The Issue Whether Respondent, Department of Business and Professional Regulation, Electrical Contractors Licensing Board, appropriately denied Petitioner's, Kevin Harrington, application to take the examination for licensure as an electrical contractor.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Respondent is the state agency vested with the authority to test applicants seeking certification as electrical contractors. Petitioner is seeking certification (licensure) as an electrical contractor. On December 12, 2001, Respondent received Petitioner's application to take the Electrical Contractors Unlimited examination. On December 24, 2001, Respondent mailed Petitioner a letter requesting additional information. The letter requested that the additional information be received by Respondent no later than January 4, 2002. This date was later extended to January 8, 2002. On January 4 and January 7, 2002, Petitioner, through his attorney, forwarded the requested additional information to Respondent. Petitioner's application was complete on January 10, 2002. Respondent, Electrical Contractors Licensing Board("Board"), met on January 16 and 17, 2002. The Board delegates initial consideration of applications to take certification examinations to an Applications Committee consisting of members of the Board who make recommendations to the full Board on each application. Each application is examined by at least two Applications Committee members; if both recommend "denial of the application," or, if one recommends "approval of the application" and one recommends "denial of the application," the application is reviewed by a third Applications Committee member. Each member of the Applications Committee is provided a worksheet as a part of the application package which lists reasons for denial drawn from Subsection 489.511(2)(a)(3), Florida Statutes. After each application is considered by members of the Applications Committee, the application with the Applications Committee's recommendations, reasons for denial (if applicable), and other comments are given to a staff employee who prepares an approved/denial list which is presented to the full Board for consideration. The foregoing procedure was followed in the instant case. On January 16, 2002, Board members, Roger Lange and Kim DeBerry, who were members of the Applications Committee, considered Petitioner's application; both recommended denial of the application. Because there were two recommendations of denial, the application was considered by a third Applications Committee member, Dawn Johnson; she, too, recommended denial. Petitioner's application and the recommendations, reasons for denial, and comments of the Applications Committee were then given to a staff employee who prepared a summary list of all applicants with the recommendations for approval or denial by the Applications Committee with reasons given for denial for submission to the full Board. The full Electrical Contractors Licensing Board considered Petitioner's application on January 17, 2002, and unanimously denied the application. Petitioner was advised of the denial by letter dated February 8, 2002. Petitioner's Applicant's Affidavit dated November 16, 2001, indicates that he was seeking a license under Subsection 489 .511(2)(a)(3)(a), Florida Statutes. The Applicant's Affidavit specifically states: 489.511(2)(a)(3)(a), F.S. Has, within the six (6) years immediately preceding the filing of the application, at least three (3) years proven "management experience" in the trade or education equivalent thereto, or a combination thereof, but not more than one- half of such experience may be educational. (Please submit at least three (3) years of W- 2 Forms) The occupational skills and responsibilities of an electrical contractor are unique and require experience and understanding which are typically acquired by extensive, direct "on-the-job" training in the electrical contracting trade. Petitioner is an experienced General Contractor's project manager. His credentials as a General Contractor's project manager are impressive and the projects he has supervised are extensive. Petitioner has little or no direct supervisory experience in the electrical contracting trade. Petitioner's construction management experience is as a General Contractor project manager, not an Electrical Contractor project manager or similar position, and, as a consequence, he does not meet the "'management experience' in the trade" statutory requirement. Petitioner has an enviable academic record: an Associate of Science Degree With Honors from Miami-Dade Community College (1990), a Bachelor of Science in Building Construction from University of Florida (1993), 21 hours of graduate studies at Florida International University leading towards a Master of Building Construction degree. Petitioner's academic credentials have little direct application to the electrical contracting trade and, as a consequence, do not meet the "educational equivalent" to management experience statutory requirement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner's application to take the Certified Electrical Contractor's Licensure Examination. DONE AND ENTERED this 10th day of January, 2003, 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 10th day of January, 2003. COPIES FURNISHED: Barbara Rockhill Edwards, Esquire Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Rosemary Hanna Hayes, Esquire Hayes & Associates 3117 Edgewater Drive Orlando, Florida 32804 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Anthony B. Spivey, Executive Director Electrical Contractors Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The Petitioner has applied to take the Electrical Contractors' Licensing Board licensure examination and the Board proposes to deny the Petitioner's application on the ground that the Petitioner does not fully meet the experience requirements which are prerequisites to taking the examination. The parties stipulated that the Petitioner has satisfied one-half of the experience requirement pursuant to Rule 21GG-5.03(2), Florida Administrative Code, by reason of his having a bachelor's degree in electrical engineering from the University of Miami. Thus, the central issue in this case is whether the Petitioner's professional and business experience constitutes one and one-half years "proven experience in the trade as an electrical contractor or in a responsible management position with an electrical contractor." See Section 2489.521, Fla. Stat., Rule 2100-5.03(1), F.A.C.
Findings Of Fact Based on the testimony of the witnesses, the exhibits received in evidence, and the stipulations of the parties, I make the following findings of fact. Mr. Juan M. Reynes has applied to the Electrical Contractors' Licensing Board (hereinafter referred to as "the Board") to take the licensure examination for certification as an electrical contractor. Mr. Reynes' application was denied because the Board concluded that he had failed to demonstrate the experience required by Section 2489.521, Florida Statutes, as interpreted by Rule 21GG-5.03, Florida Administrative Code. Mr. Reynes is originally from Cuba, where his father ran an electrical contracting company. When Mr. Reynes was a teenager he began working in his father's business in 1949. He worked in a number of capacities, including work as an apprentice to an electrical engineer. Thereafter Mr. Reynes studied electrical engineering at the University of Havana and received a degree in electrical engineering during the middle or late 1950's. Thereafter, Mr. Reynes was licensed as an electrical engineer in Cuba. Following receipt of his degree and license as an electrical engineer, Mr. Reynes continued to work for his father's electrical contracting company from 1958 until sometime in 1962. During the period from 1958 to 1962, Mr. Reynes was involved in all aspects of the management of his father's electrical contracting company. His involvement in the management of the business included such things as signing contracts for the company, locating new business for the company, obtaining the necessary permits, dealing with the supply houses, and keeping the necessary employee records. In Cuba a license to practice electrical engineering also authorized the licensee to engage in the business of electrical contracting. The permitting procedure in Cuba was one in which permission to construct was obtained by having the appropriate government officials sign the blue prints. It was necessary to have an electrical engineer degree in order to submit blue prints for government approval. At the time Mr. Reynes was working as a licensed electrical engineer with his father's company there were laws in Cuba similar to Florida's worker's compensation laws and unemployment compensation laws. Workers in Cuba were also guaranteed certain other benefits such as guaranteed vacation days and sick leave. It was necessary to keep records regarding each employee. At the time Cuba did not have any laws similar to the Social Security laws in this country. When Mr. Reynes was studying for his electrical engineering degree in Cuba, his course work included studying the law of contracts. Thereafter Mr. Reynes spent a number of years in jail in Cuba as a political prisoner. Following his release from jail, from October of 1970 until January 1972 Mr. Reynes worked on some extensive electrical construction projects for Alfa Romeo in Cuba. After finishing that project, Mr. Reynes was able to obtain permission to leave Cuba and move to Spain. All of the electrical construction projects that Mr. Reynes was involved in within Cuba were built pursuant to the latest available edition of the North American National Electric Code. In Spain, Mr. Reynes did some work in the fields of electronics and electrical engineering. He left Spain and came to the United States. In the United States he has worked for a lot of companies in a variety of positions related to one aspect or another of electricity, but most of that experience is not relevant to the experience requirements for taking the electrical contractor's certification examination. While working in the United States, Mr. Reynes studied electrical engineering at the University of Miami and received a bachelor's degree in electrical engineering in May of 1981. He graduated cum laude as a result of receiving high grades, which he was able to do while also working full time to support himself and his family. In October of 1981, he took the licensure examination for professional engineer and passed it the first time he took it. Since February of 1982, he has been licensed as a professional engineer by the Board of Professional Engineers of the State of Florida. Since being licensed as a professional engineer, Mr. Reynes has owned and operated his own electrical engineering business. He has worked as an engineering consultant for several general contractors and electrical contractors, but he has not been in a responsible management position with an electrical contractor since coming to the United States, nor has he pulled any building permits for electrical construction in the United States. However, in working for electrical contractors, he has done such things as calculate the total number of man hours required for projects, calculate the total cost of supplies for projects, and supervised the actual construction of projects. In the operation of his own business Mr. Reynes has one full-time employee and two part-time employees. In the operation of his own business he has become familiar with such matters as preparation of payroll and the necessary deductions, the Internal Revenue Service requirements for businesses, worker's compensation insurance, and unemployment compensation insurance. An important part of the experience required by the applicable statute and rule is experience in the business activities aspect of electrical contracting. These activities include such things as payroll, insurance, bonding, worker's compensation, unemployment compensation, contract, and building laws.
Recommendation On the basis of all of the foregoing it is recommended that the Electrical Contractor's Licensing Board issue a Final Order concluding that Mr. Reynes is eligible to take the next electrical contractors' certification examination. DONE and ORDERED this 29th of November 1984, at Tallahassee, Florida. MICHAEL M. PARRISH 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 November 1984. COPIES FURNISHED: Juan M. Reynes, 336 W. 16th Street Hialeah, Florida 33010 Arthur Wallberg, Esquire Assistant Attorney General Room 1601 The Capitol Tallahassee, Florida 323301 Allen R. Smith, Jr. Executive Director Florida Electrical Contractors' Licensing Board 130 N. Monroe Street Tallahassee, Florida 32301
Findings Of Fact The Petitioner has been employed by the Pinellas County School Board and has held a Florida teaching certificate in industrial arts, number 449426, at all times material hereto. He seeks to add electrical wiring as a specialized vocational certification. From 1981 until 1984 Petitioner taught electrical wiring at Dunedin High School, but Petitioner has never been certified to teach electrical wiring, and he was therefore teaching this course "out of field." Following initial inquiry by Petitioner about what he would have to do to extend his industrial arts teaching certificate to include electrical wiring, Respondent advised him by letter dated February 7, 1979, that he had to complete a three semester hour course in Principles and Philosophy of Vocational Education, as well as submit verification of occupational experience. Petitioner acknowledges receipt of this letter. Following a second inquiry by Petitioner through Jean Drainer, certification technician with the Pinellas County School Board, he was advised in May 1981 that his occupational experience had been verified and he would only have to take the course in Principles and Philosophy of Vocational Education to add electrical wiring to his teaching certificate. Petitioner was not advised of any time limit by which he had to take this course. From March 21, 1974 until December 28, 1983 Respondent had an informal policy known as the "short plan", which was never adopted as a rule under Section 120.54, F.S. The short plan was an alternative procedure to Rule 6A-4.42, F.A.C., by which industrial arts teachers could add specialized vocational certifications, such as electrical wiring. There were three requirements under the short plan: (1) two years of occupational experience, (2) the course in Principles and Philosophy of Vocational Education, and (3) practical teaching experience. Petitioner had been advised in 1979 and 1981 under the terms of the short plan, and in May 1981 was advised he lacked only the required course. Respondent began a review of the "short plan" in the summer of 1983 in an effort to strengthen the quality of teachers for vocational subjects. Interpretive Memorandum 15, dated December 28, 1983, eliminated the "short plan". All school districts were notified of the elimination of this plan in the usual manner of distributing notice of policy changes through teacher certification contacts in each district. Respondent "grandfathered" less than five applicants who were advised in the Fall of 1983 about the availability of the "short plan" and who enrolled in the required course at their first opportunity and completed the course in the Spring Semester 1984. On or about February 7, 1984, a program auditor from the Department of Education met with Petitioner during a routine audit and found he was teaching electrical wiring out of field. Petitioner contacted Respondent by telephone on February 10, 1984, and was advised that the short plan had been discontinued and he could no longer be certified simply by completing the required course. Petitioner contends this was the first time he was notified that the short plan was no longer available. Petitioner enrolled at the University of South Florida for the Spring Semester 1984 and successfully completed the course, "History and Principles of Vocational Education. There is no evidence that Petitioner made any inquiry about the short plan requirements from May 1981 until being advised in February 1984 of its discontinuance. Further, there is no evidence that Petitioner took any action to meet the course requirement under this short plan from February 1979 until he enrolled in the 1984 Spring Semester at the University of South Florida.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing the petition filed by David C. Syster. DONE and ENTERED this 24th day of June, 1985, at Tallahassee Florida. DONALD D. CONN 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 24th day of June, 1985. COPIES FURNISHED: Robert F. McKee, Esquire 401 South Albany Avenue Tampa, Florida 33606 Gene T. Sellers, Esquire State Board of Education Knott Building Tallahassee, Florida 32301 Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301
The Issue The ultimate issue in this proceeding is whether proposed Florida Administrative Code Rule 61G15-21 is an invalid exercise of delegated legislative authority.
Findings Of Fact Florida Administrative Code Rule 61G15-21.004, in relevant part, states: The criteria for determining the minimum score necessary for passing the Engineering Fundamentals Examination shall be developed through the collective judgment of qualified experts appointed by NCEES to set the raw score that represents the minimum amount of knowledge necessary to pass the examination. The judges shall use a Modified Angoff Method in determining the minimally acceptable raw score necessary to pass the Fundamentals of Engineering Examination. Using the above mentioned Modified Angoff Method, the judges will indicate the probability that a minimally knowledgeable Fundamentals of Engineering examinee would answer any specific questions correctly. The probability of a correct response is then assigned to each question. Each judge will then make an estimate of the percentage of minimally knowledgeable examinees who would know the answer to each question. The totals each of the judges is added together and divided by the number of judges to determine the overall estimate of the minimum standards necessary. The minimum number of correct answers required to achieve a passing score will take into account the relative difficulty of each examination through scaling and equating each examination to the base examination. The raw score necessary to show competence shall be deemed to be a 70 on a scale of 100. A passing grade on Part Two of the examination is defined as a grade of 70 or better. The grades are determined by a group of knowledgeable professional engineers, who are familiar with engineering practice and with what is required for an applicable engineering practice and with what is required for an applicable engineering task. These professional engineers will establish a minimum passing score on each individual test item (i.e., examination problem). An Item Specific Scoring Plan (ISSP) will be prepared for each examination item based upon the NCEES standard scoring plan outline form. An ISSP will be developed by persons who are familiar with each discipline including the item author, the item scorer, and other NCEES experts. On a scale of 0-10, six (6) will be a minimum passing standard and scores between six (6) and ten (10) will be considered to be passing scores for each examination item. A score of five (5) or lower will be considered an unsatisfactory score for that item and examinee will be considered to have failed that item. To pass, an examinee must average six (6) or greater on his/her choice of eight (8) exam items, that is, the raw score must be forty- eight (48) or greater based on a scale of eighty (80). This raw score is then converted to a base 100 on which, as is noted above, a passing grade will be seventy (70). The proposed changes to Florida Administrative Code Rule 61G15-21.004, in relevant part, state: The passing grade for the Engineering Fundamentals Examination is 70 or better. The criteria for determining the minimum score necessary for passing the Engineering Fundamentals Examination shall be developed through the collective judgment of qualified experts appointed by NCEES to set the raw score that represents the minimum amount of knowledge necessary to pass the examination. The judges shall use a Modified Angoff Method in determining the minimally acceptable raw score necessary to pass the Fundamentals of Engineering Examination. Using the above mentioned Modified Angoff Method, the judges will indicate the probability that a minimally knowledgeable Fundamentals of Engineering examinee would answer any specific questions correctly. The probability of a correct response is then assigned to each question. Each judge will then make an estimate of the percentage of minimally knowledgeable examinees who would know the answer to each question. The totals each of the judges is added together and divided by the number of judges to determine the overall estimate of the minimum standards necessary. The minimum number of correct answers required to achieve a passing score will take into account the relative difficulty of each examination through scaling and equating each examination to the base examination. The raw score necessary to show competence shall be deemed to be a 70 on a scale of 100. The passing grade for the Principles and Practice Examination is 70 or better. A passing grade on Part Two of the examination is defined as a grade of 70 or better. The grades are determined by a group of knowledgeable professional engineers, who are familiar with engineering practice and with what is required for an applicable engineering practice and with what is required for an applicable engineering task. These professional engineers will establish a minimum passing score on each individual test item (i.e., examination problem). An Item Specific Scoring Plan (ISSP) will be prepared for each examination item based upon the NCEES standard scoring plan outline form. An ISSP will be developed by persons who are familiar with each discipline including the item author, the item scorer, and other NCEES experts. On a scale of 0-10, six (6) will be a minimum passing standard and scores between six (6) and ten (10) will be considered to be passing scores for each examination item. A score of five (5) or lower will be considered an unsatisfactory score for that item and examinee will be considered to have failed that item. To pass, an examinee must average six (6) or greater on his/her choice of eight (8) exam items, that is, the raw score must be forty- eight (48) or greater based on a scale of eighty (80). This raw score is then converted to a base 100 on which, as is noted above, a passing grade will be seventy (70). Petitioner resides in Tampa, Florida. On April 11, 2003, Petitioner took a national examination that Petitioner must pass to be licensed by the state as a professional engineer. On July 1, 2003, Petitioner received a letter from the Board advising Petitioner that he had received a failing grade on the examination. On July 2, 2003, Petitioner unsuccessfully requested the raw scores on his examination from a representative of the National Council of Examiners for Engineering and Surveying (NCEES). The NCEES is the national testing entity that conducts examinations and determines scores for the professional engineer examination required by the state. On July 9, 2003, Petitioner submitted a formal request to the Board for all of the raw scores related to Petitioner "and all past P.E. Exams that the Petitioner had taken." A representative of the Board denied Petitioner's request explaining that the raw scores are kept by the NCEES and "it is not their policy to release them." The Board's representative stated that the Board was in the process of adopting new rules "that were in-line with the policies of the NCEES." On July 31, 2003, Petitioner requested the Board to provide Petitioner with any statute or rule that authorized the Board to deny Petitioner's request for raw scores pursuant to Section 119.07(1)(a), Florida Statutes (2003). On the same day, counsel for the Board explained to Petitioner that the Board is not denying the request. The Board is unable to comply with the request because the Board does not have physical possession of the raw scores. Petitioner and counsel for Respondent engaged in subsequent discussions that are not material to this proceeding. On August 6, 2003, Petitioner requested counsel for Respondent to provide Petitioner with copies of the proposed rule changes that the Board intended to consider on August 8, 2003. On August 27, 2003, Petitioner filed a petition with the Board challenging existing Florida Administrative Code Rule 61G15-21.004. The petition alleged that parts of the existing rule are invalid. Petitioner did not file a challenge to the existing rule with DOAH. The Petition for Hearing states that Petitioner is filing the Petition for Hearing pursuant to Subsections 120.56(1) and (3)(b), Florida Statutes (2003). However, the statement of how Petitioner's substantial interests are affected is limited to the proposed changes to the existing rule. During the hearing conducted on January 29, 2004, Petitioner explained that he does not assert that the existing rule is invalid. Rather, Petitioner argues that the Board deviates from the existing rule by not providing examinees with copies of their raw scores and by failing to use raw scores in the determination of whether an applicant achieved a passing grade on the exam. Petitioner further argues that the existing rule benefits Petitioner by purportedly requiring the Board to use raw scores in the determination of passing grades. The elimination of that requirement in the proposed rule arguably will adversely affect Petitioner's substantial interests. The Petition for Hearing requests several forms of relief. The Petition for Hearing seeks an order granting Petitioner access to raw scores, a determination that Petitioner has met the minimum standards required under the existing rule, and an order that the Board grant a license to Petitioner. The Petition for Hearing does not request an order determining that the proposed rule changes constitute an invalid exercise of delegated legislative authority.
The Issue The issues in this case are whether Respondent violated an order of the Board of Professional Engineers (Board) previously entered in a disciplinary proceeding, and, if so, what disciplinary action is appropriate.
Findings Of Fact Respondent is a licensed professional engineer in Florida and holds license PE 20638. He has held the license continuously since 1979. In 2000, Petitioner brought a disciplinary action against Respondent, styled FEMC v. John B. Benson, III, P.E., Department of Business and Professional Regulation Case No. BPR- 2000-04871, for alleged negligence in preparing a deficient electrical plan and related misconduct in connection with the construction of an addition to a church. The case terminated with the Board's Final Order Approving Settlement Stipulation ("2000 Final Order"). In the parties' Settlement Stipulation, Respondent agreed to pay a fine and to be permanently prohibited from practicing electrical engineering. On September 17, 2004, Respondent signed and sealed, as an engineer, an Inspection Report by Affidavit for electrical inspection of the "rough-in"2 electrical work associated with construction at 4915 26th Street, West, Building A, in Bradenton, Florida. On September 17, 2004, Respondent signed and sealed, as an engineer, an Inspection Report by Affidavit for electrical inspection of the rough-in electrical work associated with construction at 4915 26th Street, West, Building J. On December 1, 2004, Respondent signed and sealed, as an engineer, an Inspection Report by Affidavit for final electrical inspection of the electrical work associated with construction at 4915 26th Street, West, Building A. On December 3, 2004, Respondent signed and sealed, as an engineer, an Inspection Report by Affidavit for final electrical inspection of the electrical work associated with construction at 13411 Blythfield Terrace, Bradenton, Florida. No allegation was made, or evidence introduced to show, that the inspection reports referred to in paragraphs 4 through 7 contained errors or that the inspections were deficient. Mr. Ooten, an expert in electrical engineering and building inspections, testified that building officials usually require an electrical plan to be included in building plans, but the electrical plan does not have to be signed and sealed by an electrical engineer. On December 17, 2004, the Board received a complaint from the chief building official for Manatee County, regarding Respondent's signing and sealing electrical inspections in 2004, contrary to the Board's 2000 Final Order prohibiting Respondent from practicing electrical engineering. This complaint and the Board's subsequent investigation led to the Administrative Complaint which is the subject of this case. Respondent's defense to the charges in the Administrative Complaint is that he understood the Board's 2000 Final Order to prohibit him from designing an electrical plan. He did not think he was prohibited from signing and sealing electrical inspections, or from signing and sealing construction plans that included electrical components. On March 25, 2005, the Board received another complaint from the chief building official for Manatee County, who claimed that Respondent signed and sealed an electrical plan for a building for the Lemur Conservation Foundation. In response to this second complaint, Respondent informed the Board that he had placed a disclaimer statement on the building plans that "These plans have been reviewed for adequacy of structural components and systems only in compliance with FBC 01 Section 1606 130 MPH." Respondent placed this statement only on the first page of the building plans. As a consequence of this second complaint and investigation, Respondent was issued a "Letter of Guidance." No Letter of Guidance, clearly identified as such, is contained in the record. Respondent's Exhibit 1 includes a "Closing Order" of Petitioner, dated August 8, 2005, which may constitute the Letter of Guidance. It contains a statement directed to Respondent: The panel cautions the Subject that when he signs any page of plans he is responsible for all engineering depicted on the page unless the limitation of his analysis and approval appears clearly on the same page. Respondent asserts that, until the Letter of Guidance was issued, he did not understand that his inspection of electrical components and systems was the practice of electrical engineering. The Letter of Guidance, however, did not address the issue of the propriety of Respondent's four electrical inspections. The Letter of Guidance was a response to the second complaint about Respondent's signing and sealing an electrical plan, and his defense that he used a disclaimer statement to indicate that his signature and seal was not a representation about the electrical plan. The essence of the Board's "guidance" to Respondent was to make his disclaimer regarding the electrical components more explicit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a Final Order finding that Respondent violated Subsection 471.031(1)(k), Florida Statutes, for violating an order of the Board previously entered in a disciplinary proceeding, and imposing a penalty of license suspension for a period of four months and a fine of $4,000, plus the costs of these proceedings, as determined by the Board. DONE AND ENTERED this 9th day of June, 2006, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 9th day of June, 2006.
Findings Of Fact In July, 1987, the Petitioner, John Viciguerra, took the master electrician examination given by the Department of Professional Regulation for the Electrical Contractors' Licensing Board. He received a grade of 74.5. A grade of 75 is passing. One of the questions on the examination, number B-22, worth half a point, read: The branch circuit load in amps for one 8 KW residential range, rated 110/220 is closest to--amps. a) 14 c) 29 b) 19 d) 35 The Petitioner's answer, "d," was marked incorrect. The correct answer, according to the Respondent, is "c." The Petitioner got his answer by simply applying Ohm's Law and dividing 8000 watts by 220 volts equals 36.36, or 35. The Respondent got its answer by reference to Article 220-19 of the National Electrical Code. Note 4 to Article 220-19 states: Branch-Circuit Load. It shall be permissible to compute the branch-circuit load for one range in accordance with Table 220-19. Article 220.19 states in pertinent part: Electric Ranges and Other Cooking Appliances--Dwelling Units(s). The feeder demand load for household electric ranges, wall-mounted ovens, counter-mounted cooking units, and other household cooking appliances individually rated in excess of 1 3/4 KW shall be permitted to be computed in accordance with Table 220-19. Table 220-19 says to use 80% of the rated wattage of the range. The answer, according to the Respondent, therefore is 80% of 8000 watts divided by 220 equals 29.09, or 29. The examination instructions for part B tell the examinees to choose the best answer and to use the general rule in the Code unless directed to an exception. Examination question B-22, and the answer it was seeking, fairly tests the candidate's knowledge of the Code. Essentially, the question was testing for the examinee's familiarity with the demand load factor. If the question had given the examinees more information to make this clearer, all of the examinees would have been spoon-fed the answer, making the question worthless. Similarly, if "d" is a correct answer because use of the demand factor table is just "permissible," B-22 could not test for knowledge of the Code because an examinee could always choose to "over-design" the electrical wiring for purposes of his answer by ignoring the demand factor and always using 100% of the load of the appliance even in a residential setting. In short, answer "c" is better than answer "d". 94% of the examinees who had the top quarter overall grades on the examination answered B-22 "c". Only 42% of the middle half, and only 33% of the bottom quarter, answered it "c." The only other answer selected by any of the examinees was the Petitioner's choice, "d". These statistics suggest that the examinees who best mastered the information tested by the examination in general, and the Code in particular, chose "c" as the answer to B-22. Those with less mastery of the subject matter chose the answer the Petitioner chose, "d". Question B-22 fairly, adequately and reliably tests for the examinees' knowledge of the National Electrical Code.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Electrical Contractors' Licensing Board enter a final order dismissing the Petitioner's appeal and establishing his grade on the July, 1987, master electrician examination as 74.5. RECOMMENDED this 1st day of July, 1988 in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 1st day of July, 1988. COPIES FURNISHED: Michael S. Schwartzberg, Esquire 405 Central Avenue, 7th Floor St. Petersburg, Florida 33701 H. Reynolds Sampson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Pat Ard Executive Director Electrical Contractors Licensing Board Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether Petitioner is entitled to additional credit for his responses to the "Principles and Practice" portion of the electrical engineer examination administered by Respondent in October 1996.
Findings Of Fact Petitioner took the electrical engineer licensing examination administered by Respondent in October 1996. Respondent is the agency of the State of Florida with the duty to regulate the practice of electrical engineering in Florida. Pursuant to Section 471.015, Florida Statutes, an applicant for licensure as an electrical engineer is required to successfully pass both parts of a licensure examination.1 The electrical engineer licensure examination at issue in this proceeding was developed and graded by the National Council of Examiners for Engineering and Surveying (NCEES). Following the initial grading of the "Principles and Practice" section of the exam, Petitioner was awarded a score of 68. A total score of 70 was required to pass that portion of the examination. Petitioner thereafter timely challenged the grading of two questions on the "Principles and Practice" portion of the exam. His challenge was limited to Questions 130 and 132. Petitioner did not specifically challenge Question 131. In response to that challenge, Respondent sent Petitioner’s examination package back to NCEES to have the "Principles and Practice" portion of the examination re-graded. NCEES re-graded all of Petitioner's answers to the "Principles and Practice" portion of the examination, including his responses to Questions 130, 131, and 132. NCEES initially awarded Petitioner a score of 2 points for his answer to Question 130. When the answer was re-graded, Petitioner was not awarded any additional credit for his answer to Question 130. The record in this proceeding established that Petitioner's answer to Question 130 was properly re-graded. Petitioner is not entitled to any additional credit for his response to Question 130. NCEES initially awarded Petitioner a score of 2 points for his answer to Question 132. When the answer was re-graded, Petitioner was awarded a score of 4 points for his answer to Question 132. The record in this proceeding established that Petitioner's answer to Question 132 was properly re-graded. Petitioner is entitled to a score of 4 points for his answer to Question 132. NCEES initially awarded Petitioner a score of 8 points for his answer to Question 131. When the answer was re-graded, Petitioner was awarded a score of 6 points for his answer to Question 131. The record in this proceeding established that Petitioner's answer to Question 131 was properly re-graded. Petitioner is entitled to a score of 6 points for his answer to Question 131. Petitioner is not entitled to a score of 8 for his answer to Question 131. Each of the three questions at issue in this proceeding is a problem that requires multiple steps and computations to solve. If a candidate correctly answers all parts of the question a score of 10 points is awarded. Partial credit can be awarded based on how many of the parts of the question are correctly answered. There is no allegation that the three questions involved in this proceeding are ambiguous or otherwise inappropriate for a licensure examination. The record is not clear when Respondent notified Petitioner of its position following the re-grading of the questions at issue. It is clear that Petitioner was aware of Respondent's position prior to the start of the formal hearing. During the formal hearing and in his post-hearing submittal, Petitioner challenged Respondent's right to re-grade Question 131 since he had not specifically challenged that question. Petitioner has not asserted that he was provided insufficient notice of Respondent's position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order that awards Petitioner a score of 68 on the "Principles and Practice" portion of the October 1996 licensure examination. DONE AND ENTERED this 11th day of December, 1997, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 11th day of December, 1997.
The Issue Whether Robert Bennett's license as an electrical contractor should be disciplined for violating Sections 489.533(1)(f) and (i), Florida Statutes?
Findings Of Fact The Petitioner is the state agency charged with the responsibility of prosecuting administrative complaints against electrical contractors in the State of Florida. At all times relevant to this proceeding, Robert Bennett was licensed by the State of Florida as an electrical contractor. Mr. Bennett has been licensed as an electrical contractor since 1983. Mr. Bennett holds license number ER 0008588. Mr. Bennett practices electrical contracting as "Bob Bennett Incorporated" or "Bennett Electric." Mr. Bennett has performed electrical work for approximately fourteen years. On or about December 3, 1986, Mr. Bennett was contacted by Lee Maranzino or her husband. Mr. Bennett agreed to install three ceiling fans in the Maranzino home in Holly Hill, Volusia County, Florida. After beginning work at the Maranzino home, Mr. Bennett discovered that electrical work other than installing the three ceiling fans was needed. He explained the problems he discovered to the Maranzinos and obtained their approval to perform the work. After installing the ceiling fans, Mrs. Maranzino told Mr. Bennett that fuses associated with the use of the oven in her kitchen were blowing. Mr. Bennett was by Mrs. Maranzino's to correct the problem. Mr. Bennett was aware that a permit for the electrical work he ultimately performed for the Maranzinos was probably required because at some point during his work he suggested to Mr. Maranzino that a permit be obtained. Mr. Bennett told Mr. Maranzino that "technically, it's maintenance so we might be able to get by without doing it, you know" when Mr. Maranzino expressed concern about the cost of obtaining a permit. Ultimately, Mr. Bennett performed the following electrical work at the Maranzino home on December 3 and 8, 1986: Blocked off a junction box for a light in a closet and moved the light to the center of the room where the closet was located. The switch leg was also moved by Mr. Bennett; Replaced the wiring in three rooms and installed three ceiling fans; and Removed a subpanel with a burned fuseholder, installed and wired a new junction box, installed a proper "overcurrent device" in the main panel; rerouted the remaining four circuits to the main panel; and installed overcurrent devices on each circuit. Mr. Bennett recommended the rewiring because of his concern about the condition of the existing wire. Mr. Bennett used the following materials to perform the work he performed at the Maranzino home: 80 feet of 14-2 Romex wire; 4-1900 series boxes; 4 covers; 3-3 inch round boxes; and 6 Romex connectors. Mr. Bennett was paid $384.00 for the work he performed for the Maranzinos. Section 7-51(a) of the City of Holly Hill's Buildings and Building Regulations provides the following: (a) No person shall do any electrical construction of any character, install any electrical wiring, apparatus, or equipment or make any extensions or changes to existing systems or wiring for light, heat, power or advertising within the limits of the city, excepting the repairing of damaged or broken fixtures, apparatus or equipment and the ordinary work necessary for the proper maintenance of same without a permit issued by the electrical inspector. Permits required by this Regulation are to be obtained before the work is commenced. No electrical permit was applied for or obtained for the electrical work performed by Mr. Bennett for the Maranzinos prior to the time the work was performed. Mr. Bennett applied for and received an electrical permit for the electrical work performed by Mr. Bennett for the Maranzinos on July 29, 1987, approximately seven months after the work was completed. No inspection was requested or performed by the Chief Building Official and Zoning Enforcement Officer of the City of Holly Hill for the electrical work performed by Mr. Bennett for the Maranzinos until approximately seven months after the work was completed. According to the Chief Building Official and Zoning Enforcement Officer of the City of Holly Hill, an electrical permit should have been obtained prior to going forward with the electrical work performed by Mr. Bennett for the Maranzinos. Although he was also of the opinion that an electrical permit would not be required for installing ceiling fans (merely connecting of a ceiling fan to an existing connection), an electrical permit should have been obtained when Mr. Bennett discovered that the other types of electrical work he performed were necessary. Mr. Bennett is licensed to practice electrical contracting in thirty- eight counties in the State. Mr. Bennett was aware that an electrical permit would be required for the type of work he performed in some cities located within some of those counties. Mr. Bennett made no inquiry of building officials to determine whether an electrical permit was required for the work to be performed for the Maranzinos immediately before the work was commenced. In 1983, before moving from Broward and Palm Beach Counties to Volusia County, Mr. Bennett discussed permit requirements generally with building officials throughout Volusia County, including the Chief Building Official and Zoning Enforcement Officer of Holly Hill. This is the first time that disciplinary action has been taken against Mr. Bennett's license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Robert Bennett be found guilty of having violated Sections 489.533(1)(f) and (i), Florida Statutes. It is further RECOMMENDED that Mr. Bennett be required to pay a $250.00 fine within thirty (30) days after this case becomes final and that Mr. Bennett receive a reprimand. DONE and ENTERED this 13th day of February, 1989, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 1989. APPENDIX Case Number 88-1996 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1 2 3. 3 4. The initial oral contract was only for the installation of three ceiling fans and not for "some wiring". 4 8. 5 9. 6 10. 7 11. 8 13. 9 15. 10 14. 11 15. 12 12. 13 16. 14 18. 15 16. 16 8. 17 17. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 2 and 20. 2 19. 3 See 4-5, 8 and 16. 4-5 Proposed finding of fact is generally correct. The weight of the evidence, however, failed to prove that Mr. Harbuck initially supported Mr. Bennett's actions because he had not paid sufficient attention to the information initially provided to him by Mr. Bennett concerning the work that was performed. Proposed finding of fact 5 is not supported by the weight of the evidence. 6 14. COPIES FURNISHED: Pat Ard, Executive Director Board of Electrical Contractors Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750 Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Jason G. Reynolds, Esquire Post Office Drawer 9670 Daytona Beach, Florida 32020 Kenneth E. Easley, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750
