The Issue Whether Petitioner is entitled to credit for her answers to questions 55 p.m. and 56 p.m. on the Fundamentals of Engineering portion of the engineering licensure examination given on April 15, 2000.
Findings Of Fact Upon consideration of the oral and documentary evidence received at the hearing, the following relevant findings of fact are made: The examination for licensure of an engineer in the State of Florida is administered by the Florida Engineers Management Corporation, a not-for-profit corporation, created under Section 471.038, Florida Statutes. A written examination is authorized by Rule 61G15-21.001, Florida Administrative Code. Respondent contracts with the National Council of Examiners for Engineering and Surveying to provide engineering licensure examinations. This practice is approved by Section 455.217, Florida Statutes, and Rule 61G1 5-21.005, Florida Administrative Code. The National Council of Examiners for Engineering and Surveying develops standardized tests given for licensure throughout the United States and ensures that the questions are not ambiguous through a number of methodologies. A candidate for licensure as an engineer intern must attain a "scaled" score of 70 to pass the examination. On the examination taken by Petitioner, the minimum "raw" score required to attain a "scaled" score of 70 was 107; Petitioner's "raw" score was 105. Petitioner had initially challenged five questions; at the hearing, Petitioner withdrew her challenge to three questions; the two remaining challenged questions (55 p.m. and 56 p.m.) were "ethical" questions, i.e., they dealt with questions of engineering ethics. The challenged questions were multiple-choice questions. The test gives the following directions: "Each of the questions or incomplete sentences below is followed by four suggested answers or completions. Select the one that is the best in each case and then fill in the corresponding space on the answer sheet." (Emphasis added.) The challenged question 55 p.m. deals with an engineer hired to prepare a report on the design, manufacture, and assembly of a structure. The report contains references to "shoddy workmanship." Petitioner states that while she agreed that answer A [the graded "correct" answer] is correct, she believed that the inclusion of the word "also" in answer B included answer A in answer B by reference and therefore she chose B as her answer. Petitioner acknowledges that the word "also" in answer B could be referring to language in the question rather than in answer A. Answer A specifically refers to "engineering issues" which the engineer is "qualified to assess"; answer B indicates that the references to "shoddy workmanship" are "personal opinions" and "not professional opinions". An engineer is obligated by his license not to give an opinion for which he does not have expertise. An engineer should not render a personal opinion in a report in which the engineer gives a professional opinion. The challenged question 56 p.m. deals with an engineer who lacks expertise dealing with space frames but designed structures which included same. Regarding challenged question 56 p.m., the Petitioner acknowledged that answer A (the graded "correct" answer) could have been the correct answer as well as the answer she chose, answer D. Answer D indicates that the engineer was unethical because he did not refer that matter to the Registration Board. An engineer should not contact the Registration Board and report to the Board that someone has asked him to do something unethical; it is incumbent upon an engineer to practice engineering ethically without the input of the Board. In both instances in answering the challenged questions the Petitioner failed to provide the "best" answer and at hearing acknowledged that the graded "correct" answer by the National Council of Examiners for Engineering and Surveyors was a "correct" answer even though she chose a different answer.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Engineers Management Corporation enter a final order denying Petitioner's challenge to questions 55 p.m. and 56 p.m. DONE AND ENTERED this 27th day of December, 2000, 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 27th day of December, 2000. COPIES FURNISHED: Yvette Bowman 3401 North Lakeview Drive Apartment 216 Tampa, Florida 33618 Douglas D. Sunshine, Esquire Florida Engineers Management Corporation 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 Dennis Barton, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 1208 Hays Street Tallahassee, Florida 32301 Natalie A. Lowe, Esquire Vice President for Legal Affairs Florida Engineers Management Corporation 1208 Hays Street Tallahassee, Florida 32301
The Issue The single issue for determination is whether Petitioner is entitled to at least three more points on his response to question #121. If not, he has failed the examination.
Findings Of Fact Kenneth A. Carper graduated summa cum laude with a bachelor's degree from the University of Central Florida. In the nine years since graduation he has worked for an engineering firm primarily in the area of drainage design. Question #121 is the type of problem he deals with daily. The ultimate objective of the question is to determine whether the flow of an open channel with given specifications is subcritical or supercritical. The question required the computation of the channel's critical depth and normal depth. In the hypothetical situation described by the question, certain extraneous information was given. An appropriate answer required that this "red herring" be ignored. The ISSP is a standardized grading device by which a person subjectively grading a problem will consistently apply a score based upon specified types and numbers of deficiencies. The intent is to reduce the chance of over-leniency or an overly strict approach by different graders. The ISSP developed by the National Council of Engineering Examiners for question #121 provides in pertinent part: 10. QUALIFIED: All CATEGORIES satisfied, correct solution, well organized, all relevant ASPECTS fully addressed. Correct approach; numerical answers correct within rounding errors; conclusion correct; adequate written records. All parts are of equal weight (3 parts). 9. QUALIFIED: All CATEGORIES satisfied, correct solution but exces- sively conservative in choice of working values; or presen- tation lacking in completeness of equations, diagrams, orderly steps in solution, etc. All correct, as in 10 above, except for a single math/units error; or inadequate written record. 8. QUALIFIED: All CATEGORIES satisfied, errors attributable to misread table or calculating devices. Errors would be corrected by routine checking. Results reasonable, though not correct. All correct, as in 10 above, except for multiple math/units errors; or inadequate written record; or in combination. 7. QUALIFIED: All CATEGORIES satisfied. Obtains solution, but chooses less than optimum approach. Solution is awkward but reasonable. Same as 8 above, except for more gross errors; or in combination; or a single part of three parts required completely wrong or missing, with the other two parts correct. 6. QUALIFIED: All CATEGORIES satisfied, applicant demonstrates minimally adequate knowledge in all relevant ASPECTS of the item. Multiple math/units/records errors; or in combination; or one part completely missing or wrong, with other errors; or in combination. (Joint Exhibit 1) The grader of Carper's examination did not testify, but provided notations on the answer sheet. The solution required selection of an appropriate formula, which Carper did; it also required a trial and error mathematical computation of the value of "y." In the first part of the question Carper found "y" to be "... between 9.2 and 9.3, say 9.3'." The grader crossed out this answer with the notation,-- "not an engineering answer-Finish iteration to a close enough' final value." The grader's answer was 9.24. In the second part of the question, Carper indicated "y" was "... between 6.8 and 7.0, say 7.0'." The grader's answer was 6.99, and similar notations, were made, "not an engineering answer. Finish the iteration." It is apparent that the grader felt that the solution should be carried out to the nearest hundredth place. Yet, in a very similar question (#421), also requiring computation of normal depth, Carper's answer, 4.7' was marked "OK", and he received the full 10 points for his solution. Nothing in the instructions specifically requires a solution to the nearest hundredth. This is left to the judgement of the engineer. "Real world" engineering practice would not require a solution to the nearest hundredth place. The design of a large open channel is substantially less precise than the design of a bridge or multi-story building. In hydraulics, the practice is often to round up, for example, from a 9.8 to 10, as a conservative measure. It is also common to use estimates; for example, the roughness coefficient (resistance of the channel walls) is a textbook figure, rather than one derived from the structure itself. Given the lack of precision inherent in the formula, the computation of value beyond the tenth place serves no valid purpose. The sample solution to #121 provided by the grader specifically states "ignore backwater curve." While Carper's solution does ignore the "red herring," his work sheet does not affirmatively note that he did. Respondent claims that the grader could not know whether the back water curve was properly ignored, or just overlooked. At worst, this minor deficiency constitutes an inadequate written record. The appropriate score, based on the ISSP table reflected in paragraph 4, above, is "9." Carper selected the proper formula, performed the mathematics and arrived at answers reflecting acceptable engineering practice. The descriptions of deficiencies for the scores of less than 9 do not apply to Carper's solution for this question. Respondent's expert conceded that the solution did not contain a mathematics error. In making these findings I have considered and weighed the opinions of the three experts who testified in this proceeding. Both experts presented by Petitioner were qualified, without objection, in the engineering fields of hydraulics, hydrology and water resource management. They both have over 30 years of extensive practical experience in those fields, and they both have lectured or taught in colleges and universities. The weight of their testimony is tempered by their personal knowledge of Petitioner for eight or nine years and by their knowledge of the score he needed to pass the examination. Nothing in the substance of their testimony, however, revealed a bias in favor of their colleague, and their testimony was considered candid and forthright. They would have scored #121 as "9" or "10". Respondent's expert, a consulting engineer, employed as an Associate Professor in the University of Florida Civil Engineering Department did not know Carper, nor was he advised of the score he would need to pass. He would have given Carper a "6" or "7" on question #121, but more likely a 7, based on Carper's failure to carry his answer to "three significant figures." This opinion was not adequately explained in terms of acceptable engineering practice, but rather was based on acceptance of the test grader's judgement. (Joint Exhibit #2, Deposition, p. 29) Respondent's expert was less qualified than Petitioner's experts. His primary experience as a consulting engineer has been in review of the work of others, rather than active design.
Recommendation Based upon the foregoing, it is hereby RECOMMENDED: That a Final Order be entered, awarding Kenneth Carper 9 points for question #121, thereby providing a passing grade for the engineering examination. DONE and RECOMMENDED this 29th day of February, 1988, in Tallahassee, Florida. MARY CLARK 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 29th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4979 The following constitute my rulings on the findings of fact proposed by the parties: Petitioner 1-5. Addressed in Background. 6-7. Adopted in paragraph #11. 8. Addressed in Background. Respondent Addressed in Background. Adopted in substance in paragraph #3. Adopted in paragraph #10. Adopted in substance in paragraph #10. Adopted in paragraph #9. Adopted in substance in paragraph #5. Rejected as unsubstantiated speculation. COPIES FURNISHED: Brian E. Currie, Esquire SANDERS, McEWAN, MIMS & MARTINEZ, P.A 108 East Central Boulevard Post Office Box 753 Orlando, Florida 32802-0753 H. Reynolds Sampson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Allen R. Smith, Jr. Executive Director Board of Professional Engineers Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neal, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact By Joint Stipulation, dated February 23, 1984, Petitioners and Respondent agreed as follows: That those facts in the Petition To Determine The Invalidity Of A Proposed Rule which support the Petitioners standing to bring a Chapter 120.54(A), Florida Statute [sic] rule challenge are correct and are sufficient to establish said standing. The notice of the proposed rule and the rule itself first published in Volume 10, Number 2, Florida Adminis- trative Weekly, are hereby stipulated into evidence as forming the basis of the matter in controversy in this cause. The issues set forth in the Petition To Determine The Invalidity Of A Proposed Rule as to whether the Respondent has the authority to promulgate the rule in question form the sole basis of controversy. Respondent and Petitioners have agreed to submit simultaneous memo- randa of law in support of their respective positions. The memoranda shall be filed on or before March 19, 1984. The Hearing Officer shall then have thirty (30) days in which to render his final order in this cause. Respondent has proposed for adoption Rule 21H-18.11(4) Florida Administrative Code, which provides as follows: The term "Engineering Survey" as used in Section 471.005(4)(a), F.S., is defined as surveys made to obtain data for planning, design, and execution of engineering projects or developments; and may be necessary for the planning, progress, and completion of any engineering services. These surveys include, but are not limited to, con- struction layout, topographic surveys, hydrographic surveys, quantity surveys, and special purpose surveys to the extent that all the aforementioned surveys relate to engineering services. Respondent has asserted as the specific authority for, and law implemented by, the proposed rule only Section 471.005(4)(a), Florida Statutes. In summarizing the purpose and effect of the proposed rule in its notice published in the Florida Administrative weekly, Respondent pointed out that: The proposed rule essentially codifies previous rulings of the joint Board of Professional Engineers and Land Sur- veyors as it existed prior to 1979 and further amplifies generally accepted types of "surveying" which are nationally accepted as being capable of being per formed by qualified professional engineers. Further, including in its notice that the proposed rule would have minimal economic impact on Florida engineering practice, Respondent concluded that: . . . This estimate is based upon the fact that the definition of "engineering" in Ch. 471, F.S. has not been changed for several decades and various rulings of the Board of Professional Engineers and Land Surveyors (prior to 1979) as well as nationally accepted demarcations between those areas which are solely the practice of professional engineering and those of land surveyoring [sic] which have been followed in the State of Florida permit the overlap of functions between those individuals licensed under Ch. 471 and Ch. 472, F.S., to the extent set forth in the proposed rule.
The Issue The issues for determination are whether Respondent, by holding himself out as an expert witness and testifying as an expert witness, engaged in the unlicensed practice of engineering.
Findings Of Fact Respondent is a 1993 graduate of the University of Florida with a Bachelor of Science in electrical and computer engineering and is pursuing a Ph.D. in safety engineering from Kennedy Western University. Respondent is not a licensed professional engineer in Florida. Respondent is a member of three professional organizations: 1) Institute of Electrical and Electronic Engineers (IEEE); 2) Society of Automotive Engineers (SAE); and 3) Accident Reconstruction Network (ARC). IEEE and SAE require a degree in engineering for membership, but do not require professional licensure. Generally, professional organizations for engineers require an engineering degree from an accredited engineering program, but do not require licensure as a condition of membership. Thus, membership in a professional organization such as IEEE does not tend to indicate that a member holds a license to practice engineering. No competent evidence was presented that Respondent uses engineering designations, titles and devices tending to indicate that Respondent holds an active license as an engineer in Florida. Respondent has gained experience in the areas of mechanical and electrical engineering through education, and training. He holds himself out as experienced and qualified to provide expert witness services in many fields related to engineering basic principles. Respondent gained much of his engineering experience in positions that are exempt from the licensure requirement. Respondent does not hold himself out as a professional, or licensed engineer. Graduates of accredited engineering programs are commonly referred to as “engineers” by universities and potential employers. Respondent purports to possess expertise as a forensic consultant, accident reconstructionist, and forensic computer expert. Respondent does not hold himself out as an “engineer” or a “licensed” or “professional” engineer. Attorney Debra Wall (“Wall”) retained Respondent to provide expert witness services in the Tennessee Case. In providing such services, Respondent never held himself out as a licensed engineer or as a professional engineer. In seeking to obtain an expert witness, Wall did not initially put any weight on professional licensure as a requirement to provide expert testimony. Respondent generated two written reports and was deposed regarding these reports in the Tennessee Case. Respondent’s expert witness testimony consisted only of giving opinions based on observation, not on engineering theory or testing. Respondent performed no calculations in support of his opinions in the Tennessee Case. Respondent’s opinions were directed to a discrete litigation event – the Tennessee Case - and do not implicate the health, safety, or welfare of the public in general, or to the citizens of Florida in particular. Engineering analysis consists of complex scientific analysis of collected data or material. In a case like the Tennessee Case, engineering analysis would consist of the performance of scientific discovery based upon mathematics, physics, or engineering and/or a statistical evaluation of seatbelts for the make and model of automobile in question to determine seatbelt-related failure modes and rates. Respondent’s written reports in the Tennessee Case do not contain engineering analysis; rather, they are based only upon observation and opinion. Respondent’s opinions in the Tennessee Case do not constitute engineering analysis.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that Petitioner enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 29th day of March, 2006, in Tallahassee, Leon County, Florida. S DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 2006. COPIES FURNISHED: Bruce A. Campbell, Esquire Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303 William H. Hollimon, Esquire Moyle, Flanigan, Katz, Raymond, White and Krasker, P.A. The Perkins House 118 North Gadsden Street Tallahassee, Florida 32301 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Paul J. Martin, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Doug Sunshine, Esquire Vice President for Legal Affairs Florida Engineers Management Corporation 2507 Callaway Road Tallahassee, Florida 32303-5267
The Issue The issue is whether Mr. Harrison's response to question 8 on the General Contractor's Examination given on October 3, 1985 was incorrectly graded. If Mr. Harrison were given credit for his answer to that question, he would pass the examination. The examination was correctly graded, however, and the petition filed by Mr. Harrison should be dismissed.
Findings Of Fact Mr. William D. Harrison took the Florida Construction Industry Licensing Board's General Contractor's Examination on October 3, 1985. According to his grade report his grade was 68.65. A total grade of 69.01 is necessary to pass the examination. Rule 21E-16.05, Florida Administrative Code. If he were given credit for the answer he gave to question number 8 on the portion of the examination given the afternoon of October 3, 1985, he would pass the examination. The question at issue sought an estimate of the amount of concrete necessary to construct entrance steps for a hypothetical building. The Department of Professional Regulation, Office of Examination Services had prepared drawings for a building consisting of 14 different sheets showing various elevations, aspects or other details of the building. These drawings were used in answering the examination questions. Question 8 read: The total volume of concrete to place the concrete entrance steps (only) is cubic yards. Select the closest answer. (A) 4.7 (B) 5.9 (C) 6.5 (D) 7.0 Mr. Harrison chose answer (A). The correct answer is answer (D). Sheet 4 of 14 of the drawings shows the first floor plan for the building. There are a total of four 11'6" spans of concrete entrance steps to the covered entry on the north and south sides of the building. The detail of the steps on sheet 4 of 14 shows that they generally have a 6" rise and are 1' in depth. According to the same sheet of the drawings, there are also other concrete steps to be constructed on the east and west sides of the building of 11' spans. In the northwest and southeast corners of the building there are enclosed stairwells serving the four floors of the building. The steps in these stairwells also contain concrete as an element in their construction. Mr. Harrison contends that the question is phrased in a misleading manner. In his view only the north and south entrance steps should be included in the calculation of the amount of concrete needed for "entrance steps (only) ." According to his calculations, placing those entrance steps would require 4.889 cubic yards of concrete. The closest answer available is 4.7, answer (A), which he gave. By reference to a dictionary of construction terms, Mr. Harrison argues that a building's area excludes uncovered entrances, terraces and steps. He believes he correctly excluded the covered steps on the east and west sides of the building from the calculation of "entrance steps," treating them as part of the building area, not entrances. The Departments contends that the question is specifically constructed to test the level of detail with which examinees read the drawings. On sheet 4 of 14 the symbol "A/4" appears, with a line cutting perpendicularly through the western steps. That symbol points out to examinees that a detailed drawing for the construction of the concrete entrance steps appears on that sheet. That perpendicular line through the western steps demonstrates that the eastern and western steps are "entrance steps" in the plans, and must be included in the calculation required in question 8. Answer (A), chosen by Mr. Harrison, is a distractor specifically designed to determine whether examinees have included the east and west steps in their calculation. If excluded, the calculation yields an answer of exactly 4.7 cubic yards of concrete (Mr. Harrison's calculation of 4.889 is slightly off). If all four spans of entrance steps are included, the correct answer of 7.0 cubic yards is obtained. The phrase "entrance steps (only)" appears in question 8 to make clear to examinees that the concrete allocable to the steps of the enclosed northwest and southeast stairwells is not part of the calculation. After an examination is graded, but before the grade reports are distributed, the Department does a statistical analysis of the patterns of responses to all examination questions to determine whether those patterns reveal a problem such as a general misreading of any questions. If a question performs badly, it can be deleted from the grading process before the grade reports are distributed to examinees. The analysis done on the answers to question 8 shows that of the 887 examinees, 180 of those who ultimately scored in the upper 27 percent of the examination overall answered the question correctly with answer (D); of those scoring in the middle 46 percent on the overall examination, 148 gave the correct answer; of those examinees scoring in the lower 27 percent overall, only 69 gave the correct answer. Among those choosing answer (A), as Mr. Harrison did, 36 of those who scored in the upper 27 percent overall gave that answer, 116 of those in the middle 46 percent chose the answer, and 102 of those scoring in the lower 27 percent chose that answer. Statistically, the question performed well. The evidence shows that answer (A) acts as the distractor which it was designed to be. Those who do not read the drawings carefully select the answer which would be correct if only the north and south steps are included in the calculation. Given the specificity of the drawing showing the east and west steps as entrance steps, however, Mr. Harrison's objection to the grading of his answer to question 8 is not well founded. Mr. Harrison had also raised, in his letter challenging his grade, an objection to another test question. At the hearing, however, he abandoned that challenge.
Recommendation It is recommended that the petition for regrading of the General Contractor's Examination given in October 1985 by the Construction Industry Licensing Board be DENIED. DONE AND ORDERED this 28th day of April 1986 in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY, JR. 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 28th day of April, 1986. COPIES FURNISHED: Mr. Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 H. Reynolds Sampson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. William D. Harrison 3490 Artesian Drive Lantana, Florida 33462
