackburn was in a "very large" upstairs room with approximately thirty other candidates while a similar number took the examination in a downstairs room. The examination in the upstairs room began at 8:43 a.m. after various instructions were read to the candidates by the examination supervisor, Jeannie Smith, a veteran of twenty years in proctoring and supervising professional examinations. According to Smith, there was "considerable confusion" concerning which books could be used by the candidates, particularly since this was the first examination given with the new restrictions. She also acknowledged that there was "chaos" prior to the beginning of the examination and that this was, "extremely upsetting" to the examinees. However, before the examination began, Smith announced on a microphone the names of certain books which the Board had given her that were either prohibited or could be used by candidates. She further advised that if candidates had any questions they were to come to a bulletin board by the microphone where she had posted Xerox copies of the covers of various books. If a book could be used, it had the word "YES" printed on the cover while a "NO" was printed on those covers of books that could not be used. 1/ It is noted that only one cover sheet with a "YES" was posted, that being the Civil Engineering Reference Manual, Fourth Edition, Michael R. Lindeburg. However, at least three candidates who took the examination that morning, including petitioner, did not see the posted materials nor hear the invitation for candidates to come to the bulletin board. One book in issue that was specifically prohibited was Engineer In Training Review Manual, Sixth Edition, Michael R. Lindeburg, which contained 378 solved problems, and thus fell within the general prohibition of review manuals described on page 14 of the Candidate Information Booklet. However, those candidates who had the Seventh Edition of the same book were allowed to keep and use that manual even though it contained 422 solved problems, or some 44 more solved problems than was contained in the prohibited Sixth Edition. By allowing those students having the Seventh Edition to use the same even though it contained "review" materials, DPR violated the instructions contained in the Candidate Information Booklet and gave an advantage to those candidates not enjoyed by others, including petitioner. In addition, at least one other candidate in the upstairs group was allowed to use a prohibited review manual (Schaum's Outline Series, Theory and Problems of Electric Power Systems) but still that candidate did not attain a passing grade. Petitioner also contended that candidates taking the examination in the downstairs room were allowed to use language dictionaries during the morning part of the examination while those upstairs could not. 2/ Petitioner's contention is grounded upon hearsay evidence and accordingly it is found that no competent proof to support this claim was submitted. However, there was obviously some confusion over this matter because, after receiving complaints of this nature from two candidates, Smith telephoned the Board's offices in Tallahassee during the lunch break to ascertain whether such books could be used. Upon learning that they could not, she advised the upstairs group at the beginning of the afternoon session that dictionaries were not allowed. Blackburn also established that during the examination proctors went from desk to desk examining the materials that each candidate had in his possession. If a candidate had what the proctor perceived to be a book containing solutions to problems, the candidate was told to put the book on the floor. In the alternative, she candidates were told that if they tore the offending pages out of the book, they could continue using the remaining materials. Petitioner has complained that the proctors were not engineers and they were untrained in determining whether a book was acceptable or not. The Board has conceded that engineers do not proctor examinations but asserted that they are intelligent enough to determine whether books fall within the proscribed category. According to Blackburn's proctor at the examination, George Walton, a retired Coast Guard captain and engineering graduate of the Coast Guard Academy, he relied upon the list of approved and disapproved books supplied by the Board prior to the examination in determining whether materials would be excluded or not. Walton also stated that if he examined a book and found it contained solutions, he would disallow the same unless the offending pages were removed. A DPR expert in testing and measurements, Dr. Joseph A. Klock, examined the pass/fail rate for the examination taken by Blackburn and compared that rate to the October 1989 examination rate. Doctor Klock found no significant difference in the two rates and concluded that there was no statistically significant difference in performance of candidates over those time periods despite the confusion which occurred during the April 1990 examination. Blackburn did not present any evidence to show that if he had used the Seventh Edition of the Engineer In Training Review Manual, he would have been able to achieve more points on a particular problem and thus would have had a passing grade. Blackburn's principal complaint was that he had spent many hours preparing for the examination in question, that he was forced to guess which books to bring to the examination, and because of the confusion and chaos that took place at the beginning of the examination as well as his awareness that others were using a review manual with solved problems, it was impossible for him to give his best effort on the examination.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner's request to receive a passing grade on the April 1990 professional engineer examination be DENIED. However, petitioner should be entitled to retake the next examination at no charge. DONE and ENTERED this 28th day of November, 1990, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of November, 1990.
The Issue Is Petitioner entitled to one additional point on the October 1996 Professional Civil Engineer Examination so as to achieve a passing score for licensure in Florida?
Findings Of Fact Petitioner took the Civil Engineer Examination given in October 1996. The Department of Business and Professional Regulation's Bureau of Testing notified Petitioner by Examination Grade Report dated February 17, 1997, that she had earned a score of 69.00 on the Civil Engineer Examination. The minimum passing score for the Civil Engineer Examination is 70.00. Petitioner timely requested formal hearing and challenged only Question 120, for which she received no points. Petitioner is trained as a materials engineer. Question 120 is a soils and foundation problem outside her concentrated area of study. It is an open book examination question. Petitioner selected the correct equation from the applicable manual, but acknowledged that she solved the variables of that equation incorrectly. The National Council of Examiners for Engineering and Surveying (NCEES) produced, distributed, and was responsible for grading the examinations. Petitioner contended that the examiner who graded her answer sheet applied different criteria than the examination criteria published by the NCEES. Petitioner further contended that since one criterion her grader actually used was merely to "write the correct equation," she should be awarded at least one point on that basis. However, a comparison of the actual grader's handwritten "summary" on Petitioner's Solution Pamphlet (Respondent's Exhibit 3) and the NCEES's Solutions and Scoring Plan (Respondent's Exhibit 2) does not bear out Petitioner's theory. It is clear that out of five possible parts of the question, which five parts total two points' credit each, merely selecting the correct equation from an open text would not amount to two points, or even one point, credit. I accept as more competent, credible and persuasive the testimony of Eugene N. Beauchamps, the current Chairman of the NCEES Examination Policy Committee and a Florida licensed Professional Engineer, that the grader's "summary" describes what he actually reviewed in Petitioner's written solution to Question 120 rather than establishing one or more different grading criteria. In order to receive a score of two on Question 120, the candidate was required to demonstrate any one of five requirements listed in the NCEES Solution and Scoring Plan for "2-Rudimentary Knowledge." The first requirement in the NCEES Solution and Scoring Plan (Respondent's Exhibit 2) for receiving a score of two points is, "Determines effective overburden stress at mid- depth of clay layer." The remaining four NCEES scoring criteria required that the examinee: Computes the change in effective stress at mid- depth of the clay layer due to placement of the fill. Computes the primary consolidation settlement, based on a change in effective stress, due to the fill surcharge. Evaluates the Average Degree of Consolidation and the Time Factor. Determines the waiting period after fill placement recognizing the existence of double-drained conditions. In order to gain two more points (total 4 points) so as to demonstrate "More Than Rudimentary Knowledge But Insufficient to Demonstrate Minimum Competence," Petitioner would have to have met two of the five bulleted criteria. For two more points (total 6 points) for "Minimum Competence," Petitioner would have had to score three bullets. For two more points (total 8 points) for "More than Minimum But Less Than Exceptional Competence," Petitioner would have had to score four bullets. Finally, to attain "Exceptional Competence" for 10 total points, Petitioner would have had to score all five bullets. In the first correct equation for answering Question 120, "p sub zero" (p naught) equals the present effective overburden pressure, which represents what clay was present before anything was put on top of the clay layer. "P" equals the total pressure acting at mid-height of the consolidating clay layer or the pressure of the dirt and the water in the dirt. "H" equals the thickness of the consolidating clay layer. Petitioner's solution for the first bullet, "determining the effective overburden stress at mid-depth of clay layer," indicated p sub zero (p naught) as the "present effective overburden pressure," but it incorrectly calculated p sub zero equaling 125 pounds multiplied by 13 feet. This is incorrect because the effective overburden pressure would not include 13 feet of fill. The 13 feet of fill is not part of p sub zero, the present effective overburden pressure. Petitioner's solution for the first bullet, also multiplied water, represented by 62.4, by 12, which is incorrect. She should have used a multiplier of 10 to receive credit for this problem. The grader indicated the correct equation was used incorrectly by Petitioner because of the two foregoing incorrect calculations. The equation, as Petitioner stated it, was correct and her multiplication was correct. Her solution identified P sub zero as present effective overburden pressure but present effective overburden pressure would not include the fill. Petitioner had the correct equation for the present effective overburden pressure and her mathematics were correct. However, she did not use the consolidation equation correctly, not obtaining the correct percentage of primary consolidation. As stated, the problem did not consider the fill as part of the present effective overburden pressure. Her solution also contained the correctly written time rate of settlement equation but failed to use it, and no waiting period was determined. The practical result of Petitioner's error could range from a cracked building to a collapsed building, depending upon the degree of error to site and materials.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a Final Order denying Petitioner's challenge and affirming her score as one point below passing. RECOMMENDED this 3rd day of March, 1998, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1998. COPIES FURNISHED: Susan E. Wilson 3581 Jose Terrace Jacksonville, Florida 32217 R. Beth Atchison Assistant General Counsel Department of Business and Profession Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Angel Gonzalez, Executive Director Department of Business and Profession Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Lynda L. Goodgame General Counsel Department of Business and Profession Regulation 1940 North Monroe Street Tallahassee, Florida 32399
