Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In February 1989, petitioner, Dennis John Hujar, was an examinee on the certified residential contractor examination The test is prepared under the direction of and administered by respondent, Department of Professional Regulation, Construction Industry Licensing Board (Department or Board). Petitioner later received written advice from the Department that he had made a grade of 68 on the examination. According to agency rules, a score of at least 69.1 is required for passing. Petitioner then filed an appeal of his grade contending that question 19 was ambiguous. That prompted this proceeding. The examination in question was prepared by the National Assessment Institute and contains three specific areas of testing, including business and financial management. The latter section includes questions on business law. Each item or question is drafted by a committee made up of representatives of the Department, Board and construction industry. After being drafted, the question is reviewed by the Department and Board for accuracy and content. However, the business law questions are not reviewed by attorneys prior to their use. Question 19 was a business law question having a value of two points on an examinee's overall score. The parties agree that if Hujar had received two additional points he would have passed the examination. Question 19 was designed to ascertain if the candidate could differentiate between a licensed and unlicensed contractor, the significance of that distinction, and the circumstances under which the recovery of profit and supervisory costs would be allowed. The question contained four possible answers, (a), (b), (c) and (d), one of which was a "good detractor" for the examinees. The correct solution was based on reference material contained in section 2.10 of the Florida Construction Law Manual, a copy of which has been received in evidence as hearing officer exhibit 2. As is pertinent here, that section provided as follows: Where a contractor or subcontractor has no license and enters into a contract, the contract is void for illegality. (citation omitted) The unlicensed contractor is not permitted to recover for lost profit. However, where work has already been done, the courts have allowed recovery on the basis of quantum meruit, but still deny recover of lost profit and cost of supervision. (citation omitted) In a case where the principal of a corporation was licensed as a general contractor for 17 years, but the corporation owned by the principal was not so licensed, a California court held that there was substantial compliance with licensing so as not to deny recovery of sums due. (citation omitted) Any person who is not licensed may not be considered as a lienor and may not have a mechanic's lien. (citation omitted) Because of security and confidentiality constraints, the challenged question cannot be repeated verbatim herein. It is suffice to say that the problem posed a hypothetical situation involving a state licensed general contractor who utilized an out-of-state (or unlicensed) subcontractor for site work on a Florida project. After the subcontractor completed site work of a specified value, the initial draw request was submitted to the owner for reimbursement of that cost and a reasonable profit. A second invoice for site work was then submitted to the Florida contractor but not the owner. At the same time, the owner learned of the subcontractor's unlicensed status and halted work on the project. The question asked the amount of money that the owner would "most likely (be) liable for at the time of the due date for the initial draw." According to the answer sheet received in evidence as hearing officer exhibit 1, the owner was liable for the initial draw request at that time, including allowable overhead, but did not owe for the cost of the second invoice not yet submitted to him by the contractor. This response was consistent with the cited reference material. Through his representative, petitioner claimed that the word "liable" most logically should be construed to mean the amount of money that the owner was ultimately liable to pay on the project although not necessarily at that point in time. Under this theory, the owner would have been responsible for a dollar amount at least equal to the contractors's cost in the initial draw plus the second but not yet submitted invoice for completion of the site work. If such an interpretation of the question was valid, petitioner's answer would have been correct. In this regard, it is noted that although there is no testimony as to the response given by Hujar on this question, it may be reasonably inferred that his answer was the same as that suggested by his representative. Koning contended further that in order to make correct the Board's response, the question should have asked for the owner's liability "at that time", thereby denoting that the ultimate liability was not in issue. It is noted that petitioner's representative is a licensed general, plumbing, roofing and underground utilities contractor and teaches the law manual as a preparatory course for the state examination. Petitioner is a former student. Respondent's consultant, George Bruton, who is a licensed general contractor and assists in the preparation of examination questions, considered the question to be clear and unambiguous. According to Bruton, the question required a student to recognize that 100% of a subcontractor's invoice plus allowable overhead are due and payable in full at the time of the first draw. However, because the owner had not yet been invoiced for the remaining amount of site work, he would not be liable for that amount. Bruton discounted petitioner's suggested answer as being nonresponsive on the grounds the words "ultimate liability" did not appear in the question, and petitioner was assuming a condition not called for in the question. Since the question did not use the words "ultimate liability", and petitioner's interpretation is not the most reasonable one, it is found that the question was not so "substantially misleading and insufficient" as to warrant the invalidation of the question or to justify a different response.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying petitioner's request to receive a passing grade on the examination. DONE and ENTERED this 26th day of October, 1989, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 October, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-4313 Petitioner: 1-2. Used in finding of fact 2. Used in findings of fact 2 and 4. Used in preliminary statement and conclusions of law. Used in preliminary statement and finding of fact 8. Used in finding of fact 7. Rejected since it can be inferred that petitioner's response was choice c. Respondent: Respondent's "summary of facts" has been treated as conclusions of law and therefore specific rulings have not been made. The document attached to the summary of facts is not of record and has accordingly been disregarded. COPIES FURNISHED: Mr. Robert Koning 8301 Joliet Street Hudson, Florida 34667 Mr. Dennis J. Hujar 1511 Brooker Road Brandon, Florida 33511 E. Harper Field, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Kenneth E. Easley, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
The Issue Whether the Petitioner, Jenny Lancett (Petitioner) is entitled to additional credit for the answers she provided to challenged examination questions. The Petitioner has challenged the State Officers Certification Examination (SOCE) for Law Enforcement Officers given in July of 2005 (DOAH Case No. 05-4544) and September of 2005 (DOAH Case No. 06-0325).
Findings Of Fact The Petitioner is an applicant for certification as a law enforcement officer. In order to be eligible to sit for the state examination, the Petitioner successfully completed an academy course that was sponsored by the Palm Beach County Sheriff’s Office. To become fully certified, the Petitioner must take and achieve a passing score on the SOCE. The Petitioner took the SOCE on July 27, 2005, but did not pass. She also took the SOCE on September 21, 2005, and did not pass. The Respondent is the state agency charged with the responsibility of administering examinations for certification for the SOCE. After the July and September examinations for the SOCE were administered and the Petitioner received failing scores, she requested and attended examination review sessions conducted at the Respondent’s headquarters in Tallahassee, Florida. The review sessions were held at the Florida Department of Law Enforcement and the Petitioner was given copies of the examination questions for which she did not provide the correct answers. The Petitioner was not told the correct answers. As to the July examination, the Petitioner timely challenged Questions 45, 56, 90, 141, 151, 156, 161, 163, 207, 227, 234, 238, and 242. That examination challenge was forwarded to the Division of Administrative Hearings on December 14, 2005, and was designated as DOAH Case No. 05- 4544. The Petitioner withdrew her challenge to Question 238. As to the September examination, the Petitioner timely challenged Questions 44, 63, 134, 160, 162, 165, 166, 178, 189, 194, 195, and 208. That examination challenge was forwarded to the Division of Administrative Hearings on January 26, 2006, and was assigned DOAH Case No. 06-0325. On February 3, 2006, in response to the Joint Motion to Consolidate, the cases were consolidated for formal hearing and rescheduled for hearing to March 21-22, 2006. The case was heard on April 5, 2006. As to each challenged examination, the applicant must answer 250 questions and achieve at least 180 correct answers. Twenty-five questions of the 250 do not count but are considered “throw-away” questions. All questions are posed in English. All questions are multiple choice and an applicant is given credit for only the correct answer. The Respondent deems the correct answer to be the best choice from among the options offered. The Petitioner is an Hispanic female who reads, writes, and speaks English. Although she inquired about accommodations, the Petitioner was not afforded any accommodations while taking the challenged examinations based upon English as her non-native language. The Commission requires that all applicants take the examination in English. Similarly, accommodations are not afforded applicants who maintain “test anxiety” as a basis for concern. All questions and answers for the challenged examinations are considered confidential as a matter of law. As to each of the questions challenged by the Petitioner, the Petitioner failed to select the correct and best option from the multiple-choice selections noted. As to each of the questions challenged by the Petitioner, the wording and options noted are clearly stated and are within the curriculum covered by the academy. Of the numerous Hispanic candidates who have successfully completed the Palm Beach County academy during Mr. Kozyra’s tenure, only two have failed to achieve a passing score on the SOCE within three attempts. The Petitioner submitted no credible evidence to support her claim that the answers she provided on the challenged examination questions were correct or that the questions in their wording or grading were flawed. The persuasive weight of the evidence was to the contrary. A question which asks the applicant to provide a response that is “most accurately” describing the situation (as did Question 56 on the July examination) means that of the choices offered only one can be considered “most accurate.” If the applicant chooses an answer that is not the “most accurate,” credit is not given. Many of the Petitioner’s responses fell into this type of erroneous response. The Petitioner simply failed to provide the “most accurate” from the selections offered. As to each of the selections chosen by the Petitioner, a clear majority of the applicants taking the examinations selected the correct option. None of the examinations questions challenged by the Petitioner were incorrectly answered by a majority of the applicants. In some instances as many as 94 percent of the test takers chose the correct answer whereas the Petitioner did not. The Respondent provided sufficient explanation and the record clearly establishes that as to each of the erroneous answers provided by this Petitioner, the correct answer (as scored by the Respondent) was the best or correct answer. The Petitioner cannot be entitled to additional credit when her answers were not correct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner’s challenges to the July and September 2005 certification examinations be denied. S DONE AND ENTERED this 28th day of June, 2006, 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 28th day of June, 2006. COPIES FURNISHED: Michael Crews, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Bruce A. Minnick, Esquire Minnick Law Firm Post Office Box 15588 Tallahassee, Florida 32317-5588 Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489
Findings Of Fact Petitioner, William Everett Warriner, is an applicant for licensure by examination to practice architecture in the State of Florida. The architecture examination in the State of Florida consists of two parts, one of which is a written examination given in December of each year, and the other of which is a Site Planning and Design Test given in June of each year. Petitioner meets all requirements for admittance to the licensure examination. Petitioner took the Site Planning and Design Test portion of the National Council of Architectural Registration Boards (NCARB) in June, 1982. This portion of the examination is a twelve-hour sketch problem involving design and site consideration in which the applicant is graded on his or her design solution to the program requirements furnished, which are identical for each candidate at a given examination, on the basis or certain stated criteria, by trained graders who are registered architects. The examination is administered by the Department of Professional Regulation and is supplied to the State of Florida, as well as to all of the jurisdictions of the United States by NCARB. The examination involves the design of a structure, in this case a small municipal airport terminal building, by an applicant, including requirements for placing the structure on the site, elevations, facades, floor plans, and other aspects. The applicant is supplied with a preexamination booklet which sets forth the architectural program to be accomplished and the various requirements to which the applicant is expected to apply himself in order to receive a passing grade. At the time of the actual examination, the applicant is furnished other information to enable him to more adequately design the facility and demonstrate his command of the architectural requirements. In general, the examination was designed to require the applicant to design a solution to the site plan and the building design problems submitted to him by NCARB. The pertinent portion of the examination allows the examination graders to determine whether an applicant is able to coordinate the various structural design, technical aesthetic, energy, and legal requirements in order to resolve the design and site plan problem. The grading of the Site Planning and Design Test is accomplished by the review of the candidate's product by at least three architects selected by the various architectural registration boards of several states, who are given training by NCARB in an effort to, as much as is possible, standardize their conceptions of the minimal competence required for a passing grade. Each reviewer then assesses the product submitted by candidates/examinees on a "blind grading" basis, that is without knowledge of the identity or geographical origin of the submitter, or of the grade assigned the product by other reviewers/graders. The graders assess the product with a view toward identifying areas of strength or weakness within an overall determination of satisfaction and assign a holistic numerical score ranging from "0" (fail) to "4" (pass). Grades "1" (incomplete) and "2" (poor) are failing grades, and grades "3" (minimally acceptable) and "4" (good) are passing grades. If grades "1" or "2" are awarded, the graders are required to indicate the examinee's weakness, but these indications of weakness must not be arbitrary. All solutions are graded by three examiners, except those solutions to which a "0" has been given by one examiner. Solutions which are not clearly passing or failing are graded by a fourth examiner. In order for an applicant to pass, he must receive passing grades from at least two examiners, who independently grade his solution to the problem. A passing grade, as was stated above, is defined as a holistic grade of "3" or "4" as set forth in Rule 21B-14.04, Florida Administrative Code. Petitioner received a grade of "2", which is a failing grade, from each of the three graders who graded his examination. Though the Petitioner demonstrated an effort to comply with the criteria set forth in the examination and indicated in each area identified as weak on the examination grade report wherein he felt he had achieved the desired goal and standard, Mr. Burke, a registered architect and a member of the Florida Board of Architecture, identified several material areas wherein the Petitioner failed to observe program requirements. In the Site Planning and Site Design area, Petitioner has not shown any details as to how handicapped individuals would get across the median in the parking area in that there is no showing of a ramp from the pavement over the curb and across the median, nor is there any showing of lighting over the curbs for the handicapped. Further, on the issue of service area location, as drawn by Petitioner, this layout would require all service vehicles to pass in front of the airport through passenger traffic to get to the service cut for the service drive, which, in itself, is located too close to the baggage handling area. In addition, the site aesthetics were deficient in completeness and clarity in that landscaping was not shown, nor was appropriate consideration given to water flow and drainage. Additional deficiencies were demonstrated in the areas of building planning and design. The functional relationships of programmed areas were basically accomplished, but major problems exist in the general lobby area. While the test problem calls for the display area to be in the general lobby area, in Petitioner's solution, they are away from the ticket area and somewhat hidden. Those facilities which need exposure do not get it. Pedestrian circulation between the baggage claim area and the lobby exits is obstructed by the location of the car rental booths. In addition, traveling from the deplaning area on the second floor to the baggage claim area on the ground floor is made too difficult. The solution's conformity to barrier-free requirements is weak. There is little or insufficient protection from the elements at the entrances and exits. The solution's requirement for 74-foot trusses in the terminal creates excessive wasted volume in the attic area, and the overall form is awkward. In addition, one page of the problem is not completed, and emergency exits are not shown as required. In the section involving technical aspects of the plan, the first two sub-areas were marked weak primarily because of the incompleteness of the technical plan for the foundation. Further, only a very few technical notes appear on the solution, providing insufficient information, and the use of wood for a public building is dangerous. Petitioner disagrees with his grade and presented evidence to show that his failure was a marginal one. He feels he has rebutted approximately 75 percent of the failing items and passed the written part of the examination (Part B) on the first attempt. He has been involved in residential design for twelve years and has considerable experience. He feels the comment on the handicap ramps is valid, but that is only one part of the problem. There is sufficient other provision made for the handicapped in his solution. The lobby displays would have the least likelihood of being seen if placed in the ticket area as suggested. He opines that the covered walkways over the two major entrances are sufficient, and it would be superfluous to have covers over every door. Repeated rebuttal, such as those items listed, display Petitioner's difference of opinion with the grade assigned his problem, but not that his examination was graded in an arbitrary or capricious way or in a manner different than that utilized in grading the examination of every candidate taking the same examination throughout the United States. Also, his excuse for incompleteness that he only had twelve hours in which to complete the problem is invalid. The same time was allotted all candidates, including those who passed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED: That a final order be entered finding that Petitioner has failed to achieve a passing score on the June 1982 architecture examination and upholding the grade awarded to Petitioner on that examination. RECOMMENDED this 3rd day of January, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 1983. COPIES FURNISHED: John J. Rimes, III, Esquire Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32301 Mr. William Everett Warriner 305 North East Fifth Avenue Gainesville, Florida 32601 Mr. Herbert Coons, Jr. Executive Director Board of Architecture Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Petitioner's challenge to the failing grade he received on the contract administration portion of the October 2000 General Contractor Examination should be sustained.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Petitioner sat for the contract administration portion of the Florida certification examination for general contractors administered in October 2000 (Contract Administration Examination). The Contract Administration Examination consisted of 60 multiple-choice questions of equal value, worth a total of 100 points. To attain a passing score on the Contract Administration Examination, candidates needed to receive a total of 70 points. Of the 378 candidates who took the Contract Administration Examination, 156 received passing scores. Petitioner was not among this group of successful candidates. He received a failing score of 66.67 on the examination. Question 2 of the Contract Administration Examination was a clear and unambiguous multiple-choice question that required the candidate to determine, based upon the information given, on what workday (not calendar day) the pouring of concrete footings for a residential construction project would begin. There was only one correct answer to this question. Approximately 50 percent of the candidates chose this correct response. Petitioner chose another answer that was clearly incorrect because it represented the calendar day (not the workday) on which the pouring would begin. He therefore appropriately received no credit for his answer. Question 9 of the Contract Administration Examination was a clear and unambiguous multiple-choice question that fairly tested the candidate's knowledge of the requirements of Section 489.113(3), Florida Statutes, which provides as follows: A contractor shall subcontract all electrical, mechanical, plumbing, roofing, sheet metal, swimming pool, and air- conditioning work, unless such contractor holds a state certificate or registration in the respective trade category, however: A general, building, or residential contractor, except as otherwise provided in this part, shall be responsible for any construction or alteration of a structural component of a building or structure, and any certified general contractor or certified underground utility and excavation contractor may perform clearing and grubbing, grading, excavation, and other site work for any construction project in the state. Any certified building contractor or certified residential contractor may perform clearing and grubbing, grading, excavation, and other site work for any construction project in this state, limited to the lot on which any specific building is located. A general, building, or residential contractor shall not be required to subcontract the installation, or repair made under warranty, of wood shingles, wood shakes, or asphalt or fiberglass shingle roofing materials on a new building of his or her own construction. A general contractor shall not be required to subcontract structural swimming pool work. A general contractor, on new site development work, site redevelopment work, mobile home parks, and commercial properties, shall not be required to subcontract the construction of the main sanitary sewer collection system, the storm collection system, and the water distribution system, not including the continuation of utility lines from the mains to the buildings. A general contractor shall not be required to subcontract the continuation of utility lines from the mains in mobile home parks, and such continuations are to be considered a part of the main sewer collection and main water distribution systems. A solar contractor shall not be required to subcontract minor, as defined by board rule, electrical, mechanical, plumbing, or roofing work so long as that work is within the scope of the license held by the solar contractor and where such work exclusively pertains to the installation of residential solar energy equipment as defined by rules of the board adopted in conjunction with the Electrical Contracting Licensing Board. No general, building, or residential contractor certified after 1973 shall act as, hold himself or herself out to be, or advertise himself or herself to be a roofing contractor unless he or she is certified or registered as a roofing contractor. There was only one correct answer to this question. Approximately 65 percent of the candidates chose this correct response. Petitioner chose another answer that was clearly incorrect inasmuch as a newly licensed general contractor is not free, pursuant to Section 489.113(3)(b), Florida Statutes, to install or repair wood shake roofs on existing buildings constructed by other contractors. Petitioner therefore appropriately received no credit for his answer. Question 29 of the Contract Administration Examination was a clear and unambiguous multiple-choice question that fairly tested the candidate's ability to calculate, based upon the information given, the cost of delivering 28,000 lineal feet of #5 bars of reinforcing steel. There was only one correct answer to this question . Approximately 67 percent of the candidates chose this correct response. Petitioner chose another answer that was clearly incorrect. He therefore appropriately received no credit for his answer. Question 38 of the Contract Administration Examination was a clear and unambiguous multiple-choice question that fairly tested the candidate's ability to distinguish between unit price contracts and other types of contracts, including lump sum contracts. Approximately 82 percent of the candidates chose this correct response. Petitioner chose another answer that was clearly incorrect. He therefore appropriately received no credit for his answer.
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 on the contract administration portion of the October 2000 certification examination for general contractors. DONE AND ENTERED this 11th day of May, 2001, 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 11th day of May, 2001. COPIES FURNISHED: Michael Richards 3802 Lakewood Road Lake Worth, Florida 33461 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Kathleen O'Dowd, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Hardy L. Roberts III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact Respondent is the state agency charged with the duty of regulating general contractors in the State of Florida. An applicant for certification as a general contractor must pass the examination administered by Respondent as a prerequisite to certification. Section 489.113(1), Florida Statutes. Petitioner sat for the certified general contractor's examination on October 14-15, 1988. Petitioner did not pass Part I of the examination. Petitioner scored the highest score one can score on Part I without passing that part of the examination. While Petitioner received a grade of 69 on Part I of the examination, a grade in excess of 69 is required to pass. Had Petitioner been awarded any credit for his answers to the challenged questions, he would have passed Part I of the examination. Petitioner timely challenged the grading of four examination questions contained in Part I of the examination for which he received no credit, to wit: Question 5, Question 26, Question 32, and Question 39. Petitioner's challenges were as to the format of the question or as to the grading of the question. Petitioner abandoned any challenge he may have had to other questions. Each of the challenged questions is an objective, multiple choice question. The candidate is required to choose the correct response from among four possible answers. Prior to taking the examination, Petitioner was told by Respondent that certain approved reference materials were used in formulating the examination questions and that certain reference materials could be used during the examination. Question 5 provided certain information from which the candidate was to determine the correct answer to an accounting problem. The question contained sufficient information to correctly answer the problem. The evidence does not support Petitioner's contention that this question is unfairly tricky. The accounting formula which was necessary to determine the correct answer to the problem was available to Petitioner in the reference material he was permitted to use during the examination. Respondent gave Petitioner no credit for his answer to Question 5 because Petitioner gave the wrong answer to the question. Question 26, required the candidate to correctly answer a question about a reporting requirement of the Occupational Safety and Health Administration (OSHA). The question contained sufficient information to determine the correct response. The basis of Petitioners challenge to this question is that the information needed to answer the question was not contained in the reference material published by OSHA. The information needed to arrive at the correct response is contained in other reference material Petitioner was permitted to use during the examination. Respondent gave Petitioner no credit for his answer to Question 26 because Petitioner gave the wrong answer to the question. Petitioner contends that two of the four responses to Question 32, which involved statements as to partnerships, are correct and that he should be given credit for his response to the question. Petitioner made unwarranted assumptions in arriving at his answer which resulted in his answer being incorrect. The question contained only one correct response. The question provided sufficient information to enable Petitioner to arrive at the correct response through the use of the reference materials that the candidates were permitted to use. Respondent gave Petitioner no credit for his answer to Question 32 because Petitioner gave the wrong answer to the question. Petitioner contends that two of the four responses to Question 39, which involved statements about workers compensation, are correct and that he should be given credit for his response to the question. Petitioner made unwarranted assumptions in arriving at his answer which resulted in his answer being incorrect. The question contained only one correct response. The question provided sufficient information to enable Petitioner to arrive at the correct response through the use of the reference materials that the candidates were permitted to use. Respondent gave Petitioner no credit for his answer to Question 39 because Petitioner gave the wrong answer to the question. None of the candidates who sat for the examination, including Petitioner, was awarded partial credit for an incorrect response.
Recommendation Based on the foregoing bindings of Fact and Conclusions of Law, it is: RECOMMENDED that Respondent, State of Florida, Department of Professional Regulation, enter a final order which finds that Petitioner abandoned his challenges to all questions except Question 5, Question 26, Question 32, and Question 39 and which denies Petitioner's challenges to Question 5, Question 26, Question 32, and Question 39. It is further recommended that the questions filed as exhibits in this proceeding be sealed. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of January, 1990. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-4934 The following rulings are made on the proposed findings of fact submitted on behalf of Respondent. The proposed findings of fact in paragraph 1 are adopted in material part by paragraph 1 of the Recommended Order. The proposed findings of fact in paragraph 2 are adopted in material part by paragraph 1 of the Recommended Order. The proposed findings of fact in paragraph 3 are adopted in material part by paragraph 2 of the Recommended Order. The proposed findings of fact in paragraph 4 are adopted in material part by paragraph 3 of the Recommended Order. The proposed findings of fact in paragraph 5 are adopted in material part by paragraph 4 of the Recommended Order. The proposed findings of fact in paragraph 6 are adopted in material part by paragraph 5 of the Recommended Order. The proposed findings of fact in paragraph 7 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 8 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 9 are adopted in material part by paragraph 5 of the Recommended Order. The proposed finding of fact in paragraph 10 are adopted in material part by paragraph 6 of the Recommended Order. The proposed findings of fact in paragraph 11 are adopted in material part by paragraph 7 of the Recommended Order. The proposed findings of fact in paragraph 12 are adopted in material part by paragraph 8 of the Recommended Order. The proposed findings of fact in paragraph 13 are adopted in material part by paragraph 9 of the Recommended Order. The proposed findings of fact in paragraph 14 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 15 are adopted in material part by paragraph 10 of the Recommended Order. The proposed findings of fact in paragraph 16 are adopted in material part by paragraphs 6-9 of the Recommended Order. COPIES FURNISHED: Dirk Douglas Summerlot, pro se 16146 75th Avenue North Palm Beach Gardens, Florida 33418 Robert G. Harris, Esquire Qualified Representative Department of Professional 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Kenneth D. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 69 Tallahassee, Florida 32399-0792 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 =================================================================
The Issue Whether Petitioner is entitled to credit for his answers to questions 41 and 48 on the February 2000 Construction, Building Contractor (Contract Administration) examination.
Findings Of Fact Upon consideration of oral and documentary evidence received at the hearing, the following relevant findings of fact are made: The examination for licensure of a general contractor in the State of Florida is administered by the Department of Business and Professional Regulation, Division of Technology, Licensure and Testing. Chapter 455.217, Florida Statutes. A written examination is authorized by Rule 61G4-16.001, Florida Administrative Code. Respondent contracts with Professional Testing, Incorporated, 1200 East Hillcrest Street, Orlando, Florida, which develops tests for the Florida Construction Industry Licensing Board. This practice is approved by Section 455.217, Florida Statutes. Professional Testing, Incorporated, ensures that questions and answers are not ambiguous through a number of methodologies. Petitioner has been an "original" candidate for the construction, building contractor examination twice. The examination has three sections: business finance, project management, and contract administration. A candidate may retake any section three times before the entire examination has to be retaken. One of the questions Petitioner is challenging is the same question he had on the June 1999 examination, that is, the "S mortar" question. This question was repeated on the August 1999 and the February 2000 examination. The copies of the "S mortar" question and answers on the August 1999 and February 2000 examinations which were accepted into evidence were identical. Petitioner maintains that the August 1999 examination question and answers accepted into evidence is not the same as the one he had on his examination. Petitioner agrees that the answer he gave, 20.74, was an incorrect answer and that 46.67 (the "graded correct" answer) was correct. Petitioner maintains that the 20.74 answer he gave on the February 2000 examination was a result of having been advised that 46.67 was an incorrect answer on the August 1999 test. Petitioner examined his original answer sheet form both examinations (August 1999 and February 2000) at the hearing. Petitioner's original answer for the August 1999 examination showed his answer to be "B", an incorrect answer, not the "graded correct" answer "C" (which was 46.67). The second challenged question is question 48 which deals with a "critical activity list" also called a "critical activity interval" or "critical path." Petitioner's answer is 106 days; the "graded correct" answer is 86 days. Question 48 asked the test taker to identify "the latest day work must begin on the roofing activity." One-hundred and six is the number of days the roof must be completed by (not when work must begin). Since this roofing activity takes 21 days it must begin on the 86th day to be complete on the 106th day. The psychometrician expert witness testified that both questions (and answers) were within acceptable statistical ranges as valid. That opinion is accepted.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Bureau of Testing, enter a final order denying Petitioner's challenge to questions 41 and 48. DONE AND ORDERED this 30th day of January, 2001, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 2001. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jermado Emmanuel Turner 6511 John Aldan Way Orlando, Florida 32818 Cathleen O'Dowd, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Pursuant to Section 310.011, Florida Statutes, the Board of Pilot Commissioners (Board) was established within the Department of Professional Regulation (Department). The Board, in conformance with Section 310.061, has the authority to determine the number of pilots needed for a given port. To fill those numbers, the Department examines all applicants for the position of pilot or deputy pilot and, if found qualified, appoints and licenses as a pilot or appoints and certifies as a deputy pilot the number prescribed by the Board. See: Section 310.081, Florida Statutes. On December 8, 1986, the Department held an examination to fill two deputy pilot positions at Port Canaveral. Petitioner and Intervenors, Captain John M. Boltz and Captain Earl R. McMillin were among the candidates examined. A total of twenty-two candidates took the examination. The facets of the examination were as required by Rule 21SS-5.13(1), Florida Administrative Code. That rule requires that the examination include the following subject areas: International Rules of the Road. Inland Rules of the Road and the Pilot Rules. Seamanship, Shiphandling and other Subjects Relating to Piloting. Aids to Navigation. Local or specific knowledge of the port area for which being examined. Chartwork of the port area for which being examined, with detailed information of the port area required to be charted. A general examination concerning matters pertaining to a candidates knowledge of federal and state pilotage, fitness and ability to undertake the duties of a certified deputy pilot in the port for which being examined, and such other related information as may be deemed pertinent to the examination process, to determine whether the applicant is qualified to pilot all classes of vessels liable to enter the port and is familiar with the waters, the channels, the harbor and the port. Rule 21SS-5.13(2), Florida Administrative Code, mandates that: In order to achieve a passing grade on the examination a candidate must score 90 percent on the subject areas in subsections (1)(a) and (b), and a score of 75 percent on the subject areas in subsection (1)(c), (d), (e), (f) and (g). A failure to attain the required percentage in any of the seven subject areas renders the candidate unsuccessful. Of the twenty-two candidates who took the examination, only four candidates attained a passing score on each of the seven subject areas. Of these four, Captain McMillin was first with an overall score of 94.74 percent, Captain Boltz was second with an overall score of 92.76 percent, and Petitioner was third with an overall score of 92.62 percent. The Department, in accordance with standard practice, ranked the candidates by overall score, and appointed the top two candidates, Captain McMillin and Captain Boltz, to the two available positions. Following disclosure of his score, Petitioner reviewed his examination and offered a timely objection to question 117. That question reads: The reaction of a ship known as "squat" results in a change in trim. generally varies in direct proportion to the speed. Only I is a correct statement. Only II is a correct statement. Both I and II are correct statements. Neither I nor II is a correct statement. As originally keyed, the only correct response to question 117 was answer A. However, after reviewing the test results, the Department decided to rekey the acceptable responses to the question and accord credit for answer A and C. Petitioner objects to the Department's decision to accord credit for answer C, which he asserts is a technically incorrect response. Significantly, had the Department not rekeyed the responses to the question, Petitioner, who elected response A, would have achieved a better overall score than Captain Boltz, who elected response C. Question 117 was developed by Captain John C. Hanson, the Department's consultant, from Shiphandling For The Mariner, by MacElrevey; a source recommended to all candidates prior to the examination. Pertinent to this case, MacElrevey teaches: As a ship begins to make way through the water she undergoes a change in mean draft known as sinkage. This change may occur equally forward and aft or may be greater at the bow or the stern, the resulting change in trim being known as "squat." When passing through the water the ship displaces an amount of water equal to her own weight. This water must move outward from and around the hull in all directions. The water so displaced moves primarily along and under the hull and returns astern of the ship to "fill" the space left by the ship as she moves on. Naturally, the faster the ship is moving the greater the velocity of this flow under and along her hull, and the greater the corresponding pressure drop as a result of that increased velocity. Depending upon where the greatest drop in pressure occurs along the length of the hull, this reduced pressure will result in greater sinkage (increase in draft) at the bow or stern, although the draft increases to some degree all along the length of the ship. As the ship enters shallow water the flow of water becomes increasingly restricted due to the reduced clearance both under and on one or both sides of the hull. The degree of restriction or "blockage factor" is dependent upon several variables . . . Consider first the effect of ship's speed since this is the factor over which the mariner has the greatest control. It has been found, based upon observations of both actual ships and models, that squat varies in proportion to the square of the speed. If ship's speed is doubled, squat increased by a factor of four. With today's large ships and minimal underkeel clearances it becomes immediately obvious why speed and resulting squat must be very much on the shiphandler's mind. (Emphasis added) The question developed by Captain Hanson was designed to test the candidate's knowledge of squat and the effect of speed on squat, which is important information for a pilot who must navigate through shallow waters or confined channels. The correct technical response to question 117 as posed, and as intended by Captain Hanson, was answer A. Answer C was an incorrect response because squat does not technically vary in direct proportion to speed but, rather, in proportion to the square of the speed. 1/ Notwithstanding the fact that answer A was the intended and only technically correct response to question 117, the Department's Office of Examination Services decided to also afford credit for answer C. This decision was predicated on its conclusion, after a review of the responses to the question, that the phrase "direct proportion" could logically have been interpreted by the candidates in a non-technical sense to mean: that squat is directly related to speed (i.e., if speed increases/decreases, squat increases/decreases). If so interpreted, answer C would also have been a correct response to question 117. Accordingly, the Department concluded that it would afford credit for answer C, as well as answer A. The proof accords logic and reason to the Department's decision. The twenty-two candidates who took the examination were experts in seamanship and shiphandling. A review of the responses to question 117 by these twenty-two candidates revealed that: three chose answer A, one chose answer B, and 18 chose answer C. Of the four who attained a passing score, two chose answer A and two chose answer C. Notably, 82 percent of the candidates in both the upper and lower half of the class chose answer C. Because of its poor statistical performance, Ms. Lila Quero-Munoz of the Office of Examination Services, an expert in psychometrics, was of the opinion that the question needed close review. In Ms. Quero-Munoz' opinion, which is credited, when 18 of 22 qualified people select a response other than the one that was keyed, there is good reason to suspect that there is something in the phrasing of the question that is subject to misinterpretation. Upon review of question 117, Ms. Quero-Munoz and Martin Persampieri, also of the Office of Examination Services, were of the opinion, which opinion is credited, that the phrase "direct proportion" could have logically been interpreted as meaning that squat is directly related to speed, instead of its technical or mathematical definition. Therefore, the Department's decision to afford credit for answer C had a logical and reasonable basis. /2 The testimony of Captain Hanson, Petitioner, Captain McMillin and Captain Boltz lends support to the conclusion that the Department acted logically and reasonably when it decided to rekey the answers to question 117. Captain Hanson, when he prepared the question, did not intend it to be a trick question. Yet, Petitioner and Captain McMillin, both of whom responded with answer A, thought the question to be tricky and applied the technical or mathematical definition of "direct proportion." Captain Boltz was not familiar with the technical definition of "direct proportion" and ascribed to it the general proposition that squat is directly related to speed. Notably, the term "direct proportion" was not defined anywhere in the sources recommended by the Department to the candidates. The Department, in carrying out the examination process, is charged with the responsibility of ensuring that the examination for deputy pilot adequately and reliably measures a candidate's ability to practice the profession of deputy pilot. Further, it must ensure that the examination questions are a reliable measurement of the general areas of competence specified in Rule 21SS-5.13(1), Florida Administrative Code. These responsibilities were adequately addressed by the Department in this case.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the examination challenge filed by Petitioner be DISMISSED. DONE AND ENTERED this 21st day of October, 1987, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of October, 1987.
The Issue The issue for consideration in this case is whether Petitioner should be granted extra credit for questions numbers 320, 321, 322, and 323, for which he gave allegedly incorrect answers, on the October 1996, Environmental Engineer Examination administered by the Department.
Findings Of Fact At all times pertinent to the issues herein, the Board of Professional Engineers was the state agency responsible for the professional testing and licensing of professional engineers, and the regulation of the engineering profession in Florida. Petitioner is a graduate engineer, specializing in environmental engineering, who took the Environmental Engineer Examination administered by the Bureau on October 25 and 26, 1996. By Examination Grade Report dated February 17, 1997, the Bureau notified Petitioner that he had achieved a score of 67.00 on the examination; that a minimum score of 70.00 is required for passing the examination; and, therefore, that Petitioner had failed the examination. Petitioner thereafter filed an appeal of the examination results, challenging the grading of questions numbers 320, 321, 322, and 323 of the examination in question. Question 320 tests the candidate’s ability to understand the characteristics of pumps both in series and parallel. The engineering principle involved is Bernouli’s Theory. The problem is in two parts, A and B. The first part asks which of two impellers are in the pump, based on a given set of data using Bernouli’s Principle. Petitioner answered Part A correctly. Part B repeats Part A, except that the candidate has to recognize the difference between series and parallel pumps, and Petitioner did not get the question correct. The National Council of Examiners for Engineering and Surveying (NCEES) published a scoring plan for each question on the examination. The maximum award a candidate can receive on this question is “10.” The NCEES’ scoring plan for this question provides a score of “4,” which Petitioner received, when the candidate gets one part of the question correct and one part incorrect. To earn a score of “6” for the question, the candidate must present a correct parallel pump analysis, and in this case, Petitioner doubled head pressure instead of flow. Question 321 also consists of two parts and deals with a sewer which is facing overload based on population projections. A relief sewer is proposed and the candidate must do two things. He must first analyze the flow of the existing sewer, and then determine what the invert of the new sewer line would be at the outer end of that sewer In this instance, Petitioner got the second part of the problem correct but not the first. Petitioner started off correctly, but then incorrectly used a piece of information that was given. The problem must be solved using Manning’s Equation, and then checked for scouring velocity. Petitioner used the minimum velocity in determining what the flow is and, according to Mr. Hutchinson, this is not the way to solve the problem. Hutchinson suggests that in solving the problem, the candidate first finds out how much flow will exist in the years ahead by knowing the population and the flow per capita. Then, using Manning’s Equation, the candidate calculates the flow the existing sewer can take. Subtracting the second from the first, the answer is the flow the new pipe will have to be designed for. In the examination question, all the required information is given except the diameter, which is determined through the use of Manning’s Equation. Once that is done, the candidate must check the new scouring velocity. This is done by calculating the velocity in the new sewer to be sure it is in excess of the number given in the problem statement. Here, Petitioner took the minimum scouring velocity and used that figure to calculate the size of the pipe. As a result, he arrived at the wrong answer of ten inches, when the correct answer was twenty-four inches. Petitioner was awarded a grade of “4” for his answer to problem number 321. According to NCEES’ Scoring plan, a “4” reflects the candidate got only one of the two parts correct. Question 322 deals with a hazardous waste incinerator. The first part of the problem calls for a determination of the amount of air needed to complete combustion if the additional air (excess air) is 100 percent. This means twice the air needed to perfectly combust the material. The candidate must first put down the chemical equation, all the constituents of which are given in the problem. Then, the candidate must balance the equation, and for 100 percent excess air, one multiplies the air input by a factor of two. The second part of the problem asks for the amount of water necessary to quench the gasses. Petitioner did not correctly balance the chemical equation called for in the first part even though he made an effort, and he was given some credit for trying. His answer to the second part was twice what it should have been. Since Petitioner did not do either part of the problem correctly, the award of “4” for his answer was, in Hutchinson’s opinion, generous. Question 323 involves a situation wherein a vehicle which gives off carbon monoxide is used inside a facility. Some of the workers have experienced dizziness. Readings are given for the carbon monoxide levels. The candidate is asked to calculate several factors. The first is what the eight-hour time weighted exposure is. There are certain limits involved. The second is how much ventilation air would be necessary to reduce the concentration to a lower stipulated level in one hour. The size and other specifics of the facility are given. The third part of the question is a non-mathematical essay question wherein the candidate is asked to define the disadvantages of having a combustion engine internal to a facility. The fourth part of the problem asks why mere dilution of the pollution is not the solution to the problem. Petitioner answered the first part of the problem correctly. He overstated the amount of air called for in part two of the problem by a magnitude of two. Petitioner answered the third part of the problem correctly, but in the fourth part, provided only one of the two reasons called for. He was awarded a score of “4” for his answer to this problem. The NCEES’ scoring plan indicates a score of “4” is appropriate when the candidate gets the first part correct; commits a logic error in the second part; and provides only two of three answers called for in the combined third and fourth parts. This is exactly what Petitioner did. In Mr. Hutchinson’s opinion, none of the problems in issue here were beyond the scope of knowledge that should be expected of a candidate for licensure. In addition, the questions as written are not ambiguous or unclear, and they give the candidate enough information to properly answer the questions. The examination is not a test of a candidate’s ability to do mathematical calculations. The examiners look at the ability to calculate as something which a high school student should be able to do. What is being tested is the candidate’s understanding of the engineering particulars and concepts. For example, in problem 320, the examiners are testing the candidate’s understanding of the difference between parallel flow and series flow for a pump. Under the scoring plan, that issue carries as much or more weight that the ability to solve the mathematics. Petitioner did not demonstrate the requisite understanding. The examination is structured so as to administer four questions in the morning session and four questions in the afternoon session. The examination is made up of questions which are submitted by members of that committee of the NCEES which drafts the examinations. The proposed questions are tested by committee members who solve each question in no more than twenty minutes. If the committee members judge the question to be appropriate and acceptable, it goes into a question bank and is subsequently reviewed several times before it is first incorporated in an examination two or more years later. In each question, the subject matter and the language of the question are reviewed to determine that there is no trick information involved; that all information necessary to correctly solve the question is incorporated; and that the scoring plan is valid. If any changes are made to a question during the evaluation time, two additional independent reviews are required. The examination is given nation-wide at the same time. At that time, the NCEES selects fifty to sixty tests at random, which are sent in for scoring. Of those, ten are selected and sent to a monitor to insure uniformity of scoring and appropriateness of the scoring plan. Once the examination is determined to be satisfactory, fifteen expert judges are called in to evaluate the fifty to sixty tests and to review them for demonstrated minimum competence by the candidates whose examinations are under scrutiny. At that point, a minimum numerical score is reached, and the remaining tests are graded. In his cross examination of the Respondent’s expert Mr. Hutchinson, regarding not only each of the examination problems in issue but also the methodology of the development and grading of the examination, Petitioner prefaced his questions by extensive, comprehensive statements of his position as to the matter at issue. Notwithstanding frequent and repeated reminders by the Administrative Law Judge that the matters being expressed were unsworn and not testimony, and therefore could not be considered as evidence, Petitioner persisted. The majority of his comments and arguments made in his Proposed Findings of Fact and Conclusions are based on that material and it is impossible for the undersigned to recommend Petitioner be granted the relief he proposes, based on the evidence admitted at hearing, as his testimony, when received, was not persuasive. Petitioner also submitted at hearing, as his Composite Exhibit 1, a series of documents which, for the most part, include personal information regarding his credentials, and copies of the pleadings, orders, and correspondence which make up the case file. Also included was a letter from Petitioner’s supervisor testifying to his hard work, industry, and professionalism; and a breakdown of the raw scores he achieved on the examination in question. None of this has a significant bearing on the merits of his challenge.
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 in this matter denying Petitioner additional credit for his answers to problems 320, 321, 322, and 323, on the October 1996 Environmental Engineer Examination. DONE AND ENTERED this 17th day of February, 1998, in Tallahassee, Leon County, Florida. _ ARNOLD H. POLLOCK 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 1998. COPIES FURNISHED: Scott D. Walker 14535 Bruce B. Downs Boulevard Number 918 Tampa, Florida 33613 R. Beth Atchison, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angel Gonzalez Executive Director Board of Professional Engineers 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner sat for the licensure examination for architects administered in June of 1994. The examination consisted of various divisions. Division A covered the subject of pre-design. The questions in this division of the examination were machine-graded, multiple choice questions. Petitioner received a failing score of 72 on Division A. Question 6 of Division A asked the examinee to identify the term used to describe the separate management units formed by ridge lines that divide the land and determine regional drainage patterns. These management units are called watersheds. Accordingly, the correct answer to Question 6 of Division A was "D." Petitioner selected "A," "swales," as his answer to the question. Swales, however, while they are used as drainage areas, are not, unlike watersheds, regional in character. Petitioner's answer to Question 6 of Division A therefore was clearly incorrect. Question 8 of Division A asked the examinee to identify which of the four drawings shown on the question sheet depicted a symmetric, hierarchal pattern of land use. The correct answer to the question was "B." Petitioner selected "C" as his answer to the question. "C," however, depicted an axial, rather than a hierarchal, pattern. Petitioner's answer to Question 8 of Division A therefore was clearly incorrect. Question 13 of Division A tested the examinee's knowledge of the impact the increase in the number of young, professional dual-income families has had on residential neighborhoods. The increase in the number of young, professional dual-income families has increased property values in older established neighborhoods, led to the building of large new suburban tracts, reduced the availability of residences that moderate income families can afford and accelerated the restoration of older neighborhoods. Accordingly, the correct answer to Question 13 of Division A was "D." Petitioner selected "B" as his answer to the question, which was clearly incorrect. Question 20 of Division A tested the examinee's knowledge of the possible components of a market study. A market study might include a windshield survey, data obtained from questionnaires and/or an analysis of competing projects. A detailed financial package, however, would not be part of a market study. Accordingly, the correct answer to Question 20 of Division A was "C." Petitioner selected "A" as his answer to the question, which was clearly incorrect. 1/ Question 28 of Division A tested the examinee's knowledge of the requirements of the national building code relating to multistory buildings. The code allows, in a multistory building, two fire exits on one corridor, fan coil units utilized in office space and a fire exit that intersects two corridors. A corridor utilized as a return-air plenum, however, is not permitted under the code. Accordingly, the correct answer to Question 28 of Division A was "C." Petitioner selected "D" as his answer to the question, which was clearly incorrect. Question 53 of Division A asked the examinee to identify the most dominant design feature of the structures depicted on the question sheet. The correct answer to Question 53 of Division A was "C," "facade rhythm." The structures depicted did not display vertical harmony inasmuch as their facades were different. Accordingly, the answer selected by Petitioner, "A," "vertical harmony," was clearly incorrect. Division E of the examination covered the subject of lateral forces. The questions in this division of the examination were machine-graded, multiple choice questions. Petitioner received a failing score of 73 on Division E. Question 14 of Division E tested the examinee's knowledge of the factors which determine the maximum lateral-load and shear capacity of a plywood roof diaphragm. These factors include nail size, nail penetration, plywood thickness and plywood species. Accordingly, the correct answer to Question 14 of Division E was "D," not "C," the answer Petitioner selected. 2/ Division H of the examination covered the subject of materials and methods. The questions in this division of the examination were machine-graded, multiple choice questions. Petitioner received a failing score of 74 on Division H. Question 21 of Division H tested the examinee's knowledge of the requirements of the model building code relating to the dimensions of a Class A interior stairway in a newly constructed multistory building serving an occupant load of 100. The correct answer to the question was "D," "60 inches." Petitioner selected "C," "48 inches," as his answer to the question. Although the Americans with Disabilities Act (ADA) requires that Class A interior stairways in multistory buildings have a minimum clear width of 48 inches between the handrails, question 21 of Division H was based upon the requirements of the model building code, not the requirements of the ADA. Accordingly, Petitioner's answer to the question was clearly incorrect. Questions 121 through 123 of Division H tested the examinee's knowledge of the components of an inverted (IRMA) roof system. There were two correct answers to Question 123, "F-9" ("membrane") and "K-7" ("vapor barrier"). Petitioner selected one of these answers, "F-9," and received credit for answering the question correctly. Each of the foregoing questions (Questions 6, 8, 13, 20, 28 and 53 of Division A, Question 14 of Division E, and Questions 21 and 123 of Division H) was clearly and unambiguously worded, provided sufficient information to select a correct response and required the application of knowledge that a qualified candidate for licensure as a registered architect should possess.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Architecture enter a final order rejecting Petitioner's challenge to the failing scores he received on Divisions A, E and H of the licensure examination for architects administered in June of 1994. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of April, 1995. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1995.
Findings Of Fact Petitioner herein, Kristina V. Tignor, took the Professional Engineers Examination for the State of Florida in Orlando on April 9 and 10, 1987. On July 22, 1987 she was advised by the Department of Professional Regulation's Office of Examination Services that she had failed the examination and was given a cummulative score of principles and practice of 69.1 percent. In her initial request for review and reconsideration, Petitioner objected to the points assigned to her solutions for three problems on the test, Numbers 425, 421, and 124. She contended that as a working engineer, certain criteria and assumptions must be made in approaching any engineering problem and, because the portion of the examination in issue is graded subjectively, her answered should be reconsidered and evaluated in that light. At the hearing, Petitioner contested only the grading of questions number 124 and 421, thereby accepting the grade given for question 425. With regard to Question 124, Ms. Tignor was awarded a score of 5 on her solution to this problem. The National Council of Engineering Examiners, in its Standard Scoring Plan Outline awards a "qualified" evaluation to scores from 10 down to 6 on this question. Scores from 5 to 0 are rated, "unqualified." A score of 5 indicates the applicant has failed to demonstrate adequate knowledge in one aspect of one category. Specifically, a rating of 5 in this question indicates that the examinee displayed an inadequate knowledge of weight/volume and concrete mix design. Her computations were displayed and an incomplete or erroneous solution was arrived at which gave a generally unrealistic result. Dr. Bruce A. Suprenant a civil engineer registered in four states and who teaches engineering at the University of South Florida, reviewed the question, the Petitioner's solution, the solution proposed by the examiners, and the grading scheme for this problem and found a number of illogical items in Petitioner's solution which, to him, were difficult to understand. He found several items which had no basis and which were possibly assumed. As to Part a of Petitioner's answer, a mixture of answers, (correction for moisture), which should have been in Part b, was located in Part a. As to density, the value used by Petitioner does not appear to be reasonable based on information provided in the problem. In Dr. Suprenant's opinion, there are at least three approaches to this problem. One is the water/cement ration method. Another is the weight method. The third is the absolute volume method. The water/cement ratio method would be difficult to apply here and neither Petitioner nor the examiners used it. As to the weight method, much the same problem exists. There is insufficient information provided to satisfactorily apply this method and while the examiners did not use it, Petitioner did. Petitioner's answer has a correction for moisture in the absolute volume method on the first page of the solution form at the top. The calculations by Petitioner are assumed information not known, (volume). In addition the correction for moisture in the second part of page one is included on the top of page two. It is not a part of the solution for subpart a and should not be there. Petitioner used 150 pounds per cubic foot for concrete density in her solution and this choice is not explained. Most publications utilized by engineers suggest using tables which were not provided to the examinees and it is, therefore, illogical to assume concrete density with no history for that assumption. Petitioner's answer of 5.41 cubic yards is only slightly off the suggested answer of 5.44 cubic yards but the fact that the answers are close does not justify her assumption. It might well not come so close in other cases. As to Part b of the question calling for the water/cement ratio, the corrections for moisture of fine and coarse aggregate on page one are acceptable. On the second page, a problem arises in when the correction for moisture should decrease. Petitioner got the right factor but applied it in the wrong manner. As a result, her answer to Part b of the examination question is wrong. Her answer was 4.40 as opposed to the correct answer of 4.34. This small degree of error can be attributed to the smallness of the amount in question. Were the amounts greater, the error would be greater. As to part c of the question, which deals with the cement factor in a yard of concrete, Petitioner's approach of dividing sacks of cubic yards is correct, but the cubic yard content was determined from Part a of the question, and Dr. Suprenant does not agree with how she got her solution. He therefore questions her carryover. The standard weight of a sack of concrete is 94 pounds. The individual grading Petitioner's response to Question 124 indicates she displayed inadequate knowledge and reached a solution which gives "unrealistic results." Dr. Suprenant agrees, contending that Petitioner's performance in regard to this question indicates inadequate knowledge of weight/volume relationship. She made inadequate assumptions in formulating her answer to the question. The fact that in this problem she arrived at a solution close to the correct one does not indicate that in other problems, she would achieve the same closeness using the same procedure. In his opinion, Petitioner showed some confusion regarding the basis for solving this problem and Dr. Suprenant believes that a grade of 5 as awarded by the examiner is correct. Petitioner questioned the fact that the various technical weights and volumes, such as 94 pounds in a sack of concrete, 8.33 pounds for a gallon of water, and 27 cubic feet in a cubic yard do not appear in the problem statement. This, in the opinion of Dr. Suprenant, compounds the gravity of Petitioner's deficiency. They are routine "givens" generally accepted in the practice by engineers and it would be difficult to assume that anyone familiar with the practice of engineering would use different "givens" for these specifics. Petitioner's employer, Mr. Bishop, himself a registered civil engineer in Florida since 1958, also reviewed Petitioner's solution to Question 124. He admits that on the first page of the answer sheet, Petitioner began solving the problem in an inappropriate way. Her calculations for moisture content were correct, however. On the second paged the correction factor was put in with the wrong sign and the aggregate was given the wrong factor. As a result, the answer was off. In his practice, however, the error committed by Petitioner in these regards is both minimal and acceptable. Her choice of 150 pounds per square foot is reasonable and produced a close result, and while it is true that if the project were of a greater scale, the error might be significant for a test question, as here, the error, in his opinion, is insignificant. He feels much the same way regarding the error in Part c of the examination question. While the factors used by petitioner were wrong, the process used was correct and the answer was not unreasonably incorrect for a test solution. In an examination situation, the calculations are not being done on a continuous basis, and he feels the grade of 5 awarded is unduly harsh since the error was numerical rather than operational. In his opinion, a more reasonable grade would have been a 6 or 7. Petitioner began her solution to this problem by using one similar to that used by the examiners in their publications. Shortly, however, she realized she would not get the answer she needed by doing so and abandoned her solution. She forgot to cross it out, however, and now recognizes she should have done so. She thereafter began to accomplish a series of new calculations on the first page of the answer sheet but did not necessarily utilize that data for her solution to Part a. She admits she made an error in calculation for moisture on the second page. In that calculation, she used the study manual and admits now that she should have cited the figure she used. As to Parts b and c, her use of some figures from Part a may have thrown her answer off somewhat. However, the 5 awarded her, indicating her solution was unrealistic, is, in her opinion unfair as she considers her answer to be quite realistic. The problem did not state what solution method to use and she feels her use of givens from recognized manuals such as the 150 pounds, should not be held against her. 94 pounds for a sack of cement used by the grader was also not given and her use of other accepted numbers should not, she contends, be held against her. Petitioner believes a grade of 7 would more accurately describe the quality of her answer. A 7 means that the examinee obtained an appropriate solution but chose a less than optimum approach. The solution is, therefore, awkward but nonetheless resonable. Ms. Tignor believes that while her approach may have been awkward, she achieved reasonable solution demonstrated by the fact that it was only slightly off the correct figure. Therefore, she believes a grade of 6 would be appropriate. This examination was an open book examination and Petitioner had her manuals with her. She could have easily determined the appropriate weights an "givens" from these manuals without choosing those she used. Ms. Tignor's conclusions that her results are realistic are contradicted by the Board's expert. Realistic results are, in engineering practice, not only the figure reached but also the method used in arriving at that figure. Here, though Petitioner's results are close, the approach utilized in arriving at her solution is unrealistic. Her approach showed an inadequate knowledge of weight/volume and calculations. Consequently it is found the grade is valid and was not arbitrarily assigned. According to the Standard Scoring Plan Outline, each score from 10 through 6 has an indispensable criteria that all categories must be satisfied. Since Ms. Tignor's examination response did not satisfy all categories, the best she can be given is a 5 and that award appears to be justified by the evidence presented. Question 421 was a four part drainage problem. Petitioner used as a part of her solution calculations based on a 100 year storm and this was determined by the examiners to be inappropriate. Ms. Tignor was awarded a grade of 8 and contends she was not given appropriate credit. She relates that even Mr. Smith, the Executive Director of the Board of Professional Engineers, advised her she may not have been given full credit for her answer. She was given full credit for Part a but lost two points for part c which included a calculation error to which Petitioner admits. She contends however, it was so minor, only one point should have been deducted. Were Petitioner to receive an additional one point on this question, she would pass the examination which she failed by only one point. However, this issue must be resolved on the basis of lawfully admitted evidence and Mr. Smith's comment, being unsupported hearsay evidence, cannot itself sustain the rasing of the grade. The Standard Scoring Plan Outline for this question reflects that to receive an 8, the examinee must demonstrate that all categories are satisfied, that errors are attributable to misread tables or calculating devices, and that errors would be corrected by routine checking. The results must be reasonable if not correct. For a 9, the examinee must demonstrate that all categories are satisfied; that a correct solution is arrived at but the examinee has been excessively conservative in the choice of working values; and that examinee's presentation is lacking in completeness or equations diagrams or orderly steps in solution, etc. Subqualifications for a 9 indicates that the answer is correct but that the organization of the solution is not logical. One error in calculation in any of the Parts from a to d, which does not affect the other parts of the solution, is acceptable. Mr. Kenneth Weldon, the Assistant State Drainage Engineer for the Department of Transportation, an expert in the area of drainage to which this problem relates, reviewed the question and the Petitioner's answer thereto and would award a grade of 8 to her answer. He found various numerical mathematical errors which led to the wrong solution. In addition, Petitioner made various assumptions that, though supposedly supported, were, he felt, in error through her misinterpretation. In general, none of the actual solutions she arrived at were correct. Specifically, that portion of the problem to determine the cross sectional area of the waterway for establishing normal depth flow was done incorrectly. Because the Petitioner used incorrect equations throughout the problem, the depth flow computed is high. Petitioner did no analysis to determine whether or not any of the several situations relating to flow control were pertinent. Mr. Weldon initially felt Petitioner's answer to the question merited a grade of 6. This means that the examinee knew all the proper steps but failed to interpret some of the criteria properly. He could not award her a grade of 9 which would indicate all categories were satisfied and the solution was correct, if conservative. Petitioner's solutions were incorrect. He subsequently changed his award to an 8, however, on the basis that the Petitioner's errors were attributable to a misread table or calculating device and would be corrected by routine checking. The result was reasonable, though not correct. Mr. Weldon did not like this question even though he believed it appropriate for a one-hour exam. As written, it involves establishing and making judgements beyond what someone minimally competent would be expected to do. It requires materials that are beyond what are normally available to someone taking the exam. However, Petitioner failed to make proper provision to protect herself in a case where the question is inappropriate or incomplete. If she felt something was wrong with the question, she should have clearly stated the assumption she was making to solve the problem. This was her responsibility and she failed to do so. In Mr. Weldon's opinion, Petitioner's answer might merit a grade slightly higher but not significantly higher. His reasoning is that Petitioner misinterpreted the criteria she stated for writing the problem. Her comment that the Department of Transportation uses 100 year storm criteria was incorrect even though that statement is made in outdated Department of Transportation publications. The basis for her answer is not well established or correct, or based on engineering calculations or judgement, and at best he could award no more than an 8.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered affirming the score awarded to Petitioner on questions 124 and 421, respectively, of the Civil Engineering Examination administered to her in April, 1987. RECOMMENDED this 10th day of June, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5110 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. For the Petitioner None For the Respondent Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated except for the characterization of several assumptions as guesses. No evidence exists to support such a characterization even though they are incorrect. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. COPIES FURNISHED: Kristina V. Tignor, pro se 2160 North Oval Drive Sarasota, Florida 34239 H. Reynolds Sampson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Allen R. Smith, Jr. Executive Director DPR, Board of Professional Engineers 130 North Monroe Street Tallahassee, Florida 32399-0750
