The Issue Whether the Petitioner is entitled to be licensed as a Professional Surveyor and Mapper, under Subsections 472.013, 472.015, or 472.041, Florida Statutes (Supp. 1994).
Findings Of Fact Petitioner has provided to the Board of Professional Surveyors and Mappers numerous letters and other documents, and a check for the sum of $100 dollars as an application fee for temporary registration as a professional surveyor and mapper. Petitioner has attempted to apply for licensure, under the revised Chapter 472, Florida Statutes , individually and has sought the issuance of a Certificate of Authorization for his business concern: "Mt. Dora Mapping." Petitioner failed to complete an application for licensure on a form provided by the Respondent. Petitioner has failed to provide the correct information necessary for an application to be evaluated under any of the subsections appearing in Chapter 472, Florida Statutes. Petitioner chose not to testify at the formal hearing or otherwise provide any new evidence to be considered by this tribunal, other than documents previously submitted to the Board.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner's application for licensure as a professional surveyor and mapper be DENIED, without prejudice to reapply. DONE AND ENTERED this 1st day of April, 1997, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 1997. COPIES FURNISHED: Robert B. Curtis 940 Gorham Street Mount Dora, Florida 32757 Lealand L. McCharen, Esquire Assistant Attorney General Office of the Attorney General The Capitol, Plaza 01 Tallahassee, Florida 32399-1050 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angel Gonzalez Executive Director Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Pertinent to this case, respondent, Ugene Adkins (Adkins), has been employed by petitioner, School Board of Dade County, Florida (Board), since September 1985, as an auto mechanics instructor, and assigned to Robert Morgan Vocational Technical Institute. Commencing with the 1985-86 school year, Adkins received an annual contract from the Board, pursuant to Section 231.36(1)(a), Florida Statutes, for five consecutive years, based upon one-year temporary nondegreed vocational certificates issued by the Department of Education. His fifth temporary certificate expired on June 30, 1990, and he was not thereafter eligible for continued certification and employment, under the law as it had existed from the inception of his employment, absent successful completion of all portions of the Florida Teacher Certification Examination (FTCE). 1/ See Section 231.17(2)(g), Florida Statutes (1989). Adkins was well aware of the foregoing requirement, and took the FTCE on several occasions during the term of his employment; however, he never successfully passed the writing portion of the examination. Unbeknownst to Adkins or the Board's certification office, Section 231.1725, Florida Statutes (1990), became law on July 3, 1990, retroactive to June 29, 1990. That law effectively exempted nondegreed teachers of vocational programs from the certification requirements of Section 231.17, Florida Statutes, and provided that the school boards would establish the qualifications for such teachers. In establishing such qualifications, the new law did not mandate taking or successfully completing the FTCE, and the Board's rule, 6Gx13- 4-1.007, passed the afternoon of July 25, 1990, which established the qualifications for such teachers, likewise did not require taking or successfully completing the FTCE. By memorandum, dated July 12, 1990, the Board's certification office, unaware of any changes in existent law, notified Adkins that he had not yet provided proof of his eligibility for continued employment during the 1990-91 school year, and to do so would require, among other things, evidence that he had met the test requirements for certification by the Department of Education that applied to his position. The memorandum concluded: IT IS YOUR RESPONSIBILITY TO ENSURE THAT THE REQUIRED INFORMATION IS RECEIVED BY THE DADE COUNTY CERTIFICATION OFFICE ON OR BEFORE JULY 27, 1990, FOR YOU TO BE CONSIDERED FOR CONTINUED EMPLOYMENT FOR THE 1990-91 SCHOOL YEAR. On the morning of July 25, 1990, Adkins, likewise unaware of any changes in existent law, presented to the Board's certification clerk an FTCE report, which he had altered to reflect that he had passed the writing portion of such examination, for the purpose of gaining continued employment with the Board. As a consequence of such misrepresentation, the clerk issued Adkins a clearance of employment form for the 1990-91 school year, based on her assumption that Adkins had passed all portions of the FTCE, and was therefore eligible for certification by the Department of Education. At hearing, the Board contended that, notwithstanding the enactment of Section 231.1725, Florida Statutes, and the existence of its Rule 6Gx13-4-1.007, Adkins' failure to successfully complete all parts of the FTCE, and therefore qualify for certification by the Department of Education under prior law, precluded his reemployment for the 1990-91 school year. To support this position, the Board points to Section 231.17(7), Florida Statutes (1990), which provides: PRIOR APPLICATION. -- Those persons who applied for initial regular or temporary certification under the law preceding July 1, 1990, shall be governed by the law and rules in effect at the time of application for issuance of the initial certificate. Based on such provision, the Board concludes that, notwithstanding the absence of any present need to satisfy FTCE requirements to qualify for employment as a nondegreed teacher of vocational education, Adkins' failure to pass all portions of the FTCE, and therefore qualify for certification by the Department of Education under prior law, precluded his reemployment. Such conclusion is, however, contrary to the express language of Section 231.1725, Florida Statutes, which expressly reposes the authority and obligation to establish the qualifications for such teachers in the school boards, notwithstanding the provisions of Section 231.17 or any other provision of law to the contrary. Notwithstanding the Board's erroneous interpretation of existent law, the proof demonstrates that it firmly held such conviction, and that had it known Adkins had not passed the writing portion of the FTCE, and was therefore not eligible for certification by the Department of Education under prior law, it would not have reemployed him for the 1990-91 school year. Adkins' falsification of the FTCE report to gain reemployment is common knowledge among the faculty and administration at Robert Morgan Vocational Technical Institute, and has rendered him untrustworthy in the opinion of the Board. Under such circumstances, Adkins, through his dishonesty, has seriously impaired his effectiveness in the school system.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered which sustains Adkins' suspension without pay, and which dismisses him from employment with the Board. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of June 1991. WILLIAM J. KENDRICK 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 21st day of June 1991.
The Issue The issue for resolution in this proceeding is whether Petitioner is entitled to additional credit for his response to question 124 in the Principles and Practice of Engineering portion of the engineering licensure examination administered on October 30, 1998, by the National Council of Examinees for Engineers and Surveyors (NCEES).
Findings Of Fact Petitioner is a candidate for licensure as a professional engineer. On October 30, 1998, Petitioner sat for the Principles and Practice of Engineering portion of the examination in civil engineering. This is a national examination developed, controlled, and administered by the NCEES. Respondent is a Florida non-profit corporation created by Section 471.038, Florida Statutes, to provide administrative and other services to the Florida Board of Professional Engineers (Board). Petitioner was notified in January 1999, that his raw- score on the examination was 45, which converted to a full score of 67, was below the required passing score of 70. He contested the score and asked for a rescore of his responses to examination questions 123 and 124. NCEES reviewed the responses and awarded two additional points for question 123; it awarded no additional points for question 124. The rescore resulted in a raw-score of 47 and a full score of 69, still short of a passing grade. Petitioner then requested a formal administrative hearing and, as stated above, confined his challenge to his score on question 124. Question 124 involved computations for a detour roadway during a bridge replacement project. The question had four parts, thus requiring four computations (a-d). Segments of the detour were expressed in metric lengths (meters) in the question. A beginning station was described as 5 + 000.000. The question required that all computations be carried out to the appropriate significant digits. As described by the scoring plan for question 124, a perfect score was 10 points for an "exceptionally competent" response. The next highest score was 8 points for "more than minimum but less than exceptional competence," described as: Failure to provide answers to the required accuracy and a correct solution to requirements (a)-(d) OR an incorrect solution to one of the requests (a)-(d) with all answers within the required accuracy. Failure to provide the answers to the required accuracy will result in a deduction of two points at any level of scoring. (Respondent's Exhibit no. 8) The NCEES scorers awarded Petitioner a "6" for question 124, both initially and upon his requested review. Six points indicated "minimum competence," described as: Demonstrated a competent knowledge of reverse curves with a correct solution to at least two of the requirements meeting the required accuracy or a correct solution to at least three of the four possible requirements but answer(s) fail to meet the required accuracy. (Respondent's Exhibit no. 8) A solution is the methodology or process employed to reach a numerical result or answer in the examination problem, according to the competent credible testimony of Petitioner's experts. Those experts would have scored Petitioner's responses to question 124 as an "8" or "9". On rescoring, the NCEES score's comments in assigning a score of "6" were: SCORER'S COMMENTS: Requirement (a)-Failed to meet accuracy requirements of +/-0.015m. Requirement(b)-Decimal error was made. The station was in km and the curve length was in meters. Requirement(c)-Same error as in Requirement (b). No points were deducted for this error. Requirement (d)-Solution is correct. Minimum competence was shown by this solution. The grading process for the portions of the examination of which question 124 was a part was subjective within the guidelines provided by NCEES. Different scorers could award different points for the same answer. Petitioner's experts and Respondent's expert, all competent, credible witnesses, differed as to the score they would award. Petitioner's response to (a) of question 124 was not accurate within +/- 0.015m. That error alone would have resulted in a 2-point penalty. However, he also mis-read the initial stationing provided in the problem statement, resulting in inaccurate answers for (b) and (c). A correct solution generally includes the appropriate use of available data. In this case Petitioner's error in reading the correct station position was a technical error only and was caused by a misleading expression of the position in the question itself. His solutions to (a)-(d) were otherwise correct. In Florida, the only engineers who use the metric system are consultants for the Florida Department of Transportation (FDOT) and even that agency is phasing out the use of metrics. The use of metric measurements is not the standard of practice for Florida Professional Engineers. Out of the 30 projects that Respondent's expert has done since he was licensed, only one involved the use of the metric units. J. Keith Dantin, P.E., one of Petitioner's experts, has never in his 14 years of experience worked on a roadway or surveying problem in metric units. The Candidate Information Booklets provided by the Respondent to the examinees are conflicting and confusing. The February 1998 version states: "Examinees should be prepared to solve bridge problems using either metric or English units of measure. All other problems are in English units." (Petitioner's Exhibit No. 1). The October 1998 version states under the category Structural Design Standards: "All problems are in English units" (Respondent's Exhibit No. 3, boldface in original). When FDOT uses metric units it still expresses those units in English terminology. Thus, where question 124 positioned the beginning station at 5 + 000.000, the English translation would have been 50 + 00. It is evident that Petitioner read the station to be 5 + 00, missing one of the O's; if he had used the 5 + 000, or if the question had expressed the position at 50 + 00 (the English terminology used by the FDOT), all of Petitioner's answers would have been correct and his solutions would not have included the merely mechanical error of utilizing the wrong beginning station position. While he felt that he, personally, would understand the problem, Respondent's expert agreed there might be a bit of confusion. Respondent's expert was candid and credible but his professional experience was substantially less than Petitioner's experts, who also were candid and, on balance, more competent. Petitioner should have been scored an 8 on question 124. His solutions were basically correct and his answers were off merely due to the confusing expression of the beginning station. In real practice his error would have been caught before it reached the field and the error in no way betrayed a lack of fitness to practice as a professional engineer.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioner's challenge to his score on question 124 be sustained and that his score be upgraded by 2 points, from a "6" to "8". DONE AND ENTERED this 3rd day of November, 1999, in Tallahassee, Leon County, Florida. MARY 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 3rd day of November, 1999. COPIES FURNISHED: William H. Hollimon, Esquire Ausley & McMullen, P.A. 227 South Calhoun street Tallahassee, Florida 32302 Jeff G. Peters, Esquire Cedar Woods Office Center 1266 Paul Russell Road Tallahassee, Florida 32301 Natalie A. Lowe, Esquire Vice President for Legal Affairs Florida Board of Professional Engineers 1208 Hays Street Tallahassee, Florida 32301 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether respondent's rules of conduct contained in Department of Law Enforcement Directive #200.08 constitute an invalid exercise of delegated legislative authority on the ground that they were not promulgated in accordance with Chapter 120, Florida Statutes (1979)
Findings Of Fact Petitioner Maggie L. Allen was a Career Service employee (with permanent status) of the Department of Law Enforcement until she was terminated from her position or about June 15, 1981. She has appealed her termination to the Florida Career Service Commission. (Prehearing Stipulation, p. 2; Respondent's Admissions.) The reason given for her termination was, in part, her alleged violation of Department Directive #200.08(5), Rules of Conduct ("Directive") . More specifically, the Department charged her with violating specific rules of conduct contained in the Directive: Rule 10, entitled, "Insubordination"; Rule 22, entitled, "Departmental Reports"; Rule 23, entitled, "Performance of Lawful Duty"; and Rule 34, entitled, "Truthfulness." (Prehearing Stipulation, p. 2; Respondent's Admissions; Exhibit No. 3.) The Directive, effective November 27, 1978, is an official statement of Department policy and is generally applicable to all employees of the Department. Its stated purpose is "to provide each Departmental employee with clear examples of acts which would violate the above personnel rules or statutes." (Emphasis supplied.) (Exhibit No. 1.) Essentially, the Directive defines acceptable conduct for Department employees by specifically enumerating 35 standards of conduct. By its terms, breach of one or more of those standards constitutes employee misconduct and may result in disciplinary action against an employee ranging from oral reprimand to discharge. However, these standards are not intended to be an exclusive, or exhaustive listing of impermissible conduct. (Respondent's Admissions; Exhibit No. 1.) The Directive is part of the Department's Duty Manual, a volume containing directives on personnel, administrative, training, and fiscal matters as well as the operations of the Department's divisions. The stated purpose of the Duty Manual is to "inform and guide . . . [Department] officers and employees in the performance of their official duties." (Exhibit No. 2.) The Duty Manual recites that it is "promulgated" pursuant to Chapter 120, Florida Statutes, that copies are disseminated to all employees and that employees must obey, comply with, and follow the Manual's directives. The Manual has been incorporated, by reference, in Department Rule 11-1.12, Florida Administrative Code. All formalities concerning publication of Rule 11-1.12 were complied with prior to its publication in the Florida Administrative Code. (Prehearing Stipulation; Exhibit No. 2.) Department Rule 11-1.12, incorporating--by reference--the Duty Manual, was adopted on March 20, 1979, for the purpose of validating those portions (unspecified) of the Manual which constituted "rules" under the APA. At the time, the Department anticipated that adopting the Manual, by rule, would "lead to greater efficiency." (Exhibit No. 2.)
The Issue The issue presented is whether Petitioner should be awarded credit for his answers to eleven (11) questions on the September, 1989, Florida Behavior Analysis Certification Examination.
Findings Of Fact Petitioner sat for the Florida Behavior Analysis Certification Examination administered on September 19, 1989. He failed to achieve a passing score on that examination. At the final hearing, Petitioner challenged the score he achieved on that examination by raising a general challenge to the vagueness of the examination and by challenging the score given for his answers to questions numbered 11, 12, 16, 27, 42, and 53 on Part II of the examination. Part I, Item 12, is correctly scored as "A" instead of Petitioner's "C" because the question asks about a topographical definition, i.e., the form of the behavior. "A" describes the form of the behavior, while "C" partly refers to form but also includes extraneous information. Therefore, "C" is an incorrect alternative since it is more than a topographical definition. Part I, Item 45, is correctly scored as "A", the most reasonable inference from the two levels of responding. Petitioner's choice of "B" is incorrect because the baseline level of responding has not been established. Part I, Item 72, is correctly scored as "B" instead of Petitioner's "A". The question asked for the least intrusive prompt, and the gestural prompt in "B" is less intrusive than "A", a demonstration prompt. Part I, Item 83, is correctly scored as "C". "C" specifies a loss of candy every time the client hurls the object, which is not only accepted practice in the field but also agrees with the literature in the field that punishment procedures should follow a behavior each time the behavior occurs. Petitioner'S choice of "A" is not acceptable because the problem behavior could escalate and there is currently only a slight decrease in the client's behavior. Part I, Item 85, is correctly scored as "A" rather than Petitioner'S answer of "B". The literature in the field reveals that when a behavior receives intermittent reinforcement, the behavior is more resistant to extinction. Although "B" is sometimes correct, it is sometimes incorrect and, therefore, is a less desirable alternative. Part II, Item 11, is scored correctly as "A" rather than "C" as Petitioner chose because the question asked for a behavioral goal. "A" is a good example of a goal, which is a general statement of the behavior change intended; however, "C" is a good example of a behavioral objective rather than a goal because that alternative specifies particular details. Part II, Item 12, is correctly scored as "C" rather than "B" as Petitioner chose. The question asks for the most appropriate and concise statement of a behavioral objective. "C" has all the information required, but "B" does not state the performance criteria that would be required for the trainer to know when work has been completed, when the objective has been met. Part II, Item 16, is scored correctly as "B" rather than "A" because "B" adequately describes the nature of the environment in which training will occur, while "A" is vague and nonspecific. Part II, Item 27, is correctly scored as "B" rather than "A". "B" specifies the most appropriate example of training for program procedures and is a direct technique of demonstration rather than "A", an indirect training procedure of posting the procedure and announcing there will be a quiz on it. Part II, Item 42, is scored correctly as "B" rather than "A". Answer "B" specifies the particular behaviors that staff should be engaging in so that their monitors or supervisors can observe and mark on a checklist if those behaviors did or did not occur. On the other hand, answer "A" does not specify the particular staff behaviors to be observed, and it uses a rating system which has inherent problems because the meaning of each rating description is subjective. Part II, Item 53, is correctly scored as a wrong answer because Petitioner omitted one of the key parts of the correct answer to the question. The omitted information is a reference to the process which is critical to classical conditioning, i.e., the pairing of the sound of the bell with the monitor's movement toward the shelf. Partial credit is not given for a partially-correct answer.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered rejecting Petitioner's challenges to the 20 1989, Florida Behavior Analysis Certification Examination and finding that Petitioner failed to achieve a passing grade on that Examination. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 20 day of September, 1990. 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 20 day of September 1990. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-2406 Respondent's proposed findings of fact numbered 1-13 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 14 has been rejected as being irrelevant to the issues under consideration in this cause. Respondent's proposed finding of fact numbered 15 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law or argument of counsel. COPIES FURNISHED: John W. Hedrick, Esquire Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building 1, Suite 407 Tallahassee, Florida 32399-0700 Dwight O'Quinn Stirling Road Apartments 4100 Northwest 77th Avenue Davie, Florida 33024
Findings Of Fact The Department excepts to the Hearing Officer's finding of fact #6 on the basis that it is a conclusion of law and should have been addressed accordingly and also that the Hearing Officer has misinterpreted the Department's Rules promulgated to implement the Supplemental Compensation Program. The Hearing Officer begins her analysis of the Petitioner's job description with the faulty premise that because she is on the waiting list for the hazardous materials team, this some how qualifies her major study concentration area of Environmental Studies as fire-related. The Department is correct when it states in its exceptions that the proper standard is whether the Petitioner's major study concentration area is fire-related, not whether the 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 #7 is accepted. The Department excepts to the Hearing Officer's finding of fact #7 on the basis that it is a conclusion of law and should have been addressed accordingly. For the reasons set forth in paragraph 1 above, the Department's exception to finding of fact #7 is accepted. RULING ON EXCEPTIONS TO CONCLUSIONS OF LAW The Department excepts to the Hearing Officer's conclusion of law #11 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 #11 is rejected. The Department excepts to the Hearing Officer's conclusion of law #12, again the reason being that the Hearing Officer uses an erroneous interpretation of the applicable Rules. The Hearing Officer has incorrectly equated courses with major study concentration area. The Hearing Officer speculates that when, one day, the Petitioner might be on the hazardous materials team, she could make use of her major study concentration area. Not only is this conclusion of law unsupported, it incorrectly finds that because some courses may be fire-related, the entire major study concentration area become fire-related. This is an incorrect interpretation of the applicable Rules. See In the Matter of Jorge Du Quesne; Case No. 91-L-367AKL (Final Order entered November 22, 1991). Accordingly, the Department's exception to conclusion of law #12 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 EXCEPTION 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 in 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 #6 and 7. The Conclusions of Law of the Hearing Officer are adopted as the Department's Conclusions of Law with the exception of Conclusion of Law #12. That the Hearing Officer's recommendation that Ms. Richter's request for entry into the Firefighter's Supplemental Compensation Program be accepted is rejected and the appropriate disposition of this case is that Ms. Richter's request is denied. ACCORDINGLY, the request for entry into the Firefighter's Supplemental Compensation Program submitted by SHERRY P. RICHTER 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 SHERRY P. RICHTER 1980 Northwest 32 Street Oakland Park, Florida 33309 DANIEL T. GROSS, ESQUIRE Division of Legal Services 612 Larson Building Tallahassee, Florida 32399-0300
Recommendation Based on 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 31st day of March, 1993, in Tallahassee, 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 31st day of March, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-6298 Respondent's proposed findings of fact numbered 1 and 8 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 2-7, and 11 have been rejected as being subordinate to the issue being determined herein. Respondent's proposed finding of fact numbered 10 has been rejected as not being supported by the weight of the evidence. Respondent's proposed finding of fact numbered 9 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law. COPIES FURNISHED: Ms. Sherry P. Richter 1980 Northwest 32 Street Oakland Park, FL 33309 Daniel T. Gross, Esq. Department of Insurance and Treasurer 412 Larson Building Tallahassee, FL 32399-0300 Mr. Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, FL 32399-0300 Bill O'Neil, Esq. General Counsel Department of Insurance and Treasurer The Capitol, PL-11 Tallahassee, FL 32399-0300
The Issue Whether or not Ossie L. Gardner, the Respondent, on or about August 2, 1977, in Duval County, Florida, did expose his sexual organs by masturbation inside a pornographic booth in the presence of a plain clothes city vice detective at a Jacksonville movie theater, and further, whether or not Ossie L. Gardner plead guilty to the lesser charge of "indecent exposure" and was fined 550.00 plus court costs, all in violation of Sections 231.09 and 231.28, Florida Statutes, and Sections 6A-4.37, 60-1 and 60-5, Florida Administrative Code, in that it is conduct which is inconsistent with good morals and the public conscience, not a proper example to students, and conduct which is sufficiently notorious to bring Ossie L. Gardner and the education profession into public disgrace and disrespect. Whether or not Ossie L. Gardner, the Respondent, on or about June 29, 1967, in Leon County, Florida, did solicit for a lewd and lascivious act by an offer to commit and engage in lewdness, to wit, fellatio with an employee of the Tallahassee Police Department, in violation of Sections 231.09 and 231.28, Florida Statutes, and Sections 6A-4.37, 6B-1 and 6B-5, Florida Administrative Code, in that it is conduct which is inconsistent with good morals and the public conscience, not a proper example for students, and conduct which is sufficiently notorious to bring Ossie L. Gardner and the education profession into public disgrace and disrespect.
Findings Of Fact This cause comes on for consideration based upon the Petition for Revocation of Teacher's Certificate filed by the Petitioner, Professional Practices Council, against Ossie L. Gardner, the Respondent. At the commencement of the hearing, the parties entered into several stipulations. The first of those stipulations was that the statements in the Petition for Revocation of Teacher's, Certificate found under the title "Jurisdictional Matters" are agreed to and established as facts in this cause; therefore, with the recitation of those facts in the following quotation, those facts under the title "Jurisdictional Matters" are hereby established. "JURISDICTIONAL MATTERS" "OSSIE L. GARDNER is the holder of Post-Graduate, Rank II Florida teaching certificate number 181441, covering Math, Emotionally Disturbed and Junior College, which is valid until June 30, 1993." "OSSIE L. GARDNER has been employed as a math/science teacher at the Juvenile Shelter in Jacksonville, Florida. He holds a tenure contract in Duval County where he continues to teach at this time. The Professional Practices Council received a report from Buford H. Galloway, Director of Evaluation and Development, indicating that OSSIE L. GARDNER was charged with Exposure of Sexual Organs by Masturbation on August 2, 1977. Pursuant to this report and under the authority contained in Section 231.28, Florida Statutes, staff of the Department of Education conducted a professional inquiry into the matter and on February 13, 1978 made its report to the Executive Committee of the Professional Practices Council. The Executive Committee recommended that the Commissioner of Education find that probable cause exists to believe that OSSIE L. GARDNER is guilty of acts which provide grounds for the revocation of his Florida teaching certificate. The Commissioner of Education found probable cause on February 13, 1978, and directed the filing of this petition. The Petitioner has authority under Section 6A-4.37, Rules of the State Board of Education to file this Petition. The State Board of Education has authority under action 231.28, Florida Statutes to revoke the teaching certificate of OSSIE L. GARDNER." At the commencement of the hearing, the parties further agreed to stipulate to the introduction of certain items of evidence without the necessity for authentication of those documents. Finally, the parties agreed to stipulate to the introduction of the deposition of Otha Lee Wooden, as a late-filed exhibit, to be used by the undersigned in the same way as the testimony offered in the course of the hearing. The facts in the case revealed that on August 2, 1977, between 3:30 and 4:00 P.M., Officer J. W. Lockley of the Jacksonville Sheriff's Office, Duval County, Florida, was making a routine check of the J & K Adult Theater in the 400 block of Main Street, Jacksonville, Florida. This theater contains material of sexual content. Among other features of the theater are certain booths located behind a curtained area, which is separated from the other part of the establishment. Those booths have coin-operated projectors which allow for the display of preselected film clips which have been obtained from the proprietor. The booths are approximately four feet by seven or eight feet in dimension and the patron may stand up or in some cases may sit down in the booths. The booths have a further feature which is a door which has instructions that it must be closed during the course of the film being shown. On the date in question, Officer Lockley went into the area of the theater which contains the booths and observed the Respondent, Ossie L. Gardner, in Booth No. 8. At that time, the door to the booth was open and Gardner was observed with his sexual organs exposed, and was observed stroking his exposed penis with his hand in an upward and downward motion. A film was playing in the booth, being projected on a small screen. The film depicted sexual activity between male participants, specifically fellatio. Officer Lockley passed up the aisle from where he had observed this activity on the part of the Respondent and then returned to the area of the booth in which Mr. Gardner was located. At that point, Gardner continued to stroke his penis and to look and obtain eye contact with Lockley and then to look down at his penis. Lockley subsequently arrested Gardner for exposure of sexual organs, in violation of Section 80003, Florida Statutes. Gardner later plead guilty to a municipal ordinance violation of indecent exposure, City of Jacksonville Ordinance No. 330.124. For this violation, Gardner was given a judgment and sentence of a $50.00 fine plus $2.00 court costs. In the course of the arrest, the Respondent indicated to Officer Lockley that he had bean arrested for similar conduct before in a matter in Tallahassee, Florida. This incident pertained to a situation which occurred in the Greyhound Bus Station in Tallahassee, Florida, on June 29, 1967. At that time, C. A. McMahan, an employee of the State Prison Camp, Division of Corrections, Tallahassee, Florida, was working as an agent with the Tallahassee Police Department to assist in the investigation of vice activities. In particular, McMahan was assisting in the investigation of alleged homosexual activities in the men's restroom of the Greyhound Bus Station. On the date in question at around 10:00 P.M., McMahan went into the men's restroom and entered one of the closed-in stalls in which a commode was located; Gardner went to one of the urinals in the bathroom facility. Before entering the stall, McMahan observed Gardner masturbating at the urinal. McMahan then closed the door to the stall and was seated in the area of the commode when Gardner moved into the area next to McMahan's stall and continued to masturbate as observed through a hole in the wall between the stall in which McMahan was located and the area where Gardner was positioned. After a period of three or four minutes, Gardner stuck his penis through a hole in the partition wall into the area where McMahan was located. At that point, McMahan left to tell Captain Burl S. Peacock of the Tallahassee Police Department, Tallahassee, Florida, of his observation. Both of these individuals went back into the restroom, at which point Gardner was arrested. Gardner, after being advised of his constitutional right to remain silent, admitted that he had gone to the restroom with the thought that he could get some "sexual relief", and further admitted putting his penis through the hole in the partition for the purpose of getting that "sexual relief." Gardner also admitted to Peacock that he had been involved in homosexual activities as early as the age of 18 and had performed sodomy on one occasion and had been a passive partner in homosexual activities at other times. Subsequent to the June 29, 1967, arrest, Gardner received psychiatric attention for his problem. For the incidents related in the matters of August 2, 1977, and June 29, 1967, the Respondent has been charged with violations of Sections 231.09 and 231.28, Florida Statutes, and Sections 6A-4.37, 60-1 and 6B-5, Florida Administrative Code; in that his conduct is alleged to be inconsistent with good morals and the public conscience; not a proper example for students and conduct which is sufficiently notorious to bring Ossie L. Gardner and the education profession into public disgrace and disrespect. A review of those stated sections of the Florida Statutes and the The Florida Administrative Code reveals that any substantive allegations cognizable through this complaint are found in provision of Section 231.09(2), Florida Statutes, and Section 231.28(1), Florida Statutes, only. Therefore, no further reference will be made to Section 6A- 4.37, 60-1 and 60-5, Florida Administrative Code. Section 231.09(2), Florida Statutes, reads as follows: "(2) EXAMPLE FOR PUPILS.--Labor faithfully and earnestly for the advancement of the pupils in their studies, deportment and morals, and embrace every opportunity to inculcate, by precept and example, the principles of truth, honesty and pat- riotism and the practice of every Christian virtue." The conduct which has been established in the facts pertaining to the incidents of August 2, 1977, and June 29, 1967, involving the exposure of the Respondent's sexual organs and the surrounding activities in those incidents, is conduct which shows that the Respondent is not laboring faithfully and earnestly for the advancement of the pupils in their deportment and morals' in violation of Section 231.09(2), Florida Statutes. No other violation of that provision has been established. Section 231.28(1), Florida Statutes, together with the preamble to the overall Section 231.28, Florida Statutes, reads as follows: "231.28 Suspension or revocation of certificates. The Department of Education shall have authority to suspend the teaching certificate of any person for a period of time not to exceed 3 years, thereby denying him the right to teach for that period of time, after which the holder may return to teaching as provided in subsection (6); to revoke the teach- ing certificate of any person, thereby denying him the right to teach for a period of time not to exceed 10 years, with reinstatement subject to provisions of subsection (6); or to revoke permanently the teaching certificate of any person, provided: (1) It can be shown that such person obtained the teaching certificate by fraudulent means, or has proved to be incompetent to teach or to perform his duties as an employee of the public school system, or to teach in or to operate a private school, or has been guilty of gross immorality or an act involving moral turpitude, or has had his certificate revoked in another state, or has been convicted of a mis- demeanor, felony, or any other criminal charge, other than a minor traffic violation, or upon investigation has been found guilty of personal conduct which seri- ously reduces his effectiveness as an employee of the school board, or has otherwise violated the provisions of law, the penalty for which is the revocation of the teaching certificate, or has refused to comply with the regulations of the State Board of Education or the school board in the district in which he is employed." Again, the acts of August 2, 1977, and June 29, 1967, involving the exposure by the Respondent of his sexual organs and the facts therein, show that the Respondent has been guilty of gross immorality or an act involving moral turpitude. The only other possible violation under Section 231.28(1), Florida Statutes, which might be argued is the allegation of possible conduct which seriously reduces the Respondent's effectiveness as an employee of the school board. The sole testimony offered in the course of the hearing which would address that substantive accusation would be that testimony found in the deposition of Otha Lee Wooden. A review of that testimony indicates that the opinion of the principal of the school in which the Respondent teaches, to wit, the school No. 182, Juvenile Shelter School, is to the effect that the facts in these cases are not known to other persons in the school. Consequently, there is no testimony to indicate that there would be any loss of effectiveness if Mr. Gardner continued to teach. No other violations were alleged or proven.
Recommendation In the course of the hearing, matters in mitigation and aggravation were considered. In that presentation, it was demonstrated that the Respondent is a teacher with an outstanding background, as revealed by his personnel file, which is the Respondent's Exhibit No. 8 admitted into evidence. It was also established that the Respondent is a man of distinguished service to his country through service in the United States Army, as established in the Respondent's Exhibits Nos. 1 through 7. Further, it was established that absent these incidents alluded to in the course of this Recommended Order, the Respondent has not been the subject of disciplinary action by the Petitioner on any other occasion. Nonetheless, in consideration of the nature of his profession, it is recommended that the Respondent, Ossie L. Gardner, have his Post-Graduate Rank II Florida Teaching Certificate No. 181441 REVOKED for a period of three (3) years. DONE and ENTERED this 15th day of September, 1978, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Mail: 530 Carlton Building 101 Collins Building Tallahassee, Florida 32399-1550 COPIES FURNISHED: L. Haldane Taylor, Esquire 2516 Gulf Life Tower Jacksonville, Florida Charles E. Grabill, Jr., Esquire 168 Blanding Boulevard, Suite 2 Orange Park, Florida 32073 Mr. M. Juhan Mixon Professional Practices Council 319 West Madison Street, Room 3 Tallahassee, Florida 32304
The Issue The issue in this case is whether Petitioner's request for license by endorsement as a professional engineer should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, James R. Eason (Petitioner), is the pavement management coordinator for the Hernando County Public Works Department. He is a registered professional engineer in the State of Georgia, having received Professional Engineering Registration Number 17320 in 1988. In March 1997, Petitioner filed an application with Respondent, Board of Professional Engineers (Board), seeking licensure by endorsement as a professional engineer in this state. On July 1, 1997, the Board issued its preliminary decision in the form of a letter advising Petitioner that his application had been denied. As grounds, the Board stated that Petitioner had received a raw score of 67 with five points awarded for Veterans Preference on the Principles and Practice portion of the examination. The letter further explained that a raw score of 70 or above was required in order for his score on the Georgia examination to be recognized in the State of Florida and that "Chapter 471, F.S. does not provide for awarding of points for Veterans Preference." The denial of the application prompted Petitioner to bring this action. Petitioner is a graduate of, and holds a bachelor's degree in civil engineering from, the Georgia Institute of Technology. He has a record of four years active engineering experience of a character indicating competence to be in responsible charge of engineering. The parties have also stipulated he is of good moral character, and he has never been under investigation in another state for any act which would constitute a violation of Chapters 455 or 471, Florida Statutes. Petitioner passed the Fundamentals portion of the professional engineering examination administered in 1973 by the State of Georgia. He obtained a score of more than 70. In April 1988, Petitioner took the Principles and Practice portion of the examination. A grade of 70 was required to pass the Georgia examination. Petitioner received a grade of 67 on the initial scoring of the Principles and Practice portion of the examination, plus a five-point Veterans Preference credit, for a total grade of 72. The Veterans Preference credit is provided by Georgia law to all candidates who are members or former members of the Armed Forces of the United States and meet certain service requirements. In Petitioner's case, he had served eight years on active duty as a member of the United States Naval Reserve, and he was honorably discharged as a Lieutenant on July 3, 1969, upon expiration of his active duty commitment. At least ninety days of his active duty military service was during wartime or at a time when military personnel were committed by the President of the United States. The examination administered by the State of Georgia in April 1988 was a national examination published by the National Council of Examiners for Engineering and Surveying, and it was identical to the examination administered by the State of Florida at that time. Florida, like Georgia, requires a grade of 70 to pass the examination, but it does not provide a Veterans Credit for service to candidates who are members or former members of the Armed Forces of the United States. Therefore, in the State of Georgia, a veteran can pass the examination with a raw score as low as 65. To this extent, the two examinations are not substantially equivalent. Among other things, Petitioner pointed out at hearing that he needed only three points to achieve a passing grade on the Principles and Practice portion of the examination. Therefore, he concluded that the awarding of that amount of extra points for being a veteran amounted to only a single standard deviation, and thus the extra points were immaterial in relation to the overall score. However, the Board does not construe this three-point deficiency as being "immaterial," and had Petitioner received the same score in Florida, he would not have passed the examination.
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 denying Petitioner's request for licensure by endorsement as a professional engineer. DONE AND ORDERED this 25th day of November 1997, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 1997. COPIES FURNISHED: Joseph M. Mason, Jr., Esquire Post Office Box 1090 Brooksville, Florida 34605-1900 Edwin A. Bayo, Esquire Department of Legal Affairs The Capitol Tallahassee, Florida 32399-1050 Angel Gonzalez, Executive Director Board of Professional Engineers 1940 North Monroe Street Tallahassee, Florida 32399-0755
The Issue The ultimate issue to be resolved in this proceeding is whether the Petitioner should be awarded a doctor of education degree by Florida State University. Petitioner contends that he properly completed the requirements for the degree, that a valid offer of the degree was made to him, that he accepted the offer, and that the degree was then wrongfully withheld. The university contends that Petitioner did not meet the requirements for the degree and that no valid, enforceable offer of it was made to Petitioner.
Findings Of Fact In 1976, Petitioner was admitted into the doctoral program in biology at Florida State University. He applied to transfer to the science education program and was admitted to the doctoral program in science education within the College of Education at Florida State University on June 24, 1977. He was pursuing a doctor of philosophy (Ph.D.) degree. Among the requirements that Petitioner needed to meet in order to receive the degree were successful completion of a diagnostic examination, completion of thirty-six resident hours of course work, course work in the field of statistics, a preliminary examination, approval of a prospectus for a doctoral dissertation, and presentation of an acceptable dissertation and a successful dissertation defense. Following his admission into the Ph.D. program in science education, a supervisory committee was established for the Petitioner, and a major professor was appointed. It was the major professor's and supervisory committee's function to monitor Petitioner's progress and ultimately to make a recommendation as to whether petitioner should be awarded a degree. By November 7, 1980, Petitioner had completed all of the requirements for a Ph.D. degree except for the presentation of his dissertation and the dissertation defense. These were scheduled to be conducted by the supervisory committee on November 7, 1980. Petitioner had been advised by at least two members of the committee that he might not be ready to present and defend his dissertation. Petitioner felt that he was. On November 7, 1980, Petitioner met with his supervisory committee and presented and defended his dissertation. After his presentation, Petitioner left the room, and the committee evaluated the dissertation and defense. The committee unanimously concluded that the dissertation and defense were inadequate. The dissertation was not marginally inadequate. It was grossly below standards. The committee unanimously and appropriately concluded that the dissertation and defense were not acceptable, and that Petitioner had not met the requirements for a Ph.D. degree. Petitioner's major professor felt that the Petitioner had devoted considerable time, energy, and hard work to the degree program. He was concerned that the effort not be totally wasted. He requested that the committee consider accepting the dissertation as adequate for the award of a doctor of education (Ed.D.) degree or a "master's specialist" degree, and that the committee recommend that Petitioner be awarded one of those degrees or that he be allowed to continue working toward a Ph.D. degree. None of the members of the supervisory committee had had experience with the Ed.D. degree. They all considered it an inferior degree and felt that awarding it to Petitioner would constitute something of a "consolation prize." In fact, an Ed.D. degree from Florida State University is not intended to be an inferior degree. Its focus is somewhat different, but the requirements for obtaining the degree are basically the same. The committee was mistaken in considering the offer of such a degree to Petitioner. Indeed, the requirements for an Ed.D. degree being similar, and in some cases identical to those for the Ph.D. degree, Petitioner had not qualified for the award of an Ed.D. degree. After the committee adjourned its proceedings on November 7, Petitioner's major professor discussed the committee's actions with Petitioner. He told Petitioner that pending proper approval, Petitioner would have the options of continuing to work toward a Ph.D. degree, or receiving an Ed.D. or master's specialist degree. It appears that the major professor was overly sensitive about the Petitioner's feelings, and he may not have bluntly advised Petitioner that he failed his dissertation, presentation, and defense. Petitioner considered his options and told his major professor that if it was possible, he would be amenable to accepting an Ed.D. degree. The major professor contacted administrative officials and was advised that the award of an Ed.D. degree would be possible. The major professor advised the Petitioner of that and told him that pending approval from the department chairman who had charge of the science education program, Petitioner could receive the Ed.D. degree. The major professor also advised Petitioner that some revisions would need to be made in the dissertation and that the title page would need to be retyped in order to reflect that it was being submitted in support of an Ed.D. degree. Petitioner complied with the direction to retype the first page, but made only minor revisions in the dissertation. Members of the supervisory committee signed off on the dissertation as being acceptable in support of an Ed.D. degree. The matter was submitted to the department chairman. The department chairman read the dissertation and concluded that it was grossly inadequate. He determined that he would not authorize the award of an Ed.D. degree because Petitioner would need to be properly accepted into an Ed.D. program before he could be awarded such a degree, and additionally because he considered the dissertation inadequate to support an Ed.D. degree. This action was communicated to the supervisory committee. The committee met again and determined that since the Ed.D. degree could not be awarded, that Petitioner should be given failing grades for the dissertation, presentation, and defense. Prior to the department chairman's review of the dissertation, Petitioner had paid his fees and was anticipating being awarded an Ed.D. degree. Since it was not approved by the department chairman, the degree was not awarded. Thereafter, the Petitioner opted not to apply to have his work considered in support of an Ed.D. degree or master's specialist degree. He continued working toward a Ph.D. degree for approximately six months. Ultimately, he decided to drop out of the program, and he initiated this proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby, RECOMMENDED: That a final order be entered by Florida State University denying Petitioner's application for award of an Ed.D. degree and dismissing the Petition for Administrative Hearing. RECOMMENDED this 24th day of January, 1983, in Tallahassee, Florida. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1983. COPIES FURNISHED: John D. Carlson, Esquire Woods, Johnston & Carlson 1030 East Lafayette Street Suite 112 Tallahassee, Florida 32301 Patricia A. Draper, Esquire Charles S. Ruberg, Esquire Florida State University Suite 311, Hecht House Tallahassee, Florida 32306 Dr. Bernard F. Sliger President Florida State University 211 Westcott Tallahassee, Florida 32306
