The Issue Whether Petitioner is entitled to credit for his answers to questions 42 and 81 of the morning session of the Fundamentals of Engineering Examination portion of the engineering licensure examination given on April 15, 2000.
Findings Of Fact Worku took the Fundamentals of Engineering Examination portion of the examination for licensure to practice as an engineer intern on April 15, 2000. The examination is a national multiple-choice examination developed and administered by the National Council of Examiners for Engineers and Surveyors (NCEES). The examination is divided into a morning session and an afternoon session. The questions in the morning session are worth one raw point each. The questions in the afternoon session are worth two raw points each. Worku challenged questions 42 and 81, which were on the morning session of the examination. Worku received 56 raw points for the morning session and 52 raw points for the afternoon session for a total raw score of 108 on the examination. Based on the NCEES' Score Conversion Table, a raw score of 108 converts to a score of 69. A converted score of 70, which equates to a raw score of 109-113, is a passing score. Question 81 asked the examinee to identify the geometric shape that was given by an equation provided in the question. Each examinee was given a reference manual during the examination. The manual contains general formulas for the types of geometric shapes listed as possible answers to question 81. The equation given in question 81 was for a specific shape and was not listed among the general formulas in the reference manual. Worku felt that because the general equation was not used that the equation was stated incorrectly. However, the equation was stated correctly. The equation differed from the equation listed in the reference manual because it was for a special shape of the geometric figure. Worku did not answer question 81 correctly. Question 42 dealt with recrystallization as it relates to metal. The question asks the examinee to pick the answer which explains the reference to the term "recrystallization" in the question. Worku contends that there are two correct answers to question 42 and that the answer which he provided is one of the correct answers. The answer which Worku provided is not a correct answer. It refers to the process of annealing, which is the process of decreasing the toughness of a metal. Recrystallization can be a part, but is not always part of annealing. Recrystallization and annealing are not synonymous terms; thus Worku is not entitled to credit for question 42.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Amanuel Worku failed the Engineering Fundamentals Examination with a score of 69. DONE AND ENTERED this 5th day of January, 2001, 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 5th day of January, 2001. COPIES FURNISHED: Amanuel Worku 18492 Northwest 52nd Path Miami, Florida 33055 Douglas Sunshine, Esquire Florida Engineers Management Corporation 1208 Hays Street Tallahassee, Florida 32301 Natalie A. Lowe, Executive Director Board of Professional Engineers 1208 Hays Street Tallahassee, Florida 32301 Barbara D. Auger, General counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact The Department excepts to a portion of the Hearing Officer's finding of fact #3 on the basis that it is not supported by substantial competent evidence in the record. The Hearing Officer finds that a degree in public affairs from Florida Atlantic University is known as a degree in public administration elsewhere. The Hearing Officer cites no record authority for this statement and it does not appear that any officials from Florida Atlantic University or any other post-secondary institutions testified as to what a public affairs degree could be known as at other institutions. Further, the documentary evidence does not support this finding by the Hearing Officer. Joint Exhibit 2 indicates that the Petitioner, Mr. Bingham, received a Bachelor of Arts degree with a major in Political Science from Florida Atlantic University. No where on the official sealed transcript does it indicate that Mr. Bingham received a degree in public affairs or public administration. The Department's exception to finding of fact 3 is accepted. The Department excepts to the Hearing Officer's finding of fact #4 on the basis that it is not supported by substantial competent evidence in the record. For the reasons set forth in paragraph 1 above, the Department's exception to finding of fact 4 is accepted. The Department excepts to the Hearing Officer's finding of fact #9 on the basis that the Hearing Officer erroneously interpreted fire-related courses as a fire-related major study concentration area. The proper standard for reviewing Mr. Bingham's transcript is whether the major study concentration area is fire-related, not whether the Petitioner's major study concentration area includes courses that are job-related. "The intent of the statute and the rule is to require fire fighters to qualify themselves for the performance of their duties by taking fire science courses, not general courses which might be somewhat generally related to the fire fighting career." In the Matter of Jorge Du Quesne; Case No. 91-L-367AKL (Final Order entered November 22, 1991). The Department's exception to finding of fact 9 is accepted. The Department excepts to the Hearing Officer's finding of fact #11 on the basis that it is not supported by substantial competent evidence in the record. For the reasons set forth in paragraphs 1 and 3 above, the Department's exception to finding of fact #11 is accepted. RULING ON EXCEPTIONS TO CONCLUSIONS OF LAW The Department excepts to the Hearing Officer's conclusion of law #15 the reason being that the Hearing Officer uses an erroneous interpretation of the applicable Rules. It appears that in this conclusion of law the Hearing Officer is simply restating the provisions of Rule 4A-37.084(3) and (5), Florida Administrative Code. Although some what difficult to follow, it does not appear that the Hearing Officer has erroneously interpreted this Rule. The Department's exception to conclusion of law #15 is rejected. The Department excepts to the Hearing Officer's conclusion of law #16, again the reason being that the Hearing Officer uses an erroneous interpretation of the applicable Rules and that the conclusion is not supported by competent substantial evidence. The Hearing Officer has based this conclusion of law solely on her theory that if the Petitioner had not changed his major and had attended a different school he might have had his major called something else that would be fire-related. The Hearing Officer does not have authority to arbitrarily change the Petitioner's major study concentration area, nor is there substantial competent evidence in the record to support such a change. The Department's exception to conclusion of law #16 is accepted. The Department excepts to the Hearing Officer's conclusion of law #17 on the basis that it is not supported by substantial competent evidence. For the reasons set forth in paragraph 2 above, the Department's exception to conclusion of law #17 is accepted. The Department excepts to the Hearing Officer's conclusion of law #18 on the basis that it is not supported by substantial competent evidence. For the reasons set forth in paragraph 2 above, the Department's exception to conclusion of law #18 is accepted. RULING ON EXCEPTIONS TO RULINGS ON FINDINGS SUBMITTED BY RESPONDENT IN APPENDIX TO RECOMMENDED ORDER 1. To the extent not inconsistent with the rulings on exceptions to findings of fact contained herein, the Department's exceptions to the Hearing Officer's appendix to Recommended Order are accepted. RULING ON EXCEPTIONS TO RECOMMENDATION Based on the foregoing rulings on the Department's exceptions to the Hearing Officer's findings of fact and conclusions of law, the Hearing Officer's recommendation that the Petitioner be accepted into the Firefighter's Supplemental Compensation Program is rejected and the appropriate disposition of this case is that Petitioner is denied participation said program. Upon careful consideration of the record, the submissions of the parties and being otherwise advised in the premises, it is ORDERED: The Findings of Fact of the Hearing Officer are adopted as the Department's Findings of Fact, with the exception of Findings of Fact #3, 4, 9 and 11. The Conclusions of Law of the Hearing Officer are adopted as the Department's Conclusions of Law with the exception of Conclusions of Law #16, 17, and 18, That the Hearing Officer's recommendation that Mr. Bingham's request for entry into the Firefighter's Supplemental Compensation Program be accepted is rejected and the appropriate disposition of this case is that Mr. Bingham's request is denied. ACCORDINGLY, the request for entry into the Firefighter's Supplemental Compensation Program submitted by WILLIAM L. BINGHAM is hereby DENIED. Any party to these proceedings adversely affected by this Order is entitled to seek review of this Order pursuant to Section 120.68, Florida Statutes, and Rule 9.110, Florida Rules of Appellate Procedure. Review proceedings must be instituted by filing a petition or notice of appeal with the General Counsel, acting as the agency clerk, at 612 Larson Building, Tallahassee, Florida, and a copy of the same with the appropriate district court of appeal within thirty (30) days of rendition of this Order. DONE and ORDERED this 6th day of May 1993. TOM GALLAGHER Treasurer and State Fire Marshal COPIES FURNISHED: HONORABLE LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 WILLIAM L. BINGHAM 11156 Northwest 35th Street Sunrise, Florida 33351 DANIEL T. GROSS, ESQUIRE Division of Legal Services 612 Larson Building Tallahassee, Florida 32399-0300
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting Petitioner's application for entry into the Firefighters' Supplemental Compensation Program at the bachelor's degree level. DONE AND ENTERED this 26th day of March, 1993, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-6278 Petitioner's proposed findings of fact numbered 1-3 and 5-8 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 4 has been rejected as being subordinate to the issue being determined herein. Respondent's proposed findings of fact numbered 1, 2, 9, 10, and 13 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 3-8 have been rejected as being subordinate to the issue being determined herein. Respondent's proposed finding of fact numbered 11 has been rejected as not being supported by the weight of the evidence. Respondent's proposed finding of fact numbered 12 has been rejected as not constituting a finding of fact but rather as constituting argument of counsel. COPIES FURNISHED: Mr. William L. Bingham 11156 Northwest 35th Street Sunrise, Florida 33351 Daniel T. Gross, Esquire Department of Insurance and Treasurer 412 Larson Building Tallahassee, Florida 32399-0300 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neil, General Counsel Department of Insurance The Capitol, PL-11 Tallahassee, Florida 32399-0300
The Issue The issues presented are: (1) whether or not Respondent wrongfully eliminated materials from the Candidate/Petitioner during the April 19, 1990 engineering examination, and if so, (2) whether the Candidate/Petitioner received a failing grade because the materials were wrongfully eliminated.
Findings Of Fact The Petitioner (#100021) received a score of 69.0 on the Professional Engineer Fundamentals Examination given April 19, 1990. A minimum passing score was 70.0 on the examination which is written by National Council of Engineering Examiners and graded by Education Testing Service. (Transcript Pages 36 and 39) Prior to the April 1990 examination, the Board sent each candidate a letter, dated December 18, 1989 (Exhibit P-1) (Transcript Page 9 and 12), which said, "No review publications directed principally toward sample questions and their solutions of engineering problems are permitted in the examination room." (Transcript Page 31). The candidates were also provided with a "Candidate Information Booklet" dated January 1990 (Exhibit R-1, Transcript Page 77). The booklet states on page 14, "No books with contents directed toward sample questions or solutions of engineering problems are permitted in the examination room." (Transcript Pages 77 and 96). Petitioner, who also took the October 1989 examination had received notice at that examination that the Board of Engineers intended to change the procedure allowing reference materials in the examination. (Transcript Page 89 and Respondent's Exhibit 2.) The Board of Professional Engineers advised the examination supervisor and proctors that no engineering "review" materials would be allowed in the examination although engineering "reference" materials could be brought into and used for the examination. However the books which were excluded included books without "review" in the title, books with "reference" in the title, and books which contained problems and solutions. Before the examination began Deena Clark, an examination supervisor, read over a loud speaker system names of books that would not be permitted (Transcript Page 81). Practice examination and solution manuals were not allowed for use by engineering candidates (Transcript Pages 93 and 94). Schram's outlines and other materials were also excluded (Transcript Page 91). Also excluded was Lindeburg's 6th edition, "Engineering In Training Review Manual." (Transcript Pages 16 and 79). This decision was verified by the Board before the examination began (Transcript Page 81). After the examination had begun, Ms. Clark announced that the candidates could put certain copyrighted materials in a three-ring binder and use them which had been excluded earlier (Transcript Page 85). This was in response to candidates who needed economics tables for the examination However, no time was provided the candidate to prepare these references and only one minute was added to the examination time. (Transcript Page 85). Petitioner did not bring any economic tables to the examination site except those contained in books which were not allowed in the examination. (Transcript Page 19). Petitioner did not remove the economic tables and permitted references from the Lindeburg's review manual until lunch and these tables were not available to him on the morning examination. (Transcript Pages 22 and 88). Of the six engineering economics questions on the morning portion for the examination, the candidate correctly answered four. No data was provided on the nature of these questions. The Candidate correctly answered 53 questions in the morning (weighted x 1) and 23 questions in the afternoon (weighted x 2) for a total of 99 weighted required points. He answered eight questions correctly in the "addition" portion of the examination. The table for eight additional questions correct in the "Scoring Information Booklet" used in determining the candidates final grade shows the adjusted equated score was 126 and his scaled score was 69. (Page 21 of booklet). The value of each economics question converted to final scoring scale was enough that passage of one economics question would have resulted in passage of the examination. The exclusion of certain materials from the examination was arbitrary and capricious and was done by a few individuals without any stated objective standard published by the board. Further, the board knew before the examination which books were to be excluded and could have notified examinees of the exact items to be excluded. The Board's generally poor handling of this matter is exemplified in announcing after the examination had begun that items previously excluded could be used if placed in a ring binder but not allowing any time to prepare such materials. (Tx. pgs., 74-80, 84-86, and 91-97) The Petitioner would have used several tables which were excluded if the announcement had been made before the morning examination began with time to put the items in acceptable form. After notifications in October 1989, December 1989, and January 1990, Petition admitted that he did not call the Board of Professional Engineers to ask for guidance on books that would not be allowed on the April 1990 examination (Transcript Page 29). However, a final decision on books to be excluded was not made until approximately two weeks before the examination. The Petitioner did not show that the two questions which he missed on the Engineering Economics portion of the morning examination were missed for lack of the tables. The examination is a national examination and there is no evidence that the requirements and limits established by the Board in Florida were applicable nationwide. To alter the national instructions locally potentially adversely affects Florida results.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Petitioner be permitted to take the examination without charge on one occasion. RECOMMENDED this 27th day of March, 1991, in Tallahassee, Florida. STEPHEN F. DEAN 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 27th day of March, 1991. 1/ The general information provided to examinees by the State Board regarding the values of questions on the examination and scoring it misleading or inaccurate because neither the weighted required score nor the adjusted score was 48% of 80, 280, or any other number related to the scaled score of 70. The manner in which these values are associated with the scale score of 70 is contrary to the Board's explanation and is not self evident. This is a potential problem if the matter were formally challenged, and it appears the Board needs to reassess its procedures and instructions. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-5728 The Petitioner did not submit proposed findings. The Respondent submitted proposed findings which were read and considered. The following proposed findings were adopted or reject for the reasons stated: Adopted. Issue not fact. - 4. Rejected. Preliminary statement not fact. 5. -12. Adopted. Rejected. Preliminary statement not fact. Rejected as irrelevant. Rejected as preliminary statement. Adopted. Adopted. COPIES FURNISHED: Alan K. Garman Civil-Tech, Inc. 3573 Commercial Way Street B Spring Hill, FL 34606 William F. Whitson, Law Clerk Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Rex Smith Executive Director Board of Professional Engineers Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact On June 3, 1956 Petitioner received his degree of Bachelor of Science in Mechanical Engineering from the University of Oklahoma. In 1956 Petitioner took and passed a fundamentals of engineering examination in Oklahoma. This was in furtherance of his licensure as an Engineer-in-Training. It dealt with basic engineering subjects. He also took a principles and practice examination in that year in Oklahoma. The fundamentals of engineering examination was Part I and the principles and practices examination was Part II. The State Licensing Board in Oklahoma did not recognize the results of Part II. As Petitioner explains it, based upon his understanding of the circumstances, that state had revised its laws pertaining to licensure of engineers in 1961. In 1960, to his understanding, those changes were in the draft form concerning the legislation. The changes that were brought about in 1961 required that a candidate for licensure have four years of experience before he or she would be able to stand a mandatory principle and practices Part II portion of an examination process. Because Petitioner had not gained four years experience before standing examination on principles and practices Part II the licensing authority in Oklahoma removed the reference to Petitioner's successful completion of the principles and practices Part II portion of the examination. Moreover it does not appear that candidates for licensure as professional engineers when Petitioner received his certificate of registration as a professional engineer granted by the State of Oklahoma on May 13, 1960 had to stand an examination before receiving that license. Prior to the receipt of registration as a professional engineer and following his graduation from the University of Oklahoma, Petitioner had held the Engineer-in-Training License. Petitioner had not received his professional engineer's registration in 1956 because the State of Oklahoma required a minimum three years of professional experience after graduation from engineering school before it would grant that registration. The verification of registration form that was completed by the Oklahoma Board of Engineering indicated that the Petitioner's registration as a professional engineer was based upon five years of formal education in his engineering course work, an examination associated with a license as Engineer- in-Training, and three years of work experience beyond that five year course. Records of the licensing authority in Oklahoma have not shown the Petitioner as having taken a professional engineer's examination as contrasted with his examination for an Engineer-in-Training license. Further, Petitioner is without tangible evidence that he stood the principles and practices portion Part II, as part of a professional engineer's examination in Oklahoma. After graduation, Petitioner worked for Continental Oil Company, Poncaca City, Oklahoma from June, 1956 until October, 1957 in a position whose title was automotive engineer. In this employment he designed special equipment for different departments within that company. This included all terrain vehicles for seismograph work and heavy duty trucks to haul drilling rigs. It involved design of seismographs and a shaker that was intended to replace drilling a hole and shooting dynamite charges. From October, 1957 until February, 1958 Petitioner worked as a sales engineer for Parkersburg Refrigeration and Reel Company in Oklahoma City, Oklahoma. This work was involved with a pumping unit that had gear systems in it. The pump had to be designed economically. The pump had to be designed to withstand a certain amount of torque. If a system was too large for a well then it cost the customer money. If it was too small it would strip the gears. A piece of equipment also involved beams. It included a sucker rod strain that had to be sized so that it did not overly stretch as the pump lifted. There was a concern that the design be such that it would not achieve harmonic balance causing a bungee cord effect. This experience involved picking pump sizes or specific pieces of equipment and matching those with the client's or customer's needs. One had to be careful about the sucker rod size in that the rod was introduced two miles into the earth to lift oil. From January, 1959 until July, 1960 Petitioner worked at the Oklahoma City Air Defense Station in Oklahoma City, Oklahoma in a position entitled mechanical engineer (general). This work involved designing a maintenance program for mechanical equipment in diesel electric generating plants. From August, 1960 until October, 1963 Petitioner held the position of employment as a mechanical engineer (diesel). This was in association with the headquarters of the Air Defense Command, Ent Air Force Base, Colorado Springs, Colorado. In this assignment he worked in 138 different stations as opposed to 11 stations in the prior position he held. In addition to working to design maintenance programs, he also was involved in work on overhauls by designing a program for determining when overhauls were necessary on the diesel electric generators. Petitioner was also a trouble shooter. If there was trouble with a unit, others would send the Petitioner to the station and he would analyze the problem and recommend necessary corrective action. Petitioner prepared programs and told mechanics what to do in the way of maintenance. From November, 1963 until November, 1985 Petitioner was employed as a consulting engineer and general contractor for Jack Stout Engineering and Construction Company in Yukon, Oklahoma. The engineering portion of this enterprise had to do with designs of varying kinds. As to things built by his company, this included buildings, building foundations, and building trusses. It also included electrical systems, plumbing systems and mechanical systems. Those latter items were required to be done by a professional engineer in Oklahoma during the period in question, in those instances involving public access whether into private or public buildings. During Petitioner's association with Jack Stout Engineering and Construction Company, approximately 50% of his time was spent as a consulting engineer and the other 50% as a general contractor. In the period November, 1985 until August, 1989, Petitioner was still associated with Jack Stout Engineering and Construction Company as a consulting engineer and contractor; however, he had moved to Port Mansfield, Texas. At this point Petitioner did some professional engineering work in Oklahoma even though he was residing in Texas. Petitioner indicated that he obviously did not do as much work as a professional engineer while residing in Texas. The engineering work that he did in Texas proper was not of a professional level. The work in Texas involved redesigning boats. From the period August, 1989 until April, 1991, Petitioner worked as a real estate salesman for Heritage Realty in Tallahassee, Florida. He has done some professional engineering work in Oklahoma while residing in Florida, but not as much as when he lived in Oklahoma. Dr. Robert Kersen who holds a baccalaureate degree, masters degree, and doctorate in civil engineering, testified concerning which activities constitute the practice of engineering. Among the positions which Dr. Kersen has held which would give him insight in commenting on engineering practice was that of Dean of the Engineering School at the University of Central Florida. He was dean for approximately 20 years. This gave him the occasion to evaluate individuals concerning their engineering backgrounds. In addition he served on the State Board of Engineers in Florida for about 6 years and was on the application committee which allowed him to review candidate files for licensure that came before the State Board of Engineers. In particular he has had the opportunity to investigate background experience of those candidates. Given his credentials, Dr. Kersen was qualified as an expert to state his opinion, to comment on the nature of activities that would constitute the practice of engineering. As established by Dr. Kersen, the prime function of an engineer is to devise the system, components, structure, machine, or whatever item, according to sound engineering principles and standards of practice. By contrast, contractors are responsible for building, constructing, and erecting structures according to the engineer's plan. Notwithstanding the distinction between the activities of engineers and contractors, it has been the custom and practice of the Board of Professional Engineers in Florida, to Dr. Kersen's knowledge, to accept contracting experience in lieu of engineering experience in satisfying engineering experience requirements for licensure. That experience in contracting is discounted by 50%. This concept is reasonable and is accepted. Applied to Petitioner's experience while working with Jack Stout Engineering and Construction Company in Yukon, Oklahoma in the period November, 1963 until November, 1985, Petitioner would be entitled to 11 years credit as an engineer and five and one-half years credit as a contractor, for a total of 16 1/2 years in that work cycle. This experience when added to the other positions which Petitioner held from June, 1956 until November, 1963 gives Petitioner approximately 24 years of continuing engineering experience. The period beyond November, 1985 until August, 1989 constituting approximately three and one-half years additional experience is unclear concerning which portion was associated with professional engineering, contracting and engineering practice not of a professional level. In any event, even should the Petitioner be credited with that latter period, the total amount of continuous work as an engineer from June, 1956 until August, 1989 would be slightly in excess of 27 1/2 years. Petitioner's explanation of the period of August, 1989 through April, 1991 did not clearly identify the portion of his time which was spent in engineering practice as opposed to what appears to be his principal employment as a real estate salesman and he is not credited for that period.
Recommendation Upon consideration of the facts found and the conclusions of law reached it RECOMMENDED: That a Final Order be entered which denies the application for licensure by endorsement. DONE and ORDERED this 4th day of November, 1992, in Tallahassee, Florida. CHARLES C. ADAMS, 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 4th day of November, 1992. APPENDIX CASE NO. 92-3635 The following discussion is given concerning the fact finding proposed by the parties: Petitioner's Proposed Findings of Fact. Petitioners facts were presented together with his legal argument in such a manner as to not allow specific discussion concerning those proposed facts. Respondent's Proposed Findings of Fact. Paragraphs 1 through 4 are subordinate to facts found. Paragraph 5 is not necessary to the resolution of the dispute. Paragraphs 6 through 14 are subordinate to facts found. Paragraph 15 is not necessary to the resolution of the dispute. Paragraphs 16 through 18 are subordinate to facts found. Paragraph 19 does not change the impression of the work which Petitioner did which has been credited as engineering work. Paragraph 20 is not necessary to the resolution of the dispute. COPIES FURNISHED: Jack L. Stout No. 229 2775 Jewel Drive Tallahassee, FL 32310 and 916 North Gadsden Street Tallahassee, FL 32301 Edwin A. Bayo, Esquire Department of Legal Affairs The Capitol Tallahassee, FL 32399-1050 Angel Gonzalez, Executive Director Department of Professional Regulation Board of Engineers 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue Whether Petitioner meets the requirements of Section 471.015(3), Florida Statutes (2007), for licensure as a professional engineer by endorsement.
Findings Of Fact Petitioner attended Old Dominion University, Norfolk, Virginia, from fall of 1983, to May 16, 1987. He graduated May 16, 1987, with a Bachelor of Science Degree in Engineering Technology, with a major in Mechanical Engineering Technology. There is no affirmative evidence that Old Dominion University's curriculum demonstrates a deficient level of competence necessary to practice engineering in the State of Florida in the capacity of a Professional Engineer to protect public health and safety. There is no affirmative evidence of conditions unique to the State of Florida that warrant a level of competence beyond that demonstrated by Petitioner's Degree in Engineering Technology. Petitioner passed the National Council of Examiners for Engineering and Surveying Examination Part I (NCEES) Fundamentals of Engineering examination on April 11, 1987. Petitioner passed the NCEES Principles and Practices examination on October 27, 1995. Petitioner received a professional engineering license to practice in the Commonwealth (State) of Virginia on January 30, 1996. Petitioner received a professional engineering license to practice in the State of Alabama on May 30, 2003. Petitioner received a professional engineering license to practice in the State of Texas in 2005. Petitioner received a professional engineering license to practice in the State of Wisconsin in 2005. Petitioner applied for a Florida professional engineering license by endorsement on July 12, 2007. Petitioner has over four years' active engineering experience, meeting the requirements set forth in Section 471.013(1)(a), Florida Statutes. There is no evidence that the Florida Board of Professional Engineers requested supplemental information beyond that required by the Respondent's Application for Licensure by Endorsement, but Petitioner had every opportunity to present evidence in the present de novo proceeding. The Notice of Denial issued by the Florida Board of Professional Engineers on January 14, 2008, reads, in pertinent part: The Applicant does not satisfy the Education requirements of Chapter [sic] 471.015 that incorporates by reference Chapter [sic] 471.013 Florida Statutes. Your application failed to meet requirements of Section 471.013 (1) (a) F.S. Under this provision of the law, you must evidence a degree from an EAC/ABET accredited engineering program. You hold a Bachelor of Science in Engineering Technology Degree from Old Dominion University, Norfolk, Virginia. The Applicant does not have a Board approved degree.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Board of Professional Engineers enter a final order denying Petitioner's application for licensure as a professional engineer by endorsement. DONE AND ENTERED this 28th day of July, 2008, in Tallahassee, Leon County, Florida. S 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 2008.
Findings Of Fact Douglas H. Gunter is a 34-year-old applicant for the unlimited electrical contractor's examination. He attended Gulf High School in New Port Richey, Florida, and took classes at Austin Community College in Austin, Texas. His college classes included courses in Business Math, Principles of Management, Principles of Microeconomics, Mathematics of Finance, Principles of Accounting I, Principles of Accounting II, and Individual Income Tax. He earned a total of 21 semester hours in the Austin Community College system. From 1972 to 1975 Mr. Gunter worked as a residential electrician. From 1975 through 1979 he was enlisted in the U.S. Navy. He completed the Navy electronics and basic electricity school, and the aviation electrician's mate school and an aviation electrician organizational maintenance course. From October 1976 through July 1979, he was assigned to the electrical instrument branch of a Naval maintenance department, where he was responsible for performing scheduled and unscheduled maintenance on U.S. Navy aircraft as an aircraft electrician. After leaving the Navy he managed all phases of his family's plumbing business, George Gunter Plumbing, Inc., which is State-certified plumbing contractor #CFC040002, from 1979 to 1983. His management duties included estimating, payroll, handling workers' compensation insurance, taxes and the ordering of supplies for jobs in both residential and commercial plumbing. Mr. Gunter possesses an electrical contractors' license in Palm Beach County, #V-16057, where he has been active as an electrical contractor for approximately three months. He also holds an electrical contractors license in Pasco County which he received in 1984, #3277, but which became inactive soon thereafter. It was briefly reactivated last year. Mr. Gunter has been engaged in electrical work for a number of companies from 1985 through the present. These included such things as the installation of a Switch Gear Computer system and energy management system in a 20,000 square foot office building in Austin, Texas; installation of panel boards and outside lighting and fire alarm system in a restaurant/office complex in Boca Raton, Florida; installation of kitchen equipment, a laundry and boiler room and controls for lighting in a Marriott Hotel; electrical work in a restaurant in Coral Springs, Florida; in a shopping center in Plantation, Florida; at an oil lube center in Margate, Florida; and a commercial jewelry store in Hollywood, Florida. The Board is satisfied that Mr. Gunter has adequate technical or field experience as an electrician (Tr. 28). The denial letter from the Board focused on whether Mr. Gunter had three years of responsible management experience or six years comprehensive, specialized training, education or experience associated with an electrical contracting business.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered by the Electrical Contractors Licensing Board denying the application of Douglas H. Gunter to sit for the examination as an unlimited electrical contractor. RECOMMENDED this 18th day of December, 1991, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1991. COPIES FURNISHED: Douglas H. Gunter 600 East River Drive Margate, Florida 33063 Clark R. Jennings, Esquire Department of Legal Affairs The Capitol Tallahassee, Florida 32399-1050 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Daniel O'Brien, Executive Director Department of Professional Regulation Electrical Contractors Licensing Board 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact In April 1995, Abraham S. Inlong (Petitioner) took the Electrical Engineer part of the Professional Engineering Examination (Examination). A minimum grade of 70 is required to pass the Examination. The Department of Business and Professional Regulation, Board of Professional Engineers (Respondent) notified Petitioner that he had failed the Examination, having received a grade of 69.10. The Examination is a national examination and is graded by national examiners. Respondent issues licenses to practice professional engineering in the State of Florida and administers the Examination on behalf of the State. Petitioner challenges, the answer selected by the national examiners to Problem 433, Question 6 of the Examination, which is A. Respondent selected D as the answer, which states that A, B, and C are all correct. As part of the instructions for candidates taking the Examination, the candidates were to choose the best answer. The best answer is the correct answer. Respondent's response to Problem 433, Question 6 was regraded by the national examiners. They denied Respondent any additional credit. The best and correct answer to Problem 433, Question 6 is the answer identified by Respondent as the answer by the national examiners, i. e., A. The answer selected by Petitioner is not the best and correct answer. A diagram is part of the challenged problem and question. The diagram is clear and unambiguous. The scope of knowledge required for the challenged problem and question is not beyond the knowledge reasonably expected from a candidate for licensure. The challenged problem and question contain sufficient information for a candidate for licensure to select the best and correct answer. Additional information was unnecessary, including whether the system was balanced or unbalanced. The challenged problem and question are clear and unambiguous. The challenged problem and question are not devoid of logic and reason. The challenged problem and question are valid. Statistics indicate that 60 percent of the candidates for licensure (candidates), who took the Examination, answered Problem 433 correctly and that 48 percent of the candidates answered Problem 433, Question 6 correctly.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Board of Professional Engineers, enter a final order dismissing Abraham S. Inlong's examination challenge and denying him licensure. DONE AND ENTERED this 1st day of August, 1996, in Tallahassee, Leon County, Florida. ERROL H. POWELL, 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 1st day of August, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-0031 The following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact Partially accepted in findings of fact 1 and 2. Partially accepted in finding of fact 4. Partially accepted in findings of fact 4 and 8. Partially accepted in finding of fact 7. Rejected as being not supported by the greater weight of the evidence, not supported by the more credible evidence, argument, or a conclusion of law. Rejected as being not supported by the greater weight of the evidence, not supported by the more credible evidence, argument, or a conclusion of law. Rejected as being not supported by the greater weight of the evidence, not supported by the more credible evidence, argument, or a conclusion of law. Rejected as being not supported by the greater weight of the evidence, or not supported by the more credible evidence. Rejected as being not supported by the greater weight of the evidence, or not supported by the more credible evidence. Respondent's Proposed Findings of Fact 1. Partially accepted in finding of fact 1. 2. Partially accepted in finding of fact 2. 3. Partially accepted in finding of fact 2. 4. Partially accepted in finding of fact 2. 5. See Preliminary Statement. 6. See Preliminary Statement. 7. Partially accepted in finding of fact 4. 8. Partially accepted in finding of fact 4. 9. Partially accepted in finding of fact 7. 10. Partially accepted in finding of fact 11. 11. Partially accepted in finding of fact 10. 12. Partially accepted in finding of fact 9. 13. Partially accepted in finding of fact 10. 14. Partially accepted in finding of fact 10. Partially accepted in findings of fact 9 - 12. Partially accepted in finding of fact 12. Partially accepted in finding of fact 6. Rejected as being subordinate, argument, or a conclusion of law. Partially accepted in finding of fact 8. Partially accepted in finding of fact 14. Partially accepted in finding of fact 13. Rejected as being subordinate, or unnecessary. Rejected as being subordinate, or unnecessary. Rejected as being subordinate, or unnecessary. NOTE--Where a proposed finding has been partially accepted, the remainder has been rejected as being subordinate, irrelevant, unnecessary, not supported by the greater weight of the evidence, not supported by the more credible evidence, argument, or a conclusion of law. COPIES FURNISHED: Harold M. Braxton, Esquire One Datran Center, Suite 400 9100 South Dadeland Boulevard Miami, Florida 33156-7815 R. Beth Atchison Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Angel Gonzalez, Executive Director Department of Business and Professional Regulation Board of Professional Engineers 1940 North Monroe Street Tallahassee, Florida 32399-0755 Lynda Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Petitioner is qualified for licensure as a professional geologist pursuant to the grandfather provision of Section 492.105(2)(c), Florida Statutes (1987).
Findings Of Fact Andrew Minot Nicholson, Petitioner, applied for licensure as a professional geologist pursuant to the grandfather provisions of Section 492.105(2)(c), Florida Statutes. This provision exempts qualifying applicants from taking and passing the examination required of other applicants. The Respondent has stipulated that Petitioner is in all respects qualified for licensure, except for the educational requirements contained in Section 492.105(1)(d)2, Florida Statutes. Petitioner graduated from the Florida Institute of Technology (FIT) in 1973 with a degree in Ocean Engineering. He later returned to FIT and received a master's degree in Business Administration. The courses which Petitioner argues meets the educational requirements for licensure as a professional geologist are as follows (all from FIT) Course Abbreviation Course Title Course Hours Earned ST161 Introduction to Earth and Space Sciences 3 ST313 Materials Science I 3 ST314 Materials Science II 3 OE3505 Ocean Engineering Design 3 ST315 Materials Laboratory 1 0E3583 Marine Geology Laboratory 1 0E4506 Ocean Engineering Design II 3 OE3001 Introduction to Oceanography 3 OE3503 Marine Geology 3 OE3002 Chemical Oceanography 3 OE3500 Fluid Mechanics I 3 OE4507 Soil Mechanics 3 OE4508 Hydroacoustics 3 OE3581 Fluid Mechanics Laboratory I 1 OE3502 Fluid Mechanics II 3 OE3582 Fluid Mechanics 1 Laboratory II OE4502 Optical Oceanography 3 0E4581 Optical Ocean Laboratory 1 OE4433 Solid Mechanics I 3 0E4505 Ocean Waves 3 The above courses, with the exception of Introduction to Earth and Space Sciences, are upper division courses successfully completed by Petitioner. The hours listed are quarter hours. Fifty quarter hours are roughly equivalent to 40 semester hours. Of those courses in finding four above only Introduction to Earth and Space Sciences (ST161), Marine Geology Laboratory (OE3583), Introduction to Oceanography (OE3001) and Marine Geology (OE3503) were accepted by Respondent as meeting the statutory identification as geology courses. Geology is a precise science which relies on knowledge about principles which can only be obtained by taking core courses in geology programs. These core courses include Historical Geology, Structural Geology, Mineralogy, Optical Mineralogy, Petrology, Sedimentology, Geophysics, Geochemistry, Stratigraphy, Economic Geology, Hydrogeology, Field Methods and Paleontology. The courses taken by Petitioner at FIT were primarily oceanographic engineering or oceanography courses and the geological aspects of the courses he took related only to the aquatic aspects of geology. Petitioner's practical experience, which was accepted as adequate by the Board, involved only aquatic geology. If Petitioner's practice of geology were limited to an oceanographic setting, with the training he received at FIT, he would be qualified for licensure. However, there are not geology licenses limited to one specific field of geology. Petitioner contends that because FIT is listed in the Directory of Geoscience Departments by the American Geological Institute, a degree from that school qualifies him to meet the educational requirements for licensure. This document is a directory of academic geoscience departments which include geology departments as well as oceonographic institutes. A listing of the professors at FIT in this directory reveals a heavy orientation of their degrees towards oceanography and ocean engineering as opposed to geology. Licensing of professional geologists came to being in Florida with the enactment of Chapter 87-403 Laws of Florida. Accordingly, applications for licensure have been processed for only one year and Rules have not been adopted which define and interpret various provisions of this statute such as what constitutes "geological courses". Respondent has a proposed rule to provide a more detailed explanation of what criteria an applicant must meet to satisfy the educational requirements for licensure. Such a policy constitutes incipient agency action pending the adoption of rule. Respondent's witness explained that since there are no provisions for limited licenses in geology, the Board has adopted a policy which requires applicants for licensure to demonstrate that they have taken enough core geology courses to have been subjected to nearly all phases of geology. This will permit them, hopefully, to at least recognize problems that may need additional research to resolve, while holding themselves out as licensed professional geologists.
Recommendation It is recommended that the application of Andrew Minot Nicholson for licensure as a professional geologist under the grandfather provisions of Section 492.105(2)(c) Florida Statutes be denied. DONE and ENTERED this 22nd day of December, 1989 in Tallahassee, Leon County, Florida. K.N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-0282 Treatment accorded Petitioner's proposed findings. Proposed findings submitted by Petitioner are accepted and are in general included in the findings submitted by the Hearing Officer except: Petitioner's Exhibit 5. Reject last sentence. "Geological courses" was defined by Respondent's witness. Petitioner's Exhibit 8. Rejected. Respondent looked at the curriculum and the professor's fields of expertise who taught the courses. From these two factors the department concluded the courses were not primarily geology courses, although all of the courses touched slightly on geology. Treatment accorded Respondent' proposed findings. Proposed findings submitted by the Respondent are accepted. COPIES FURNISHED: Clark R. Jennings, Esquire Department of Legal Affairs Suite 1603, The Capitol Tallahassee, FL 32399-1050 Maxwell G. Battle, Jr., Esquire 1460 Beltrees Street Suite A Dunedin, FL 34698 Kenneth D. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Anna Polk Executive Director Board of Professional Geologists 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue Whether Petitioner is entitled to additional credit for his solutions to Problems 124 and 222 of the Principles and Practice of Engineering portion of the engineering licensure examination administered on October 30, 1998, by the National Council of Examiners for Engineers and Surveyors.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: On October 30, 1998, as part of his effort to obtain a Florida engineering license, Petitioner sat for the Principles and Practice of Engineering Examination (Examination). This is a national examination developed and administered by the National Council of Examiners for Engineers and Surveyors (NCEES). Petitioner chose to be tested in civil engineering. Petitioner received a raw score of 47 on the Examination. For the civil engineering specialization, a raw score of 47 converts to a score of 69. To pass the Examination, a converted score of 70 is needed. Petitioner formally requested the NCEES to rescore his solutions to Problems 124, 125, and 222 on the Examination. At the time he made this request, Petitioner was aware that rescoring could result in the candidate's score being lowered (although he believed that, in his case, the outcome would be a higher, not a lower, score). Petitioner was wrong. The rescoring he requested resulted in his receiving a raw score of 43 (or a converted score of 65, 5 points less than he needed to pass the Examination). After being notified of the outcome of the rescoring, Petitioner requested the Florida Board of Professional Engineers to grant him a "formal administrative hearing" on the matter. Petitioner's request was granted. At hearing, Petitioner advised that he was challenging only the grading of his solutions to Problems 124 and 222 of the Examination, and that he was not pursuing his challenge to the score he had received for his solution to Problem 125. Problems 124 and 222 were worth ten (raw) points each. Problem 124 contained four subparts (or requirements). Petitioner received two (raw) points for his solution to Problem 124. Rescoring did not result in any change to this score. Due to mathematical errors that he made, Petitioner did not solve any of the subparts of Problem 124 correctly. Accordingly, in accordance with the requirements and guidelines of the NCEES scoring plan for this problem, the highest (raw) score that he could have received for his solution to this problem was a two, which is the score he received. Problem 222 contained five subparts (or requirements). Petitioner originally received a (raw) score of six for his solution to Problem 222. Upon rescoring, his (raw) score was reduced to two. In attempting to solve Problem 222, Petitioner overestimated the lateral earth pressure due to his misunderstanding of the term "equivalent fluid pressure" used in the problem. In addition, in his solution to subpart (a), he did not properly specify the appropriate bar size and spacing. Giving Petitioner a (raw) score of two for his solution to Problem 222 was consistent with the requirements and guidelines of the NCEES scoring plan for this problem.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered rejecting Petitioner's challenge to the failing score he received from the NCEES on the Principles and Practice of Engineering portion of the October 30, 1998, engineering licensure examination. DONE AND ENTERED this 4th day of October, 1999, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 1999.
Findings Of Fact Petitioner is a registered electrical contractor doing business as Howard Hall Electric. On October 16, 1979, Petitioner filed his application to become a certified electrical contractor. Prior to filing his application, Petitioner knew the next examination for such certification was scheduled to be given on November 2, 1979. At its meeting on October 18 and 19, 1979, the board approved Petitioner's application to sit for the Electrical Contractors' Certification Examination. By letter dated October 24, 1979, the Board advised Petitioner of the approval and provided Petitioner with information concerning the November 2, 1979, examination. The information provided included a listing of those areas of competency to be covered by the certification examination, and specifically set forth that the examination would include problems relating to accounting. Petitioner was provided by the Board a reference book list of those books permitted to be utilized during the "open-book" examination. The list did not include a reference book for accounting. Petitioner took the examination on November 2, 1979. On December 3, 1979, the Board directed a letter to the Petitioner advising him that he had failed the examination, having achieved a score of 67. The rules of the Board require that a score of 70 be attained in order to pass the examination. Of the candidates taking the examination on November 2, 1979, 20 persons of the 26 sitting for the examination were successful. Further, 19 of the 24 persons taking the accounting portion of the examination were successful. Petitioner requested a review of his examination, and such review was afforded to him by the Board. Additionally, an analysis of the examination itself was performed by the Office of Examination Services of the Department of Professional Regulation. The Board, which had drafted the examination, reviewed the examination and Petitioner's answers to the questions thereon and determined that the examination was fair and properly graded as to the Petitioner. The Office of Examination Services performed an item analyzation as to the number of candidates responding correctly and incorrectly as to each question on the examination. Although the Office of Examination Services determined that several questions on the examination could have misled some candidates, most candidates responded correctly, and most candidates successfully passed the examination. Although one of the books on the reference list provided by the Board was out of print and unavailable, the examination contained no questions dealing with that subject matter In performing its analysis of the examination, the Office of Examination Services contacted Professor William Hillison of Florida State University to obtain his opinion of the questions in the accounting section of the examination. Dr. Hillison felt that most of the questions in the accounting section were capable of being answered correctly by Florida State University students in their sophomore year in the introductory accounting courses offered by that school. Although Professor Hillison believed that several of the questions in the accounting section were problematic as to the terminology utilized, no testimony was presented that his students would be unable to answer the questions or that the questions were beyond a level of expertise expected to be possessed by a businessman having a general knowledge of management, finance, accounting, and any other functional areas of business.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED THAT: Petitioner's application for licensure as a certified electrical contractor be denied. RECOMMENDED this 7th day of May, 1980, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings Department of Administration Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Paul A. Lehrman, Esquire 103 North Gadsden Street Tallahassee, Florida 32301 Patricia R. Gleason, Esquire Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32301 Frederick H. Wilsen, Esquire Legal Section Department of Professional Regulation 2009 Apalachee Parkway Tallahassee, Florida 32301 Nancy Kelley Wittenberg, Secretary Department of Professional Regulation The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301
