The Issue Whether Petitioner correctly answered one question on the December 1988 Landscape Architecture examination for which he received no credit, and, if so, the relief to which he is entitled.
Findings Of Fact In December, 1988, Petitioner sat for the examination given by Respondent to become certified in Florida as a Landscape Architect. Petitioner received a failing grade on Section 6, the Florida section of the examination. Petitioner received a score of 73.7 where a score of 75 was necessary to pass Section 6 of the examination. Following notification that he had failed Section 6 of the examination, Petitioner filed a timely challenge to question 14 of Section 6. Petitioner abandoned all challenges he may have made to other examination questions prior to the hearing. Question 14 of Section 6 is a multiple choice question. The question requires the applicant to identify certain plants that grow in a described area of Florida. The applicant has four possible answers from which to choose. The four selections contain the common name for each choice and, in parentheses, the formal botanical name for each choice. Only one of the four answers contains the correct response. The botanical name for each of the choices contained the name of the genus of the plant in Latin. Three of the choices contained, in addition to the genus, the name of the species of the plant in Latin. The correct answer to question 14 of Section 6 contained a typographical error so that the Latin designation for the species was misspelled. The correct answer correctly spells the common name for the plant and correctly spells the botanical name of the genus of the plant. Even with the misspelling, this remained the correct answer because any of the known species of this particular genus would have been a correct answer and because the other answers were clearly incorrect. The answer given by Petitioner to question 14 of Section 6 of the examination was an incorrect response. Respondent gave Petitioner no credit for his answer to question 14 of Section 6 because Petitioner gave the wrong answer to the question.
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 14 of Section 6 of the examination. It is further recommended that the examination question filed as an exhibit in this proceeding be sealed. DONE and ENTERED this 15th day of August, 1989, 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 15th day of August, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-1913 Respondent's Proposed Findings: The proposed findings of fact, submitted on behalf of Respondent, are addressed as follows: Addressed in paragraphs 1 - 2. Addressed in paragraph 2. Addressed in paragraph 3. Addressed in paragraph 6. Rejected as being unnecessary to the result reached. Rejected as being subordinate to the conclusions reached. Rejected as being subordinate to the result reached. Addressed in part in paragraph 6. Rejected in part as being recitation of testimony. Rejected as being subordinate to the findings made. COPIES FURNISHED: E. Harper Field, Deputy General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Harry Robert Wright Lloyd & Associates, Inc. Engineers, Architects, Planners and Surveyors 1835 20th Street Post Office Box 650369 Vero Beach, Florida 32965-0369 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Patricia Ard, Executive Director Department of Professional Regulation Board of Landscape Architecture 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The basic issue in this case is whether the Petitioner should be given a passing grade on the April, 1987, professional engineering examination. At the hearing the specific issues in dispute were narrowed to whether the Petitioner should be given a higher grade on each of three questions on the examination. At the hearing the Petitioner testified on his own behalf and presented the testimony of two other witnesses. He also offered several documentary exhibits into evidence. The Respondent offered the testimony of one witness and also offered several exhibits. Subsequent to the hearing a transcript of the hearing was filed with the Hearing Officer and the parties were given a reasonable time thereafter within which to file their proposed recommended orders. Both parties filed post-hearing submissions containing proposed findings of fact, conclusions of law, and recommendations. The parties' proposals have been given careful consideration in the preparation of this recommended order. All findings of fact proposed by all parties are addressed in the Appendix which is attached to and incorporated into this recommended order.
Findings Of Fact Based on the stipulations and admissions of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at hearing, I make the following findings of fact. The April, 1987, professional engineering examination required an applicant to work four problems in the morning session and four problems in the afternoon session, for a total of eight problems. In order to pass the examination, the applicant had to achieve an average score of six points for all eight problems, or a raw score of forty-eight points. Mr. Schmidt's examination was given a total score of forty points, comprised of scores as follows: 10, 8, 5, 5, 4, 4, 3, and 1. Mr. Schmidt, therefore, needs eight additional raw points in order to receive a passing grade on the examination. An additional requirement is that in order to receive a passing grade on the examination, the applicant must score six points or more on at least five of the eight questions. Mr. Schmidt is challenging three questions on the exam, questions 114, 411 and 418. On question 114, Mr. Schmidt was given a score of four. On question 411, Mr. Schmidt was given a score of five. On question 418, Mr. Schmidt was given a score of three. At the commencement of the hearing, the Respondent stipulated that Mr. Schmidt's score of question 418 should be increased to five. The Item Specific Scoring Plan (ISSP) is a device utilized to standardize graders so that a person grading a specific problem for various different candidates would consistently apply the same score to the same type of deficiency throughout the scoring process. There was an individualized Item Specific Scoring Plan for each problem given on the subject examination. Each of the Item Specific Scoring Plans contains objective criteria for assigning from 0 to 10 points to a candidate's answer to each question. There is no evidence that the Item Specific Scoring Plans are defective or arbitrary and capricious. The percentage of successful candidates on the chemical engineering examination has been rather low on recent examinations. Approximately 15% passed the April, 1986, exam. Only 2.9% passed the October, 1986, exam, and 25% passed the April, 1987, exam. During that same period of time the success rate was generally (but not always) higher for candidates for licensure in other fields of engineering. The grade of four given to Mr. Schmidt's response to question number 114 is consistent with the individualized Item Specific Scoring Plan for that question. The grade of five given to Mr. Schmidt's response to question number 411 is consistent with the individualized Item Specific Scoring Plan for that question. The grade of three given to Mr. Schmidt's response to question number 418 is not consistent with the individualized Item Specific Scoring Plan for that question. The parties have stipulated that Mr. Schmidt's grade on question number 418 should be at least five. The evidence is insufficient to show that Mr. Schmidt is entitled to a higher grade than five on question number 418.
Recommendation Based on all of the foregoing, I recommend that the Board of Professional Engineers issue a final order to the following effect: Increasing Petitioner's score on question 418 from three to five, leaving Petitioner's other scores unchanged, and assigning to Petitioner a final grade of forty-two. DONE AND ORDERED this 11th day of March, 1988, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4175 The following are my specific rulings on all of the proposed findings of fact submitted by the parties. Findings proposed by Petitioner: Petitioner's proposed findings regarding problem number 114 are essentially correct summaries of the testimony as far as they go. Nevertheless, most of them have been omitted as unnecessary subordinate details, particularly in view of the further testimony of Dr. O'Connell to the effect that he had no quarrel with the ISSP for this question and to the testimony of both Dr. O'Connell and Dr. Hanley to the effect that the grade given to Petitioner on this question is consistent with the ISSP. Petitioner's proposed findings regarding problem number 411 have for the most part been rejected as irrelevant on the basis of testimony by both Dr. O'Connell and Dr. Hanley to the effect that the ISSP required evidence of a trial and error solution and that such a solution is not shown in the Petitioner's answer. Petitioner's proposed findings regarding problem number 418 are essentially correct summaries of the testimony as far as they go. Nevertheless, most of them have been omitted as unnecessary subordinate details, in view of additional evidence to the effect that the Petitioner's boxed answer to this question was not a reasonable answer. With regard to the penultimate paragraph of the Petitioner's proposed findings, the first two sentences are essentially correct, but also irrelevant, because the burden of proof is on the Petitioner rather than on `the Respondent. With regard to the remainder of the penultimate paragraph, I have made findings regarding the success rate of chemical engineers, but find that evidence, standing along, insufficient to establish any impropriety in the examination. The final paragraph of the Petitioner's proposed findings is more in the nature of argument than proposed facts. It may well be that the Petitioner received less prehearing information from the Respondent than he was entitled to receive, but those are matters which should be raised before rather than after the hearing, and are matters which are waived if not timely asserted. Findings proposed by Respondent: Paragraph 1: Accepted. Paragraph 2: Accepted. Paragraph 3: Omitted as unnecessary subordinate details. Paragraph 4: Omitted as unnecessary subordinate details. Paragraph 5: The essence of this paragraph has been accepted, but most details have been omitted an unnecessary. Paragraph 6: Accepted. Paragraph 7: Accepted. Paragraph 8: Accepted in substance. Paragraph 9: Accepted. Paragraph 10: Accepted. Paragraph 11: Accepted. Paragraph 12: Omitted as unnecessary subordinate details. COPIES FURNISHED: Mr. Daniel B. Schmidt 2209 Northeast 15th Terrace Gainesville, Florida 32601 H. Reynolds Sampson, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Allen R. Smith, Executive Director Board of Professional Engineers 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue is whether Respondent is entitled to additional credit for correctly answering certain questions on the unlimited electrical contractor examination administered on January 19, 1996.
Findings Of Fact Petitioner began working for an electrical contractor in Tallahassee, Florida in 1959. He served three years as an apprentice under a journeyman electrician. After working in the trade for three and one-half years, Petitioner passed a test and became a journeyman electrician. Since 1972, Petitioner has been the owner of an electrical contracting business in Tallahassee, Florida. His company employs two master electricians, several journeymen electricians, and one electrical contractor. Petitioner took the examination for licensure as an unlimited electrical contractor for the third time on January 19, 1996. A minimum passing score on that examination is seventy- five (75.00) total points. On or about June 20, 1996, Respondent sent Petitioner an amended grade report indicating that Petitioner’s examination score was 73.30 and that he had failed the test. Block and Associates, an independent testing service, prepared the examination at issue for Respondent. The examination consist of multiple-choice questions which are machine graded. The morning session includes 100 technical questions. In order to answer some of the technical questions, an applicant must be able to read and interpret a power and lighting floor plan together with specifications. The afternoon session includes fifty (50) questions involving general principles of law and business. The subject examination is an open book test. Candidates may take certain designated reference material into the test area. The candidate’s information booklet advises that “these references should be brought to the examination site as questions will be asked that are based upon obtaining data from these references before answering.” The candidate’s information booklet directs the candidate to select the best answer to each question. The candidate is then advised that “[e]ach question has one answer, which will be graded as the correct answer to the question.” In other words, of the four answer choices for each question, Respondent considers only the best answer to be the “correct” answer. Respondent considers the other three answer choices to be “distractors” or incorrect answers for which the candidate will receive no credit. A distractor tests a candidate’s overall knowledge, skills and ability by being plausible but nonetheless wrong. In this case, Petitioner is challenging Respondent’s failure to give him credit for a “correct” answer in relation to six different questions - i.e., question numbers 20, 29, 51, and 90 from the morning session and question numbers 13 and 33 from the afternoon session. Question number 20, AM Session, states: All machines used for external or internal grinding shall be . provided with safety switches provided with permanently attached eye protection shields supplied with sufficient power to maintain the spindle speed at safe levels under all conditions of normal operation provided with safety flanges Respondent claims that answer C is the best answer. Petitioner chose answer D as the correct answer. Candidates may refer to the regulations of the Occupational Safety and Health Administration (OSHA), United States Department of Labor, found in 29 C.F.R. §1926 (1993) during the exam. 29 C.F.R. §1926.303 (1993) provides in pertinent part: §1926.303 Abrasive wheels and tools. Power. All grinding machines shall be supplied with sufficient power to maintain the spindle speed at safe levels under all conditions of normal operation. Guarding. (1) Grinding machines shall be equipped with safety guards in conformance with the requirements of American National Standards Institute, B7.1-1970, Safety Code of the Use, Care and Protection of Abrasive Wheels, and paragraph (d) of this section. . . . Use of abrasive wheels. . . . (6) When safety flanges are required, they shall be used only with wheels designed to fit the flanges. Only safety flanges, of a type and design and properly assembled so as to ensure that the pieces of wheel will be retained in case of accidental breakage, shall be used. . . . . The focus of question number 20 is on safety in the use of power tools as regulated by OSHA. The concept that machines used for grinding shall be provided with safety guards and safety flanges is clearly articulated in the OSHA standards. In this case, the authoritative references and other competent evidence support answers C and D as correct answers for question number 20. However, the greater weight of the evidence indicates that answer D is the better answer. Therefore, Respondent should have given Petitioner credit for correctly answering question number 20, AM Session. Question number 29, AM Session, states: A digital fire alarm communicator transmitter shall be connected only to a telephone circuit. “loop start” “ground start” party line single line Respondent maintains that answer A is the best answer. Petitioner answered D. The National Fire Protection Association (NFPA) publishes the National Fire Alarm Code in conjunction with the American National Standard Institute (ANSI). NFPA 72, National Fire Alarm Code (1993), is an approved reference for the subject examination. NFPA 72, §§ 4-2.3.2.1.1 and 4-2.3.2.1.3 (1993) provide as follows: 4-2.3.2.1.1 A DACT [Digital Alarm Communicator Transmitter] shall be connected to the public switched telephone network upstream of any private telephone system at the protected premises. In addition, special attention is required to ensure that this connection shall be made only to a loop start telephone circuit and not to a ground start telephone circuit. * * * 4-2.3.2.1.3 A DACT shall be capable of seizing the telephone line (going off-hook) at the protected premises, disconnecting an outgoing or incoming telephone call, and preventing its use for outgoing telephone calls until signal transmission has been completed. A DACT shall not be connected to a party line telephone facility. Answers A and D are both correct answers to question number 29. However the greater weight of the evidence indicates that answer A is the better answer because a single line can be loop started or ground started. Therefore, Respondent properly determined that Petitioner should receive no credit for question number 29, AM Session. Question number 51, AM Session, states: If the building lost normal power for a period of time in excess of 1-1/2 hours, how many lights would be required to remain functional? 0 2 4 7 Respondent claims that answer A is the best answer. Petitioner chose answer B as the correct answer. Question number 51 requires the candidate to review plans, drawings, and electrical schematics in order to select the correct answer. The plans reveal the existence of two battery powered emergency lights. The electrical legend states that the emergency lights are “[f]lourescent with emergency battery pack to provide 90 minutes of illumination on normal power failure.” Although it is not apparent on the face of the question or the electrical legend, the emergency battery pack would automatically recharge upon the restoration of normal power to the building. Respondent used the word “functional” in question number 51 to test the candidate’s knowledge that emergency light battery life, absent power, was 1-1/2 hours. Respondent’s answer of “zero” reflected that the emergency light battery pack would be completely discharged leaving the emergency lights without the capacity to illuminate after 1-1/2 hours of an on-going power failure. Petitioner, recognizing the recharge capability of the emergency lights, considered the word “functional” to include the proposition that the battery recharging process would occur upon restoration of normal power. This interpretation requires the candidate to assume that normal power will be restored and the battery pack recharged. Depending on the interpretation that a candidate places on the word “functional” in question number 51, either answer A or B could be considered correct. However, the greater weight of the evidence indicates that answer A is more correct than answer B. Answer A, unlike answer B, does not require the test taker make assumptions not apparent on the face of the question. Therefore, Respondent properly determined that Petitioner should not be given credit for correctly answering question number 51, AM Session. Question 90, AM Session, states: The required size of an electrical conductor is determined by all but which of the following? either stranded or solid length material amps Respondent asserts that answer A is the correct answer. Petitioner chose answer B. There is no correct or “best” answer for question number 90. All four choices are useful to some degree in determining the size of an electrical conductor. The NFPA publishes NFPA 70, National Electrical Code (1993), which is an approved reference for the subject test. In that code Table 8, Conductor Properties, clearly shows that the difference between stranded or solid wire has an objective, quantifiable effect on the required size of an electrical conductor. The selection of solid versus stranded wire produces a different result for ohms, i.e. resistance. Resistance is part of the consideration to determine the correct size of the wire. Petitioner’s answer to question number 90 was incorrect because the required size of an electrical conductor is determined in part by its length. Respondent’s answer to question number 90 was also incorrect because the size of an electrical conductor depends in part on whether the wire is solid or stranded. Respondent’s question failed to give sufficient information for Petitioner to select “stranded or solid” as the correct or best answer because the question did not request the candidate to choose the least important factor in determining the size of an electrical conductor. As the question was written, Petitioner’s answer was no more incorrect than Respondent’s. Under these circumstances, Petitioner should receive credit for answering question number 90, AM Session, correctly. Question number 13, PM Session, states: A “credit memo” from your bank could indicate . a charge for preprinted checks a check you deposited has been returned a check you wrote for $100.00 was cleared at $1,100.00 interest given to you Respondent claims that answer D is the best answer. Petitioner chose answer C. The 1987 edition of Builder’s Guide to Accounting, by Michael C. Thomsett, is an approved reference for the subject test. That text states in pertinent part: Error adjustments Your bank notifies you about error they find. For example, if you have a math error on a deposit, the bank will send you either a debit memo (advising you to decrease your balance) or a credit memo (advising you to increase your balance). . . Banking terminology can be confusing. Charges, debits and debit memos are all ways of reducing your balance. Credits and credit memos increase your balance. Thomsett, Michael C., Builder’s Guide to Accounting, Craftsman Book Company (1987) p.80. Respondent’s answer choice of “interest given to you” is correct if the account in question is an interest bearing account. Interest paid on such an account would increase the account balance. However, corporate checking accounts do not pay interest in the state of Florida. Likewise, Petitioner’s answer choice of “a check you wrote for $100.00 was cleared for $1,100.00” would result in a credit memo when the bank realized its error and adjusted the account to reflect the increased balance regardless of whether the account was personal or corporate. Petitioner’s answer is just as correct as Respondent’s because there was not enough information given in the question to allow Petitioner to select answer D as the correct answer or to determine that answer C was an incorrect answer. Accordingly, Petitioner should be given credit for correctly answering question number 13, PM Session. Question number 33, PM Session, states: Bonding capacity is . the maximum value of uncompleted work a bonding company will allow a contractor to default on at any one given time The maximum value of work a bonding company will allow a contractor to bid at any one given time the maximum value of uncompleted work a bonding company will allow a contractor to have on hand at any one given time the maximum value of work a bonding company will allow a contractor to bid in any one year Respondent claims that answer C is the correct answer. Petitioner chose answer B as the correct answer. One of the approved references for the subject test is the 6th edition of Construction Contracting by Richard H. Clough. Section 7.13 of that text states as follows in pertinent part: 7.13 Bonding Capacity A useful concept widely used by the construction industry is that of ’bonding capacity’ or ’bonding line.’ These terms have no precise definition but refer to the maximum value of uncompleted work the surety will allow the contractor to have on hand at any one time. . . . Clough, Richard H., Construction Contracting, 6th edition, John Wiley & Sons (1994) p.188. Answers B and C are both correct in part. Uncompleted work is one of many factors used by sureties to determine bonding capacity. Sureties also consider the applicant’s background, experience, ability, equipment, type of personnel and financial performance. However, the greater weight of the evidence indicates that answer C is the best answer. Therefore, Respondent properly determined that Petitioner should not receive credit for correctly answering question number 33, PM Session.
Recommendation Based on the Findings of Fact and Conclusions of Law set forth above, it is recommended that Respondent enter a Final Order finding that Petitioner is entitled to additional credit for correctly answering question numbers 20 and 90 in the AM Session and question number 13 in the PM Session and adjusting his score accordingly on the May 19, 1996 unlimited electrical contractor examination. DONE AND ORDERED this 16th day of April, 1997, in Tallahassee, Florida. SUZANNE F. HOOD 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 16th day of April, 1997. COPIES FURNISHED: Michael F. Coppins, Esquire Cooper, Coppins and Monroe, P.A. Post Office Drawer 14447 Tallahassee, FL 32317-4447 R. Beth Atchison, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0750 Ila Jones, Executive Director Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue Whether Petitioner should receive a passing grade for the Unlimited Electrical Contractors' Examination given on January 29, 1999.
Findings Of Fact On January 29, 1999, Petitioner Ulises A. Garcia (Garcia), sat for the Unlimited Electrical Contractors' Examination given by Respondent, Department of Business and Professional Regulation, Electrical Contractors' Licensing Board (Department). The examination consisted of 150 multiple-choice questions, 100 of which were on the morning portion of the examination and the remaining 50 of which were on the afternoon portion of the examination. The questions are based on general trade knowledge and certain reference materials, which are identified to the candidates prior to the examination in the "Candidate Information Booklet for the Electrical Contractors' Examination." The candidates are allowed to bring the reference materials to the examination and to refer to them during the examination. An applicant must receive a score of at least 75 in order to pass the examination. Each question is worth two-thirds of a point. The Department rounds the scores. For example, if a candidate scored 74 and 2/3 points, the Department awards a grade of 75. By examination grade report mailed March 15, 1999, the Department notified Garcia that he had failed the examination with a grade of 74. Garcia requested an administrative hearing challenging questions 20, 53, and 100 on the morning portion of the examination and question 2 on the afternoon portion of the examination. At the final hearing, Garica withdrew his challenge to questions 100 and 2, leaving questions 20 and 53 at issue. Question 20 dealt with service entrance conductors. The parties stipulated that Garcia gave "A" as the answer. The answer which the Department considered to be correct was "C." Garcia stated that he was giving the answer which applied to the general rule concerning service entrance conductors and that he did not consider exceptions to the general rule in his answer. The Department took the position that the question did not specify that only the general rule should be considered; thus, the exceptions should be included. If the general rule is used pertaining to question 20, the correct answer is "A." If some but not all the exceptions are used, the correct answer would be "C." The question, as posed, requires that if exceptions are to be considered all the exceptions should be considered. The multiple-choice question had four possible answers, none of which was the correct answer based upon the testimony of both Garcia's expert witness and the Department's expert witness. Because the correct answer is not included in the choices, Garcia should be given credit for his answer as has been the past practice of the Department when a question is vague or ambiguous. Question 53 dealt with passive infrared detectors, commonly known as motion detectors. The parties stipulated that Garcia answered the question as "B." The Department's position is that the correct answer is "D." The correct answer is "D" as found in Section 10.2 of Understanding and Servicing Alarms Systems, which is listed as reference material in the "Candidate Information Booklet for the Electrical Contractor's Examination." Question 53 is not vague or ambiguous. Eighty-two percent of the 102 persons who took the January 29, 1999, examination answered question 53 correctly.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entering finding that Ulises A. Garcia received a passing score of 75 on the Unlimited Electrical Contractors' Examination given on January 29, 1999. DONE AND ENTERED this 22nd day of October, 1999, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 22nd day of October, 1999. COPIES FURNISHED: Renato Perez, Esquire Law Offices of Perez and Perez 1105 Southwest 87th Avenue Miami, Florida 33174 Theodore R. Gay, Esquire Department of Business and Professional Regulation, Electrical Contractors' Licensing Board 401 Northwest 2nd Avenue, Suite N-607 Miami, Florida 33128 Ila Jones, Executive Director Electrical Contractors' Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Petitioner's responses to Question 10 and to Question 19 on the October 1990, general contractor's examination were incorrectly scored.
Findings Of Fact Petitioner sat for the general contractors licensing examination administered by Respondent in October 1990. The overall examination consisted of three parts. Petitioner has passed Parts I and III of the examination, but he failed Part II of the examination. Petitioner received a score of 67 on Part II of the examination while a score of 69.01 is required to pass that part of the examination. Petitioner initially challenged nine questions on Part II of the examination. Prior to hearing, Petitioner abandoned his challenges to all questions except for questions 10, 19, and 20. Evidence as to all three questions was presented by the parties at the formal hearing. In his post- hearing submittal, Petitioner abandoned his challenge to question 20. Consequently, only the challenges to Questions 10 and 19 need to be resolved. Question 10 and Question 19 are each worth four points. If Petitioner is given additional credit worth 2.01 points, he will have passed Part II. The challenged questions are multiple choice questions with only one response being considered by Respondent to be the correct response. For each challenged question, Petitioner selected a response other than the response Respondent considered to be the correct response. For each of the challenged questions, Petitioner received a score of zero. Question 10 requires the candidate to make certain calculations to determine the cost of a change order for a construction project. Petitioner contends that the question is unfair because of the narrow band between the possible answers. Respondent established that the question contained all information necessary to make the required computations. While Petitioner is correct in that some other questions may be less difficult because of the greater margin of error in the calculations required by those less difficult questions, his answer to Question 10 is nevertheless incorrect. Petitioner is entitled to no credit for his incorrect answer to Question 10. Question 19 provides certain information in the stem of the question and pertains to the time constraints on the service of a notice to owner by a subcontractor under the Florida Mechanics Lien Law. From the information provided in the stem of the question, the candidate can determine the date the subcontractor first furnished materials or labor. The stem of the question also informs the candidate of the date on which final payment was made to the contractor in reliance on the final contractor's affidavit. The answer to the question contains four multiple choice dates from which the candidate is to choose his answer. Preceding the answers is the following: "According to the Florida Construction Law Manual, in order to meet the requirements of the Mechanics Lien Law, concerning proper filing of the Notice to Owner, the concrete subcontractor's Notice to Owner must be served to the owner no later than:". The pertinent portions of the Florida Construction Law Manual provide as follows: Notice to the owner must be served on the owner within the earliest of the following time periods: One, before or within 45 days of the first commencement to furnish labor and materials on the job site, or within 45 days of starting to make specialty manufactured materials. Two, before final payment is made in reliance on the final contractor's affidavit. 1/ Petitioner contends that Question 19 is ambiguous because the stem of the question does not identify whether the contract referred to in the stem of the question is between the contractor and the owner or between the contractor and the subcontractor. Petitioner is correct in his contention that the question refers to the date that a contract was signed without identifying whether the contract was that between the owner and the contractor or that between the contractor and the subcontractor. The absence of that information is not fatal because the question enables the candidate to determine the date the subcontractor started work and provides the date of final payment was made to the contractor, which is the information necessary to correctly answer the question. Petitioner also contends that Question 19 is ambiguous because the answer considered by Respondent to be the correct answer is not the last date upon which the notice to owner can be served upon the owner. The correct response to Question 19 from the dates provided as possible answers to the question according to Respondent is the day before final payment was made to the contractor in reliance on the affidavit. The day that the final payment was made was not one of the four possible answers. Petitioner argues in his post- hearing submittal (but not at the formal hearing) that the question is misleading because the notice to owner could have been served on the day of final payment if the notice was served prior to the final payment by the owner. While the date of the final payment may arguably be a better choice than the date preceding the date of final payment, the date of final payment is not one of the choices. Of the choices offered the date preceding the date of final payment is clearly the best possible response. Petitioner's response to Question 19 was based on the statutory provision permitting the subcontractor to perfect service within 45 days of the date the subcontractor first furnished labor or material. The question informed the candidate that final payment to the contractor was made in reliance on a final contractor's affidavit six days prior to the date selected by Petitioner. Petitioner's answer to Question 19 was clearly wrong because a notice to owner from a subcontractor must be served before final payment to the contractor. The question is not misleading or unfair. Petitioner is entitled to no credit for his incorrect response to question 19.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which denies Petitioner's challenges to questions 10 and 19 of the October 1990 general contractor's examination. RECOMMENDED this 10th day of February, 1992, 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 10th day of February, 1992.
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 The issue to be resolved in this proceeding concerns whether the Respondent violated certain provisions of Chapter 509, Florida Statutes, and Chapter 61-C, Florida Administrative Code, concerning various conditions maintained at its establishment, as alleged particularly in the Administrative Complaint.
Findings Of Fact On February 12, 2001, Gary Reed, a Safety and Sanitation Specialist, conducted an initial inspection of the Respondent's establishment. The establishment name is Ocean Breeze Village, which is a public lodging establishment. Mr. Reed thereafter conducted a re-inspection of the premises on March 27, 2001. During both inspections he observed old chairs and tables blocking the walkway on the west side of the building. He also observed a face-plate missing from an exit sign by the stairs on the outside of the building and that the word "exit" on the exit sign face-plate was partially obliterated. Chairs and tables blocking a walkway is a potentially serious violation because the means of egress in cases of emergency, such as fire, must be unobstructed and the exits clearly marked. Mr. Reed also observed that the west handrail was very loose on the stairs outside Unit nine, Unit eleven and Unit twelve of the lodging establishment. Section 509.211(4), Florida Statutes, states that each public lodging establishment that is three or more stories in height must have safe and secure railings on all balconies, platforms and stairways and that all such railings must be properly maintained and repaired. This railing was not properly maintained and repaired. With regard to the balconies, Mr. Reed observed that there was no balcony certification available at the premises or on file with his agency. The management or owner of each public lodging establishment that is three stories or more in height must file a certificate by an appropriate contractor stating that any and all balconies, platforms, stairways and railings have been inspected by a trained inspector. See Section 509.2112, Florida Statutes. Mr. Reed observed that there was no "back-flow" prevention device installed on a hose spigot on the north side of the Respondent's building. A back-flow prevention device is designed to prevent any solid, liquid or gas from flowing backward into a potable water system. Its absence, under the food service code involved herein, is a violation. Mr. Reed also observed unusual furniture stored outside of Unit one, old screens, garden hoses, electrical materials, used fencing, old plumbing materials, old tables and chairs and bicycles stored on the east side of the property. Mr. Reed also observed miscellaneous garbage stuffed in concrete boxes under electrical meters and panels on the south side of the building. These are violations because the public lodging must be maintained clear of debris so as to prevent vermin and to help ensure public safety, in accordance with the legal authority cited below.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered imposing a fine in the amount of $750.00. DONE AND ENTERED this 7th day of February, 2002, in Tallahassee, Leon County, Florida. ___ P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 7th day of February, 2002. COPIES FURNISHED: Darel Mikula Ocean Breeze Village 208 North Halifax Avenue Daytona Beach, Florida 32118 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Susan R. McKinley, Director Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida
The Issue Is Petitioner entitled to credit for her answers to any of the questions she specifically challenged or for the four questions deleted by the Department of Environmental Protection (Department) on the February 1998 Class "B" Domestic Wastewater Operator Certification examination (wastewater examination)? Was the Department's administration or grading of Petitioner's examination arbitrary, capricious or otherwise unfair so as to entitle Petitioner to either additional points for a passing grade or an opportunity to retake the examination without cost?
Findings Of Fact Petitioner took the Class "B" wastewater operator certification examination given in February 1998 by the Department of Environmental Protection. Pilot questions are questions submitted by licensees and educators which do not yet have a "performance record" of testing validity. Petitioner alleged that pilot questions were used on her examination contrary to rules of the Department. Petitioner submitted no competent evidence to establish this allegation and it was credibly refuted. There are no pilot questions in the bank of potential questions from which the examination was composed. Petitioner conjectured that questions on her "B" level examination may have been drawn from a bank of questions for a higher level ("A") certification examination. In fact, the examination questions for the "B" level examination were selected from a bank of questions developed by the Department of Business and Professional Regulation. The Department of Business and Professional Regulation was the agency that had jurisdiction over the operator certification program before the Department of Environmental Protection assumed responsibility therefor. The selection of the examination questions was accomplished by selecting the percentage of questions from a range in a subject area already predetermined by rule and a computer program inserting the number of questions to fill that percentage. There is no way the computer program can select questions from another level of examination, for instance "A" level or "C" level. Prior to the examination, candidates for examination were advised they would have four hours to complete the examination. Examinees for the February 1998 examination in fact were provided four full hours after all preliminary matters and reading of instructions were completed. Prior to the examination, the Department provided candidates for examination with a list of subject areas that it intended to place on the examination, so that candidates could effectively prepare. All subject areas, except one, were in fact covered on the February 1998 examination. In some instances, a single question/answer satisfied two or more subject areas because of content equally applicable to each subject area. In other instances, the same subject area was covered by several questions/answers. Only one subject area that was listed in the pre-examination information did not appear on the February 1998 examination. That subject area was "energy." The reason that the subject area of "energy" was not included on the February 1998 examination was that there were no energy questions in the bank of questions which the Department of Environmental Protection had inherited from the Department of Business and Professional Regulation. The sole result of the absence of any energy question on the examination is that Petitioner and all other examinees in her group did not receive as thorough an examination in a single subject matter area as the licensure board had aspirationally intended. However, all examinees were equally treated. Originally, there were 87 questions on the February 1998 examination. After the examination was administered and a special analysis report on the grades was produced, the Department's examination review committee met with the examination consultants. The committee recommended to the Department, and the Department accepted the recommendation, that four questions should be deleted because they were misleading or for some other reason failed to adequately and reliably measure the examinees' ability to practice at a Class "B" license level. Removal of the four questions only lowered the mean score by one point, thereby creating a slightly easier examination while simultaneously slightly increasing its reliability. Examinees were instructed to select the best multiple choice answer for each question. Each of the questions was equally weighted. The Department interpreted Rule 61E12-41.005(5), Florida Administrative Code, as requiring that examinees achieve at least a 65% rounded score on the examination in order to pass the examination. In order to determine an examinee's success on the examination, the Department multiplied the initial 87 questions by 65% (.65) and so determined that an examinee would need at least 54 correct questions/answers to earn a passing grade. In determining a candidate's grade on an operator licensure examination, the Department determines the number of correct answers needed to reach the minimum rounded score of 65%. A special analysis report also indicates how many correct answers equal each percentage grade. If this number is not a whole number, the Department uses the rounding method to reach a whole number, based on 0.5 +/- percentage. By the foregoing grading interpretation, before deletion of the four questions, Petitioner's rounded score was 60%, with 52 correct answers. Petitioner's grade improved with the deletion of the four questions, because she had incorrectly answered each of the four questions which were later deleted. After the four questions were deleted, the same grading system resulted in a rounded score of 63% with 52 correct answers. By letter dated April 6, 1998, the Department notified Petitioner that she had failed the examination because she did not get a rounded 65% score based on 52 correct answers. After receiving the letter, Petitioner requested a review of the examination. Petitioner was allowed to review the questions and answers she had missed. Petitioner was also allowed to write comments on the question sheets which she reviewed. Petitioner's comments were submitted to the examination review committee of the Department for the committee's review. Upon review of Petitioner's comments and the examination, the committee determined that the questions and required answers were accurate and fair. It recommended no change to Petitioner's score. Petitioner was notified that no change would be made to her score. Petitioner then timely requested an administrative hearing. Although Petitioner's two letters/petitions (see Preliminary Statement supra.) initially raised issues concerning a number of examination questions, Petitioner only presented evidence concerning the contents of question 78 at formal hearing. Question 78 tested examinees' knowledge of appropriate emergency response activity and notification concerning the release of chlorine gas. Petitioner asserted that question 78 was vague, ambiguous, and misleading because it did not specifically state that a "reportable quantity" was to be considered in choosing the best answer from among multiple choice options of reporting a chlorine spill to one entity, two entities, three entities or no entities. For this reason, Petitioner alleged that her answer could have been an answer which was equally correct ("multi- keyed") with the answer selected as correct by the Department. Mr. Dawkins, who was accepted as an expert in emergency response and community right-to-know, testified that the question was not misleading. Mr. Dawkins is not associated with the Respondent Department, any of its committees, or the examination preparation process. He oversees actual reportage of dangerous chemical spills for the Department of Community Affairs. Although Mr. Dawkins indicated that he, personally, would not have written question 78 quite the way it was posed on the examination, he still felt that since it addressed reporting requirements, examinees should have assumed that a reportable quantity was involved and answered accordingly. All three of Respondent's experts testified that the answer chosen as correct by the Department was the most accurate of the multiple choice answers provided on the examination and that the subject matter and correct answer should have been understood by a qualified operator of a wastewater treatment plant at the "B" licensure level. The Department has under contract an expert in examination and psychometrics. The Evaluation Services Instructional Support Center Learning Systems Institute of Florida State University provides to the Department as part of the examination grading, a special analysis report for each examination. This report contains statistics about the scores, difficulty of each question, and how the spread of answers by the examinees compared to the four quadrants of grade results. The February 1998 examination was an extremely difficult examination, as evidenced by the fact that more examinees failed than passed. However, it was demonstrated that 77% of examinees who took the examination got question 78 correct. Question 78 also discriminated between high and low scoring examinees. The item analysis performed before the other four questions were deleted did not show that question 78 was misleading in any way, but did show that each of the four questions deleted were misleading or otherwise flawed. One of the proctors for the February 1998 examination personally observed that at the time the examination ended, only two examinees remained in the examination room and that neither of these examinees was Petitioner. It can be inferred therefrom that Petitioner had finished the examination, had time to spare, and had left the room. Finally, the inclusion of examination questions which were later deleted is not a concern as to the time allotted. This type of examination is a "power exam" and speed is not a factor.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Protection enter a Final Order denying the Petitioner's challenge to the February 1998 Class "B" wastewater operator certification examination and assigning her a final percentage grade of 63% thereon. DONE AND ENTERED this 16th day of November, 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 16th day of November, 1998. COPIES FURNISHED: Gerrit Vanthul, Qualified Representative 5279 Southeast 39th Street Trenton, Florida 32693 Cynthia Christen, Esquire Department of Environmental Protection 2600 Blairstone Road Mail Station 35 Tallahassee, Florida 32399-3000 Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
Findings Of Fact The property upon which Petitioner seeks a variance from the normal requirements for attaining a permit to install an on-site sewage disposal system is found in Leon County, Florida. Specifically, it is located at Lot 4, Block A, Killearn Lakes Unit I. The relative position of this lot in the subdivision is depicted within Petitioner's Exhibit 1 and Respondent's Exhibit 2 admitted into evidence. Respondent's Exhibits 3 through 5 are photographs of the site. Petitioner intends to construct a 1,200 square foot residence. As the photographs depict, some preparation has commenced to the extent of lot clearing and other site work where the home would be constructed. Killearn Lakes Unit I is a pre-1972 subdivision. When the development commenced, it was anticipated that a community sewer system would be utilized, as contemplated by the plans submitted in April, 1971. Subsequently, some lots within the Killearn Lakes Unit I were allowed to be developed with the use of on-site sewage disposal systems, namely septic tanks. There are 150 lots in that category. In 1979, with the advent of certain rules under Chapter 10D-6, Florida Administrative Code, the development was allowed to proceed on the basis of four septic tanks per acre. Over time, Killearn Lakes Unit I experienced a history of failures with on-site sewage disposal systems. The failures were promoted by problems with the "sheet flow" drainage system and its patterns of dispersion of storm water runoff, problems of soil permeability and abnormally high wet season water tables, referred to as perched water tables. This resulted in sewage backing up into homes and flowing out onto the ground in the yards of the residences, into streets and onto adjacent neighbors' lots. The problems experienced were widespread within the Killearn Lakes Unit I. This seepage of raw sewage presented a health hazard, as it would on any occasion. Among the residences confronted with this dilemma was Lot 5, Block X, adjacent to the subject lot. Persons residing in that home had to undertake alternative means of on-site sewage disposal to have that system function properly. This included relocation of the apparatus, mounding, use of an aerobic system, and use of pumps to insure that the waste being disposed did not back up into the conveniences within the home. Witnesses who appeared at the hearing described the series of corrections in some detail. Those witnesses included a former owner of that residence and others who had a technical understanding of the problems in that system. The problems in Killearn Lakes Unit I related to on-site sewage disposal systems became so extreme that the Leon County Commission declared a moratorium on the installation of on-site septic tanks in that development. This occurred in 1987. In order to better understand the problems in the Killearn Lakes subdivision, to include Killearn Lakes Unit I, a study was commissioned. That report is referred to as Killearn Lake Waste Water Disposal Study of June, 1987. A copy of the report is found as Respondent's Exhibit 6 admitted into evidence. It was prepared for the Leon County Board of County Commissioners and prepared by the Leon County Public Health Unit with the assistance of the Leon County Department of Public Works, Leon County Building Department, Ochlockonee River Soil and Water Conservation District, Northwest Florida Water Management District, Tallahassee-Leon County Planning Department, Florida Department of Health and Rehabilitative Services, and Florida Department of Environmental Regulation. Some of the highlights of that report concerned the observation that the septic tank systems do not work adequately and that the more systems that are placed the greater the problems. It noted that the nature of the drainage system in this area is a contributing factor to the failures. The soil's poor permeability, relating to the Dothan series of soils in the area which have slow permeability, contributed to the problem. Perched water tables were found above the expected levels for the wet season water tables. They also presented a problem, as did excessive slopes in some areas. In particular, it was noted that 80% of the lots sampled in Killearn Lakes Unit I had severe limitations on the use of on-site sewage disposal systems. Ninety-three per cent of the lots sampled in Block X received excess runoff from other lots and roads at higher elevations. It was noted that French or curtain drains alone would not significantly reduce perched water table complications because of the low permeability of the soils. It was reported that the overall housing density of Killearn Lakes is not particularly high, but the individual lots are small, approximately 1/4 acre in size. This, taken together with the fact that the "sheet flow" concept of storm water management contemplates that the runoff will cascade across the terrain conforming to its contours, means that some small lots will be inundated. This uncontrolled runoff contributes to septic tank problems in that the tanks fail when the soils around them become saturated. The report notes that if there was a different designed drainage system, the impact on septic tanks would be less. The report notes that if something is not done to modify storm water runoff, drainage problems will persist. Consequently, septic tank failures will continue to occur. Concerning the water tables, the soil testing, which was done in Killearn Lakes Unit I, in which the predominant soil is Dothan type, demonstrated that the borings which located mottling of the soils at the expected level of the wet season water table were inaccurate. These indicators did not correspond to reality in that the true water tables were found 12-20 inches above the expected level of the average high water, as seen in the mottling. This phenomenon was revealed in 42% of the lots evaluated which had Dothan soils. The report recommended, among other measures, that no new sewage disposal system permits be issued in Killearn Lakes Unit I until a storm water system had been constructed and demonstration made that the system would collect storm water and thereby lower the perched water table on specific lots under review. The ultimate response to the question of permits for on-site sewage disposal systems in Killearn Lakes Unit I was spoken to in a Resolution of July 14, 1987 entered by the Leon County Board of County Commissioners. A copy of the resolution may be found as Respondent's Exhibit 1 admitted into evidence. It was resolved that the permits for on-site septic disposal systems be reviewed by the Leon County Public Health Unit on a case-by-case basis in accordance with criteria announced at Chapter 10D-6, Florida Administrative Code. This effectively lifted the moratorium. The subject request for installation of an on-site sewage disposal system was reviewed in keeping with the policy decision set forth in the resolution. Respondent's Exhibit 6 admitted into evidence includes a copy of a survey made by the Homeowners' Association for Killearn Lakes, also admitted as Petitioner's Exhibit 1. As part of the study commissioned by the Leon County Board of County Commissioners, it has some relevance in portraying the dimensions of the problem. Those dimensions are better understood by resort to the color scheme which is found in Petitioner's Exhibit 1. It depicts the problem lots in red color, those lots without problems in green color, and the lots upon which no report was made in orange color, as well as vacant lots, to include the subject lot, which have no color scheme. This latter category indicates no participation in the survey. The door-to-door personal survey conducted by Rod Moeller and testified about at hearing does not diminish the impression of the seriousness of the problem with on-site sewage disposal system failures in Killearn Lakes Unit I, which the 1987 study by the Leon County Board of County Commissioners identified. This survey by Mr. Moeller was in a limited area, more specifically related to the portion of Killearn Lakes Unit I nearby the subject lot. The findings of the 1987 study commissioned by the Leon County Board of County Commissioners are accepted as accurate. Eanix Poole, Administrator of Environmental Health for the State Health Office testified at the hearing. He pointed out that the failure rate in the subdivision under question for on-site sewage disposal systems is 25%, as contrasted with the statewide rate of less than 1/2%. He identified the fact that those failures relate to backups within the home and seepage onto the ground. He verified that these events constitute health problems, especially given the number of failures. He sees the lot in question here as being particularly vulnerable to problems given the drainage patterns and its location at the bottom of two hills. The lot in question receives runoff from the two adjacent lots as well. Mr. Poole sees the subject lot as more vulnerable in the wet season and does not believe that any alternatives that are available for placement of the system on the site would sufficiently alleviate the potential failure of the system to make it a successful arrangement. What he sees is a lot in the path of a natural drainage of tremendous quantities of storm water runoff, coupled with poor soil conditions related to soil absorption or permeability in an area where on-site sewage disposal systems have failed. He remarks that dry soils are needed to treat the sewage and that treatment cannot take place in a saturated soil environment. The effects of seepage of the sewage, according to Mr. Poole, is one which can degrade ground water. Mr. Poole is also concerned that the installation of the proposed on-site sewage disposal system above ground will have an adverse impact on the adjacent lots, one of which has already experienced problems. That refers to Lot 5, Block X. These observations by Mr. Poole, as reported, are accepted. Raymond Collins, an environmental administrator with the Respondent's health program office, also testified at the hearing. He is intimately aware of the problems in Killearn Lakes Unit I. Those problems began to occur in the winter of 1986 and continued into 1987. This related to problems with toilets and the seepage of effluent which was running onto people's property and into the streets. He notes a similar failure rate in Killearn Lakes Unit I to that observed by Mr. Peel when contrasted with the experience statewide. In the aforementioned period he received calls and reports from homeowners concerning system failures. In effect what was happening was that the on-site drain fields in Killearn Lakes Unit I would not accept more input and the raw sewage would bubble up and leach out onto the ground. He personally observed a dozen sites which had failures. He was responsible for the coordination of the July, 1987 study which has been mentioned. As a result of that study one of the steps which he took was to advise that staff investigating the permit application requests should elevate the estimation of the wet season water table by 12-20 inches. Mr. Collins agrees with the recommendation of the individual who was assigned to evaluate the application for permission to install an on-site sewage disposal system at the subject lot, who recommended that the application be turned down. Mr. Collins' description of the experience at Lot 5, Block X, related to his knowledge that the initial system had been replaced with an aerobic system, which also proved to be an inadequate on-site sewage disposal system. In 1988, he went to the home of the person living on that lot, and the aerobic system was not working. There was a light rain on that day, and there were problems in the drain-field area. When a soil boring was made to a depth of two feet effluent poured out. The perched water table had risen to a point in the bottom of the drain field, such that when a hole was punched, it provided a conduit for pressure to be relieved. The drain field that was experiencing this problem was not the original drain field. It was a replacement drain field. The drain field being observed was in the front of the lot, right below the ground. The suggestion to alleviate the problem was to move the drain field to the side of the yard and elevate it and install a series of small-diameter pipes. A pump was also needed to move effluent into the drain field, thus, avoiding a backup of the system into the home. He is unaware of any recent failures in the system at Lot 5, Block X. Mr. Collins emphasized the need for soil to remain unsaturated to provide effective treatment and that 24 inches of unsaturated soil is the minimum amount which would be acceptable. Mr. Collins commented about the nature of the subject lot and the fact that other lots drain through it. Mr. Collins commented that the design of the proposed septic tank does not assure success in the treatment of the waste disposed. Unlike the expert of the Petitioner, Mr. Peel, the problem is not that solids are blocking up the system. It is the failure of the soils to accept the volume of water which is being released from the chambers of the septic tank into the drain field. Mr. Collins does not believe that the use of water-saving appliances in addition to the limited size of the home to be built on the subject lot, installation of an aerobic system, and installation of an above-ground system, as proposed, would be successful and not pose a health risk from system failure. The problems would continue to be drainage patterns and poor soils. His remarks, as reported, are accepted as accurate. Terese A. Hegg, Environmental Specialist I with the Respondent's Leon County Public Health Unit, reviewed the application for variance to install the on-site sewage disposal system. She was familiar with the history of problems in Killearn Lakes Unit I before undertaking this assignment and has made more than 50 evaluations in that development. She observed that the "sheet flow" drainage of storm water does not provide reasonable management because it does not drain normally. She is aware that the wet season water table is as much as 20 inches above the normal indicators, as seen through mottling. Her analysis of this site is under the auspices of those requirements announced in Chapter 10D-6.044, Florida Administrative Code, having in mind that the subdivision plat was made before 1972. This includes an examination of the soil characteristics, history of flooding, and water table evaluations. At this site, she noted the poor permeability of the soil. She did soil borings to confirm the nature of the soils and to identify the water table. She took into account the abnormal perched water table that is above what the mottling would indicate as being the wet season water table. Ms. Hegg is concerned that the system on the adjacent lot, which is now functioning adequately, would not function adequately if the subject system was installed. She noted that the drainage pattern from the neighboring lots was toward the subject lot and that water would come from the left and the right lots adjacent to this lot, corresponding to Lots 5 and 3 as you face them. The drainage pattern would then proceed beyond Lot 4 and into a green area. In making her assessment of this application, she was aware of the problems with the on-site sewage disposal system at Lot 5, Block X. The appearance of saturated soil in the entire length of the boring and standing water on the lot is an indication of problems with percolation. The effluent will flow out and onto the ground if these soils are saturated. From her observations and based upon the history of Killearn Lakes Unit I and its failures regarding on-site sewage disposal systems, Ms. Hegg does not believe that the proposed system would successfully address sewage treatment and would promote a risk of on-site sewage disposal system failures for adjacent lots. Ms. Hegg acknowledged that the storm water flows could be diverted; however, she points out that the subsurface water cannot be diverted. Her account of this site and the acceptability of the request for variance as reported is accepted as accurate. Given the soil conditions and the wet season water table expected at this site, the proposed system will not present an adequate unsaturated soil depth for treatment of the sewage and untreated sewage may be expected to seep or leach out onto the ground. On May 22, 1990, Mr. Collins had written to Dr. Richard G. Hunter, Assistant Health Officer for Environmental Health, recommending the denial of the variance request. A copy of that correspondence may be found as Respondent's Exhibit 7 admitted into evidence. It details reasons which are similar to those described in this Recommended Order. As a consequence, even though the Advisory Review Variance Board had looked with favor upon the request for variance, that variance was denied by action of Dr. Hunter on May 30, 1990, which relied upon the insights of Mr. Collins, as described in his May 22, 1990 correspondence. A copy of the letter of denial may be found as Respondent's Exhibit 8 admitted into evidence. The purpose of this hearing was not to examine whether Respondent had abused its discretion in denying the variance. The reason for the hearing was to allow the parties to present their points in an adversarial setting, which allowed each party to explain its viewpoint anew. That was done, and the analysis provided by this recommended order ensued. In deciding the facts, these representations have been made with due regard to the remarks of James Earl Peel, an expert in the design of on-site sewage disposal systems, who had on his staff, Gary L. Wood, P.E. His methods in analyzing the issue of the suitability of the installation of an on-site sewage disposal system at the subject site do not coincide with the methods contemplated in Chapter 10D-6, Florida Administrative Code, which controls. This is especially significant in his approaches to soil characteristics and location of the wet season water table. As noted above, his belief that the problem is one of distribution of solids from the septic tank into the drain field overlooks the more significant problem of water volume discharge from the septic tank into the drain field. In fact, Mr. Peel indicated that he is unfamiliar with the requirements of septic tank design, as described in Chapter 10D-6, Florida Administrative Code. On balance, Mr. Peel's reports, in Petitioner's Exhibits 3 and 4 admitted into evidence and his in-hearing testimony, do not persuade that the system he recommends can be successfully operated at the subject site. His presentation and the overall presentation of Petitioner do not create a reasonable expectation that the system will not fail and create health hazards for the residents of Lot 4, Block X, and others in the vicinity. It is recognized that this lot owner faces a hardship that was not caused by Petitioner. It is also recognized that, pursuant to the stipulation of the parties, there is no intention by any entity to install a community system of sewage disposal. It is further recognized that there are no alternative methods that would seem to be successful in addressing the problem of the treatment of the sewage, as related in the previous findings. On the other hand, the discharge that could be expected from this subject system would bring about a condition in which the effluent presented a health risk to this applicant and other members of the public and has the potential to significantly degrade the ground or surface waters, although this latter circumstance has not been documented on other occasions and was not found to exist in the July, 1987 study commissioned by the Leon County Board of County Commissioners. In that report, it was specifically found that the surface water had not been compromised by the on-site sewage disposal system failures described in the overall report.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered denying Petitioner's request for variance from permit requirements and permission to install an on-site sewage disposal system at Lot 4, Block X, Killearn Lakes Unit I. DONE AND ENTERED this 20th day of November, 1990, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS, 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 20th day of November, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-4456 The following discussion is given concerning the proposed facts of the parties: In the discussion of the testimony of Mr. Poole, the relevant portions of that testimony are reflected in the facts found in this recommended order. Under the heading of testimony said to be attributable to Ms. Hegg, at paragraph 1, while it is recognized that a system might be installed that might not call for diversion of storm water onto adjacent neighbors' properties, the problem on site would remain and would be sufficient reason to reject the application. Moreover, it is not clear that it is the intention to install a system that would divert storm water from adjacent properties. Paragraph 2 under this heading is rejected in its notion that storm water would not have an influence on the proposed system. Paragraph 3 is rejected. Paragraphs 4 and 5 do not lead to the conclusion that sufficient unsaturated soils would be available for the treatment of disposed sewage during the wet season, nor does the representation at paragraph 6. Paragraph 7 under that heading is contrary to facts found. The paragraphs under the reference to James Earl Peel, in those five paragraphs, while accurately portraying the opinion of Mr. Peel and Mr. Wood, does not lead to the conclusion that the application should be granted. Under the heading "Rod Moeller" in the first paragraph, the information provided at hearing and under weather reports does not satisfactorily establish what the rainfall circumstance may have been at the subject property 72 hours before January 24, 1990, as referred to in paragraph 1, nor can it be said that the rain experienced in the overall area contemplated by the attached weather report to the argument by Petitioner was a 25-year storm event. The comment at paragraph 3 under this category that the on-site sewage disposal systems in neighboring lots are functioning fine since modifications in the advent of hurricane "Kate" is contrary to facts found. Under the heading "Ray Collins" in paragraph 1, this proposed fact has no relevance in that the question is the appropriate function within Killearn Lakes Unit I, not at an undisclosed site away from that area. Respondent's Facts These facts are subordinate to facts found. Copies furnished to: Sam Power, Department Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda K. Harris, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Rod Moeller, Authorized Representative Mallard Cove Construction 14261 Buckhorn Road Tallahassee, FL 32312 John L. Pearce, Esquire HRS District 2 Legal Office 2639 North Monroe Street Suite 125-A Tallahassee, FL 32399-2949
