The Issue The issues in this case are whether certain questions within the June 2002 construction building contractor examination are invalid, and whether Petitioner should receive credit for certain answers scored as incorrect.
Findings Of Fact In June 2002, Petitioner sat for the construction building contractor examination. Shortly following the exam, Petitioner was advised that he incorrectly answered 17 of the 50 exam questions and did not attain the minimum passing score of 70 percent, but received a failing scaled score of 66 percent. Petitioner timely challenged the validity and scoring of eight questions, including questions 8, 14, 17, 33, 34, 38, 43, and 44. In order for Petitioner to acquire a passing score, Petitioner must prove that certain challenged questions are invalid or demonstrate that he is entitled to receive credit for his answers. Specifically, Petitioner must demonstrate that either three questions should be stricken from the exam providing Petitioner with 70.2 percent, two questions should be stricken and one answer scored as correct providing Petitioner with 70.8 percent or two answers should scored as correct providing Petitioner with 70 percent. QUESTION 8 Exam Question 8 asks, "According to AIA-A201, who determines the interest rate that the contractor can charge on due and unpaid payments?" Petitioner's expert, Mr. Uman, argues that the parties to the contract are not defined within the question and it is therefore misleading. However, the credited answer D, "all the parties must agree on the rate" is within the provided reference material and is clearly the best answer. It is not misleading and Petitioner's argument lacks merit. In addition, 89.47 percent of the test-takers correctly answered Question 8. QUESTION 14 Exam Question 14 is wordy and involves computations. It requires the test-taker to calculate the number of "labor" hours required per 100 pieces to build a wall, given certain pricing and wall construction information. Question 14 is ambiguous and confusing on its face. While the question asks for labor hours, the facts provide a fixed combined hourly cost for a mason and laborer's hour. There is no distinction made between "labor" hours and a "laborer's" hours. Mr. Collier admitted that there is some apparent confusion between "labor" costs and the "laborer's" costs. Mr. Palm further agreed and indicated that he fully understood Petitioner's rationale to divide the labor costs in half and choose answer A. Furthermore, it is clear that Petitioner's perception of the question was not unique. In fact, only 46.62 percent of the test-takers correctly answered Question 14. QUESTION 17 Exam Question 17 asks, "During the bid process, which document has priority in the event of conflicting information?" Clearly, the correct answer is B, "addenda." Petitioner's argument regarding "competitively bid projects" is without merit. Mr. Palm succinctly explained that Petitioner's selection was obviously incorrect because "plans don't change during the bid process unless there is an addenda issued." Moreover, 75.56 percent of the test-takers correctly answered Question 17. QUESTION 33 Exam Question 33 identifies a situation that where drawings differ from written specifications and where there is no legal precedent that one is more binding than the other. The question specifically calls for the best procedure according to the listed and available reference. While Mr. Uman argues that the answer does not appear within the reference material in a clear manner, the exact text of the question and answer are in fact within the material. Petitioner's argument lacks credibility. QUESTION 34 Exam Question 34 asks the test-taker "what is the EARLIEST workday for completing the masonry work?" given the number of crew, the number of hours required, and the ratio constant of the crew. Although 80.45 percent of the test-takers correctly answered Question 34, Mr. Uman argues that the question could have been answered without reference to the Builder's Guide to Accounting material and therefore, was misleading. Petitioner's argument is devoid of common sense. QUESTION 38 Exam Question 38 asks the test-taker to identify the activity that "a specialty structural contractor is qualified" to perform. Petitioner's expert, Mr. Uman, again argues that the question is misleading since the credited correct answer "perform non-structural work" is not written verbatim in the provided reference material. To the contrary however, all of the alternative choices are clearly listed in the reference material as activities specifically prohibited by specialty structure contractors. Furthermore, page 2B17 to 61G415.015 of the Contractor's Manual specifically states that: The specialty structure contractor whose services are limited shall not perform any work that alters the structural integrity of the building including but not limited to roof trusses. Respondent's experts, Mr. Collier and Mr. Palm, agree that Question 38 is clear. Moreover, 53.38 percent of test- takers correctly answered the question. While the question appears to require enhanced reasoning skills and is generally more difficult, it is not misleading. Petitioner's assertions are without merit. QUESTION 43 Exam Question 43 asks, "Which accounting method should be used by a contractor if the contractor is unable to reasonably estimate the amount of progress to date on a job or the total costs remaining to fulfill the contract?" Mr. Uman argues that the question is ambiguous and the reference material is "not terribly clear." He further alleges that when a contractor cannot estimate progress, the contractor cannot establish a "completed contract method," the credited correct answer. Respondent's experts disagree. While it is true that Mr. Palm agreed that all of the choices are accounting methods which is inconsistent with Mr. Collier's testimony, the reference material is clear. In fact, 58.65 percent of the test-takers correctly answered Question 43. Petitioner presented insufficient evidence that he should receive credit for his answer or that Question 43 should be invalidated. QUESTION 44 Exam Question 44 provides detailed information regarding a standard form contract and asks, "Based ONLY on the information given above, what is the amount of the current payment due?" In addition, however, as Mr. Uman points out, the standard form referred to in the problem was mistakenly misidentified as Form 201 instead of Form 702. While it is clear that the referenced form was mislabeled, the precise form number was incidental, unrelated to the question, and unnecessary to compute the answer. In fact, Mr. Palm explains that the problem was "just a mathematical exercise." According to Mr. Collier, the question was not misleading, and the incorrect reference was irrelevant. "It's simple math, industry knowledge." Furthermore, Petitioner's answer is clearly incorrect because "he failed to deduct the retainage." Finally, 54.89 percent of the test-takers correctly answered Question 44.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered invalidating only Question 14, re-computing Petitioner's examination score, and dismissing his challenge. DONE AND ENTERED this 1st day of October, 2003, in Tallahassee, Leon County, Florida. S WILLIAM R. PFEIFFER 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 1st day of October, 2003. COPIES FURNISHED: Nickolas Ekonomides, Esquire 791 Bayway Boulevard Clearwater, Florida 33767 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Nancy P. Campiglia, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Robert Crabill, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
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
The Issue Whether Petitioner is entitled to additional credit pursuant to his challenge to the examination for civil/sanitary engineer licensure.
Findings Of Fact Petitioner, Brian Trujillo, is a candidate for licensure by examination as a civil/sanitary engineer. Mr. Trujillo took the examination in April of 1998, and received a score of 69. He timely challenged the test results and maintained he should have received a higher score on four items of the examination. In order to achieve a passing score of 70, Petitioner would need to establish he should have been given a raw score of at least 48. Thus, Mr. Trujillo needs credit of one more point in order to pass the examination. At the hearing, Mr. Trujillo limited his challenge to only two problems on the examination which were identified in this record as to Questions No. 87 and No. 125. As to Question No. 87, Mr. Trujillo maintained that based upon the conditions in South Florida, the answer he gave is the correct one of the four choices. Question No. 87 was a multiple-choice question wherein candidates were to choose the best of the four options offered. Mr. Hutchinson explained why the answer provided by Petitioner was not the best choice for Question No. 87. Mr. Hutchinson's explanation was clear, concise, and based upon engineering demands regardless of the location of the project. As to Question No. 125, Petitioner maintained he should have received more points for the answers given. This item was divided into three parts worth a total of 10 points. The score given Petitioner on this item was 8. By his own admission, Mr. Trujillo lacked sufficient time to complete Question No. 125. Based upon the calculations shown by Petitioner, it is difficult to determine how the candidate intended to solve the problem. In the absence of additional comments from a candidate, the examiners reviewing the work must assume a candidate used a consistent problem-solving approach. In order to achieve a score of 10 on this problem, the candidates were required to be within five percent of the approved solution value. Mr. Trujillo did not explain the approach used in his attempt to solve Question No. 125. Two approaches would have yielded correct responses. The answers provided by Mr. Trujillo were inconsistent with a single problem solving approach. Thus, either part B or part C or his answers were incorrect by a margin of greater than ten percent. If the reviewer assumed Petitioner used one approach to solve the items of Question No. 125, he did calculate the problems correctly. If the Petitioner used two different approaches to solve the items of Question No. 125, he did not clearly explain his work in order to demonstrate knowledge of the areas addressed by the question. Question No. 125 required the candidate to solve three subparts based upon a single factual scenario. The question was not ambiguous nor did it require a candidate to use inconsistent theories to arrive at a correct solution.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Professional Engineers enter a Final Order confirming Petitioner's score on the April 1998 examination and dismissing the challenge to it. DONE AND ENTERED this 2nd day of April, 1999, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 2nd day of April, 1999. COPIES FURNISHED: Dennis Barton, Executive Director Board of Professional Engineers 1208 Hays Street Tallahassee, Florida 32301 Natalie A. Lowe, Esquire 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 Brian Trujillo 16660 Southwest 92nd Terrace Miami, Florida 33196
The Issue Whether Petitioner's challenge to the failing grade he received on the Limited Energy Examination of the Electrical Contractors Licensing Board, taken on November 9, 2004, should be sustained.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Petitioner sat for the November 2004 Limited Energy Examination. Upon receiving notice that he had not passed the examination, Petitioner challenged several examination questions. This hearing is a distillation of the challenge process and one question has been brought before this tribunal. The particular question, No. 55, is, as follows: "[T]he best choice of conductor in an electrically noisy environment is: a. coaxial, b. fiber optics, c. twisted pair, d. shielded twisted pair." Petitioner offered evidence, by way of his opinion, that the terms "fiber optic" and "conductor" are not synonymous, therefore the question is poorly-worded, and that "shielded twisted pair" should be the correct answer. Petitioner also presented technical documents that distinguished between the terms "fiber optic" and "conductor." The Department's expert witness in electrical contacting has 40 years' experience in electrical contracting and has been licensed in Florida since 1985. He opined that the terms "fiber optic" and "conductor" are synonymous, as used in the industry. The test is not only of reference knowledge, but also of trade knowledge. He stated that all four possible answers are "conductors." He stated that the only correct answer was b, "fiber optics." The Department's expert witness, the psychometrician, testified that test questions are pre-screened by industry experts to assure that the questions are "viable, reliable, and valid" and that there is only one correct answer. Then a post- test assessment is conducted to determine the difficulty of the questions and to determine how many of the test-takers, who passed the test, got the correct answers. In this instance, question No. 55 was answered correctly by 93 percent of the individuals who passed the test and 92 percent of the 28 test-takers.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Electrical Contractors Licensing Board enter a final order which denies Petitioner's application for an electrical contractor's license based upon the failing score that he received on the Limited Energy Examination of the November 2004 licensure examination. DONE AND ENTERED this 12th day of January, 2006, in Tallahassee, Leon County, Florida. S 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 12th day of January, 2006. COPIES FURNISHED: Charles Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 David Nathan Warren Post Office Box 1131 Palm City, Florida 34991 Anthony B. Spivey, Executive Director Electrical Contractors Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Luis A. Gonzalez earned a passing grade on the Professional Engineer Examination of April 14-15, 1988?
Findings Of Fact Luis A. Gonzalez took the Professional Engineer Examination administered by the Department of professional Regulation on April 14-15, 1988. By notice dated July 22, 1988, Mr. Gonzalez was informed by the Respondent's Office of Examination Services that he had failed the Professional Engineer Examination. Question 122 on the Principles & Practices of Engineering Examination, Form 8804, involving Civil/Sanitary/Structural engineering, provided the following: SITUATION: An old, large, retirement community apartment complex has reported sewer overflow and plumbing discharge problems. You are an engineer assigned to review the flow and sizing of the one main sanitary sewer exiting and carrying the total flow of the complex, with the objective of correcting the problem. Review with the manager, and inspection of the plans, reveal there are 490 residential units with an estimated continuing residence population of 1,475. Water bills are paid individually. REQUIREMENTS: NOTE: Use and-show equations for calculations. Do not use a nomograph or hydraulic slide rule. Citing your assumptions and sources, calculate the average, maximum, and minimum sanitary wastewater flows expected, in gallons per day, from the total complex. You measure the main sewer from the project and examine the plans and find it is 10" round ID, VCP, with a slope of 0.0045. Inspection leads to an estimate of n 0/015 (fair) because of age. Calculate theoretical full flow capacity and velocity with no surcharge. Calculate depth and velocity of flow for your estimated maximum flow rate, if you can conclude the sewer is not overloaded. Mr. Gonzalez was instructed to include assumptions and citations in support of his answer to Question 122. The citations included by Mr. Gonzalez in answering part (a) of Question 122, although questioned by the grader of Question 122, were adequate. Mr. Gonzalez failed to list assumptions which he should have taken into account in answering part (a) of Question 122, concerning inflow, infiltration or exfiltration. In answering part (a) of Question 122, Mr. Gonzalez determined "estimated flow." In calculating estimated flow, Mr. Gonzalez multiplied the population of the complex (1,475) times an estimated water use per person of 100 gallons per day. In support of Mr. Gonzalez's use of 100 gallons per person water use, Mr. Gonzalez cited the Civil Engineering Reference Manual, Fourth Edition, and the ASCE Manual on Engineering Practice No. 36. Mr. Gonzalez also provided other references at the formal hearing to support his use of 100 gallons per day. The use of 100 gallons a day per person in answering part (a) of Question 122 by Mr. Gonzalez would be correct only if the problem involved a residential community. The citations used by Mr. Gonzalez indicate that 100 gallons per day is generally acceptable for residential communities or "[i]n the absence of any better basis . . . ." Question 122, however, involves an apartment complex and not a residential community. The weight of the evidence presented at the formal hearing indicates that for an apartment complex an estimated water use of 60 to 80 gallons per day per person should be used. Even some of the references provided by Mr. Gonzalez at the formal hearing support this conclusion. For example, Petitioner's exhibit 5 indicates that a wastewater flow of 67 to 79 gallons per person per day should be used for "[m]ultiple-family dwellings (apartments)." Mr. Gonzalez's use of 100 gallons per day in answering part (a) of Question 122 was incorrect. Mr. Gonzalez failed to demonstrate an adequate understanding of flow in answering Question 122. Although Mr. Gonzalez demonstrated an understanding of full flow, he failed to demonstrate an understanding of partial flow. Mr. Gonzalez's answer to part (b) of Question 122 was adequate. Mr. Gonzalez's answer to part (c) of Question 122 was incorrect. Mr. Gonzalez did not dispute this conclusion at the forma1 hearing. Mr. Gonzalez was awarded a score of 4 for his solution of Question 122. Question 122 was graded pursuant to the National Council of Engineering Examiners Standard Scoring Plan Outline (DPR Exhibit #4). This Outling provides that a grade of 4 is to be awarded under the following circumstances: UNQUALIFIED: Applicant has failed to demonstrate adequate knowledge in more than one ASPECT of one CATEGORY. BU. Fails to demonstrate an understanding of flow and velocity calculations for pipes flowing full or partially full; or contains multiple errors; or one part is missing or wrong with other gross or multiple errors; or the record is deficient; or in combination. A grade of 5 was to awarded under circumstances similar to the circumstances for awarding a score of 4, except that a score of 5 is appropriate only if an "[a]pplicant has failed to demonstrate adequate knowledge in [only] one ASPECT of one CATEGORY." The Respondent properly concluded that Mr. Gonzalez is entitled to a score of 4 for his answer to Question 122 and not a score of 5. Mr. Gonzalez failed to "demonstrate an understanding of flow . . . calculations for pipes flowing . . . partially full . . . ." His answer also "contains multiple errors" and at least "one part is . . . wrong." Finally, Mr. Gonzalez's answer to Question 122 "failed to demonstrate adequate knowledge in more than one ASPECT of one CATEGORY" as opposed to "[only] one ASPECT of one CATEGORY." [Emphasis added]. Question 123 of the Principles & Practice of Engineering Examination, Form 8804, involving Civil/Sanitary/Structural engineering, includes parts (a) through (j). Mr. Gonzalez questioned parts (b), (d) and (e) of Question 123. In pertinent part, Question 123 provides the following: SITUATION: In a detailed study of traffic flow on one lane of a 2-lane urban freeway, the following data were collected: Average Distance between the front bumper of successive vehicles 75 feet Space Mean Speed = 33 mph Time Mean Speed = 32 mph REQUIREMENTS: (b) Determine the traffic density. Assuming that the 30th highest hourly volume is to be used for design purposes on this highway, what is a reasonable estimate of the 30th highest hourly volume in one direction on this facility? Briefly justify any assumptions made. Determine the most widely accepted value of the capacity of a freeway lane operating under ideal conditions of uninterrupted flow. Mr. Gonzalez was instructed to include assumptions and citations in support of his answer to Question 123. Mr. Gonzalez answered part (b) of Question 123 by calculating a density of 70.40. The grader of Question 123 circled this answer and wrote "DECIMAL." The Respondent agreed at the formal hearing that the use of decimals by Mr. Gonzalez was insignificant. In answering part (d) of Question 123 Mr. Gonzalez failed to include adequate assumptions. Although the statements made by Mr. Gonzalez in answering part (d) of Question 123 are correct, his equation is wrong. Mr. Gonzalez did not offer adequate proof at the formal hearing that his response to part (d) of Question 123 was correct. In answering part (e) of Question 123 Mr. Gonzalez assumed a capacity of 2,000 cars per hour. The grader of Question 123 indicated that this capacity is an "obsolete value." The Solutions to be used in grading the Professional Engineer Examination and, in particular, Question 123, indicates the following: Based on the 1985 Highway Capacity Manual or other similar sources, the capacity of a multi-lane freeway lane operating under ideal conditions is 2,000 vehicles per hour. ANSWER Although Mr. Gonzalez's answer to part (e) of Question 123 is consistent with this solution, the capacity of a multi-lane freeway lane operating under ideal conditions, based on the 1985 Highway Capacity Manual is actually 2,800 vehicles per hour and not 2,000 vehicles per hour. The answer to part (e) of Question 123 provided in the Solutions used by graders of the Professional Engineer Examination and Mr. Gonzalez's answer are therefore incorrect. The Solutions provided to graders are to be used only to assist graders and are not binding on them. Although Mr. Gonzalez's answer to part (e) of Question 123 is consistent with the Solutions provided, the answer is incorrect. Therefore, the grader properly took into account Mr. Gonzalez's incorrect solution to part (e) of Question 123. Even if Mr. Gonzalez is given credit for his response to part (e) of Question 123, his grade for Question 123 will not change. Mr. Gonzalez correctly answered parts (a)-(c) and (f)-(j) of Question 123. Mr. Gonzalez was awarded a score of 8 points for his answer to Question 123. Question 123 was graded pursuant to a Six Level Item Specific Scoring Plan (155P). The Plan provides that a grade of 8 is to be awarded under the following circumstances: CLEARLY QUALIFIED: All categories satisfied with at least one at a higher than minimum level. Correct approach but a solution with math errors or answers outside allowable tolerances for parts (d), (e), and (h) or An [sic] slightly incomplete solution. The next highest grade which can be awarded for Question 123 is 10 points, the maximum award possible for Question 123. Ten points are to be awarded under the following circumstances: HIGHLY QUALIFIED: All categories satisfied. -Presentation -may lack in completeness or equations, diagrams, orderly steps in solution, etc. Results within allowable tolerance. Correct approach and correct solution within allowable tolerances for parts (d), (e), and (h) and correct interpretation of results. All parts complete. The Respondent properly concluded that Mr. Gonzalez is entitled to a score of 8 for his answer to Question 123 and not a score of 10. Mr. Gonzalez did not satisfy all categories and he failed to arrive at the "correct solution within allowable tolerances for parts (d), [and] (e) . . . " in answering Question 123. Mr. Gonzalez failed to prove that he should have been awarded a score of 10 for Question 123. Mr. Gonzalez failed to prove that he should be awarded an additional point on the Professional Engineer Examination of April 14-15, 1988.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Engineers issue a final order concluding that Luis A. Gonzalez's grade on the Professional Engineer Examination of April 14- 15, 1988, was a failing grade. DONE and ENTERED this 6th day of April, 1989, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 1989. APPENDIX Case Number 88-6056 Mr. Gonzalez has submitted a letter dated March 21, 1989, containing proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Respondent did not file a proposed recommended order. Mr. Gonzalez's Proposed Findings of Fact Paragraph Number in Recommended Order of Acceptance or Reason for Rejection Paragraphs 1-2, 6 Not proposed findings of fact. Paragraph 3 The first sentence is a statement of the issue concerning Question 122. The second and third sentences are not supported by the weight of the evidence. The Florida Department of Environmental Regulation established water per day usage is for regulatory purposes and not necessarily consistent with the engineering principles to be used in answering questions on the Professional Engineer Examination. References which should have been used in answering Question 122 indicate that a water use rate of 67 to 79 gallons per day should have been used for apartments. The letter referred to was not accepted into evidence and can not form any basis for a finding of fact. Paragraph 4 The first and fifth sentences are accepted in findings of fact 20 and 21. The second and fourth sentences are not relevant to this proceeding. The third sentence is based upon a letter apparently received after the formal hearing. It cannot be taken into account in this proceeding. The sixth sentence is not supported by the weight of the evidence. The grader used the correct information and not "personal conviction." Although it is true that Mr. Gonzalez used the most recent data he was aware of concerning vehicles per hour, the fact remains that the value he used at the time of the examination was incorrect. Paragraph 5 Not supported by the weight of the evidence. Mr. Gonzalez included two references with his letter of March 21, 1989, which were not offered at the formal hearing. Those references cannot be relied upon in this case and have played no part in making the findings of fact and conclusions of law in this Recommended Order. COPIES FURNISHED: H. Reynolds Sampson Deputy General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Luis A Gonzalez 7419 Sandy Bluff Drive Jacksonville, Florida 32211 Kenneth Easley General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Allen R. Smith, Jr. Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue in this case is whether Petitioner is entitled to credit for 14 challenged examination questions in the State Officers Certification Examination (SOCE) for Law Enforcement Officers.
Findings Of Fact Petitioner challenged 14 questions after failing the SOCE for the third and final time on September 30, 2009. The challenged questions are numbered 32, 62, 63, 79, 87, 128, 139, 154, 155, 156, 170, 187, 212, and 236. During the hearing, Petitioner withdrew her challenges to questions 79, 87, 155, and 212. Ten questions remain at issue in this proceeding. A preponderance of the evidence does not support Petitioner’s challenges to the 10 questions at issue. Expert testimony shows the challenged questions were validated through appropriate field testing. The questions are accurate to the curriculum and perform sufficiently during testing. The correct answer to each challenged question was identified in the curriculum by expert testimony during the hearing. The statistical probability of an examinee answering a question correctly is identified in the record by a "P" value. For challenged question 32, the “P” value was 0.80, which means that 80 percent of examinees answered the question correctly. Only 78 of 5,220 examinees chose the answer chosen by Petitioner for question 32. The "P" value for challenged question 62 was 0.76, meaning that 76 percent of examinees answered the question correctly. Only 222 of 1,655 examinees chose the response that Petitioner chose for question 62. The "P" value for challenged question 63 was 0.95, meaning that 95 percent of examinees answered the question correctly. Only 150 of 3,387 examinees chose the response that Petitioner chose for question 63. The "P" value for challenged question 128 was 0.59, meaning that 59 percent of examinees answered the question correctly. Approximately 2,142 of 4,456 examinees chose the response that Petitioner chose for question 128. The "P" value for challenged question 139 was 0.93, meaning that 93 percent of examinees answered the question correctly. Only 20 of 568 examinees chose the response that Petitioner chose for question 139. The "P" value for challenged question 154 was 0.90, meaning that 90 percent of examinees answered the question correctly. Only 51 of 4,331 examinees chose the response that Petitioner chose for question 154. The "P" value for challenged question 156 was 0.80, meaning that 80 percent of examinees answered the question correctly. Only 404 of 5,721 examinees chose the response that Petitioner chose for question 156. The "P" value for challenged question 170 was 0.81, meaning that 81 percent of examinees answered the question correctly. Only 596 of 4,681 examinees chose the response that Petitioner chose for question 170. The "P" value for challenged question 187 was 0.90, meaning that 90 percent of examinees answered the question correctly. Only 28 of 2,908 examinees chose the response that Petitioner chose for question 187. The "P" value for challenged question 236 was 0.92, meaning that 92 percent of examinees answered the question correctly. Only 133 of 2,449 examinees chose the response that Petitioner chose for question 236.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order denying Petitioner’s challenge to the 10 examination questions from the September 20, 2009, Law Enforcement State Officer Certification Examination numbered 32, 62, 63, 128, 139, 154, 156, 170, 187, and 236. DONE AND ENTERED this 9th day of April, 2010, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 2010.
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
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.
